Title: Attorney, Linda Atcherley & Associates
Resume: Atcherley’s past positions with CAAA include legislative chair, which she held in 2007-2008, and president, which she held in 2006-2007. She has also served with CAAA on the Executive Board of the Applicants’ Attorneys Association from 2001-2006 and as a member of the Board of Governors from 1995 to the present. She currently practices as a sole practitioner with Linda Atcherley & Associates, beginning in 2006. She was a partner in Atcherley & Levine, LLP, from 2000-2005, and was a sole practitioner with the Law Offices of Linda F. Atcherley from 1995-1999.
Schools: University of California, San Diego; JD from Western State University College of Law, San Diego
Awards: Atcherley was named “Applicant Attorney of the Year” by the State Bar of California for 2008 and was presented with a Certificate of Appreciation by the Division of Workers’ Compensation for “Dedication to implementation of the California Division of Workers’ Compensation’s Electronic Adjudication Management System.”
Boards & Commissions: She has served with CAAA on the Executive Board of the Applicants’ Attorneys Association. She is currently on the Board of Governors of the California Applicants’ Attorneys Association (CAAA). She is also a past president of CAAA
Certifications/Designations: She is a Certified Law Clerk and a Certified Specialist in Workers’ Compensation by the State Bar of California.
Inspirations: Gwen Hampton, with her basic course in workers’ comp claims; Stanley Levine, Esq., a man Atcherley calls her teacher, friend and mentor; Donald C. Green, lobbyist for the California Applicant’s Attorneys Association; all her fellows with CAAA; William Zachry, vice president of Safeway; Mark Webb; Carrie Nevans and everyone who took the time to educate Atcherley and discuss their issues and viewpoints.
Favorite quotes: From her father: “Your reach should always exceed your grasp.” From her mother: “Upward and onward.”
A prolific presence at the Legislature, Atcherley testifies frequently on bills that will have an impact on injured workers, especially as they relate to the timeliness and effectiveness of treatment. She’s been particularly outspoken about the effectiveness of the electronic adjudication management system (EAMS), where she shares the concerns of defense attorneys. Atcherley is particularly well liked by employers and insurance carriers. She is the past president of the California Applicants’ Attorneys Association and sits on the legislative board.
What are the top three issues in California workers’ comp today?
I think one of them is the broad category of medical treatment, with the subcategory of liens and access to treatment, and then medical-legal. They’re all wrapped up in there. Medical is the broad category that encompasses those three things. Liens are a very big issue, but I hate to put it as a top issue without being under that umbrella. Underneath there is also the medical-legal process and delays in getting panels on issue and reports from doctors. Access to medical is an issue: There are still areas in the state where it’s very difficult to find doctors to treat workers’ comp injuries. That becomes a real barrier to people getting treatment. Medical treatment also makes up most of the costs of the system. The second area, especially where you see a lot of talk, is the area of permanent disability. At the end of a workers’ comp case, permanent disability becomes the issue you need to resolve the case. How do you do that? We’re still figuring out AMA guides and the Almaraz/Guzman and Ogilvie cases. If every case needs to be resolved eventually, permanent disability will always be an issue… The other true third topic is vocational rehabilitation with vouchers, and how to make those more useful to get people re-employed.
Are we headed for a hard market, and if so, when will it come? How long should we expect it to last? What are the repercussions?
The answer is no, depending on how you define hard market. With the declining claims frequency and loss of premium to carriers, there is going to have to be some redefinition of what is an appropriate premium. I don’t think it’s going to go up much, and it may even go down. It differs depending on occupation. When it comes to self-insureds, I think they’re going to continue to reap the benefits from SB 899, including indemnity limited to two years. A lot of cost-driving factors, aside from medical, are out of the system. Permanent disability is reduced. Temporary disability has been effectively capped at two years because exceptions to the rule are so few as to be meaningless as a cost driver. Except for medical, what further cost drivers are in the system? Pretty much none. Insurance companies have a different modality… if they have [fewer] premiums collected but they still have money as they’re running out old claims, then the only way they can make money is by raising premiums. These are hard economic times, so tolerance is at its lowest.
It looks like the State Fund sale isn’t going to happen, but it looks like we may be heading for a hard market. What does that mean for State Fund? Will its market share increase to the same levels as it did previously? Is State Fund in need of any additional reforms in governance that may make a difference in how it handles its business? For instance, a proposal this year—it looks like the bill is dead for this year—would require that board members be confirmed by the Senate. Is that a good idea?
