Neuropsychology and QMEs

I think my first real experience with traumatic brain injury was when I was about 8 years old. My younger brother and I were having a rock fight because that's what we did when the parents kicked us out of the house (which was all the time). My brother was across the street - a good 30 to 40 feet away. Neither of us ever figured we would actually hit each other... I had just finished my shot when, "WHAM," I took a stone right between the eyes. Lots of stars. Little bastard...

But my experience with TBI didn't stop there, because I was an "active child" (okay, hyperactive, but at least my parents didn't put me on Ritalin, like my brother).

I was around 12 years old when, racing bicycles around my friend's yard, I lost traction around a corner and slammed my head against the asphalt. I was wearing a "helmet" but back then it was just a stupid piece of plastic with no polystyrene lining that didn't provide any force absorption. My glasses broke and I got an "asphalt tattoo" in the side of my face that I still sport. My head went "ding, ding, ding."

There were a couple more minor episodes of head trauma as I grew up but nothing notable, until law school.

During my first year in law school I had taken a bicycle ride from our rental in Trancas Canyon to Venice Beach. Along the way, in the big parking lot adjacent to Santa Monica Beach, I was pulling an epic wheelie on my highly modified, race ready, cruiser bike. My feet were strapped into the pedals, and of course I wore no helmet. I carried that wheelie for hundreds of yards, then over-spun and failed to feather the back brake in time, and looped it. WHAM! That one hurt, right on the back of the head.

That incident happened about 8:30 a.m. The next thing I remember (amnesia took away most of that day, though some memory of it did return) it was about 4 p.m., I was sitting on my bike in that same parking lot and my head hurt. I felt the back of my head with my hand and it was bloody. "Hmmm," I thought to myself, "this isn't good." I figured I'd better call home for someone to pick me up.

I pedaled over to the closest pay phone, and dialed, and dialed and dialed and dialed... I couldn't remember my phone number! I couldn't remember the names of my roommates to get directory assistance. I panicked. I just started punching the keypad hoping some pattern would emerge that would get me connected. Fortunately that worked, my roommate Lydia panicked as well, told me to stay put, and she got me an hour later and took me to the hospital for a couple of days in ICU.

Later that same first year of law school I was surfing Zuma Beach before class - it was going off! Big, deep, shore-break tubes with perfect shape. Spicoli had nothing on me! I slipped into a barrel, and the curtains came down - next thing I know I'm spitting sand out, my board had a huge, head-shaped ding in it, and my ears were ringing like I was a General Telephone appliance.

I sat on the beach for quite a while after that because I couldn't focus, and my head really hurt. I remembered I had class: Contracts with Professor Keyes, who was nearly identical in looks and demeanor as John Houseman's character in Paper Chase. I was late! Don't ever, ever be late to Keyes' class!!! I raced to school, and in retrospect I shouldn't have been racing anywhere, let alone driving.

Class had been in session a good 10 minutes before I walked into the classroom, and when I did all 200 pairs of eyes in the lecture hall, including Professor Keyes, were on me. Gulp... Miraculously, although the entire class halted, Keyes didn't call on, or otherwise embarrass me. I found my seat, next to my good buddy and eventual roommate, ET. He was laughing at me when I said, "Dude, take notes for me. I'm all F'd up..." But ET wouldn't stop laughing.

"What's so funny dude?" Turns out not only did I have sand all over my face and head still, but I even had seaweed hanging off my head.

There's plenty more head injury stories where those came from, unfortunately, or fortunately, if someone wants to talk to me about TBI because I have a lot of personal experience!

One of the very few medical specialties that knows how TBI works and affects people is neuropsychology - the interaction of brain malfunction on cognition and behavior - it is the only specialty that knows how to objectively assess for cognitive impairment.

There is controversy over whether neuropsychologists should be available as a separate sub-specialty in the California Qualified Medical Examiner selection process. The Division of Workers' Compensation is removing the specialty as a separate Qualified Medical Examiner selection choice, but there is a bill pending in the legislature (AB 1542, Mathis, R-Visalia), that has passed virtually unanimously through the process, that would ensure neuropsychologists would remain available as a QME choice.

For more than 20 years, injured workers and their attorneys have been able to designate the neuropsychology specialty when requesting a QME panel. But that changes tomorrow, Sept. 1, under rules the Division of Workers' Compensation adopted on Aug. 12.

The regulations merge neuropsychology with psychology. Neuropsychologists will still be available as agreed medical evaluators, and they will be allowed to serve as QMEs, but getting a panel of neuropsychologists will be by sheer chance because they will not be separately designated.

The DWC said in its Initial Statement of Reasons published in March, when it introduced the proposed rule changes, that it was eliminating the designation because the Medical Board of California does not recognize clinical neuropsychology as a specialty.

The DWC announced its intent to adopt those rules on July 21, after AB 1542 was already passed unanimously by two committees in the Assembly as well as the full Assembly itself. The Assembly voted 79-0 to pass AB 1542 on July 16. There is no indication in any bill analyses that the DIR was opposed to the bill at that time.

But five days later, the DWC said it would adopt the rules eliminating the neuropsychology designation despite the pending bill.

And a week after that, DIR Director Christine Baker wrote a letter to Assemblyman Devon Mathis, R-Visalia, that the administration was opposed to the bill he co-authored with Assemblyman Ken Cooley, D-Rancho Cordova because the administration is concerned "the California Board of Psychology does not recognize neuropsychology as a subspecialty in psychology."

However, the California Board of Psychology defers specialty recognitions to the American Psychological Association, a national organization that certifies neuropsychology specialists. As a matter of fact, Neuropsychology was the first specialty to be individually and formally recognized by the American Psychological Association.

There is also an umbrella board certification group, the American Board of Professional Psychology, that recognizes neuropsychology as a unique specialty.

And, while plenty of other specialties could involve expertise, neuropsychology is the only area of expertise which allows for the objective assessment of cognitive impairment, according to folks I know in the field.

Noting the curious timing of the regulatory change, and the apparent attempt to have regulation trump legislation, Mathis wrote to Thomas Dyer, chief deputy legislative secretary in the governor's office, that, "It is immaterial that the AD may currently have a different policy."

Mathis points out in his letter that the Legislature has the power to create a workers' compensation system and workers' compensation policies, and that the administrative director can only adopt rules and regulations consistent with the policies set forth by lawmakers.

By the way, Mathis received the Purple Heart for a traumatic brain injury he sustained in 2008 while serving as part of a U.S. Army transportation unit in Iraq that was targeted by insurgents.

So I asked Christine Baker, Director of the Department of Industrial Relations, which oversees the DWC, what's up: Neuropsychology has been an option for 20 years, so why now? And what was the urgency in moving up the implementation date of the regulatory change from October to September? What's the big deal about amending DWC policy to provide for a nationally recognized accreditation rather than eliminate a choice?

Baker wanted to put the current controversy into historical context, indicating that any timing relative to AB 1542 was coincidental.

Baker explained that before her time as Director, in 2009, the overall QME regulatory process was reviewed and the DWC decided that it would be best to only authorize for QMEs specialties that were recognized by California medical boards. This was when chiropractic was, frankly, running amok in California. Consequently a large number of subspecialties not recognized by state boards were eliminated.

