Friday, April 5, 2013

Westphal Is About Value

Five states, including California and Florida, have 104 week caps (with some exception) to temporary total disability indemnity benefits.

A 3 member panel of the Florida 1st District Court of Appeals (DCA) last month created a huge stir by ruling that the limit violated Florida's state constitution, stating that any "system of redress for injury that requires the injured worker to legally forego any and all common law right of recovery for full damages for an injury, and surrender himself or herself to a system which, whether by design or permissive incremental alteration, subjects the worker to the known conditions of personal ruination to collect his or her remedy, is not merely unfair, but is fundamentally and manifestly unjust."

Those are some of the strongest words I have ever heard come out of any court regarding the politically negotiated statutory limitations imposed by a workers' compensation law.

What is interesting about the court's statement is that there is a recognition that the "grand bargain" meant that employees that sustain an injury at work had, 100 years ago, foregone their prior right to sue their employer for redress. In exchange workers were promised quick and complete medical treatment, and fair remuneration to cover the daily expenses of life.

Over the course of evolution of workers' compensation laws this deal seems to have become demented. I dare say the vast majority of us weren't around 100 years ago so we can't completely empathize with conditions that existed back then which led to the "grand bargain" - we only know what we know, which is the experiences we have had since we came into comp.

And our experiences shape our reality. What my perception of reality is differs from yours and the next person's.

A few days ago I posted that every single claims file should be audited in response to recently released statistics from the California Division of Workers' Compensation Audit Unit. The extrapolation of the data demonstrated that, very likely, there was over a hundred million dollars that had been illegally withheld from workers' compensation claimants but nothing is done about it.

The promise to take care of people who are hurt at work, in my view, wasn't matching the reality presented when critical measurements are taken.

My interpretation of what the Florida 1st DCA is saying in the quote above is that unless the primary constituents get together and return to a system that eliminates "conditions of personal ruination to collect his or her remedy" then there will be judicial reconstruction.

The courts are to interpret the law as applied to the facts of a case.

But "the law" is not just the statute that is in question. "The law" also includes the history of the law leading up to the statutory question. And "the law" also includes the Supreme Law - the constitution of the state and even the United States Constitution.

In the Supreme Law certain fundamentals are recognized - the drafters of these high level documents granted certain rights to the people, and imposed certain limitations on the functions of government and business.

Workers' compensation has become all about the costs of implementation and delivery. This is a culture that started some time ago but has really accelerated with various studies from Oregon, Massachusetts, California and other states that review, compare, and analyze costs of claims administration.

Never is there any comparison of the value that any particular system imparts - be it to employers or employees.

Two years ago I posted about a lecture given by Dr. David Dietz, VP, National Medical Director for Liberty Mutual Group, at the 66th Annual FWCI Workers' Compensation conference in Orlando, FL.

Dr. Dietz commented that the delivery of workers' compensation benefits, and in particular medical benefits, lacked any value accountability - the measure was only on the cost of benefits, ignoring the mountains of data that the industry holds collectively that could be used to determine whether any good was coming out of these expenditures.

As an example, Dr. Dietz asked the audience of several hundred people in the lecture how many would choose workers' compensation for their health care over their general health insurance.

Not a single hand went up - a damning testimonial to the sad state of affairs in workers' compensation.

And in the meantime we expect the alleged beneficiaries of our industry - people hurt at work - to completely hand over control of their entire lives, their medical and financial well being, to some unknown third parties working under foreign, incomprehensible rules with artificial limits.

A system none of us would voluntarily subject ourselves to.

The Florida 1st DCA yesterday voted to rehear the Westphal case En Banc (a hearing by the full membership of the court) because, appelants argued, the panel decision has thrown that state's system into turmoil.

The reality is that the 1st DCA's opinion didn't turn the system into turmoil - it was already there. The court simply recognized that the law didn't do what it was supposed to do: protect workers from financial ruination while recovering from injury.

Value was defined by Dr. Dietz as quality divided by costs. Quality is the health outcome of the injured worker.

We measure the cost ... a lot.

We don't measure the health outcome of the injured worker and from what I have seen in my 29 years in workers' compensation, we as an industry don't much care.

The 1st DCA simply recognizes that the system had devolved and that value is missing from the discussion. Now is as good of a time as any to start talking about value.

1 comment:

  1. This may also be a good time for the court, en banc, to decide how 440.13 (5)(e) (the holy three) does not violate the due process clause. Is there any other type of case in any type of law that precludes you from bringing a witness to prove your claim. I realize that there are few types of law more draconian than ERISA; however, even ERISA allows you to present evidence from any witness, including a "non-authorized treating doctor", as long as it is in the claims file before the "administrator" made her denial. Perhaps the court, en banc, can also determine how reducing the attorney's fees paid by the claimant by essentially one third in 1994 does not violate the Contracts Clause of Article I, Section 10, Clause 1 (other than perhaps the state has a substantial interest in protecting the claimant from their own attorney). (During this same time period, SSA has increased the claimant's maximum fee under a fee agreement from 4000 dollars to 6000.)