Sunday, October 17, 2010, 09:40 PM - Political developmentsWe in the workers' comp community are a talented bunch aren't we?
Comp's got talent.
We've had winemakers (Fred Zanotto), pro football players (Ron Mix) and novelists (John Peak and Bob Levin).
But it's music where the comp community shines brightest. From time to time I'll focus on some of those musicians.
In today's spotlight is Ralph Paterno, longtime applicant attorney and lien claimant attorney. Ralph currently is of counsel at my office, Boxer and Gerson.
In his spare time, when he's not advocating for injured workers or tending to his spectacular garden, Ralph is a regular on the Sonoma County music scene.
Here's his latest on Youtube, titled "Carly Took My Job":
Tuesday, October 12, 2010, 06:34 PM - Understanding the CA WC systemI'm engaged in a new venture. I hope you'll check it out.
It's a video-based series called "Julius and Jake: The Comp Guys". You'll be able to find the video segments on You Tube as well as on a dedicated site.
Joining me for the video talk-show format will be Richard Jacobsmeyer of Shaw, Jacobsmeyer, Crain, Claffey and Nix LLP. We'll be focusing on ongoing workers' comp issues: case law developments, regulatory changes, industry trends, and legislative efforts.
The genesis of the program was a series of seminars Jacobsmeyer and I did for SCIF this year. At training conferences for SCIF attorneys in Burlingame and San Pedro, Jacobsmeyer and I debated issues surrounding the Almaraz and Guzman decisions.
California's workers' comp industry is blessed with a number of top-flight print and web-based journals: the California Workers Compensation Reporter....the Appeals Board Reporter....the Workers' Comp Executive....the Lexis Nexis Workers Comp Community.....Workcompcentral.com...to name some of the most prominent resources.
And for the last three years I've written this workerscompzone blog, trying to focus on industry trends and interesting aspects of the system.
But there has been essentially no video-based analysis of trends in the comp system. We believe the video format can be enjoyed by claims professionals as well as injured workers and employers.
Shouldn't our system have its Siskel and Ebert? Its Shields and Brooks?
Even its Click and Clack?
So "Julius and Jake: The Comp Guys" was born.
Jake Jacobsmeyer has been a prominent defense attorney in California for years. And before working for the defense, he was one of the Bay Area's top applicant attorneys. He brings a great deal of experience and perspective to the program.
I (Julius) bring different things to the program. In addition to many years as a partner at Boxer & Gerson (which has one of the largest workers' comp practice areas of any firm in California) I've also served as a judge pro tem at the WCAB. As the writer of the workerscompzone blog, I follow many of the political trends and think tank studies that influence the direction of the industry. And with a wife who has an international trade business, I have frequent opportunities to look at the system from an international perspective.
We'll be bringing those perspectives to the programs.
Our first offerings (in a 30 minute discussion format) include the following:
-a September 2010 workers comp recap
-a session on the demise of voc rehab and vouchers
-two sessions on Guzman (one pre- 6th District ruling and one post
6th District ruling)
-a program on the utilization review process
Plans for the future include a monthly recap of California workers' comp events. As important cases are decided or other interesting events unfold, we'll do special programs. And over time we may film interviews with some of the movers and shakers in California workers' comp.
Along with the programs we'll be doing a companion blog. The blog (TheCompGuys.org) will feature the videos and will also include commentaries that have links to some of the primary source material we discuss.
We'll be giving you our opinions on cases and trends.
If you're an injured worker or an employer, use caution. The videos are not designed to give legal advice. Cases which are discussed may be overturned. Trends and theories which are discussed may not pan out.
Other attorneys and other stakeholders may have different opinions.
Here is a link to TheCompGuys.org site:
To find the September 2010 Comp Update:
To find the episode on Guzman:
To find the segment on utilization review:
To find the program on the demise of VR and vouchers:
We hope you'll bookmark the site and come back periodically. As we upload videos I'll post links on the workerscompzone site.
Great thanks are due to our producer Sam Gold. Sam was an injured worker himself and is a passionate advocate for the rights of injured workers. Sam has produced a show called Injured Worker TV and has started the Injured Worker Television Network. Sam has been generous with his time in helping us film the episodes we've done so far, and it's deeply appreciated.
Friday, October 8, 2010, 08:57 AM - Political developmentsThe Schwarzenegger Administration is beginning to wind down, but the folks over at the DWC must be plenty busy.
Consider their project list....Revise schedule for payment of doctors, the RBVS.....revise the QME regs to plug the loophole that permits traveling docs to dominate the system.....change reimbursement for spinal surgery hardware....devise E-billing regs..... unveil ambulatory service center regs...
promulgate revised utilization review regs.....
