Next Year!

Good night 2015!

This is my last blog post for 2015. I'm taking the next two weeks off from this part of my job.

What a year this past one was!

I get asked all the time how I can write so profusely on workers' compensation - a post every single business day (except when I went to Italy for a couple weeks). It really is easy - just read the news. There's always something going on that either defies logic, challenges promises, or frankly just reflects plain stupidity.

Workers' compensation is really, really simple. Employers put money into a bucket. Some expenses are paid out to people for custodial services and management. The rest of the money is to go to and for injured workers.

Sometimes people get more than they should (and sometimes getting anything is wrong). Sometimes people get shortchanged.

But otherwise, it's not a difficult process to execute.

Until our own personal interests get in the way - then we make things more complicated than they need to be.

Some employers, for instance, either don't believe in the workers' compensation institution, or are just plain cheaters, and don't pay into the bucket, or don't pay what they should.

Some workers either feel they deserve more than what the law allows, or are just plain cheaters, and collect when they shouldn't.

Some of the people that are paid for custodial services and management feel the money employers give them is their own money, ignoring their fiduciary responsibilities.

Some of those providing services to and for injured workers get greedy, and sometimes are dangerous, or are just plain cheaters.

There's enough of these characters on a day to day basis that finding something to write about is not much of a challenge.

More of a challenge is finding the stories about workers' compensation done good. General media publications this past year have certainly painted a picture of a benefit system gone awry.

But, the reality is that the American work injury protection scheme hasn't gone awry. For every bad case that gets reported in the news there are likely hundreds that don't get media attention because of the simple fact that they are not remarkable; things worked out the way they were supposed to.

That has been a personal challenge for me these past couple of years - finding the people and their tales that show what workers' compensation is really about, and how it plays an important role in our society and economy.

That's why the WorkCompCentral Comp Laude was invented, and why WorkCompCentral has worked with Pepperdine University to educate and bring new people into this "industry" (I use quotes around the term industry because workers' compensation is much more than an industry - it is an institution).

Over the next couple of weeks I hope to get a little more rest by sleeping past my normal 3 a.m. Pacific Time wake up habit (no, I don't use an alarm clock). I'll read the news fastidiously every morning, and I know I'll feel the compulsion to write.

I'll save it for the New Year though.

In the meantime, think about the good stories. Tell them to me, and tell them to the rest of the world.

Comp Laude 2016 will occur November 4 and 5 in Burbank, CA. We'll start accepting nominations around late February or early March.

I hope those good stories I know you have get turned into nominations.

Happy Holidays!

Subterfuges Are Not Countenanced

Independent contractor status comes up more often as an issue in workers' compensation than we give credit for - and while the industry watches what is happening with the "share economy" companies, cases involving much more mature industries continue to come out of the courts in surprising quantity, and reiterate what we already know about employee versus independent contractor determinations.

Trucking is one of those industries that has gone round and round for years, and even to this day it surprises me that folks haven't learned - it's not what you call the relationship, it's how you treat the relationship.

The First District Court of Appeal for California yesterday released an opinion that, once again, made it clear that the actions, not words, define the employment status.

In Lexington Insurance Co. v. WCAB (Ali), No. A142340, 12/16/2015 (unpublished), Sheik Zahid Ali was seriously injured on July 19, 2006 after driving a tractor-trailer filled with latex paint from Hayward, California to Spokane, Washington.

When Sheik climbed on top of the trailer to unload its contents, a pressurized cap came off and struck him in the head.

The truck was owned by Ali’s Trucking; the trailer was owned by Trimac Transportation Services Western.

Ali's Trucking had a contract agreeing to lease its trucks to Trimac and provide drivers. The contract noted the drivers would be employees of Ali’s Trucking, not Trimac.

Ali’s Trucking entered into a separate contract with Sheik called an “independent contractor agreement.” This contract made no mention of Trimac.

At the time of Sheik's injury, Trimac had a Truckers Occupational Accident Insurance policy with Lexington Insurance Co. Trimac was also covered for workers' compensation by Zurich Insurance Company.

The court's opinion is extensive, and goes over nearly every detail of Sheik's relationships with the companies. The bottom line conclusion - it's not what what people say, but how they act. There is no clear, defining line - the more control a business has over a worker, the more likely the worker will be found an employee for purposes of workers' compensation.

There's nothing magical about the ruling, and there's nothing unusual either. The public policy towards finding an employment relationship despite contractual definitions to the contrary is to ensure that people injured performing services at the direction of another do not become the burden of the state.

As noted by the Lexington court, the seminal case in California (and highly influential in other jurisdictions) is the California Supreme Court opinion in Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello).

Borello cites the public policy of liberality in favor of finding an employment relationship, as quoted by the 1st DCA:

"The nature of the work, and the overall arrangement between the parties, must be examined to determine whether they come within the ‘history and fundamental purposes’ of the [workers' compensation] statute” Those purposes are: “(1) to ensure that the cost of industrial injuries will be part of the cost of goods rather than a burden on society[;] (2) to guarantee prompt, limited compensation for an employee’s work injuries, regardless of fault, as an inevitable cost of production[;] (3) to spur increased industrial safety[;] and (4) in return, to insulate the employer from tort liability for his employee’s injuries. [Citations.] [¶] The Act intends comprehensive coverage of injuries in employment. It accomplishes this goal by defining ‘employment’ broadly in terms of ‘service to an employer’ and by including a general presumption that any person ‘in service to another’ is a covered ‘employee.’ ”

Workers' compensation is a privatized social benefit system. Take out "privatized" and you get to the heart of the matter: work comp is a social benefit system.

That means its' primary purpose is to provide benefits to society. It does this by taking care of that small minority (thankfully) of workers who have unfortunate things happen to them while contributing to civilization by furthering the economic goals of another.

What's beautiful about this is that the financial burden of Sheik's serious injuries have been spread out amongst many thousands of other companies and businesses, not just Trimac and not just Ali Trucking. Lexington and Zurich took on the fiduciary obligation of ensuring that risks such as Sheik's injury were sufficiently diversified financially.

Lexington and Zurich decided to be in the business of accepting money for the promise that someone like Sheik would be taken care of in case a pressurized cap popped off and hit him in the head. That they argue amongst themselves about who ultimately pays is okay, so long as Sheik's receipt of medical care and wage loss were not impaired while they fiddled around for nearly 9 years (there's indication that Zurich did provide some benefits).

The California Supreme Court said it most succinctly: “The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.” (Borello, supra, 48 Cal.3d at p. 349.)

A Bigger Hammer

My maternal grandfather lived with us when I was growing up.

We called him "Daddy Harry" at his insistence. His legal name was Harry David Bonacci, given to him "by Decree of court from Enrico Davide Bonacci, as part of the Naturalization" according to the testament by Deputy Clerk Martha Stone for Clerk William H. Tallyn.

He was forty seven years old, five foot six and 130 pounds on April 1, 1946. That was thirteen years before I was born when he became an American citizen. He'd immigrated thirty three years earlier, started a trucking company with his five younger brothers, which grew from a single bob tail into the biggest transport company on the East Coast.

Prohibition was in full swing back then, and my grandfather knew that good money could be made, with little risk, by transporting the raw materials needed by the moonshiners.

