MINUTES OF MEETING
February 28, 2003
San Francisco State Building
San Francisco, California
Chairman Jill A. Dulich
Commissioners Allen L. Davenport, Leonard McLeod, Tom Rankin, Kristen Schwenkmeyer, Robert B. Steinberg, Darrel "Shorty" Thacker, John C. Wilson
Christine Baker, Executive Officer
Call to Order / Minutes from the December 13, 2002 meeting
Chairperson Dulich called the meeting to order at 10:10 am and asked for
a motion on the draft minutes of the December 13, 2002 CHSWC meeting. Commissioner
Rankin moved to adopt the minutes, Commissioner Wilson seconded and the motion
passed unanimously. Chairperson Dulich commented that they were going to shift
the agenda a little bit, moving the IMC item to the final item on the agenda
and starting with the Status Report on the Technology and System Simplification
Status Report on the Technology and System Simplification Study
Christine Baker, Executive Office
Richard Gannon, Director, DWC
Joel Gomberg, CHSWC Staff Judge
Mr. Gannon began his presentation by saying that RAND had done a study of the current judicial system, which included an analysis of the existing technology used by DWC. As DWC became aware of the RAND recommendations, DWC started working on implementing them. It was important to begin with the rules. Mr. Gannon discussed the results of the CHSWC/ RAND study that found computer terminals to be outdated, limited employee access to personal computers that tie into the system, and that names and addresses and other data have to be entered numerous times into the system. The RAND study stated that the current system was 1970's technology implemented in the 1980's and the system is not satisfactory or useful at present. One of the goals of the project is to try to achieve uniformity within the system, and that hopefully a new system would be implemented to save system costs. Mr. Gannon stated that he is happy the Commission is considering a feasibility study regarding new technology court system which would contribute to achieve conformity. He noted that personnel shortages make the work difficult. Mr. Gannon thanked the Commission and stated that he hoped to soon have as efficient a court technology system as they do in New York.
Ms. Baker made a PowerPoint presentation to the Commissioners on the CHSWC/DWC Court Technology Project. Ms. Baker's presentation detailed the current technology and the three systems that are not accessible to each other and are not user friendly. She discussed the problems with using and storing paper files, problems with calendaring hearings in more than one office and lack of uniformity. The Commission/RAND study found that the DWC needs greater technological support to make the system more efficient. Ms. Baker detailed the positive changes that a technological support system would generate. Ms. Baker stated that staff has looked at the court technology systems of the U.S. Bankruptcy Court and many other workers' compensation systems in other states. She documented the benefits of some of these systems, the use of RFPs, differences in costs, stakeholder support, user funding, mandated by legislation or not. After the presentation, Ms. Baker stated that the next step would be to propose a feasibility study report and that it estimated to cost under $100,000.
Commissioner Rankin moved to approve that the Commission contract for the
state-required Feasibility Study Report (FSR) in order to proceed with the
design and implementation of new and improved technology for the Division
of Workers' Compensation. Commissioner Schwenkmeyer seconded and the motion
A question was asked if there should be a release of the draft report on Court Technology.
Chairperson Dulich asked for discussion on release of the draft report.
Commissioner Schwenkmeyer moved to approve that the Commission release the draft report entitled "Briefing on the Use of Technology in the Courts" to the public for review and comment. Commissioner Thacker seconded and the motion passed unanimously.
Commissioner Wilson asked if the New York Workers' Compensation offices were previously housed in the World Trade Center building and if there exists a back-up system in California.
Mr. Gannon replied that the New York Workers' Compensation office was not housed in the World Trade Center, however, a major self-insured was and their files were destroyed. Mr. Gannon added that New York had enough information available in their court computer system to replicate the employer's lost records.
Ms. Baker stated, in California, the Teale Data Center is the data back-up center.
Mr. Gannon added that this did not include paper files. If an office were destroyed, all the paper files would be gone.
Judge Gomberg said the Data Center files showed only what had transpired in a case but not the whole file.
Commissioner Wilson asked if the feasibility study would address this issue. He was told that the study would address this issue.
