Wednesday, May 4, 2011, 10:00 PM - Political developmentsA bill to loosen the cap on how long some disabled workers can draw temporary disability benefits advanced in a California Assembly committee today.
The bill, AB 947 (Solorio), would add injuries that require treatment that cannot be medically completed within 104 weeks to a list of specified conditions that can qualify for a longer period of disability payments.
Under current law, a worker injured after January 1, 2008 is potentially eligible for up to 104 weeks of temporary disability benefits over a 5 year period. There are exceptions which allow up to 240 weeks of temporary disability over a 5 year period in specified circumstances.
Those circumstances are for amputations, severe burns, acute and chronic Hepatitis B and C, HIV, high velocity eye injuries, chemical burns to the eyes, pulmonary fibrosis and "chronic lung disease".
Sufferers of those conditions are no doubt worthy of careful consideration from the system. But the gap between their special dispensation and the limitations on TD for other severely disabled workers doesn't pass the "smell test" of fairness.
Workers lost significant legitimate rights in the 2004 reforms. Aside from the loss of free choice of treating physican, nothing riles disabled workers and unionists as much as the arbitrary cap on TTD benefits.
Here's the problem, laid out in a frequently occurring scenario....
The worker falls off a ladder at work. For a while the occupational health doctor resists doing anything but physical therapy. After 2 or 3 months an MRI is performed, revealing a large herniated disc. After several months of utilization review wrangling over treatment referrals, the worker gets to a spinal surgeon, who urges a go slow approach for another several months.
When the pain becomes intractable, the worker's orthopaedic surgeon recommends surgery. The carrier disputes the spinal surgeon.
The parties go through the spinal second opinion process, and the spinal second opinion recommends a fusion. By the time it is scheduled the worker is about a year downstream.
Unfortunately, the fusion does not heal properly. After prolonged convalescence and therapy, it is determined that the fusion is not solid.
The worker needs a re-do of the fusion. But the problems are multiplying. He still has sciatic type leg weakness, and his leg gives out, causing him to fall and rupture many knee ligaments.
Now he's facing 2 surgeries, a major knee reconstruction and a fusion.
He's past the 104 weeks of TTD. Pretty soon he's past the additional help that EDD provides through its state disability benefits program.
By that time his problems are legion. If he wasn't depressed before, he is now. There are marital problems. Financial problems. It's likely that his health insurance expired. There's no money.
And no more TTD after those 104 weeks.
AB 947 (Solorio) would address this problem.
The vote the Assembly Insurance Commmitte today was 8-4, Voting yes were Democratic Assembly members Jose Solorio (D-Anaheim), Chuck Calderon (D-Montebello), Wilma Carter (D-Rialto), Mike Feuer (D-Los Angeles), Mary Hayashi (D-Castro Valley), Nancy Skinner (D-Berkeley), Norma Torres (D-Pomona), and Bob Wieckowski (D-Fremont).
From here the measure will go to the Assembly floor. It's likely that the bill will wind up on the Governor's desk later this summer.
Here's a link to the current text of the bill:
http://www.leginfo.ca.gov/pub/11-12/bil ... sm_v97.pdf
And here's the current Assembly analysis:
http://www.leginfo.ca.gov/pub/11-12/bil ... _comm.html
Tuesday, May 3, 2011, 10:34 PM - Political developmentsIn our society we tend to take a lot for granted.
We tend to think our rights and benefits will be there when we want then and when we need them. And it's easy to forget the hard-won victories of the past that brought us where we are.
As unions find themselves under attack in many states, and with union membership in California below 10% of the workforce, unions are stepping up outreach efforts to communicate their successes.
It's high time for that.
The future of the union movement in California won't be with pony-tailed graybeards reminiscing about struggles against McCarthyism and campus strikes at UC.
It will be with communicating to a social networking generation why unions can offer them a better economic future.
It's good to see a spirited defense of unions such as the one offered by
Rebecca Greenberg of the California Labor Federation. In a piece on the California Progress Report, Greenberg outlines the case for unions in "From the Folks Who Brought You the Weekend". Here it is:
Sunday, May 1, 2011, 02:16 PM - Medical treatment under WCThe California Workers' Compensation Institute has unveiled a second research paper on opioid prescribing in the California workers' comp system.
