Friday, July 31, 2015

Angry At The System

An interesting observation was made by David Hanscom, MD, in the WorkCompCentral webinar on Tuesday, "We're Beating Back Opioids - Now What?".

Dr. Hanscom is a board certified orthopedic surgeon specializing in the surgical correction complex spine problems in the cervical, thoracic, and lumbar spine. He has expertise in adult and pediatric spinal deformities such as scoliosis and kyphosis. A significant part of his practice is devoted to performing surgery on patients who have had multiple prior spine surgeries.

But more importantly in my mind is that Dr. Hanscom is an advocate in NOT performing surgery. His book, "Back in Control" teaches that pain, particularly chronic back pain, is NOT an orthopedic issue unless there is some structural issue involving the spine, but rather is about teaching the brain to use detours around established pain pathways in the nervous system.

Dr. Hanscom observed in the webinar that engaging injured workers within the workers' compensation system is infinitely more difficult than in general health "because these patients are so angry at the system."

This is a poignant, and from my observations, an accurate assessment.

One need not look too far around the Internet to find postings by injured workers frustrated and angry.

They are mad at delays, denials, disruptions. There is no outlet for their rage, no way to vent. And when they do the perception is that these folks are irrational.

No one likes to deal with angry people, so when these injured workers' blood pressure rises and they vent some steam, they further damage their cases because the wall of anger increases irreproachability. The ability to rationally converse diminishes. Lawyers get involved (unless the emotional damage is too great in relation to the end-of-case financial reward, then they're left to their own devices).

Statistics bear out that a relatively small percentage of claims are responsible for a disproportionate allocation of costs and expenses. I haven't seen any empirical studies, though, on just how many of these claims involve "angry" claimants. I suspect a much larger representative population than we imagine.

It's our own fault. We have created a system where communication and accountability is minimal.

Sure, there's lots of required notices and forms. They have all sorts of warnings, advise, instructions.

That's not communication. Communication is a two-way street and more important than anything is listening - active listening. Sometimes there doesn't need to be a solution other than some empathetic communication.

And accountability is deferred to the penalty process. Workers' compensation systems are filled with negative incentives. Do something against the rules and one gets penalized.

There are lots of ways to run afoul of the rules and consequently lots of ways to get penalized.

Sort of like that beaten dog - rather than looking for a way to make the master happy, the beaten dog is always trying NOT to do something to make the master mad.

Dr. Hanscom's solution is simple in concept, but difficult in deployment: "The first step I think would be to teach claims examiners to be nice to their clients. It happens to be their legal obligation. Nothing good happens in an angry interaction and at the end of the day the costs skyrocket."

Why is this so difficult? Well, for one thing, the claims payer is the "defendant" and we "defend" against claims.

If you're on the defensive, right off the bat your guard is up and it's difficult to be "nice" when you're fighting.

Secondly, being a claims adjuster is emotionally taxing. We all have bad days. When a claims examiner has a bad day the injured worker, unfortunately, is going to experience that. Bad days need time away from the desk. Time to slow down...

I'm reminded of my trip to Italy to ride motorcycles with my son this past May. The morning we went out to the bikes in San Marino to get started, one of the Ducati Monsters had a flat rear tire. It was obvious that someone, likely disgruntled with our arrival, had driven a drywall screw into it.

While waiting for the tire to be repaired I noticed a hand painted sign hanging on a wall adjacent to our hotel, "Slow down. You are on vacation."

Perhaps coincident? Perhaps not.

The lesson wasn't lost on me.

We all have the same rules and regulations to abide by. But sometimes we just need to slow down and not get consumed by them.


If you missed or were unable to attend Tuesday's webinar, the recorded version will be available on WorkCompCentral in the Education section in a matter of days.

Thursday, July 30, 2015

Engaging Engagement

When I visited Mom the other day she was asleep in a chair in the residence living room area. One hearing aid was in, the other was missing. The safety cord that connects the two (so they don't get separated) was broken where the missing aid would be, with scotch tape wrapped on the cord.

The hearing aid that was present was in the wrong ear.

Ugh - no wonder she was sleeping; she couldn't hear anything that would keep her awake!

I confirmed that the one hearing aid in her ear was working and placed it into the correct ear. 

A caregiver retrieved the missing hearing aid from who knows where. I did not inspect it beyond testing for charge, and it was not responding, so I had the caregiver take the non-responsive hearing aid to the nurses station to place in the charging unit for later deployment.

After lunch I retrieved the non-responsive hearing aid from the nurses station and tied it to the broken cord as a temporary solution. 

I noted then that it still was not charged.

I placed both hearing aids in the charging unit and the non-responsive unit was not charging. I then inspected it more closely and it was apparent that it was damaged.

Dang it... of course, being a memory care facility no one remembered how the hearing aid got damaged!

Regardless, hearing is vitally important to engagement, and engagement is vitally important to dementia and memory challenged patients.

This rang a tone for me (all pun intended) because the panel of experts in WorkCompCentral's webinar Tuesday, "We're Beating Back Opioids - Now What?", all agreed on a couple of very important points: 1) workers' compensation does things TO people (not WITH), and 2) this dramatically decreases the chances of positive outcomes.

For the most part, there is little in the decision making process that the injured worker actively participates in. The injured worker is told what to do, when to do it, how to do it, etc. If the injured worker is asked any questions it's usually about how he or she is feeling (unless it's an investigation or deposition, in which case the questions are a bit more serious).

Otherwise, the injured worker does not really participate in his or her medical treatment. There's a huge disconnect between what is trying to be accomplished, and how the path to that goal is navigated.

In other words, there is a lack of engagement.

Yet, engagement is so simple to accomplish - but it requires communication, which itself requires time and patience.

Time and patience - just like dealing with Mom. She can't hear. And when she can hear her brain jumbles up the message. It may take several repetitions for her to understand, and then she forgets it right away.

Time and patience - virtues that are in short supply, particularly in the claims world.


If you missed or were unable to attend Tuesday's webinar, the recorded version will be available on WorkCompCentral in the Education section in a matter of days.

Wednesday, July 29, 2015

Illinois Light on Fraud

Illinois has been criticized in the past for a lax attitude towards workers' compensation fraud.

Back in 2013 the Illinois Department of Insurance's Workers' Compensation Fraud Unit referred 18 workers' compensation fraud cases to prosecutors in 2012 that resulted in seven indictments, according to an annual fraud unit report by Insurance Director Andrew Boron released on June 28. The unit received only 119 fraud referrals and investigated a total of 64 workers' compensation fraud claims in 2012.

When WorkCompCentral ran that story, it compared the state's overall statistics to Los Angeles County, which generates more than 10,000 fraud reports each year alone. LA County has a population of 9.9 million people, 3 million less than the state of Illinois' population of 12.9 million.

This year the critics will likely still be vocal. And they should be. 
IL WCFU website graphic...

The latest report from the WCFU reflects there were just six convictions in 2014, with only one resulting in jail time.

This pales in comparison to other jurisdictions. California convicted five people of workers’ compensation fraud in April alone. The Ohio Bureau of Workers' Compensation reported 11 workers' compensation fraud convictions in May alone and the Florida Department of Financial Services reported 259 workers' compensation fraud convictions in 2013.

It's easy to say that Illinois is easy on fraud. Certainly there isn't a whole lot of deterrent - the risk of getting caught, whether cheating employees, employers or other, is very, very low.

The statistics reflect a failure in the allocation of responsibilities.

