Tag Archives: mark webb

Congress Reins in OSHA on Records

As part of efforts by Congress to overturn various regulations published during the waning days of the Obama administration, the House of Representatives on March 1 passed HJR 83 on a largely party-line vote. The resolution, unlike what we have come to expect in congressional work product, is a model of conciseness:

“That Congress disapproves the rule submitted by the Department of Labor relating to ‘Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness’ (published at 81 Fed. Reg. 91792 (December 19, 2016)), and such rule shall have no force or effect.”

The rule, announced by the Occupational Safety and Health Administration (OSHA), created a continuing obligation to maintain accurate injury and illness records for five years (OSHA 300 Log). The rule also required the accurate filing of Form 301 incident reports throughout the five-year, retention-and-access period if employers do not prepare the report when first required to do so,

HJR83 is a technical way to say that the Dec. 19, 2016 rule will be nullified if the Senate concurs and President Trump signs the legislation. In case there was any doubt, on Feb. 28 the office of the president issued a statement saying, “If this bill were presented to the president in its current form, his advisers would recommend that he sign it into law.”

See also: What Trump Wants to Do on ACA  

When the Senate received HJR 83 on March 2, it immediately introduced SJR 27 to accomplish the same purpose and with identical language.

Critics of the regulation felt that it was a last-hour effort to undo the decision of a panel of the U.S. Court of Appeals for the District of Columbia Circuit in AKM LLC (dba Volks Constructors) v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). In that case, per OSHA’s interpretation, the five-year retention requirement for these injury and illness logs created five years of potential liability for inaccurate record keeping. In other words, there was a continuing duty to maintain the accuracy of the logs. In Volks, however, the court unanimously disagreed with the Department of Labor and decided that there was no such continuing duty. The court held that no citation may be issued after the expiration of six months following the occurrence of any violation, following the general limitation on citations contained in the U.S. Code under the Occupational Safety and Health Act.

OSHA did not challenge the Volks decision. Instead, OSHA pointed to the concurring opinion of Circuit Judge Merrick Garland, who agreed that OSHA’s interpretation was wrong, but because of a lack of regulatory authority and not necessarily a lack of statutory authority. That distinction was enough for the Department of Labor to adopt the challenged regulations, and Garland’s opinion was quoted extensively in the Federal Register by OSHA in support of its actions. Congress, it appears, will be the ultimate arbiter of that issue.

The creation of a continuing duty arguably makes it easier to prove that record keeping violations were willful. That increases the exposure to penalties. While OSHA’s comments in the Federal Register when the regulation was published downplayed the additional obligations of employers in complying with the law, employers and associations expressed concerns about how the “continuing violations” would be managed by employers and enforced by OSHA. These comments suggest that the compliance costs are real and material.

The National Federation of Independent Businesses (NFIB) says the regulation will cost the economy $1.9 billion over five years. OSHA disagreed with that assessment. (Federal Register, Vol. 81, No. 243, p. 91806).

See also: Captives: Congress Shoots, Misses  

It is important to remember that if Congress doesn’t act and the president does not sign the resolution, the regulation will be in effect.

The bigger picture of how to deal with a wide range of regulations from the Department of Labor, including OSHA, is a much larger topic. There are certainly controversial regulations that must be reviewed by the new nominee for Secretary of Labor, Alex Acosta, once he is confirmed. For the moment, however, this record-keeping rule is on the path of disapproval, much to the relief of employers across the country.

When Culture Can Be a Corporate Cancer

“It is better to ask forgiveness than permission.” If there is one phrase that should be permanently deleted from the lexicon of the business world, this is the one. The statement is categorically false, both conceptually and legally. The pervasive nature of this attitude, engrained into the psyche of far too many business leaders by the pressures of the competitive world and investor expectations, is a tumor that, try as they might, policymakers and regulators have been unable to excise from the body of commerce for decades.

In a March 9, 2016, updated article in the Wall Street Journal, that publication noted that banks have paid $110 billion in penalties relating to the housing crisis since 2010. That is slightly less than the 2016 GDP of Kuwait and more than the GDP of Puerto Rico. That’s right, there are many nations in the world whose total annual gross domestic product is less than the fines paid by banks to federal and state governments and other remedial payments imposed by federal and state enforcement agencies. While an expenditure of such magnitude would plunge many countries into default, these financial institutions continue to do business, continue to make loans and continue, at least in some instances, to engage in illegal and fraudulent activities.

