Thursday, July 31, 2014

How Dare They

Last week WorkCompCentral reported on a raid in Florida of a company, Fruit Dynamics, arresting over a hundred undocumented workers.

Investigators from the Florida Division of Insurance Fraud and the Collier County, Florida, Sheriff's Department arrested workers from Guatemala, Mexico, Honduras and El Salvador.

Florida Chief Financial Officer Jeff Atwater, who runs the division, called the arrests "workers' compensation fraud" even though only a few of the workers had filed injury claims. The arrests were made under Florida Statutes Chapter 440, the workers' compensation law, which makes it a third-degree felony to use false documents to obtain employment or file an injury claim.

Maj. Geoffrey Branch of the Division of Insurance Fraud told Fox News Channel 4 the week of the story that the owners are not suspected of any complicity in the fraud.

"At this time, we do not believe anybody affiliated with the ownership or management had any idea that any of these documents were fraudulent," Branch said, according to the Fox 4 report. "We believe that they thought they were on their face value valid, authentic documents."

In fact the reason for the raid in the first place was because the original complaint was against the employer for intentionally hiring undocumented workers in a pattern of behavior and practice to underreport payroll and intimidate workers out of benefits for work injuries.

An attorney that represented several injured workers at the plant over the years had made the complaint to the Division because there was a pattern of practice he noted - that the employer's hiring and management practices were intentionally done to minimize workers' compensation liabilities and abuse immigrant workers.

So 105 workers get arrested for immigration and documentation fraud under a workers' compensation statute, even though most did not file any injury claims, and the employer faces no retribution whatsoever from the law even though there is documented evidence that the company knew what it was doing and its insurance carrier went along with the plan in complicity.
Bowzer persecuted because his face is brown

According to an affidavit signed by Lt. Mark Fritz, a state insurance investigator, the case started with a complaint made by Wellington, Florida, attorney Michael Elstein last September.

Elstein warned "there are numerous unauthorized workers (from another country) who are employed at Fruit Dynamics." He said the company also operated as Incredible Fresh and Collier County Produce.

Fritz said Elstein told investigators that the employer knew the workers were unauthorized. He reported in the affidavit that Elstein represented clients who had filed workers' compensation claim. He identified Elstein as a "defense attorney," apparently not understanding workers' comp industry parlance.

"Defense Attorney Elstein reported that when an employee became injured, he/she was terminated most of the time and/or harassed," Fritz wrote in the affidavit. "The insurance carriers in turn would then attempt to suspend his/her benefits and claim he/she committed fraud by using a false Social Security number in connection with their workers' compensation claims."

Elstein told WorkCompCentral, "I got so tired of this particular employer. Over the past five or six years I'd represented at least 10 of their workers, and I decided I had to find a way put an end to this."

Elstein had the permission of his clients to make the initial report, but the investigators from the Division of Insurance Fraud didn't then, and haven't yet, pursued the employer even though there is overwhelming documentation filed along with the criminal affidavits that not only did the employer know what it was doing, but it's insurance company knew too.

In his affidavit, Fritz alleged that the company's workers' compensation carrier, Guarantee Insurance Co., showed Fruit Dynamics was underreporting its payroll and thereby reducing its premiums by nearly half.

Of 212 Fruit Dynamic workers checked by the Division of Insurance Fraud, investigators identified 171 workers who used a stolen Social Security number or another person's identity to seek and maintain employment at the company.

And yet, no charges against the company or its managers and owners?

This is the double standard that can not be tolerated. Say what you will about whether or not undocumented workers are deleterious or beneficial to the economy, the bottom line is that unscrupulous employers will take advantage of them if they think there is a financial advantage to do so.

That any state would seek to bar workers' compensation benefits to undocumented workers is just plain backwards thinking - fortunately some lawmakers in North Carolina, where just such an attempt was made this legislative session, are smart enough to know that, killing such language in House Bill 369 in committee.

WorkCompCentral columnist Peter Rousmaniere wrote last month that based on extrapolation of statistics, undocumented workers sustain one out of every 10 work injuries.

"This high volume is invisible to almost everyone except for adjusters, case managers, lawyers and others who work directly with injured workers and have learned their work and life patterns," Rousmaniere wrote.

Rousmaniere concludes, "James Baldwin, debating William Buckley at Cambridge University in 1965, described the legacy of slavery as the tragedy 'when one has absolute power over another person.' To the undocumented worker, her or his employer holds nearly absolute power over safety. A work injury could result in jail time and deportation. Neither the workers' compensation system or worksite safety are healthy when one tenth of injured workers are in a constant state of vulnerability."

This double standard must stop. It is lightly veiled discrimination based on race. The masters aren't prosecuted for their fraud and deceit, but the powerless workers are punished for their enslavement.

I thank people like Elstein who stand up for immigrants and their rights.

And the people of our government who are complicit in employer fraud should be taken to task: Atwater should be removed from office, state investigators and prosecutors who turn the blind eye should be fired.

How dare they abuse the confidence of The People.

In terms of racial equality, this country, unfortunately, has a very, very long way to go.

Wednesday, July 30, 2014

The Motel 6 of Justice

Jose Nunez worked as a laborer and driver for Dig Right In Landscaping in Illinois. He claimed that he injured his right shoulder while loading a piece of equipment onto a truck at work in July 2008.

Nunez did not lose any time from work as a result of his injury.

About a month later, Nunez cut his left hand in a work-related accident. He received treatment for this injury from Dr. Hasan Kahn. Dr. Kahn's treatment records contain no mention of shoulder pain complaints or the alleged July 2008 accident.

Dig Right terminated Nunez for cause in September 2008 after learning he was using company equipment to perform "side jobs."

When Dig Right fired him, Nunez made no requests for medical treatment or disability benefits related to his right shoulder.

In March 2009, Nunez sought treatment for right shoulder pain at St. Anthony's hospital. He reported that he had fallen about six months prior, in September 2008. The hospital referred him to an orthopedic surgeon, but Nunez never followed up.

In July 2009, Nunez filed an application for adjustment of claim regarding his alleged July 2008 (or was it September of 2008 ...) injury. His doctor reported that he had a right shoulder impingement. The doctor recommended right shoulder arthroscopy, subacromial decompression and debridement.
"We'll leave the lights on for you..."
Something obviously smelled fishy about this claim and that odiferous feeling didn't escape the trial level arbitrator who found that Nunez's shoulder problems were not causally-related to his July 2008 accident.

The Illinois Workers' Compensation Commission reversed, but a circuit court judge set aside the commission's decision and reinstated the decision of the arbitrator.

On further appeal the Appellate Court ruled that the Commission's award of benefits was not against the manifest weight of the evidence, conceding however that it was "a close case."

It is the exclusive function of the Commission to judge credibility and assign weight to medical opinion testimony, the court said, and the trial judge had erred in setting aside the Commission's award to Nunez.

In other words, Nunez got his benefits.

I've often said that workers' compensation litigation is the poor man's dispute resolution system - when you look at the facts of this case through the glasses I'm wearing this morning, it's pretty obvious that Nunez was upset at getting fired for using company equipment on his own jobs without authorization.

And the latency between the "shoulder injury," the continuity of working post injury date, the fact that there was an intervening industrial injury without mention of a shoulder issue, and the failure of Nunez to follow up on the initial medical referral...

I know there are probably plenty of excuses for this chain of events.

But really, from my vantage point, this is just an example of "sticking it to The Man."
Workers' compensation courts provide an avenue to vent in a relatively civil manner feelings of disparagement, unfairness and wrongdoing. It's not the purpose of work comp, but it is the reality.

Which is why workers' compensation is the Motel 6 of justice. Cheap, no frills and the lights are left on for anyone to check in at any time.

The case is Dig Right In Landscaping v. Illinois Workers' Compensation Commission, No. 1-13-0410 WC, 07/28/2014, published.

