Friday, October 24, 2014

I'm Dual Purposing!

I'm in Austin, TX, for the next couple of days.

My Aunt Gail died late last week after a protracted fight with cancer, so the extended family is here to both commiserate and celebrate - last night we drank some wine, ate some pasta, and did lots of hugging.

Today we'll attend services, probably shed some tears, and then drink more wine, eat more pasta, and do more hugging.

It's all so Italian...

In between the family activities I'll be meeting with some Texas workers' compensation industry people - Austin after all is headquarters to the state's Division of Workers' Compensation.

Which brings up the dual purpose doctrine - if I were to get injured or succumb to a disease while in Austin, there's a chance it could be "industrial" and covered by workers' compensation, though frankly I'm not sure I would want that to occur since I have good general health insurance and am largely in control of my own salary...

The Ohio Supreme Court yesterday flat out said that doctrine has no place in that state's workers' compensation system.

This is kind of big news in Ohio - while the court had never explicitly rejected the doctrine, it had never embraced it either.

The closest the Ohio Supreme Court ever came to addressing the dual-purpose was in a 1951 case called Cardwell v. Industrial Commission.
What if this were ME on the way to the airport yesterday?
The worker in that case was hit by a train while heading back to work, after running a personal errand. Ohio's 2nd District Court of Appeal had found the accident to be compensable, relying on the dual-purpose doctrine in reaching that conclusion.

The Ohio Supreme Court reversed the 2nd DCA, saying there was no causal relationship between the worker's job and the accident.

Last year, the 5th District Court of Appeals ruled in Friebel v. Visiting Nurse Association of Mid Ohio that because the injured worker had "dual intent" when the accident occurred that it was covered by workers' compensation.

Tamara Friebel, a home health care nurse, regularly used her car to drive from her home to see patients. She was paid for her mileage and her time, including transportation time, when she handled calls on weekends.

On Saturday, Jan. 22, 2011, Friebel promised her kids she'd drop them off at the Richland Mall before going to see her first patient of the day. The mall was on the way to the patient's house anyway.

While Friebel's car was stopped at a traffic light before the mall's entrance, another vehicle struck it from behind.

Friebel filed a workers' compensation claim based on her injuries from this accident. Her employer, the Visiting Nurse Association of Mid-Ohio, disputed her claim on the basis that Friebel was outside the scope of her employment when the car accident occurred.

An administrator for the Ohio Bureau of Workers' Compensation allowed Friebel's claim for a neck sprain. VNA appealed, and a district hearing officer for the Industrial Commission vacated the administrator's decision on the basis that Friebel had not yet begun her employment duties at the patient's house when she was injured.

A staff hearing officer then vacated that ruling and allowed Friebel's claim since she was paid both mileage and for her travel time from her home to the first patient's home.

After the Industrial Commission declined VNA's request for further reconsideration, VNA sought judicial review in the Richland County Court of Common Pleas.

A trial judge granted summary judgment in favor of VNA.

The judge reasoned that since there was no dispute that Friebel was on a personal errand at the time she was injured that there was no industrial causation.

The judge also opined that it was "immaterial" that Friebel was paid for travel time and mileage on the weekends because at the time of the injury, Friebel was traveling to the mall and not to work.

A divided 5th DCA panel then reversed the judge, the majority finding that Friebel had "dual-intentions" when she left home on the day of her accident.

Since Friebel had not yet made the turn into the mall, which would have deviated from the route to her patient's home before her accident, it could not be said she was on a personal errand when the crash occurred.

VNA petitioned the Supreme Court for review last December, and yesterday the court ruled in favor of VNA.

Though a strong dissent argued that the 5th DCA made a very basic AOE/COE analysis, the majority was worried that the lower court's assertion of a "dual intent" was changing the law in Ohio.

Justices Judith Ann Lanzinger, Sharon L. Kennedy and Judith L. French said they thought the doctrine influenced the appellate court's analysis. Thus, they said it was appropriate for the court to provide guidance on "the correct standards for addressing similar claims."

