Is this Medical Care?

 

    If you are injured or become disabled as a result of your work, you are funneled into a medical care system which limits you to the workers compensation insurance company's hand-picked medical provider network. It is also true that insurance companies have the legal right to kick any doctor off the medical provider network if they recommend too much treatment or treatment that is too expensive. As a result, many of the doctors in our community have chosen not to treat injured workers or have been kicked off workers comp networks because they actually try to provide treatment rather than towing the employer line. Despite the complete control of medical treatment by the employer, injured workers often find that more time and effort is spent and wasted on denying treatment recommended by these same hand-picked doctors.

    It will come as no surprise then that workers' compensation insurance carriers' own expenses consume more than 35% of the money paid out in the workers' compensation system and the fastest-rising costs are those to review and overrule treatment from the insurers' own hand-picked doctors. In contrast, the permanent disability compensation payout to those injured on the job is a small percentage (10.8%) of the payout of the workers' compensation insurers. These numbers were compiled by advocates for injured workers using insurance industry figures from the Workers Compensation Insurance Ratings Bureau (WCIRB). The data shows that out of total workers' compensation payout, insurer expenses consume 35.7%, all medical care combined receives 38.3%, temporary disability payments 12.5%, and permanent disability compensation just 10.8%. The Schwarznegger Rating Schedule slashed permanent disability compensation by 50% to 70%.

    These numbers reflect a different reality than the constant drumbeat of employer and insurance carrier complaints would seem to imply-- that benefits paid to injured workers are simply too high to be borne by employers. The reality is that insurance payments to injured workers are far less than payments to others in the system, and the expenses and profits to insurance carriers.

    The extent of the problems in the workers comp medical treatment program was driven home this week when State Compensation Insurance fund (SCIF) issued a notice to the doctors in their Medical Provider Network (MPN) that they must sign an agreement which states, among other things, how and when they can recommend home care for an injured worker and the extent of the specifications they are allowed to prescribe without seeking authorization before making the recommendation. Furthermore, they must agree that they will limit prescribing opioid medications regardless of the patient's needs without prior agreement from the insurance adjuster or by order of the Judge. If the doctor does not agree to submit his proposed prescriptions to SCIF for pre-authorization he or she will be kicked off the MPN.

    The California Society of Industrial Medicine & Surgery (CSIMS) has contacted SCIF to advise them that their "heavy handed attempt at contract medicine" dangerously restricts the ability of SCIF MPN physicians to comply with California law— the Intractable pain Treatment Act and Health and Safety Code Section called the Pain Patient's Bill of Rights. Furthermore, they point out that SCIF has ignored the California Medical Board's Guidelines for Prescribing controlled Substances for Pain all of which would compel MPN physicians to violate the tenets of these guidelines on a routine basis and, in so doing, risk loss of their medical license and exposure to malpractice liability. Needless to say all this does not contribute to quality care for those subjected to MPN physicians. CSIMS further notes that the agreement prohibits physicians from even prescribing some medications, regardless of medical necessity yet SCIF provides no medical evidence to justify the requirement which is in itself a Labor Code violation.

    Now, certainly I would agree that there should be caution used in prescribing strong opioids or any other strong medications; however, I would not agree that an insurance adjuster should be the arbiter of what my doctor should or should not prescribe. How is that different from practicing medicine without a license? It would seem that SCIF is boldly making an effort at putting in writing their intention to prevent doctors from recommending treatment before it becomes an actual prescription to be sent to Utilization Review. This practice would surely reduce the escalating costs of reviewing or denying care since that care would not even be recommended in the first place. But, honestly, doesn't this miss the point of a medical delivery system? Remember that injured workers already contend with the draconian limits placed on physical therapy treatments, occupational therapy and chiropractic care. It would seem that soon there will be little a doctor can offer to the poor working person who is relegated to this system. Those who have other options—private health insurance, Medi-Cal, Medicare-- will seek to have their needs met elsewhere, pushing off the legitimate obligation of the employer and its carrier to provide the care for work-related injuries on to the rest of us as taxpayers and as part of the private health insurance pool. Those who have no other options simply go untreated and often fall into a lifetime of pain and disability leaving themselves, their families and society without the productivity they may have attained.

