Holding Hands

I'd been through this once before.

I met with Carl, the hospice advisor, at Mom's facility yesterday and we went through the benefits - what is and isn't included. It was only a little more than 2 years ago when I was briefed on hospice for Dad, and most of it I recalled.

Nurse Margaret was the evaluating nurse. We went through Mom's medical history. Margaret called me later yesterday to advise Mom was eligible for hospice services and they would start immediately.

The chain of events that got us down this path started Saturday when my sister visited Mom and found her ill - her temperature was 101.9 and she was shaking, lethargic, tired and non-responsive, a radical departure of status from my visit just the day before when she seemed her normal, demented, 91 year old self.

Conservative treatment controlled the fever. Mom has had a respiratory infection for, it seems, a month, without resolution despite antibiotics and other treatment courses.

The doctor would see her Monday, and advise continuing the conservative treatment.

Tuesday the nurse in charge called me to say that Mom seemed to take a turn for the worse, and requested authorization for a hospital visit, which I granted. But the medical staff at the hospital found nothing extraordinary or unusual - vitals were normal, exam was normal, and referred her back to Mom's facility.

But Mom's physician recommended an hospice evaluation... That usually means the end of the line is near.

So Forty One Mike conveyed me south Wednesday to check on Mom and meet with the hospice team.

Mom was not doing well. I got there about 11:45. She was in a wheel chair at a table in the dining area with oxygen (she had been on supplemental oxygen for months now due to inadequate O2 uptake). 

She, of course, was happy to see me, but any laughter induced coughing. She enjoyed being massaged above the shoulder blades when coughing. Her hands appeared more swollen than usual, and purple. They were cold and she could not open them or close them very well. 

I held at least one of her hands the whole time there - she enjoyed that.

But now Mom has tremors anytime she attempts any sort of muscular control, whether moving her arm, legs, whatever. She was not talkative, very unusual for Mom. She didn't smile much either - again, very unusual. 

She seemed more unsure of things, and was very tired. The caretakers said she ate a little bit for breakfast. Lunch was meatloaf, noodles and green beans. I fed her. She ate about 20% of her meal and a couple of spoons of ice cream. She drank all of her water (with a straw). 

She is not able to feed herself because of her lack of muscle control. She does not have a fever… After lunch she went to bed and I met with Carl and Margaret.

It was a really rough day for Mom. Is she dying? Perhaps. I’m not a doctor. But I do know that she won’t be able to carry on for long in the condition I saw her Wednesday.

You know, I write something nearly every day about workers' compensation.

It really doesn't matter much though. We think it's important, and perhaps on a grand, universal, social and economic scale it has some import.

But not in comparison to those acute reminders about life.

The process of death has a clarifying effect. Death itself is inescapable. We all know that. We tend to mute that reality.

Presumptions, utilization review, drug formularies, profits, losses, provider networks, fraud, compensability - at the end of the life, the only thing that really matters is having a beer with your family members in the garage, tinkering with motorcycles, preparing the grill, and reminiscing about childhood.

Mom's a great-grandmother now. She doesn't really know it because of her dementia. And it's unlikely she'll ever really "see" her great-grandchildren because they're just babies.

At 91, nearly as old as workers' compensation in this country, every day is an adventure and you never really know what the next day holds.

I hope when I see Mom again on Saturday she will smile at me and that I can warm her hands in mine.

My Dream

In just five days hundreds of people from around the nation will gather for the Fourth Annual WorkCompCentral Comp Laude Awards and Gala.

That's a mouthful of a title for a dream I've had for some time - get as many different workers' compensation interests together into one space for just an evening, and recognize what goes right with work comp.

I know it sounds Polly-Annish, and perhaps it is just wistful thinking; the hope is that if claims executives meet the subjects of benefit distribution; if the medical community meets the employers that pay into the system; if lawyers meet service providers; if government meets vendors ...

That if everyone that has anything to do with workers' compensation all get together for one day, one evening of recognizing that there are good things that can happen with the work injury protection system(s), stories will be told, messages will be heard, understandings will occur - and maybe, just maybe, people will work towards the common good for the sake of society, rather than for individualistic opportunism.

I'm not completely naive. I know that one night of education, camaraderie, and celebration isn't going to solve the problems we face in workers' compensation.

But it's a start.

Every conference I go to around the nation there is a recurring theme: silos.

Each independent interest in workers' compensation has their own conference or two.

