Wednesday, December 28, 2011

Firefighters, Wisteria Bushes and AOE/COE

This case, reported in this morning's WorkCompCentral News, is sure to bring about loud objection from the employer/business community:

A firefighter's decision to help his wife trim the wisteria in front of their Catalina Island home was incidentally related to his job because island residents would occasionally go to his home for emergency help, the 2nd District Court of Appeal ruled in an unpublished decision. The court said that the firefighter's injuries were work-related under the dual purpose doctrine. This doctrine allows a claim to be compensable if the activity the applicant was performing at the time of injury benefited both the injured worker and the employer.

Warner, a firefighter for the County of Los Angeles Fire Department, was stationed at Catalina Island and lived at a house with his wife. The job required him to be continuously on call for 24 hours a day, seven days a week, and he responded to weekend fire calls about 26 times per year.

On Sunday, Feb. 14, 2010, Warner had just finished doing some inventory work inside his home office before leaving to check on more equipment inside his fire truck. As he walked down the stairs in front of the house, his wife asked him to trim the wisteria that grew over the walkway into their home. Warner climbed up a ladder and began to trim the wisteria, but a trellis gave way, causing Warner to fall. He suffered neck, back, elbow, wrist and shoulder injuries.

A workers' compensation judge and the Workers' Compensation Appeals Board denied his claim, concluding that the injury did not arise out of or occur in the course of employment. However, the 2nd DCA determined that Warner's trimming of the wisteria incidentally benefited his employer, because it made it easier for island residents to go to Warner's home in case of an emergency.

"Here, trimming the wisteria ensures residents have safe access to petitioner's house and allows him to reach his fire truck in a safe and timely manner when responding to emergency calls," Presiding Justice Paul Turner wrote on behalf of the majority. "No doubt, petitioner trimmed the wisteria at his wife's request. But this does not negate that the activity was impliedly authorized by the county because it is undisputed that island residents sometimes go to petitioner's home for help. By trimming the wisteria, petitioner was engaging in an activity that benefited both himself and his employer."

Justice Richard M. Mosk dissented, arguing that Warner's fall was not compensable under any special rule.

"The wisteria did not prevent petitioner from reaching his fire apparatus," Mosk wrote. "Indeed, he apparently saw no need to deal with it. He only undertook to trim it at his wife's request. As attributed to petitioner, trimming the wisteria improves the appearance of the house. There is no evidence that petitioner's wife or petitioner undertook to cut the wisteria as a safety measure for members of the public who came to the residence for services."

Tuesday, December 27, 2011

NFL Suits and Report Cards - Transparency the Issue

I said I was taking a vacation during the week between Christmas and New Years.

I lied.

Too much going on. Maybe I just won't be as consistent in my posting, but I found after reading the news this morning that I couldn't shut up.

Two things this morning have fired up my typing fingers: Another NFL lawsuit and the WLDI annual report cards.

NFL Suit

Twenty-five former football players sued the National Football League last week - players filed two lawsuits against the NFL, one in Georgia and one in Florida federal courts.

Baltimore Ravens running back Jamal Lewis and three other players filed the first suit in the U.S. District Court for the Northern District of Georgia last Wednesday, in a case titled Lewis v. NFL.  St. Louis Rams offensive lineman Kyle Turley and a group of 21 other players filed the second suit in the U.S. District Court for the Southern District of Florida on Thursday.

The two suits are the latest addition to a collection of four other concussion-related suits filed by players since last July. All of the actions allege that the league breached a duty to protect players from concussions that led to disabling brain injuries, such as chronic traumatic encephalopathy (CTE).

The suits allege the NFL's creation of the Mild Traumatic Brain Injury Committee (MTBI Committee) in 1994, which was created to research and resolve the impact of concussions in 1994. When the committee identified medical evidence suggesting that repeated concussions could result in tragic brain injuries, the NFL concealed it, the players' complaint contends. 

The suits are unique because they are filed against the league rather than the teams. The teams are the players' employers so there should not be exclusivity.

What's also interesting is that these suits potentially create a little bit of a conflict between the teams and the NFL because there is certainly big subrogation potential behind the players' suits. Will the workers' compensation insurance companies for the teams seek to recoup some of their expenditures by intervening in these suits? And if so, will team owners, who essentially are the owners of the NFL, seek to quash such litigation? Who REALLY controls the money in this circuitous examination of liability?

For work comp wonks, interesting just scratches the surface regarding the issues in these suits.

Report Cards

The Work Loss Data Institute published its 2012 State Report Cards for Workers' Comp. This report intends to show insurers, state agencies and employers which states are doing well in treating workers and getting them back to work.

I'll admit to being ignorant as to the methodology of the report and how "grades" are derived.

It is interesting to me because for the most part, workers' compensation medical care completely lacks transparency.

The WLDI report doesn't resolve this lack of transparency, and in fact I think highlights the fact that there is no way anyone other than within a single entity (and likely even that is doubtful) can compare health outcomes and costs from one provider to the next.

I bring this up because I just finished "The Company That Solved Health Care" by John Torinus.

Torinus argues that the health care industry doesn't want health outcomes from vendor to vendor to be known because that would create market competition. In health care, as in workers' compensation, the health care industry goes to great lengths to ensure that the care consumer (in workers' compensation its the injured worker) has no idea who does good work on a defined quantitative schedule of comparison and what the costs are. Consumers have been trained to just rely on what their doctor tells them and follow along like dogs. The medical industry has been successful in taking the consumerism out of health care, and that is what has driven health care costs to spiral far outside the rate of inflation, unchecked, and why it will continue to worsen.

Workers' compensation is no different, and in fact its worse - the consumer, injured worker, has absolutely no financial stake in the medical equation. There is no financial reason for the injured worker to seek comparison, nor is there any way for the injured worker to make comparison.

And, since the entire bill is paid for by a third party - the nasty, antagonistic insurance company - a natural conflict is created and the medical industry takes full advantage of this by ensuring that there is acrimony between the two. The injured worker is led to believe that the medical community is really the one on the side of him or her.

WLDI's report card is a step toward rating overall system efficiency, but what it really does in my mind is graphically explain that there is no transparency in workers' compensation medical care, nor will there ever be unless the carriers band together, aggregate their data, and take the BIG risk of publicly displaying and rewarding or punishing do-gooders and bad-actors.

Carriers will never do this - their argument is that there is too much liability involved and they will get their pants sued off by the medical industry. They are probably right, they will get their pants sued off.

But in reality, the carriers don't want to make this information public because that jeopardizes the built in premium increase system of the experience modification factor. There is a conflict of interests in the exposure of VALUE in the medical equation of workers' compensation by carriers.

You will see me rant on through out this coming year on this topic because it is one that I think needs to be examined more closely. We will never have true workers' compensation "reform" unless and until there is transparency in the medical side of the system.

Friday, December 23, 2011

OK High Court Strikes Reform Provisions

While I was out sick with the stomach flu the Oklahoma Supreme Court acted with surprising speed in surgically excising offending parts from that state's recent attempt at workers' compensation reform.

Striking provisions limiting service as independent medical examiners to medical doctors and doctors of osteopathy, the court said that the legislature had created a suspect special class without justification or a rational basis.

“We also find that there is neither a distinctive characteristic upon which this different treatment is reasonably founded nor one which furnishes a practical and real basis for discrimination between the groups within the classes. Therefore, the distinction becomes arbitrary and without relation to the subject matter,” Justice Douglas Combs wrote. Such different treatment violates the state Constitution, the majority concluded.

The court also eliminated provisions of the new statute that changed the standard for review of workers’ compensation claims from “a preponderance of the evidence” to “clear and convincing evidence.”

The opinion concluded that the Legislature was in violation of the separation of powers clause of the Oklahoma Constitution by providing that the Workers’ Compensation Court, in using the Official Disability Guidelines, must use the “clear and convincing evidence” standard (rather than “preponderance of the evidence") when making exceptions to the guidelines.