Tuesday, July 29, 2014

Is It Fair and Reasonable?

"In short, denying same-sex couples access to death benefits under the workers’ compensation statute does not bear a fair and substantial relationship to the purposes of the act as identified in Ranney," the Supreme Court of Alaska said in an opinion this week concerning the provision of death benefits to the same-sex partner of a woman who was murdered at her workplace in 2011 even though they weren't married.

In 2005 the court rejected an award to an opposite-sex couple that was not married in Ranney v. Whitewater Engineering.

In this most recent case, Harris v. Millennium Hotel, the court pointed out that opposite-sex couples are permitted to marry under Alaska law, but same-sex couples are not.

Section 25.05.013 of Alaska’s statutes provides that “a same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage.” But, the Supreme Court pulled from precedent opinions that said that the state’s workers’ compensation act used marriage as “an adequate proxy for the more particularized inquiry concerning whether a relationship is serious enough or a partner is sufficiently dependent to justify awarding benefits.”

Because same-sex couples have no access to that proxy, the court ruled that such an individualized inquiry would be needed in cases involving death benefits.

Of course there are going to be critics who will claim such rulings unnecessarily increase the costs of workers' compensation, but the court seemed to weigh that in its analysis as to "fair and substantial relationship," noting the minority statistics of the affected population.
Bowzer's neither fair nor reasonable...
Looking at the broader scope of a state supreme court taking on the most elemental characteristics of a workers' compensation act, a complete fabrication of political contrivance, Alaska's justices have focused on a significant inquiry.

Forget about gay rights - this case isn't about that in my opinion. Whether execution of the state's workers' compensation act bears a "fair and substantial relationship" to the purposes of that act is a BIG question and goes way beyond gay rights.

Yesterday I noted that a few Florida cases were challenging that state's workers' compensation statutes on the grounds that over time, due to many changes in the law, the constitutionality of 440.11 (Florida's work comp title) has eroded.

The same basic argument, albeit in a more legal context, is being made there, 3800 flight miles away: whether operation of Florida's workers' compensation laws bear a fair and substantial relationship to the purposes of that act.

Obviously the plaintiffs in the Florida cases argue that it no longer does.

And the opponents to those Florida suits are going to argue that costs have to be kept in check, and that the legislature has done so with surgical excision of unnecessary components.

While Alaska's justices are not questioning the overall constitutionality of that state's system, they have in one very small part essentially said that it can not meet constitutional analysis.

Most state's workers' compensation acts have as a foundation the state constitution.

The state constitution defines, in a very broad sense, the social obligation.

The Supreme Court in Harris said that obligation is, “to ensure the quick, efficient, fair and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to employers,” nearly identical to how I defined it yesterday.

Ask most employer representatives and they'll tell you that the laws fail their part of the bargain - reasonable cost.

And ask most employee representatives and they'll also say the system fails to deliver quick and predictable medical and income benefits.

If both constituencies are correct, then whatever legislative alterations has caused those failures to occur might be challenged along the Alaska Supreme Court's reasoning.

Are we moving into a new era in work comp? I can't tell that, but when both business and labor complain that they are failing to realize any value and that realization is translated into legal challenges, then inquiries into fair and reasonable relations (a subjective standard) get made...

Monday, July 28, 2014

Newton's Challenge

Push too hard, swing the pendulum too far, and the reaction becomes even more extreme.

One of the most famous attributes to Sir Isaac Newton was his elemental statement, "for every action there is an equal and opposite reaction," also known as his third law of physics.

We can't ignore physics - it is the Supreme Law and can not be rewritten or reinterpreted, is not subject to political manipulation or administrative regulatory action.

Newton's Laws of Physics are immutable and they govern everything on Earth, and beyond.

Workers' compensation laws govern only a specific geopolitical entity and those that are subject to that entity's laws. Workers' compensation laws get rewritten, reinterpreted, are the subject of politics and distorted through administrative regulation.

And when a state's workers' compensation laws come in conflict with Newton's Laws of Physics, it's a huge fight ...
Sir Isaac Newton
It's no secret that I have been of the opinion that workers' compensation is in trouble, not just in California, but across the nation, because in my observation the laws are failing to deliver any longer on the original deal: delivery of swift and adequate medical treatment and income benefits to people injured on the job in exchange for employer's immunity from civil suit, for a fair and reasonable price.

Florida, where next month about half of the workers' compensation nation will converge for WCI's 69th Annual Educational Conference, is one state where this collision is playing out in several venues: there's the Westphal and the Castellano cases pending in the state supreme court challenging the limitation on attorney's fees.

And now there is a suit at the trial level where the plaintiff is seeking declaration that the entire system has become unconstitutional over time - that the various reforms over the many years the system has been in existence has served to devalue the workers' compensation program to such a degree that it no longer can be said to meet its constitutionally declared objectives.

The plaintiffs in Julio Cortes vs. Velda Farms allege that the comp system became "unconstitutional as an exclusive remedy in stages," as lawmakers made changes that slowly eroded the benefits and protections available to workers.

The Cortes plaintiffs argue that up until 1968 parties could "opt-out" of participating in the comp system, but when workers' compensation became the exclusive remedy for industrial injuries in 1970, lawmakers did not provide workers with anything in exchange for completely taking away their right to sue.

They further allege that in October 2003 workers lost the ability to receive medical care and compensation for a partial loss of wage-earning capacity. The elimination of partial loss of wage-earning capacity benefits was not replaced by any substitute benefit. "Nothing," is what workers got in exchange for the wholesale loss of an entire category of benefits, the plaintiffs allege.

"Injured workers now receive permanent impairment benefits pursuant to Florida impairment guidelines and nothing else unless the employee is permanently and totally disabled," they argue, and the "limited amount of benefits that are paid currently for permanent impairment are conservatively less than what would have been available under the law in the '70s, and is markedly lower that what's paid in most other states," they add.

Velda defended against the claim on the basis that workers' compensation was Cortes' exclusive remedy. The Florida Workers' Advocates and the Workers' Injury Law & Advocacy Group intervened and provided support, asserting a claim for declaratory relief as to the constitutionality of Section 440.11.

When Velda abandoned its exclusivity defense, FWA and WILG successfully moved to sever the declaratory relief cause of action from Cortes' suit.

Since then the trial judge has issued an order joining the State Attorney General to give the state an opportunity to be heard prior to ruling on a motion for summary judgment brought by the plaintiffs.

At the heart of plaintiff's argument is a 1973 Florida Supreme Court case called Kluger v. White which they are asserting for the principle that anytime the Legislature takes away a right that had previously been guaranteed to the citizens of the state, it must provide a "reasonable alternative."

Using the Kluger case for such a proposition may be overextending that cases holding: that the government cannot take away a remedy that had existed under statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida or under the common law of England as it existed as of July 4, 1776.

Nevertheless this is a huge challenge and likely a fight that is going to continue for some time. The plaintiffs have told WorkCompCentral that even if they win at the summary judgment level it is still just "round one of a 10-round fight."

Thus far any challenge to workers' compensation's constitutionality has been the purview of injured workers but I suspect it won't be long until some employer at some point also challenges the constitutionality of the system for failing to deliver on the original value proposition.

The proponents in these Florida cases have considerable challenges ahead of them, but the plaintiffs are tenacious and determined. With new laws creating new rights and liabilities for both employers and workers, such as FMLA, ADA, ACA, etc., the relevancy of workers' compensation is going to be tested in both practical, and legal, circles for some time to come.

Friday, July 25, 2014

Restoring Faith

So far there have been 27 comments in the Workers' Compensation Roundtable LinkedIn Group following my post about my work "injury."

That was just one work comp group and happened to be the most prolific. Plenty of other comments have been made in other venues.

I never in my wildest dreams would have imagined that my little, slightly sarcastic, muse on being both an employee and employer dealing with the same work injury and ultimately deciding that work comp was the worst of all worlds for dealing with it would create such interest, controversy, engagement and interaction.