Local Illinois prosecutors do not pursue workers’ compensation fraud claims on their own, relying instead on referrals from the WCFU, according to Cynthia Vargas, the communications manager for Lake County State’s Attorney Mike Nerheim.

The WCFU does not actively look for cases, but relies on referrals, according to the report. There were 29 accusations of fraud made by lawyers, 17 from investigators working for insurance companies, 15 directly from insurance companies, 13 by employers, nine from private citizens and the rest from other sources.

That WCFU doesn't actively look for fraud doesn't explain the light activity.

What the state lacks is an incentive for local prosecutors to pursue fraud.

California, for instance, makes dollar allocations to district attorneys offices for fraud prosecutions. The system has its flaws of course, and may result in misallocated dollars, but certainly Illinois seems to lack any incentive for local law enforcement to deter fraudulent activity.

While the budget for the WCFU was $950,000 for the unit's operations in the 2014-15 fiscal year, according to Gov. Bruce Rauner's budget proposal the unit spent only $370,300 of that money.

Is it any wonder that, despite three years of investigative activity into fraudulent claims made by a huge population of prison guards at a single facility, there were no arrests, despite all of the media coverage?

The WCFU website is at

Tuesday, July 28, 2015

Opioids - the Webinar

We were part of creating the problem, now its time to be part of correcting the problem.

I'm talking about opioid addiction.

In his seminal white paper, published by WorkCompCentral, Peter Rousmaniere presents an overview of how workers' compensation fueled the opioid epidemic, and matter of factly states that "the use of opioids is by far the most controversial and risky kind of care in workers' comp."

One of the driving forces behind the over-prescription of narcotics in workers' compensation is chronic pain. The data is incontrovertible - the longer a treatment case stays open and left unattended by even nearly benign, conservative care, the more the acute pain patient becomes chronic.

There are many potential explanations for this, but I think one of the most compelling is in the brain's curious way of mapping itself into behavior; behavior that essentially gets learned by the brain.

This is called neuroplasticity. The brain can learn pain, and the brain can learn relief.

But most workers' compensation victims are devoid of the resources to enable reformatting of the brain to deal with pain. There are many reasons for this, and certainly the industry's reaction to over-zealous physical medicine providers has contributed to the reduced bag of tricks that treaters previously used to deal with pain.

Pills are easy to dispense, and easy to take. And the habit is well supported by pharmaceutical concerns eager to please Wall Street.

The medical community is happy with the pill dispensing too - we have all seen physician revenue enhancement systems pitched by pharmacological monitors...

In the past few years there has been so much negative publicity and public awareness of opioid issues that there has been a decline in prescription habits, and consequently a decline in opioid related health problems (which include overdose deaths among a host of other complications).

Still, there is a hangover and we have chronic pain, and opioid addiction, to deal with real time, and in an ongoing manner.

Dealing with chronic pain is of primary concern to the workers' compensation industry. If we can't remedy chronic pain then claims never close, and consequently end up worse and more costly.

Today I'm hosting a free 2 hour webinar: "We're Beating Back Opioids - Now What?"

In addition to white paper author Peter Rousmaniere, my guests include CompPharma's Joe Paduda, David Hanscom, MD, Michael Shor, MPH, and Webility's Jennifer Christian, MD. These folks are on the leading edge of chronic pain research and remedies, and will present strategies for the claims industry to deal with chronic pain, opioid addiction, and moving on to the next chapter in the lives of traumatically injured workers.

Registration for the webinar, which starts at 1 p.m. Pacific Time is at

I hope you'll join us.

Monday, July 27, 2015

Auto Pilots and Hearing Aids

It was too smooth, I thought, as I flew down to Oceanside Saturday to check on Mom.

There I was, flying Forty One Mike along the Orange County coastline, abeam Hermosa Beach, in prefect trim and configuration: 5,500 feet, 23 inches of manifold pressure, 2300 RPM, 13.2 gallons per hour, all engine temperature readings within spec.

The air was clear, relatively cool at altitude for a mid-summer day, and surprisingly very little radio chatter indicating air traffic was light.

As we passed the Hermosa Beach pier southbound Forty One Mike sort of "burbled" in altitude by a couple feet, as though we had passed through a river of slightly turbulent air - like what would happen if we had encountered some wake turbulence.

Except there were no other planes near us to generate any wake turbulence.

I thought nothing of it until about a mile later we were in an un-commanded descent of 500 feet per minute.

"Not the autopilot again," I thought, as I disconnected it, reestablished altitude straight and level, re-connected the A/P and again noted the discrepancy.

"Something different," I said to myself - the past few autopilot malfunctions have been with roll attitude. This time it was pitch attitude.

Ugh - the prior owner had told me that the A/P was always an issue with Forty One Mike.

Seems it continues to be!

So on I went to Oceanside flying manually - at least an A/P failure is good for maintaining proficiency, but the hassle factor (and the expense) of repair is an issue. Oh well, has happened before, will happen again probably.

Saturdays at Oceanside Municipal Airport, aka Maxwell Field, are usually busy. When the weather is Ceiling And Visibility Unlimited it can be crowded, what with vacationers, sky divers, and weekend travelers - such it was this past Saturday.

Fortunately my frequency to KOKB has engendered good relations with airport management, and they instructed me to park Forty One Mike along side hangar 4 so I didn't have to hike a mile and a half back to the terminal (all of the transient parking was taken by weekenders).

After securing the plane it was off to Mom's.

When I arrived, Mom was asleep in a chair in the engagement area. She had one hearing aid in, the other was missing. The safety cord that connects the two was broken where the missing aid would be, with scotch tape wrapped on the cord.

The hearing aid that was present was in the wrong ear. 

I confirmed that it was working and placed it into the correct ear. 

A caregiver retrieved the missing hearing aid. I did not inspect it beyond testing for charge and it was not responding, so she took the non-responsive hearing aid to the nurses station to place in the charging unit.

After lunch I retrieved the non-responsive hearing aid from the nurses station and tied it to the broken cord as a temporary solution. 

I noted then that it still was not charged.

I placed both hearing aids in the charging unit and the non-responsive unit was not charging. I then inspected it more closely and it was apparent that it was damaged.

Mom's hearing aids have always been an issue it seems. They are important. Social engagement is a huge part of dementia rehabilitation, but without hearing there is virtually no engagement - imagine trying to participate when you can't hear...

I brought the hearing aid problem to the attention of staff and management at Mom's facility - again.

Repetitive issues: auto pilots, hearing aids and medical marijuana in workers' compensation.

At the California Coalition on Workers' Compensation conference last week a panel presentation on medical marijuana warned that "it was coming" - Federal rescheduling from Schedule 1 to Schedule 2, meaning that workers' compensation payers will need to have a strategy in place to deal with a drug that is of unclear objective medical benefit.

There are ancillary issues too, of course, such as how to tell when one is "intoxicated", all of the various strains and names, standardization of dosage, distribution, overdosage, etc.

Let's be real about this entire debate - medical efficacy of marijuana is highly suspect. It may help some people with some symptoms, but so does alcohol.

Alcohol has long had some medical benefit - it's used to disinfect, to help with insomnia, and other very limited purposes and in varying strengths and blends.

But alcohol is also a hugely popular recreational drug that used to be completely outlawed. Now it is a large source of taxation revenue for government.

Qualifying for, and obtaining medical marijuana is a complete joke. It's basically legalized for "recreational" use except the buyer has to go through a couple extra steps to get it. There's pricing consistency, home delivery, fancy packages ... and lots of money involved. 

