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They survived the San Bernardino terrorist attack and were seeking help. Then the workers’ comp system failed them

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They survived the San Bernardino terrorist attack and were seeking help. Then the workers’ comp system failed them

Picture of Suzanne Hurt
Photo by Cindy Yamanaka, Orange County Register/SCNG
Geraldine Ly, workers’ comp attorney, with files of the nine Dec. 2 survivors clients she represents. She notes that sometimes she cries with them, but her tears dry when she gets mad. Photographed in her Santa Ana office on Thurs., Nov. 9. (Photo by Cindy Yamanaka, Orange County Register/SCNG)
The Sun
Monday, December 4, 2017

Struggles endured by survivors of the Dec. 2, 2015, San Bernardino terrorist attack throw an unflattering spotlight on California’s workers’ compensation system and San Bernardino County.

Changes in workers’ comp laws led to big savings for insurance companies, but made it difficult for injured workers to get the help they need.

And the county “put dollars ahead of people” and showed “ignorance and a complete lack of empathy” by denying or delaying some treatment, said state Sens. Jeff Stone, R-Temecula, and Hannah-Beth Jackson, D-Santa Barbara.

The worker’s comp system just wasn’t designed to treat people injured in such attacks or other workplace violence.

The survivors’ plight, which came to light a year ago, inspired newly elected Assemblywoman Eloise Reyes to introduce a bill to help them when she was sworn in Dec. 5, 2016.

“If we fail those employees and we can’t fix it, then we really have something wrong with the system,” said Reyes, D-Grand Terrace, who represents the 47th Assembly District.

San Bernardino County Board of Supervisors Chairman Robert Lovingood declined to respond to those and other statements involving the handling of survivors’ workers’ comp claims.

System changes

Under state workers’ compensation laws, when an employee is injured, the employer is required to immediately open a workers’ comp claim and send the employee for medical treatment.

All California workers hurt on the job have a legal right to benefits including medical care, wage-loss compensation or temporary disability payments during recovery, vocational rehabilitation, death benefits and lost future earnings compensation or permanent disability payments, according to a state Legislative Analyst’s Office report.

A crisis has evolved following legislative changes made in the past 10 to 15 years after the state’s insurance market deregulation in the 1990s led to insurance rate spikes. Employers pushed for legislative help, which included Gov. Arnold Schwarzenegger introducing SB899 in 2004. Since that era, it’s been harder for employees to prove claims, medical treatments have been denied or delayed, and permanent disability compensation has dwindled.

But it wasn’t until Dec. 2 survivors were shortchanged that the public and legislators took notice, said Santa Ana attorney Geraldine Ly, a workers’ comp law specialist for nearly 20 years who represents nine San Bernardino terror attack survivors.

“It has gotten the legislators’ attention. Nothing like that has ever happened,” she said.

Workers’ comp basics

Most employers buy workers’ comp insurance. San Bernardino County and others self-insure, setting aside reserves to cover costs.

Doctors treating workers must fill out forms to make written treatment requests for everything from surgery to physical therapy, medication or a special bed. The request for treatment is sent to a claims adjustor or “handler” — working for the insurer or employer’s risk management department — for approval.

The adjuster can OK treatment or send the request to an outside company for utilization review when another physician weighs in. If the request is denied or modified, a worker can appeal to independent medical review.

Survivors’ experience

Many Dec. 2 survivors who weren’t shot in the attack by a Muslim co-worker and his wife didn’t learn they were entitled to trauma counseling, medication and other care under workers’ comp until Ly held an informational meeting in late January 2016. Some returned to work that month without counseling.

That April, survivors began experiencing denials, delays and “modifications” or limits for surgeries, physical therapy, counseling, equipment and prescriptions, including painkillers, antidepressants and anti-anxiety medication.

The state Workers’ Compensation division reported the county routinely approved nearly all requests until mid-April 2016.

Survivors asked for assistance in private meetings with the county and from elected officials when that failed. As the attack’s one-year anniversary neared, survivors sought help publicly at San Bernardino County board of supervisors’ meetings.