But it did.

Some disputed that it could be labeled industrial since it was only a back sprain. Others said to stay out of the work comp system at all costs. And others simply demonstrated a lack of understanding of work comp, at least relative to California law.

No one, though, said that I should file a claim as an employee or report the claim as an employer.

Perhaps that's because everyone is a professional in the system, an insider, and everyone knows that once a claim comes into the system both the employer and the employee lose control to the gaming that every single vendor - insurance company, doctor, lawyer, etc. - will engage in to "do the right thing" according to their special interest.

Certainly there were more "claim denied" or "services denied" responses than I thought would occur.

Just like real life work comp.
Bowzer lost faith
The California Workers' Compensation Appeals Board on Thursday designated a case a "Significant Panel Opinion" because a carrier that had approved nurse case manager services prior to SB 863 unilaterally, and without legal authority, terminated those services because there had been no Utilization Review or Independent Medical Review.

In Patterson v. The Oaks Farm, No. ADJ3905924, Jennifer Patterson had worked as a horse trainer for The Oaks Farm. She suffered serious injuries to her head, neck and spine in 1999 when the horse she was riding tripped and threw her before falling on her and pinning her to a fence.

The Oaks carried workers' compensation coverage through the California Compensation Insurance Co., but the carrier went insolvent in 2003. The California Insurance Guarantee Association then assumed its liabilities.

CIGA and Patterson both stipulated to having Dr. Randolph Noble serve as the agreed medical evaluator for Patterson's workers' compensation claim.

In 2011, Dr. Noble determined that Patterson required nurse case manager services. CIGA initially authorized and provided her with a nurse case manager, but later unilaterally terminated the service.

At an expedited hearing on the issue, the judge found that Patterson's condition had not changed, and so the discontinuation of her nurse case manager services was not warranted. The judge ordered CIGA to resume the provision of nurse case manager services, and CIGA appealed.

A unanimous three member panel denied the appeal.

Newly appointed commissioner, Katherine A. Zalewski, wrote for the panel that an employer or carrier cannot unilaterally cease to provide approved nurse case manager services when there is no evidence of a change in the employee's circumstances or condition showing that the services are no longer reasonably required to cure or relieve the injured worker from the effects of her industrial injury.

Ergo, without such evidence, a carrier can't just stop providing treatment services.

Experts interviewed by WorkCompCentral for this morning's story on the case opined that they weren't sure why this was cited as a Significant Panel opinion because the case simply reiterates what has been long standing law in California - that medical treatment can't be unilaterally terminated.

Richard Jacobsmeyer, founding partner of workers’ compensation defense firm Shaw, Jacobsmeyer, Crain & Claffey in Oakland, said that perhaps the notion that case management is deemed "treatment" as opposed to optional services is what the Board was getting at by designating the case as Significant.

But based on the comments and reactions to my posting about my work injury, I think it comes down to basic education, and a realization by the WCAB that Patterson's plight isn't all that unique; that there is far more delay, denial and obstruction to benefits, particularly if there is any "gray" in a case, than is legally, socially and morally allowed.

Particularly when there really isn't any real threat of penalty, sanction or discipline for doing so.

For those of you that aren't familiar with California law, if I was at work and doing work when an injury occurs, then it's workers' compensation regardless of whether the condition is idiopathic or was pre-existing.

You can't apportion the need for medical treatment in California - even less than 1% of industrial causation is enough to invoke the provision of benefits.

That's the law and that's just the way it is.

But based on the comments to my original injury post, there are few that are willing to accept or recognize that reality, and consequently no one has any trust in the system.

And maybe the WCAB in Patterson knows that, and is trying to restore faith in the system.

Thursday, July 24, 2014

Work Comp Isn't Magical

"Enchantment" means of or having a magical influence or characteristic, but New Mexico isn't sure work comp the value and relevancy of workers' compensation is so enchanting - at least not the state's agricultural industry.

New Mexico farmers and ranchers have, so far, not been required to purchase workers' compensation insurance but pressure is on the agricultural sector to step up and participate.

At issue is whether the district court ruling in Griego et al. v. the New Mexico Workers' Compensation Administration applies to the three injured workers in that case alone, or to all agricultural workers in the state.

Bernalillo County Judge Valerie Huling ruled that the provision of New Mexico statute 52-1-6(A), excepting farm and ranch workers from the workers' compensation coverage requirement, violated the state constitution's equal treatment clause.

But Huling said in her decision that she didn't have the authority to hold workers' compensation judges and the state's Uninsured Employers Fund to her ruling because they are separate entities from the Workers' Compensation Administration.

Two pending cases in the state Court of Appeals, where injured agricultural employees have sued their employers for not providing workers' compensation coverage, may answer that question.

The cases - Rodriguez v. Brand West Dairy and Aguirre v. M.A. & Sons Chile Products - are dividing labor and business.

New Mexico Center on Law and Poverty Staff Attorney Maria Sanchez told WorkCompCentral that the Greigo ruling is applicable statewide, and not just as to the three workers in that case.

Sanchez said her law center plans to file an injunction for Huling to extend the decision at least to the UEF.
Land of enchantment?
An amicus curiae brief in the Rodriguez case argues that not only is the provision constitutional, but it shouldn't apply to the defendant relying on the interpretation of "equal protection" in precedent, asserting that the workers failed to prove that they, as farm workers, were in a similar situation to other employees whose employers are required to provide insurance.

"Simply stated, the employer and UEF were not parties to the Griego litigation and, therefore, are not bound by that decision," the brief reads. "Employer and UEF were not parties to the Griego litigation and did not have the opportunity to be heard by Judge Huling in regard to the issues resolved by Judge Huling's opinion and in regard to the issues presented by this WCC."

The amicus brief also argues that administrating the workers' compensation insurance requirement for farm and ranch workers would be burdensome and costly to the system – particularly because of the challenges of working with agriculture employees who move frequently.

"If the worker is moving around regularly, where should the injured worker be provided medical care and treatment, i.e., at or near the town/city where the accident happened or at different location(s) where the injured worker may be living throughout the life of the claim?" amici say.

A lot of states have already dealt with migratory workers and the fact that when, where and by whom should a worker get treatment has not impeded mandatory coverage.

The real issue in my mind is not whether workers' compensation should be mandatorily imposed on all employers, but whether business finds value in the coverage.

Clearly, those ranchers and farmers that support the amicus filing don't believe that workers' compensation is of any benefit to them - but we have seen that before: business doesn't value the exclusive remedy of work comp until they get sued civilly and have to make good on a big judgment not covered by any insurance.

Just as clearly, the migratory farm workers, those at the relative bottom of the food chain in the economy, do find value in the protections of work comp. New Mexico's system is vastly more simple than big state systems so the deterrence to filing a claim and seeking benefits isn't as looming.

According to a Wikipedia entry, cattle, sheep, and other livestock graze most of the arable land of the state throughout the year and based on 2004 tax receipts the agricultural industry is the 20th largest grossing business sector, with about $72 million in taxable revenue.

Gross business taxable receipts for the state in 2004 were about $39.5 billion, so realistically agriculture is only about 0.18% of the total economy of the state - but the issue is whether workers in that small sector are entitled to the same protections as a worker in mineral extraction ($1.3 billion in receipts) or retail ($12 billion).

Obviously we in the industry find relevancy and value in work comp because it's how we make our living. Does the rest of the world see it that way? Oklahoma, Texas, and perhaps New Mexico may not.

Wednesday, July 23, 2014

So Long Norman

It was announced yesterday that the head ombudsman for Texas injured workers, Norman Darwin, is going to retire this year, at the end of August.

While Darwin is certainly entitled to retire - after all he is 76 years old and has been in the comp system in Texas for well over 40 years - the state will be losing one of the strongest advocates for injured workers I've known, and his shoes are going to be very, very hard to fill.

