Tuesday (tomorrow) April 28 the Department of Insurance holds a hearing on workers' comp rates.

Injured workers and labor activists are welcome to attend the meeting.

The hearing, slated to start at 10 am in the 22nd Floor Department of Insurance hearing room at 45 Fremont St. in San Francisco, is in response to the WCIRB's recommendation of a large price increase for comp insurance. The recommended increase is now a whopping 23.7%.

With his gubernatorial campaign sputtering (low in the early polls and lots of campaign staff turnover), the comp pricing issue is a high profile assignment for Insurance Commissioner Steve Poizner. Comp costs have been an ongoing concern in the business community, particularly in a tight economy. Politically the issue is a hot potato; how that is handled could prove to be an opportunity or a liability for Poizner. You can see my recent blog on that, "Inside Poizner's Head") by clicking here:
http://workerscompzone.com/index.php?en ... 318-224325

The Insurance Commissioner has no ultimate control over comp pricing.
He can accept the WCIRB recommendations or reject them and propose other price targets, but these are not mandatory. But the WCIRB/Department of Insurance rate filing process has great significance politically.

Poizner has criticized WCIRB forecasting in the past. And he's been willing to reject WCIRB recommendations.

In any event, it's pretty much all show. The pure premium rate that is set by Poizner is not binding on carriers Some will price their comp business below the pure premium rate and some may price it higher.

But the PR symbolism is important.

If Poizner accepts the large rate increase recommended by the WCIRB, the signal is that all is not well in comp. Injured workers' and their advocates know that, but employers and the public have been led to believe that the 2003/2004 reforms "fixed" the system.

Given the size of the WCIRB recommended rate increase, the press and the business community will demand to know what has occurred. Were the reforms oversold? Did the reforms result in artificial savings? Should employers accept that higher comp costs are simply inevitable? Is it possible to inocculate the comp system against medical inflation which is ravaging our healthcare system generally?

I don't expect any mind-bending epiphany tomorrow on the issue of why medical costs appear to be rising. That's complicated and probably demands more study data than the WCIRB has developed. Nor do I expect anything much on employer profits and broker fees. Poizner has shown no willingness to take on the broker community or carrier profits.

Recent past hearings have been notable for concern over the rising portion of comp premiums spent on loss adjustment expenses, i.e. insurer overhead expenses.

But it's clear that Poizner's department can blame permanent disability for only a small portion of any projected increase in costs. Even if the Almaraz/Guzman decisions went into effect, the WCIRB's figures project these to be responsible for only around 1/4 of the recommended premium increase.

Stay tuned.

Julius Young
www.boxerlaw.com

"Meatball justice". A "MASH unit". A "subbasement of the legal world".

"Forget about personal. They don't think of you as a person. They think of you as a file with a dollar sign on it. They don't care if you can't put food on the table or put braces on your daughter. You're thinking of this logically. I stopped thinking that way a long time ago. This is comp."

Sounds like a day at the Los Angeles WCAB or one of many other California Workers' Compensation Appeals Board district offices?

Could be. But these quotes are from this week's New York Times 3-part series on the state of New York's workers' comp system (links to the articles are at the bottom of this blog post)

Written by N.R. Kleinfield and Steven Greenhouse, the series highlights a workers' comp system in great disarray.

Delays are said to be rampant. Fines against insurers for infractions are small, and many insurers ignore fines for years. Doctors shy away from treating comp cases. "Trials" where the worker barely gets a chance to speak. Hack doctors who tailor their opinions to please the hand that feeds them. Workers whose lives are upended by the economic and social fallout from their injuries. Claims of fraud which are hard to quantify.

Recognize any of these as themes in the California workers' comp system?

But as bad as aspects of the system are here in California, the series paints a picture of an even more decrepit New York system. At least here in California we have what is-for the most part- a very able and concientious applicant attorney bar that seeks to advance the interests of disabled workers.

Read the series and compare the systems for yourself.

For years New York has had a system that was among the most expensive for business and yet stingiest for workers. Some changes were enacted under Elliot Spitzer before his call-girl debacle. But New York has a long way to go.

Thanks to the Times for doing such an in-depth investigation. Unfortunately, with newsroom staffs shrinking and the survival of many newspapers in doubt, this is the kind of piece that we may be seeing less and less of.

