STATE OF WEST VIRGINIA
FULL PERFORMANCE EVALUATION OF THE
WORKERS' COMPENSATION DIVISION
Interdisciplinary Examining Board
IEB/IME Role Conflict
OFFICE OF LEGISLATIVE AUDITOR
Performance Evaluation and Research Division
Building 1, Room W-314
State Capitol Complex
CHARLESTON, WEST VIRGINIA 25305
Background of the Interdisciplinary Examining Board
The Interdisciplinary Examining Board (IEB) was created in 1995 by Senate Bill 250 for the purpose of evaluating claimants for permanent total disability. The first IEB meeting took place on September 19, 1995. According to West Virginia Code '23-4-6,
referrals to the board shall be limited to matters related to the determination of permanent total disability...and to questions related to medical cost containment, utilization review decisions and managed care decisions.
The Board determines if claimants meet the 50% whole body impairment standard as established by Senate Bill 250. The Board further determines if claimants are permanently totally disabled or if vocational rehabilitation is possible. Impairment ratings must be made according to the latest edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment.
The Commissioner of the Bureau of Employment Programs appoints the five members of the Board from a list of seven names submitted by the Health Care Advisory Panel. The Board is to be comprised of three physicians with the specialties and expertise qualifying them to evaluate medical impairment. The two other members of the IEB are to be vocational rehabilitation specialists who are qualified to evaluate the ability of a claimant to perform gainful employment with or without retraining.
The Board may evaluate a claimant on the basis of information provided by previous examinations conducted by the Workers' Compensation Division in addition to reports filed by both employers and claimants. The IEB may choose to conduct its own examination of a claimant in order to obtain additional information. If the Board elects to examine a claimant, the members of the Board conduct the examinations relevant to their specialties of practice. The Board may obtain advice or evaluations by other specialists if it considers an issue outside of the expertise of its members. If the number of applications before the Board exceeds it ability to review within a reasonable time, the Health Care Advisory Panel may authorize the Commissioner to appoint additional IEB members, who serve only until the backlog has been reduced to an acceptable level.
The IEB members are required to prepare a report when they complete an examination of a claimant. It should describe any tests, examinations, procedures or observations made. Copies of the reports are to be provided to both employers and claimants and each is given an opportunity to respond in writing.
The Board provides initial recommendations to the Workers' Compensation Division in writing, including explanations for each recommendation. These recommendations are also provided to the involved parties who are given a 30-day period in which to respond in writing. The Board reviews responses and issues final recommendations to the Workers' Compensation Division. The Division then issues an appropriate order.
Much of the IEB's time has been spent reviewing cases over which it now lacks jurisdiction.
Due to the Kanawha County Circuit Court ruling in Anderson v. Vieweg that was handed down after the creation of the IEB, the Board has reviewed "Old Law" claimants who would not currently be subject to their review. Anderson established the claimants' date of injury as the determining factor in whether the amendments in Senate Bill 250 would apply to cases in which a claimant has a property interest at stake. An examination of the dates of injury of all claimants considered by the Board shows that the dates of injury for almost every claim examined by the Board put them into the category of "Old Law," rather than "New Law," and therefore not legally subject to the IEB review process. The reader should understand this is due to a change in the interpretation of statute by the judicial system, not mismanagement.
The Workers' Compensation Division has issued orders on "New Law" cases, not covered by the Anderson decision, that are subject to the IEB review process (see Table1). As of November 16, 1998, 97 "New Law" cases have been completed with an order. Another 34 cases still lack certain information needed to make a decision. Three other cases are receiving vocational rehabilitation. A total of 134 cases have been received by the Permanent Total Disability Unit of the Workers' Compensation Division for referral to the IEB.
Table 1: New Law Cases
|17||Cases denied a PTD award|
|9||Cases granted a PTD award|
|71||Cases denied reopening|
|97||Cases completed with an order|
|34||Cases in waiting status|
|3||Cases receiving TTD benefits (rehabilitation provided)|
Update on the status of Anderson claims
As discussed in an earlier report by the Performance Evaluation and Research Division, Anderson required the Commissioner to process certain workers' compensation claims by specified time periods. The status report from the Legal Services Division dated November 16, 1998 indicates that 94% of "Old Law" cases (see table 2) have been completed with orders issued by the Legal Services Division of the Bureau of Employment Programs. Fifty cases are still awaiting information necessary to complete an order. Thirty-two cases still await a final order, while 2 cases may result in a settlement between the parties.
