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Editor's Note: WorkInjury.com also invited State Senator Charles Poochigian (R-Fresno), who many consider the "architect" of SB 899, as well as Andrea Hoch, the current Administrative Director of the Division of Workers' Compensation, to contribute "yes" arguments for this Point-Counterpoint edition. Both, however, refused to respond despite repeated requests.
Let's start with a basic premise. SB899 was intended to improving the lot of every single California employee including, but not solely, those that actually have a workers' compensation claim.
Workers' compensation only pays benefits to workers who have jobs. Prior to SB899, California was losing employers and more importantly, the jobs associated with those employers. We only had to look to Las Vegas to see our future.
SB899 is accomplishing its purpose. California employers are beginning to come out from under what had been staggering increases in their workers' compensation premium. That has meant a decrease in the job exodus to other states. Additionally, increasing an employer's profits enables them to pay higher wages.
The most recent data shows employers receiving an average 16% reduction in their premiums and the latest recommendation from the WCIRB is for further reductions. There can be no doubt this has increased the job security of every single worker in California and THAT alone makes SB899 good for employees.
While the saving of jobs, by itself, validates SB899 as being good for Californian's jobs, the naysayers would have you believe it is at the expense of those requiring benefits from the workers' compensation system. Indeed, just this week the San Francisco Guardian had an article written by one of their reporters decrying her fate and that of others. Just like the current debate over SB899, her criticisms are anecdotal. She comments on the difficulty of healing from a repetitive stress injury and notes that it was yoga that has ultimately been the most beneficial treatment.
The fact remains, people experienced repetitive stress injuries prior to SB899 and they will continue to experience these injuries. What SB899 did was create greater structure around the medical care. The creation of medical provider networks assures that workers will receive appropriate care immediately upon injury and will avoid the tug-of-war that ensued at the end of 30 days post-injury under the prior system. Rather than a misinformed employer or claim adjuster directing an employee to an under qualified medical clinic, the state must certify all medical provider networks. The inexperienced adjuster can no longer make a referral to their favorite doctor. The employee can choose from among many qualified physicians in the network and can even make as many as two changes if they are dissatisfied with their treatment or the original physician. That simply couldn't happen in the old system.
Employer medical networks must also provide for continuity of care should a physician no longer be able to treat the patient. That was never assured prior to SB899.
The treatment by the physician formerly was solely dependent on the opinion of the physician who may or may not have been familiar with treating that particular body part. Now, not only does the network have to offer specialists, but the treatment modalities must be accepted as reasonable by American College of Occupational and Environmental Medicine. In other words, the doctor must provide the treatment that has been determined by his peers as being the most beneficial. There is no longer a motivation to over-treat workers with unproven treatments. Anyone in California workers' compensation for more than ten years can remember the abuse and squandered monies on thermograms and chymopapain. That simply won't happen under SB899.
Finally, just as was the case in the article by the reporter, applicant attorneys and injured workers will describe settlements they believe to be inadequate. The problem is that all of these people have lost sight of the purpose of workers' compensation. Workers' compensation was never envisioned to be the same as an accident claim heard in the civil courts.
From the beginning of the California system, early in the last century, the bargain was employers would accept the need to treat workers legitimately injured on the job and in return employers could not be found at fault for the injury. Employees do NOT have to prove their case to get a benefit and no one is determined to have caused the injury.
SB899 is doing its jobs. Californians' jobs are more secure. California employees now have greater flexibility to choose a qualified physician. The treatment itself is peer approved and the state still has its watchdogs to assure it is being administered expeditiously and fairly by the insurance carriers. Unproven anecdotes aside, it all sounds like a success to me.
- DKO
First of all, SB899 was never intended to benefit the injured workers. It was intended to benefit the employers by driving down the "costs" of workers' compensation insurance which the industry stated was caused by spiraling medical and benefit costs, including permanent disability, temporary disability and medical treatment.
SB899 helped the INSURANCE INDUSTRY by capping temporary disability at two years (how does this HELP injured workers?); by using the AMA Guidelines to rate "impairments" and then use their percentages without any attempt to translate that into "disability" knowing that the AMA Guides would completely eliminate compensation for injuries like carpal tunnel without positive nerve conduction studies or limitations in ranges in motion, and reduce severely the compensation for other injuries, up to 70% (helps injured workers?); by REDUCING the number of weeks for disability under 72% (intended to help injured workers?); by shoving them into MPN's (help who); limiting care to the ACOEM Guidelines which are NOT the penultimate treatise on treatment. In fact, the medical community as a whole does not believe in the ACOEM Guidelines.