The plaintiffs in the suit alleged that the offending provisions were late changes to the reform bill, inserted at the last minute during the political process.

As SB 878 went through the committee process, the bill's language was such that all "physicians" could continue to serve as independent medical examiners, J. Dan Post of Tulsa, one of the chiropractors who brought the lawsuit, said. However, "at the last minute" a change was made in the bill's language which allowed only medical doctors (MDs) and doctors of osteopathy (DOs) to serve as independent medical examiners, Post said.

The other individual plaintiff, Oklahoma City chiropractor Brad Hayes, said that late language changes made to SB 878 caused the problem. The provision limiting testimony at Workers' Compensation Court hearings to medical doctors and orthopedists "doesn't make any sense," Hayes said. Hayes said he has served as an independent medical examiner “but it’s not a large part of my practice.”

In the meantime, 2012 is heating up as the grand experiment to take Texas-style non-subscription to Oklahoma, which may be the test state for what could be a trend if the experiment produces positive results.


Speaking of 2012, it is just around the corner, and many of you I'm sure will be taking some well deserved rest time between now and January 3 ... so am I! I'm glad that 34,282 of you have followed my opinions since I started this blog in April. It was my goal to post something thought provoking every business day, and except for this past Wednesday, I at least posted every business day (maybe not exactly thought provoking posts each time though!).

To each of you, Happy Holidays. Enjoy this time with friends and family and we'll regroup for what promises to be a very exciting New Year in 2012.

Thursday, December 22, 2011

Hot Coffee Was Perfect for the Stomach Flu

I hate being sick - my compulsions and drive wreak havoc on my emotions as I lay useless, unable to focus or muster enough energy to even change my fever-induced sweat soaked t-shirt.

About 10 p.m. Tuesday night I woke up with the most horrendous stomach pain I've felt in a long time. Remember those Pepto Bismal commercials with the black ugly bug wearing a kaiser helmet? That's what my stomach felt like. Then things started expelling from me like Linda Blair in the Exorcist. Except from opposite orifices.

So yesterday was spent mostly in the fetal position. I wondered what I could do - aha, watch a movie. I never watch movies because I can't sit still long enough to get through an entire film. Perhaps being too ill to do anything else I actually could watch a film! So I did - it had been on my assignment list for some time and having the stomach flu presented a perfect opportunity.

I watched "Hot Coffee; Is Justice Being Served?" by Susan Salodoff.

First, my literary disclaimer - the reason this movie was on my assignment list is because Ms. Salodoff and I are part of a panel discussion at the California Applicant Attorneys Association (CAAA) Winter Conference in Mission Hills on Friday January 27. The topic of the panel discussion is how big business is able to sway public opinion by controlling media outputs. My portion of the panel will review how Unicover Partners sucked a half billion dollars out of workers' compensation precipitating "reform" across America while injured workers and physicians were laid bare as sacrificial scapegoats to an unknowing (and largely uncaring) populace.

But Unicover Partners is not the point of this column. If you want to read more about Unicover go to my editorials many years ago on WorkCompCentral, or in Forbes Magazine.

What this column is about is "Hot Coffee" - this movie starts with a review of the infamous spilled coffee case of Stella Liebeck who received a jury award of $2.7 million against McDonalds for burns received when she spilled a fresh cup of coffee in her lap.

The case drew national attention as comics mocked it, politicians cited it, and the American public shook its head - how can a simple act of spilling coffee result in a $2.7 million judgment (by the way the jury verdict was reduced substantially by the judge and the parties subsequently entered into a confidential settlement before the case could reach the appellate level).

The amount of misinformation that was spun by McDonalds, the US business community and bought hook, line and sinker by the population turned the case from one of horrific third degree burns to this poor 91 year old woman's legs and thighs into a national campaign for "tort reform".

The movie takes a look at the cases of Stella Liebeck; of Colin Gourley - born with brain defects because of physician malpractice which could not be even be closely compensated because of damage caps; of Oliver Diaz - Mississippi Supreme Court justice targeted by Big Business with not only big advertising campaign but after election by two Federal indictments (both of which he prevailed against) that took him out of office for 3 years; of Jamie Liegh Jones - brutally drugged and gang raped by Haliburton employees while working in Iraq but whose employment agreement with an arbitration clause prevented adequate access to justice.

Each of these people, and their families, did not know that bad things would happen to them. Each of these people did not know that the justice system had been rigged against them through media control, political spending or the contractual waiver of 7th Amendment rights. Each of these people would have been perfectly content to live life as it is, without concern for our rights as American citizens except for the intervention of misfortune casting them into the nasty world of "tort reform" hysteria.

A more recent example of how we, as American citizens, don't take the time to understand the issues and make independent judgment is a friend of mine - a staunch right wing Republican who is anti-Obama and in particular anti-ObamaCare.

That is until her sister, recently laid off from work and whose husband's business closed due to the recession, was diagnosed with ovarian cancer and because of the aforementioned misfortunes ended up with no health insurance. All of a sudden, ObamaCare's non-discrimination laws against pre-existing conditions is a God-send. Obama isn't so bad after all...

We're all busy people just trying to live our lives. As a consequence we rely on others to filter information that shapes our opinions. Too often we don't even do that! There's always at least two sides to every story. Don't accept at face value anything, particularly if it involves matters of great public policy, such as workers' compensation.workers compensation, work comp, injured worker 

Tuesday, December 20, 2011

NH Case Illustrates Legal Fiction in Causation

In his book, Stabbed In the Back: Confronting Back Pain in an Overtreated Society, Nortin Hadler MD argues that much of what we consider an "injury" in our health care and workers' compensation systems are not really injuries.

Dr. Hadler's book specifically addresses regional back pain as a condition that has gone from a normal experience of the human body, the product of general aging for the most part, to an "injury" providing substance to a grand medical sub-industry attempting to treat something with very limited success, if any at all, from a statistical and scientific standpoint.

What Dr. Hadler bemoans is how the laws and legal systems in the United States turn what otherwise would not be medically an injury into a condition that not only increases medical costs but disability. The import of Dr. Hadler's work is that society has essentially created injuries where none exist.

Much of what Dr. Hadler writes about is the product of the law, whether statutorily expressed or interpreted through cases - the point is that we legally recognize an injury (or the inverse, DON'T recognize an injury) other than the fact that the law says so with no underlying medical basis.

Essentially, Dr. Hadler points to confusion on causation. There is medical causation, and then there is legal causation.

A condition may have a basis in medical science, but not be recognized for legal purposes, which is generally tied to some system of indemnity and/or reimbursement for expense.

A New Hampshire case that was reported this morning in WorkCompCentral News is a perfect example of why physicians have a difficult time understanding how the law impacts what is, or isn't an injury.

The Supreme Court of New Hampshire decided that the Legislature intended to exclude a former business owner's depression from the list of compensable injuries, in the case of In Re Appeal of Letellier.

In the months before the business closed, Letellier saw a nurse at Concord Psychiatric Associates because of stress. He was diagnosed with major depression and hypertension, and filed a workers' compensation claim with Chartis Insurance for mental stress and severe depression.

The state's Compensation Appeals Board (CAB) awarded Letellier reimbursement for medical bills and expenses, but did not award indemnity benefits. Both parties appealed, with Letellier arguing for indemnity benefits and Chartis contending that the injury was not compensable at all.

The state Supreme Court noted that while major depression arising from work-related stress can be compensable, state law specifically exempts mental injuries caused by "any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer." In other words, the statutory language bars compensation for mental injuries caused by good faith personnel actions.

"Like the listed exclusions, the possibility of a business failure is a normal condition of employment," the court wrote. "It, too, is often precipitated by poor company performance or general economic conditions. A business failure is indistinguishable from the specifically enumerated exclusions. Viewing the plain meaning of the phrase 'any similar action' in light of this fact compels us to conclude that the phrase encompasses a business failure."

To add to a physician's confusion over causation, even the law can't agree sometimes! In this New Hampshire case, two of the five justices on the court's panel dissented.

