APPORTIONMENT AND SIBTF (formerly SIF): Acme Steel v. WCAB & Borman

When Labor Codes 4663 and 4664 were changed pursuant to SB 899 it was understood by the legal and medical stakeholders that major changes in applicable case law were in the making and that the issue of apportionment was about to become even more difficult than it already was. The upshot is that medical evidence that may be considered substantial and that was not rebutted may still be considered even in cases where Permanent Disability has been awarded at the 100% level. 

In Acme Steel v. WCAB & Borman, Acme Steel appealed the verdict in favor of Borman wherein Borman was awarded 100 percent permanent disability without apportionment for hearing loss. It was Borman's contention that his hearing loss, associated with injury  to other body parts, was attributable to his job with Acme (DOI 10/16/03). Three different AMEs worked the case, orthopedics, neurology, and otolaryngology for hearing loss. 

The hearing loss was reported as apportioned to both industrial and non-industrial factors, 40% to cochlear degeneration on a non-industrial basis, 60% to "occupational factors," e,g., hearing loss caused by on-the-job noise. The applicant's hearing loss was diagnosed as secondary to cochlea degeneration in turn secondary  to congenital disease of the Organ of Corti.  However, it was also understood that in 1994 the applicant sustained loss of consciousness secondary to an explosion that occurred on-the-job and that catapulted the applicant across the room. A workers comp claim was filed at the time. Applicant Borman was awarded 22% disability; however, his hearing continued to deteriorate.

Applicant Borman's hearing loss was bilateral from the beginning. Hearing aids were advised. Ten years later the AME found that there was "further hearing loss" and that this "further hearing loss ... was the result of both cochlear degeneration ... and persistent noise exposure." 

In 2012 the Workers Comp Admintrative Law Judge (ACALJ) found that Applicant Borman's injury was ratable under the post-2004 Permanent Disability Rating Schedule (PDRS) and that Borman showed 100% loss of earning capacity so that he was entitled to Permanent Total Disability (PTD). The WCALJ also said that LC Sec. 4664 was not pertinent because there was no earning loss before the prior award. In other words, Borman had continued to work while his hearing loss got worse. That's about when ACME appealed by stating that the WCALJ failed to apportion injury pursuant to LC 4663. In other words, there was prior evidence showing 40% hearing loss on a non-industrial basis. 

The WCALJ replied that she was not bound by the findings of the AME because there was "convincing vocational testimony regarding loss of earning capacity." In 2013 WCAB denied ACME's petition for reconsideration. It was at about this time that matters got hot. The case came before the First Appellate District Court. Division One, "Not to be published,"  7/16/13.

The discussion led off with this remark: "When a workers' compensation decision rests on the Board's erroneous interpretation of the law, the reviewing court will annul the decision." The Appellate Court then indicated that the WCALJ's decision asserting that Borman could rebut the rating schedule's DFEC by offering vocational expert testimony showing evidence of 100% loss of earning capacity was proper; however, it then also said that the WCALJ erred "by failing to address the issue of apportionment." 

This assertion was based on changes in LC Sections 4663 and 4664 which were enacted in 2004 as part of SB 899. These changes reflected changing concepts re the issues of apportionment and causation in favor of employer and insurance interests for any portion of a disability that would not have occurred but for the current industrial cause and where injured workers had "wide latitude to disprove apportionment based on prior permanent disability awards by demonstrating that they had substantially rehabilitated the injury." 

The Supreme Court was quoted as saying that "the plain language of new sections 4663 and 4664 demonstrates they were intended to reverse these features." Apportionment was now to be based on causation such that "the new approach to apportionment is to look at the current disability and parcel out its causative sources -- industrial, prior industrial, current industrial -- and decide the amount directly caused by the current industrial source. This approach requires thorough consideration of past injuries, not disregard of them (italics added)." 

The court ruled that it was the "clear intent" of the legislature in enacting SB 899 "to charge employers only with that percentage of permanent disability directly caused by the current industrial injury." It was then asserted that the WCAB had ignored substantial medical evidence from the otolaryngology AME that 100% of Borman's hearing loss could not be attributed to the current cumulative trauma. 

The court said that the WCAB's failure to apportion the hearing loss portion of the cumulative trauma was contrary to law such that the award to Borman was annulled. ACME's petition for review was granted. The order denying consideration was annulled. 

