PROPOSED CHANGES TO THE LABOR CODE

by | Mar 18, 2019

The Workers’ Compensation system in California was specifically created to compensate employees for injuries sustained in the course of their employ­ment. The primary goal of this compensation is for injured workers to be cured or relieved from the effects of their work-related injuries.  Existing law establishes that the Workers’ Compensation system is administered by the Administrative Director of the Division of Workers’ Compensation.

The California Constitution specifically sets forth in Article XIV, Section 4, that the Workers’ Compensation system is to be “a complete system of workers’ compensation” . . . [which will] “create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or dis­ability, and their dependents for death incurred or sustained . . . in the course of their employment, irrespective of the fault of any party . . . [with] full provision for such medical, surgical, hospital and other remedial treatment as is requi­site to cure and relieve from the effects of such injury”.

Senate Bill 863, which was signed by Gov. Brown in September 2012 and went into effect in January 2013, changed the Workers’ Compensation system by implementing Independent Medical Review (IMR). Prior to that time, the Utilization Review (UR) protocol existed.  In both of these protocols (UR and IMR), the reviewing doctors never see the injured workers for whom they are making important decisions regarding their medical care needs.

 

Utilization Review doctors are a group of physicians who have a contract with, and are paid by, the employer or the employer’s adjusting agency.

Indepen­dent Medical Review doctors are paid by the State. Of significance, again, is the fact that none of these doctors ever see the injured workers whose medical care they are determining.  In addition, IMR doctors are protected by a cloak of secrecy, as their identities are never revealed.

The IMR process is the injured worker’s only avenue of appeal for UR denials of medical care. Before IMR was instituted, injured workers had the right to present evidence to a judge as to their treating doctor’s opinion, and the judge would weigh and measure that opinion — the opinion of a doctor who had seen the

patient many times and therefore had a solid basis for the care which he/she had recommended — versus the opinion of a UR doctor who had never seen the patient.

The implementation of the Independent Medical Review process, in theory, was supposed to expedite the system. However, the history of IMR decisions reflects that an extremely high percentage of UR denials of treatment have simply been upheld.  In fact, in 2017, only 8.3% of these denials were over­turned. The truth is that both UR and IMR doctors have no accountability under the present system.

A troubling case occurred where injured worker King was on medication which had been authorized by his treating doctor, who knew the patient well and truly understood his needs. However, that medication was abruptly stopped by the UR/IMR process, causing Mr. King to suffer four seizures. This matter ultimately went to the California Supreme Court, which unfortunately deter­mined that UR doctors have no accountability for the harm they cause.

The delay in receiving medical care — and the denial of medical care — are signifi­cant, and this significance overflows into the worker who is not able to receive the care needed. In many situations, the employees embrace the concept of a Compromise and Release, but in doing so they give up their lifetime medical care.  Under the Workers’ Compensation system, this shifts the economic consequences of a job-related injury away from what is mandated by the California Constitution, to the worker’s own health plan.

 

The enclosed proposed amendments and deletions constitute a rightful

move which will not increase the money workers will receive for their job-related injuries, but will increase their access to medical care to cure or relieve the effects of their work-related injuries and place the economic responsibility for such injuries where it rightfully belongs — on the Workers’ Compensation system as opposed to individual health plans.


THE LAW OFFICES OF SCOTT A. O’MARA
2370 Fifth Ave. San Diego, CA 92101
4200 Latham St. – Ste. B Riverside, CA 92501-1766
1-800-LAW-1199 (1-800-529-1199)
619-583-1199 951-276-1199
www.law1199.com
BOBBITT, PINCKARD & FIELDS, A.P.C.
8388 Vickers St. San Diego, CA 92111
4200 Latham St. – Ste. B Riverside, CA 92501-1766
858-467-1199
www.coplaw.org


NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

PROPOSED CHANGES TO THE LABOR CODE


THE LAW OFFICES OF SCOTT A. O’MARA
2370 Fifth Ave. San Diego, CA 92101
4200 Latham St. – Ste. B Riverside, CA 92501-1766
1-800-LAW-1199 (1-800-529-1199)
619-583-1199 951-276-1199
www.law1199.com
BOBBITT, PINCKARD & FIELDS, A.P.C.
8388 Vickers St. San Diego, CA 92111
4200 Latham St. – Ste. B Riverside, CA 92501-1766
858-467-1199
www.coplaw.org


NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.