Wednesday, October 24, 2012

What's Wrong with Comp? It's Not the System

There is no question that workers' compensation can be an emotionally charged issue for both injured workers and employers. When emotions run a claim no one wins, and the losses spread beyond the employer and employee.

Evelyn Fletcher sustained a low back injury in 2000 while she was working for Adventist Health. She underwent an unsuccessful surgery in 2004 and has been unable to work due to her pain since that time.

In the ensuing decade, several treatment disputes erupted between Fletcher, who acted as her own attorney, and Adventist, which was self-insured. The disputes were further complicated after Fletcher moved to Maryland to care for her elderly mother.

In an effort to help Fletcher live with the physical and psychological pain caused by her industrial injury and the ongoing litigation, as well as the frustrations of trying to secure treatment for her in Maryland, the Workers' Compensation Judge (WCJ) ordered that Adventist provide her with counseling and a nurse case manager.

On Adventist's petition for reconsideration the Workers' Compensation Appeals Board (WCAB) reversed.

Fletcher saw Dr. Atif Malik, a pain medicine specialist, for treatment after she moved to Maryland. She conceded that Malik failed to comply with California's reporting requirements for a treating physician and acquiesced to Adventist's demand that she select a new doctor.

Though Adventist gave her a list of five pain medicine specialists to pick from, none of the doctors would agree to treat Fletcher.

Fletcher went through several doctors, mostly acrimonious experiences. Medical reports during this period were "most unflattering" and in general not timely filed with Adventist in accordance with California law. Fletcher described the visits as a "nightmare."

Fletcher was on opioids, taking more, becoming tolerant of the medication, and developing withdrawal symptoms.

Eventually Fletcher incurred self-procured costs and sought reimbursement of $2,000 which Adventist opposed. The WCJ ordered reimbursement.

In addition, at the hearing where reimbursement was ordered, the WCJ ordered that the "unflattering" reports be excluded from the medical record that would go to the next treating physician so that the next doctor would not develop a negative influence based on the record.

"I think it would be counterproductive to send [the doctor's] report to whichever the selected physician is, and so I’m going to specifically order that they not be sent," the WCJ said.

The order was upheld by the WCAB on Adventist's petition for reconsideration.

On appeal the 3rd District Court of Appeals (3d DCA) reversed.

"That is not to say the WCAB's decision was unreasonable or unjust," the court said, but "no matter how well intentioned" the ruling may have been, the WCAB was without authority to uphold the WCJ's order compelling Adventist to pay for Fletcher's treatment and medications.

The court also determined that the WCAB was without authority to uphold the WCJ's order excising medical reports from Fletcher’s medical history.

"Despite the judge's desire to insulate the next primary treating physician from the dispute between Fletcher and [the doctor], the physician's reports contain important diagnostic assessments and a treatment plan that should remain a part of Fletcher's medical history for all succeeding medical providers to review and evaluate," the court said.

Workers' compensation is "the great compromise." It's not perfect. It isn't even just or right. It just is.

There aren't supposed to be winners and losers. Just a reallocation of capital. Sometimes allocations are de minimus. Sometimes there are cases that require great allocations - and sometimes those allocations seem either disproportionate or unreasonable.

That Fletcher remained in pro per for the entirety of this case tells me that her claim went well beyond the basic issues in workers' compensation. This claim became a cause, a reason to live. Fletcher obviously was seeking justice. The case took on a character well beyond a workers' compensation claim.

Adventist too, despite its resources and legal counsel, also took this case beyond claim status. There obviously was much tied up emotion in the case. The case also became a matter of principal for Adventist.

In my prior life as a defense attorney representing self-insureds, there were many cases where I was instructed to take a position to "make a statement" despite my advise to cut losses and close the claim. In my experience, self-insureds, because of their direct financial tie to claims, have a much more personal attachment to cases, hence much more emotional perspective.

At the upcoming National Workers' Compensation and Disability Conference in Vegas at 3 p.m. on Thursday 11/8, the panel of speakers of which I am a part will talk about "what's wrong with workers' compensation."

I'll give you a hint as to my position: There isn't anything wrong with workers' compensation. What's wrong is how people use the system - both injured workers and employer/carriers.

To read the court's decision in Adventist Heath v. WCAB (Fletcher), No. C069906, click here.

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