Oakland Workers Comp Blog by Attorney Julius Young.
http://workerscompzone.com/index.php
UNDER THE RADAR
http://workerscompzone.com/index.php?entry=entry130617-223707
Specifically, the bill deals with the $120 million fund to compensate workers who have suffered disproportionate wage loss.
Workers injured before 1/1/13 would not be able to make claims against the fund.
Hearings were not held on this. This did not come up in last week's presentation to CHSWC by DIR Director Christine Baker.
Thanks to blogger Dr. Robert Weinmann for bringing this to my attention.
Julius Young www.workerscompzone.com www.boxerlaw.com]]>NOTES FROM CHSWC
http://workerscompzone.com/index.php?entry=entry130616-102638
Christine Baker, Director of the California Department of Industrial Relations, stated that the DIR is thriving despite resource limitations.
She noted that the DWC is examining ways to reduce the backlog in assigning QMEs. Baker noted that using "overtime" to reduce the backlog is a short term fix and that there needs to be regulatory and technological fixes, though she also referenced redirecting staff resources. Baker noted they are reviewing methods of assigning QMEs. Reference was made to possible development of an online QME request portal.
Baker also spoke about the $120 million fund created under the SB 863 . Labor Code 139.48 was amended to create the fund "for the purpose of making supplemental payments to workers whose permanent disability benefits are disproportionately low in comparison to their earnings loss".
That section specifies that "Eligibility for payments and the amount of payments shall be determined by regulations adopted by the director, based on findings from studies conducted by the director in consultation with the Commission on Health and Safety and Workers' Compensation".
Baker, who is fond of using the term "data driven", noted that RAND has been doing a study on wage losses of approximately 19,000 workers. The study is said to be almost ready and is currently in RAND's internal quality control review process. Baker promised that the study would be posted on the DWC website soon and that there would be ample opportunity for comment by the public and CHSWC.
That's good, because there are many questions and concerns about how the annual $120 million fund should be distributed.
As former executive officer of CHSWC, Baker relied heavily on RAND studies. So it's likely that whatever methodology RAND has developed will be key in the development of the criteria for the $120 fund.
It was not clear from Baker's presentation whether CHSWC staff has been heavily involved in designing whatever methodology RAND plans to propose, or to what extent various stakeholder groups have already been involved in that planning process.
On the topic of liens she noted that the DWC had collected some $11 million in lien filing and activation fees. A year end lien filing rush may occur in late 2013, but she noted that lien filings are down from 45,000 a month to around 2,000 per month.
Baker noted that reform of the physician payment schedule is coming, based on RBRVS codes. The fee schedule has not been updated in years.
DWC Acting Administrative Director Destie Overpeck noted that regulatory reforms already are projected to save $62 million (ambulatory surgery center regs) and $64 million (spinal hardware payment changes) respectively.
Overpeck noted that a number of final regulations are near adoption, including regs on supplemental displacement job benefits (vouchers), QMEs and interpreters.The DWC has asked for readoption of emergency IMR (Independent Medical Review) and IBR (Independent Bill Review) regs, so those final regs will come later. She noted that MPN and RBRVS and predesignation regs are being worked on. For home health care and interpreter fees, the DWC has commissioned studies which are under way. Audit regs will be updated.
In sum, Overpeck noted that the DWC is "really busy".
Dr. Rupali Das, executive medical director of the DWC, spoke about IMR. Das noted that there have been 637 IMR requests to date. Not all of those have yet come to decision, but Das noted that of the decisions to date, 34% overturned the utilization review denial of treatment and 66% upheld the denial of care.
Das noted that is a lower rate of treatment approval than for IMR in California group health, where figures over a decade have shown that treatment denials were overturned 54% of the time.
Das noted that some treatment denials are being posted online (after being redacted). According to Das, this is "for transparency" and "as a learning experience". A link to that section of the DIR website can be found here: http://www.dir.ca.gov/dwc/IMR/IMR_Decisions.htm
Opioid medical guidelines may be addressed, according to Das.
