The medical profession has been experiencing an image problem for some time though it seems it has been getting worse.
When I was a kid, doctors were very well respected, intellectually superior members of society seen as above reproach because they saved lives.
My uncle was a physician.
My dad was a dentist.
I grew up admiring these professionals and their colleagues who spent so much of their lives learning, teaching, healing, looking after mankind and making sacrifices to better the human race.
Now it seems that these professionals get no respect, or at least not the amount or kind of respect that existed when I was a kid.
There are fee schedules restricting what can be billed for. There are practice guidelines dictating what can be performed. There are utilization reviews and independent reviews second guessing medical decisions.
And then there are the folks that just end up corrupted by the money and heaping further bad image upon an already targeted group.
Drugs provide an incredible source of corruption motivation - just follow the money.
The U.S. Attorney's Office announced the other day that a federal jury last week convicted two South Florida doctors of conspiracy to commit money laundering in connection with an investigation of pain clinics operating as "pill mills" in Broward and Palm Beach counties.
U.S. Attorney Wilfredo A. Ferrer, along with others connected to the investigation, said in a press release that a West Palm Beach, Fla., jury ended a two-month trial last week and convicted Dr. Cynthia Cadet, 43, of Parkland, Fla., and Dr. Joseph Castronuovo, 73, of Key Largo, Fla.
Sentencing has been scheduled for Nov. 4, 2013, before U.S. District Court Judge Kenneth A. Marra.
In August 2011, a federal grand jury indicted Cadet, Castronuovo and 30 other defendants targeted in Operation Oxy Alley, a federal/state probe of pill mills. Twenty-eight defendants have entered guilty pleas and been sentenced in the case.
According to the August 2011 indictment and a superseding indictment, Christopher and Jeffrey George, twin brothers, operated and managed four pain-management clinics that distributed an estimated 20 million oxycodone pills from 2007 to early 2010.
Prosecutors said the scheme made more than $40 million from the illegal sales and distribution of controlled substances. Thirteen of the 32 defendants were doctors.
The George brothers were highlighted in an article published in Bloomberg Businessweek last year.
It notes that the pain clinics the Georges established didn't discriminate against pain patients - if you went in, you came out with pills.
And each operation was bigger than the other.
Christopher George even invested in pharmacies and opened clinics in Georgia, Missouri and Texas.
From 2008 to 2010, according to the federal agents, the George twins were the largest illegal dispensers of oxycodone in the U.S.
In the fall of 2011, Jeffrey George pleaded guilty to one count of racketeering conspiracy and is serving a 15½-year sentence.
Christopher George pleaded guilty to one count of racketeering conspiracy and is serving 17½ years in prison. The twins’ mother, Denice Haggerty, pleaded guilty to one count of conspiracy to commit wire fraud and received a 30-month sentence.
What do the George twins have to do with bad doctors?
Christopher's interview with Businessweek gives a clue: he says not a single doctor ever turned down a job offer. "The hours were good. The pay was good.”
The pay was really good.
Doctors at Georges' clinics were paid a flat fee for each opioid prescription they wrote—typically, $75 to $100 for each prescription. To maximize efficiency, doctors were given prescription stamps they could use quickly, over and over.
It was common for physicians at one of Georges' clinics, American Pain, to see 100 patients a day, according to the interview. Extrapolated, a doctor would earn roughly $37,500 a week—or $1.95 million a year, directly dispensing medication.
The Georges made their money in part by charging patients consultation fees of $200 for the first visit, and $150 for each visit thereafter. They made another part of their profits by buying drugs wholesale (they had to do a lot of work to find wholesalers that could meet the demand and do so with minimal restrictions) and marking them up, sometimes dramatically as we have seen in the workers' compensation system, in direct physician dispensing.
The interview with Christopher George is fascinating to me because it is classic anti-social behavior.
He says he was targeted for doing nothing wrong - he followed the law and the law was loose so he profited from it. And he admits that as the law was tightened, then moving to another jurisdiction where the law was still loose provided for continued business operations.
“Really there’s no way to stop someone from getting pain medication,” says George. “If you limit it because there are drug addicts out there, you’re going to hurt the people who really need it. People are good liars. They can say they’re in pain, and you can’t prove otherwise. There’s no way to stop them from getting their medication.”
Wednesday, August 7, 2013
Tuesday, August 6, 2013
Texas Rules, Evidence and the Supreme Court
I write quite a bit in this blog about substantial evidence and how the concept can get misconstrued by various parties.
There is a very interesting case before the Texas Supreme Court that essentially deals with the concept of substantial evidence, but with a bit of a twist: can a medical report still be substantial evidence upon which to support an award if the medical report has an erroneous regulatory date in it due to failure of communication by the governing authority?
The case is State Office of Risk Management v. Elaine E. Banks Joiner.
In the underlying workers' compensation case, the hearing officer issued an award based on the medical reporting of the claimant's treating physician, Dr. Brent Davis.
Dr. Davis gave Joiner an impairment rating of 34%, but his medical reporting form had a date of Maximum Medical Improvement that was seven days past the date to which it was stipulated at the Texas Workers' Compensation Commission (7/10/2006).
The defense obtained a Designated Doctor exam from Dr. Elliot Bader, which rated 7%.
Dr. Bader's report also had the wrong MMI date, listing it as seven days before the "statutory" MMI date.
Thereafter, Dr. Bader was sent a letter to review Dr. Davis' report and was asked to reconsider his rating. That letter also advised Dr. Bader of the correct MMI date.
That information was never transmitted to Dr. Davis.
Dr. Bader did not change his opinion on impairment rating but did correct the date of MMI in his subsequent report.
The hearing officer, regardless of the incorrect MMI date, based his award on the opinion of Dr. Davis.
