Lawmakers Call Comp System Broken, Say Additional Reforms Necessary

Thursday, July 13, 2017 | 5

SACRAMENTO, Calif. — Amendments to a bill intended to help victims of terrorist attacks receive workers’ compensation benefits staved off a showdown Wednesday between labor and employers over utilization review and evidence-based medicine.

Assemblywoman Eloise Reyes

But testimony provided in support of the measure prompted three members of Senate Committee on Labor and Industrial Relations to question whether injured workers are getting what they bargained for with California’s workers’ compensation system.

Assemblywoman Eloise Reyes, D-San Bernardino, said during Wednesday’s hearing that she was removing provisions recently added to Assembly Bill 44 that would have created a presumption that treatment requested by physicians for patients who are terrorism victims is medically appropriate. The bill would also prohibit employers from citing a lack of documentation to rebut the presumption.

The June 29 amendments also would have allowed the Workers’ Compensation Appeals Board to determine whether treatment for terrorism victims that is denied by UR and independent medical review is appropriate. The amended bill would also have added injuries sustained in a terrorist attack to the list of conditions that are eligible for up to 240 weeks of temporary disability benefits, rather than the 104 weeks most injured workers receive.

The committee on Wednesday unanimously voted to pass the amended bill, which requires employers to provide “immediately accessible advocacy services” to help workers injured in an act of domestic terrorism obtain medical care, and to assist providers in getting treatment authorized and payment for services provided. No one testified in opposition to the bill.

A bill analysis prepared by committee consultant Gideon Baum notes that Reyes had little choice in the matter if she wanted to move forward with the measure. Baum’s analysis says that after the June 29 amendments, provisions in the bill were “substantively the same as the language that was removed through amendments taken in the Assembly Insurance Committee.” As a result, Baum says Reyes was told her bill would be held in committee.

The bill was set for hearing only after Reyes agreed to accept amendments that revert the bill to the form it was in when it left the Assembly.

Reyes did receive some concessions in the form of a promise that committee staff will continue to work on three outstanding issues relating to the bill, including:

• Whether it should cover first responders.
• Establishing a definition for “immediately accessible advocacy services.”
• Determining whether TD benefit duration should be extended for victims of the Sen Bernardino terrorist attack.

Sally Cardinale, a San Bernardino County worker who survived the Dec. 2, 2015, shooting at the Inland Regional Center, told committee members that the county used UR to cut off her anti-anxiety and depression medications cold turkey. She had already returned to work when the medications were cut off, but says she ended up relapsing and had to be taken off work as a result of the county’s decision.

Cardinale also said her co-workers faced difficulties that include waiting nine months for the county to approve a bone graft, and a worker being held in the hospital for five days as the county dragged its feet on approving post-surgical painkillers.

Julie Paez, a San Bernardino County worker who was shot twice in the attack, said “everyone who lived to leave that room was injured physically or emotionally,” but they still have to fight with the county for benefits. She said it’s clear to her that workers’ compensation is not set up to care for workers injured in terrorist attacks.

She was also critical of how the county handled claims filed by survivors of the attack.

“If we had any confidence in our employer, we wouldn’t be here,” she said. “They readily admit to doing the minimum required by law.”

County workers started reporting problems with their workers’ compensation claims as the one year anniversary of the attack approached. Media outlets ran with stories about rampant denials and abuses of the utilization review, as well as the IMR process that was a hallmark of the SB 863 reforms.

The county in a series of statements placed the blame for treatment denials on treating physicians, saying they failed to properly document their requests for authorization. The Division of Workers’ Compensation in February largely corroborated the county’s claim, saying its review found the county had approved 90% of treatment requests it received, and hypothesizing that a lack of documentation was to blame for treatments that were denied.

The DWC noted in its report that it didn’t have access to UR files, making it difficult to know why requests were initially denied. But the division also said that based on its review of IMR decisions, treatment requests were “typically” denied because of a provider’s failure to provide adequate clinical rational or appropriate documentation to justify requests.

“The fact that a large percentage of the denials was concentrated among a relatively small number of providers further suggests that this was a particular problem with certain providers and not typical or characteristic of interactions as a whole,” the DWC said.

But several members of the Senate Labor Committee said what happened in San Bernardino highlighted problems with the state's work comp system as a whole.

Committee chairman Steve Bradford, D-Gardena, said “this is a flawed system” and one that is “truly in need of reform, not repair.” He also said it is unacceptable that a terrorist attack was needed to spark conversations about whether the system does what it’s supposed to do.

Committee vice-chairman Jeff Stone, R-Temecula, said he does not believe the experiences of the county workers who survived the terrorist attack are unique in the work comp system or even in San Bernardino.

Stone said he knows of a jail guard who contracted a methicillin-resistant staphylococcus aureus, or MRSA, infection while working for San Bernardino County. The worker, whom Stone did not name, lost all four limbs as a result of the infection, and had to fight the county to get attendant care and other assistance he needed.

Stone called for “a whole new look at the county.” And he said lawmakers “need to retool our work comp system” and might need to make reform “a high priority for next year.”

The sharpest criticism came from Sen. Hanna-Beth Jackson, D-Santa Barbara, who said the county workers who testified Wednesday are “a perfect example of how this system is broken.”

Jackson said the grand bargain in which employees gave up the right to sue employers for work injuries in exchange for prompt medical treatment no longer exists.

“The irony that we have to get to the level of a terrorist attack, and the fact that you were not given the kind of care that you were entitled to, that you deserved, that human empathy and compassion call for, I’m astonished but not surprised,” she said.

Jackson also called for “another look at this system.” She said she thinks a lot of the costs in the system can be attributed to not giving people medical care early enough.

“Why do we assume that everyone is trying to cheat the system rather than assume everyone is trying to get well?” she said. “If we put the money in the front end, we’d save a heck of a lot of money on the back end.”

In addition to passing AB 44, the Senate Committee on Labor and Industrial Relations approved five other work comp bills during Wednesday’s hearing, including measures that would require the DWC to fully exhaust the $120 million in the Return-to-Work Supplement Program each year and prohibit apportionment decisions based on pregnancy, childbirth or related conditions.