As a native, I am tired of the way California is
portrayed in the media. According to national news, our state is
in a mess because we are all obsessed with marijuana, Birkenstocks,
and Hollywood. Let’s face it, they think we are just too weird
to care about the issues in our state and that’s why we are
in the middle of a recall.
Yes, the recall is akin to Dynasty with new twists
and turns each day and a cast that would have rivaled any Hollywood
movie. But a state that has the 5th largest economy in the world,
must have something on the ball.
Recall fever owes its genesis to Darrell Issa, the
multimillionaire who financed the recall with the intention of becoming
the next governor, but his carefully orchestrated plans backfired
in the first plot twist. He tearfully withdrew his name from the
race when it was apparent that his candidacy barely registered a
bleep in the polls.
Arnold Schwarzenegger, a political neophyte, is gathering
support as a candidate by the force of his celebrity. Avoiding to
talk about the issues, except for slogans, he is asking to be elected
before he tells the electorate what he intends to do to fix our
problems. It is interesting to note that not all are happy with
his candidacy, it seems some conservatives are cringing at this
Republican-lite candidate, but many are hoping Arnold will have
the drawing power to take him to Sacramento and put a win in the
GOP column. Even Hollywood who likes to pick up the banner of politics
appears to be very quiet on the Terminator’s candidacy. Other
than an actor who plays a political advisor, no one is coming to
his support.
The ex-baseball commissioner, Peter Ueberroth, has
thrown his cap in, hoping to be the Republican choice. OK, even
I don’t get this one.
State Senator Tom McClintock looks like he should
be the Republican savior. He has the best Republican pedigree and
yes he matches perfectly with the conservative ideals of the Republican
mind set, but previous experience doesn’t seem to count for
much because he is fighting an uphill battle to be the Republican
front-runner. Californians historically have voted in centrists
for the top positions in the state government and McClintock might
be a bit too far right to be a comfortable fit for the governor’s
chair.
Lt. Gov. Cruz Bustamante, who calls himself the son
of the central valley, finds himself as the Democrat go to man if
his boss looses his job and California isn’t ready to become
a Republican state, which is a possibility because some are still
smarting from Pete Wilson’s time as governor.
Somehow Bustamante has been able to separate himself
from Davis. It is well known that the two are not friendly, which
has helped him. Maybe if the gauntlet is not passed to Bustamante,
who knows, he could be back as a contender in the next governor‘s
race? His dark horse candidacy is gaining momentum with a 35% lead
according to the Los Angeles Time Poll done just a few weeks ago.
Arianna Huffington and Peter Camejo are independents
with good ideas for California, but whether the voters will take
the leap to deviate from the two party system and really start with
an independent view would be a true revolution in Sacramento.
The rest of the 130 or so candidates are just looking
for 15 minutes of fame, or help to boost sagging careers. Governor
Gray Davis, who is the center and reason for this maelstrom is a
political fighter. He has on several occasions pulled a few dirty
tricks that has left him standing after the storm has passed. We
all remember the Riordan/ Simon switch, so don’t underestimate
this politician, especially when he has managed to get his former
rival, Sen. Dianne Feinstein, aka Leona Helmsley (remember his attack
ad on Feinstein?) to appear in ads to endorse him. Even the polls
have shown a slight decrease in voters wanting to recall him from
58% to 50%,
Everyone thinks the flash of Hollywood will blind
us. I don’t think we can be fooled so easily. I choose to
think that Californians are testing the limits of democracy and
the recall is a stepping-stone to a new political landscape. So
for better or worse this should be a historical election for Californians.
Don’t miss a chance to participate, it is too important.
