Tuesday, October 7, 2014

Dubon and Adjustment Disorder

The big news out of California this morning is that the Workers' Compensation Appeals Board sitting en banc reversed its earlier ruling in the Dubon vs. World Restoration case.

In its earlier ruling the WCAB was widely criticized by the defense community as destroying the intent of SB 863's independent medical review process by allowing procedural error to trigger ejection from the process, sending the case back into litigious territory.

The new Dubon ruling revises that decision by stating that only if utilization review is untimely is there the option to interfere with the IMR process, allowing a workers' compensation judge to make a determination on medical necessity.

The composition of the Board had changed since the first Dubon ruling with Commissioner Alfonso Moressi retiring, replaced by Commissioner Kathy Zalewski, former Department of Industrial Relations Chief Counsel who was appointed to the WCAB in May.

Commissioner Marguerite Sweeney dissented, arguing that there are substantive requirements for UR decisions, not just timelines for their issuance, and controversies as to whether a UR decision is valid should be resolved by the WCAB.

Commissioner Deidra Lowe argued the matter was moot because Dubon got his surgery.

Applicant attorneys are, understandably, upset because this is a major blow to medical control of a case.
Tina adjusted when she lost her last tooth...

The defense community is ecstatic because they believe the intent of SB 863 is being upheld and that a major case law created loop hole was being closed.

Regardless of any argument in favor of or against the new Dubon ruling, the board's first step in the logic of its opinion can't be refuted: if UR is untimely, then procedurally, as dictated by black letter law, there is nothing for IMR to review, and thus the matter must be decided by the litigation process.

The appealing carrier, State Compensation Insurance Fund, wanted the board to rule that "any dispute" over a UR decision must go to IMR, and that was rejected.

Legal issues are not for IMR, the board states - that process is to determine medical necessity. Timeliness is a legal issue, not a medical issue, so it does not belong in IMR.

The board also ruled that timeliness is basically the only legal issue that could be raised within the statutory scheme of the treatment review process, stating that missing records, expertise of the reviewing physician and compliance with the Medical Treatment Utilization Schedule are medical issues:

"The legislature has made it abundantly clear that medical decisions are to be made by medical
professionals. To allow a WCJ to invalidate a UR decision based on any factor other than timeliness
substitute his or her own decision on a treatment request violates the intent of SB 863."

As Commissioner Sweeney pointed out, those too could potentially involve substantive issues that affect legal rights, but that is not an opinion held by the ruling majority.

So, for the time being at least, medical control over cases that are procedurally efficient (in other words, where timeliness of request or review is not in question) rests with the employer/defense community.

There are going to be individual tragedy cases, and there are going to be cases where treatment isn't medically necessary or supported by the evidence.

But as the California Workers' Compensation Institute had recently pointed out, the bulk of IMR cases involve prescription drugs, and more often than not the prescription of pain killers outside the treatment regimen approved by the Federal Drug Administration.

Prescription drug payments increased 28% from 2011 to 2012 alone, and now account for about $1 out of every $8 spent on medical care, according to CWCI.

CWCI released a paper yesterday arguing that California would benefit enormously from a closed formulary similar to what Texas had put in place, saving hundreds of millions of dollars and perhaps saving many lives from over-prescribed, medically unsubstantiated prescription drugs.

The timing of the release of that report is serendipitous.

What the new Dubon case is really saying is that SB 863 is a game changer, that the rules have changed and that the system is serious about enforcement of those new rules.

The new rules are uncomfortable. They are constrictive and are counter to a hundred years of cultural evolution.

In psychology there is a diagnosis, overused in the psyche-mill hey days of the 1980s, "adjustment disorder." That diagnosis recognized that when change occurs a person's routine is interrupted, which causes some anxiety, but after a time the person adjusts to the new reality and symptoms disappear.

California work comp is going through an adjustment disorder, albeit the period of adjustment is longer than the protocol set forth in the Diagnostic and Statistical Manual IV for psychiatric disorders.

There will continue to be reactionary challenges as the adjustment evolves. Eventually the anxiety will wane, there will be a new level of operational comfort.

The question is whether this new level of operation fulfills the social role for workers' compensation and that is an historical question - i.e. one that can only be answered retrospectively.