The issue in the case is now before the Supreme Court as to whether the hearing officer could have legally justified his award on the basis of a medical report with an incorrect statutory/regulatory MMI date.
SORM argued the regulations are clear about MMI dates and reporting. Joiner's attorney countered in his brief:
"The Workers' Compensation Act and Division rules are also clear in what they do not say. SORM cannot cite a single statute, rule, or court decision invalidating a doctor's certified impairment rating on the basis that the doctor incorrectly stated the statutory MMI date on a form. This is not because the legislature or division did not contemplate that certain requirements invalidate a report. Both the Labor Code and division rules specify when a report is invalid, and neither suggests that an impairment rating assigned after statutory MMI will result in invalidation because of a misstated date."
SORM argues strict construction, stating that the DWC rules currently give claimants clear notice that impairment ratings based on erroneous MMI dates are inadmissible.
Joiner's attorney is not so convinced that the rules are so clear, nor that they are of such a mandatory nature.
He argues, "The TWCC 69 forms stipulates that the treating doctor, by law is entitled to know, review and correct information that TWCC collects on its form about them."
SORM also argues that Davis did not correctly calculate the impairment rating, failing to accurately follow the AMA Guides - I don't know if that is an accurate assessment but certainly could be a factor in whether Davis' report could be relied upon.
To complicate matters, there is a rule-making process that has been under way for some time at the Texas DWC to clarify application of the MMI rule.
But the truth of the matter is that this is really about substantial evidence - does the date of MMI REALLY make a difference in whether a medical report is sufficient to support an award?
At question is Texas Rule 130.1. That rule provides for the specific assignment of an MMI date and further provides:
"Assignment of an impairment rating for the current compensable injury shall be based on the injured employee's condition as of the MMI date considering the medical record and the certifying examination."
The Texas Supreme Court has been taking its time on this case. Review was requested in May 2012, but the court kept the case pending until February of this year, when it requested additional briefing to help it decide whether to grant review of the case.
I'll make a bold prediction (but don't go to Vegas with this): The Supreme Court will rule in favor of Joiner because Davis' report is "good enough" notwithstanding an erroneous MMI date (which in effect really only affects the date benefits are to begin...).
There you have it - I hope my crystal ball doesn't need polishing.
There is a very interesting case before the Texas Supreme Court that essentially deals with the concept of substantial evidence, but with a bit of a twist: can a medical report still be substantial evidence upon which to support an award if the medical report has an erroneous regulatory date in it due to failure of communication by the governing authority?
The case is State Office of Risk Management v. Elaine E. Banks Joiner.
In the underlying workers' compensation case, the hearing officer issued an award based on the medical reporting of the claimant's treating physician, Dr. Brent Davis.
Dr. Davis gave Joiner an impairment rating of 34%, but his medical reporting form had a date of Maximum Medical Improvement that was seven days past the date to which it was stipulated at the Texas Workers' Compensation Commission (7/10/2006).
The defense obtained a Designated Doctor exam from Dr. Elliot Bader, which rated 7%.
Dr. Bader's report also had the wrong MMI date, listing it as seven days before the "statutory" MMI date.
Thereafter, Dr. Bader was sent a letter to review Dr. Davis' report and was asked to reconsider his rating. That letter also advised Dr. Bader of the correct MMI date.
That information was never transmitted to Dr. Davis.
Dr. Bader did not change his opinion on impairment rating but did correct the date of MMI in his subsequent report.
The hearing officer, regardless of the incorrect MMI date, based his award on the opinion of Dr. Davis.
The issue in the case is now before the Supreme Court as to whether the hearing officer could have legally justified his award on the basis of a medical report with an incorrect statutory/regulatory MMI date.
SORM argued the regulations are clear about MMI dates and reporting. Joiner's attorney countered in his brief:
"The Workers' Compensation Act and Division rules are also clear in what they do not say. SORM cannot cite a single statute, rule, or court decision invalidating a doctor's certified impairment rating on the basis that the doctor incorrectly stated the statutory MMI date on a form. This is not because the legislature or division did not contemplate that certain requirements invalidate a report. Both the Labor Code and division rules specify when a report is invalid, and neither suggests that an impairment rating assigned after statutory MMI will result in invalidation because of a misstated date."
SORM argues strict construction, stating that the DWC rules currently give claimants clear notice that impairment ratings based on erroneous MMI dates are inadmissible.
Joiner's attorney is not so convinced that the rules are so clear, nor that they are of such a mandatory nature.
He argues, "The TWCC 69 forms stipulates that the treating doctor, by law is entitled to know, review and correct information that TWCC collects on its form about them."
SORM also argues that Davis did not correctly calculate the impairment rating, failing to accurately follow the AMA Guides - I don't know if that is an accurate assessment but certainly could be a factor in whether Davis' report could be relied upon.
To complicate matters, there is a rule-making process that has been under way for some time at the Texas DWC to clarify application of the MMI rule.
But the truth of the matter is that this is really about substantial evidence - does the date of MMI REALLY make a difference in whether a medical report is sufficient to support an award?
At question is Texas Rule 130.1. That rule provides for the specific assignment of an MMI date and further provides:
"Assignment of an impairment rating for the current compensable injury shall be based on the injured employee's condition as of the MMI date considering the medical record and the certifying examination."
The Texas Supreme Court has been taking its time on this case. Review was requested in May 2012, but the court kept the case pending until February of this year, when it requested additional briefing to help it decide whether to grant review of the case.
I'll make a bold prediction (but don't go to Vegas with this): The Supreme Court will rule in favor of Joiner because Davis' report is "good enough" notwithstanding an erroneous MMI date (which in effect really only affects the date benefits are to begin...).
There you have it - I hope my crystal ball doesn't need polishing.