Chief Justice Linda Stewart Dalianis wrote that the statute only excludes "mental injuries that result from a good faith personnel action." She explained that even if the Legislature did not intend to allow claims such as Letellier's, the statute's actual language appears to render his claim compensable.

"Moreover, I believe that because of our obligation to construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose, we must interpret the statutory exclusion at issue narrowly," Dalianis wrote. "Thus, I would hold that the claimant's cumulative occupational stress and resulting depression, caused by the failure of his business, do not fall within the statutory exclusion from the definition of 'injury.'"

When I lecture to physicians, I tell them that many things which they see medically as measurable science is described legally in fictional terms. I think this case illustrates that point.workers compensation, work comp, injured worker 

Monday, December 19, 2011

OR Case Lesson - Don't Be Vague

The interplay between symptom and condition can be interesting, and tricky, once the law gets involved.

This is highlighted by an Oregon case reported in this morning's WorkCompCentral News.

In SAIF Corp. v. Stephens, No. A143526 (12/14/11) Sherrian Stephens, a caregiver, suffered an injury in 2007 when she fell at work and landed on her tailbone. On July 20, SAIF accepted the claim for a lumbar contusion and lumbar strain.  

Her physician diagnosed her with "coccydynia," which was defined as "pain in the coccyx." SAIF closed the claim in December 2007 with the accepted conditions of lumbar strain and a lumbar contusion, and no PPD award. 

Stephens continued to feel pain in her tailbone, and her physician referred her to a neurologist. A CT scan revealed a bone bruise of the coccyx. 

SAIF sent Stephens' physician questions about coccydynia, and received one-word responses. SAIF accepted the coccyx bone bruise, and the claim was reopened in March 2008 for the processing the newly accepted condition of coccyx bone bruise. However, there was no award for additional disability. SAIF determined that coccydynia was a symptom and not a "condition" as defined by Oregon law. The claim was then closed again.

After a hearing the administrative law judge and the Workers' Compensation Board determined that coccydynia was a new condition and that SAIF had to accept or deny the medical condition within 60 days after receiving notice of the claim, which is required by Oregon statutes. On reconsideration, the board determined that SAIF had failed to adequately and timely respond to the claim, and that the failure to respond was a de facto denial. 

As a result, the board assessed attorney fees against SAIF, along with other penalties. SAIF filed for judicial review. 

The appellate court ruled that SAIF still had an obligation to either accept or deny the claim. 

"Even if SAIF had correctly concluded that coccydynia was a symptom, it still had the obligation to either accept or deny the claim. As we recently explained in Crawford v. SAIF," the court opinion states, "if a claimant files a new or omitted medical condition claim pursuant to ORS 656.267 by clearly requesting formal written acceptance, the insurer's response must be by written notice of acceptance or denial within 60 days. In that circumstance, a mere letter of clarification or amendment of the notice of acceptance does not suffice."

But, the court also ruled that coccydynia is not a separate condition, but is rather a symptom. Therefore, SAIF did not have to accept coccydynia as a new or omitted medical condition. Consequently SAIF was not liable for attorney fees or penalty, reversing the Board.

The simple lesson in claims management: when in doubt, err on the side of some positive response within the stated time line.

Friday, December 16, 2011

NY Trusts Go to US Supreme Court

An interesting legal battle going on in New York has escalated to the United States Supreme Court and has implications beyond workers' compensation if the court decides to grant a hearing.

Chairmen of 12 former self-insurance trusts managed by New York administrator First Cardinal filed a petition for writ of certiorari asking the Supreme Court to intervene in a three-year battle over assessments levied by the State Workers' Compensation Board (SWCB) to pay off claims left by a string of trust failures dating back to 2006.

The trusts argue that SWCB had no legal authority to assess healthy trusts – those considered fully funded under New York law – for the failure of 17 other trusts declared insolvent and taken over by the board in the past five years.

The so-called "First Cardinal" trusts won summary judgment from the New York Supreme Court, the state's trial court, in May 2010.

The court ruled that assessing healthy trusts for the liabilities of failed ones constituted an improper taking of the rights of trust members to "reasonable, investment-based expectations" under the Fifth Amendment to the U.S. Constitution.

The trial court's ruling was overturned by a New York appeals court on April 21, 2011. The Appellate Division of the Third Judicial Department ruled that the board's assessments were designed to promote the common good and didn't "rise to the level of a taking."

The New York Court of Appeals -- the state's highest court -- declined to hear the case in September. In a two-paragraph slip opinion, the court said it found no constitutional issues that would merit a hearing.

The First Cardinal trusts contend that their combined board assessments swelled from $155,000 in 2007 to $12 million in 2008, after then SWCB Chairman Zachary Weiss invoked a section of New York law allowing him to impose emergency assessments to pay workers' claims.

To avoid further assessments, the twelve trusts voluntarily dissolved, effective Jan. 1, 2009. They contend they were assessed more than $100 million to pay for failed trusts and are facing another $33 million in exit penalties.

A quick search of "workers' compensation" in the Cornell University Law Library web site did not produce too many results, as one might expect, the last being in 2006, HOWARD DELIVERY SERVICE, INC., et al., PETITIONERS v. ZURICH AMERICAN INSURANCE CO.

The Howard case involved a carrier seeking priority status for unpaid premiums in a bankruptcy proceeding of its insured.

The court held that a carriers’ claims for unpaid workers’ compensation premiums owed by an employer fall outside the priority allowed by §507(a)(5) reasoning that such premiums are more appropriately bracketed with liability insurance premiums for, e.g., motor vehicle, fire, or theft insurance, than with contributions made for fringe benefits that complete a pay package, e.g., pension plans and group health, life, and disability insurance:

"In sum, we find it far from clear that an employer’s liability to provide workers’ compensation coverage fits the §507(a)(5) category 'contributions to an employee benefit plan … arising from services rendered.' Weighing against such categorization, workers’ compensation does not compensate employees for work performed, but instead, for on-the-job injuries incurred; workers’ compensation regimes substitute not for wage payments, but for tort liability."

The First Cardinal petitioners argue that New York's group-trust crisis is part of a bigger liability problem facing multi-employer pension systems and health insurance plans across the U.S.

"The court should grant review in this case to provide sorely needed guidance to the lower courts as they deal with the inevitable flood of litigation to follow," the petition contends. "The crisis in New York’s self-insurance market is a microcosm of a broader nationwide crisis in unfunded pension and health-care liabilities."

It seems to me that the US Supreme Court has made its view pretty clear with the Howard case - workers' compensation is unlike pensions in that it is not a wage payment. Equating a state requirement of joint and several liability, to which the trust members agreed going into the arrangement, to a pension or health-care liability, which are employee contract obligations, doesn't seem to hold up to legal analysis.

If the US Supreme Court does take up the challenge it could be a game changer. workers compensation, work comp, injured worker 

Thursday, December 15, 2011

Big Pharma Missing From Drug Problem Dialogue

Noise about prescription drug abuses is getting louder, but there's an element missing from the dialogue.

On a national level, an initiative by the U.S. Food and Drug Administration (FDA) to educate the nation's medical providers on the use of opioids is making the rounds and getting support from the nation's industrial medicine constituency.

On Nov. 4, the FDA posted its "Blueprint for Prescriber Continuing Education Program" with a focus on medical providers who prescribe extended-release, long-acting opioids, such as the painkillers oxycodone.

The FDA noted that more than 35 million Americans age 12 and over reported non-medical use of opioid painkillers last year -- up from 29 million in 2002, and that users of opioid painkillers made nearly 342,000 visits to hospital emergency rooms in 2009. Nearly 28,000 people died from use of prescription painkillers in the U.S. in 2007, the FDA said.

The FDA said in a regulatory notice it is developing the training program as part of a risk-evaluation and mitigation strategy (REMS) required by regulation to be developed by the nation's drug manufacturers.

