Wednesday, March 14, 2012

New York Demonstrates the Difficulty in Cultural Change

I talk quite often about the culture of workers' compensation in this column, and how difficult it is to change even when everyone involved in the system acknowledges the damage and inefficiency of behavior that is not beneficial to anyone other than a particular interest subset.

New York is in the middle of a culture fight, with interest groups that have been bloodied and sent home in other states 3,200 miles away clamoring to stay in the fight in order to protect their turf, even if that turf can not empirically be supported in any other manner than to say, "it's always been this way."

The New York Workers' Compensation Alliance released results from a Freedom of Information Law request filed by the New York Committee for Occupational Safety and Health (NYCOSH) showing that there were 202,643 requests for variances from the state's medical treatment guidelines filed by treating physicians, chiropractors, and physical therapists from Dec. 1, 2010 -- when the guides were implemented -- through Feb. 4, 2012.

Robert Grey, a claimants' attorney and chairman of the Alliance, told WorkCompCentral Tuesday the bulk of variances now in dispute involve treatment by chiropractors and physical therapists.

The guidelines limit chiropractic care and physical therapy to four weeks following an injury unless functional improvement can be demonstrated. If medical providers can verify improvement in a worker's function, the guides then allow an additional four weeks of treatment – up to a maximum of eight weeks.

The vast majority of requests are for injuries that are "grandfathered" into the guidelines according to Grey.

NYCOSH Executive Director Joel Shufro said his group did not ask the board to delineate between variance requests on injuries pre-dating implementation of the guides.

"But I can tell you the bulk of the injuries in these cases range anywhere from several years ago to a decade ago, "Grey said. "These are instances in which the board told workers years ago they were entitled to symptomatic treatment. The board is now saying it has changed its mind."

The Alliance said the board is receiving an average of 20,000 variance requests a month. The board has held 19,479 hearings since the guides took effect and has scheduled another 1,347 hearings.

The board denied 8,562 variances following hearings and granted another 10,857 variances at hearings, the Alliance said.

The board rejected another 50,000 variance requests without receiving a formal response from an insurer or holding a hearing. The alliance said that leaves about 130,000 variance requests that await final action.

NYCOSH, which is lobbying to pass Senate 3741, filed by Sen. George Maziarz, R-Newfane, would prohibit State Workers' Compensation Board (SWCB) from applying the guides to injuries or illnesses that occurred before the guides were implemented.

Proponents of S 3741 use the same, tired old argument that arises anytime there is a culture shock - that it is costing more presently to deal with the change than what is being saved:

"This is causing tremendous problems for workers, and it results in a flood of paperwork and litigation that creates enormous expense for employers, health care providers, injured workers and the board," Grey said.

"What the board is failing to recognize is that people are not parts of a machine, where all you care about is function. These are human beings, and this treatment is required to keep them working," he said.

This is a short sighted argument, and only perpetuates the entitlement mentality that is at the root of systemic dysfunction within workers' compensation systems.

California saw the same reaction from chiropractors and physical therapists in 2004 when reform laws limited such treatment protocol to a specific number of visits.

After a couple of years of considerable litigation, regulatory and legislative fighting, that one little aspect of culture changed. Fights have erupted in other aspects of the system, but empirically supported evidence of the value of chiropractic and physical therapy treatments, upon which the California limitations were based, prevailed. The California judicial body upheld the limitations strictly.

Sure, the "whack-a-mole" phenomenon occurred, and costs bubbled up in other medical sectors - and those sectors are now the subject of litigation, regulatory and legislative battles.

But the point is that a strong judicial body, one that upholds the law, is a key component to cultural change.

It is no surprise that SWCB is now swamped with variance requests. It is no surprise that SWCB is rejecting variance requests en masse. And it is no surprise that special interests are fighting hard to hold on to their special income sources until alternative income sources can be identified.

In the long run, this too will pass. The culture will change. Therapy solely for the purpose of symptomatic maintenance will disappear, and people's entitlement attitudes will change.

Life ain't perfect. People experience pain. Everyone experiences pain. Pain is just a part of living. If you are not feeling some pain at some point during the day you are likely horizontal and inert.

Most humans just deal with it. A small subset of our species is encouraged to perpetuate victim mentality by groups that have a vested interest in pain.

This would not even be an argument if workers' compensation were not an entitlement with no investment by the worker other than some time. But since workers' compensation requires no worker investment the alternative is to place limitations on the entitlement. In medical treatment those limitations are implemented by guidelines which, for the most part, are based on empirically derived evidence.

New York should stay the course and defeat S 3741. The state will be better off in the long run.


  1. As an Applicant attorney in California, I disagree vehemently with the views expressed here. 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.

  2. Thanks for your opinion David.

    Let me ask you this - while pain should not be a part of life, reality is that it is!

    You say that "the function of the medical profession is to cure or relieve it, costs be damned." Are YOU willing to pay for that?