State Fund is the insurer of last resort, and I think that its market share is currently 28% of the insurance market. Other insurance carriers are not going insolvent, which was a problem when SCIF started picking up a huge market share. They’re fairly well run right now, they’ve reduced their market share to less than a third, they’ve picked up small employers, and they’re still the insurer of last resort. If you look at their experience, they’re not the cheapest but they’re not headed for instability and they’ve managed to weather a few storms. They’ve been run pretty well, no matter who’s been put on that board. Some effort should be made to make sure there aren’t any direct conflicts between board members and their own business, which is unusual. Is [further governance] really warranted?
Are medical provider networks a help or a hindrance? How should they be improved?
It could be both. They’re a help when they’re well-managed and well-run and have good competent doctors. They’re a hindrance when they’re full of names of people who don’t practice any more or don’t practice workers’ comp. Some of these people [in bad networks] are dead. They’re a help when the information is readily available and the doctors are practicing workers’ comp and … are not just on the list because they’re a Blue Cross provider. They’re a hindrance when it’s just a broad list you have to sort through. It can really take a long time to figure out doctors that take workers’ comp and will take your client. In that way they’re a hindrance. Probably, they could be improved by some uniform methodologies of accessing the list so you don’t have to keep guessing carrier to carrier. If there were some uniform protocols from carrier to carrier and there were readily available info on area and specialty and doctors were actively engaged in the system then they would work much better.
How should utilization review be improved?
Utilization review would be improved when there are more guidelines in place that doctors can rely on to make decisions about medical care. Utilization review denials would be fewer and the disputes would not be going from 6 physical therapy visits to 4 or 1, [for example]. There’s a lot of delay in all that. Once there is a denial then you have to go through the medical legal process. The time delay is another problem… if there was some way to improve timelines it would be better. If there… were more guidelines issued to reduce denials of care. Something needs to be done with chronic cases, where they’ve been on medications for 10, 15, even 20 years and then they’re told to stop. Utilization review is a good tool that can be overused sometimes.
What needs to be done to improve return-to-work?
First, I think we need a better job market. I think maybe we need to make the vouchers more useful, so people can get skills that are really useful and people can reenter the job market more easily. There are occupations that are screaming for trained individuals, so how do we get individuals trained to get there? When they are released back to work they have the skills to reenter the job market. Now, we are waiting too late to train them. We need to take the voucher system to do the training system so people can transition more quickly back into the job market and can focus on areas of the economy where people are needed. [Also, we need to] get information to injured workers about benefit programs that people don’t know about. We need some way to coordinate all these resources to expand training horizon.
What do you see, other than medical, as the next big cost driver?
Claims administration and EAMS. You’ve stabilized temporary disability, and permanent disability has always been a minuscule portion of the pie. When you look at claims administration expenses, there’s a lot that claims administrators have to do that hits both the insurance companies and self-insured employers. Those are personnel costs. The reason I say EAMS is because: one, there’s a lot of paper and two, it may require retooling at insurance companies and other places who want to take advantage of bulk filing. It also takes internal hardware to scan documents, and when you make a two-page form 10-15 pages long. There’s a lot more paper and that’s an expense. More time is required, which in turn requires research. There are delays to get to court because of filing and lack of proper staffing in certain levels of the [Division of Workers’ Compensation]. [A company] could pay a benefit longer than they have to or an injured worker could be missing out on their benefit longer.
Is it realistic to deal for more cost-cutting reforms in exchange for increasing PD benefits?
No, and let me qualify this way: there are areas where costs need to be cut, but not in exchange for permanent disability benefits. They ought to be two separate entities. Because you cut costs in one area doesn’t mean you should elevate benefits elsewhere. Permanent disability calculations are based on a lot of different factors. It isn’t easy to say, “We’ll cut this amount and transfer it to permanent disability and have it apply system-wide to injured workers.” It’s better to look at the two systems separately and determine changes that way.
Where do you see applicant attorneys focusing litigation in the future?
I think that medical treatment issues are always the #1 issue we’ll have and that will never go away. I really feel that that will be the continued litigation factor, as opposed to permanent disability. The system will eventually calm down on permanent disability, which will eliminate litigation. The old schedule vs. the new schedule got resolved. Now we have Almaraz/Guzman and Ogilvie: However those cases resolve, they will resolve how the litigation plays out. The most critical thing for our clients is medical care. To get them well, to return to an occupation, is where we really want to help our clients.