Table 2: "Old Law" Cases
|650||Cases denied a PTD award|
|562||Cases granted a PTD award|
|11||Misc. order (Moots, etc.)|
|121||Cases denied reopening|
|1,350||Cases completed with an order|
|50||Cases in waiting status (need more information for a decision)|
|49||Cases receiving TTD benefits (rehabilitation provided)|
|32||Cases currently awaiting a final decision|
|*Data Source: Legal Services Division November 16, 1998 tracking update filed with the Court|
Table 3 shows that 68% of "Ferrell" cases have been completed with an order. Of the cases in the LSD, 761 are still awaiting a decision. Another 26 cases may result in a negotiated settlement.
Table 3: Ferrell Cases
|867||Cases denied a PTD award|
|670||Cases granted a PTD award|
|6||Misc. (Moots, etc.)|
|43||Cases denied reopening|
|1,599||Cases completed with an order|
|339||Cases in waiting status (need more information for a decision)|
|95||Cases receiving TTD benefits (rehabilitation provided)|
|422||Cases currently awaiting a final decision|
|*Data Source: Legal Services Division November 16, 1998 tracking update filed with the Court|
Issue Area 1: The condition of IEB meeting records is insufficient to maintain optimal management control
The availability and accessibility of information relating to the Interdisciplinary Examining Board is essential for management and independent reviewers to be able to review the Board's activities. Issues relating to individual Workers' Compensation cases and payments made to IEB members are just a few reasons for maintaining accessible and sufficient records of these events. Certainly no payment should be made by any State agency for services in which there is no record of when the service was rendered and by whom. Data on per diem payments, for example, was not easily reconciled with records for the dates of IEB meetings. This problem became apparent after IEB members were accidentally overpaid for meeting attendance in 1996, and a CPA of the Workers' Compensation Division was assigned to reconcile the disparity.
The manner in which the Workers' Compensation Division previously maintained records of IEB meetings made it difficult, if even possible, to determine such basic information as the date and length of each meeting, what occurred at each meeting, and how long each Member attended a given meeting. For much of the Board's history, its record keeping has been inconsistent and insufficient.
The auditors' difficulty in determining the number of claimants reviewed by the Board was an example of the lack of complete and accessible data. In the course of this study, approximately 500 different claimants were identified as having been reviewed by the IEB. Because some meeting records recording the claimants reviewed during meetings, were unavailable, an exact total could not be calculated.
From the Board's first official meeting in September 1995 to August 1996 minutes of IEB meetings were maintained. For some of the earlier meetings, for which members have been compensated by the Bureau, no official meeting records exist. Minutes frequently lacked information such as beginning and ending times, but for the most part represented quality records of IEB meetings. In August 1996 a log form took the place of the Board's minutes. While the log efficiently collected such information as members present and meeting dates, it did not provide a means to document the details of meetings. The log lacks such information as medical referrals made to Board members, member refusals from voting on claimants, and the disposition of claimants' cases under consideration. Further, entries on log forms are handwritten and sometimes difficult to read. The minutes and log forms represent the primary records of the IEB to date. However, supplemental records also exist. Since March 1996, a docket of claimants considered during each meeting has been maintained. This document, is in spreadsheet form and includes meeting date and basic information for claimants discussed during a given meeting (name, social security number, claim number, etc.). In addition, a binder of handwritten notes of a Workers' Compensation Division employee covers meetings from November 1995 to May 1996. The differences in reporting formats, non-documentation of some information, missing meeting records, and handwritten entries account for the insufficiency of these records.
