Monday, June 30, 2014

It's The Greed

I always learn something new when I go to a conference.

In this instance it was the California Applicant Attorney's Association annual summer conference, held this year in Reno, NV.

Sometimes, amid all the hustle and bustle of a conference it's hard to find the lesson - that's why I try to get outside for a power walk or hike - so Friday before my participation in the ethics panel presentation that afternoon I sped up and down the Truckee River Trail at 4.8 miles per hour, covering 9 miles in just under 2 hours.
Truckee River Trail towards the Grand Sierra Resort
I had some time to reflect on the polarity that defines workers' compensation in California and other states. In the past I have opined that the workers' compensation system is driven by mistrust. It seems that none of the interests that are required to make workers' compensation operable trusts any other interest that has a stake in the system.

For instance, applicant attorney after applicant attorney conveys to me tales of carriers (almost always carriers by the way - self-insured, self-administered employers never seem to draw their ire) instituting what easily could be perceived as unreasonable claims practices that would seem to have no other purpose than to starve out injured workers so that they go away to some other benefit system like Social Security, state disability, or now with the Affordable Care Act some general health plan.

Carrier and their representatives rebut with tales of applicant attorneys unnecessarily inflating claims and engaging in back-handed legal tactics to gain some litigation advantage to increase the value of permanent disability.

Physicians complain about getting their bills unreasonably adjusted downward by claims offices even if they are actually selected by the carrier, and then having to wait 6 months or more to receive payment and even being told to file a lien although originally chosen by the carrier to do the work.

Defense attorneys regale tales to me about shady physician practices that seem designed only to inflate fees or commit fraud.

Employers don't trust either their insurance company OR their injured workers believing that everyone is out to game the system on their dime.

And NO ONE trusts the politicians or regulators to actually understand workers' compensation dynamics or to pass laws or regulations that actually make the system do what it was originally intended to do...

Workers' compensation is big business, with big money, and a compulsory nature that maddens nearly everyone with any sense of democratic value whatsoever because discretion is removed from nearly every process.

In the end, there is more mistrust to throw around in any particular workers' compensation gathering, conference or seminar to make me wonder if there can ever be any salvation.

Why is this? Why does no one trust anyone else?

Reform after reform after reform happens, and still no one is happy with anything going on in workers' compensation. Why do all of these changes simply churn more mistrust and legal activity, and nearly never result in any long term cost containment or benefit delivery efficiency?

It occurred to me, as I walked past a couple of fly fishermen on The Truckee, that the answer is simple, but the solution is impossibly complex: all of the mistrust that is workers' compensation today is the product of greed.

Wikipedia entry on greed states: As a secular psychological concept, greed is, similarly, an inordinate desire to acquire or possess more than one needs. The degree of inordinance is related to the inability to control the reformulation of "wants" once desired "needs" are eliminated. Erich Fromm described greed as "a bottomless pit which exhausts the person in an endless effort to satisfy the need without ever reaching satisfaction." It is typically used to criticize those who seek excessive material wealth, although it may apply to the need to feel more excessively moralsocial, or otherwise better than someone else.

It's human nature to want more, but wanting more in the context of limited resources means that someone feeding in the same chain gets less - and that creates tension, which rises to mistrust once the one getting less perceives that there is an inordinate amount going to the one getting more.

Inordinate is in the case of greed a subjective factor because it is based on perception.

When greed intercedes into any closed system the system itself revolts and soon becomes unmanageable.

It doesn't take a lot of greed - the old theory that just a few ruin it for the majority is firmly established as the working model in workers' compensation.

One only need to refer to the recent stories about the Landmark Medical and Drobot schemes, or the more dated stories about carrier failures in the light of Unicover, or AIG's manipulation of accounting to avoid premium taxes.

And of course there are the daily stories of some fraudulent injured worker claiming disability while working or unscrupulous employer mischaracterizing the payroll; or any other number of just plain greedy behavior exhibited by just a few folks who can't seem to get enough, or unwilling to honestly work for what they want.

