Monday, February 29, 2016

Ride Single File!

Two women were riding their bicycles on Pacific Coast Highway Saturday morning, side by side, talking. They were moving for sure, but not a particularly expeditious pace; though I'm sure it was quite fast for them despite their non-stop conversation.

It was a slight uphill when I caught them. I had good momentum with me from the prior downhill. Even though it was early in the morning, PCH was already getting busy with beach traffic on such a beautifully postcard perfect Southern California day.

I don't consider myself a "serious" rider. Serious left my mentality about 20 years ago after I stopped racing. I'm no longer serious, though I ride obsessively nearly every day.

I would categorize myself, however, as an expert rider, even at age 56 my pace is much more quick than the vast majority on two wheels, and my riding skills are acutely refined: freewheel trackstands, bunny hop levitations, stoppies, reading traffic, and most importantly, reading other riders because more often than not it's another rider that will take you down.

I have learned after nearly 40 years of cycling that, though perhaps impolite, it is much safer to pass another cyclist from behind without announcing one's self. This is a safety practice I learned a long time ago after, you guessed it, being taken down too many times being polite.

The reason is quite simple: one's natural instinct is to turn one's head in the direction of the sound heard from behind. So, if I am passing on the right, and give some audible warning, the rider in front will naturally turn his or her head to the left to catch a glimpse of what just made that noise.

And what happens is that the bike follows the direction of the head turn - ergo, right into the pass on the right.

Try it some time - you don't even need an audible distraction from behind. Ride along, and just turn your head to look behind you and you will notice that your direction of travel naturally follows your head turn. It's natural.

So I passed these women on the right without any warning, which of course surprised the rider closest to me (because, frankly, she was more interested in conversation with her friend next to her than concentrating on her riding).

After her startled gasp, she yelled at me in a disdainful tone, "You should announce yourself when passing!"

Frankly, I was offended. She was the one putting ME in danger by riding side by side with vehicular traffic bearing down us from behind. She was the one NOT paying attention because conversation was more important to her than safe cycling. And just because SHE was startled did not justify her lashing out on me!

"Ride single file, b%#*h!"

I didn't care about offending her - I was, based on my extensive experience and frankly significantly higher level of skill, within my rights!

All too often there is a communication from behind - and we turn to see what it is, taking our concentration off the necessary, fundamental task at hand.

For instance, the other day I received in my email a solicitation from a workers' compensation insurance company to "attend" a webinar about how particular sub-services "add value to workers' compensation claims."

This struck me as completely hypocritical. Why would one want to add value to a workers' compensation claim? How is that even possible?

Think about it - a workers' compensation claim denotes an injury or illness has befallen someone. It is, unfortunately, a negative event. It starts the wheels of comp moving and all sorts of services and vendors jump in with some remedy or solution for some problem that may or may not exist.

I've talked about value before, certainly. But that is in the context of the stakeholders: employers and workers. And it's in the context that neither stakeholder too often sees much value in work comp.

Value is "relative worth, merit or importance" meaning for the money paid there should be a corresponding return of worth, merit or importance. What employers and workers complain about is quite simply - too much money goes into the system and too little of it finds its way out.

Because, frankly, there are people, companies and sub-systems that take and don't return.

They don't "add value" to a workers' compensation claim. That can't be done.

What can be done is to RETURN value: provide benefits (all of them) timely, expeditiously, promptly, without discord or dispute, and any money left over after a reasonable profit goes back to the employer.

A sub-service doesn't add value to anything. It takes value. Sure, some sub-services may be warranted because of certain case circumstances. Those sub-services are an additional expense. If that expense is necessary to get the job done (i.e. move the claim along to closure) then it's warranted; if not, then it's wasteful and adds value only to the pockets of the provider of that sub-service.

That some sub-service that can "add value to workers' compensation claims" is that communication from behind. You'll hear it, you'll turn your head, and you'll deviate from your primary mission. You might even crash the claim.

What we do is very simple. For those that can't get that, there are rules. Those that can't follow the rules crash.

It's really that simple.

Ride single file and cut out the distracting conversations. The work comp ride will be faster and safer.

Friday, February 26, 2016

Cleaning Up

My broken record mantra: workers' compensation has three stakeholders: employer, employee and government.

Everyone else is a vendor.

Employees get lots of attention because, well, they're the recipients of the system. Sometimes they don't get what they deserve, and sometimes they do.

The government also gets lots of attention because it makes the rules, and then is supposed to enforce those rules. Sometimes the rules are good, and are enforced, and sometimes they aren't.

Employers tend to get the least attention. Sometimes there's a recalcitrant employer who gets punished for cheating or being a schmuck, and on a much more rare occasion there's the employer who is recognized for bucking trends and treating their workers as a valued asset.

Regardless, in between all three stakeholders are various vendors with various "solutions" to problems that may not even exist.

"Solutions" became an overused term when Silicone Valley was growing up, and is still abused today.

I hate that term.

Before there is a "solution" there has to be a problem. 

Vendors are good at creating problems so they can sell their "solution."

Quite often, there are "solutions" that exist only between vendors.

It's these vendor-centric "solutions" that tend to get the attention of one of the stakeholders, principally because of the additional friction created generates heat between the stakeholders: UR, BR, IMR, IBR, etc.

This creates confusion on the part of the public.

Our reporting at WorkCompCentral is guilty of this. All too often, our reporters use the term "employer" interchangeably with the insurance company or third party administrator, when in fact the actual employer, i.e. the person or entity that signs the paycheck to the employee, has nothing to do with the decision making of its carrier or TPA.

So we read about something bad that has happened to an injured worker by his or her "employer" when in actuality the employer likely has no idea what is going on until well after the fact.

A consultant wrote me the other day about an employer he was servicing. The consultant was doing an account review. He noted that the insurance carrier had terminated temporary total disability indemnity to the injured worker when he wandered outside of the carrier's Medical Provider Network, but reinstated it when that worker found his way "home" back into the network.

This is, of course, against the rules, and the carrier is not authorized to do that, and in fact under California law that carrier is now required to pay that balance to the injured worker along with the self-imposed penalty and interest.

But will the carrier step up and own it's mistake and make restitution?

My consultant friend thinks that's unlikely. He thinks they'll institute the "F y'all defense" and make good only if REALLY pressed.

That's a shame. This vendor interposes friction between the employer and its employee. That friction generates heat, and that heat gets misdirected.

Another example - at the Public Agency Risk Managers Association conference this week I met a very long term friend of mine within our industry - we go back to our 20's.

My friend has been through the ranks in work comp claims: adjuster, manager, supervisor, etc. He has worked for insurance companies, TPAs, self-insureds; large and small.

He left his last big TPA job because he couldn't stomach the vendor's profits before compassion mentality. He readily admits that the company forced utilization and bill review on every case, for every procedure, because it owned the vendor entities performing those services, and those entities were critical to the TPA's profit margin.

