The Future Must Wait for The Experience

There were two comments yesterday at the Los Angeles venue of the California Division of Workers' Compensation 20th Annual Educational Conference that pointed out, to me, that most people forget that "The Law" is of triangular construction, and for very good reason.

The first comment was made by Department of Industrial Relations Chief Counsel Katherine Zalewski who noted that the negotiators of SB 863 struggled with the definition of "catastrophic injury" but every time they came up with something they thought could work someone else would come up with a fact scenario that would defeat the definition.

Ultimately the bill authors decided that they would not statutorily define "catastrophic injury" and it would be up to the courts to decide what that term meant.

The other comment was made by an attendee who said that, while they thought the conference was very good, they were hoping to get more specific tutelage - they were looking for more detail on how SB 863 and its implementing regulations are supposed to work.

Practitioners in the workers' compensation system want all the answers in order to do their jobs as well as can be done - we are very used to having specific guidance on nearly every little detail that governs the claims process.

But we can't always know how to handle everything all of the time because fact patterns are different from one case to the next.

And not just the facts of injury, AOE/COE, body parts, disability, treatment, etc., but the personality, the sophistication, the lives of the players all contribute to the decision making process that ultimately results in the life-path of a claim.

This is the purview of the courts.

The reason there are several levels of judicial review, with written opinions on how the law has been interpreted and applied to a particular fact pattern, is to establish the law that manages similar fact patterns.

This is a tradition that was handed down centuries ago from the roots of British law to the American colonies - the concept of "case law."

The third leg of "The Law."

Just as the future can not be predicted, neither can the application of a statute or regulation take into account the myriad of options that human behavior can conjure. It is impossible to predict how any individual person's situation may fit within the confines of a statute or regulation.

We're not that intelligent ... yet.

We all crave certainty. We want to know that if we do something one way, the result will be predictable. Especially someone like me who is highly regimented and obsessive - I particularly like to know that when I press a certain button I know what will happen.

But the law doesn't work that way. The law, at times, is intentionally vague like the definition of "catastrophic injury."

Because the variables are too great, and the imagination of a few cannot compete with the reality of the many.

Which is why, in part, much of the economic and financial impact of SB 863 could not be reasonably predicted and why different agencies have come up with such wildly disparate estimations of the bill's impact.

There are two characteristics that makes case law uncomfortable for most: unpredictability as to outcome and time.

Not knowing how an independent arbiter views the application of the law to any particular fact pattern is disconcerting to many. Lawyers are used to it because that's their profession - a lawyer's job is to deal with such ambiguity and try to convince the arbiter that their view is applicable. But this is not how most operate. Most of us want an answer and want it now so we can move on.

But eventually we do get an answer, and that answer guides others in the management of any other similar fact pattern - but this takes time. Often lots of time, as in years.

Time is the bane to case management because time literally means money in terms of indemnity, medical costs, management expenses.

So we make a cost-benefit analysis and sometimes we throw the dice and ask the courts to interpret for us and other times we don't take the risk of combination of unpredictability and time and resolve the matter.

SB 863 is massive, complex and thoroughly displaces many known elements of California workers' compensation law. Legal change as completely disruptive as SB 863 will take years before we know the answers, and likely there will continue to be many unanswered questions regardless of what the courts tell us.

"The Law" is a tripartite animal: statutes, regulations and case law. It isn't perfect but it's as good as society has come up with.

We all would like to know more about the future, but often we can only wait to experience it.

The Mandate - My How We Have Strayed

In January I posted about Despicable Behavior, Audits & Penalties, commenting on the rumored practice of some carriers, third party administrators, and defense attorney firms (collectively "defendants"), that were taking the stance that a vendor who provided services must first file a lien (along with the filing fee) or pay an activation fee for a previously filed lien even before any negotiations could begin on bills - even if there really isn't any justifiable dispute on the amounts billed.

I had heard of anecdotes where this behavior was going on even to bills presented for payment by Medical Provider Network (MPN) physicians - in other words to defendant's own doctors!

Apparently the rumors had some validity.