But his love was mechanics. After getting the business going he handed over management to his brothers so he could run the maintenance shop. Back then the trades were valued, and there was such a thing as a "master diesel mechanic."

That was my Daddy Harry.

Of course he was retired when he came to live with us. He was separated from my maternal grandmother - she lived in Phoenix, AZ. I recall in my teenage years my parents "forcing" the two to live together, and that was a bit acrimonious, and a story for another post.

The glory to my brother and I, though, was Daddy Harry's garage. Well, it was the household garage, but Dad was too busy being a dentist, Mom had no interest in anything in the garage, so it was my brother and I mesmerized by Daddy Harry's meticulously organized and maintained garage.

I still have many of the tools he passed along, and what I don't have my brother does.

As my brother and I grew older we would tease our grandfather about his mechanical skills. He of course was an extraordinary mechanic, and seemingly could fix, or build, anything, even with the most basic of tools.

Which led to a phrase we would attribute to Daddy Harry, but really we made it up as descriptive of his mechanical prowess: "If it doesn't fit ... use a bigger hammer!"

Following that philosophy is dangerous of course. Making things fit by pounding away with a bigger hammer will, in most cases, just ruin whatever is being "fixed." If you're successful in making it fit, generally the fit won't last long, and the collateral damage to the object being "fixed" can be irreversible, or at least more expensive to repair than had finesse and the proper tools been used in the first place.

We seem to use a bigger hammer when it comes to things in workers' compensation.

And the results are predictable.

In California we used a bigger hammer in 2012, and we made things fit pretty well, at least temporarily.

But the problem with that brute force was that the fit tolerances were sloppy. This may be why the Workers' Compensation Insurance Rating Bureau is finding that the first part of 2015 is reflecting an increase in medical costs, running contrary to the first two years that SB 863 hammered those costs down.

Though still well under what the system started out with prior to SB 863, 2015 is showing so far a 4% increase over 2014 - largely due to utilization, or the number of services being provided (as opposed to unit costs).

And utilization is what drives medical inflation in workers' compensation.

What's interesting about this trend is that Independent Medical Review should impact utilization - and for the first two years that's exactly what happened; utilization following SB 863's implementation of IMR dropped significantly.

But the mix of utilization may be changing, causing this reversal in medical inflation. We know, based on recent research by the California Workers' Compensation Institute, that most requests for treatment do not get challenged, and that compliance rate has been growing, which probably reflects adjustments to the environment by medical vendors.

My Daddy Harry used to nap in the television room every afternoon in his recliner. He would snore "like nobody's business" (a phrase, by the way, that he used to use often), mouth wide open, facing the ceiling, lower jaw moving rhythmically to inhales and exhales. I recall vividly the beautiful dental work Dad had executed so nicely displayed to all the world...

The challenge for my brother and I was to input an index finger into his mouth while open, and withdrawing it just in time before being "bitten." The game was to see how long we could pull off this stunt before waking our grandfather.

And when he woke he would yell at us, "Why you little monkeys!"

Of course we snickered, and took on the challenge another day during another nap. It never got old. We just couldn't resist the bait of Daddy Harry's undulating orifice, the rattle of his sinus cavity and the eventual interruption of his snoring when he sensed a foreign digit in his mouth.

Kind of like the workers' compensation medical game. The challenge of not getting an index finger bit is just part of the fun. How long it can go is another part of the dare.

And eventually a big hammer is brought out to try and fix things, and when that doesn't seen to work an even bigger hammer is used until all has been forced back into place.

Daddy Harry never really told us to use a bigger hammer. That was a fiction my brother and I concocted because it was fun.

So was the finger game.

Paper Irrelevancy

On Friday I quoted blogger and principal of Health Strategy Associates, Joe Paduda, about physician's reticence to complete paperwork.

Paduda opined that physicians would be loath to move claims from general health to work comp because of the extra paper work, stating, "documentation that is perceived by physicians as irrelevant to patient care is the discontent of doctors - seems to me that's the definition of workers' comp."

The latest Texas biennial Performance Based Oversight (PBO) report seems to bear that out - that report showed an alarming minority, up to 25%, of workers' compensation treating physicians surveyed failed to complete or filed required work status reports timely or accurately.

Work status reports and back-to-work documentation are two of four categories under which doctors are assessed through the biennial PBO process for health care providers. Other categories are timeliness in filing medical evaluation forms and filing documents supporting their use of magnetic resonance imaging. Doctors file both forms with insurance carriers and the state Division of Workers' Compensation.

“The measurements that physicians perform the worst on are the administrative requirements of the DWC, rather than the clinical measurements, which physicians score quite well on,” Warren Cooper, the Texas Medical Association's director of health care delivery services, told WorkCompCentral.

83 health care providers were reviewed in the latest PBO report, published Monday, for the timeliness of their medical evaluation reports (DWC Form-069). 61 were high performers, 18 were average performers and four were poor performers.

High, average and poor are defined by regulation.

But, of the 124 health care providers reviewed for the completeness of the work status report (DWC Form-073), 55 were high performers, 38 were average performers and 31 had scores placing them in the poor-performer tier.

The DWC checked the records of those same 124 health care providers to see whether they had proper documentation of the reasons injured employees couldn't return to work.

Of those 124, 62 were high performers, 41 were average performers and 21 were poor performers.

Of the 33 health care providers reviewed for whether they had proper supporting documents for the usage of magnetic resonance imaging for spinal injuries less than 21 days after an injury occurred, 21 were high performers, eight were average performers and four were poor performers.

DWC says it deliberately expanded the number of physicians subject to audit from the last report, nearly doubling the number reviewed for for work-status forms.

To discourage further physician participation in workers' compensation cases, in addition to paperwork they don't want to complete, poor performers are subject to further review and potentially penalties.

I'm being sarcastic of course, and DWC has good intentions - like much in government oversight though, motivation is provided via punitive measures rather than positive incentives.

The other day the Workers' Compensation Research Institute sponsored a webinar debate between retiring president/CEO, Richard Victor, and Paduda - the theme was cost shifting from general health to workers' compensation.

Victor said their data showed it happening. Paduda challenged the premise and the data, and suggested that just as much shift to work comp was also occurring in the opposite direction, providing the quote at the top of this post.

Regardless, it seems to me that Texas would be a great place to do further research on this topic, starting with the physicians that were surveyed in this latest PBO to see how discouraging work comp paperwork, and subsequent discipline assuming poor ratings, motivated a shift to general health if the circumstances permitted.

Even better would be research on how government could meet its need for data while stimulating physicians to provide that information without resorting to de-motivating measures. It would start by formulating forms that physicians would perceive as adding to patient care, rather than the obviously current perception of irrelevancy.

The Federal Independent Worker

All the talk in workers' compensation about alternative systems has been about opt-out.

Now, a couple of professors, and Congress, is thinking about creating an "opt-in" system.

Alan Kreuger, a Princeton University professor and Seth Harris, professor of industrial and labor relations from Cornell University, published a paper, A Proposal for Modernizing Labor for 21st Century Work: The “Independent Worker,” through Washington, D.C.-based Brookings Institution's Hamilton Project Wednesday.

The next day a symposium, "The Future of Work," was hosted by U.S. Secretary of Labor Tom Perez on Thursday in the capitol.

