It's Time to Fix Workers' Compensation: Seriously

Friday, December 10, 2010 | 0

By Sam Gold
Californians Injured at Work

Well it’s almost the winter of 2010. We have a new Democratic governor and a new Democratic insurance commissioner. But will we have a new way of thinking to address the workers’ compensation insurer fraud issues that have plagued us for years? Only time will tell…..
 
I just finished reading an investigative report issued by sitting insurance commissioner Steve Poizner and his Department of Insurance to address the issue of medical cost drivers. There were three panels of so-called experts, requested by the Insurance Department to testify on the issues of increasing medical costs in the workers’ compensation system. The first panel consisted of representatives of insurance companies. The second panel consisted of self-insured employers. The third panel consisted of representatives of medical providers.
 
A fourth panel was noticeably missing, any representatives of the state’s injured worker community itself. What better way to gauge whether the state’s occupationally injured worker community is truly getting served than to ask a few injured workers just precisely how they are being treated by their employers and their respective insurers. Why isn’t the feedback from the injured workers themselves included in this report?
 
Simply put, injured workers are not considered “stakeholders” in the system that is supposed to heal them and bring them back into the productive work force once again. If not for injured workers, workers’ compensation simply would not exist! They are simply an end to a means for the insurance industry. In fact, this system as it is now does just the opposite of what it was intended to do and in the end eventually places the immense financial burden and expense on society, instead of the private insurers to deal with the occupationally injured.
 
Workers’ comp is no longer about truth, justice, fairness, equity nor honesty. It’s about what you can try to prove in front of a judge, period; plain and simple! It’s all about the money. The money talks and honesty and fairness just quietly exit out the back door. The money buys the influence of legislators willing to prostitute themselves for the special interests of the insurance industry.
 
Times are tough and funding is scarce even for our county district attorneys who have found a great source of revenue from the grants handed out by the Insurance Department's Fraud Assessment Commission (which incidentally doesn’t have an injured worker representative on it either). San Mateo county seems to be notorious for prosecuting innocent injured workers to get their piece of this multi-million dollar pie. No convictions. No grant money. Who cares whether they are guilty or not.
 
One only has to look back to 2005 and the malicious prosecution of a San Francisco peninsula police dispatcher whose life was almost destroyed by a corrupt township, district attorney, joint powers insurance authority and a Superior Court judge who felt it was well and proper to suspend all her constitutional rights and to attempt to railroad her into a conviction for workers' compensation fraud. They got their conviction (they used a last ditch ambiguous hook in the law when all else failed) which was eventually overturned by a unanimous decision of the California Court of Appeals.
 
Had she not had a house to mortgage to afford the cost of the appeal, and was stuck with a public defender, where would she be? And this was all done by her employer, the township of Atherton, knowing that she would have absolutely no recourse with which to hold them accountable. Another ambiguous section of the California state Government Code took care of that which allows another municipal or county employee to stick it to another, even if the action is malicious and without any merit or probable cause whatsoever!
 
821.6.  A public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.
 
This year they’re sticking it to a former mayor and recently re-elected city councilwoman of Daly City with allegations of 15 counts of felony insurance fraud. Sounds like they’re getting desperate for cash!
 
But when prima facie cases of insurance provider fraud and employer fraud are brought to the attention of the insurance commissioner and his fraud investigators as well as county district attorneys, they seem to reach a deaf ear and get filed away. I guess that they only give out money if you go after the little guy who can’t defend him or herself, not the multinational insurance providers.
 
Maybe incoming insurance commissioner Dave Jones will put a stop to this nonsense before the attorney general and Department of Justice have to get involved. Maybe the Senate Labor & Industrial Relations Committee will hold oversight hearings with reference to the blatant insurance provider fraud that is purposely hidden from the view of the voters. Time will certainly tell. This nonsense has to stop!

Sam Gold is director of Californians Injured at Work, an injured worker advocacy group.