Now my friend is at a very small TPA where the adjusters are trusted to make their own judgment - imagine that, a claims adjuster actually treated as a professional to make independent decisions based on skill, training and knowledge...

The employer gets hosed. The employee gets hosed, except worse.

The vendor gets profits.

Where's the government in this?

Well, the plain fact is that the threat of significant enforcement has been so diluted over the years that the "F y'all defense" is even more strong than ever before.

So what's the "solution"? Where do the stakeholders get resources and traction to ensure the vendors comply with the law.

Well, for one, let's stop confusing who's who in workers' compensation. When we communicate about work comp, we need to stop calling insurance carriers "employers" when the employer is no where to be actually found in a court case (for example, Florida is particularly guilty of this, as nearly all 1st DCA decisions refer to the case defendant as the "employer/carrier" or "E/C").

Secondly, if the government is to be the enforcer, then the government needs to step up and exercise its authority using all means possible. The government has power to fine payers, to impose audits, to suspend or revoke licenses.

But the different governmental departments rarely, if ever, communicate, coordinate or cooperate.

That needs to change.

Third, it's up to US, you, me, and your colleagues, to call attention to WHO is actually doing WHAT.

I don't want to hear the "oh, whoa is me" line from the vendor community, because that's bull. If vending in the workers' compensation system is so burdensome, costly and unreasonable, then make the prudent business decision and take your focus to some other industry.

Employers and their workers are in this together. They both have the same common interest - to make sure that work injury claims are dealt with promptly, expeditiously, fairly and without undue encumbrance.

Call out the vendors interposing their profit will over us.

But also bring attention to those vendors who do their jobs admirably and compassionately.

And in particular, celebrate those employers who don't let vendors get in the way of their employment relationships.

It's been said many times that workers' compensation is a "dirty business."

It doesn't have to be - we just need to clean up after ourselves...

Thursday, February 25, 2016

A CA Summary

Basking in the bucolic bliss of the Renaissance Indian Wells Resort & Spa attending the Public Agency Risk Managers Assoc. annual conference, it's easy to lose track of the "real world" of Sacramento.

Waking up to this morning's news, though, is a reality snap. Here's a quick summary of what legislators are attempting with California's workers' compensation system:

AB 2230, by Rep. Kansen Chu, D-San Jose, would add to the Labor Code language allowing an injured worker to choose an interpreter for medical appointments and legal proceedings. The bill would allow the employer to select an interpreter if the employee fails to do so.

Assemblywoman Lorena Gonzalez, D-San Diego, said she plans to introduce soon a measure similar to AB 305, which Gov. Jerry Brown vetoed last year, to address gender discrimination in permanent disability ratings.

SB 1175, by Sen. Tony Mendoza, D-Artesia would require medical providers to submit bills within 12 months of the date of service, or 12 months of the date of discharge for inpatient facility services. The 12-month filing deadline would also apply to bills for medical-legal services.

SB 1451, also by Mendoza, would also exempt State Compensation Insurance Fund from civil service pay limitations for certain executives and managers. The bill would limit the number of upper-level employees who are exempt from pay limitations to no more than 1% of the total number of State Fund employees. The measure would sunset Dec. 31, 2021.

Assemblyman Rocky Chavez, R-Oceanside, introduced AB 2407, which would require a provider to assess an injured worker's risk of chronic back pain and determine whether the worker meets the criteria for a surgical consultation. There is a surgical limitation in the bill but it provides that alternatives to surgery that could be ordered following an assessment including acupuncture, chiropractic care, cognitive behavioral therapy, physical therapy, yoga, massage or supervised exercise therapy. The bill would also authorize short-term use of opioids for back conditions, but prohibit long-term prescriptions of narcotic painkillers.

Assemblyman Chu of San Jose introduced AB 2577, which would establish that respiratory illnesses or diseases, including asthma, chronic obstructive pulmonary disease, chronic bronchitis, emphysema, asbestos-related lung diseases and any other condition caused by inhalation exposure from employment activities is occupational in nature.

Assemblyman Tom Daly, D-Anaheim, introduced AB 1922, would exempt policies or endorsements offering deductibles to policyholders from all or parts of benefits payable under the policy if the estimated nationwide premium is $250,000 or more, and the documents do not alter or amend the terms of coverage.

AB 2086, by Assemblyman Ken Cooley, D-Rancho Cordova, and Assemblyman Devon Mathis, R-Visalia, which would require the Division of Workers' Compensation to re-establish the qualified medical evaluator designation for neuropsychologists.

SB 897, by Sen. Richard Roth, D-Riverside, would double the amount of time certain safety workers can receive salary-continuation benefits in some cases. Police officers, sheriffs and firefighters could receive up to two years of salary-continuation pay if they suffer a "catastrophic injury."

SB 563, by Sen. Richard Pan, D-Sacramento, would prohibit any entity conducting utilization review from offering financial incentives to physicians based on the number of requests that are delayed or denied. The bill would also give the DWC authority to inspect utilization review contracts to ensure they do not include inducements to delay or deny treatment requests.

A much more comprehensive review of these pending bills is in this morning's WorkCompCentral News:

Wednesday, February 24, 2016

It's The Culture

I'm at the Public Agency Risk Management Association's 42nd conference in Indian Wells, CA.

The agenda has good workers' compensation coverage with sessions about managing disability and accommodation, using alternative dispute resolution, and key decision making.

Being that this was my first time to this conference, I felt compelled to ask attendees about their experiences in the public sector.

Curiously, the vast majority of the people I talked to started out their risk management lives in the private sector, so this provided a great opportunity to compare and contrast.

The folks I talked to noted differences in how money was viewed, with the private sector understandably much more concerned about the bottom line than public entities ("just raise taxes," noted one person).

The risks are inherently greater in public sector work because of the basic tasks of protect and serve with police, fire and other emergency services provided by governmental entities. Or, as Los Angeles County Workers' Compensation Administrator, Alex Rossi, once told me, "When someone yells 'fire' the private sector runs out of the building; but the public sector runs into the building."

There are also distinct legal differences too. Many public sector jobs are statutorily provided presumptions that certain injuries or illnesses are caused by work. For instance, Idaho firefighters are seeking a law declaring certain cancers to be occupational in nature.

Usually these presumptions can be rebutted, but doing so against the liberality of these laws is not typically successful. There really has to be nearly insurmountable evidence that there is no tincture of employment causation.

Presumption cases turn on how this evidence is gathered and presented.

A short case out of Florida's 1st District Court of Appeals (the 1st DCA has original jurisdiction over all work comp appeals in Florida) is demonstrative.

Florida Statutes Section 112.18(1)(a) provides that any condition caused by tuberculosis, heart disease or hypertension, which renders an officer or firefighter disabled shall be presumed to have been suffered in the line of duty, unless the contrary is shown by competent evidence.

Thomasena Mitchell had worked as a law enforcement officer for Miami-Dade County. Before she was hired, she underwent a physical exam which revealed no indications of heart disease.