Update on CHSWC Study of the California Workers' Compensation Insurance Market
Brandon Miller, Hays Companies
Steve Novak, Hays Companies
Mr. Miller thanked the Commission for inviting them back and began by saying that the project began in early January, that the Hays Companies were now seven to eight weeks into the study and that it was going well. The consensus is there are problems in the system, but there are differing opinions as to what is causing the problems. Mr. Miller turned the presentation over to Mr. Novak to discuss underwriting and actuarial parts of the project.
Mr. Novak explained that they were receiving the data they were seeking and in the format that they needed. Mr. Novak stated that they are ahead of the project on the data analysis perspective. The WCIRB has given them both electronic and paper information. The data is positive and good. They are ahead of their timetable. They have received WCIRB data for the last ten years, including dividend history, very critical to the process, and experience modification rates. One of the data challenges of the project is looking at insureds' size and regional differentials. They have a great start in data collection and are also interested in looking at zip code (region) to premium size. They are looking at WCIRB's history, including where the WCIRB was regarding loss/rate (pure premium) levels. That will be an interesting analysis. They are looking at individual carriers to see what they perceive their needs to be. Some carriers were filing their rates below the WCIRB rates. They are taking a look at available surplus and change in surplus. They are going to compare the impact of dividends historically, looking at open rating versus pure premium rates, deviations from the needed rate, average rate discount over time and analysis by zip code, by discounts and by premium size. Date requests from the DWC, DOI and WCIRB have been fulfilled in a more than timely manner. Mr. Novak complimented all the data sources for their cooperation in providing data for the study so far.
Mr. Miller stated to the Commission that Frank Neuhauser from U.C. Berkeley would start looking at DWC data next week that is being compiled by Brooke Nagle with the Commission. Ms. Nagle is condensing data from the DWC Audit Unit with over 1,500 audit results being reduced into one database. Mr. Miller stated that Mr. Neuhauser would also be looking at insolvent carriers. Mr. Miller informed the Commission that the bibliography is 95% completed with 105 articles summarized. The Hays Companies have conducted over 25 meetings and interviews with individuals and groups including an oversight advisory committee with over 20 industry participants. By next Tuesday, they will have talked to a majority of the Commission members as well. They are in the process of making a request to the liquidator's office for information on reserving practices and claims data for insolvent carriers. They are continuing with their data analysis. Future study plans include making preliminary findings and recommendations, preparing a draft report to be completed and presented to the Commission in May 2003 and a final version in July 2003. After that, they hope that the recommendations will begin to be implemented. Mr. Miller contends that there is interest in the outcomes of this study nationwide and that they hope to share the information nationally.
Chairperson Dulich asked who comprises the Oversight Advisory Committee.
Ms. Baker informed her there it was comprised of about 20 invited members of the insurance industry, representatives from DOI, employers, the Chamber as well as other industry leaders. Participation is voluntary.
Commissioner Steinberg asked what was going on with the Insurance Commission task force.
Ms. Baker stated that they were planning to release a report shortly.
Commissioner Rankin stated that the report would be released next week.
Ms. Baker added that Commissioners Rankin, Wilson and Davenport sit on the task force.
Report on the Disciplinary Procedures of the Industrial Medical Council (IMC)
Joel Gomberg, CHSWC Staff Judge
Judge Gomberg informed the Commissioners that at the last meeting on December 13, 2002, the Commission heard testimony from Sherry Smith, Steward with SEIU Local 707, Injured Worker and Chip Atkin, Social Worker, Member of SEIU Local 707. In addition, staff from the Industrial Medical Council presented a report. Susan McKenzie, Executive Medical Director and Jim Fisher, Attorney represented the Industrial Medical Counsel. According to Judge Gomberg, at the last meeting Commissioner Davenport requested that CHSWC staff meet with SEIU members and the IMC. At this behest, Ms. Baker and Judge Gomberg went to Santa Rosa and met with SEIU and IMC staff. Judge Gomberg has prepared "Recommendations for Improvement of the IMC's Protection of Injured Workers and Regulation of QME's." He has made a variety of recommendations in this report that was given to both the SEIU and the IMC staff, who both seem to agree with most of the recommendations.
