Alternative to Drugs

While a lot of emphasis at the National Rx Drug Abuse & Heroin Summit in Atlanta, GA, this week was bringing awareness to the scope of the opioid epidemic and the cost in lives and money, there were several sessions that touched on alternatives to drugs, how difficult it is to exercise those alternatives, and how awareness needs to be brought to those alternatives - to doctors, payers, and recovery candidates.

Becky Curtis, founder of Take Courage Coaching™ and WorkCompCentral's Magna Comp Laude award winner for 2015, has written an open letter to help explain one alternative - pain coaching.

Here's her letter - feel free to copy, paste, distribute or cite to anyone that is of influence or trying to deal with opiate recovery:

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Chronic pain has become a very costly and controversial subject these days. The Centers for Disease Control’s recommendation states, “The guideline is intended to ensure that clinicians and patients consider safer and more effective treatment, improve patient outcomes such as reduced pain and improved function…”

After a devastating accident left me partially paralyzed and with burning nerve pain from the neck down, I studied everything I could find on the brain and pain. I trained as a health and wellness coach, then developed Take Courage Coaching™, a telephonic pain-management coaching program for those suffering with chronic pain.

Since 2008, Take Courage Coaching™ (TCC) has been a pioneer in designing, implementing, evaluating, and researching the most effective methodologies for coaching individuals, who live with chronic pain, to learn a self-management approach to their pain. This does not intend to exclude the use of opioids or other medications, but we have consistently found when individuals learn evidence-based strategies to manage their pain, they are able to retake control and live life again. 

In the last 7 years, we have helped 75% of our clients replace opioids with other modalities. The result has been a 54% return to work, increase in vitality and mobility, and reduction in fear avoidance and negative affect.

While speaking to a group of providers at a national pain conference, I shared the following quote: “There is no evidence chronic opioid therapy benefits most people… Unfortunately, opioids remain the de facto treatment for most workers with chronic pain.” [1] When I ask physicians in my audience why this is, their responses are consistent: “it’s easy,” “it’s paid for,” and “it’s what is expected.” 

Pain-management coaching is not easy, it is not paid for and it is not what is expected. But it works. So I am diligently striving to see that it is easily accessible to people with pain, it is paid for, and it is what is expected when people ask for solutions to chronic pain.

Most clients with complicated pain have already tried the “easy,” passive route. Most of us have had numerous surgeries, tried countless medications and a myriad of procedures. Once pain lingers, if we are going to have any success, we will need to put away the expectation that someone else will cure us, and actively engage in simple evidence-based modalities. 

At Take Courage Coaching™, we assess each client with the Non-VA Pain Outcome Questionnaire (POQ) when they start, at 6 months and one year. We have discovered it takes time for neuroplastic change [2] to occur. This is not the fast, easy route, but the changes are measurable and lasting. After measuring data for several years, we have found the best time-frame for coaching a client is one year.

Pain-management coaching is not paid for—yet. Because we have seen statistical significance in our results (in all 8 areas of the Pain Outcomes Questionnaire), this is disappointing. We are only able to be paid by Workers’ Compensation, and we have piloted the program in one VA pain clinic in Oklahoma with significant results. But many of those who really need tools to taper off opioids and get back to life are not able to afford the service out of pocket. Insurers cover doctor visits, ER visits, and medication for chronic pain, but not coaching that provides the patient with a lifetime of tools for self-managing pain—a service that costs less than the average annual direct healthcare costs for an individual with chronic pain. [3]

Pain-management coaching is not what is expected. We expect a pill, a surgery, a procedure to cure us. But what if, instead, providers were educated on this available tool?

As Dr. Sean Mackey testified before the U.S. Senate this month [4], one of his patients—a 73-year-old woman who suffers nerve pain and needs to take one opioid in morning and one at night to sleep—told him: “Please don’t let them take away the medication that’s helping me to function without giving me something else.” Pain-management coaching is that “something else.” Our clients often tell us, “I now have the tools I need to manage my pain. I’m ready to taper off my opioids and get back to my life.”

Let me tell you a story about a veteran who had been bedridden for years due to pain. He was isolated with little human interaction, subsisting on Twinkies, Mountain Dew and opioids 3x per day. Because TCC is a telephonic program, he was able to consistently attend his two coaching appointments each week without leaving his home. 

His coach asked him, “Are you willing to be released from the prison pain has put you in?” He was ready! He had a breakthrough when he realized he had the support and tools he needed to accomplish his goals. They just had to be small enough to not overwhelm him. After working with his coach for 7 months, he made the decision to start tapering off his opioids. He reported his pain was less using his pain management tools than it had been while on opioids. 

His focus is outward now instead of inward. He didn't think he could go on without opioids; he didn't think it was possible. This Veteran is making more plans for living life and is seeking to do more of the things he loves and has missed because of chronic pain. He continues to increase his exercise routine and states he is stronger and enjoying life. He credits accountability for his moving forward—having a coach for support and motivation.

Thank you for taking the time to read this letter. I would love to have a conversation with you about how we can make pain-management coaching a standard of care for everyone who is in chronic pain and particularly those attempting opioid recovery.

Sincerely,

Rebecca Curtis, PCC

Take Courage Coaching™

footnotes:

1 Howe CQ, Sullivan MD. The Missing ‘P’ in Pain Management: Now the Current Opioid Epidemic Highlights the Need for Psychiatric Services in Chronic Pain Care. Gen Hosp Psychiatry. 2014 Jan-Feb; 36(1)99-104.