This compliance thing isn’t working so well, is it?

As we move to a new administration in Washington, there is talk about how to unwind various provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Some of the recommendations that would particularly benefit smaller financial institutions should be seriously considered. But the discussion in Congress needs to encompass the scope of issues raised by financial oversight laws over the past two decades – and that includes Sarbanes-Oxley. The various compliance mandates included in that law have not produced the desired results. To be sure, companies have Codes of Ethics and Business Conduct, various training programs to comply with state mandates, anonymous reporting hotlines, and “tone at the top” structures that pass audit standards. From what we have seen over the past several years, however, the auditability of compliance should no longer be synonymous with the effectiveness of compliance.

See also: Building a Strong Insurance Risk Culture  

As enterprise risk management (ERM) structures become more sophisticated, regulated businesses are at risk of reducing the “ethics” part of compliance. As a law professor once said to me, law schools don’t teach people how to be ethical; they teach people the ethical expectations of the profession. This is referred to as the “tone at the top” in most compliance documents. And yet, per PwC’s State of Compliance Study 2016, while 98 percent of PwC’s survey respondents stated their firms “have senior leadership that is committed to compliance and ethics,” 55 percent stated, “senior leadership provides only ad hoc program oversight or delegates most compliance and ethics oversight activities” and only a meager 36 percent of compliance officers stated they are “inherently integrated” or “play a key role” in strategic planning.

A similar observation can be made by reviewing Accenture’s 2016 Compliance Risk Study, Compliance at a Crossroads: One Step Forward, Two Steps Back? Among its observations was, “…only 31% of Compliance functions represented by our 2016 Compliance Risk Study respondents now report to the CEO, representing a 9 point fall over the 2014 level.” Accenture also notes, “The demands on Compliance have potentially resulted in the function struggling to clearly articulate its role within the organization and how it can benefit the Chief Executive Officer (CEO).”

As for “tone at the top,” consider the finding in Deloitte/Compliance Week’s In Focus: 2015 Compliance Trends Survey:

“Despite the role culture plays in creating an effective compliance program, culture assessment ranked dead last among the responsibilities CCOs have.”

These results point to a continuing dilemma. Sarbanes-Oxley (SOX) and Federal Sentencing Guidelines have been around for decades. ERM is relatively a newer regulatory/audit structure, as is the Own Risk Solvency Assessment (ORSA) for insurers, while corporate governance initiatives are the most recent. Each, however, depends on the other. Thus, while it would seem axiomatic that legal and regulatory compliance and business ethics are risk elements and should be fully integrated with all other business processes, clearly, they are not. This ambiguous status is further exemplified by the recent trend of outsourcing compliance, a trend that causes the Securities and Exchange Commission (SEC) some angst. [See: Risk Alert, Examinations of Advisers and Funds That Outsource Their Chief Compliance Officers (November 19, 2016), Securities and Exchange Commission Office of Compliance Inspections and Examinations (OCIE)]

As noted in its 2016 publication, Risk in Review – Going the Distance, PwC found that 78 percent of survey respondents said that senior management, “wants a more forward-looking view when it comes to compliance”. Yet, only 27 percent said they had adequate resources to protect the company from compliance risks.

We expect businesses to comply with laws and regulations, and we expect executives to behave ethically. But in the evolving metric-driven environment in which ERM and corporate governance exist, we are straining to peg a value to compliance and ethics. SOX, Dodd-Frank, ERM, and other corporate governance initiatives have as their objective driving businesses to make better and more transparent decisions and in so doing protect investors and consumers. But compliance and ethics also require an environment that encourages everyone in the enterprise to say, “Wait a minute…”.

See also: Does Your Culture Embrace Innovation?  

On Wednesday, January 11, 2017, Volkswagen AG and affiliated Defendants entered a Third Partial Consent Decree and Plea Agreement over criminal violations arising from its diesel automobile program. Part of the Consent Decree requires the appointment of a third-party Compliance Monitor. The Plea Agreement states that the qualifications to be the Compliance Monitor include, “experience designing and/or reviewing corporate ethics and compliance programs, including anti-fraud policies, procedures, and internal controls”.

That same day, Forbes Magazine headlined its article on the settlement, “Volkswagen Shares Jump As It Nears U.S. Dieselgate Settlement.” The contributor tweeted, “Volkswagen’s emission scandal is a rare example where failure eventually results in success.” No mention was made of the Compliance Monitor.