If you want weed, you just have to go through the process and pay some money. It's not a daunting task.

What is going to drive the marijuana bus is money, and ultimately the government will not be able to resist.

Big tobacco is in on the game, and states are starting to wake up to the wind fall as well. Eventually the federal government just won't be able to "say no."

Marinol is the real medical marijuana. It is controlled in its production and distribution. Its efficacy has been tested. There are warnings and indications for its prescription.

If marijuana is to be smoked or eaten, then it is of questionable medical efficacy - and that's the bottom line.

New Mexico is forcing payers to reimburse for marijuana that's smoked. Minnesota is putting together a fee schedule.

Whatever - eventually a standardizing body will issue model regulations, medical guideline writers will author use restrictions, and the pharmacological benefits will be controlled.

And we'll still have issues with it - because people will, just like alcohol or any other drug, understate their consumption, dismiss the effects, and ignore the hazards.

I'm taking Forty One Mike into the shop this week. The auto pilot will be removed and I'll fly around for a couple of weeks by hand until the repaired unit returns with some new transistors and capacitors (remember, that thing was built 35 years ago!).

And I'll have the hearing aids shipped off for repair or refurbishment. Mom will walk around unhearing, disengaged, more deep into her little confused world for a couple of weeks, unable to really communicate other than smiling, nodding and repeating "what did you say?".

Eventually Forty One Mike will have an operational auto pilot and Mom will have functioning hearing aids.

Eventually this medical marijuana issue will be fixed too and we'll move on to the next issue.

Friday, July 24, 2015


The "happiest place on earth" might seem like an odd place for a conference on workers' compensation, but the attendees I talked to at the California Coalition on Workers' Compensation's 13th annual conference did indeed seem ebullient.

Sessions included many of the usual topical elements: politics, controversy, techniques, issues, problems, solutions.

We learned about politics, drugs, communications, and settlements.
Soule Innovations

Presentations included panels on recent case law, pharmacology, and the UR/IMR process.

But what got my attention the most was the presence of Kids' Chance of California, the people that make up the organization, and most importantly the recipients of the scholarships that this organization has placed.

Kids' Chance provides scholarships to children of workers who suffer either fatal or very severe industrial accidents, and the stories the "kids" have are, of course, incredible.

Think about the impact of losing a parent (or both) at one of the most critical times of a young person's life: age 18, when we are considered "adults" with absolutely zero adult skills. This is the point in life when we are supposed to take care of ourselves, but the fact is that the vast majority of us lack the maturity, the knowledge, the fortitude, to take on the challenges of life, let alone go to college.

At the Kids' Chance reception we heard from Trent Johnson, son of double amputee Dwight Johnson, the organization's most recent scholarship recipient. He'll be going to University of Idaho to study agricultural engineering. To say that Kids' Chance is a huge help in this dream is an understatement - Trent comes from a family of seven, so family resources are stretched thin (even though Dwight, his father, helps make ends meet with his awesome custom art shoes). Without Kids' Chance, Trent wouldn't have this chance ... bottom line.

We heard from the Andrade brothers - Kids' Chance of California's first scholarship recipients. Their father was killed on the job in 2006.

Brittney Hudler told us about her pursuit of education, and the shock that came when she discovered how expensive it was.

Several others tugged at my heart as they described losing both parents to work tragedies, picking up the pieces, trying to get on with life, and finding Kids' Chance to help them get an education, create a career, and a new life's path.

It's easy to get hung up on our differences in workers' compensation. We all have issues and disagreements. Workers' compensation, for some reason, creates divides. There are walls that get in the way of communication. Some folks want to limit benefits, others want to expand them. Some feel they aren't treated fairly, others think the fairness is too one sided.

I don't care what your issues are. In workers' compensation we are charged with making sure that we provide people, and their families, support during bad periods of life. Some require more assistance than others. Some seek to take advantage of the system's gratuity, and others feel slighted by the program's inefficiencies.

Listen, we all do what we can within the limits of our resources and the law. I think that most people in the workers' compensation field, though, are genuinely humanitarian. I see it in the faces of the people I engage with. I hear it in their voices. I experience it through their actions.

Kids' Chance is one way that this industry can take down that wall of divide and disagreement, and demonstrate its goodness to the world. 87% of all donated dollars to Kids' Chance California (there are 26 state chapters now) go directly to scholarship recipients. In this age of questionable charities and diverted dollars, this is huge.

Kids' Chance will gladly accept donations - of course! But one of their challenges is finding and identifying qualified recipient candidates.

They're not concerned with GPAs, class placement, etc. Their only concern is that the children of work place tragedies get a degree.

If you're reading this blog, then you know of, or you know someone who knows of, a family that qualifies. Whether you're an applicant attorney, or a claims adjuster, contact Kids' Chance and learn how to nominate a young adult who needs that little extra help.

Thursday, July 23, 2015

The Shared Risk

I wrote a couple of days ago about declaring a third employment option: the Dependent Contractor.

I was corrected by my law school roommate, ET, who told me later that he did not in fact coin that phrase, but it was some law school professor quoted in some general media article, likely the Wall Street Journal.

Thanks for the correction ET.

It seems that the shared economy has, nevertheless, piqued the interest of insurance companies who see opportunity with a new class of workers and businesses to protect, and this may expedite recognition that this economy isn't what we were raised on.

WorkCompCentral reporter Ben Miller today writes that while regulators, as well as the insurance industry, appear to be taking a wait-and-see approach to the shared economy, there is much more interest now than just a year ago.

James Lynch, chief actuary for the Insurance Information Institute, said the opportunity could be ample. He pointed to Uber, which reported that it paid its drivers more than $650 million during the fourth quarter of 2014.

Using that number as a starting point, Lynch said it would be reasonable to assume that a carrier writing workers’ compensation coverage for Uber would be covering more than $2 billion in payroll for the year. On top of that, Uber has grown rapidly throughout its existence. Business Insider reported that the company grew from about 10,000 drivers at the beginning of 2014 to nearly 40,000 at the beginning of 2015.

“Obviously that would be a very attractive market for anybody to want to write,” Lynch said. “And that's one company.”

“Taxicab drivers in New York and I think Chicago and some other cities have to have workers' compensation and they're in kind of a similar part-time, add-on role,” Lynch advised. “So I think the industry is certainly capable of handling that. But at this point it's a small niche of the workers' compensation market.”

Another point is that the workers' compensation industry is uniquely positioned to service this new dynamic. We are used to merging medical services, disability determination, third-party liability, and payroll analysis. Risk managers and actuaries in this industry have the skills to fairly accurately determine the risks and how to account for them.

While many interviewed in Miller's story think that the shared worker will ultimately be classified as an employee, the economies of doing so mitigate that trend and threaten shared economy business models, which is why I think a new class of workers will be designed.

Regardless, it appears that workers' compensation will ultimately benefit from this new model, one way or the other. 

The shared economy may spawn the shared risk....

Getting to stability might be painful and a bit frightening, but the workers' compensation industry is resilient and I believe the industry's future with the shared economy is an optimistic one.

Wednesday, July 22, 2015


Who is an employee entitled to workers' compensation benefits anyhow?

If it's the Federal Government, employees include informants and whistleblowers who remain anonymous due to their intentionally secret lifestyle as a consequence of their spy status.
Something doesn't smell right...

And because they're so secret, the government doesn't even know how much, or for how long, some of these informants receive compensation under the Federal Employees Compensation Act because no one keeps any records - these people are, after all, confidential sources.

