Wednesday, August 20, 2014

Cocktail Party Conversation

Yesterday I wrote about Recognizing Good. It's no mystery that much of what we "talk" about in workers' compensation has negative attributes: late payments, penalties, delayed or denied treatment, increasing rates, fraud, etc.

I'm certainly not going to deny that The Media contributes to this with daily news on these topics.

We all have opinions on what's wrong with workers' compensation. I get email, comments to blog posts and other communications, from injured workers and professionals alike, that decry all the various negative attributes of the system.

While many of these pessimistic observations have some validity, and while folks will disagree with each other on many of these points, the one thing that keeps coming back to me, regardless of where one stands on any particular issue, is that the vast majority of people working within, or serving, the workers' compensation industry really do care about "the system" and want to ensure it works as well as it can given the constrictions and limitations we face.

Most of us do not have the power or ability to make the radical, dynamic changes we think should be implemented.

Most of us don't understand the implications of change - how one small element in the law can affect many other elements up or down stream, or the unintended consequences that may follow.
"How about that Padgett case?"

Some at least do have the power to shape the conversation though - and the recent opinion by Florida Circuit Judge Cuneo in the Padgett case is doing that.

Legally the Padgett case is inconsequential - it is not binding on anyone other than the parties to that case, in particular the State of Florida.

And the likelihood of the Florida State Attorney General, who represents the state, appealing the ruling is very, very low - why invite appellate review unnecessarily and potentially disrupt the status quo?

After all, messing with the workers' compensation system is really a legislative function.

But, as was observed by many at this week’s Workers’ Compensation Institute Educational Conference in Orlando, FL, the fact that this ruling came out has opened up a big discussion, and not just in Florida but around the nation.

The top headline when I Google "Padgett unconstitutional workers' compensation" is the Miami Herald proclaiming, "Injured employees cheated by workers’ comp law, Miami-Dade judge says."

One legal journalist says that the Padgett case "outlines exactly how workers in the State of Florida have been slowly boiled to death."

Those are pretty incendiary words.

But that's okay because workers' compensation is getting attention by the public.

People out in the "real" world frankly don't give a rat's arse about workers' compensation until it affects them, and then it's too late - they become subject to the system and they either learn to get through it, or they have a difficult time and become scarred (not necessarily physically) for life.

The Padgett case, and a rumor that there are up to four other such cases pending in other circuit courts in Florida, is drawing public attention to our industry and we have the ability to use that attention to show what workers' compensation is about.

You know, and I know, but much of the public doesn't know, that workers' compensation does work for most people most of the time. That's why, in general, 20 percent of all cases generate 80 percent of all expense - because most of the time the system works.

And for those 20 percenters, some are "big" cases where really bad things happened and others are just situations where the system doesn't work very well. 

In some cases the law isn't flexible enough to "bend" to conform to those fact patterns. Some cases involve victims of bad things happening while in the system. And there are some who frankly bring it upon themselves.

But through it all, the vast majority of people that work in the system, that try to make things happen for the betterment of society and mankind, do so with the conviction that they are contributing to the bigger picture and doing the "right thing."

Sometimes I succumb to the negative pressure and frankly get down on myself for being a part of "the system." Sometimes it's difficult to rise above the bad noise and see that in the grand scheme of life we really do try to make things better.

So much of a workers' compensation cases outcome is dependent on personal factors: with the injured worker, with the employer, the claim adjuster, attorney, doctor and whomever else may touch that case.

When I talk to my colleagues, while we may disagree on how to accomplish the goal of ensuring work comp DOES work, the pervasive sentiment is all about "doing the right thing."

I still believe that workers' compensation is vitally important to an overall healthy economy. Sometimes it fails and we have discussions on why, who, what, how, etc.

Now the Padgett case gives US the opportunity to have conversations with the public about workers' compensation, and what it means.

Maybe Padgett isn't that important legally, but I think it carries a lot of conversational weight in and outside the industry and we should not discount that. The case empowers all of us to debate, to converse, to talk and listen.

Don't be threatened, and don't start celebrating, but do start talking. There's nothing wrong with outsiders hearing about workers' compensation. If nothing more, Padgett makes work comp great cocktail party conversation.


  1. Given the constrictions and limitations we face. Why not work to remove those limitations? Pressure the leaders to do what is right, call them out and put a spot light on those that block progress in comp?

    You say for the most part it works, yes and that is great when it does. but what about those folks it does not work for? Are we to say that because we are helping so many onto the bus, that it is OK that were running over a few, is that OK as a society? It's fine as long as our not the one under the bus,nor the one in the path off the person who got ran over the bus and is pissed off over it all and their civil rights to justice being hinder int he process? No patient harm should be acceptable. No harm to human life is acceptable, for any bottom line. Rates can be adjusted, budgets go in the red and in the black all the time, but our right to care and justice, should not, come and go, case by case. IT is not constitutional and it drives folks insane for decades trying to seek justice where others have tried to omit the objective fact in our care to deny care. It would be cheaper to just help folks out to start with. Like our GRAND BARGAIN used to call for. Peace and thanks.

  2. Well written, David. The arguments in Florida are not too far off similar arguments in Calif, especially when it comes to IMR. I know they meant well in coming up with it. What do YOU think the chances of getting rid of IMR and how do you think it would effect costs?

    1. Thanks John! I think IMR is here to stay. It will undergo some changes because I don't think it's all that hard to deal with the Constitutional aspects of the program. Comp for so long has been "anything goes" re medical for so long and that can not be sustained. IMR will take adjustment for everyone, but eventually I think people will start understanding what will be approved and what won't and the friction in the current iteration will be greatly ameliorated.