Return to Work Remains a Problem

According to one published report, (WorkCompCentral, March 4, 2016, “$100 Million in Workers Benefits Sits Unused”), only 3,955 checks have been issued to injured workers from the Return to Work (RTW) Fund established in Senate Bill 863. The checks total slightly less than $20 million, leaving an additional $100 million untapped by injured workers. According to regulations of the Department of Industrial Relations (DIR) that administers the fund, workers receive a $5,000 allowance if they have been issued a Supplemental Job Displacement Benefit (SJDB – commonly referred to as a “voucher”). The voucher is issued if the employer at injury fails to make a qualifying offer of employment to the worker.

While the provenance of the RTW Fund has been criticized – largely by those not in the room to witness its birth – there are more fundamental issues with the fund and its administration. First, the RTW Fund really has nothing to do with return to work.

It can be fairly assumed that the use of that particular section of the Labor Code – Section 139.48 – was a legal accommodation because there was existing statutory reference to the RTW Fund in Labor Code Section 62.5 – specifically Sec. 62.5(a)(1)(B). Section 62.5 is the Workers’ Compensation Administration Revolving Fund statute. That reference, in turn, was to the RTW Program that was originally created more than 15 years ago in Assembly Bill 749 as a mechanism to partially subsidize certain employers who brought injured workers back to work. The employer subsidy as originally enacted was for wages and worksite modifications. Later, Senate Bill 899 further revised the RTW Program to limit the reimbursement to worksite modifications and to expend funds on an “as available” basis. The RTW Program sunset on January 1, 2010, but while Labor Code Sec. 139.48 was taken out of the code, the reference to the RTW Fund in Sec. 62.5 remained.

See Also: A Physician’s View of ‘Return to Work’

Once one gets past the title of “Return-to-Work Program,” however, there is no evidence to suggest that Sec. 139.48 has anything to do with returning a worker to employment with the employer at injury – or anyone else for that matter:

“139.48. (a) There is in the department a return-to- work program administered by the director, funded by one hundred twenty million dollars ($120,000,000) annually derived from non-General Funds of the Workers’ Compensation Administration Revolving Fund, for the purpose of making supplemental payments to workers whose permanent disability benefits are disproportionately low in comparison to their earnings loss. Moneys shall remain available for use by the return-to-work program without respect to the fiscal year.

“(b) Eligibility for payments and the amount of payments shall be determined by regulations adopted by the director, based on findings from studies conducted by the director in consultation with the Commission on Health and Safety and Workers’ Compensation. Determinations of the director shall be subject to review at the trial level of the appeals board upon the same grounds as prescribed for petitions for reconsideration.

“(c) This section shall apply only to injuries sustained on or after January 1, 2013.”

The history of Labor Code Sec. 139.48 is also influenced by the Commission on Health & Safety & Workers’ Compensation (CHSWC) publication, “Report on the Return-To-Work Program Established in Labor Code Section 139.48” (2009). The most telling aspect of that report was the “alternative” recommendation to the Legislature: “California may wish to consider eliminating the program. California may wish to consider a program that more directly assists injured workers who are unable to return to their previous jobs.” (p.7) Given that the program sunsetted roughly eight months later, the commission’s recommendation is almost prophetic.

Three years later, as required by SB 863, the DIR conducted an independent study to determine how best to structure the RTW Fund in the new and improved Labor Code Sec. 139.48. That responsibility fell upon the ubiquitous RAND Corporation, whose 2014 report, “Identifying Permanently Disabled Workers with Disproportionate Earnings Losses for Supplemental Payments” is the foundation for the current RTW program. Among its recommendations were to make eligibility for the program dependent on receiving a voucher. According to RAND, approximately 20% of injured workers receiving permanent disability benefits receive a voucher. (p. 12) Under RAND’s scenarios, and anticipating utilization of the RTW fund at the same approximate levels as the vocational rehabilitation program repealed in 2004 by Assembly Bill 227 rather than their observed voucher utilization figures, RAND estimated roughly 24,000 injured workers would access the RTW Fund, thus resulting in about $5,000 per recipient to exhaust the $120 million annual assessment.

So while that explains where we are today, it also raises questions about whether the current RTW program suffers from the same lack of awareness that caused its statutory predecessors to go quietly away. But that also raises the bigger issue: What has happened to re- employment as an objective of the system over the past 20 years?

