Thursday, October 2, 2014

Work Comp and Baseball

I was watching the Oakland As versus the Kansas City Royals game on television the other night. Kansas City tied up the game and I went to bed so I could write this blog in the morning and good thing - the game remained tied until the 12th inning where the Royals scored the winning hit at the bottom of the inning, far past my bedtime.

The player securing the win for the Royals, Salvador Perez, had six at bats but didn't hit anything until his last when he knocked in a single. In fact, his prior at bat he whiffed so bad even I could tell the pitch was WAY outside the zone.

My buddy, a baseball aficionado, explained to me the next day, "Baseball is a game based on failure. A great hitter hits .300. He fails seven out of every ten attempts."

The odds are so great against the batter in baseball that hitting a pitch less than a third of the time is considered "great."

Sometimes it seems that workers' compensation is like a batter in baseball - the odds of a positive outcome seem so enormous that when one occurs it's "great."

Workers' compensation, like baseball, requires a big team. There's the sale, i.e. brokers. There's policy underwriting and administration - people that consider the risks and price coverage accordingly. There's the employer, which precipitates work comp in the first place. Doctors are needed to treat; attorneys bring and manage disputes. Claims administrators are necessary to keep the claim moving. There are a whole host of other providers performing all sorts of other specialty services.
Batting .300?

And then of course there's the injured worker.

More often than not, of course, the injured worker gets taken care of. Yes, there are way too many cases that are wrongfully denied, where treatment is inexcusably delayed, where benefits should be provided but aren't - but most of the time, likely far more than 80% of the time, a claim moves relatively smoothly through the process.

There are, however, claims that are difficult from the very outset. Sometimes we hear about them but most of the time we don't.

The ones that we do hear about get dismissed from our conscience too easily because the melodrama in their vocalization of what's wrong gets drowned by our own jaded pessimism.

These cases, though, are real. There are real people behind these cases. People get hurt. People get toyed with. People don't get what is needed, what is promised in the Grand Bargain, and set aside as disturbed and having unrealistic expectations.

Some contact me because of this blog, seeking answers, help and remedies.

I have met some - like Linda Ayers. I won't get into Linda's case here - that's not the point.

Linda is vocal, like a few other injured workers. She has a blog, she is active in social media, she posts comments to this blog.

And she probably drives the defense crazy as she is prolifically passionate about making sure the system works for her and for other injured workers.

It's easy to dismiss Linda's activities as the rantings of an unstable person, but she is not an unstable person. She is a person who's case spiraled out of control from the beginning, and we know that the early stages of a claim are the most critical.

There's Darren Fonzseau and Cecilia Watt, more vocal injured workers seeking stabilization of their claims, timely payment of benefits and authorization of medical treatment.

Darren writes prolifically, adding a comment to this blog nearly every post, supporting me sometimes, excoriating me sometimes, but always visible, seeking answers, questioning actions.

Cecilia isn't as prolific, but she is vocal nonetheless.

These are the folks that stepped up to the plate and got delivered lousy pitches - "swing and a miss." At some point there will be three strikes and they'll be out and the next batter will step up.

On rare occasions they'll be walked, and off they go to first base, hoping for subsequent base hits to drive them home.

But we know that baseball is a game of failure.

Work comp shouldn't be. Yes, most claims terminate successfully. The claims that don't are in the minority.

We think of claims as numbers, and forget that people are behind these claims. They're easier for us to deal with emotionally when they are just numbers, and I understand that - I was a defense attorney for many, many years and have had my share of dealing with pro per claimants.

Don't misinterpret the message of the vocal injured worker as that of unstable minds. The expectation of these few outspoken folks is that the work comp system would treat them fairly, without discrimination, and that they would be provided services to assist their return to normalcy.

It's easy to tell these folks to move on, to not "live their claims."

Until YOU live their claim, though, you wouldn't understand.

The great Gerry Spence, one of the most celebrated trial lawyers of all time and founder of a trial lawyer's college, teaches the experiential method of trial presentation: that is, the lawyer is simply a story teller - how can one tell the story well unless he or she LIVES the story for a week; steps into the shoes of the plaintiff to actually see and feel how an injury has affected the person's LIFE.

Before dismissing the vocal few (and there are quite a few - more than you might expect), hear their stories. Yes, there's the other side. There always is another side of a story. Sometimes we fail to listen to both sides of the story though. Telling is easy. Listening is hard.