In the workers' compensation industry we argue about efficiencies, costs, and details of coverage.

But, we also know, when we "look at the moon," that the administrative nature of modern workers' compensation systems is an important component of the economy and society, and that it is fundamentally a very good concept.

And we also know that there is growing discontent with the disparity between state systems, the inequity of benefit levels and how systems are administered, with some calling for federal oversight and standards.

Kreuger and Harris posit that while the tort system may be the best solution in some cases, overall, workers' compensation can be more efficient than civil litigation.

This had Harris and Kreuger arguing that the federal government should take the lead in establishing an opt-in workers' compensation system to cover Independent Workers - that new class of worker (some call them Dependent Workers...) of the Shared Economy exemplified by Uber, Lyft, AirBnb, DoorDash, GrubHub and others.

“Congress may have to act if the courts all across this country reach varying and confusing decisions,” Kreuger said during a roundtable discussion following the publication of the report. “It’s quite possible, in some jurisdictions, courts will say, under the same law, that they're employees and others are independent contractors. And that’s not a healthy environment for the economy."

Harris, said during the same discussion, “God forbid judges get involved. Then we’re going to end up maybe even worse off, because it’ll be decisions in particular cases with respect to particular sets of facts about particular issues,” adding it might take an act of Congress to get a comprehensive solution.

“We therefore propose that intermediaries be permitted to opt to provide expansive workers’ compensation insurance policies to the independent workers with which they work without transforming these relationships into employment," the authors conclude.

Intermediaries would receive limited liability and protection from tort suits in exchange for this no-fault insurance coverage. And while states would provide the legal framework within which the policies would operate, they would not operate the systems themselves.

States could also require that the policies provide the same level or a higher level of protection to independent workers than their workers’ compensation systems.

“While opt-in and voluntary systems of insurance can create adverse selection and moral hazard problems," because of the potential that only those businesses whose independent workers are more likely to be injured opting to buy the policies, "experience with these policies could inform design changes that might reduce these risks over time.”

Parenthetically, in our industry, we have referred to those changes as "reform," with its own set of problems and concerns.

Intermediaries would also have the right to opt out of the system and be subject to tort actions if workers’ compensation policies are prohibitively expensive say Kreuger and Harris.

I had assumed with enough political noise that eventually Congress might rattle cages with a sword and threaten some sort of oversight or program to rectify disparate system differences in state programs, but this is an all new twist that could provoke the same sort of change.

Cost Shifting Nonsense

The Workers' Compensation Research Institute hosted a webinar yesterday about cost shifting to workers' compensation from general health. The premise was that due to the Affordable Care Act, there would be an increase in moving health claims into the workers' compensation system.

Richard Victor, who is retiring as president of WCRI, made the case that this shift trend is underway, based on research that looked at "capitated" health plans, namely from Health Maintenance Organizations.

A capitated plan is defined as a health plan that pays a flat fee for servicing patients; as opposed to a fee for service plan that pays per procedure. It was theorized by WCRI that capitated health plans would grow under the ACA so health carriers could control costs better, and consequently there would be an increase in shifting care to work comp.

A study (not by WCRI) back in 1996 had looked at federal ship yards, and the correlation between HMOs and workers' compensation - what that study found was a strong correlation between them: ship yards with an HMO, which were presumed to be capitated plans, were highly correlated with shifting care to workers' compensation.

But that's not the end of it - the type of "injury" being shifted was more responsible than simply providing care under capitated plans.

Look at the moon...

WCRI's research shows that if the injury claimed is a soft tissue injury that there was a greater likelihood that it would be treated under a work comp system than general health.

Victor said this was because the initial treating physician has the first, and consequently, disproportionately large role, in determining causation of an injury or complaint.

Specific trauma cases provide much less discretion in determining causation because an event was much easier to identify - thus lacerations and fractures aren't so easily recategorized than those requiring a more subjective analysis.

An inference was made by Victor, though there wasn't any hard data to support it, that workers' compensation's mostly fee for service reimbursement schedules influenced subjective determinations towards work comp - assuming that physicians and their teams were more motivated by money than health outcomes.

But blogger and principal of Health Strategy Associates pointed out that about 1/3d of HMOs don't use capitation for groups or individuals, or at least not for all services, so basing the research on HMO experience was not an apples to apples comparison, in his opinion.

Paduda also said that capitation has NOT grown under ACA, and presented some data to support that conclusion.

And in fact, Paduda challenged that physicians would be so motivated to move claims from general health to work comp because of the extra paper work, stating, "documentation that is perceived by physicians as irrelevant to patient care is the discontent of doctors - seems to me that's the definition of workers' comp."

Paduda also challenged the status quo view, and said he's not sure that any reverse shift DOESN'T occur (i.e. likely that there is cost shifting or case shifting going both ways).

Frankly, though, this is all academic.

It really doesn't matter and is a discussion that is relevant only to insurance companies seeking to eek out a better profit from their programs, because at the end of the day the employer is still paying for insurance, and employee is still trying to get treatment, and if one belongs in a certain silo or another is of relevance to the injured worker only in terms of deductibles, co-pays and indemnity (and even then, there may be an indemnity option under a state disability program such as in California or New York).

Cost shifting is pointing at the moon, and the dogs (us) looking at the finger instead of the moon.

There are only two real issues: is there an employer paying for medical care? is the employee getting medical care?

Whether that care is paid for via one system or another is irrelevant to the big picture.

Which brings me to another point - and that is whether universal care, or 24-hour care, or whatever you want to call it, will ever become available.

Both Victor and Paduda said "no" because powerful entrenched interests will never let go of their fiefdoms.

But this ignores the single most compelling prospect of the opt-out movement: consolidation of care.

Opt out can operate outside of the silos because it is not constricted by workers' compensation laws; it is governed by ERISA, a much broader system of governing employee benefits. I see the opt out movement as having an advantage to both employers, AND their workers, by providing medical care via a single platform.

Let the guys with white collars and ties in the back room argue about who's going to pay for what. The injured or unhealthy worker should not be concerned with who's going to pay for what - if the care is delivered quickly, timely, effectively - the vast majority of care recipients are going to be just fine with that.

Opt out has been the brunt of criticism the past couple of years with all sorts of legal challenges in Oklahoma, all sorts of anti-opt out lobbying in Tennessee and South Carolina, and public media reports that the promises of injured worker care are illusory.

I suspect proponents are actually listening and learning, and that modern offerings will refocus the discussion towards the bigger picture: an employer paying for the care of its workers regardless of causation.

Sure, universal care as a national, or even a state, program may not ever be realized because of the pesky, well positioned and entrenched special interests.

But when opt out comes to your state you can bet that plans will be a universal care model.

THAT's how single payer/universal/24-hour care (or whatever label you want to use) will creep into the modern economy.

That's my opinion. Ought to be yours!

Consult The Checklist

We were short and final for runway 22 at Catalina Island's Airport in the Sky yesterday when I decided to go around because we were too fast.

Just as I input full throttle a voice came over the radio, "check landing gear."

THAT's why we were so fast! I had failed to lower the landing gear.

How did this happen? I have 1500 hours of flight time, and over 800 of that is in Forty One Mike, and have never failed to check for landing gear deployment.