Judge Gomberg stated that Ms. Smith originally and still continues to focus on disciplinary issues with the IMC. Judge Gomberg sees broader issues where the IMC does not communicate well with others. According to Judge Gomberg, the IMC, generally speaking, follows in the footsteps of seven or eight licensing and medical boards in disciplinary matters. The IMC statutes require termination of QME's whose licenses are revoked or suspended or put on probation, or who have felony criminal convictions for crimes of moral turpitude. The IMC has discretion regarding lesser disciplinary procedures. The IMC has done very little in terms of disciplinary activity where there has not been prior licensing board activity. In the past, the IMC was not indicating on its database, which QME's had been suspended or were on probation. Now, it is reflected on their website on the discipline page. There is an asterisk showing disciplinary action, i.e. probation or suspension. The IMC has been in existence since 1990, yet they do not have written or formalized agreements with the other licensing boards. Judge Gomberg's first recommendation is that this should be done immediately. Judge Gomberg commented that there is no excuse for the IMC to not get information out about disciplined QME's. Judge Gomberg stated that other licensing boards use a "hot sheet." The IMC does not have complaint form. Judge Gomberg recommends that the IMC develop a complaint form to help shape the complaint and make it widely available on their website. Judge Gomberg also contended that the IMC does a poor job of reporting data it collects on disciplinary matters. Judge Gomberg did get data on the number of complaints taken, but does not know the nature of the complaints or the resolution. They do a poor job of reporting statistics because this information is not available.
According to Judge Gomberg, disclosure of information has been a hot topic for a long time. SB 1950, (Figueroa), which went into effect on January 1, goes a long way toward resolving some of these issues. The Senate Bill includes what needs to be disclosed to patients and how long information has to be kept on file regarding public records. Judge Gomberg recommends that the standards set forth in this bill should be adopted by the IMC. Judge Gomberg also informed the Commissioners that there is a broader disclosure problem for unrepresented workers who receive a letter from the IMC regarding exams and have no idea what the purpose is, what they are supposed to do, what to do after the exam or what their appeal rights are. The letter is not helpful. Judge Gomberg recommended that the IMC, in conjunction with the DWC, prepare a pamphlet that can be sent with the QME letter explaining what the process is about and what the patients' rights are. In regard to quality assurance and control, Judge Gomberg has heard complaints about QME's in his position as a Workers' Compensation Judge that QME's are rude don't listen and spend very little time on cases. For example, Gomberg stated there are QME's who do not record a full history from injured workers. It is hard to say whether this is because the doctor does not ask the questions or because the injured worker is not forthcoming in his or her answers. According to Judge Gomberg, the IMC has not taken advantage of injured workers as a resource. He recommends that the IMC create a questionnaire to be sent to injured workers about their appointments to gather information and to ensure higher quality in the examination process. Judge Gomberg also stated that the questionnaires would be helpful to the IMC in enforcing existing requirements that QME's spend a third of their time in treatment and minimum face-to-face time with injured workers.
Judge Gomberg stated that there existing statutes deal with some of these problems, but most are not enforced. Labor Code Section 139.2 (d)(2) states that QME's shall not be reappointed if the workers' compensation judge, has explicitly made a finding in contested hearings, finds that the QME's report does not meet minimum standards. This situation is rare and after asking various WCAB secretaries and commissioners, no one remembers it ever happening. Labor Code 4068 states that if the QME's have demonstrated a pattern, the WCAB can make a recommendation to the Administrative Director. The Administrative Director is supposed to let the IMC know. Judge Gomberg does not know of a case where this has happened.
IMC staff has pointed to problems with apparent abuse of Labor Code 4050, which allows an employer to obtain medical examinations in admitted injury cases at reasonable intervals. The reports, however, are not admissible into evidence. Judge Gomberg recommends that this Labor Code Section should be amended to clarify that examinations obtained under section 4050 are subject to the limitations set forth in sections 4061 and 4062.
Finally, Judge Gomberg contends there should be public members on the IMC. Other licensing boards have public members. The IMC is not hearing the viewpoints of the public and patients on a consistent, ongoing manner. If they had, they may have addressed these deficiencies early on.
Commissioner Wilson asked about the recommendation regarding public members. He stated that both employers and employees have an interest in the subject and feels both sides must be represented as in other workers' compensation areas. He stated that this issue should be addressed. Commissioner Wilson stated that it is customarily done that both labor and management be included. He stated that there should be more specificity about who these members are.
Judge Gomberg commented that he did not specify if the public members be labor or management.
Commissioner Wilson also asked about incorporating other issues in the upcoming legislative changes.