In baseball the manager of the team listens to each and every player and watches carefully how the game unfolds. Even when the game goes sideways the manager doesn't want to pull the pitcher, but sometimes a reliever must be brought in to get the game back on track.

And at some point the game comes to an end, usually without going into overtime. When a game does go into overtime, the players must also go into overtime - that means working harder to get a conclusion.

Wednesday, October 1, 2014

Ebola and Work Comp

What if the ebola virus is industrially acquired? Working abroad, or health worker infected...

The general media yesterday ran headlines about an adult who recently traveled from West Africa to Texas and tested positive for Ebola, the first case to be diagnosed in the U.S.

According to the reports, the man developed symptoms of the viral disease about four days after landing in Texas and was admitted into isolation on Sunday at Texas Health Presbyterian Hospital in Dallas.

The Centers for Disease Control and Prevention in Atlanta confirmed that the patient had tested positive for Ebola and said "a handful" of people may have been exposed. They also reiterated that the disease could be contained with standard public health efforts and said the patient can be treated safely at the Dallas hospital.

Also in the Wall Street Journal yesterday was a story about the spreading of disease and germs in the work place.

Regardless of your sanitation habits at work, it's pretty hard to avoid the germs of your co-workers, even the ones you don't know personally.

Just one door contaminated with a virus spreads the germ to about half the surfaces and hands of about half the employees in the office within four hours, according to a study at the University of Arizona, in Tucson. 
Bowzer may be infectious...

The research was presented at the Interscience Conference on Antimicrobial Agents and Chemotherapy in Washington D.C. earlier this month.

According to the article, researchers calculated that employees had a 30% chance of infection just being in the work place.

Albeit most of the time an infectious disease in the work place doesn't have any real consequence - flu bug or common cold, these diseases don't arise to industrial significance at least for workers' compensation.

But what if that infectious disease is ebola? The report of the Texas man transporting the disease to the U.S. demonstrates the portability of disease, and the transmission of it can occur quite easily, as demonstrated by the Arizona researchers, in the work place without detection until it could be too late.

California Governor Jerry Brown yesterday vetoed a couple of presumption bills put on his desk, one of which would have granted a presumption to certain health care workers that contract methicillin-resistant Staphylococcus aureus infections.

The bill, AB 2616, was sponsored by Nancy Skinner, D-Berkeley, and is the third attempt to create the presumption, but the first time it got to the governor's desk. It also would have been the first time any industrial disease presumption would have extended into the private work place.

In general I'm opposed to presumptions. I think they do more harm than good, create more animosity between employee and business, generate more litigation and medical discovery than not, and in general are bad policy.

We have seen over time now public safety employee presumptions grow outside of intentions - on Monday I blogged on a Los Angeles Times report about first responders taking advantage of salary continuation benefits for reportedly minor issues - and presumptions follow the same discourse.

The argument for the presumptions is that proving industrial causation of disease is inordinately difficult for the employee, and I get that.

But the reason for the public safety presumptions was to encourage people to seek careers in that sector and not be afraid that some disease was going to ruin their lives serving the public.

There isn't any evidence that the possibility of contracting MSRP inhibits potential health worker employment opportunities.

There apparently is evidence of health workers being harassed and otherwise intimidated in their quest to get benefits to cover treatment and disability associated with MSRP, and Brown has directed officials to look into this - perhaps that is what is needed for the nurses to get their presumption.

Here's what it really all comes down to - workers' compensation, like pretty much everything in life, has limitations and borders. Some of those limits are easily defined, and clearly denoted. Some are fuzzy and create more controversy and discourse than others.

At some point lines are drawn; not necessarily to discriminate against any particular sector or occupation, but simply because a line has to be drawn so that people affected or functioning within a system know what to do.

With communicable disease, where infection can as easily occur in the work place as not, there is nearly always going to be disagreement on causation and employer liability.

In the end the question is what does society want workers' compensation to be?

Does society want work comp to be more of a universal health and disability program that covers anyone for anything as long as they have a job? And society is willing to pay for it?

Or does society want a more circumspect system that covers only the obviously employment related injuries and illnesses, and put the burden of covering the fuzzy cases onto the general health system?

This is an age-old debate, one that will likely carry on for many, many years, particularly as the country wrestles with the ongoing implementation and coverage of the Affordable Care Act and its many permutations.

Tuesday, September 30, 2014

Procedural or Substantive?