Many of these are part of the "12-Point Plan" to help control medical cost escalation in California workers' comp.
Today, though, let's focus on the revision of utilization review regulations.
The DWC posted a forum on those regs through October 7. There was lively comment from various stakeholders. Many of the comments focused on the proposed RFA. That's the request for authorization form that would be required from doctors seeking treatment authorizations.
For those who didn't check out the forum, here are summaries of some points made by selected parties which I found to be of interest:
Dr. Michael Bazel of Bell Medical Center:
-the RFA as drafted requires doctors to fill in information that they may not know, thus potentially delaying care
-the requirement that only a single treatment request can be made on the RFA form is problematic. Bazel notes that .."If the patient is given 3 different medications and ordered 3 x-rays and needs to start physical therapy, that translates into 7 forms".
-notes a that the proposed regs as re-drafted in 9792.9(3) seem to allow a carrier to make a decision up to 14 calendar days from receipt of the completed RFA, which does not track the 14 day language of Labor Code 4610(g)(1)
Joe Martinez, CBO Director of Concentra:
-providers need time to phase in any new forms; the new forms are "significant operational and financial burdens on providers" and providers need a "significant bump in the overall fee schedule"
Jerrold Garrard of GSG Associates:
-suggests that a RFA should be defined as complete only if accompanied by a Doctor's First Report form or a PR-2 or a narrative report
Reina Archuleta of Southland Spine and Rehabilitation Center:
-language should be added that an insurer's failure to respond at all within seven days to a request for authorization should be deemed an approval
Dr. Gary Brazina:
-expresses concerns that the regs attempt to circumvent true "peer to peer" consultation, noting that "Medical sub specialization has advanced to such a degree that the "peer to peer" needs to remain intact because of the rapid changes in treatment options and the need to thoroughly be acquainted with the risks and benefits of different treatment algorithms."
Rita Bradley, RN at Anthem Workers Compensation:
-has issue with one single treatment request per form; notes that "Most surgeries can contain 1-12 requests on them. I think that there should be comment stating that the requests must be specific & attached to the MD report, using this sheet as a cover sheet."
-the RFA requires a lot of unnecessary information
-the "biggest obstacle to timely treatment, particularly in non-SCIF cases is that insufficient information (reports) are provided to the medical review physician. Quite often there are prior (QME, AME, PQME and PTP) reports which the reviewing physician needs to review in order to make a timely, intelligent decision. Usually the adjuster simply passes the PTP's recommendation to UR without this necessary, supporting documentation even though the adjuster knows that the PTP's recommendations are being made pursuant to prior AME, PQME, PTP etc's recommendation or prior peer to peer agreements. Who should be responsible for providing this information initially to UR: the busy doctor's ofice or the busy adjuster?"
Johnella Shackelford, injured worker:
-"I am an injured worker who has had great difficulty getting medical treatment. My doctors are totally impacted because they must send numerous requests for authorization for treatment with no response or a denial or modification by the claims administrator. I have had to go to court many times ( three, four or more months after the request) to receive treatment with proof that a proper request was made with an improper denial or modification or no response at all. Even though penalties for unreasonable delay of medical treatment have been properly requested in court-no penalties have been imposed. It in fact appears that the court is not aware or is not following the laws that require an approval of the treatment when U.R. has not been properly followed. I have also reported the employer/insurance company many times to the Medical Unit including indexed proof of the failures. The Medical unit has not taken any action and has been totally unhelpful.
So it is imperative that actions not be taken which add more burden to the injured worker and his/her medical providers. More and more physicians are reluctant to accept Workers Compensation patients. and patients -like me- don't feel that we are getting the best or deserved treatment by some doctors who do accept them. Please realize that the doctor is in business and must make a profit. Running injured workers through like sardines should not be the goal. It
doesn't meet the constitutional or labor code laws to provide efficient, effective and prompt medical treatment. Watering down Sandhagen is not helpful to the purpose. Please reconsider that the employers and insurance companies have unlimited resources and are paid a fair and large fee for their services. Adding one more nail in the coffin of the injured worker is not what your agency should be about."
It's unknown how soon the DWC will repspond to the comments on the proposed UR reg revision. Many past regulations have gone through multiple revisions before adoption.
Following are the comments I forwarded to the DWC. Some echo comments made by others and some are new suggestions:
One of the troubling problems with UR not addressed by the regs that should be addressed is what information a treating doctor has to submit and what information ALREADY IN THE ADJUSTER'S POSSESSION that the adjuster should be required to submit to the UR reviewer.
The RFA is a good start (but improveable as notes by some of the forum comments). In my practice I have seen lots of variations on the following:
-the doctor will request a scan, PT, EMG etc etc. The file may be a fat file where treatment has gone on for some time and many things tried.