  3. Hello David,
    I wanted to make a comment with respect to your comments above related to the statement, "Some cases involve victims of bad things happening while in the system.".
    I have written comments on your blog before describing what has happened to me. Not only have "bad" things happened to me, but my medical reports have been falsified, surgery reports falsified, documents marked on the first page one way but the flow through pages were marked differently, etc. I have been abandoned by the system, or so it would seem.
    I am now pro per after having an attorney for over a year, that firm no longer represented me as of 2013, November. In an effort to get another attorney, I have interviewed several. Only one, via phone, said to me that he didn't believe in conspiracy theories after I told him what has happened to me. The others, didn't seem surprised at all that I had been maimed over and over. However, it has been difficult to get an attorney who will "zealously" represent me. My former attorney said in an e-mail to me, that they are only responsible to get me treatment, their legal assistant reminded me that they make only 15%, yet, after being forced under anesthesia & maimed, I need treatment now more than ever.
    Attorneys that I have interviewed with have said that there is no room in my case for them to be paid, therefore, I am without any representation.
    In March 2014, I had one law firm agree to take over my case. I finally got an opportunity to speak to one of the attorney’s about two weeks before a court date. I also told him what happened and that I want the maimed areas of my person added to the case. At a recent MSC, he met with the defense, I expected him to come down and tell me that I would get a new primary treating physician, studies would be done that won't be fudged or flat out falsified by the defense as they have been. Instead, after meeting with the defense attorney upstairs, he left the building and drove off in his car, leaving me waiting at the courthouse. He called me on the phone as I waited in the room with other injured workers who were also waiting for their attorneys. On the phone, he said, Ah yea, this case is definitely ready to settle, I said, "What?". The conversation continued on the phone and then he agreed to come back to the court house where I was. Once there, I re-stated my position on the case, and that I intend to fight for myself, his response, "Cecilia, even the legislators have been bought".
    I appreciate your positive attitude and your articles, you have been in the business for a long time and I respect that, however, for the record, I can't think of anyone that I have met in my WC case that had my best interest at heart. Both Law Firms that I signed with lied to me more than once.
    There seems to be a negative condensation towards injured workers. Just this week, I spoke to a "Diane" at the CA Div of WC. I let her know that I am dismissing the new attorney, but that I have questions. We talked and then she asked me questions about my case. Unfortunately, my case being so horrific, some people, including this Diane, have responded to me rudely. Instead of her having compassion, she said a few words to me that indicated that she didn't believe what I was telling her. She asked me if I have any proof that I had been maimed. She said that she didn't believe in conspiracies.

  4. You're right, some cases involve victims of bad things happening while in the system. I am compelled to fight for myself and when and if I can, for other injured workers. Crimes against the injured worker must be stopped. There must be a disclosure mandated to protect injured workers.
    Also, as in my case, if there is a need for the injured worker and the law firm to part ways... there should be a proper division of the 15% so that the injured worker is not left by themselves. Especially in my case, wherein the AME refuses to acknowledge in his report, the entirety of what has happened to me, going so far as to delete a 5 page description of what has occurred in my case from his file. The first law firm that represented me, was granted separation after I told them that I no longer trusted them, but the separation wasn't granted until after the AME upped my rating by 4 points. No doubt that was strategic.

    "Injured worker" it would seem, has a negative condensation to it. Why is that?

    I have read that less than 1% of WC cases involve an injured worker who was not really injured. Yet, I have read several blogs or postings and have spoken to injured worker advocates or activists, all indicating that the fraud most prolific in the worker comp industry is committed by the Insurance Carriers, Attorneys, Doctors, NOT the injured worker.

    Officially, I am on my own, in a case wherein many different crimes have been committed against me, the injured worker, over and over. I admit, I have no trust, not only in the system, but in the people that I have encountered. I haven't any knowledge of how to go forth. The I&A staff tell me that they can't advise me. I went to one of the seminars at the I&A office. There, they said, the material hand outs and the seminar was geared to WC cases that are accepted, not in dispute.

    I have no doubt that the workers comp system is a failed system for the injured worker, in more ways than one.

  5. One last thing, I watched a video recently on IMR or IME, comparing workers comp disputed treatment against treatment disputes in regular health insurance. For every (1) one IMR or IME in regular health insurance, there are (1000) one thousand in workers comp insurance claims. Clearly, injured workers suffer due to these erroneous and ridiculous delays and denials.
    David, tell me why this is accepted in the workers comp industry.
    Do the attorney's representing defense have no pride, no ethics, no integrity? Who is responsible for these inexcusable delay tactics?

  6. And the beat goes on....Maybe a core group of a cross section of injured workers could be called upon to blog about their to day diary style. ...with input guidelines ....who what when where how.....for the general public to see as well. Documentation of those 35 minute/$4000.00+ AME/QME reports.....UR /IMR appeals and denials.... comps of medically necessary treatments requested vs received. ....all costs. ...and ttd and other income duri g injury time.....interactive process for return to work or shift of financial burden to State agencies....and if the injured worker gets better or goes to the cemetery.

    Lets deal with some bottom line issues....From the fox holes in the USA WORK COMP WAR ZONES.

    Arrests of any suspected 'sonderkommando ' to be followed as well....thru trials to release or incarcerations. Involving DOJ since local District Attorneys dont seem to bother...did David do a blog on that too? Yes...we read and learn much from David and Friends. Survival skills.

    Lives are lost because of #WorkComp failures. Identification of the real problems is a step in the right direction.

    WCAB gave me an outdated list of work comp attorneys. One said he now works defense and could not help me either. I hot very quiet and said, "Oh. I heard you were best in your town. Why did you go to ....the dark side?" He paused and said, "That's where the money is."

    We rest now.

    We are the media now. CARRY ONNNNNN