Thursday, October 8, 2015

Vetoes and The Bargain

Bowzer knows.

The Grand Bargain - the courts have told us many times that workers' compensation is a legislative and regulatory matter, and that they will abide by what the legislature desires.

But the Grand Bargain is also politics exemplar of the circuitous manner in which a part of the bargain is surreptitiously and detrimentally altered against one party or the other.

In the case of California's AB 1542, (Mathis and Cooley), politics has stuck it to injured workers with brain injuries.

AB 1542 was a bill that passed through the legislative branch with near unanimity (note it was dually sponsored by a Republican AND a Democrat - how often do you see such bilateral agreement?) to Governor Brown's desk. The bill was fostered in response to the Division of Workers' Compensation's proposed (and now permanent) elimination of the specialty of neuropsychology as a choice in the Qualified Medical Examiner process.

The official regulatory reason to get rid of neuropsychology as a QME panel choice was the category was a mistake 20 years ago and should never have been an option, and was missed when the QME process was visited several years ago. Now that the QME selection process has being automated, effective October 1, which required regulatory action to implement, the administration decided it's a good opportunity to clean this up.

The Department of Industrial Relations says its rules provide that QMEs can only be specialties recognized by a state medical board, and since neuropsychology isn't recognized by a California medical board, namely the California Psychology Board, it doesn't meet DIR criteria.

Brown's veto message follows the Administration's party line.

"This bill undermines the Division of Workers' Compensation's authority to apply consistent standards when it determines eligible medical specialties for the Qualified Medical Evaluator panel," Brown's veto message says. "The Division is not in the position to determine the validity of a physician's qualifications. That power resides with the physician's licensing board. If the Board of Psychology believes there is value in recognizing neuropsychology as a subspecialty, it should do so."

Of course, I call Bull on this, as I have in the past.

The CPB defers to the national board for specialization, and neuropsychology is so recognized, and in fact was the first specialty in psychology to achieve that status.

In fact, neuropsychology is endorsed by the American Academy of Neurology as not only a viable specialty for the evaluation of cognition in brain injury cases, but one of the only specialties for such.

Not only is the specialty nationally recognized, and that recognition is, by delegation, recognized by a California board (and probably more importantly, the medical profession in general), but the Division can call it's own rules, and make an exception to it's "standard." That exception has resided for 20 years.

In addition, Brown says the Division apparently doesn't have the expertise "to determine the validity of a physician's qualifications." Bullshit. Why is there an Executive Medical Director position within the DWC? And if the DWC has no expertise, then how can the Division routinely test, qualify, and scrutinize (and in fact has disciplinary authority) medical professionals that are in the QME system?

So what's the real reason? Why now? Why neuropsychology? Why the urgency? And what, if any, is the detrimental impact to the DWC?

In other words, why does DIR/DWC really care?

Brad Wixen, an attorney who specializes in the cross-examination of medical professionals, offered this explanation:

"They (the Administration) are afraid that applicants attorneys will use neuropsyche as a loophole to avoid the restrictions against psychiatric injuries that are currently written into the law. Surely some attorneys will try to make the case for neurocognitive on too many cases. But that is what Judges and laws are for."

That may be. But it is too simplistic. If applicant attorneys were routinely abusing loopholes and circumventing the psyche prohibitions by selecting neuropsychology for QME work (which the defense could oppose, by the way), then this would have surfaced as a problem long ago.

Nope - politics is much more sinister than something with that easy an explanation. There's another reason, something that is much deeper, much more politically connected, involving much more money and power.

Maybe I'm "out there." Perhaps my cynicism is way too obtuse, or my imagination too far afield from reality...

There are three football teams in California. The NFL wants a fourth to satisfy the demand. Traumatic brain injury leading to dementia and Alzheimers has been scientifically and medically correlated and those diseases are very, very expensive over the lifetime of the sufferer...

Los Angeles will finally get its team...

I got a laugh from the audience at a recent panel when I observed, "workers' compensation is a political construct that obfuscates medical science in order to achieve a financial goal."

It's not a laughing matter.

This is one current example of how the Grand Bargain gets altered.

