Friday, February 21, 2014


At the Artex Risk Management Conference in Orlando this week I had the opportunity to talk to many folks about workers' compensation on a national scale.

The attendees are all part of some captive insurance program, and most of them have national, if not international, operations. Workers' compensation to them is a very close and personal professional life - every single one of the risk managers I talked to didn't have any bad things to say about work comp (even California work comp), they just want to know how to get benefits to their employees as efficiently as possible within the bounds of the law, balancing of course the company's financial position.

Because they are in captive programs they are able to exert more influence over a claim than most insured employers can. They understand that successful workers' compensation outcomes require ACTIVE participation and they have policies and procedures to engage the supervising line and the working folks at the very earliest stages of a claim.

Active engagement early might entail something as simple as little wallet cards for the business that supervisors and employees all carry outlining the steps in case a work place incident occurs, and is as personal as visiting with the injured employee within the first day of a claim to check on him/her, answer questions, take care of the employee.

These companies have the resources to initiate and operate active claims management programs and achieve great success doing so.

Contrast that to the following tale I received from a consultant to small businesses with workers' compensation issues - these companies don't have the resources to prevent simple claims from going south. Here's his tale of a litigated case that got out of control and spun into tragedy:


We have a 41 year old machinist that has been with the employer since 2000 – 13 years. I assume he is a good employee- the employer says he was. He has two children – 12 and 15 years of age.

While pulling/pushing a pallet jack, he experienced pain in his right calf in March 2011. Within one month, after an MRI, he is subjected to lumbar surgery – even though he is on record as saying he had no lower back pain. The surgery did not help the pain to his lower leg.

In Feb 2013, he was again subjected to lumbar surgery by another doctor, even though he again says he has no back pain and the surgery didn’t help the pain in the legs. He now reports depression which, according to the psychologist that examined him, is due to the effects of the injury (Ed note: understandably).

Today, we have an AME report that states he is P&S with a 20% WPI. He will get approximately $20,000 and some settlement for future medical. The various colors of the pills he is taking would be sufficient to light up a Christmas tree.

Because of his work restrictions and his own statements (can’t drive, shop, or do housework for more than 30 minutes) there will be NO offer for return to work. He admits he couldn’t return to work with the physical requirements of the job.

Basically, this truly injured worker will be thrown on the trash heap of life. At least two doctors made a pretty penny for performing surgery for something that even the injured worker said didn’t hurt. He was hurt in March 2011. It’s now February 2014 – three years later.

Where’s the justice? We have a young man that will likely not be able to earn a living to support his family. We have an employer that will lose a good employee and, to protect themselves, will not be in a position to help.

And we have a large slice of the internet filled with the ghouls of the system, feeding on the broken bodies of the workers, whining about not getting fatter off the system. Shame on me, shame on you, shame on everyone for acting like the entire system was designed to deliver benefits to them instead of taking care of the injured workers and the employers that pay their salaries.


Now, I haven't read the medical reports on this claim and I'm taking the tale at face value. Certainly one could question the motives of the physicians doing lumbar surgery when the complaint is leg pain, but perhaps they felt there was some nerve impingement.

I don't know.

It's easy to vilify one player or another in the work comp game and yes there are some unscrupulous players that will stop at nothing to take advantage of the no fault characteristics of the system.

But also look at the system itself - what are the constrictions on the healers? Perhaps given the alternatives (i.e. non-invasive techniques for which the system DOES NOT pay for) there aren't may choices.

We went over this at the Artex conference; that there are many, many treatment choices that aren't considered because the system won't pay for them, or won't pay for them adequately. For instance, the artificial cap on physical therapy many jurisdictions have implemented. Those caps were instituted because a couple of folks abused the privilege.

We don't have to follow these artificial caps. Alternative treatment can be approved even if not within a fee schedule.

We deal with claims in a bulk fashion and with broad brush strokes. But every claim is different. The personalities are different. Tolerances are different. Co-morbidities are different.

Employers big enough to be part of a captive program have the resources to do things differently and many of them do.

The choices for small employers are much more limited.

It's a shame for the employee example above - for both the worker and the employer.

I don't have a fix either other than to note that we, as an industry, need to do our best to look beyond what the law requires and do the right thing. We can't always "win." There will be cases that just get lost for reasons well beyond our control.

Most of the time, however, we have the ability to make sure that the right thing is accomplished. Go out there and do the right thing....


P.S. - Many thanks to everyone for the condolences on my father's death. His journey opened my eyes to life, disability and, yes, death. I'm grateful for all of the time with my parents and I'm grateful for all of the friends I have in this industry who, well more than folks in any other industry, understand what goes on when taking care of a person unable to take care of themselves. Blessings to all. Thank you.

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