I've only met Darwin a couple of times, and each time I was singularly impressed with his focused determination and passion for making sure those injured on the job received the full benefit of the system.

Darwin had a very successful law practice prior to joining public service. He was well known in Texas as one of the brightest, most tenacious lawyers in the system. To him it was not at all about the fee - it was all about his client.

And I use the singular context purposely - when Darwin was on a case, his mind was on THAT case.

How do I know this? I've only met the man twice. And I'm generally not a good judge of character, unfortunately.
Norman Darwin
But I could tell from talking with the man just how committed he can be, and how doggedly he would fight, particularly if he really thought his client was being treated unfairly.

While the Texas insurance community disputes the reports that Darwin shepherded as head of the Office of Injured Employee Counsel, particularly the latest reports wherein OIEC criticizes the success rate of injured workers in adjudicated hearings, his tenure in the office, and now his impending retirement, demonstrates the significant polarity in workers' compensation.

My Texas insurance friends are probably going to chastise me for this, but while the state is very, very good for insurance companies writing work comp (how many states can claim an overall combined ratio of less than 100, and not just once, but for several successive years in a row?) there's a story that is heard far too commonly - too many injured workers get the shaft.

The statistics don't really tell the full story because they are skewed by the success rate of minor injuries. Those who get cuts and bruises and generally are just medical only claims are, like in most states, handled just fine.

Those who have more severe injury claims (note I said "claims"), however, have a much tougher time, particularly if there's any scintilla of dispute about industrial origin.

As Darwin noted:

“I’ve practiced comp law for over 40 years, and (I had) never heard of an extent-of-injury defense asserted one single time. And the law’s not changed in that regard at all. Since 1913, the law hadn’t changed.

“But the interpretation of that law got changed in about 2008, 2009, somewhere in that time frame. And the claimants’ ability to have a successful claim just dropped to the very floor.”

And there aren't that many Texas lawyers helping injured workers out any longer because the fees can't justify a business of work comp representation.

OIEC was established to help those in the middle, but they can't directly represent injured workers. Still providing legal counsel is a huge help, and Darwin made that happen.

A lawyer friend of mine contacted me the other day - she assists employers reduce their workers' compensation costs by implementing strategies to both control the claim, and control the carrier. She tells me, after being contacted by an injured worker that bought her book to learn the other side of the fence, that had she not had two friends go through the work comp rigamarole and a relative being put through the ringer in an auto case of uncontested liability, that she would not have believed the injured worker's tale of denials, delays, and mal-treatment.

And yet, when I posted about my little back injury (now pretty much resolved, and thanks to all who sent me get well wishes), the posted comments on LinkedIn were sharply divided: either I didn't have a claim at all and it should be denied, or just stay out of the system and get real treatment.

Yep - benefits DENIED! Though sharply divided literally, the contextual message was frighteningly singular: Take your claim elsewhere because the work comp system doesn't want you.

Either outright, or via surreptitiousness, the message I got as an injured worker is to go away.

Curiously I didn't get much feedback as the employer of that injured worker...

I'm surprised Darwin lasted this long. If he didn't have such extraordinary energy, compassion and resolve to do the right thing, to protect those injured on the job, and to make the system work for those it was intended to protect, he would have hung up the towel long ago.

Norman, I didn't get the pleasure of knowing you but for a couple of all too brief encounters. But I know lots of injured workers got to know you much better which may be good, but unfortunately is probably a sad testimonial.

Tuesday, July 22, 2014

Forms Imperative: Reduce Clutter

The California Division of Workers' Compensation is finally getting around to moving forward with revising various notices that go to injured workers.

This is a project started long ago, following a 2010 report from the Commission on Health, Safety and Workers' Compensation that critiqued regulations that led to notices it said were overly wordy and sometimes redundant, as well as “complex, frightening, vague (and) confusing,” and overdue - but the DWC got side tracked by a little project called SB 863.

The division first proposed the rules in April 2013 by posting them in draft form on its online forum.

Of course with the possibility of new forms, everyone has to get their say in to make sure that their special interests are represented.

Applicant attorneys want to be sure that at every step of the way the injured worker knows that they have the right to an attorney and that there are as many forms or other communications sent to injured workers as possible every step of the way.

Employer groups want to be sure that anything concerning websites or alternative means of communication are "if available."

In the meantime the division seems focused on some potential cost savings simplifying and minimizing forms.
Clutter - I hate clutter.
DWC thinks new forms and regulations could reduce litigation and save an estimated $15 million a year, although it admits in its Statement of Reasons that this is just a WAG:

“However, the lack of empirical data on the extent of attorney involvement and litigation before benefit notices reached their current level of complexity, in the mid-1990s, in addition to the difficulty in ascertaining the current level of litigation driven by complicated benefit notices as opposed to amount of compensation paid, casts doubt on the study’s assumptions,” the division said in its Initial Statement of Reasons. “Lower savings are more probable, although there is no accurate means to forecast or identify savings directly due to the regulation’s improvements after they become effective.”

CHSWC has said that revising benefit notice regulations could reduce legal defense expenses by $43 million a year, based on estimated savings of 5% from the $867 million carriers paid in defense litigation costs in 2008.

I know everyone likes to talk about costs - whether something will reduce, increase or shift costs. But making the discussion about costs in this context interferes with the ultimate goal of revising forms that are more simple but still communicate effectively statutorily mandated language.

One of the biggest conversation problems in workers' compensation is the seemingly orchestrated concert about costs - whether this change will increase or reduce costs, etc. It seems that every little regulatory or legislative move makes the melody all about costs.

Forget about costs. Talk about value. Value is partially about costs, but also about return on investment. If X dollars are input, then we want to see Y result returned.

DWC for its part sort of does this in its most recent forms proposals by projecting that there will be less confusion which results in less litigation - though admittedly there is no empirical evidence to back this up.

Still, that the community is engaged in producing better forms to lead to better communications is encouraging.

I don't know how DWC comes up with the graphical elements of its forms, but my guess based on form layout and knowing how government operates is that someone within the Division was tasked with the job using a word processor program.

That's a tough job - because word processing programs are inherently deficient in dealing with graphical elements such as layout, borders, font changes, etc.

What about giving the task to a real artist - someone who is trained and makes a living at design graphics using modern programs such as Adobe Illustrator or InDesign; something that was made for preparing graphical layout?

I look at the current proposed Claim Form, and while it is a bit better than previous versions it still makes my head spin: too much information in too small of a space; i.e. clutter.

I hate clutter. Reminds me of hoarding which makes me uncomfortable.

My guess is that a good graphic artist can render the Claim Form into a much cleaner, more easily digested form while still meeting statutory and regulatory requirements than a DWC employee. For one, graphic artists look at a sheet of paper much differently than you or I. For another, someone thinking outside the box won't be stifled by prior versions.

The DWC will hear testimony on the proposed rules during a public hearing on Sept. 3 at 10 a.m. in the auditorium of the Elihu Harris state office building, 1515 Clay St. in Oakland.

Public comment will be accepted until 5 p.m. on Sept. 3. Comments can be mailed to Maureen Gray, regulations coordinator, Department of Industrial Relations, Division of Workers' Compensation, P.O. Box 420603, San Francisco, CA 94142.

Comments can also be sent by fax to 510-285-0687 or by email to

The rulemaking notice, Initial Statement of Reasons and proposed rules and notice forms are here.

The draft rules and public comments from 2013 are here.

Monday, July 21, 2014

My Industrial Injury

Well I did it.

I had an occupational/industrial "injury."

Thursday afternoon I arose from my desk, turned to one side in a slight twisting motion, and my 54 year old back let out a little "tick."

You know, that sort of minor catch where you get a bit of a twinge in the low back; where it doesn't really hurt just at that time. But I knew I would have some pain in the day or days to follow.