Wednesday, October 7, 2015

Courts and The Bargain

This week I've been writing about the Grand Bargain - whether it is still Grand and whether it is still a Bargain.

And my opinion has been that certainly workers' compensation has changed as has the economy it covers, and that each change involves bargaining and compromise. There are winners and there are losers.

We sometimes wonder how does the bargain change and why the winners and losers get redefined - a case reported yesterday in WorkCompCentral is demonstrative.

Armando Tavares had worked as a truck driver for Luis Scattini & Sons. The 48-year-old father of four complained of chest pains while he was at work on June 13, 2011.

After Tavares finished pressure-washing the disc brakes on his truck, he asked his supervisor for a ride to the doctor's office.

Tavares indicated that he needed to use the restroom before departing, and his coworkers became concerned when he did not emerge from the portable toilet.

Tavares' colleagues forced the door open and found him slumped inside. Emergency responders were summoned to the scene and they attempted to revive Tavares, to no avail. A coroner later determined that Tavares had died from ischemic heart disease.

Tavares' widow and dependent children filed a claim for death benefits, which Scattini contested.

Dr. Revels Cayton was assigned to the case as the panel qualified medical evaluator. Cayton opined that Tavares' work activities contributed to the cause of his heart attack and death.

Cayton noted that Tavares had "very severe coronary artery disease," which "placed him at increased risk for the development of a sudden cardiac event."

Cayton said he thought it was "fairly obvious given the extensiveness in the coronary disease," that Tavares would still be alive "had he not washed those disc brakes and had he not come to work that day."

Scattini then obtained a report from Dr. Maria Nellie Betancourt which attributed Tavares' death was "solely due to the nonoccupational, preexisting and extensive coronary artery disease without any contribution from work."

Betancourt opined that Cayton’s finding of a causal-connection was speculative because Tavares was not performing any physically demanding activities at the time of his heart attack.

As there was some evidence that Tavares had been complaining of chest pain for two days prior to his death, Betancourt said it was possible that Tavares' heart attack had actually begun long before he got to work.

Betancourt also posited that Tavares "may have had to do a Valsalva maneuver to force the stools out" when he was in the restroom. The Valsalva maneuver is the medical term for the act of attempting to forcibly exhale while keeping the mouth and nose closed.

Betancourt said this action "may have tipped the scales enough to provoke a cardiac decompensation leading to death," and she thought this was "most likely" what had happened.

The Workers' Compensation Judge relied on the opinions of both doctors to find that Tavares' death was compensable. He awarded $320,000 to Tavares' family last December.

Scattini petitioned for reconsideration, but a WCAB panel comprised of Commissioners Katherine Zalewski, Marguerite Sweeney and Deidra Lowe upheld Crymes' ruling in March.

Scattini then sought judicial review, and the 6th District Court of Appeal issued writ on Sept. 14, accepting the case.

I was frankly surprised to see an appellate court accept the case for review. There is a long line of case law about heart attacks at the work place, and in general, if a heart attack is experienced at work, regardless of the co-morbid factors or non-industrial onset, it is compensable.

Scattini's lawyer argues that the "WCAB's order denying reconsideration allows a decision to stand which does not comport with well-established legal precedent as to what constitutes credible scientific evidence," stating that the proper standard for review of the medical evidence is the Daubert standard.

The Daubert standard is used in Federal courts, and has been adopted formally by some states, discounted by other states, and some states have been silent on the issue. California is one of those states.

The general standard in California though is "substantial evidence": is the evidence "good enough" that it can be relied upon to support a conclusion, even in the face of perhaps better, contradicting evidence.

Did Scattini bargain (or in actuality, its insurance carrier, Star Insurance Company administered through Meadowbrook Insurance Group) for a heart attack? Did Tavares bargain for a fight?

Probably none of this. The bargain is being mediated by the courts in this situation, where neither Business nor Labor have much persuasion beyond the facts and the law, and there may be an alteration to the generally accepted standard of evidence in workers' compensation heart attack cases.

Or not.