Baker said that neuropsychology was left in by error.

Then in April 2015, the division moved to automate the QME panel process. Since this is a state agency that move required regulatory action to implement. Consequently, the division decided to clean up the QME process to make it consistent with existing policy, which meant removing neuropsychology as a subspecialty.

Baker said it was at that point that parties interested in the issue went to the legislature.

In response to my question about limiting access to examiners who were particularly qualified to deal with TBI and other cognitive challenging injuries and disabilities, Baker said she thinks that in fact the move will provide better access to the public for the right kind of doctor; if we went by the legislative recommendation then only 6 QMEs would be qualified by the American Medical Association, and only 12 by other boards, for a total of only 18 QMEs total, as compared to 157 QME psychologists in total.

And if the California Board of Psychology wants to recognize neuropsychology as a specialty, then that would be a different matter.

Baker also argued that the treating doctor or a panel QME can request neuropsychology testing and interpretation when necessary so there should be no issue in making determinations on cognitive impairment; the parties need to ensure that the evaluating QME makes the request for testing when appropriate.

And, or course, nothing prohibits going to a neuropsychological Agreed Medical Examiner.

According to the analysis prepared for the Assembly Appropriations Committee, any costs related to the bill would be minor and absorbable. The Senate Appropriations Committee did not prepare an analysis of the measure.

So where do I stand? What do I make of this controversy?

At first I thought that maybe some powerful interest groups were trying to limit exposure to TBI disability claims, like perhaps the NFL. I think my imagination, however, was out of control; clearly that conspiracy theory doesn't play out well.

Maybe the numerous TBIs that I've experienced have denigrated my cognitive capacities. That is certainly a plausible theory, because after hearing all the arguments, reading the bill text, understanding the positions, I still don't get it ...

Frankly, I don't think it matters one hoot whether, or not, neuropsychology is an option in the QME panel selection process. It would be nice to get the right doctor at the right time for the right person and reason - but that's a crap shoot anyhow in the present system with or without sub-specialties.

In truth, this whole affair is looking at the finger that is pointing at the moon, rather than at the moon itself. We have a bigger mission to accomplish.

******CORRECTION******

The APA formally recognized the specialty of neuropsychology, but they do not certify specialists in neuropsychology or any other specialty.

Beacon on Disparity

A recurring theme at the 70 Annual WCI Educational Conference in Orlando, FL this week was the media attacks on workers' compensation.

General media has taken an interest in work comp. We've seen stories and anecdotes highlighting the bad this industry does to people in the Los Angeles Times, Baltimore Sun, Texas Tribune, New York Times, and many more.

The media rush came to a head earlier this year with the blistering series published by ProPublica.

The ProPublica series was principally about the disparity of treatments from one state to the next, highlighting the irrationality that one body part is "worth" so much in one state, and a very different amount in another.

The series showed that there was no uniformity, nor logic, to many of the state differences; why an indemnity rate may be so much more or less than a neighboring state, why there are wildly disparate waiting periods or statutes of limitations, why some injuries are covered in one jurisdiction and not another, even whether coverage is mandatory for certain occupations in certain states with certain employers...

There's no doubt that workers' compensation through the years has, as a consequence of its state by state implementation, been painted as failing to generate any predictable, stable medical and financial back stop for injured workers.

And that makes great stories, frankly. While people don't like to read about bad things, there's a human characteristic that is entertained by the odd, unusual, frightening, emotional illogic depicted in these stories.

There's a media funding foundation, Beacon, which operates on crowdfunding sources to provide finances to journalist interested in covering topics that the organization finds appealing. Beacon has partnered with ProPublica to fund further stories on how workers' compensation has degraded, state by state, over the years.

Lead ProPublica journalist, Michael Grabell, says it like this:

"With income inequality and economic fairness at the center of national discussion, workers' compensation provides the perfect lens for examining how the social compact has changed. It is one of America's first safety net programs.
...

"But as a ProPublica investigation has found, state after state has been dismantling its workers' comp system, denying injured workers help when they need it most and shifting the cost of work-related disabilities onto public programs like Social Security Disability Insurance.
...

"With more than 3.7 million work-related injuries and illnesses reported in 2013, these changes are hurting households across the country. But workers' comp legislation rarely gets significant news coverage, in part because it's such a bureaucratic system that varies state to state."

It's easy as an industry to get upset with this tactic. After all, essentially these journalistic sources are prescribing the recipe to follow, directing the story, facilitating a one-sided discussion.

And this industry reacts defensively, frankly further degrading the image of workers' compensation.

I'm a huge promoter of workers' compensation. The concept is fundamentally sound, and I still believe in its ultimate mission: spreading the risk of work injury so neither employer nor employee faces financial ruin in the event of a work place injury.

But over the course of 100 years the focus of that mission has changed; lenses became clouded with special interest cleaning: pitching one idea to lighten the load for one group or another, or tightening the reins on another - all in the name of controlling costs.

The seesaw of changes to the nation's workers' compensation laws, particularly over the past 30 years, invites examination.

There's a common theme to the direction that ProPublica and Beacon are going: federal oversight.

And frankly, the disparity in systems is an invitation to the feds. I still hold, despite denials, that the OSHA report documenting the various studies through the years that point out these discrepancies was not coincidental...

Some of the nation's biggest thinkers in the work comp space see it coming. These are insurance executives, legislative leaders, top scholars all saying (publicly and privately) that workers' compensation laws are so non-uniform that some sort of federal intervention would not be a surprise.

It wouldn't be hard for the federal government to interpose some standards by simply using Medicaid funding as the incentive: follow the Federal recipe or don't get the money - just like what the Department of Transportation did during the 55 MPH mandate.

While some may criticize Beacon's and ProPublica's mission, I have to support it: workers' compensation is rarely understood by the general public, much less than even known it exists. Any media attention to workers' compensation is, in my mind, better than none.

Workers' compensation is the single largest privatized social benefit system in the world.

It is an important piece of the American economy, and it should be a stabilizing factor to businesses and workers.

As Meg Dalton of MediaShift states, "workers’ comp law has a big potential impact, and backers will respond accordingly."

Will the reporting be fair and unbiased? Maybe, maybe not. But that's not our job in the industry. Our job should be to promote a fair and balanced SYSTEM.

The vast majority of us that work in this system do so because we recognize and appreciate that we can do good things for people in bad circumstances. We operate within the boundaries and restrictions that are provided. It's not up to us to change the law or make the law. Society tells us what to do and when to do it.

I urge you, as a workers' compensation professional, to be part of this reporting. We have a story to tell just as much as any injured worker.

We're not bad people. Workers' compensation is not a bad industry. 

We just haven't had a Beacon lighting the way for a long time.

Dog Day Discomfort

The Dog Days of Summer are here in full force. It was generally a hundred degrees with nearly 100% humidity every day of the 70th Annual WCI Educational Conference in Orlando, FL.

That weather yesterday produced flight suspending thunderstorms so many people got stranded in the Land of Disney, including WorkCompCentral staffers (but not me - I got out early in the morning before convective activity could propagate).