    The system of workers compensation was designed at the dawn of the industrial revolution to provide adequate and well-defined benefits to people who are injured or become sick on the job. The idea was to provide these benefits without having to prove negligence. This would save employers from diverting their resources to expensive litigation and would allow injured workers and their dependents to receive disability payments and treatment in a timely and efficient manner in an effort to get them back to work and on with their lives as soon as possible. In exchange for receiving benefits without proving negligence, people injured on the job have given up their civil right to sue their employer even when they are negligent—unfortunately a still too common occurrence. As time goes on it seems that we have come very far from the original ideal. Our current system is focused on insurer profits and employer costs with California workers receiving second and third rate medical care and among the lowest disability benefits in the country.

 

Permanent Disability Compensation Down 75%

As if anyone involved in California's workers compensation system didn't already know, last week advocates for injured workers released a chart showing that the Schwarzenegger Administration reduced permanent disability compensation by 60% over and above the reduction intended by the Legislature through SB 899 in 2004. The chart was compiled using insurance industry figures from the Workers Compensation Insurance Ratings Bureau(WCIRB). “Every dollar taken from an injured worker for a lost leg, foot or other disability has been given to the insurance industry. The changes have been extremely profitable for insurance companies, but not for those injured on the job,” said Barry Hinden, President of the California Applicants' Attorneys Association.

The chart shows that in addition to SB 899’s statutory reductions in permanent disability (17%), apportionment and fewer weeks of disability compensation for a particular injury, the Schwarzenegger Rating Schedule slashed permanent disability compensation by an even greater amount than that statute mandated.

Around 55,000 California workers suffered a permanently disabling injury last year. For virtually all permanently disabled workers, permanent disability compensation from insurers is paid out at a maximum of $230 per week until their award is exhausted. For example, the total benefit for loss of a foot is $30,130. The amputee would receive $230 per week for about 131 weeks. This amount is lower than in almost any other U.S. state, and lower than all neighboring states.

Making Progress for Change

On May 17^th, I joined a 50-person contingent of the California Applicants’ Attorneys Association (CAAA) at the Capitol in Sacramento for CAAA's annual lobby day.  After 7 years of seeing Arnold's name emblazoned in gold letters over the entrance to the Governor's office, it was a pleasure to enter the building and see it gone!  I just wanted to take a few minutes to update you on the three bills CAAA is currently sponsoring.  All three bills are working their way through the Legislature.

AB 1155 (Alejo and 24 Assembly co-authors) was passed out of the Assembly and is on its way to the Senate Industrial Relations Committee for consideration.  This is an anti-discrimination bill banning apportionment of permanent disability based solely on "race, religious creed, color, national origin, age, gender, marital status, sex, sexual orientation, or genetic characteristics."  Unbelievably this sort of discrimination is still going on and had the blessing of the former Governor (given his prior vetoes of the same bill).

AB 947 (Solorio) was passed out of the Assembly and is on its way to the Senate Industrial Relations Committee.  This is an extension to the law limiting temporary disability to two-years regardless of how long your disability lasts.  This bill requires a doctor to determine if an extension is needed to the two-year cap on temporary disability benefits based on treatment required before one can be considered at Maximum Medical Improvement (MMI).  The bill limits limit temporary disability to no more than 240 weeks, and prohibits extensions if the disabled worker "willfully" delays treatment.  This bill would prevent the most seriously injured people from being penalized because the extent of their injuries requires long-term treatment which exceeds the duration of their temporary disability payments.

SB 432 (De Leon) recently passed out of the Senate Appropriations Committee. This bill addresses concerns related to major hotel chains in California that still require housekeepers to lift heavy beds and use flat sheets, often resulting in serious injuries to workers.  Hotels are also failing to provide long-handled mops, resulting in housekeepers cleaning bathroom floors on their hands and knees, causing many unnecessary injuries. I have previously blogged about this bill and we hope that this will put an end to this story which very much resembles the battle the farm workers fought to eliminate the “short-handled hoe.”

During our Lobby Day visits, we distributed a fact sheet and graphs showing the huge unintended reduction in permanent disability compensation and highlighting the sharp drop in insurance rates since January 2004.  I encourage you to take a look at these materials and consider disseminating them to your local legislators.