The paper is titled " Prescribing Patterns of Schedule II Opioids Part 2:
Fentanyl Prescriptions in California Workers' Compensation".
There has been increasing concern over the cost and increasing use of opioids in the system. The CWCI paper is likely to increase that scrutiny.
It will not surprise me if the incoming administration at the DIR/DWC choose this as an issue for additional regulation. Where in the pecking order this might come is not clear.
After all, the next DWC administrator will have to deal with issues surrounding a physicians fee schedule as well as possible regulations on nutriceuticals and medical foods.
Essentially, the second CWCI study claims (as did the first study), that a small percentage of physicians are accounting for a large percentage of the opioids prescribed in California workers' comp.
A piece written by Greg Jones for Workcompcentral.com several months ago noted that Steve Cattolica of CSIMS had objected to a press release of the first study in that it implied that physicians were dispensing much of these out of their offices, a claim that was not documented in the study.
I've included a link below to a pdf version of the second study. But here is the summary of the study:
"Parts 1 and 2 of the CWCI Schedule II Opioid Prescribing Patterns research series have shown that the 10 percent of physicians who write the most Schedule II opioid prescriptions for injured workers in California are associated with 79 percent of all workers’ compensation prescriptions for these types of narcotics, and for 84 percent of the fentanyl prescriptions. Most of the fentanyl prescriptions were transdermal patches, which have limited FDA approved uses and have been the subject of multiple FDA warnings. California workers’ compensation pain management guidelines also say the patches should only be used for chronic pain patients requiring round-the-clock therapy, who have developed a tolerance for other opioids, and whose pain cannot be managed by other therapy. Furthermore, there was no evidence of cancer-related illness or injury among any of the injured workers in the study sample, indicating that off-label use of fentanyl lozenges or tablets, which are only FDA approved for breakthrough, chronic cancer pain, has become an issue in the California system. The study found that off-label use of fentanyl was concentrated in the 10 percent of the claims (1,690 cases) with the highest volume of Schedule II opioid prescriptions, where nearly 12 percent (199 cases) had prescriptions for lozenges or tablets. The rate of off-label use was even higher for the top 10 percent of medical back cases with the most Schedule II opioid prescriptions – where 77 of the 525 patients, or nearly 15 percent, were prescribed fentanyl lozenges or tablets."
Focusing on Fentanyl prescribing, the report points out FDA concerns about Fentanyl:
"Of the Schedule II opioids included in the Institute’s study, the most potent is fentanyl, which is 75 to 100 times more powerful than oral morphine. Although fentanyl can be administered intravenously, all of the fentanyl prescriptions in the Institute study sample were either administered via a skin patch (transdermal) or as a lozenge or effervescent tablet (transmucosal). Due to increases in dosing errors and abuse of fentanyl drug products, the FDA has issued several warnings regarding the drug. For example, in July 2005, the FDA issued a health advisory regarding the safe use of fentanyl skin patches in response to reported fatalities among patients using the narcotic,2 and in December 2007, the FDA issued another safety warning in response to continued reports of life-threatening side effects.3 The FDA also has issued several recall notices of fentanyl patches for reasons of accelerated drug release or leaking gel – both conditions potentially leading to adverse reactions. In addition, in September 2007, the FDA issued a more specific warning regarding Buccal Fentanyl (Fentora and Actiq),4 stating “Buccal Fentanyl should be used only to treat breakthrough cancer pain (sudden episodes of pain that occur despite round-the-clock treatment with pain medication) in cancer patients who are taking regularly scheduled doses of another narcotic (opioid) pain medication and who are tolerant (used to the effects of the medication) to narcotic pain medications. This medication should not be used to treat pain other than chronic cancer pain.” Despite these admonitions, use of fentanyl in workers’ compensation systems continues to ncrease, as evidenced by CWCI’s March 2011 study, as well as a 2010 NCCI study and a recent federal court suit by the US Postal Service against Cephalon, the manufacturer of fentanyl lozenges and effervescent tablets."
