New workers compensation
rules will be disastrous
The Lingle administration's new workers compensation rules hurt injured workers, shut out alternative health care providers and scare off doctors, with no guarantee of cost savings to Hawaii businesses.
As members of the House Committee on Labor and Public Employment, we need to respond to your July 1 editorial "Vetoed bill would handcuff Gov. Lingle," which was filled with misinformation about the issue of workers compensation.
We passed Senate Bill 1808 precisely to stop the administration from implementing new rules. Why? Because we are outraged that the administration would go forward to adopt these rules given the following:
There is no guarantee of cost savings for businesses. Your newspaper and many in our business community were misled to believe that the new rules would result in an estimated $100 million in savings. Anyone who understands the complexity of the workers comp system would be suspicious of this claim, and our suspicions were confirmed by information presented last week.
In a hearing before our committee, the insurance industry, the health care industry, a university economist and even the director of the Department of Labor and Industrial Relations himself testified that no one has a firm number on what savings will be achieved by these rules. If there were any savings to be had, none of the 39 testifiers at the hearing could explain how much, if any, of the savings would be passed on to employers by way of insurance premium rate reductions.
The day after we passed SB 1808 and the Legislature adjourned, the governor issued a press release promoting the adoption of these rules and the resulting $98 million in cost savings. As it turns out, the administration's study was faulty in taking the California reforms and extrapolating cost savings for a completely different Hawaii market and workforce. This information is wrong, and it is irresponsible of the administration to continue to create these false expectations.
The new rules hurt injured workers. The integrity of the workers compensation system is based on balance between the injured worker and the employer. These new rules shift the balance away from the worker in ways that further jeopardize their health and recovery. Specifically, the new rules require that the injured worker's physician may only provide treatment according to two sets of medical treatment guidelines: the Official Disability Guidelines and the American College of Occupational and Environmental Medicine. There are very serious problems with these requirements.
First, it was troubling to receive a significant amount of testimony from members of the medical community stating that they had never heard of the ODG guidelines and were therefore unfamiliar with their practicality and credibility. It also was disturbing for the Legislature to receive a letter from the ACOEM stating that it does not endorse Hawaii's new rules and that it objects to being included. Further, it claims that the ODG and the ACOEM guidelines do not work in tandem and might in fact be in conflict with each other. The California cost savings are a result of the ACOEM guidelines, and this is the organization that is asking the Legislature to address the problems with the governor's rules.
How does this hurt the injured worker? The guidelines might work very well for common types of injuries nationwide. It is the "cookie-cutter" approach to medical treatment. However, when you have an injury that falls outside the guidelines, workers are then required to challenge the system and produce their own science-based medical evidence to support alternative treatment. As stated in the hearing, we in Hawaii have differences from the mainland, and if you are a Samoan-Japanese worker with a unique set of injuries, you would be hard pressed to find the science-based medical evidence similar enough to support your case.
Doctors might stop taking workers comp patients. The requirement that physicians must treat patients not according to their own medical expertise, but by a cookbook of treatment guidelines, is not only insulting to the physician but does not result in the best medical treatment possible for the worker. This does not support the goal of getting the worker back to health and back to work.
If the physician disagrees with the guidelines or wants to use additional or alternative treatments, he or she must do extensive medical and legal research to justify the variance from the guidelines, and will not be compensated for preparing an alternative treatment plan. It stands to reason that doctors no longer will have any incentive to take workers comp patients, further reducing medical options for injured workers.
Alternative health care is ignored. Alternative health care providers, such as chiropractors, naturopaths, acupuncturists, massage therapists and physical therapists, have become an important part of our professional medical community, and in some workers comp cases their services are considered beneficial. We can presume that any challenges to the guidelines by physicians would not include alternative health care under science-based evidence. Therefore, workers who have come to rely on alternative health care, which has been approved in the past, no longer will be able to receive this treatment.
We have no doubt that any loss of benefits and streamlining of the system, however detrimental in impact, will result in some savings. The insurance industry representative testified last week that there is no requirement that they reduce workers comp premiums as a result of any savings, and they were not prepared to state that they would voluntarily do so.
The testimony we received confirmed our belief that the new rules are a disaster waiting to happen, that SB 1808 was warranted and that an override of the governor's veto of this bill is appropriate.
This article was submitted by state Reps. Kirk Caldwell (D, Manoa, Manoa Valley, University), Bob Nakasone (D, Wailuku, Puunene, Makawao, Paia), Marcus Oshiro (D, Wahiawa, Whitmore Village, Poamoho), Joe Souki (D, Wailuku, Waihee, Waiehu, Puuohala, Waikapu), Ken Ito (D, Heeia, Haiku Valley, Kapunahala, Kaneohe), Maile Shimabukuro (D, Waianae, Makaha, Makua) and Pono Chong (D, Maunawili, Olomana, Enchanted Lake, Kaneohe).