I thought about how that could have happened while relaxing with a cold one that evening in my lounge chair.

It was a WorkCompCentral director's meeting - we decided a day away from the office after all of the hustle and bustle of Comp Laude the weekend before so we could have some quiet time.

The conditions were perfect for a trip to Catalina and a Buffalo Burger - calm, clear air and modest temperatures. Wednesdays aren't too busy in the Los Angeles Class Bravo airspace and I figured Catalina wouldn't be too busy either.

The flight itself to the island was non-eventful for me, the pilot, and the passengers were thrilled with the view and stability of the flight.

Forty One Mike circled KAVX into pattern altitude for a right traffic entry to runway 22. On the downwind I sighted the touchdown zone and kept an eye on it as we turned right.

I felt for the landing gear knob and activated it, focused on the runway because Catalina is an "aircraft-style" landing - the runway sits atop a mesa with sheer cliffs on both sides, and it is steeply angled with a hump in the middle that causes a distortion from the normal cockpit view.

Forty One Mike was also heavy, with close to 800 pounds of humans aboard and only about 10 gallons of fuel burned off, so its handling was a little slow and ponderous.

And the passengers were gawking with delight.

In other words I was distracted.

As Forty One Mike was turned into final I reached to lower the last step of flaps, but it was already there - weird I thought.

I didn't think enough.

Nor did I check, as my habit and per check list, for "three green" - the three landing gear indicator lights illuminate green when the gear is fully deployed down and locked.

Normal approach speed in Forty One Mike is 80 knots with 15 inches of manifold pressure - but she wouldn't slow to less than 100 even at idle, so with about 100 feet of altitude to go to touchdown throttle went in to full power and I initiated the go-around.

All the clues were there, and yet, I almost got caught in a gear up landing.

This is a lesson we learn all the time in workers' compensation.

If things aren't the way you're expecting them to be, then they probably aren't...

In Ohio the mayor of Toledo died after an auto accident from a heart attack while in route following a snow storm press conference. The Bureau denied the claim, presumably based on the going and coming rule, but that was reversed by the Industrial Commission because substantial evidence reflected that D. Michael Collins often traveled the route home to check on road conditions. The Bureau is now seeking appellate review.

In Nevada some tweaks to the medical fee schedule for hospitals and ambulatory surgical centers should not cause more than a point four percent increase in medical costs in the state, but a study released last month by the Workers' Compensation Research Institute largely confirmed that you can't predict future behavior on past performance; reimbursement rates have a disproportionate affect on what procedures are deployed.

And in Pennsylvania a 48 year old field maintenance worker, with a long history of heavy smoking, hyperlipidemia, and family history of coronary artery disease died after working a 14 hour day in cold weather performing hard physical labor under stress. The substantial evidence standard supported the claimant widow's appeal for death benefits over the defense opinion that a heart attack was inevitable, and it just so happened to occur at work.

There are, every day, clues that should cause us to consult the check list. Things aren't what they seem. Sometimes the courts have to remind us. Sometimes history is not a good indicator of future performance.

As we were climbing out for the go-around another voice came over the radio.

"You owe that guy a beer."

"Yep" is all I could say.

Permanently Temporary

The reason many states have implemented an artificial date for termination of temporary total disability status is because, as the Missouri Supreme Court just recently opined, the date a worker attains maximum medical improvement is not a "bright-line date to terminate temporary total disability benefits."

**********
Carl Greer, a long-time employee of Sysco Foods, accidentally stuck his foot out from his stationary forklift into the running line for equipment in the Sysco warehouse in February 2006. A coworker on another forklift collided with Greer's forklift, and his foot was crushed between the forklifts.

Greer underwent medical treatment for several months and was released to return to modified work in August 2006. His doctor placed him at MMI in April 2007.

But Greer continued to complain of pain in his foot. He went to see Dr. Bret Grebing in July 2007. Dr. Grebing diagnosed him with tarsal tunnel syndrome – a nerve condition in the foot, similar to carpal tunnel syndrome in the wrist.

Greer underwent surgery on his foot in June 2010. In the meantime, Greer filed a workers' compensation claim asserting he was permanently and totally disabled by the combination of his foot injury and his pre-existing disabilities from earlier back and shoulder injuries.

The Administrative Law Judge found Greer was not permanently and totally disabled, and that Greer had a permanent partial disability of 27.5% from the forklift accident.

The ALJ also determined that Greer had reached MMI for the foot injury by April 2007, and so Greer was not entitled to any TTD benefits after that date.

[The judge further determined that Greer's benefits had to be reduced by 25% because Greer had violated a workplace safety rule by allowing his foot to be in the running line for equipment in the first place.]

Greer appealed, and the commission (which also overturned the safety penalty) ruled that he was entitled to an additional period of TTD benefits after the 2010 surgery.

The Court of Appeals reversed the award of TTD last November, but the Supreme Court on Tuesday said the commission's decision was supported by substantial and competent evidence.

The Supreme Court explained that Section 287.149.1 of the Missouri Workers' Compensation Act requires that temporary total or partial disability benefits be paid "throughout the rehabilitative process.”

Thus, when the commission is presented with evidence that a claimant has reached MMI, yet seeks additional treatment beyond that date for the work-related injury in an attempt to restore himself to a condition of health or normal activity by a process of medical rehabilitation, the court said "the commission must make a factual determination as to whether the additional treatment was part of the rehabilitative process."

If the commission determines the additional treatment was part of the claimant’s rehabilitative process, then he is entitled to TTD benefits pursuant to Section 287.149.1 until the rehabilitative process is complete, the court ruled.
**********

Part of the Grand Bargain is that employers (and their insurance companies) have "certainty" in the process (albeit, certainty is bilateral for the injured worker as well).

A "temporary" disability status looks a lot less temporary when it endures for more than four years. And an employer/carrier has no certainty as to when something isn't temporary if there is not a "bright-line date to terminate temporary total disability benefits," as the Court said.

Now you know why many states artificially limit TTD.

The case is Greer v. Sysco Food Services, No. SC94724.

How Good It Is

Most of insured America doesn't know how good it is.

I'm talking about Market Competition for workers' compensation insurance.

And for that matter, most workers' compensation insurance companies don't appreciate how good they have it right now.

For Business America, market competition in the private work injury protection system means that if one company doesn't meet the expectations of the employer there likely is another source.

Since workers' compensation is viewed as a commodity by Business America, quality of service (unfortunately) takes a back seat to prevailing rates, and when coupled with various incentives, discounts and dividends or refunds, price sensitivity is heightened.

This puts pressure on the carriers.

In the past few years low interest rates that have hampered net financial results have been offset with increased rates, known in insurance parlance as a "hardening market."

A big component of pricing workers' compensation is the size of an employer's payroll. Despite increasing payrolls and decreased unemployment, premiums have not risen as fast as some thought.

According to insurance rating agency, AM Best, net written premiums for workers’ compensation increased to $46.8 billion in 2014, up 5.6 percent from $44.3 billion in 2013.

These observations are affirmed by NCCI.

The National Council on Compensation Insurance recently updated its projections for 2015, estimating that net written premium for workers’ compensation will reach $40.7 billion this year, a 5.7 percent increase from 2014. It would be the fifth straight year of growth and a record amount for the past 26 years. It’s also a greater increase than the 4.3 percent seen in 2014.

