In advance of our conference (three days until the start!), I wanted to post a set of suggested reforms that we – as a community – can start pondering prior to the conference.

Please read the proposals below carefully.  Feel free to respond to them within this blog.  Start coming up with your own ideas for reform and suggest them here as well.

Then come “loaded for bear” to Making Workers’ Comp Work where we can work together to forge reforms that will help fix out broken system once and for all!

REFORMS

Fulfillment: To create a workers’ compensation system which helps injured workers thrive, return to productive work as quickly as possible, provides the best medical treatment which science or medical consensus shows cures or gets patients better, and a system which is predictable for all parties

Elements

1. Encourage productivity, not “disability”
2. You get what you pay for in this world.
3. Provide the best medical treatment available which science or medical consensus shows works
4. Employers only pay for what they directly cause
5. Injured workers should be encouraged to return to productivity
6. Applicant attorneys should be encouraged to help injured workers return to productivity
7. Claims Professionals are professionals and should have the same requirements as other professionals (licensing and education)
8. California should have correct medical reports.
9. Make the system simple and predictable for everyone.
10. Produce a system which provides the best benefits to injured workers at the lowest possible employer cost to produce thriving employees and increases in employment in California. Make California the place where workers and employers want to work.

REFORM PROPOSALS

1. MEDICAL EVALUATIONS: (Fulfillment: To get correct reports.)
   1. All doctors performing impairment evaluations must meet 3 requirements to do the evaluations:
      1. Pass a Test which includes AMA ratings, Apportionment, Medical Treatment, and California Law. Doctors must pass the test every 2 years.
         1. AMA rating portion will be written by the authors of the AMA Guides.
         2. Apportionment and Medical Treatment portion will be written by a panel of physicians selected by the American College of Occupational and Environmental Medicine.
         3. California Law portion will be written by 5 authors (2 selected by CAAA, 2 selected by CWCDAA, and the Chief Workers’ Compensation Judge).
      2. Do correct reports.
         1. A Medical Panel will be established to review submitted reports. Anyone involved in a claim can submit a report to the panel for review.
         2. If a doctor does 3 reports which the Panel deems incorrect, the doctor loses the right to do impairment reports for a year. To regain his right, he must then be retested and pass.
      3. Not be found by the Panel to treat patients outside the Guidelines below or to addict them.
   2. In return for correct evaluations, doctors will be paid well for such evaluations. Doctors shall be paid $800 per hour for physical examination, report writing, and medical record review. All disputes regarding charges for evaluations shall be determined by the Medical Issue Judges noted below.
   3. Chiropractors may only write reports in their area of medical specialty. Any disputes regardin chiropractors are determined by Medical Issue Judge.
2. MEDICAL TREATMENT
   Fulfillment: To provide injured workers the best medical treatment which science or medical consensus shows works and which gets them well or to their best possible medical status.
   1. An Employer only pays for medical treatment which science or medical consensus shows works. This means “cures” or “improves medical condition.”
      1. There shall be no “lien” treatment. Treatment under a lien is not permitted.
      2. Employer must pay for Medical Treatment for first 30 days after injury which meets the medical treatment standard of only treatment which science or medical consensus show works. This means “cures” or “improves medical condition.”
      3. All disputes are subject to determination of Medical Issues Judge. A Hearing on Dispute must take place within 14 days of the filing of a Request for Dispute Resolution by any party.
   2. All determinations on medical treatment are determined by the Medical Issues Judge applying two standards:
      1. ACOEM Treatment Guidelines, AND
      2. Only medical treatment permitted is that which science or medical consensus shows “cures” or “improves medical condition.”
3. MEDICAL ISSUES JUDGES
   1. Shall determine all medical issues including medical causation, apportionment, medical treatment, and medical charges.
   2. Shall be appointed by the Chief Judge
   3. Shall be paid $250,000 per year.
   4. Must be Board-Certified California physician with either an M.D. or a D.O.
   5. Any doctor found by the Medical Issues Judge to have treated outside the guidelines, to have overtreated, or to have addicted a patient shall lose the right to treat California workers’ compensation patients for 3 years.
4. WORKERS COMPENSATION SYSTEM
   1. Eliminate the DEU. (with correct ratings under the Guides, there is no need for the DEU)