The Supreme Court majority said it was an "impossibility" to have a "one-size-fits-all test" for when an injury is compensable, and so a test like the dual-intent or dual-purpose doctrine "does not have a place in analyzing workers' compensation claims in Ohio."

Even when work creates the necessity for travel and the travel includes a personal purpose, the majority explained, the fact remains that "workers' compensation benefits are available only for an injury that occurs in the course of and arising out of the employment."

Sigh - trim the fat off the bone: it's all about who pays...

I'm not in Ohio, and my employment contract is in California; still, I'm not worried about whether or not I would be covered by workers' compensation if I have an injury in Austin - I'm lucky to be able to have family, industry, colleagues and a job in both Texas and California even if I just happen to be living life...

Thursday, October 23, 2014

Texas Plan Based Audit

Texas does a lot of things differently, and certainly when it comes to work injury protection the state is alone in a number of areas.

Texas was one of the first to introduce an Independent Medical Review process to its system, an idea that was borrowed by California. Texas' IMR system differs from California's in significant respects such as appealability and the number of IMR vendors, so they aren't really comparable. And even though there is an appeal process, a Texas IMR is, from my understanding, very rarely appealed because the system is stable and Texas practitioners have learned that challenging IMR is essentially fruitless.

Though there may be other states with similar programs, another thing that Texas does that other states might look at is auditing of peer review medical reporting. These peer reviews are admissible in workers' compensation hearings.

According to the audit proposal:

"A peer reviewer is a health care provider who performs an administrative review at the insurance carrier’s request without a physical examination of the injured employee. The peer reviewer must not have any known conflicts of interest with the injured employee or the health care provider who has proposed or rendered any health care being reviewed."  

They are used for extent-of-injury and medical-necessity disputes and are to ensure that the medical evidence meets standards, and/or to provide a level of independence and credibility to the evidence presented in a case.

The division audits these medical-necessity dispute peer reviews, and is now proposing to audit extent-of-injury reviews.

The audits are "plan-based"; they're governed by the division’s Medical Quality Review Annual Audit Plan. That includes among its review categories, “insurance carriers/peer review doctors – potentially includes the quality of peer review reports and the appropriateness of actions taken based on peer review reports.”

Peer-review reports are performed by doctors selected by the division. Only peer review reports that are entered into a hearings proceeding are subject to an audit.

The plan-based audit draft for peer reviews lists four purposes:
  • Promoting the delivery of quality health care in a cost-effective manner.
  • Ensure that peer reviewers adhere to requirements when issuing peer review reports for extent-of-injury and/or medical-necessity issues.
  • Ensure peer reviewers review and maintain records when performing peer review.
  • Ensure that peer reviewers hold the appropriate credentials when performing a review.

Peer-review requirements are governed by Rule 180.28 in Title 28, part 2, subchapter B of the Texas Administrative Code, which were adopted as part of Texas' big reform nearly 10 years ago, HB 7.

The division, in its proposed Peer Review Plan-Based Audit rules, would resolve any conflicts between the Medical Quality Review Process and the plan-based audit in favor of the audit; i.e. the audit would trump the MQRP.

I find that provision odd - how can a physician in a peer review process rely on the MQRP then? - particularly since Division Medical Advisor David Davis said in a memo to system participants that the plan-based audit “sets the scope, methodology, selection criteria and program area responsibilities as laid out in the Medical Quality Review Process.”

But these new rules are open for discussion and are still pending final edit. System participants have until 5 p.m. (CST) on Nov. 4 to submit suggestions for the Plan-Based Audit to

Wednesday, October 22, 2014

Occupational Codes and Ratings

One of the concepts that got me through law school was that there was always a rule, then there were exceptions to the rule.

And of course, being the academic study of law, there were always exceptions to the exceptions to the rule - but when one really examined it these exceptions to the exceptions were really just the basic rule stated another way.