But rate increases have been slowing, turning into rate decreases for the first three quarters of 2015, company analysts said in a presentation yesterday, and companies want to retain their best accounts so they discount even further.

On average, according to Best, U.S. workers' comp rates have decreased 0.4 percent for this year’s first quarter.

That trend was affirmed by The Council of Insurance Agents and Brokers, which has also noted a softening of workers’ comp rates, as reported in its third-quarter market survey.

CIAB also notes that there are more carriers jumping into the market. It's not because of altruism though.

NCCI forecasts a combined ratio of 96 for 2015, down from 98 in 2014 and 103 in 2013.

Combined ratio is a very basic (and in my mind misleading) indicator of carrier health - it is simply a measure of dollars in and dollars out for any given period of time (and there are "policy year" as well as basic "annual" measurements): one dollar of premium versus X dollars of expenses and claims. If more is going out then the ratio is above 100. If less is going out then the ratio is under 100.

Since 1990, combined ratio has been less than 100 in only two other years: 1995 and 2006. In other words, this is one of the few periods in history that workers' compensation insurance companies are actually making an underwriting profit.

The reason underwriting profits are so rare in workers' compensation is because the system is designed that way - workers' compensation is a cash flow mechanism and insurance profits are to be derived from investment income obtained during the "premium float," the period of time between intake of premium dollars and outflow for expenses and claims.

The projected improvement in combined ratio is due mainly to projected increase in written premium volume, NCCI said.

Whatever the reason - carriers are picking a ripe plum, being that work comp is compulsory in most states and territories of the US. Captive markets are very enticing...

The Federal Reserve in the meantime is expected to start easing interest rates up, which means that Treasury Notes, the most conservative of investments due to the guarantee of the US Government, will start paying a bit more (albeit not much), which ultimately trickles down to the insurance market since conservative investments are favored by carriers and largely mandated by law.

And trickle it will be, because the rate increase is projected to be very modest, so investment returns won't be robust any time soon.

There is an inherent tension in workers' compensation insurance. In order for there to be a viable system, investors have to make money otherwise they will not be incentivized to fund it. But, the profit level needs to be kept in check because the insurance is mandatory, and Business America won't tolerate excess profits and will just "go bare," taking on the risk of non-compliance and financial ruin.

At the end of the day, though, there are only two salient requirements: that Business America has some avenue available to fulfill its mandatory obligations, and that Injured America is sufficiently protected with medical care and income support.

We have decided that it is up to The Market to make that happen. Right now The Market says there's money to be made by insuring the work comp mandate - they're drinking from a flowing fountain.

This is good for Business America because that means good competition for its premium dollars.

Now its up to Business America's management to make sure its employee assets don't have to use that insurance, but if they do, that those assets are protected to the extent that they are valued.

And ultimately, those assets will let Business America know if they feel valued or not.

Our Rules Are Better

Last Wednesday, California State Senator Tony Mendoza, D-Artesia, called an oversight hearing of the Senate Committee on Labor and Industrial Relations to gather more information on why claims frequency and severity is so much higher in the Los Angeles region.

There are many studies confirming that the LA region reflects disproportionately higher frequency and severity than the rest of the state, ergo much higher workers' compensation insurance premiums for businesses in the Greater Los Angeles area.

The theories abound.

The LA Basin from 5,500 feet.

The area has more thieves, crooks and fraudsters.

We have more lawyers.

There are more unscrupulous doctors.

A greater population and more diversified economy.

Bigger underground economy employing more immigrants that stay quiet about their plights.

Or, perhaps, that there are more Hispanic workers doing the lower level, more dangerous work...

Evidence supports the last theory.

Pew Research Center reports 5.8 million Latinos called Los Angeles or Long Beach home in 2011 and there are 2 million Latinos living in Riverside and San Bernardino, making the Inland Empire alone the fourth-largest Hispanic population in the U.S.

Combined, the Latino population in Los Angeles and the Inland Empire is seven times that of the San Francisco Bay Area or San Diego.

That population gets hurt more often based on Department of Industrial Relations data.

While Latino workers accounted for 59% of private-sector lost-time claims in 2014 and almost half of the fatalities, they represent 36% of the state's labor force, according to a November report by the DIR.

In comparison, according to that report, Whites accounted for 27% of claims requiring days away from work, Asians accounted for 7% and blacks 6%.

In the construction, manufacturing, mining and natural resources industries, Hispanic workers account for about 48% of the workforce but 75% of total injuries. In the trade, transportation, utilities, information services and financial activities sectors, Hispanics account for 46% of the workforce and 52% of reported injuries.

Latinos are also more likely suffer the severest workplace injuries, death. Of the 393 workers killed on the job in California in 2013, 194, or 49% were Hispanic -- 13 percentage points more their share of the state workforce, according to data from the U.S. Bureau of Labor Statistics. Whites accounted for 163 deaths, or 41% of fatalities, blacks 4% and Asians 5%.

Over the last decade, more Hispanics were killed at work in 2013 than any other year except 2006 when there were 231 Latino workers who suffered fatal work injuries. Over the past 10 years, an average of 174 Latinos were killed at work.

The argument, thus, is that because the Hispanic population is overrepresented in the LA area, and that population does more hazardous work, the fact that claims frequency and severity is higher is obvious.

Sort of...

What is missing from that equation are the artifacts that come along with that demographic: (a) social isolation, (b) cultural interference, and (c) informational deficit (influenced by the other two items).

Although recent studies reflect that the Mexican migration pattern is reversing, there are other Latin countries than Mexico in Central and 'South America that immigrate and fulfilling much of the manual labor requirements of the regions.

And those manual labor requirements are diverse: from agriculture to pool maintenance, from housekeeping and nanny services to waiting tables, from construction to landscaping...

Along with that influx are the demographic items listed above (and perhaps others I haven't thought of) which we gentrify as "culture".

Put all that together and one has a very nice stew brewing that feeds a sub-industry of doctors and lawyers that either specialize in taking care of the Hispanic disenfranchised, or simply taking advantage of them (not to mention the employers who perpetuate the underground economy and leave many without adequate safety or remedy).

So while we all want a simple "explanation" for a statistic that we can't make sense of, there isn't any. Perhaps the fact that there are more Latinos in the Greater LA area and they get hurt more often and more severely, but there is also a culture that has developed which supports the entire machine.

The problem isn't that Los Angeles is overrepresented in the workers' compensation statistics.

The problem is that we think it's a problem in the first place.

It may not be. The "problem" may be that we simply have a statistical anomaly that probably doesn't really matter other than the simple fact that there are people getting hurt at work.

"When people come here from across the Pacific or wherever, they either were business owners and want to be business owners here, or they were workers and want to be workers here," Bruce Wick, director of risk management for the California Professional Association of Specialty Contractors told reporter Greg Jones. "They're used to the rules where they came from. Our rules are better. Employers have more obligations and employees have more rights here."

I think Wick pretty much summed up the entire situation quite nicely.

"Our rules are better." That's pretty much it.

The Wrong Focus

The recent $2.2 million jury award against non-subscriber Tyson Foods in Texas for a back injury had WorkCompCentral legal reporter, Sherri Okamoto, ask whether that, and other recent awards, has caused the opt out community to take pause.