Labor Code Section 132A and Employers Termination of Health Insurance
Coverage
On June 26, 2003 a unanimous opinion by the California
Supreme Court determined that in order to make out a prima facie
case of a violation of Labor Code section 132A, an employee must
establish not only that the employer engaged in detrimental conduct,
but that he or she was subjected to differential treatment as a
result of his or her industrial injury. The requirement of proof
of differential treatment will shield most employers decisions to
terminate health insurance coverage to injured workers on disability
status from liability under section 132A, because employers generally
apply the same policies to industrially injured employees as they
do to any other employees who are on leave status.
According to a memorandum from Joel Gomberg, Workers’
compensation Administrative Law Judge dated July 14, 2003 to Executive
Officer Christine Baker, Judge Gomberg states that Commissioner
Wilson initially raised the subject of the interaction between section
132A and the termination of health insurance benefits in the context
of school district employees on long term disability status. An
earlier background memo on this issue had been written and explained
that the Supreme Court gave an expansive reading to section 132A
in Judson Steel v. Workers’ Comp. App. Bd (Maese) (1978) 22
Ca.3rd 658, 43 Cal. Comp.Cas 1205. In that case, the court held
that an employer may not avoid liability under section 132A by relying
on the provisions of a collective bargaining agreement as a business
necessity for taking an adverse action against an injured worker.
In Smith v.WCAB (1984) 152 Cal.App.3rd 1104, 49 Cal.Comp.Case 212,
the court held that any detrimental action taken by an employer
triggered by the employee’s industrial injury is discriminatory
unless the employer can prove that the action was necessitated by
the realities of doing business.
The impact of these decisions was narrowed somewhat
by the WCAB’s en banc opinion in Navarro v. A&A Farming
(2002) 67 Cal.comp.Cas 145, holding that where an employer provides
health insurance coverage through a group plan subject to the provisions
of the Employee Retirement Income Security Act of 1974 (ERISA) any
claim of discrimination under section 132A “relates to”
ERISA and is therefore subject to ERISA’s extremely broad
preemption provisions. The effect of Navarro is to immunize employers
participating in ERISA group health benefits plans from liability
under section 132A when they terminate coverage pursuant to the
terms of the plan.
In the Lauher Case, the applicant continued receiving
medical care after he was returned to work and his condition was
found to be permanent and stationary. His employer refused to pay
Lauher temporary disability indemnity when he missed work to receive
medical treatment, instead requiring him to use accrued sick leave.
Lauher contended that the employer’s refusal to compensate
him for lost time constituted unlawful discrimination within the
meaning of section 132A. The Supreme Court granted review to decide
two questions: (1) whether an injured worker is entitled to temporary
disability, after being declared permanent and stationary, for time
lost from work to receive medical treatment for an industrial injury,
and (2) whether an employer violates section 132A when it requires
an employee to use sick leave or other credits in such circumstances.
The Court answered both questions in the negative.
Justice Werdegar, writing for a unanimous court,
emphasized that workers’ compensation benefits were never
intended to provide a “make-whole” remedy to injured
workers, and that an employer does not necessarily engage in discrimination
when it “requires an employee to shoulder some of the disadvantages
of his industrial injury.”
With respect to the question of entitlement, according
to the memorandum by Judge Gomberg, temporary disability indemnity
benefits to compensate for lost time to receive medical treatment
after a permanent and stationary status were intended to provide
partial compensation for wage loss, and that such benefits are not
necessary once the injured worker returns to work. Furthermore,
as a general rule, per Judge Werdegar, “injured workers may
not receive temporary disability and permanent disability benefits
as the same time.”
In reference to the second question, the Court noted
that after reviewing the history of the “detriment”
test, Justice Werdegar agreed with the Court of Appeal that the
“Smith formulation” was “analytically incomplete.”
