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It has come to my attention that there will be a presentation
given to you on November 12th, 2002, that has passed the Three-Member
Panel the Governor assigned to
make recommendations to you. In a publication in Workers' Compensation
Legislative & Regulatory Update; from McConnaughhay, Duffy,
Coonrod, Pope & Weaver, P.A. Volume 3, Issue 13 October 30,
2002, the recommendations were detailed and I would like to express
concerns from the injured workers of Florida.
1. The article begins with:
The Three-Member Panel has approved a reform plan that if
enacted would be
the biggest change to the system since the establishment of wage-loss.
The
plan will be presented to the Governor's Commission on Workers'
Compensation
at its next meeting, November 12. The plan will be the second
comprehensive
package considered by the commission, which recently heard the
details of a
proposal by a coalition of employer/carriers. The coalition's
proposal
basically is the same as HB 1927, which failed to pass last year.
In other
action, the Department of Insurance is considering NCCI's request
for a 21.5
percent rate hike and the controversy over changes to the construction
exemption law enacted earlier this year may lead to a legislative
special
session.
Injured workers response:
Just one question about this one. Where is the employee point
of view
considered or represented in these recommendations? HB 1927 failed
to pass
for good reasons and should not be reconsidered now. The proposals
bar the
employee from entering the courthouse, and delay the prompt delivery
of
medical benefits and lost wage benefits. These proposals pit
the rich against
the poor by giving the greater weight to the interest of business
and
industry than the interest of the working-class. The state of
Florida must
not choose the side of the billionaires and wannabes and wage
class warfare
on working people. The state's policy for compensating disability
must be
evenhanded.
2. * Medical decisions will be based on evidence-based
criteria, which
includes published research and the consensus of professional
medical
associations.
Injured workers response:
While medicine is not an exact science and published research
addresses
averages and common side effects and recovery, it is a proven
fact that each
person is different and may or may not conform to the norm. A
consensus-based decision is too rigid and simply does not allow
for the
anomalies of human characteristics or for the practice of good
medicine. The
carriers would likely prefer this recommendation, however, because
professional medical associations sometimes dramatically differ
in their
opinions, opening up carrier options for allowing or disallowing
medical
treatment depending on which ever opinion would cost them less.
3. * Claimants are considered normal until there is a confirmed
diagnosis
that an injury or illness impacts the claimant's ability to work.
Pain and
abnormal physical findings would not automatically make a claimant
eligible
for benefits.
Injured workers response:
This puts the burden of proof on the employee, with approval
based on the
cooperation that may or may not be provided by the employer and
carrier,
despite laws already in effect. The recommendation is cruel.
It perverts the
intent of the workers compensation system and provides carriers
with the
legal ability to ruin lives while saving money. Furthermore,
should there be
legal or illegal delay or denial of treatment by the carrier,
which results
in further unnecessary injury or death, the employee or heir
has no legal
standing for restitution or damage claims due to the exclusivity
doctrine.
This once again penalizes the employee and makes them guilty
until proven
innocent. This system was supposed to be set up to protect the
injured
workers, not make them defend themselves. This is like saying,
"Okay you
have appendicitis, but until I do the surgery, you are presumed
to be well
enough to work." What other insurance companies can get
away with this course
of action? This is totally ludicrous.
4. * Physician fee schedules would be based on Medicare
with a suggested
rate of 150 percent above the current Medicare fee schedule.
Carriers and
managed care companies could not contract outside the fee schedules
for
services.
Injured workers response:
No problem with this for the injured workers except we want the
right to see
our own doctors. This also benefits the E/C. Because our own
doctors have our
complete medical history (in most cases), it would be more difficult
for
injured workers to claim an injury on preexisting conditions.
By knowing our
medical history and any preexisting conditions, physicians will
be able to
determine degree and cause of an injury. Importantly to the workers,
our own
physicians, familiar with our cases, would also be able to provide
better
treatment, resulting in faster recovery.
5. * A claims operational unit; (COU) would manage all
disputes. A dispute
is defined to exist when a service request by a carrier or claimant
is
formally denied. Disputes would be limited to one issue and must
include all
documentation.
Injured workers response:
Exactly who would appoint the COU and what would it consist of?
Exactly what
do you mean by one issue? Does that mean there can only be one
issue raised
or one issue at a time addressed? The absolute last thing injured
workers
need is more bureaucracy blocking swift and appropriate medical
treatment and
indemnity payments. Again injured workers are not willing to
give up any
more rights. We gave up our right to sue in good faith that the
carrier
would comply with the law. That hasn't happened. Not only has
that not
happened but our government has refused to enforce its own laws.