Workers' compensation is about dividing up a limited resource - a dollar. The division of that dollar is to accomplish two things: relieve the pressure on the employer presented by the risk of a work place accident and provide assistance to the victims of a work place accident.

Ostensibly involving just a few dozen bad actors in the system, these events drive emotions high (see above - the subjective determination of what is an inordinate amount is perceptive; the relative value is exacerbated by the constriction of a limited resource) and ultimately ensnare the innocent because laws, rules and regulations come out of these misdeeds that makes life difficult for the honest folks trying to do things right.

At the end the entire system suffers.

I don't have an answer. This is just a walk-down-the-river observation.

Perhaps the next time a reformist starts with vigilante rhetoric he or she should take a walk down The Truckee for a bit of reflection, and maybe the rest of us should tag along too. The scenery is splendid.

And it may be that if everyone walked the same river trail there'd be less jealousy and greed, and a greater appreciation of the limited resources available.


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  4. This confirms my observation that WC cost crisis results from two main causes: Over-utilization, and poor causation analysis. In the first, it is widely recognized and why we need MTUS and IMR to begin with. In the second, injury claims are so easily accepted as to make it appear that anyone experiencing symptoms while at work can get into an occ med clinic and get full treatment. Tightening up on either restricts the flow of people into the system or decreases expenditures for those who have been accepted, and limits profits to some. It's much more complex than that of course, and beyond a simple comment. Perhaps everyone could be happy if we allocated an unlimited money supply to healthcare. The question would then become, who is going to pay for that?

  5. Mr. DePaolo, I had written to the California Applicant Attorney's Association hoping that they would include a discussion on the maiming and battery of injured workers at their conference. It was just before the conference so it may not have been discussed due to lack of time to prep for such a discussion.
    Your article speaks of the "greed" in the workers comp system. I have learned this the hard way in a cruel and criminal manner. I hear in some cases that the insurance carrier will not allow any treatment for an injured workers injury. They often delay or deny treatment, medicine, etc. I am one wherein the so called treatment was not delayed or denied but utilized to maim and batter thereby creating the look of a conditions.
    I am an injured worker with an open case file. I was maimed and battered 4 times that I now know of. After I was hurt at work, I was sent to a physical therapist in Irvine who deliberately and vigorously dug his fingers into my back creating a hole or divot between the soft tissue and my spinal column. He was pushing the tissue away from my spine and rubbing his finger against my spinal column thereby destroying a ligament that had been perfectly intact and elastic. When I left that day, I left with pain across the lumbar of my back. After that, my employer fired me and I sought the help of an attorney. The attorney's chose a Doctor (Ortho Surgeon in Santa Ana, CA) from the insurance carrier's "network of medical providers". Initially, the Doctor said that we could do nothing without the insurance carrier's approval, no MRI, no X-ray, no treatment of any kind. My first visit with the Ortho Surgeon was May of 2012. I had an appointment with him, each and every month thereafter. In August 2012, I went for my deposition, then, soon after, also in August 2012, I was told by the Doctor that an MRI would be done on a lien basis. Soon after that, in October 2012, the Doctor said, a lumbar epidural would be done on a lien basis. My first epidural was in a Los Angeles Surgery Center on November 9, 2012. Hence, more maiming began. I just didn’t realize what he was doing was meant to harm me. I was permitted to stay awake at the first epidural. I was told that the local anesthesia was be injected via shots in the middle of my back, not the lumbar. I was given 4-6 small injections in a circular or square pattern in the middle of my back up in the thoracic region. I was then given a bigger shot to the right side of the middle of my back. The anesthesiologist narrated the entire procedure. I had no reason to doubt what she was saying. Soon after that, within approx. 2 weeks, I began having pain to the right side of the middle of my back. I thought that I was suffering from kidney stones or something, inasmuch as I didn’t know what a kidney stone felt like, I went to my everyday MD who said that it was the muscle tightening. At the next meeting with the Doctor, I mentioned this to him, he said nothing and asked no questions. It stopped hurting so I let that go. It wasn’t until after the third epidural that I was informed by my former attorney via the phone that the local anesthesia is supposed to be injected into the same sight as the lumbar epidural. The next two epidurals, my right to remain awake during the procedure was denied me.