The court held that evidence of a detrimental action was insufficient
to establish a violation of section 132A. Justice Werdegar stated
that “we agree that for Lauher merely to show he suffered
an industrial injury and the he suffered some detrimental consequence
as a result is insufficient to establish a prima facie case of discrimination
within the meaning of section 132A. The Court therefore has determined
that in order to establish a prima facie violation of 132A, an injured
worker must also show that the employer engaged in differential
treatment. Because Lauher does not allege that other employees are
permitted to be away from work for medical care yet need not use
their sick leave if they wish to be paid their full salaries, the
Court concludes Lauher fails to demonstrate he was the victim of
discrimination within the meaning of section 132A. The Court states
that “to hold otherwise would elevate those who had suffered
industrial injuries to a point where they enjoyed rights superior
to those of their co-workers.”
The Lauher decision has profoundly changed
the legal landscape in Labor Code section 132A giving employers
some additional room to create uniformity between their occupation
injury versus non occupation leave of absence programs without subjecting
themselves to violations of the Labor Code under discrimination.
Workers’ compensation reform is taking a prominent role
in the upcoming recall election. There are 135 people running for
governor, all with ideas of how to reform the system.
State Senator Tom McClintock has put forth the most
ambitious plan for reform. Senator McClintock is proposing that
California adopt the Arizona system. In a sweeping move, he would
give the legislature 30 days to enact the new system.
I do like the fact that this would change the way
permanent disability is rated by using the AMA percentage of the
whole person standard instead of adjusting for age and occupation.
Other aspects of the Arizona system would not work in California
unless changes are made to other aspects of California labor law.
Arizona’s labor laws differ greatly from California’s.
For example, in Arizona there is no specific law prohibiting discrimination
for filing a worker’s compensation claim as there is in California
with Labor Code Section 132a. The recourse for the alleged discrimination
is to file a claim with the Arizona EEOC. Do we really want the
California EEOC adjudicating this issue? Given the extremely liberal
disability protections in California, this would cost employers
even more unless damages are capped.
Now that the joint Senate and Assembly committee
has been formed, it is time for us who are in the front lines to
get involved. I believe it is imperative that our voices be heard
on this issue since it will have the greatest impact on our livelihood.
I believe that we need to go to Sacramento and express our concerns
to the people that are making what amounts to the life and death
decisions about our careers.
I am planning to go to Sacramento on September
24 to talk to our legislators about affecting a meaningful change
in the system. Many interest groups have already gone to Sacramento,
but it is now time for claims professionals to be heard. If you
would like to join me, email me at bill@adjustingworld.com for information.
Please send your responses before September 15.
Managing care in the Worker’s Compensation
arena is challenging. It requires a collaborative approach to treatment
and return to work planning between the employee and provider of
care, insurer and the employer. Frequently, an intermediary Case
Manager (either telephonic, field based and/or onsite at the employer)
is utilized to maximize quality of care emphasis, return to work
goals and cost containment practices.
Sometimes there may exist a stall in an injured worker’s
progress or return to work plans. Periodically, there may be a need
for a professional to review the case file and assess and make recommendations
for alternatives to care and/or discuss treatment, disability status,
case direction or provider prognosis. An experienced Nurse Case
Manager can review the case files and discuss/consult various case
issues with the claims examiners and the employers to facilitate
a timely recovery and return to work process.
Early Intervention is defined by the introduction
of Case Management Services within the first 30 days of an industrial
injury. Emphasis is placed on referring a case at the time of Initial
Report of Injury. This will assist in maximizing the impact that
the Nurse Case Manager can have on directing quality care, utilizing
provider networks preventing litigation, returning the injured worker
to gainful employment and realizing cost savings. This is the ideal
process through which to impact an industrial claim.
Once a case is referred, the claims/medical record
is received and reviewed by the nurse case manager. A complete assessment
of the file is done with respect to the referral goals/direction.
Telephonic/field contacts, if requested, are completed. Documentation
requested is acquired as applicable. A comprehensive report is completed
and forwarded to the referring party. The report contains a review
of the records submitted, a case summary of the status of the file
to date, case management activity performed in order to accomplish
the file review, a response to specific issues/questions if requested,
and most importantly, recommendations based on professional nursing
case management experience and references for Disability Management
Standards.