My Comment

It can now be expected that this determination on Apportionment will have an effect on SIBTF (SIF) cases. The crucial happenstance in the ACME v. Borman case is that the applicant's total disability award was actually vacated by being annulled and that apportionment was then determined to be applicable. The meaning of this determination is that what is lost in terms of apportionment may now be applicable and applied to  SIBTF situations where prior injury resulted in work disability or "labor disablement."  Labor disablement is currently a crucial concept in SIBTF cases which requires its own level of documentation and proof. 

References

ACME Steel v WCAB and Michael Borman, A137915, filed 7/16/13

Opinion on Decision, WCALJ Deborah Lieberman, 10/25/12

California: A Radical/Diametrical Change in the Law of Apportionment, 09/13/13, Raymond F. Correio

UTILIZATION REVIEW IN CALIFORNIA WORKERS COMP (PART 2) : more on Jose Dubon vs World Restoration & SCIF

Our posts on workers compensation in California have often stirred up hornets' nests, sometimes only to disclose honey-bees. Here's the latest ruckus:


1)  In our previous post we referred to WCAB's "en banc" decision re Jose Dubon v World Restoration and SCIF as a landmark event and even as a triumph for injured workers.


2) We said WCAB stated that "a UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision."


3) We also pointed out that the WCAB decision said that the UR decision would be invalid only if the defect or defects in its processing of a claim were "material" and that just "technical or immaterial" defects would not cut the mustard.


4) So here's one of the major objections we got from a knowledgeable doctor who does workers comp: "I fail to see what's so great for the injured worker ... nothing has changed ,,, the 'burden of proof' is still on the patient to challenge the UR, which is presumed correct, by  going though IMR/Maximus UR. This just says you're only allowed to challenge ... if they don't file their report (no matter how bogus it is) on  time. Big effin' deal."


5) Maybe  so, but here's the riposte: it has always been the case that the injured worker or his representative had to carry the burden of proof. Since the provider is getting the money and the injured worker is getting access to treatment, who else would be expected to carry the burden of proof? Following the money trail has never been a bad idea. What WCAB has now done undercuts wrongful UR especially by companies known to specialize in wrongful UR by getting UR doctors who aren't licensed in the states in which they provide review or whose specialties are so far removed from the clinical challenge at hand as to make them, or that ought to  make them, irrelevant and disqualifiable on that basis alone.
Here's how UR decisions can be successfully challenged:
(a) you object because you have reason to believe that the UR doctor did not get all the relevant information from the adjuster,
(b) you  object because while you believe the adjuster submitted your information the UR doctor didn't properly review it, and
 (c) for either or both of these reasons you  believe a material breach has occurred. Your problem as a doctor taking care of patients will be how to complain effectively. If the organizations to which you pay dues are not allowed to represent you in terms of denied claims either collectively or on an individual basis, you'll be dependent on the injured worker's lawyer or your own efforts.


Not only that: take notice that SCIF is part of the WCAB decision. To our knowledge, SCIF uses only California-licensed doctors for its own UR. That means that SCIF's UR doctors are subject to the medical board in California whereas non-California licensed doctors favored by some other companies need not worry about anybody's medical board (they're not licensed in California and the medical board of the state in which they're licensed doesn't have jurisdiction in California).


Given the changes introduced by the WCAB decision in "Dubon" the PTP has a better chance of getting a case denied by UR and out of the claws of Maximus and into the hands of WCAB which will allow injured workers' cases to be heard by judges. Given Maximus' record to date, this change is a decided improvement.  It is for these reasons that we believe the case is "landmark." We'll watch with keen interest how doctors use this opening. 

WHEN UTILIZATION REVIEW DECISIONS ARE INVALID: Jose Dubon v World Restoration & SCIF "en banc" decsion

UTILIZATION REVIEW (UR) DECISIONS ARE NOW INVALID IF IT IS SHOWN THAT THE UR DECISION WAS "UNTIMELY" or suffers from material (underlining added) procedural defects "that undermine the integrity of the UR decision." This WCAB decision is "en banc" and also states that "minor technical or immaterial defects are insufficient to invalidate a defendant's UR determination." 


This statement is derived from page two of the Workers Compensation Appeals Board (WCAB) "en banc" decision  for the State of California in Jose Dubon vs World Restoration and State Compensation Insurance Fund (SCIF) filed at San Francisco on 2/27/14.


This "en banc" decision also states that the "issue of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB."


Of keen interest is the following additional conclusion by the WCAB: "If a defendant's UR is  found invalid, the issue of medical necessity is not subject to IMR (underlining added) but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required."


Finally, WCAB also states that when UR is provided in a timely and valid manner  the issue of medical necessity shall be resolved through  the IMR process if requested by the employee (editor's note: it is the employee who must make the actual request).