An audit report released yesterday by the Office of the Inspector General, the investigative arm of the U.S. Department of Justice says informants working with the Drug Enforcement Agency also get federal employee workers' compensation and death benefits without any oversight or review, according to a story published this in this morning's issue of WorkCompCentral News.

The OIG report says the DEA has been using FECA to pay informants for more than 30 years, but the cost is unknown because there are only a handful of records for any of the claims.

The report references a DEA manual that states FECA pays benefits when a confidential source is injured or killed as a result of cooperating with the agency. The manual references another DEA document that says non-federal law enforcement officers injured or killed while apprehending someone who committed a federal crime are covered by FECA and suggests this also applies to informants.

The DEA cites United States Code Title 21, Section 886 as the basis for allowing informants to collect comp benefits. But that section simply authorizes the attorney general to pay confidential sources out of DEA funds. It has no relationship to FECA, according to the OIG.

"In our view, 21 U.S.C. 886 does not provide a legal basis for the DEA's position that its confidential sources were appropriately categorized as non-federal law enforcement officers eligible for FECA benefits," the audit says.

After reviewing a draft of the audit report, the DEA said U.S. Code Chapter 5, Section 8101(1)(B) extends FECA benefits to any person working with the federal government and performing jobs similar to what another federal worker might do.

Regardless of whether this section does, in fact, allow the DEA to qualify informants for federal workers' compensation benefits, the OIG said, it is not the legal basis the agency cites in its own policy documents. The agency needs to consult with the Department of Justice "to come to a conclusion about whether there is a legal basis and, if so, whether it is appropriate to extend eligibility for FECA benefits to confidential sources," the audit says.

The extent of confidentiality of this program is highlighted by sources cited in the report who said they don't keep any files on these cases. They rely on the Department of Labor to manage and administer the claims. But the DoL likewise handles confidential cases differently, and likewise keeps nearly zero records on them, so there is no audit trail, no accounting for the cost, no accountability, period.

What OIG has uncovered is alarming. The report cites investigative cases uncovering millions of dollars paid by the DEA to informants for things like housing, while the informant also collects monthly FECA payments.

The DEA in response to a 2005 audit said confidential sources are not "choir boys" and the DEA sometimes has to rely on information from people whose credibility is questionable.

"Therefore, when the DEA submits an application for a confidential source to receive FECA benefits, we believe that the DEA should employ appropriate oversight and evaluate these cases thoroughly," OIG said. "Although the identity of the claimants may be sensitive, this does not alleviate the DEA's responsibility to be judicious stewards of taxpayer dollars and ensure that payments are warranted."

As you might expect on something as embarrassing and culpable as this is, WorkCompCentral's calls to the DEA's Office of Congressional and Public Affairs were not returned Tuesday.

Tuesday, July 21, 2015

The Dependent Contractor

It seems that everyone that has an interest in employment law, whether it's workers' compensation, taxation, insurance, or whatever, has consternation about the booming trend of the "shared economy."

Uber, AirBnB, Lyft, and the many other types of services out there that are now obscuring even more the previously foggy line (that we pretend is absolute in definition) of the employee-employer relationship even further.

The government doesn't know what to do with these services; the US Department of Labor recently issued a memorandum declaring that it is the "dependency" of the relationship that determines contractor versus employer status.

Uber got slapped by the California Department of Labor recently for misclassifying those who perform the job of transporting customers.

There are many more examples of lawsuits, claims, complaints, penalties, audits, etc. against all of these new shared economy services ... and they won't stop soon.

That's because we have two classes of employment relationship: contractor and employee.

In the eyes of the law there aren't any others.

The employee is deemed to be dependent on the employer. The contractor is deemed to be independent of the employer. And never shall the two meet, according to the law. Despite the law's tendency towards obfuscation, at least with regards to employment status the law seeks a clear dividing line.

But technology, as The Law has learned many, many times in the past, doesn't care. The value of the shared economy is a trend that cannot be stopped; not by lawsuits, not by audits, not by penalties, not by anything.

Because people want to engage in efficient, profitable relationships regardless of the constrictions mandated by those who dictate social conformance.

Which is why we need to stop thinking that there are only two possible employment relationships.

The times now dictate that we have a third possible employment relationship: the Dependent Contractor as my law school roommate, ET, coined it.

The DC is going to be someone, like an Uber driver, who desires to work on his own, call his own hours, determine when he is on the clock and off, pays his own expenses, uses his own tools - but derives a specified contractual amount for his services and is clearly dependent on that relationship for economic benefit.

The employer might dictate where those services are going to be provided; might dictate exactly HOW those services will be delivered; may even dictate detailed control over dress, customer interaction, etc. In other words, may exert sufficient control over the DC that a court would otherwise find an employee-employer relationship.

But what if we created, legislatively, a sector for the DC to live in? What if there were specified legal requirements for determining DC status, that everyone could understand and follow?

For instance, for workers' compensation, the employer could require the DC to have his own coverage, but since the DC is small, the employer would create a pool into which the DC pays to cover his own on-the-job injuries.

The same could be done for liability insurance or any other sort of risk.

And what about taxes? Who pays for what and when could be ironed out so the government doesn't lose out on the deal.

One of the big issues with the DC is that there aren't any rules yet. Everyone is winging it. And the problem with that is that the employer in such relationships has the upper hand because the employer dictates the terms of the contractual relationship (which is why they get into trouble in the first place with those who abhor intrusion into the traditional relationship).

It seems to me that the shared economy will only get bigger, and at a much faster pace, than we can anticipate - that's the march of the Information Revolution that we are just at the beginning of. We may as well be prepared for it legally.

This has been done before, by the way, for all you naysayers: why do you think Limited Liability Companies were created? Because traditional corporate structure wasn't sufficient to enable evolved business relationships - bottom line.

If Silicone Valley wants to expedite the shared economy then its lobbyists need to get to work drafting and getting sponsors for legislation that enables the Dependent Contractor. The insurance community will love it - another product (or suite or products) to sell. The formerly un/under-employed will love it because they'll have another way to pay the gas bill at the end of the month. Employers will love it because there will be some certainty in their future business lives. And consumers make out the best of all of them because these efficiencies of scale mean better value.

So, for all of you who are having a tough time dealing with whether or not an Uber driver should be covered by work comp, etc., quit your whining and do something about it - get laws passed that create the Dependent Contractor status and let's move on with this revolution, because the revolution isn't going to wait for the law.

Monday, July 20, 2015

At The Races

"Get the F out of my way; I'm going to the races!"

I had t-shirts printed up for my race entourage because I thought it would be fun, and the F is about 5 inches high, in red, so we could find each other in a crowd,

There's not a whole lot better than going to the motorcycles races. This time it's the FIM ENI World Superbike Championships USA round at Laguna Seca in Monterey, CA.

I think, to me, this is the ultimate celebration of freedom: fast, loud, risky, color, excitement, food, drink, thrills. I'm like the proverbial child in a candy shop when I'm at the races. My friends crack up when they see me ebullient about the races. My wife just thinks I'm nuts...

I get just as excited when I see injured workers not only recovering from the disaster that interferes with their lives, but going above and beyond to do things that they would never have imagined they could accomplish.

I've written about Dwight Johnson before - he's the double amputee (two separate industrial accidents) who overcame years of pain, doubt, depression to start his own artisan shoe company, Soule Innovations. Dwight will be speaking about his experience at the California Coalition on Workers' Compensation conference at the Disney Grand California Hotel on Wednesday. If you are at that event you don't want to miss his speech.

