Friday, June 1, 2012

First Rule: Fly The Airplane

"We shouldn’t be introducing Regs without solid data and an intelligent description of the problem."

That summarizes an email I received yesterday (while sitting in jury duty - no I didn't get empaneled) in response to my editorial post regarding the new California lien regulations.

"I just wish California would do away with this entire lien process and handle these disputes like other states do. If the treatment is not authorized, you don't get paid. End of story."

That was a different response from another individual on the same post, to which someone else replied that this was just "California dreaming".

Another email from yet another reader related an anecdote of how a lien for treatment after a case was settled by Compromise & Release became settled due to cost considerations rather than be litigated, concluding with the rhetorical observation:

"So, what is the take-away? Who was right and who was wrong? Who could prove their point and at what cost? As I told you before, my job is to minimize costs – based on the perceived risk. I have no interest in ‘Reforming the System.’ These are all subjective judgments. We cannot resolve the problems of the System when the Rules of the System support this kind of interaction. A full 40% of the total costs of the system come from just these kinds of problems."

California's issue with lien claims in adjudicated cases is top of the news right now and causing quite a bit of controversy, and for lien claimants consternation, as system administrators try to corral a process that they say is consuming too much time and too many resources.

We have heard it repeatedly - that there are too many liens in the system.

But what does that mean?

Are there too many being filed? If so, what's the big deal? A filing does not impact a case in the adjudication process unless it is prosecuted, and California law does not allow that to happen until the case in chief with the injured worker has been resolved.

Are there too many liens that come out of dormancy once a case in chief has been resolved? If so, again, what's the big deal? It seems to me that adjudication of post-settlement liens should be a relatively minor process by herding all lien issues in a case to a single point of adjudication (for example, all Los Angeles area liens are now assigned hearings at the Oxnard district office) where they can be dealt with by independent "lien trials".

Are there too many liens that are being pursued for purely settlement reasons with no substance behind them (as in the dreaded "zombie liens")? How can they be identified without ensnaring valid claims in the net?

We've seen lien filing fees interposed which only created a big collections problem for the Division of Workers' Compensation resulting in discontinuation of the process.

We're seeing new dismissal rules being introduced which some have said will exacerbate adjudication processes with too many claimants seeking hearings in order to avoid summary dismissal.

When flying an airplane and something goes wrong, pilots are drummed with the repeated lesson: "fly the airplane."

What this means is that, regardless of what is going on that is either creating a distraction or emergency situation, dealing with it in the air is a bad thing. "Fly the airplane" means that first priority is to make sure that one does not hit something hard or do some maneuver that will break things. If one can not "fly the airplane" then the chances of a survivable outcome are greatly reduced.

It doesn't mean that one goes about normal business in the face of adversity. It is rather a prioritizing statement - first thing above all else is to make sure that the emergency situation is not exacerbated by doing something stupid.

The least stupid thing to do is to ensure that one has control - i.e. "fly the airplane." If one can fly the airplane then the risk of introducing erroneous control inputs is greatly reduced. Erroneous control inputs exacerbates a bad situation. One has to maintain control because failure to do so results in death.

After one has brought stability to flight, then the next order of business is to see if the problem or emergency can be dealt with, or in the least minimized until safely on the ground.

What I see going on with this whole lien debate is that no one has control. We are not flying the airplane. We don't have stability of flight. And we're not on the ground.

We are introducing control inputs that are increasing loss of control rather than taking the time to understand exactly what has caused system failure in the first place.

We are not on the ground where it is safe to deal with the emergency. We're still in the air being distracted with operation of the vehicle while simultaneously attempting to introduce solutions before getting someplace safe where the problem can be diagnosed correctly.

So what is the "lien problem"? Is it that there ARE liens in the first place? Are there too many of them being filed? Are there too many not being resolved before hearing? Are there too many being resurrected from the dead? Are they not being dismissed when resolved? Are they reflective of disputes with payment, or authorization, or what...???

I suggest that we "fly the airplane" first and then define the problem. In order to define the problem we need to read all the gauges and instruments, interpret the data and information, and understand what is causing system failure.

In my opinion we haven't done that. We introduce solutions to problems that have not been well defined because we don't have the information and data necessary to do so. As a consequence we continue to introduce erroneous control inputs.

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