San Bernardino Terrorist Attack Victims Fight for Comp Benefits

"the bureaucratic nightmare of utilization review is a hindrance to the recovery of all injured workers."   Alan Gurvey

Survivors of the 2015 terrorist attack in San Bernardino are fighting with the county to get approval for medications and treatments their doctors say are necessary — and in the process exposing California’s workers’ compensation system to a new round of national scrutiny.

Eighteen county workers who were at the Inland Regional Center on the morning of Dec. 2, 2015, have already filed claims for physical or psychological injuries sustained after a colleague and his wife fired more than 100 rounds, killing 14 and injuring 22 more. The county anticipates another 36 workers will file claims, according to the agenda for a closed-session meeting held Monday, when the Board of Supervisors discussed work comp claims stemming from the attack.

After Monday’s meeting, James C. Ramos, chairman of the Board of Supervisors, issued a statement that tacitly acknowledges problems administering claims filed by the survivors. But the statement also suggests that the county has done all that it could do, and it is the treating physicians who are ultimately responsible for the numerous utilization review denials reported by the workers and their attorneys.

Ramos said in the statement that the county is committed “to continuing to take steps to expedite the process and get our people the care they need.”

San Bernardino County is self-insured and administers its own claims.

The workers’ compensation system includes procedures to review treatment requests and “required documentation of treatment,” Ramos said. Many of the concerns expressed by workers, who say they were cut off from anti-anxiety medications, pain medications, physical therapy and psychological care, “stem from the county not receiving supporting documentation from the employees’ providers,” he said.

To address these concerns, Ramos said the county will “increase efforts to work with those providers to obtain the documentation needed to move forward with approving treatments.” He also said the county plans to hire a firm “whose sole function will be to expedite the process for our employees.”

David Wert, public information officer for the county, did not respond to requests for comment from WorkCompCentral.

Julie Swann-Paez, who was shot twice in the pelvis during the attack, said she doesn’t see how expediting requests for authorization will address what she and her colleagues see as spurious denials of care.

“The problem hasn’t been expedited requests, it’s denials,” she said Wednesday during an interview with WorkCompCentral. “So what, instead of waiting 12 days for them to say no, we’ll only have to wait three days? Is that what this is?”

Paez said the county terminated her physical therapy in April. The utilization review decision indicated that medical treatment guidelines said she needed 18 physical therapy visits for a hip fracture. And the decision also noted a lack of documentation indicating she was working toward meeting the goals of the physical therapy program or that the additional visits would benefit her.

She said the denial of physical therapy was the biggest issue for her, but it’s not the only problem she has had getting approval.

In August, Paez was scheduled to undergo two surgeries. The first was to reverse a colostomy and the second to do a bone graft of her pelvis and shave down a bone that was growing into her bladder.

The first procedure lasted eight hours with surgeons spending most of the time removing scar tissue. During the second procedure, surgeons accidentally cut into her bladder.

“So instead of a bone graft, it turned into emergency bladder repair, and I got a parting gift of a catheter and everything,” she said.

She said that while she was in the hospital, the county refused to authorize stronger medications for post-operative pain. The county said she already had a prescription for narcotic pain relievers and didn’t need anything stronger than what she was already receiving.

Paez said she understands the concerns surrounding narcotics, but says there was nothing in her case file that indicates she was likely to abuse the drugs. She also says she was assigned a nurse case manager who also didn’t understand why the county would refuse to authorize pain medication.

“They pay someone to intimately know my case, know my doctors, know me, and she has zero authority nor do they ever ask her opinion,” she said. “I think she would be the No. 1 person to ask.”

Another time, Paez said she ended up spending a weekend in the hospital because her doctor could not find someone to authorize a prescription for an antibiotic. She said doctors discovered an infection on a Wednesday and started her on broad spectrum antibiotics pending the result of a culture. When the results from the test came back on Friday and her doctor tried to ask for approval for a drug to target the specific strain of bacteria causing the infection, there was no one in the county’s risk management department to provide authorization.

She said she received the antibiotics while she was at the hospital, but without authorization, she would have to pay for the drugs herself is she wanted to go home before the weekend. And the county “made it clear if you pay for anything, they will not reimburse you.”

Paez said she doesn’t believe the county’s excuse that it doesn’t have records or that it has to abide utilization review determinations.

“They hide behind, ‘We don’t have a choice, it’s UR,’” she said. “Wait a minute. They’re self-funded, self-administered. They absolutely have a choice.”

She said she’s trying to stay optimistic and upbeat, and would like to believe that the county just made a number of mistakes that it will rectify as the denials have started to garner attention from national outlets, including the New York Times and the Wall Street Journal. She said she has to believe that the denials are just indicative of mismanagement, because the alternative is worse.

“The alternative is they don’t give a shit, and that’s tough to take,” she said. “This was attempted murder and these are your employees. They witnessed their friends get murdered.”

“I know Syed and his wife were crazy,” she said, referring to county worker Syed Farook and his wife, Tashfeen Malik. “They left their child. They killed my friends. But how do you wrap your head around the county doesn’t care enough to make this right? That’s my struggle.”

Paez is now represented by applicants’ law firm Rowan Gurvey & Win, but she says she never intended to hire an attorney. From December until sometime in March, she said the county was approving treatment requested by her doctor, and she thought that was going to continue.

“I was thinking they’re going to take care of us,” she said. “We got an attorney when the first denial for physical therapy came in and I read the note that said ‘reportedly injured’ and ‘not making progress’ toward her goals. I was so insulted by that, I said, ‘They're not going to look after us.’ This is going to be a game and I don't know the game. I don't know what is allowed and not allowed. I don't know what is OK and not OK. And I don't have it in me to go and try to figure this out. So we're going to need a lawyer so we know how to play this game.”

Her attorney, Alan Gurvey, said in an email on Tuesday that the bureaucratic nightmare of utilization review is a hindrance to the recovery of all injured workers.

“There are certain ‘no-brainer’ treatment issues that become nightmares,” he said. “It is true for all injured workers subjected to the system. However, it becomes very apparent when we are dealing with the terrorist victims, since it is such a high-profile situation and there is so much sensitivity involved. But remember, people who aren’t able to work as a result of work injuries and devastated as well, even if they weren’t attacked by terrorists.”

Geraldine Ly, an applicants’ attorney in Santa Ana who is representing nine other survivors of the attack, said she sees San Bernardino as a microcosm for California’s entire workers’ compensation system.

“Our workers’ compensation system in California allows for this type of treatment,” she said. “We’re faulting San Bernardino County for not having compassion, not having sympathy, but they haven’t done anything outside the law. The law allows them to do this. Where’s the wrong? The wrong is the workers’ compensation system.”

Ly said the county would approve just six physical therapy visits for one of her clients who was shot in the leg because it said additional treatment would not improve her pain. The county refused to authorize treatment with a psychologist for another client, because that person was already being treated by a psychiatrist who submitted the request, she said.

“The dysfunctional workers’ compensation system now allows them to punt to these UR doctors, who are paid by them to review these cases," she said. "But they shouldn't punt. They do have the authority to authorize these requests without sending them to UR"

Published on 12/01/2016 by WorkCompCentral, authored by Greg Jones