In early December 1998, Workers' Compensation Division staff created a new spreadsheet to capture more complete meeting data such as examination referrals made by the IEB and payments made to Board members for these examinations. The improvements that have been made to the IEB's records present billing information alongside data for examination referrals and will help to correct future problems that may arise with respect to vendor payments made to Board members. Workers' Compensation Division staff did its best to compile other sources of IEB records into the new spreadsheet for all previous meetings for which there is some record. Staff has indicated willingness to include any other information which would be useful for future entries. Table 4 illustrates the various sources for IEB records and the forms that these records have taken since the Board's creation.
IEB Records Sources
|IEB Meeting Minutes||9/95-8/96||Some of the best quality records available. Deficient of information regarding meeting times. Replaced by log sheets.|
|IEB Log Forms||8/96-present||Record members in attendance and claimants considered during each meeting.|
|Handwritten Notes||11/95-5/96||A WCD employee maintained notebooks of her handwritten notes.|
|Basic Docket||3/96-present||Recorded claimants considered during meetings.|
|New Spreadsheet||created 12/98||Includes data on exam referrals to Board members and payments for those services.|
|Source: IEB staff records of meetings|
Bureau records relating to IME (Independent Medical Examiner) exams completed by IEB members are not maintained by Workers' Compensation Division staff which provides support to the IEB. IME exams are ordered by the Commissioner of the Bureau of Employment Programs after a claim is filed. Many exams conducted by IEB member physicians are completed as IMEs and not at the request of the IEB. The support staff should be aware of the extent to which IEB members are responsible for initial disability exams completed as IME's. A large proportion of member physicians' incomes is due to their work as IME's and not their IEB-related duties.
Difficulty Estimating Time Worked by Members
Information regarding the times that meetings began and ended would have been helpful for the purposes this study, but was not available. The length of each meeting was particularly difficult to estimate during the course of this review. The best method that the auditors could devise was to review the security sign-in sheets maintained in the lobby of the Workers' Compensation Division's main office building. Although many members of the Board did not always sign the security log, data for an analysis of these records was adequate to gain an impression of the average length of a meeting.
Through errors in data entry, IEB members were accidentally paid multiple times for the same IEB meeting, as the per diem amounts were misunderstood to be per claimant rates. The overpayments began in 1996 and continued into 1997. The amounts overpaid were not fully recovered until March and April of 1998 when the total amounts overpaid were reconciled with records produced by the Board members. At that time, Board members who still had outstanding overpaid balances wrote checks to reimburse the Workers' Compensation Division for the amounts still owed.
It is important that the Bureau carefully track amounts paid on a consistent basis. When the accounting for the overpayments was finally completed, some of the overpayments had occurred as long as two years before the reconciliation. The Bureau had to revise its totals for the amounts overpaid in response to records produced by Board members. It is exceedingly difficult to make a proper accounting for past payment errors when such errors take place repeatedly and over an extended period of time. Given the sub-optimal condition of IEB records at the time, the Workers' Compensation Division's reconciliation efforts are commendable.
The lack of proper record keeping for some of the IEB's meetings made a proper accounting for the overpayments more difficult. The Workers' Compensation Division assigned an accountant to resolve the problem and recover the overpaid amounts. Documentation for some meeting dates was missing entirely and the accountant was forced to refer to an assortment of information sources to determine when and if meetings even occurred. Records as diverse as staff and Board members' personal notes, the available meeting minutes, and meeting logs had to be consulted in order to piece together a list of meeting dates. It was only after a list of meeting dates was completed that the Division could determine what per diem amounts were earned by Board members for comparison with the amounts which had been paid. When discrepancies existed between the Division's overpaid balances and the records of Board members, the state of the Bureau's records was such that it frequently chose not to challenge the Board members' claims for amounts due them. When members were called upon to refund overpaid amounts in 1998, some members disputed the balances reflected in the Bureau's records. In order to reconcile the discrepancies, the Workers' Compensation Division negotiated the amounts refunded, taking into consideration the claims of members. The amounts refunded by members, therefore, sometimes differed somewhat from the amounts that the Bureau's records indicated that they owed. When Board members wrote checks to the Division reimbursing it for overpaid amounts, three members claimed that the Division's records failed to reflect some meeting dates. These members wrote checks for smaller amounts than the Division claimed they owed for this reason. The largest reimbursement check totaled $31,500 for one Member.