Monday, August 5, 2013
Whistle Blower Suit Isn't About What's Right
Salacious.
That's the best word to describe this morning's news about a whistle-blower complaint unsealed July 24 in Sacramento Superior Court by Judge Raymond Cadei in which it is alleged that was a massive conspiracy involving more than 90 defendants in Southern California and hundreds of millions of dollars of greatly inflated prices on counterfeit spinal hardware installed needlessly on unsuspecting workers' compensation claimants.
Some of the names in the complaint are familiar, like Drobot, Randall, Pacific Hospital of Long Beach, Tri-City Regional Medical Center.
Some of the names are new to the media.
The allegations range from counterfeit implant hardware, to use of cappers and runners, and hugely inflated billings for unnecessary and dangerous procedures and cross/counter-espionage.
Some of the defendants that talked with WorkCompCentral reporter Greg Jones, of course, deny that they did anything illegal or wrong, and counter that the whistle-blowing plaintiffs have ulterior motivations ranging from eviction for failure to pay rent, retaliation for not acquiescing to a quarter million dollar shakedown, and a reverse law suit in response to revengeful non-payment of medical bills.
And all of this would be too dramatic for reality if it weren't real itself.
According to the complaint, the defendants cashed in on the pass-through for medical equipment used in fusions “through the unlawful employment of ‘runners, cappers and steerers,’ overbilling, illegal kickbacks to doctors and counterfeiting of medical implant hardware.”
The medical hardware pass through provisions were eliminated in SG 863.
“This scheme has led to patients receiving dangerous medical implants that have a substantial likelihood of failure,” the complaint says. “Many patients received spinal fusion surgeries that utilized counterfeit screws and rods, placing patients’ lives at risk and subjecting them to further surgeries to replace the counterfeit hardware.”
At least one defendant says that the suit against him is stayed by a bankruptcy proceeding.
Another says it was someone else who was doing money laundering and that there was nothing wrong with the business practice under his watch.
And yes it all is about money. Allegedly hundreds of millions of dollars in ill-gotten gains.
And none of it is about the spinal surgery patients - the workers' compensation claimants that were likely duped into having dangerous, unnecessary surgery that has altered their lives completely - introducing much higher levels of impairment and disability, much higher levels of pain an discomfort, ruining any chance of a return to work, than would have existed without surgical interference.
The plaintiffs seek to cleanse the dirt off their hands by "blowing the whistle" but if the defendants interviewed for the story are to be believed, there is plenty of mud left to sling around making this case more of a distraction than a correction of social wrong.
Because of medical privacy laws we may never know the story of the hundreds or even perhaps thousands of unsuspecting victims of these, likely criminal, acts (the state Attorney General's office has declined to participate in the case which is when the suit was unsealed).
At the end of the day, all things considered, the money involved isn't that much.
But the lives involved amount to a great deal of social burden that you and I will pay for, for the rest of their lives.
That's the best word to describe this morning's news about a whistle-blower complaint unsealed July 24 in Sacramento Superior Court by Judge Raymond Cadei in which it is alleged that was a massive conspiracy involving more than 90 defendants in Southern California and hundreds of millions of dollars of greatly inflated prices on counterfeit spinal hardware installed needlessly on unsuspecting workers' compensation claimants.
Some of the names in the complaint are familiar, like Drobot, Randall, Pacific Hospital of Long Beach, Tri-City Regional Medical Center.
Some of the names are new to the media.
The allegations range from counterfeit implant hardware, to use of cappers and runners, and hugely inflated billings for unnecessary and dangerous procedures and cross/counter-espionage.
Some of the defendants that talked with WorkCompCentral reporter Greg Jones, of course, deny that they did anything illegal or wrong, and counter that the whistle-blowing plaintiffs have ulterior motivations ranging from eviction for failure to pay rent, retaliation for not acquiescing to a quarter million dollar shakedown, and a reverse law suit in response to revengeful non-payment of medical bills.
And all of this would be too dramatic for reality if it weren't real itself.
According to the complaint, the defendants cashed in on the pass-through for medical equipment used in fusions “through the unlawful employment of ‘runners, cappers and steerers,’ overbilling, illegal kickbacks to doctors and counterfeiting of medical implant hardware.”
The medical hardware pass through provisions were eliminated in SG 863.
“This scheme has led to patients receiving dangerous medical implants that have a substantial likelihood of failure,” the complaint says. “Many patients received spinal fusion surgeries that utilized counterfeit screws and rods, placing patients’ lives at risk and subjecting them to further surgeries to replace the counterfeit hardware.”
At least one defendant says that the suit against him is stayed by a bankruptcy proceeding.
Another says it was someone else who was doing money laundering and that there was nothing wrong with the business practice under his watch.
And yes it all is about money. Allegedly hundreds of millions of dollars in ill-gotten gains.
And none of it is about the spinal surgery patients - the workers' compensation claimants that were likely duped into having dangerous, unnecessary surgery that has altered their lives completely - introducing much higher levels of impairment and disability, much higher levels of pain an discomfort, ruining any chance of a return to work, than would have existed without surgical interference.
Those are the people that are the real story. The defendants and plaintiffs have their own reasons for fighting. In reading the complaint and the news story about this case it is clear that the well being and interests of the injured workers, who were the subjects of this conspiracy, were not a factor.
The plaintiffs seek to cleanse the dirt off their hands by "blowing the whistle" but if the defendants interviewed for the story are to be believed, there is plenty of mud left to sling around making this case more of a distraction than a correction of social wrong.
Because of medical privacy laws we may never know the story of the hundreds or even perhaps thousands of unsuspecting victims of these, likely criminal, acts (the state Attorney General's office has declined to participate in the case which is when the suit was unsealed).
