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Hobbling Into 2012:
Another Editor’s Rant on
Blowback from Reform
Editorial Opinion by Marjory Harris,
Esq.
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Lobbyists stalk the halls
of the legislative houses, hoping to persuade our representatives
to enact effective reforms to correct the deformed ones that took
effect in 2004. Fat chance any good
will come of this. Workers’ compensation
bills seem to be greeted with the
reaction that attends being told
you need a colonoscopy: can’t we do that next year?
And what
does it matter, anyway, as whatever
legislation that directly affects
injured workers in a helpful way will be vetoed. Seeking less sour
views than my own, I consulted colleagues on both sides of the bar
about their New Year’s wish
list for workers’ compensation.
The defense perspective appears in
Mike McDonald’s “Defense
Perspective: A 2012 Defense Wish
List” column. Excerpts from
applicant’s attorneys appear below.
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| Workers’ compensation
bills
seem to be greeted with the reaction that attends being told you
need a colonoscopy: can’t we do that next year? |
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Change the QME Process
At or near
the top of almost every wish list is
the return of the old QME system,
where each side picked their own. The advantages are notable: we
get doctors who can actually write a ratable report, who understand
the medical-legal interface, and whose views are respected by the
workers’ compensation judges (or at minimum, whose biases are
recognized by the WCJs), instead of carpetbagging and incompetent
practitioners whose only claim to
expertise is successfully completing
the QME application. See The
QME Process: Forensic Reform or
Doctor Roulette? See, too, Robert G.
Rassp’s article, “California:
The PQME Process Runs Amok - A Tragic-Comedy.”
The amount of time and money wasted on the current system is appalling.
The reform of the system was meant to expedite resolution of claims and
lower costs. Instead, there is endless red tape, delay and money spent
on unusable reports, petitions to strike and haggling over allegations
of ex parte communications, petitions for
second panels, and the like.
One colleague wrote, “Amend the QME
statutes so that panels only apply
to unrepresented workers and let them pick
a doctor from the website. Don't
limit them to three choices.” Others want the locations limited to
three locations.
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| The advantages of the old QME
system are notable: for one thing, we get doctors who can actually
write a ratable report. |
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Revise the PDRS
A new permanent disability
rating schedule is at or near the top
of many wish lists, accompanied
by “get rid of the AMA
Guides.” It is hard to respect the
law when the Governor does not. The new one, like the old, refuses
to comply with the mandate of Labor Code Section 4660. And the AMA
has never bothered to produce a guide to evaluate work disability.
Why are we using a book that specifically states it is not to be
used to evaluate work disability for
that very purpose? I must agree
with my colleague, Roger Rassp, whose article “2011
Year in Review: The Top 10
Workers’ Compensation Events in
California” notes, “We
could have done much better legislatively by repealing section 4660
and adopting a more realistic disability rating system such as a
combination of Subpart P, Title 42 of
the Code of Federal Regulations
for the Social Security Act, and the
1997 PDRS or having state workers’ comp
administrations commission the
Institute of Medicine to come up with
an evidence based disability rating
schedule that is based on epidemiological
data and not based on the opinions of
a bunch of occupational medicine
doctors.”
I fear this issue will remain in limbo and only when the system is
hemorrhaging will the patient seek that long-avoided colonoscopy.
When Almaraz/Guzman and Ogilvie and the attendant higher litigation
costs finally do what could have been avoided had the schedule been
amended and had a fair schedule been drafted from guides that deal
with work disability, only then will
the “reform” be reformed.
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Only
when the system is hemorrhaging
will the patient seek that long-avoided
colonoscopy.
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Temporary Disability
Artificial limits on TD have added to the burden
a badly injured worker already bears, what with the elimination
of vocational rehabilitation, loss
of choice of treating physician,
and paltry and apportioned permanent disability. As a colleague
stated, “If the injured worker is unable to work due to the
need for medical treatment, he shouldn't have to worry about how
to survive while getting the
medical treatment. Further, the taxpayer
should not pay through SDI taxes. One should recognize that when
the TTD got limited, carriers just
adjusted that amount to a bottom
line bookkeeping entry, and failed
to make any effort to expeditiously
provide medical care so that the injured worker could get back
to work quickly. Does the
legislature/governor realize that limiting
TTD exacerbated the government debt?”
