Polar Bears, Thermograms and More

Thursday, May 22, 2008 | 0

By Julius Young

If global warming in the Arctic continues apace, it looks like polar bears are headed towards extinction.

Scientists estimate that of the estimated 10-30 million plant and animal species on the planet, that as many as 50,000 are becoming extinct each year due to human and environmental factors.

In the California workers' comp world, we've seen extinction up close over the years.

The following are extinct (or close to it) in comp. Thermograms. Chymopapain injections. Backyard hot tubs as therapy. Weekly chiropractic sessions for years on end. Live medical testimony. Board medical examiners. Medical treatment mills that were "presumed correct". Sub rosa films and VCR tapes. California based comp insurers (well, maybe that's made a small comeback). Billboard advertising by comp lawyers. Marketeers with Dom Perignon and stretch Hummer limos at comp conferences.

Good riddance to most of it.

Will we see other extinctions over the coming few years?

It's hard to know what will become extinct, but there are some likely endangered species.

Pre-SB 899 legislators are an endangered species. Yes, some are moving from the Assembly to the Senate or vice versa. But due to term limits, the number shrinks every year. That means a lack of institutional
memory about the comp system as it existed before SB 899 as well as a collective ignorance regarding the process by which SB 899 was enacted.

The 100% case is an endangered species. Under the AMA's restrictive impairment system with the limitation of combined disability charts, you'd have to be dead to get to 100% even in many catastrophic cases, except where the statute presumes permanent total disability. The unknown is whether under Costa applicant attorneys will manage to break through the AMA ceiling for severely disabled workers.

Voc rehab counselors. There are some differing views among attorneys as to whether vocational rehab for pre 1/1/04 cases survives after 1/1/09. In any case, it's a benefit headed toward extinction. And with it go the vocational rehab counselors and other service professionals that did testing and training. A handful will remain behind as expert witness consultants in labor market and diminished future earning capacity issues in "Costa" cases.

Not extinct but endangered is the unaffiliated doctor specializing in workers' comp. Medical provider networks have taken much of the business from many of these doctors. And as doctors unaffiliated with MPNs retire, it's not likely that there will be many doctors wanting to enter that type of practice.

Recent years have seen expansion of doc-in-the box groups that hold themselves out as having "offices" in every nook and cranny in California. QME regulations are being drafted which may tighten up on this practice, which essentially games the QME system. Depending on the strength of the regs, it's possible that the traveling doc-in-the-box
groups may be less viable. Among other things, they may be facing the need to make themselves available for depositions in the locations where the exams took place.

Workers' comp psych treatment is another endangered species. Even if an insurer is willing to authorize psych treatment, ever try finding a psychiatrist willing to treat a workers' comp case. In many areas of California it's simply impossible. In major metropolitan areas it may be easier to find a psychologist to do the counseling, but unless the psychologist has contacts with a medication management psychiatrist, it's an uphill project to find a psychiatrist.

The Subsequent Injuries Fund isn't extinct, but will likely be used much less frequently. Under AMA guidelines, far fewer workers hit the Labor Code Section 4571 70% overall threshold or the industrial component 35% baseline. Moreover, with more attempts to apportion under Labor Code 4663 and 4664, workers may see deductions from awards for non-industrial "causes" but be unable to collect from the SIF because the condition was not "labor disabling" prior to the subsequent industrial injury. Under the 1957 Bachrach case (SIF v. IAC) (Bachrach) 147 Cal. App. 22 818 , the existence of a non-disabling pathological condition is not sufficient to justify entitlement to SIF benefits. And per Franklin v. WCAB (1978) 79 Cal. App.3rd 224, a retroactive prophylactic work restriction will not support SIF liability. Bottom line, it will be harder for workers to get to the SIF promised land.

Will lawyers be extinct? No. An endangered species? To some extent, depending on many circumstances. We've already seen shrinkage in the "comp law community" on both sides of the fence. As some lawyers retire or exhaust their inventory of pre-SB 899 cases, there will be further shrinkage. I'm told that a lot of the defense firms out there are "treading water". Perhaps the remaining attorneys will be working on fewer cases of more seriously injured folks. Whether those most endangered are in large firms for defense and applicant, or whether the solo folks (some of whom can operate with extremely low overhead) are the ones who will survive best or have the most trouble, isn't clear.

Also headed for endangered status are UR and bill review groups that depend for their profitability on incentive arrangements reflecting how much they can cut costs to justify their fees. Legislation outlawing these practices is likely to come from Sacramento later this year.

Some SCIF personnel may be on the list as well. SCIF's market share is down by over half from where it was in 2004, yet the carrier still is amply staffed. It's not clear what the new SCIF leadership plans to do about cost cutting.

Julius Young is a partner of Boxer & Gerson, a disability and workers' compensation law firm in Oakland. This column was reprinted with his permission from his blog on workers' compensation issues, at http://www.workerscompzone.com