Friday, February 27, 2015

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

Monday, February 16, 2015

WHEN PATIENTS GET TOO EXPENSIVE TO TREAT


What do insurance companies do when medical expenses get too high for comfort?  How may insurance companies deal with expanding medical costs that lower shareholder return and that may cause reduced executive compensation?

Currently, rituxin is one of the newer agents recommended for the active phase of acute demyelinating disease, multiple sclerosis in particular, but also extending to a complicated condition known as "lupoid sclerosis." Robyn G. Young, MD, Alameda, formely, president of the California Neurology Society,  states that this treatment is a preferred regimen for active system disease. e.g., MS/demyelination accompanying systemic SLE.

However, reluctance on the part of payers to cover this regimen has been noticed by frustrated clinicians whose treatment decisions may be delayed or denied by insurers who may assert that a specific treatment regimen is "experimental" and therefore not eligible for coverage under the plan. If that happens, the patient is then denied insurance coverage and may have to pay for treatment out-of-pocket while the insurance company continues to bill for its alleged coverage, whatever of that remains once what the patient currently needs is denied. 

Insurance companies have other ways of controlling costs. One of these other ways is to limit access to physicians to cover the number of enrolled subscribers. That increases the length of time it'll take to see a physician, especially a specialist, which in turn reduces expenses for the insurance company, which in turn allows more favorable financial quarterly reports to be issued. Another technique is to drop physicians from the MPN (medical provider network) based purely on business reasons -- no allegation of poor medical practice need be made. This latter technique reduces short-term expenses, allows for more favorable financial reports on a quarterly basis, and runs little risk of collectively increased long-term expense because of delays of care. Keep in mind that in workers comp, for instance, Temporary Disability (TD) runs out in two years. 

Doctor Young stated that "our patients should not be the victims of either insurance or pharma greed ... the physician has been devalued while all the other entities with financial interests in rationing patient care have been elevated in control and influence."

That is why some medical organizations seem poised to fight simultaneously for their patients' rights as well as for the rights of member physicians lest the latter become indentured servants dependent either on the corporate mentality that rules Big Biz or the other corporate mentality that rules government. In this regard watch for a likely take-down on an aspect of Obamacare (Affordable Care Act). The case is King versus Burwell, Docket # 14-114, set for SCOTUS argument beginning on 4 March 2015. The case deals with an IRS ruling re availability of federal tax subsidies to persons who bought health insurance on exchanges run by the federal government -- we'll cover more on that in future columns.

In the meantime, Doctor Young's conclusion  that "it is time that we (physicians) took back our role as patient care advocates" should be shouted from physician rooftops everywhere.

References

"Regaining Control of Medical Practice," CLINICAL EEG,  c. 1995, V. 26, #1 (reprints available SSAE upon request to Dr. Weinmann, 2040 Forest Avenue, #4, San Jose, CA. 95128)

"Union head urges reform in health care," THE OAKLAND TRIBUNE,  4 November 1998 (White House press conference with then President Bill Clinton)



Saturday, January 31, 2015

PAYMENTS FOR MEDICAL REPORTS ARE DOWN 36.7%: doctors denied payment, workers denied access to care


In workcompcentral's issue of 29 January 2015 CWCI has formally admitted that payments for evaluation and management reports have been slashed by over one-third. CWCI now openly acknowledges  that a big bite has been taken out of consulting physicians evaluation services (the actual obtuse wording is in CWCI Research Update by Stacey L. Jones, January, 2015).

One of the methods used to deny injured workers fair review of their claims is to find a legal way not to pay for review of records or to discourage creation of the reports in the first place. Here is how it's done:

 1) separate reimbursement for non-face-to-face prolonged evaluation and management services is eliminated. This step means that a physician's review of medical records won't be paid for. This step in turn means that when physicians receive, say, 20  or 30 lbs. of medical records, they will not be paid for review of these records. 

2) The prolonged service code 99358 which was previously used to bill for reimbursement for the several hours it might take for review of records has been disallowed.

3) The workcompcentral article disclosing these changes says that doctors who are frustrated with the effort it takes carriers to pay have a choice: they can stop accepting injured workers as patients or they can accept fewer cases.

4) The workcompcentral story says that "doctors are no longer paid for time to review records and research literature to support a treatment request."