Doctors later diagnosed Mitchell with supraventricular tachycardia – an abnormally fast heartbeat – and declared her totally disabled by her condition. She was barred from returning to her work as a law enforcement officer so she consequently sought workers' compensation benefits.

Her claim was denied. At trial the condition was declared compensable. On appeal that decision was reversed - the court said the trial judge ignored a vast body of evidence finding the condition congenital.

So on remand the trial judge declared Mitchell's condition not compensable.

On appeal once again, the 1st DCA told the judge to slow down - just because a condition had its origin congenitally doesn't mean it couldn't have been aggravated by work.

The court said that a congenital condition can be aggravated by a person's work, and if that occurs, it is a compensable injury.

Thus, for the county to defeat Mitchell's claim, the court said it had to establish competent evidence that the "trigger" for Mitchell's congenital condition, causing the tachycardia, was non-occupational. So it sent the case back to the trial level for more evidentiary hearing.

Certainly, this type of case would be handled much differently than if it originated in the private sector.

Or would it?

To the one, despite the differences between public and private, everyone I talked to agreed - it all comes down to the culture of the work place and that starts from the top down.

The bottom line based on my discussions here is that work place cultures that value employees as an asset, rather than a liability, experience lower frequency, lower severity, less claim costs, happier employees, and greater productivity.

So while public sector employees may, in general, engage in more dangerous work, or may have more legal protections, workers' compensation is all about people.

And when we're dealing with people it's the culture and attitude of management and the employer as a whole that can make or break a workers' compensation program.

Tuesday, February 23, 2016

Violent Work

The Grand Bargain is a strange deal sometimes because we don't always know where the boundary lines are, particularly when it comes to the sad cases of work place violence.

Just last Thursday I wrote about a Georgia case where the appellate court ruled that the mother of a worker shot twice in the head by a temporary staffer with a felonious history could pursue a wrongful death case against the staffing agency and the business.

The court said the murder did not arise out of Zephyrine's employment as a matter of law.

"The words 'arising out of' mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received," the court said.

In this case, the court said, the record was "devoid of any connection between the attack and Zephyrine’s work or workplace."

Today it was reported that the Louisiana Court of Appeals ruled that a worker deserves a second chance to assert her claims that her employer failed to protect her from a coworker who ran her over with a pallet jack after threatening to hurt her.

Towana Carr and Kevin Webb were employees at Sanderson Farms. There was "bad blood" between them because of the soured relationship between Webb and Carr's cousin.

Webb had been Carr's cousin's live-in boyfriend, and the couple had a child together, according to the complaint.

Carr says Webb has a history of domestic violence involving her cousin, and that Webb threatened Carr herself with physical violence after witnessing one act.

She believed Webb would make good on his threat, and told her supervisors. They told her, according to the complaint, the company could not do anything because the threat had not been made on Sanderson Farms property.

As Carr was returning from her lunch break on Jan. 4, 2013, Webb struck her in the leg with a pallet jack loaded with one ton of dry ice.

The impact knocked her sideways. Webb then turned the jack around and struck Carr a second time, in the chest.

Carr filed a claim seeking comp benefits for her injuries, but a workers' compensation judge denied her claim. The judge found that Carr's injuries did not arise out of her employment, because they were the product of a "non-work related dispute" with Webb.

Carr then filed a civil suit against Sanderson Farms. She claimed the company was negligent because it had done nothing to keep her safe when it knew her work put her in close proximity to Webb for eight hours a day, five days a week.

She also claimed that the company could be held vicariously liable for Webb's conduct.

Sanderson Farms responded that Carr's exclusive remedy for any negligence claim against it had to lay in the workers' compensation system. It also asserted that it could not be vicariously liable for the alleged intentional act committed by Webb because that conduct was not within the scope of his assigned duties or in furtherance of Sanderson Farms' business pursuits.

The district court judge granted summary judgment in favor of Sanderson Farms, and Carr appealed.

The 1st Circuit Court of Appeals upheld most of the dismissal but left a door open to try again.

Under Louisiana law, an employer can be held vicariously liable in tort for the intentional acts of its employees, the court said, but an employer is not vicariously liable for an employee's conduct merely because his employee committed the intentional tort on the business premises during working hours.

"Vicarious liability will attach only if the employee who commits the intentional act does so within the ambit of his assigned duties and in furtherance of his employer's objective," the court explained.

Since Carr's petition for review did not allege any facts explaining why Webb intentionally struck Carr with the pallet jack, the nature or scope of Webb's employment duties, or how his intentional tortious conduct was incidental to those duties, the court said there was no possible basis to support a finding of vicarious liability.

However, the court said the trial court was incorrect to find that the workers' compensation system provided the exclusive remedy for Carr's injury.

Although negligence claims by an employee against her employer for injuries sustained on the job are typically barred by the exclusivity provision of the workers' compensation act, the court said, the act does not cover injuries arising out of a dispute with another person over matters unrelated to the injured worker's employment.

"When an injury or illness is specifically excluded from the scope of the Workers' Compensation Act, the exclusivity provision of the act does not apply, and the employer is not immune from a tort suit based on that injury," the court said.

An "employer has a duty to exercise reasonable care for the safety of his employees and to not expose them to unreasonable risks of injury or harm," so it was possible for an employer to be held civilly liable to an employee who was the subject of an intentional act committed by a co-worker if the employee notified the employer of threats made by the co-worker away from the workplace, opined the court.

Even though Carr had provided no allegations about the content of Webb's threats, the number of threats, or the relation between the threats and the intentional act, it's possible such facts exist, so, "out of an abundance of caution, this matter will be remanded to allow Carr the opportunity to amend her petition."

There's an interesting dichotomy at play, particularly in cases involving work place violence.

An employer, statutorily and by common law, generally has a duty in the United States to provide a safe work place. How that standard is established and supported is viscous, at best.

So, it makes some sense that there is a penalty against the employer for failing to do so. The law should promote a duty by the employer to do all it can to provide a safe work environment.

On the other hand, if an employer has done all it reasonably can to provide safety at the work place, then the payment of a workers' compensation obligation may come down to who actually is encumbered with the duty - the employer's insurance company, third party administrator, or the employer itself.

Each has their own take on whether or not liability should be accepted under the work comp system, and part of the equation comes down to which pocket the money comes out of.

From the social perspective, though, just how far must an employer delve into an employee's personal life to ensure the safe work place?

Or put another way, just how much personal responsibility can an employee delegate?

The lines are unfortunately opaque.

Workplace violence cases are very fact specific, and seem to depend on whether one is looking at the financial responsibility or social responsibility (and sometimes those get confused too).

To read the Louisiana Court of Appeals decision, click here.

Monday, February 22, 2016

Clear The Ears

Friday was, I think, the first business day I did not post in this blog other than when I was on vacation in Italy last May.

Even when I was ill in the past I managed enough energy to get some of my thoughts out.