The history of vocational rehabilitation in California’s workers’ compensation is a long one – culminating in the repeal of the mandatory vocational rehabilitation program in AB 227 and the repeal of vocational rehabilitation as a compensable benefit with the amendment to Labor Code Sec. 3207 in SB 899. Legislative efforts trying to suggest that return to work is still important in the workers’ compensation system have largely been limited to the voucher, an at-best-meager program that is intended to try to put the injured worker on the path toward gaining skills to find new employment. In no way, however, is it as robust as the former vocational rehabilitation program. It is, regrettably, a $6,000 check, with some restrictions, that is intended to finalize the severing of the tie between an injured worker and the employer at injury.

See also: Return to Work Decisions on a Worker’s Comp Claim  

To paraphrase Will Turner in Pirates of the Caribbean, “That’s not good enough!”

As we move forward and discuss a whole host of issues in the workers’ compensation system, such as utilization review, the use and abuse of opioids, prescription drug formularies, independent medical review and permanent disability ratings, perhaps someone, somewhere, likely in either Oakland or Sacramento, should talk about re-employment of disabled workers.

Not some resurrection of vocational rehabilitation and what became its abuses but, rather, simply how to help workers unemployed due to a disabling injury at work to have the same access to re-employment assistance as disabled or otherwise unemployed workers whose access to re-employment assistance is defined by multiple state and federal programs and not by extracting some form of payment from the employer at injury.

There is no shortage of programs that could provide such assistance. And perceived unintended consequences that expanding the scope of re- employment assistance beyond the employer at injury would increase the number of workers unemployed after a workplace injury are unlikely given the protections of the Fair Employment and Housing Act (FEHA), the Americans with Disability Act (ADA) and Labor Code Sec. 132a.

According to the Workers Compensation Insurance Rating Bureau (WCIRB), in calendar year 2014 roughly $29 million was spent on vouchers. Labor Code Sec. 139.48 assesses $120 million annually. One should ask whether that money would be better spent providing access and coordination to the host of re-employment programs offered by the Department of Rehabilitation, the Employment Development Department (CalJOBS), non-profit private companies, such as Goodwill Industries, that offer re-employment assistance, and a host of federal programs, including those offered from the U.S. Department of Labor, Office of Disability Employment Policy and the Social Security Administration’s Plan To Achieve Self-Support (PASS).

In today’s complex world we simply cannot expect the employer at injury – especially the small to medium-sized employer – to provide all the resources necessary to facilitate meaningful re-employment for injured workers who are permanently disabled. Expanding the concept of re-employment and coordinating programs designed to create jobs for the disabled is a logical step forward to address this problem. No amount of vouchers or RTW fund disbursements will ever be a viable substitute for a job.

The sooner we realize this and look to Sacramento and Washington to break down the barriers created by the workers’ compensation system to full access to re- employment resources for disabled workers, the better.

 

Back to the Drafting Table on Work Comp

Recent Supreme Court decisions in Oklahoma, Florida and — to a far lesser extent — Utah – have touched off a firestorm of debate over the so-called interference of the judiciary in the administration of state workers’ compensation systems. But the real issue in these cases is not the specific interpretations of complex laws; it is how state legislatures wind up passing such complex laws to begin with.

Consider two older Supreme Court decisions: Hayes v. Continental Ins. Co. (1994) 178 Ariz. 264, 872 P.2d 668 and Smothers v. Gresham Transfer (2001), 332 Or. 83, 23 P.3d 333.

In late 1985, the Arizona Court of Appeals recognized a civil action for bad faith by an injured worker against an insurance company. That opinion was not unanimous and seemed to be at odds with prior case law on this issue. Arizona’s legislature generally has short sessions, and, while this cannot be proved, it is likely that a solution to this new case law would have been difficult to arrive at by the May 14, 1986, sine die date in Phoenix. By 1987, the legislature did adopt a bad faith statute, giving the industrial commission the authority to resolve issues regarding unfair claims processing and bad faith actions by claims administrators. The statute begins: “The commission has exclusive jurisdiction as prescribed in this section over complaints involving alleged unfair claim processing practices or bad faith by an employer, self-insured employer, insurance carrier or claims processing representative relating to any aspect of this chapter. The commission shall investigate allegations of unfair claim processing or bad faith either on receiving a complaint or on its own motion.”

That pretty much should have resolved the issue. Why would the legislature adopt a bad faith statute after 75 years other than to make clear that exclusive remedy barred an action by an injured worker for bad faith in the handling of claims and to effectively nullify recent judicial decisions saying otherwise?

