Vetoes and The Bargain

Bowzer knows.

The Grand Bargain - the courts have told us many times that workers' compensation is a legislative and regulatory matter, and that they will abide by what the legislature desires.

But the Grand Bargain is also politics exemplar of the circuitous manner in which a part of the bargain is surreptitiously and detrimentally altered against one party or the other.

In the case of California's AB 1542, (Mathis and Cooley), politics has stuck it to injured workers with brain injuries.

AB 1542 was a bill that passed through the legislative branch with near unanimity (note it was dually sponsored by a Republican AND a Democrat - how often do you see such bilateral agreement?) to Governor Brown's desk. The bill was fostered in response to the Division of Workers' Compensation's proposed (and now permanent) elimination of the specialty of neuropsychology as a choice in the Qualified Medical Examiner process.

The official regulatory reason to get rid of neuropsychology as a QME panel choice was the category was a mistake 20 years ago and should never have been an option, and was missed when the QME process was visited several years ago. Now that the QME selection process has being automated, effective October 1, which required regulatory action to implement, the administration decided it's a good opportunity to clean this up.

The Department of Industrial Relations says its rules provide that QMEs can only be specialties recognized by a state medical board, and since neuropsychology isn't recognized by a California medical board, namely the California Psychology Board, it doesn't meet DIR criteria.

Brown's veto message follows the Administration's party line.

"This bill undermines the Division of Workers' Compensation's authority to apply consistent standards when it determines eligible medical specialties for the Qualified Medical Evaluator panel," Brown's veto message says. "The Division is not in the position to determine the validity of a physician's qualifications. That power resides with the physician's licensing board. If the Board of Psychology believes there is value in recognizing neuropsychology as a subspecialty, it should do so."

Of course, I call Bull on this, as I have in the past.

The CPB defers to the national board for specialization, and neuropsychology is so recognized, and in fact was the first specialty in psychology to achieve that status.

In fact, neuropsychology is endorsed by the American Academy of Neurology as not only a viable specialty for the evaluation of cognition in brain injury cases, but one of the only specialties for such.

Not only is the specialty nationally recognized, and that recognition is, by delegation, recognized by a California board (and probably more importantly, the medical profession in general), but the Division can call it's own rules, and make an exception to it's "standard." That exception has resided for 20 years.

In addition, Brown says the Division apparently doesn't have the expertise "to determine the validity of a physician's qualifications." Bullshit. Why is there an Executive Medical Director position within the DWC? And if the DWC has no expertise, then how can the Division routinely test, qualify, and scrutinize (and in fact has disciplinary authority) medical professionals that are in the QME system?

So what's the real reason? Why now? Why neuropsychology? Why the urgency? And what, if any, is the detrimental impact to the DWC?

In other words, why does DIR/DWC really care?

Brad Wixen, an attorney who specializes in the cross-examination of medical professionals, offered this explanation:

"They (the Administration) are afraid that applicants attorneys will use neuropsyche as a loophole to avoid the restrictions against psychiatric injuries that are currently written into the law. Surely some attorneys will try to make the case for neurocognitive on too many cases. But that is what Judges and laws are for."

That may be. But it is too simplistic. If applicant attorneys were routinely abusing loopholes and circumventing the psyche prohibitions by selecting neuropsychology for QME work (which the defense could oppose, by the way), then this would have surfaced as a problem long ago.

Nope - politics is much more sinister than something with that easy an explanation. There's another reason, something that is much deeper, much more politically connected, involving much more money and power.

Maybe I'm "out there." Perhaps my cynicism is way too obtuse, or my imagination too far afield from reality...

There are three football teams in California. The NFL wants a fourth to satisfy the demand. Traumatic brain injury leading to dementia and Alzheimers has been scientifically and medically correlated and those diseases are very, very expensive over the lifetime of the sufferer...

Los Angeles will finally get its team...

I got a laugh from the audience at a recent panel when I observed, "workers' compensation is a political construct that obfuscates medical science in order to achieve a financial goal."

It's not a laughing matter.

This is one current example of how the Grand Bargain gets altered.