At the end of the day, all things considered, the money involved isn't that much.
But the lives involved amount to a great deal of social burden that you and I will pay for, for the rest of their lives.
Friday, August 2, 2013
Why Are There Fees on Medical-Legal Liens?
The following is a guest editorial from attorney Jonathan Brissman. Mr. Brissman is a frequent instructor for WorkCompCentral Education, and is an expert on the lien process and lien laws in California workers' compensation.
by Jonathan Brissman, JD
SB863 imposed a $100.00 lien activation fee on medical treatment and medical-legal liens filed prior to 2013. Although there were many reasons cited for placing an impediment to recovery for medical treatment liens, none of the reasons applied to medical-legal liens.
The genesis for the activation fee was the Lien Report issued in January, 2011 by the California Commission on Health and Safety and Workers’ Compensation (CHSWC). Its “Recommendation 1” was “Consider reinstating a filing fee for medical and medical-legal liens [p.11].” It spoke about unmerited and frivolous liens, and the report’s Key Findings [pp.1-2] pointed out that the causes for lien filings included 1) disputes over the amount payable under the Official Medical Fee Schedule; 2) treatment charges for which authorization was in dispute; and 3) charges for treatment provided outside Medical Provider Networks.
Although the report specified that medical treatment liens comprised 60% of the volume and 80% of the costs [p.2], it did not identify the corollary figures for medical-legal liens. There were no Key Findings applicable to medical-legal liens, nor was there any assertion that unmerited and frivolous medical-legal liens were burdening the system. Indeed, the report acknowledged, “To understand the lien problem, one must understand that the majority of liens are actually medical benefit disputes [p.13].” Medical-legal liens are not medical benefit disputes.
The CHSWC Lien Report appears to have recommended that an activation-fee requirement should be imposed on both medical treatment and medical-legal liens based on affinity or convenience. It observed, “Medical treatment liens signal the greatest dysfunction in the workers’ compensation system as well as the greatest opportunity for systematic improvements [p.21]”; and “Medical‐legal claims are grouped with medical treatment both in the section 4903 list and for most lien procedure requirements [p.14].”
After discussing medical treatment, interpreter, copy service, and transportation liens, in a sweeping generalization of suspect validity, the report observed:
The above statement, attempting to both distinguish and compare treatment and medical-legal liens, cannot withstand intellectual scrutiny.
None of the Key Findings regarding reasons for lien filings apply to medical-legal charges: MPN and UR are inapplicable, whether the claim is contested is immaterial, and the Official Medical Fee Schedule is irrelevant (the Medical-Legal Fee Schedule in Regs. 9793 – 9795 apply). Further, there was not even an allegation that medical-legal liens comprised any portion of the demeaningly named “zombie” liens.
When an Agreed Medical Examiner or a Panel Qualified Medical Examiner performed services, he or she did so on a contractual basis after receiving authorization from a party to address a contested claim or disputed medical issue, and after providing advance notice of the medical-legal evaluation to all parties pursuant to Reg. 10430. The AME or PQME never had any intention of providing services on a lien basis; payment was expected in the normal course of business.
CHSWC’s Lien Report recommended exemption from the activation fee for several categories of liens but lumped medical treatment and medical-legal liens together based on questionable analysis. Medical-legal liens filed prior to 2013 should be exempt from an activation-fee requirement.
SB863 imposed a $100.00 lien activation fee on medical treatment and medical-legal liens filed prior to 2013. Although there were many reasons cited for placing an impediment to recovery for medical treatment liens, none of the reasons applied to medical-legal liens.
The genesis for the activation fee was the Lien Report issued in January, 2011 by the California Commission on Health and Safety and Workers’ Compensation (CHSWC). Its “Recommendation 1” was “Consider reinstating a filing fee for medical and medical-legal liens [p.11].” It spoke about unmerited and frivolous liens, and the report’s Key Findings [pp.1-2] pointed out that the causes for lien filings included 1) disputes over the amount payable under the Official Medical Fee Schedule; 2) treatment charges for which authorization was in dispute; and 3) charges for treatment provided outside Medical Provider Networks.
Although the report specified that medical treatment liens comprised 60% of the volume and 80% of the costs [p.2], it did not identify the corollary figures for medical-legal liens. There were no Key Findings applicable to medical-legal liens, nor was there any assertion that unmerited and frivolous medical-legal liens were burdening the system. Indeed, the report acknowledged, “To understand the lien problem, one must understand that the majority of liens are actually medical benefit disputes [p.13].” Medical-legal liens are not medical benefit disputes.
The CHSWC Lien Report appears to have recommended that an activation-fee requirement should be imposed on both medical treatment and medical-legal liens based on affinity or convenience. It observed, “Medical treatment liens signal the greatest dysfunction in the workers’ compensation system as well as the greatest opportunity for systematic improvements [p.21]”; and “Medical‐legal claims are grouped with medical treatment both in the section 4903 list and for most lien procedure requirements [p.14].”
After discussing medical treatment, interpreter, copy service, and transportation liens, in a sweeping generalization of suspect validity, the report observed:
The remaining types of liens do not require priority attention from policymakers either because their impact is small or they do not reflect dysfunctions in the system or offer opportunities for improvement. EDD, Family Support, and Living Expenses are all conventional liens against indemnity (temporary disability [TD] or permanent disability [PD]) benefits that would otherwise be payable directly to the employee. Medical‐legal liens are relatively small in number and aggregate dollar value. Furthermore, medical‐legal liens are often mis‐categorized as medical treatment (and vice versa), so any important lessons that could be learned from analysis of medical‐legal liens will be gleaned from medical liens. The two types are lumped together in section 4903 and subsequent sections, so recommendations that will be made concerning medical liens can apply to both types [p.22].