Across the other side of the globe, in the lower hemisphere, injured workers face the same kind of challenges as they do here in the United States. It seems that there are universal themes in work comp, regardless of the nation, the state, the design of the system. I guess there are just inherent elements that can't be engineered out.

One person, again someone that I've written about before, is Rosemary McKenzie-Ferguson founder of a non-profit charitable organization dedicated to restoring confidence to those who have gone through the work comp system. She was an injured worker too, and found that the most debilitating part of workers' compensation is the emasculation of people's egos.

Somehow, through unbelievable challenges, she has not only been able to provide some sustenance and love to needy injured workers in her neighborhood, but has found a was to repatriate these folks back into the working world.

Her latest project entails getting injured workers to donate their services to provide Bags of Love to others. Here's her latest account:


It has taken a lot longer than any of us at the Centre would have liked- however after many tears and a lot of frustration and loads of laughter and an rather risqué fashion parade the Bags of Love Op Shop will open on the 31st July 2015 .

It is yet another first in the wonderful world of workers compensation as the Bags of Love Op Shop is run completely by injured workers for the benefit of injured workers as each of them rebuild their lives in ways that has never been seen or done before.

There won’t be any speeches, and there won’t be any ribbons cut and the Australian stock market won’t have a sudden movement to indicate the importance of the opening of the OP Shop.

We know that in the greater scheme of things the opening of an OP Shop won’t be a measurable shift in workers compensation, but in the injured worker community it is a massive positive step forward- each one of the injured workers who have been working towards this project has been “rejected” by the very system that is meant to have been in place, one of them has 6 hours medical capacity a week, one of them the system has abandoned.

All of them are so dedicated to the task of growing past the systems “judgement” of them as “not worth the effort”.

As each of you knows the Centre receives no funding, over many years and multiple attempts to have various ministers recognise the Centre, we had two choices- close the doors and admit that the system had beaten us. Or find a way to fund the Centre past my own income.

The A Team took it upon themselves to build the Op Shop, they gathered the infrastructure required, they collected the donated goods and clothing, they found a way to achieve.

All I did was give them the time and the space and the support that they needed to fly.
As I said there won’t be any ribbons cut or speeches made, there will be tears of relief at the end of the first day.
And in the true tradition of that horrid advert –But wait there is more… in the coming months more is planned to expand the Op Shop for now I can’t say what that is….

What I can tell you though is how incredibly proud I am of every member past and present of the A Team because when push came to shove they stood their ground held their ground and then moved into an unknown unchartered territory……

Yours in service
Rosemary McKenzie-Ferguson
Work Injured Resource Connection inc
“Bags of Love” emergency food project
Craig's Table


There are many participants in an injured workers' recovery, not the least of whom is the worker's self. Rosemary is showing the world that all is not lost, that there is still utility and hope in life, just as Dwight Johnson has done.

Rosemary will be the keynote speaker at the WorkCompCentral Comp Laude Gala on Saturday, December 5, 2015 in Burbank, CA. I hope you can attend and learn more about how Rosemary has acconmplished something remarkable, and learn more about yourself.

To me, this is as exciting as the races, just as thrilling, if not more so.

The back of our t-shirts exclaim, "Stay the F out of my way..." Indeed, people like Rosemary and Dwight and many more injured workers are saying the same thing - get out of their way;  they're going to the races!

Friday, July 17, 2015

Don't Step On It

"Whoa! Did someone step on a duck?"
The unavoidable and necessary bane of employers is employees.

Employees simply cost more than contractors.

Laws and regulations mandate insurance requirements, overtime pay, working hours, discrimination boundaries, rights and liabilities - each of these adds up to challenge the profit goal of the business.

So business tries to classify as much labor as possible as something other than an employee.

This has been an issue since the employer-employee relationship was created. Recent examples include actions against FedEx, Uber, and other large companies where controlling compensation outflow is a significant part of satisfying Wall Street's desire for short term earnings.

Small businesses too are highly sensitive to the dent of labor on profits, which is why industries that have more cash flowing through them tend to have more "independent contractors", such as construction or restaurants.

Earlier this week the U.S. Department of Labor this week put employers on alert with a memorandum stating the Fair Labor Standard Act's standard for determining employee versus contractor status means that most workers are, in fact, employees subject to all of the withholding, tax, and other labor standards applicable in law.

While we in workers' compensation look to employer control or employer benefit in determining the relationship, the DoL says it's economic dependence.

"If the worker is in business for him or herself (i.e., economically independent from the employer), then the worker is an independent contractor," Wage and Hour Division Administrator David Weil opined in the 15 page memo, but "(i)f the worker is economically dependent on the employer, then the worker is an employee."

Other factors employers must also consider include:
  • Whether a worker is in business for himself and whether there is a possibility for loss.
  • How the worker's investment compares to the employer's investment. Weil said independent contractors should make some investment and undertake at least some risk.
  • Whether the work performed requires some special skills and whether those skills are "akin" to those of other independent contractors.
  • Whether the relationship with the employer is permanent or indefinite. Weil said a worker's lack of a permanent and indefinite relationship should also be evaluated to consider whether the contractor's status derives from his own business initiative.
  • The degree and nature of the control an employer exerts over a worker. He said an employer's lack of control is "particularly telling" if the contractors work from home or offsite.
Honestly, nothing in the DoL memo changes anything. The delineation between contractor and employee includes that gray area because some relationships migrate.

The memo may signal, though, that the federal government is getting more serious about enforcement of labor laws and rules.

And one thing worse than categorizing an employee as a contractor is getting caught doing it.

If it looks like a duck, don't step on it ... "quack."

Thursday, July 16, 2015

Simply Complex

California workers' compensation claims stay open longer, much longer, than the national average and as a consequence cost a whole lot more when compared to other states, and according to the Workers' Compensation Insurance Rating Bureau much of this has to do with when medical treatment is paid for.

Only 39% of ultimate accident year medical payments in California are made within the first 36 months of an injury, compared to a national average of 67%.

As a consequence, California employers pay more for workers' compensation insurance than any other state no matter what study is used to compare statistics.

The WCIRB analyzed 1 million claims and $4.4 billion in medical benefit payments. The claims were divided into categories based on the interval between the date of the accident and the date of medical service.

Of the claims reviewed, 84% had medical services provided within the first three years following the accident. These claims accounted for 66% of total medical payments reviewed.

About 12% of claims had medical services being provided between three to 10 years from the date of injury, accounting for $970 million, or 22% of payments reviewed. And while only 4% of claims were still getting medical services between 10 and 30 years after an injury, payments for these claims totaled $559 million, or 13% of costs.

Greg Johnson, director of medical analytics for the WCIRB, said in a WCIRB Research Forum webinar yesterday that claims start to develop similar patterns the longer they stay open: Prescriptions for narcotic painkillers and psychoactive drugs increase for workers still receiving medical care three years following an injury.

Prescription drugs account for 10% of payments made for services provided up to three years following an accident. That number increases to 27% of payments services provided three to 10 years following an injury and 37.2% of payments 10 to 30 years after the accident.

Johnson noted that the amount spent on drugs is about 4% to 5% higher than the amount paid to pharmacies for each cohort, and that physician dispensing is the culprit, and that the longer a claim stays open the more likely narcotic prescriptions become involved.

Johnson couldn't say whether there was a cause and effect in the relationship, only that we know there is a relationship.

In addition, three years after an injury payments for services such as physical therapy and chiropractic care drop off considerably, which makes sense given California's hard cap and reimbursement restrictions on those service codes.