Late yesterday the California Division of Workers' Compensation issued a "DWCNewsline" release titled, "Payors must negotiate in good faith with potential lien claimants - filing a lien is not a prerequisite." It states:

The Audit Unit of the Division of Workers’ Compensation has received an increasing number of complaints from individuals and entities providing services on a lien basis in workers’ compensation claims. The complainants report that some payors have adopted a policy of refusing to discuss negotiating the provider’s liens until the provider of the services demonstrates it has filed a lien with the WCAB and paid the applicable lien filing or activation fee required by the enactment of SB 863. Such a policy is both unsupported by the plain language of Labor Code sections 4903.05 or 4903.06, and directly contrary to the legislative intent of those sections and existing law.

If a claims administrator has reasonable grounds to contend that nothing is owed, then good faith negotiation does not necessarily require an offer of compromise. In the absence of a good faith contention that nothing is owed, however, a refusal to negotiate prior to payment of the filing fee would not be in good faith.

Additionally, Title 8, California Code of Regulations, section 10109(e) mandates that “[a]ll Insurers, self-insured employers and third-party administrators shall deal fairly and in good faith with all claimants, including lien claimants”.

Title 8 California Code of Regulations, section 10250(b) requires a moving party state under penalty of perjury that the moving party has made a genuine good faith effort to resolve the dispute before filing the Declaration of Readiness (DOR). Forcing a provider to file a lien and pay the filing or activation fee before the payor will discuss informal resolution of their billing amount prevents the provider from complying with this mandate. Such conduct could expose the payor to the imposition of sanctions, attorney’s fees and costs under Labor Code section 5813. This practice also exposes the payor to audit penalties for violation of Title 8, California Code of Regulations, section 10109(e). As is the Audit Unit’s existing practice, the Audit Unit will review all complaints received about this practice during the next random or targeted audit of any payor about whom such a complaint has been received.

I had said in my earlier post about this rumored (and apparently now substantiated) practice, "The carrier/administrator that is engaging in this behavior does so at its own peril, and I'm quite certain we will see an enforcement action publicized and reported in the news when one of these entities is hit with an audit and penalties..."

That DWC has issued a public warning about this practice, in my mind, validates the rumors but I'm disappointed that the Division hasn't taken a more aggressive stance.

I understand that the Division is under huge pressures to get all of the regulatory machinations in place for SB 863 implementation, in addition to the annual educational conferences (starting today in Los Angeles and Monday in Oakland), but the interests of the system need to be taken into account because the behavior described creates a "lien problem" well in excess of that previously identified by SB 863 proponents and which has not been addressed at all by the administration or legislators.

Getting the numbers on defendant's vendor denial practices would difficult, but I'd be interested to see just how much of the "lien problem" is due, and has been due, to the failure of defendants to deal with vendors in good faith, as noted by DWC's release.

In any event, if you're a vendor that has been the subject of this practice, then DWC has given you apt instruction - collect the evidence, give it to the Audit Unit.

And as I also said previously, if you're a defendant, or an individual working for a defendant, that is engaged in this practice, freshen up your contact list for a new job because you're going to cost your employer some extra money.

In the meantime defendants' collective balance sheets will clean up quite a bit come 1/01/2014 when lien genocide hits and any lien that was filed for which no Declaration of Readiness has been also filed will automatically be dismissed without recourse. I have doubts about the constitutionality of this action and think that it amounts to a "taking" without due process, but I'll let the lawyers argue that.

In the meantime, as we all knew would happen, attempts in Sacramento are already seeking to reverse SB 863 provisions, notably to allow the Workers’ Compensation Appeals Board to overturn independent medical review decisions, allow psychological conditions to be used in calculating benefits and eliminate the ban on chiropractors serving as the primary treating physician for more than 24 visits.

Filed by Sen. Jim Beall, D-Campbell, SB 626 was co-sponsored by Dolores Huerta, who co-founded the National Farmworkers Association with Cesar Chavez in 1962, was awarded the Presidential Medal of Freedom in 2012 and will be inducted into the California Hall of Fame in March.