The above statement, attempting to both distinguish and compare treatment and medical-legal liens, cannot withstand intellectual scrutiny.
None of the Key Findings regarding reasons for lien filings apply to medical-legal charges: MPN and UR are inapplicable, whether the claim is contested is immaterial, and the Official Medical Fee Schedule is irrelevant (the Medical-Legal Fee Schedule in Regs. 9793 – 9795 apply). Further, there was not even an allegation that medical-legal liens comprised any portion of the demeaningly named “zombie” liens.
When an Agreed Medical Examiner or a Panel Qualified Medical Examiner performed services, he or she did so on a contractual basis after receiving authorization from a party to address a contested claim or disputed medical issue, and after providing advance notice of the medical-legal evaluation to all parties pursuant to Reg. 10430. The AME or PQME never had any intention of providing services on a lien basis; payment was expected in the normal course of business.
CHSWC’s Lien Report recommended exemption from the activation fee for several categories of liens but lumped medical treatment and medical-legal liens together based on questionable analysis. Medical-legal liens filed prior to 2013 should be exempt from an activation-fee requirement.
Thursday, August 1, 2013
Another Lesson in Substantial Evidence
Judicial interpretation of workers compensation laws in general relies upon "substantial evidence."
This is a concept that is difficult for many employers/carriers/payers, etc. to grasp. A party may have "better" evidence, but that is not the standard by which the vast majority of workers' compensation awards are held to.
Substantial evidence simply means "good enough." Good enough to support whatever proposition the evidence is being used for.
The standard is whether someone can reasonably rely upon the evidence to support whatever the conclusion is that is being proffered.
In Missouri, an appellate court upheld an award of permanent total disability benefits to a factory worker based on substantial evidence that her work-related back injury, combined with her preexisting physical and psychological issues, left her unemployable, thus qualifying her for the state's Second Injury Fund contribution to a permanent total disability award.
In Sickmiller v. Timberland Forest Products Inc., Nos. SD32257, SD32277 & SD32291, 07/18/2013, published, Tammy L. Sickmiller hurt her back in September 2007 while lifting a wooden pallet in the course of her employment with Timberland Forest Products.
Sickmiller suffered from a preexisting depression, for which she received treatment in 2000. She also had a history of suicidal ideations that began when she lost custody of her children sometime between 2000 and 2001.
On top of that, Sickmiller had been treated for bilateral carpal tunnel syndrome as the result of a work-related injury she suffered when working in 1999 for a previous employer.
The Labor and Industrial Relations Commission found that Sickmiller's injury, combined with her preexisting physical and psychological disabilities, rendered her permanently and totally disabled.
Everyone appealed on various grounds, but for purposes of this discussion, Timberland contended that the Commission’s award to Sickmiller was not supported by substantial and competent evidence. The Second Injury Fund argued that the Commission should not have ordered it to pay Sickmiller's award since Sickmiller's inability to be employed was because of her worsening psychological condition, not her work-related accident.
Notice that Timberland argued that the evidence was a) not substantial and b) not competent.
We can eliminate the "not competent" argument - that's a dead loser. And with regards to substantial evidence, the standard is ... [go to top of column].
Well, the court reasoned that the testimony of the various medical experts – who almost unanimously opined that Sickmiller's work injury caused at least some additional psychological disability – combined with Sickmiller's testimony, constituted substantial, competent evidence supporting the Commission's implicit determination that the work injury was the prevailing factor in causing Sickmiller's total and permanent disability.
The court explained that the Commission was not required to consider Sickmiller's psychological condition as it existed at the time of the work injury in determining the Second Injury Fund's liability so long as Sickmiller's worsening psychological condition was attributable to the work injury, and substantial evidence indicated that it was.
So there you go - another lesson in the evidentiary standards in workers' compensation litigation.
This is a concept that is difficult for many employers/carriers/payers, etc. to grasp. A party may have "better" evidence, but that is not the standard by which the vast majority of workers' compensation awards are held to.
Substantial evidence simply means "good enough." Good enough to support whatever proposition the evidence is being used for.
The standard is whether someone can reasonably rely upon the evidence to support whatever the conclusion is that is being proffered.
In Missouri, an appellate court upheld an award of permanent total disability benefits to a factory worker based on substantial evidence that her work-related back injury, combined with her preexisting physical and psychological issues, left her unemployable, thus qualifying her for the state's Second Injury Fund contribution to a permanent total disability award.
In Sickmiller v. Timberland Forest Products Inc., Nos. SD32257, SD32277 & SD32291, 07/18/2013, published, Tammy L. Sickmiller hurt her back in September 2007 while lifting a wooden pallet in the course of her employment with Timberland Forest Products.
Sickmiller suffered from a preexisting depression, for which she received treatment in 2000. She also had a history of suicidal ideations that began when she lost custody of her children sometime between 2000 and 2001.
On top of that, Sickmiller had been treated for bilateral carpal tunnel syndrome as the result of a work-related injury she suffered when working in 1999 for a previous employer.
The Labor and Industrial Relations Commission found that Sickmiller's injury, combined with her preexisting physical and psychological disabilities, rendered her permanently and totally disabled.
Everyone appealed on various grounds, but for purposes of this discussion, Timberland contended that the Commission’s award to Sickmiller was not supported by substantial and competent evidence. The Second Injury Fund argued that the Commission should not have ordered it to pay Sickmiller's award since Sickmiller's inability to be employed was because of her worsening psychological condition, not her work-related accident.
Notice that Timberland argued that the evidence was a) not substantial and b) not competent.
We can eliminate the "not competent" argument - that's a dead loser. And with regards to substantial evidence, the standard is ... [go to top of column].