The Board was paid for a meeting that allegedly occurred on February 2, 1995. The staff accountant who reconciled the overpayments made to Board members was unaware of any IEB-related activities that took place then and could find no documentation for a meeting. Senate Bill 250, which created the IEB did not pass the Legislature until February 10, 1995, 8 days after the IEB's first paid "meeting." Moreover, the IEB did not actually exist until September 1995, when letters of appointment were sent to members, 8 months after this first per diem payment.
It is important that the dates for which members are compensated by the Workers' Compensation Division accurately reflect the dates on which meetings occurred. In the past, the state of the Board's records was not adequate to easily permit the Workers' Compensation Division's accounting staff to determine the dates on which meetings occurred, for the purposes of compensating Board members and reconciling accounting discrepancies. This information should now be more readily available with recent improvements to the Board's records. In the future, the Division's accounting staff should periodically reconcile IEB per diem payments with IEB meeting records. This will help to ensure that problems such as duplicate payments can be quickly and accurately resolved.
The breadth of Senate Bill 250, which created the IEB, and immediate implementation of the Bill may have had some influence on the state of the Board's records. The sweeping reform most likely diverted the attention of management to many areas. Further, because of the volume of claims which were filed at the time of S.B. 250, the IEB inherited an instant backlog upon its creation. While the minutes maintained in the first year of the Board's existence were some of the most complete records the IEB has maintained (only lacking beginning and ending times in most cases), these factors may have impeded management and the Board from adopting record keeping standards in the infancy of the Board.
Because each meeting of the IEB, in which all members attend represents $4,000 in per diem payments to the members of the Board; because the IEB upon a majority vote of a quorum of its members is permitted to refer claimants to members' private practices; because the members of the IEB may need to recuse themselves from consideration of certain claimants because of personal relationships of previous examinations which should be duly noted in the official record; and because the IEB is making official recommendations on claimants' cases, the record keeping of the IEB is of paramount importance. Clearly, the Board's charge is important and time valuable enough to warrant the cost of maintaining complete, accurate and accessible records. Further, the cost of staff time required for reconciliation activities, or the provision of management information provides further justification for improvements in this area.
The Division's new spreadsheet holds promise for correcting the deficiencies of prior IEB records. Based on an early copy of the spreadsheet which was provided to the Legislative Auditor, commencement and adjournment times and notes about special occurrences, such as refusals from voting would materially resolve this Office's concerns.
Workers' Compensation Division should improve the records of IEB meetings, ensuring that information such as meeting times, members present, referrals made, refusals from voting, and amounts billed for exams is readily accessible.
In the future, the Workers' Compensation Division should review amounts billed by IEB members for services rendered and require proper documentation for reimbursement of expenses and compensation for meeting attendance.
The Workers' Compensation Division should recover per diem payments made for the February 2, 1995 meeting.
Issue Area 2: The IEB is statutorily required to make self-referrals
West Virginia Code '23-4-6 requires IEB members to personally examine claimants when additional information is needed to make disability recommendations. Thus, the incompatible duties of making the referral and profiting from the work are vested with the Board. While self-referral is required under the statute, allowing the IEB to make referrals to members' practices is analogous to the Supreme Court asking one of its Justices to review aspects of the defense's case in his/her private law practice.
West Virginia Code '30-3-14 (c) provides that the West Virginia Board of Medicine may deny an application for license or other authorization to practice medicine and surgery and podiatry or discipline a duly licensed physician or podiatrist for:
(6) Requesting, receiving or paying directly or indirectly a payment, rebate, refund, commission, credit or other form of profit or valuable consideration for medical or other health care services or clinical laboratory services, supplies of any kind, drugs, medication or any other medical goods, services or devices used in connection with medical or other health care services.