2 “Neuroplastic change” means actual structural changes to the brain when a repetitive process is re-learned. See Michael H. Moskowitz, MD & Marla DePolo Golden, DO. Neuroplastic Transformation: Your Brain on Pain. Neuroplastic Partners, LLC. 2013.

3 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4094572/ (2014).

4 See more at: http://scopeblog.stanford.edu/2016/02/29/opioid-abuse-among-seniors-stanford-pain-expert-testifies-on-issue-before-u-s-senate/#sthash.eVtxk7U5.dpuf

Murthy's Law

At the National Rx Drug Abuse & Heroin Summit being held in Atlanta, GA, the nation's relatively new Surgeon General, Vice Admiral Vivek Murthy, made some poignant observations about the nation's issues with opioids, and of course observations that bleed into workers' compensation.

Murthy first observed that, like many issues in work comp itself, the public health problem that is prescription drug addiction arrived here with good intentions, but went astray because, for the most part, we as a society, as professionals, as consumers, didn't really understand what we were getting into.

Now, of course, there are more than 2 million Americans becoming addicted to prescriptive opioids every year and when those folks are denied their opiates they turn to the black market, eventually driving heroin use, and worse.

Surgeon General Vivek Murthy

Murthy said that over 250 million prescriptions are issued for opioids every single year - nearly enough for every single individual in America. But the overall level of pain reported by Americans has not changed.

There are five key components that need addressing, Murthy said:

1) Change the prescribing practices of health professionals to ensure they are treating safely and effectively;

2) Increase access to Buprenorphine, an opiate uptake inhibitor that helps with the detox process;

3) Ensure that medication is combined with counseling services and that the combination is available to all with addiction profiles;

4) Expand public education so people understand the risks of opiates and how to properly manage them; and

5) Change how this country sees addiction to remove the stigma - it is a disease says Murthy (and many of the folks here) not unlike any other disease such as diabetes.

The workers' compensation institution helped create this opioid issue two ways: by denying or strictly limiting access to conservative care (physical therapy, chiropractic treatment, acupuncture, etc.) and failing to account for the "whole person" in providing medical care.

The only remedy left for physicians, then, became pills. More pills. Stronger pills. Get that patient out of the office quickly because he or she is costing valuable practice time, ergo, billings.

Certainly the constriction of conservative care wasn't without good intention. Abuses were rampant. Certain chiropractors, physical therapists and other conservative care providers determined that unrestricted care meant a constant, recurring revenue stream well beyond any beneficial care plateau. 

That abusive, selfish mentality made some people mad. Mad enough that laws and regulations were implemented to constrain the abusers, which of course punished the vast majority that had no intention of abuse, and the spiral down to a national crisis began.

So now we're left with trying to correct a problem of our own making, and Murthy's steps 1 and 3 can be directly affected by this industry: changing prescribing habits requires education and resources (i.e. use common sense in managing care rather than wholesale constrictions), and treating the whole person (yes, that means psychological care and treating the comorbidities along with the industrial diagnosis).

There were two very important philosophical points that Murthy made, though, that if we hold them close to our professional commitment, will not only increase the dialogue about drugs, but also about the efficacy of workers' compensation as the work injury protection program it is intended to be.

One - Murthy wants the country to know that addiction is not a moral failure, and in this regard WE should tell the country that workers' compensation itself is not a moral failure. If we look at work comp in the manner for which it was intended - not a line of insurance but as a mode of social obligation - this changes how we look at it, and how others look at it (so make your Comp Laude nomination now!).

Two - It is a fundamental American value that we are responsible for each other.

We forget that the children of our workers are our children too - that those people are our people. There is no economy without our people, and the children of our people. One need only look at areas that have been particularly hard hit by the opioid epidemic, such as rural Kentucky, to realize that the social burden from ignoring the problem is far greater than the cost of the remedy.

We are responsible for each other.

How often do we forget that?

Carrot? Or Club?

There's a trend percolating in workers' compensation about incentive based medicine.

The basic theory of incentive based medicine is to reward physicians for ensuring good, quality care is provided injured workers/patients to promote faster recovery, less disability, return to health and ultimately return to work.

In theory this all sounds good.

But as with anything that we think is a good idea, others will abuse the trust, and try to steer the world towards their special interest profit motive.

That's a concern that has arisen with the latest news that certain networks have either deployed or are developing economic profiling programs about physicians in their networks.

Yesterday, WorkCompCentral News reported that the Harbor Health Systems network and MPNs for Zenith, Liberty Mutual and the State Compensation Insurance Fund are using economic profiling to determine the top-performing doctors within their networks, and have promised to reward the best performers with extra compensation.

It is also reported that Coventry Health Systems says its "in the preliminary stages" of developing its own incentive program.

According to the news story, State Fund has a separate MPN provided by Harbor that does not offer financial incentives. But another Harbor plan offers financial rewards to doctors with the best track records for "efficiency."

Zenith's plan says incentives "may be provided," and Coventry says it hasn't determined what incentives, if any, will be part of its program.

The Harbor plan says that the disability rating at case closure is one of the factors that will affect a doctor's efficiency rating under the incentive programs. The duration of the claim, the duration of the medical treatment and the costs of the claim are also factors.

According to one source who wished to remain anonymous, in addition to looking at the direct cost of the treating physician, other factors was whether an attorney was on the case and how long the case had been ongoing. This source is concerned that if he or his clinic does not comply with corporate directives on any one particular case that punishment will be delivered; in other words the economic profiling will be used as a club, rather than a carrot...

While the Labor Code expressly allows MPNs to do economic profiling and to offer incentive programs based on doctor performance, the plan administrator must file a description of the program policies and procedures with the Division of Workers' Compensation.