Dr. T. Warner Hudson, president of the American College of Occupational and Environmental Medicine (ACOEM) told WorkCompCentral, "It's the chronic overuse of opioids for underwhelming pain that leads to a death toll that now exceeds motor vehicle accidents in some cases. The problem is setting off alarm bells. It's become a public health emergency."

Dr. Suzanne Novak, a clinical professor at the University of Texas School of Pharmacy and the lead adviser for the ODG Pain Chapter, said in an interview with WorkCompCentral that doctors in general get limited education on drug therapy and basically don't attend any education where workers' compensation is the topic.

"Everybody's working on the same evidence pretty much, and it's been developed over a long period of time," Novak said. "What's ended up happening is that when I talk about workers' compensation, there are a bunch of nurses in the room, but there are no doctors in my audience."

Separately, in Texas where the Texas Labor Code requires the Division of Workers' Compensation to review the quality of health care provided in the workers’ compensation system, Medical Adviser Dr. Donald Patrick has asked for input by Dec. 21 for a plan for auditing utilization review agents, and by Jan. 6 for revising the annual medical quality audit plan for calendar year 2012.

Carriers are seeing this as an opportunity to look at how physicians are prescribing opioids (narcotics) and other drugs.

The Workers Compensation Research Institute (WCRI) reported injured workers in the Texas workers' compensation system are 30% more likely than average to receive prescription drugs, and receive 16% more morphine equivalents than average. The WCRI study also reported Texas has a 44% higher prescription payment per claim than average for the states studied.

Trey Gillespie, senior workers' compensation director, Property Casualty Insurers Association of America (PCI), told WorkCompCentral the association is still reviewing the proposed plan, but he said PCI and its members "are very interested in the review of treating doctors and pain management doctors with regard to drug utilization practices."

In the mean time, Ohio Attorney General Mike DeWine praised the vote by the Ohio State Medical Board to permanently revoke the medical license of James E. Lundeen, Sr., who was alleged to have improperly prescribed narcotic drugs to patients without proper safeguards.

The State Medical Board held hearings in August. During the hearing, the Attorney General's Office presented evidence regarding 26 patients "to demonstrate that Lundeen's practice of medicine fell below the minimal standards expected of care," the office reported.
The office said two of Lundeen's patients testified at the hearing, and said that Lundeen "did not perform even cursory physical evaluations at appointments when he would prescribe ever-increasing amounts of narcotics to them."

Missing from the equation is participation by the drug manufacturers. Drug companies defer to physicians and pharmacists to protect the public because they are already highly regulatory by the FDA.

I believe that there is culpability in the drug industry and that in general that industry does not do nearly enough to protect and educate the public about the significant risk of their agents. Compliance with regulatory notices required to accompany prescriptions is insufficient - does anyone actually read those?

Big pharma won't change its practices until, like big tobacco, they are made to pay for the adverse consequences of failure to adequately protect the public against misuse of their products.

Some attorneys somewhere will bring suit against big pharma, and I suspect, will be successful for stinging that industry for hundreds of millions, if not billions, of dollars in damages to the American public.

If I were heading the pharmaceutical industry, I'd be taking steps now to reduce that risk and put into place as many safeguards as possible (television advertising, physician education, public service announcements, etc.) to limit the exposure to the inevitable suit, because if a case ever gets to a sympathetic jury the damages will be huge.

Wednesday, December 14, 2011

CA Efforts to Catch Cheating Employers - One Part of the Value Proposition

New efforts to identify and punish employers who willfully avoid obtaining workers' compensation insurance appears to be paying dividends in California, if recent activity is an indicator.

Governor Jerry Brown signed legislation on Oct. 9 authorizing fines of $500 to $15,000 per violation for willfully classifying an employee as an independent contractor. The bill allows civil penalties of $10,000 to $25,000 for a pattern of willful misclassification.

On the heels of that legislation, a collaborative effort between the Department of Industrial Relations, the Employment Development Department and the Workers' Compensation Insurance Rating Bureau has resulted in the discovery that 479 of 1,498 employers -- about 31% of those randomly selected for review by the Employment Development Department this year -- did not have workers' compensation insurance for their employees. Further review found that 80 of the employers actually did have a policy and an additional 45 purchased insurance after receiving a notification from the department.

Christine Baker, who was appointed just last week to serve as director of the Department of Industrial Relations pending Senate confirmation, testified during a Dec. 5 hearing of the Select Committee of the California state Senate Business and the Underground Economy that the department issued 56 citations against employers who had no workers' compensation insurance and against 46 employers who let the coverage lapse. Fines totaled $400,958.

Starting in January, computer monitoring of payroll information reported to the state will also be used to identify employers who are using more workers than they claimed when purchasing a policy or who are logging more work hours than are being reported. This should help identify businesses that need to be investigated, rather than the random sweeps that had occurred in the past which resulted in "good" businesses getting swept up in the drag-net.

The next big step in dealing with cheating employers is rapidly deploying enforcement action.

Bruce Wick, director of risk management for the California Professional Association of Specialty Contractors, testified that in the case of Petronella Roofing, an Orange County contractor accused of running the largest known workers' compensation insurance fraud case in the history of the state, red flags were identified long before the company was shut down, a process that took five years.

"Had they been shut down earlier, we could have given more business to legitimate contractors," testified Wick.

Contractors State License Board compliance chief David Fogt said a board review of the more than 300,000 licensed contractors in California found about 60% are exempt from carrying workers' compensation insurance.

"They've signed under penalty of perjury that they have no employees and we know that is not true," Fogt testified. "The majority have their own workers or they're picking people up at Home Depot."

According to our story in WorkCompCentral this morning there was some question by the Senate panel that perhaps some employers just didn't know that they needed workers' compensation insurance.

While this argument was countered by testimony common sense says that the vast majority of such employers knowingly cheat - an independent contractor doesn't need any direction on the performance of the task at hand, and has their own tools.

Times are tough, no doubt. I'm glad that the State of California is intent on leveling the playing field. This can only boost the overall economy of the state so long as the return on investment remains positive, and so far it appears so.

Baker testified that compliance with workers' compensation insurance requirements is one of the best tools for driving the so-called underground economy out of California.

I agree to a point - we don't really want to drive the underground economy out of California, we just want it to be above ground, providing required insurance, and paying taxes. This is one part of the value proposition in the current schema and when done correctly is what government should be doing. workers compensation, work comp, injured worker 

Tuesday, December 13, 2011

OK ERISA Option Gets Big Boost

The reality that Oklahoma may be the first state in the nation with an alternative work injury program option besides Texas just picked up tremendous steam when Senate President Pro Tempore Brian Bingman, R-Sapulpa, asked that legislation dealing with workers’ compensation be drafted this past week.

According to the WorkCompCentral News report this morning, Bingman's office said they could confirm that Bingham had asked that legislation dealing with workers’ compensation be drafted, but could not confirm any details regarding the proposal -- including who might carry the bill.

But Becky Robinson, chairwoman of the Oklahoma Injury Benefit Coalition (OIBC), told WorkCompCentral that Bingman has asked the Senate staff to draft a proposal for an alternative plan. She said the coalition is “excited to have (Bingman) involved and championing these efforts on behalf of employers in the state of Oklahoma.”

Mike Seney, senior vice president of operations, for the Oklahoma State Chamber, told WorkCompCentral on Monday that the chamber and coalition representatives met last week to discuss "how to do this."

The organizations have talked with Bingman on the proposal, and a bill is "definitely in the hopper," Seney said -- although there are no final decisions yet on the legislation. The language of the bill will need to be finalized and reviewed, Seney said.

Under the OIBC plan employers would be allowed to opt out of the state workers' compensation system only if their plans provide benefits that meet or exceed those that employees would receive under work comp.

OIBC was organized this spring by businesses which contend Oklahoma’s workers’ compensation system is too expensive, too litigious and too difficult to navigate for employers and injured workers. Oregon's biennial work comp cost survey had Oklahoma fourth most expensive in the nation.

Many OIBC members also operate as "non-subscribers" in Texas with ERISA plans, and their enthusiasm is driving the ERISA option in Oklahoma.

