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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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> Rant: Hobbling into 2012
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.

 
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?
 
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.

 
The advantages of the old QME system are notable: for one thing, we get doctors who can actually write a ratable report.
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.

 
Only when the system is hemorrhaging will the patient seek that long-avoided colonoscopy.
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).

 
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.
 
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.

 
Like cuckoos the carriers replaced many of the good eggs with stupid fledglings that should not be in the nest.
 
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?

 
Has apportionment saved money or just redistributed it to vendors?
 
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…

 
My crystal ball has developed cataracts.
 
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