Some of the examples cited by Okamoto:

In 2014, a McLennan County jury handed down a $12.1 million verdict against the Tractor Supply Co. of Texas – which was one of the largest awards ever made to a single individual in the jurisdiction.

In January, the state's 7th District Court of Appeals affirmed a $5.3 million liability judgment against West Star Transportation for a driver's brain injury from falling headfirst from an unevenly loaded flatbed trailer.

Then in July, the 14th DCA upheld a $1,016,809 judgment in favor of a meat cutter who lost three fingers in an industrial accident.

And in September, the 14th DCA approved of an award of $769,627.02 to a worker for his injuries from a mishap while operating a machine that was reeling in a piece of large-gauge wire.

So do these eye popping awards cause Texas non-subscribers to rethink the decision not to buy into the workers' compensation system?

The basic answer she got was "no."

The underlying reason is that the employee in a Texas non-subscriber case has the initial burden of proof to show negligence on the part of the employer - and that just doesn't happen very often because safety protections and awareness has been elevated to the best performance levels ever.

In addition, those employers opting out of Texas' system and subject to those kind of awards have the resources, management and experience to calculate the risks and do a cost comparison and have determined that the benefit of controlling their own processes outweighs the risk of those big awards.

The fact that Texas is not compulsory for workers' compensation has always been a hot topic of debate in the state.

Non-subscribers enjoy their freedoms. And they say that doing so places competitive pressure on the workers' compensation system to stay efficient and affordable.

The state's history over the past couple of decades would seem to bear that out - when Texas workers' compensation insurance is relatively expensive the rate of non-subscription (although not necessarily the rate of alternative benefit plans) increases, and when the cost of insurance is relatively inexpensive non-subscription wanes.

I have had a tough time understanding why insurance groups would be opposed to non-subscription though. The Property Casualty Insurance Association has been a vocal opponent of opt-out for years. I thought they would, at the least, be neutral on the topic, because in my mind insurance is insurance - and if you can't sell one kind of policy, then you sell another kind of policy.

But the opposition remains. Trey Gillespie, whom I've known for some time, is the senior workers' compensation director for PCI. He states that PCI's objection to non-subscription is that it's bad public policy because it upsets the competitive market for the industry the non-subscriber participates in and that "they're not really providing the protections envisioned by workers' compensation."

That argument is also made by labor. Rick Levy, the secretary-treasurer of the Texas AFL/CIO and formerly its general counsel, has been a vociferous proponent of making workers' compensation compulsory in Texas for as long as I've known him.

Levy's argument against non-subscription mirrors Gillespie's, but with more of a Labor twist - Levy can cite many cases where an irresponsible employer left injured workers high and dry, upsetting the balance of the employer-employee relationship, particularly since most employees are not fully aware of the consequences of inadequate work injury protection systems.

Another argument against non-subscription is that costs are unfairly shifted onto other public benefit systems.

That argument is made against workers' compensation too, and curiously also gets inverted ... I don't think anyone accurately can state whether one system shift actually occurs over another system shift. I've never seen a convincing study that tracks real dollars attached to a claimant (or a cohort of claimants) from one system to another.

Non-subscription has always been a part of the Texas work-injury protection culture. Things are just different in that state. When the concept migrates across state lines it takes on a different character because it butts up against compulsory obligations - in Oklahoma, as you are likely well aware, that obligation requires that opt-out have the same minimal protections that workers' compensation provides.

There's quite a bit of argument over what that exactly means, and the opt-out movement has been on the defensive for the past year as plans become public and critics challenge whether those plans in fact meet that minimal standard.

That minimal standard, though, has shifted over the years and after many reforms in many states. The ProPublica series about work injury protection systems points that out quite clearly - the original promises made to Labor have been compromised over time and that's what the anecdotes (and frankly the data) suggest.

Whether workers' compensation is compulsory, whether an employer opts-in or opts-out - these are red herring arguments and mean nothing at the end of the day for the injured worker trying to get medical care and figure out how to pay his or her bills.

The test is whether the employer is sufficiently vested in its work force to ensure employees are sufficiently protected against the risks of earning a living at the direction and control of another.

The more I hear the arguments, the more both sides seem to be saying the same thing, and both of them are focused on exactly the WRONG thing: saving money.

When the focus is on costs, only costs matter, and that means that the assets (employees) get short shrift.

Cost centric employers count the trees in the forest. The problem is that they don't count all of the forests. Work injury protection is not just about avoiding a bad jury verdict, or controlling medical treatment, or limiting exposure to some mandated annuity.

The bigger picture is missed - when a worker is hurt on the job and doesn't return that job will either be restaffed at considerable expense, or the work doesn't get done ... at considerable expense.

And a job that doesn't get done means one less dollar going back into the consumer spend stream, which ultimately means one less dollar to support the business at which that worker got hurt.

The arguments can't be about costs, can't be about control, can't be about shifting obligations - the argument at the end of the day is whether the injured worker is adequately protected against bad things at the work place.

It is up to Business/Industry to figure out how to best provide that protection. And its up to government to say whether or not the solution provided is adequate.

What it really comes down to is does the public trust government to do the right thing? Opt-out folks don't.

There are a lot of work comp folks that don't either.

IMR Is What We Have

The California Workers' Compensation Institute has released its latest study on Independent Medical Review, and the conclusions shouldn't be surprising.

Overall, in the vast majority of workers' compensation claims, IMR is said to be working.

Keep in mind that this evaluation includes ALL workers' compensation claims, including medical only.

And since medical only claims comprise over 70% of all claims, the conclusion shouldn't be surprising.

What is surprising to me, however, are some of the less obvious items that are stated in the report, and if studied further, may provide some insight into why many of the negative comments and reactions to IMR occur.

First, "There was wide variation among claims administrators in the proportion of RFAs [requests for authorization of treatment] forwarded for physician UR review (ranging from 1.5 percent to 45.9 percent), which also affects the proportion of RFA services modified or denied by the physician."

That's a surprising range. If you have a case that is being managed by one of the 45.9 percenters, then you are more likely to have an adverse experience and denied treatment request than a claim administered by a 1.5 percenter.

Second, and related to First, "Within the study sample the percentage of treatment services in which an RFA was submitted varied by claims administrator, ranging between about 9 percent and 19 percent of services."

What this means is that some claims administrators are much more liberal and lenient with requests for treatment than others, so if you're on the 19 percent side then you're more likely to encounter friction in getting medical treatment approved.

Third and related to Second and First, "Although overall, 4.3 percent of all workers’ compensation medical services were modified or denied in the UR process, as noted earlier, modification/denial rates as a percent of all treatment services showed significant variation among payors, ranging from a low of 0.2 percent to a high of 5.0 percent."

What would  help us understand the real efficacy of the entire medical review process in workers' compensation, and whether or not there is value (cost versus benefit analysis) in the entire review process, would be to study ancillary issues attendant to the medical review process: duration and extent of disability, return to work success, overall costs of employment (i.e. substitution of injured workers and/or burden on existing work force), etc.

Fourth, there is an unexplained concentration of physicians who contest UR up through IMR: "The top 10 percent of all physicians (961 individual treaters) involved in IMR disputes were identified in more than 80 percent of all IMR letters; while the top 1 percent (97 individual physicians) were named in 40 percent of the IMR decision letters."

