The Dec. 2nd, 2015 terrorist attack in San Bernardino left lasting scars on the city and the region, but it affected the survivors the most. Now, almost three years after the attack, KVCR taking an in-depth look at the survivors, their mental health, and their struggle to get treatment through workers’ comp. KVCR's Benjamin Purper has this special half-hour report.
In January of 2018, over two years after the terror attack in San Bernardino that killed 14 people and wounded 22, the San Bernardino County Board of Supervisors are voting on a 175,000 dollar contract to create a memorial for the victims.
The supervisors approve the contract unanimously, without any problems – but then, the meeting opens to public comment.
“It is fitting that such a memorial be established,” says Robert Fredericks, an insurance specialist who personally knows several of the victims.
“However, that memorial will be tarnished for a generation in the living memories of those very survivors and families of the victims you memorialize as they suffer for the rest of their lives the psychiatric scars of the willful neglect of the County.”
Speaking directly to the Board of Supervisors during public comment, Fredericks describes how survivors are being denied treatment for post-traumatic stress disorder, or PTSD, through the County-funded workers’ compensation plan.
“Of four survivors I know personally, three have had PTSD treatment denied. One was denied counseling benefits for 19 months and after 12 approved sessions further treatment was denied.”
Because they were at work when the attack happened, the survivors had to go into the workers’ compensation system – and because they worked for the county, they had to go into the county-funded workers’ comp system.
Part of that system is something called utilization review. That’s where physicians have to submit requests for their patients’ treatment for the county’s approval – anything from stool softener to opioids to psychotherapy. And it’s through utilization review that Fredericks says survivors are being denied treatment.
“I would encourage you to table the $175,000 contract and repurpose those dollars as well as the reserve fund for the memorial to provide the PTSD treatment these survivors need and deserve. I would suggest that the $1,000,000 reserve fund be repurposed to the PTSD treatment of the 12/2 survivors.”
This issue is personal to Nicole Bourquin; not only is she a licensed psychotherapist, but her brother-in-law Ray is one of the people who survived.
That’s given her personal as well as clinical insight into their struggle with PTSD.
“What happens in a trauma is that our normal coping strategies that we have to deal with stress, those don’t work anymore,” Bourquin says. “And so if you’re denied or you don’t have access to counseling right away, what ends up happening is, there’s an increase in blood pressure, and self-medication.”
Bourquin says that traumatic incidents like the Dec. 2nd attack don’t just affect the survivors – they affect their entire family.
“Many times the children don’t understand and even the spouses, if they’re not in counseling, they’re not understanding why the parent is pulling away, because that’s what it looks like. Why is my parent not available, why are they not going to my ball games like they used to, or why are they sitting in a room all day, why are they not making dinner… it’s that little type of stuff, the little things.”
Bourquin says that based on her clinical k knowledge and personal experience with her brother-in-law, the survivors are likely undergoing what she calls secondary trauma. As in, struggling to receive counseling through workers’ comp has added an extra layer of trauma to their experience.
“So now, if they are in session, they were actually dealing with not even the trauma right away, they’re dealing with, how do you deal with the County of San Bernardino not helping you?”
“What’s sad is that these people, the Board of Supervisors individually, they are not bad people,” says Robert Fredericks. “They are good people. But the tragedy is when good people do the wrong things.”
In addition to being an insurance specialist, Fredericks describes himself as a volunteer citizens’ advocate for the 12/2 survivors. He’s spoken to the Board about the survivor’s struggles in the workers’ comp system nearly a dozen times now.
“I have felt compelled in the absence of others having awareness and motivation and opportunity, to speak for the benefit of the 12/2 shooting survivors. It’s not official, I’ve not been appointed, I’ve taken it upon myself,” he says.
Fredericks’ main argument is that the county supervisors could override utilization review, the process where the county decides whether an employee’s recommended treatment is necessary, if it wanted to. And that it’s not a matter of they can’t, but they won’t.
“My first comments to the Board of Supervisors, I said that this is your workers’ comp program, self-funded, you hired utilization review, you can override utilization review. And interesting enough, that same day, the California Department of Industrial Relations sent them a communication which said that this is a unique situation, and I’m quoting them, this is a unique situation which requires extraordinary action. You can override utilization review, end quote.
David Wert, the spokesman for San Bernardino County, says it’s not that simple.