Conclusion:


This decision has major importance for injured workers and their PTPs (primary treating physicians). For injured workers unfairly treated by  the system, this decision is a decided victory; however, there are caveats, e.g., it will not always be easy to decide when wrongful steps reflect  "minor technical or immaterial defects" or "material procedural defects."


Editor's comment: The Achilles' heel in the process is UR where many of the participants are not licensed in California and are not subject to the jurisdiction of this state's medical board or even to the jurisdiction of their own state medical board since the latter board does not have jurisdiction in California. These UR decisions may often be careless in part because they're not subject to public policy review by any state medical board.


Reference


Jose Dubon vs World Restoration and State Compensation Insurance Fund, Case Nos. ADJ 4274323 (ANA 0387677) and ADJ 1601669 (ANA 0388466).

AB 889 (FRAZIER) UP TO BAT while SB 626 (Beall) strikes out

SB 626 (Beall) would have put one helluva crimp in SB 863 (DeLeon). Now that SB 626 has been pulled, perhaps, to be continued next year as a two-year bill, the business community can focus its laser like interests elsewhere, e.g., onto AB 889 (Frazier). 

AB 889 (Frazier) would impose specified requirements on health care service plans or health insurers. AB 889 would require insurers to have "an expeditious process in place to authorize exceptions to step therapy." Step therapy is the process whereby patients are required by their insurance companies to try specified generic medications before being allowed to try newer, better, and probably more expensive medications. Cost control comes before patient care according to this protocol.

Similar legislation, AB 369 (Huffman) was vetoed last year by Governor Brown. Here's what the Governor said about AB 369 in his veto message: "this bill would prohibit a health plan or insurer from requiring a patient to try and 'fail' more than two medications before allowing a patient to have the pain medication prescribed by his or her doctor."

Governor Brown stated that "independent medical reviews are available to resolve differences in clinical judgment when they occur, even on an expedited basis."

We now know that the independent medical review law derived from SB 863 allows the identities of independent medical reviewers to be kept secret and that the law specifies that neither the Workers Compensation Appeals Board (WCAB) nor the courts can alter an independent medical reviewer's decision just because it's wrong, no matter how incredibly wrong it may be. Brown put his foot (well, both feet) further into it when he also said "any limitations on the practice of 'step-therapy' should better reflect a health plan or insurer's legitimate role in determining the allowable steps." Translation: a health-plan's profit center has a "legitimate role" in overruling doctors' medical decisions

Governor Brown should be interviewed about these comments repeatedly.

We recommend support for AB 889 (Frazier). We recommend early lobbying of the Governor since last year he sided with insurance company interests and vetoed a similar bill.  

Update: We are advised that AB 889 (Frazier) is scheduled to be heard by the Assembly Health Committee on April 30th, 1:30 PM, Room 4202. Interested parties, especially those who would like to attend or testify, need to stay alert to possible changes in time and/or date.

SB 626 (Beall) Tackles SB 863 (DeLeon)

Scaramento Shenanigans : SB 626 (Beall) versus SB 863 (deLeon)

(as of Tax Day, 15 April 2013)

Senate Bill 626 (Beall) is to be heard on April 24th by the Senate Labor and Industrial Relations Committee chaired by the Hon. Ted Lieu. We recommend support.

SB 626 (Beall)  is prompted by the passage and implementation of SB 863 (deLeon) from last year. SB 863,  woefully tilted to insurance company interests,  at first seemed unlikely to be taken seriously. Nonetheless,  buttressed by the insurance industry, SB 863 made it across the finish line. Purporting to act in support of the employer community,  SB 863 last year was rescued by the personal intervention of Governor Brown. Showing both political mastery and subservience to insurance company interests, Brown single-handedly rescued it with one day to go in the legislative year.  SB 626 would reverse much of SB 863. Here's why:

Secrecy in Peer Review for IMR reviewiers

Flying in the face of pleas for transparency, SB 863 provides secrecy for Independent Medical Review (IMR) doctors, hand-picked in part because they're expected to serve the overall interests of the insurance companies. To make sure that wrongful twists and turns IMR docs take that buttress insurance company interests aren't investigated by the Medical Board of California (MBC)  these doctors don't have to be licensed in California. They're exempt from the surveillance of the MBC. In addition, their names are not to be released -- students of history know about the notorious "lettres de cachet" that the French nobility used before the 1789 revolution to imprison political opponents.  SB 626 cancels this unwarranted immunity and subjects IMR doctors to the same discipline as doctors licensed in California.

