Work Comp Fantasy

In the second of articles that review what is driving litigation, this morning's WorkCompCentral news looks at Northern California's ongoing contentions with the Qualified Medical Examiner process.

The QME process was actually created in 2004 by SB 899, but SB 863 amended Labor Code Section 4062.2 to eliminate the need for the attorneys to try and settle on a medical evaluator before requesting a QME panel.

Not that the requirement was much of a procedural impediment. The fact is that the negotiation step was perfunctorily administered by practitioners to get to the ultimate step of requesting a QME panel.

Now, under SB 863, the parties can just ask the Division of Workers' Compensation for a panel and get a list with the names of three doctors. Each of the parties can strike one name from the list, and the last remaining doctor is the one who will see the worker and issue a report.

What seemed like a simplification of the process, though, apparently isn't, according to this morning's story.

Now litigants fight about the QME specialty.

And to make matters a bit worse, the story is that the DWC can't decide whether to be the dispute resolution authority, or delegate that task to Workers' Compensation Judges.

When the DWC decides to resolve disputes a backlog of requests occurs, delaying the litigation process, is part of the complaint of attorneys in the system. 

But when DWC "opens the floodgates" and just starts issuing panels in response to every request a Department of Industrial Relations regulation requiring that the worker obtain an appointment with the QME selected by the parties within 60 to 90 days must be met.

And that can be problematic because of the dearth of QMEs, particularly in more sparsely populated areas.

Ergo, some injured workers are unable to set an appointment within the necessary window, which requires a new panel and thus the cycle of selecting a new QME begins anew. 

In addition, there are over 16 bases upon which the parties can request changes to the composition of the panel. The parties can also fight over whether each exercised its striking power in a timely manner, whether the QME panel was appropriately requested, and whether more than one panel is necessary. 

Examining the plight of the lawyers in the system - i.e., those who make a living navigating the system's complexity - may seem like fodder; after all these folks chose to be in the system as their profession.

But the real issue is accessibility to the system.

How can anyone, whether you're an employer, a carrier, an attorney, a doctor, a broker, or anyone else that serves in this industry, say that it is a viable system if there are accessibility issues?

And there ARE accessibility issues. With each new "reform" we see increased complexity, increased barriers to entry or utilization of the system (and I use that in the broader context rather than the more narrow reference to medical treatment that the alphabet groups use it), and increased costs.

Worse are that the costs can be measured over and above monetary values - the costs in human, and business, lives are the tragic result of failed attempts to make workers' compensation do something it wasn't intended to do: save money.

There is nothing in the mandate of work comp that says it has to cost a certain amount, or that it must comply within certain financial expectations, other than what the market demands.

And what is the market? We try to compare work comp to the general health system but those comparisons are completely irrational. Workers' compensation was designed to be a give-away.

Like it or not, the work comp "bargain" was specifically negotiated at its origin to give employers protection against civil law suits and the unpredictability of huge jury damage awards.

And in conjunction work comp was to give out money to injured workers and those who provide them with services (medical and/or legal) in a reasonably predictable manner to help avoid terrible consequences of a work injury.

The disconnect is when layers are introduced to "manage" this system with expectations that are derived from other systems or assumptions that are erroneous.

In fact most people's idea of "managing" a claim is really "containment," i.e. making buckets, or containers, in which everything under a certain category or designation is placed.

The problem with containment is that it unnecessarily sweeps everything up with it, the good along with the bad.

Medical treatment, for instance, is now generally universally subject to treatment "guidelines." I put guidelines in quotes because though they are called that, in practice they are dictatorial instructions - utilization review, and now independent medical review, follow the "guidelines" in an almost rote fashion with little to no exception.

This removes physician medical discretion, and adjuster discretion. There is no active management because the decision making process has been systematized - no thinking required.

Remove thinking from claims processing removes valor and the motivation to do the right thing at the right time.

In my mind accessibility means the ability to get to the benefits of the system with little resistance after meeting minimal qualification standards.

But we have created a system now where even though minimal qualification cues are met, getting to the end result requires circuitous pilotage of antonymous rules and discretion to provide circumnavigation has been removed.

That's no way to run a business, and certainly no way to run a privatized social benefit system.