So I remembered this basic concept and that minimized the amount of rote memorization I would need to get past a test - usually I didn't even need to know the name of the exception to the exception, but just needed to state the rule properly given the fact pattern presented.

One of those exceptions to the exception of the rule in workers' compensation is the "dual occupation doctrine."

The "dual occupation doctrine" says that when a worker's duties embrace two forms of occupation, the worker is entitled to be rated for the occupation that carries the highest percentage of disability. This comes up when the job classifications in the permanent disability rating schedule do not neatly match the actual duties performed by the injured worker.

The First District Court of Appeal in California is going to tackle this doctrine as applied to the modern work place where a manager was required, as part of his normal work activities, to use a compute keyboard on a regular basis, which in his case would raise his permanent disability rating if he were in an occupational code that took into account high keyboarding.

Pope Powell had been a fleet operations manager for the San Francisco Public Utilities Commission, making between $108,000 to $115,000 per year. He was responsible for the maintenance and fueling of a fleet of 1,250 vehicles, managing a $10 million budget and supervising five employees.

Powell said he relied on a computer, a mouse, a "10-key" tool for budgeting and keeping track of expenditures in his division and a calculator to get his job done.

He testified that he regularly spent 80% to 85% of his time on his computer while at work, spending at least five hours a day hunched over his terminal.
Boscoe doesn't even have one occupation, let alone a dual occupation....

In September 2011, his employer accepted his claim for an industrial injury to his arms and shoulders from his extensive computer use.

A workers' compensation judge determined that his injuries had caused him a permanent disability. The judge rated Powell's disability using the occupational variant provided by the 2005 Schedule for Rating Permanent Disabilities for occupational group 212.

That classification applies to "mostly professional and medical occupations," involving "work predominantly performed indoors."

Using the occupational variant for this group, the judge arrived at a disability rating of 62% for Powell.

Powell sought reconsideration of the judge's ruling by the Workers' Compensation Appeals Board, arguing that his rating should have been based on the variant for occupational group 112.

The Permanent Disability Rating Schedule describes occupational group 112 as "mostly clerical occupations," involving the "highest demand for use of keyboard (and) prolonged sitting." It lists "billing clerk, computer keyboard operator, (and) secretary" as examples of occupations falling within this category.

The WCJ recommended that the WCAB deny reconsideration. While the judge acknowledged that Powell's job duties "undoubtedly necessitates extensive keyboarding," the judge reasoned that this "clerical function is not at the core of his job."
A divided WCAB panel agreed.

The commissioners reasoned that Powell's heavy computer use simply "reflects the transition in the modem office environment," and that occupation code 212 contemplates use of a computer by a professional or managerial employee.

Commissioner Marguerite Sweeney dissented, stating Powell "had two different sets of job duties that were both integral to his job; his managerial duties and his clerical duties" and thus the higher rating occupational code should be used.

Sweeney also speculated that the WCAB will see more contests of this nature as the work environment for most jobs shifts to reflect the Information Age, where even some of the most basic job functions involve considerable computer usage.

The 1st DCA accepted the case last week for review.

The long standing rule in California is that, just like in assessing employer premiums, the highest rating job functions are to be used in determining final value, and I don't see this case as any different - the "dual occupation rule" is just the regular rule restated to embrace an exception to the exception...

For instance, if a WorkCompCentral inside sales person actually went on the road to visit customers on a regular basis, even though that was not his principal mode of sales work, he would be rated for premium purposes as an outside sales person, reflecting the higher risk of travel.

Likewise, that same employee should, for permanent disability rating purposes, receive the benefit of such classification if the injury sustained warranted a different rating for inside sales versus outside sales, particularly if the job required functions that are a regular part of the job but aren't reflected in the category description in the rating manual for a particular occupation.

It may be time soon (again) for the Division of Workers' Compensation to review the rating schedule (which under prior law was supposed to have been updated regularly, but never was, and that requirement was repealed with SB 863) to make sure that all job classifications reflect the New Economy and Information Age.