The argument in favor of secrecy has usually been that the insurance companies can't find enough licensed California doctors to do the job. It was conveniently ignored when this argument previously arose that EK Health had so many applicants for utilization review jobs that the company had to create a waiting list.  It was also argued that similar secrecy provisions were already in place for private insurance. This argument is flat out false. Private insurers do not use  a "lettres de cachet" system. The names of their reviewers are made known. It also turns out that the vast majority of injured workers get treatment through their Medical Provider Networks (MPNs). In these cases, where the treatment of an MPN doctor is surveyed, the IMR reviewer's name is not kept secret. The inequity of these comparisons show why the IMR secrecy imposed by SB 863 should be obliterated.

Secrecy in Utilization Review (UR) 

This issue was reviewed by the Office of Administrative Law in 2006 (I submitted a written protest then on behalf of  the Union of American Physicians and Dentists). In general, the careless wording of the law, approved by legislators whose attention to detail should have been better, did not specify licensure in California as a necessary requirement to doing Utilization Review in California. All the law requires is that the UR doctors be "competent to evaluate the specific clinical issues" of the case at hand. In many cases there is debate about this very point, but there is no debate at all about the requirement to be licensed in California -- the latter is simply not required even though the MBC itself has gone on record as saying such licensure should be required.

SB 626 would require California licensure of all doctors doing Utilization Review and/or Independent Medical Review for injured workers in California. 

In fact, the largest labor union in the AFL-CIO, the American Federation of State, County and Municipal Employees (AFSCME),  voted unanimously for this position in 2006 at its International Convention in Chicago. All the same, California AFSCME supported SB 863 last year. We don't know at this writing where California AFSCME stands on SB 626 (yes, we've asked and await reply).

Economics: how California loses $10 million in taxable revenue

Most well respected insurance companies, State Compensation Insurance Fund (SCIF) among them, want their Utilization Review doctors to be familiar with California law. In Texas, for instance, licensure is required for doctors who want to do utilization review there -- so we have an anomalous situation where doctors licensed in Texas are enabled to do UR in California without a California license whereas California-licensed doctors cannot do UR in Texas unless they also get licensed in Texas. California loses about $10 million annual revenue by allowing UR to be farmed out to non-California doctors in other states. The job-killer here is the legislaure which has found a way in a cash-strapped state to ship $10 million in annual revenue to other states.

The March of the Lawyers

The legal issue is to what extent it is or is not proper to eliminate the WCAB (Workers Comp Appeals Board) from overturning decisions. SB 863 butted its way into this controversy by prohibiting workers comp judges and the WCAB itself from adjudicating disputed issue of medical necessity. This contrivance of law then freed the IMR reviewers from their last constrant -- under present law, SB 863 having been signed into law, IMR reviewers may have their names kept secret, need not be licensed in the state where they practice, and need not worry about having egregiously wrong and harmful decisions overturned by any court. That's because SB 863 limits appeals to fraud, conflict of interest,  bias, and mistake of fact -- not easy to determine if the reviewer is entitled to secrecy.

The legal question that arises is whether or not Article XIV, Section 4, California Constitution, has been violated. Here's part of what it says: "all decisions of any such tribunal shall be subject to review by the appellate courts of the state." SB 626 would make sure that it does.

Chiropractic prejudice?

Injured workers who choose chiropractic as their primary source of treatment run into downright prejudice. Doctors of chiropractic, just as doctors of medicine or dentists, are licensed medical providers.  But SB 863 makes sure that some providers are less equal than others by inserting and implementing a provision that limits chiropractors from serving as primary treating physicians (PTPs) after about 24 treatments. The chiropractic profession is rightfully outraged at this preclusion since it forces injured workers to seek out providers other than the ones they've already chosen and with whom they may be satisfied.  It's as though patient-staisfaction or injured-worker satisfaction doesn't  matter. Clearly, to the writers of SB 863, it didn't matter enough. 

Of interest to purveyors of evidence-based-medicine (EBM) is the origin of the limitation to 24 treatments, often also applied to physical therapists where the treatments may've been ordered by PTPs who are MDs or DOs. It appears that the number, 24, is arbitrary, not evidence-based. This arbitrary restriction deprives injured workers from access to their chosen method of treatment while also enhancing  corporate compensation

SB 626 will put a stop to this form of arbitary denial of access to care.

How about old fashioned prejudice against psychiatric disability?

Medical treatment for psychiatric injury has not been precluded by SB 863 although the significance of this level of injury has been diminished and downgraded by the perpetrators of SB 863. Here's how: SB 863 denies psychiatric-injured patients of indemnity benefits. The psychological harm derived from workplace injury is no longer included in the calculation of permanent disability payments.