Furthermore, Legislative Rule '11-1A-12 provides that the Board of Medicine can deny a license, place a licensee on probation, suspend a license, limit or restrict a license or revoke a license upon satisfactory proof the licensee has:
q. Paid or received any commission, bonus, kickback or rebate, or engaged in any split-fee arrangement in any form whatsoever with a physician, podiatrist, organization, agency or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers or pharmacies. The provisions of this subdivision shall not be construed to prevent a physician or podiatrist from receiving a fee for professional consultation services;
Thus, the conflict of interest addressed in this issue is of such fundamental concern that a physician could have his/her license revoked for receiving any form of kickback from a medical referral. In most cases, law does not permit referrals in which a given provider or agency would receive valuable consideration for making a referral. In the case of IEB referrals, the Board Member receiving the referral is receiving all of the financial proceeds from a given referral, not just a commission thereon. The statute and rule discussed above would have no force and effect on the IEB because of its expressed statutory obligation to refer claimants to its members in this manner. However, the policy indicates an inconsistency in how the Legislature views referrals which may be subject to conflicts of interest.
Although all instances of self-referrals may not be reflected in the data available, Table 5 provides some insight into the frequency of IEB self-referrals. Over the period of review, these examinations have been paid at a rate of up to $1,300 each ($1,200 exam and $100 records review). Since October 1998, examination fees have been capped at $1,000 per exam (records review is billed under a separate code). The previous cap was $1,200.
Table 5: Referrals to IEB Members
|Member||Referrals to IEB Members
September 1995 to October 1998
(Certified Rehab. Specialist)
(Certified Rehab. Specialist)
|Source: Data provided by the Workers' Compensation Division. Sources used to compile this information are incomplete. Some of these appointments may not have been kept, though physicians are paid for appointments in which the claimant fails to show.|
Although the frequency of referrals, as provided by the Workers' Compensation Division, are not necessarily indicative of abuse, the provision for self-referring provides for a susceptible control environment. The Legislature should consider requiring the IEB to make such referrals to other providers.
Controlling for Self-Referrals
There are occasions when it is more desirable to have incompatible duties than to take on the reduced efficiency and/or effectiveness that must be borne to divide responsibilities. In these cases, management has to work especially hard to control for conflicts. Frequent and thorough reviews of self referrals would help to control for this situation.
The Bureau is compensating IEB members at the same level as it would other providers to which IEB claimants could be referred for additional evaluation. IEB members are paid on a per diem basis for all time required to complete the IEB docket for a given meeting, and this rate has been determined to be excessive, as discussed in Issue Area 4. In light of these factors, it is difficult to argue that efficiency gains justify the compromised management controls. However, should the Legislature find that the current system is more desirable from an effectiveness point of view, by maintaining the statute as written, measures can be taken to improve management controls over IEB self-referrals.
WCIS uses the same procedure codes for work conducted on an IEB self-referral basis and work conducted as Independent Medical Examiners. Thus, it is nearly impossible to identify which examinations have been made as a result of self-referral, if reviewing WCIS vendor payments data. Recent improvements in the IEB's records will make this information available, providing the IEB spreadsheet entries agree with actual reimbursements as recorded in WCIS. Ideally, a new WCIS code could be created for IEB referred exams. This would also eliminate the need for duplicitous data entries in the IEB spreadsheet. WCIS modification may not be practical however, depending upon the ease of modification and interfacing of program modules. Regular reviews of IEB self-referrals by accounting staff and peer reviews by the Health Care Advisory Panel would bolster management controls in this area.
While self-referral is required under the statute, requiring the IEB to make referrals to members' practices creates an unfavorable incentive structure and invites abuse. The Legislature should consider requiring the IEB to make such referrals to other providers. The availability of IEB self-referral and related billing information has improved over the course of this review. Workers' Compensation Division staff has taken steps to track claimant exam referrals made to Member physicians.
The Legislature should consider amending Code '23-4-6 to require the IEB to refer exams which are needed to obtain additional information to professionals not serving on the IEB.