The question being posed is just how much of an incentive program is disclosed in the filings, and whether there are "back room" criteria not subject to public review.

The division of opinion to the story broadcasts a stark and wide understanding of the issues, of the plan, and whether performance based incentive plans should even be a part of the work comp schema.

Here are some of the comments posted thus far to the story:

"It is absolutely ridiculous that Harbor will only compensate at 100% of OMFS if physicians basically don't do surgery, don't order MRI, no meds and limit physical therapy to 6 visits. Anything outside of this regiment the physician gets less than OMFS."

*****

"Are we the only ones concerned? As a TPA, we deal with attorney selected MPN physicians. Many of these MPN physicians even address their progress reports to the attorney with a CC to us, the TPA."

*****

"I agree that the insurance company should not be allowed to incentivize doctors, but when I read CAAA's response I laughed. 'They're supposed to be paid to practice medicine, not to improve the numbers of an insurance company's bottom line,' he said. Insert applicant attorney law firm name in for the insurance company in the previous sentence. That's been going on for decades."

*****

"Notice the outrage geared toward, 'will my client get a lower rating?" = 'will my fee be affected?' Rather, shouldn't the interest be whether the treatment was effective in returning my client back to work or preinjury status??? Or even, is this a provider who overbills, overprescribes or frequently requests treatment outside of MTUS, ODG or ACOEM?"

*****

Harbor Health posted a reply:

"Not only is there no connection to whether a doctor reduces the amount a care delivered to an injured workers, the model works quite the opposite from the concern expressed. A provider who delivers better health outcomes can in fact spend more on care than their peers and actually score in the top 20% of the benchmarking. This is because our model focuses on total outcomes; cost is only one of several factors measured and it is measured in the aggregate with medical spend, indemnity spend, and claims expense. A doctor can actually drive higher spend in medical if that investment results in better cure rates, reduced lost time, and reduced litigation."

*****

Frankly it's ludicrous that anyone has to provide any financial incentive to do the right thing, but this is work comp and at the end we only have human motivations to work with. I get it, and if the rules really will deliver better medicine, and the injured worker truly is benefited, then great!

However, transparency is really the question: One person's motivation is another person's deception ... there's a line of tolerance that defines disputes.

Jean-Louis Guillard, is a Swiss lawyer. He posted a thought provoking article on LinkedIn a couple weeks ago about ethics in business and that fuzzy line of tolerance.

"[T]he scope of the compliance or ethics message is somehow limited and the technicalities are hidden into legal jargon," Guillard writes. "'We do not offer bribes'. Indeed, but do you pay when asked?"

That same logic is applicable in reverse.

"We reward good outcomes."

Indeed, but who defines the "good outcomes," and do you punish for transgression from any particular corporate directive?

Monday Morning

It's Monday morning - contemplating this past week.

My daughter paid a visit to get some Southern California weather after testing Alaska winter for the first time. The sun cooperated.

And of course Mom died. It was reasonably quick. She was comfortable.

My daughter was fortunate enough to visit with her grandmother while still alive, albeit Mom was severely limited - but I could tell by the look in her greying eyes that she recognized, and appreciated, Nichole's presence.

And certainly my daughter appreciated getting those last couple of hours with her grandmother.

It was last Saturday when we visited. Mom gave me "that look." It said, "I know you, I trust you, you can feed me and I'll eat what I can." She did. I did. Mom couldn't speak. She was too weak to even grasp my hand.

But she grasped my heart. I felt it.

Of course, then Mom checked out Wednesday evening. I was scheduled to visit the next day so I went anyhow to take care of the various tasks that would need my attention at some point in time. Now or later, may as well be now.

I was too busy to feel grief.

Yesterday I took Nichole to Burbank Airport for her return to Anchorage. She packed her bicycle in a box and checked it through. I said goodbye at the TSA checkpoint.

Now, Mom is gone. Nichole is gone.

When I woke up this morning, though, workers' compensation was still here.

Over 30 years of exposure to workers' compensation; I didn't realize until now - I have personally witnessed nearly one-third of the life of work comp.

My naïveté at the beginning was understandable of course, but alarming to me now. Reform after reform brought, and took away, various levels of medical control, indemnity increases and limitations, guidelines, reviews, and other assorted points of special interest to lawmakers, who for the most part, have the same level of understanding I did 30 plus years ago.

There's been fraud busts, and new fraud to replace those busted. Insurance companies have come, more have gone.

Rates have gone up, rates have gone down. Somebody, somewhere, is always complaining - one person's outcomes based incentives programs is another person's benefit denial target.

Courts make decisions that find compensability when no one thought there would be, and other courts have denied claims where others felt it unfair and unjust.

There's talk of constitutional challenges, federal review, and general media criticism.

Alternative work injury programs are hypocritically criticized by the work comp cognoscenti using the very same argument points they say is wrong with traditional comp.

There are audits, but perhaps not enough. There are penalties, but perhaps not enough.

Someone, somewhere, is going to take advantage of something that no one else thought would make a difference, until it does make a difference, and then the special interest matter ends up back in front of lawmakers, who for the most part, have the same level of understanding I did 30 plus years ago...

I was sad to see Mom go, of course, but the press of estate business, and my regular business, has retarded the grieving process. I'm sure there'll be a point in the near future when a tear sheds.

I was sad to see Nichole go too. We're always sad when our children leave. But I'm quite certain I'll see her again, though likely not soon enough for either of us.

And then there's work comp. I don't think I'll ever have to say goodbye to this incredible institution, at least not before I die.

