Monday, December 1, 2014

It's Not Debatable

This morning's WorkCompCentral story about the recent California Workers' Compensation Appeals Board's Significant Panel Decision in Bodam v. San Bernardino County, where the board reiterated that utilization review is invalid if it is made within the time frame allowed by the Rules of the Administrative Director but not timely communicated to the worker and treating doctor, raised this interesting observation:

"Attorneys on both sides of the bar are also voicing concerns that the procedure for making treatment decisions will now be the focus of the comp system instead of the actual provision of treatment."

And that seems to me to be an accurate analysis of the Board's recent activity - because the argument over whether a request was timely, and timely communicated, has nothing to do with actually providing treatment, and is a source of huge delay even if there is a request (and provision for) an expedited hearing and appeal.

In the meantime, the injured worker sits around, decompensating further, and the clock runs on temporary disability inflating indemnity costs.

Several commentators to the story essentially opined that a lot of litigation focus, which many said would increase in 2015 as a consequence, is going to be about who was served what, when and how.

Unfortunately that's as clear, and concise, an indictment of the work comp system in California as any, and in my mind demonstrates a long, historical trend of the system to recognize form over substance.

I was recently alerted to a post made some time ago on a forum hosted by my friend Bob Wilson's site, The injured worker claims a very similar situation regarding UR that I had recently written about - inadequate supply, or failure to supply, necessary medical records (edited for clarity):
The 2015 Flowchart is even MORE about form...

"I know in my case through UR the UR reviewer is seeing cherry picked sections of my file. No AME reports are sent, because they specifically mention this. They don’t get the MRI’s, or the EMG tests that support approval because they mention it as part of the justification for the denial as 'no radiological evidence supporting need.' Well, if the carrier doesn’t send it of course there’s no evidence! My doc has sent it with his request for treatment and they STILL SAY THEY DON’T GET IT. I know for a fact they do because my doc is now copying me the entire set of docs he sends with each RFA. IC is pulling it and not sending it to the UR reviewer is all that I can conclude because I know it was sent!"  [Bold formatting original.]

I obviously don't know that in fact the file was "cherry picked." And I don't know for a fact that the statement "no radiological evidence supporting need" actually meant there were no radiological records, or conversely that the records that were reviewed did no support the treatment request.

But, the point is that the focus of the dispute gets steered away from what the treatment request is, to how that request was received and/or dealt with - i.e. form over substance.

And the conveyance and receipt of records is, essentially, a timeliness issue - if all of the records are not transmitted and/or received by either UR or IMR timely, if at all, then it is an issue for litigation before the WCAB. This would support the commentators to the story who said that 2015 will see an increase in litigation about who was served what, when and how in UR.

In 2013 defense attorney fees were over $850 million. Applicant attorney fees were about half that. I don't have the numbers for 2014 yet, but I suspect a continuation of the inflationary trend on fees (nearly 10% a year since 2011) which will put this year near a billion just for defense fees...

Litigated indemnity cases are disproportionately responsible for system expenses; about 11% of all work comp claims in California in 2013 comprised nearly 78% of all costs (2013 WCIRB data). Yet, the system drives litigation by creating disputes when there should be none.

There are only two main objectives in the delivery of workers' compensation benefits: provide medical treatment and indemnity.

That's it - very simple. Just two things need to be done: pay for the injured workers' medical care and give that worker some money to tie them over until they can take care of themselves once again.

The intent was, obviously, that physicians determine need for medical care and duration/intensity of disability. The logic is that physicians are experts - they have been schooled, trained and practiced medicine, so they know what they are talking about.

Workers' compensation was intended to be a self-executing administrative benefit delivery system. A dispute resolution process was integrated to provide a forum for the inevitable disagreements. That dispute resolution system was intended to expedite cases. That's why its administrative in its operation. It has very little to do with justice, or being fair, and very much to do with just making a decision, any decision, that moves the case towards some resolution.

But case decisions are increasingly about something other than the direct delivery of benefits. Dubon and Bodam are the most public evidence of this trend.