Well, the court reasoned that the testimony of the various medical experts – who almost unanimously opined that Sickmiller's work injury caused at least some additional psychological disability – combined with Sickmiller's testimony, constituted substantial, competent evidence supporting the Commission's implicit determination that the work injury was the prevailing factor in causing Sickmiller's total and permanent disability.
The court explained that the Commission was not required to consider Sickmiller's psychological condition as it existed at the time of the work injury in determining the Second Injury Fund's liability so long as Sickmiller's worsening psychological condition was attributable to the work injury, and substantial evidence indicated that it was.
So there you go - another lesson in the evidentiary standards in workers' compensation litigation.
As to the overlay of personal, non-industrial psychological attributes to her physical status, that's for another column.
Wednesday, July 31, 2013
The Lien Lawsuit & Instability
The wraps have finally come off the threatened lawsuit by lien claimants against SB 863's lien fees and automatic dismissal process.
Plaintiffs include:
The lawsuit alleges:
The Workers’ Compensation Appeals Board has ruled that a lien must be dismissed if the activation fee is not paid before the time a lien conference is scheduled to start. A provision of Senate Bill 863 also says all liens that have not been activated will be dismissed by operation of law on Jan. 1, 2014.
According to the complaint filed, the plaintiffs have collectively filed at least 32,433 liens, and say many of which are for small amounts in proportion to the amount of the filing fee. One plaintiff has 20,800 liens and can’t afford to pay $2.1 million by the end of the year, the lawsuit says.
I won't get into the merits of this case. There are some issues that I think are winners for the plaintiffs, and I think there are some volatile issues that may entirely destroy the case.
But what about those promised savings in SB 863? A lot of the money (the WCIRB estimated about $480 million) that was estimated to be saved by SB 863 is now in jeopardy.
And what happens if lien fees are deemed unconstitutional, thus drying up a source of income to the Workers' Compensation Revolving Fund, but potentially creating a deficit if those fees are ordered reimbursed to the lien claimants (of course with interest)?
Department of Industrial Relations chairperson, Christine Baker, told the audience at the California Coalition on Workers’ Compensation's 11th annual Conference that the Division of Workers' Compensation has collected more than $15 million in lien fees, and that if the pace of lien fee collections continues then the employer assessment could be reduced by 7.6%.
Plaintiffs at this point are only seeking an injunction against the law, but damages can certainly be entertained in the future, and does not have to be part of this lawsuit - request for reimbursement may occur through several different channels and/or lawsuits.
I've examined before the likelihood of a Constitutional challenge to the lien fee program, and I'm quite certain that the authors and supporters of the program looked at this very carefully before putting it into place.
I don't think anyone can say with any degree of certainty whether or not the court, in this case the United States District Court for the Central District of California, will rule for or against the government or the lien claimants.
I do feel quite strongly, however, that the court will issue at least a preliminary injunction against the process on two points: summary dismissal of liens on 1/1/14, and the automatic dismissal of liens that fail to pay processing fees.
The court will need time to take argument, do research, and understand whether or not a workers' compensation lien arises to the same level as liens for work on ships, or whether any such constriction can apply to liens that had been filed before SB 863.
To rule otherwise would lead to increased chaos, and costs, associated with the unwinding of the process in the event that it is found unconstitutional.
It will be much simpler to provide for the prospective payment of fees in the event that the law is upheld.
But the bigger picture is the credibility of the negotiators of SB 863. Here is a bill that was the product of negotiations between Big Business and Big Labor. There was no input from the community. There was no analysis or opinion sought from those involved in the industry on a daily basis (except for the 6 week road show that, to me, seemed largely ceremonial). There was no communication about alternative plans in the event that this whole thing blows up.
And then we're left with an even bigger mess trying to clean up what gets destroyed by judicial fiat.
The supporters of SB 863's lien provisions state that to the extent SB 863 is delayed or put in doubt more uncertainty about costs going forward is created. I don't buy that argument - this certainly was considered when the bill was being negotiated and drafted. The creators knew there would be challenges, and knew that there was the possibility of judicial intervention, which is why they included a clause that if any part of SB 863 were declared invalid the balance of the bill would still be valid.
No, those involved in SB 863's lien provisions knew that it was a risk, and knew that it, in itself, would create instability. They brought it upon themselves.
The lien problem was a big one before SB 863. If the lien fee and summary dismissal of lien provisions are overturned by the court, liens will be an even bigger problem than ever before, and the pain is going to be wide and acute.
Plaintiffs include:
- Angelotti Chiropractic Inc., which operates as Taft Chiropractic in Woodland Hills.
- Mooney & Shamsbod Chiropractic Inc. of Palmdale.
- Christiana Arana & Associates Inc. of Studio City.
- Joyce Altman Interpreters Inc of Tustin.
- Scandoc Imaging Inc. of Costa Mesa.
- Buena Vista Medical Services Inc. of Calabasas.
The lawsuit alleges:
- Enforcement of the lien activation fee constitutes a taking of private property for public use without just compensation in violation of the 5th Amendment.
- The fee violates the due process provisions of the 5th and 14th Amendments because it “effectively eliminates plaintiff’s right to seek administrative and judicial vindication of the property rights secured by” the liens.
- The fee violates the equal protections provisions of the 5th and 14th amendments because it is arbitrarily and with no legitimate governmental purpose applied to independent service providers while insurance companies, health maintenance organizations and certain employer-sponsored benefit plans are exempt.
The Workers’ Compensation Appeals Board has ruled that a lien must be dismissed if the activation fee is not paid before the time a lien conference is scheduled to start. A provision of Senate Bill 863 also says all liens that have not been activated will be dismissed by operation of law on Jan. 1, 2014.