According to National Geographic, "dog days refer to the dog star, Sirius, and its position in the heavens," the publication states. "To the Greeks and Romans, the 'dog days' occurred around the day when Sirius appeared to rise just before the sun, in late July. They referred to these days as the hottest time of the year, a period that could bring fever, or even catastrophe."

Dog days followed me from Orlando to Southern California where, even at the beach of Hueneme, which is adjacent the deep, cold Hueneme Trench, night time lows have been unusually, and uncomfortably warm.

Dog days, as the National Geographic article points out, could spell catastrophe. I'm not saying that there's any catastrophe pending in California workers' compensation, but certainly an uncomfortable environment is brewing.

Workers' compensation is often called the "poor man's" or "working man's" dispute resolution system, particularly when a termination is involved.

Emotions are high when a worker, particularly a long time worker, gets terminated. Employment lawyers won't take the case because there usually isn't any civil cause of action in the at will employment environment of California law.

Consequently, "injuries" occur in cases that would not be filed by disgruntled employees in civil courts because of cost or procedural barriers.

Labor Code section 3600(a)(10) was added a few reforms ago to arrest the filing of post-termination cases, as they are called, where there is no objectively verifiable injury, as defined.

But a recent Workers' Compensation Appeals Board case seems to state that "injury" is irrelevant for filing purposes.

Samuel Polanco had been a long-time employee of West Coast, working as a painter. They parted on bad terms, when Polanco became upset about his son being laid off by the company.

West Coast fired Polanco for yelling at his supervisors.

Polanco lawyered up, and filed a cumulative trauma claim for injuries to multiple body parts. The carrier's attorney told WorkCompCentral Polanco filed his claim before even seeing a doctor.

At trial, Polanco produced no evidence he had ever sought treatment for any of his allegedly injured body parts before he was fired, and he admitted that he never reported any injury to West Coast.

The Workers' Compensation Judge found West Coast had no notice of his claim prior to his termination and that Polanco's claim was barred by Section 3600(a)(l0)(D).

The whole purpose of 3600(a)(l0)(D) is to bar claims of injury procedurally where there was no notice to the employer of any injury allegation prior to termination, which makes sense particularly in the context of when that code section was amended; prior to the amendment it was quite common for terminated workers to seek redress via workers' compensation so they could "stick it to The Man."

But the Workers' Compensation Appeals Board reversed Hughes last May, saying Polanco was not "disabled" until after he was fired, so based on the plain language exception found in Section 3600(a)(l0)(D) his claim could not be summarily dismissed.

The exception in Section 3600(a)(l0)(D) is, "The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff."

Section 5412 provides, "The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment."

The WCAB noted that it is uncontested that there was no notice of any injury prior to termination, and that there was no disability, allegedly, until AFTER Polanco was terminated...

Curiously, the WCAB ignores the portion of 5412 about knowledge, "either knew, or in the exercise of reasonable diligence should have known..." and the preponderance of the evidence standard.

The only evidence presented in favor of Polanco was a medical report that found Polanco permanent and stationary after date of termination - the WCAB does NOT say whether that medical report by a Qualified Medical Examiner (how did it get that far?) a) found injury, or b) found disability...

And the WCAB, I think, takes the 3600 exception out of context from the rest of that section, and takes the allegation of "disability" out of context with the facts of the case.

I'm all for injured workers getting compensation when they sustain an injury. And I understand using the workers' compensation dispute resolution system to air the grievance - it's cheaper than a civil suit.

But the WCAB got this case wrong.

It's on appeal to the Fourth District, which won't have a decision issued until the weather cools down a bit.

Dog days of Summer ... making things uncomfortable from coast to coast.

Fly The Claim

Four One Mike over the LA basin managing risk...

Heading back to California today from the 70th annual WCI Educational Conference in Florida, it's been a week since Bonanza Six Six Four One Mike has been in the air and it's been 8 days since I checked up on Mom.

Last week Mom was still dealing with a bit of pneumonia in the lower left lobe of her lung. She was happy as she normally is, and even referred to me accurately as her son (normally she gets this confused and I've been called grandson, nephew, husband, cousin ... everything but her son).

But Mom still had a bit of a cough, and still required oxygen because her O2 uptake without the supplement was in the low 80s.

My brother had stopped by a few days ago to install new safety cords to her hearing aids because the original installation had broken. He reported an otherwise "normal" Mom.

And of course, Four One Mike hasn't been in the air since then. I know she'll need a half quart of oil before I fire up that Continental IO 520 tomorrow; she may need some air in the tires, and the windshield will need a good cleaning. The GPS database needs its 28 day cycle update.

Otherwise I don't expect any surprises from Four One Mike - the pitch servo is still in Kansas for repair but once properly trimmed the plane flies hands off just fine and the pitch servo is only missed when doing an instrument approach (without a pitch servo there is no autopilot coupling to the vertical gradient, so it must be hand flown).

A couple of days ago the airport manager at Oceanside called and left a message that the left rear window was still open (doh!), but that there didn't appear to be anything amiss with the car I use to visit Mom after landing ... phew!

Here it is, well more than 24 hours in advance and I'm already thinking of what needs to be done to accomplish the mission of checking on Mom.

In our world, we would call this a part of risk management.

Risk management entails thinking ahead and making sure that contingencies are in place to deal with the unexpected. Certainly tomorrow things could go wrong. Part of this phase of risk management, however, is planning.

Planning is a primary and critical risk management technique. It is the basis of risk management.

Risk management isn't rocket science. Hell, it's barely science at all - it's mostly common sense. We have thousands of years of existence on this planet and there's not a whole lot of risk that hasn't yet been experienced by human beings.

The lessons we have learned over those thousands of years have been reinforced by experience. We have documented and chronicled the unexpected. We have studied those events. We have devised methods of minimizing such events in the future, and have strategies for dealing with them in case similar events do occur.

Risk management is, by definition, a conservative practice. It has to be because you can't manage the unknown; one doesn't experiment with risk.

Which is why I cringe when I see phrases touting, "Cutting edge risk management techniques."

That phrase is an oxymoron. There is nothing "cutting edge" about risk management. Being "cutting edge" strongly implies operating outside the norm, on the fringes of what is known and established.

Workers' compensation has no place for "cutting edge." We live in a very basic, fundamental world. Work place safety essentially means don't be stupid, and prevent other people from being stupid, or at least minimizing the possibility that someone will be stupid.

Flying epitomizes risk management, and trust me, there's nothing "cutting edge" about making sure planes don't fall out of the sky or hit things that break them.

The lessons have been learned and repeated, and get repeated thousands of times every day: planning, communication, decision making.

Fail any of those three fundamental risk management techniques in aviation and ... you die.

It's a pretty simple concept.

Pilots and airplane owners can make things complicated. We can get tangled up about operational details: manifold pressure readings at certain altitudes, propeller RPM, indicated airspeed versus angle of attack, comm one or comm two, ATIS reports, TCAD settings, frequencies, approach plates, departure procedures, etc., etc.

Lots of details.

But when something bad happens pilots revert to basic, fundamental risk management techniques and the single most basic those is, "fly the airplane."