Commissioner Rankin stated that things are corrected by statute, but not in reality.
Commissioner Davenport thanked Judge Gomberg for bringing some semblance of structure to the debate. When the issue was first brought to him he was not concerned with the law itself but was concerned with the application of law. Commissioner Davenport asked Judge Gomberg if he found some QME's who were not licensed by a professional licensing board or any complaints that could not be adjudicated by the licensing boards in the course of their current licensing responsibilities.
Judge Gomberg replied in the negative and stated that only the violations that relate to the IMC's own statute and with their own evaluation guidelines and their rules and regulations. Those are not the kinds of things licensing boards would handle.
Commissioner Davenport asked about in terms of bias and inadequate examination, failure to review all of the medical problems, are these not the things patients can bring to the medical boards?
Judge Gomberg replied in the affirmative.
Commissioner Davenport asked if professional boards keep track of their complaints.
Judge Gomberg replied that the content of what goes into central disciplinary files are well defined by statute.
Commissioner Davenport commented that the IMC who has similar responsibilities, does not do any of those things.
Judge Gomberg stated that it was hard to know because their statistics are rather opaque. In addition, the IMC is geographically isolated from other areas in DIR. They are located at Oyster Point. The IMC has done some good things in terms of evaluation guidelines and treatment protocols. The IMC seems to be more responsive to the medical constituency because they are comprised of doctors.
Commissioner Davenport commented that he believes that progress is being made on this issue but questioned whether more time should be allowed for public comment.
Commissioner Wilson questioned whether the report should be released for distribution and public comment.
Judge Gomberg stated that he and Ms. Baker had spoken to Ms. McKenzie about the report She invited Commission staff to present the report to the IMC.
Commissioner Wilson moved to approve that the Commission release the draft report entitled "Recommendations for Improvement of the IMC's Protection of Injured Workers and Regulation of QME's" to the public for review and comment. Commissioner Davenport seconded and the motion passed unanimously.
Commissioner Wilson stated that he would like the Board of Consumer Affairs to comment upon and enlist their support on the recommendations and what suggestions they have about the report.
Commissioner Rankin also suggested the Business and Professions Committee of the Legislature review the report.
Commissioner Wilson asked that his comments about public representatives also be responded to. He also stated that it was a good idea.
Commissioner Steinberg asked if Commission had the authority to examine the IMC.
Judge Gomberg stated that the IMC was part of the workers' compensation system and the Commission is charged with continuing study of the system. The IMC is an important part of the system.
Chairperson Dulich asked if there was a motion and a second. Chairperson Dulich recommended that the legislative language portion should be separated out from the public member of the IMC.
Commissioner Wilson stated that the Commission has some reports coming out and possibly the RAND report may address some of these issues. Commissioner Wilson asked if there was any urgency to approve legislative language today.
Commissioner Davenport stated that a discussion on legislative language could be deferred for public comment.
It was agreed upon by the Commission that the proposal on legislative language should be deferred until there has been time for more public comment. Chairperson Dulich called for public comment on the issue.
Ms. Baker gave the Commission a letter from Ms. Smith
Ms. Smith addressed the Commission. She stated that she wanted to clarify several issues but in general, she supported Judge Gomberg's report. She contended that the IMC does have the responsibility to post doctors' information on their website. She gave an example of a doctor who had completed probation that this information was not shown on the IMC website. Ms. Smith stated that the Dental Board has a detailed complaint procedure with directions on how to fill out the complaint on their website and suggested it would be helpful to have the same thing on the IMC website. She stated that a continued problem for injured workers and unions is how the IMC responds to Government Code Section 6250 Public Records Act requests. At present, there are no policies and procedures about how public records requests are made. She also spoke about bias when some doctors are listed as having multiple offices and are part of medical corporations. Ms. Smith would like the IMC to disclose when doctors are part of medical corporations to injured workers. She stated that these doctors who are part of medical corporations that receive their paychecks from insurance companies are more likely to be biased.
Chairperson Dulich asked if there was any other business or public comment.
Ms. Baker reported that Senator Alarcon has requested that Commission staff prepare a report on medical the billing and payment systems. She stated that CHSWC staff is working in conjunction with RAND and is in the process of completing this report.
There was not further business and the meeting was concluded at 11:30am.
Jill Dulich, Chair
Christine Baker, Executive Officer