This past Friday was different. I just couldn't muster the energy to do so. I took a sick day.

That's very foreign to me - sick day. I don't like being sick, and I don't like admitting that I'm sick. So reality bites hard when it comes knocking on my door.

I was supposed to be in Las Vegas for a speech. That didn't happen.

Instead I remained prone most of the day, drenching my shirt and sheets in perspiration, sucking up as much water as my belly could manage, hacking, coughing and discharging mucus with loud, honking noises.


Illness is that sort of vague, I felt like doodie, thing that prevents normal operation.

Kind of like a high performance automobile engine trying to struggle under a high load situation on ethanol infused 87 octane fuel. Knock, knock - nobody's home....

Saturday arrived and most of the illness departed, but like an engine that's toiled through bad fuel, there was some sludge sticking to the valves. Timing was good and ignition sharp, but the exhaust had some trouble venting.

Which is why my ears didn't clear descending Forty One Mike into Oceanside that morning.

One of the weirdest, and most frustrating, things to experience is hearing through an aviation communications system with blocked sinus passages. It's sort of like talking through the tin cup and string network that we made when kids.

It didn't hurt, it was just weird.

On the ground the pressures eventually equalized and I was able to clear my ears and hear normally (which with tinnitus, means poorly anyhow).

The California Commission on Health and Safety and Workers’ Compensation hearing (pun intended) on utilization review and independent medical review on Friday was like blocked sinus cavities while descending in an airplane.

Researcher Barbara Wynn of the Rand Center delivered the report on UR. Basically she said what everybody has been saying but doing nothing about - it's over-utilized (pun intended, again).

Rand came up with a couple of suggestions: accreditation, an exemption of certain procedures, review standardization - basically more bureaucracy to remedy the existing bureaucratic morass.

In addition to the redundant advice on UR, CHSWC learned that the Division of Workers’ Compensation received 253,771 applications for IMR in 2015, an 11.2% increase from the previous year. Counting only eligible applications (where medical records were provided timely), the division received 165,619 last year, a 13.6% increase.

In other words, the hamster's wheel has gotten bigger.

There's more UR so there's more IMR. That seems pretty basic. While the California Workers' Compensation Institute has mind-numbingly detailed numbers on IMR, the bottom line is that most UR that gets to IMR is affirmed.

The story I'm hearing through all of these statistics, reports and commissions is that there's a lot of people that aren't following the operating handbook.

After all, workers' compensation in California (and in most states) involves guidebook medicine - the rules are written, the guides are in place, the recipes have been published. In California we call them the Medical Treatment Utilization Schedule. Other states use other guides or combination of guides, and they go by different acronyms like ACOEM or ODG...

If medicine is so standardized, then how can so many treatment requests end up in to the black hole of the UR/IMR space game?

Seems to me it's a sinus cavity infection. The path to clarity is there, but there's a lot of mucus in the way.

Physicians are going to scoff. Claims payers are going to sneer. Claimants are going to jeer.

But here's what we know: Nearly all the time the identity of the claims payer is known. The vast majority of injuries follow well-defined pathways of treatment and disability. And all of that activity is accounted for in a payer's UR processes.

The moment a First Report of Injury hits the claims system the diagnosis reported should trigger the dissemination of accepted treatment protocol, with a checklist, to the physician. In fact, it should occur even before the claims payer gets that First Report.

In other words, even though there are published treatment guidelines, there aren't readily available UR guidelines - so the medical portion of claims proceed into a guessing game. Maybe the request is adequately documented, maybe not - the provider doesn't know until the request is submitted.

The provider should know BEFORE the request is submitted.

Remember we have this marvelous communication invention called the Internet. There's no reason the payer's UR standards for the most common injuries isn't published and readily available, with a checklist for the provider to ensure compliance.

How can one play by the rules if one doesn't know the rules?

I know. It's too simple.

On Sunday the mucus was gone, my sinuses were clear, I could hear (albeit with tinnitus) and everything was back to normal.

That simple.

Thursday, February 18, 2016

A Mother's Burden

The universal standard for employer/carrier liability in workers' compensation is AOE/COE: arising out of and occurring in the course of employment.

An analysis of case facts where there is an AOE/COE dispute requires bifurcation of these two standards. Arising out of: the employee was on the job, basically. Occurring in the course of: the employee's injury or death was a consequence of performing some beneficial service for the employer.

That last part arises frequently when an employee is goofing off and gets hurt - the "horseplay" exception. When an employee is playing games at work, unless of course sanctioned by the employer, he or she is not providing any beneficial service to the employer, removing any injury from a compensable determination.

Sometimes the facts get very, very close though, and in particular in workplace violence cases.

The Georgia Court of Appeals ruled as such in a murder case, allowing the mother or a worker shot twice in the head by a temporary staffer with a felonious history, to pursue a wrongful death case against the staffing agency and the business.

Christopher Lema had obtained a temporary position at an OA Logistics warehouse in Pooler, GA, through temporary agency, StaffChex.

The contract OA had with StaffChex required StaffChex to perform criminal background checks on each worker before work began.

However, Lema started working at the OA facility before the background check was done. Regardless, though, the check would reveal no criminal history because Lema had applied for his job using an alias.

Lema had a felony record for drug crimes and tampering with evidence. He had been released from incarceration eight months prior to going to work at the OA facility.

On Feb. 24, 2012 at around 3 p.m. Lema walked into the office of Jessica Rodriguez, an OA employee, and tried to kiss her. After Rodriguez pushed him off, Lema walked out of the office.

28-year old Nickifor Zephyrine just happened to be standing outside the office at the time waiting to inquire about refueling his forklift. Lema took out a .22 caliber pistol and shot Zephyrine twice in the head. He then re-entered Rodriguez's office and attempted to rape her. Rodriguez was able to escape and fled from the office.

Her screams drew attention from coworkers, who reported seeing Lema strip off his clothes, drop his gun and run naked across the parking lot toward a nearby wooded area, where he was apprehended by police without incident within minutes of the shooting.

Zephyrine was taken to Memorial University Medical Center, where he died that evening.

In 2013, Lema pled guilty to charges of felony murder, false imprisonment, battery and being a felon in possession of a firearm.

Zephyrine’s mother later filed suit against OA and StaffChex, contending they had been negligent in hiring Lema because there were numerous red flags in Lema's job application, including a misspelling of his fake name, and, according to the civil complaint, "he looked nothing like the picture on the identification card he presented to StaffChex."

OA and Staffchex moved for summary judgment, arguing the wrongful death suit against them was barred by the exclusive remedy provision of the Georgia Workers' Compensation Act, which was granted at the trial level.

Zephyrine’s mother appealed, arguing the fact that he had been killed while at work was insufficient to establish that the murder had arisen out of his employment, and the Court of Appeals agreed.

It was "beyond dispute," the Court said, "that Zephyrine's death arose in the course of his employment because it occurred while he was on duty performing his job functions at his employment location."

