A useless statutory mandate is one that has no enforcement mechanism. The word "shall" is typical in the useless mandate structure.
The California legislature likes the word "shall," particularly in workers' compensation. It sounds tough. Too often, however, that tough-guy emperor has no clothes...
One of the most egregious examples of a useless statutory mandate was one imposed on the Division of Workers' Compensation by SB 899 to update the Permanent Disability Rating Schedule at least every five years.
Yeah, right. "Make me," was the tone from DWC, because there was no enforcement mechanism - no fine, no funding constriction, not even a slap on the wrist. The mandate was pointless, and ergo, completely ignored. The PDRS was never updated and the mandate provision was removed by the legislature in the next reform round.
SB 863 also introduced a pointless mandate - that Independent Medical Examiner firm Maximus issue decisions within 30 days after receiving a request for review and supporting documentation.
The mandate is so vague, so utterly incomplete, that there is an even split within the one-commissioner-down Workers' Compensation Appeals Board as to what it means.
Commissioners Marguerite Sweeney and Frank Brass, along with Chairwoman Ronnie Caplane, have taken the position that "shall" denotes a mandatory requirement. They say that a failure by Maximus to issue an IMR decision within 30 days means that the WCAB gets to make the decision.
But Commissioners Kathy Zalewski, Deidra Lowe and Jose Razo opine that the absence of an enforcement mechanism for the 30-day time limit is an indication that the deadline is "directory" or "discretionary," and that there is nothing in the Labor Code that makes an IMR decision invalid if its not issued within 30 days, and there is no statute that allows medical treatment disputes to be determined by the WCAB if Maximus misses the deadline.
Now there are two different appellate jurisdictions taking up the issue.
The Third District Court of Appeals had already taken up the case of Southard v. Hallmark Greeting Cards, and the Second District just announced it has granted review in California Highway Patrol v. WCAB (Margaris).
The Southard matter has been pending at the 3rd DCA for almost five months, and the court has yet to set a date for oral argument.
The 2nd DCA is moving more quickly and has ordered Margaris and her attorney to file responses to amicus briefs by Thursday. It has also directed the WCAB to respond to the State Fund writ petition by April 20, and it has set oral argument for June 13.
There's debate whether this issue is now moot since Maximus is getting better at issuing decisions timely - but that's not the point.
Forget about whether failure to adhere to the law results in a default back to the WCAB making a medical decision.
The real issue is that regardless of the law, mandates needs to be backed by an enforcement mechanism.
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”
(Through the Looking Glass, Chapter 6)
The California legislature likes the word "shall," particularly in workers' compensation. It sounds tough. Too often, however, that tough-guy emperor has no clothes...
One of the most egregious examples of a useless statutory mandate was one imposed on the Division of Workers' Compensation by SB 899 to update the Permanent Disability Rating Schedule at least every five years.
Yeah, right. "Make me," was the tone from DWC, because there was no enforcement mechanism - no fine, no funding constriction, not even a slap on the wrist. The mandate was pointless, and ergo, completely ignored. The PDRS was never updated and the mandate provision was removed by the legislature in the next reform round.
SB 863 also introduced a pointless mandate - that Independent Medical Examiner firm Maximus issue decisions within 30 days after receiving a request for review and supporting documentation.
The mandate is so vague, so utterly incomplete, that there is an even split within the one-commissioner-down Workers' Compensation Appeals Board as to what it means.
Commissioners Marguerite Sweeney and Frank Brass, along with Chairwoman Ronnie Caplane, have taken the position that "shall" denotes a mandatory requirement. They say that a failure by Maximus to issue an IMR decision within 30 days means that the WCAB gets to make the decision.
But Commissioners Kathy Zalewski, Deidra Lowe and Jose Razo opine that the absence of an enforcement mechanism for the 30-day time limit is an indication that the deadline is "directory" or "discretionary," and that there is nothing in the Labor Code that makes an IMR decision invalid if its not issued within 30 days, and there is no statute that allows medical treatment disputes to be determined by the WCAB if Maximus misses the deadline.
Now there are two different appellate jurisdictions taking up the issue.
The Third District Court of Appeals had already taken up the case of Southard v. Hallmark Greeting Cards, and the Second District just announced it has granted review in California Highway Patrol v. WCAB (Margaris).
