Recent Developments in Hawai'i Workers' Compensation

What's going on?

June 5, 2005

Rebuffed by the Legislature the past two (2) sessions regarding proposed sweeping legislative bills which would eviscerate injured workers right to the paltry workers compensation benefits now available, the Lingle adminstration this time is attempting to implement rule changes to accomplish what the adminstration couldn't do legally through properly enacted legislation. To view this firm's January 31, 2005 letter in opposition to the then proposed rule changes, click here.

Rules are implemented to further the intent of the workers compensation statutes, not negate them. The Legislature passed Senate Bill 1808 to override the adminstration's illegal conduct. To read the conference committee report that shows the illegal conduct, click here.

Lingle has until July 12, 2005 to veto the bill, which she has promised to do. It is then up to the Legislature to call a Special Session to override the governor's veto. In the meantime though, the Administrative Rule changes are in effect, effective May 13, 2005. To read the Department of Labor letter to interested persons, click here.

Remarkably, the Department of Labor, whose enabling statutory mandate is to help employees, not employers, has fallen head over heels to insurance and business interests with these new rule changes, which would limit injured workers access to medical care and make the conduct of hearings more onerous for injured workers without legal representation.

All this, despite the fact that Workers Compensation insurers enjoy a twenty-four (24%) percent profit margin in Hawai'i, whereas nationwide, the average profit margin is sixteen (16%) percent. To view the University of Hawaii's analysis that there is no relationship between reduced benefits and reduced premiums, click here.

Every injured worker should be calling, writing and emailing your legislators expressing your outrage at what's going on.

Recently, the American College of Occupational and Environmental Medicine ("ACOEM") expressed its outrage and objection of the use of only part of its guidelines being grafted onto those of a commericial group's ("Official Disability Guidelines") stating in a June 1, 2005 letter to Senate President Robert Bunda that such was a clear misuse of the ACOEM Guidelines, which are more scientifically based than a commercially based (read $$ and anti injured worker) ODG set, which the ACOEM could not recommend to its members. To read the ACOEM letter to the Senate President, click here.

As reported in the Maui News May 25, 2005, recognizing the shaky ground he stands on regarding usurping the Legislature with "rulemaking" changes which are in fact impermissible legislation by the executive branch of the Hawaii goverment, Befitel has already retained a well known management-side law firm, Torkildson Katz, et. al. to defend his actions. Perhaps the Attorney General's advice regarding his conduct led him to retain outside counsel. To read the Maui News article, click here.

June 23, 2005

Tim was in attendance at the morning session of the Department of Labor and Industrial Relation's "Educational Seminar" concerning the "new" adminstrative rules which went into effect May 13, 2005. DLIR Director Nelson Befitel acted as moderator and opened the session by stating all questions must be submitted in writing and may be answered at the end of the session if time allowed. Questions asked frequently enough would be answered on the DLIR website. Ah, to paraphrase, Thomas Sowell, "the conceit of the appointed."

He then proceeded to just read from his powerpoint presentation, adding nothing new.

Gary Hamada helped out a little.

Turning to the main portion on the medical fee schedule changes, next up was James Hardway, (assistant to Befitel). In a strong and commanding voice he proceeded to justify the need for a Restorative Service Plan ("RSP") by presenting no logical argument at all. Befitel finished up by stating an RSP needs to be submitted on the 8th, 14th, 20th, etc. visit to any health care provider, be it a physical therapist, massage therapist or other concurrent care provider, (not just the attending physician). The groans in the audience were audible. More paperwork, not less. How is the attending physician to know when the 8th, 14th or whatever visit has been achieved in order for him to submit another RSP? Are treatment plans to be denied because an RSP wasn't submitted timely?

Next up was Philip LeFevre, the "Account Executive" (salesman) from the Work Loss Data Institute. That's the out of state corporation that stands to make millions from the workers compensation system here in Hawaii. That's because these adminstrative rule changes force everyone to subscribe to their "Official Disability Guidelines" ("ODG") at the rate of $325.00 per seat per year. But if Hawaii subscribers sign up now, they can get the first year at half price. Oh boy! Can't wait to be the first person on the block to sign up for this! Kinda' of reminded me of George Carlin's routine about businessmen "servicing " their accounts. (Think we'll wait to see if the Legislature has a Special Session to put the kibosh on this nonsense.)

The salesman repeatedly stated the ODG's are not to be used to deny treatment, but to ensure proper treatment protocols. He also stated that number of treatments can exceed the ODG's "maximum occurence." Well, if they are not to be used to deny treatment, what are they supposed to be used for? This classic Orwellian "doublespeak" permeated his portion of the presentation.

Basically, when it comes to injured workers, the adage that "medicine is part science and part art" is out. If you don't have "evidence" of injury you don't get treated for the injury.

In short, the ODG's, derived from studies on statistical populations, are being imposed on medical providers in the treatment of specific individuals, eliminating clinical opinion from the treatment of injured workers. If that's the case, who needs the doctors? Adjusters, some with barely a high school education, need only drill down on the ODG website to find the only allowed treatment for a given injury. But, according to LeFevre, the ODG's are not "cookbook" medicine. Another adage that comes to mind is from Goebbels: "a lie often repeated will be believed."

At this point Befitel let us take a fifteen minute break to allow the "B.S.-o-Meter" to cool down.