5) The workcompcentral story goes on to say that the current fee schedule "almost encourages the omission of medical records in the treatment review process" and that this step in turn means that carriers often deny treatment and force injured workers into the independent review process.

6) We know from previous stories in workcompcentral that Utilization Review denies 80% of treatment requests and that 80% of the time the rejection is upheld by Independent Medical Review (IMR).

7) For about one year there was an alternative to across-the-board denial of record review. Physicians who asked for consultations could file contracts pursuant to Labor Code 5307.11 in which pre-authorization could be requested along with a pre-negotiated fee arrangement. Under this code it was permitted to bill for 99358. For about a year, some adjusters who wanted a specific physician's report would sign the agreement. No longer is that the case. Physicians' offices are now routinely refused use of LC 5307.11 -- they're even told by adjusters that the word has come down from upper management that they may not authorize or otherwise approve use of LC 5307.11 contracts. In some venues this conduct might be seen as an illegal  restraint of trade but not in the workers comp field.

The law evidently allows management to declare a legal contract out-of-bounds. It may be here that there is an Achilles heel. Does the California Applicants Attorneys Association (CAAA) have an opinion? Or California Society of Industrial Medicine and Surgery (CSIMS)? or Voters Injured at Work (VIAW)?

8) For the time being, the door has been slammed shut not only on 99358 as a prolonged service code but also  on other related report codes. The slammed door is smack in the face of the injured worker. The upshot is that the injured worker's access to care has been slashed by a multitude of administrative decisions wrought by SB 863 which now appears to have caused more harm than good. We now have concurrence from CWCI as to how this unfortunate situation is unwinding.  What we don't have yet is a solution although repeal of SB 863 would be a step in the right direction.



Monday, January 26, 2015

UNION OF AMERICAN PHYSICIANS AND DENTISTS LEADS STRIKE AT UNIVERSITY OF CALIFORNIA HOSPITALS



DOCTORS STRIKE at UC HOSPITALS      

For physicians work stoppage is almost unheard of -- these are the guys who treat patients under fire in war zones and whose lives are 7 years shorter than the rest of the population because of the stress entailed at being available at all hours for a lifetime. 

But now the tide has turned. Healthcare conglomerates have converted doctors into healthcare providers and often employ less trained associates to do the job -- give 'em a white coat and set 'em loose on patients while profits soar to top executives. 

It is not hard in that context to understand why UC or any other competitive company engaged in selling healthcare services and products might want to exploit its workers. Yesterday it was the garment workers. Today it is the physicians' turn. 

This time the target is the doctors who take care of the students at UC.  Over a year ago the doctors learned that they needed to be organized, not just for wages, but also to be enabled to provide the best health care they can. Over this length of time the Union of American Physicians and Dentists (UAPD) has had to contend repeatedly with unfair labor practices (ULPs) perpetrated by UC. As a result the UAPD determined that "a ULP strike is the only way to compel UC to follow the laws that govern bargaining."

Stuart A. Bussey, MD, president of the UAPD, stated that "UC has a history of disrespecting workers during negotiations, and we're no exception to that." 

Doctors at all 10 campus health centers are ready to strike. There will be six picketing sites, UC Berkeley at UHS Tang Center, UC Davis at the Student Health and Wellness Center, UC Santa Cruz at the Student Health Center, UC Irvine at the Student Health Center, UCLA at the Ashe Student Student Health and Welfare Center, and UC San Diego at Student Health Services. 


Thursday, January 22, 2015

Barack Obama, 2015, SOTU, Physician Shortages and Tax Consequences


Part 2

In Part 1 we dissected important parts of the Affordable Care Act (ACA, known as Obamacare) that have not yet hit the American public in the proverbial gut but which, in our opinion, reflect a flurry of body punches that's just around the corner. In due course, the IPAB (Independent Payment Advisory Board) will be obliged to act. Keep in mind that the IPAB used to be known as the IMAB (Independent Medicare Advisory Board) which got scuttled when Medicare's constituency realized that it was aimed straight at them  -- then it was reconstructed in the ACA with a name-change. 