The OIBC option improves upon the Texas model by requiring an employer to participate in the current state system or to have a qualifying alternative in place, according to OIBC members.

Friday was the deadline for Senate and House of Representatives members to request bills, which must be introduced by Jan. 19. The 2012 legislative session starts on Feb. 6.workers compensation, work comp, injured worker 

Monday, December 12, 2011

OR Cases Highlight Complex Fee Relationships

Oregon passed this year, effective January 1, 2012, an interesting law in an attempt to regulate the complex relationship between medical providers and those responsible for paying for workers' compensation medical bills.

The law gives the Workers' Compensation Division authority to fine an individual or firm for attempting to direct care without proper certification. The only option for directing the care of injured workers in Oregon is through managed care organizations certified by the Department of Consumer and Business Services, the parent agency of the Workers' Compensation Division.

There are only five certified organizations operating in Oregon, but they provide about 40% of the treatment to injured workers.

In addition to directing care, managed care organizations can negotiate discounted rates with providers pursuant to ORS 656.248.

The Division implemented rules prohibiting carriers from using PPO rates for workers' comp without a contract signed by the provider and filed with the division. The contract must apply only to workers' compensation treatment, and the discount can't exceed 10%.

Providers were complaining in 2008 that preferred provider organization rates for group health were being applied to workers' compensation payments without their knowledge.

These laws are interesting because according to lawsuits recently filed insurance carriers in Oregon were improperly contracting for reimbursement rates below the state's medical fee schedule.

The suits allege that carriers are reimbursing procedures for treating injured workers at rates negotiated for group health. Providers agree to the discounted rates for group health because insurers are allowed to direct care, according to the attorney who filed these cases in an interview with WorkCompCentral.

But that is not the case in workers' compensation - as noted above, only in managed care organizations can the carrier direct care.

So the key to discounting of medical fees is, according to this logic, who gets to direct care. If the provider gets to direct care then the provider must be paid at fee schedule. If the carrier directs care then the provider gets paid according to the contracted rate.

I'm not sure I understand this logic and I'm sure someone will enlighten me.

I point out this situation as an example of how something perceptibly simple - paying the bill - can get convoluted and complex well beyond the lay person's understanding when the term "workers' compensation" intervenes.

The lawsuits are Lincoln City Physical Therapy LLC v. Travelers Casualty and Surety Co. et al., filed Dec. 2, and Erhardt Physical Therapy and Sports Medicine P.C. v. Liberty Mutual Fire Insurance Co. et al., filed Nov. 29.

Thursday, December 8, 2011

Just Because We Can Doesn't Mean We Should

In a blog editorial in the most recent issue of Harvard Business Review (HBR), co-founder of Fast Company Magazine, Bill Taylor, reminds us that "just because you can doesn't mean you should."

Taylor cites the recent public relations snafu by Bank of America when it announced, then later withdrew amongst well publicized customer outcry, a $5 fee to use it debit cards.

BofA executives reasoned that changing accounts was too much of a hassle and that eventually customers would just accept the fee.

As Taylor points out, this fractured logic, in the sole name of corporate profits and for no other purpose, was deficient. He cites the conclusion of the New York Times as a clear statement of his case, "The revenue the bank expected to raise from the debit fee was not worth the damage to its reputation."

Taylor goes on to discuss what he calls "one of the most subversive articles ever published" in HBR: "Companies and the Customers Who Hate Them."

The article, Taylor explains, was written by a couple of very big business people and a Harvard Business School professor, and concludes, "One of the most influential propositions in marketing, is that customer satisfaction begets loyalty, and loyalty begets profits. Why, then, do so many companies infuriate their customers by binding them with contracts, bleeding them with fees, confounding them with fine print, and otherwise penalizing them for their business? Because, unfortunately, it pays. Companies have found that confused and ill-informed customers, who often end up making poor purchasing decisions, can be highly profitable indeed."

I read that paragraph and immediately thought of workers' compensation - a system that infuriates its customers (workers and their employers) with binding contracts (networks and policies), confounding fine print (the micro-social regulation built into our systems) and penalizing them for their business (workers with needless disability; employers with needlessly inflated experience modification factors).

Yes, keeping our customers confused and ill-informed pays. They make poor purchasing decisions (e.g. surgery for regional low back pain where there is no other clinically significant indications) which creates outsized profits for everyone along the buffet line.

Taylor quotes the earlier HBR article, "Businesses that prey on customers are perpetually vulnerable to their pent-up hostility. Sometimes all it takes to drive mass defection is the appearance of a customer-friendly competitor."

I wrote earlier that Oklahoma may start a national trend with the pending experiment of a Texas-based non-subscription offering. My interest is whether this is a model that will provide discernable, increased, value to our customers and whether by doing so we will see defection from our current centenarian system to a more customer friendly competitor.

"Hopefully, as we put the finishing touches on a lousy year, we can all learn to distinguish between economic value and human values, between what we can do and what we should do," Taylor concludes. "Those distinctions might produce fewer customers who hate us, and lots more who love us."

We all know that change is in the air. Because of the enormity of our industry, and its age, such change doesn't come quickly, but surely we are in for different times.

The Oklahoma experiment will face tremendous lobbying obstacles, no doubt, because those whose mind set is based on the "because we can" sentimentality make no distinction in the provision of value versus extraction of short term profits.

Taylor counsels, "Real leadership is about embracing the 'values proposition' — doing the right thing at all times, and figuring out how to build a great business around that unwavering promise."

I know I'm preaching to the choir in this blog - those of you who read this are already on board in providing value to our customers. Your mission: to extol the philosophy of value to others and remind them that just because we can doesn't mean we should.workers compensation, work comp, injured worker 

Professional Sports and the Relevancy of Comp

Professional sports represents an odd situation for workers' compensation schemes. There is a high degree of risk of injury or even death, especially for the more violent sports such as football, or sports involving speed and/or endurance such as cycling.

Work in professional sports really comes down to being all about performance on play day. Enhancements to performance are encouraged except to the extent that enhancements may be outlawed either by the sports governing body or by law (and even then enhancements are encouraged, just more quietly, as we have seen throughout the history of cycling).

Like most jobs the worker in professional sports has a "shelf life" but this is typically much, much shorter than the average nine-to-fiver. Consequently for the short life of a professional athlete the pay grade must be much higher on a per unit basis than the nine-to-fiver; and since work comp is based on payroll this inflates the premium (which of course is absorbed by the various income streams).

In professional sports there is tremendous peer pressure to perform despite the athlete's health, or lack there of. And the support crew around the professional athlete encourages and provides assistance to assure top performance at and during show time.

This is because professional sports is big business. Television rights, stadium tickets, food and beverage concessions - all of this adds up to billions of dollars per year in economic activity related to the entertainment of enthusiasts.

Primarily involving football, but applicable to other sports, we are seeing an increase in litigation claiming the practices of sports leagues, which are not a part of the workers' compensation system because the leagues are not the employer - the teams are - seeking redress for what athletes are now claiming to be essentially intentionally inflicted injuries, or in the least a negligent ignorance of the safety for athletes.

This morning WorkCompCentral News reported a new lawsuit filed by eleven National Football League (NFL) players against the league over the use of the drug Toradol, contending that the league ignored the drug's blood-thinning side effects, which enhanced their concussions and other injuries.

"The Toradol label states that 'Toradol inhibits platelet function and is therefore, contraindicated in patients . . . at high risk of bleeding,'" the complaint states. "Toradol is not to be used if the recipient has a closed head injury or bleeding in the brain. 'The bleeding risk of Toradol is an utmost concern in collision sports such as football. Even a small increase in bleeding risk can exacerbate high-risk injuries, such as concussions, spinal cord, spleen, and kidney trauma.'"

Marc S. Albert, one of the plaintiffs' attorneys on the case, told our reporter that the exclusive remedy of workers' compensation should not be an issue in the case, because the players have opted to sue the NFL, as opposed to their individual teams. Many players are opting to file civil suits, because teams' workers' compensation carriers are denying claims for concussion-related injuries, Albert said.