This is sort of like the unexplained concentration of claims, and ergo, claims costs, in the Greater Los Angeles basin area - a subject of investigation by a senate committee yesterday (which saw lots of data, lots of theories, and no conclusions). Coincidentally, or perhaps not, the CWCI study affirmed that there were more IMR reviews in the Los Angeles area, than any other region, representing 34% of all decisions out of 23% of all claims.

The impact of litigation on the review process also stands out, but there is again compression in the numbers, affirming the preliminary findings earlier this year: "The Institute’s analysis of 2014 IMR outcomes published in April 2015 found that nearly two-thirds of all IMR decision letters were addressed to the injured workers’ attorneys. Furthermore, that analysis found that a relatively small number of employee representatives – either the injured worker’s attorney or physician – were named on a majority of the IMR decision letters, with the top 10 percent of the representatives named on 65 percent of the 2014 IMR determination letters."

This could mean that some representatives are more aggressive about pushing treatment issues, it could mean that the providers these representatives work with aren't using guidelines effectively, it could mean that inadequate documentation is being processed, it could mean that claims payers in litigation are more likely to be a 45.9 percenter, it could mean a lot of things...

Comments in the WorkCompCentral story covering the study release dispute, affirm or modify its findings, reflecting the experience of the commentators. Most agree with the overall statistical conclusions, but have some anecdotal observation that challenges the data on a case by case basis.

And frankly, while workers' compensation can not be 100% effective all of the time in the medical care delivery process, the fact is that the relatively small number of cases for which IMR reverses the UR decision affects tens of thousands of treatment requests, potentially affecting tens of thousands of claimants, and we know that small percentage can comprise a disproportionate cost to the system, employers and injured workers. 

What this study tells me is that there is still a great amount of work to be done by claims payers, by medical providers, by litigators - the expectations that preceded SB863 have not yet adjusted, nor have the practice habits of those involved.

The research will support the policy of taking medical decisions out of the litigation process. Until there is a judicial determination that the UR/IMR process is unconstitutional (and the Stevens case has already resolved at least one constitutional argument in favor of the process) or the legislature makes changes (unlikely given this research), this is the system we have, and need to work within.

Defining Temporary

A vexing question that some jurisdictions have addressed statutorily is, just how long is "temporary," as in temporarily totally disabled, for purposes of indemnity payments while recovering from a workers' compensation injury.

By the very simple universally accepted definition, temporary means lasting only a period of time - what that time is, however, is not universally accepted.

Washington DC, Virginia, Indiana and South Carolina have 500-week caps on "temporary" benefits.

That seems generous compared to California,Texas and Florida, which have the shortest periods of TTD, cutting off benefits at the 104 week-mark (California makes an exception for certain types of injuries where the cap is doubled).

The limit in Florida is before that state's supreme court after the First District Court of Appeals ruled the limitation constitutional, and that St. Petersburg firefighter Bradley Westphal could seek permanent total disability benefits when his TTD ran out.

The California Workers' Compensation Appeals Board issued an en banc decision saying that an employer or insurer must start paying permanent disability benefits based on a reasonable estimate of an injured worker's ultimate level of permanent disability if the applicant has exhausted his 104 weeks of eligibility for temporary disability benefits.

In contrast, the Wyoming Supreme Court last June invalidated an administrative rule that limited temporary total disability benefits to 36 months.

Last week the District of Columbia Court of Appeals ruled in Clement et al v. District of Columbia Department of Employment Services that the 500 week limit for "any one injury causing temporary or permanent partial disability" applied to injured workers who are temporarily totally disabled.

Royston Clement and Marie Eason had argued that the plain language of D.C. Code Section 32-1505 (b) indicated that the 500-week limit applied only to temporary partial disability benefits and permanent partial disability benefits.

The Compensation Review Board said the statute was ambiguous, but concluded that lawmakers had intended to set a maximum length of time during which an injured worker could recover benefits for both total temporary and permanent partial disabilities, thus the 500-week cap applied to Clement and Eason.

The appellate court agreed.

500 weeks - that's 9.6 years of being "temporarily" disabled.

One of the major tenets of workers' compensation law is that there be "certainty."

The employer needs to have certainty as to its (or it's insurance company's) liability.

The injured worker needs to have certainty about an income stream.

Neither can be certain if there's never a resolution for a temporary situation. At some point a line has to be drawn, a boundary set, a definition in place that reasonable people can rely upon so the next chapter in a workers' compensation case can be written.

Setting a time limit on a temporary benefit may seem arbitrary, and certainly there are going to be people on the back end of the curve that don't fall neatly within the proscribed period - the unfortunate thing about workers' compensation, or for that matter any sort of benefit system, is that it can not be all things to all people all the time.

I keep going back to the original "definition" of the Grand Bargain established by the United States Supreme Court back in 1917 - "reasonably just substitute."

In a civil case, there is no accommodation for temporary total disability. There is simply a verdict and it might include components for lost wages, pain and suffering, and other sorts of "common law" components that we, as a society, have deemed appropriate when there is a "loss."

The US Supreme Court, in NY Railroad vs. White, said certainty was a key element of determining whether workers' compensation is a "reasonably just substitute" and that certainty applies to both employer and injured worker.

That workers' compensation sets for a different standard for "damages" with categories of disability: temporary partial, temporary total, permanent partial and permanent total. These substitute for wage loss, and to some degree pain and suffering in as much as disabilities that have permanency are typically paid in accordance with some sort of schedule.

At some point in the duration of a disability it must cease to be temporary. Perhaps a medical condition has not yet stabilized after nine and a half years - well life is never stable. There is never permanency to life - it is dynamic, ever changing.

The only permanency is death.

And there's a payment schedule for that too...

Conspiratorial Profiteering

Does the amount of kickbacks for patient referrals in a specific geographic area correlate to higher medical utilization and severity costs in that region?

Recall that in past studies over just the last couple of years, the California Workers' Compensation Institute pointed out that the Los Angeles metropolitan area was responsible for an inordinately high amount of medical costs in the state.

Also, recall that certain medical vendors, some who have been in the workers' compensation business for quite some time, have admitted to participating in a referral kickback scheme in connection with Michael Drobot, Pacific Hospital of Long Beach, and others related to what has been called the biggest fraud scheme in California.

It turns out that, yes, there is a correlation between kickbacks and higher medical utilization and severity.

WorkCompCentral conducted an analysis of liens in the California Electronic Adjudication Management System and determined that Philip Sobol, MD, who recently admitted to participating in Drobot's scheme, alone was responsible for 13,766 liens filed under his company name since 2005, with a total claimed value of $85.6 million.

Another $1 million was filed under his name personally.

Over the same 10-year period, at least 1,505 liens were filed under the name of Griffin Medical Group, owned by chiropractor Alan C. Ivar, with a claimed value of $6.7 million. Ivan also admitted to participating in Drobot's game.

Both Sobol and Ivan have agreed to plead guilty to conspiracy charges.

The combined $93 million represents a big chunk of the $580 million that prosecutors say was fraudulently bilked from the work comp system over the years by the Drobot cartel.

