It's Not Debatable

This morning's WorkCompCentral story about the recent California Workers' Compensation Appeals Board's Significant Panel Decision in Bodam v. San Bernardino County, where the board reiterated that utilization review is invalid if it is made within the time frame allowed by the Rules of the Administrative Director but not timely communicated to the worker and treating doctor, raised this interesting observation:

"Attorneys on both sides of the bar are also voicing concerns that the procedure for making treatment decisions will now be the focus of the comp system instead of the actual provision of treatment."

And that seems to me to be an accurate analysis of the Board's recent activity - because the argument over whether a request was timely, and timely communicated, has nothing to do with actually providing treatment, and is a source of huge delay even if there is a request (and provision for) an expedited hearing and appeal.

In the meantime, the injured worker sits around, decompensating further, and the clock runs on temporary disability inflating indemnity costs.

Several commentators to the story essentially opined that a lot of litigation focus, which many said would increase in 2015 as a consequence, is going to be about who was served what, when and how.

Unfortunately that's as clear, and concise, an indictment of the work comp system in California as any, and in my mind demonstrates a long, historical trend of the system to recognize form over substance.

I was recently alerted to a post made some time ago on a forum hosted by my friend Bob Wilson's site, WorkersCompensation.com. The injured worker claims a very similar situation regarding UR that I had recently written about - inadequate supply, or failure to supply, necessary medical records (edited for clarity):

The 2015 Flowchart is even MORE about form...

"I know in my case through UR the UR reviewer is seeing cherry picked sections of my file. No AME reports are sent, because they specifically mention this. They don’t get the MRI’s, or the EMG tests that support approval because they mention it as part of the justification for the denial as 'no radiological evidence supporting need.' Well, if the carrier doesn’t send it of course there’s no evidence! My doc has sent it with his request for treatment and they STILL SAY THEY DON’T GET IT. I know for a fact they do because my doc is now copying me the entire set of docs he sends with each RFA. IC is pulling it and not sending it to the UR reviewer is all that I can conclude because I know it was sent!"  [Bold formatting original.]

I obviously don't know that in fact the file was "cherry picked." And I don't know for a fact that the statement "no radiological evidence supporting need" actually meant there were no radiological records, or conversely that the records that were reviewed did no support the treatment request.

But, the point is that the focus of the dispute gets steered away from what the treatment request is, to how that request was received and/or dealt with - i.e. form over substance.

And the conveyance and receipt of records is, essentially, a timeliness issue - if all of the records are not transmitted and/or received by either UR or IMR timely, if at all, then it is an issue for litigation before the WCAB. This would support the commentators to the story who said that 2015 will see an increase in litigation about who was served what, when and how in UR.

In 2013 defense attorney fees were over $850 million. Applicant attorney fees were about half that. I don't have the numbers for 2014 yet, but I suspect a continuation of the inflationary trend on fees (nearly 10% a year since 2011) which will put this year near a billion just for defense fees...

Litigated indemnity cases are disproportionately responsible for system expenses; about 11% of all work comp claims in California in 2013 comprised nearly 78% of all costs (2013 WCIRB data). Yet, the system drives litigation by creating disputes when there should be none.

There are only two main objectives in the delivery of workers' compensation benefits: provide medical treatment and indemnity.

That's it - very simple. Just two things need to be done: pay for the injured workers' medical care and give that worker some money to tie them over until they can take care of themselves once again.

The intent was, obviously, that physicians determine need for medical care and duration/intensity of disability. The logic is that physicians are experts - they have been schooled, trained and practiced medicine, so they know what they are talking about.

Workers' compensation was intended to be a self-executing administrative benefit delivery system. A dispute resolution process was integrated to provide a forum for the inevitable disagreements. That dispute resolution system was intended to expedite cases. That's why its administrative in its operation. It has very little to do with justice, or being fair, and very much to do with just making a decision, any decision, that moves the case towards some resolution.

But case decisions are increasingly about something other than the direct delivery of benefits. Dubon and Bodam are the most public evidence of this trend.

This coming Saturday a panel comprised of Department of Industrial Relations chief Christine Baker, SB 863 negotiators Mitch Seaman, Sean McNally, and Bill Zachry, and Norther California applicant attorney James Butler and Southern California applicant attorney Robert Rassp will take a look at SB 863 now 2 years into the law.

They will specifically be asked whether the law is accomplishing its goals (increase benefits to injured workers, save money for employers) and whether UR and IMR are actually working to direct appropriate medical care, or are just cost containment vehicles by which claims payers can deny benefits.

I expect the panel to engage in some contentious debate about these points. What I don't expect them to debate, because I don't think it's debatable, is the simple observation that the system does in fact work as designed: form over substance.

But the intent got lost in the design.