[One of my problems (yep, I have many) is that I have a high tolerance for pain. Part of that tolerance is due to the multiple injuries I have sustained "growing up" (if the stupidity to injury scale is utilized, I didn't really grow up until about age 48), part of that is due to my hyperactivity, and part of that is due to Mom's lack of empathy for my fatuity ("your shoulder is going to bother you for the rest of your life!" was the first thing I heard when I came home with a radical shoulder dislocation after a 35 mph skateboard fall).]

I carried on the for rest of the work day in a relatively normal fashion, partly aware of the increasing level of pain in my lower right back.

I didn't report it to my employer, and I didn't fill out any forms.
Bowzer: "Ooh .. that hurt..."

When I got home I did tell my wife about "pulling a muscle" in my back at work. The pain and tightness in the injury area had increased. She prepared an ice pack to help reduce the swelling and inflammation, and I had a beer.

Sleeping that night was fitful - the stiffness and soreness increased in the supine position. Laying on my stomach, though, was worse. Time for Advil.

The next day at work my movements were guarded and slow. Riding my bicycle in the morning before work didn't exacerbate the condition, and actually made it feel a little better.

At work I could get up out of my chair and walk, but the injury area was tender and more painful than the day before, and required guarded movements.

Still, I put on my game face, didn't report the injury to HR, didn't fill out any forms, didn't tell anyone.

Sing the following phrase in a descending baritone: "I'm too tough to care...".

Because I've experienced the "pulled back muscle" situation before, as I'm sure most of us over the age of 50, or even 40 have, I knew that this incident would resolve on its own eventually.

Sure enough, I awoke Saturday and the intensity of the symptoms had indeed decreased. Some minor vestiges of pain and soreness remained, but I cycled 73 miles with 4,600 feet of elevation gain, trimmed the hedge in the back yard (which includes using a ladder and power trimmer), mowed the lawn, cleaned the floors, washed the motorcycle, and did all sorts of other household chores involving medium to heavy physical activity.

But now I face a conundrum: I am admitting here, publicly, in this blog, that I have committed fraud on multiple counts.

I sustained a work injury. I was at work. I was doing my job. The injury, though minor, arose out of, and occurred in the scope of my employment. Perhaps it required only first aid, but who's to determine that? I didn't report the injury and I didn't fill out the required form. I didn't follow The Law. There are penalties for not following The Law.

Worse yet, as an employer I witnessed a work injury! But I didn't provide the employee with the injury claim form. I didn't complete the Employer's Report of Injury. I didn't tell the insurance company about it. I didn't refer the employee to medical care. As an employer I too didn't adhere to The Law, and likewise face consequences.

On both accounts I simply hoped that the incident would just go away.

And if it didn't go away I would probably just go to my personal general health doctor and tell him I experienced an unknown source of back pain at home anyhow.

Which is not, as it turns out, an unusual reaction from someone intimately experienced in workers' compensation.

In the panel session in which I participated at the California Coalition of Workers' Compensation 12th conference in Anaheim, CA last week, I asked the audience of over 400 work comp professionals by a show of hands if they would they seek treatment within the work comp system for any disease or injury, regardless of origin (industrial or not).

One hand went up, and I suspect that was from a self-insured, self-administered employer.

All other 399+ hands stayed down.

How can we put people through the work comp system if we, people that are intimate with work comp, professionals that deal with the system day in and day out and KNOW people within it to get things done, have no faith in it ourselves?

Was I wrong in not reporting my injury to my employer?

And as an employer who actually witnessed the injury, was I wrong in failing to provide a Claim Form for benefits or failing to get the employee to a physician?

What if this injury ends up being more than a sprain? Will I be denied benefits if I later claim an injury? Do I even want to bring this into the work comp system? And if I decide to stay out of the system, am I committing more fraud by telling the physician that I'm not sure how the injury occurred but that it happened at home? And is it even right that I knowingly shift the cost of this incident out of work comp and into the general health sector?

I'm guilty on so many counts.

When you send over the prosecutor please take it easy on me. My back hurts...

Friday, July 18, 2014

Informed Medical Decisions

At the California Coalition on Workers' Compensation 12th Conference in Anaheim yesterday, Department of Industrial Relations Director Christine Baker reviewed with the audience of mostly employer representatives the statistics arising out of SB 863's Independent Medical Review system.

As you likely are aware, the performance of the system has been questionable - and Baker was equanimous in spreading the blame for the lackluster numbers across the board, including her own agency.

Most everyone asked to examine how SB 863 is doing says that it's too early to tell, and while the Division of Workers' Compensation may be putting positive spin on the changes, realistically the early promises made of savings and better system performance have not come to fruition.

Be that as it may be, I wonder if all of this UR and IMR debate might be different if the injured worker were more involved in the medical decision making process.
Bowser: happy with SDM
A friend of mine pointed me to an organization in Boston, MA that espouses shared medical decision making, where the patient is centrally and actively  involved in all parts of the treatment process with greater knowledge and information about consequences and benefits of different options.

The Informed Medical Decisions Foundation says that Shared Decision Making is a collaborative process that allows patients and their providers to make health care decisions together, taking into account the best scientific evidence available, as well as the patient’s values and preferences.

The organization states on its website:

"Unfortunately, patients often make decisions about medical treatments without completely understanding their options. Decision aids present the various treatment options in an unbiased, balanced way to patients so they can make an informed choice. These tools, which are designed to complement, rather than replace, counseling from a health care provider, can be used to facilitate a shared decision making conversation between patient and provider."

As you might imagine, SDM requires greater interaction between patient and physician. It is described as "the process of interacting with patients who wish to be involved in arriving at an informed, values-based choice among two or more medically reasonable alternatives." (Emphasis original.)

The process involves informing the patient about the various evidence based options (evidence based medicine is critical to the process), the providing various tools that have been prepared in an unbiased manner to allow the patient to have a better understanding of the trade off of benefits and risks of any particular treatment option.

According to a 2010 survey conducted by the University of Michigan, the vast majority of people simply accept whatever treatment protocol their physician advises without exploring any alternatives. In fact, the study concluded that between 65% and 95% of the time the health care provider simply advises "just do it."

The studies promoted by the Foundation on SDM clearly reflect that the process is beneficial to the patient, reducing confusion about treatments, increasing patient satisfaction and decreasing risks with healthier outcomes.

But can this work in the industrial medicine setting? I've often opined that one of the problems with workers' compensation is that the injured worker, though the center of all sorts of activity and attention, completely lacks any participation in his or her treatment - seemingly blithely going along with whatever the doctors, the administrator and/or UR/IMR says is going to happen.

So it seems like SDM could work in the industrial medicine setting.

But while this sounds like medical treatment nirvana, in the volume based business of workers' compensation medical I have reservations about the ultimate effectiveness of this ideal.

Physicians already complain about unrealistically low reimbursement rates in the work comp world, and also complain about ridiculously long accounts receivables reconciliation. What SDM seems to propose is greater dialogue between physician and patient with more resources available to the patient along the decision making process.

I think most injured workers would gladly engage in SDM if promoted by the doctor but there's a caveat - how is the physician going to get paid to engage in this process, which is going to take up more professional time?

SDM is probably worth exploring further in the context of workers' compensation medical treatment, but along with it must come motivations for using it.

In the panel presentation that I participated at the CCWC Conference on Wednesday I opined that many of the incentives in workers' compensation defeat the ultimate goals of reducing treatment approvals and disability duration.

Look at what drives people to behave certain ways, fix the incentives and rewards, and processes should move more efficiently and effectively.

SDM could work, but legal and regulatory changes would first be needed to motivate its use.

Thursday, July 17, 2014

A Drug Testing Rebuttal

Last Friday I blogged a title, "Urine Is Big Money."

