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Injured Workers Speak Out on Workers’ Compensation Reforms

by Paul Burton
Several workers who had been injured on the job testified at a hearing in Oakland June 29 before the Division of Workers’ Compensation. The state is seeking to modify some of the ‘reforms’ enacted in 2003 which have had a severe impact on injured workers who face delays in medical treatment, denial of compensation, and a bureaucratic nightmare dealing with a system that is biased towards employers and insurance companies.
Injured Workers Speak Out on Workers’ Compensation Reforms

Several workers who had been injured on the job testified at a hearing in Oakland June 29 before the Division of Workers’ Compensation. The state is seeking to modify some of the ‘reforms’ enacted in 2003 which have had a severe impact on injured workers who face delays in medical treatment, denial of compensation, and a bureaucratic nightmare dealing with a system that is biased towards employers and insurance companies. Many speakers complained that there was little notification of the public hearing and that they only heard of the opportunity to testify from the injured workers’ advocacy group VotersInjuredatWork.org (VIAW).

VIAW spokesperson Peggy Sugarman wrote of the proposed changes that, “Senate Bill 899 severely limited penalties against insurance companies and self-insured employers by putting a cap on the amount of money that they would have to pay for violating Labor Code §5814 — the section that was supposed to deal with the unreasonable delay of payment of compensation. Prior to SB 899, penalties for unreasonable delay were based on all past and future benefits in the particular category where the delay occurred. Now, the maximum penalty is capped at $10,000. However, SB 899 also created a new section, Labor Code §5814.6, that would penalize insurers and employers up to $400,000 for repeated violations of §5814.”

Also up for modification are provisions of SB 228, which became law Jan. 1, 2004. The bill enacted Utilization Review procedures that allow insurance companies and self-insured employers to send medical care recommendations to another physician to review. It allows up to 14 days to modify, delay, or deny the physician’s request. Sugarman explained that the state set up Utilization Review Standards by regulation, but had not yet implemented a process provided by SB 228 to impose penalties for violations of the process. She said that, “The lack of oversight and enforcement up until now has proven catastrophic for many workers over the last 2-1⁄2 years.”

“The glacial speed with which the administration has allowed judicial findings of unreasonable delay to flourish with relative impunity is troubling,” Sugarman said. “We saw how they rushed to implement a permanent disability rating schedule that cut benefits to workers.”

Latrice Holley said after she was injured on the job, “My employer did everything possible to delay payments.” She said she received a portion of the payment due but her insurance company delayed paying her doctor for four years. “There should be a bigger penalty for insurance companies, and workers should get that money as a bonus since we have to do all the work to fight for our case,” Holley said. Under the law, the penalties assessed will go to the state to fund the Return To Work program that was established in AB 749 in 2002.

Holley also asked the Board to strike language from the proposed new regulations that say no penalties for issues before 2004 should be imposed. Acting Administrative Director Carrie Nevans said the Board was not empowered to change the wording of the new regulations.

Injured worker Paula Morgan said, “I have a 9-1/2 year case. The insurance company and my employer have delayed, deferred, and denied and now my current physician will no longer take Workers’ Comp cases.”

“It’s been a horrid experience,” Morgan said. “I’ve been discriminated against and mistreated but the insurance companies can do this with impunity. There are no penalties for their delays. Give them the same treatment the rest of us have: obeying the law!”

Saying that she was on the verge of losing everything because she was unable to work or get Workers’ Compensation, Shahidih Musawwii said that her temporary benefits were terminated illegally when the insurance company claimed her injury was from a prior incident. “They fabricated reports on numerous instances,” she said. “I consider the judge to be obstructing justice in my case. She’s prevented me from presenting my side but allowed the insurance company to present fraudulent information.” She said a member of the Workers’ Comp Appeals Board (WCAB) pressured her to accept an evaluation from a doctor she’d never seen. The utilization review process allows physicians who never see the patient, and aren’t required to be licensed in California, to recommend dismissals of Workers’ Comp claims.

Musawwii said her experience was “very humiliating.” She angrily said she thought the Workers Comp Appeals Board was corrupt and that, “I’m ashamed that in America we face this discrimination. We’re persecuting injured workers for being injured.” She also pointed out that she has more medical problems now as a result of delays in getting treatment. “The penalties for the delays aren’t enough,” she said.

Representing the California Coalition for a Workers Memorial Day, Steve Zeltzer complained that, “We have a problem with the whole procedure. Workers Comp judges represent the insurance companies and aren’t going after insurance companies that violate the law. The problem is that the insurance industry really runs the Workers’ Comp system.” Zeltzer, a member of Stationary Engineers Local 39, pointed out that the Fraud Assessment Commission in the Department of Insurance is headed by William Zachry, who works for Safeway. [Zachry is one of six members of the commission, representing Self-Insured businesses. The other members represent the State Compensation Insurance Fund, Labor, Insured Employees, and Insured Carriers. Zachry has been Vice President, Corporate Workers' Compensation with Safeway Inc. since 2001.]