File reviews encompass an assessment of the claims/medical
records, diagnostic tests, consults, reports, etc. It can identify
barriers to the return to work process. This can identify the need
for Job Analyses, Ergonomic Assessments and Functional Capacity
Analyses. File Reviews can occur anytime during the course of the
claim. An employer, an adjuster, even a telephonic nurse case manager
can identify& the need and refer a case for a file review. A
specific case management plan is developed with the referring contact
for the goals of the review and specific questions! Issues can be
addressed as requested. Each file review is tailored to the specific
needs of the case/ referral request.
File reviews help determine if Telephonic/Field/Vocational
Case Management could benefit the case outcome by impacting the
treatment plan, clarifying the diagnosis, affecting RTW plans and
facilitating quality of care, coordination of benefits and identifying
areas for cost savings.
Telephonic Case Management Services usually manage
cases during this crucial time of primary provider control for the
first 30 days. Information gathering and monitoring of services
to prevent over-utilization, as well as, initial diagnostic testing
and provider consultation assist in directing care during the initial
acute phase of the recovery process.
Field based case management provides the eyes and
ears for the insurer and the employer in the provider arena. The
case manager also provides a liaison between the injured worker
and all the parties involved in the case, keeping everyone abreast
of the case issues and claimant status. It can include task assignments
like contacting providers, claimants, acquiring medical documentation,
disability research specific to a diagnosis, attending an appointment
with the claimant and the provider, recommending alternate providers,
etc.
Most manage care companies utilizes Presley-Reeds’
Medical Disability Advisor and Milliman & Robertson’s
Healthcare Management Guidelines for assessing standards for disability
management. These are up to date and highly respected reference
resources found both in hard copy and online.
Some of the criteria to assist the adjuster or employer
in evaluating when and if a referral for a file review is needed
or may be of benefit. Case Management Referral Criteria assists
the adjuster/employer in identifying potential red flags in the
course of the file that might indicate a need for further follow-up
or investigation due to a number of variables. Examples of criteria
are:
No specific diagnosis or treatment plan, or plan
inconsistent with Diagnosis
Excessive use of diagnostic testing without medical
rationale
Concern about injured worker’s understanding
of his/her treatment plan
Current complaints/symptoms inconsistent with
objective findings
Minimal improvement and no change in treatment
plan
Treating physician fails to address return to
work options
Hospitalizations
Catastrophic injuries or injuries with multiple
body parts/organ systems
Pre-existing conditions impacting current injury
Multiple providers
Specific, high profile diagnoses i.e. back injuries,
burns, etc
A good relationship between the adjuster and case
manager is imperative in impacting cases that may have one or more
of the above issues. Sometimes it may only be a matter of discussing
the case to date with adjuster, or reviewing the file/medical records,
a one time meeting or call to a physician, or referral to Utilization
Review. The Nurse Case Manager can impact the treatment plan by
communicating with the providers to clarify the diagnosis, affect
(RTW) Return To Work plan and facilitate cost savings. This central
position allows the CM to interact with all providers, the claimant,
employer, etc. to coordinate and facilitate collaboration to assist
the account in attaining a positive outcome while maintaining quality
of care and coordination benefits.
Recently, at an Ergonomic Back Training, I was asked
"what is good for the spine?" I mentioned calcium, but
later realized I would have liked to have given more information
when asked that question. Another incident occurred soon afterwards
that piqued my interest in spine and bone health even more: I was
given an osteoporosis test at an employee health fair and received
a rather poor reading that indicated I needed to be concerned about
my bones. They told me to take calcium and vitamin D.
As I began to research this topic, one of the first
things I found is that for prevention of osteoporosis, calcium is
considered substantially less effective than hormone replacement
therapy (HRT); and yet women today are trying to avoid taking hormonal
therapy due to new research which is rather negative.