“A year, two years after the injury, when it comes to counseling, I suppose the county could override utilization review, but the state has made it clear if the county did override utilization review in those cases where it could be employed, most state auditors would come down and they would probably put sanctions over the county, and they’d review all the county’s decisions.”
However, State Department of Industrial Relations’ Director of Communications, Erika Monterroza, told KVCR that employers can approve treatments even if they’re denied through utilization review, and that doing so would not lead to fines or an audit.
But regardless of whether the county can override utilization review or not, Wert says it’s there for a reason: to protect patients from inappropriate or excessive treatment.
“If a patient is undergoing some type of psychological therapy that isn't appropriate for what they're experiencing or if it's not making them any better, but the doctor keeps prescribing it because the doctor is getting paid for every visit, that's when utilization review steps in and goes, hold on a minute, this isn't working. Why should this doctor keep collecting a weekly fee when perhaps another type of counseling is more appropriate, or some other course of treatment?”
Wert says he doesn’t believe that survivors have gone without treatment that they need because of any action by the county. He says that out of 3,000 individual treatments requested by the 59 survivors, less than 7 percent of those were denied.
He also says that any delays in treatment were likely caused by the survivors’ doctors failing to fill out the necessary paperwork to the county. He says that problem was basically solved when the county assigned nurse case managers to the survivors, and that if people are still experiencing delays or denials even after that, then it’s for a good reason.
“The people out there saying utilization review is a bad thing are primarily doctors and workers’ comp attorneys. People who stand to profit by not having their work reviewed, and then they tell their patients, they tell the Dec. 2nd survivors, utilization review is to blame here, the reason I’m not able to treat you is because of this utilization review. But the real force behind getting rid of utilization review are lawyers and doctors who stand to profit by not having their work renewed.”
And besides, Wert says, there haven’t really been that many denials of treatment. The county’s office of Risk Management compiled the numbers. They found that out of 735 requests by survivors for psychological treatments since the day of the attack, 631 of those were approved. Of the 104 that weren’t approved, 81 were not appealed.
“Either whether we approved something, denied something, needed more information, in more than 99 percent of those cases, the county made the right call. So you know, as far as, in those instances where people have been denied treatment, it really isn’t the county’s fault.”
Wert says he and the county are sympathetic to the survivors, and recognize that they’re frustrated by utilization review. But he says that the California workers’ comp system is set up for things like a box falling on your foot, or you slip and fall in the break-room – not the kind of traumatic event these survivors went through. And that leads to a system that’s not really prepared to deal with it.”
“Hopefully we have people up in Sacramento who are in a power to change that, but the county as an employer has no choice but to follow that less-than-perfect process because there aren’t any options under the law.”
Wert also points out that utilization review protects patients from being over-prescribed things like opioids. But what about counseling?
“There seems to be a feeling out there that you can never have too much counseling, that counseling’s always a good thing. If you could have it seven days a week, that’s better than having it 5 days a week. And on its face, whether or not you’re in workers’ comp, that’s not the case. Endless counseling doesn’t necessarily solve a problem.”
Plus, he says, it can be hard to tell when counseling is working for someone.
“If someone is undergoing therapy for six months or a year, and the reports filed by their own doctors show there is no improvement, there's an obligation on the part of workers comp to say wait a minute, nothing is happening here. We need to try something else. Or if a doctor reports, this is as well as I can make this person, they're not going to get any better no matter how much counseling they have, no matter how good the counseling might make you feel, they're not going to improve, again workers comp has to say, workers comp no longer applies here. So if someone has reached that point in their treatment where their own doctors say, you're not getting any better, further treatment is not going to help you, but a patient feels, "I still want counseling, I still need counseling, counseling makes me feel better," there are other forms of treatment available, there are other avenues to have that treatment covered, not just workers' comp.”
Geraldine Ly, an attorney who represents 9 of the victims, doesn’t buy that argument. She points out that nearly all of these survivors watched their coworkers be killed, or played dead, or hid in the bathroom as the shooters made their rounds. And based on that, she says, they need regular therapy for a long time.
“You tell me that’s not someone who needs therapy, maybe for the rest of their life. These are civilians, these are not people trained in combat, these are not police officers who go into a line of work knowing that every day they are risking their lives,” Ly says.
“These are people that look for mice in restaurants – they’re vector control. These are people who work in that department and crunch numbers. So you tell me that these are people that should be able to cope with a terrorist attack? They were not trained for that.”
Ly says it’s this kind of attitude – that counseling is a luxury, rather than a necessity – that’s made the process so hard for the survivors.