   2. Eliminate the WCAB Commissioners. Have appeals go directly from the Workers’ Compensation Judges to the Courts of Appeal.
   3. Establish 2 types of judges:
      1. MEDICAL ISSUE JUDGES: Must be a Board-Certified physician with an M.D. or D.O. Selected by Chief Judge. Has authority to determine all issues of medical causation, permanent impairment, apportionment, medical treatment, and medical charges.
      2. LEGAL JUDGES: Must be licensed California attorney. Has jurisdiction on all issues other than those delegated to Medical Issues Judge.
   4. Pay Medical Issue Judges and Legal Judges $250,000 per year to attract the best and brightest.
      1. All Legal Issue Judges must pass a Test yearly on California Law. Test is prepared by 2 attorneys selected by CAAA, 2 attorneys selected by CWCDAA, and the Chief Judge.
      2. All Medical Issue Judges must pass the test for evaluating physicians noted above yearly.
      3. A workers’ compensation judge who is overturned 5 times by the Appellate Court loses his/her position.
   5. Eliminate all Notice Letters. Notice to injured workers shall be provided by the Department of Workers’ Comp website or by Applicant attorneys.
   6. Eliminate all Presumptions. All issues must be proven to the established legal standard.
   7. Any dispute over jurisdiction between Medical Issue Judges and Legal Issue Judges shall be resolved by the Chief Workers’ Compensation Judge.
   8. All reform rules shall apply to all dates of injury. There shall be one workers’ compensation system for all date of injury in California. This applies to all existing cases. This is emergency legislation.
   9. California shall use most current edition of the AMA Guides for all injuries. The current edition is the Sixth Edition.
5. INCENTIVIZE PRODUCTIVITY
   1. TEMPORARY DISABILITY: Shall be 2/3 of Average Weekly Wage for the 52 weeks prior to date of injury with no maximum or minimum. Benefit shall be untaxed.
      1. Temporary disability shall be reduced by 25% every 90 days to incentivize return to work.
      2. Every employer must have a Light and Modified Duty program. Any employee on Light or Modified Duty must be paid his pre-injury earnings and shall receive no Temporary Disability while on Light or Modified Duty. Light or modified duty must only be provided for one year from date of injury.
   2. PERMANENT DISABILITY:
      1. Shall be 2/3 of Average Weekly Wage for the 52 weeks prior to date of injury with no maximum or minimum. Benefits shall be untaxed.
      2. Vocational Rehabilition’s purpose is to return injured workers to productivity and to minimize economic loss. No limit on vocational rehabilitation. All vocational rehabilitation amounts deducted from permanent disability (including rehabilitation counselor fees and all educational fees).
      3. Permanent disability amount shall be reduced by all earnings after date of injury and all amounts employer shows an injured worker could have earned after date of injury.
      4. Permanent disability amount shall be reduced by 20% per year each year to encourage return to gainful employment.
      5. Permanent total disability shall only be paid until age 62.
   3. APPLICANT ATTORNEY FEES
      1. APPLICANT ATTORNEY FEES SHALL BE DESIGNED TO INCENTIVIZE PRODUCTIVITY RATHER THAN MAXIMIZE DISABILITY. The faster an Applicant attorney gets an injured worker back to productivity, the higher rate the Applicant attorney receives.
      2. Applicant attorney fees shall not be any percentage of an injured workers’ disability compensation.
      3. Applicant attorneys shall be paid the following rates:
         1. $500 per hour for the first 90 days after filing the Notice of Representation.
         2. $400 per hour for days 91 through 180 after filing the Notice of Representation.
         3. $300 per hour for days 181 through 270 after filing the Notice of Representation.
         4. $200 per hour for days 271 through 365 after filing the Notice of Representation.
         5. $150 per hour for days 366 and thereafter after filing the Notice of Representation.
      4. Applicant attorneys may file a Fee Petition for Services and Costs rendered at any time, and as often a as they wish, but no more frequently than every 30 days, beginning 30 days after the filing of the Notice of Representation.
      5. Any disputes regarding Fee Petitions are determined by the Legal Issues Judge. No payment on disputed petitions is due until the dispute is resolved.
6. CLAIMS PROFESSIONALS
   1. 1. Must be licensed.
      2. To be licensed, must pass a test. Test shall be written by the Chief Judge.
      3. Claims Examiners must be tested, and pass the test, every two years to handle California claims.
7. APPORTIONMENT: An Employer only pays for what it directly causes.
   1. 1. All disputes on apportionment are determined by the Medical Issues Judge.
8. FRAUD: Any individual involved in a workers’ compensation case found to have perpetrated fraud shall have 30 days after the finding to make full restitution. Failure to do so shall result in 3 years’ imprisonment.