In 1994, the Arizona Supreme Court had the opportunity to answer that very question in Hayes. The court began its analysis by noting, “Although the trial and appellate courts assumed that the statute preempts and divests all state courts of jurisdiction over workers’ compensation bad faith cases, Plaintiff correctly notes that the statute does not explicitly say this. In fact, it does not mention either common-law damage actions or divestiture of court jurisdiction.”

See also: Where the Oklahoma Court Went Wrong

That observation signaled where the court landed on the issue, and Arizona workers’ compensation claims administrators — and, recently, the legislature — have tried and failed ever since to limit the ability of an injured worker to access the courts under the theory of tortious bad-faith claims handling by insurers. The issue is far more complicated than simply one of judicial interpretation. The Arizona Supreme Court has yet to reach ultimate state constitutional issues regarding bad faith claims by injured workers because of its somewhat strained interpretation in Hayes of the 1987 law.

At about the same time, the Oregon legislature was addressing a Supreme Court case, Errand v. Cascade Steel Rolling Mills, Inc. (1995), 320 Or. 509, 525, 888 P.2d 544, that called into question the scope of the exclusive remedy of workers’ compensation. The legislation enacted in Salem in response to this opinion included language stating, “(t)he exclusive remedy provisions and limitation on liability provisions of this chapter apply to all injuries and to diseases, symptom complexes or similar conditions of subject workers arising out of and in the course of employment whether or not they are determined to be compensable under this chapter.”

In 2001, the Oregon Supreme Court issued its opinion in Smothers. The court took under consideration the cumulative effect of the very comprehensive exclusive remedy legislation enacted in 1995 and the requirement that workplace conditions be a “major contributing cause” of a claim for compensation arising out of an occupational disease. After an exhaustive analysis, the Supreme Court held that the exclusive remedy statute violated Article 1, Section 10 of the Oregon Constitution, which guarantees every Oregonian a “remedy by due course of law for injury done him in his person, property, or reputation.”

The legislature promptly responded to the court’s decision and in 2001 addressed the ability of an injured worker who failed to meet the major contributing cause standard to bring a civil negligence action against the employer. The legislative resolution preserved the rule of law in Smothers, was constitutionally firm and ultimately resulted in little (if any) of the expected fallout from the court’s decision. As noted by the Oregon Department of Consumer and Business Services in its 2010 Report on the Oregon Workers’ Compensation System, “Although it was estimated that the Smothers decision could affect as many as 1,300 cases per year and cost up to $50 million per year, there have been no known cases in which workers have prevailed at trial; in a few cases workers have received settlements.”

So what do these cases have to do with Maxwell v. Sprint PCS (in Oklahoma), Castellanos v. Next Door Company (in Florida), Westphal v. City of St. Petersburg (in Florida) and Injured Workers Association of Utah v. State of Utah? Everything.

Workers’ compensation legislation has generated volumes of appellate case law across the ages and in all jurisdictions. There are a host of reasons for this, but one major factor is the very nature of workers’ compensation public policy. Rarely is the system going to be reviewed by legislators unless there is a crisis — historically, in the form of high insurance premiums but more recently when self-insured employers call for change and labor is more than willing to sit down with them and negotiate. This leads to prophylactic laws designed to ameliorate a specific situation and are combined with long-term benefit increases. Even Oregon, whose management labor advisory committee (MLAC) is a model for workers’ compensation public policy development, is not immune from these pressures, as Smothers demonstrated more than a decade ago.

See also: Appellate Court Rules on IMR Timeframes  

There is no justification to suggest that every element or iteration of workers’ compensation laws passed for well over a century is somehow immune from judicial scrutiny. Indeed, most states have, within their body of case law, important decisions redefining the law that are the result of appeals from employers rather than injured workers. These frequently result from interpretation of laws from administrative tribunals, as is noted in the lengthy line of cases over the past 10 years in California of appeals from decisions of the Workers’ Compensation Appeals Board. Furthermore, the courts cannot be held to a legislative agenda that is the result of one particular group or another successfully negotiating the political winds of the time. The stakeholders of the system are not immune from suggesting ill-conceived laws any more than legislatures are immune from passing them.

None of this is to suggest that the majority opinions in these recent cases represent good legal scholarship. It is to say, however, that when going back to the respective state legislatures to address these cases, a more careful consideration of policy — even at the expense of losing a bit of the singular focus on costs — could lessen the possibility of unintended consequences.