According to the complaint filed, the plaintiffs have collectively filed at least 32,433 liens, and say many of which are for small amounts in proportion to the amount of the filing fee. One plaintiff has 20,800 liens and can’t afford to pay $2.1 million by the end of the year, the lawsuit says.
I won't get into the merits of this case. There are some issues that I think are winners for the plaintiffs, and I think there are some volatile issues that may entirely destroy the case.
But what about those promised savings in SB 863? A lot of the money (the WCIRB estimated about $480 million) that was estimated to be saved by SB 863 is now in jeopardy.
And what happens if lien fees are deemed unconstitutional, thus drying up a source of income to the Workers' Compensation Revolving Fund, but potentially creating a deficit if those fees are ordered reimbursed to the lien claimants (of course with interest)?
Department of Industrial Relations chairperson, Christine Baker, told the audience at the California Coalition on Workers’ Compensation's 11th annual Conference that the Division of Workers' Compensation has collected more than $15 million in lien fees, and that if the pace of lien fee collections continues then the employer assessment could be reduced by 7.6%.
Plaintiffs at this point are only seeking an injunction against the law, but damages can certainly be entertained in the future, and does not have to be part of this lawsuit - request for reimbursement may occur through several different channels and/or lawsuits.
I've examined before the likelihood of a Constitutional challenge to the lien fee program, and I'm quite certain that the authors and supporters of the program looked at this very carefully before putting it into place.
I don't think anyone can say with any degree of certainty whether or not the court, in this case the United States District Court for the Central District of California, will rule for or against the government or the lien claimants.
I do feel quite strongly, however, that the court will issue at least a preliminary injunction against the process on two points: summary dismissal of liens on 1/1/14, and the automatic dismissal of liens that fail to pay processing fees.
The court will need time to take argument, do research, and understand whether or not a workers' compensation lien arises to the same level as liens for work on ships, or whether any such constriction can apply to liens that had been filed before SB 863.
To rule otherwise would lead to increased chaos, and costs, associated with the unwinding of the process in the event that it is found unconstitutional.
It will be much simpler to provide for the prospective payment of fees in the event that the law is upheld.
But the bigger picture is the credibility of the negotiators of SB 863. Here is a bill that was the product of negotiations between Big Business and Big Labor. There was no input from the community. There was no analysis or opinion sought from those involved in the industry on a daily basis (except for the 6 week road show that, to me, seemed largely ceremonial). There was no communication about alternative plans in the event that this whole thing blows up.
And then we're left with an even bigger mess trying to clean up what gets destroyed by judicial fiat.
The supporters of SB 863's lien provisions state that to the extent SB 863 is delayed or put in doubt more uncertainty about costs going forward is created. I don't buy that argument - this certainly was considered when the bill was being negotiated and drafted. The creators knew there would be challenges, and knew that there was the possibility of judicial intervention, which is why they included a clause that if any part of SB 863 were declared invalid the balance of the bill would still be valid.
No, those involved in SB 863's lien provisions knew that it was a risk, and knew that it, in itself, would create instability. They brought it upon themselves.
The lien problem was a big one before SB 863. If the lien fee and summary dismissal of lien provisions are overturned by the court, liens will be an even bigger problem than ever before, and the pain is going to be wide and acute.
Tuesday, July 30, 2013
FL and Rodney King Comp
We're in the middle of summer time and the South, particularly Florida, gets real hot and sticky this time of year.
And so does Florida workers' compensation, just in time for the state's annual Workers' Compensation Institute's 68th conference.
Sure to be discussed is the latest in the battle between claimant and defense attorneys in the state.
The WCI conference is infamous for huge suite parties hosted by some of the big Florida defense firms. It's hard to set yourself apart in that competitive legal market.
One firm seeking to set itself apart that has challenged the borders of ethics, taste, and maybe even the law, is getting sued for posting a picture on its website depicting a partner of the firm holding a baseball bat and declaring "a claimant is a fraud until proven injured."
Claimant attorney Robert Winess filed suit in Circuit Court in Broward County, Fla., April 19 against Stanley Steemer Carpet Cleaner Co. and its law firm, McFarlane and Dolan Law Center, alleging the law firm's website violates a section of Chapter 440 of the Florida Statutes prohibiting the intimidation of injured workers by employers.
The suit faced summary dismissal so it was amended to allege violations of the state's Deceptive and Unfair Trade Practices Act by misleading consumers.
The baseball bat page is still up but others have been removed.
One of the web pages removed showed the baseball bat in a case with the slogan, "At McFarlane & Dolan, we litigate claims with a baseball bat." Another depicted a pair of binoculars and included the slogan, "At McFarlane & Dolan, a claimant is a fraud until proven injured."
Florida Statute 440.205 states, "No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law."
Winess argues that McFarlane is acting as an agent of the employer.
From a technical legal standpoint, the lawsuit faces big hurdles and I don't see a whole lot of merit to it. I suspect summary dismissal will follow.
From a professional standpoint the advertising does stretch the boundaries of ethics, and certainly good taste. In my opinion though, it is McFarlane's free speech prerogative and is not legally actionable.
But, this is Florida, and the heat of the summer season, when good taste isn't necessarily driving decisions.
Regardless of whether it is Florida, New York, California or Texas, the practice of workers' compensation law has become much more contentious, competitive and "civil" since I was in the game.
"Civil" as in the lawyers seem to have taken pages out of the civil trial lawyer's play books - i.e. brutal discovery actions, unprofessional conduct in and out of the court room, seemingly fighting for the sake of fighting.
The sad commentary is that professionals would not behave in this manner if it did not garner business. The fact that lawyers feel the need to hold themselves out as particularly tough, fighting fraud with baseball bats, and otherwise trying to impart the impression of hired thugs, is reflective of the deterioration of professionalism in workers' compensation.