  6. Long story short, after three epidurals and then realizing at the 3rd epidural that I was in fact deliberately being maimed, I have been diagnosed with degenerative disk disease which, by the way, the AME had said that there was no sign of DDD based on his studies done in Oct & Nov 2012. I began seeing the AME, I believe in October of 2012. Eventually, I am sure that I will also be diagnosed with a connective tissue disorder as well that will be a direct result of the chemicals that were injected into my spinal column from the neck down to the tailbone and into the tendons and muscles, even my nerves were burned. Prior to the epidural treatments, I had none of these issues. Now, I have instability in my spinal column, my tendons, cartilage etc. - I can feel my muscles and tendons lifting up off my person and more.
    Greed! They have "created the look of conditions" in my body so that they can now litigate my case and/or cover up what physical therapist deliberately did to me.
    I hope that you will investigate and/or shine a light on the maiming and battery of injured workers. It is a prolifically cruel and criminal act. You are correct to say in your article that injured workers are left with filing for SSDI and other social services.
    Prior to getting hurt at work, I could walk 3 and 5 miles depending on where I walked. Now, after having had injections of some sort of chemical that has burned and corroded the ligaments, tendons, muscles and nerves in my body, and more holes/divots on each side of my spine, I have trouble walking any distance. Sitting, standing, laying down, moving, etc. I can feel the vertebrae moving without the benefit of the ligaments, cartilage, tendons and other connecting tissue meant to hold us together or stable.
    Some of the incidences that I will share with you include the following:
    1. The defense attorney in his letter to my former attorney stressing the points of why we should settle (before the 3 epidurals were arranged so that I could be maimed), points out that it "Looks like the treatment is harming her rather than benefiting her"!
    2. My former employer lied to the insurance carrier. They informed the carrier that my injury was not work related. My injury was a direct result of the 65-66 hours that I had to work one week as well as the boxes of escrow files and escrow banking that we in the escrow dept had to pick up ourselves due to lack of storage space and manpower.
    3. After the 3rd epidural wherein I was most prolifically maimed, my former attorney told me to file for permanent disability right away. That was said to me in September 2013 sometime.
    4. I have filed for permanent disability. I have been met with obstacles when I go to Doctors inside or outside of the WC system. One Doctor said to me, "I am not here to help you gather evidence of what they did to you, you need to get an attorney".
    5. Another Doctor told me that I was delusional. That there aren't any chemicals to inject into someone that would harm soft tissue, muscles, etc. I represent what I am telling you, honestly and truthfully, I am evidence that there is and that some of the Doctors in the system will do what they have to do to keep their place in the insurance carrier's network of medical providers.
    6. One of the Doctors described to me what I should and shouldn't be doing INSIDE MY HOME, specifically, my bedroom and my bathroom.