Huerta said in a statement, "“I asked Jim Beall to introduce SB 626 on my behalf to correct several injustices and drafting errors in last year’s reform bill, SB 863. The changes I am proposing will restore a small amount of due process of law to injured workers while saving employers money.”

The opposition to SB 626 was vitriolic, as reported by WorkCompCentral's Greg Jones this morning.

Jerry Azevedo, a spokesman for the Workers’ Compensation Action Network, is quoted as saying that SB 626 is "nothing short of a total annihilation of many of the SB 863 reforms, particularly those dealing with timely, high quality medical treatment and a less litigious and more predictable (permanent disability) system.”

Mark Sektnan, president of the Association of California Insurance Companies, said SB 626 is “clearly not what SB 863 intended.”

I don't think that the tension in the California work comp system has been higher. The dysfunction has grown to an entirely new level and in my opinion the system has strayed far from the Article XIV, section 4 mandate: 

A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment, irrespective of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical, hospital and other remedial treat ent as is requisite to cure and relieve from the effects of such injury; full provision for adequate insurance coverage against liability to pay or furnish compensation; full provision for regulating such insurance coverage in all its aspects, including the establishment and management of a state compensation insurance fund; full provision for otherwise securing the payment of compensation; and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the state government.

It's a mouthful, but is still the guiding principle of the system. We have moved far from those principles.

NCOIL to Take Up Model Rx Legislation

While the International Association of Industrial Accident Boards and Commissions (IAIABC) ultimately decided to punt on the issue of model legislation for the control of narcotic prescriptions, another national group of industry folks has decided to take on the task.

I applaud the National Conference of Insurance Legislators (NCOIL)'s and their Workers' Compensation Insurance Committee which will hold a special meeting with the Workers’ Health, Long-Term Care and Health Retirement Issues Committee on March 8 to consider developing a model law to address opioid-related concerns, including costs to the workers’ compensation system.

IAIABC, after a year of work on model legislation, earlier this month announced it would not release draft rules because, "it was determined that adopting model legislation and regulation on opioid use could be interpreted as too narrow and restrictive for jurisdictions."

But Tennessee Rep. Charles Curtiss, D-Sparata, the president of NCOIL, told WorkCompCentral that the NCOIL committees had expected to be reviewing a national model proposed by IAIABC. Now, while the committees likely will look at IAIABC’s draft efforts, they also plan to look at what individual states have done or are considering.

The issue of control over abuse of prescription drugs has, as you likely know, gained national attention and concern. There are calls for enhancement not only to legislation on narcotics prescriptions but also drug monitoring systems.

California lawmakers are considering a bill to supplement the funding of the state's CURES system by over $3 million to bring it more into acceptance by intended users.

In 2012 legislation was passed in Kentucky making it mandatory for doctors to register and use the state monitoring program known as the Kentucky All Prescription Electronic Reporting (KASPER), before prescribing controlled substances. The two NCOIL committees will look at the Kentucky model closely according to the report.

Vermont Rep. William Botzow, R-Bennington, chairman of the Workers’ Compensation Insurance Committee, said that “at this time, we (the committee) need to further educate ourselves” on possible options for legislation. But Botzow said NCOIL is seeing “more and more interest” from its members and other lawmakers on the opioid issue.

Fortunately IAIABC did a lot of the work towards model legislation so NCOIL does not have to reinvent the wheel. There are other states that have seen positive results from their attempts at controlling prescription drugs in both the workers' compensation context and the general health context, and those states can assist the NCOIL committees in constructing the right package.

For states that are experiencing prescription drug control issues NCOIL's work will be welcome and will provide a national forum for the debate on how to properly implement effective controls on narcotics and prescription drug distribution.

Why Chip Away at Work Comp? Let's Just Get Rid of It

California Assembly Insurance Committee Chairman Henry Perea (D-Fresno) introduced AB 1309 late Friday, February 22.

AB 1309 seeks to exempt professional athletes that are temporarily in California from coming under the state's jurisdiction for workers' compensation benefits.

The bill would amend Labor Code section 3600.5, a code section that otherwise extends extraterritorial jurisdiction on claims that arise due to causation in California, regardless of the extent of California connection and whether or not the employer is based in the state.