I went to the ACOEM Conference in Toronto, where other treatments were discussed that may be highly effective but the appropriate "peer review" had not been done. In fact "discography" was approved because many of the doctors had ownership in the facilities where discograms are conducted. The ACOEM came out of the car factories and Boeing Factories and their industrial medicine department where there sole concern was to reduce days off and limit care. This is certainly not designed to help the injured worker and denies them cutting edge medicine in areas like cancer treatment, and transplants.
Then to cap it off there was no regulation of the insurance industry leaving it to the industry to decide what rate reduction was appropriate. Make no mistake, SB899 was intended to help the Governor's friends at AIG and other insurance companies that dumped their ill gotten gains into his coffers. It has done a fine job of that.
Jobs were never leaving the state. The stories were all anecdotal evidence. The wages in California are going up because of the increase in the minimum wage, not because insurance prices have gone down. There have been huge layoffs in the tech industry in San Diego despite SB899, so where is the job security?
SB899 did not end the 30 days of control and did not end the tug of war over care. It remains to be seen what happens when an MPN doctor wants to have something performed that the adjuster does not agree with. Certainly SB227/228 and Utilization Review have done NOTHING to expedite the provision of medical care, and, in fact have caused considerable delays and far more expedited hearings.
There was continuity of care prior to SB899, with the HCO statutes from whence the continuity of care provisions derive. However, the carriers are allowed to take doctors off of the provider list including for "economic" reasons, i.e., recommending too much care. So, how does that ensure "quality" care when the doctors are afraid of being kicked off for providing "too much" care?
Every employee has to prove their case to obtain workers' compensation benefits. The concept of "negligence" is replaced by AOE/COE (arising out of employment/course of employment). The employment HAS to be the cause of the injury in order to get compensation even though the "fault" concept has been removed.
Lastly, while Worker's Compensation was never envisioned to be the same as a "personal injury claim" in the civil courts, the California Constitution states that the benefits should be "adequate". The Rand Study found that the benefits paid for disability under the old Permanent Disability Rating system did not "adequately" replace the lost earning of the injured worker, especially with the lower percentages of disability.
Replacing a system that has already been found by empirical study to be "inadequate" by a system of evaluating disability that eliminates compensation for disability stemming from legitimate soft tissue injuries, fails utterly to properly consider the effects of pain on a person's ability to work, reduces the compensation for permanent disability up to 70% of the old Permanent Disability Rating Schedule and reduces the weeks of compensation fails utter to meet the constitutional mandate to ensure that workers' compensation benefits are "adequate."
SB899 is a travesty and a tragedy with no redeeming features.
- LFA
SB899 Has it HURT injured workers? Yes. How? Let me count the ways:
1. Reduction in permanent disability-The change from the current Permanent Disability Rating Schedule (PDRS) to the AMA guides leaves many previously "rateable" disabilities such as carpal tunnel and epicondylitis and inability to do repetitive work without any compensation. This is because the AMA focuses on the range of motion and positive nerve conduction for studies and eliminates pain except for 3% as discussed in Chapter 18 of the Fifth Edition. Many disabilities which previously rated up to 40% will be worth nothing. I have a case with a shoulder, elbow and wrist injury for one upper extremity which, under the old schedule takes a 15% standard and rates to 19%. Under the new rating schedule the combination of disabilities rates to 13%. The doctor gave nothing for pain. The difference in money is over 4,000.00. A different client with CLEAR evidence of nerve compression had a 35 standard under the old PDRS according to the treating physician and takes a MAXIMUM 8% standard under the new guidelines. Dr. Paul Leigh who did the study commissioned by the California Applicant's Attorneys Association found that there was as much as a 70% reduction in permanent disability ratings from the old to the new schedule. The Rand Study mentioned in Labor Code Section 4660 found that the old PDRS did not fully compensate injured workers for their economic losses over their lifetime and this was worse for the disabilities under 15%. The new schedule does nothing to correct this inequity or to correct the economic inequity that was found under the old schedule. People who could barely exist under the old schedule are doomed under the new.
2. Apportionment: The law requires that prior awards be subtracted from current awards. The language that this is a "conclusive presumption....affecting the burden of proof" does nothing to help matters. The increasing litigation just further delays what little compensation is left to the injured workers. Also, how do you do the math using two completely different methods of rating disabilities? A disability rating 50 to 100% under the old schedule may be 0-50% under the new. What do you do with a prior award where subtracting either dollars or percentage puts the applicant in a minus situation? Force them to pay the new employer because the newest injury made them better than they were with only the prior injury(ies)?