Physical medicine accounts for 11.1% of payments for services up to three years following an injury, 4.2% of payments for services provided three to 10 years after an injury and 2.2% of payments 10 to 30 years after an injury.

Of course those conditions evolve from acute to chronic in nature, further complicating the treatment picture.

"This shows me we've got an aging population," Johnson said. "If you look at the health care statistics in the population, these chronic problems obviously develop with other people, and the comp system is paying for many medical problems of aging. The acute injuries are related to the original injury, but the individuals here evolve in terms of the primary diagnosis to more chronic problems over time."

I'm sure there's all sorts of other explanations as well, and everyone can point a finger at someone else for this phenomenon.

All that doesn't matter. Everyone's to blame and no one does anything about it.

The fact of the matter is that behavior of everyone in the system is a product of the laws and regulations that establish the boundaries. Those boundaries drive incentives. Incentives drive behavior. Behavior drives costs.

I wrote on Tuesday about trust. There is very little trust in workers' compensation. There's even less trust in California.

That's why we have artificial limitations on physical medicine services - because there was a group of providers who couldn't be trusted.

That's why we have fee schedules for copy and interpreting services - because there was a group of vendors who couldn't be trusted.

That's why there's a claims audit process and a penalty system - because there was a group of claims payers who couldn't be trusted.

That's why there's payroll audit and employer premises inspections - because there was a group of employers who couldn't be trusted.

That's why there's sub rosa investigation and prying into the private lives of injured workers - because there was a group of employees who couldn't be trusted.

With each level of mistrust there's greater gesticulation by the conductor, and all of us react in amplified manners to the point where the entire "orchestra" is flailing and creating the comedy that gets ridiculed and despised.

If you look at the top performers in the self-insured/administered category you don't find these statistical anomalies, and claims get closed faster, employees return to work and have less disabilities - because the employers trust their providers and their employees, and the providers trust the employers and the employees, and the employees trust their employers and providers.

It's a complex trusting relationship that takes a lot of work to establish and maintain and frankly it comes down to money.

The friction in the system is money. But the lubrication in the system is also money. There's a fine line between the two. That distinction is understood by those top performers and they use those incentives to drive their claims cultures.

Those with good experiences look at the moon, not at the finger pointing at the moon. They pay for good results up front, not for bad results at the end.

It's really quite simple, yet unnervingly complex.

Wednesday, July 15, 2015

If I Had a Hammer

The line where the work place begins and a worker's personal life ends has always been a source of contention in workers' compensation cases.

In Iowa, a Court of Appeals ruled last September that a worker couldn't get an award of benefits for her alleged injuries from a fall after she bumped into her brother in a hallway at work. The court found that Valerie Dillavou's brother Greg Knopf had intentionally shoved her, which brought the incident outside of the comp arena because the spat had nothing to do with their jobs.

A New York appellate court ruled last July that a retail worker who became the target of a murder-for-hire plot and an internal investigation by his employer based on his alleged affair with a colleague was entitled to an award of benefits for the resulting psychological distress that prevented him from continuing to work.

Last May Florida 1st District Court of Appeal overturned the denial of death benefits to the surviving family of a grocery store worker who was run over by the jealous boyfriend of one of his coworkers as he was gathering shopping carts in the store parking lot, finding there was a risk of being hit by a car in a parking lot existed regardless of who was operating the vehicle.

In August 2012 an Illinois Appellate Court ruled that a murdered restaurant worker's death arose out of his employment since all the evidence indicated that Edan Maya's motive for killing him was a disagreement they had earlier in the day about who should have the top fry cook position at Frankie's Beef/Pasta and Catering.

Yesterday the Nebraska Court of Appeals ruled that a sugar factory employee was not entitled to workers' compensation benefits for his injuries from an assault by a colleague armed with a brass hammer.

Jason Bates attacked Phillip McDaniel after discovering McDaniel was a registered sex offender.

The court said it was plausible that Bates would have never met McDaniel, learned of his criminal history, or had the opportunity for the assault if they hadn't both worked for the Western Sugar Cooperative. Nonetheless, the court concluded that Bates' motive for the attack was wholly disconnected from Western Sugar’s business and therefore McDaniel's injuries were not compensable.

In a commentary to the WorkCompCentral report on the McDaniel case, claimants' attorney Todd D. Bennett of Rehm, Bennett & Moore, had an interesting observation demonstrating just how fact specific these kind of cases can be.

He said if it were his case to try, he would look into whether the hammer Bates used in the assault was a required tool for his job, and "that would be the angle" for saying there was a work-connection.

The case was Phillip McDaniel v. Western Sugar Cooperative and The Phoenix Insurance Company, No. A-14-793. The case apparently will be appealed.

Tuesday, July 14, 2015

Symphonic Trust

We've all heard about TED talks.

TED is the acronym for technology, entertainment and design. Engaging, short (about 12 minutes) talks that are published on the Internet (, there's at least one topic that you and I will find interesting.

One such talk was by symphony conductor Charles Hazlewood's about the role of trust between conductor and orchestra, which he describes as a "miracle."

It's a miracle that everything comes together to produce the sounds that move an audience.

In the old days, Hazlewood explains, the conductor was in a position of power, a dictator - but that has evolved with society, and music reflects that evolution.

"We now have a more democratic view and way of making music - a two-way street," Hazlewood says. "I, as the conductor, have to come to the rehearsal with a cast-iron sense of the outer architecture of that music, within which there is then immense personal freedom for the members of the orchestra to shine. There has to be, between me and orchestra, an unshakeable bond of trust, born out of mutual respect, through which we can spin a musical narrative that we all believe in."

Trust, it turns out, is at the heart of all relationships, no matter how they are defined.

I trust that the air traffic controller isn't going to steer me into another aircraft when I'm in the clouds. You trust that the person juxtaposed at the intersection from you is going to stop at the red light. We all trust that the person with whom we have a contract will perform his or her part of the bargain.

Trust is the glue that keeps humanity together, and a democratic freedom is the lubricant the keeps humanity moving.

Trust is what allows us to make assumptions that things will go right. That a dollar is worth a dollar, that a promise will be kept, that the Uber driver will pick us up and take us to where we want to go.

The archetype of trust is workers' compensation. The complex web of trust between so many different performers in the world of work comp is no different than Hazlewood's orchestra; we all have to have a deep trust in each other that each will do their part to keep the system together, and moving.

The employer trusts the insurance company with its money to protect it financially when a work place accident occurs. The insurance company trusts the broker that the details of the employer's risk are properly accounted for. Wall Street trusts the insurance company that its assets are real and can back the investments ordered. The injured worker trusts that the doctor is going to provide the best treatment possible for the injury. The doctor trusts that the insurance company is going to pay his or her bill. The insurance company trusts the injured worker isn't faking it, and is interested in getting better and back to work. The government trusts that everyone will play be the rules.

And so on.

"You know, it's not about power," says Hazlewood. "It's not about who's in charge. It's about me throwing out a gesture and trusting myself and, therefore, trusting that they will read that gesture and respond to it."

But when that trust ceases or erodes, contempt, ridicule and dysfunction take over.

I've written before that workers' compensation is a system built on mistrust. And I think Hazlewood hit the proverbial nail on the head: it's about "trusting myself" which allows trust in others.

When the conductor doesn't trust that the orchestra will follow the direction, he over-compensates, and over-gesticulates. And the orchestra over reacts, and eventually the entire performance is ridiculed.