As a blogger, I strive to be fair and accurate (readers are invited to kick my butt if I get it wrong), but the blogosphere will never be able to do the kind of sustained muckraking that is evident in these articles:
"For Injured Workers, A Costly Legal Swamp"
http://www.nytimes.com/2009/03/31/nyreg ... &scp=4

and
"Exams of Injured Workers Fuel Mutual Mistrust"
http://www.nytimes.com/2009/04/01/nyreg ... amp;st=cse

and
"System to resolve Workplace Injury Leaves Ill Will On All Sides"
http://www.nytimes.com/2009/04/02/nyreg ... p.html?hpw

Julius Young
www.boxerlaw.com
(have a tip or information for the blog? you can e-mail it to me at jyoung@boxerlaw.com)

A recurring problem in workers' comp is tardy QME or AME reports.

Some doctors are habitually slow in sending out QME/AME reports. This may be due to a variety of reasons. Some QMEs are simply chronically overbooked. The doctor may have fallen behind years ago and never, ever manages to catch up.

Other QMEs may be slow in sending out reports because they have problems with their transcription service or a nurse who does medical record summaries for them. Some may be slow because they evaluate under the umbrella of a medical group that does all the scheduling, transcription and editing, so that delays are built into the process of the umbrella medical group.

Perhaps the report was ready for signature weeks ago, but the doctor travels among various examining locations and is only in the home office occasionally to read and sign the report.

And some cases are just plain ultra-complicated, requiring huge amounts of document reviews (for example, some psychiatric claims) or requiring independent research on current medical literature (for example, some occupational disease claims).

Over the years, I've found that both the applicant and defense bar became inured to slow reports. The lawyers often stoically accepted this as something that was inevitable with certain QME examiners. With AMEs, neither applicant or defense lawyers wanted to push too hard for fear that they would piss off the examining doctor.

But slow reports cause problems. The parties may be waiting on the QME or AME to comment on the necessity of various treatments. The worker may be suffering and the treating doctor in limbo until the QME's report is rendered.

A slow report may cause an insurer to pay temporary disability longer than it would otherwise have paid. Or where the parties were looking for guidance on work restrictions, a slow report may delay a decision on return to work, preventing the worker from earning a living.

If the QME thinks the worker can return to work but that opinion is not contemporaneously communicated to the worker, employer and carrier, it's unlikely that the workers' comp judge will honor a later argument that there was a TD overpayment. Case law does not favor claimed credits based on retrospective medical determinations. In a significant case several years ago, Mark Borges vs. WCAB, the physician had not communicated the return to work release to the worker:
http://www.grayandprouty.com/articles/B ... v.WCAB.pdf

I've often seen delayed reports that were worthless because the worker's treatment circumstances had changed radically between the date of exam and time the report was signed and mailed.

But the times, they are a changin'.

The Division of Workers' Compensation is getting tougher with the doctors.

That was the message in a presentation at last week's 16th Annual DWC Confernece in Oakland. Presenting a seminar on QME regulations was Suzanne Honor-Vangerov, Manager of the DWC Medical Unit, and Suzanne Marria, attorney with the DEC Legal Unit.

Honor and Marria noted (citing Labor Code 4062.5 and 8 CCR 38(a)) that reports are due 30 days from the date the exam commenced, unless an extension was approved by the DWC Medical Director. This applies to panel QMEs and AMEs.

If a doctor needs an extension, the doctor must now file a request for extension on QME Form 112 at least five days before the end of the 30 day period. The DWC can grant an extension of 15 days in extraordinary circumstances.

In the past I've seen very few QMEs who took these timelines seriously. I can think of only a handful of QMEs who bothered to request extensions. In the past, many QMEs rendered the report when they were ready to do so, even if it took two, three, even four months in some cases.

Honor noted that the fact that the parties did not forward the medical records to the QME or AME is NOT grounds for an extension.

If the DWC Medical Director denies an extension, the parties can use QME Form 113 to indicate whether they will accept the late report or whether they will request a new evaluator.

Honor noted that the DWC is keeping track of late reports. Apparently a data base of late reports is being kept, even though the parties may have waived an objection. Honor indicated that more than 3 late reports in a year may be grounds for QME discipline.

One option for QMEs who are having trouble filing timely reports?
Honor indicated that they could "make themselves unavailable" by notifying the DWC that they request to be taken off the active QME list while they catch up for a while.

QMEs may be ignoring these regs at their peril. It appears the DWC is taking tardy reports much more seriously. And I've already had a handful of cases where my opposing counsel objected to the late report and requested a replacement panel. In that case there's a good chance that the examiner (an AME) will not be paid for the exam and report.

The times they are a changin'.

Julius Young
www.boxerlaw.com

Yikes! It's coming.

No, it's not a rampaging Creature from the Black Lagoon or some unknown asteroid intersecting with our path. Nothing that big.

But it is coming.....MMSEA.