3. Medical Provider Networks (MPN): Well we have literally hundreds of thousands of prior awards and now the Administrative Director says we can put them in the medical provider networks. Has anyone tried to find out who is a doctor in the network? Used the internet? Called the carrier? If you have, the result is hardly inspiring. No-one call tell you and there is no easily accessible list. Further, I tried to make the switch and then had the adjuster say the letter was not meant for my client and the doctor he was with was just fine. There are also apparently A and B lists, preferred and non-preferred lists and many hide the ball lists. Many carriers are contracting with doctors offering 30% below fee schedule to be on the "A" or "Preferred" list. When asked, people are given the "A" and "Preferred" lists. Doctors who demand the fee schedule, including the mandated 5% reduction are hidden from the patients and attorneys who represent the injured workers unless they know to ask for the "B" or non-preferred list. Who's "gaming" the system now? Then once in the system, who knows what happens since that hasn't been tested yet.
4. Medical Legal reports (4060, 4061, 4062, etc.): Represented applicants can still get their own QME and so can the defense. However, post 1/1/2005, AOE/COE disputes are determined by a panel QME, no assurance you get someone that knows what they are doing; disputes over permanent disability and medical treatment are given to panel QME's represented or unrepresented, no control over the quality of the doctors on the panel. The biggest lament from the insurance industry is the "panel" QME that does not know how to write a report and ends up with either an inadmissible report or an outrageous level of PD. Are we children that need to guided by the loving hands of the same Administrative Director that brought the horrors of the new rating manual? Does the government really know better than the attorneys and claims representatives about who should be giving an opinion that determines the level of compensation and treatment that an injured worker gets? Do literally life and death decisions about medical treatment belong in the hands of panel QMEs?
5. Access to the court system: with the lower levels of disability and compensation, difficulty in obtaining medical and complex litigation over what should be simple issues, there will be more unrepresented and unhappy workers in the system. The currently overworked Boards will be flooded, Information and Assistance Officers will not be able to handle the flood. The frustration in the system will inevitably cause a backlash as mentally unstable workers may become violent.
So, to sum, the injured workers are not benefitted by SB899, they are hurt by it. But not only the injured workers are hurt. This bill has hurt the court system and all the people who have access to it from the injured workers to lien claimants, attorneys, judges, court staff, and adjusters. The big winners: Insurance Companies.
- LFA
How do you begin a rebuttal to an argument that ends with a rationale for an "inevitable backlash" and violence?
Hyperbole and hysteria are the latest and one hopes the last tactics of the desperate who can no longer profit from the broken system that was driving employers out of California.
What begins as a rational discussion, of the on-going adjustments that are being made to assure equity for all types of injuries, ends with an irresponsible statement suggesting that the reasonable changes mandated by SB899 will result in "mentally unstable workers" becoming violent.
Let's put the absurdity of that statement aside.
The next category is unsupported statements and "straw man" arguments. The writer makes allegations, with absolutely no reference to factual evidence, then uses the unsupported allegation as proof of harm to workers.
She alleges that she could not determine the name of a doctor in an MPN network and notes calls to the carrier were "hardly inspiring". Only a few paragraphs later the writer then states, with absolute certainty and conviction, that carriers have created lists "A" and "B".
Which is it? Did the carrier provide a list or not? It would seem the writer got a list or she would not be able to be so certain that the alleged multiple lists even exist.
Again, this is the same pattern exhibited by those whose ox was gored by the changes mandated by SB899. Changing metaphors, as one legislator described it years ago, they were the "pigs at the trough".
What is most disconcerting about the tactic of such unproved allegations is the writer also ignores the fact that there are procedures to address any misapplication of SB899. Employers and insurers are required to provide employees with the doctors in the MPN not a selected subset of those doctors. If the alleged abuse of the MPN process actually exists it is incumbent on anyone who knows of the abuse to report it to the Department of Insurance.
Finally, let's look at one of the more technical arguments the writer makes regarding apportionment. "The law requires that prior awards be subtracted from current awards." Is the writer actually contending that workers SHOULD be compensated for the same body part and same injury multiple times? Double-dipping in workers' compensation is no more desirable than a public official double dipping for retirement benefits.
SB899 is good for all employees but, as we can see, it clearly is not good for all attorneys and that seems to be a worthwhile and welcome outcome.
- DKO
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