Did you know that California workers are losing their right to sue for work related injury – particularly the environmentally injured

Mercury News, September 11, 2012 ~ Exclusive: California Gov. Jerry Brown tells critics ‘We’ve made a helluva lot of progress’ ~ “On workers’ compensation reforms, approved on the final day of the session with the support of labor and business leaders alike, Brown trumpeted his ability to bring Republicans and Democrats together for lopsided votes in the Legislature. Brown has been credited with closing the deal with personal appeals to legislators in both parties. The deal averted a large premium increase to employers while increasing payouts to injured workers but eliminated coverage for conditions that most commonly lead to lawsuits. ‘This was a real triumph — the first time we’ve got Republicans and Democrats in huge numbers,’ Brown said. ‘That’s work. Did that help Proposition 30? I wasn’t even thinking of Proposition 30. I just knew that workers’ comp needed this reform and this is the most major reform probably ever.”

Artwork by Sandi Trend, mother of California injured biotech worker, David Bell

September 7, 2012~ Workers’ Compensation Law | LexisNexis ~California Workers Compensation Reform Analysis of SB 863: Medical Treatment ~ The following analysis is based on the 8/30/2012 amended version of SB 863: ~  “The primary change in this current proposal is that the IMR [sic Independent Medical Review aka Defense Medical Review  when coverage of injury is denied by the insurer] process was made mandatory for almost all medical treatment disputes in the entire workers’ compensation system, with little or no involvement from the WCAB [sic Workman's Compensation Appeals Board] . Only an IMR reviewer is permitted to make a decision on medical treatment. In almost all MT cases, neither the WCAB nor any higher authority is permitted to weigh in on the issue of what constitutes reasonable and necessary medical treatment.The reform legislation seems to be designed to eliminate attorneys and the judicial system from the MT dispute resolution process. Proponents of SB863 argue that eliminating attorneys and judges from the medical dispute resolution process will streamline the system and expedite the delivery of MT services to IWs. They propose this IMR system will guarantee IWs top quality medical care, since MT decisions will be made solely by graduates of medical schools, rather than by graduates of law schools.  However, those opposed to the reform package feel that quality of care is secondary to access to care. If an IW is unable to access MT, quality is irrelevant. And it is this access to care, that attorney and judicial involvement guarantee. IWs have encountered various struggles over the past several years to obtain needed MT. Without a legal advocate to assist them, and without a right of appeal of the IMR decision, those in opposition to SB863 are concerned that the IW’s struggles to secure MT will increase exponentially. In addition, some people have suggested that the new IMR system may be unconstitutional as it takes the decision making process outside the judicial arena and allows for a medical decision based solely on a records and document review, rather than on an “in person” examination of the IW.(SB863 does not seem to require or even allow for the IMR physician to personally examine the IW.) This fact, combined with the loss of all rights of appeal, raises all sorts of questions of due process. Some have argued that IMR system deprives the IW of notice and their opportunity to be heard on the determination of their MT needs, which may be considered unconstitutional.” 

To our knowledge, there is no such animal as an environmentally trained Medical Review Officer within the California Workman’s Compensation System and bias against the environmentally injuredis blatant and pervasive. 

Here is how the Scam Works: “When an employee is injured or made ill at work, the employer or insurer may send the employee to an AOEC clinic for evaluation. These clinics are affiliated with the University of California. . These evaluations are known as independent medical examinations (IMEs). The term ‘independent’ as applied to contracted examinations suggests that they are unbiased in comparison with the opinions of personal physicians. However, the physician conducting the IME is connected financially to the employer/insurer and not the patient, creating a fundamental conflict of interest. As a result, the IME arrangement is already strongly biased toward minimizing the recognition of occupational illness and disability. If the worker attempts to challenge the IME finding, these same physicians may then generate additional income as expert defense witnesses on behalf of the employer or the insurer. Much of the funding received for the denial of illness through expert-witness testimony goes directly into the coffers of the teaching universities charged with advancing the understanding of illnesses they are profiting from by denying. How far that bias and financial opportunism are carried is a matter of both pervasive commercial influence over occupational medical practice and personal ethics.”

We predict that SB863 will ultimately be deemed unconstitutional and will cause more litigation in California — not less, while the environmentally injured worker will have to jump through even more hoops to receive medical care and restitution for illness and injury; and while the taxpayer will continue to foot the bill for the destitute workers & their families via state and federally funded social service programs.

July 20, 2012 LexisNexis~Cost-Shifting of Workers’ Compensation Expenses: Study Says Third Parties Pick Up Most of the Bill~ “The researchers based their findings regarding the number of workers’ compensation cases and the costs of those cases on data from the Bureau of Labor Statistics and the National Council on Compensation Insurance. Workers’ compensation costs for 2007 were estimated to be $51.7 billion, which consisted of approximately $29.8 billion in medical expenses and roughly $21.9 billion in other benefits. The study noted that the $51.7 billion included compensation for work-related harm that occurred in 2007 and for benefits for compensable harm that occurred in prior years. Other information showed that non-workers’ compensation insurance absorbed $14.22 billion worth of medical expenses that workers’ compensation did not cover. Medicare covered an additional $7.16 billion of those expenses and Medicaid covered an additional $5.47 billion. These results prompted concluding that workers’ compensation ‘costs were shifted to workers and their families, non-workers’ compensation insurance carriers, and governments.”

It is a noble try, Governor Brown, to attempt to do something about a system that is severely compromised by the control of the insurance industry and an aiding and abetting medical system.  But it is not enough to bring real change for the employers, workers and taxpayers of California and will surely only make matters worse. 

You have not  addressed the motivating elephant in the room:  Increased insurer and Regents of the University of California profits from the new plan – just like the old plan –  while honest employers, workers and taxpayers continue to pick up the tab for those who have figured out how to game the system and shift their costs onto the public.

HERE IS AN IDEA TO SOLVE THE PROBLEM, GOVERNOR BROWN:  Why don’t you have the state’s District Attorneys go after workman’s compensation insurers for the fraud and cost shifting? The millions in tax dollars the state’s DAs receive annually from the California Fraud Assessment Commission for the exact purpose of stopping insurance fraud could actually be used to stop insurance fraud.   Then, maybe there would be no need to raise taxes via Proposition 30.

 
 
 

 

 

This entry was posted in Civil Justice, Environmental Health Threats, Health - Medical - Science, Mold Litigation, Politics, US Chamber of Commerce and tagged , , , , , , , . Bookmark the permalink.

2 Responses to Did you know that California workers are losing their right to sue for work related injury – particularly the environmentally injured

  1. John Fish says:

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