But, the court said the murder did not arise out of Zephyrine's employment as a matter of law.

"The words 'arising out of' mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received," the court said.

In this case, the court said, the record was "devoid of any connection between the attack and Zephyrine’s work or workplace."

WorkCompCentral legal reporter Sherri Okamoto reviewed various state positions on work place violence in her story on this case - the conclusion is that they are very fact specific, which means lots of litigation over liability between, usually, insurance companies.

The tragedy, in my mind, isn't whether this is a case that is barred by the exclusive remedy of work comp, but rather that there are different silos of liability in the first place.

One of the guiding principles of workers' compensation from its inception was to eliminate protracted litigation. This case, for example, has taken four years just to get to the stage where a court says there is potential civil liability.

Even if Zephyrine's mother is ultimately successful, she has had to live with this tragedy for over four years.

I'm convinced there's a better way.

To read the Georgia Court of Appeals decision, click here.

Wednesday, February 17, 2016

AIG's Alphabet

What if the parent company of Google, Alphabet, Inc., bought one of the biggest insurance companies in the world, AIG?

Citigroup Inc.'s analysts, reported by Bloomberg yesterday, say this is a transaction that makes a lot of sense - shaking up the insurance industry to behave like the tech industry, to foster innovation and create a culture of a higher obligation than just making money off of other people's money...

AIG Chief Executive Officer Peter Hancock in January announced the creation of nine “modules” to improve accountability for managers and add visibility for investors, comparing the company move to one that Alphabet would do. Doing so may help AIG eventually sell or spin off some of the units.

Hancock gave kudos to Alphabet for separating operations and targeting areas of investment.

AIG has been investing in technology, sort of an admission that insurance's staid, risk averse culture, has stymied growth, challenged shareholder value, and destroyed public perceptions.

After the government bailout of a company "too big to fail," AIG's asset base has been halved and now investor activists, Carl Icahn and John Paulson, are seeking further capitulations from the global insurer since its financial performance hasn't been so rosy lately. Yesterday the insurer reported a fourth quarter loss of $1.3 billion and full year 2015 net income was less than half what it was in 2014.

“Many investors think AIG needs a major shakeup. We think insurance as a whole needs a shakeup. Neither AIG nor insurers generally seem to want to take the big steps needed, except incrementally,” the analysts wrote. “The time is right to attempt something big, and the candidates are here.” [emphasis added.]

We know that Google, via Alphabet, has been looking at the auto insurance market. That's a relatively easy market to enter. Autos are a basic risk. Go too fast, wander off the road, keep valuables in the vehicle. .

As a global brand, Alphabet already manages a large share of risk. Bad things happen and the company has plenty of technology and data to determine risks and, ultimately, generate returns covering those risks, particularly when you're a technology company that is already heavily invested in ... technology...

...unlike an insurance company, which is a financial company that looks at technology as an expense, not its raison d'etre.

Workers' compensation has a bit more complexity. Jobs are different. State systems are different. Employers, even within the same sectors, behave differently. The relationship between medical and disability involves complex, sometimes opaque, rules.

But there's an underlying fundamental in all of this - understand the risk in real time, which the current insurance industry simply can not seem to accomplish, and then management of that risk can occur proactively.

Unlike the current insurance model, which is very, very much reactive. By the time an insurance company is involved, it's too late - the damage is done.

Think about just paying premiums - there's an annual, or sometimes biennial, premium audit. The insurance company, retroactively, needs to get a better understanding of their risk to make adjustment to the amount of money they're going to ask to cover it.

If the technology were in place, let's say wearables or GPS enabled systems, defining the work place risks would be much more efficient, and would lead to real time assessment and management. An insurance company would know when an inside customer service representative becomes, for a day, an outside sales rep.

Or when an individual suddenly becomes an employee in a shared services economy company.

Or when a truck driver deviates from an assigned route.

We're in a age of disruption. Mobile technology is changing so much of what we do and how we do it.

Insurance has no exemption from disruption, not even the biggest of them. Insurance, and in particular the workers' compensation line, eventually, will be forced to redefine its value and ultimately the beneficiaries will be those who pay for it, and those who call upon it.

Tuesday, February 16, 2016

Pain in Mental Health

In just a couple of weeks Boston will host the annual Workers' Compensation Research Institute's conference. Lots of interesting research presentations on things that workers' compensation wonks love to cavort about.

A lot of the conference this year is medical in nature: fee schedules, outcomes, utilization review, jurisdictional issues on medical control and treatment...

We'll find out, predictably I think, that states with fee schedules cost less than those without. We'll probably learn that rewarding system vendors based on measurable outcomes, rather than on the services provided, generates better results and system savings. We'll learn that there are differences between jurisdictions that some may, or may not, exploit to their benefit or detriment.

Missing in the grand scheme, though, is this industry's unwillingness to accept that mental health is just as important to controlling costs, to achieving good outcomes, to minimizing disability, as any external, artificial controls dictated by law or regulation.

A lot of jurisdictions have laws that minimize employer liability for psychological or psychiatric issues, whether or not caused by work. Treatment is segregated - body parts are treated as though independent of the rest of the body, or the mind.

There is one commonality among all injuries, whether industrial or not: pain.

The reason someone seeks medical care is because something is causing pain. It might be the flu making one's head hurt with coughing, sneezing, running sinuses, achy back... It might be some trauma, a wound or fractured bone.

It might be that the boss yelled or was mean-spirited.

That's all pain. Pain isn't felt by the appendage, or the organ. Pain is an interpretation of signals from nerves that is processed by the brain. The purpose of pain is to send a message - stop doing what it is that causes the pain.

It's really pretty simple. Pain is in the head. It is real because our minds say it is.

Some of the most interesting breakthrough research is about how the mind can challenge pain, alter its character, change the outcome.

Becky Curtis, our 2015 Comp Laude Injured Worker award winner, can tell you all about how the mind can change the perception of pain.

Michael Coupland, a vociferous proponent of cognitive behavioral therapy, has the data and statistics on pain perception and altering outcomes to demonstrate the power of the mind over pain.

Senator Patrick Kennedy, talking about his battle with addictions, notes that the social stigma against mental health has stymied medicine's ability to take care of the whole person. We take statins to forego the possibility of a heart attack or stroke. We support biennial dental care to stem tooth decay. We promote exercise to stave off obesity and stimulate our muscles.

Yet, we eschew mental health services ... until it's too late. It's easier to dispense a pill than it is to dispense good psychology.

We know the path to wellness, to productivity, to return to society, is through the mind.

The Journal of Occupational and Environmental Medicine, in this month's issue, looks at wellness programs and why one company's program is a success, and another's a failure. The conclusion - it's about the whole person, an integrated approach.

What happens in workers' compensation treatment (and, frankly, in much of general health medicine) is a focus on the symptom, but not the problem. We treat the broken bone, the laceration, the low back pain, with physical modalities and drugs.