“We need an independent agency to go after insurance company fraud,” Zeltzer said. “Workers Comp was deregulated under SB 899 and now insurance companies are refusing to pay injured workers, basically shifting costs to taxpayers by forcing injured workers to go to public hospitals.”

“The systematic disregard by insurance companies and the delays cause injuries to get worse,” Zeltzer said. He cited the case of an elevator worker for Gallagher and Bassett who committed suicide because he was unable to deal with the pain of his injuries. “Workers have to wait years to get treatment. Are there penalties for that?”

Former attorney Nina Bartholomew said that many injured workers are struggling to survive. “Many can’t get attorneys to represent them, can’t get through to the WCAB, and when they do they get false information.” She said that there needs to be an 800 number staffed by attorneys who can help injured workers. “There needs to be an independent agency outside the WCAB,” she said. “There’s no guidebook to help injured workers deal with the system. If you want to know how much insurance company fraud there is, then have an 800 number where injured workers can comment.” Bartholomew said the law placed the burden on injured workers and that injured workers who are defrauded don’t benefit from the penalties paid because of the fraud. “What you are proposing here is ineffective and disgraceful,” she said.

Also testifying was Tom Condit, the California Peace and Freedom Party’s candidate for Insurance Commissioner. He said that there was no systematic reporting to the Department of Industrial Relations of the health and safety violations that lead to worker injuries.

“Most accidents on the job aren’t accidents at all but foreseeable consequences of conditions at the workplace,” Condit said. “We need enforcement and documentation of violations of labor standards.”

Representatives from the insurance industry also testified and urged the board to go slow with any changes to the utilization review provisions. They said they were concerned there might be unnecessary medical procedures done that the utilization review would check. Jason Schmelzer of the California Manufacturing and Technology Association said, “The utilization review should be used to help get workers back to work. It shouldn’t be used as a way to delay treatment.” Another industry representative urged the board to move forward with solutions to rein in the “gamesmanship” in the system. She said many orthopedic surgeons were on the verge of dropping out of the system because of insurance companies stalling in approving treatments.

Peggy Sugarman of VIAW cited the example of Robert Sedam, a helicopter mechanic injured on the job. She said that Sedam’s doctor was concerned that, “Sedam's life was in danger because of the potential for a blood clot. He adamantly felt that it was a compensable consequence from the surgeries for the industrial injury and sought approval for monitoring of his condition on an industrial basis. Dr. Salazar again reported on 2/1/06 that he believed that the anticoagulation was industrial and asked again for some decision on the matter. In fact, AIG, the carrier in this case, had been paying for Coumadin [a blood-thinning medication] despite their failure to authorize a specialist for his life-threatening problems. However, AIG suddenly, and apparently without following any utilization review procedures, denied the medications on 2/22/06.”

Ms. Sugarman continued: “An expedited hearing was scheduled for June 20, 2006 but Mr. Sedam was unable to attend. He died of a blood clot earlier this month. The workers' compensation judge told Mrs. Sedam that, because of the 240-week limitation, she was not entitled to any death benefits for her or her two children.”

“As I approach almost 30 years of experience in the California workers’ compensation system, I am frankly appalled at the behavior of these defendants,” Sugarman added. “My opponents will undoubtedly argue that our evidence is only anecdotal. While we have absolutely no access to a wide range of data nor any ability to fund a study, we can only provide proof of our allegations and hope that you take your responsibility seriously to regulate the behavior of these claims administrators.” She called for the Board to resist the pleas of insurers to lower the penalties. “Perhaps some serious oversight will be the needed incentive to get carriers to conduct utilization review programs with integrity and with an eye towards what we all want: Providing prompt and appropriate medical treatment to cure and relieve from the effects of the industrial injury. To do anything less flies in the face of the original bargain.”

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by Dina Padilla
What about all the other comments from injured workers who weren't part of VIAW? There are other injured workers groups for years in this state. VIAW just started last year. VIAW was created and sponsored by CAAA.
There were at least several others who spoke about their injuries and the criminal activity like THE SUICIDES AND MURDER, fraud and corruption committed by the employers and insurance companies. What about the death threat by the insurance adjuster to the injured worker?
It's good to know you remarked on Steve Zeltzer's comments. His comments referred to ALL the problems that hurt injured workers THAT NOBODY IS DOING ANYTHING ABOUT.
There is a gauge to know what's going in the comp system. I was there and spoke as an advocate and an injured worker and I've BEEN talking with many injured workers for the last 14 years. I've also been to legislators , hearings and agencies who turn a deaf ear to the injured worker's tesitmony as if injured workers were objects rather than human beings. SO THERE'S PLENTY OF INFO.
STEVE ZELTZER has been the only one TO LISTEN TO INJURED WORKERS AND THEIR ADVOCATES AND HAS BEEN HONESTLY EXPOSING ALL THE CRIMES AGAINST WORKERS including the suicides, murders.false arrests, fraud and corruption.
What's happening to injured workers with the insurance industry running every aspect of worker comp is inexcusable and unconscionable! These are crimes against humanity! Just because it's called worker comp doesn't mean the crimes are any less if this crimes against workers happened in a third world country.
Worker's here don't have any rights. The insurance companies /self-insured employers made sure of that through INHUMANE and unlawful legislation passed by PRO BUSINESS LEGISLATORS and enacted by a PRO BUSINESS governor with the last being SB899.