For all its faults, for all of its negative traits, work comp is incredibly attractive and complex.

I see in comp "that look," those greying eyes that grasp my heart.

We can't fix everything, and we can't fix everyone.

To me, it takes only that one case though, where someone is profoundly affected by unfortunate circumstances and the benevolence of those trained in the system to rectify and bring some solace ...

My heart ...

This past week brought some perspective to my life.

There will be other times when that happens as well.

In the meantime I have the constant of work comp. For as much as it changes, it remains principally the same as I knew it some 30 plus years ago.

Couple Days Off

Mom died yesterday evening.

I'm taking a couple days off from this blog to take care of her affairs.

Thanks to everyone for your consideration.

CIGA Technicalities

One of my pet projects is getting the next generation into the work comp world to take up the slack of all us gray hairs (or in my case, no hair) who are moving on to other pastures. In that vein, today I head over to my law school alma mater, Pepperdine University in nearby Malibu for a lunch time lecture on careers in this industry.

I tell the "kids" about the great variety of specialization in work comp, about the mission of doing good things for people in bad situations, and how the technical nuances in work comp law requires particular legal skill and expertise.

Last year we had about 35 "kids" attend, suckered in by a free Chick-Fil-A lunch and then enraptured by the presentation, and ultimately a half dozen or so asking for more information and training to start a rewarding work comp career.

Pepperdine's annual 09/11 memorial display.

For the technical part, I can point to this morning's WorkCompCentral news, where the California Insurance Guarantee Association appears twice today, in court cases that might be baffling to an outsider, but might make perfect sense to one of the Pepperdine law students considering a path into work injury law.

In the first instance, a federal trial judge ruled last week that the California Insurance Guarantee Association cannot avoid its obligation to reimburse the Centers for Medicare & Medicaid Services even though the government did not meet the claims filing deadline under state law.

CMS is asking for $308,401 that it spent on treatment costs for 10 beneficiaries who it says were covered by policies that CIGA was administering on behalf of defunct Fremont Indemnity Co., Legion Insurance Co., and the Superior National Insurance Cos.

The deadline for presenting claims based on those entities had long ago passed, last decade. The court record isn't clear on when CMS made those claims, although there is no dispute that CMS did not meet the deadlines imposed by state statute.

U.S. District Court Judge Otis D. Wright II said the United States is excluded from the operation of such state laws because of its sovereign immunity and ruled that the statutory deadlines are not binding on CMS.

The U.S. Supreme Court's precedent ruling in U.S. v. Summerlin established that once the federal government asserts a claim, "it cannot be deemed to have abdicated its governmental authority so as to become subject to a state statute putting a time limit upon enforcement."

A federal District Court of Massachusetts case back in 2001, which Wright distinguished in his opinion, found that the rule from Summerlin "cannot overcome the particular niche for state authority carved out by the McCarran-Ferguson Act, which was enacted by Congress five years after Summerlin was decided." The 1st U.S. Circuit Court of Appeals affirmed that decision one year later.

Wright said he disagreed because "protecting the insurance business from unwitting federal legislative control is a far cry from subjecting the federal government as a sovereign to state control."

My bet is that CIGA will take this case up the appellate ladder.

Meanwhile the 2nd District Court of California ruled that carriers which have contribution agreements between them arising out of a work comp claim doesn't bind CIGA when one of them goes under.

Ullico Casualty Co. and Care West Pegasus Modesto both wrote policies for Superior Center Concepts. They jointly agreed to settle a workers' compensation claim by Rosa Lopez, a Superior Center employee, before Ullico went bankrupt in 2013.

The terms of the settlement provided that Care West would be responsible for 52% of Lopez's treatment charges and Ullico would be responsible for the remaining 48%. Care West and Ullico also agreed to split the cost of Lopez's medical-legal expenses evenly.

Care West objected to holding the whole bag.

The 2nd DCA said the statute is clear and that Care West is "other insurance" for purposes of Insurance Code section 1063.1.

Mind-numbing technicalities...

Okay, perhaps the "kids" I will lecture to at Pepperdine today won't be so interested in CIGA, CMS and contribution limits, but certainly they can appreciate that the technical aspects of work comp law, and insurance guarantee law, commands a high level of legal prowess, and if another half dozen this time ask for more career information today my job will have been done.

There's a reason workers' compensation was one of the first specializations recognized by the California State Bar back in 1973. That fact should be a source of pride for legal practitioners in the field, and I believe is an achievement goal for this next generation of lawyers ready to graduate in a few months.

Exceeding the Expectation

My new MacBook Air arrived yesterday to my surprise.

It wasn't supposed to be here until this afternoon.

Recall that on Thursday I decided to speed up my old computer with some coffee. Seeing that afternoon that recovery was futile I ordered up a "new" refurbished MacBook Air. Free delivery was estimated to occur March 22, but I could pay an extra $22 for "next day" delivery on 3/21.

I was already upset about frying the old box and having to purchase a replacement (let alone the hassle in moving all of my data over), and spending the extra money to guarantee a delivery date didn't sit well.

And it wasn't necessary: Apple made a reasonable promise and then exceeded my expectations based on that promise.

Getting the new MacBook Air yesterday meant I wasn't quite ready to set it up - I left my back up drive at home, our senior IT guy was working from home and meetings all day would not allow me to get up and running that day.

I just KNEW that moving to the new computer would be a long, painful process.

I opened up the machine, turned it on, went through a couple of steps to set up language and location, then used Apple's Migration Assistant to move from the old computer to the new one in about an hour and a half, without the necessity of monitoring...