The county accepted workers’ comp claims from 59 people, including 57 survivors who were at the Inland Regional Center during the attack and a probation department employee who later helped survivors at the IRC.

The county reports 2,484 of 2,763 treatment requests, or 90 percent, were approved, which includes 137 modified, usually to reduce treatment. Two hundred were denied, 94 denials were appealed and 22 denials were overturned.  The county also denied psychological injury claims from 24 employees, who weren’t there for the attack. Ly said her clients’ approvals were far less than 90 percent.

The county initially denied then later accepted the claim from the probation department employee.

Delays and denials were still happening in July, when survivors Julie Swann-Paez and Sally Cardinale testified about their struggle to the state Senate Labor and Industrial Relations Committee during a hearing on Reyes’ bill, AB44, and shared that one survivor waited nine months for a bone graft. Another waited 19 months for trauma counseling.

Some denials continue. Physical therapy to desensitize scars on a young male survivor shot in the abdomen, flank and knee, plus referrals to an orthopedist to evaluate the knee, were recently denied, said the worker’s Ontario attorney, Christel Schoenfelder.

Behind the struggle

Legislators and survivors’ attorneys say county officials didn’t recognize the need to quickly get their workers treatment for trauma and other wounds that Reyes and Stone said were akin to battlefield injuries.

Jackson, who sits with Stone on the state Senate Labor and Industrial Relations Committee overseeing industrial safety and workers’ comp, was astonished the county didn’t do everything in its power to help.

“Why in the world would the county of San Bernardino resist caring for its workers, who are the victims of an attack by a co-worker?” Jackson said by phone recently. “I’m still dumbfounded that that would be the attitude taken by any employer, let alone a government employer.”

After 14 people (13 county workers) were killed, 22 wounded and at least 57 left with post-traumatic stress, county officials were legally required to inform survivors this was now a workers’ comp case but didn’t — the first time the county denied or delayed treatment, Ly said.

County spokesman David Wert said the county provided information about workers’ comp benefits by Dec. 7 and 8, 2015. Survivor Ray Britain, the county Environmental Health Services division’s interim chief on Dec. 2, said that’s not true.

At a Dec. 10, 2015, meeting the FBI set up to help survivors, county Risk Management staff who were asked about services neglected to tell survivors or relatives of those who were then “walking zombies” that they were entitled to workers’ comp benefits, Ly said.

Risk management told survivors who knew to ask for claim forms they didn’t appear to need them and didn’t need to fill them out then because the county would send information packets with forms later – but no packets ever came, Britain said.

When survivors’ doctors submitted requests for treatment authorization — basically, medical recommendations — to county risk management for approval, claims adjuster Christina Hurtado sent the requests to outside utilization review doctors who denied, delayed or modified requests.

County officials later said they were required to send all treatment requests to outside utilization review.

That’s not true, according to the state industrial relations department and Reyes, the assemblywoman. She’s an attorney who’s handled workers’ comp cases for 35 years.

Irvine attorney Keith More, a three-time Workers’ Compensation Trial Lawyer of the Year who represents a survivor, said the county used utilization review to deny survivors “well-deserved” medical treatment when it could have approved “every ounce of treatment.”

The California Supreme Court ruled employers and insurers can approve treatment under internal utilization review. They can even OK treatment denied by outside review, said Jason Marcus, president of Sacramento-based California Applicants’ Attorneys Association, a group of injured workers’ lawyers.

Utilization review was set up as a process for an employer or insurer who wants to deny or modify a doctor’s treatment request. While employers and insurers can OK treatment, only another physician can deny or change the primary doctor’s recommendation, Marcus said.

County officials said many problems came from survivors’ doctors not submitting the right paperwork. Schoenfelder agrees.

But More and Ly said the county adjuster often didn’t send utilization review all medical reports needed to support treatment, which led to denials, delays or modifications.

Utilization review doctors can ask for more records but usually just deny, Schoenfelder said.

In December 2016, county supervisors expanded the use of outside case managers to expedite claims. Survivors’ attorneys say some helped and some didn’t.

