Wednesday, September 23, 2015

Profit Before People

I wrote yesterday about reality and perception, yet we, the industry, continue to be our own worst enemies creating negative realities to match the negative perceptions.

The industry got a bee in its collective bonnet when ProPublica and OSHA issued reports and stories with anecdotes about how the workers' compensation system failed injured workers.

Countless injured workers who have dared to speak out publicly via forums, blogs, social media, television, radio and other media outlets, are castigated and marginalized by the industry as wacky complainers who don't have a life so they focus on claims.
Poor Bowser...

Industry insiders are afraid to blow the whistle for fear of retribution, or worse.

Attorneys representing injured workers are vilified for taking advantage of the system's alleged "no fault" design to erode the protections afforded employers.

Our own governmental agencies tout statistics reflecting decreased claim frequency and severity, lowered medical costs, but improved outcomes, but anecdotes keep appearing challenging the rosy stats.

But, as we see in Kelly Tinsley vs. Vertis Communications; ACE USA/ESIS, the system is NOT balanced, is greatly skewed against injured workers and without representation people would die, victims of The System.

Tinsley had an admitted industrial injury to his neck, spine, neurogenic bowel, neurogenic bladder, internal organs and psyche employer as a machinist arising out of an incomplete C6 spinal cord injury on January 10, 2010.

After being hospitalized, Tinsley was released home, and started having active suicidal ideations. He began treatment with Dr. David Patterson through the Casa Colina Transitional Living Center Residential Program Post-Acute Physical Rehabilitation with One on One Supervision (whew!)

He attempted suicide on 8/31/2011 by carbon monoxide poisoning. When he failed to show for an appointment a friend checked on him and found him lying on the garage floor. He was airlifted to a hospital, and after three days of inpatient care was released home and thereafter admitted back to Casa Colina on 9/2/2011.

Eventually Tinsley was seen by a Panel Qualified Medical Examiner who opined that Tinsley's active suicidal ideation was real, was a problem, and that he should not be released back to the care of a family member because the suicide hazards could not be managed properly.

The claims adjuster requested that the Requests for Authorization for Casa Colina be submitted one month at a time. Dr. Patterson complied.

According to the Workers' Compensation Judge's report on reconsideration, "There was no conflict or disagreement between the applicant's primary treating physician, Dr. David Patterson and the Panel QME, Dr. Greils as to the reasonableness of the treatment prescribed and provided."

For whatever reason, the claims adjuster (who had been on the case from the outset according to the WCAB opinion) decided to submit the 9/28/2014 RFA to utilization review, without any of Dr. Greil's medical reports, his depositions, or the deposition of Dr. Patterson.

As you might guess, UR denied the treatment, and the claims adjuster stopped paying Casa Colina.

"The court found the failure of ESIS to send the relevant medical reports and depositions to the doctor performing the Utilization Review to be troubling. There are few cases where the issues of life and death are truly before us. This is one of those rare cases. In the 10/7/2014 Utilization Review, Dr. O'Brien refers to the Medical Treatment Utilization Schedule [MTUS] for neck and upper back complaints and treatment for chronic pain. Dr. O'Brien does not address the fact that the basis for the recommended one on one care is due to the opinion of his treating and evaluating physicians that he will kill himself if this care is not provided.

"Mr. Tinsley therefore continues to be a resident at Casa Colina although it is represented it was about to discharge him due to non-payment of his treatment provided since October 2014. No doctor has been able to find a better alternative..."

When ESIS stopped payting Casa Colina, treatment was paid through Tinsley's own funds.

The issue that really brought this case to the WCJ was not the egregious behavior of the claims adjuster and ESIS, but that they couldn't even follow The Law with respect to service and timeliness.

Listen, the law and regulations are SO stacked in favor of the payer community right now, a failure in procedure is inexcusable. If you can't get it right, then don't try...

"The WCJ correctly found that the UR was invalid because defendant did not show that it was timely communicated to Dr. Patterson...," the Board wrote. "The WCJ also properly relied upon the holding in Dubon II to award the treatment at issue because it s reasonable and supported by substantial medical evidence."

The failure in compassion and humanity in this case is beyond inexcusable and, frankly, nearly criminal.

The Board chastised ESIS and the claims adjuster for not even being able to follow procedures (procedures that were fomented mostly by the defense community in recent reforms) and then still trying to claim a defense against DOING THE RIGHT THING.
In a separate concurrence, Commissioner Sweeney hit upon the real issue: "However, it is important to note that there is no evidence in the record of any change in applicant's condition or circumstance that reasonably supports the initiation of UR to evaluate the ongoing treatment as (sic) Casa Colina that had been routinely approved and successfully provided for several years."

And, had the case been Commisioner Sweeney's to adjudge herself, she would have thrown the proverbial book at the defendants, "In this case, there is no evidence that defendant made any effort to reach an agreement on a care plan with applicant's treating physician before it terminated payments to Casa Colina. The absence of an agreed care plan to address the consequences of discontinuing inpatient care at Casa Colina as part of the UR could be considered a neglect or refusal to provide reasonable medical treatment [citations]."

Perception derived from reality: too often it seems the claims community would rather an injured worker DIE instead of paying for a lifetime of treatment because it is cheaper - the mighty dollar is, indeed, more important than human life in Corporate America.

The only logical conclusion I can draw is that the payer would rather Tinsley kill himself instead of having to deal with this claim, and its expense (reportedly $40,000 per month), for the rest of his, frankly, miserable life.

Does work comp have a bad image? You bet. This case demonstrates why. And frankly that image is deserved when this kind of behavior occurs.

I hope applicant's attorney takes the defendants to the cleaners on this case, and moreover, I hope that the emasculated Audit Unit imposes the harshest of the now castrated penalties on the payer.

Not that it will teach anyone a lesson.

You know why this world needs lawyers? Because there are still way too many who put profit before people.

My team at WorkCompCentral work really hard to highlight the good in workers' compensation.

Cases like this make communicating that message difficult.

A copy of the Opinion and Order Denying Defendant's Petition for Reconsideration is here.


Post script from the applicant's attorney, Keith More:

Awesome - thank you for  understanding the plight of the injured worker. Timeliness,  REALLY !!!  That is the only way I could get this to the Judge. Not the simple fact that the Labor Code and Rules and Regs REQUIRES the appropriate medical records be reviewed by a UR physician within the same specialty or area of practice. This is why Dubon II must be overturned. The WCAB found it "troubling" that the PQME report was not submitted for review or why the 2 volumes of the PQME's depositions were not sent by the adjuster for review, What about the FACT that the UR doctor chosen by Ace/Esis this time, was an internist who does not have an outside office and does not see patients for treatment purposes. Mr. Tinsley did not have an internal issue. Why and how could anyone in compliance with the law choose an INTERNIST for this review. It's not like the adjuster had not seen this request 28 days before. It's not like the adjuster did not see the same request 28 days before that. None of the other requests had been sent to an INTERNIST. 

The request for medical care was not for chronic pain (the basis for the denial). Troubling is the best they, the WCAB could do since they overturned Dubon I. It's not troubling it's alarming. It's abusive. It's punitive. This system is called "Worker's Compensation" not "Insurance Profits"! Ace/Esis through its adjuster Cheryl Brownlee who we personally served to appear at trial has already told Casa Colina they will appeal the Decision. 

Why not? Well, the WCAB while using strong language failed to issue sanctions on its own for the "troubling" behavior. "Every life is worth saving", a brave firefighter said after 9/11. Why not Kelly Tinsley, a 27 year dedicated employee of Vertis who was severely injured on the job.  

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