What I opined was that the very public lawsuits and jury verdicts in the cases between Ameritox, Ltd. and Millennium Laboratories, Inc. revealed unsavory marketing tactics that incentivized physicians to do drug testing and that there was a lot of money involved.

I called this "nonsense" because you and I pay for this surreptitiously through higher fees and greater utilization.

Specifically I said, "Drug testing may have its place in certain situations, but the incentives these companies throw at providers of care to initiate services is offensive to me, and should be to you."

Michael Gavin is president of Prium, a medical intervention firm that has particular expertise in providing tools for drug management.

He called me the other day to tell me that he a) enjoyed WorkCompCentral's new adaptive newsletter format (I know, shameless self-promotion) and that b) he had written a blog post rebuttal to Urine is Big Money but decided to run it past me rather than publish it publicly to deter the wrath of a potential counter-point.

Heck - I think dialogue is good! So with Michael's permission, I took the easy way out today and am posting his opinion with just a little editing for format and readability:


When Ameritox purchased PRIUM, I did my own due diligence on the Ameritox management team.  I believe I'm working for the good guys and we're genuinely trying to do the right thing.

I like David DePaolo.  A lot.  He is a voice of reason in our industry and I've enjoyed his musings, both personal and professional, for years.  

But on the issue of urine drug monitoring, I think he's off the mark.  On the one hand, I'm coming at this from an admittedly self-interested perspective (PRIUM is a wholly owned subsidiary of Ameritox), but on the other hand, the context and conclusions of David's recent post on drug monitoring beg for someone to clear up the confusion.  

What did he miss?  Nowhere in his piece did he mention several key facts.  David knows all of these things, but critical context is missing from his view on Urine Drug Monitoring.  Namely, he didn't mention that: 
  • People are dying.  Overdose deaths from prescription opioids now outpace deaths from traffic accidents and have tripled since 1990; 
  • The CDC has identified the opioid crisis as an epidemic, a term the CDC does not use lightly; 
  • More than 12 million people reported using prescription painkillers nonmedically in 2010; 
  • Urine drug monitoring technology is relatively new.  David's quote from the CWCI data that suggests 192X growth in spend on urine drug monitoring in CA doesn't recognize the point at which the health care community sat on the adoption curve for this technology in 2004.  Nor does it recognize that we still didn't realize the enormity of the opioid crisis in 2004.  And don't tell me we knew in 2004 how bad this was going to get.  I came into this industry in 2010 and spent my first two years here at PRIUM trying to convince payers there was an opioid problem in the first place.   
  • There's a distinction between point-of-care testing in a doctor's office and reference lab testing. Failing to make this distinction leads the reader to conclude that all inappropriate behavior rests with reference labs and fails to recognize that some physician practices are by themselves driving inappropriate utilization.  Physicians who partner with experienced and capable reference labs that understand payers' perspectives and expectations can help align stakeholders (injured worker, physician, lab, and payer).   
  • There are guidelines for the appropriate use of urine drug monitoring and these guidelines are based on risk stratification of the patient.  We follow these guidelines.  We help payers follow these guidelines. Testing beyond the guidelines is as inappropriate as not testing patients that should be tested.  
  • Even in light of these guidelines, WCRI data tells us that less than 25% of injured workers on long term opioid therapy are being tested at all.   David states "we know [the guidelines] are specific case recommendations particular to a certain set of medical facts, not to be applied universally."  Agreed.  Perhaps David doesn't realize how many injured workers fit that "certain set of medical facts."  A lot more than he apparently realizes.  
  • Not all companies offer direct financial incentives to physicians.  He lumps an entire industry together and does so just a couple of paragraphs after he details that Millennium's practices were found by a jury to be illegal and that all counterclaims against Ameritox were dismissed.  Perhaps David missed the most important take-away: there's at least one company trying to do it right

Bottom line: what David blithely dismisses as "nonsense" is, in fact, a critical patient safety tool, a mechanism for effective claims management, and a necessary application of clinical technology that isn't going anywhere. To suggest otherwise in light of the largest man-made epidemic in the history of the world is simply irresponsible.  



So I agree that drugs are a public health concern. I agree that drug testing can be an important part of patient care. And that Ameritox was found clean of engaging in questionable marketing tactics is comforting to me.

But Michael misses the theme of my post.

The point I was making was that the Millennium/Ameritox case simply provided insight into how medical supply businesses work, and how much money is involved. 

This occurs inside, and outside, workers' compensation. And not just drug testing companies, but nearly all medical supply businesses have some marketing systems that provide physicians incentives to use and/or promote their products.

Marketing practices that improperly cause physicians to prescribe specific products or services should not be tolerated without full disclosure to the patient and the payer as to the nature of the incentives to the doctor. 

That's the bottom line.

That Gavin's company, Prium, and it's parent Ameritox, don't engage in "direct financial incentives to physicians" is a good start. Next would be disclosure as to what incentives are placed in front of physicians so the people can make informed choices about whether prices and utilization are appropriate for any given case.

Thank you Michael for taking the time to write a rebuttal.

Wednesday, July 16, 2014

California Bad Dreamin'

Later today I will be on a panel of other pundits at the California Coalition on Workers' Compensation 12th Annual Conference at the Disneyland Grand California hotel in Anaheim.

"California Dreamin'" is the theme of this year's event, and it seems like an appropriate motif, particularly in light of the state of Utilization Review and it's red headed step child, Independent Medical Review.

"Red headed step child" because the ill conceived, mis-executed, appellate process for medical treatment decisions is being beaten down at the trial level, for now, and likely will have the same results up the judicial review train.

The UR/IMR scheme is being exposed for failures in timeliness, appropriateness, and expediency, driving up costs and disabilities and generally failing to meet industry expectations.

As timely as it could be for purposes of our panel this afternoon, WorkCompCentral published today a story about a case where the UR/IMR process was stricken by a Workers' Compensation Judge for a complete failure in legal standards.

And I think the decision is correct.
Bowzer takes exception to UR/IMR
WCJ Judge John C. Gutierrez of the Van Nuys District Office on Monday ruled that Ralph Loynachan is entitled to 24 sessions of psychotherapy each year for a brain injury he suffered in October 2009 while working for Los Angeles County.

Loynachan had received 24 therapy sessions each year since 2010, but a Sept. 20, 2013, utilization-review decision modified the treatment to six sessions of psychotherapy.

The UR decision said while the treatment is medically necessary, “the relatedness of this condition to the industrial injury has not been determined.”

Let me pause this narrative with a, "Are you kidding me?"

Since when does UR get to decide compensability of treatment? To the utilization reviewer: the law in California is that if an injury is only partially responsible for the need for treatment then the employer/carrier is responsible for ALL of the treatment; treatment can not be apportioned.

Yet the utilization review seems to take it upon his/her own initiative to unilaterally state how much treatment is apportioned to the industrial injury.

Gutierrez said this was a “troubling statement” in light of the fact that the nature of the injuries was already declared to be industrial.

Yep ...

Worse yet, the Dec. 4, 2013, IMR determination upheld the UR decision.

The IMR reviewer, in affirming the UR decision to reduce the number of therapy sessions to six, said the sessions were not medically necessary and appropriate because of a lack of evidence that the sessions “will lead to a complete recovery of functional cognitive learning skills because the mild traumatic brain injury is interfering with cognitive function.”

Pause again - EXCUSE ME?

If the "system" is paying Maximus millions of dollars a year to do the job of properly reviewing treatment appeals, it had damned well better know the law. There is NOTHING in California workers' compensation laws or regulations that require that treatment demonstrate that anything will lead to a "complete recovery."

The correct standard for determining what constitutes reasonable and necessary treatment is not what is “medically necessary and appropriate,” but is what is necessary to “cure or relieve” an injured worker from the effects of an industrial injury. The WCJ got this part of the equation absolutely correct.