Throw a psych ICD code into the mix, though, and all hell breaks loose. We are conditioned to treat mental health as a negative, as that person's problem and not part of the claim.

But it's irrefutable that the mind controls the body, and controls one's perception of pain.

I have a high tolerance for pain. My threshold is miles higher than my wife's. Maybe it's because I've been a daredevil all of my life, jumping off roofs, skying a table top on my motorcycle, leaping off cliffs on a bicycle - all those crashes, all those broken bones and organs... I heal and move on to the next adventure.

Others don't have the same tolerance. They may become slaves to their injuries - instead of having an injury, they ARE the injury...
We can't help everybody. There are some that can not be redeemed, their issues too deep; complications interfere with desired outcome.

But most can be helped. Most can be brought back into productivity and well being; if mental health services are implemented earlier in the claim. Much earlier in the claim - like right at the very beginning of the very first treatment implementation.

The trite phrase, "prevention is the best medicine," applies. Identify early-on mental obstacles to return to health, deal with them head on. Don't worry about assuming someone's psychological disability - the fact is that's already happened by virtue of the workers' compensation claim!

When workers' compensation's culture changes to recognize the realities of mental health on successful outcomes, then the conversations at WCRI's annual conference will be less about controlling medical costs, and more about what to do with all the money that's saved on claims...

Friday, February 12, 2016

The Supremacy Clause

The Supremacy Clause in the United States Constitution dictates that federal law takes precedence over state law.

Article VI of the U.S. Constitution which dictates that federal law is the "supreme law of the land," which has been interpreted to mean that the courts in every state must follow the Constitution, laws, and treatises of the federal government in matters which are directly or indirectly within the government's control.

Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, and a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law.

The federal Employee Retirement Income Security Act sets standards for private-sector “employee welfare benefit plans.” It defines an “employee welfare benefit plan” as any program established by an employer to provide employees with medical care or benefits in the event of sickness, accident, disability, death or unemployment.

ERISA is at the heart of opt-out.

ERISA provides plan participants with a civil cause of action to enforce or clarify their right to benefits, and allows an employer to remove such disputes from state court tribunals to the federal trial court system.

In Texas, which as we know does not compel workers' compensation participation, this has never been a big issue - the argument was settled long ago that non-subscribers with alternative work injury protection plans go to federal court for those matters that ERISA says can not be the subject of arbitration.

But in Oklahoma, which compels employers to provide some form of work injury protection, either via participation in the state work comp program or via an approved opt-out scheme, the matter is not settled.

The Oklahoma Employee Injury Benefit Act requires employers who opt out of work comp to create plans for their employees that provide the same form of benefits as those included in the Oklahoma Administrative Workers’ Compensation Act.

One of those benefits is access to the dispute resolution process created for work injuries, and the 2013 law also created a new system (which, by the way, was opposed by the state's trial lawyers - interesting how things turn around...) to hear those disputes creating an administrative review process followed by appeals into the civil courts.

That obviously conflicts with ERISA.

Dillard's department store chain, one of the first to opt out of Oklahoma workers' compensation when it became available, tested preemption but lost the argument that work injury disputes under its plan belong in federal court last September.

In that ruling, U.S. District Court Judge Stephen Friot said that such appeals have to go to the Oklahoma Workers' Compensation Commission because ERISA contains an exclusion of its coverage for any employee benefit plan maintained solely for the purpose of complying with a state's comp laws.

Friot remanded the matter back to the commission.

Dillard's is asking the commission to send the case back into the federal judicial system, filing a motion asserting that it doesn't have jurisdiction due to federal preemption, because its plan is not SOLELY for the purpose of workers' compensation but covers non-industrial benefits too.

The case won't end at the commission. Representatives for the parties on both sides have indicated commitment to see the issue through to the state supreme court.

Workers' compensation is a creature of the legislature. As we all know, what the legislature giveth, the legislature can taketh away, and in most states, legislatures can do pretty much whatever they want to do with work comp because of its statutory nature.

Can a state legislature buck the feds? Even if not sanctioned by the federal government, many states just go about their business regardless of federal law - the marijuana movement is recent evidence.

It may be that these cases end up before the United States Supreme Court at some point down the road. Or maybe not - that's many years, and a lot of money, to get there. But if there was any test case for the Supremacy Clause, the Oklahoma dispute is a prime example.

Oral argument before commission is scheduled for Friday, Feb. 19, at 9 a.m.

Thursday, February 11, 2016

Seven Years Too Long?

How fair does the workers' compensation system have to be to an insurance company?

Certainly an insurance company has much more resources than an injured worker, and more than the vast majority of the insured employer population as well.

But are there times when an insurance company, as an entity, is so deeply prejudiced that it is unfair, despite its resources, to make it pay on a claim?

My bet is that the vast majority of the general population would say "no"; the insurance industry has one of the worst public images, down there with lawyers and used car sales.

Injured workers would likely say there are absolutely no circumstances when an insurance company should be let off the hook on a claim. Policy-wielding employers would likely not be far behind in supporting that view.

But insurance is a business, bottom line. That means it has to make financial sense for an insurance company to do business. Whether or not a company in the business of selling and administering workers' compensation insurance makes money is the product of two basic components: investment income from the money it holds in trust for policy holders; and, relatedly, keeping expenses down (i.e. not paying claims it isn't required to).

There is a long succession of cases out of the United States Supreme Court evolving the rights of corporations. They have religious rights, freedom of speech rights, rights against double jeopardy, etc.

So, do common law notions of fairness and equity also apply to insurance company corporations under workers' compensation systems?

The California Second District Court of Appeals is pondering that question and like many cases where lines in the sand are sought, the facts are on the extreme end of the spectrum.

Truck Insurance wrote a policy for the Har Lam Kee Restaurant.

Image: Google Maps Street View
In January 2005, Ng Fung Kwok fell from the roof of the Har Lam Kee Restaurant in Monterey Park while looking for the source of a leak. No one saw how the 37-year-old came to fall. The accident left Kwok unable to breathe, speak or swallow on his own.

For whatever reason, though, a workers' compensation claim for Kwok wasn't filed until seven and a half years after his accident.

The carrier denied the claim on a statute of limitations defense, a lack of evidence that Kwok's injury arose out of his employment.

A Workers' Compensation Judge determined that his claim had been timely because Kwok's employer had failed to perform its statutory duty to inform him of his right to file a claim.

Truck sought reconsideration by the WCAB, complaining that the judge had not addressed its laches defense; an equitable defense that bars an action when there has been an unreasonable delay in filing the action, and which results in prejudice to the defendant.

Truck's prejudice is: 1) that since Har Lam Kee was a family-owned and operated restaurant, Kwok's employer obviously knew about the injury; 2) Truck was unable to speak to witnesses, locate documents regarding the ownership of the restaurant and Kwok’s wages, or review the insurance policy issued to the restaurant to determine coverage due to the latency in reporting the claim; 3) Truck destroys records after seven years, so it couldn't check to see what coverage it had extended to Har Lam Kee's employees by the time Kwok's claim was filed, which is important because; 4) there was evidence Kwok was the owner of the restaurant and he would likely have been excluded from coverage under normal policy language.