  7. 7. The anesthesia form that I signed at the 3rd epidural in pre-op was a multiple page form, the first page was marked "local anesthesia" but the copy that was handed to me after I had awakened from being brutally forced under anesthesia was marked "monitored anesthesia". Incidentally, I was asked to sign that form once in the lobby and once in the pre-op room. I assure you that I never signed anything that indicated that I agreed to anything but a local pain blocker anesthesia.
    8. Surgery reports indicate that I complained of things that I never said.
    9. My former attorney said to me at a meeting I had with her in June 2013, "The insurance carrier wants nothing to do with the left side of your back." (This was in reference to the injury to my person made by the physical therapist that I was first sent to). When I had left that meeting, I thought about what she said, and began calling to find out who it was she spoke at the carrier’s office or was it the defense representing the carrier who made that statement to her. Eventually, she called me to say that no one actually said that to her. She said, “That was just me.” I did not believe her at all. After that, I did not want her “working” my file so I contacted the “Partner” in the firm. From then on, except for the day at court in September 2013, I spoke to the Partner in the firm or the paralegal / assistants.
    10. The Ortho Doctor who maimed me told me when I first began seeing him (1st visit was in May 2012 and then monthly thereafter) that he couldn't do an MRI or any treatment without the insurance carrier's approval. Yet, after my deposition in August of 2012, he then said that the MRI could be done on a lien and then in October, I was told that a lumbar epidural would be done on a lien, both without the insurance carrier's approval.
    11. The Ortho Surgeon that harmed me, had me sign a form that protects him against particular causes of action by requiring that I use a “Board Certified Orthopedic Surgeon” as an expert witness. Included in those causes of action, “Battery”.
    There is more but I will refrain.
    I understand now, the focus will be to destroy my credibility. Through injured workers associations and some professionals in the workers comp system, I was warned that this has been or is the next step.
    This must stop! The tool of worker comp is not helping to heal injured workers and is not getting them back to work. In fact, it is doing the opposite. In the words of the defense attorney in my case, "the treatment is harming rather than helping".
    Please support new laws to mandate that the injured worker has the right to know what is going on in the industry. My attorney did not warn me of the danger and they should have OR I should have been required to sign something that indicated the following and more:
    ** Some injured workers have reported being maimed and battered by the medical staff, Doctors, etc. in the insurance carrier's "network of medical providers" and at surgery centers. The injured worker is advised to be alert and aware of the treatment that they are receiving and if for any reason, they suspect they are being harmed, they should contact the DWC and their attorney immediately.
    ** The injured worker is permitted to have a patient advocate with them at ALL times before, during and after any medical visits with medical staff, with the QME OR AME, IME, during procedures, etc.
    ** The injured worker has the right to have their visits with any medical Doctor and/or staff, the QME, AME, IME and procedures video and audio taped.
    ** The injured worker should be receiving copies of all forms that they complete and / or at the same time they were completed and signed.
    ** The injured worker should be reviewing all medical reports, surgery reports, QME, AME, IME, and any other reports pertaining to their WC claim, thereby checking for errors, false information, false statements, etc.

  8. Inasmuch as I am not an attorney, I'm sure that there is better wording/language that can be used to develop a mandated disclosure, that's sole purpose should be to protect the well-being of the injured worker. Personally, I wish that there hadn't been the tool of workers comp. I wish that I could have gone to my own Doctor so that I could have gotten legitimate treatment for my injury. I wish that someone has warned me about the criminal behavior that is more common on the part of the defense than ever there was an injured worker.
    I grew up with my family intact. My parents were good, old fashioned Catholic folks. My Aunt worked in a hospital and her husband, my Uncle was a police officer. I was surrounded by many good people. Who would have thought that a patient of any kind, would have to beware of criminal maiming, falsifying of medical reports and so on. I was blindsided.

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    2. I have collected the surgery reports. I have found false documentation of chain of events and false statements notated, including a statement that indicates that I complained of pain to the left side of my face and left ear. That never happened. It also indicates that I complained of tingling down the left leg and in the left lumbar. After I awakened from the anesthesia at the 2nd epidural, I complained of severe neck pain... that is the pain that I complained of. I was then asked if I could feel the tingling from the "trigger point shots" meant to help the left lumbar where the physical therapist hurt me. I just answered, Yes. The forms, documents, surgery reports, all have been falsely documented. After the 2nd epidural, I was asked to sign another form, "consent" form. It indicated that the Ortho Surgeon brought someone with him into the operating room. I refused to sign it after the fact so they, the surgery center, would not provide me with a copy. Incidentally, the surgery center is owned by the person who owns the building where the Agreed Upon Medical Evaluator works his workers comp files. Too small a world!

    3. To AnnonWC, unfortunately, I have no income, no funds to purchase the book. I will check at the library. Thank you for the information.