Attorneys that represent injured workers have their own conferences;  Employers have their own conferences; Physicians and the medical community have their own conferences; there are even smaller gatherings for regulators, special vendors, researchers, insurance executives, and sub-specialty gatherings.

Even the single biggest gathering of broad workers' compensation participants, the annual WCI Conference in Orlando, FL every August, is still a hegemony of special interests - there are a dozen different education tracks that cater to each of the silos but none that speak to everyone.

Each of these conferences and seminars come with content specific to the interests of their singular groups, each of them focused on how to take advantage of some aspect of the system or law to minimize costs or maximize outcomes.

Not one of these gatherings includes injured workers. Many include their representatives, but that faction again speaks to their own interests first, and the needs of the beneficiaries second. And not one of them tells success stories.

For every story of failure, grief and hardship that we read about in the general media, there are dozens of stories where individuals go above and beyond to good outcomes, and sometimes these stories are of compelling, remarkable accomplishments.

Comp Laude is the only event where everyone from all segments of workers’ compensation are not only welcome, but encouraged, to attend and participate: executives, injured workers, claimant attorneys, defense attorneys, doctors, case managers, claims adjusters, researchers - you name it. 

My goal is to get EVERYONE under one roof at a nice event where people actually TALK AND LISTEN to one another, hear the stories, and understand all the diverging points, conflicts, interests, and perhaps, come to some understanding as to why certain things are the way they are.

At a time when workers' compensation, as a system, is under attack from the general media, the public, and lawmakers, it's important that we come together.

We don't have to change the way things are, and we don't have to solve all that ills workers' compensation.

We just need to come to a collective understanding of why things are the way they are.

It is my hope that we will, with Comp Laude, eventually help shape policy for the future that benefits all of society. 

It’s a big mission and a big risk.

But the dream is compelling to me. That dream drives me like a locomotive pulling a train, a long train filled with many people on a singular destination.

Some may disembark, some may never get aboard. Those that do ride along, I know, are aligned with that dream - that the single largest privatized social benefit system in the world can not only work, but work well, protecting people and businesses and provide stability to the economy.

We've made it easy for YOU to attend. We have special pricing for injured workers and claims examiners. We have deals for professionals that are members of recognized associations (nearly all of them!). Bring a Toy for Tots and there's a discount.

We're all in this thing together. We need to recognize that, if for only one night.

To Have or Have Not

Workers' compensation, as I've written before, is great when you want it, and not so wonderful when you don't want it.

Two cases out of the Mississippi Supreme Court highlight this dichotomous phenomenon.

Milton Harper had worked as the managing partner and president of the Banks, Finley, White & Co. accounting firm. Harper never bought a comp policy to cover the firm's employees since he believed the company had less than five employees, and thus exempt from providing coverage under state law.

Harper died in July 2001 at the age of 49, after suffering a major stroke. His family filed a claim for workers' compensation death benefits, asserting that Harper's work-related stress caused his high blood pressure, which, in turn, caused his stroke.

An administrative judge approved an award of death benefits, finding that Harper's stroke arose out of and in the course of employment. A divided Mississippi Workers' Compensation Commission affirmed this finding, as did the Hinds County Circuit Court.

However, the circuit court judge ruled that Harper’s decision not to obtain workers’ compensation insurance disqualified his family from collecting any benefits for his death.

A divided Court of Appeals reversed the circuit court judge last April, finding that Harper had been wrong in believing the Banks firm had less than five employees.

Thus, the majority said the firm was required to have comp coverage, and that Harper had never executed a written waiver, which was required by Section 71-3-79 of the Mississippi Code.

The Banks firm then petitioned the Mississippi Supreme Court for review, which ruled that Section 71-3-79 was inapplicable to this case. "Because Banks did not have workers' compensation insurance coverage, there was no coverage for Harper to opt out of in writing as contemplated by Section 71-3-79," the majority said.

A slim majority of the court agreed that the Banks firm was liable for benefits, and said that Harper was an "employee," thus finding in favor of Harper's dependents.

But while the families of small companies in the state will still be able to collect benefits, corporate officers may be held personally liable to the employee's family because of their omission, which the court concluded in a separate case.

Ray Dillard had gotten hurt while working for Dixie Products Inc. and he secured an award of temporary total disability benefits in 1997.

