Thursday, August 28, 2014

Pain, MRIs and Disability

Another study sponsored by Liberty Mutual concludes that early magnetic resonance imaging for diagnosis of back pain leads to higher costs and poorer outcomes.

The study, published in the August issue of the medical journal Spine, showed that when back pain patients went through MRI scans within the first month after injury, they were between 18 to 55 times as likely as the reference group to receive more diagnostic and invasive procedures.

Glenn Pransky, a co-author of the study and director of the Liberty Mutual Center for Disability Research, said that that MRIs can put patients in a mindset of trying to find a specific problem in their back and then seeking to fix it.

“People get hung up on thinking, ‘Oh, I’ve got this ruptured disc. That must be the problem. I won’t be well until somebody fixes that ruptured disc,’” Pransky said.

As many of us know, herniated discs and other spinal "abnormalities" are actually quite common.

Pain is complex, and the cause of pain is often illusive.

In an Aug. 20 webinar from managed care company Paradigm Outcomes, two physicians pointed out that pain can come from many places.

"When you look at somebody’s pain, they have the pain sensation − there could be nerve pain, there could be soft tissue-muscle-tendon pain," said Steven Moskowitz, senior medical director of Paradigm’s pain program. "They could have pain because they’re deconditioned and out of shape and stiff, and so it hurts to be stiff and to move when you’re stiff. And then they can have the emotional components of catastrophizing and being fearful of activity.”
Bowzer's pain started bending over for his cigar.

In his most recent book, Living Abled and Healthy, Christopher Brigham, MD, no stranger to workers' compensation and lead editor to the AMA 6th Ed. Guide for Rating Permanent Disability, examines people that have had catastrophic injuries or who grew up "less than able" but overcame these difficulties, and compares to folks who can't seem to surmount such obstacles.

[Disclosure - Brigham is a friend and I contributed a small part to the book.]

Brigham argues that our mind-body connections are surprisingly strong and that people in general discount the effect our emotions, psychology, feelings, perceptions, affect our physical being.

"If we believe something is helping us we will likely feel better. If we believe something is hurting us we will likely feel worse. Our attitudes define who we are and the choices we make determine our destinies."

Robert Aurbach, an attorney, researcher and international work comp expert now consulting in Australia, has noted that neuroplasticity - the brain's ability to reorganize itself by forming new neural connections - can play a big role in one's perception of ability versus disability.

Essentially, continued "training" to be disabled, rather than abled, forms neural connections that reinforce negative associations with pain.

The extent to which early MRIs contribute to the perception and emotion of disability has yet to be fully quantified, but the Liberty Mutual study suggests that it is not insignificant.

According to a 2013 report from the Bureau of Labor Statistics, sprains, strains and tears made up 38% of work-related injuries in 2012, making those the most common source of claims. In that category, the back was the most-often injured body part, making up 36% of sprains, strains and tears.

Essentially that means that 1/6th of all work injury claims are comprised of back related pain issues. How many of those end up worse because of diagnosis and treatment fostered by early MRI findings that might have otherwise been adequately (and perhaps more effectively and efficiently) treated conservatively isn't known but I suspect it is considerable.

The authors of the Liberty Mutual study found that MRI use for lower back pain patients wasn’t distributed evenly across the U.S. and they hope to continue the study to determine whether certain states are more prone to improper use of the scans.

I think it would also be interesting and beneficial to correlate that study with data and information about disability rates; my guess is that we (the grand collective "we") make people more disabled than they otherwise would be in our zeal to use medical technology and attempt to find easy answers to complex problems, like pain and disability.


I'm taking tomorrow, Friday August 29, and of course Monday, September 1, off for the Labor Day weekend and will return on Tuesday September 2. Remember that without the labor of the people in this country there would be no need for workers' compensation.

Wednesday, August 27, 2014

Drug Testing En Masse Risky

A federal appellate court gave a pyric victory to an employer in Tennessee, remanding a case back to the trial level because the reasons for mass drug testing of its workforce might have a reasonable basis and not be violative of the Americans with Disabilities Act; that it was an issue for the jury and not the judge.