Which brings me to my point about the Grand Bargain and its various permutations through the years - If the facts are not in your favor, argue the law; if the law is not in your favor, argue the facts; if neither the law nor the facts are in your favor, baffle 'em with bullshit.

Now you know how the Grand Bargain has become distorted over time.

Tuesday, October 6, 2015

Prolonged Living Is Hazardous

Yesterday I went on about how workers' compensation evolved over the years, how it will continue to evolve, and that the original "Grand Bargain" was still alive, just that we were bargaining over ideas, concepts and issues that weren't known or in existence 100, or even 20 years ago.

This morning I recalled an article in the Los Angeles Times at the beginning of this year that seemed to epitomize why we are now bargaining over matters that weren't of consequence before.

The headline, "Even for the active, a long sit shortens life and erodes health," bespeaks the modern hazards of today's office workers: those who sit for long hours face a higher than average risk for contracting cancer, cardiovascular disease, type 2 diabetes and early death, even for those who exercise according to minimum daily recommendations.

According to the research, which is a review of 47 clinical studies, published in the Annals of Internal Medicine, even those who engage in vigorous exercise were estimated to be 16% more likely to die of any cause in a given time from a long day of sitting than were those who do not sit for long.

Researchers estimate that more than half of the average American's waking life is spent sitting.

The authors extrapolated from available research that those who spend long hours in sedentary activity are 90% more likely than those who don't to develop type 2 diabetes.

Of course, there is no comment on how many bon-bons are consumed while watching television by that risk category.

Also, that 90% risk factor blends completely sedentary people with regular exercisers, and the study findings that researchers worked with weren't powerful enough to discern whether regular exercise mitigated that risk.

And, while the likelihood of dying from cardiovascular disease rises less dramatically (about 18%) with long hours of sitting, as does the risk of cancers (between 13% and 16%), according to the report, the authors still note a correlation.

In addition, the studies reviewed by the researchers also observed higher rates of breast, colon, colorectal, endometrial and endothelial ovarian cancer among those who logged long hours in a chair.

The big caveat of course is that the research doesn't identify just how much sitting is bad, what the co-morbities were with those that sat more than others, and what maladies are more likely to be provoked by sitting than not.

Here's the problem: we have come to identify, catalogue and diagnose new maladies, diseases, and injuries that are just as likely to implicate the employment setting as any other setting.

None of this was contemplated by the originators of the Grand Bargain.

And all of this creates new bargaining positions.

If we were to take these findings at face value, then no matter what we do at work, there is a compensable consequence.

Who's going to pay for it?

When we get down to the Grand Bargain argument, that's really what the question is.

Are we ready to be responsible for ourselves?

Or have we become a nation that can't bear personal responsibility any more? In which case workers' compensation really isn't relevant any longer because the scope is too limited, and we just need to abdicate all of our choices to a single, universal system of matriarchal pandering...

We've become adept at recognizing diseases that aren't really diseases. We, as a society, like to make diagnosis for symptoms that shouldn't really be categorized as a disease.

American society has not only become adept at blaming others, but also for seeking new ways to defer personal responsibility.

So, now prolonged sitting is hazardous to one's health. Of course, prolonged living, itself, is hazardous to one's health.

That is NOT what was contemplated by the Grand Bargain.

Monday, October 5, 2015

Social Good

The "Grand Bargain."

This is what workers' compensation has been referred to for the over 100 years it has been in existence.

The "Bargain" was that Labor gave up civil law suits against Business in exchange for prompt medical treatment and a level of guaranteed money. Business gave up civil defenses in exchange for an "exclusive remedy."

Both compromised. Both made assumptions about the scope and extent of their bargains based on what they knew at the time.

What they knew at the time was broken bones, amputations, death and dismemberment.

Neither could forecast, nor had any appreciation for, industrial disease, asbestosis, cumulative trauma, psychiatric injury, opioids, or co-morbidity.

Guidelines, bill review, utilization schedules, medical networks, and other "tools" were not contemplated either.