“And what’s why my clients are absolutely angry, it’s probably why they’re not getting better, you know, and because they’re not getting any support from their employer, as a result they’re getting spotty treatment. They have to wait for approval, every time they go to their psychiatrist, psychiatrist puts in another request for an additional, you know, six sessions of psychotherapy, we have to wait the five days, then we have to wait for them to deny it, then we have to wait for me to submit an appeal, then we have to wait for the appeal to come back, and then it gets approved and that’s now, what, another 35 to 60 days later? How do you continue to get better when you have to wait 60 days in between physical therapy, or psychological therapy? You can’t.”
Ly also doesn’t accept the argument that counseling is denied because it’s in the patient’s best interest.
“Why don’t we just go ahead and give that to them. Because there’s a fear that they’re going to O.D. on psychological therapy?”
Ly also says the statistics Wert cited are misleading, because they don’t account for delays and modifications. She says the only reason there are so many approvals is because requests were either approved eventually – but that could be months later, and the approval might be for less than what was requested.
“What they were doing is just denying them, making us have to work to appeal it to the independent medical review, which is IMR, and then when it got up to the IMR process, then IMR would approve some of them.”
Ray Britain is one of Ly’s clients, and Nicole Bourquin’s brother-in-law. He was the supervisor of all the employees in the room at the time of the attack, and he was there that day but not physically injured.
At his house in Yucaipa, Britain shows me an example of a denial he received through utilization review.
“This is what they needed changed in order to approve it,” Britain says. “They needed the verbage, ‘anticipatory anxiety,’ then it became approved. This is how cumbersome the process is.”
Britain was denied psychotherapy after the incident, and since denials last a year, he couldn’t revisit that request for 12 months.
“I was denied psychotherapy from the beginning. Went all the way through the workman comp, the California state workman comp system, went to UR, non-certified, was appealed, independent medical review, the decision was upheld, I could not revisit that for over a year.”
It took a media campaign to finally get Britain’s therapy approved. About a year after the incident, a group of survivors started speaking to outlets like the New York Times and PBS about their struggles with workers’ comp. And all that publicity did change the county’s behavior. 19 months after the initial request, they finally approved his therapy.
“After 19 months and a big media campaign and push on our part, the county and workman comp did start to approve some services. At that point, I was able to, I had psychotherapy and EMDR which was approved. So, limited sessions for the first time. Limited sessions, but they did make that approval. I don’t believe that it would’ve been approved without the media exposure. I think it was a result of us bringing this out.”
Britain says he doesn’t believe the workers’ comp system is well set up to deal with catastrophic injuries like the ones so many survivors received. But it’s especially ill-equipped at dealing with PTSD.
“PTSD, we’re still learning a lot of the effects, but they look at it, and there’s one camp that says, you know, there is no cure, it comes down to managing symptoms and regaining that quality of life. So on that basis, there’s no medical, there’s no proven results, so why treat? So I think we fell into that camp, where the injuries were complex, they weren’t a slam dunk, if you do this you have a 90 or 100 percent chance of regaining full mobility. So we’re just not going to treat. That’s the system we have in California, unfortunately, that’s the workers’ comp system. It’s an insurance company on steroids, it’s really playing the numbers game.”
Britain says the frustration of dealing with the workers’ comp system has led to secondary trauma for the survivors. And while he says he can’t speak for all of them, none of the ones he keeps in contact with are satisfied with the process.
“I don’t know anyone that’s satisfied with this process. And again, it’s very complex, it’s very humbling to be in the workman comp system. So nobody is satisfied, I think everybody wishes that this would’ve occurred, if it had to occur, if it would’ve occurred outside of work hours. We all believe it would’ve been a much different outcome for healing. And everyone has experienced that level of secondary trauma.”
That secondary trauma, he says, has continuing effects on the survivors’ mental health.
“So that sense of abandonment, from what happened in the room, to what’s happening now trying to get care and medical services, very similar and they would feed on each other. So, I believe that the way that this was handled, and that secondary trauma that we talk about, it really kept the event from not being processed fully for us. It kept us in that high emotion state for a long time. Every month, you’re faced with going to the doctor, you’re faced with the fear, are they going to find you permanent and stationary and cut your pay? You’re faced with, are they going to deny your treatment? Even if they don’t deny your treatment, you’re looking at possibly a delay.”