Dura Automotive Systems is a manufacturer of glass windows for cars, trucks, and busses. Its facility contains a variety of heavy equipment and active machinery, including high-temperature injection molds, presses, air powered tools, cutting machines, die casts, fork lifts, tow motors, hi-lo lifters, and portable cranes.

Between the end of 2006 and early 2007, the company claimed, workers at its Lawrenceburg, Tennessee plant experienced substantially more work-related accidents than Dura's other facilities. Several employees allegedly also tested positive for controlled substances after their accidents.

Dura said that Lawrenceburg police had alerted its local management of illicit drug activity taking place at the plant.

The company decided to implement a new substance-abuse policy, which appeared in the March 2007 revision of the employee handbook and a July 2007 document issued by the company’s human resources department.

Pursuant to this policy, Dura reserved the right to conduct drug tests on its employees, and employees were expressly prohibited from “being impaired by or under the influence” of alcohol, illegal drugs, prescription medications, or over-the-counter drugs, if the use of such drugs endangered others or affected their job performance.

In May 2007, Dura ordered a plant-wide drug screening of the Lawrenceburg facility’s more than 400 employees. Dura hired Freedom From Self to administer the drug tests to its workforce.

Dura instructed FFS to test for 12 substances—amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates,oxycodone, phencyclidine, and propoxyphene—some of which appear in prescription medications.

Velma Bates, Claudia Birdyshaw, Mark Long, John Toungett, Carolyn Wade, Richard White and Willarene Fisher had all worked for Dura at its Lawrenceburg plant.

Between them, Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher, had prescriptions for oxycodone, Cymbalta, Didrex, Lortrab, Soma, and Xanax. They claimed that their use of these medications was what yielded positive results on the FFS drug test.

Dura placed all workers who tested positive on a 30-day leave of absence and instructed them to inform FFS if they were taking any prescription medications that contained the prohibited drug compounds.

An FFS employee then identified which of the medications carried a warning from the manufacturer for users not to operate dangerous machinery while taking the drug. FFS relayed this information to Dura, which informed the employees taking the medications that they would be terminated if they continued to use the drugs. However, if the employee tested negative after a second drug test, Dura said the worker would be allowed to return to work.

Wade and Fisher complied with the requirement and Dura reinstated them to their positions. But the remaining plaintiffs continued to take their medications and Dura fired them after they again tested positive.

After the drug testing, Dura claimed, the accident rate and amount of property damage at the Lawrenceburg facility decreased.

Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher filed a complaint against Dura in May 2008 alleging the company had violated the ADA by subjecting them to an unlawful drug screening and then terminating them on the basis of their disabilities, or perceived disabilities.

There is some procedural history where the case goes back and forth between the trial court and the appellate court to resolve issues such as standing to sue, reclassification under different portions of the ADA and other issues.

Ultimately the trial judge found that Dura's drug testing of its workforce qualified as a medical examination or disability inquiry, in violation of Section 12112(d)(4), as a matter of law. The jury then returned a verdict collectively awarding the plaintiffs over $870,000 in damages.

On appeal, Dura argued that its drug testing had screened for substances that were "either illegal or, even if legally prescribed and used, may impair an individual’s mental alertness or motor skills" thus constituting an unreasonable business risk given the busy factory and heavy machinery, thus the drug testing was "job-related and consistent with business necessity."

The plaintiffs said that Dura's "plea for safety inside the front door of the plant," was a merely a pretense for conducting a drug test protocol that "was designed to seek information on possible weaknesses in employees." Thus, they said, the "substance screen as practiced by Dura Automotive Systems was a medical exam."

The 6th Circuit said the issue was not so clear-cut and that the issue of whether Dura violated the ADA should have gone to the jury and could not be found as a matter of law.

"Much depends on Dura’s credibility," the court said, stating it was possible a jury could see Dura’s explanation as a pretext, or find that the drug test had targeted information about employees' physical or mental health, regardless of Dura’s stated intent.

But it was not a matter of law that Dura violated the ADA.