Tuesday, October 21, 2014

No On 46

A hotly contested ballot initiative in California would raise the limit of non-economic damages to victims of medical malpractice and impose randomized drug testing on physicians.

Proposition 46, if passed, would increase non-economic damages from $250,000, a level that has been stagnant for nearly 40 years, to over $1 million.

The recent spate of cases about spinal hardware counterfeiting in workers' compensation cases could be the dream poster for the measure.

Complaints filed Friday in the Los Angeles Superior Court bring to 32 the number of individual cases filed by patients who allege their surgeons accepted kickbacks to use counterfeit medical devices as part of a widespread conspiracy to exploit the spinal hardware passthrough regulation.

But don't trust ballot measures.
The plaintiff's lawyers say there are hundreds more in the wings.

Billing the full cost allowed for FDA approved spinal hardware, but using counterfeit hardware, the perpetrators were able to make excessive profits while putting patients at huge medical and health risk.

The lawsuits name individual surgeons, hospitals, manufacturers and their owners, and others that were allegedly involved in a complex conspiracy of kickbacks, billing and medical fraud.

Labor Code Section 5318, repealed completely at the start of 2014, required employers and insurers to pay 100% of a hospital's documented cost for hardware, plus $250. Attempts to close that loophole in the past through legislation met with a strong and well funded (if not outright bribery) lobby from those involved.

According to complaints, the defendant hospitals, Tri-City in Hawaiian Gardens and Pacific Hospital of Long Beach and others, used "sham" distributor companies to "fraudulently" inflate their reported actual costs for purchasing hardware and passed these invoices along to carriers. At the same time, doctors accepted kickbacks from hospitals where they scheduled fusions, according to complaints, and the hospitals turned a blind eye towards the counterfeit hardware because surgical revenue was so good.

These complaints are outfall from earlier criminal actions against Michael Drobot and others, which resulted in Drobot's plea agreement with prosecutors to be a witness against others, including the bribed politicians.

Because these complaints allege fraud, an intentional tort, punitive damages may be available outside the medical malpractice cap against the physicians, hospitals and others in the supply chain.

But intention is difficult to prove, and according to plaintiff's lawyer in one of the cases, one of the physicians started noting in charts that he informed patients that the hardware was "experimental" and not FDA approved - this creates a spitting match between patient and physician where credibility to a jury is going to determine whether "intent" was proven.

Bringing this back to Proposition 46 - the simple fact is that the cap on non-economic damages is not inflation adjusted, and in my opinion has become inadequate as a deterrent to bad medicine.

But at the same time, the measure's imposition of random drug testing of physicians does nothing but increase the cost of medicine, and won't do much if anything towards patient safety.

And indeed, there is nothing that would prevent criminals from perpetrating wide spread conspiracies to further their financial gain at the expense of unwitting patients, as alleged in the counterfeit spinal hardware suits.

So while I believe that the cap on non-economic damages in medical malpractice should be examined and elevated, I'm voting "no" on Proposition 46.

Monday, October 20, 2014

No Chief's Disease Here

The California Highway Patrol, criticized in the past for exploitative "Chief's Disease," has a program in place that demonstrates that workers' compensation can accomplish amazing things when all of the right motivations are in all of the right places and everyone does their job.

Last week, CBS Sacramento ran a story about CHP officer Mike Mitchell and the CHP's program.

Mitchell lost his leg in 2011 in an automobile crash when he was responding to a call in Amador County. His car hit a tree so violently that he doesn't remember the crash at all, and his injuries were so severe his right leg had to be amputated.

His employer offered him a chance to return to the force, but he had to prove himself physically (and mentally) capable by going through the academy again, this time with a computerized prosthetic that is the stuff of imagination 40 years ago (think "Six Million Dollar Man" with actor Lee Majors as the star).

The prosthetic didn't cost millions - the article says it cost about $100,000.

“I have kids at home and I can’t let them see me quit,” he tells his interviewer.

“Officer-safety wise I still have to able to be able to fight, I still have to be able to shoot and drive. Do everything I’m suppose to do,” he goes on.