For those not following this controversy, workers' comp analyst and blogger Joe Paduda has been a prominent voice chiding doctors groups on the issues. Here is an extended quote from one of Paduda's blog posts:
"This morning's WorkCompCentral had a piece by Greg Jones noting complaints by medical specialty groups about the study on physician prescribing of opioids recently released by CWCI. I received a copy of the letter as well, and frankly was surprised - for several reasons. What was most troubling was the statement that "Alone, the report's findings do not indicate that there is anything inappropriate."
Paduda stated "I would argue that the findings absolutely indicate there is something very, very wrong going on here. In fact, a relatively few physicians are "handling the bulk of the prescriptions"; that was amply demonstrated in the analysis and results provided in the report, the details of which were discussed in detail therein."
Challenging the doctor groups, Paduda claimed" Why was this not surprising to the medical society? Was it not surprising that a relatively few physicians were treating patients with low back sprains and strains for extended periods with relatively high doses of narcotics, when all evidence-based clinical guidelines do not support such treatment?"
According to Paduda, "The letter suggested CWCI conduct a deeper analysis to determine whether the treatment was appropriate based on treatment guidelines. Huh? Every treatment guideline I've heard of, including ODG, ACOEM, Washington State - none of them supports extended use of opiods for treatment of musculoskeletal issues. None. I would also note that the letter called into the question the methodology itself. The author of the letter's statement "it is clearly misleading to use the initial diagnosis" is inaccurate. Even a cursory review of the study methodology reveals the researchers used a rather sophisticated clinical grouper to identify the PRIMARY diagnosis, which may well not be the initial diagnosis."
In concluding Paduda notes that "Finally, the letter asserted that others had mis-cited or misinterpreted the CWCI work, and requested CWCI somehow correct, clarify, or take steps to correct those misinterpretations. Studies are cited and discussed and reviewed and analyzed in the media and by individuals all day every day; I just don't think CWCI has the time, resources, or obligation to monitor what everyone says about their research.I guess is the net is I'm really taken aback by the letter. There's clearly abuse going on here, along with bad medicine and out of control prescribing of very addictive, dangerous medications that are ripe for diversion and abuse. I'm just very surprised that instead of taking this seriously, a medical society would attack the messenger. There's something very rotten going on, and denying it is the wrong approach."
We haven't seen the last word in this controversy, and there may be questions about the methodology or sampling of the CWCI study.
And we haven't actually heard from some of the doctors involved, for example. Nor have we heard from some of the worker patients, many of whom I suspect would be highly trusting of their physician's judgment in such matters.
But one thing is for sure. The issue will get further scrutiny.
Wednesday, April 27, 2011, 08:58 PM - Political developmentsThe current version of The Economist, a British weekly newsmagazine, features a graphic of a California surfer holding a deformed surfboard. The piece is entitled "Where it all went wrong: California offers a warning to voters all over the world".
The deflated phallic image highlights the current California predicament.
Political gridlock, as legislative vote math blocks revenue raising solutions. Initiative-imposed political solutions which have left policymakers boxed in. High unemployment.
As with so many crises these days, there is much pressure to blame working people. Can we really afford a decent unemployment system?
Should our employers pay a living wage? Can we afford good schools?
Can we afford to pay our public employees a pension that will sustain them? Can we afford to have a workers' comp system that provides adequate benefits to the disabled?
Should we sacrifice a group here or there? Are school kids more important than Medi-Cal recipients? Should working folks care about the rights of injured workers, or public employees with pensions, or immigrants who are trying to create a stable life here? Is someone, or some group, expendable? Too expensive? Too inconvenient?
In a week in which the failed Pacific Gas & Electric CEO resigns and is rewarded with a $35 million severance package, and soon after it has been revealed that industrial behemoth General Electric is paying no taxes at all, perhaps it is time to take stock of where we are.
No wonder so many "regular folks" feel that the deck is stacked against them.
It's good to have some think tank voices advocating for the interests of working men and women. There isn't enough of that in California or the nation.
Prominent among those advocates are some of the researchers and writers associated with the UC Berkeley Labor Center.