The case is Bates et al. v. Dura Automotive Systems, No. 11-6088.

Tuesday, August 26, 2014

The Word Didn't Get There

As you know I've been on a kick lately about professionalism in the industry and recognizing the good we do.

Then I get an email from a former claims professional turned auditor that completely deflates my enthusiasm and makes me angry.

The emailer has been in the process of auditing some cases on behalf of an insurance carrier whose cases are administered by a Third Party Administrator.

This is a pretty typical arrangement. Carriers are very good at "writing the paper" and all the processes involved from brokerage administration to determining the risk (underwriting) and marketing. Then the job of actually handling the claims gets outsourced to specialized companies: TPAs.

The auditor writes she's appalled; outraged at the lack of any sense of urgency, the lack of responsiveness to defense attorneys, not to mention applicant's attorneys.

She's astounded at the failure to pay temporary total disability, the failure to advance permanent disability a year after the Agreed Medical Examiner's findings are undisputed to a person who's getting $500.00 a month from Social Security.

She's offended that the TPA lets the defense attorneys handle the files, lets cases linger until a pinky finger from 2008 ends up turning into hand, arm, neck, back, internal, sleep, psyche, etc., etc. - on a case that was really ready to settle no less than 4 years ago. 
Yes Bowzer, it DOES stink...

She asks, "Why would these cases still be open (excluding those with obvious complex if not catastrophic issues) when the file reflects many opportunities for settlement that slipped away?"

Of course she also notes that the TPA, with its own Utilization Review and Bill Review service company has made as much as $50,000.00 in bill review charges on a single file.

$50,000 reviewing bills of it's own Medical Provider Network physicians and vendors.

MPNs have established fees by contract. There is no need, no reason, nothing to justify reviewing and then discounting your own provider's bills.

In the meantime, non-MPN providers, who more often than not shouldn't even be paid (how about an objection letter - a completely foreign concept it seems) will be paid at fee schedule or some percentage of the same at the end of a case where the claim had been entirely denied for lack of compensability.

It appears after all that it's not just the injured workers, their attorneys, and their doctors responsible for the high costs associated with California work comp, but perhaps to a greater extent, those foxes left to watch the hen house, sucking out undeserved, perhaps illegal, and definitely unethical, revenue from the system while nobody even seems to notice.

Or care...

She says, and I agree, that something's wrong with this picture, when there are $65,000.00 in expenses between defense attorney costs and bill review, etc., on a case where the applicant got a total of $26,000 in TD and PD via a Compromise and Release of the case.

She asks, "What do you think?"

So here's my answer - I think this is bullshit.

These are the kind of actions that take faith out of the system, creates mistrust, harms people, destroys lives.

Because some assholes have can't regulate their own greed.

And what is the penalty to the TPA that allows this misconduct and lapse in ethics and morals? Maybe some penalties, but probably not enough to quell this lack of professionalism and bad behavior. And if they lose the contract with that carrier, there will be others...

If we're going to promote the good in the industry, then we also need to expose the bad.

But here's the tough part - anyone that steps up and calls the spade gets blacklisted and ostracized, and will never work in this industry again, or perhaps anywhere.

Those seeking to do the good job and do the right thing end up crushed by the same system that destroys the lives of those for which it was created.

So here's my challenge to the leaders of those companies, the TPAs, the carriers, and every single vendor out there: create and enforce a "no consequences" forum. Names, dates and actions should be exposed with no consequence to the whistle-blower.

If YOU as an industry leader are truly about maintaining the highest standards, promoting work comp careers, seeking the best people, then there must be a mechanism for reporting on ourselves to shed the unethical and immoral.

Our failures will be the industry's undoing. 

I'm all for celebrating the good that we do.

And frankly we need to castigate those that foster ill upon others.

Monday, August 25, 2014

The Best We Can

Does this sound familiar?

“The rules and regulations that govern work with the elderly are extensive. Basically this equates to an extraordinary amount of paperwork. Social workers typically enjoy working with clients and their families, but almost everything they do involves a form.”

The quote is from Bev Guerin, a social worker who deals with elder care in an article about social worker stress.