The WCJ recommended that the board deny reconsideration, opining that the carrier's laches defense failed for the same reasons as its statute of limitations defense.

After the board denied reconsideration, Truck sought judicial review.

Kwok's attorneys respond that Truck’s admission at trial that Kwok was a restaurant employee, then it didn't matter that Truck was unable to determine who the actual owner of the restaurant had been. Kwok's attorneys further emphasize that Truck was able to actively participate in contested hearings where testimonial evidence was presented, and that it wasn't Kwok's fault that his wife didn't file a claim sooner.

More interestingly, though, the 2nd DCA questions whether there was coverage, presumably based on the argument that Kwok may have been the owner of the restaurant and thus excluded under the policy.

The real bottom line in the case is why did it take seven and a half years for Kwok's family to make a workers' compensation claim? Something is amiss here.

Which is likely why the 2nd DCA is questioning coverage (in which case it would be referred to arbitration for the factual determination under California law).

As Truck says in its briefing, "The family should not be allowed to extend indefinitely the time for one of its members to file a workers’ compensation claim simply because, despite their actual knowledge, they failed to comply with the technical notice provisions of the workers’ compensation statute."

I think that fairly summarizes why the carrier feels it is prejudiced in this case.

Wednesday, February 10, 2016

Adjuster Does Right

I write all the time about bad things in workers' compensation and how we need to give the world something positive to talk about. Just yesterday I commented on the medical fraud mill in Southern California. The day before that it was about a professional football player that endured decades of delay and denial until he got the medical care recommended by the insurance company's consultant.

Every day there's something negative reported. The whole institution of workers' compensation seems ensconced in delay, denial, refusal, dispute...

This negativity wears on the psyche. People in workers' compensation seem embarrassed to be associated with the industry because of these bad perceptions. Everyone has a neighbor who's "cheating" because they can mow the lawn while out on disability. Doctors don't listen to their patients because they're not paid to do so and can't afford the time if they are to stay in business. Lawyers, even for the defense, get disheartened because financial control takes precedence over return to health.

Even claims adjusters, those who are really on the front line, end up with inferiority complexes, despite doing the right thing.

The tone in the prose of "Adjuster X" in the latest postings in Risk and Insurance's website seems apologetic, even depressing - because he did the right thing against the wishes of his superiors, the broker and the employer.

You can tell by reading his tale that he KNOWS the right answer to his claim question right away: accept or deny. And you can feel his angst as he tries to do his job, correctly and appropriately with sound decision making within the bounds of the law and the description of his job.

The facts seem to me pretty straight forward and point to compensability.

The injured worker, a 54 year old nurse case manager, was driving from one appointment to another when she was involved in a serious rear-end auto accident. She was not wearing a seat belt. She was also, apparently, considered a marginal employee, good enough but not great.

The broker demanded the adjuster deny the claim because of the lack of safety belt, obviously not understanding that workers' compensation is a no fault system. "I told him that my investigation was still ongoing," writes Adjuster X, "and any decision now would be premature," too polite to tell the uneducated broker that negligence has no basis in comp (although in this state apparently benefits could be reduced by 25% for lack of a safety belt in an auto accident).

It appears that after about two weeks of hospital care the adjuster gets a demand letter from an attorney representing the employee demanding the claim be accepted, and after consultation with house counsel Adjuster X ultimately did accept the claim and started paying benefits.

After 10 months the employee's condition didn't improve, and her attorney amended the claim to include psyche and total disability. Opposing medical-legal exams ensued with predictable results.

"Further defense of the case would be time consuming and costly," Adjuster X concludes, "so reluctantly we accepted the case for lifetime disability."

When I read the account by Adjuster X, I hear embarrassment at not meeting the demands of the employer and its broker. I feel anxiety and conflict in knowing someone's life was inescapably altered and who's future is in his hands. In the conclusion I glean relief: decision made, time to move on, another case of heart wrenching decision making processes to take its place.

It's easy to denigrate and criticize "the insurance company" because of the monolithic facade of the establishment, and the cold, dehumanizing character of the process.

But behind that steel and glass are real human beings entrenched in conflict as soon as they walk through the doors to do their jobs. Every day the professional at the claims desk has decisions to make that affect, deeply, others.

The pressure comes from the broker and employer who aren't educated or experienced in the nuances of workers' compensation law or have some ulterior motive. There's pressure from corporate to meet financial and compliance goals. The threat of litigation adds an additional layer of pressure.

And, "reluctantly," the claims adjuster has to decide between the financial interests of his employer or the humanitarian interests of his ward, the injured worker.

In the end, Adjuster X did the right thing.

Not without considerable anxiety, stress and internal conflict - all of which is palpable in Adjuster X's story.

The employee is likely one for the rolls, and the case file will migrate from adjuster to adjuster through the years to administer lifetime benefits and medical care, likely with no less anxiety, stress and conflict for the successive adjusters.

In my mind, though, Adjuster X made the workers' compensation process function as intended - to me this is ultimately a success story.

There are many more success stories like Adjuster X's, where the right decision is reached through the discord and contention that is inherent in the claims process. We need to recognize those stories and the people that make them happen.

“There are a lot of more positive narratives out there—but they’re lonely, and disconnected. It would make a difference to join them together, as a chorus that has a melody.” Phillip Zelikow, a professor at the University of Virginia, to journalist James Fallows in “How America is Putting Itself Back Together.”

Comp Laude™ 2016 will happen in Burbank, CA Nov 4 & 5. I hope you will share your success stories and celebrate those of others.

Tuesday, February 9, 2016

Catholic School

Experience, or the number of injury claims, has been going down across the country except for one specific geographic area - Southern California. Ergo, the expense of workers' compensation for employers is also greater in that area than most other geographic zones.

There has never really been a cogent assessment of why. Some have speculated that there's more diversity in the Southland, some have pointed out a larger demographic of unskilled, uneducated workers doing manual labor, and others think it may be a combination of complex factors.

Or it could be that Southern California is just home to more criminals.

But it's not the claimants perpetrating crime. Rather, the real money is in the vending of benefits, particularly medical benefits, and even more so diagnostic and medical-legal services.

We don't learn very well.
Holy Trinity, San Pedro, CA

This criminal pattern has been repeated throughout my 32 years of experience in the work comp industry many times. There are various techniques used to perpetrate the crime, and all of those various techniques have, at some point in various reforms, been the subject of new laws declaring an activity felonious.

And each time the vast majority of vendors who have legitimate practices get punished, and the constituents whom are to be served by the system lose out, only to find that the targeted criminal activity has taken life in yet another scheme.