"Fly the airplane." Simple, concise, easy to remember ... which is what humans need when panic sets in.

We panic a lot in workers' compensation. We talk about medical marijuana, opt out, reform, fee schedules, waiting periods, and other topics that induce industry anxiety.

We get all confused about "flying the airplane" in workers' compensation. We get hung up on the operational details: TTD, PTD, RTW, ACOEM, ODG, MTUS, MPN, QME, etc., etc.

Ugh ....

There's lots of "cutting edge" risk management techniques propounded by "experts" who sell products and services to keep the industry "cutting edge."

The reality is that all these cutting edge risk management techniques just increase costs because it takes away from just "flying the airplane," or in the case of workers' compensation, just paying the claim.

I know, I know - it's not that simple. There are rules to abide by, hoops to jump through, things to be audited, checks and balances ... all sorts of details to pay attention to.

I suggest that it IS that simple; that it doesn't have to be that hard. Is there an injury - yes or no? Does that injury require treatment - yes or no?

When a pilot "just flies the airplane" he or she makes binary decisions - yes or no. There's no time to consider whether the FAA might get mad or ATC might have an issue. There's no time to fiddle with gadgets, dials and knobs.

Everything is a yes or a no, broken down to the most simple, basic risk management fundamentals.

Tomorrow, I'll check flight conditions. My pre-planning today suggests that everything should be fine and within the capabilities of Four One Mike and its pilot.

I'm planning to fly Four One Mike. I'll check the weather and decide, yes or no, whether to go. I'll preflight the plane and then make a yes or no "go" decision.

I'm planning on seeing you tomorrow Mom! I'm hoping for a "yes" risk management decision, but hope you're not disappointed if it's a "no."

Freedom and Responsibility

The "Bloggers' Panel" convenes this afternoon at the WCI Annual Conference in Orlando, FL.

Attacked by a Mark Walls bobblehead!

Mark Walls of Safety National, Bob Wilson of Workerscompensation.com, and I will be talking about various issues such as medical marijuana, industry public relations, constitutionality of work comp, and all of the other usual, pressing issues of the day.

One of the topics we will be covering that's been hot in the press recently is the issue of the "sharing economy" and who's responsible for when someone gets injured.

This of course means talking about independent contractor versus employee status.

For most employers, this really means what the tax status is of a worker - 1099 or W2.

For us in workers' compensation this means whether the amorphous standards that are used to determine status are met with sufficient degree to meet one or the other.

Of course, shared economy companies have blurred even further those foggy standards.

Court cases are all over the place on the issue, because technology (whether digital or otherwise) is always ahead of the law.

What this really boils down to, however, is freedom of choice: can I hire who I want? can I work for who I want?

A recent Tennessee case illustrates this in another sense - whether an employer can discriminate in the hiring process against a job applicant whom the employer thinks may be a liability down the road.

There are many states that prohibit discriminating against prospective employees on the basis that one may have had a work injury in the past.

This doesn't mean that an employer doesn't discriminate on that basis - only that an employer will find another excuse to hire someone else. Most managers thusly are trained not to reference injury histories in their communications in the hiring process.

But a vice president at Hospital Housekeeping Systems noted in a memorandum that Kighwaunda M. Yardley was a "workers' comp claim waiting to happen," and he did not think it prudent to hire her.

Yardley had worked as a housekeeping aide at the University Medical Center for more than 14 years before suffering injuries to her shoulders and wrists.

She underwent carpal tunnel release surgery in early 2012 and returned to work in a light-duty capacity. The hospital placed her in a position in its materials management section in order to accommodate her medical restrictions.

Meanwhile, the hospital had entered into a contract with Hospital Housekeeping Systems for HHS to take care of its janitorial needs. The terms of the contract required UMC to interview the members of the hospital's existing housekeeping staff so that they could keep their jobs, as employees of HHS instead of UMC.

Once Yardley's doctor released her to return to work on full-duty, she told the hospital that she wanted to go back to her old job in the housekeeping department. The hospital told her to speak with HHS about transitioning over, the way her colleagues had done.

Yardley met with Michael Cox, a vice-president of HHS. He allegedly told Yardley that the company would not hire anyone receiving workers’ compensation benefits.

Cox is also the author of the damning memorandum.

Yardley sued HHS and lost at the trial level. The judge said this was a Supreme Court issue.

The Tennessee Supreme Court said that since an employment relationship had not yet been established that state law did not protect Yardley.

The law in Tennessee is that "job applicants and prospective employers may freely choose whether to enter into the employer-employee relationship," and while "[a]n at-will employee may not be fired for taking an action encouraged by public policy," the "failure to hire cannot be equated with termination of employment, as employees and job applicants are on different footing."

The employer-employee relationship "involves mutual acquiescence, and certain levels of trust and dependence are created upon its formation," the court explained. "Both parties have rights and responsibilities that naturally flow from that relationship and which are not present before the relationship is formed."

Since liability under the Workers' Compensation Act is premised on the existence of employer-employee relationship, the court said up until the relationship is formed, the act provides a worker with no protection.

Thus, because Yardley was "merely a job applicant" and not an "employee," the court said HHS had no obligations to her under the act.

This gets to the heart, in my mind, of what the controversy is with shared economy employment: someone wants a service, someone can provide that service, and whether both want to engage in some relationship is a decision that then takes on characteristics defined by contract (mutual acquiescence) and law.

In other words, the basis of all work relationships, at least in the United States, is consent. The employer is free to hire someone. The employee is free not to work for someone. Both have the freedom NOT to engage in a relationship.

When both exercise their freedoms TO engage in a relationship is when the law oversees it - first in contract, and then in law.

Problems arise when one or the other feels they are being taken advantage of, or when an expectation isn't met.

The difficulty with the law is preserving the freedoms that made America the economic powerhouse that it is, while protecting the people whose labor and service made it that way.

With freedom comes responsibility. The more freedom one has, the greater one's responsibilities are.

Sometimes we have difficulties accepting that reality.

Report First Aid

Three thousand five hundred miles away, at the Workers' Compensation Institute's annual workers' compensation mega-fest in Orlando, Florida, and I find out that Californians still don't have agreement on a) what a first aid injury is, and b) whether it has to be reported.

Employers don't like to report injuries. Well, most employers. Actually, employers don't like injuries is a more accurate statement.

There are some employers, of course, that have no regard for their employees, and thus don't want to report any injuries because they believe, rightly or wrongly, that doing so will affect their insurance premium. These employers seem to generally have poor management systems in the first place, if at all (recall the contractors in the news recently, going to jail for the death of a worker - that employer displayed a callous disregard for employees, and for any rules frankly, which is why the judge "threw the book" at them...).

But an issue has arisen in California over reporting of "first aid" injuries. The Workers' Compensation Insurance Rating Bureau wants carriers to report everything to them, including first aid injuries. State Compensation Insurance Fund had not been doing so, but capitulated to WCIRB desires in January of this year, and has issued a mandate to its insured employers requiring them to report those injuries.

This has raised a bit of a fire storm, because there isn't any law requiring the reporting of first aid injuries, and in fact the law implies differently.

