Wednesday, April 11, 2012

Reform? How About Professional Competency?

Maybe this is a little off topic, maybe not, but I'm going to rant anyhow.

One pet peeve of mine, being in the position I am in as chief executive of a specialty publication and education company, is the lack of knowledge I observe in the so called "professionals" that make a living in the workers' compensation system.

For example, yesterday my customer service staff took a phone call from an attorney's paralegal who was questioning why the California 2012 state average weekly wage (SAWW) was not published yet on WorkCompCentral.

The paralegal was relentless, insisting that her attorney was adamant that the 2012 data should have been published, that it was in effect and that he needed it NOW.

At first I was baffled - we are up to date on all SAWW data where that computational factor is used ... or so I thought. Perhaps we missed something?

Then after that brief period of self-doubt I realized that, of course we don't have the 2012 SAWW data yet because a) it has not been published and b) is not going to affect any claim except those that originate with a 2013 date of injury - an event that can not happen yet.

A quick search of the Labor Code and section 4453(a)(10) reminded me that:

Commencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year. For purposes of this paragraph, "state average weekly wage" means the average weekly wage paid by employers to employees covered by unemployment insurance as reported by the United States Department of Labor for California for the 12 months ending March 31 of the calendar year preceding the year in which the injury occurred.

My staff has been clearly briefed on not providing legal advise and they are certain to inform our customers that they are not lawyers, and can not provide legal information but can point them to the correct legal resource. So I told staff to direct the paralegal to said Labor Code section and to let her know that her attorney was wrong.

A couple of days ago my staff took a call from a different attorney who didn't know how to perform a pre-1997 permanent disability rating that involved the "subtraction method" for rating a psyche injury with apportionment.

In the name of good customer service I performed the calculations and provided the attorney with the spreadsheet I created to do the job, with the caveat that I'm not a rater, that what I did might be wrong and that he should know better because he is the one getting paid to do this work!

We provide education to physicians, namely those who wish to be certified as Qualified Medical Evaluators (QME). One of the requirements of a QME is knowing how to write a medical-legal report that incorporates all of the basic requirements of the Labor Code and Regulations.

As part of the QME training we provide, the physician is required to write and submit a sample medical report. The quality of these sample reports is frighteningly poor. I don't believe some of the garbage I read - from plain and simple basic omissions of required report elements to nearly incomprehensible gibberish. No wonder there is a problem with impairment ratings and permanent disability calculations - those who are mandated with the job of determining these basic claim elements don't know how to do this work competently or proficiently!

We take several calls about what I consider basic workers' compensation knowledge issues every single day. Calls from self-proclaimed "professionals" who are getting paid to know the system, know the law, know the regulations and perform services for others as experts even thought it is quite obvious, at least to this one observer, that there is no expertise, no knowledge, no professionalism. These calls come from physicians, attorneys, secretaries, claims adjusters, medical billers and so on.

Folks, the SAWW issue is BASIC workers' compensation legal knowledge. This is an issue covered in Work Comp 101. While a pre-1997 claim is rare now, rating permanent disability is a basic skill! Even if it involves the "subtraction method" of dealing with apportionment in a psyche claim. Writing a rateable and legally compliant medical report is not rocket science - hell I wouldn't even describe it as the practice of medicine!

Yet, here are attorneys, physicians and others, people that are either billing an insurance company a couple hundred dollars an hour or getting a percentage of some injured worker's settlement to know what the law is, and don't.

In my opinion this is inexcusable. Yeah, workers' compensation is technical and complex, especially the large bureaucratic system we have in California. But if you're employed in this industry it is your obligation to know what the heck you are doing!

We sell education so of course my opinion is biased, but I am constantly amazed at how little commitment there is in our industry to be truly educated. We have a very large population who is either very lazy, very cheap, or both.

There are a few people in this industry who hold a very high standard for themselves in the professional ranks. You know who they are. They are the ones that are always showing up for seminars, always engaged in the news of the industry, always trying to understand the issues and the policy requirements behind the law and regulations.

They are the minority. The majority, in my experience, have just enough knowledge to set sail down a tranquil, smooth river, but are woefully unprepared to tackle the roaring rapids that eventually are encountered even in day to day claims.

Most states have some requirements for continuing education for claims folks, attorneys, physicians, etc. But they are not adequately enforced so folks that are claiming to be continuously educated really aren't.

While various states in the union discuss reform, it is the obligation of those who make a living in the system to know what they are doing, know what they are talking about, know the law and the regulations.

Enough of my rant. If you're reading this you are probably one of the minority so this rant doesn't really apply to you.

So I urge you dear reader, go and motivate someone of the majority to become one of the minority by getting current education in workers' compensation.


  1. True...Saww has not been published yet... But it does affect injuries that are over two years old and lifetime pensions. i.e. A 2002 claim that is ongoing would be affected by the 2012 saww in an increase in TTD to $1010.00 max per week vs $987.00. So its not only a 2013 claim that is affected. I dont know when they release the SAWW.

  2. October usually for the official announcement. And per the code the application of the increase won't occur until 2013 - i.e. the 2012 SAWW is not applicable to indemnity to be paid until 1/01/2013. LC 4659(c). BTW I just checked the DOLS website and the data has not yet been published.

    1. Thanks David. As usual you know your business!

  3. Announced by the DWC 6/14/2012:

    The minimum and maximum temporary total disability (TTD) rates for 2013 will increase on Jan. 1, 2013. The minimum TTD rate will increase to $160.00 and the maximum TTD rate will increase to $1,066.72 per week.
    Labor Code section 4453(a)(10) requires the rate for TTD be increased by an amount equal to the percentage increase in the state average weekly wage (SAWW) as compared to the prior year. The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2012 the SAWW increased from $1,003.55 to $1,059.38.
    Under Labor Code section 4659(c), workers with dates of injury on or after Jan. 1, 2003 who are receiving life pensions (LP) or permanent total disability (PTD) benefits are also entitled to have their weekly LP or PTD rate adjusted based on the SAWW.
    The SAWW may be verified at the U.S. Department of Labor Web site. For the 12 months preceding March 31, 2012: