Trust in governing comes in many different forms, but it is based upon the ability to rely upon the information that is provided by one's government, and when government is less than forthright to its constituents then one must question whether government is actually operating in the best interests of its people.
I was copied in an email string between Oakland workers' compensation attorney Julius Young (who also has a blog at http://www.workerscompzone.com/) and Department of Industrial Relations Director Christine Baker, where an issue as to the existence of sensitive and controversial memorandum concerning the constitutionality of the proposed Independent Medical Review system was raised.
Baker denied the existence of any such memorandum.
WorkCompCentral came into possession of such memorandum yesterday and published it today.
Here is the entire email string between Young and Baker:
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On Aug 13, 2012, at 4:59 PM, Julius Young wrote:
I know you are quite busy whether everything going on but would like to pose a question to you that Rosa Moran was not able to answer in the meeting she attended today with a small group of East Bay applicant attorneys ( a group or very reasonable attorneys that I recall offering as a resource on these issues to both you and Angie).
Re the proposal for IMR which has no judicial review and can not be overridden by a face to face QME, it has come to my attention that the DWC or CHSWC obtained an outside opinion/consultation from a law professor at UC Hastings on the constitutionality of/due process issues concerning IMR. I think that it would be helpful to the comp community generally and legislative staffs to get that Hastings law professor analysis document.
I am copying David DePaolo at Workcompcentral and Marc Lifsher at LA Times who follows these workers comp bill issues, since I think the UC Hastings analysis may be of interest as this bill is debated.
Can you have someone forward that to one of us?
By the way, I had asked Lach Taylor whether CHSWC has studies on how IMR has worked out for other state such as Texas and others. Lach had said he was looking for that information but I did not hear after re-inquiring.
Can DIR provide that to someone in the comp community. Is it possible to share those with the comp community so these proposals can be better evaluated?
If there is someone else who needs to be asked on these issues, pls let us know
On Aug 13, 2012, at 5:01 PM, Christine Baker wrote:
We did not get an opinion from Hastings or any one else. I believe the employers did. I don't have that.
On Aug 13, 2012, at 5:50 PM, Julius Young wrote:
Can you tell us all who could provide a copy of that Hastings memo. It is hard to think CHSWC was not given a copy of that but who can provide that? Clearly that is something you would want to see in your oversight role.
On Aug 13, 2012, at 5:54 PM, Christine Baker wrote:
I had not heard of this analysis until you told me. Who requested it?
On Aug 13, 2012, at 6:33 PM, Julius Young wrote:
I will look into this Hastings memo but assume you will try to get a copy as well. On the other item It would be great if CHSWC will provide the comp community access to information gleaned on IMR in other states and how that worked out. It would be a good CHSWC study item.
On August 13, 2012, at 6:40 PM, Christine Baker wrote:
I believe the medical study is posted. Imr is discussed there. I am shocked that you think that maintaining status quo is better than pouring 700 million new dollars into benefits and redirecting the dollars from certain add ons and fecs for an additional billion.
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A memorandum prepared by Daniel R. Sovocool, an attorney with Nixon Peabody in San Francisco, provides an analysis of the constitutionality of proposed Labor Code Section 4610.6. It is dated August 6, 2012 and addressed to "Client."
Sovocool says that limiting review of IMR decisions to a showing of fraud, bias or conflict of interest “may create due process concerns.”
Article IX, Section 4, of the California Constitution requires that all decisions of a tribunal, such as an industrial accident commission, must be subject to review by the appellate courts of the state, Sovocool explained. The Legislature is authorized to limit review of an IMR decision to very narrow grounds, but Sovocool said there are still potential problems with the proposal.
“Of concern, however, is that if an independent medical reviewer makes a factual error, even a glaring error, there appears to be no process for that error to be reviewed, much less overturned,” Sovocool writes. “There is no right to a hearing on that basis. Coupled with the absence of any examination, and the absence of any interaction between the injured worker seeking care and the reviewer (all decisions are made based on medical records and reports only), we think this is a significant issue, and may give rise to due process arguments.”
Is this the sort of opinion that could derail the proposed reform? Perhaps. (Remember DIR unabashedly publicly issued support for the proposed reform on August 16).
Did the DIR have this when Baker denied that DIR had heard of it when questioned by Young? I don't know.
But I think there's enough here to question the reliability of information being provided by our government.
By the way, an internal DIR memo, also published by WorkCompCentral today, was generated 8/18/2012 - 5 days after the exchange between Young and Baker and 2 days after DIR's press release supporting the proposed reform. It also questioned the constitutionality (albeit in less direct terms) of the IMR process.