California Code of Regulations Section 14001(a), "Reporting of Occupational Injury or Illness," and Labor Code Section 6409.1 both require every employer to file with the Department of Industrial Relations a complete report of every occupational injury or illness that results in lost time or that "requires medical treatment beyond first aid." The section defines "lost time" as absence from work for a full day or shift after the date of injury.

Labor Code Section 5401(a) defines first aid as a one-time treatment and follow-up visit for the purpose of observation of "minor scratches, cuts, burns, splinters or other minor industrial injury, which do not ordinarily require medical care."

But the WCIRB last year formed a working group to study the issue, because it was concerned that some employers were getting away with non-reporting, and because injured workers whose conditions deteriorate could experience delays or denials.

A summary of the small medical-only claims working group meeting in February 2014 posted to the WCIRB's website declares, "Neither the California Labor Code nor the standard policy contract provide for a first aid exception to the insured employer's responsibility to report a workplace injury or the insurer's liability to pay the cost of a workplace injury."

The summary also said the insurance commissioner's regulations in the Uniform Statistical Reporting Plan and the Experience Rating Plan do not have an exception for reporting first aid injuries.

All of this, of course, leads me to a story...  

The best job I ever had was while I was in college at a local mom and pops hardware store in Lemon Grove, CA, called, of course, Lemon Grove Hardware.

It literally WAS a mom and pops hardware store: mom was Dortha and dad was Olin. I worked there starting in my sophomore year at San Diego Great University, through each summer, until graduation. I learned about hardware of course, I learned about customer service, I learned about retail marketing, I learned about retail operations...

And I learned about workers' compensation.

I had "graduated" to fixing screen doors and was trimming screen material after an installation when the box knife slipped and I sliced my finger. I frankly didn't think much of it. Blood was all over the place but I quickly wrapped it with a shop towel and began finishing my work.

Olin was frantically concerned. I argued with him for probably 5 minutes about whether I needed stitches or that I was even injured. Olin insisted that I go to the doctor, and repeated that I need not worry about the medical expense because it was covered by something called "workers' compensation."

Workers' compensation - what a concept! I had no idea, probably like the vast majority of workers, regardless of whether they are fresh into the work force or experienced laborers...

So off I went to urgent care, took a couple stitches in the finger, and returned to the best job I ever had.

I did not return to the doctor afterwards. I removed the stitches myself (having probably way too much experience doing so with prior non-industrial injuries).

Frankly, Olin could have considered that "injury" something that would need just "first aid." I wouldn't have known any better and I personally didn't think that sewing up the wound was necessary. And regardless, my "medical attention" required only one visit to a doctor for a minor procedure.

But the point is that Olin wasn't thinking about his workers' compensation premium. He wasn't thinking the potential impact on his experience. He wasn't thinking about paperwork.

He was thinking of ME, his employee.

So what's the big deal about reporting minor first aid only injuries?

The WCIRB's particular interest isn't the employee, but acquiring data on all injuries for a more complete statistical picture. They have a job to do.

For the rest of us: It's not about the paperwork. It's not about whether the premium is going to increase. And it's not about whether the state or any agency or organization has statistics.

It's really about whether or not an injured worker is going to receive, or be denied, treatment and other benefits later on down the road.

If not reporting a first aid injury results in a delay or denial later down the road, then that's reason enough to report all injuries, regardless of severity (or lack of).

As risk management consultant and CompMetrics owner Bill Cobb noted in the WorkCompCentral story this morning, the effect of a small claim that only requires stitches would work out to a "rounding error" on an employers' X-mod.

First aid is an exception to reporting, and as we know, make exceptions and exceptions get abused.

Not all employers are like Olin.

All injuries, and claims of injury, should be reported, even if originally minor.

Just Wave Back

A simple wave from an airliner to a little boy may change that boy's life forever.

Reported out of an Albuquerque, New Mexico, news station, KRQE, is a heart warming tale of how a simple little act can make such a huge impression.

In July, 5 year old Hudson was at the airport with his grandfather, waving at planes as they taxied by. Hudson was getting discouraged because nobody was waving back.

Southwest Airlines pilot, Mike Hickey, noticed this as he was taxing his Boeing 737 to the runway, so he pulled a little closer than normal to the fence and he and his co-pilot opened the window and waved back.

Hickey told the station that he waved because he remembers being in Hudson’s shoes, waving at planes at Dallas Love Field when he was his age.

Trisha Hughes, Hudson’s mom, took a picture and posted it on Facebook with a thank you. Southwest saw it and decided to arrange a face-to-face meeting between the boy and the pilot.

Hudson says because of the wave, he now wants to be a pilot when he grows up. Hickey took Hudson into the cockpit of the 737 to show him "the office."

There are some professionals in the workers' compensation industry who "wave" to children every once in a while, and the impact on their lives is immeasurable.

I'm talking about the Kids' Chance charity.

You have likely heard of the organization. There is a national arm, and there are 29 state and regional divisions too.

Kids’ Chance mission is to provide need-based educational scholarships to the children of workers who have been fatally or seriously injured on the job. It's a simple mission, which is why it is so worthwhile.

And I believe that some of the scholarship recipients will find their way back into workers' compensation as professionals serving the industry. Some of this industry's top executives started their paths as injured workers so I have reason to believe that some of the Kids' Chance recipients will also find their "office" in our industry.

According to the Albuquerque news report, Hudson drew a picture of "the wave" and gave it to Hickey as a present at their meeting.

“It’s for my pilot,” Hudson said. “Because he waved at me and that was really polite.”

Waving back. It's a simple, polite, act that can change a person's life.

Share This!

Here's the broken record: nobody likes or wants workers' compensation insurance until something bad happens and there's no alternative to incurring the liabilities or damages by one's self.

Two cases in California (one in LA and one in SF) involve Uber employees explicitly and exclusively seeking workers' compensation coverage because they sustained injuries from passenger violence and lack any other means to have their injuries or disabilities taken care of other than out of their own pockets.

Uber driver Omar Zine filed a complaint in Los Angeles County Superior Court Friday, Zine v. Uber Technologies, for injuries sustained Dec. 14, 2014, when he picked up two female passengers and a fight broke out. The women punched and hit Zine in the head, knocking out teeth and fracturing his jaw.

Zine's medical care, performed at Cedars-Sinai Medical Center in Los Angeles, allegedly cost more than $100,000, including dental work and cosmetic surgery. His attorneys say there is permanent disability because his jaw "is not properly aligned."

Zine’s attorneys have noted that a similar case, Abdo Ghazi v. Uber Technologies, has been filed in the San Francisco Superior Court and requested class certification.

Because Uber treats its drivers as independent contractors, it doesn’t carry workers’ compensation insurance for them, nor does its automobile insurance cover the drivers.

Being an Uber driver (or any public transportation driver) carries a relatively high occupational risk.

According to a fact sheet the U.S. Occupational Safety and Health Administration published in 2010, taxi drivers are 20 times more likely than other workers to be murdered on the job. From 1998 to 2007, OSHA found that the homicide rate among cabbies ranged from nine per 100,000 drivers to 19. For all workers, the average homicide rate during that time period was 0.5 per 100,000.