After going through retraining and passing the physical assessment tests he regained his uniform and is back on the job patrolling in a CHP cruiser.

“I love doing it,” he said, reflecting the attitude that is necessary for an injured worker to overcome huge obstacles. “I love being out in the public.”

According to the story, there are four other full time officers who are amputees.

I'm sure there are also many failure stories where benefits were not provided timely, or there is a dispute about treatment or indemnity, or where an officer attempts to take advantage of the generous disability compensation system in place for California peace officers.

Those negative situations get a lot of attention. It's easy to focus on the bad, to criticize, and blame.

It's much harder to be successful, to overcome huge obstacles, to achieve cooperation between the many people that need to contribute for a successful outcome - that requires communication, vision, and a huge helping of positive attitude.

The CHP says on its website that, "When injuries occur, our obligation is to ensure all appropriate benefits are accessed and received by those injured employees."

I have to believe that statement when I see a story such as Mitchell's.

We at WorkCompCentral believe that success should be celebrated. So much of workers' compensation is draped in negativity - after all, going through a life altering event such as a work injury is steeped in uncertainty, stress and disappointment.

Comp Laude award recipients 2013.
But there are success stories, many of them. We don't hear about those, and some people have been critical of the Comp Laude Awards for injured workers stating that we are making a mockery of the system.

Nothing could be further from the truth, and the fact is that we have had many, many injured workers nominated, and many other injured workers praising our efforts to recognize people who have overcome the odds. 

And this happens with the help of the teams of people, the employers, claims adjusters, doctors, attorneys, doing their jobs the best they can.

Stay in this industry long enough and cynicism can dominate your thoughts.

Workers' compensation does good things. We just don't hear about them very often.

When you go to work this morning, do good things - make a case work properly, get an injured worker back on the job, celebrate positive outcomes!

And join us Saturday, December 6, to recognize people and companies that make a difference.

Friday, October 17, 2014

The Long Arm of Failure

How far do failed New York self-insurance trust issues go?

Answer: All the way across the nation to the West Coast.

In a lawsuit recently filed, California-based Waste Connections Inc. says it was duped because New York based Hudson Valley Waste Holding Inc. failed to disclose nearly $5 million in assessments by New York regulators for liabilities stemming from the Team Transportation Workers' Comp Trust, that failed in 2010.

Waste paid $300 million for Hudson Valley in 2011.

In 2005, the New York Workers' Compensation Board calculated that the trust equity ratio was 78.6% and deemed it to be underfunded as of Dec. 31, 2004. While the group's equity ratio improved to the point that the board stopped classifying it as underfunded as of Dec. 31, 2007, by July 29, 2010, it was once again declared underfunded.

In October 2010, the trustees held a meeting in which they voted to close the trust effective Jan. 1, 2011.

An audit was conducted by the board after it took control of the trust in 2012 and the analysis found the trust had a deficit of $32.5 million, plus interest.

The amount owed by the Hudson Valley companies consequently became $4.9 million. As of July 1, 2014, interest totaling $49,000 had accrued, and continues to accrue until the deficit is fully paid, according to Waste's complaint.

A Workers' Compensation Board report sent to lawmakers in June says the Team Trust has 120 open claims. The trust had 193 open claims when the board took it over in 2012.

Hudson Valley has not filed a response to the complaint, but an attorney for the company in a 2012 letter to Waste Collections filed as an exhibit to Waste's complaint denies any wrongdoing or intentional misrepresentation/concealment.

Waste Collections filed its lawsuit about one week after the New York Workers' Compensation Board extended the deadline for members of the Team Trust to sign a memorandum of understanding agreeing to pay just 75% of their assessment and to do so over an 18-month period.

The transportation industry group was one of the many New York trusts that failed starting in the mid-2000s. Of the 62 trusts that were operating at the end of 2005, only three remained operational by the end of 2012, leaving an estimated 10,000 employers responsible for nearly $1 billion in claims.

The untold story is the many injured workers who got the brunt of this irresponsible financial management.