I am continually amazed when I visit my mom at her memory care facility with the daily work that goes on and the social network that is part of life there. Memory care residents, particularly the elder, are a challenge because the mental processes don't work quite right, and combined with the physical frailty of age, accomplishing simple tasks becomes extraordinarily difficult.

Some Alzheimer's patients can be combative, and I've witnessed some care givers hit, yelled at, and challenged. Heck, even I have become the target of some poor person who just doesn't have the mental capability to regulate their own behavior.

I have made friends with many of the families at the care center, and many have shared their stories with me.

Imagine your husband, who at one point was a vibrant, intelligent, community leader and provider, no longer able to care for himself and unable to comprehend the world around him.

I've seen the toll on his wife who visits every day, trying to make sense of his illness; remembering what he was like, and helping to feed him, guide him, and to do some basic things for himself.

She tells me that the doctors have said he's in his own world - it looks painful and frustrating but he doesn't comprehend that.
Mom long before memory issues.

In workers' compensation we deal with many of the same issues. We have people who get placed into unfortunate situations because of the luck of the draw, and it is our job to make things better for them.

The front line workers in the equation have a tricky balancing act in making sure that benefits are delivered timely, accurately and in compliance with legal and regulatory mandates, and at the same time holding out compassion and understanding for the recipients.

It doesn't always work.

There are some workers' compensation "caregivers" that either lack adequate training, or are following rules that aren't applicable to a specific situation, or for some reason have developed a distaste for the injured worker and allow passive-aggressive behavior to drive the claim.

There are those that don't understand that workers' compensation is not a "full service" system, that there are restrictions, complications, deviations, and yes, many, many forms.

I'm reminded of this fact every once in a while when I get an inquiry from an injured worker who stumbles upon my blog or WorkCompCentral seeking answers. These are typically desperate people who have gotten wrapped up in their own cases.

Sometimes expectations of what the workers' compensation system is all about are unrealistic, and on the other hand sometimes the system doesn't meet sensible assumptions.

“There is nothing more stressful to a social worker than handling the family’s unrealistic expectations,” says Guerin. “Sometimes family members are so full of hope that they refuse to believe in the reality that their loved one is getting older.”

I think that sometimes workers' compensation parties (whether injured worker, employer, claim adjuster, etc.) refuse to believe in the reality that this is not a justice system. Some injured workers seek rectitude and want the workers' compensation system to punish the employer or the insurance carrier. Some adjusters seek to vilify a claimant, or an employer seeks to make an example.

I'm not trying to be smug, indifferent to these folks' situations, or insensitive - this is just a reality check: the workers' compensation dispute resolution system is ONLY about whether or not there was a work injury, and whether or not medical treatment is being delivered and indemnity paid within the boundaries of the law.

There are some elements of "fault" inherent in some justiciable issues, such as serious and willful misconduct or unlawful discrimination, but for the most part these are ancillary to the main topics of inquiry.

I understand that some want justice and due process. Some seek redress for the harm caused them. Some want to punish those perceived as responsible for the bad times.

I get that.

There are plenty of cases too where benefits have not been delivered to the injured worker appropriately, if at all. There are plenty of cases where the pennywise decision is actually a pound-foolish one.

And there are plenty of cases where the carrier or employer seems to taunt the injured worker with investigations and delays, or trying to put blame where none exists in order to escape liability.

What does all this have to do with Mom's memory care facility and care givers?

There are some at the residence that appear rather normal, and they behave nearly normal. It is only upon inquisition that you can see that something isn't quite right.

And there are others that are obviously quite afflicted with their Alzheimer's or other memory disease. Even out of that population there are very few that exhibit any challenging behavior. Most of the time these folks just need some assistance.

We can't right all the wrongs in the system. It's too big. It's too broad. There are too many cases.

We can do our jobs as best we can and we should have reality checks every once in a while.

Take a day and wear some other shoes. For example, claims folks should take a day to go to a workers' compensation court or hearing room and just observe what goes on; attorneys should take a day to visit a claims administration office and see how things get done.