All that anxiety wasn't necessary:  Apple made a reasonable promise and then exceeded my expectations based on that promise.

And the new computer is noticeably faster than the old one. The old box had a battery that was dying, using up valuable system resources to try and monitor the warn down lithium-ion. In addition the new machine has a slightly faster processor and more memory - I'm sure that contributes as well to the noticeable performance increase.

But not THAT much: Apple made a reasonable promise and then exceeded my expectations based on that promise.

In case you haven't noticed, there's a theme this morning: exceeding expectations.

How often can you look at workers' compensation and say we, as an industry (or even a company) exceed the expectations of employers and their covered workers?

We defend workers' compensation as a sacrosanct institution because its been around over 100 years and is a linchpin to a modern economy: spreading the risk of financial disaster and providing medical care to those in need.

But the industry is routinely chided, particularly of late, for failing to meet those basic expectations.

And, hypocritically enough, when alternatives are proposed the industry uses the same arguments that critics throw at work comp against those alternatives: non-covered injury types, exclusion of pre-existing conditions, limitations on physician choice, restrictions on medical care, inadequate indemnity, etc.

Indeed, if you ask nearly anyone that hasn't yet gone through the work comp gauntlet you'll find that expectations are exceedingly low. Mistrust, pervasive fraud, denied benefits - those are, unfortunately, the expectations that we've come to understand.

Expectations are actually easy to establish because the ones providing the service or product get to define what they are from the outset.

For instance, Apple told me to expect the computer on Tuesday, and I felt that was reasonable so I accepted it. Heck, if they told me I would get the box on Thursday I would have been happy.

In workers' compensation we don't often enough do a good job of setting expectations. Some of those expectations are dictated by law such as waiting periods, or timeliness of indemnity checks, or types of conditions covered.

Other expectations are of our own doing: initial contact, communications, delivery of service; we have control over setting those expectations.

And we have control over meeting or exceeding them too.

It's easy to pontificate about setting and exceeding expectations, but it's another thing to actually performing to those standards, and that takes discipline.

In the computing industry, discipline is dictated by competition. The Digital Age bar of expectation is now set so high because of competition that the customers of these products and services expect nearly instant gratification, even with hardware. In my case, Apple was able to do it by delivering a machine ahead of time and making the transition unbelievably simple and quick.

Stanford law professor Alison Morantz has studied Texas non-subscription for years. She just released a new paper, still undergoing the editorial process, which shows that, at least with her cohort, companies save a significant amount of money over Texas subscribers (and Texas is already a reasonably priced work comp state), and that these company workers seem to be better off (though she admits that more study is needed on outcomes).

The study is divisive of course. The old guard hasn't yet attacked the study per se - it's too fresh - but the same old arguments are used to deride opt-out in general. And opt-out proponents say, "I told you so."

Maybe it's all about expectations. Maybe those that participate in work comp have been so lax, so lacking in discipline, for so long, that work comp has deteriorated to meet those low levels of expectation, and when something comes along that exceeds that low bar we can't help but be critical and attack it.

Because someone else is doing something fresh, exciting, and perhaps way better than the stalwart.

Before you think I'm an opt-out proponent, I'm not. I frankly don't care how benefits are delivered, what mechanism is used for work injury protection, or why.

I only care that there is some system in place that is a reasonable cost to business, and provides some adequate measure of protection to workers.

It can't be all things to all people all the time. But a good work injury protection scheme can be most things to most people most of the time. It's a low expectation bar.

We just need to exceed it, whether by traditional comp, or an alternative protection system.

Lightly Modified

This past week I ordered up an Ohlins rear shock absorber for The Sewing Machine.

The suspension on TSM is entry level. The bike, though very capable under the guidance of an experienced rider, was designed for entry level riders; while the suspension is quite adequate for that market, it is easily overwhelmed when pushed.

Some time ago I had upgraded the front suspension (which truly was awful for anything over very mild riding) with a RaceTech kit comprised of new springs and some different valving. The difference was not just noticeable, but a night and day difference providing much better compliance and feedback than the original set up.

The Sewing Machine, bone stock

It also helped highlight the inadequacy of the rear suspension, which is not as bad as the front end, but definitely doesn’t control things as well as it could, or should.

The motorcycle industry is unique, I think, in that for a basically discretionary consumer product the manufacturers’ competitiveness leads to constant, incremental improvements, and then every 7 to 10 years there is a complete model redesign or introduction of something new. The pace of change keeps enthusiasts always hungry for the latest and greatest.

I almost succumbed to this mentality a couple of weeks ago and actually thought about selling TSM in place for a barely used Ducati Monster 796. It only had 620 miles on it and the seller was nearly giving it away because he had “lost interest in riding.”

To me, of course, that’s sacrilegious. Motorcycle riders don’t lose interest in riding. Sometimes they take vacations from two wheels, but the interest is always there, a magazine away, a website post, a video…

Losing interest in riding tells me that person wasn’t really a motorcycle enthusiast.

Regardless, I didn’t buy that Ducati and kept TSM because my current ride is fun, cheap, and with just a few minor changes, gives me what I want: corner-like-a-cue-ball thrills. I realized I don’t need the latest and greatest, I don’t really need more than TSM’s 24 horsepower for what I do, I don’t need a wholesale replacement of my ride; I make do with what I have by treating it properly, by using it as intended, and getting the most out of its substantial capabilities. Its basic design is quite good, I just need to make it my own and with the Ohlins shock, it’s pretty much all done (well, a Power Commander fuel control unit is the last on my to do list…).