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    1. The shots in the middle of my back, I believe, were not a pain blocker. After my attorney explained to me the manner in which the pain blocker was administered, it doesn't make sense to inject the middle of my back with a pain blocker for an esi that is going into the L4 L5 region of my lumbar.

  11. What happened to me was a criminal act. It was not an allergic reaction.
    Thank you for your response. I am going public with what happened to me so that I can prevent anyone else from being harmed by a physician, anesthesiologist and any other medical staff in the insurance carrier's MPN.

    I am now representing myself. So, I will see about getting more reference guides to help in my case.

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  13. Thank you for your response. My next court date is in September 2014. Currently, I don't have any PTP in my WC case. I don't have trust either.

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    2. I will delete my previous responses as this is not appropriate area to post suggestions for your claim, out of respect for this blog.

    3. I did want to help you hopefully get proper medical treatment and know your rights.

      If you cannot find that book at the library there is a lot of information on the states web page. Getting help from an I&A officer can also be helpful. They can help you file for a hearing and possibly locate a treating doctor in your MPN.

  14. Awesome job again, and I will have to take a walk down along that river soon my self. You say you don't know the answer? You have part of the answer I feel already started in CA with Bob Pack who is working to abolish your med board, that I and others are finding to be unfair. The State Med Tort laws allow the big guys to get away with these unscrupulus tactics in our care in our hmo's as well, and the same attitude of indifference that this creates there, bleeds over into our comp. When folks can hide behind med tort law and big ins as well, but the folks harmed by it have to be hindered by tort law from their civil rights to sue, and then get hit with criminal law when trying to fight back in a system that has locked out their voices economically and civilly. They took away our ability to do frivolous law suits because they said that was what was making health care cost so high.. Well 15 years later, and health care cost still soared. So can we have our civil stinger back now then? I love what you wrote great job. And everything lately reminds me of this old estops fable... Peace the belly and the members (also known as quarrel between the body parts)

    One day the various parts (Aesop says 'members') of the human body, including the brain, arms, legs, eyes, feet, hands, lungs, etc., got together to discuss the body's belly and what they thought about its contribution to the group efforts on behalf of the body. The body parts were all unhappy and resentful for various reasons, and chose to target their collective anxieties at the belly, in a rather bullying way. The unhappy body parts decided that the belly was not doing enough towards maintaining the body's operations, and accused the belly of spending its time lazily consuming food and allowing other members to do all the work. "We have decided that we will no longer do what we need to do in order to feed you," they said to the belly, "Because you do nothing to help us, and you are lazy and unproductive." And they stopped feeding the belly. The belly soon starved. But then so did the body and all of its parts starve too. The unhappy body parts now realized - too late unfortunately to save themselves and the body - that although the belly seemed to be doing nothing, it had in fact been fulfilling a vital function necessary for the wellbeing of the body and all of its parts. Moral: Often group efforts include certain members whose contributions may seem inconsequential or less valuable than others, and whose behaviors may seem different and less worthy than other louder more obvious contributors, but it is not generally such a simple matter. Group dynamics are complex, and it is easy to misinterpret and undervalue other members' efforts when we do not understand the entire situation, and particularly when we do not understand how individual members might be crucial to overall teamwork and results. When we target and victimize group members we weaken the group, and all of its members.

  15. David, is that a typo in the title? Did you mean "It's the Fraud!"

    My jaw dropped as I read your polite blog on the issues, as you perceive them. Your defense background shows through loud and clear. It's 2014! WorkComp is a billion dollar insurance scam, maiming and killing of Americans by Americans.

    C'mon, Workers are counting on you to get the Truth out and facilitate some change. Can't change what you can't confront. We'll ask more of our friends to read and share your blogs, and comment further. We'll ask more of our friends to use your blogs as study pieces.

    I, personally, have learned a great deal since studying your blogs, thank you. I also attended the Exhibit Hall at the CAAA Rancho Mirage Winter 2014 event, thanks to you and a Judge buddy. I even chatted with the CAAA organizer (very nice Attorney), and asked that they open up the events with an INJURED WORKER category and discounted rate. Maybe next year, huh?