Work comp wasn't intended to be a battlefield between employer and employee. Work comp was the white flag, the truce, the peace accord, between business and labor. There is supposed to be a common meeting ground where everyone has an obligation and they play by the rules, congenially, and with good consciousness.
But contention captivates the bigger audience. Statistically, so few cases end up in the dispute resolution process, yet so much effort, time and attention is paid to them that there is a huge increase in the cost factor of such cases.
I think that much of this emotion is driven by a lack of understanding by and between employers and employees.
Employers in general have absolutely no understanding of just how their premium is calculated - they don't understand experience modification factors nor the risk split points and how industry codes affect their scores. When a claim comes through the door, and then later the premium bill comes in the mail, the natural reaction is to equate a claim with an increase in premium, when that is not necessarily the case.
This makes employers angry.
The claim may have some part of the premium calculation, but there are many other moving parts that are difficult to understand unless the employer is large enough to have a risk management professional or someone who is trained in underwriting on staff.
Employees in general don't understand that once a claim is filed its management is taken completely out of the hands of the employer. The employee is thrown into a maelstrom of adjusters, doctors, and other vendors with little to no communication from the employer, trying to walk that thin line between additional injury and discrimination, etc.
Employees will thus feel like the employer doesn't care, that they are just numbers.
This makes employees angry.
So we get disputes, and these disputes get to lawyers who are tough, have baseball bats, and are going to battle for the "rights" of their clients.
But honestly, these ads are no different than the late night television ads directed towards automobile accident claims.
Yep, I guess we have stooped that low.
And so does Florida workers' compensation, just in time for the state's annual Workers' Compensation Institute's 68th conference.
Sure to be discussed is the latest in the battle between claimant and defense attorneys in the state.
The WCI conference is infamous for huge suite parties hosted by some of the big Florida defense firms. It's hard to set yourself apart in that competitive legal market.
One firm seeking to set itself apart that has challenged the borders of ethics, taste, and maybe even the law, is getting sued for posting a picture on its website depicting a partner of the firm holding a baseball bat and declaring "a claimant is a fraud until proven injured."
Claimant attorney Robert Winess filed suit in Circuit Court in Broward County, Fla., April 19 against Stanley Steemer Carpet Cleaner Co. and its law firm, McFarlane and Dolan Law Center, alleging the law firm's website violates a section of Chapter 440 of the Florida Statutes prohibiting the intimidation of injured workers by employers.
The suit faced summary dismissal so it was amended to allege violations of the state's Deceptive and Unfair Trade Practices Act by misleading consumers.
The baseball bat page is still up but others have been removed.
One of the web pages removed showed the baseball bat in a case with the slogan, "At McFarlane & Dolan, we litigate claims with a baseball bat." Another depicted a pair of binoculars and included the slogan, "At McFarlane & Dolan, a claimant is a fraud until proven injured."
Florida Statute 440.205 states, "No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law."
Winess argues that McFarlane is acting as an agent of the employer.
From a technical legal standpoint, the lawsuit faces big hurdles and I don't see a whole lot of merit to it. I suspect summary dismissal will follow.
From a professional standpoint the advertising does stretch the boundaries of ethics, and certainly good taste. In my opinion though, it is McFarlane's free speech prerogative and is not legally actionable.
But, this is Florida, and the heat of the summer season, when good taste isn't necessarily driving decisions.
Regardless of whether it is Florida, New York, California or Texas, the practice of workers' compensation law has become much more contentious, competitive and "civil" since I was in the game.
"Civil" as in the lawyers seem to have taken pages out of the civil trial lawyer's play books - i.e. brutal discovery actions, unprofessional conduct in and out of the court room, seemingly fighting for the sake of fighting.
The sad commentary is that professionals would not behave in this manner if it did not garner business. The fact that lawyers feel the need to hold themselves out as particularly tough, fighting fraud with baseball bats, and otherwise trying to impart the impression of hired thugs, is reflective of the deterioration of professionalism in workers' compensation.
Work comp wasn't intended to be a battlefield between employer and employee. Work comp was the white flag, the truce, the peace accord, between business and labor. There is supposed to be a common meeting ground where everyone has an obligation and they play by the rules, congenially, and with good consciousness.
But contention captivates the bigger audience. Statistically, so few cases end up in the dispute resolution process, yet so much effort, time and attention is paid to them that there is a huge increase in the cost factor of such cases.
I think that much of this emotion is driven by a lack of understanding by and between employers and employees.
Employers in general have absolutely no understanding of just how their premium is calculated - they don't understand experience modification factors nor the risk split points and how industry codes affect their scores. When a claim comes through the door, and then later the premium bill comes in the mail, the natural reaction is to equate a claim with an increase in premium, when that is not necessarily the case.
This makes employers angry.
The claim may have some part of the premium calculation, but there are many other moving parts that are difficult to understand unless the employer is large enough to have a risk management professional or someone who is trained in underwriting on staff.
Employees in general don't understand that once a claim is filed its management is taken completely out of the hands of the employer. The employee is thrown into a maelstrom of adjusters, doctors, and other vendors with little to no communication from the employer, trying to walk that thin line between additional injury and discrimination, etc.
Employees will thus feel like the employer doesn't care, that they are just numbers.
This makes employees angry.
So we get disputes, and these disputes get to lawyers who are tough, have baseball bats, and are going to battle for the "rights" of their clients.
But honestly, these ads are no different than the late night television ads directed towards automobile accident claims.
Yep, I guess we have stooped that low.
I'm tempted to paraphrase Rodney King and ask why we can't just get along - but even Rodney King had more run-ins with the law since the Los Angeles riots in 1992, demonstrating that while you can dress up a troubled character, you can't hide the character's trouble.
And so it is with workers' compensation.
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