In the Winter 2011 newsletter of the Ohio Self Insurers Association, an article titled “Election Results May Bring Legislative Changes” raises some legitimate beefs with our current workers’ compensation system. The article provides a wish list of legislative changes that would benefit SI employers in Ohio now that Republicans dominate the Governor’s office, the Senate and the House of Representatives.
Some of OSIA’s ideas regarding workers’ compensation reform would benefit state funded employers as well as self-insured companies. For example, requiring hearing officers to award permanent partial disability based on the medical opinion of one doctor rather than averaging the disability ratings of multiple doctors would help reduce the artificial inflation or deflation of percentage ratings. We all know that if a state doctor opines 5% permanent partial impairment for a lumbosacral sprain/strain, and the injured worker submits a 20% report from one of the handful of doctors that the claimants’ bar uses for disability ratings, the hearing officer might compromise at a 12%. OSIA’s proposed reform would require the hearing officer to rely upon one or the other report, so that the award will be either 5% or 20%. If the injured worker only missed a week of work and has had limited medical care, most hearing officers would opt for the 5%. Eventually, this would likely result in claimants’ doctors reducing their opined percentage of impairment to something more realistic, which a hearing officer might actually adopt. We will delve into this issue in more detail in a future blog.
Another OSIA suggestion harkens back to the good old days when the effective date of an MMI finding was the date that an independent doctor offered an MMI opinion, not the date of the hearing. As we all know, the hearing could be as long as six months after the date of the doctor’s report, once you wait for the BWC to refer the matter to the IC, wait for the IC to schedule the hearing, and wait for several continuances requested by an injured worker who wants to delay the inevitable. The date of hearing bears no relationship to the medical finding of MMI. It is completely artificial and only serves to eliminate overpayments for claimants by taking money from the pockets of employers.
Dawson Disantis & Myers, LLC has a workers’ compensation reform wish list of its own, should any of our legislators come knocking.
Wish No. 1: Mandatory Treatment Guidelines
Many states have mandatory treatment guidelines that require medical providers to meet a standard of medical care, speed up return to work, and reduce disputes over treatment issues. In fact, as of December 1, 2010, the state of New York rolled out its mandatory guidelines. New York’s workers’ compensation board now limits the number of physical therapy and chiropractic visits that an injured worker can submit to his or her claim. Under New York’s plan without objective evidence of functional improvement, manipulation, chiropractic care is cut off after just three weeks. In other words, chiropractic care that simply maintains symptoms at a level that an injured worker claims is required for him to continue working won’t cut it in New York
Many other states also use mandatory treatment guidelines. Some states adopt treatment protocols directly from groups such as the Work Loss Data Institute (Official Disability Guidelines – ODG) or the American College Massachusetts has 28 separate treatment guidelines, while Colorado
The common factor among all of these states is the adoption of an evidence-based treatment model based on scientific evidence and best medical practices. Oh, by the way, it turns out it saves money and actually benefits many, if not most, injured workers.
How could statutory regulation of treatment in workers’ compensation claims help in Ohio
In Ohio, managed care organizations utilize ODG along with Mercy Guidelines. However, if a disputed medical treatment makes it to the Industrial Commission for hearing, treatment guidelines are generally out the window. Hearing officers listen to the injured worker complain about their chronic symptoms and why they need the disputed care, and employer’s arguments about how the requested treatment doesn’t meet ODG are often disregarded by hearing officers. The prevailing sentiment seems to be that the Commission is reluctant to stand between a surgeon and a willing patient.
Contrarily, in New York, for a lumbar fusion to be authorized, the doctor must first prove the claimant has spinal stenosis with instability or spondylolisthesis. Even when there is spinal stenosis with instability, New York requires that there be neurogenic pain, diagnostic proof of a compressed nerve root, and lack of response to conservative care. Absolutely none of this is required in Ohio’s system.
Wish No. 2: Reigning in Narcotics Abuse
On February 21, 2011, Governor Kasich named former Attorney General Betty Montgomery as the head of a task force to fight prescription drug abuse that is a pervasive problem in southeastern Ohio. It would certainly be interesting to find out how many of the 9.7 million doses of prescription painkillers dispensed by Scioto County’s doctors and pharmacies last year were paid for under workers’ compensation claims. BWC rather than managed care organizations manage and pay for prescription medications in Ohio workers’ compensation claims. Frankly, BWC does a woefully inadequate job of monitoring medications. Injured workers’ submit their pharmacy bills, and BWC pays them with no questions asked. Unless an employer or TPA asks the BWC to scrutinize the medications being paid for in a claim, the BWC rarely limits prescription medication.
This reform wish can really be considered a sub-wish of wish number 1. Other states that have mandatory treatment guidelines often regulate the drugs permitted to treat specific conditions along with the allowable duration of those drugs. It would not be unreasonable to have prescription medication guidelines rolled into mandatory treatment guidelines. As it stands now, unlimited payment of prescription narcotics under workers’ compensation ends up subsidizing welfare and unemployment compensation with street values of up to $10 per pill with plenty of customers for claimants to sell to. We’re not saying that all claimants sell their endless workers’ compensation narcotics supply, but isn’t just one who does this too many?
Wish No. 3: Decertification of Sub-Par Medical Providers
The Bureau of Workers’ Compensation already has the authority to decertify a physician who does not provide quality care to injured workers. The problem is that BWC does not use this tool except for extreme circumstances when a medical provider is convicted of criminal activity and/or fraud.
To become a BWC certified medical provider, one must only have a current license to practice, have malpractice insurance, a DEA registration when applicable, and submit an IRS form W9. (The complete list of requirements can be found here.) The provider must then complete an application for provider enrollment and certification, agreeing to abide by BWC and MCO billing practices. The provider agreement focuses mainly on billing rather than quality or standard of care for injured workers. The only mention in the provider agreement of quality of care is, “Provider agrees to acknowledge and treat injured workers in accordance with BWC recognized treatment guidelines and the vocational rehabilitation hierarchy.” The BWC does not specify what treatment guidelines it has adopted, because BWC has not officially adopted any treatment guidelines.
The Ohio Administrative Code gives BWC the authority, albeit toothless authority, to decertify a provider. BWC may investigate a provider and if it finds “sufficient evidence” to decertify, it can begin the adjudication procedure to cut the provider loose. With such vague criteria in the Code, it’s no wonder the bureaucracy can’t seem to organize or motivate itself to pursue those terrible doctors who 1.) never seem to be of the opinion that an injured worker can ever recover from even the most benign of injuries; 2.) use claimants as their own seemingly limitless gravy train with little regard for actually treating them, and 3.) prescribe narcotics and other drugs that no other insurance company would ever continue to pay for in such quantities and durations.
Wish No. 3 again leads us back to Wish No. 1. It’s quite simple. If Ohio has mandatory workers’ compensation treatment guidelines, medical providers who consistently seek to treat outside those guidelines can be easily booted from the system.
It’s not too much to ask, is it? But is anybody listening?