Women took HRT readily in the past to counterbalance
the decrease in estrogen that occurs during menopause. This decrease
has shown to cause osteoporosis and increased potential for bone
fractures. Estrogen replacement therapy has been found to be very
effective in preventing postmenopausal bone loss and preventing
fractures. However, a long period of treatment is necessary for
any significant benefit to the spine.
The long-term effectiveness of estrogen hormone therapy
has been questioned, since studies have found that in the elderly,
there is no difference in bone mass with those who received estrogen
replacement therapy treatment and those who did not. Cancer, cardiovascular
and gall bladder diseases have been linked to estrogen replacement
therapy. Many women and their physicians are electing to discontinue
their hormone replacement treatment (or not start treatment). Meanwhile,
women who stop taking hormone replacement therapy are at high risk
for rapid bone loss. Thus researchers need to find alternatives
to HRT.
In addition to the nutrients in food such as soy
and vegetables which were studied in the research I evaluated, there
are non-hormonal medications such as Ibandronate and Alpha-Hydroxycholecalciferol,
which have been shown to be effective in preventing bone loss in
patients who have discontinued hormone replacement therapy. Two
of the studies I looked at used soy as dietary supplement to help
prevent bone loss. The study that used a prepared muffin and protein
powder had greater compliance than the study that told subjects
to add one soy food serving per day to their diet. Over half of
this diet group stopped participating due to disliking soy and/or
having difficulty in finding and cooking soy products. Both studies
found that soy decreased bone loss. The researchers found that:
The diet and HRT group showed less bone loss compared
to control group.
The diet group was found to have increased osteoblasty
activity as evidenced by the high concentration of osteocalcin
(which enhances bone formation).
Overall, the diet group was not as effective as
HRT in preventing bone loss.
The third study evaluated the effects of fruit and
vegetables on bone health. They found that women with a higher childhood
intake of fruit in their diet had higher bone mass density in their
femoral neck (upper leg bone) than those who consumed medium to
low amounts of fruit as children. They also compared smokers to
nonsmokers and were surprised to find no differences in bone mass
density. The researchers found that:
No similar trends were found with past intake
of milk and milk product (as compared to fruit intake).
No significant difference in the variables of
bone mass density and bone metabolism between smokers and nonsmokers.
Caffeine consumption was not related to bone mass
density.
Potassium and alcohol intake were positively correlated
with total forearm bone mass density.
Two of the studies looked at physical activity
and how it related to bone health and they were surprised to not
find any direct correlations. Because this is not consistent with
past studies, I think it warrants further investigation, and I
plan on looking at exercise and how it benefits bone health next
month.
So if you get asked, "What is good for the spine?”,
hopefully you will now be able to give a more thorough answer than
the standard "calcium." You may want to serve fruit juices
rather than sodas (which contain phosphorus and take calcium out
of bones) at your next function and fruit tart instead of cake (especially
during the summer fruit season). As for soy, this may be trickier,
since it is not as popular with individuals. Soy milk has come a
long way and tofu can be cooked in many delicious ways if you know
what you are doing (i.e., disguising it as much as possible!). If
you do health fairs, consider having osteoporosis screening if you
don't already do that. Talks on back health and nutrition can be
a popular brown bag seminar and get people to be more proactive
and healthy.
Have a safe day,
Deidre Rogers, RN, CAE
Research: Spine Health & Osteoporosis Part 1
A medium-sized United
States study (Alekel et al.) evaluated the effects of soy
protein with isoflavones on bone in perimenopausal women.
This was a double blind study of 69 women who were divided
into three groups: isoflavone-rich soy, isoflavone-poor soy,
or whey (control). Smokers were excluded from the study and
the medium age of subjects was 50.6.
Diet, physical activity, hormonal levels and bone mineral
density were evaluated before and during the 24 week study.