Britain disagrees with former county CEO Greg Devereaux’s May 2016 statement the terrorists“win” unless the county comes out “stronger economically” afterward. Britain said county officials had a misguided focus on economics and disregarded their injured employees’ well-being to save money.

“I think the terrorists win when you lose track of humanity,” Britain said.

Why does it work that way?

Legislators and Marcus say Dec. 2 survivors were treated like any other employees hurt on the job – highlighting a larger problem that injured workers statewide are having in obtaining medical treatment.

Insurers and employers concentrate on disproving the need for care, yet 95 percent of claims are legitimate, Jackson said.

“The system we have sadly assumes the worker did not get injured on the job,” she said. “Therefore, the whole focus is on denying care and claims, rather than addressing them immediately and trying to get them treatment.”

Utilization review and other changes were designed to reduce treatment, she added.

Survivors’ attorneys say utilization review doctors deny or modify 65 to 95 percent of treatment requests, and denials are usually upheld by independent medical review, then kept in place for a year. Many employers never send workers for treatment, Ly said.

Treatment requests are often handled mechanically without determining what’s needed to cure workers or considering the judgment of treating doctors who actually see patients, said Marcus.

Adjustors also send treatment requests to out-of-state outside review physicians with the wrong specialty for a particular injury — a practice the insurance industry has fought to continue, More said.

“It’s the abuse of the utilization review process,” he added.

Survivors believe this happened because the county doesn’t want to “deal with a lifetime of having to accommodate them,” Ly said.

As of Nov. 30, 29 out of 57 survivors had returned to work for the county at some point. Twelve now work full-time and 10 with doctor-required work restrictions work part-time, while five are out on medical leaves and two left the county, said Wert.

Britain said when someone returns full-time without restrictions, they may relapse and be put on leave after a few months.

Wert wouldn’t give details on how long the county would accommodate restrictions or allow survivors to work part-time.

But Ly said state law allows employers to fire employees after accommodating their restrictions for one year – even Dec. 2 terrorist attack survivors.

Can the system be reformed?

The system was set up to get injured workers back to work, not for profit.

Yet a Workers’ Compensation Insurance Rating Bureau analysis shows SB863 saved insurance companies $1.3 billion from 2012 through 2016 – mostly from decreased medical treatment through independent medical review’s introduction, said Diane Worley, California Applicants’ Attorneys Association’s policy director.

Reyes introduced AB44 to allow attack survivors’ workers’ comp claims to skip utilization review and extend their benefits from two years to four and a half. The bill was gutted by the Assembly Insurance Committee.

On July 12, an amended AB44 requiring employers to immediately provide attack survivors with case managers and treatment options passed out of the Senate Labor and Industrial Relations Committee and later passed both houses and became law.

Jackson and Stone, the committee vice chairman, are now fired up to look closely at workers’ comp. Costs largely arise from workers not getting treatment soon enough, said Jackson.

“The supervisor doesn’t have any comment at this time,” said county Policy Advisor Don Holland.

Employers and insurers should once again face stiff fines for delaying benefits, Marcus said.

Another key reform would require all necessary medical records be sent to outside utilization review and for utilization review doctors to be qualified in the specialty they review, More said by phone.

At the AB44 hearing, Stone, a former Riverside County supervisor who lost friend Damian Meins in the Dec. 2 massacre, vowed to make “retooling” the worker’s comp system a “high priority” in 2018 after hearing survivors’ testimony, including that survivors were treated like they were suspected of fraud and a utilization review nurse denied survivors’ medication when only a doctor can.

In a recent interview, Stone committed to ensuring there are no gaps in service for injured workers, especially survivors of workplace violence, and said problems are likely happening in other counties, too.

“We pay the highest rates in the country. The least we deserve is for employees to get the care they need,” he said.

Trauma experts and lawyers say Dec. 2 survivors were further harmed by secondary trauma from their struggles to get help. Acknowledging that, Stone described the delays and denials as “completely inappropriate.”

“I don’t want to see a recurrence of the debacle that we witnessed in San Bernardino happen again,” he said.

[This story was originally published by The Press-Enterprise.]