Thursday, October 16, 2014

Ebola and Work Comp

As the Ebola scare was developing there was speculation about the applicability of workers' compensation to such cases.

Now that 2 nurses have contracted the disease from occupational exposure the debate is not about AOE/COE, but how far this is going to go.

The first nurse, identified several days ago by friends and family as Nina Pham, was in “clinically stable” condition, and in isolation at Dallas’ Texas Health Presbyterian Hospital, where she helped treat another Ebola patient, Thomas Eric Duncan.

We now have two nurses who have Ebola.

The second health care worker also cared for Duncan and was immediately isolated at Texas Health Presbyterian Hospital, the Texas Department of State Health Services said in a statement.

“Health officials have interviewed the latest patient to quickly identify any contacts or potential exposures, and those people will be monitored,” the department said.

This second nurse case apparently traveled back and forth from Cleveland, Ohio before showing symptoms, which officials say indicates she likely was not contagious at that time, but nevertheless precautions are being taken to reduce the risk of transmission to others, such as taking one of the planes out of service and contacting all passengers and crew members.

A total of 78 healthcare providers at the hospital treated Duncan. Up to 48 other persons were exposed to Duncan.

I read a commentary a couple of days back that basically concluded that there was no workers' compensation risk from Ebola because a disease, to be compensable, must be a unique exposure for a worker - the author comparing Ebola to the flu.

Ebola, is far, far different than the flu because it is basically fatal; the flu might be fatal but more often than not one just feels lousy. The fatality rate in the current Ebola outbreak, however, is about 70 percent according to reports.

Health care workers, medical waste workers, indeed, any person involved in the business of medical care is uniquely exposed.

“It’s really concerning that health workers wearing full personal protective equipment have developed Ebola,” said Raina MacIntyre, a professor of infectious diseases epidemiology at the University of New South Wales in Sydney in a Reuter's report yesterday.

But is the workers' compensation system ready to deal with Ebola? And I don't mean from a claim severity or frequency standpoint.

I mean from the point of providing quality medical care in such a specialized situation - because there aren't too many medical professionals, or facilities (as demonstrated by infectious disease handling failures at Texas Health Presbyterian Hospital) that are trained, have adequate protocol (indeed even the Centers for Disease Control has been rapidly changing guidelines as this situation unfolds), or have the equipment to deal with this disease; ergo, this is a disease for which there likely is no fee schedule, likely no good treatment guidelines, likely nothing to give claim departments any guidance whatsoever.

Workers' compensation medical treatment has devolved into fights about utilization and other reviews which ultimately delays (though it's not supposed to) the delivery of care, if not outright denial of care; but dealing with Ebola requires immediate action. There is no time for utilization review or independent medical review. Protocol is lacking, and risk of spreading the disease increases exponentially with every single contact.

And forget about workers' compensation - the entire medical delivery system is proving incapable of dealing with the disease, from the CDC on down.

We will likely see more Ebola cases from among the other healthcare providers who treated Duncan.

I worry about the spouses and children of the healthcare providers.

I also worry about Ebola spreading to schools in the event one or more of the children on the hospital staff contract the disease.

More than 8,900 people have been infected with Ebola in the three countries, with more than 4,400 deaths, the World Health Organization said. The number of new Ebola cases in three West African nations may jump to between 5,000 and 10,000 a week by Dec. 1 as the deadly viral infection spreads, the WHO said.

There’s no cure for Ebola, which jumps to humans from animals such as fruit bats and chimpanzees. The virus spreads from contact with bodily fluids such as blood, vomit and feces.

If ever there was a situation where there should be no distinction between workers' compensation medical treatment and general health, the current Ebola situation is it. Delivery of medical care in workers' compensation is just fine for broken bones, even for something like black lung disease.

The way medical care in workers' compensation is delivered creates a real, and significant, national health problem when confronted with a potential pandemic like Ebola.

Work comp is woefully, in fact dangerously, inadequate for something as radical as Ebola.