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Defense Perspective on Reform:
We have seen the future and are
participating in it right now



By Michael McDonald, Esq.
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In this series, Michael G. McDonald, Esq. of the McDonald Law Corporation offers practical advice to WC lawyers and adjustors.
   
 
Politics has once again reared its head in the California workers' compensation system. With the creation of SB 863, the workers' compensation community is about to hop aboard a roller coaster ride with twists and turns not foreseen and not intended. Participants should get ready, breathe deeply, hold on tight, and enjoy the ride.
 
The workers' comp community is about to hop aboard a roller coaster ride with twists and turns not foreseen and not intended.
 
From a Northern California perspective, it certainly appears that the recent round of reforms has been directed at the Southern California community. Approximately 75% of the costs associated with the Southern California experience seem to relate to lien issues. It appears medical practitioners/providers in Southern California wish to ignore the law when it comes to treatment regulations. This has led to a great deal of frustration, animosity, and anger by all parties appearing at the WCAB.

Lawyers have a duty to represent their client’s interests, whether or not the client is a lien claimant, injured worker, or employer. Lawyers focus on the legal requirements and evidence to analyze the claim. There are a number of non-attorney practitioners in the system. Some of those practitioners are ethical and have good reputations. Unfortunately, there are a number of practitioners/bill collectors who are not bound by any ethics code and clog up the system. In many instances, the lien claimant representative seems to be more focused on payment even when the provider was well aware treatment could be properly provided by an MPN facility. Proper and timely objections to the treatment are of no concern. After all, the WCAB has allowed payments in the past and the judges pressure the defendants to pay something to resolve the liens.

It is not unusual to appear at the board for a lien conference and not have the opposition attend. In many instances, lien claimants will merely provide a statement of outstanding billings without providing any documentation that the services were authorized or proper.

I have heard that in Southern California there may be as many as 30 or 40 liens on a particular case. Here in Northern California, it is more usual to have less than four liens per file. Why the difference? Are the business models in Southern California that much different from the business models in Northern California? Do injured workers in Northern California receive better or worse treatment than injured workers in Southern California?
 
Are the business models in Southern California that much different from the business models in Northern California?
 
Greed is not good. It plays into the hands of the politicians and those frustrated with a system which becomes more and more complicated as the years go on. The California workers' compensation system is a $12 billion a year system. The State has taken user funded monies and put it into the general fund. We have seen a reduction in the ability to move files through the WCAB for a number of years because of the legal theft of the funds. This past year has seen the hiring of new judges and new administrative staff. Time will tell whether the trend will continue.

2013 will be a year of transition. Hopefully, we will have a new Administrative Director who has the same or more workers' compensation experience as Rosa Moran. As Administrative Director, Ms. Moran brought aboard a darned good group of workers' compensation professionals to administer and try to fix a system in disarray. Unfortunately, we have lost Ms. Moran as the AD and I am not sure how that loss will affect the other professionals who joined her in an attempt to resolve complicated issues.

Will SB 863 really save employers money? Will upcoming working groups actually have any effect on creating regulations? Will preventing permanent disability advance payments to injured workers hired by another company at 100% of pre-injury wages result in increased litigation and penalties? How is the employer to know if the injured worker has taken a new job? If the injured worker refuses to disclose the information, what remedies does the employer have? Will employers start to offer positions at 85% of pre-injury wages and not pay PDAs in order to starve out an employee to settle a claim?
 
Greed is not good.
 
We have seen the future and are participating in it right now. The independent medical review process is certainly part of the Obama care program. Will we see a single payer system within the next couple of years? If so, will that take away the ability of individuals to choose their own insurance policies? Is the independent medical review process constitutional? I am sure we will find that out within the next couple of years.

Will the IMR process improve patient care? Will we need AMEs in the future? Certainly, they will not be resolving medical issues. In the past, it has seemed like injured workers were treated as conduits to funnel money from insurance company pockets to provider pockets. In the meantime, the patients were subjected to treatments that turned out to have little or no value. Remember IDETs? Judges regularly approved them, yet they resulted in little or no benefit to the patient.
 
We have seen the future and are participating in it right now.
 
There are many questions still to be asked and time will tell what the answers will be. With a new groundwork of laws comes a less predictable system. It is unfortunate that the politicians in the state have taken away a system of predictability and replaced it with a system of expectations.

The upcoming year will see a lot of stress and frustration. The best that practitioners can do is to take a deep breath, act professionally towards each other, and do our darndest to make the system function. So, relax and enjoy the ride.
 
It is unfortunate that the politicians in the state have taken away a system of predictability and replaced it with a system of expectations.
 
Michael G. McDonald is the founder of McDonald Law Corporation in Concord, California and a Certified Specialist in Workers' Compensation Law, State Bar of California. He is a Director for the California Workers’ Compensation Defense Attorneys Association.

Michael G. McDonald, Esq.
McDonald Law Corporation
1800 Sutter Street, Suite 430
Concord, CA 94520-2563
Voice: (925) 363-4380
Fax: (925) 363-4352

Other locations: Sacramento, San Jose and Fresno www.mcdonaldlawcorp.com

 
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