Back then, professional athletes weren't "employees." There was no such thing as "health insurance." The Social Security system wasn't invented yet. Mechanization was just starting. Horses had yet to be supplanted by automobiles. The Wright Brothers were just discovering controlled, powered flight. We had yet to experience a couple of world wars, let alone terrorism. There weren't computers, and in fact there was barely electricity and plumbing.

The question Mark Walls recently posed to a panel comprised of myself, Bob Wilson of, Mike Gavin of Prium, and Tom Robinson of LexisNexis was, is the "Grand Bargain" still "alive"?

In other words, Walls provoked, has the evolution of workers' compensation deteriorated what both Labor and Business had bargained for in the first place?

The arguments are strong that, yes, the "Grand Bargain" isn't what it was.

Business now argues that work comp costs too much for what it does.

Labor argues now that work comp doesn't provide enough.

Both say the same thing: workers' compensation lacks value.

Or does it? What is different now about workers' compensation than in 1911?

Why do we lust after the "good old days"?

Let's look at the "good old days" - the following charts are from the latest State of the State report from the Workers' Compensation Insurance Rating Bureau, and from NCCI's 2015 State of the Line report.

First off, claim frequency is way down compared to the base index year of 1962 (WCIRB):

Secondly, insurance rates per $100 of payroll aren't that much different than they were in 1978 (WCIRB):

Third, while indemnity nationally has not kept pace with wage inflation, there was a period of time where indemnity was grossly disproportionate to wages (NCCI):

Fourth, in the grand national scheme of things, workers' compensation insurance carriers are doing just fine over the long haul (NCCI):

Take a step back and look at the big picture. Sure there are, as psychologists like to call it, adjustment disorders. But as the Diagnostic and Statistical Manual of Mental Disorders notes, adjustment disorders are temporary, and it is expected that the disorder will abate once a new level of adaptation has been attained.

And this is what happens in workers' compensation. Adjustment occurs, disorder happens, and adaptation follows.

The "bargaining" of workers' compensation occurs regularly.

Sometimes there are big changes to the bargain. We call this "reform" (or if you're on the other side of the equation, "deform"), and a big block of law is altered.

Sometimes the changes to the bargain are subtle, such as the imposition of a fee schedule on California copy services.

Sometimes there are winners in the bargaining process, sometimes there are losers.

The arguments about workers' compensation, or for that matter any work injury protection scheme (including non-subscription) are as old as workers' compensation itself, indeed older. There are always haves and have-nots. There are always people that are dissatisfied with the bargain.

And there are always people that will take advantage of the deal in any manner they can - because at the end of the day everyone, and I mean everyone, looks out first for their own self interests.

The most valuable lesson I learned in law school was that a good settlement is evidenced by the fact that no one is happy. If someone is happy, then that means they got more than they expected, which is more than they should get. If both sides are unhappy with a settlement - that's the sweet spot - because both sides had to give up something in order to reach the compromise.

What gets lost in all the bargaining is that workers’ compensation is an integral part of the modern economy; that without workers’ compensation there would be a void in the economy and lack of stability for business and workers alike.

It's a compromise.

I have no doubt that without workers' compensation the work place would be a whole lot more hazardous. Sure there are governmental entities that regulate, inspect and punish poor work place safety practices, but nothing speaks to business better than money, and the fact is the safer the workplace, the less expensive it is to insure that workplace.

And I have no doubt that without workers' compensation, or some other form of work injury protection in place, there would be a lot more losers than there are winners. Business would lose. Labor would lose. Government would lose.

We can argue about the details, about the haves and have-nots.

So, is the "Grand Bargain" still alive? Is workers' compensation still relevant?

Yes. And it will change as the bargaining power changes. Workers' compensation in 20 years won't be the same as it is today, as today's workers' compensation isn't what it was 100 years ago, or even 20 years ago.

But it isn't going away because it is too important to the Social Good.

The "Grand Bargain" is still alive and well. The details may have changed, and who wins and loses might change; and they'll change again...

Friday, October 2, 2015

No Advantages

An Oklahoma appellate court decision put a chink in the armor of one of opt out proponents' major advantage over traditional workers' compensation was the mitigation of litigation.