Certainly there are issues beyond workers' compensation that impact a business' decision to classify workers either independent contractor or employee - these issues model overall labor law classifications of exempt (those not subject to overtime and other wage laws) versus non-exempt (hourly workers typically covered by rigid work rules).

And perhaps the true remedy for the new economy is to create a third classification, the Dependent Contractor, blending the two models where there is shared risk between the worker and the company, but increased freedoms to both.

There is no reason why the insurance industry could not come up with products that meet the needs of both the company and the worker for a shared economy business, but that's not going to happen until the risks are more well defined and that takes a change in the law.

As we know, the law moves slowly and in the case of creating a Dependent Contractor status, time will be needed to think through the ramifications, from liability for certain expenses or risks, to taxes and how to collect them.

The vast majority of working people (and frankly business people) have no appreciation for, understanding of, or demand for, workers' compensation insurance until an injury occurs, and the responsibility for paying can't be transferred to somebody else.

Then, all of a sudden, the despicable and horrible workers' compensation system is desired.

Share that!

Opt In vs. Opt Out

The issue of alternatives to workers' compensation is volatile and emotional.

There are die-hard workers' compensation advocates and even if they disagree on whether workers' compensation is working or not, they do band together when arguing against opt-out proponents.

Those who pitch alternative benefit systems are vociferous in defending their ideals, saying the costs are lower to business, the results are better for employees, and they like that government largely stays out of the way.

I'm a firm believer in market economics. A free economy means that ultimately the consumer benefits because there's always someone around the corner that will provide goods or services better, faster and cheaper.

When "open rating" was first introduced in California around 1992 I bought in. It made sense to me that market competition would result in lower prices for insurance to the business consumer, rather than having the government dictate the least that could be charged (i.e. a floor).

What I didn't appreciate is that workers' compensation in California, nor most states, is NOT a free market; it is a captive market. The government says, with rare exception, that an employer must be covered for employment injury risk.

A free market would not impose that condition.

The only free workers' compensation market in the United States is Texas. Neither employer nor employee need "subscribe" to the system, and indeed, neither need to have any protection whatsoever, and can "go bare."

Even then, Texas had its share of problems controlling work injury issues. Until that state's historic reform in 2004, Texas employers suffered higher than average premiums for workers' compensation insurance. Bigger businesses could afford to put together alternative benefit plans, but small businesses with fewer resources weren't as able to adapt.

A few suffered the consequences...

The opt-out movement has been heating up with moves into Oklahoma and Tennessee, and it is being pitched at other states.

There are two issues that opt-out opponents really have to alternative systems: 1) disputes are governed by arbitration clauses and the employer controls that process, putting the employee at an unfair disadvantage; 2) when employment ends, so too does the employer's obligation to take care of the injured worker.

Neither of those are trivial, in my mind.

The employer for the most part has an unfair bargaining advantage over most workers - employer has the money, employee needs the money... And most employees don't think they'll ever get hurt at work. And even if they might appreciate the risk, they don't generally think of any protection in such an event.

Proponents say that opt-out plans are actually better for the employee because they eliminate a lot of the game playing, take lawyers out of the equation, and provide a better return-to-work result. That may be, but I don't know. I have never seen any study that supports those arguments. I have seen anecdotes, but nothing that has been academically reviewed.

The only research that I can recall that comes close to reviewing opt-out in Texas was by Stanford Law School professor Alison Morantz.

Her work, "Opting Out of Workers' Compensation in Texas: A Survey of Large, Multistate Nonsubscribers," found near universal praise by non-subscribing employers for Texas alternative plans because of the huge cost savings over traditional workers' compensation.

But unfortunately Morantz' survey did not delve into injured workers' opinions or experiences.

And I don't know of any studies that do so other than the Texas Department of Insurance surveys, which don't provide statistics on whether or not injured workers actually fare better (or worse) under opt-out than regular comp.

Here's what I DO know - any employer that doesn't have something in place to take care of workers hurt or killed on the job is not only risking itself, and its workers, but risking the entire community in which it does business. One need only look to West Texas, and the decimation to the local economy there following the explosion of a "bare" fertilizer plant a couple of years ago, to understand that some form of occupational injury protection is necessary for a vital economy.

Argue as we might about opt-out versus "traditional" workers' compensation, the fact is that we can all agree that the modern economy requires some form of work injury protection. We can debate all day long about its form (heck, we all seem to disagree even as to how work comp itself should operate!), but any notion that there need not be something in place is purely fodder, and the subject of Bangladeshi politics...

Work Is Not A Neutral Risk

Life is a risk - embrace it, don't dispute it.

Workers' compensation is supposed to be a "no fault" system. The basic concept is that if you get hurt at work then you get benefits.

It is amazing to me, though, how many states introduce fault as a concept. A recent Illinois appellate case is a prime example.

The Illinois Appellate Court last week ruled against an employer and said that a welder who injured his knee while pivoting on the wheeled stool he used at work was entitled to benefits.

The employer argued that using the stool was not a peculiar risk and that activities associated with "daily living" aren't supposed to be the subject of workers' compensation.

Illinois law provides that workers "should not award benefits for injuries caused by everyday activities like walking, bending, or turning, even if an employee was ordered or instructed to perform those activities as part of his job duties, unless the employee’s job required him to perform those activities more frequently than members of the general public or in a manner that increased the risk."

This is the "increased risk" doctrine that several other states embrace.

The "increased risk" test was the prevalent standard for compensation in the United States 40 years ago, but most states use "positional risk" standard, which applies a presumption that an injury "arises out of" employment if it occurs while the employee is at work. The reason is that the benefit of greatly reduced litigation outweighs the risk that once in a while a non-legitimate case gets through the system.

In Adcock v. Workers' Compensation Commission, Adcock injured his right knee on the job, and his doctor imposed limitations on his ability to twist, kneel, or walk extensively.

In order to accommodate his restrictions, Knaack, Adcock's employer, provided him with a wheeled stool so he could move about his workspace in a seated position. I have to commend Knaack for this proactive return to work accommodation.

Adcock said he was constantly moving along the length of the workstation on the stool, and swiveling from side-to-side, as he worked.

He said he was unable to maneuver the stool using his right leg because of his knee injury, so he always had to use his left leg to propel the chair.

Adcock said he felt his left knee "pop" while he was twisting towards his work station in May 2010. His doctors later determined he had torn the meniscus in his left knee.

The arbitrator determined this injury was compensable.

"Conducting welding duties from a rolling stool would simply not be a risk to which the general public would likewise be exposed," he opined.

The Workers' Compensation Commission reversed, finding "(t)he act of turning, even in a chair, is an activity of everyday life," so it was "a hazard to which the employee would have been equally exposed apart from the employment."

The Circuit Court judge upheld this decision, but the Appellate Court on Friday reversed, finding compensability.

Presiding Justice William Holdridge wrote for the majority.

He noted that the act of turning while in a seated position is "an activity of everyday life" which is regularly "faced by all members of the general public."

Thus, he said, it was not “distinctly associated” with the Adcock's employment, and an injury from engaging in this act would only be compensable if something about Adcock's job exposed him to a risk of harm that was greater degree than the risk faced by the general public.