Dillard's attorney then filed a lis pendens notice encumbering the title to several properties owned by Dixie's president and majority shareholder, Larry Jarret, since Dixie had no workers' compensation insurance coverage and allegedly lacked the assets to pay Dillard's benefits.

The lis pendens was released in 2001, since Dillard had no judgment against Jarret to justify encumbering his property.

An administrative judge later determined that his total disability was going to be permanent, and Dixie never appealed this ruling.

After Dillard died, his estate filed a complaint in the Pontotoc County Circuit Court seeking to collect the PTD award from Jarret personally. The judge granted summary judgment in favor of the estate, finding Jarret and Dixie were jointly and severally liable for $223,000 in benefits to Dillard's estate.

The Court of Appeals reversed, finding the estate should have raised its arguments about Jarret's personal liability during the proceedings before the Workers' Compensation Commission. Since it didn't, the court said its arguments were barred by principles of res judicata.

The appellate court also said the estate's claim was time-barred, as more than seven years had elapsed between the date of the PTD award and the date of the estate's motion to enforce it.

On Thursday, the Supreme Court unanimously reversed the Court of Appeals.

"(A)s Dixie's president at the time of the injury, Jarrett, by statute, is liable to Dillard," the high court explained. The court said the comp judgment against Dixie was "tantamount to a judgment against Jarrett personally," and so Dillard could seek enforcement of the judgment.

The court also said the enforcement action was not time-barred since it was filed in 2009, just over a year after the administrative judge entered the award of PTD benefits.

Work comp - sometimes its great, sometimes its not.

The lesson: employers don't guess about whether or not someone is or isn't an employee, because you probably don't understand the law; and if you don't understand the law your family could lose everything.

And isn't that what the "grand bargain" was intended to avoid?

To read the court's decision in the Harper case, click here.
To read the court's decision in the Jarrett case, click here.

Lawyers, Guns and Money

One of my cycling buddies I was chatting with in the peloton the other day mentioned that he has finally amassed what he deemed a sufficient collection of various firearms.

As you likely know, the threat of greater gun control, the hysteria created by the Sandy Hook (and other) mass shootings, and just media releases by gun control/rights zealots, has created a "hard market" for firearms and ammunition.

A lot of people who are afraid guns might be difficult to acquire in the future have created a sharp demand for these articles. And of course guns are made to be fired, so shooting ranges are also seeing boom times along with big increases in ammunition sales.

According to the Federal Bureau of Investigation, more than 16.8 million background checks for gun purchases were recorded in 2012, the highest number since the agency began publishing the data in 1998. According to the National Shooting Sports Foundation, firearm retailers have been reporting a 20% to 25% increase in sales in the past few years, driving up utilization of both indoor and outdoor shooting ranges.

Isaac Newton's third law of physics is applicable to workers' compensation. To paraphrase - for every economic action, there is an equal and opposite workers' compensation reaction.

So it seems that in the gun world, the current boom in sales is being countered with a shortage in available workers' compensation coverage.

Specialists in firearm business coverage note that political pressure and anxiety surrounding gun-related accidents are a big part of the reason carriers are not eager to write comp for shooting-sports establishments despite the fact that the industry has excellent loss experience because they are typically manned by highly skilled professionals and have very low incident rates.

“My book of business now is less than a half-percent loss ratio on my work comp on my shooting ranges – a half percent. There is not a work comp company out there that will not die to have a half-percent loss ratio on their book of business. That is a profit margin that everybody would want to have,” Scott Wilson, president of Chesterfield, Mo.-based Best Shot Insurance, a division of Charles L. Crane Agency, told WorkCompCentral.

A few days ago I posted some questions and comments about the role of brokers and commissions in workers' compensation. One of the roles is just finding insurance; understanding the industry and business risk, pitching the acceptability of that risk to a carrier, and creating programs to service the industry in order to maintain risks within acceptable parameters to the carrier.

The current gun fad demonstrates this broker role in the system.

Chuck Holdren, president and chief executive officer of Holdren Group,whose Oregon-based agency places workers’ comp for indoor and outdoor gun ranges, sporting clays, skeet and trap fields, archery clubs, public or private ranges and clubs, as well as stand-alone retail gun stores and upland bird-hunting operations, started his agency in 2010 because he saw a market opportunity.

Holdren found that it took a lot of education on the part of carriers to understand and accept the misunderstood risk of covering gun related businesses.

According to Holdren, more than 90% of shooting sports operations are insured for workers’ compensation by state funds or assigned risk pools.