Not only is TSM sufficient for my entertainment needs, but it provides sufficient performance that it can embarrass many other much more potent, bigger, powerful bikes and riders in many situations. It’s a very good machine that doesn’t cost a lot of money and performs exceptionally well with just a few customizations to match my body and skills. That little bike under my 46 years of riding experience is much more capable than a modern Ducati at the hands of a relative neophyte.

Of course this brings me to workers’ compensation.

I’ve said often enough that work comp can function quite well as intended, but not necessarily as designed.

There’s the basic package: employer pays into the system, some of that money is diverted to pay for administration, some of it to invest for the long term, some of it for profit to entice businesses to invest in the system, and presumably the majority balance goes to the beneficiaries, i.e. injured workers, in the form of medical care and wage loss coverage.

The basic package gets modified along the way depending on who is owning the ride, whether it’s high deductible limits, a robust return to work policy, prompt worker engagement, etc. Those modifications help each employer make it their own program if they're interested enough to go for a ride.

Sometimes we’re tempted to buy a new deal. Those deals entice us with promises of more horsepower, better handling, and greater efficiency.

But when we stand back and take a sober look at the promises, we realize that all of these “improvements” from the old ride don’t really add anything to why we have workers’ compensation in the first place; the basic package.

There are times (or cases for that matter) when we question the performance. For instance, an injured worker in New York has been able to deflect an independent medical exam for FIVE YEARS until the workers’ compensation judge ordered it be conducted at her house - and she still resisted with an appeal (and lost).

But those are anomalies. Even in the most litigious state, California, over 80% of all claims are resolved without attorney involvement, without much dispute, and with expediency and efficiency.

Yep, there are plenty of times when things don’t go as designed, when it’s time to change the fork oil or tweak the suspension. More often though, the performance we seek is at our own hands, our own skills, our own performance.

We all have the ability and resources to make workers' compensation operate as intended regardless of the design.

There are some fancy names being bandied about, synonyms for doing the right thing. But, it really is all very simple. The performance we seek in workers’ compensation is more about what we do with it rather than how it’s modified.

We don’t really need a lot of horsepower or fancy titanium, computer controlled, fast stuff.

What we really need is to keep our skills sharp and ensure the basics are in good operating order, then execute efficiently.

So yesterday, I took TSM out of the garage, checked the tire pressure, wiped off the windscreen, put on my leathers, and embarrassed some much larger displacement sport bikes up and down Yerba Buena and Latigo Canyon roads in Malibu.

I rode TSM as intended, and with my inexpensive modifications it provided good, efficient performance.

Damn, that was fun…

Spilled Coffee

At about 3:30 a.m. PT yesterday I bumped my coffee all over my 5 year old Mac Air notebook computer. It got thoroughly soaked.

The battery on that MacAir had gone south about 8 months ago. For non-MacAir people, the batter is not replaceable by an ordinary human being, and truthfully it's about as cheap to just get a new computer.

But two things got in the way of replacing it: I'm cheap and I'm lazy.

To the first point - the computer still worked; I just had to keep it plugged in all the time (well, it would last about 30 minutes without external power).

To the second point - moving to a new computer, particularly after 5 years of use, is a huge pain in the tucus even with Apple's fantastic migration technology.

Alas, circumstances are going to force the issue now.

Kind of like Los Angeles and workers' compensation.

At yesterday's California Workers' Compensation Institute's annual meeting a presentation by Rena David, CWCI's Sr. VP, and David Bellusci, Chief Actuary of the Workers' Compensation Insurance Rating Bureau, went into a little deeper about the Los Angeles phenomenon.

If you don't know already, the Greater Los Angeles area bucks state and national trends in frequency, severity, loss expenses, and just about every other "bad" metric that we look at in this industry.

It turns out that the diagnosis codes for many maladies in the LA area include mental health issues as a comorbidity in a significant way.

Of course attorney involvement in the LA area is much greater than in the rest of the state too, which begets the questions: do LA claimants go to attorneys for mental health issues? Or are the LA area attorneys assisting injured workers find their "whole selves"?

Well, it turns out that the LA area is also king of continuous trauma too, comprising some 18% of all indemnity claims in the state.

There are some interesting characteristics of these LA area CT claims.

For instance, they are nearly always reported "late" - 70% of these claims aren't reported until at least 6 months after date of injury (for those not from California, the date of injury for a CT claim is, by statute, the last date of "injurious exposure"). On average, a specific injury claim is reported within 14 days of incurrence; CT claims on the other hand average 124 days.

76% of CT indemnity claims have "attorney involvement" compared to 20% of the non-CT cases, and attorney representation is by far the first notice that an employer gets about the claim. Which probably explains why 39% of CT claims are disputed, versus the 4% average for specific injury claims.

In addition, the researchers found that post-termination CT claims are back, despite the legislative attempt a dozen years ago to constrict them: 40% of all CT claims are filed post-termination, and of those attorneys represented the injured worker in 98%, and 90% of those were in the LA area...

The final damning statistic was that CT claims cost 56% more than specific injury claims with the same primary diagnosis.

California  basically invented the CT claim, and it is sacrosanct in the work comp culture. But there is a movement afoot to either get rid of CT or significantly constrict its application.

The report by David and Bellusci is going to fuel that movement.

Kind of like coffee on my computer. The coffee in the morning is part of my ritual, but when I'm not careful it become part of my malaise.

Now I have to replace my computer at an expense and hassle that I don't want to incur. I knew I was going to have to get a new computer. The coffee spill is just forcing the issue.

Unfortunately, Los Angeles is also forcing the issue.

REFORMED?