As Hazlewood explains it: "Think about it - when you're in a position of not trusting, what do you do? You overcompensate. And in my game, that means you over-gesticulate. You end up like some kind of rabid windmill. And the bigger your gesture gets, the more ill-defined, blurry and, frankly, useless it is to the orchestra. You become a figure of fun. There's no trust anymore, only ridicule. And how futile seemed the words of advice to me from the great British veteran conductor Sir Colin Davis who said, 'conducting, Charles, is like holding a small bird in your hand. If you hold it too tightly, you crush it. If you hold it too loosely, it flies away.' I have to say, in those days, I couldn't really even find the bird."

That's what's happened in workers' compensation - we've gone so far beyond trust that we have overcompensated, we have become a "figure of fun," ridiculed in the press, criticized for our antics, looking ill-defined, blurry and useless to employers and their work forces.

Every time there's been a breach of trust we over compensate. We call this "reform" but in truth what really is occurring is that someone in a position of power says they don't trust some element of the workers' compensation system so laws and regulations are crafted, debated and eventually dictated in an attempt to micro-manage the orchestra.

And that never works out in the end. There are too many moving parts, too many contributors, too many different sounds trying to come together in a cacophony of disparate interests lacking sufficient trust in another.

How do we build trust back into workers' compensation? It won't happen by dictate or fiat. It won't happen by passing a "reform." It won't happen unless and until each and every one of us first trusts ourselves.

Do you, as an adjuster, trust yourself to make the right decision on a case? Do you, as an injured worker, trust yourself to overcome the burden of injury? Do you, as an employer, trust yourself to provide an environment safe for those injured at your business? Do you, as an attorney, trust yourself to look past the money and advise your client about what's right for him? Do you, as a doctor, trust yourself to perform the right procedure or prescribe the right treatment?

Do any of us trust ourselves to put the interests of the system first?

Lest you doubt that a conductor knows anything about impairments and disability, in 2012 Hazlewood founded The British Paraorchestra, the world's first large-scale professional ensemble of virtuoso musicians with disabilities.

Monday, July 13, 2015

Anchor Syndrome

Anchor Syndrome [ang-ker sin-drohm] - noun: with, or having the feeling of, being weighed down by something heavy, such as dragging around an anchor, with no obvious sign or reason other than fatigue; malady common among endurance athletes, such as cyclists, when legs don't seem to feel the normal sense of energy for propulsion despite copious energy input.

I had anchor syndrome Saturday.

I took one of my regular bicycle ride routes around Lake Casitas, out to Montecito and home. It seemed like I had a headwind the entire ride, and I did for a part, but the balance of the ride I experienced either no wind or a tail wind.

The interesting thing was that my overall time en route and average speed was ... average. But it sure seemed like I had to work really hard just to be average.

Dreaded anchor syndrome was messing with my head!

Workers' compensation suffers from anchor syndrome.

The system moves along like it has for 100 plus years. Legislators pass laws every once in a while that affect employers and their workers. Employers pay for coverage. Insurance companies guarantee that coverage within legal definitions and policy language. Workers get hurt at work and file claims. Some of those claims are disputed so lawyers intervene. Medical vendors provide goods and services within a maze of authority zones.

Everyone has a job to do within the work comp system. Most do those jobs adequately to meet the needs of the system. Some decide to operate outside the boundaries of the system. But most go along for the ride, sort of lethargic in the legs, without feeling any real energy.

The energy is being expended, no doubt. Cases move forward at some pace. Policies come up for audit and renewal annually. Brokers make commissions, vendors get paid eventually, carriers post numbers. Analysts tell us what's anomalous.

All of this is sort of rote. We all go through the daily routine of our little workers' compensation jobs with very little thought or appreciation for what could happen. Anchor syndrome sets in and our energy gets low.

What is really happening is disruption all around us.

I was reminded of this when a friend turned me on to Zenefits.

Zenefits has the insurance, payroll, human resources, and a bunch of other singularly vertical, entrenched industries scared.

Very scared.

Because Zenefits has taken all of the disparate parts of managing workers, linked it all together, and put into one place for one person to handle cutting thousands of dollars of expense out of the human resources budget line.

And does all of it for free - Zenefits gets paid by the provider of the actual services such as the payroll company, or the health insurance company, or the ... workers' compensation insurance company.

Can you imagine how scared brokers must be of this disruption? In California alone, brokers tacked on $1.185 billion in additional cost to employers, and my guess is that most employers either don't appreciate, don't realize or don't experience any value added by the broker's intervention.

Payroll services are already hugely scared - payroll giant ADP sued Zenefits on a litany of, frankly, spurious legal theories to end the disruption. I bet they fail.

And if they could, I'd bet that most employers would gladly trade the annual email notice from their insurance agent about renewal for an automated system that cut out that extra pound or two added for commission.

A service like Zenefits could, eventually, manage workers' compensation insurance procurement and execution in a highly automated manner because they collect all of the data necessary for each and every single employee, and are adept at tapping and leveraging that data.

There will be some pundits who will poo-poo the idea that workers' compensation direct to the employer can work - it has been tried before. But that was a single insurance company selling directly to an employer that still had to manually feed the necessary information the carrier.

With Zenefits that data is there on a constant and every evolving basis - payroll audits can happen in real time; job descriptions and employment reports can amend classification codes in real time; health and welfare can be tied directly into injury benefits; and so on.

Anchor syndrome occurs from fatigue as a consequence of doing the same thing over and over and over again, and failing to take a rest. The lethargy affects one's psychology. It can be depressing if one doesn't take a step back, understand the symptoms, understand the physiology, understand the psychology.

That's happened not just in work comp, but in all human resource management. We've done the same thing over and over and over again, and expect different results. Someone like Zenefits, or maybe it WILL be Zenifits, is going to change the way work comp is procured, and dispensed.

Friday, July 10, 2015

The Sandbox

In California we have lien claimants - vendors of goods or services not directly a party to a workers' compensation case but who nevertheless attain party status to participate in litigation upon the filing of a piece of paper making their claim, and paying a fee.

Other states have similar procedures but call them different things.

In Minnesota, such participation is called "intervention" and an "intervenor" files a "motion" for such privilege - but basically it all works the same. An intervenor has no independent rights and is dependent upon the case in chief.

Those derivative rights also mean that special procedures can be instituted without offending the basic principles of due process and right to be heard, which means that the vendor needs to be on top of things in order to enforce payment claims.

So when the statute says "appear" then the vendor needs to show up - otherwise dismissal of any derivative rights becomes imminent with no further recourse.

That's what the Minnesota Supreme Court ruled.

In Sumner v. Jim Lupient Infiniti, the Court said that under Minnesota law, a provider has no right to initiate a reimbursement claim – it can only intervene in a claim filed by the claimant.

Once the provider files a motion to intervene, Minnesota Statutes Section 176.361 says that the providers "shall attend all settlement or pretrial conferences, administrative conferences, and the hearing" unless a stipulation has been signed and filed, or the care provider's right to reimbursement has otherwise been established.

The statute also provides that the intervenor's "failure to appear shall result in the denial of the claim for reimbursement."

Generally, the statutory use of the word "shall" denotes that something is mandatory, the court observed, and a majority of the justices reasoned that the words "appeal" and "attend," as used in Section 176.361, were synonymous.

Thus, the court said if an intervenor does not show up for a hearing, its claim can be denied.

What the court is really saying (and what courts around the country that deal with ancillary rights in comp cases are really saying) is that workers' compensation is about the injured worker and the employer.

