Tuesday, March 24, 2015

Should Have Happened Earlier

The industry has taken the recent NPR/ProPublica series about workers' compensation hard.

Mark Walls of Safety National blogged a strong counterpoint. Robert Hartwig of Insurance Industry Institute published a terse challenge on the statistics. Others have lit up the various LinkedIn workers' compensation topic boards.

And the State of California's Division of Workers' Compensation has taken the series as a wake up call; perhaps some payers aren't playing nice after all...

Division spokesperson Peter Melton told WorkCompCentral reporter, Ben Miller, that a newsline it put out Thursday reminding payers and claims managers that Senate Bill 863 didn’t change their obligations to provide medical care to claimants was in response to the NPR/ProPublica investigation.
My daughter: "Look at yourself first."

The article told the story of Joel Ramirez, a warehouse supervisor in Rialto who suffered a spinal injury in 2009. Travelers paid for a home health aide for Ramirez for years, until SB 863 passed and the company allegedly cut off payments without a change in the claimant’s medical condition.

In addition to the newsline, DWC announced last week that it was auditing Travelers as a result of the story.

Other investigations have also been prompted by the series.

Retrospectively challenging old, pre-SB 863, medical awards via Utilization Review and Independent Medical Review is nothing new, folks tell WorkCompCentral.

Applicant's attorney Alan Gurvey told WorkCompCentral that he has seen the defense in many of his cases argue that SB 863 constituted a “change in circumstance” in seeking a UR/IMR combination in order to change the medical award, particularly when home health care is being provided.

Gurvey said it's simply an attempt at cost control, not an attempt to improve medical care.

“We'd had four orders after the agreement for the continuing provision of the home care and the defendant had filed a petition to terminate the agreement,” Gurvey said. “We went before the judge and the judge unequivocally said that without a change of circumstances she sees no reason why the agreement for the home health care provision should be changed. She said she would entertain penalties and attorney fees for having to try the issue when the defendant did not necessarily meet its burden to show change of circumstances.”

Last year the Workers’ Compensation Appeals Board issued a significant panel decision, Patterson v. The Oaks Farm, that said an injured worker didn’t need to go through utilization review to reinstate payments for a nurse case manager after her employer unilaterally cut off reimbursements.

Some defense people are arguing that such heavy handed enforcement is going to shy carriers away from voluntarily providing benefits.

That's nonsense in my opinion. There isn't any voluntary provision of benefits. Providing medical care is the law.

Discretion is the only option, and discretion should be meted carefully - DWC has said time and again that not everything needs to be elevated to UR and that, in accordance with case law, the claims examiner is the first line of UR and can approve or disallow any medical treatment request.

I for one am glad the NPR/ProPublica series is out and am glad the industry is up in arms about them - that means attention is getting paid to what we do, and more importantly exposing our shortcomings.

Work comp can and does great things for people in need ... most of the time. And certainly perfection is not possible. But improvement is always possible, and we as a industry should be committed to a continuous process of improvement.

Without critique, however, improvement can't be achieved. Critical review is essential to improvement. Criticism is hard to take, certainly, and the natural reaction is defensive.

The outliers on the bell curve of work comp care however, either the blatantly fraudulent claims or terribly catastrophic claims, comprise a small part of the overall experience, but make up a big chunk of the complaints. There's no reason why that has to be.

So what if NPR/ProPublica focused on disaster claims? So what if the stories are skewed? So what if the statistics used aren't representative?

If this is what it takes to bring those outliers back within the bell curve, so be it.

It's been said that negative press is better than no press at all, and I for one agree, particularly in these circumstances.

Maybe the industry doesn't like seeing itself in such negative light (the purpose of the series, by the way, wasn't to point out industry actions per se, but rather to challenge the adequacy of the laws). But sometimes one needs to look one's self in the mirror to observe the truth.

I'm heartened that the California DWC is taking action and doing its job in this instance.

Should have happened earlier.


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  2. AGREED! and thanks to all you for all you do. Getting the facts out and educting follks is what helped to breing the truth out into the light of day. Let's hope for postive change to come out of all this. Peace and thanks.

  3. Rather than acknowledge the truth, the industry seems to be responding as one would expect. Indignation and justification. In a previous article you stated that a good public shaming might change things. It will not change anything. A single successful prosecution under the RICO Act, will change everything. One can only hope....