Monday, April 25, 2016

Just Bad Law

There's only so much abuse that people will tolerate. Then, after too many people take too much advantage of a situation, hammers are brought out to not just quell the abuse, but to kill it.

Thirteen years ago the chiropractic community had too many unreasonable people taking advantage of workers' compensation liberality. That abuse had been going on for twenty years. It frankly wasn't uncommon to see workers' comp patients getting chiropractic adjustment, consultation, naturopathy and all sorts of other "treatments" for years on end on a weekly basis - treatment protocol that went way beyond any measure of reasonableness.

Not all chiropractors were engaging in such nonsense, of course. Likely it was just a minority that were out of control. But because neither the professional association that governed chiropractic care, nor the professionals themselves, could seem to supervise that group of carrion, an insurance-charged legislature came along and implemented an artificial limitation on chiropractic and physical therapy care.

In 2003, then California Gov. Gray Davis signed into law SB 228 limiting workers to 24 chiropractic and physical therapy visits per injury unless a carrier authorized additional treatment.

Other states also reacted - Texas and Florida to name a couple. The chiropractic professional community simply could not control members whose primary mission was easy money...

I heard tale after tale of chiropractors shutting their doors after these reforms. Some just scaled down their businesses. Others moved on to other pastures.

In the meantime the frequency for back surgeries escalated and the subsequent opiate crisis is well documented.

The lesson - abuse a system too much for too long, and then watch the door slam shut. Worse, the reputation, credibility and reliability of members who were not part of the billing feast were also cast into aspersion. And even worse yet, the ultimate consumer of workers' compensation goods and services, the injured worker, had even fewer options for care and treatment.

Cris Forsyth, government affairs director for the California Chiropractic Association, told WorkCompCentral that chiropractors have long been pariahs in California’s workers’ compensation industry - and there's good historical reason: this is a group of professionals that were particularly and unreasonably abusive, medical guidelines be damned.

Chiropractors can't be completely blamed for SB 228. The trial level courts shared the responsibility. Judges routinely were granting bills and lien claims of chiropractors over the objections of payers, despite treatment impotence and care that went against medical science.

Frankly, California's workers' compensation judges condoned bad behavior.

So we get artificial limitations that we should not otherwise have.

Now the chiropractors want those limitations lifted and have proposed legislation to do so, but in the wrong way.

Assembly Bill 2407, by Assemblyman Rocky Chavez, R-Oceanside, would amend the Labor Code to require the physician treating a worker with a back injury to perform an assessment of the “level of risk for chronic back pain” and determine whether that worker meets the criteria for a surgical consultation. Surgery could be recommended, but only in a limited number of conditions and if there is sufficient evidence to indicate surgery is more effective than other treatment options.

Alternative “covered treatments” that could be deemed appropriate after the assessment under AB 2407 include:
  • Acupuncture.
  • Chiropractic manipulation.
  • Cognitive behavioral therapy.
  • Medications, including opiates for short-term prescriptions only.
  • Office visits.
  • Osteopathic manipulation.
  • Physical therapy.
  • Occupational therapy.
That's all well and good, but the proposed bill goes beyond amending Labor Code section 4600 in the above particulars by including a slight, though despicable, alteration to the "reasonable" standard of medical care and employer liability.

The existing standard is, "[i]n the case of his or her neglect or refusal reasonably to" provide medical care, then "the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment."

The proposed standard would be, "If the employer neglects or reasonably refuses to provide that treatment...".

Astute legal interpreters should pick up on that instantly: "reasonably refuses...".

So, even if the payer is in the right, by following the Medical Treatment Utilization Schedule or any other treatment guideline, scientific evidence, or other protocol that refutes the services supplied, the payer is STILL liable, because it "reasonably refuses" to pay for the services or goods.

Nice try guys. I'm certain that most don't object to alternative modes of treatment that will provide the best path for return to health of the worker who has a back injury.