Issue Area 3: IEB member physicians are also allowed to serve as IME's
The manner in which physician members are permitted to serve as Independent Medical Examiners (IME's) and conduct workers' compensation disability examinations for claimants and employers while serving on the IEB makes abuse of the claims process possible. IME's are physicians who complete the initial disability examination(s) of each claimant after he/she files a claim with the Workers' Compensation Division. The IEB reviews the IME's records, and records of claimant/employer physicians and makes an independent assessment of the claimant's disability. Thus the IEB tends to serve in an oversight capacity for the IME's, ensuring that examinations are conducted properly according to the AMA's Guides and making the final independent review of the claimant's disability. Functioning as a quality control mechanism as claimants reach the IEB and, at the same time, serving as IME's permits members to have incompatible duties. There is a danger in putting members in the position of reviewing their own work and that of their fellow IEB members. Such an arrangement relies on the honesty of Member physicians who could conceivably arrange for a claimant examined while serving as an IME, to receive a recommendation of permanent total disability if they chose to behave unethically. Although there is no evidence to indicate that this has been done, there is a possibility of abuse due to this policy of allowing IEB members to also serve as IME's.
During the IEB's first month of existence, the Board adopted guidelines on reviewing cases and making independent assessments of the work of IMEs. The following excerpt on bias is quoted directly from the Board's guidelines:
Bias in an examiner is an inherent risk while performing these examinations and self-scrutiny is required to prevent or minimize it. Bias costs the WVDWC a lot of money because it leads to litigation, obstructs efficient care and fair settlement or compromise. One biased report begets another from the other side, thus increasing litigation and prolonging recovery. Splitting the difference between the two biased reports does not lead to an accurate assessment or equitable resolution of the problem.
There is a tendency to identify with the referring sources who may subtly pressure for a favorable opinion or only selectively supply needed information (medical records, employment records, previous injuries, evaluation, etc.). The examiner may develop a philosophical identification with workers or employers due to his or her own background, development and experiences. The examiner may assume in his or her mind the role of the trier of fact or dispenser of justice. Sibling rivalry or other competitive motivations may skew the examiner as he or she attempts to "outdo" another physician involved in a case. The examiner may become paralyzed with indecision or need for appearing unbiased such that no definite opinion is rendered. Favorable or unfavorable personal opinions about the claimant may enter the picture due to knowing the claimant or someone associated with the claimant.
Although the Board recognizes the threat of evaluation bias and even the perception thereof, members are permitted to serve in this dual role. The statute does not prohibit this action, nor do any workers' compensation rules or policies.
Another compelling argument in favor of disallowing IEB members to serve as IME's and conduct claimant/employer disability examinations is that members who have conducted these previous exams should recuse themselves from the reevaluation of such claimants as IEB members. Minutes of early Board meetings indicate that members routinely recuse themselves from IEB duties when they have previously conducted claimant-ordered or employer-ordered evaluations of the claimant under review. Thus, the State is paying a $1,000 per diem for each physician Member's participation on the IEB, but may not have a quorum of members to vote on an odd claim because of such recusal. As an example, a claimant scheduled for review by the IEB on September 28, 1995 could not be evaluated because of the recusal of two of the IEB's physician members and resulting lack of quorum. Ultimately, the disposition of a claimant's case may be delayed for this reason.
IEB members do not recuse themselves from the review of claimants for which they have conducted the Bureau-ordered IME exams. Because the essence of the Interdisciplinary Examining Board is to make an independent review of the medical record and make an appropriate recommendation regarding the PTD claim, a Member who examined a claimant as an IME may rely on firsthand knowledge which is not part of the medical record. Also, because the IEB gives claimants and employers an independent review of IME evaluation findings, there is an element of due process which is compromised when an IEB Member who evaluated a claimant at an earlier time is asked to review his/her own work.
IEB oversight of the IME's
A review of available IEB meeting minutes pointed out the difficulty that the Bureau has had with the quality of exams completed by IME's. The minutes document various claims in which prior exams were inconsistent with the AMA's Guides to the Evaluation of Permanent Impairment. In the absence of properly conducted exams, IEB Member physicians conduct their own exams. This leads to a duplication of exams and therefore the Bureau has to pay twice for evaluations on the same claimants simply because of incorrect procedures followed by IME's. The current practice of allowing IEB members to refer claimants to IEB members for further evaluation simply provides a financial incentive for the Board to conduct as many exams as possible on claimants (see Issue Area 2). Since IEB members are compensated for each exam they complete, they realize financial benefit from IME's which a not as skilled in applying the AMA's Guides to the Evaluation of Permanent Impairment as members of the IEB. Although the incentive system is flawed, IEB members expressed a willingness to contact and counsel problem IME's in the minutes of the Board's first meetings.