I will keep you posted on further developments regarding these bills and other workers compensation- related bills. 

Off our Knees: Hotel Housekeepers Win CalOSHA Citation and Senate Appropriations Support to End "On Your Knees" Bathroom Cleaning and Backbreaking Bed-Making Practices

CalOSHA Citation, Committee approval Boost De Leon Bill to End "Modern Short-Handled Hoe"

SACRAMENTO, CA- The California Applicants' Attorneys Association (CAAA) and UNITE HERE today said that an OSHA citation and Senate Appropriations Committee approval of SB 432 (De Leon) will help propel their efforts to outlaw housekeeping practices that result in housekeepers cleaning bathroom floors on their knees and lifting heavy mattresses for lack of fitted sheets.  The California Occupational Safety and Health Administration (CalOSHA) has issued citations alleging that the Hyatt Andaz Hotel inWest Hollywood has failed to comply with multiple state safety regulations.  The State Senate Appropriations Committee approved the measure Thursday on a 6 to 3 vote.  The bill will be heard on the State Senate Floor next week.

Hotel housekeepers frequently clean bathroom floors on their hands and knees, an unsafe and degrading practice that is tolerated by too many hotel employers.  This practice, combined with the failure to provide fitted sheets like those used in homes, has led to an unacceptable rate of back and other work-related injuries.  A landmark study reported in the American Journal of Industrial Medicine (2009) by a team of researchers from four universities and UNITE HERE found that the hotel housekeepers, particularly females, had the highest injury rates of any hotel service workers in the study.  Female housekeepers, especially Hispanic women, had the highest risk of injury.  Hispanic women were almost twice as likely to be injured as white housekeepers. 

The California Occupational Safety and Health Administration (CalOSHA) has issued citations alleging that the Hyatt Andaz Hotel in West Hollywood has failed to comply with multiple state safety regulations.  CalOSHA also highlighted concerns about repetitive motion injuries to housekeepers owing to potential hazards arising from the tasks of bed making and floor cleaning.

In an information memo issued to the Hyatt Andaz on May 20, CalOSHA identified instances of housekeepers who suffered medically diagnosed repetitive motion injuries while making beds and cleaning bathroom floors on hands and knees.

The agency said the hotel should consider using fitted sheets and tools, among other measures, to prevent repetitive motion injuries to housekeepers.

CalOSHA put the Hyatt Andaz on notice, warning that if it fails to remedy these potentially hazardous conditions and workers become injured in the future, CalOSHA may issue citations.  The agency advised that such citations coud be classified as 'willful', which is a more severe type of citation with potentially stiffer penalties.

The hazard memo -- the first of its kind for hotels in California and nationwide--comes as state legislators weigh a proosed bill requiring hotels to provide long-handled tools and fitted sheets to prevent housekeeper injuries.  the full Senate will vote on the legislation, SB 432(D-DeLeon), next week.

"Working as a housekeeper for 14 years has taken a toll on my body.  When I injured my back making a bed, I was on medication for months," said Morena Hernandez, a Hyatt Andaz housekeeper.  "I hope CalOSHA's recommendation for fitted sheets and tools can help the hotel industry see that SB 432 can be a simple, positive way to make our jobs safe."

CalOSHA's citations are a result of investigations following injury complaints lodged by Hyatt housekeepers in November 2010.  In total, CalOSHA proposed $7000 in fines against the Hyatt Andaz for varous alleged safety violations found in the hotel. 

SB 432 is designed to eliminate the very hazards that are the subject of CalOSHA's information memo-- injuries housekeepers endure from cleaning bathroom floors on their knees and lifting heavy mattresses repeatedly for lack of fitted sheets.  The bill's sponsor, the California Applicants Attorneys Association, intends to amend the bill in the Assembly to clarify that the law will be enforced with existing OSHA staff, meaning no additional costs to the state.  another amendment will make clear that if a hotel can introduce a better ergonomic remedy to reduce housekeeper injury, it will be allowed to apply for a variance from the bill's requirements.

The Hyatt has 15 working days to pay the $7000 in proosed penalties or file an appeal.