It may seem trite, but education by observation is very powerful. You'll see that most everyone appears and acts normally. There are going to be some that seem to deviate but are no harm.

And there will be some that need much more attention and help than the system can deliver. We just have to help them the best we can.

Friday, August 22, 2014

Without Comp

I'll admit that I don't know much about the federal Jones Act that regulates injuries to maritime workers, except that negligence is an issue in such cases, as opposed to regular workers' compensation which is considered "no fault."

But a case pending in the U.S. 5th Circuit Court of Appeals gives us a glimpse into what the rest of the workers' compensation world would look like if there really were no workers' compensation - at least relative to causation and liability.

James Johnson had contacted PPI Technology Services in early 2010 to inquire about a position as a drilling supervisor. Ultimately, Johnson landed a $300,000-per-year job aboard the Transocean rig, High Island VII off the shore of Nigeria.

Johnson started his work in Nigeria in March 2010. PPI allegedly arranged and paid for his travel.

Johnson claimed that he was under the constant supervision and control of PPI employees while aboard the rig. He also had an intra-company email address and frequent conversations with Ron Thomas, PPI's president, about the drilling plans for the rig.

In November 2010, a group of Nigerian gunmen paddled out to the platform from the nearby coastline and gained access to the rig via stairs that had been left in the lowered position.
High Island VII rig.

During the assault, Johnson was shot in the knee and another colleague was wounded in the foot. The gunmen then took a group of workers and held them hostage for 10 days.

Nigeria had been, and still is, a volatile region where disputes over the country's oil wealth are violently contested and during Johnson's tenure the High Island VII rig had been the target of several assaults by militants. Worker kidnappings remain a danger there.

Transocean sold High Island VII and 37 other shallow water rigs to Shelf Drilling Holdings in 2012 for a total purchase price of $1.05 billion.

As a result of his gun-shot injury, Johnson spent five months in a London hospital. He has since undergone more than a dozen surgeries including two knee replacements, and he now has permanent limited mobility.

Johnson filed suit against PPI in 2011, asserting that the company was his employer for purposes of the Jones Act and is liable for damages to him based on its failure to provide him with a safe place to work. He further sought maintenance and cure benefits from PPI under maritime law.

PPI sought summary judgment dismissing his claims, asserting it was not Johnson's employer as a matter of law.

U.S. District Judge Sarah Vance disagreed, finding "myriad factual issues concerning Johnson’s relationship with PPI that make summary judgment on this record unwarranted."

The case was later transferred from Vance to Judge Carl Barbier. PPI renewed its summary judgment motion, and Barbier granted it.

Barbier also presided over Johnson's claims against Global Santa Fe Offshore Services.

Johnson had alleged GSF was vicariously liable to him under the Jones Act and general maritime law for the negligence of its employees in failing to properly secure the rig against an attack.

According to Johnson, Tim Ashley, the rig offshore installation manager, and Danny Ball, the barge master, were the individuals responsible for security aboard the rig.

GSF allegedly issued paychecks and W-2s to both Ashley and Ball. Johnson argued that this made GSF their employer. Since Ashley and Ball had allowed the rig hands to leave the rig's stairs in a lowered position, thereby giving the kidnappers a means of access, Johnson argued that GSF was liable for their negligence under the doctrine of respondent superior.

GSF countered that it was not the employer of Ashley and Ball, but simply a "paymaster" of the rig hands.

Barbier was persuaded and granted summary judgment dismissing GSF as a defendant.

Johnson appealed both of Barbier's rulings and the case is pending in the 5th Circuit.

Regular workers' compensation cases sometimes involve disputes about who is the employer, so this case isn't really all that different in that regard.

But I think it's interesting to us in the regular work comp field to see what life would be like if there were no "no fault" provision in our laws - an additional element of dispute to be resolved adds one more very big layer to the liability picture.

And that disputes go before a jury is what life was like before the administrative proceedings of nearly all work comp litigation now.