But inputting a back door for required payment of services or goods that have no scientific or medical validity is dirty pool.

Listen, we don't really need any artificial limitation on chiropractic, or any other care now. We have guidelines, utilization review and independent medical review. AB 2407 just needs to remove the artificial limitations imposed back in 2003.

As it stands, I'm calling BS on AB 2407. This is just bad law.

Twelve years of experience on the receiving end of denigration, and they still don't learn...


  1. So is it reasonable to say that a lot of the State work comp laws, implemented back in the early 2000's, State by State, by ALEC boiler plated legislation, that created all the take away's from the injured workers grand bargain, need to be removed back to the way they were? To a time before all these BAD "cost containment" Work Comp laws came to be. Is it the "Bad work comp laws" implemented back in the early 2000's that are eroding the laborers grand bargain away today? Just asking.

  2. "We have guidelines, utilization review and independent medical review."

    Thanks for elevating these issues, David.

    Today, chiropractors are often regularly cheated out of agreed upon payments, without recourse.

    PTPs are often threatened with termination of MPN referrals if they try too hard to get medical care for their patients.

    Apparently there's even a form letter to convey the threats. That sounds like extortion, doesn't it? The doctor who blogs in Northern CA mentioned it last year. Medical office staff complain about the practice also.

    There is no law enforcement to protect injured workers and there is hyper-corruption in that battle field. The MPN corruption needs further investigation as well.

    Where fraud exists, it must be exposed and prosecuted now.

    WorkComp is systematic civil rights and human rights violations, clear and simple. 14th Amendment comes to mind, and Congress would be well advised to initiate a domestic torture report, this year.

    No sane Injured Worker who has been denied medical care and benefits for years would willingly submit to any sort of surgery by any "Angel of Death" WorkComp Doctor.

    Many, as recent articles indicate, prefer opioid dependencies to repeated failed surgeries/butchery. Same challenges apparently in VA.

    REMEMBER CHARLES ROMANO, RIP. Same things are still happening in California and beyond.

    Until the corruption crises has DOJ/FBI/National Guard intervention, there is but little hope for America's Injured Workers/Taxpayers.

    #Blog4Freedom, LIFE, LIBERTY and JUSTICE FOR ALL

  3. I appreciate the well informed article. As a DC I think though that our state association is not trying to do anything nefarious with this new proposal, they are just working to get us back into the system on a level playing field. That being said I think your article is on the whole correct. However why was it only PT and DC that have artificial limits? Were we the only ones feasting?
    Was there a health field back in 2003 that was all up and up and no feast? Anyways, agreed re MTUS and all the other limits we have are enough to remove the cap. Some of our bad actors will still try and get 200 visits. I think they just wont get paid for them.

  4. Most of the fraud chirpractors got paid by the insurers. Some worked for overseas nut groups who were using money for guns & land control here in the states. Many of us wen to such a one , who made my physical problems worse. But they're certainly not the only part of the "malpractice crew" that are downright phonies who do get paid to do more harm on the injured, helping make sure we never go to work again. That is part of the corporate terrorism. FYI, THERE IS NO SUCH THING AS GAG ORDERS IN COMP. TORT CASES, YES, WC NO.

  5. The reality is that artificial limitations very often (as in most of the time) are rigidly adhered to, to the detriment of IW's even though functional benefit has been documented and cost savings compared to other interventions are realized.

    I agree. Get rid of the artificial limitations. Legislators should do just that.

    And, while we're at it, get rid of MPN's as well. If MTUS is presumed correct, does it really matter if the physician making the
    treatment recommendation is in an MPN?

    There are other ways to discipline out of control providers. Way too often MPN doctors do not look out for the best interest of
    their IW patients because they are afraid (for financial reasons) of
    being terminated by the MPN. There is no Labor Code or Regulation that protects physicians in MPNs who reasonably
    advocate for appropriate medical care for their IW patients.

    Either create laws that protect physicians in MPNs or eliminate
    MPNs altogether.