The basic scheme works on referrals. So long as referrals are kept "within network" it's very difficult to crack the secret code. There's usually a mastermind who controls the network with cash, or violent, incentives. Someone is tasked with finding "patients" who are promised free money and free medical care for whatever ails them. That "patient" is then referred in a big circle generating diagnostic services and medical reports (all of which, upon loose inspection, will reveal surprisingly similar content, sometimes embarrassingly so). Sometimes treatment is even provided, but more often than not treatment takes on a phantom quality. Billings for those services are then submitted and liens are filed, with the sole intent of settling for pennies on the dollar because, what the heck, it's free money since no real services or goods were provided.

In the most recently publicized scheme, the providers and others indicted as part the FBI's "Operation Backlash" have collectively filed more than 33,000 liens, with a total claimed face value of at least $233.5 million, according to a WorkCompCentral analysis of data available from the Division of Workers' Compensation's Electronic Adjudication Management System, or EAMS.

That analysis doesn't include all of the fraudulent billings that were not contested and were paid either at face value, discounted to fee schedule, or negotiated without filing for lien protection.

We frankly don't have a very good system for understanding when an illegal referral/work comp fraud scheme is incubating. By the time suspicions arise, the conspiracies have mushroomed and have provided nice profits, and the only thing that trips up the criminals is plain old basic greed; easy money for too long.

Which is why these schemes will continue, and why, no matter how many laws are passed making this or that illegal, fraud will continue to take money away from injured workers and the services they need, and will continue to batter the black eye that workers' compensation perpetually experiences, at least in Southern California.

Why do workers' compensation criminals congregate in Southern California? I think it's a simple matter of the weather. Criminals are, essentially, lazy - why work for money if you can get it easier. Likewise, why shovel snow, or deal with seasons, if you can live nearly 365 days a year in mild, forgiving climate with a vast array of recreational opportunities?

I've long believed that Southern California's climate was the primary driving force for its robust economy. It takes smart people to start and grow business. Smart people want the same thing everyone wants: comfort. So smart people go where the weather's good and they figure everything else out after that.

So do criminals.

I know, the basic medical fraud scheme isn't the only game in town. Various cheats against work comp take on different permutations depending upon the level and origination. Sometimes it's within the system, sometimes it's external. Sometimes it's penny ante, sometimes it's a huge scale. Sometimes it's white collar within otherwise respected institutions, and other times it's low scale.

At all times it's contemptuous. Sure, the fraud "costs" insurance companies millions of dollars a year - but that's a false conclusion because those costs are simply passed down to the policy payers. When a fraud recovery is made, though, that money doesn't find its way back to those payers...hmmm...

The real damage is to the institution of workers' compensation and everyone in the system that believes in the mission and who try to execute within the constrictions of the law; ergo those are the same people that are punished with fees, procedures, reviews and other sorts of nonsense intended to capture a very small percentage of anti-socials.

It sort of feels like Catholic School to me. I went to Holy Trinity in San Pedro, CA, from kindergarten through sixth grade. There were one or two kids every year who just couldn't tow the line, and for their transgressions the entire class would suffer some punishment. I guess the theory was that if everyone was punished then us do-gooders would blow the whistle and take on vigilante roles against the jerks that were making our days bad.

That never happened though, because the jerks just didn't care and would do whatever they wanted to do regardless of the consequences.

So, big deal - a fraud bust results in the discovery of hundreds of millions of dollars in illegal activity. When those folks are taken out of the system, there's plenty of others ready to fill the gap.

Fraud is, unfortunately, a cost of doing business in workers' compensation. There's no easy answer. There's no easy remedy.

Like Catholic school, we just live with it and say our afternoon prayers in hopes that the punishment for the rest of us isn't so bad.

Monday, February 8, 2016

Football - Of Course...

The day after Super Bowl Sunday - what did you expect from this blog?

I did what nearly every other American did: watch one of the single biggest media events on television, uniting with millions of others to experience the pageantry, suspense and excitement of professional football - the nation's favorite entertainment.

Of course, mix the National Football League and workers' compensation in the same blog and you come up with brain injury.

There was one Denver Bronco player sidelined with a head injury in the game (I forgot who) and commentators later indicated that he had been referred for neurological examination. The topic came up in announcer banter a couple of times during the broadcast.

Brain injury is a big issue for football, but NFL Commissioner Roger Goodall doesn't think so, at least not now with the league's success in state legislatures passing laws against cumulative trauma, cross-jurisdictional awards and an inadequate brain injury trust fund (as part of a class action law suit settlement).

The NFL's various insurance carriers were probably more circumspect about the risks though.

Travelers Insurance Company in particular didn't like the cost of brain injury treatment, so it undertook some subterfuge to avoid it.

George Visger spent only one season with the San Francisco 49ers in 1980. After suffering multiple concussions, Visger developed hydrocephalus, which is a build-up of fluid in the brain.

Travelers was the 49ers workers' compensation insurance company.

Visger established the compensability of his brain injury in 1984, and he received an award of $10,552.50 in permanent disability benefits and future medical care. In the years that followed, however, he struggled to get the treatment awarded.

Finally in 2012, he retained the assistance of counsel.

In response to counsel's communications, Travelers hired medical management company, Paradigm Outcomes, to assess Visger’s condition.

The nurse case manager Paradigm assigned to Visger's case issued a treatment report. Travelers apparently wasn't happy.

The nurse case manager, Douglas Ardley, would later testify that once Travelers learned about the cost of the brain injury treatment he recommended in his report, Travelers told him to bury it. Visger's attorneys were eventually able to obtain the report by subpoena and then secure an award for the recommended treatment.

Travelers challenged the judge's ruling, but the Workers' Compensation Appeals Board denied reconsideration of it last October. The carrier then sought relief from the 2nd DCA, but the court last week decided to let the board's decision stand.

The tragedy in Visger's case isn't that he had hydrocephalus, nor that he had to wait so long to get recommended treatment.

And though reprehensible, there's no tragedy that Travelers pursued its own profitability interests over the ward whom it contracted to take care of; and certainly it's unfortunate that California's reforms over the past 25 years have eviscerated any meaningful penalties or enforcement for bad faith against a recalcitrant claims payer when there's unrequited testimony about dollars over life.

The tragedy is that such cases sabotage trust. I want to report that Travelers read Ardley's report and implemented all recommendations, or more, and went above and beyond the call of contract to take care of Visger.

But instead the company decided shareholder interests were greater than its fiduciary responsibility to the beneficiary of its insurance contract.

It's reported that Commissioner Goodall in his state of the NFL address before the Super Bowl downplayed the safety risks.

"There is risk in everything," he said. "There is risk sitting on the couch."

Visger and his attorneys would argue that there's greater risk ending up in the workers' compensation system subject to medical decisions that take into consideration the payer's profit margins over the health and well being of the injured.

It's a shame.

We should not wonder why work comp has such a bad reputation.

Visger's case was San Francisco 49ers v. WCAB, No. B268862.