3 comments:

  1. This will be a real set back, bummer!

    ReplyDelete
  2. SunTzu says, 'NEVER FIGHT UNLESS YOU ARE IN DANGER'..... LUCY OCCUPY SAYS.... " DANGER DANGER......"

    Awww, nice adjectives..... "disappointment, setback, uncomfortable, bummer.... " I read this story last night on CAAA site; it gave me nightmares. I read it again this morning, same reaction. Now, thrilled to see David DePaolo hitting it with that left brain analysis. (Thanks David!) I could just see the CAAA crowd and their stated disappointment, a little politically correct hand wringing and perhaps a polite, 'oh darn'.... and moving right along.

    From the perspective of injured worker, subjected to such chicanery since date of injury, 1/9/12, first thoughts were:

    *"OMG! IT'S A F****ING MASS EXTINCTION ORDER SANCTIONED BY THE STATE ON BEHALF OF THE INSURANCE INDUSTRIES! START THE TRIALS. PREPARE THE GALLOWS!"...

    *The Sound of NAZI boots pounding the streets of CA, disposing of maimed and dying bodies of injured and untreated injured workers, like the sonderkommando of yesteryear ringing in the air;

    *The glee of the psychopaths of the Defense ilk pierced the quiet like bats being released from hell, and visions of Hilter and his ilk being pleased and toasting with such a polite and profitable killing machine, with plenty of 'plausible deniability'!

    *It made me wonder if the IRS or the DOJ had any interest in investigating special interests that may have been and are behind this.

    *It made me wonder about Ronnie Caplane's crew...... and how those Commissioners can sit idly by and watch the torture and killing of Injured Californian's...FOR THE PROFIT OF THE FEW...and look the other way! (One of her peeps wrote me a ... note...... suggesting that I stop wasting time, money and effort, and deal with it that I will get no help...EVER. eWWWW.... 'Yeah, ok, Dude, chill! I hear you. But can you make sure MS. CAPLANE IS AWARE OF MY CASE and MY COMPLAINTS?"


    Back later, blogging to do, and have email to respond to from Defense Counsel wherein he basically asks if it's ok that they continue the chicanery of omission of medical records to deny medical treatment, since it has worked so well for nearly 3 years, including using the UR and IMR process to facilitate the shams only since 2013.... I sent a response to one of his silly emails about the missing medical records to all the Partner/Shareholders at his California Firm. Darn, he got mad and almost called me stupid. He said he would consider it a.... mistake in judgement but that if I did it again, he would have to block my email from their server and we would have to talk on the phone or just use snail mail to see about handling this case from here on out. (He doesn't return calls, so that was an empty threat. The ADA violations continue.) I responded to the entire distribution list again with a little suggestion that they google ASK ABOUT WORKERS COMP GRAVY TRAINS ....for further clarification.


    This new CA WCAB Development makes the State's reward of approximately $20,000 to the carrier in my case for REFUSING TO PAY TTD IN THE FIRST AND SECOND YEAR POST INJURY, WHILE WAITING AND WAITING FOR TREATMENT.....LOOK LIKE JUST A MISDEMEANOR....... In reality, indictments should come in for aggravated assault, attempted murder, serial killing, fraud, murder, corruption, collusion and general organized crime and racketeering... imho.

    NOTHING CHANGES WHEN NOTHING CHANGES; IT JUST GETS WORSE AND WORSE AND WORSE, HUH?

    DO WE HAVE ENOUGH JAIL CELLS TO LOCK THESE FOLKS UP AFTER PROPER TRIALS, OR WILL MORE PRIVATIZED PRISONS AND GALLOWS BE REQUIRED? THE GOLDMAN SACHS AND AIG BOYZ AND GALZ PROBABLY KNOW THE ANSWERS TO THOSE QUESTIONS. FOLLOW THE MONEY.

    ReplyDelete

  3. Remember when America was a country to be proud of? What happened?

    Yeah, so this injured worker agrees, pretty disappointing, uncomfortable setback....BUT NOT A SURPRISE. IT'S A PATTER OF PRACTICE, NOW SIMPLY SANCTIONED BY TRUSTED SERVANTS. A Real Bummer.

    Oh well, The People have the Right to Remain and Stupid and Face Extermination Sooner rather than later. A REAL BUMMER.

    #InjuredWorkersUniting #SilentNoMore JOIN US.

    "WE ARE THE MEDIA NOW"

    ReplyDelete