Interestingly, the plea agreement between prosecutors and Sobol included a statement that the stipulated facts are not intended to indicate that he provided any patients with "substandard medical care or that any treatment he provided or prescribed was not medically necessary."

Who are they trying to fool? Sounds to me like lawyerese nonsense intended to downplay the incredible greed of someone addicted to $70,000 to $130,000 per month in "fees" from Drobot-controlled entities.

My guess is that Sobol is trying to protect some of his ill-gotten gains from sure to follow patient lawsuits for malpractice.

A little bird told me the other day that Sobol was also the number one source of Independent Medical Review antagonism, writing on average 9 letters per day contesting the utilization review denials of his treatment requests.

Nope - no substandard or unnecessary care.... Sure.

The National Council on Compensation Insurance just recently released a study across its covered states on medical treatment utilization noting wide disparity in geographic zones for specific injury codes under a "common fee" analysis to account for fee schedule (or none) discrepancies.

NCCI found that certain states had much higher utilization than other states.

The study authors don't offer any explanation, but speculate that treatment guidelines have something to do with this phenomenon.

Certainly, based on California's experience, conspiratorial profiteering by unscrupulous medical vendors should also be entertained as a reason.

My Dream

In just five days hundreds of people from around the nation will gather for the Fourth Annual WorkCompCentral Comp Laude Awards and Gala.

That's a mouthful of a title for a dream I've had for some time - get as many different workers' compensation interests together into one space for just an evening, and recognize what goes right with work comp.

I know it sounds Polly-Annish, and perhaps it is just wistful thinking; the hope is that if claims executives meet the subjects of benefit distribution; if the medical community meets the employers that pay into the system; if lawyers meet service providers; if government meets vendors ...

That if everyone that has anything to do with workers' compensation all get together for one day, one evening of recognizing that there are good things that can happen with the work injury protection system(s), stories will be told, messages will be heard, understandings will occur - and maybe, just maybe, people will work towards the common good for the sake of society, rather than for individualistic opportunism.

I'm not completely naive. I know that one night of education, camaraderie, and celebration isn't going to solve the problems we face in workers' compensation.

But it's a start.

Every conference I go to around the nation there is a recurring theme: silos.

Each independent interest in workers' compensation has their own conference or two.

Attorneys that represent injured workers have their own conferences;  Employers have their own conferences; Physicians and the medical community have their own conferences; there are even smaller gatherings for regulators, special vendors, researchers, insurance executives, and sub-specialty gatherings.

Even the single biggest gathering of broad workers' compensation participants, the annual WCI Conference in Orlando, FL every August, is still a hegemony of special interests - there are a dozen different education tracks that cater to each of the silos but none that speak to everyone.

Each of these conferences and seminars come with content specific to the interests of their singular groups, each of them focused on how to take advantage of some aspect of the system or law to minimize costs or maximize outcomes.

Not one of these gatherings includes injured workers. Many include their representatives, but that faction again speaks to their own interests first, and the needs of the beneficiaries second. And not one of them tells success stories.

For every story of failure, grief and hardship that we read about in the general media, there are dozens of stories where individuals go above and beyond to good outcomes, and sometimes these stories are of compelling, remarkable accomplishments.

Comp Laude is the only event where everyone from all segments of workers’ compensation are not only welcome, but encouraged, to attend and participate: executives, injured workers, claimant attorneys, defense attorneys, doctors, case managers, claims adjusters, researchers - you name it. 

My goal is to get EVERYONE under one roof at a nice event where people actually TALK AND LISTEN to one another, hear the stories, and understand all the diverging points, conflicts, interests, and perhaps, come to some understanding as to why certain things are the way they are.

At a time when workers' compensation, as a system, is under attack from the general media, the public, and lawmakers, it's important that we come together.

We don't have to change the way things are, and we don't have to solve all that ills workers' compensation.

We just need to come to a collective understanding of why things are the way they are.

It is my hope that we will, with Comp Laude, eventually help shape policy for the future that benefits all of society. 

It’s a big mission and a big risk.

But the dream is compelling to me. That dream drives me like a locomotive pulling a train, a long train filled with many people on a singular destination.

Some may disembark, some may never get aboard. Those that do ride along, I know, are aligned with that dream - that the single largest privatized social benefit system in the world can not only work, but work well, protecting people and businesses and provide stability to the economy.

We've made it easy for YOU to attend. We have special pricing for injured workers and claims examiners. We have deals for professionals that are members of recognized associations (nearly all of them!). Bring a Toy for Tots and there's a discount.

We're all in this thing together. We need to recognize that, if for only one night.

Thanksgiving Letter

Good morning and Happy Thanksgiving Children - 

It sure seems weird calling you two adults “children.”

The funny thing, though, is no matter how old you two get, and how old Anne and I get, you’re still both our “children.”

Which is why this holiday, the first without the “children” at home, seems so different.

Yes, the birds have feathered, matured, and flown the coop - but the coop is still in place, ready for the flock to return!

I slept in today, have had a cup of coffee, it’s 40 degrees outside (bragging, Nichole) so I’ll wait for the sun to arise before alighting on my bicycle to put in the day’s miles - and along the way I shall think of all that I have and am grateful for.

Not the bicycle, not the airplane, motorcycle, cars, house, business, and properties - but my wife, my children, and the future children that will come into my life.

Anne and I were doing the old person’t thing last night - recalling all the people that we have known, and who are no longer with us. It’s astounding, when we took the time to think about it, to realize how many people we have known that have died, and most of them prematurely so (at least by Census Bureau statistics).

I got home early yesterday to lunch with Anne - delicious BLTA sandwiches (the only thing missing were fries) - and then a little motorcycle maintenance (change the oil) and then a little motorcycle ride. Not far, maybe 45 miles up Deer Creek and down Yerba Buena, then home. 

The tires are worn, so handling was a little squirrelly, and there was more traffic than I was used to in the canyons, but it was as fun a ride as ever. It was clear, and chilly, and the wind whipped me around a bit on Pacific Coast Highway.

Did a couple of wheelies (I can almost get from first gear to second gear with the front wheel in the air - but I have a lot more work to do on that!), burned through a couple of turns, skidded the rear wheel a couple times into bumpy corners like a motocrosser; it’s amazing how such a simple little relatively inexpensive toy (remember, I got The Sewing Machine for less than three grand) can bring such timeless happiness.

And that’s what I want you to remember.

We give thanks for all the wrong reasons. Sure, we’re happy to be alive when so many of our friends and family can’t experience Thanksgiving Day, 2015. Sure it’s nice to have a job, and hopefully it’s a meaningful job that gives us purpose rather than just a paycheck. And it’s great to have all the things I worked hard for that complete my physical being.

But what I’m really thankful for is that I have the ABILITY to be happy. Happiness is an individual CHOICE. We can choose to be happy, or we can choose to be miserable and intolerant.

I went for the short motorcycle ride yesterday afternoon because I knew it would make me happy. It did!

Anne makes me happy.

Usually you children make me happy, but sometimes, admittedly, you make me frustrated.

And that’s all good - because at the end of the day, whether I’m frustrated or happy is a matter of MY CHOICE.

So when you sit down at your Thanksgiving Day meal today, give thanks that you have the CHOICE to be happy or not.

We love you (and your future children).

Happy Thanksgiving Kids!

Dad