Just this week the UC Berkeley Labor Center issued short issue papers worth checking out,
There's "Living Wage Policies and Big Box Retail: How a Higher Wage Standard Would Impact Walmart Workers and Shoppers", by Ken Jacobs (UC Berkeley Center for Labor Research and Education), Dave Graham-Squire (UC Berkeley Center for Labor Research and Education), and Stephanie Luce (City University of New York):
http://laborcenter.berkeley.edu/retail/ ... cies11.pdf
And there's "Unemployment Benefits Critical to Jobless Workers and Economic Recovery in California" by Sylvia A. Allegretto (economist at the Center on Wage and Employment Dynamics at the Institute for Research on Labor and Employment) and Laurel Lucia (Center for Labor Research and Education at UC Berkeley's Institute for Research on Labor and Employment):
http://laborcenter.berkeley.edu/researc ... s_2011.pdf
Ultimately we can't have a healthy economy without an economically healthy middle class. These studies demonstrate that.
Monday, April 25, 2011, 09:24 PM - Understanding the CA WC systemComp's got talent.
The system has its share of renaissance men and women. In earlier posts
(see links below), I featured some of the minstrels of the system.
Today, in the belief that the pen is truly sometimes mightier than the sword, we feature the written arts.
Nesting inside the legal department at SCIF's Pleasanton office is David Kizer. Kizer and his wife, a DEU rater at the Oakland board, are well known and well-liked folks in the Oakland workers' comp community.
Kiser's recent work is "Wolves at the Door: The Trials of Fatty Arbuckle".
Arbuckle was a prominent actor, director and writer during the 1920s silent film era of Charlie Chaplin and Buster Keaton.
Arbuckle's career took a dive when a young actress became ill and died at the St. Francis Hotel in San Francisco in 1921. Arbuckle was accused of rape and manslaughter. He was acquitted after trials but the notoriety destroyed his career.
Here is a squib from the Amazon website describing Kizer's book:
“Wolves at the Door” is the compelling true story of actor Roscoe “Fatty” Arbuckle manslaughter trials of 1921-1922. It is the narrative day by day account of the still unsolved mystery surrounding the sudden death of Virginia Rappe, four days after a drinking party in Arbuckle's rooms at the St. Francis Hotel at the height of prohibition. "
Amazon's summary continues:"As seen from the perspective of Arbuckle, the judges and the attorneys, 'Wolves at the Door' combines the public's adulation with the early stars of Hollywood and the drama of courtroom confrontations and the looming presence of William Randolph Hearst."
"The science of ‘CSI’ was introduced to America during the trials for the sole purpose of convicting Arbuckle. Some of the witnesses were coerced and others simply lied. The mystery of Rappe's death became the national fixation as perhaps the funniest man in the world went on trial for his life for a crime that the evidence showed he could not have committed."
According to one reader:
"Wolves at the Door, The Trials of Roscoe"Fatty" Arbuckle" by David Kizer is without question the best book written on the Arbuckle affair. Mr. Kizer skillfully tells this tragic tale of a decent guy unlucky enough to be in the wrong place at the wrong time and paying for it with his career.
Mr. Kizer is a very skilled writer, compellingly relating the story from what clearly is exhaustive research. He puts you in Roscoe's Pierce-Arrow; he puts you on the 12th floor of the St. Francis Hotel; he puts you in the prison cell where you feel the fear and confusion, defeat and despair that fell upon Roscoe when his life went from unimagined wealth and fame to universal derision in the blink of an eye. As a trial lawyer for over 26 years I found the explanations of the legal proceedings compelling and accurate. I could not recommend this book any higher"
Kudos to Kizer for resurrecting this fascinating event in American history.
Once again, we have proof that comp's got talent.....
To find a copy of Kizer's book; go here:
http://www.amazon.com/Wolves-Door-Trial ... B004FGMV5C
Fatty Arbuckle now has a posthumous Facebook page:
http://www.facebook.com/group.php?gid=2 ... amp;v=wall
And check out earlier versions of Comp's Got talent:
Version 1.0 (featuring Boxer & Gerson's Ralph Paterno)
http://www.workerscompzone.com/index.ph ... 017-214056
Version 2.0 (featuring the Golden Gate Gypsy Orchestra):
http://www.workerscompzone.com/index.ph ... 214-205652
Version 3.0 (featuring attorney Mark Vickness and his band):
http://www.workerscompzone.com/index.ph ... 324-222021