Friday, March 16, 2012

The Fiction of Disability and the Talmage Triage; A Case Study

I gave a presentation some time ago about the legal fiction of disability.

The point of my presentation was that disability in the legal sense is simply a designation for attaching value, and that it is not synonymous with inability to work.

Most of the folks in the audience got it - they understood that just because someone is 100% disabled from a workers' compensation point of view that there is still gainful employment that could be performed.

There was one lady in the audience who challenged me constantly on that statement. Her opinion was that if someone is 100% disabled then they are essentially of vegetative state incapable of doing anything of value and can not work - period.

The concept that disability is only for the purpose of determining a number - because that's how we deal with injury and displeasure in America, by handing out money - did not settle well with her. She was a claims adjuster and from her standpoint the payment of disability indemnity precluded any other form of income.

WorkCompCentral news reported a case this morning where the notion that disability is just a fiction is painfully (sorry for the pun) made clear. What was also clear from the case was that despite one's workers' compensation adroitness, the system will push back to return to a scale of reasonableness if the rules are just followed.

In Gonia v. Robin, Carmack & Gonia et al., ADJ1925946, 02/02/2012, Gonia was injured on Jan. 4, 1996, while working as an "attorney/driver" for the firm, which represents employers.

I like that the job was listed as "attorney/driver". Defense attorneys, particularly those who are popular with their clientele, are professional drivers. When I was doing defense work it was no problem racking up 35,000-40,000 miles in one year driving from San Luis Obispo out to Riverside/San Bernardino and down to Anaheim for cases. Driving all those miles wears on the body, regardless if you are in a high end sedan. It hurts...

A workers' compensation judge awarded her 100% permanently disability for injuries to her low back, cervical spine, left hip, left lower extremity, left upper extremity and psyche, although Gonia was able to return to work full-time as an attorney.

I might note that if this were a post 2004 injury and under the AMA Guides such a rating likely would not be possible. Which is the point that I was making in my presentation - that disability is a legal fiction.

Anyhow, Gonia's doctor, Todd H. Lanman, noted in a December 2004 report that Gonia had a housekeeper "to change beds, vacuum, sweep, and mop floors," and that this was "reasonable on an industrial basis, as such activities would increase her pain level."

Let's examine this statement: activities of daily living, i.e. doing housework, "would increase her pain level", and as a consequence was reimbursable through workers' compensation insurance. I know what the law is/was, that basically if substantial evidence indicated that there is medical necessity then the cost is born by insurance.

The irony is that these activities, "change beds, vacuum, sweep, and mop floors" likely don't involve any particular physical strain that may be different from something more pleasurable, such as gardening, playing golf, earning a good living as an attorney, etc. One of my earlier columns discussed the Talmage Triage of Disability (I made that up) - the third component of that triage is Tolerance, the subjective component of pain. Changing beds, vacuuming, etc. clearly are not pleasurable activities, thus the lower tolerance for pain. Would she also need assistance with other physical activities that were more pleasurable despite pain?

Back to the case.

In March 2008, Gonia filed a petition for reimbursement for medical expenses, asking State Fund to reimburse her for housekeeping services dating back to 1996. The request asked for $40 per week for the early years after the injury, but noted that in September 2000 she had moved into a house in Studio City that was 1,000 square feet larger than her previous residence and now needed $80 per week.

The total reimbursement request was for $88,903.33. That's a tidy sum, and would cause a claims adjuster to take a second look at that request...

Gonia's doctor addressed housekeeping services in a January 2009 report, advising that Gonia "will need to have housekeeping two times a week for the next 12 weeks" following her cervical fusion surgery.

State Fund, however, conducted a utilization review. The reviewing doctor, orthopedist Emmit R. Berg, concluded housekeeping services were not a "medical necessity." State Fund denied Gonia's request.

There was no evidence Gonia ever objected to this decision.

The Workers' Compensation Judge awarded reimbursement back to December 2004 and ongoing.

On reconsideration the Workers' Compensation Appeals Board (WCAB), in a decision written by Commissioner Alfonso Moresi, reversed.

Moresi reasoned that the request for housekeeping services described in the January 2009 doctor's report should have been denied because Gonia had not challenged the utilization-review determination that such services were unnecessary. That's a pretty simple, straight forward application of the law and difficult to disagree with.

The WCAB ruled that the December 2004 report's suggestion that housekeeping services were appropriate was not substantial evidence.

"There is no statement by the physician that the additional services are a vital part of applicant's medical treatment or that her medical condition would be placed in jeopardy if the services were not provided," Moresi noted. "To the contrary, other evidence indicates that the applicant's desire for increased housekeeping services flowed in substantial part from the fact that she decided to move to a larger house."

Moresi also pointed out that the report engaged in "no discussion of any limitations on applicant's ability to perform housekeeping tasks," and concluded that due to these deficiencies, could not be substantial evidence to support the judge's award of benefits.

Commissioner Ronnie Caplane joined Moresi in his decision, but Commissioner Neil Sullivan dissented, stating, "It was only necessary that applicant show that the requested housekeeping services (were) medically necessary and reasonable." I disagree with Sullivan - the showing must still be by substantial evidence and I think Moresi got it right.

In a comment to an earlier post, an applicant attorney who "vehemently" disagreed to my opinion said that, "No one should have to work in pain. Pain should NOT be part of life and the function of the medical profession is to cure or relieve it, costs be damned." He didn't respond when I asked, "Are YOU willing to pay for that?"

We have no problem paying for the pleasures of living. But we want others to pay for the pains of living.

Indeed, opportunism is reconciled only by reasonableness enforced through the Rule of Law. Professional drivers, like defense attorneys, are subject to aches and pain during the work day. Racking up the miles driving from board to board, deposition to deposition, appearance to appearance, in tough traffic, rough roads, causes pain. I know - been there, done that.

Idealistically, pain should not be a part of life. Realistically, it is. It's all about Tolerance. Getting paid well makes pain more tolerable. Daily home chores are not pleasurable and don't produce much satisfaction, so they are not so tolerable.

Attorney work for Gonia is clearly pleasurable enough for her to tolerate pain. And frankly I applaud her for returning to work. This is a great result in my opinion - that despite her great disability this person is able to continue providing value to society.

In my opinion though, the WCAB's decision was rational, logical, and cut through the Talmage Triage of Disability to get to a result that makes sense.

1 comment:

  1. I also applaud Commissioner Caplane for joining Moresi in his decision.