Since Adcock performed his job duties under time constraints, and his job duties undisputedly required that he be constantly moving in his chair, Holdridge reasoned Adcock was moving the chair more frequently than members of the general public would, which increased his risk of injury "both quantitatively and qualitatively."

Under such circumstances, Holdridge said, Adcock clearly confronted a neutral risk of daily living to a greater degree than members of the general public by virtue of his employment.

The ruling comes at a unique time in Illinois work comp history as political activity is focused on a more refined attempt at amending the system. Business leaders want cheaper work comp insurance. Labor wants better protection. It seems both are losing right now.

I don't know the specific statistics, but my educated guess is that litigation is a major contributing cost factor to the Illinois system. Litigation arises out of disputes. One big dispute is whether or not an injury arises out of and occurs in the course of employment.

As I said, in most states, with rare exception (such as horseplay) if one gets hurt at work then benefits are due; i.e. "no fault."

A concurring opinion was written in the Adcock case, which I think explains why having any sort of "risk" qualification increases disputes, which thus increases costs.

As the concurrence noted, "almost everything we do at work, we can do at home," but the difference is at work, "you are doing what employer hired you to do," so an injury in the course of engaging in that activity should be compensable.

If Adcock's employer didn't want to take on the risk that he'd hurt himself using the stool, then it could just pay total disability benefits and let Adcock stay home, the concurring opinion stated. But the employer "asked him to come to work an tool around on the seat" doing as much work as he could despite his medical restrictions, and "they got what they bargained for."

It's too bad that Adcock got hurt during a work accommodation. Knaack did the right thing, and I can understand the frustration. But sometimes bad stuff happens. The goal of work comp gets defeated when fault is introduced, and the Illinois standard creates its own extraneous costs by creating disputes when none should exist.

Disruption

Some time ago I expressed that Google's foray into automobile insurance was the start of a new trend of disruption - the automation of insurance.


Insurance is highly data driven. The insurance industry was one of the first business lines to hugely embrace computing. The investments at the early onset of the Information Age were huge, and the technology that was bought back then paled in comparison to what a dollar can buy now, which of course will pale compared to what a dollar can buy tomorrow.


The Information Age impact on insurance is going to be even more broad than just a technology company jumping into the space, or an insurance company upgrading its information systems.


This is evident by the strategy outlined in Patriot National's last investor conference call, where the company said it is more of a technology company than an insurance company, and wants to be an employer's one stop shop for risk management and cost control.


“When you look at the services we offer to employers, from workers' compensation to self-funded health plans to background checks and drug testing, what's important is that they all are mandatory or becoming mandatory for employers,” Patriot National CEO Steve Mariano told investors during the call.


Two years ago Patriot National was a subsidiary of a larger insurance company and had become entangled in efforts to chase down unpaid workers’ compensation premiums from professional employer organizations.


Since then, the company became a separate public entity, and went on an acquisition spree, buying 14 companies that it felt would assist in building this dream company - more than insurance; a company that uses data and big computing to deliver information resources to the customer as a primary source of risk management.


Oh, and there's some claims assistance provided too just in case risk management didn't quite work for a particular instance.


The data drive is key and I think the strategy that Patriot National is undertaking is the future of workers' compensation.


We're already heavily invested in data - data has been driving workers' compensation from the beginning: payroll, loss experience, billing codes, etc.


What is different is that data is now being used much more proactively. In the past, data drove retroactive decisions. An accident occurred, and decisions were made based on what should happen given any particular set of data.


For instance, Mariano pointed out during the conference call that one of its acquisitions, InsureLinx, allows workers’ compensation policyholders to pay premiums based on real-time information instead of projected payroll.


In addition, insurance decisions are much more holistic, involving facts, circumstances and attributes that aren't necessarily workers' compensation. Patriot National seems to recognize this, going from zero non-workers' compensation premiums 2 years ago to an anticipated $750 million.


This could be a harbinger to the overall workers' compensation context: not only is there overlap with other lines of risk and insurance management, but a likely consolidation of systems, at least at the employer level.


Yes, I'm talking about systems that blur the lines between general health and workers' compensation medical treatment, between non-occupational disability coverage and work comp disability.


“I think the (property and casualty) sector in general is a laggard when it comes to the integration of technology, at least relative to financial services,” Charles Sebaski, a financial analyst for BMO Capital, told WorkCompCentral in an interview. “And I think Patriot National ... identified a niche, which is work comp, which is a very large, very fragmented market, but it's also ... very latent with paperwork and (regulation) to a greater degree than other lines of business. I think those elements — the greater regulatory burden, because of its medical insurance or medical case element to it — to a greater degree is in more need of technology to help take care of some of that administrative side of the business.”


The Information Age is really the Disruption Age. We have seen many industries succumb to big changes. Those that ignore the warnings suffer consequences that sometimes can not be overcome. Those who are paying attention, though, profit immensely.


Patriot National is a story that is going to be repeated over and over as the industry responds; and it's my prediction that this will drive legislation in favor of integrated services. Yes, there are differences between workers' compensation and general health.


Nothing, in my mind, that can't be engineered out.

Disheartened on a Friday

I hope Bowzer doesn't succumb to temptation...

It's an unfortunate, but all too real, headline.

"Applicants' Attorney Allegedly Paid $110,000 in Kickbacks," is going to draw a lot of attention to WorkCompCentral today and probably for a few days into next week.


I'm not going to detail the allegations - that's what WorkCompCentral gets paid for (yes, this is premium, independently sourced content).


But the lead paragraph says it all:


"The U.S. Attorney's Office for Northern California expects to prosecute an applicants' attorney for his role in a scheme involving an allegedly corrupt union boss, kickbacks for client referrals, banking violations, laundering proceeds from medical marijuana dispensaries, tax fraud schemes and even the infamous Hells Angels, according to documents unsealed Wednesday by the U.S. District Court for Northern California."


The story details an exhaustive scheme that just grew and grew and grew - greed spreading like ivy up a wall. Eventually there's no more wall to grow on. When that happens the ivy spreads on the ground, consuming everything in its path until someone comes along and trims it back.


It's not that a lawyer was involved in a corrupt enterprise - that happens all the time, in all sorts of legal specialties (and some not so special).


It's not that a union boss was the lynch-pin in this ongoing criminal venture either - those sorts of things date way back, unfortunately, into union history and span the nation.


And it's not that fraud is at the center of all of the various allegations made by the U.S. Attorney's Office - we read about fraud all of the time in workers' compensation, across all segments.


No, the disappointment I felt when I got up this morning to read that headline was tied to my belief that workers' compensation can and does good for society - and that there are people that take advantage of the benevolent nature of the system to cheat others hits hard when the profligate greed associated with all of the schemes involved is so pervasive.


I work really hard at telling the world about workers' compensation. We're not perfect, far from it. But I truly believe that the vast majority of us working in the system are here because we have found our calling.


We have rules and regulations, we have boundaries of operation, we have people that need to be served, and we have a system to preserve.