Guttierez also took exception with the suggestion that Loynachan wasn’t entitled to the treatment because his condition rendered it less effective than it would be had he not suffered a brain injury.

“For IMR to further state as its rationale for re-affirmation of the UR denial, that applicant’s neurological deficits are interfering with the effectiveness of the psychotherapy sessions is quite demeaning, and contrary to the Official Disability Guidelines, with little regard whatsoever for the dignity of the applicant’s quality of life or, for that matter, the applicant’s mental well-being in preventing further deterioration,” Gutierrez wrote.

However, Gutierrez failed to exercise judicial restraint in his Opinion on Decision, which in my view jeopardizes applicant's appellate success for the case, because he decided to take on the entire SB 863 machine.

“In my opinion, it would appear that our current workers’ compensation laws were guided through the Legislature and devised by a certain capital class and their lobbyists with powerful financial influence, who by their actions do not appear to value the well-being of injured workers, and would rather see the return of the industrial revolution, and rid capital industry of the responsibility placed upon industry by the ‘bargain,’ whereby the current law severely limits access to medical care or treatment; and would prefer to have injured workers and their affected families place their faith and reliance on charity and an injured worker’s rugged individualism in coping with catastrophic economic and residual health effects caused by an industrial injury,” Gutierrez wrote.

The WCJ is entitled to his personal opinion, but it shouldn't be part of a court record, particularly in a case like this one where emotions are high, the stakes are higher, and the rest of the work comp world is looking for some clearly lighted path to reasonableness.

But the picture is being painted for this whole mess to get to the Supreme Court of California at some point in the next few years - and the fact pattern of this case could make it the one that scrapes the IMR system if the defendants decide to challenge the judge, though Guttierez' injudicious dictum might swing appellate review against Loynachan.

Blame it on Maximus, blame it on the applicant attorneys, blame it on the administration, employers, carriers, etc. - it doesn't matter; as experience is gained the promises made by SB 863 proponents for the IMR system is indeed "California Dreamin'."

The reality is that California's version of the UR/IMR is at best a bad dream, but I think it's turning out to be more like a nightmare.

Tuesday, July 15, 2014

It's Just Work Comp

A former work comp adjuster and now a legal assistant for a work comp/personal injury in Oklahoma, wrote to me the other day about a claim that has been pestering her for too long.

Pestering as in she has been helping her attorney on a claim that has lingered far too long, resulting in unnecessary disability, and likely will result in the complete lack of employment in the future for this injured worker.

She sent me a copy of the letter she sent to the injured worker's treating physician outlining the history of the injury and treatment, or more accurately, lack of treatment in a timely manner and I need not repeat it here - the history is convoluted and lengthy as one would imagine from a 2011 injury claim that is still "active" in 2014.
Bowzer: "What's the Big Deal?"

In the meantime the injured worker racks up 61 weeks of temporary total disability awaiting the proper treatment.

The most important piece of the story, however, is this former adjuster's recognition of how this happens, that she was a part of this, and that this case is unfortunately exemplary of the state of workers' compensation around the country.

She wrote to me:
Awareness is important in these matters.  Everyone has to understand the impact our decisions have on the innocent bystanders, which in most cases is the injured worker.  After all, what does the general person know about the practice of medicine, diagnosis, and surgical procedures.  They are trusting the folks in the white coats.  We grabble and argue with one another and these people are caught in the middle and have no control over anything.  Caught in perpetual turmoil.  How many of us would put up with this?  Do you want some adjuster, who lives and works in another state that you have never even met making decisions that impact your life?   

It is wrong on so many angles, including my own.  I am certainly not without sin in this matter. However, I am glad that ultimately I did the right thing and have not pushed for litigation to authorize an unnecessary surgery that would more than likely leave my client worse off than he is now.    

This crap is nationwide.  I mean, really why is there so much controversy in work comp?  It doesn't seem to be present so much in other areas of insurance such as personal health and third party liability. You know? Let's say you have personal health insurance, you go to your doctor because you injured your back.  You may get a letter from your carrier asking how you injured your back.  You answer stating I injured my back at home digging a ditch.  Your health insurance pays for your treatment. There is no court proceedings.  There is no fall out from your employer because you have to take time off work to attend physical therapy or whatever.  You are not suddenly held under a microscope and made to feel like a liar.  No, you just get treatment that is paid for per the provisions of your policy.  

So why isn't the same with the work comp injury?  You injure your back at work.  You should receive treatment as outlined in the provisions of the work comp policy.  Of course the work comp policy is defined generally by the state.  In Oklahoma that would be Title 85 or Title 85 (A) depending on the date of injury.  As a work comp adjuster I need to apply benefits as provided in the provisions of the work comp title.  It isn't rocket science.

Indeed, why is there so much controversy in workers' compensation? 

It isn't rocket science - but we keep trying to make it so, with "evidence based guidelines" that are more about politics than science

And even if such guidelines were scientific, why does there have to be review after review, resulting in delay after delay?

What's the big deal?

Maybe a clue is in the deals that go on within work comp such as private equity firms buying claims adjusting firms for a billion or so dollars.

Or maybe its within short-sighted authorship of laws meant to transform dysfunction but resulting in greater confusion and ambiguity.

Maybe we try to make work comp too much about who's right or who's wrong rather than just recognizing that this is a privatized (for the most part) social benefit system.

Maybe we shouldn't emphasize "costs" when we all get together at our think tank type conferences - group think that puts all of the focus in the wrong places.

Maybe we need to reconfigure the conversation and instead of asking why things cost so much we should instead be asking why there's any controversy at all.

Remember? Work comp is a No Fault system. It's not my fault. It's not your fault. It's not the fault of the employer, the worker, the attorney, physician, broker, carrier or whomever ... unless timely and appropriate benefits aren't provided.

THEN we have fault, controversy, hearings, appeals and ... costs.

It's not rocket science. It's just work comp.

Monday, July 14, 2014

Superbike Comp

Monterey, CA - Watching the fastest motorcycle riders in the world at the Laguna Seca Mazda Raceway this past weekend got me thinking about professional sports and workers' compensation (okay, pretty much everything makes me think of workers' compensation...).

Especially after the second "moto" of the day's ENI FIM Superbike World Championship, US Round when the red flag was thrown twice, when riders crashed at the famous Corkscrew turn, and another crash in turn 11 before the finish line stands.

(Spoiler - series points leader, Britain Tom Sykes, took third in the first race, and first in the second, truncated race to secure his number one points position.)

Being an international race with fans from all over the world in attendance, it was not surprising to also see people glued to monitors around the track watching the World Cup final between Germany and Argentina during a scheduled break in the racing (and unless you are completely removed from any sports media, Germany won, 1-0 in a very close and exciting match).

The friends I attended the World Superbike races with joked that I'm like a child in a candy store there. I love the sound of 28 very high performance motorcycles buzzing in a big group towards turn 2 (Andretti Hairpin) at 140 mph, and the skill, precision and bravery of these riders pitched over at impossible lean angles at 80 mph just inches from each other - times between spots measured in the tenths of seconds.
The Corkscrew
And of course the spectacle of all of the manufacturers of bikes and accessories around the track, the international flavor, all of the motorcycles, food, entertainment, and, being the Laguna Seca Recreational Area, hiking!

The athletes are so young - Sykes is only 28 years old and is considered an "experienced" rider. The winner of the support race, the AMA Supersport 600cc class, looked to be only 18 or 19.

It takes young, sharp minds to control a machine at such critical operations, and to muster the courage to do so on the verge of disaster over and over again. It is not a sport for the aged. In fact, the most famous, celebrated and successful motorcycle racer of modern times, Valentino Rossi, at age 35, though still racing, has pretty much lost his mojo.

The top riders make pretty good money. After winnings, salaries, sponsorships, commercials, appearances, etc., the winningest riders can earn millions of dollars a year.