CHSWC acting executive officer Lachlan Taylor noted that the RAND study on wage loss is expected in July. A study on copy service costs is expected soon. Interpreter fee study and home healthcare studies are also being performed.
Taylor noted that he would like to begin the process of evaluating the effects of medical reforms. His suggestion that the CHSWC members approve an RFP for a study on that passed by unanimous voice vote.
Also, Taylor suggested that he would like to evaluate the mixture of liens in the system. He noted that CHSWC staff would explore whether this could be evaluated in house or whether an outside contractor would be needed, so a formal RFP was not requested.
In my next post I'll cover some of the others who provided comments at the CHSWC meeting.
]]>NOT READY YET
http://workerscompzone.com/index.php?entry=entry130612-200019
That appears to be the bottom line to be gleaned from a DWC newline release of June 12, 2013 (see link below).
In late 2012 the DWC had issued emergency regulations on the following topics: -QME process -Independent Medical Review (IMR) -Independent Bill Review (IBR) -lien filings -supplemental job displacement vouchers -interpreter services
The QME regs, interpreter regs and voucher regs seem to be moving toward conclusion, as they have had multiple comment periods. But it is not clear that the DWC will meet the July 1 deadline .
So the DWC has now issued notices of emergency readoptions and requests for readoption for all six emergency regulations. essentially this extends the time to come up with final regs.
This goes to the California Office of Administrative Law (OAL), which will clearly approve.
The burden of formulating appropriate rules is a heavy one, and it's probably a plus that the DWC is taking a deliberative approach, with multiple comment periods.
Yes, it is true that not having final regs means that parties may have to face uncertainty as to how some procedures will ultimately be handled.
But I'd rather see them get it right than rush the process.
Stay tuned. In the next few days I'll be covering this week's meeting of the California Commission of Health, Safety and Workers' Compensation (CHSWC).
Julius Young www.workerscompzone.com www.boxerlaw.com]]>PARALLEL UNIVERSE
http://workerscompzone.com/index.php?entry=entry130609-104552
Labor Code 5307.2 requires the DWC to do annual access studies. Specifically, Labor Code 5307.2 includes the following language: "The study shall analyze whether there is adequate access to quality health care and products, including prescription drugs and pharmacy services, for injured workers and make recommendations to ensure continued access. If the administrative director determines, based on this study, that there is insufficient access to quality health care or products for injured workers, including access to prescription drugs and pharmacy services, the administrative director may make appropriate adjustments to medical, prescription drugs and pharmacy services, and facilities' fees."
California DWC studies done in 2006 and 2008 are available online (see links at he end of this post). The studies for 2009, 2010, and 2011 are not posted on the DWC site if in fact there were studies done for those years in compliance with Labor Code 5307.2.
The 2013 Berkeley Research group report analyzes 2 data sets: questionnaire responses from 500 randomly selected workers and data from medical claims submitted to the WCIS (Workers' Compensation Information System).
The 2013 medical treatment access study paints a generally rosy picture. 84% of a worker sample were said to be satisfied with their health care provider. Only 7% of the sample claimed they were denied care. Workers generally saw a doctor within a reasonable time frame after their injury and the doctor was usually within a reasonable commute distance.
In summarizing their findings the Berkeley Research Group noted that although the 2006 and 2008 studies had some different survey methods, the "findings for each survey were similar: a substantial portion of injured workers (approximately 85%) were satisfied or very satisfied with their care."
The 2006 access report, prepared by the UCLA Center for Health Policy Research included 1,001 survey responses out of a random sample of 5,260 claims, twice the size of the 2012 sample.
The 2008 access report, done by the University of Washington School of Public Health appears to have been based largely on phone interviews with injured workers.
Putting aside methodology differences between these studies and questions about whether the size of the worker sample is adequate for measuring the issues in question, the 3 access studies do seem to agree that access to care is adequate.
But in a parallel universe, many medical providers, attorneys and judges hear a different story.
What's that story? A physician commenting on a recent Workcompcentral.com article said "I wonder what planet these people are on? Access to care is worse than ever,to get UR to approve anything is a joke, FMC is laughable. I think they interviewed a group of first aid only patients.”
