Monday, November 23, 2009, 08:37 AM - Political developmentsNew York Magazine has a fascinating article ("Show Me the Money" by Gabriel Sherman) on the tug-of-war at A.I.G. over executive pay caps:
You can find it here:
Sunday, November 22, 2009, 09:54 PM - Medical treatment under WCPolitical junkies love ads that highlight the machinations of politicians who reverse field.
You know, the " I was against it before I was for it before I decided to oppose it" variety.
Sometimes the politician has truly seen the light in a thoughtful way. But sometimes naked hypocrisy is exposed.
As a lawyer I savor watching courts reverse field. While it can be sparked by a change in the political complexion of the court, more often it's an exercise of intellectual integrity.
So it is in Cervantes v. El Aquila Food Products Inc, an en banc decision of the California Workers' Compensation Appeals Board (2009). A link to the decision can be found below.
At issue is the "spinal surgery second opinion" procedure of California Labor Code 4062(b). That section is part of the 2004 comp reforms.
The drafting of the 2004 was not uniformly stellar, and procedures under the 04 reforms have been the subject of much appellate litigation.
The WCAB en banc decision in Cervantes reverses field, rejecting procedural interpretations set forth in an earlier significant panel decision, Deanna Brasher vs. Nationwide Studio Fund and SCIF (2006).
The WCAB notes in Cervantes that when a treating doctor requests spinal surgery in writing the employer must:
-undertake utilization review (as noted by the California Supreme Court in the Sandhagen case)
-authorize the surgery if UR approves the surgery
-or authorize the surgery if UR is not done in a timely fashion
But what happens if a timely utilization review is done and UR disapproves of the surgery? Can the employer stand on its UR denial?
Must the injured worker then pick up the ball, requesting a spinal second opinion?
Even if a timely UR review has refused to certify the requested spinal surgery, the employer/insurer must request a spinal second opinion under 4062(b).
Given the utilization review timeframe and the 10 day objection timeframe under 4062(b), the employer/insurer essentially must do a concurrent 4062(b) objection within the time it is doing its UR review.
The en banc opinion in Cervantes notes the following:
"We are cognizant that section 4610(g)(5) allows the deadlines of section 4610(g0(1) to be exceeded in some circumstances. Nevertheless, for the reasons above, we construe the statutory scheme to mean that, in spinal surgery cases only, the UR determination always must be made within 10 days of receipt of the treating physician's report, so that the defendant may still timely object under section 4062(b) if there is a UR denial."
In the Cervantes case, a timely UR review rejected the spinal surgery request. But Mr. Cervantes' employer failed to initiate a spinal surgery second opinion objection. The Brasher case had held that it was the worker's responsibility to file a timely request for a second spinal opinion.
That's no longer required of workers.
Employers will probably be unhappy with the strict time frames, but the WCAB has done an admirable job in reconciling somewhat complicated and overlapping procedural provisions.
Adjusters who want to preserve their denial options will need to track the time frames carefully to preserve their objections.
But a significant side issue in the case was the issue of whether the surgical request was properly formatted under California workers' comp regulations. Those regs require that requests for authorization either be on specific forms (including the "PR-2") or, under AD Rule 9792.6(o)
"If a narrative format is used, the document shall be clearly marked at the top that it is a request for authorization". More on that in another post.
Cervantes is an important decision that will affect many workers who seek spinal surgery. It may be appealed, but if so I predict that it will be upheld.
Here's the decision in pdf format:
http://www.dir.ca.gov/wcab/EnBancdecisi ... cedures%20(11-19-09%20final%20draft).pdf
Friday, November 20, 2009, 09:28 AM - Political developmentsThis will be Harry's baby.
Harry Reid, former boxer, denizen of the tiny town of Searchlight, Nevada.
Now the Senate majority leader, it falls on Reid to corral the votes to get a healthcare package to the Senate floor.
With a vote scheduled tomorrow (Saturday) evening, the whole reform enterprise could move forward or fail. If Reid gathers enough votes to bring a bill for consideration, December will be a month consumed with debate over healthcare (in case you haven't heard enough already!).