According to the bill preamble:

This bill would provide that an employee hired outside of this state, his or her dependents, and his or her employer shall be exempt from this state's workers' compensation laws if the employee is a professional athlete, defined, for purposes of these provisions, to include an athlete who is employed at the minor or major league level in the sport of baseball, basketball, football, hockey, or soccer, and that professional athlete is temporarily within this state doing work for his or her employer. This bill would deem a professional athlete to be temporarily within the state doing work for his or her employer if, during the 365 days immediately preceding either the professional athlete's date of injury, or, in the case of an occupational disease or cumulative injury claim, the professional athlete's last date of injurious exposure while employed anywhere as a professional athlete, the professional athlete performs less than 90 total days of required services within the state under the direction and control of the employer. The bill would provide that if the employee is a professional athlete, the date of injury in cases of occupational diseases or cumulative injuries is the date of the employee's last injurious exposure while employed anywhere as a professional athlete, or the date of diagnosis, as defined, by a licensed physician, whichever occurs later.

The bill would also provide that an employer of a professional athlete that is subject to California's workers' compensation laws is not liable for occupational disease or cumulative injury if at the time application for benefits is made the professional athlete performed his or her last year of work in an occupation that exposed him or her to the occupational disease or cumulative injury as an employee of one or more other employers that are exempt from California's workers' compensation laws or pursuant to the above provisions or any other law. The bill would provide that these changes apply to all pending claims for benefits, as specified.

The proposed amendment defines "professional athlete" as "an athlete who is employed at either a minor or major league level in the sport of baseball, basketball, football, hockey, or soccer."

According to the Los Angeles Times, Perea said that AB 1309 is expected to be a "starting point" for a lively legislative debate over whether claims from out-of-state retired players represent abuse of the California workers' compensation system and wind up hitting all California employers with higher premiums and surcharges that pay for outstanding claims left by failed insurance companies.

Puh-leez.

While some professional athletes have outsized salaries compared to the Average Working Joe (AWJ) the truth is that indemnity benefits are capped so Kobe Bryant can't get any more in benefits than the AWJ.

By the way, according to the U.S. Bureau of Labor Statistics (BLS), the average annual salary of professional athletes is only $79,460.

And do professional athletes really comprise that much of the work force that their alleged "abuse of the California workers' compensation system" really affect other employers?

What a sad, inaccurate and tired argument that is.

Again, according to the BLS in 2008, only about 16,500 held jobs as professional athletes and sports competitors.

Let's say that the BLS stats are erroneous and there are twice as many professional athletes and sports competitors than reported. Let's say that the stats are grossly erroneous and that there are ten times as many professional athletes.

Even at 10 times the BLS stats, the professional athlete population is SO small that it doesn't even represent a drop in the bucket of the total employed population. Heck, it doesn't even represent a molecule of water vapor...

In addition, according to the Times article, only about 4,500 out-of-state players have won workers' compensation judgments or settlements since the early 1980s.

So Perea's argument that there is any connection between "claims from out-of-state retired players" driving up costs for all state employers and causing the failure of insurance companies is completely preposterous.

What is really behind this legislation?

The rumors I have heard point the finger at the National Football League (NFL) in a retaliatory move against players that are seeking to hold the league, its owners and the teams accountable for some serious injuries that have more recently come to light, in particular following the suicide death of popular San Diego Chargers player Junior Seau, and news of coach suspensions in the New Orleans Saints "bounty program" case.

AB 1309 is bad law. There is no compelling social benefit from this law, and worse, I believe it opens the spigot even further towards the decimation of workers' compensation coverage for most all employees.

If employers don't want to pay for workers' compensation in California then employers should just seek to terminate the system.

Boom. Gone. Done.

Then there would be no more "higher premiums and surcharges that pay for outstanding claims left by failed insurance companies."

If that's what the employers who do business in California, or any state for that matter, want then let's just get it over with. Professional sports is leading the way in making workers' compensation irrelevant to modern society.

Let's just get it over with and end the debate - get rid of work comp.

Otherwise let's find something a bit more substantial to debate in Sacramento, or any other state capital for that matter, like our sad state of economic affairs, out of control taxation and poor financial decision making.