A big source of employer costs in Oklahoma workers' compensation - indeed in many states - is disputes and the expense of navigating through the dispute resolution system and the involvement of legal professionals.

Opt out employers use ERISA compliant agreements with their employees to steer disputes into arbitration. Many advocates for injured workers claim foul on those provisions because they claim arbitration is "rigged" in favor of the employer since the employer selects and pays the arbitrator.

Jonnie Vasquez claimed an injury last year while working as a sales associate in the women’s shoe department of a Dillard’s store in Shawnee, Oklahoma. After she was unable to obtain compensation through the Dillard’s Injury Benefit Plan for Oklahoma Employees, Vasquez filed an appeal with the Workers' Compensation Commission.

Dillard's removed the case to the District Court for the Western District of Oklahoma arguing its plan was an “employee welfare benefit plan” governed by ERISA and thus not subject to the workers' compensation system's review process.

Attorney Bob Burke, who is very active in Oklahoma arguing against that state's reform measure, SB 1062 on several grounds, took on representation of Vasquez and moved to have the matter remanded to the commission.

Dillard's objected, arguing the case belonged in the federal courts because Vasquez's claim for benefits did not arise under the workers' compensation laws of Oklahoma, and that Vasquez's challenge of the plan administrator's denial of her application for benefits was "an ERISA enforcement action claim."

Since federal trial courts have original jurisdiction over ERISA enforcement action claims, Dillard's said Vasquez's appeal of its benefits decision could be heard in the federal court.

But ERISA exempts any plan “maintained solely for the purpose of complying with applicable workmen’s compensation laws" from its coverage, and Burke argued that the plain language of SB 1062, which provides that any opt out plan must provide the same form of benefits as those included in the Oklahoma Administrative Workers’ Compensation Act, compels review by the commission once an employee exhausts that review processes provided by a plan.

U.S. District Court Judge Stephen Friot agreed.

He reasoned that the Oklahoma Employee Injury Benefit Act "is part of Oklahoma’s statutory scheme governing occupational injuries and workplace liability," and as such, "the OIEBA is part of Oklahoma’s statutory scheme governing workmen’s compensation."

Under federal law, a claim that arises under the workers' compensation laws of any state cannot be removed to the federal court system, Friot explained. Even if the Dillard's plan also qualified as an ERISA benefits plan, Friot said, the federal court system still could not take jurisdiction over Vasquez's claim.

The court's result isn't surprising. The statute is pretty clear. And opt out still has advantages to employers in that there is greater control over the provision of benefits.

The trick for employers is not to get cocky and abuse those privileges, like what happened earlier this year in Jenkins versus ResCare, Inc., where the employer denied a witnessed accident because the claim was reported 3 hours past the 24 hour notice requirement in the company's plan.

I remain on the fence about opt out. I think it can work, but I also think it can be abused, and frankly that's no different than traditional workers' compensation.

Employers demand stability and consistency. Employees demand expediency and fairness. These are reasonable demands, and aren't hard to deliver if everyone just does their job in the first place instead of trying to get an advantage over the other.

Thursday, October 1, 2015

Sam vs. Jane

The Workers' Compensation Research Institute's latest study essentially states that financial incentives influence treatment considerations - that capitated systems will cause a case shift away onto fee for service systems, like workers' compensation.

Sometimes those incentives get reversed too - and it's all about who's paying, and who's receiving.

The following comparison that was communicated to me by a reader is anecdotal for sure, but it is illustrative, and alarming. The only real difference in the quantity of similar medical treatment rendered is an elderly man via Medicare versus a middle age woman on workers' compensation. Guess who loses?


Sam vs. Jane

What a contrast Jane's situation with Sam's dad's situation. 

We can't get the rehab people to stop treating Same's dad (Medicare), versus Jane (workers' compensation) who can't get anyone to treat her. 

Sam's dad, 97,  fell 4 times a few months ago and now the rehab people won't quit. They stop by with questionnaires (all the same) but 3 people have to fill out the same forms. They treat him with occupational therapy 3X/day. He does not want occupational therapy. He's 97, he wants to sit in his chair and read and at 97 he's entitled to do that. 