Perhaps to a maritime/Jones Act regular, this set of facts and this case isn't all that interesting or important, but those of us in the traditional work comp field should remind employers and workers that this is what life is like without comp's attempt to deliver quick and expedient benefits: four years just to find out who the correct employer is, and still there is the need to prove negligence before any benefit liability is due...

To read Johnson's petition in the PPI case, click here.

To read Johnson's petition in the GSF case, click here.

Thursday, August 21, 2014

The Judicial Officer

Yesterday at the Workers' Compensation Institute's Annual Conference in Orlando, FL I had the privilege of addressing, along with Chief Judge of the Florida system, Hon. David Langham, workers' compensation judges from around the country.

These judges traveled to Orlando to get continuing education provided by the National Workers' Compensation Judiciary College. Perhaps some of them needed continuing education credits, perhaps some were there for the networking, but it was clear that all of them were there to further their judicial skills.

The presentation before ours was presented by the Hon. Roger Williams of the Virginia Workers' Compensation Commission, "Judicial Roles."

Not that our session was boring (Social Media Roundtable) but the presentation on Judicial Roles was fascinating to me because I'm not a judicial officer and quite frankly don't appreciate the task that workers' compensation judges face day in and day out.

Now I do.

Workers' compensation judges ("WCJs" from here on out to save my hands from some sort of repetitive injury - I've had enough workers' compensation troubles this year!) have, in my opinion, a tougher ethical dilemma than the standard municipal or superior court judge because the job is, essentially, to get ALL the facts necessary to make a determination that fits within the confines of the law, with the added difficulty of ensuring that a claimant gets all that the law entitles him or her to.

The liberality of evidentiary rules in administrative law proceedings makes the job so much more difficult than the disciplined and strict rules of civil or criminal procedure because the WCJ has to make that much more of a decision as to whether or not to allow proffered evidence, or assist in the foundation of evidence. It's not as cut and dried as in other law.

As a consequence WCJs find themselves with very real, very difficult, ethical and professional decisions to make and usually from the bench and without much time to reflect or research.

For instance, much of the discussion in the Judicial Roles session was about claimants who are in propria persona ("in pro per" or representing themselves for non-lawyers) - just how far does a judge go to ensure that the in pro per claimant has introduced into evidence sufficient material (if at all) to support his or her position on an issue?

And imagine the constraint a WCJ must exercise to ensure that his or her appearance of impartiality stays intact when confronted with a litigant who just "doesn't get it."

The WCJs primary role is to be the primary arbiter of the facts - time and again you can read an appellate decision that affirms that the WCJ is often the sole determinant of what the facts really are because the WCJ is on the front lines able to observe and analyze the credibility of witnesses and controls what comes in to evidence for consideration.

But more often than not (by quite a bit) the in pro per claimant is at a distinct disadvantage because he or she does not have legal training, has not been through countless trials to practice oral skills, is not accomplished at determining what is or isn't relevant, and more importantly is way too connected to the case to make objective decisions, particularly during the stress of his or her own trial.

How far does the WCJ go in such situations to suggest or help out the in pro per claimant to ensure that the record is complete and that there is sufficient evidence before the WCJ to permit a reasoned analysis and determination of the facts?

Not surprisingly the answer is very complex. There are differences in state rules and laws, there are differences in personalities and skills, there are differences in perspectives and perceptions; all of these combine to create dizzyingly difficult situations for the adjudicator.

To make matters more difficult, WCJs have much more limited resources than their counterparts in municipal and superior courts. Their hearing rooms are typically spartan, their budgets subject to indiscriminate trimming, and often they must do clerical work that takes time away from their judcial functions.

And don't forget that WCJs are humans too subject to all of the human frailties that afflict mankind, from personal problems to illnesses.

Though exposed to only a couple of hours of the issues that confront WCJs I came away with a new found appreciation for the difficult job they do.

Next time you see a WCJ tell them "thank you" for the hard work they do, for the difficult job they have, for doing the best they can do with the resources they have.

And if they're a California WCJ, nominate them for a Comp Laude(tm) Award.