The federal Medicare, Medicaid SCHIP Extension Act of 2007 is coming to California workers' comp soon.

Insurers may soon become the "CMS police", standing watch for Medicare's interests in comp proceedings.

Today at the annual DWC conference in Oakland, Southern California applicants attorney Robert Rassp presented a talk on the workers comp/Social Security interface. Rassp is an excellent speaker who manages to convey concepts with both precision and humor.

For at least a decade, insurers and applicant attorneys have been required to consider Medicare's interests when settling cases where the worker was either on Medicare or met certain standards for imminent eligibility. Medicare "set-asides" have been common in cases where the worker wanted to cash out medical treatment by a compromise and release. The "Medicare set-aside" concept is to allocate part of the settlement proceeds into a self-administered fund that is to be spent by the worker on his/her own treatment. Only after exhaustion of that "set aside" will the worker be free to submit work related treatment bills to Medicare.

But MMSEA now imposes heavy reporting requirements on insurers.

Rassp noted an important website dealing with insurer MMSEA obligations:
www.cms.hhs.gov/MandatoryInsRep

Interested parties should keep checking that site for updates from the Department of Health Services. Implementation of the law is now in the hands of the new Obama folks.

The details of MMSEA reporting are still being developed, but insurers will soon be required to register and report to Medicare. All claims must be reported where the injured worker is or was a Medicare beneficiary.
Even if the claim was resolved without an award of future medical treatment, the report must be filed.

Quarterly reports must be issued for all payments to Medicare beneficiaries where there is ongoing responsibility for medical payments, i.e. future medical.

These reports will be filed electronically.

By a date in 2010, claims administrators will be required to identify injured workers who have future medical treatment awards who are Medicare beneficiaries. Claims administrators will be required to monitor injured workers who are not Medicare beneficiaries at the time of settlement or award with future medical who become Medicare beneficiaries prior to termination of medical coverage,

If you're a carrier you'd probably rather wrestle with the Creature from the Black Lagoon than fret over how to comply with MMSEA.

Claimants will undoubtedly experience greater focus on the status of their Social Security/Medicare eligibility. Just how will carriers get this information? Questionaires?

And if claimants are evasive or do not respond? A deposition?

I represent claimants in Social Security Disability hearings. But I've found that few claimants understand the rules as to when they become Medicare entitled.

As Rassp noted today, for SSD recipients, Medicare entitlement begins 24 months after SSD entitlement date. But the SSD entitlement date is not the same as the first date the worker stopped working. That's because there is a 5 month waiting requirement before SSD entitlement.
The worker can not collect SSD for the first 5 months after onset of the disability. And the 24 months for Medicare entitlement does not begin to run until the expiration of the 5 month waiting period.

Rassp also noted that:
-under MMSEA inactive cases may still be reopened for future medical treatment so there is an on-going requirement to report and the claims administrator can not file a termination of medical treatment report
-payments under Labor Code 5402(c), i.e. pre-denial medical payments up to $10k, must be reported if the worker is a Medicare beneficiary even if the treatment is terminated and the claim denied
-failure to report can result in fines of $1,000 per day

Carriers will ignore all of this at their peril. Needed something else to do in your spare time?

At least there is no asteroid in our path.

Julius Young
www.boxerlaw.com

Daddy, how was your day at work?

Great day at the bagel shop, son. I got promoted today. Now I'm the Senior VP of dough making!

Sounds like a Saturday Night Live skit. But it's not.

That's an example of what has been going on in a scam some have devised to avoid having California workers' comp coverage.

Pic-A-Bagel, based in San Diego, refused to pay the senior VP of dough maker's injury claim. The worker had asked to become a corporate officer and had no real ownership interest in the franchise. Pic-A-Pay lost at the WCAB, which rejected its ruse.

The theory: make everyone a corporate officer. Even workers in service jobs such as restaurants, roofing, security, and housekeeping. Avoid having to pay comp premiums. Wrap yourself in purple prose about protecting the viability of small business.

VP of bottle washing. Controller of ticket taking. Director of gutter cleaning.

The folks who thunk this up are not named John Belushi, Tina Fey and Eddie Murphy.

Dimwits or sharks? Whatever your take on them, they are a San Diego firm called ConAPA. Here's their website:
http://www.conapa.net/
and here:
http://www.conapa.net/faq.php

Attorney General Jerry Brown has now filed a lawsuit against ConAPA, seeking a permanent injunction and $300,000 in fines.

The jig is coming to an end.

Here's the LA Times piece on the lawsuit:
http://www.latimes.com/news/local/la-fi ... 5852.story

Julius Young
www.boxerlaw.com
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