Good Medicine is Good Work Comp Policy

Monday, October 19, 2009 | 0

By Thomas Calderon

As the California Workers Compensation debate has raged on in recent years we have seen business, labor, applicant attorneys and medical providers square off in battle, doing their best to protect their interests.  All have good arguments.  All have a major stake in the system.  And, all have suffered defeats.  Although, I have to say that business and the insurance industry have gotten the lion share of spoils in recent years.

But what about the injured worker?  How has he or she fared as a result of all of these reforms and “cost cutting measures” to the Work Comp. System? Has access to medical services improved?  Is it easier to navigate through the Comp. courts system?  Has the rate of return to work in the case of major injuries increased?  And, finally, does the system deliver the kind of results called for by the spirit and the letter of the law set out by the California Constitution?

Let’s review what it states:

“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 treatment as is requisite to cure and relieve from the effects of such injury…”

It seems clear that injured workers should have very high expectations as to their rights set out by the California Constitution.  The framers clearly knew that if the injured worker were to give up the right to a private cause of action, he or she should have other constitutional guarantees in its place.

Not only does the Constitution guarantee “adequate provisions for the comfort, health and safety and general welfare of any and all workers,”  it also provides for “those dependent upon them for support.”

So let’s talk about the compensation side of the equation.  There isn’t a Democrat in Sacramento that doesn’t think that the permanent disability schedule needs re-working.  They feel that they were sold “a bill of goods” during the last round of reforms and are anxious to undo their mistake.  Let’s assume for the moment that the  Governor and Legislature fix the permanent disability schedule and even increase the current disability payments to $1,000.00 a week.  What would this mean to the injured worker with a 100% disability rating?

In the case of Deputy Sheriff Erik Neuman, he lost his leg as a result of a sniper training injury.  He went from earning $178,000 a year to $23,000. 

Or, Erica Domen whose left arm was severed at the shoulder when a chocolate grinding machine was turned on accidentally by a co-worker.  She was earning $40,000 a year and now receives $230.00 a week from the Work Comp System.

How can these injured workers support themselves, let alone their dependents on this amount of money?  They can’t.  There are hundreds of thousands of stories like Erik and Erica; stories of pain and suffering, drug addiction, obesity and suicide.  If you are seriously injured on the job, your chances of picking up the pieces and moving on to a new job with equal pay are slim to none.

What about the medical side of the equation.  Cuts and scrapes are routinely treated at the local hospital or occupational medicine clinic.  The most obvious of injuries seem to be accepted without question by the employer and in these cases the injured worker returns to work with little hassle.

But what about the not so obvious injury, the slip and fall, soft tissue injury; or the repetitive motion ailment.  How are shoulder, knee and back injuries treated?  Does the injured worker receive the same prompt attention and does the system make every attempt to “cure and relieve,” the injured worker in these cases?

The simple truth is that these kinds of injuries are routinely denied by comp carriers.  The injured worker has no choice but to get an attorney and go to court.  These cases take more then 3 years to wind their way through the Work Comp court system, if not longer.  In the meantime, the applicant exhausts their temporary disability benefits, they use up their physical therapy allotment, surgery authorizations are held up pending case resolution and is left with only one alternative for pain management: drugs.

Case in point is Stephen Mallen.  He was working a Madonna concert when the stage collapsed on him, fracturing his back.  His MPN doctor sent him to some physical therapy and provided him with some pain killers.  He has tried to get the insurance company to authorize a specialist to find a more permanent solution to no avail.  He is in too much pain to work and is in financial ruin.

There are thousands of examples like Stephen Mallen where what they need is the proper medical care so that he can get back to work.

Employers and insurers talk about wanting to reduce costs in the Work Comp System.  They complain about the fraud and abuse.  They accuse doctors and providers of over treating injured workers.

I am sure that there is some abuse on the part of the employer and worker alike.  But the claims that providers are still behaving like the stereotypical “applicant doctor” during the “wild west days,” prior to reforms put in place since 2003 are frankly unfounded.  In fact, pre-authorization of medical procedures are common practice, so there are very few procedures taking place without the approval of the payer.

As a result of the creation of the Medical Provider Network the injured worker sees a doctor on one of these panels, the injury gets diagnosed and the injured worker gets his or her surgical procedure, right?  Wrong.  On average, it takes 18 months to two years to get a surgery authorized, if it is deemed appropriate after the case goes through the Utilization Review process.  These doctors are screened and then monitored and can be kicked off the panel without recourse if the network manager believes that a doctor is over treating. 

How is it possible to over treat with such scrutiny?

And yet, even after UR and the pre-authorization process is complete and the surgery is performed, it takes that doctor or hospital two years or more to collect their fees.  Why, because insurers refuse to pay fee schedule, paying only a portion of the cost, forcing the provider to lien the remainder of the bill, fighting it out in the Work Comp court system.

I have doctors and other providers telling me that if they were to get paid like Medi-Care or Medi-Cal, electronically within 45 days, they would consider reducing their fees from the current fee schedule because they could reduce their billing and collecting operation and avoid sending hearing reps. to the boards when adjudicating their liens.

During the final days of the last Legislative Session, there was a lot of chatter about additional reforms, ranging from statute of limitations on liens to reducing the current fee schedule for both in and out-patient procedures.  The thinking behind these reductions was that by reducing cost on the medical side, those savings could be used to fix the permanent fee schedule.

This kind of elementary thinking totally ignores the real problems that plague the system and by stealing from the medical side to “fix” the compensation schedule only dooms a seriously injured worker to a life of poverty and suffering.

The only way to truly adhere to the spirit and the letter of law as laid out in the California Constitution is to do everything medically possible to “cure and relieve,” that injured worker and get him or her back to their original job.  By refusing to pay the real cost of treating that injured worker we are violating a fundamental constitutional right and breaking the compact that was struck between the worker and employer:  I give up my right to a private cause of action in exchange for proper medical care and compensation for my injury.

Thomas Calderon is a former state Assembly member who served as chairman of the Assembly Insurance Committee from 2000 to 2002. He is now president of the Calderon Group, a public affairs company.</i>