How to reconcile these parallel universes?
The truth of the matter is that the DWC commissioned studies and the commenter may both be right.
Most workers probably ARE happy with their doctors and their care.
But it's quite possible that the workers who are NOT satisfied are workers with more severe injuries or workers whose treatment extends over a long time frame. It's also possible that the dissatisfaction is not with the doctor per se, but rather with the process of getting treatments approved and denied.
Those are the cases that attorneys and judges see. Yet in the 2013 Berkeley Research Group study, only 11% of the sample group of 500 workers were represented by attorneys. That would be only 55 represented workers sampled.
I think a more interesting study would be to study a larger sample of workers represented by attorneys as well as a large sample of pro per applicants at the WCAB. I'm not sure what such a study would show, but it might well verify that there are indeed parallel universes in workers' comp.
Julius Young www.workerscompzone.com www.boxerlaw.com]]>BACK UP
http://workerscompzone.com/index.php?entry=entry130608-164454
I found that out this week as I was blocked trying to get into my own site. At first it appeared that the site might have been hacked.
Perhaps I had succumbed to a phisherman.
But later it became apparent that it was simply a problem with the host's server.
Such is modern life. A guy I've never met arranged years ago to host on his dad's server.
It took digging through old paperwork for a couple of days to even find out how to contact the place where the blog was hosted.
We live in a time that is probably bad for people who tend toward paranoia. In the last month we've seen the IRS overstep its bounds...The Justice Department take questionable steps to monitor the Associated Press and a Fox reporter.... Revelations in the last several days of harvesting cell phone and internet records from the providers most of us use....
Time to go listen to the Rolling Stones' "Fingerprint File". Here's what Mick Jagger wailed (link to play the song at the end of this post):
"Fingerprint file, you get me down You keep me running Know my way around. Yes, you do, child Fingerprint file, you bring me down Keep me running You keep me on the ground Know my moves Way ahead of time Listening to me On your satellite
Feeling followed Feeling tagged Crossing water Trying to wipe my tracks
And there's some little jerk in the FBI A keepin' papers on me six feet high It gets me down, it gets me down, it gets me down
You better watch out On your telephone Wrong number They know you ain't home
And there's some little jerk in the FBI A keepin' papers on me six feet high It gets me down, it gets me down, it gets me down
Who's the man on the corner; that corner over there I don't know. Well, you better lay low. Watch out
Keep on the look out Electric eyes Rats on the sell out Who gonna testify You know my habits Way a head of time Listening to me On your satellite
And there's some little jerk in the FBI A keepin' papers on me six feet high It gets me down, it gets me down, it gets me down It gets me down
Hello, baby, mm-hmm Ah, yeah, you know we ain't, we ain't talkin' alone Who's listening? Well I don't really know But you better tell the SIS to keep out of sight 'Cause I know they takin' pictures on the ultraviolet light Yes, uh huh, yeah, but these days it's all secrecy; no privacy Shoot first, that' s right... you know Bye bye. Right now somebody is listening to...... you Keeping their eyes peeled...... on you Mmm, mmm, what a price, what a price to pay All right. Good night, sleep tight"
The increased evidence that privacy is so, well, old-fashioned may be a yawn for millennials who have adopted a culture of wide self-revelation.
But all of this can hardly be good for that small group of injured workers who are feeling like they are under the microscope all the time. Just yesterday I spoke with one, who said the stress of litigation was tearing him up.
Films on his case arrived yesterday.
Anyway, it's good to be back up, online. Stay tuned. I'll be commenting soon on some of the DWC regs which are being revised.
Julius Young www.workerscompzone.com www.boxerlaw.com]]>WORKERS' COMP AND WOMEN
http://workerscompzone.com/index.php?entry=entry130602-105334
Women are now 47% of the U.S. workforce. As women are a larger part of the workforce, workers' comp becomes a more important issue for them.
A May 29,2013 study by the Pew Research Center concludes that 40% of all households with children under the age of 18 include mothers who are either the sole or primary source of income for the family.