Wednesday, August 20, 2014

Cocktail Party Conversation

Yesterday I wrote about Recognizing Good. It's no mystery that much of what we "talk" about in workers' compensation has negative attributes: late payments, penalties, delayed or denied treatment, increasing rates, fraud, etc.

I'm certainly not going to deny that The Media contributes to this with daily news on these topics.

We all have opinions on what's wrong with workers' compensation. I get email, comments to blog posts and other communications, from injured workers and professionals alike, that decry all the various negative attributes of the system.

While many of these pessimistic observations have some validity, and while folks will disagree with each other on many of these points, the one thing that keeps coming back to me, regardless of where one stands on any particular issue, is that the vast majority of people working within, or serving, the workers' compensation industry really do care about "the system" and want to ensure it works as well as it can given the constrictions and limitations we face.

Most of us do not have the power or ability to make the radical, dynamic changes we think should be implemented.

Most of us don't understand the implications of change - how one small element in the law can affect many other elements up or down stream, or the unintended consequences that may follow.
"How about that Padgett case?"

Some at least do have the power to shape the conversation though - and the recent opinion by Florida Circuit Judge Cuneo in the Padgett case is doing that.

Legally the Padgett case is inconsequential - it is not binding on anyone other than the parties to that case, in particular the State of Florida.

And the likelihood of the Florida State Attorney General, who represents the state, appealing the ruling is very, very low - why invite appellate review unnecessarily and potentially disrupt the status quo?

After all, messing with the workers' compensation system is really a legislative function.

But, as was observed by many at this week’s Workers’ Compensation Institute Educational Conference in Orlando, FL, the fact that this ruling came out has opened up a big discussion, and not just in Florida but around the nation.

The top headline when I Google "Padgett unconstitutional workers' compensation" is the Miami Herald proclaiming, "Injured employees cheated by workers’ comp law, Miami-Dade judge says."

One legal journalist says that the Padgett case "outlines exactly how workers in the State of Florida have been slowly boiled to death."

Those are pretty incendiary words.

But that's okay because workers' compensation is getting attention by the public.

People out in the "real" world frankly don't give a rat's arse about workers' compensation until it affects them, and then it's too late - they become subject to the system and they either learn to get through it, or they have a difficult time and become scarred (not necessarily physically) for life.

The Padgett case, and a rumor that there are up to four other such cases pending in other circuit courts in Florida, is drawing public attention to our industry and we have the ability to use that attention to show what workers' compensation is about.

You know, and I know, but much of the public doesn't know, that workers' compensation does work for most people most of the time. That's why, in general, 20 percent of all cases generate 80 percent of all expense - because most of the time the system works.

And for those 20 percenters, some are "big" cases where really bad things happened and others are just situations where the system doesn't work very well. 

In some cases the law isn't flexible enough to "bend" to conform to those fact patterns. Some cases involve victims of bad things happening while in the system. And there are some who frankly bring it upon themselves.

But through it all, the vast majority of people that work in the system, that try to make things happen for the betterment of society and mankind, do so with the conviction that they are contributing to the bigger picture and doing the "right thing."

Sometimes I succumb to the negative pressure and frankly get down on myself for being a part of "the system." Sometimes it's difficult to rise above the bad noise and see that in the grand scheme of life we really do try to make things better.

So much of a workers' compensation cases outcome is dependent on personal factors: with the injured worker, with the employer, the claim adjuster, attorney, doctor and whomever else may touch that case.

When I talk to my colleagues, while we may disagree on how to accomplish the goal of ensuring work comp DOES work, the pervasive sentiment is all about "doing the right thing."

I still believe that workers' compensation is vitally important to an overall healthy economy. Sometimes it fails and we have discussions on why, who, what, how, etc.

Now the Padgett case gives US the opportunity to have conversations with the public about workers' compensation, and what it means.

Maybe Padgett isn't that important legally, but I think it carries a lot of conversational weight in and outside the industry and we should not discount that. The case empowers all of us to debate, to converse, to talk and listen.

Don't be threatened, and don't start celebrating, but do start talking. There's nothing wrong with outsiders hearing about workers' compensation. If nothing more, Padgett makes work comp great cocktail party conversation.