Everyone else intervenes to do something to that basic relationship. But there is no direct connection because without the injured worker, and without the employer, there is no workers' compensation.

And because of that, unless there is some statutory or contractual relationship that alters that connection, there are no rights.

Whether or not one agrees with that position is irrelevant because that's just the way it is. You either want to play in the sandbox, or you go to some other playground.

Thursday, July 9, 2015

I'm Not Handicapped

The following is a guest blog post from Dwight Johnson, an injured worker who was awarded the WorkCompCentral Injured Worker Comp Laude Award for his outstanding leadership, perseverance and overall attitude.

Dwight will be the motivational speaker at the upcoming California Coalition on Workers' Compensation conference at the Disney Grand Californian Hotel in Anaheim, CA on Wednesday, July 22 at 4:25 p.m. following the Kids' Chance Presentation.

If you haven't heard Dwight speak before, I urge you to attend at least this one session - he is captivating, engaging, and yes, you will need tissues because his story is compelling.

**********I'm Not Handicapped, by Dwight Johnson**********

When you see me drive up and get out, you’re surprised to see this guy with no legs get out of the truck. You have no idea what it has taken for me to get to this step. I’m actually glad I can drive without the usual hand controls and such.

When you watch me walk you have no idea of the strenuous work I’ve done to get to this point. I’ve done my training for the simple acts. Most of the time with tear jerking pain in order to bring myself back to what you call normal.

When you see me in the store you gently stop and try to take a quick look. You hope I don’t pick up what you are trying to see. What you don’t know is the numerous hours of practice for me to get used to being around people.
Dwight at Comp Laude 2014

When I show up at the restaurant, please try to focus on your guests or menu. I am very nervous to even be here. Will I sit down without falling down? Will I be able to get up without any problems? When I leave, there is so much pressure to just exit without tripping or falling.

When I try to work in my front yard do not slow the car down to look at me. I’m making an attempt to do the everyday items required to maintain a yard. This has taken hours of practice and numerous falls.

Overall you may think that I’m handicapped, but you are wrong.

I cherish every day that I wake up, enjoy the sight of my loved ones and the future of the day to see more of my loved ones. I look forward to the challenges that will come my way today I look forward to the challenges I have set for myself and beat them. At the end of the day I can go to sleep knowing that I have given 110% on everything I’ve done today.

For in my heart I am not handicapped. You are. I have been to the bottom, and everything I do each day gives me the greatest joy of accomplishment. I have learned far more from the simplest issues in life than you will take the time to look into, or enjoy.

I have learned the value of true love. For I have found my true love in my new life. I cherish this love every minute of each and every day. I have watched them try to handle, take care of and deal with me... I don’t think in my old life if I honestly could do this.

So you see, I’m not handicapped. I HAVE BEEN GIVEN A NEW OUTLOOK ON LIFE that is so special, only a few in this world get it.

I will proceed forward with a pure positive lifestyle, attitude, and most importantly the chance to help others achieve where I am today.

God Bless, and Have a Kick Ass Day

Dwight Johnson


Dwight makes custom art shoes under the brand Soule Innovations. The idea was to take people's attention away from the amputations to something more positive. You can follow his work on Facebook.

Wednesday, July 8, 2015

Everyone Should Hear

Flying home from business in Nashville yesterday, an article in American Way magazine caught my eye - the Special Olympics World Games is coming to Los Angeles at the end of this month.

A big poster in the terminal at LAX advertised the Special Olympics.

And a graphic on the side of a parking service van highlighted the coming games.

It was everywhere around me, speaking to me.

The Special Olympics is open to adults with intellectual disability. Defined by the American Association of Intellectual and Development Disabilities, a person will have an IQ of under 70 to 75, will have significant limitations in two or more adaptive areas and a manifestation of the condition before age 18.

There will be 6,500 athletes representing 160 countries participating.

The quotes published in the magazine article from some of the people involved in the games reminded me, of course, of workers' compensation and the people that are the subjects of the system (injured workers) and the volunteers (us people that make a living trying to administer benefits).

"At best, these are individuals who are invisible to most of the world, despite there being approximately 6.5 million people with intellectual disabilities in the US today and nearly 200 million in the world," Janet Froetscher, CEO of Special Olympics says. "At worst, they're seen as completely worthless."

I'd say the population of injured workers in the US today is about the same size - I don't know about international numbers, but 200 million doesn't seem far off either.

Think about that though - in the U.S. we have a mature, relatively, robust workers' compensation program. Sure each state is different and sure benefits aren't uniform. Many times there are issues in the delivery of benefits, but at least in the U.S. there ARE benefits.

I always seem to go back to the Bangladesh garment factory fire in 2012, where 112 people were killed and thousands injured, some severely.

Sure, officials arrested and ostensibly prosecuted factory owners and culpable employees for that tragedy, but that does nothing for the victims, who don't have any safety net of any kind.

There are more than 4 million garment industry workers in Bangladesh, each of them lacking workers' compensation protection.

And there were stories of factory workers, after having lost loved ones and limbs, going back to work to put food on the table for the family.

"Our athletes, you just can't tell them what they can't do," is what Janet Froetscher, CEO of Special Olympics says in the article. "They're all about what they can do."

A component that is missing from our workers' compensation psyche - ability.

As soon as workers' compensation is invoked, the concern is disability. Temporary total disability, temporary partial disability, permanent partial disability, and a fate probably worse than death, permanent total disability - compensation is based on what was taken away, or what can't be done, as opposed to what is left or what can still be done.

I don't know how to fix that. I'm not sure it's even a problem. It is what the system is based on and what we work with. But the contrast in philosophy can be striking, and it goes to the root of the perception of being injured at work.

Timothy Shriver, Chairman and son of Eunice Kennedy Shriver (sister of JFK), says, "What special Olympics does is enable individuals to reclaim the dignity and common humanity that's been robbed from them, sometimes from birth, by life, circumstances and other human beings."

You don't need to scour the Internet much to find tales of workers, some former athletes now wilting in wheel chairs, some with brain injury sequelae unnoticeable until mental engagement is attempted, neglected by a system that was supposed to protect them from medical maltreatment or nonplused intervention by third parties.

The vast majority of the people that work in this industry "volunteered" for the job - in all my years in workers' compensation I have yet to meet someone that said that they had planned a career in the industry. All of us seemed to have "volunteered" to do a job in work comp, and have never left.

"Special Olympics has 1.3 million volunteers, including 360,000 volunteer coaches," Hannah Teterboro, Olympic snow boarder, says in the article. "And I think most of them would agree: It's actually the athletes doing the real teaching here."

That's something that we don't do well in workers' compensation - listening to the injured workers and learning from them. We're all experts in our own little niches. We have Medical Bill Review specialists. We have Utilization Review people. There are medical professionals, claims professionals, legal professionals ... Few of us actually learn from the injured worker or engage in what celebrity trial lawyer Gerry Spence teaches at his trial lawyers college: experiential lawyering (substitute claims handling, medical service, or any other title to "lawyering").

"We have a story that we want told," says Froetscher at the end of the article. "These athletes have stories that everyone should hear. Stories of authentic human courage, real human transformation, real human beauty, deep human goodness, and I think these are things the world could really use right now, don't you?"

I do. I hope you'll join me and a few hundred other folks in workers' compensation to recognize that we can, and do, good work for people on December 5 in Burbank, CA. Be a part of the solution and nominate the people that do good. Participate in the celebration and recognize those that make the system function. Learn how we can do better.

We have a story to tell that I think everyone should hear.