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.

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