And, as for “due process,” we should all remember New York Central Railroad Co. v. White, (1917) 243 U.S. 188 also contained the following language when holding that the New York compensation scheme under review met due process standards:

“This, of course, is not to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable. In this case, no criticism is made on the ground that the compensation prescribed by the statute in question is unreasonable in amount, either in general or in the particular case. Any question of that kind may be met when it arises.”

The recent challenges and questions raised over workers’ compensation reform throughout the states over the past 20 years suggest we are closer to “the question of that kind” arising. Whether it does is in large part because of what stakeholders and policymakers determine should be done, rather than what one side or the other knows it can do simply because it has the votes.

Legislative Preview for Work Comp in 2016

Common wisdom suggests that major workers’ compensation legislative activity won’t take place during an election year. For 2016, that would seem to hold true.

That is not to say, however, that various interested parties will be sitting idly by, waiting for the clock to turn to 2017.

CENTERS FOR DISEASE CONTROL ADD TO THE LIST OF CHRONIC PAIN GUIDELINES

On Jan. 13, the Centers for Disease Control and Prevention (CDC) closed the public comment period for its proposed Guideline for Prescribing Opioids for Chronic Pain. According to the CDC, the guideline is being proposed to offer “… clarity on recommendations based on the most recent scientific evidence, informed by expert opinion, with stakeholder and constituent input considered.”

The guideline goes to great lengths to address two important issues. The first is that current guidelines in many states – both public and private – are based on dated information. The second, which is critical, adds to the growing number of voices to say that best practices for providers include accessing physician drug monitoring programs (PDMP) to reduce the risk of doctor shopping and toxic – and sometimes fatal – mixtures of prescription drugs when the patient provides incomplete histories or none at all of their drug use (both prescription and illicit).

This need to access a PDMP before, and during, treatment with opioids is echoed by the Medical Board of California (MBC) and the DWC. Their comments also underscore a considerable problem facing California policymakers when trying to create incentives for providers to use the Controlled Substance Utilization Review and Evaluation System (CURES) without directly mandating access.

This dilemma is best summed up by the analysis of Senate Bill 482 by Sen. Ricardo Lara (D – Bell Gardens) that is at the Assembly Desk pending referral to committee. The bill, which would mandate participation in the CURES system as well as other measures to curb the abuse of opioids, has garnered opposition from medical associations and one medical malpractice insurer. The opposition, according to analyses by legislative staff, is based on two issues – the first being whether the CURES system is capable of handling the volume of inquiries a mandate would engender, and the second being concern that requiring CURES access will become a standard of care that could subject providers to malpractice liability.

As to the former, this issue arose during the campaign waged against the 2014 ballot measure Proposition 46. According to the non-partisan Legislative Analyst’s Office (LAO), “Currently, CURES does not have sufficient capacity to handle the higher level of use that is expected to occur when providers are required to register beginning in 2016.” This raises an important question – does the CURES system now have the capability to meet the demand that a mandate would create? If it doesn’t, then the legislature needs to understand why.

As to the second issue, it is difficult to comprehend the level of distrust that is subsumed in the position that opposing a mandatory review of possible prescription drug abuse by a patient would establish more potential malpractice liability than knowing that the CURES database exists and not checking it. In time, perhaps, it will be the appellate courts that resolve that issue.

There is no shortage of guidelines that address the appropriate use and cessation of use of opioids for non-cancer chronic pain. The DWC is finalizing its latest iteration on this issue as part of the MTUS. It will differ from both the CDC and the MBC guidelines to some degree, but the overall treatment of this issue is very similar. In addition, the division will be implementing a prescription drug formulary as required by Assembly Bill 1124 by former Assembly member Henry Perea (D – Fresno). That, too, will likely provide opportunities to address the proper use of opioids in the workers’ compensation context, preferably after the chronic pain guidelines are completed.

As noted by the CDC and the MBC, and implicit in the DWC’s guidelines, this is not just a question of UR. If all the work by the division is simply viewed as a more effective way of saying “no” regardless of the circumstances, then the public health issues associated with the abuses of opioids will continue.

Workers’ Compensation Insights is a bi-monthly publication of Prop 23 Advisors. Subscribers will receive in-depth analyses of pending California legislation and regulations, review of important WCAB and appellate court decisions and commentary on trends within the system in California and nationally. To read the rest of this newsletter, click here.