Other forces beyond not understanding the risk are at work too - such as reinsurance treaties that bar primary carriers from insuring shooting-sports operations.

In our workers' compensation professional lives, we focus so much on claims (aka losses) because that's where the action is. Losses define risks, and insurance is about spreading the risk to minimize impact on a single insured.

The many nuances of workers' compensation reflect the broad, diverse economy of this nation. I'm always amazed at how uniquely this industry responds to the needs of the economy.

Chinese Work Comp Surprisingly Similar

Yesterday I posted on Facebook a link to a horrific photo in the Wall Street Journal of a Chinese construction worker getting steel bars cut from his body - the look on the faces of the people helping conveys the sheer terror of the situation.

The photo is here (I am unsure if this is subscription content, so it may not work):

http://online.wsj.com/article/SB10001424052702303734204577464740934182320.html?mod=WSJ_hps_PhotosModule_1#slide/1

I wondered if China had workers' compensation - turns out it does.

China passed a workers' compensation law that took effect January 2004. While workers' compensation is "voluntary" in China (until "ordered"), employers that do not subscribe to the insurance program are required to pay the same benefits available through the program.

Sort of like the Oklahoma non-subscription model that didn't pass this year with some key differences.

But China is different because such a large percentage of the population works for the government or the military. About half of the population is still agricultural.

China's work injury protection history follows a similar path to Western cultures that have workers' compensation systems and it is rooted (pun intended) in the transition from agricultural to industrial economies, and in China this means a transition from a command economy (where the government decides what is done, when, and with what resources) to a market economy.

It turns out that China, prior to its Cultural Revolution (between 1966 and 1976), had an employment insurance system which included work injuries. This system was interrupted by persecution of dissidents and the Cultural Revolution, and then beginning around 1978 the economic transition started.

This transition saw the migration of workers from agricultural regions to urban regions as the economy required more labor to build things, rather than feed themselves. At first these migrating agricultural workers were seen culturally as less than equal (sound familiar?) - they had low levels of training and skills, and consequently high rates of accidents and deaths on the job. These people were regarded as peasants and were not covered by insurance though arguably they were the most in need of some form of work injury protection.

While this migration pattern was going on there was also transition in State-owned Enterprises (SOE). Laws were changed as the economy moved from command to market based, and as a consequence SOEs had to compete on a cost basis with market based companies. This meant that savings were sought everywhere possible, and thus worker safety was secondary to company profit.

In 2004, with China's manufacturing economy rapidly growing, the government's Regulations on Work Injury Insurance became law. All employers are required to participate with insurance funded solely by employer premiums, which are generally less than 1% of payroll, with different rates based on classifications. Both injury and illness is covered and it is administered through the Work Injury Insurance Board affiliated with the Labor Department.

For employers that paid into the system as requested the insurance would pay for most compensation items such as medical expenses, lump sum indemnity, monthly pensions, survivor's benefits - there is no loss of earning compensation though - employers are required to maintain wages during the period of medical treatment. In addition an employer can not terminate an employee during the period of medical treatment and if an employment contract ends during that period the law requires its continuation until the end of the medical period.

For employer that did not pay into the system they would be "ordered" to do so - the penalty for failure to do so is that if a work injury occurred during the period of non-insurance the employer would be liable for all benefit just the same as though they were part of the system.

Benefits under the Chinese system are similar to Western systems, though probably with less subjectivity and more concrete divisions in levels of, for instance, permanent disability. Medical expenses are advanced by the employer or injured worker and then are reimbursed by work injury insurance. As mentioned above, wages are maintained so there is no lost earnings paid (thus no "temporary disability"). And permanent disability is paid via a lump sum system that is based on "degrees" of disability.

There is a bifurcated dispute resolution system in place depending upon whether the employer pays into the system or not. If the employer pays into the system then any dispute is between the injured worker and the Work Injury Insurance Board. If the employer is a non-subscriber then there are two systems: compensability is determined in an action by the injured worker to the Work Injury Insurance Board. But compensation matters are treated the same as labor disputes, with mediation, then labor arbitration, then litigation with review by a higher court.

And like counter parts in the West the system is subject to "reforms". And like in the West employers carry on about the cost and how it inhibits competition while Labor fights for fair treatment and working conditions.