"This is an epidemic, it happened in every locker room, it is something the NFL certainly knew about," Albert said of the Toradol use. "It is league practice, so to speak, by every team doctor in every locker room. It is being given in wholesale format, so to speak. It is why the league is the defendant in this case."

The complaint that Albert and his fellow attorneys filed mentions "cattle calls," where groups of players were called to receive Toradol injections shortly before game time, regardless of the type of injuries they had.

The other brain injury suits against the NFL also name as defendants helmet manufacturers and others, and allege negligence about infliction of chronic traumatic encephalopathy (CTE). CTE is a progressive and degenerative disease seen in people who have suffered multiple concussions or other forms of head trauma.

Just yesterday WorkCompCentral reported on the case of National Hockey League star, Derek Boogaard, who died of a drug overdose. According to the story, Boogaard CTE and his doctors said that even if Boogaard had survived his drug overdose he would have probably suffered from dementia-like symptoms.

To complicate matters relative to risk (for both the athlete and the employer/team), there is a trend to limit forums to seek benefits. Florida earlier this year passed a law restricting professional athletes from seeking benefits in states other than where their team is based, the 12th state in the nation to recognize "extraterritorial reciprocity" regarding workers' compensation claims. Michigan yesterday moved a bill through the state senate purporting to do the same thing.

Perhaps what this recent acrimony between athletes and their employers is telling us is that workers' compensation is inadequate to deal with the modern issues of professional sports. I wonder if this is just a small representation of a larger social issue - that work comp is archaic relative to the modern economy and that the risks have changed dramatically.

We know that Texas style non-subscription fans are seeking to change the status quo in neighboring Oklahoma to provide for voluntary protection systems. Is this the new trend to bring health and indemnity programs in line with the new economy ("new" relative to the age of the workers' compensation scheme)? I think it is.

I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10.

Tuesday, December 6, 2011

The Value in Work Comp: Non-discriminating Medical Care

In an editorial in the Los Angeles Times yesterday, Spike Dolomite Ward apologized to President Obama. She had contracted cancer but didn't have health insurance. Then she learned that she could not be discriminated against due to a provision in the President's health care reform law known commonly and derisively as "ObamaCare". The editorial had one telling paragraph that I think is an important message to anyone in the workers' compensation industry:

"If you are fortunate enough to still be employed and have insurance through your employers, you may feel insulated from the sufferings of people like me right now. But things can change abruptly. If you still have a good job with insurance, that doesn't mean that you're better than me, more deserving than me or smarter than me. It just means that you are luckier. And access to healthcare shouldn't depend on luck."

Workers' compensation is, in its purest form, a universal health care system - if you qualify (i.e. get hurt or ill at work) then you get medical care. Care is generally meted out according to guidelines (as in ObamaCare) so there is some loss of control over the direction care goes, but you don't have to pay even a deductible - certainly most people would look upon the beneficence of such as system as a great social value. And there is no luck being qualified for system benefits - if you're employed you're covered.

I read that editorial before reading in the news this morning the story of hockey player Derek Boogaard. Derek didn't think about head injuries playing professional hockey - he cared about "enforcing", a hockey term for being the bad-ass on the ice that takes out other players at the direction of the coach.

Boogaard died at age 28 from a drug overdose. I don't know whether Boogaard had a work comp claim at the time of his death, or whether his drug overdose was related to any work comp treatment regimen (as I had been pointing out with other published case law the past couple of posts here). According to media reports, Boogaard had advanced stages of chronic traumatic encephalopathy (CTE) when he died and his doctor reportedly told the family that if Boogaard had survived his OD he would have had advanced dementia-like symptoms.

At age 28...

The connection I'm making is that the general public has no regard, no understanding of the value of workers' compensation until it is too late. To the business owner workers' compensation is a troubling bill that adds to the expense of doing business, to provide money to deadbeats who would rather not work. To the employee that falls into the system it is a maddening labyrinth of regulations, forms, and adversity that gets in the way of recovery. To the politician workers' compensation is a complex entitlement system that plays well to deal making and grand standing.

Each of these people don't appreciate that medical care in workers' compensation is delivered without discrimination, without regard for pre-existing conditions (those may affect indemnity, but not medical care), and at no cost to the recipient - not even a deductible.

Value in workers' compensation is not appreciated by such people, until disaster hits.

Disaster did hit a Texas business when it got stung with a $2.8 million jury verdict for the fatal fall of a worker.

Disaster hit Boogaard and his family with the onset of CTE (and perhaps all of the National League Football players who have brought suit against the league for unsafe equipment).

Disaster almost hit Ms. Ward when she contracted cancer and found that she was uninsured until she realized that she could not be discriminated against for pre-existing conditions in obtaining health insurance.

We're on the inside. People don't see workers' compensation like we do. We work the system daily in our various roles. We know what to expect with the system.

We are lousy at communicating the value of workers' compensation to the general public though.

The next time you're at a cocktail party, or sitting next to someone in an airliner, or wherever, and the conversation inevitably gets to the "so what do you do for a living" course, how do you respond? Like most of us, I bet you start out by saying that you are involved in workers' compensation. Unless you are talking to someone else in the work comp world you'll observe either rolled eyes, a smirk, some look of disdain, or a combination of all three.

Perhaps the response should be something along the lines of, "I help ensure the delivery of value in the biggest, most comprehensive medical care delivery system in the world," and that you are proud that the delivery of medical care is without regard to prior condition, or discrimination.

And that the value you provide keeps Americans working in America at American jobs.

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 

Sunday, December 4, 2011

Pennsylvania Case of Back Pain and Another Tragic Outcome

Another tragic case of drug overdose in a workers' compensation setting was reported this morning in WorkCompCentral news.

In finding the overdose a compensable consequence, the court in the Pennsylvania case of J.D. Landscaping v. WCAB (Heffernan), No. 1866 CD 2010, 12/2/11 turned down the employer's argument, stating:

"In arguing that the Board and the WCJ nevertheless erred in granting Claimant’s fatal claim petition because of the June 4, 2007, UR determination, Employer contends, in essence, that there can be no causal relationship between a decedent’s death and a work-related injury where a decedent dies as a result of medical treatment deemed by a UR determination to be neither reasonable nor necessary. Employer misconstrues the import of a UR determination."

The court explained that UR determines whether treatment is "reasonable and necessary," which differs from the concept of "causation." Heffernan's family only had the burden to show that the fentanyl overdose was causally related to his work injury.

Here are the facts as related by the court's opinion:

James Heffernan herniated a disc in his back while working for J.D. Landscaping in July 2002. In March 2006, the employer filed a utilization review (UR) request, which rejected the medications prescribed by Heffernan's treating physician, Dr. George Rodriguez.

On June 4, 2007, Rodriguez had prescribed Sonata, fentanyl, oxycodone, Fentora, Docusate, and Lyrica. Utilization review again concluded that the prescription was not reasonable or necessary.

The pharmacy refuses to fill the prescription because of the UR denial.

It doesn't stop there - Hefferman sees another Rodriguez (it is unknown whether the two doctors are related). This time Dr. Daisy Rodriguez examined Heffernan, and prescribed the following:
  • Actiq, 800 mcg (fentanyl lozenge), once a day;
  • Duragesic (fentanyl patch), 50 mcg and 100 mcg in combination, once every other day;
  • Fentora (fentanyl tablet) 800 mcg, three times a day;
  • Ambien, 10 mg, as needed for sleep;
  • Colace, 100 mg, two times a day;
  • Lyrica, two times a day; and
  • Oxy IR (Oxycodone tablet), 5 mg, every four hours as needed.
Dr. Daisy Rodriguez's prescriptions were identical to Dr. George Rodriguez's prescriptions that were denied only two days earlier.

