Ahhhhh--The Plight of the Poor Claims Adjuster
William Nathans
EditorDepending upon which side of the aisle you are on in workers compensation, the opinion of our positions runs the gamut of pawns of the insurance company to the devil incarnate. We get blamed for everything that has gone wrong in the injured worker’s life. Physicians treat us with disdain. “How dare you non doctor question my diagnosis and refuse to authorize everything I ask for” Then there is the applicant attorney who is quick to blame us for being human (yes we are human although many will question that statement). Our employers, who under the current system hold us to a standard that is almost impossible to meet. There are adjusters who have caseloads of over 200 files. Although the company I work for does try to keep caseloads at a reasonable level and they do try to provide us with the support we need to deliver the appropriate benefits to injured workers.
The key word there is appropriate. Many injured workers and attorneys either do not understand that concept or have an inflated idea of what an appropriate benefit is. All it means is ensuring that the injured worker gets all that they are entitled to under the law. Nothing more, nothing less.
We are expected to be medical experts and legal experts. We realize that the decisions we make impact peoples lives. We do the best we can under very trying circumstances. We are expected to be empathetic to the plight of the injured worker even while they are swearing at us and threatening us with physical injury. Both the defense and applicant’s bar are getting a taste of this now with the recent attack on defense attorney and the murder of an applicant's attorney. This is nothing new, the only thing that is new is that it is the attorney that is being threatened rather than the adjuster. As an adjuster, I have been threatened at least ten times since I became an examiner in 1990. That is why no company I have ever worked for has given out its street address.
In spite of all of the abuse that we adjusters take, we do this job because we believe it to be important.
Suggestions can be sent to Bill@adjustingworld.com
Three Strikes and You're Out!
Stephen L. Kline, Esq.
ARMSTRONG LAW FIRM
stephenk@arm-law.com
Please bear with the strained metaphor. I am trying to give you a way to remember this so that it is usable.
Many of us are still fighting battles with lien claimants who are claiming $20,000, $30,000 and even $50,000 for chiropractic manipulations and other treatments that were useless, ineffective and in some cases even harmful to injured workers.
The first strike was the 2003 legislature with SB 228 enacting Labor Code section 4604.5 (d) (1) which restricted a chiropractor to 24 treatments per injury.
The second strike was the published opinion, Zenith v WCAB (Capi), 71 Cal Comp Cases 374 (4th Dist, 2006) where the District Court of Appeals wrote that every lien claimant has the burden to prove that they are properly licensed and credentialed. The Court said, “a lien claimant must also prove that its services were properly provided, meaning it complied with applicable licensure or accreditation requirements.” Further it is an issue that cannot be waived. It is part of the lien claimant’s burden.
When a Workers Compensation Judge chided me about raising this issue only because it had become fashionable. I responded, “No your honor, it’s the law.” For most medical providers, this may be a no brainer, but, for many, this burden may be insurmountable, especially for those who have the larger liens.
On June 30, 2006, the Third District Court of Appeals in a published opinion, gave us the third strike. Sierra Pacific Industries v WCAB (Chatham), 71 Cal Comp Cases 714 (3rd Dist, 2006) held, that “the provisions of SB 899 setting forth new guidelines for the determination of reasonable medical treatment apply to” all cases “from the date of enactment of this act, regardless of the date of injury. . . . ''
They continued, “the Legislature intended to change the usual rule that the law in effect on the date of the injury controls; instead, the new provisions of SB 899 apply to pending cases for which the determination of reasonable medical treatment had not yet been made.”
The opinion stated without qualification that “Labor Code section 4600 provides that the employer shall provide the medical, surgical, chiropractic, acupuncture, and hospital treatment ''that is reasonably required to cure or relieve'' the injured worker from the effects of his injury. SB 899, a package of workers' compensation reforms, amended section 4600 to add new subdivision (b), which provides: ''As used in this division and notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines.''
The Court continued, “amended section 4600, subdivision (b) provided new guidelines for determining necessary and reasonable medical treatment. The effect of these new guidelines in Sierra Pacific case was to reduce the amount of chiropractic treatment that would be deemed necessary and reasonable and which must be paid for by the employer.”
Reasonable and necessary medical treatment has a statutory meaning. It is specifically detailed in Labor Code section 4600 (b) AND pursuant to the Sierra Pacific case it is applicable to all treatment regardless of the date of injury and the date of treatment.
Does this argument work and how valuable is it? Well, when put to the test at the San Jose Board at a Lien Trial in late July, 2006, the Judge advised the lien claimant that he had better reconsider the value of his $31,000 chiropractic lien for services rendered in 2001 and 2002 and consider the miserly offer being made. The hearing representative’s acceptance of $1000 offer for a Stipulation & Order resolved the matter with all deliberate speed.
Sierra Pacific has the power to be one of the most important workers compensation cases of 2006. It should have considerable impact on issues outside of the lien fights.
When someone suggests that ACOEM only covers injuries for the first ninety days, the retort is read Labor Code section 4600 (b) which give us the definition of reasonable and necessary treatment. SB 899 changed the standards for medical treatment from anecdotal medicine to evidence based medicine. The resistance to this change from Applicant attorneys and Judges has been strong, but this case should help to overcome that “old school” thinking.
Enjoy the rest of the summer … try to stay cool.
Thanks for your attention.
Dear Joan:
I have to disagree with you regarding making your boss look good. Working as a team is one thing. And that means working to make your TEAM look good. But when you have a boss or team member that constantly fails to do their job, it is NOT my responsibility to make him/her look good.
Failing to do their job includes the responsibilities that person has to work with their people to see that they have the information, skills, tools, etc. to do their jobs. I am really tired of covering for people for not only does it make ME look incompetent but because I care about my work, my projects, my customers (be they internal or external) it affects my health. Well, no more...
DVICA's 19th Annual Golf Classic
Friday, August 18, 2006,
Dublin Ranch Golf Course.
The theme for this year's tournament is "Hot August Nights," which promises to be one of the best ever tournaments. You won't want to miss out on the sponsorship opportunities available, which are listed below. You will want to reserve your spot soon, as we haven't even sent out the flyer and we already have sponsors signed up!
To sign up for a sponsorship, please contact Carl Starns by July 31, 2006:
Carl Starns
916-548-3633
CSTARNS@CAREIQ.COM
If you would like to have your company's marketing giveaway items included in the golf player's goodie bag, please send 150 items, by August 7, 2006, to:
Roslyn Peggins - ICS/Innovative Claim Solutions 3160 Crow Canyon Rd.
San Ramon, CA 94583
Have an insurance related event coming up?
Email us the relevant information and we can place it in our Events Calendar. Send us a note with the relevant facts and sponsoring organization to eventform@adjustingworld.com
POLL
Results of the July PollShould the Workers Compensation System be Abolished?
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