Greetings from Anaheim. The Happiest Place on Earth (Disneyland) is just down the street. It's here that the California State Bar is holding its annual convention.

Carrie Nevans (acting Administrative Director of the California Division of Workers' Compensation) spoke on Friday morning at a seminar here. Here are my notes on some key points made by Nevans:

LEGISLATION
-the Governor will probably not sign SB 336 (Perata) which raises PD benefits over a 3 year period
-likewise, the Governor will probably not sign AB 1636 (Mendoza) which requires insurers to pay retraining vouchers sooner
-bills likely to get the Governor's thumbs up are AB 338 (Coto) allowing the 104 weeks of TD cap to be used over a 5 year period and AB 1073 (Nava) lifting strict limits on physical therapy for post surgical cases. Nevans indicated that post surgical therapy will be handled by treatment guidelines.

REGULATIONS ON THE REPRESENTED QME PROCESS
Proposed regulations will be unveiled within the next couple of weeks which will address some of the following:
-setting a 30 day time frame for assignment of a panel by the DWC medical unit; also, time limits on determination of the proposed medical specialty and a procedure for appeals
-parties will be allowed to get a QME in a 2nd specialty in cases warranting that
-the regs will address the issue of doctors who have multiple locations
whose names seem to constantly pop up on panels; doctors will have to be available for deposition within a 120 day time frame

REVISING THE PD RATING SCHEDULE
The advisory committee of "stakeholders" (which does include VIAW and the Applicants Attorneys) has been meeting. I did not get a sense of the timeframe for changes, but she noted that likely changes include:
-"restacking" the weighting factors used in rating various body parts
under the PDRS; this would apparently increase ratings for some body parts (spine, hand), leave some unchanged (shoulder), and lower some
(psyche).
-changing the age modifier system in the PDRS. Ratings for workers between age 20 and 55 would no longer have their ratings modified for age and occupation. But there would be revised adjustments for workers under age 20 or over age 55.
-regarding other changes to the schedule, Nevans noted in cryptic fashion that recommendations had been made to the Governor's office

CHRONIC PAIN GUIDELINES
-the DWC will be adopting the ODG guidelines as the applicable standard for treating chronic pain

Nevans' comments were preceded by remarks from Keven Star, the current czar of the workers' compensation courts in California. Kudos to Mr. Star (and DWC consultant Glenn Shor and Deloitte Consulting)) for the progress being made on the paperless EAMS system. EAMS is an acronym for "Electronic Adjudication Management System". It's a huge project built around 4 different database programs, Curam, FileNet, Cognos and CyberSource. The creaky current WCAB system is expected to give way to EAMS on 7/1/08 according to current plan.

That's the report from Anaheim for now. Stop back by tomorrow morning, when I'll be doing a post about the interesting remarks made at the same session by WCAB commissioner Ronnie Caplane. Caplane outlined many of the key legal issues the WCAB is currently wrestling with. See you Sunday back here.

Julius Young
www.boxerlaw.com
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This weekend, the California Applicants' Attorneys Association is sponsoring a seminar about the nitty gritty of law practice under the new workers' comp laws. Entitled "Managing a Successful Practice," the mantra will apparently be "work smarter, not harder."

This comes at a time when significant numbers of attorneys who have represented injured workers are retiring or moving into other legal areas.

What sort of technological fixes and staffing adjustments are attorneys making? How will the WCAB's e-filing system which is being developed change the practice? Is the paperless office on the horizon? What level of service can workers' comp clients expect? How can attorneys service the needs of former clients with old medical awards who are experiencing treatment delays or denials?

Many of the California workers' comp insurance defense firms have made significant shifts over the past few years in order to boost profitability. One prominent firm adopted Dragonspeak and a scanning system in an effort to make major reductions in staff support personnel costs.

Several attorneys I know are uploading their dictation; the audio files are e-mailed and transcribed in places like Nebraska, where labor costs are lower. Or even in Bangalore or Bombay.

Sometimes there can be a separate set of headaches with that. Remember the story that broke a couple of years ago where UCSF medical information being transcribed in South Asia was being made public by disgruntled transcribers?

One defense firm I know is considering going to a host office type arrangement. Instead of having offices and desks, attorneys will be encouraged to work off-site. If they need access to the office, desks will be available on a first-come, first-serve basis. It's about the bottom line, not about the big leather chair and the antique desk.

Our office is unionized, by the way. Our secretarial staff are Teamsters. It always amazes me how union clients don't ask whether their attorney's staff is unionized.

Injured workers have an interest in how all this turns out. There will not be just one model for file-handling, of course. But there will always be a need for quality, individualized representation for workers (and employers, I might add). The trick for many firms will be how to maintain quality, personalized representation on a thinner economic margin.

Julius Young
http://www.boxerlaw.com/attorney_bios/julius_young.html
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Dan Walters is one of the most experienced reporters in Sacramento, covering the legislative beat for decades.

Here's his take in today's Sacramento Bee on the likely fate of the workers' comp bills under consideration by Schwarzenegger:
http://www.sacbee.com/111/v-print/story/399241.html

Stay tuned.

Julius Young
http://www.boxerlaw.com/attorney_bios/julius_young.html
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Yesterday's San Jose Mercury editorial on workers' comp makes the follwing observation:

"..the Governor must address the fact that the weekly benefits provided to California's permanently disabled workers are the fourth lowest in the nation."