Somehow this prescription escapes UR and/or the pharmacy ignores UR and/or the drugs were dispensed by the physician. Regardless Heffernan died on June 18, 2007, as a result of a fentanyl overdose. Emergency responders noted that he had several fentanyl patches in his hand.

Although Daisy had prescribed only one fentanyl patch every other day, eight of the patches were missing.

I don't know what the malpractice law is in Pennsylvania, but the Rodriguez duo should be held accountable either through a direct claim by Hefferman's widow, or subrogation by the employer/carrier, or both.

Regardless - what is wrong with this picture? It's the same story we see occurring every day in this country:
  1. Claim of back pain - a diagnosis of herniated disc is, based on current scientific literature, inconsequential and should not be the basis of either opioid dispensation nor invasive treatment techniques;
  2. Physicians ignoring their Hypocratic Oath;
  3. An over-trusting person in pain hypnotized by our culture of surgery and drugs as the remedy for everything that ills us;
  4. A system that chalks this death up as just another number, another statistic, another casualty in the world of workers' compensation without learning anything about how, what, why needless disability and death is inflicted through our distorted sense of social entitlement.
The "war on drugs" should start in our own back yard.workers compensation, work comp, injured worker 

Friday, December 2, 2011

TN Case Is a Clear Example of How Work Comp Kills People

This morning's top headline in WorkCompCentral news should be alarming to anyone who has been following the trend of prescription medication abuse in workers' compensation.

In Kilburn v. Granite State Insurance Co., the Special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee decided that Judy Kilburn should be allowed to amend her husband's workers' compensation claim to add a claim for death benefits.

Charles Kilburn, suffered neck injuries in a work-related auto accident in November 2008, and subsequently underwent a cervical fusion surgery. His treating neurosurgeon prescribed oxycodone.

Dr. William Leone, a pain-management specialist, examined Charles on Jan. 4, 2010, and noted that he was taking 15 milligrams of oxycodone four times a day. Leone recommended that the dosage not be increased. Charles overdosed on Jan. 28, 2010. The medical examiner's report showed that his blood contained 409 nanograms per milliliter of oxycodone. (Emphasis added.)

Judy Kilburn, Charles' widow, filed a motion to amend her husband's pending workers' compensation claim to add a claim for death benefits, but the Chancery Court of Williamson County denied the motion. The court stated that “Kilburn's negligent overdose of prescription pain medications breaks the chain of causation because it is an independent, intervening cause.”

The Special Workers' Compensation Appeals Panel reversed, stating that there was insufficient evidence to rule in favor of the defendant. The court likened the Kilburns' case to Shelton v. Central Mutual Insurance Co., a 2009 decision which also featured a claimant's overdose that was allegedly the “natural result of the original work injury.”

The legal analysts see this case as setting a new standard for burden of proof in Tennessee - that part of the story I have omitted.

The value of this case is that it is a stark, and frankly disgusting, example of a) how workers' compensation disables people unnecessarily, and b) how workers' compensation kills people.

Robert J. Barth, PhD, in an article published in the March/April 2011 edition of the AMA Guides Newsletter, states:

"[S]cientific findings indicate that prescription narcotics are the leading cause of death among workers’ compensation claimants who have undergone back fusions. This scientific discovery warrants emphasis. It indicates that prescription narcotics (in conjunction with workers’ compensation and back fusions) are actually turning a non–life-threatening issue (back pain) into the number one cause of death. Equally noteworthy are the reports that poisoning deaths, primarily involving prescription medications (prominently including narcotics, which exceed the deaths caused by heroin and cocaine combined), have actually overtaken motor vehicle accidents as the top cause of death among middle-aged Americans." (Citations omitted.)

Nortin M. Hadler, MD, in his most recent book, "Stabbed in the Back", provides substantial evidence that neck and back pain, without corroborating physical findings beyond the routine disk bulge, is over-treated and supports an entire industry that creates more disability (and death) than if such cases were left to their own accord. Hadler cites an alarming increase in back treatment cases in the last decade, and a correspondingly alarming increase in the amount of disability during that same period, as evidence that we are a system out of control.

The Kilburn case highlights the conclusions of Barth and Hadler, and should be offensive to anyone in our industry. Without any doubt in my mind, Kilburn's overdose death IS the responsibility of the the workers' compensation system, IS the responsibility of the employer/carrier, and his widow MUST be compensated for his death.

Legal causation aside (and in most jurisdictions this would not even be contested), this is a social morality issue. Perhaps the auto accident did cause some neck pain - how did this neck pain get so far as to require surgery? Is there no responsibility on the system - on the employer, on the carrier, on the physicians - to counsel and educate Kilburn that surgery in the vast majority of cases DOES NOT WORK? That unless there is a broken bone, some displacement of anatomic features, surgery has a miserable success rate? That neck and back pain are a part of life and that there are alternatives to invasive procedures and hard-core narcotics?

Would Kilburn have chosen this line of treatment had he actually known that more people die from over-medication in workers' compensation cases than motor vehicle accidents? Would he have consented to surgery if he had know the terrible success rate of invasive spine procedures?

We don't know what Kilburn's co-morbidities were. We don't know what psycho-social factors engaged Kilburn into the work comp system, or how psycho-social factors played upon his perception of pain, or the motivations for the course his case took.

What I firmly believe is that if Kilburn had not made a workers' compensation claim, he likely would be alive today (absent some other intervening traumatic event).

How many other Kilburn cases are there right now, where a victim of workers' compensation is on the edge of death?

This case is a poster child for radical change in how we deal with pain and disability in our culture. We're killing our own work force. Isn't this what workers' compensation was devised to correct 100 years ago? We have strayed far from the concept's original intent.workers compensation, work comp, injured worker 

Wednesday, November 30, 2011

OK Non-Subscription - Start of A Trend?

Oklahoma may be the start of a new trend in work injury protection with a proposed law to permit employers to provide an option to mandatory workers' compensation through alternative ERISA plans.

The proposed “Oklahoma Injury Benefit Option” would give employers the option of establishing and managing a benefit plan that complies with the federal Employee Retirement Income Security Act (ERISA) instead of participating in the state system. Employers would be allowed to opt out of the state workers' compensation system only if their benefit plans provide benefits that meet or exceed those employees would receive under workers’ compensation.

Texas is the only state in the nation that has a voluntary work comp system. Those who don't participate in the state's work comp system are called "non-subscribers". Those who have no alternative risk mitigation system in place whatsoever for work injuries are known to "go bare".

Neighboring Oklahoma's proposed plan would not have any "bare" employers, but would allow "non-subscribers."

Becky Robinson, who chairs the Oklahoma Injury Benefit Coalition (OIBC), told WorkCompCentral Wednesday that the group also is selecting sponsors for the legislation. The bill should be ready by Dec. 9, and the sponsors should be in place by then, Robinson said.

According to Robinson many companies in the coalition also operate in Texas, and “have witnessed firsthand” how the option can provide better health outcomes for workers and reduced costs to businesses. The option “is a game-changer for Oklahoma,” she said.

Indeed, I believe that if the Oklahoma experiment is successful that other states will move along the same lines. Constructed properly, non-subscription ERISA plans in Texas have saved those employers millions of dollars over the course of the past 10 years and have much better outcomes for injured workers - namely because these ERISA systems remove the non-functional, procedure-based, trappings of mandatory work comp systems.

In addition, I believe that a competing system will actually improve workers' compensation system performance as vendors (insurance companies, brokers, medical providers, AND the state, etc.) will no longer have a captive audience - a true competitive marketplace can be established to provide employers and employees with a modern benefit system not subject to the lobbying of special interest groups bent on profiting off a compulsory program.

A key to success in Oklahoma will be more complete data gathering and analysis. Texas mandates some reporting for its non-subscribers, but it is insufficient to provide an apples to apples comparison via the normal state data analysis channels.