When a new law passes there are always issues concerning whether the law also applies to cases that are pending. If the new law doesn't specifically say it does apply to pending cases, then whether it does depends on whether the provisions are jurisdictional/procedural or substantive.

In general, substantive law prescribes duties and rights, and procedural law concerns the means and methods to apply and enforce those duties and rights.

New legislation may not deprive one of the remedies afforded by the existing cause of action. Thus, a substantive amendment will not apply to a statutory cause that accrued before the amendment’s effective date.

In workers' compensation, substantive law is generally controlled by the date of injury pled or discovered. But in the instance of a lien claimant, for instance, the applicable date may be the date services were provided since a lien claimant has separate status from, though dependent on, the injured worker.

If the law is procedural, then it's another story and the law will apply to an existing dispute.

So it's interesting that a medical billing dispute that existed prior to the passage of California's SB 863 will be heard by the 4th District Court of Appeal to determine if it belongs in Independent Bill Review rather than subject to a trial judge's award.

The parties in CIGA v. WCAB (Elite Surgical Care Centers) will present oral argument to a 4th DCA panel at 9 a.m. on Nov. 12 as to whether the changes made by SB 863 in the resolution of billing disputes apply - i.e. whether such disputes go to IBR or not.

Are those changes procedural, simply changing the means and methods to apply in the resolution of the dispute?
"Hmmm ... procedural or substantive?"
Or does SBR arise to a substantive change that involves the duties and rights of the parties?

Elite Surgical Centers and two other commonly managed ambulatory surgical centers collectively filed several thousand liens based on services they provided to injured workers in the years leading up to the passage of SB 863.

Several of these liens were consolidated in 2009 and a Workers' Compensation Judge issued findings as to the reasonable fee the providers could collect on epidural injections against eight insurance carriers.

The carriers sought reconsideration, which the WCAB denied last October. The carriers then petitioned for judicial review in December, and the 4th DCA granted review of the case in April.

The California Workers' Compensation Institute has filed an amicus brief in support of CIGA and the California Society of Industrial Medicine & Surgery has filed an amicus brief in support of the WCAB.

My prediction is that the 4th DCA will find that the matter is procedural, and will invalidate the WCJ's award, simply based on the fact that the court has an interest in the dispute.

Of course that's no reason to think the court will rule that way. But that's where I'm putting my money.

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In the meantime there are less than 2 weeks to make your nominations for the Comp Laude Awards - categories include injured worker, employer, and all the usual industry positions. Nominations close 10/12, and winners will be announced at the WorkCompCentral Comp Laude Gala on 12/06.

Monday, September 29, 2014

What's Wrong Becomes Right

The top headline in the Sunday Edition of the Los Angeles Times was about ... you guessed it ... workers' compensation.

Nothing is going to be good about work comp if it is the top story on the top day in one of the largest metropolitan newspapers in the country.

Entitled, "L.A. pays millions as police and firefighter injury claims rise," the story points out the dramatic rise in claims in the past five years, with 19% of police and firefighters taking at least one injury leave last year.

In comparison, the city and county of San Francisco rate was 13%, Long Beach was 12% and San Diego was 10%.

The LA Times article cites the a dramatic rise in costs, both direct and collateral. With budget cuts the police don't replace an officer out on leave which means a district might not get patrolled, or response times may suffer.

According to the story, L.A. police and firefighters on injury leave collected $197 million in salary from 2009 through 2013 and $131 million was spent on medical care, disability payments and related expenses.

The fire department spent an extra $19 million a year covering injured leave positions. The police department doesn't bother to fill positions left unattended, so each absent officer represents "one shift that doesn't get filled, one neighborhood that doesn't get patrolled," Cmdr. Andrew Smith, the department spokesman, is quoted as saying.

As one might suspect, a disproportionate number of claims are attributable to a small share of the workforce, and the story provides a couple of anecdotes as examples - a firefighter who has been out of work for an extended duration, on multiple occasions, with otherwise seemingly minor injuries or disabilities; or the firefighter who was caught competing in mixed martial arts while allegedly disabled.

The law was set up to encourage people to work in first responder positions by ensuring that full salary and benefits would continue if injured in the line of duty.

And as what happens with laws established with good intent, those with lower scruples and standards take advantage of it.

Efforts at prosecuting fraud don't work because it is so difficult to convict a person where so much of a claim is subjective. And most firefighters and police officers are protected by unions which adds an additional layer of complexity.