SB 626 will make this unfair and ignorant preclusion null and void. Depression and other forms of psychiatric disability were given back-of-the-bus status by the perpetrators of SB 863.  SB 626 will put a stop to this arbitrary denial of reasonable permanent disability.

In future issues we'll discuss AB 670 (sponsored by the California Medical Association), opposition sought by the Union of American Physicians and Dentists to SBs 491, 492, and 493, and SB 809 (DeSaulnier) which would mandate that the Board of Pharmacy increase fees to wholesalers (the bill is known as CURES or Controlled Substances Utilization Review and Evaluation System).

As always, reader comments are welcome and anticipated.



   

SENATE BILL 626 (BEALL) RESTORES EQUITY AND BALANCE TO WORKERS' COMP, THREATENS SB 863's STRANGLE HOLD ON WORKERS COMP

"HOW TO PRACTICE MEDICINE WITHOUT A LICENSE" WAS THE TITLE OF MY OP-ED IN THE SAN FRANCISCO CHRONICLE, 8/29/08.  The inequities described in that piece have been operative ever since -- but now Senator Beall's legislation, SB 626, will try to restore balance and equity. Comments from the Legislative Counsel's Digest, 2/22/13 include the following (italics):

"Existing law requires an employer to establish a medical treatment utilization review process and ... prohibits any person other than a licensed physician from modifying, delaying, or denying requests for authorization of medical treatment for reasons of medical necessity ... Existing law also provides for an independent medical review process to resolve disputes over a utilization review decision for injuries occurring on or after January 1, 2013,  and for any decision that is communicated ... after July 1, 2013 ...  This bill would revise these provisions to require that medical treatment reviews be conducted by physicians or medcal professionals ... who hold the same California license as the requesting physician (underlining added) ... Existing law prohibits a workers' compensation administrative law judge, the appeals board, or any higher court from making a determination of medical necessity contrary to the determinationn of the independent medical review organization ... This bill would delete that provision (underlining added)."

The current inequity is that under current law pursuant to SB 863 an Independent Medical Review (IMR) process is empowered to resolve disputes over utilization review for injuries occurring on or after 1 January 2013 and for decisions communicated to the requesting physician on or after July 1, 2013, regardless of the date of injury. In this way injured workers are deprived of diagnostic studies or treatment recommended by their Primary Treating Physicians (PTPs). The dispute then gets settled by the IMR process. Unfortunately, under current law,  neither the UR doctors nor their IMR counterparts need be licensed by the Medical Board of California. No matter how harmful or egregiously wrong their decisions are they are not subject to the same discipline as the PTPs all of whom are licensed in the states in which they practice.

The American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO,  passed a resolution at its International Convention in Chicago in 2006. The resolution stated that "physicians working for utilization review companies reviewing the claims of injured workers be licensed in the states in which their decisions are used and where their decisions may influence the provision or denial of medical care to injured workers."

SB 626 would mandate that medical treatment reviews and independent medical reviews be done by physicians or medical professionals "who hold  the same California license as the requesting physician."

Incredibly, under current law, a cadre of secret doctors has been empowered. The names of the IMR doctors are "protected" by law, that means, concealed from view. Our previous blogs on SB 863 discuss this ablation of due process in more detail.

SB 626 would delete the requirement that that IMR doctors' names be kept secret.

California AFSCME's stand in favor of SB 863 was inadvertently a stand against its own organization's International Resolution. The political pressures to do so at the time were intense (Governor Brown wanted it -- see previous blogs re why).  We look forward to California's AFSCME coming on board SB 626.

Not only that. SB 863 actually prohibits due process and fair play because it prohibits workers' comp administrative law judges, the WCAB,  or even higher courts from making determinations of medical necessity that would set aside an IMR ruling against an injured worker. SB 626 would delete this provision.

More to follow. Stay tuned. But first, get on board -- readers may contribute their own comments on-line directly to this blog.

Here is a comment from CRIS FORSYTH, CHIEF OF STAFF, SENATOR JIM BEALL, DISTRICT 15: "Relative to your question regarding comments ... advocating for the bill.  I cannot fathom more eloquent prose than that which you have already professed."

Well, Cris, we'll do our best: SB 626 is courageous legislation that would restore honor to a process that has become the domain of insurance companies and their allies. It's also an American political anomaly that some parts of big labor identify more with business interests than with workers and would let injured workers be deprived of the medical and surgical treatment they need and heartfully believed they earned