It will be interesting to watch how OIBC's efforts meet the political machine in Oklahoma and to see what objections are raised as the coalition's plans move through the legislature. If the proposal does make it to the governor's desk though I anticipate many more states taking a long, serious look at non-subscription ERISA models as a viable option over the next few years.workers compensation, work comp, injured worker 

Florida Looks to Curtail Presumptions to Save Money

One of the problems with establishing presumptions of causation in a workers' compensation scheme occurs when lawmakers want to revise or constrict the application of a presumption to curtail abuses.

Once a presumption has been established it is very difficult politically to take it away even though in a practical sense, assuming the medical evidence is available, provision of benefits for an industrial disease should not be affected.

Such is the case in Florida as lawmakers in that state will be asked to limit a presumption contained in the state's 22-year-old "heart/lung" law that tuberculosis, heart disease and hypertension contracted by a first responder is an illness that arose in the course and scope of employment.

R.J. Castellanos, director of the state Division of Risk Management, told the Senate Budget Committee on Nov. 16 that the presumption, which is granted to all police, firefighters, and corrections officers who pass a pre-employment physical, has cost the state employees' workers' compensation system $30 million since 2003.

Castellanos is one of eight members on the Task Force on Public Employee Disability Presumptions, which was created as part of Senate Bill 1128, a package of pension reforms signed into law by Gov. Rick Scott on June 23.

The pension reform bill called for the task force to look at statutory disability presumptions – in both the retirement and workers' compensation systems across the nation – and report back with recommendations for legislative action by Jan. 1, 2012.

Jim Tolley, a task force member and governmental affairs director for Florida Professional Firefighters, told WorkCompCentral the debate over the Heart/Lung law already has begun with the filing of bills in the House and the Senate filed by State Rep. Frederick Costello, R-Ormond Beach, and Sen. Alan Hays, R-Umatilla.

The bills would allow employers to use the medical history and personal habits of Florida's first responders to rebut the occupational presumption by providing evidence of "other medical conditions or behaviors that are associated with the disease or condition subject to the presumption"such as cholesterol, body mass, or a history of tobacco and alcohol use which could have contributed to a claimant's condition.

In addition, the bills (House Bill 365 and Senate Bill 910) would limit the presumption to first responders who have worked for their current employer for at least five years and are under the age of 37.

Employers would have to rebut the presumption in those cases by a "preponderance" of the evidence for the limited group of responders still eligible for the presumption. Current law requires employers to present "competent" evidence to rebut the presumption, which is now provided to all first responders regardless of years of service.

Predictably, the Florida Police Benevolent Association and Florida Workers' Advocates (FWA), a claimants' lawyers' group, oppose the measures. But the legislation has picked up support from the Florida League of Cities, which operates a workers' compensation pool for member cities.

Tolley told WorkCompCentral that the task force also may call for specifying certain cancers to be presumed job-related for firefighters, police and corrections officers and that the panel also is debating whether to require wellness plans for police and fire departments.

These sort of changes to presumption laws could be expected during these difficult economic times when municipalities, state agencies, and other governmental bodies are searching for every possible savings.

If you are a regular reader of this blog, you know that I'm not a big fan of presumptions. The argument in favor of causation presumptions is that it saves claimants seeking benefits for terrible diseases and illnesses time, money and aggravation to get that which should be an entitlement.

In addition, proponents of such presumptions argue that in order to recruit new members to first responder occupations such benefits are necessary.

I don't think these arguments stand the logic test. If a disease or illness truly is occupational then the medical evidence will bear that out. Sure there will be some that are questionable and that is the purpose of the dispute resolution system - to ferret those out. In fact, a presumption law such as the one under attack in Florida is not an absolute presumption. It is a rebuttable presumption, so litigation continues and is probably more prolonged than normal as the parties seek to get substantial evidence to support their positions.

I also don't think that your typical recruit is even thinking about workers' compensation presumptions when they sign up for duty. Young people don't have such things on their radar screens when they are seeking a job.

Police and firefighters have powerful lobbies, and I'm sure this will be a significant political fight. It will be interesting to observe what happens in Florida. This may be the start of a new trend as other states start looking at what they can, and can not, afford while the nation tries to dig its way out of this prolonged recession.workers compensation, work comp, injured worker 

Tuesday, November 29, 2011

A CT State Fund? Rate Hikes Insufficient for Change

I had lunch the other day with a friend of mine who owns a regional insurance brokerage with a large workers' compensation book of business. When we talked industry he said that his firm is experiencing increased volume and pricing, and that the "market is hardening".

"Market hardening" is insurance-speak for prices are increasing.

When prices increase so too does the word "reform" increase in conversations about work comp. This happens every seven to eight years or so. Most of the reform movement across the nation occurred in the 2003-2005 time frame, so we're right about on target for the next wave of "reform" to hit the states.

This morning's WorkCompCentral story about Connecticut emphasized this point.

The National Council on Compensation Insurance (NCCI) has filed to increase loss costs in the voluntary market by 4.5% and to boost rates in Connecticut's assigned-risk market by 2.9%, effective Jan. 1. If approved the increases would come on the heels of a 5.8% increase approved last year by acting Insurance Commissioner Barbara Spear.

The filing has prompted reformists to speak up, citing the competitive disadvantage that Connecticut has relative to its neighboring states, and the rest of the nation, because of the cost of comp.

Observers tend to rely on the Oregon Department of Consumer & Business Services biennial report on ranking of state's cost of workers' compensation to measure how one state compares to other states. It's like comparing the cost of a Toyota to a Lexus, because each state is different and the Oregon report does not account for these differences, but it's the only compendium of its kind so people use it to support arguments in favor of reform.

Connecticut was ranked as the sixth most expensive workers' compensation market in the country in the 2010 Oregon biennial report, compared to a ranking of 20th most expensive state in the 2008 Oregon report.

The reform discussions in Connecticut seem focused on two issues.

Labor wants the Legislature to create a state-chartered insurance carrier, while business interests are hoping for a statutory cap on the price of repackaged drugs.

Capping repackaged drugs likely won't get much opposition from the major lobbying groups other than the medical industry - and if other states are a model, the opposition will be more about what the caps are, rather than the fact of imposing a cap.

But creating a state fund is a different matter in Connecticut, the insurance capital east of the Rockies with many general line, national carriers based in Hartford.

Connecticut likes the insurance industry.

Legislation for a state fund in Connecticut had started making its way through the state's legislative process but died en route in March 2010 never reaching the floors of the state House or Senate for a vote. Labor is already lobbying for a refiling of the bill, which would start-up a state fund with $5 million in capital drawn from the Connecticut Labor Department and a 3% assessment on premiums.

Insurance industry organizations in the state oppose a state fund, declaring that it would drive out competitive private carriers afraid of price competition.

Connecticut has an "assigned risk pool" to provide for the coverage of risky employers that can't get coverage from traditional sources. The assigned risk pool is the coverage of last resort.

State funds primary mission is to provide coverage of last resort. State funds are traditionally non-profit, and though chartered through legislative exception, generally are free of governmental intervention, operating like any other insurance company except that "profits" are returned to policy holders in the form of dividends, if any.

The argument in Connecticut against creating a state fund is that government doesn't know what its doing, and lobbyists point to that state's Second Injury fund and pension systems, both of which ran into financial trouble with unfunded liabilities threatening their existence. This argument fails to distinguish between a pure governmental program and an independently operating state created insurance entity.

State funds provide stability to a compulsory insurance market. In addition, no state to my knowledge that has a state fund has seen an exodus of private coverage. Private carriers tend to react more to the nature and quantity of risk in a state's market rather than to competition. Indeed, a state fund may "bleed off" more of the risk leaving a richer, more appealing traditional market for carriers without having to account for potential risk in the assigned risk pool.

This should lower prices for everyone and ultimately make the line more profitable for private carriers.

But Connecticut cultivates the insurance industry. Does it like the insurance industry more than the general employer population? That will depend, I presume, on the fervor of reform and whether rate hikes are sufficient to fuel reform.

In my estimation though, the presently proposed rate hikes aren't sufficiently dramatic to give lift to the voice of reform in Connecticut.workers compensation, work comp, injured worker