The March 21, 1996 meeting minutes mention a document entitled "Independent Medical Examiners: Quality Issues" which was circulated by the IEB Chair. At this meeting the IEB discussed mechanisms for reviewing examiners and for validating questionable procedures. The Board has, therefore, taken corrective steps with respect to problem IME's. However, the Legislature should consider eliminating financial incentives to self-refer to optimize the system.
Members of the IEB have some incompatible duties since they are also allowed to serve as IME's. The IEB serves as a quality control mechanism for IME's. The IEB was established to make an independent assessment of other medical evaluations, but the manner in which it operates creates a system prone to abuse. The danger of bias in performing disability examinations has long been recognized by the IEB. The need for an IEB member to recuse themselves from consideration of a claimant who he/she examined as an IME presents another problem. Refusals can result in a lack of a quorum and therefore delay consideration of a claim.
The Legislature should consider amending Code to prohibit physician members of the IEB from also serving as Independent Medical Examiners (IME's) and providing claimant-ordered and employer-ordered workers' compensation disability exams.
Issue Area 4: The per diem compensation paid to IEB members is excessive.
Comparison of per diem compensation for IEB members with others in their professions
IEB members are paid a fixed amount for each meeting they attend. The rate of compensation is $1,000 for physician members and $500 for rehabilitation specialists. Travel expenses are also reimbursed for some members. Table 5 presents annual earnings of each IEB Member for meeting per diems and related travel. When comparing hourly physician income data collected by the American Medical Association, see Table 6, this rate of compensation is in excess of national standards. Using 1995 data for physicians of all specialties of practice, the highest average hourly rate of compensation was for male physicians with 10-19 years of experience. These physicians averaged $83.60 per hour. IEB Member physicians received an average of $429 per hour for time spent in Board meetings. The physician Member estimate of 2.33 average hours per meeting on which meeting time is based was computed using security sign-in sheets maintained by the Workers' Compensation Division. According to the Board's Chairman, the IEB reviews medical records during its regular meeting time. Thus, records review is not an uncompensated activity.
Annual Payments Made to IEB Members for Meeting Attendance
(Certified Rehab. Specialist)
(Certified Rehab. Specialist)
|Source: WCIS report provided by the Workers' Compensation Division. Compensation for Members 3 and 5 also include travel reimbursement|
Unadjusted Income of Physicians: 1995
Total, Income Per Hour and Income Per Visit
|Years of Practice||Income Per Hour|
|1-4||$ 59.00||$ 47.80|
|5-9||$ 76.70||$ 61.50|
|10-19||$ 83.60||$ 70.70|
|20+||$ 72.90||$ 55.70|
|Source:American Medical Association Center for Health Policy Research, Socioeconomic Monitoring System Core Surveys for 1995-1996.|
Calculating the length of an average IEB meeting was important for this review because it illustrates the amount of time demanded of members in the course of their Board-related duties. The average length of time spent by each Member at each meeting varied (see Table 7), as it appears that Member 4 spent, on average, a considerably longer time at the Workers' Compensation Division than did the others.(1) Clearly, this Board Member was frequently present at the Workers' Compensation Division's building for a much greater length of time than was required for an IEB meeting. Because the amount of time that this Member usually spent at the building does not appear to accurately reflect the length of an IEB meeting, he/she was left out of consideration for determining the length of an average meeting. The rest of the members spent an average of 2.44 hours at each meeting. Two of the members, Members 3 and 5, tended to stay for approximately three hours on the average, while physician Members 1 and 2 usually attended meetings for only two hours. Apparently, some members leave the meetings earlier than others on a consistent basis.