Valerie Weber, another 12/2 survivor, agrees. Weber was one of the most severely injured out of everyone who survived the Inland Regional Center attack. She was shot twice by semi-automatic weapons, and spent 93 days in the hospital immediately after the attack.
She’s had multiple, extensive surgeries since then, and she still needs more. But her wounds aren’t just physical; they’re also psychological. Like Britain, Weber suffers from PTSD and depression as a direct result of her experience and injuries.
And it interferes with her daily life. Weber describes one incident she went through that triggered her PTSD. She was with a certified nurse assistant, or CNA, in her home when someone started pounding on the door.
“At one point, thank goodness, I did have a CNA with me, and someone was pounding on my door. And so we came running, not me running, but her running, through hall, and asking who is it? And the person was pounding like crazy, pounding, and I just… I did not react like a normal person did. I was very scared, I was on the side of the bed, I was telling her don’t look out the window, don’t say anything else. We ended up calling the police, the police came, checked the area, a week later I found out that it was just homeless person banging on doors. So I have a lot of anxiety over things like that.”
But it’s not just physical threats that set her off. Every time there’s another mass shooting in the news, that does it too.
“With all these other shootings that has happened since that time, people delay in telling me that these things have happened because they affect me… I don’t even know the word to say on how they affect me.
That level of unpredictability with her PTSD symptoms means that it’s especially hard when she’s denied treatment.
“I’ve gone a very long time without therapy. It was like catch-and-release in the first year and a half. I’d get therapy, I’d be happy, then I’d be denied. Then we’d have to fight, I’d get therapy, they would never honor the doctor’s orders, and I was seeing a doctor from workman’s comp.”
Eventually, Weber decided to get a lawyer to help her get the treatment she needed, and the benefits she’s entitled to.
For two years after the incident, Weber received what’s called temporary total disability. That’s income she gets while she’s unable to work.
She says San Bernardino County refused give her an increase in her temporary total disability rate she was entitled to according to a memorandum of understanding, or MOU, with her union. When the issue went to trial, the judge ruled in her favor.
Gary Kaplan, Weber’s lawyer, picks up the story from here.
“The county, with the knowledge of this collective bargaining agreement and knowing that they were required by law to increase the temporary total disability benefits for all of the people that fell within the category, didn’t do it. In Miss Weber’s case I wrote letters to the county and to their lawyers saying here’s the issue and here’s the collective bargaining agreement, you gotta give her a bump in her TD rate. They refused. So we were actually required to go to trial on the issue, believe it or not.”
Public records of Weber’s case obtained by KVCR show that the judge ruled in her favor, and ended up fining the county of San Bernardino an unknown amount. They ended up paying Weber the full rate.
For Kaplan, this is just another example of how the workers’ comp system is not set up in workers’ best interests.
“It’s not a system designed to provide treatment. It’s not. It’s a system designed to find a way to minimize medical treatment costs and maximize revenue to the carriers.”
Kaplan says utilization review, or UR, limits the amount of care that employers have to provide. He also says the process where utilization review decisions are reviewed and adjudicated, called independent medical or IMR, serves only to uphold UR decisions.
“So the bottom line is, they control your doctors, they control the UR process, and the IMR process is meaningless.”
Valerie Weber says her treatment has been going pretty well lately. She’s been seeing less denials, and even the modified approvals are more substantial.
“Less denials, and more approvals in the way that if the doctors asks for 24 visits, they’ll give 12 instead of before they’d only give six, you know. Or sometimes even, 18. So that’s a longer span that I can continue to go, then we can send another referral in, the doctor has to do that, and then they send it workers’ comp, and it’s either approved or denied. I’ve had more approvals for a longer length of time than I had had before.”
I asked Weber to respond to David Wert’s assertion that utilization review is in the patient’s best interest because it protects them from inappropriate treatment or things like overdosing. Weber tells me a story of how she was on antidepressants which were suddenly denied. If she hadn’t ended up paying for the medication out of pocket, she would’ve had to stop that medication cold-turkey.
“Once you’re on a psychotropic medication, you can’t just be taken off of it. That’s the time that you’ll commit suicide, or overdose, it’s those kinds of situations – again, I’m not a doctor – but I do know that you’re not allowed to stop cold-turkey. So, now what does the county have to say? How are you protecting me when you’re taking medication away that states, do not, do not, do not stop this medication at any time. You have to be weaned off that medication.”
Weber says she’d like to see legislation to change the way this system works.