The president boasted that about 10 million uninsured Americans were enabled to sign up for health insurance under the ACA. What the president didn't tell us was which health care plans including Covered California did not have enough physicians to cover expected demand. He did not disclose the looming physician shortage that healthcare plans anticipate. By way of personal anecdote, my own personal doctors display signs in their waiting rooms that they don't accept Covered California. In a nutshell, Covered California subscribers and subscribers to many of the ACA plans technically have coverage under their plans; but the plans themselves don't have enough physicians.  The president could have advised potential subscribers to make sure that health care plans include the physicians we trust and rely upon. 

Not to worry. There is a solution although maybe not one that many will like. Covered California and the ACA-enabled plans need not retain physicians if they can fill their ranks with physician assistants, nurses, and eventually nurses with doctorates in nursing practice. All the plans need to do is fulfill the legislative mandate with so-called healthcare providers which can include nursing assistants and other non-physician personnel. Some subscribers will feel they've been swindled, but it'll be too late to make significant changes. Then the president will be an ex-president on high-priced lecture tours. 

But the more imminent surprise will be taxes. It has been stated all along that there may be tax consequences in addition to a fine that has been touted as the likely penalty for non-subscribers who seek coverage.  With the 2014 Tax Year payments looming,  we now know that many Americans will face penalties when they file their returns and that these penalties will reflect aspects of the ACA legislation. The president could have advised American taxpayers to check out this contingency before filing their 2014 returns. Instead, he left them in the lurch.

Many of us expected better. It will not be our last disappointment. 
  



Wednesday, January 21, 2015

Barack Obama, 2015, SOTU: "If a bill comes to my desk that tries to do any of these things, I will veto it"

Part One

"Any of these things," that's what president Obama said during his SOTU speech. His meaning was clear: he referred to  four areas where he said that any Congressional amendments would be considered as "tinkering" and would be vetoed. He included immigration and the Affordable Care Act in this category. The promised vetoes revealed that our president was prepared to shift from a government characterized by the consent of the governed to one that would be more autocratic and unilateral. No previous president ever threatened Congress with four, count 'em, four vetoes. 

Our concern in this post is the Affordable Care Act (ACA), popularly known as Obamacare. It has long since been forgotten that the first important "tinkering" with the ACA was by Obama himself when he dropped the public option from the bill -- the public option was an awkward inconvenience at the time so the president "tinkered" with it. He used a hatchet.

Now efforts to improve the bill are either opposed by its far right opposition which would repeal the entire bill or get opposed by supposed supporters in favor of as much giveaway politics as is humanly possible. 

Here's the deal: the ACA contains two parts that are highly controversial, Sections 10320 and 3403. These sections in the ACA create the Independent Payment Advisory Board (IPAB) which has the power to decide what Medicare will actually cover. The IPAB will consist of 15 members; in fact, in 2012 $15,000,000 was appropriated for the IPAB whose members, while ruling on Medicare benefits, would not be obliged to report to Congress. Each member is to be paid about $165,000 annually -- without, one emphasizes again, without the pesky necessity of reporting to Congress which would still retain theoretical control although much abbreviated. 

Here's how it'll work: the IPAB gets the authority to make changes in the Medicare program but Congress retains power to overrule the IPAB's decisions if, and only if, it can muster a supermajority vote.  Otherwise, a gaggle of 15 appointees would make decisions on matters that are life and death to the elderly and to the especially vulnerable, e.g., age limits for surgery, or for insulin, or for renal dialysis. 

The far reaching effects of the IPAB were actually realized as early as 2010. In the second presidential debate, Gov. Romney had the temerity to ask President Obama who would be appointed to the IPAB. Obama's answer was "doctors et cetera."

Wrong. Obama's answer,  stated with finality, was wrong, but Romney didn't know it and let the issue slide by. Meanwhile the president got away with debate mayhem. He answered incorrectly and wasn't called on it by his opponent or the moderator.  The fact is that there is nothing in the language of Sections 3403 or 13020 that requires even a single physician to be appointed to the IPAB. The entire panel of 15 is to be political appointees with some modicum of interest in healthcare, e.g., the now ill famed coterie of "healthcare providers," anybody but knowledgeable physicians and scholars.THAT is what Obama would protect by threatening legislation that he considers "tinkering." 