That's a huge social trend. Four out of ten households have mothers as the sole or primary provider!
Of those "breadwinner moms", 63% are single mothers and 37% are married mothers with a higher income than their husbands. The Pew study does not cite state specific figures, but it would not surprise me if the figures were even higher in California.
Pew also notes that single mothers are "more likely to be black or Hispanic, and less likely to have a college degree."
Obviously, then, career-altering work injuries may have a significantly disproportionate affect on minority populations.
Policymakers and students of policy (including California's Commission on Health, Safety and Workers' Compensation) need to be looking at these numbers as the California workers' comp system is reformed again and again.
In the last decade there has been relatively little attention paid to the concept of adequacy of long term wage replacement benefits. Generally, the focus has been on tamping down systemic costs. Few California legislators have stepped up to advocate for adequate benefits.
Those benefits are key for many "breadwinner moms" and their families. If nothing else, the issue of how California workers' comp serves working women deserves more study.
Julius Young www.workerscompzone.com www.boxerlaw.com]]>HAD TO CHUCKLE
http://workerscompzone.com/index.php?entry=entry130529-091006
When I viewed that headline of a Capitol Weekly article by Samantha Gallegos, I found myself chucking.
In the workers' comp community we know about that after having watched the rollout of EAMS (the electronic adjudication management system) several years ago. But workers' comp is not the only area where the state has struggled with tech.
It seems that the project to transition to a a new payroll management system, dubbed the 21st Century Project, is lagging and over budget.
Gallegos notes that: "Gov. Jerry Brown’s rewritten budget for the 2013-14 fiscal year beginning July 1 calls for $14.5 million to wind down the operation and cover potential litigation between the controller’s office and SAP Public Services Inc., the system vendor that the state terminated in February as the problems mounted, said Jacob Roper, a spokesman for state Controller John Chiang. SAP, hired in 2010, was the second vendor to be cashiered. The year before, the state jettisoned an earlier vendor."
Recounting the background on the project, Gallegos says: "The 21st Century Project was intended to improve the state’s mammoth management process involving payroll, benefits administration, and timekeeping, among other functions. The goal reflected the state’s efforts to learn from its earlier miscues to develop a workable system. But difficulties quickly arose. A 21st Century Project test group comprised of a small fraction of state workers’ paychecks experienced problems -- including under- and over-payments -- throughout an eight-month trial run, according to a recent report by the Legislative Analyst’s Office. Although the controller’s office was able to fix some of those problems, the state may still face litigation by those who were affected, the LAO noted. The new and currently suspended system, called MyCalPAYS, was proposed back in 2004. Its initial estimated cost was $130 million and had originally been scheduled for full implementation by July 2009." According to the LAO, these figures ballooned to an estimated project cost of $373 million and the implementation date was pushed back to September 2013. At the time of its termination, the state had spent $262 million of its total estimated project cost."
In workers' comp we've been there and done that.
If it's any consolation, EAMS does work, so the payroll project will eventually get solved.
With EAMS the glitches and hiccups have lessened over time. The critics of EAMS have muted. Parties have adopted workarounds.
EAMS is not an elegant system, reflecting the fact that it was based on programs written for other purposes that were adapted for workers' comp.
It does some things well. Checking for filed liens, selecting MSC dates and filing settlement papers for walk-thru approval are among some of the things that are easier to do with EAMS.
Other things are cumbersome with EAMS. Long forms. Separator sheets when scanning. Occasional EAMS outages. Cumbersome moving from document to document when organizing exhibits.
Overall I'd give EAMS what I call a "gentleman's C" grade.
Looks like the folks over at the California Controller's office would settle for a C at this point.
Stay tuned.
Julius Young www.workerscompzone.com www.boxerlaw.com ]]>ACKNOWLEDGING THE PROBLEM
http://workerscompzone.com/index.php?entry=entry130525-192134
Recently there has been an outpouring of concern from all quarters in the comp community about the DWC backlog in processing QME panel requests.
Those delays adversely affect employers and injured workers alike. Delays can adversely affect medical treatment and may in fact lead to increased indemnity costs.