Perea should be truthful with us: AB 1309 is a red herring that's really intended to open the debate on the elimination of ALL continuous trauma claims and ALL extraterritorial recognition of injurious causation - not just those of professional athletes.

I'm calling BS on this measure. You should too.

SB 809 is a Rx for CA's CURE

Is $3.7 million enough?

That's the amount of money that Sen. Mark DeSaulnier (D-Walnut Creek) is seeking in sponsoring Senate Bill 809, which would impose a 1.16% tax on providers' and pharmacists' annual licensing fees, to pay for upgrades to the California Controlled Substance Utilization Review and Evaluation System (CURES).

CURES is a computer network intended to give doctors and pharmacists information about a patient's drug prescriptions.

Attorney General Kamala Harris had called for legislators to restore the $3.7 million in funding for the prescription drug monitoring program, which had been slashed amid hefty state Department of Justice budget cuts during the 2011-12 fiscal year.

In 2010, Sen. Mark DeSaulnier, D-Walnut Creek, authored SB 1071, which would have imposed on every manufacturer and importer of a Schedule II, Schedule II or Schedule IV controlled substance a tax of 0.0025 cents per pill sold. The Senate Committee on Health refused to pass the bill, and DeSaulnier withdrew the measure from consideration.

My guess is that legislators in 2010 experienced significant pressure from the pharmaceutical industry that saw the tax as a burdensome intermeddling into their business that would drive up their costs, and interfere with their profits.

SB 809 shifts the taxation/funding burden onto the individuals actually dispensing the medication. This sounds logical, but likely the real reason for this change in funding philosophy is the level of objection that would be received - pharmacists and other medication providers are going to be less organized and less funded than the pharmaceutical companies.

Sam Mahood, communications director for DeSaulnier's office, told WorkCompCentral that there are currently 12,967 registered users of the CURES program.

"This represents only 6% of the 212,631 licensed to prescribe or dispense narcotics," Mahood wrote via email. "To ensure the program is effective, it is important all prescribers and dispensers enroll and consult the CURES (prescription drug monitoring program.) SB 809 mandates that once the CURES/PDMP is capable of accommodating all prescribers and pharmacists, they must enroll and use the program. Resources are needed to upgrade the web-based CURES/PDMP system before all users can be accommodated."

I think that's a good and positive goal because I believe that a PDMP can be beneficial to society at large. As I pointed out in a previous blog post, Oklahoma has a PDMP that is more active in its notification system than CURES, has a more installed, committed, user base, and has seen notable success.

It is unfortunate that California's finances are such a travesty because I also believe that the $3.7 million estimated to bring CURES into popular usage among the intended user-audience is a drop in the bucket for the General Fund, and that this system would benefit the public at large - not just those who use or prescribe narcotics.

I don't know what the cost is going to be to assess and collect the license assessment - ultimately it will drive up the costs of acquiring services from these vendors, who are under unnatural, and rather arbitrary, rules constricting their ability to pass those costs onto the consumer.

But given the extent of the prescription drug issue, which some say has reached epidemic proportions and costs society at large a huge amount in lost time, productivity and lives, not to also say money, I'll take what I can get given California's fiscal limitations.

The Drug Debate Headed in Right Direction

The WorkCompCentral news this morning has two stories on prescription drug issues.

In one, the International Association of Industrial Accident Boards & Commissions (IAIABC) announced to the criticism of many that it was not going to publish a model law that seeks a standard for controlling narcotics.

In another a representative of the federal government's Drug Enforcement Administration (DEA) told attendees at the California Medical and Pharmacy Board's forum in San Francisco that it is working to put together a national prescription drug monitoring program.

In a press release, IAIABC said, "After thoughtful review by the Executive Committee, it was determined that adopting model legislation and regulation on opioid use could be interpreted as too narrow and restrictive for jurisdictions.

“The Executive Committee was concerned the models could unintentionally create conflict in jurisdictions that may be already taking steps to initiate regulations for appropriate guidelines.