The Southard matter has been pending at the 3rd DCA for almost five months, and the court has yet to set a date for oral argument.
The 2nd DCA is moving more quickly and has ordered Margaris and her attorney to file responses to amicus briefs by Thursday. It has also directed the WCAB to respond to the State Fund writ petition by April 20, and it has set oral argument for June 13.
There's debate whether this issue is now moot since Maximus is getting better at issuing decisions timely - but that's not the point.
Forget about whether failure to adhere to the law results in a default back to the WCAB making a medical decision.
The real issue is that regardless of the law, mandates needs to be backed by an enforcement mechanism.
Anything less and it's not a mandate - maybe Commissioners Zalewski, Lowe and Razo are right...
*********
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”
(Through the Looking Glass, Chapter 6)
Pffffft INDEED! 'GO ASK ALICE. WE THINK SHE'LL KNOW.'
ReplyDeleteI received an inquiry from an investigative reporter in the UK about Maximus..... in their apparent efforts to protect injured people there.
A story like this makes me wonder, again, what sort of annual income the commissioners are raking in, and with what perks. I have yet to see them do anything on behalf of injured workers, but I see plenty they do on behalf of the 'industry.' How are they appointed and more importantly, how are they removed?
Poll any unrepresented injured workers on what it's like to deal with Maximus, if the attorneys won't speak up.
FOLLOW THE MONEY, ALWAYS FOLLOW THE MONEY!
Each post I see in 2016 leads me to refer back to ProPublica/NPR summary: INSULT TO INJURY! [Time for] The Demolition of Workers Compensation. If Congress is serious about sending in help, perhaps the National Guard must be sent in to protect injured workers, or at least to attend the upcoming secret national discussion allegedly schedule for May. XOXO
I am a recently retired claims adjuster and investigator. I am convinced to this day that the IMR system is completely illegal and worthless. But, both you and David are barking up the wrong tree here. The real culprit in the demolition of this system is the DWC through Christine Baker and Destie Overpack. For example, say a request for PT is denied through UR. The unrepresented claimant usually not incredibly literate and sometimes unable to read or write in English, has the responsibility of appealing the denial. However, it then falls to the doctor to do the appeal. Well, most doctors do not know how to do the appeal and a great many of them actually fail to do so. I cannot tell you how many times a claimant called me saying well why was something denied-my doctor appealed it. And I have the distinct pleasure of telling them the doctor failed to do so. Then a week later, we get the Destie Overpack letter that screws the injured worker by saying they cannot consider the appeal because the doctor did not do something. The claimant has nowhere to go. Well some say go to the I and A officer. Well, they are going to do nothing because its a medical appeal. The DWC has totally abrogated its role to effective help the injured employee navigate the system and protect their interests. The WC system will never change until the needs of the worker have just as much right as the employer. And I am convinced that the only way to provide that is for a constitutional amendment providing for an independent authority that will advocate, advise and represent unrepresented workers at the WCAB level and a complete elimination of the IMR except for such procedures that are not a part of accepted medical care.
ReplyDeleteThank you Randy, for telling it like it is!
ReplyDeleteMost industry peeps would suggest your comment is pure "hyperbole."
Injured Workers would appreciate the discussion you have incited!
Others have been known to wonder out loud, "Who owns Christine Baker and how much are the WCAB commissioners paid, including annual perks and parties?"
Follow the money. Always follow the money.
When doctors are paid thousands of dollars for flawed IME/AME/QME Reports to deny medical care… actions apparently Supported by Sacramento at many levels, we have a statewide crisis that serves only to maim and kill injured workers for the profits of the few.
Literacy levels are not the issue. The PTP's are quite literate and fail to properly appeal repeatedly, or they risk financial harm of losing their referrals of new cash cows aka "injured workers."
These are truly matters for the FBI aiding and assisting the DOJ because even the millions allocated to the district attorney's seems to be insufficient to protect citizens from medical legal fraud.
The October 2015 letter signed by 10 congressional representatives offers enforcement support to protect Injured Workers and taxpayers. Demolition of Worker's Compensation or at least a receivership type intervention May be the only solution.
"WE ARE THE MEDIA NOW". Write on!