This coming Saturday a panel comprised of Department of Industrial Relations chief Christine Baker, SB 863 negotiators Mitch Seaman, Sean McNally, and Bill Zachry, and Norther California applicant attorney James Butler and Southern California applicant attorney Robert Rassp will take a look at SB 863 now 2 years into the law.

They will specifically be asked whether the law is accomplishing its goals (increase benefits to injured workers, save money for employers) and whether UR and IMR are actually working to direct appropriate medical care, or are just cost containment vehicles by which claims payers can deny benefits.

I expect the panel to engage in some contentious debate about these points. What I don't expect them to debate, because I don't think it's debatable, is the simple observation that the system does in fact work as designed: form over substance.

But the intent got lost in the design.


  1. Great Article and Great perspective. We need someone with your thoughtfulness and perspective at the DWC. These hacks that we have, that have no idea what actually happens to a person once they are injured have made our system a joke here in California. Folks in Other states literally laugh at the stories I tell them. Our leaders are buddies with Large self insureds and they have friends who have formed some of the largest UR companies in the state. It is insane to me that UR and Bill review companies have opened and exploded in the last 10 years, making money hand over fist and their primary purpose is to let carriers either not deliver benefits or find ways to not pay for benefits. Destie and her clan need to go and we need you in the DWC to rattle some cages.....

  2. Thank you for your article David. In my opinion the workers compensation system has turned into a nightmare. It does not reflect its original intent of timely delivery of benefits to injured workers. The injured workers, who the system was created for, seem to be left behind. Wish there were more people in the system who could understand how this system looks to those who have been injured at work. One doctor says treatment is needed, a UR doctor says that treatment is not need. Months go by for a IMR doctor to rubber stamp the UR denial. A SP QME takes months and months to get results. To the injured worker this all looks like the system was designed to delay everything. The insurance companies control the MPN, the UR doctors, and more often than not refusing to participate in any type of AME. What a sad system for injured workers.

  3. Okay Guys (and deference to the Ladies) – time to quit whining. It’s time to strap on the helmet, adjust the jock strap, put on your game face, and get into the game.

    Get to the only one that matters in the entire system – get to the Employer. They are the only ones that write checks. In theory, they control the whole system. The carriers collect premiums in order to do their bidding.

    The Employers hired the workers because they felt they could produce the products and services they were selling. The longer they employee is employed, the more valuable they become. If they are injured – we want them back. That’s not always the case – but it is the rare exception.

    The employers can demand a reasonable treatment plan for their injured workers from the providers. And they can demand the carriers authorize and pay for the treatment plan. Talk to the Employers about the issues. Trust me, business owners are pretty much the smartest people in the room. If you bring them a problem, explain it to them, and give them options to solve it – they will almost always make the best decision.

    Oh – you’ve never called an Employer directly because you thought it wasn’t your place and the carrier would hold it against you? Then you’re worse than that pejorative use of the word ‘coward’.

    Everything else is ‘yada, yada, yada’ bulls**t. The moment you start whining to your peers about how you’re not being treated fairly instead of taking your case to the Employer, you’re part of the problem – not part of the solution.

    ‘Grow Up – Grow a Pair’ and let’s start to fix this.

    1. All great points raised here. Bill addresses a seldom addressed point of contention as well. Communication, communication, communication from the front of the house to the back of the house, top to bottom, expedited & concise mitigates more issues than anything I have witnessed in over 25 years.

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  5. Sorry about the duplicate.

    I really like this blog topic Mr DePoalo. It looks like changes are beginning to happen, and hopefully injured workers will receive fair UR and IMR evaluations that are being done with relevant records that show why the patient needs the requested treatment.

  6. The fix is simple, only have highly reputable doctors/providers in the MPN and trust what they say is needed for treatment to return the injured worker back to work even sooner, let doctors do the job for which they are highly train for and not paper pushers who think they know better than doctors.
    It must be hard to be a doctor in the work comp world when they are always told they are dead wrong on their diagnosis and treatment plans by non-doctors and then have to wait years to be paid for approved treatment at times, it’s shocking that doctors even want to deal with work comp.