Another colleague wishes: “Make an exception for up to 6
months of TD after the two year period for recovery time from any
surgery performed after 1 1/2 years
from the date of injury.” Another
says to let the WCJ decide if there is good cause to extend TD
beyond two years.
I agree that temporary disability should be based
on the medical status of the injured worker, not some arbitrary
time limit that throws the burden onto the already overburdened
non-injured workers (i.e., the American taxpayer).
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Temporary disability should be
based on the medical status of the
injured worker, not some arbitrary
time limit that throws the burden
onto the already overburdened American
taxpayer.
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MPNs
The treatment rules continue
to cause howls of rage. Inadequate MPN lists, utilization review
of routine recommendations that
comply with the MTUS from the hand-picked
MPN docs, uncooperative, inexperienced and biased practitioners who
displaced our reliable and competent
docs. Like cuckoos the carriers
replaced many of the good eggs with stupid fledglings that should
not be in the nest. I am grateful for the good docs who try to do
the right thing by their patients as
they are strangled by red tape,
bureaucratic inefficiency, and pitiful fees.
To quote a colleague: “Eliminate
MPN. Why should an injured worker be subject to the predilections
of a doctor that was screened by the carrier for being cheap rather
than effective or competent?”
As though the MPN system is not already a nightmare, now we have
the second Valdez decision
making inadmissible non-MPN medical reports.
My wish list for 2012 has that
decision going the way of the dodo.
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Like cuckoos the carriers
replaced
many of the good eggs with stupid fledglings that should not be in
the nest.
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Apportionment
“Repeal apportionment
to “causation” and
replace with apportionment to pre-existing
disability.” I'll drink to that. In the absence of evidence
that something caused previous
disability, it is really a non-scientific,
illogical guess in almost all cases. I wonder how much money was
saved by allowing nebulous apportionment, when compared to how much
more medical-legal reports and
depositions cost than they did before
SB 899. Thanks to the AMA Guides and apportionment, medical-legal
costs have skyrocketed. Is it really better to give that money to
vendors than to injured workers, who
may become burdens on the taxpayer?
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Has apportionment saved money
or just redistributed it to vendors?
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The crystal ball
Is there a realistic
wish list for 2012? I have no idea. I hope things do not get worse
(although they could, which I remind myself every time I think they
couldn’t). Most of us are still here, making a living, and
I've noticed many new names and faces have stepped up to the plate
and become workers’
compensation practitioners. It is 37 years
since I took the oath of office, and I remember a speech from that
ceremony that emphasized being of service rather than getting rich
practicing law. I do believe that
some do both, but many do neither.
While I do not feel that I can help people the way I used to when
we had free choice of physician and
vocational rehabilitation, there
are those moments that make it all worthwhile when a client sends
a card or leaves a message of gratitude, or when a client is able
to get better and return to work. I don't mind that I get a lower
fee in those cases. I can make it up on the cases where the person
unfortunately does not get well and
is not able to work. When people
complain about the fees in
workers’ comp and all the work we do not
get paid for, I suggest they look at the overall annual take and
measure it against the hours of effort and the satisfaction derived
from helping others. If it comes out okay, then you are a success.
The crystal ball in my office is currently malfunctioning. Like my
ISP, it suddenly doesn't work for a
while and just as suddenly comes
back. Maybe next year…
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My crystal ball has developed
cataracts.
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Marjory Harris, Esq. began
practicing law in 1974 as a defense attorney
and later became an applicant's
attorney and a certified specialist.
She continues to represent injured workers in the San Francisco
Bay Area and Inland Empire, and
mentors attorneys on big cases.
Reach Marjory Harris at (888)
858-9882 or email to MHarrisLaw@verizon.net
www.workerscompensationcalifornia.com
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