All you have to do is look at incestous relationship with William Zachry Chairperson for FAC-Fraud Assessment Commission that is under the DOI and that he is also the Vice President for SAFEWAY INC-WORKER COMPENSATION.
He is also on the board for the Growers Association which give large amounts of campaign money to POMBO, DOOLITTLE and with whom Gov. Arnold Swcharzenegger has a lot of stock investments. Zachry also has prosessional appointments with the Self-Insurance Security Fund, the CA. Grocers Assoc., Ca Retailers Assoc.! SEVERAL including CAAA which sponsers VIAW AND WHO COLLECTS 25.00 from every "member" injured worker!
VIAW is the only one who charges their "members" injured workers a fee to join. That 25.00 dollars is the difference of having food on the table for a couple of days or starving. Considering the starving out of injured workers while lawyers on both sides collude to stall for their much coerced(SB899 WOULD ALLOW THE COERSCION AND COLLUSION BY INTRODUCING NEW LAW UNDER SB899 and the elimination of current law) and anticipated and criminal C&R, 25.00 is a lot of money to an injured worker who doesn't have any income! The people most affected are the injured workers who have the serious injuries which would cost the insurers. But they BY THE LAWS should pay the injured worker(s) instead of hiring and paying thousands upon thousands to lawyers, doctors and anyone else to deny the injury and they're not.
In my honest opinion, these legislators DO NOT care about the citizens of this state especially people who work for a living in inhumane working environments. These legislators are working for what company will give them the most in campaign contributions and that's in the millions. Millions that should be going to preventing workplace injuries and paying out claims.

There are many laws on the books to protect workers but they are not enforced. They keep introducing new ones to wipe out the existing ones that are mandated to provide the benefits according to the state and federal consitutions. Much like what's been going on in D.C.
SB899 was the death knell for all workers injured or not.

Sincerely
Dina Padilla
Pres.VOICES/B.E.S.T.Ca Chapter
Peace & Freedom Party Ca. Congressional Candidate 11th district.
by John Thielking
I recently looked into getting worker's comp insurance for my business, Pagesincolor.com, which has a retail store in downtown San Jose. It turns out that the rate I was quoted by one insurance company was $1200 per year for $3000 per year in payroll. This has to be paid in advance on an anual basis. I did some digging and found out that a simillar retail outfit that has stores in both CA and Oregon pays much less for their workers comp insurance in Oregon than they do in CA. Plus, now that some of their office workers in CA have filed claims, their inurance rates have trippled in CA. Something needs to be done to reform the system and take the profit making away from the insurance industry. I suspect that the insurance companies are making a killing off both the employers who are not self insured as well as off of the workers when they deny them a payment based on a claim.
by Dina Padilla (Blndi26 [at] cs.com)
California's State Compensation Insurance Fund is allowed to set the rates. The stock market for California depends on their premium increases. WHY else are we the 5th largest economy of the world?
What most people and smaller businesses do not understand is that if they aren't self-insured they pay the whole premium. If their worker comp claims drag on year after year, it allows the insurance companies to increase the premium year after year, so there is NO incentive to expedite the injured workers claim. It's quite the opposite. The defense attorneys and the insurance carriers doctors get to milk the claim over and over again for many years.
The injured worker's benefits are delayed and denied over and over again. The money that goes to these parasitical lawyers and doctors could go to the injured workers to get them back on their feet much sooner.
The longer their injuries go on without the necessary medical care the less likely they will ever work again, become permanently disabled and with much pain and suffering to them and their families and then they go onto the public taxpayer system called general welfare, medicaid, medicare and social security, causing serious financial drains on counties, cities, states and the federal government which is paid for by us, the workers.. How many families do you think have been torn apart and how many people have become homeless and died because the insurance companies have played terrorist games with their lives? MILLIONS!
The insurance companies rather pay large employers, lawyers and doctors/healthcare staff who are clearly ARE the only winners of BILLION$ of dollars and our legislators allow this. THE LEGISLATORS WRITE THE RULES AND THEN PASS THE LEGISLATION FOR THESE INSURANCE COMPANIES TO DESTROY WORKING PEOPLE'S LIVES FOR PROFIT.
One of these days the people of this country will finally wake up to one of the most horrific scourges called workers compensation that affect all American workers. And be ever so reminded that this happens in other countries as well.
Workers are clearly (WHILE WORKING, INJURED OR DIE ) the profit of supply and demand for large employer/government stockholders and stakeholders.
Dina Padilla
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