Now that Obama’s health care bill is law is there any correlation with workers’ comp? The language changed a bit. Is there a greater connection? Is there anything that has emerged in the law that would change their answer from last time?
It’s difficult to say. Hopefully it may make health insurance more readily available to people. Incidence of injuries will be diminished. It may have the result of reducing workers’ comp injuries. Case a long time ago, security guard had to walk miles a day in stiff boots. He got a sore on his foot, but he had underlying diabetes and the sore got infected… If people have affordable health care, they will be healthier in the long run which will reduce injuries overall. People will be less likely to file health issues as workers’ comp claims if they can fall back on their own health insurance.
What is the effect of more than $1 billion in payroll being absorbed by the self-insured groups?
I think in the prognostication of the self-insureds there have been some current concerns expressed by the insurance industry. If the various members of the group aren’t solvent enough to withstand the liability, if they go bust, then who picks up the slack for that? The concern is that you may have a run on the self-insured security fund. [This] would impose a greater burden on the self-insureds that could maintain their financial viability. It could extend to far greater than the billion dollars of payroll that were absorbed.
What does the future hold now that Almaraz/Guzman & Ogilvie have been reconsidered? Will there be a benefits increase?
I think we’re in a wait-and-see pattern to see what the courts do with it. The Almaraz/Guzman court was careful to limit analysis of to the tables, schedules and descriptions of impairments contained within the AMA guides. If the Almaraz/Guzman decision is left standing the courts won’t expand a physician’s ability to describe impairment with use of something other than the AMA Guides.The Almaraz/Guzman cases will remain cases of limitation. Further, the Almaraz/Guzman cases have the effect of stabilizing the issue of permanent disability because the doctors and courts will only allow analysis of impairment if they are contained within the AMA Guides and the rationale for the particular impairment is sufficient to make the determination of the physician on impairment “substantial evidence”. There will always be some impairments that are not found in the AMA Guides because the book, albeit some 750 pages, does not by its terms cover all conditions and tells the physicians to use their clinical judgment to “analogize” to something that exists in the Guides. Almaraz/Guzman, in that respect, simply follows the language of the AMA Guides. Ogilvie was also a case of limitations and by its terms was an attempt to eliminate and reduce costs of rebutting the FEC (Future Earning Capacity) factor found in the Schedule for Rating Permanent Disabilities for 2005 injuries. Ogilvie contracted the ability to rebut the Schedule with regard to the FEC quite a bit in that respect, particular with the language restricting the use of vocational testimony. I think of the two, Almaraz/Guzman will be the most-used case, only because you have to deal with the Whole Person Impairment (WPI) as the first number in the permanent disability string. Therefore, in every case with permanent disability, you first have to determine percentage of impairment. The FEC variant rebuttal in Ogilvie is relevant in far fewer cases, particularly where people returning back to work or have little or no wage loss. But neither Ogilvie nor Almaraz/Guzman applies in every case. But there will be cases that need Almaraz/Guzman because we have gaps in the AMA guides. Almaraz/Guzman said, “We understand that there are ‘gaps,’ but you are still limited to analogizing within the Guides even if the condition is not found within the Guides.” If you can’t find the relevant impairment guideline in one section, find the closest approximation or give up. I think it’s premature to speculate about a future benefits increase. The cases are not final. It’s premature to talk about some of these benefits because there’s a lot of data that the Division of Workers’ Compensation has derived that they haven’t released. If things changed now, how would it affect the system? Does the system need to change? What is the change that most answers the problems of the system and corrects them? If we’re trying to do a systemic balance, how do we affect the entire system, not just the highest or lowest wage earners? Does a systemic change affect all of them or a few? We don’t need to be parsing out workers. We’re looking for systemic balance.
Where does the greatest liability lie in Medicare Set-Asides?
[The greatest liability is] failing to properly report, on the employers’ side, and improperly administering your set-aside if you’re a worker. The biggest liability is failing to recognize when it’s appropriate. Medicare has a sometime unreasonable review of how large the set-aside should be, even if the worker really needs it.
Governor Schwarzenegger signed bills maintaining the right of injured workers to predesignate their own physicians (SB 186), tweaking utilization, and limiting the denial of benefits (AB 1093). What impact could these, if any, have on costs?
Most of the predesignations are labor people, largely peace officers. Predesignation doesn’t mean anything a lot of the time. Ultimately, what you need is a doctor who can properly describe their disabilities. It’s hard to quantify how a simple predesignation affects costs… overall they’re pretty cost neutral. Those cases are so few, I don’t thing there’s a big systemic cost.