There are all sorts of explanations offered by the experts, but the best explanation got the least amount of ink: the work place culture fosters this environment - as employees see their colleagues take more and longer leaves, they do the same.

"I would say, without any ill-intent, it just becomes a practice," David Luther, interim general manager of the city's Personnel Department, told the Times. "It becomes somewhat automatic."

A sort of cyclone of attitude sucks up people that are otherwise of fine moral character; what's wrong becomes right just by sheer volume.

This is a bigger problem than me and my blog, certainly. But I've always thought that there are more "good" people in the work place than "bad" people - much more - and the way to combat certain issues is to use those good people more effectively. 

So it seems to me that the police and firefighters just don't do a good job at policing themselves - that the fear and intimidation of peer pressure is on the wrong side of the curve, and that if fellow officers and firefighters were called upon to pass judgment on whether a claim passes the "sniff test" there would be much fewer questionable claims and lower costs.

I know, I'm talking a utopian system where employees are essentially jurors to their colleagues' claims, but I'm quite certain that if such a system existed there would be much tighter compliance and respect for the law and the system set up to support it.

At least with the cases highlighted by the Times, officers and firefighters could certainly (assuming no union rules to the contrary) be required to "report" to the job, then assigned to the break room or other neutral space to "recover." My guess is that being off work will lose its appeal real quick if one cannot spend time as pleased.

Friday, September 26, 2014

The Workplace & Diabetes

A couple of recent studies tying type 2 diabetes to the work place seem to me to add fuel to the universal medical provision argument.

A German study of more than 5,300 working adults found that high levels of workplace stress can lead directly to an occurrence of type 2 diabetes.

The study comes from the Institute of Epidemiology in Munich. It followed workers ages 29 to 66, measuring their levels of stress and correlating it to their health.

The conclusion was that those under high work place stress are 45 percent more likely to develop type 2 diabetes regardless of whether one is overweight or not.

Related disorders include stroke, heart disease and blindness.

The Institute reportedly followed the subjects for 13 years. During that time, almost 300 of those in the study developed type 2 diabetes despite the fact that they all been healthy at the start of the study.

The increase in risk in work-related stress was identified independently of classic risk factors such as obesity, age or gender.

Researcher Professor Karl-Heinz Ladwig told the British publication Daily Mail: “According to our data, roughly one in five people in employment is affected by high levels of stress at work. We don't mean normal job stress but rather the situation in which the individuals concerned rate the demands made upon them as very high and at the same time have little scope for maneuver or decision-making.”

The findings were published by the journal Psychosomatic Medicine.

Yesterday the LA Times published a story about another study that found a link between long work hours, low pay and diabetes, but there is inadequate explanation for why.

The study was made available online Thursday by the journal Lancet Diabetes and Endocrinology.

The team of researchers scoured the medical literature and found reliable data on 222,120 adults from the United States, Europe, Australia and Japan, where up to 68% of them worked “long hours” (generally defined as more than 55 hours per week).

A total of 4,963 of these men and women were diagnosed with Type 2 diabetes during the time they were tracked. There was a small link to "long hours" - about 7 percent.

More interesting was the link to socio-economic status: of those with low incomes, working long hours was associated with a 26% increased risk of developing diabetes after adjusting for other demographic factors.

In a commentary that accompanies the study, a pair of Harvard researchers wrote that it’s too early to rule out the idea that “working long hours per se is toxic.”
Bowzer stress and diabetes?!!

According to the American Diabetes Association's website, 23.6 million Americans have diabetes, constituting 7.8% of the population. Of that 23.6 million, 5.7 million have not been diagnosed yet. 

That's a big potential work comp claims population...

Workers' compensation for the most part covers industrially related (not necessarily caused) disease - if there is some work place exposure to elements that may cause or contribute to disease then there generally is workers' compensation liability.

This is a paradox that is as old as workers' compensation - the causation question.

For instance, many states have either limitations or complete dissociation of mental disease from work comp coverage - presumably because outside influences are too difficult to control and business doesn't believe it should be responsible for someone's mental health.

On the other side are exposures that generally are highly correlated to industrial settings - mesothelioma as a consequence of asbestos is an example (and was the subject of independent compensation systems).

In the middle, and it's a big middle, are these fuzzy exposures like diabetes and work place stress.

One man's stress is another man's stimulation. The degree to which a person can tolerate stress, or long work hours, is highly subjective and dependent upon a person's "pain tolerance."