Sam had several meetings telling them to stop the rehab. Then coming up in the elevator after the last meeting to again tell them - NO REHAB for at least 2 weeks.... when the elevator door opened on the 4th floor ..... guess who was standing there waiting to come downstairs -- the rehab woman!  

Sam politely asked her if she wasn't possibly at his father's apartment and sure enough she had been -- she'd stopped by to "say hi" even though less than 1 hour earlier Sam had had a 20 minute conversation with her and never uttered anything other than "No, we do NOT WANT REHAB."

Contrast to Jane who fell and has had to beg for care. And has had DOZENS of denials of care for her witnessed, admitted, injury.

The rehab woman for Sam's dad gets paid per treatment, and probably an incentive bonus when she treats over 50 times/week, or something.

By contrast, utilization review, the adjuster and the defense counsel get rewarded for refusing care. Defense counsel gets paid more for every hour he works the file to deny care. UR gets paid per review, and they know the expectation is to deny care. The adjuster doesn't really care since the employer has, no doubt, a large deductible policy and they still get their Allocated Loss Expense. The vendors are allowed to run wild.

Sam's dad is in a high quality, expensive facility with vendors that are ruling the roost, running wild providing unwanted treatments. He was an Colonel in Army, and a university Dean, but is now treated like an idiot by the rehab people.

Jane, on the other hand, has had to find her own care, pay for it herself (including the lodging necessary because the only facility she could afford was too far away for a normal commute) and eventually ran out of money, and options.

Anyway, it's interesting to watch the two different systems and how, in different ways, they mistreat those they serve.


While the WCRI was focused on case shifting into or away from workers' compensation, the real take away is further confirmation, reprehensible as it is, that providers of medical care (and those responsible for managing them) will go where the dollars are, and unfortunately that's not always in the best interests of the patient or injured worker.

Business, after all, is business...

Wednesday, September 30, 2015

No More Silos

There's one glaring and obvious conclusion to be reached from the Workers' Compensation Research Institute's latest study finding a great likelihood of case shifting out of group health onto workers' compensation - the silos that have been created throughout the years of various health care systems need to be consolidated into a single system regardless of fault, causation, or jurisdiction.

The only qualifying measure should be employment.

Some may call this universal care, 24 hour care, socialism, whatever - it's the only thing that makes sense.

The reason is that financial incentives definitely influence provider behavior. We have known that for years. It is not a mystery - in fact it completely makes sense and is in line with what behaviorists would expect.

Yes, there are legal issues and practical considerations - these have all been argued and debated for years.

None of those reasons or objections can't be engineered out or at least ameliorated.

The primary reasons why any shifting would occur are two-fold and the first and most important consideration is that it is the primary treating physician who first sees the patient who is going to ask the probing, leading questions, that will determine how an injury or illness "occurred" - i.e. causation.

"The amount of uncertainty about the cause of the medical condition provides the opportunity for the financial incentives to influence the decision," the study summary states.

The second, and perhaps no less important consideration, is that group health plans are moving more towards capitated reimbursement systems, following the Affordable Care Act model, whereas workers' compensation is, by and large, still fee for service. The WCRI theory is that providers would rather be paid by service because they can make more money.

So the obvious answer would be to convert workers' compensation to capitated plans - but doing so runs afoul of workers' compensation's primary medical promise: treatment for life; ergo, a capitated plan in workers' compensation would alienate more providers than even low fee schedules.

Thus, the only way to combat any cost shifting is to align the medical incentives, and the only way to reasonably accomplish that is to have one medical system - not the panoply of systems that now create a dizzying array of complexity certain only to increase costs and diminish outcomes.

There have been attempts in the past on a state basis to implement some type of "24 hour" coverage or other universal plans and they have mostly been defeated or marginalized by all of the conflicting interests.

Yet, if medical care, including workers' compensation, is to escape the current dysfunction of competing financial incentives, the only avenue is to eliminate the competing incentives.

As long as there are silos of opportunity, the best silo will get the business, and the burden. And it's all the same - the cost shakes down to the consumer at some level anyhow.