Injured
workers want the right to a hearing on all issues with no limitation
on
disputes.
6. * The COU would divide disputes into four areas: incomplete
requests,
administrative directives, those assigned to a peer review panel
for the
resolution of medical issues, or those forwarded to workers'
compensation
judges for decisions on medical and indemnity issues.
Injured workers response:
Who would be on this peer review panel and how will the people
on this panel
be chosen? Who would do the choosing? The definition of "peers"
is
problematic. Unless 50% or more of the peer review panel members
are injured
workers and/or advocates, this is a sham recommendation. Injured
workers do
not want a peer review panel nor do we feel it would be fair
and unbiased.
You are just adding more steps to the process, limiting injured
workers
rights, and prolonging the amount of time the carriers can stall
to gaslight
the injured workers out of benefits. This will cause an increase
in the
amount of PTD's, will burden public systems such as Medicare
and Welfare, and
as usual, the people will wind up without the proper medical
treatment. The
burden will again be shifted from the insurance company to other
public
assistance agencies.
7. * The State would contract with an out-of-state Medical
Peer Review
Panel to make determinations on disputes arising out of decisions
made by the peer review panel.
Injured workers response:
Who would choose this out of state Medical Peer Review Panel?
The likelihood
that the members of this out-of-state panel would be chosen without
considerable intervention and pressure by carrier groups is remote.
This
recommendation also will not work equitably because of the political
pressures involved. Injured workers do not feel this process
would be fair
and we want our judges deciding our issues. This is adding steps
to a system
that is already overloaded and biased against injured workers.
8. * All appeals on decisions rendered by the COU and the
medical peer
review panel would be initially handled by a three-member worker's
comp
appeals board. All decisions appealed would have the presumption
of
correctness. Decisions made by the appeals board would then be
appealed to the five district courts of appeals having jurisdiction
over the litigants.
Injured workers response:
This is convenient for all parties involved except injured workers
that the
decisions would have the presumption of correctness. In the real
world what
this means is that the carriers will have final control over
the decisions
about medical treatment and indemnity payments and a great deal
of influence
on the selection of panel members. The carriers will not be held
responsible
or accountable for the frequent and flagrant scofflaw behaviors
that are
allowed in this state. Injured workers do not want a medical
peer review
panel. The carriers already totally control our lives and destiny.
They
have not acted in good faith nor have they been fair. We have
no reason to
believe that this set up would be fair and impartial and many
more reasons to
believe that it would not. Many other states have workers compensation
appeals boards, which do not work for anyone but the carriers.
I can provide
you with many letters from other states testifying to the problems
that exist
in that system. If decisions appealed would have the presumption
of
correctness, how would one appeal? What good would an appeal
do? Could you
clarify exactly what this recommendation means?
9. * The NCCI testified that the proposal could produce
savings, but noted that any final price determination would require
more review. Supporting the proposal was the Florida Medical
Association, which said the plan is
compatible with the doctors' goals of increasing reimbursements
and reducing administrative duties.
Injured workers response:
Where in these recommendations are there proposals that will
serve any of the
real needs of injured workers? Where is the injured worker considered
in any
of this?
10. * Attorney fees: Hourly fees would be eliminated and
the current statutory contingency fee schedule would stay in
effect. Claimants would pay their
attorneys fees in settlements.
Injured workers response:
This will result in further perversion of the intent of workers
compensation
legislation. Persons who are injured on the job do not bring
home a paycheck
and have no ability to pay for an attorney. They are physically,
mentally and
emotionally unable to stand fast against the system that makes
little effort
to thwart illegal and unwarranted carrier delays and denials.
Workers MUST
have the capacity for legal representation in a timely fashion
when the
carrier is not providing its contracted services. Without the
ability to
have appropriate legal representation, the human cost will be
sickening. It
is not appropriate to make the claimants pay attorney fees when
the carrier
has acted in bad faith. This will do nothing but hurt the injured
workers.
Many injured workers are already settling for next to nothing,
hardly enough
to cover their medical expenses. This will drastically limit
or make it impossible for injured workers to have legal counsel.
11. * Benefits: Impairment benefits would be increased.
The permanent total
eligibility standard would no longer include social security
criteria. In
cases involving occupation diseases or repetitive exposure, causation
must be proved by clear and convincing evidence rather than a
reasonable degree of medical certainty.