Next, the medical portion was opened by Independent Medical Examiner ("IME") Dr. Stephen ("Hey! I'm Bob Bitchin' and I know my stuff!') Demeter who stated that everyone has to shift the "paradigm" from "treat until the injured worker is pain free" to "treat until the injured worker can go back to work." Funny, I thought the Department of Labor already pooh poohs care that is merely palliative instead of curative. See, Rahnsaan v. State of Hawaii, AB 2000-487 (2002)

He was assisted by Dr. Robert ("Am I funny acting like Ben Stein or what?!) Sussman in going over a timeline for a hypothetical case under the present system, wherein the treating doctor obviously has no clue about what's wrong with an injured worker, ("but it's not bad medicine!") to one under the ODG's whereby the injured duct worker (with a partial thickness rotator cuff tear that requires surgery) returns to work in six (6) months. And that's after surgery which occurs in the third month! Demeter reserved however whether the injured worker in fact could ever go back to work as an airconditioning duct worker. He also said he himself, in retrospect on some cases, felt had he had a guide to review, it would help him not overlook the forest for the trees when treating an individual. Frankly, this would be a proper use of a Guide: use it only as a reference tool and not the presumptive standard for treatment of all individuals which the DLIR has illegally made it.

Demeter finished by referencing Waddell's latest book "The Back Pain Revolution," and studies that link unemployment with higher death rates. Understandably, he did not point out that Waddell himself says his "Waddell's signs" are being misused by IME's.

After that Befitel read his powerpoint slides on how to do alternative treatment plans. Basically, the medical provider has to become a medical researcher.

The powerpoint presentation ended early (11:20am) so, unfortunately for Befitel and his cohorts, the audience was able to verbally chime in with questions. For instance, if a hearing is to be set no later than eighty (80) days from the date of the request for hearing, what is the Department's position regarding granting Employer/Carrier's repeated requests for extensions of time to investigate the claim? Never did get an answer to that one.

Tim was seated next to Dr. Ronald Gackle, M.D., Chief of Kaiser Permanente's Occupational Injury Department for the entire State of Hawaii. The doctor asked the salesman how a multi-injury claim would be handled (for instance carpal tunnel injury together with a shoulder injury)? LeFevre stated the Guides weren't set up to handle that type of case. When asked what studies confirm the success of the ODG's in other states, LeFevre stated there were no studies yet, but there would be some maybe later this year. When asked to state any downside to using the Guides, LeFevre stated that the multi-injury claim would be an example.

Despite all this, Lefevre proceeded to once again promote the ODG's. "Ladies and Gentlemen, I give you -- a tap dance."

Sensing things not going his way, and before your intrepid reporter could hit the presenters with the ACOEM letter, click here, Befitel ended the "Educational Seminar" at 11:45am, fifteen (15) minutes before its scheduled end.

The B.S.-o-Meter was pegged at maximum B.S.

To view the handout materials (mostly powerpoint slides) click here.

Sure hope the Legislature convenes a Special Session to stop these rulemaking changes which basically permit the unauthorized practice of medicine. Contact your legislators!

July 4, 2005

Well, Governor Lingle vetoed Senate Bill 1808 June 28, 2005, along with almost thirty (30) other bills. The stage is now set for the Legislature to convene a Special Session to override these vetoes. Their deadline to convene a Special Session is July 12, 2005. Contact your Leglislators and demand they hold a Special Session to right the wrong committed by the Executive branch of government!

July 12, 2005

Many thanks to all our legislators, both in the House and the Senate, who achieved the override of the Governor's veto of SB 1808 (which itself put the Adminstrative Rules on Workers Compensation back to the way they were January 1, 2005, and restricted Befitel's rulemaking authority, because of his blatant attempt at legislating through the rulemaking process). For a history of the bill, click here. Perhaps Befitel and Lingle shold focus on the premium cost end of the insurance business, by finding out why insurance companies enjoy a 24% net profit on Hawaii Workers Compensation business whereas the nation's average is 16%.

And stop acting like a branch office of the Chamber of Commerce! Stop that! Let's see. Because the Attorney General (appointed by Lingle) supposedly gave a clean bill of health to the rulemaking changes (never have seen any published AG opinion on this, either), that means they're OK. To paraphrase George Carlin again: What are you, f***ing stupid!? To view the Department of Labor's erroneous propaganda and classic but invalid ad hominum attack (when you can't refute the message, attack the messenger) on academicians who invalidate the Department of Labor's claims of cost savings, click here.

July 13, 2005

To view SB 1808 CD1 which codifies the rules in effect prior to January 1, 2005, click here.

To view the rule changes to HAR Section 12-10, which pertained to discovery and the conduct of hearings, click here. Basically, the process would have been much more formalized, with deadlines, etc., which would have required unrepresented injured workers to obtain legal counsel just to wend their way through the system.

To view the rule changes to HAR Section 12-15, which pertains to medical care and treatment, click here. Basically, all medical providers would have been bound by an out of state guideline, variance from which will only be allowed if the medical provider comes up with peer reviewed articles supporting the variance. So, instead of being a guideline, the guideline would have become the de facto standard. Imagine. A twenty (25) year old with an inured back would have been treated just the same as a sixty-five (65) year old with an injured back.