    David. Lives are at stake and you have a big microphone. How about exposing the Truth about this billion dollar insurance scam in which small pockets of little people profit, while the big bucks are made by the insurance companies and their payees?


    Guess what else. They have the same issues in the entire USA, in Canada and in Japan and we hear/tell 'on the streets' that Europe has the same plague. At least in Japan they are honest about who is running things...the Yakuza.

    We could use a little more honesty and lawfulness, less fraud and perjury, maimings and killings in America, huh? Follow the money trails, they never lie.

  16. What are we doing to our people? Do we have a health care system that is being allowed to omit truth in our care (objective medical evidence), and then deny us justice for the harm done to a point that it drives the patients insane, for which at that time the same health care system then gets to profitise of the misery IT CREATED in the first place?

    Do I have this right? And then while treating the VICTIM of this abuse, we then tell them that it's all their fault and their short comings and BAD CHOICES in life, and our bad behavior that we need to change. Or that we have to find a way to accept and endure our oppression like religion, or support groups, or sedation through phyctropic drugs, or jails and other institutions.

    YET it was not the victims "CHOICE" to omit the truth in our care to start with.

    Could it be that the CHOICE, and the behaviors that need to change,are the ones doing the lying cheating denying and wrongful delaying in our care to start with?

    All to stop Labor from obtaining and utilizing IT's GRAND BARGAIN. And Patients from their individual civil and human rights. All for CORPORATE PROFIT over the health and well being of the insurance consumers and patients/injured workers in WA State, and all the other states as well. Hmm? FREEDOM? JUSTICE? Is that not like creating a pocket of sick lam and ill folks, that an health insurance and health care industry can just continue to profitise off? What a money making machine at the exspince of the Humans and the patients, and our Laborer's Grand Bargain. Hmm seems fair, I guess? What do you all think? WE THE PEOPLE no longer have our CIVIL STINGERS to fight back against the giants who now hide behind med tort law, while those injured and trying to fight back where the civil roads are intently hinder by the elite, are then rendered criminal justice, and demeaned demoralized marginalized, sedated, incarcerated, and last but least........PROFITIZED. I am I bitter and jaded? YES and deprived of justice in America in my health care and employment needs today, by an elite ruling class that has bought out our system, and is arrogantly pushing it's will and way of life on to the rest of us, not based in law and medical fact, but with a sneer and a grin, and their great gate keeping gut instincts. That in many many cases, are proving to be wrong, and even fatal. A broken system that is leading to systemic Patient ABUSE. That many are CHOOSING to remain willfully blind too, until it's their turn, but by then it's to late.

  17. My tack on it all at this point. This lack of justice breeds insanity, that then flows out into our communitess as social angst, that then puts all of our world at risk. So I do hope you do some investigating in to our BROKEN WORKERS COMP system. For who ever our next leader is? I DON"T WANT THEM to Turn their backs on LABOR the way all are NOW.
    Our Grand Bargain is their for a reason. MEN fought and died for it. Do we have to do that again? Men in suits, many who have never labored a day in their lives, are willing to throw that bargain away, if they feel you have not been beat down enough by your oppressors.
    When some one hits your car. do you want the insurance to cover the cost of the damage done? Do we all want the auto ins. folks to say, oh ya know, its just a little dent and one light. Let's let O care take of that, come back and see us once the car is totaled. Then we will honor our contract.
    Well that is the same thing that is happening to Laborers once hurt on, or by their jobs. Well its not bad enough, let's let your private ins cover this ect....... everything to get out of HONORING the GRAND BARGAIN and the social contract. That these injured laborers and their employers have been paying premiums for for years.
    Thus allowing large corps, that pay little to no federal and state taxes, to use up the labor force, and then once worn out and used up and injured, throw them folks back to the mercy of the Feds or the streets, or back into the jobs we know are harming even more.
    While folks are fighting over O care or single payer system''s. When the REAL FIGHT needs to be to take back our little Civil Stingers through State MED Tort Laws.