Injured workers response:
The Social Security standard is difficult to meet and should
continue to be
acceptable. This will only make it harder on injured workers
to get their
rightful and guaranteed benefits under the law. The injured worker
is always
put in the position of guilty until proven innocent.
Further response:
12. It is a well-known fact that it is difficult to prove
cases involving
occupation diseases or repetitive exposure. Now you are making
it
impossible. You are basically asking for evidence that cannot
be provided by
any physician with a 100% degree of certainty, a clear advantage
to carriers,
a clear disadvantage to workers. Carefully selected experts who
are paid for
their testimony may influence decisions about "clear and
convincing"
standards. This bodes poorly for injured workers who do not have
the
resources to pay for testimony to corroborate or refute claims.
13. * The coalition package also would address a number
of court decisions and create a new appeals commission to review
workers' comp cases. Further appeals would be direct to the five
district courts of appeal, depending on the jurisdiction of each
court.
Injured workers response:
Injured workers want the appeals left as they are. We don't need
any more
courts. Especially the biased ones we will get if this goes into
effect and
becomes the law.
14. * Carriers are awaiting a decision by DOI on the NCI's
request for a
proposed 21.5 percent rate increase. The rate filing, the largest
in a
decade, reflects a variety of problems in the market including
erosion in
carriers' loss experience. The filing also contains an upward
adjustment in
the profit and contingency (P&C) factor for its current level
of-4.1 percent
to a positive +2.5 percent, which accounts for approximately
one-half of the
total increase. The change in the P&C factor takes into account
the fall in
investment of income and policy holder dividends.
Injured workers response:
I dispute the NCCI figures. NCCI has a self-serving motive in
making these
recommendations for upward adjustments since the members of the
insurance
industry fund it. Using NCCI's uncorroborated figures and conclusions
seems
convenient, at best, but is certainly ill advised if the commission's
true
goal is to work with an accurate picture. Once again I will ask
you, why you
don't have the NASI, a neutral alternative, come in and give
a presentation
on workers compensation? The insurance industry does not own
them and they
would be fair and impartial. The numbers will tell a completely
different
story and could very well save many dollars. Additionally, NCCI's
suggested
rate increase is skewed against the employers who are paying
more than their
reasonable share for comp coverage while their injured employees
are not
getting the medical care that they (the employers) paid for.
Summary
In summary, this proposal is deeply flawed. The process has been
hostile from
the outset to input from/for its chief intended consumer, the
injured worker,
and has been strongly influenced by the insurance industry. The
outcome was
pre-ordained and obvious from the outset. It appears to us that
Mr. Jerry
Fogel is biased in favor of the insurance industry and has not
been
interested in hearing from or talking to injured workers. We
feel his plan
was laid out long before the Commission was ever formed.
Please understand the deep frustration of Florida's injured
workers. Look at
the hurting people and their families who continue to be damaged
by laws not
followed.
Once again I will remind you - it is always the injured worker
that loses.
Please understand that:
- I have requested time after time for you and the Legislature
to take a look
at the carrier as a cost driver.
- I have asked you to investigate and hold accountable
the carrier.
- I have asked you to enforce the existing law.
- I have asked the DOI for workers compensation records for the
last
year so I could prove the carriers' negligence and show the true
cost drivers
in this system. The DOI refused to give me those records and
has said they
are doing a study of their own which I have yet to see. These
suggestions and
requests have been ignored. Why?
Karen Woodall and I tried to make a presentation to you at
the October
commission meeting but we were constantly interrupted and were
not allowed
time to finish the presentation. Our input was not welcomed nor
taken
seriously. Yet we have since been charged with having no solutions,
only
problems. How can we give ideas and solutions when it is apparent
that the
solutions will be disregarded in favor of recommendations that
are already
predetermined and sanctioned by those who understand the New
Golden Rule
(those who have the gold, rule)?
Where is the input, where are the voices of the people who
will be affected
most? Who really listened?
Please remember that injured workers entered into an agreement
in good faith
with employers and the state government, an agreement that was
supposed to
give injured workers immediate medical care and benefits in exchange
for
giving up the right to sue. Now the greedy carriers want to take
away more
rights and provide fewer benefits. Where is the justice in that?
There is a moral imperative operating now. It is your moral
duty to reject
this proposal until something better is generated, something
that will reform
rather than further deform the workers compensation system in
Florida.
I appeal to you. Please refuse to accept these recommendations
in the
interest of the true victims of the workers compensation system,
the injured
workers, the ones who have no gold, no influence, no prestige,
just injury. |