The backlog has gotten so bad that workers' comp judges are being asked to issue orders that panels be issued. One judge told me that the judge will honor such a request but did have concerns since it meant that the DWC would essentially be shuffling the deck of waiting requests.
But as any practitioner knows, some workers find themselves in dire straits as their group medical insurance expires and as they near the end of their eligibility for State Disability. Delays in getting a QME can put the worker in a desperate situation.
Responding to the concerns, the DWC issued a May 20, 2013 newsline, pledging to address the problem by looking at its root causes.
According to the DWC: "The delays were eliminated in the past through significant amounts of overtime work by DWC staff as well as the use of temporary student assistants. While those efforts were successful in the short-term, they were not sustainable, leading to reoccurring problems in processing QME panel requests for represented injured worker cases."
What will the DWC do about the problem? Here's what they say: "We are conducting a thorough review of the work processes and the applicable regulations, and exploring long-term solutions to reduce the amount of staff time required to process panel requests and make the process more efficient. A technological infrastructure repair is underway."
It seems that part of their strategy is an assumption that the Independent Medical Review (IMR) process will lessen the volume of QME panel requests. After all, after July 1, 2013, appeals of UR decisions will not be resolved through use of QMEs. That is a change that will apply to all cases, even cases involving decades-old injuries.
While panel QMEs will still comment generally on the need for treatment, PQMEs (and AMEs) will not be resolving specific treatment disputes.
So there may in fact wind up being less volume of PQME requests, leading to a shrinking backlog.
Meanwhile, here is what the DWC says: "We are confident that the combination of re-directing resources, implementing new technology and the expected IMR-related decrease in panel requests will result in the permanent elimination of the processing delays. Thank you for your patience during this transition."
I'm sure that all stakeholders look forward to updates from the DWC on what progress is being made to streamline the process.
Julius Young www.boxerlaw.com www.workerscompzone.com]]>EDUCATE THEM
http://workerscompzone.com/index.php?entry=entry130519-220823
The AMA Guidelines, 5th Edition became the touchstone of disability evaluations in 2005. But QMEs were not required to be schooled in use of those guidelines.
Many QMEs have by now delved deeply into the Guides, taking various seminars. But some QMEs still have a tenuous grip on the Guides.
And what about treating doctors? Have they mastered state-mandated treatment rules?
California adopted the ACOEM Guidelines as treatment standards and later adopted the MTUS, the Medical Treatment Utilization Schedule. Proffered treatments are required to be supported by the MTUS (found at Title 8, California Code of Regulations 9792.20 to 9792.2). Treatments not addressed by MTUS may be authorized on a rebuttal basis "if such treatment is in accordance with other scientifically and evidence-based, peer reviewed, medical treatment guidelines that are nationally recognized by the medical community" and "a variance from the schedule is reasonably required to cure of relieve the injured worker from the effects of his or her injury" (see 8 CCR 9792.25)
Could it be that few doctors are familiar with the MTUS? Have few workers' comp treating doctors even read the MTUS?
That may well be the case.
So is the argument made by Dr. Robert R. Kutzner, a Los Angeles area based pain specialist. Writing in comments on proposed MPN regs in a DWC sponsored forum, Kutzner charges that: "I am consternated that we write more and more laws to enforce the MTUS law when we haven't spent any effort to ensure that those whom are responsible to implement it, KNOW ABOUT IT. This is outrageously shocking and easily substantiated: Just ask any provider, any WC Insurance Adjuster, or just about anyone at the Medical Board outside the Div of WC about the MTUS and they won't know what you're talking about. To prove my point simply look at the video recording of the Med. and Pharm. Brd. joint forum on Prescription Overdose, Feb 2013, where I asked hundreds of attending WC Providers and Insurance Adjusters, to include the Professional Panel, if they knew about the MTUS only to receive a blank look where no one knew what the MTUS was. No one, not Adjusters, not TPA's, not the Providers who are supposed to implement the WC Program know anything about the MTUS. Why should they when they are not even required to read it to participate."