There are now two independent reports out that call into question administrative and lawmaker's early assertions that the 2012 reform in California, SB 863, has met target goals.

One goal was to reduce friction in the California work comp system by interposing new administrative paths for various specialty disputes, such as the resolution of medical treatment requests. Another was to reduce costs in the system to pay for benefit increases by building roadblocks for vendors such as independent bill review and lien filing fees.

In the first instance, at least, the law encouraged payers to escalate their spending in response to the bureaucratic burden. In the second instance, it seems, that when push comes to shove those claiming unpaid balances on their vendor bills aren't discouraged by paying a lien fee.

Carriers and self-insured employers paid an estimated $7.647 billion in loss-adjustment expenses, commissions, acquisition fees, general costs and taxes in 2014, according to the Commission on Health and Safety and Workers’ Compensation's 2015 annual report.

Compare to $7.553 billion for medical benefits and $5.079 billion for indemnity benefits in 2014...

Though not the first time that administrative burden has exceeded actual benefits in California, the rapid pace of growth stemming from SB 863 is a worry.

Expenses increased 13.9% to $6.965 billion in 2013 compared to $6.114 billion in 2012. And the $691 million increase in expenses in 2014 was a 9.9% increase over 2013.

A breakdown of expenses by category in the report shows loss-adjustment expenses -- which include costs for IMR and UR, bill review, defense attorney fees, overhead and other costs associated with handling insurance claims -- are the fastest growing component of expenses.

Loss-adjustment expenses increased 12.36% to $4.364 billion in 2014 from $3.884 billion in 2013. Loss-adjustment expenses in 2013 were 18.92% higher than the $3.266 billion paid in 2012.

General expenses, which are not defined in the report, added another $1.229 billion to costs in 2014, but this was only 4.86% more than the $1.172 billion in general expenses reported for 2013.

In the meantime, the volume of liens filed is nearing pre-reform levels, having doubled in 2015, according to the Workers’ Compensation Insurance Rating Bureau.

There were 362,899 liens filed in 2015, according to the agenda for the March 22 meeting of the WCIRB’s Actuarial Committee, which is 91.1% more than the 189,951 liens filed in 2014, and 94.8% more than the 186,264 liens filed in 2013.

Compare to the period of 2000 to 2011, which recorded an average of 373,488 liens filed per year, 2.84% more than the total number filed in 2015. From 2000 to 2014, an average of 402,490 liens were filed each year, 9.84% more than what was filed last year.

Most of the volume increase was due to medical, and yes, Los Angeles County's reputation for leading the rest of the state in medical costs is reflected in the lien stats.

Medical providers filed 309,693 liens in 2015, up 97.6% over the 156,770 liens filed in 2014 and more than double the 137,982 filed in 2013.

A total of 230,436 liens were filed in Los Angeles County (accounted for in the Long Beach, Los Angeles, Marina Del Rey, Pomona and Van Nuys district offices) in 2015, an increase of 92.8% over the 119,522 filed in the county in 2014.

The remainder of the Los Angeles area (Anaheim, Oxnard, Riverside, San Bernardino and Santa Ana) saw a 96.1% increase in liens, with 91,612 filed in 2015 compared to 46,762 filed in 2014. San Diego had the single largest increase, 11,052 liens filed last year which was 108.8% more than the 5,294 filed in 2014.

The rest of the state wasn't immune from lien filing increases though.

Liens filed in Eureka, Redding and Santa Rosa increased 35% to 1,339 from 992; liens filed in Sacramento increased 30% to 2,009 from 1,546; and liens filed in Oakland, San Jose and San Francisco increased 28.4% to 9,207 from 7,169.

Humpty Dumpty

Useless statutory mandates....

A useless statutory mandate is one that has no enforcement mechanism. The word "shall" is typical in the useless mandate structure.

The California legislature likes the word "shall," particularly in workers' compensation. It sounds tough. Too often, however, that tough-guy emperor has no clothes...

One of the most egregious examples of a useless statutory mandate was one imposed on the Division of Workers' Compensation by SB 899 to update the Permanent Disability Rating Schedule at least every five years.

Yeah, right. "Make me," was the tone from DWC, because there was no enforcement mechanism - no fine, no funding constriction, not even a slap on the wrist. The mandate was pointless, and ergo, completely ignored. The PDRS was never updated and the mandate provision was removed by the legislature in the next reform round.

SB 863 also introduced a pointless mandate - that Independent Medical Examiner firm Maximus issue decisions within 30 days after receiving a request for review and supporting documentation.

The mandate is so vague, so utterly incomplete, that there is an even split within the one-commissioner-down Workers' Compensation Appeals Board as to what it means.

Commissioners Marguerite Sweeney and Frank Brass, along with Chairwoman Ronnie Caplane, have taken the position that "shall" denotes a mandatory requirement. They say that a failure by Maximus to issue an IMR decision within 30 days means that the WCAB gets to make the decision.

But Commissioners Kathy Zalewski, Deidra Lowe and Jose Razo opine that the absence of an enforcement mechanism for the 30-day time limit is an indication that the deadline is "directory" or "discretionary," and that there is nothing in the Labor Code that makes an IMR decision invalid if its not issued within 30 days, and there is no statute that allows medical treatment disputes to be determined by the WCAB if Maximus misses the deadline.

Now there are two different appellate jurisdictions taking up the issue.

The Third District Court of Appeals had already taken up the case of Southard v. Hallmark Greeting Cards, and the Second District just announced it has granted review in California Highway Patrol v. WCAB (Margaris).

The Southard matter has been pending at the 3rd DCA for almost five months, and the court has yet to set a date for oral argument.