Which is why workers' compensation laws are to be liberally construed in favor of the injured worker.

The purpose of that rule of construction is because this big fuzzy middle area can't be well defined and in order to make good on the promise of expeditiousness workers' compensation is supposed to do away with as much controversy and dispute as possible.

Over 100 years of workers' compensation legal interpretation by the courts should have taught us that, for the most part, disputes on causation when there is a scintilla of evidence of industrial exposure are going to be resolved in favor of the worker.

Will work comp systems see an increase in diabetes related claims as a consequence of these recent studies? I don't know - maybe.

I did a search on WorkCompCentral for "stress diabetes" and the results demonstrate the contentiousness of such claims.

I think the bigger lesson is that workers' compensation systems seem archaically anachronistic - for the most part workers' compensation has not evolved, and the issue of causation, essentially a dispute regarding liability, is a precursor to the provision of medical treatment.

This gets in the way of one of the primary missions of workers' compensation - to expeditiously provide medical treatment.

As long as there is a legal requirement on causation (AOE/COE) there will be disputes, which delays treatment, increases costs (exponentially by the way - just look at attorneys fees inflation) and destroys lives.

And really the only way out of this conundrum is to simply get rid of the causation requirement, which is basically to envelope employer paid medical treatment into a universal program regardless of causation, leaving the indemnity part of the equation for argument.

I know that prospect doesn't sit well with many, particularly more conservative thinkers. I get that. But at some point someone pays, directly or indirectly, for the health of the population.

Thursday, September 25, 2014

Profit At The Expense of Industry

The friction between social mission and business mission that workers' compensation represents goes much deeper than the conflict an insurance company or third party administrator faces when pressured for profits.

Much deeper.

Many of you, I'm sure, know of or have at least heard of the hedge fund industry.

In summary, hedge funds seek businesses in which there is an opportunity, at least perceived, to flip ownership stakes for short term profit. Usually this is done on borrowed money. And usually this activity occurs in low glamour, off-the-radar industries, like workers' compensation.

I get telephone inquiries all of the time from research groups seeking information about work comp on behalf of some investor. Usually these inquiries are in the medical supply side of the industry, and occasionally some other sector.

These investment groups have a single, very powerful, mission - short term profit.

Some might call it greed, but I think that's too powerful given that avidity underlies capitalism.

Still, when capitalism is not tempered with transparency then misguided rapacity damages companies and industries.

Copperfield Research, an otherwise anonymous entity, posted a 32-page report online on the stock market analysis website SeekingAlpha accusing professional employer organization Barrett Business Services, aka BBSI, of violating generally accepted accounting principles, under-reserving and overstating its income, warning investors that the self-insured entity should be viewed as an insurance company that is undercapitalized.

Bowzer smells something wrong...
When the report issued BBSI's stock, which is publicly traded, tumbled. The stock price of BBSI opened at $57.29 on Sept. 16, the day the report was issued. It ended at $48.69, and as of market close on Wednesday the price stood at $40.44 – a decline of 29.4% since the Copperfield report came out.

The problem with the Copperfield report is that it is anonymous and, based on research by WorkCompCentral, appears to be tied to a short-selling investment group that has used "research" reports in the past in attempts to manipulate the stock market, and in the workers' compensation space no less.

Copperfield, which publishes anonymously on SeekingAlpha and the document-hosting website Scribd, issued a similar report about the risk management firm CorVel in 2012. The report accused CorVel of operating a “quasi-black market” preferred provider organization and said the company was “generating financial results that would appear to defy the laws of business.”

CorVel's stock was not as dramatically affected as BBSI's and has since generally recovered.

The Wall Street Journal posted an article exploring the idea that the research group was involved in “short selling” after Copperfield issued a negative report about MagicJack, an alternative phone service company.

Meanwhile, the California Office of Self Insurance Plans, which lists Barrett on its roster of private self-insured entities in the state, has no record of issuing a disciplinary or corrective action against the company, Department of Industrial Relations spokesperson Peter Melton told WorkCompCentral.

Barrett posted net income of $7.3 million in its second-quarter financial earnings report. That represents an increase of 24% from the second quarter of 2013.

All of which is to say that you can't believe everything you read, you must be skeptical whenever money is involved, and that the financial underpinnings of workers' compensation, like any other financial product, are highly susceptible to manipulation by people whose business mission clearly overrides their social conscience.