Kutzner defines the problem thusly: "Providers are not required to know or implement the MTUS. Shockingly most Providers don't know what the MTUS is let alone read it. That's right, Insurance Companies don’t require Providers to even read the MTUS to get on their MPN list. In addition, Insurance Adjusters are not required to know or implement the MTUS. The State does not require Insurance Companies to even read the MTUS to get approval to offer Workers Compensation Insurance. Third Party Administrators (TPA’s) are not required to know or implement the MTUS. The State does not require Third Party Administrators (TPA’s) to even read the MTUS to get approval to participate in Workers Compensation."
His solution?
"Doctors that want to be on a Provider Network SHOULD HAVE TO AKNOWLEDGE THAT THEY HAVE AT LEAST READ THE MTUS. Insurance Carriers and TPA's that want to participate in Workers Compensation SHOULD HAVE TO AKNOWLEDGE THAT THEY HAVE AT LEAST READ THE MTUS. They should also acknowledge that they will ensure that their Providers have also read the MTUS."
Kutzner has identified a very basic problem. California workers' comp has become ever more complicated.
Substantive changes in the law, procedural changes, regulatory changes.
The volume of rules and regulations that apply to stakeholders is massive.
It's likely that many of the physicians and stakeholders either are too distracted or too busy to pay attention to the details. Any the DWC currently has no way to monitor training that those stakeholders receive on the basics.
It's a problem.
Stay tuned,
Julius Young www.boxerlaw.com www.workerscompzone.com ]]>LATER ON
http://workerscompzone.com/index.php?entry=entry130511-224408
An injured worker, frustrated with the delays and treatment denials in the system, simply wishes to cash out their case. As part of a buyout they usually take a negotiated amount of money in exchange for releasing the insurer from liability for future medical treatment.
Perhaps the worker has other coverage that can be relied upon to fund treatment.
But maybe not.
Workers who have employer sponsored group health coverage or private coverage administered by companies such as Blue Cross or Blue Shield may find that their treatment is denied under the terms of the policy if the policy excludes payment for workers' comp related conditions.
What about workers who have no insurance or whose insurance will not cover workers' comp? Once they settle their cases, how do they fare?
Some of those workers may be eligible for Medicare, so they are expected under Medicare's rules to "protect Medicare's interest" by using an allocated portion of their settlement (a Medicare Set Aside) to cover medical costs before Medicare will willingly kick in.
Others will use their group or individual medical insurance anyway, despite exclusionary language, hoping that their usage of treatment resources caused by a work injury is not flagged by the insurer. Some will seek treatment at the VA or public clinics or county hospitals. Some may receive "charity care".
If there is any research on how workers who settle cases access treatment resources, I'm not aware of such studies.
Perhaps the Affordable Care Act/Obamacare will affect all of this. But for now it's not clear how many injured workers end up having to pay for treatment "out of pocket" after cases are settled.
But I'm sure there are some who do.
I was thinking about those workers as I noted that the Centers for Medicare and Medicaid Services has now released a study of hospital pricing. The study documents hospital-specific charge data on the 100 most frequently billed discharges from 3,000 U.S. hospitals (a link to the study is noted below).
The study documents that there is a huge range of billed charges from hospitals for the same procedure.
Insurers may get discounts. But if you are an uninsured injured worker without insurance, you may be charged the "rack rate" just as you would be if you walked up to a hotel and booked a room without a discounted reservation.
For example, a joint replacement may on average be billed at $83,538 at California Pacific Medical Center in San Francisco and $110,305 at St. Francis Memorial in San Francisco, just a couple of miles across the city. The same procedure at a local Kaiser was on average billed at less than half the cost.
Where injured workers have settled their cases and later found themselves without coverage, have they done comparison shopping?
Perhaps. I have personally represented several workers who settled their cases and used the funds to seek medical treatment in India or Thailand at a lower cost. Undoubtedly some immigrant workers from Mexico return there to get treatment.
But for workers who need to treat in the USA, obtaining such data has been hard until now.
For those workers who have settled their cases and are without other viable coverage, the CMS data may be helpful in choosing where to have elective treatments performed.