“I’d like legislation to change, especially for catastrophic injuries. I’m not the only person that has been injured to this extent. Some are paraplegics and quads and things of that nature, and I think what the motto of workman’s comp is, is deny them until they go way, away, and a lot of people don’t have the stamina and will and maybe education that I have, and they fall through the cracks and it saddens me very much, because I’m one of the fortunate ones, you know, I was able to live and hopefully the rest of my life will not be totally impact in what has happened these two and a half years.”
There is one person who tried to change all this through legislation – and it didn’t exactly go as planned. Eloise Reyes is a State Assemblymember and former workers’ comp attorney whose district includes San Bernardino. As her first act of public office in 2016, she introduced a bill called AB44 that would have waived the utilization review process for victims of a domestic terror attack.
“As a workers comp attorney, I know how utilization review has been used and abused,” Reyes says. “And I think that our survivors' stories clearly showed that they were not getting the treatment they needed to get better. When the county said that their hands were tied because of the way utilization review was written, because of the way workers' comp laws were written, I knew that it had to be addressed.”
But when AB44 went to the Assembly Insurance Committee, the language on utilization review was unceremoniously removed from the bill. I asked Assemblymember Reyes to describe what happened.
“You want me to describe my heartbreak? That was such an important part of the bill, and when it went to the insurance committee, they gutted my bill and presented a bill that was completely different than what I had proposed.”
That gutting was presumably done by Assemblymember Tom Daly, the chair of the Insurance Committee. Daly wouldn’t comment to KVCR on why utilization review was taken out of the bill, but doing so removed its most important feature.
Instead of waiving utilization review, the new AB44 only required that a nurse case manager be assigned to employees who are injured on the job by an act of domestic terrorism. It passed the insurance committee, and then it passed the Assembly as a whole - Reyes voted yes.
But she still feels that the survivors deserve better than the delays and denials they’ve had to face.
“The truth is that it's unconscionable. We've heard this said many times, they were victims not only on December 2, but they were victimized over and over by the county, that they had given their life to as employees. That's, that was their family. They considered the county their family. And to have that kind of treatment denied was unconscionable.”
But there is another legislative body that could take action on this issue: the San Bernardino County Board of Supervisors. Supervisors Robert Lovingood, Janice Rutherford, Curt Hagman, and Josie Gonzales declined multiple requests for interviews on the subject.
Supervisor James Ramos was the only one willing to speak with KVCR.
However, the Supervisor declined to comment on whether or not he thinks the survivors have been well treated by the county’s workman comp system. He said that the issue has become too politicized.
“I don't really want to politicize what happened there as far as moving forward in those areas,” Ramos said.
But Ramos did say he has an open door policy with the survivors to address any concerns they might have.
“I've always had an open door policy with those that were there, I've always been to keep an open door policy for them. And again I'm here, I've been able to talk to many of those that are there, we continue to try to be that voice. You know, I'm not going to talk about, to either politicize or do these things - do they genuinely need to be remembered 365 days a year? Yes.
Valerie Weber, one of the most severely injured of the living survivors, confirmed that she did speak to Supervisor Ramos once over the phone. However, she also said she sent multiple emails to the Supervisor in 2016 that she says were ignored.
Now, more than two and a half years after the attack, Robert Fredericks is not optimistic that survivors will ever receive adequate care for their PTSD.
“We are now much too far out, over two years now, with nothing being done,” Fredericks says.
“And so one could wish, but my experience the last two years, I don’t think that we can be so optimistic and so we’re left with an unresolved tragedy.”
Which brings us back to the memorial. I asked Fredericks, if he could design the art installation commemorating the victims, what would it be?
“Well, I’m not an artist. But I think of the facets of this whole tragedy, from the husband and wife bursting into the building and spraying the room, people getting hit and falling to the ground. The person with the pulverized pelvis. The wife went through the room then and shot each individual, again individually. I think that would be one facet, one side, one face of a memorial. I could almost picture four quadrants to a memorial, that being one. The husband and wife. I mean it’s graphic, it’s gruesome, but it’s real. I think the second one would be the first responders. A fireman-paramedic on the scene, a law enforcement officer. The third side I think would be a person on a surgical table. With the surgical team around them, saving their lives. The fourth I think I think would be that you have the survivors, you know, in the aftermath of all this. You might have a person in a wheelchair, on the outside looking well and strong, but I think – and an artist could probably render this – looking vulnerable as well. Because this is enduring. There will be two generations that will see the memorial when it is done, there will be living people for the duration of that that are left behind.”