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| | Injured Workers’ Groups Struck By Lightning Before Hearing Thunder Of SB 863.
By Jorge Alexandria - September 11, 2012
Massive workers’ compensation reforms were passed in 1994 and again in 2004.
Now, in 2012, another massive reform (SB 863) awaits Governor Brown’s signature where it is a foregone conclusion he will sign it, inasmuch as the Governor himself was instrumental in brokering it. This bill pacifies employers in California as it promises to lower their cost burden. It offers some hospitality to keep them in California, and promotes the hope of jobs creation - igniting the economic engine for an economic recovery.
Unfortunately, injured workers see the passage of SB 863 as a sign that workers’ compensation is being radicalized to their detriment yet again and that they are about to be taken in a direction they care not to go. While several provisions of SB 863 will not be implemented for another 16 months, SB 863 has too many takeaways for injured worker advocates to be happy about. The dirty laundry includes:
1) MEDICAL RIGHTS: Injured workers will lose the right to a face-to-face medical exam as part of the appeal of treatment denials. No longer will an injured worker get evaluated by a second opinion physician. All second opinions will be based on a paper medical record, not an actual exam, and deemed final. Cost savings are achieved by making it easier for insurance companies to deny medical treatment and virtually impossible for an injured worker to overturn such a denial.
2) WCAB JUDGES WILL BE STRIPPED OF THEIR DECISION MAKING AUTHORITY: Judges will no longer be able to hear or try treatment denial appeals. The paper exam described above is final and cannot be appealed in court. No matter how abusive the denials of treatment may be a WCAB judge can neither review them nor correct a wrong. Further, it restricts the evidence an injured worker can present to a judge.
3) PROVING DISABILITY WILL BE MUCH, MUCH, MUCH MORE DIFFICULT: Yes, there will be an increase in monies paid for those severely injured (the higher percentages of permanent impairment) but the ability to prove those levels of disability is made very difficult.
3) UTILIZATION REVIEW DRIVERS NOT ADDRESSED: Cost containment measures such as utilization review (UR) are a major medical expense. Yet SB 863 does nothing to control UR. It’s no secret that utilization reviews are run by insurance companies, often times they cross sell UR to their subsidiaries, and charge it as an expense against the comp file/employer. It is a major revenue source for insurance carriers. Why touch the golden goose?
5) ANCILLARY SERVICES: It used to be that an injured worker could select his own pharmacy to fill his prescriptions. Usually the corner drugstore. Now the insurance companies will be able to force injured workers to select a pharmacy controlled by them where brand medications are never available- but generic medications always are in supply. As to language interpreters and copy services providers, the insurance company will control when, how, and who will serve as the interpreters or copy technician. Conflict of interest and financial disclosure rules be damned. Injured workers have no say in these matters and the bill actually provides an incentive for insurance companies to create their own interpreting and photocopying subsidiaries.
6) IT ADDS BUREAUCRATIC LAYERS: Cost will be added to the system as SB 863 has the potential to double the amount of work required of the DWC. It's a huge commitment to implement the new reforms and it will take personnel and resources to get it in place. In a tight budget year these aren't good times for the DWC and most provisions need immediate attention/ immediate work.
SB 863 passed in great measure because it struck with the speed of lightning and the opposition had very little time to react. There is something to be said about the element of surprise. Also, the employer lobby was very strong. In fact, I think that the employers fought this war with one hand behind their backs. Had the injured workers (lobby risen) even mobilized to put on their boxing gloves, the employers would have brought back that other arm out from behind their backs for the boxing match.
I don’t think injured workers ever had a chance to defeat SB 863. And since SB 863 passed, we have to make it the greatest reform of all times. It’s very American to do that.
Jorge Alexandría is a U.S. Army veteran who received his B.A. in Political Science from Cal State Los Angeles, and graduated from Cal Poly Pomona with a Master’s in Public Administration. He holds both a California Workers Compensation Claims Professional (WCCP) designation and the State of California’s Self-Insured Administrator’s License. With more than 20 years industry experience, including various leadership positions, he is a leading expert in the field of risk management. He currently practices federal workers’ compensation of maritime interest. He can be reached at Riskletter@mail.com. The views and knowledge expressed in this article are Jorge Alexandría’s alone.
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