The doctor submits only the treatment request letter which is in a PR-2 or narrative progress report format. The doctor does not submit a big sheaf of reports that were written by the doctor over months or years of treatment. Those many ongoing reports have over time ruled out other diagnoses, detailed treatments that were not sought and explained results of treatments that were offered. The adjuster sends none of those background materials to the UR reviewer, even though the adjuster has those in the adjuster's file.
Surely those reports already in the adjuster's file that provide contextual information are "the information reasonably necessary to make the determination" which are required by L.C. 4610(g). Yet the adjuster does not send them. Why should the adjuster not be required to send more records to UR, including QME reports, AME reports or the last year of treatment records? Why should doctors be burdened with providing records to the UR when defendant's adjuster has not done so?
The end result of this of course is often that treatment is non-certified and then the worker goes off to get an attorney and the system is burdened with more QME disputes and more disputes at the WCAB.
Another version of this is where the worker has been on medications for years, yet the defendant does UR before certifying refills each time. Although this may be improper review under McLean 2009 Lexis NPD 126, it happens often. In many cases, if the meds are not refilled the worker can go into shock or withdrawal. The regs do not adequately deal with these situations.
The regs should require the adjuster to send a reasonable amount of contextual records, including QME and AME reports. Or the regs could say that if the reviewer does not have enough information, the carrier is to provide those contextual records within a strict timeframe which if not
observed defaults to certification of the request.
The regs should also specify if a request is delayed, modified or denied, the transmittal letter to the worker and the attorney should be required to have attached to it a copy of the doctor's request. As attorneys we frequently get UR denials referring to PR-2 or narrative report treatment requests where we as attorneys have not been served with the report by the adjuster. We end up objecting reflexively to a denial but do not really know what was requested in the first place. Sometimes we call the worker and the worker does not understand what the doctor requested or why. The worker sometimes is not even sure whether he or she wants the treatment that has not been certified. Yet we are supposed to object within 20 days to start a QME process when we are not served with the doctor's report. It's absurd and frankly, offensive.
Another big problem not addressed by the regs is the conflict of interest where UR companies are captive companies or subsidiaries of the insurer. UR has become a profit center and loss adjustment expenses have risen significantly as a portion of premium. A regulation that would require UR by outside companies would lessen the conflict of interest or appearance of conflict of interest.
Tuesday, October 5, 2010, 09:46 PM - Political developmentsThe teetertotter has been shifting for over a year now.
Furloughs were on, then they were off, then they were on.
State workers, including folks at the WCAB and the DWC, held out hope for back pay they might recoup.
Now we know that the furloughs are legal. There will be no back pay.
The California Supreme Court has spoken. Until details of the budget compromise are released, it's unclear whether furloughs will be an ongoing tactic employed to balance the current budget.
Meanwhile, many Fridays remain dark at the WCAB.
Here's a link to the ruling in the case, known as "Professional Engineers in California Government vs. Arnold Schwarzenegger":
http://www.courtinfo.ca.gov/opinions/do ... 183411.PDF
Sunday, October 3, 2010, 10:16 AM - Political developmentsThere's word coming out of Sacramento that California's longest budget impasse is resolved with a budget deal among the Big 5.
If the deal can pass muster with both houses of the legislature, that will be good news for some workers' comp claimants. This week Susan Gard of the DWC noted that California was quickly running out of money to pay Subsequent Injuries Fund claims and benefits to workers whose employers were uninsured.
In the next few days we'll be hearing from the California Supreme Court on the legality of furloughs. That ruling will be of great interest to staff at the WCAB and the DWC.
Meanwhile, back to the budget deal. Details are currently sketchy, but one thing that has leaked out is that the plan includes sale of 11 state buildings.
The plan projects that the sale of state office buildings will bring in around $1.4 billion.
You'll remember a past budget deal that included funds from a projected sale of part of the State Compensation Insurance Fund. That sale was dead on arrival. Most observers looked at the SCIF sale as a cynical gimmick that would have been difficult to pull off and frankly, harmful to the California workers' comp insurance market.
So will the Schwarzenegger administration (or Brown or Whitman) actually be able to unload a group of major state office buildings?
I've yet to see a copy of the actual list, but according to a piece by Wyatt Buchanan in today's San Francisco Chronicle, those 11 include two at San Francisco's Civic Center. One of those buildings houses the district office of the WCAB as well as the statewide Workers Compensation Appeals Board, the First District Court of Appeal and the California Supreme Court.
Presumably the sale of 11 buildings would include the sites of a number of other WCAB district offices.
Whether this turns out to be penny-wise and pound foolish, particularly in a time of depressed commercial real estate, is a big question.
But passengers on a sinking ship will jump on anything that appears to be floating.