The intent of the IPAB in its role as supporter of the ACA is to assess if cost projections exceed targeted growth rates. If that happens, then the IPAB without reporting to Congress is supposed to find ways to reduce Medicare spending -- in short, what will amount to deprivation of care from especially vulnerable patients with advanced or incurable disease. This category will include the elderly. It will be the modern day equivalent of the ancient Eskimo custom of turning frail and elderly citizens loose on ice floes. The trouble is that one can easily see that there may come a time when building a highway competes financially with elder care or with younger patients who need expensive care or advanced surgery. 

What could the president have told us about Obamacare that might have given us a little warning of potentially dire consequences that might just be around the corner, say, at tax time which is just around the corner?

That will be our Part 2, so tune in tomorrow.




Monday, January 19, 2015

How so-called "guidelines" become hard-and-fast "regulations"


Our previous post showed how Utilization Review decisions sometimes turn out to be regarded and applied as actual practice mandates and how 80% of such decisions are actually denials of care that get upheld by Independent Medical Review. 

The quizzical situation is that many of the UR doctors are not licensed in California. Neither are many of the IMR doctors. More to the point is that the UR doctors and their IMR colleagues often reject diagnostic studies and treatment that has been recommended by MPN (medical provider network) doctors that have been selected by the same companies that approved the UR panels that then denied treatment. Practicing doctors and their patients who know that an injury is real have long since figured out that cost-control, not patient care, is the name of the game. Even the AMA has gotten into the game, purveying and selling to any and all willing buyers a book called Guidelines to Impairment. This book has proved to be a goldmine for insurance companies and their employers who don't want to pay for whatever they can get away with denying as a "covered" item.

Meanwhile, seeing the business success of the AMA Guidelines, other organizations have jumped onto the regulatory bandwagon, e.g, the ABMS boards who now sell "recertification" and "maintenance of certification" programs to their own members. In fact, the eagerness with which physicians' own organizations have sought to subjugate its own members has actually provoked enough ire among physicians that 14 states have already passed legislation modifying the greed-encrusted thrust of the ABMS boards to sequester themselves as well paid bosses (about $800,000 for the ABMS chief, see previous post).

Likewise professional organizations such as the American Academy of Neurology (AAN) which recently published a "position paper" on chronic pain and opioid medication -- without submitting a draft to the California Neurology Society (CNS). THAT caught the attention of  then CNS president Robyn Young, MD, who also reviewed a similar advisory from the Medical Board of California (MBC) which seemed more in line with CNS practices than the AAN paper which was widely regarded as one-sided and biased.

That situation in turn led to CNS' asking its own Director of Government Relations to testify at the MBC hearing in October of 2014. The MBC considered several subjects one of which was a unified and reasonable approach to the treatment and management of chronic pain. Accordingly, the CNS Director of Government Relations, Steve Cattolica, stated "these guidelines are not the only treatment of this issue prescribing controlled substances for non-cancer pain." It was acknowledged that such guidelines, however,"should represent the standard of care for physicians in California ... that fact begs the question how these guidelines will be used or IF they will be used as the Board has intended."

Cattolica then pointed out that "our constituents with heavy emphasis in treating injured workers face a difficult situation" because "any inconsistency will cause all physicians to perhaps compromise the standard of care." Using the Division of Workers Comp (DWC) as an example Cattolica stated how "the DWC's treatment guidelines have a long and proven track record of being misapplied ... to control costs and identify physicians they no longer want in their medical provider networks."

The MBC chair, Ms. Yaroslavsky, was quoted as having said that guidelines are just that, guidelines, not regulations. Cattolica then stated why vigilance is essential: "the physician community's experience with the application of treatment guidelines in the workers' compensation system is as rigid criteria." In other words, it needs to be emphasized that AAN Policy Paper on the use of opioids in non-cancer pain is a guideline, not a regulation, and that the same goes for the guidelines proposed by the MBC. It can be anticipated that the MBC and the AAN recommendations will compete for attention from treating physicians. Either way the mere presence of written guidelines opens the way for automatic rejections of treatment by utilization reviewers in all walks of medical practice including government plans such as Medicare and Medicaid, or managed care plans such as HMOs and PPOs, or workers compensation where remote control medicine is already rife among UR doctors and their legally anonymous IMR counterparts.

Cattolica advised a change in wording-- drop the phrase "very consistent" from the recommended statement of Guidelines and replace it with the word, "equivalent."