Tuesday, July 19, 2016

SB 863 (De Leon) benefits employers, harms injured workers

News Release # 2016-73, Department of Industrial Relations (DIR), July 15, 2016, boasts that workers comp reforms have shown "benefits for injured workers, employers." This writer agrees that the work comp reforms mandated by SB 863 (De Leon) have brought about substantial benefits for employers.

SB 863 is supposed to work by relying on "evidence-based medicine to guide treatment decisions." It is supposed to settle treatment disputes by allowing independent medical reviewers to rule on the correctness or not of decisions made by Utilization Review. David Lanier, Labor and Workforce Development Secretary, is quoted in the DIR release as follows: "The primary goals of the 2012 workers' compensation reforms were to increase benefits and improve medical care for injured workers, and to control costs for employers."

This DIR release is its 3rd annual report since SB 863 took effect on 1 January 2013. Among its boasts are that the projected average medical costs per claim have gone down about 8% from 2011 to 2015 and that"benefits for workers also improved." The report says that "a focus on evidence-based medicine  has had wide-ranging impact, reducing costs and unnecessary treatment and creating Independent Medical Review (IMR) to resolve disputes." In support of these allegations, DIR Director Christine Baker said "Stakeholders have had valuable input at every stage in this process." This publication takes issue with this assertion. Here's why:

* Certain kinds of treatment such as physical therapy are limited to 24 sessions even though there is no peer reviewed evidence-based guideline that avers such a limit. Hence, P.T. to  injured workers is often prematurely stopped thereby delaying recovery and return to work. Initially costs are curtailed by this arbitrary stoppage; eventually, however, the injured worker remains without treatment, withdraws from the workforce, and applies for social security.

* In TotalCapitol.com, 2 April 2014, this writer described a situation where a Utilization Review doctor called a treating doctor's office at 10 PM to deny authorization for care. Not surprisingly, nobody was in. The PTP or Primary Treating Physician asked for a second review by a different IMR doctor.  The request was granted. A second review was done. The result was the same. Authorization to provide care was again denied. Dutifully, the second IMR doctor notified the PTP, this time at 4:34 AM (message left on PTP's exchange).

* It was reported that these  two denials of care were made in a careless manner reflective of unprofessional conduct. No action was taken by the Medical Board of California (which said it didn't have jurisdiction).  The names of the IMR doctors whose poor judgement in this matter led to denials of care for injured workers were by law (SB 863) shrouded in secrecy.

* Utilization Review doctors need not be licensed in California. IMR doctors also do not need to be licensed in California.  Their denials of authorization for care may shut down treatment and lead to Lanier's and Baker's cost savings for employers -- at the expense of injured workers. Somehow this harmful situation is acceptable to the administration. Licentiates, subject to the discipline of the state medical board, might not be so cavalier about leaving messages about treatment rejection as telephone messages at 4:34am.

* Over the years a plethora of cases have been reported by this author and by other treating physicians. Some have been litigated successfully.  The ultimate reform has still to be made, i.e., repeal of SB 863 (De Leon) and formal licensing in California of any doctor who does either UR or IMR on injured workers in California.


TotalCapitol.com, "Utilization Review Hypocrisy, " 2 April 2014;

Workcompcentral, "Utilization Review: Hypocrisy in Velvet Gloves," 2014-03-26;

Workcompcentral, "Employers Line up in Opposition to 'Reform' Bill," 2016-06-23: SB 563 (Pan) would prohibit offering incentives to physicians conducting utilization review to deny treatment requests and would give Division of Workers Comp authority to review UR contractors to make sure they don't include such incentives"

COMMENT: while we also favor this bill we prefer repeal of the entire SB 863 which we no longer feel is being applied in good faith by insurers or employers. 

Workcompcentral, "How UR and IMR work together to deny injured workers care," 2014-08-18

"How to practice medicine without a license," San Francisco Chronicle, 8/29/08.