And they need to because their earning ability in the profession of racing a motorcycle is so limited. The less successful riders might make a couple hundred thousand a year, which is insufficient to support them for the balance of their non-athletic lives.

If they have a disabling crash or injuries, then it's really a tough road for the rest of their lives.

So bike racing, while glamorous, is only for a select few in the professional ranks, and frankly doesn't offer a whole lot of life support options for the future. If a racer gets out of the sport without too much disability then there might be a job with a manufacturer, or there might not be - motorcycles and related sports depend on discretionary income of fans - we've seen what happens when the economy tightens up and consumers don't spend.

Which is why I have always been a supporter of workers' compensation programs, or at least the concept of workers' compensation - while some workers are able to make a lot of money engaging in hazardous labor, the vast majority of workers don't.

Racing motorcycles is very dangerous, but to get up to the ranks where one might make a living doing so sufficient to offset the risk of grave injury or death requires participation in the sport, with nearly the same risks, at little to no wages.

Frankly, in racing, you are either in that very, very small segment of the population that can make it a living, or you are just one of the vast majority that incur significant risk for little to no remuneration.

Maybe that's why we don't see much about workers' compensation in the racing world...

After the races, in the hotel room, my buddies and I were watching television - I don't recall what exactly we were watching - but one of the commentators noted that it was a nearly universal concept that when a "good idea" law is written that nearly everyone gets behind it. Concepts are great - people can envision, and embrace, universal ideals.

But when concepts go from law to implementation something happens - distortion gets built in by regulatory interpretation. Then the courts get a hold of the law and the regulations, and attempt to discern what the original concept was from the actual written language, and apply that concept to particular facts.

Then things get interesting.

For instance, the California Supreme Court last week accepted amicus briefs - one where a worker died from a drug overdose allegedly tied to his industrial injury, and another where the maximum statutory rate for a police officer's claim for temporary disability indemnity is at issue.

In the meantime, folks around the country are trying to figure out what to do with repackaged drugs, physician dispensing and compound medications. Since workers' compensation is a state system, the differences are huge from one border to another border. Throw in a Pacific Ocean and the gulf is even greater.

I suppose that when the thrill of the race is removed and the universal concept of sport is removed reality circumscribes dissension. I suspect that if I were to throw all of the various workers' compensation participants in a room together for a day - or perhaps go to the races all together - that we could all agree on what the system should do and how to accomplish it.

But disagreement occurs when one  rider takes a different line that might interfere with another's line. And if it causes a collision then all bets are off.

In racing, when the red flag comes out and the track is cleared of hazards, the race is restarted. Leaders are disappointed because they lose their advantage. Riders that were in the back are elated because they get a second chance.

But the truth is that no rider or fan likes crashes or injuries because that is a disruption to the action and the natural order of things as played out with the original start.

Workers' compensation is like that; lines are taken, folks are cut off, crashes happen, races restart. Eventually there is a winner and a whole lot of losers.

But it's not supposed to be like that. Workers' compensation is supposed to be a bland, flat track with everyone on the same equipment doing the same thing.

I wonder sometimes whether the social ideal of workers' compensation can ever be achieved to any great measure any longer.

My hope and ideal is that there are enough "fans" to support a system and make it do what is intended.

Friday, July 11, 2014

Urine Is Big Money

Not only is there big money in drugs, but there is big money in drug testing, as evidenced by a recent jury verdict against San Diego, CA based Millennium Laboratories Inc.

The jury verdict handed down June 16 resolves three cases dating back to 2011 that were consolidated before the U.S. District Court in Tampa, Florida, and brings to an end all litigation between the rival drug-testing companies Millennium and Ameritox Ltd., based in Baltimore, MD.

The jury ordered Millennium to pay $2,755,000 in compensatory damages and an additional $12 million in punitive damages to Ameritox for violating federal anti-kickback statutes with a program that provided physicians with free point-of-care specimen cups in exchange for referrals.

The 2011 complaint by Ameritox alleged that Millennium marketed a “revenue-based billing model” promoting drug testing as a way to increase income for physician practices. An exhibit attached to the complaint − purportedly Millennium marketing materials − claims a doctor can make $45,021 a year performing a single drug test per day, $225,108 a year performing five tests per day and $900,423 performing 20 tests per day.

The company further claimed that Millennium provided point-of-care testing cups for free or at prices below market rates on the condition that the providers agreed not to bill for the use of the cup, used it only for an initial urine screening and sent the specimen to Millennium for confirmation testing.

The jury determined the cup program, which Millennium says it has discontinued, constitutes remuneration under the federal Stark Law, which took effect in 1992, and prohibits physicians from referring patients to companies with which they have a financial interest.
Bowzer doesn't pee in cups.
The jury further said that the cup agreement constituted remuneration in violation of the federal anti-kickback statutes.

The jury also found that Millennium tortiously interfered with Ameritox's business relationships and engaged in unfair competition in Florida, awarding it $1.625 million in compensatory damages and $7.08 million in punitive damages, interfered with business relationships in Texas and Tennessee, awarding $575,000 in compensatory damages and $2.52 million in punitive damages for Texas, and $555,000 in compensatory damages and $2.4 million in punitive damages for Tennessee.

Inversely, the jury rejected Millennium’s counterclaims that Ameritox interfered with its business in California, Florida, New York, Oregon, Tennessee, Texas and Washington, and rejected Millennium's allegations that Ameritox violated the Stark law.
Millennium failed to prove that Ameritox:
  • Assigned specimen collectors to physician offices to perform receptionist and other clerical duties unrelated to drug testing in exchange for referrals;
  • Provided below fair market prices for point-of-care test cups for testing that the doctor can bill for in exchange for referrals;
  • Entered into lease agreements with doctors that were not at commercial reasonable rates in exchange for referrals;
  • or provided non-monetary compensation to physicians such as paying for Christmas parties and giving gift cards in exchange for referrals.

Though Millennium is asking for a new trial on the grounds that Ameritox was improperly allowed to introduce inflammatory evidence to the jury, the fact that this litigation continues demonstrates the huge margins that drug testing must produce, and the cost of such aggressive tactics on health systems, in particular workers' compensation.

The California Workers’ Compensation Institute reported that carriers and self-insureds paid $98 million for drug testing in 2011, 192 times the $509,000 paid in 2004.

Lon Wagner, a spokesman for Ameritox, told WorkCompCentral, “What we were looking for is a level playing field, and we feel this is a first step toward achieving that.”

How about leveling the field for the consumers, the people that pay for this nonsense? Drug testing may have its place in certain situations, but the incentives these companies throw at providers of care to initiate services is offensive to me, and should be to you.

And such tactics are not isolated - my bet is that these are, unfortunately, normal tactics within the medical supply industry across nearly all medical fields.

Physicians in workers' compensation in particular are vulnerable to such marketing and sales tactics because the actual fees paid to doctors have become increasingly restrictive, and the amount of time bills remain unpaid lengthens, creating impetus for revenue enhancement opportunities.

Some docs of course are unscrupulous and would engage in such revenue enhancement programs regardless, but the motivation for doing so increases the more actual fees for services that provide value to workers' compensation claimants are constricted.

Maybe Millennium and Ameritox are a bit more level now, but when it comes to those of us who actually pay the bills at the end of the day, the case is just one more example of end point consumer gouging.

While medical guidelines recommend drug testing for compliance purposes and to help ensure that drugs aren't being diverted to the black market, we know those are specific case recommendations particular to a certain set of medical facts, not to be applied universally.

But the way medical suppliers stimulate sales with physician gifting and revenue enhancement programs tests the ethical and moral qualities of the individuals on the front lines, and physicians should not be placed in those positions, and we should not be placed into positions of having to pay for it.

Sometimes drug testing is warranted. Most of the time it is not.

I'm sick of it. You should be too. Then we can all go to the doctor, get our drugs, and pee in cups (unlike Bowzer) so we're all in this together...