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Postscript - many thanks to Mike Gavin, president of Prium, Inc., and formerly in the private equity industry for correcting my errors and my confusion between private equity and hedge funds.

Wednesday, September 24, 2014

IMR: Trust the Instruments

An interesting thing happened at the Independent Medical Review dance - an EMPLOYER appealed a decision approving an injured workers treatment request.

The last statistics from the California Division of Workers' Compensation reflect that 16% of all Utilization Review decisions are overturned in the IMR process.

From what can be seen, when that happens the claims payer simply (and from what I'm told generally quite promptly since the law provide 5 days to get it done) approves and pays for the treatment.

But perhaps in the first instance since SB 863 was signed into law and the IMR process was initiated an employer appealed a decision...

And of course lost.

It's only a trial level opinion, and since IMR can't get past the trial level unless there is some proof of fraud, a reviewer's conflict of interest or a bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color or disability, an IMR decision is binding.

And even if an IMR decision does get thrown out by a judge for one of the reasons of defect, the case just goes back into the IMR process - sort of like a guinea pig wheel: just round and round it goes until the rodent gets off.

An appeal can also be based on "a plainly erroneous express or implied finding of fact," and this has been the basis for most of the IMR challenges to date according to reports in WorkCompCentral.

Indeed, this was the grounds cited by the City of Sacramento in challenging the IMR decision to authorize an H-Wave machine for Kirk Crump. The H-Wave is a device that provides a therapeutic form of electrical muscle stimulation and was prescribed from Crump for his chronic shoulder pain from an industrial injury.

The city had argued that there was no evidence that Crump was able to reduce his medication use because of the H-Wave device, so the IMR reviewer had plainly erred in finding this to be a reason to authorize payment for the device.

However, the Workers' Compensation Judge to whom the appeal made its way found that this fact was noted in the progress report from Crump's treating doctor. Thus, the judge concluded in his Sept. 15 order, there was no plain error in the IMR decision.

Of course the debate among litigants in the system is mixed.

Some argue that it's frightening that even when 84% of UR denials are upheld by IMR that employers want to close the gap even further.

Others say that even though the decision was adverse to the employer, it's still another decision where IMR can't be challenged, further cementing the permanent nature of the process.

Still others say that this is just an aberration, that "even a blind squirrel sometimes finds a nut."
Trust your instruments - what are they saying?

Really, all this demonstrates is that IMR is still maturing, that users and participants in the system are still adjusting to it, and that even self insured employers need to get used to the idea that they will have to provide treatment they might find ineffectual, inappropriate, or for which they simply don't want to pay for.

In law we tend to talk in terms of "rights" and "liabilities." For instance, many of us may think that we have a right to drive a car on public roads. But we don't - we have only a license, and that privilege, that license, can be revoked by the state at any time.

Likewise in workers' compensation, that law, SB 863, is changing our expectations. We thought we had a "right" to unchallenged, unlimited goods and services under the guise of medical treatment, or that our "liability" to provide treatment would be severely constricted.

Both sides have lessons to learn.

Here's the deal - the system is what it is. We have a law that is on the books. A big segment of the workers' compensation population don't like that law. Another segment of the population does like that law.

It's a harsh law, no doubt. It's a law that changes the dynamics of a long standing cultural premise of workers' compensation - that a person can get whatever medical treatment they desire with no consequence or proof of efficacy.

That cultural premise developed over a period of one hundred years, so it's something that is going to take time to adjust. Expectations don't quickly align with reality in any human endeavor.

It's sort of like flying an airplane when something wrong happens - there is a huge moment of disbelief where the mind says that something is different and that the gauges and numbers aren't adding up like they're supposed to.

That moment of disbelief is distracting - bad things can happen in a moment. It takes training and discipline to cut through the "noise," figure out what all of that information is saying, and take the appropriate action to avoid disaster.

It should not be surprising that an employer appealed an IMR decision favorable to the injured worker, and it should not be surprising that such an appeal failed. IMR hasn't been around long enough for people to "trust the instrument."

The law is decidedly pro-employer in that the logical flow provides for appeals by the injured worker and not really the employer: Labor Code Section 4610.6 requires the employer to authorize a disputed treatment within five days of an IMR determination upholding the request.

But what I want to know is, if the employer failed that 5-day mandate, does it get penalized? That's the follow-on story...

To read the briefing in the case and see the ALJ's order, click here.