All three groups were fed muffins (with the three different
ingredients in them and were given powder to mix with food
or beverages. They had a high level of subject compliance
(the majority of subjects ate most of the muffins) which they
evaluated by doing urine analysis. The control group was the
only group that showed bone loss. The isoflavone-rich soy
had a positive effect on change in bone mineral density.
Weight gain did not confound the results nor did physical
activity explain some of the variability in bone loss that
was observed. The researchers concluded that soy isoflavones
are a benefit to perimenopausal women who can't or don't want
to take HRT. The primary limitation of the study was the small
sample size.
An Italian study (Chiechi et al.) evaluated the effects of
soy rich diet in preventing osteoporosis in postmenopausal
women. The study had 187 subjects, ages 39-60 and excluded
women who drank alcohol. The 187 diverse subjects were divided
into three groups: Diet group, HRT group, and the control
group. The diet group was instructed to include one soy food
serving per day (e.g., soy milk, miso soup, tofu, tempeh or
soybeans).
Compliance in the diet group was assessed by urinary analysis.
In addition, the women in the diet group often reported a
dislike of soy and difficulty in finding and cooking soy foods.
More than half of this diet group discontinued the study.
The control group had bone loss, while both the HRT and the
diet groups did not. Overall, diet was not found to be as
effective as HRT in preventing bone loss. However, the diet
group was found to have high levels of osteocalcin which is
an indicator for bone formation. The study was conducted for
three months. The researchers concluded that the most troubling
outcome of their study was low compliance with their prescribed
diet.
A small Scottish study (New et al.) evaluated the effectiveness
of a diet rich in fruit and vegetables and bone health. This
was a cross-sectional (non-homogeneous group) consisting of
62 healthy women, aged 45-55. Hormonal status was monitored
and women were grouped in pre-, post- and perimenopausal groups.
Past dietary habits were assessed with the two main groups
being: childhood (< 12 y) and early adulthood (20-30y).
They were unable to get information from the ages of 12-20y
due to the fact that women had a much more difficult time
answering questions that pertained to those years. The researchers
concluded that this was due to the fact that women have "tremendous
change" during that time period. Current physical activity
levels were evaluated as well.
Bone mass, markers of bone metabolism and dietary intake
were measured within a short time period (< 6 wk). Higher
intake of magnesium, potassium and alcohol were associated
with higher bone mass. The researchers called the association
with alcohol intake and bone mass to be an "intriguing
finding." They did not find a significant difference
in the variables of bone mineral density and bone metabolism
between smokers and nonsmokers, though they found what they
called "nutrient differences" between smokers and
nonsmokers. The smokers had a higher fat intake than nonsmokers
and a lower intake of vitamin C, potassium, and calcium.
The limits of the study include that it was cross-sectional
and that the number of subjects studied was relatively small.
Thus, the researchers cautioned against making causal relationships
and preferred to state that there may be an association between
diet and bone health. They concluded that a long-term diet
of alkaline-forming foods (including fruits and vegetables)
is beneficial.
References
Alekel, D., St Germain, A., Peterson, C., Hanson, K., Stewert,
J., & Toda, T. (2000). Isoflavone-rich soy protein isolate
attenuates bone loss in the lumbar spine of perimenopausal
women. American Journal of Clinical Nutrition, 72, (3), 844-852.
Chiechi, L., Secreto, G., D'Amore, M., Fanelli, M., Venturelli,
E., Cantatore, F., Valerio, T., Laselva, G., & Loizzi
P. (2002) Efficacy of a soy rich diet in preventing postmenopausal
osteoporosis: the Menfis randomized trial. Maturitas, 42,
(4), 295-300.
New, S., Robins, S., Campbell, M., Martin, J., Garton, M.,
Bolton-Smith, C., Grubb, D., Lee, S., & Reid, D. (2000).
Dietary influences on bone mass and bone metabolism: further
evidence of a positive link between fruit and vegetable consumption
and bone health? American Journal of Clinical Nutrition, 71,
142-151.
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