Average Hours Worked by IEB Members February 1995 to July 1998
Certified Rehab. Specialist
|Member 5 Certified Rehab. Specialist||All Physician Members||All
except Member 4
|2.07 hours||1.87 hours||3.06 hours||5.08 hours||2.77 hours||2.33 hours||2.44 hours|
|Source: PERD analysis of Workers' Compensation Division security logs.|
Division of Rehabilitation Services Pay to Rehabilitation Professionals
|Of Full-time Employees in these Positions||Certified Rehabilitation Counselors||Senior Disability Evaluation Specialists|
|High Hourly Rate||$30.98||$25.38|
|Low Hourly Rate||$18.18||$15.03|
|Average Hourly Rate||$22.00||$20.99|
|Median Hourly Rate||$21.30||$21.75|
|Number within DRS||34||31|
|Source: DRS Expenditure Schedule of Personal Services for FY 1999. All values based on FY 1999 salary levels with annual increments. Salaries were increased 1/3 to reflect total compensation (to include benefits). Hourly rate computations based on 50 week year and the standard DRS work week of 36 1/4 hours.|
Based on the 2.77 hours per meeting average of certified rehabilitation counselor Member 5, the $500 per diem amount equates to an hourly rate of $180.50 per hour. Two IEB members are certified rehabilitation counselors. As of July 1, 1998, the West Virginia Division of Rehabilitation Services employed 34 full-time "Certified Rehabilitation Counselors," see Table 8. Pay to these employees ranged from $30.98 to $18.18 per hour, including benefits and annual increment amounts. Average pay to these employees was $22.00 per hour and median pay (pay to the middle level employee) was $21.30 per hour. The nature of these IEB members' roles more closely align with another position at the West Virginia Division of Rehabilitation Services, that of "Senior Disability Evaluation Specialists." These employees specialize in determining the vocation potential of persons with disabilities. Division of Rehabilitation Services pay to these employees ranged from $25.38 per hour to $15.03 per hour, including benefits and annual increment amounts. Average pay to these employees was $20.99 and median pay (pay to the middle level employee) was $21.75. Thus, comparing the IEB hourly rate of $180.50 per hour with the highest paid Certified Rehabilitation Counselor at the Division of Rehabilitation Services earning $30.98 per hour, IEB rehabilitation members earn nearly six times their rate of pay. These IEB members earn more than eight times the average DRS Certified Rehabilitation Counselor's compensation.
Table 5 shows that compensation paid to members has varied from year to year. When the IEB first began meeting in September 1995, throughout most of 1996, it was not unusual for the Board to meet 2-3 times per week. By late 1996, the average number of meetings began to fall. At present, the Board only meets approximately 2-3 time per month. As the number of meetings has fallen, so has the compensation paid to Board members. These decreases in meeting frequency can be attributed to evolving case law interpretations concerning which claimants are subject to the 1995 amendments to the Code.
The Executive Director of the Workers' Compensation Division provided insight into how the current compensation level was determined.
[The former Commissioner] asked for recommendations regarding the rate of reimbursement from a number of people including members of the Health Care Advisory Panel, as well as staff within the Division. A recommendation of $1,000 per diem for physicians and $500 per diem for rehabilitation professionals was received. The Commissioner asked the Division to review that recommendation. Upon consideration of that review, the Commissioner adopted that reimbursement rate.
Review staff also requested any documentation in support of the current level of reimbursement. The Executive Director explained that the Division had "been unable to locate a memorandum from the Commissioner authorizing that reimbursement rate and believe his authorization was given telephonically."
Given that physician IEB members receive $1,000 per meeting and rehabilitation specialists receive $500 per meeting, the average hourly compensation received by each Member is excessive, when compared with AMA standards and salaries of similarly qualified employees of the West Virginia Division of Rehabilitation Services. Meetings last between 2 and 3 hours and members do not require time outside of the meetings to review medical records. Physician members receive an average of $429 per hour while rates of compensation for the Board's rehabilitation specialists far exceed those of other rehabilitation specialists employed by the West Virginia Division of Rehabilitation Services. Compensation to these individuals should be commiserate with work requirements and the labor market.
The Bureau of Employment Programs should reevaluate the rates at which IEB members, both physicians and rehabilitation specialists, are compensated in order to make their pay comparable to that of others in their professions.
1. Further inquiry indicated that some of the business of this Member is unrelated to the official activities of the IEB. Hence, records for this member were treated as outliers.