“However, they contain valuable information, and as such the Executive Committee is asking that the issues addressed in the drafts be re-framed to offer policy considerations rather than a single policy response,” the IAIABC said.

Joseph Rannazzisi, deputy assistant administrator in the Drug Enforcement Administration's Office of Diversion of Control, told attendees at the San Francisco forum that a national prescription drug monitoring program that links together all the states is one of the things that officials in Washington, D.C., believe can help clamp down on excessive prescriptions, and that there are "a lot of proponents to get funding" for a national prescription drug database in Congress.

The IAIABC has received criticism for its position, and while perhaps disappointing the organization's announcement on the model law is consistent with its longer-term position on the topic.

In a press release in March, 2012, IAIABC said that, "This is a complex solution that will not be solved by passing a law or learning about one successful program; it can only be resolved by sustained initiatives at every level of the workers’ compensation system."

What may be more significant, in this era of the Affordable Care Act (ACA) and approaching deadlines for state compliance with its provisions, is that the federal government is taking another step towards nationalization of health care with its drug database.

It's a difficult balance between state rights and independence, and control over a national problem.

While some states have implemented successful controls over their narcotics problem (e.g. Ohio and Texas) there are other states that have not done so (e.g. Georgia) so the market shifts across borders to those states that fail to implement effective programs.

In federal terms this is called "interstate commerce" over which the federal government has some Constitutional authority.

Michael Botticelli, deputy director for the National Drug Control Policy, said at the San Francisco forum that since Florida passed legislation implementing a prescription drug monitoring program and prohibiting physicians from dispensing Schedule II and Schedule III drugs from their offices, officials have seen a spike in prescription drug shopping and overdose deaths in Georgia. A national drug monitoring program would help prevent that, he said.

Botticelli's observations are supported by federal statistics.

On Wednesday, the Centers for Disease Control and Prevention (CDC) published findings in the Journal of the American Medical Association showing drug overdose deaths increased for the 11th consecutive year in 2010.

CDC's analysis shows that 38,329 people died from a drug overdose in the United States in 2010, up from 37,004 deaths in 2009.

Overdose deaths involving opioid analgesics increased from to 15,597 in 2009 to 16,651 in 2010.

In 2010, nearly 60% of the drug overdose deaths (22,134) involved pharmaceutical drugs. Opioid analgesics, such as oxycodone, hydrocodone, and methadone, were involved “in about three of every four pharmaceutical overdose deaths (16,651), confirming the predominant role opioid analgesics play in drug overdose deaths,” the CDC said.

A federal drug control database would help to control that market in states that can't get their own issues under control. The danger of course is further independent state loss of control over the medicine that is practiced within state borders.

It's a delicate balance, but is something that is inherent in the friction between the federal and state governments. When states don't do things that the federal government sees as necessary or priority then a shift occurs in the power to govern.

IAIABC said that it will still issue some recommendations for states to be published, it hopes, as policy recommendations rather than a single model law at the IAIABC Forum in Des Moines, Iowa, April 29 to May 3. So I don't really see IAIABC's decision not to publish a model law as necessarily withdrawing from the debate, only that they are stepping back in recognition that there are several different paths to the same outcome.

Maybe there isn't any disconnect between state action and federal initiatives - maybe they go hand in hand so that states which do have effective drug policies can participate in large scale data systems that will assist in controlling drug abuse and, presumably, provide economic benefits within state borders.

And the states that don't have a policy will be able to see through IAIABC's efforts what works, what doesn't, or come up with some other novel solution.

One thing is certain - there is quite a bit of interest and activity in both state and federal governments to come to terms with effective, responsible, prescription drug policies.

It's all headed in the right direction.

OK Reform - Arbitration Lacks Protections

Yesterday I commented that the 260 page Oklahoma SB 1062 reform bill's proposal to create an administrative dispute resolution process was a good idea.

But I'm not so sure about SB 1062's provisions for permitting any employer in the state to use arbitration as a means for resolving workers' compensation disputes is a good idea. In fact, I think its lousy.

The arbitration provisions in the bill are quite extensive. I'll summarize them the best I can without, hopefully, unduly boring you.

Sections 134 through 162 of the bill establishes the "Workers' Compensation Arbitration Act".