Need a primer on the current version crafted by Senator Reid? Here's the analysis of the Reid plan just released by the non-partisan Congressional
http://cbo.gov/ftpdocs/107xx/doc10731/R ... _18_09.pdf
Whether you're a tea partier or a California progressive, reading the CBO analysis is a good place to start in understanding the debate.
Thursday, November 19, 2009, 09:05 PM - Political developmentsCould it be that work injuries are under-reported rather than overreported?
It seems so.
Writing in The California Progress Report, Los Angeles attorney Adam Dombchik notes that tens of thousands of California work injuries go unreported:
http://www.californiaprogressreport.com ... =node/7141
Dombchik's source is a new October 2009 report from the U.S. Government Accountability Office (known as the GAO) that can be found here:
http://edlabor.house.gov/documents/111/ ... 200910.pdf
Under Federal OSHA laws, the U.S. Department of Labor is required to collect and compile work-related injury and illness data. The GAO did a study to determine (1) whether the DOL verifies that employers are accurately reporting work injuries and illnesses and (2) what factors affect the accuracy of employers' injury and illness records.
The GAO found that data collected through OSHA audits of employer records may not be adequate. Likewise, the federal Bureau of Labor Statistics collects data on work injuries and illnesses, but was noted by GAO to have limited scope of data.
The GAO report noted that many factors affect the accuracy of employers' injury and illness data. Among those factors noted are the following:
-workers may not report an injury due to fear of losing their job or other disciplinary action
-workers may fear jeopardizing rewards based on having low injury and illness rates. That's a phenomenon I noted several years ago in a post "Don't Mess With Our BBQ":
http://www.workerscompzone.com/index.ph ... 816-212843
-employers are afraid of raising their comp rates
-employers may fear jeopardizing their chances of winning contract bids for new work
The GAO noted that a survey of U.S. health practitioners found that over a third of the health practitioners had been subjected to pressure to avoid recording the work injury. 53% of health practitioners reported that they experienced pressure from company officials to downplay injuries or illnesses.
It wasn't noted in the GAO study, but in California employers can assemble networks of doctors they choose. Employers can weed out doctors who are too sympathetic to the worker, creating either the appearance or reality of financial pressure on the occ med doctor who treats the patient.
The GAO report notes that employer safety incentive programs can serve as a disincentive for workers reporting injuries. While safety programs are designed to promote safe workplaces, "More than three-quarters of health practitioners said they believed workers sometimes avoid reporting work-related injuries and illnesses as a result".
This is because "in addition to missing the chance to win prizes for themselves, workers who report injuries and illnesses may risk ruining their co-workers' chances of winning such prizes".
Peer pressure is a strong motivator.
In the past year I've met with several workers who had been discouraged by their supervisors from reporting an injury as industrial. In one of the cases, the worker allegedly kept asking to see a doctor for over a day. The employer is said to have been evasive on requests for a claim form and access to a doctor. The worker allegedly was told to just go home and rest rather than seek treatment. The message to the worker was clear: we don't want to have to report this as industrial.
The GAO study is an important one. We've seen important recent studies that document the problem of employer premium fraud:
It's all part of the underreporting problem in California workers' comp.
Premium fraud shifts costs onto legitimate businesses that play by the rules. Injuries that are not recorded shift burdens onto the health insurance industry or the taxpayer, driving up costs for all of us.
Tuesday, November 17, 2009, 09:07 PM - Political developmentsWorkerscompzone received an early Thanksgiving present in the last few days.
LexisNexis and Larson's National Workers' Compensation Advisory Board has named Workerscompzone as the nation's top workers' comp blog in 2009:
http://law.lexisnexis.com/practiceareas ... ssues-2009
It's an honor the blog shares this year with workerscompinsider.com, published by Lynch Ryan.
Thanks to the workers' comp professionals who voted to give my blog
top billing in the nation.
I'm having fun doing the blog. And I hope to bring an honest and unique perspective to analysis of issues facing workers' comp and working people in these challenging times.
Dear readers.....I'm always appreciative of your ideas, tips and feedback...What California workers' comp stories do you think need to be covered? What's going wrong, and what's going right?
My e mail is email@example.com.