There are people that are dependent on workers' compensation to help get their lives turned around. Sometimes we fail at that mission. Sometimes we have resounding successes. Most of the time everyone just does what they need to do for their contribution to the system.


But it's the wild antics of a few who failed social studies in grade school, whose consciences are very, very small, and whose narcissism overrides any sentiments of guilt.


In criminal psychology circles, those people are known as anti-socials. They have no respect for rules and regulations because they are above them. They serve only themselves.


Certainly society is full of anti-socials in nearly every slice of humanity. That's why we have a criminal justice system.


The attorneys for those accused are likely strategizing damage control, and working hard now to reduce the exposure of their clients. If there's any sense of remorse, which I would not expect with an anti-social, we'll see some sort of apology from the perpetrators.

I don't hold out much hope for that, and unfortunately we all know there's more where this all came from.


It's good that these busts occur. It's good that such schemes are exposed and publicized. It's good that bad people go to jail.


Nevertheless, it's disheartening. I'm going to try and not let this ruin my day, my mission, my goals.

Accepting the New Paradigm

This is guest post by Becky Curtis.

Becky was severely injured in an industrial, single person, motor vehicle accident. Her injuries resulted in signifiant disabilities and chronic pain. She attempted all of the usual pain management modalities for a few years. Nothing seemed to work.

Eventually she learned how to channel the pain away, and she learned how to teach those techniques to others, founding the Take Courage Coaching clinic.

This is a success story:

*****************

Mike* is a former construction worker who was injured doing search and rescue work.  Despite several corrective surgeries, he has suffered with chronic pain for 8 years, limited mobility, anxiety and depression, diabetes and high blood pressure. 

Pain the entire length of his body—the severest involving his leg—made it difficult to walk, climb, and carry things.  He could no longer work.  Furthermore, he had abandoned a healthy social life in order to hide his depression from friends.  He was no longer doing woodworking or fishing and camping—activities he had been passionate about.  He was referred to TCC by his disability insurance case worker for pain-management coaching.

During Mike’s initial assessment, he rated his pain at 7 out of 10.  His total POQ was 122 (out of 190), reflecting impairments to Activities of Daily Living (70%), Fear and Avoidance (45%), Mobility (65%), and Vitality (67%).

With help from his coach Mike dug deep to envision his life not dominated by pain.  He imagined being able to do the things he enjoyed—fishing, camping, woodworking, family outings, and getting restful sleep.  In the end, he wanted to know his life contributed to his family and community.

Once a week Mike met with his coach and participated in a group call with others living with pain—a facilitated session that combines education and pain-management strategies with community support. 

Mike had never had someone to lean on. His fear of talking about the pain and depression was gradually replaced by a small glimmer of hope.   

Within two months he was exercising, sleeping better, and reconnecting with friends.  Conversations with his coach were less about pain and more about what he wanted to accomplish.  

By six months, Mike had cleaned up his shop, become a city councilman, and taken his wife camping.  He reported feeling much less pain and depression.  His POQ came in at 68 (compared to 122 at intake).

Mike continued to increase his activity levels—traveling, camping and fishing, getting a part-time summer job, and volunteering.  Instead of dead ends, he was seeing possibilities, even with his physical limitations.  

Upon completion of the program, Mike no longer needed pain medication, he was working a part-time job and fulfilling his duties as Councilman, and his POQ was down to 46 from a starting score of 122.  With his self-management program, Mike continues to live with reduced pain and increased vitality as he explores the possibility of starting a home-based business.  

*****************

What is important in the Mike's story is not only about beating the burden of daily pain, but his realization that life is going to move on, but now his role is changed.

It's not just the pain associated with an industrial accident (or any life altering injury and disability) but it's the adjustment to a new order in life - THAT's a critical part of the "outcomes" equation that we all too often miss and/or ignore.

People like Becky Curtis, Dwight Johnson, and of course Mike above, all came to the realization after dealing with chronic pain and disability that life has changed for them. The same routines don't apply any longer. There's a new life paradigm.

The key is accepting the new paradigm, and having the courage to move on to that new path and direction.

It's not easy.

If you know someone who has mustered the courage to face their new life's paradigm, or someone who has been instrumental in helping an injured worker find their place, please nominate them for a Comp Laude award (https://www.workcompcentral.com/gala-voting). Nominations close August 31.

It's Productivity Loss

We all basically know that the longer someone is off work due to a work injury, the more likely there's going to be increased disability, and the less likely there will be a return to work.

What we really don't know, exactly, is why.

Bowzer: obesity and smoking are ID'd with back pain.

There are certainly contributing factors and the analysis is complicated.

A recent series of studies underwritten by the Liberty Mutual Institute for Safety, and not specifically for the workers' compensation industry, is beginning to examine the why - though there is still a lot of work left to be done.

The researchers now call this "productivity loss" - people with productivity loss experience a hugely disproportionate level of disability, to the tune of up to 45 times those that reflect little or no productivity loss as measured by the researchers.

The latest study, published this month in the Journal of Occupational and Environmental Medicine, found five typical “trajectories” people follow over decades in productivity loss. Those who are at a consistently high risk of productivity loss during their lives and those who start out with little productivity loss in their 20s, but begin having worsening productivity in their 30s were the ones most likely to have a permanent disability or leave the workforce altogether.

One of the researchers, Glenn Pransky, said the study represents a new way of identifying people who are at risk of developing work disabilities, whether that be from a work injury or other source, and eventually leave the workforce altogether, because of a new set of risk factors of which not much is known.

And the research is too green to draw much from at this point.

“This data’s not really specific to new people just getting on a job. So we don’t really know when people were hired, when the productivity loss is relative when they’re hired, so it’s really hard to extrapolate choices about who you hire and when,” Pransky said. “And with the (Americans with Disabilities Act), you really need a lot better data before you make a non-hire decision than what we’ve got here.”

An earlier study from Pransky and co-author Elyssa Besen found that workers who are obese, have existing back or leg problems, have “emotional issues” or hypertension were all more likely to have long-term productivity loss. Even having frequent or severe cold and allergy problems was linked with productivity loss.

“When you think about work-related injury, we know that work-related injury and recovery from work-related injury is slowed by the presence of comorbidities,” Besen said. “So these people would be a group where if they got injured, it would probably be a much longer recovery time if they were able to recover at all.”

All of this makes sense. If someone has a condition, be it physical or mental, that interferes with productivity over a course of time, then certainly one would expect there to be a "trajectory" (as the researchers call it) where one could project a disability pattern.

But does this do any good? Or, the opposite, does this actually do harm?

The Americans with Disabilities Act prohibits discrimination on the basis of disability, and the courts have been defining disability for purposes of the ADA for some time now. Does a comorbidity, or series/sequence of comorbidities, that has been identified as a leading indicator of disability, fall within the prohibitions of the ADA?

And if so, where does the discrimination stop and start? Where does the employer, or other ADA vulnerable class, draw the line? At what stage can an employer safely conclude that a particular employee is not desired, or represents too much of a risk? How deep can a prospective employer delve into an applicant's life to determine whether there are risk factors that aren't acceptable to the employer?

There are many more questions.

This research is troubling in that regard - because while the science may say one thing, the law says another.