The Merc editorial stopped short of endorsing SB 936, the bill to increase PD rates that currently sits on Schwarzenegger's desk awaiting a veto or signature. But the Merc called for the following:

"Schwarzenegger should commit to re-examining the state regulations that govern workers' compensation and make the benefits for permanently injured workers better reflect the high cost of living in California.

Benefit adequacy. It's something this blog is continually focusing on.

Under the Merc's scenario, Schwarzenegger will veto SB 936. The ball will bounce back to Carrie Nevans and the players in the shadows who determine Schwarzenegger administration policy on these issues.

Who's the "decider"? Perhaps that will include Andrea Hoch, who doesn't appear to have nabbed a Court of Appeal seat yet. Hoch was the architect of the current permanent disability rating schedule that has resulted in a sharp drop in permanent disability payments to injured workers.

The Merc editorial closes with this:

"Insurance companies collect more than $16 billion every year from California employers for workers' compensation coverage, and have been enjoying record profits. Workers deserve a fairer share of compensation costs for on the job injuries."

Click here to see my earlier post "California Workers' Compensation 'Fixed' So That Insurer Profits Are Greater Than Benefits Paid To Injured Workers":
http://www.workerscompzone.com/index.ph ... 0342ae4964

To read the full Merc editorial, click here:
http://www.mercurynews.com/portlet/arti ... siteId=568

Stay tuned. I'm tracking various employment law and workers' comp bills that await action by the governor. Upcoming posts will be examining the two-year TD rule, the friction between California comp brokers and the largest comp insurer, and the recent WCIRB rate increase request.

Julius Young
http://www.boxerlaw.com/verdicts.html
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A late summer Sunday afternoon. In many parts of the state, a hint in the air that the seasons are about to change. It's that time of year when the promise of summer's long, easy days seems to be winding down. Not exactly the time many of us want to ponder the minutia of workers' comp notices.

Yet, for those concerned with such things, this is the time. Should a psychiatric claimant have an absolute right to see the workers' comp QME report used in his case? Should workers' comp notices be published in multiple languages? How many "fact sheets" should adjusters be required to send to claimants? What should the procedures be if an insurer/self-insured employer changes or terminates its network of doctors (MPN)?

These are among the sorts of issues being given consideration by the California Division of Workers' Compensation. The DWC has developed a third draft of these regs, and the second 15-day comment period on these regs ends October 4.

You can see the current version here:
http://www.dir.ca.gov/dwc/DWCPropRegs/B ... ations.pdf

To compare them with earlier drafts, you can visit the DWC website here:
http://www.dir.ca.gov/dwc/DWCPropRegs/B ... ations.htm

Those with comments or suggestions can submit their ideas to:

Maureen Gray (regulations coordinator)
Department of Industrial Relations
Division of Workers Compensation
1515 Clay St. 18th Floor
Oakland, CA 94612

Here are a few thoughts:

The regs need not require a uniform format for benefit notices sent by adjusters to claimants. This is one form of "standardization" that would probably make the comp system run more smoothly. Lawyers and judges must deal with a variety of benefit formats (not to mention a variety of accounting formats).

A larger problem, though, is the one of what medical reports must be provided to the claimant by the claims examiner. Proposed reg 9810 (e)states:

"The claims administrator shall provide copies to the employee, upon request, of all medical reports, relevant to any benefit notice issued, or which are not required to be provided along with a notice and have not yet been provided to the employee other than psychiatric reports which the physician has recommended not be provided to the employee."

What's the problem with this? Let's look at a fairly typical situation. Elizabeth has had knee surgery. Her doctor sees her on a quick visit, says he'll dictate a report to the insurer, and sends her to the front desk to schedule the next appointment. But lo and behold, the doctor's report to the carrier indicates that Elizabeth is released to modified work. Expecting her TD check to pay her rent, Elizabeth receives a TD termination notice instead; the notice indicates that modified work is available and no TD will be paid effective the date of her visit.

No one-neither the doctor nor the insurer-has given Elizabeth a report outlining the doctor's analysis of the modified work restrictions. According to the regs, Elizabeth must ask for the report. A week after getting the benefits notice, she is still trying to get a copy from the doctor or the claims adjuster.

Or take Homer's situation. While Homer recovers from back surgery, the adjuster filed an objection to the treater's report which indicates that Homer is not P&S and in fact is still TTD. The defendant's attorney arranges for a QME, and off to his evaluation goes Homer. About 45 days later, Homer receives a letter indicating that based on the QME report, his payments are ending.

No copy of the report accompanies the benefit cessation letter. Homer's attorney requests a copy from the defense attorney, only to find that the defense attorney does not have one either. The claims administrator has the document, but was not required to send it along with the benefits notice.

And so it goes. Both Elizabeth and Homer are thrown into financial turmoil, not knowing what is being said about them or why they are being cut off of benefits. Is it a wonder that they are angry at the system?

Why don't the regs require the carrier to send, along with the benefit notice, a copy of the medical report or document the carrier relies upon in taking the action detailed in the benefits notice? If this administration won't enact such a requirement, let's hope a future one will.

And while I'm at it, what about access to psych reports? The proposed regs don't make it clear how an unrepresented psych claimant can access the reports necessary to prosecute his case. Does the claimant have a right to demand that the psych report be released to his treating psychiatrist or psychologist? To his family physician? To his guardian (or SSI payee)? Can such a claimant expect to receive the report from a judge at the WCAB? Can the claimant be refused access to the report entirely? Perhaps our society is being influenced more and more by Guantanamo and the secret FISA courts than I'd imagined.

There's much more in the regs worth noting. Policy wonks, start your engines!

Julius Young
www.http://www.boxerlaw.com/news.html
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