There are three ways an employer can create an arbitration obligation: 1) provide notice to both the employee and the employer's carrier of the existence of an arbitration agreement and file an alternative dispute resolution plan with the Workers' Compensation Commission (hereafter "Commission"); 2) the employer's Certified Medical Plan files an alternative dispute resolution plan with the Commission; or 3) the arbitration agreement is subject to the Federal Arbitration Act.

This last qualifier is particularly broad as nearly any contract that provides for arbitration of disputes falls under the terms of the FAA. Thus if the employer makes use of "contracts" in its employment policies there is likely subjugation to the FAA.

Also, the "notice" is very broadly, and liberally, construed in favor of the employer in this bill - anything that  "is reasonably necessary to inform the other person" is notice regardless of whether there is actual knowledge.

The way I read the bill, while the parties may not waive the substantive provisions of the underlying workers' compensation act (i.e. provisions dealing with medical treatment or indemnity) they may otherwise waive some of the due process or legal procedure protections of the underlying act and the arbitration provisions do this quite nicely without any further agreement between the parties.

Written agreements to submit disputes to arbitration are "irrevocable except on a ground that exists at law or in equity for the revocation of a contract." From my law school days, there are three broad categories that would permit such a challenge: fraud in the inception; fraud in the performance; or mutual mistake of fact. All of them are very high hurdles to overcome.

In addition, if a party contests the validity of arbitration, the arbitration may continue pending final resolution of the issue by the Commission unless otherwise ordered which largely negates a concomitant challenge of validity.

By the way - the Commission is empowered to "summarily" decide the validity of an arbitration agreement and order the parties to arbitration "unless it finds that there is no enforceable agreement to arbitrate."

There are provisions for the issuance of provisional remedies either prior to the appointment of an arbitrator or after the appointment of an arbitrator, depending upon the circumstance, that appear to provide some protection of justiciable issues pending further procedures - I'm assuming that this is to protect, for instance, payment of temporary disability indemnity or medical treatment pending further adjudication.

While there are also provisions dealing with potential conflicts of interest or other matters that may call into question the impartiality of an arbitrator, the typical remedy in the bill is that another arbitrator is selected/appointed.

Arbitrators are given the same immunity that is bestowed upon judicial officers.

And arbitrators are given judicial powers including subpoena power, ability to hold conferences and hearings as necessary, weigh and determine admissibility of evidence, ask questions of witnesses, issue protective orders, etc.

While an arbitrator may amend, modify or correct an award on various grounds (which may be on order of the Commission), or if the Commission determines that there was some failure to abide by the law (i.e. fraud, failure to disclose a conflict, mathematical error, legal error) there is effectively no appeal. Depending upon the basis for the error the matter is either returned to the original arbitrator or a new arbitration is ordered.

Though the district court has jurisdiction hear appeals from Commission sanctioned arbitration orders, the reality is that such appeals will be ineffective because there would need to be a showing of fraud, or other similar misapplication of justice - otherwise the Commission has exclusive jurisdiction "to enforce and enter judgment confirming, vacating, correcting or modifying an award under this act."

Note that there is no employer size limit to the arbitration provision, whether union representation is present, whether an employee affirmatively assents to arbitration, and the employer pays the arbitrator's fees...

No wonder the Oklahoma Chamber of Commerce has come out so strongly in favor of SB 1062.

I like administrative dispute resolution processes for specialty legal topics, like workers' compensation.

I have disdain for arbitration in such situations though, particularly where one party (the employee in these situations) has no bargaining position prior to or during employment, and where the opposing party (i.e. employer/carrier) has far greater resources.

This is a reform item that is clearly one sided and, while it certainly will lower the cost of workers' compensation claims in Oklahoma, it lacks the protection mechanisms necessary for the fair treatment of injured workers who don't agree with medical treatment or indemnity determinations.

Finally, there is nothing that prohibits an employer, at any point in time from declaring that employment is conditional upon agreeing to work place injury arbitration - thus creating a mandatory condition.

That's certainly one way to get disputes out of the civil courts.

I hope this doesn't become a trend.