There is one very big important difference from the Chinese model and the Western model that stems from how the different governments work: the Western model is a provincial level system - meaning that each state has its own system, and even different Federal risks have different systems (e.g. LSHW, DBA, etc.). But the Chinese system is national in scope - the provinces do not have separate systems. 

I have obviously glossed over the Chinese workers' compensation system, and certainly there are experts who probably should correct my many generalities here.

What I find of particular interest is that, even though it was established after almost 100 years after the Western model was established, how similar the system is with nearly the same types of benefits and detriments. 

It turns out that humans are all the same - regardless of whether we live in the East or the West, motivations, emotions, the process of life are no different.

What we have in the US may just turn out to be about as good as it can get. It may not be perfect, and there will always be disputes, but if the Chinese had 100 years to figure out something better you'd think they would - and it turns out they haven't...

A very good PowerPoint slide show on the Chinese workers' compensation system is available for download from the University of Ottawa's website.

Compensable Consequence: Dogs versus Drugs

An injury that occurred when an injured worker's dog pulled away from him, causing his shoulder surgery to fail, is compensable, because it was a direct and natural consequence of the original work injury, the Tennessee Supreme Court, Special Workers' Compensation Appeals Panel ruled in Kirby v. Memphis Jewish Nursing Home, W2010-02261-WC-R3-WC, 12/01/2011.

David Kirby was employed as a heating, ventilation and air conditioning technician for the Memphis Jewish Nursing Home. He injured his shoulder on Sept. 24, 2008, when he slipped on some stairs while climbing down from a roof.

Kirby underwent surgery to repair a torn labrum and biceps tendon. He underwent physical therapy after the surgery and was progressing well until late September 2009, when he returned home and found one of his dogs off the leash and loose. Kirby grabbed the dog's collar, but the dog tried to run away, pulling on his shoulder. Kirby felt pain immediately and visited his doctor.

The dog's pull had caused Kirby's tendon to tear again, creating what orthopedists call a "Popeye" deformity to the biceps. Kirby and his doctor decided it was best not to perform any additional surgery. Kirby applied for workers' compensation benefits.

I find the Kirby case analogous to drug overdose cases that I had been highlighting recently.

A couple of days ago a reader challenged my opinion that a court was correct in finding compensable a worker's death due to drug overdose.

Change the facts in the above case a little to read that every time the worker felt pain due to his shoulder injury he popped another Oxycontin - and finally ingested enough to overdose.

How is taking medication prescribed by a treating physician - albeit outside of prescribed dosage - different than exceeding the physical limits of a freshly repaired body part?

One could argue that taking too much medication is voluntary - but then again grabbing a dog's collar is also voluntary. One could argue that taking too much medication is known to cause death and/or further disability - but then again it is reasonably foreseeable (one of those terms you learn as a first year law student) that grabbing a dog's collar after surgical correction could also lead to further injury of the shoulder.

In the Kirby case, the employer argued that Kirby's negligence had caused the second injury, breaking the chain of causation.

The appellate court's opinion noted that Kirby's physician had encouraged Kirby to "push past his limits" in order to improve his range of motion. The doctor had not advised Kirby to avoid walking his dog and had testified that failure is one of the risks of shoulder surgery. The court determined that the second injury was, therefore, a direct and natural consequence of the original injury.

In drug overdose cases, particularly the couple that I have observed in the past few posts, the employer argues that taking too much medication is outside the employer's control and is purely voluntary on the part of the employee.

Where do you draw the line on control? The employee's physicians had provided prescriptions for narcotics for pain. The physicians, per the prescriptions, had placed a limit on the quantity of drugs to be taken. One of the risks of these drugs is death if taken in excessive quantities or mixed with other drugs or alcohol. I'm reasonably sure that there are warnings on the labels of these drugs per FDA regulation.

I think it is helpful to think of workers' compensation as the first real universal health care system, albeit applicable only to people that are employed. You get hurt at work, your medical is covered. If one thinks of workers' compensation in those terms then compensable consequence cases are easier to understand.

In the Kirby case, a not yet completely healed should injury was still the responsibility of the employer even though the re-injury was due to a non-employment event because the universal health care rationale of workers' compensation dictates that result.

In drug overdose cases, a not yet completely healed worker is still the responsibility of the employer even though excess pharmaceutical intake is a non-employment event because the universal health care rationale dictates that result.

I don't like this result, but I have a hard time arguing against it until we change our culture of surgery and drugs as the cure of all that ills us.workers compensation, work comp, injured worker