The 2nd DCA is moving more quickly and has ordered Margaris and her attorney to file responses to amicus briefs by Thursday. It has also directed the WCAB to respond to the State Fund writ petition by April 20, and it has set oral argument for June 13.

There's debate whether this issue is now moot since Maximus is getting better at issuing decisions timely - but that's not the point.

Forget about whether failure to adhere to the law results in a default back to the WCAB making a medical decision.

The real issue is that regardless of the law, mandates needs to be backed by an enforcement mechanism.

Anything less and it's not a mandate - maybe Commissioners Zalewski, Lowe and Razo are right...

*********

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”
(Through the Looking Glass, Chapter 6)

Flipping The Bird

I often write about doing the right thing, and how an employer's culture starts at the top and filters through the ranks, ultimately affecting how workers' compensation is delivered to injured workers.

I have written in the past about professional football, how the NFL has gotten off cheap on its obligations to the players that have sustained traumatic brain disease, and how it has successfully interloped in state politics to get laws passed limiting teams work comp exposure but shortchanging players.

I am convinced that California's recent elimination of the neuropsychology specialty from the Qualified Medical Examiner rosters was tied to the leagues' Los Angeles re-expansion.

But now the Los Angeles Rams wants its players to submit to the workers' compensation laws of the team's former state, Missouri.

The Rams, according to a report by NBC Sports, are offering contracts to new players stating that any workers’ compensation claims will be handled under Missouri law, and any disputes will be under the jurisdiction of the Division of Workers’ Compensation of Missouri.

In anticipation of jurisdictional attacks, the language of the contract further states that its terms have been negotiated and executed in Missouri and, as such, any contract disputes would also be handled in the state.

Missouri was 21st in Oregon's 2014 biannual rankings of most-expensive states for workers’ compensation costs. California, of course, was first. Missouri’s costs are 108% of the median cost among all states, compared to 188% for California.

Benefits are far more stingy in Missouri than California. For instance, Missouri temporary disability indemnity rates are capped at 105% of the state’s average weekly wage (SAWW). The current SAWW in Missouri, set on July 1, 2015, is $844.69 a week, which means the maximum an injured worker can collect, regardless of his salary, is $866.92 a week.

In California, the maximum temporary disability benefit an injured worker can collect is $1,128.43.

And California recognizes the scourge of professional sports, cumulative trauma. To curtail this practice, NFL lobbyists were successful in getting AB 1309 passed in 2013, shutting down the avenue for out-of-state players to file CT claims in the Golden State.

While the players union has rejected these proposed contract clauses, that doesn't mean the team won't keep trying to do the wrong thing.

Forget about workers' rights and whether benefits are better or worse in one jurisdiction or another.

Here's what galls me - a multi-billion dollar business is coming into the state of California, quite willing to suck as much as it can out of the pockets of consumers in the state, quite willing to avail itself of tax incentives that ultimately line the wallets of league owners, quite willing to impose its will on the people ...

Despite the huge financial benefit of moving into a market worth many billions of dollars more than its prior market, this business does not want to abide by that state's laws, or protect its workers (i.e. the professionals on the field) in accordance with the will of the people as expressed in California law.

There's taking advantage of a situation.

And then there's taking advantage of an entire population.

The Rams don't respect the law, don't respect the people of California, and don't respect its own workers - a culture of denigration from the top down...

I get offended when someone flips me the bird like this. You should too.

Have No Regrets

This is partly a Mom entry. Not because I'm seeking sympathy, or because I need to offload some emotions, but because there are parallels to work comp, and lessons in life and dying.

I told Mom not to go anywhere last Sunday, that I had to go to Boston for business, and that I would see her again on Saturday.

She hung in there for me.

There's no question - Mom is dying. She hadn't eaten since I left for Boston.

I paid a visit Saturday. My brother and sister-in-law were there too. It seems like Mom knew we were there for her, but it wasn't obvious. She had that sort of glazed look in her eyes, that is when they were open; life was there, but not cognizable.

I held her hand Saturday, stroked her head, massaged her shoulders - I think it was comforting to her. It was for me.

I look back on the last two years since my Dad died. Mom's dementia became noticeable to my dad some 10 years ago, and he didn't really acknowledge it until the last two years of his life. He tried to provide, but of course, the disease process becomes more than one person can manage. It requires a team.

Mom's tree.

I promised Dad that I would ensure Mom got the best care and treatment possible and I think that mission was accomplished. The facility where we placed Mom has been fantastic; more than adequate staffing, great engagement exercises, really good food. Mom made friends there - she always was pleasant to others, even when she was slipping a snide comment (dementia lacks an oral filter - what is thought is what is said!).

She had a team.

My resolve as Mom's attorney in fact and trustee was to check on her at least twice a week - thankfully I had Forty One Mike to assist in that mission otherwise it would not have been possible.

My wife was supportive. My brother and sisters helped as they could, particularly my brother and his wife since they were geographically closer than anyone else.

I’ve been with mom as much as physically possible for the past two years. I’ve spent good, quality time with her. Have taken her for walks, napped with her hand in mine outside under the cabana at her facility, have shared laughs, embarrassed at some of her off-color comments (dementia…), and have answered patiently the same repeated questions without frustration.

Two weeks ago there was sudden decompensation in her physical health. The facility sent her to the hospital and the physicians there sent her back, and requested hospice evaluation.

I knew what that meant.

Since then the degradation in her health has been rapid.

*********

I have a friend who's an injured worker; a double amputee. One amputation was necessitated by a staph infection. The doctors told him it was possible that the infection would return despite the amputation.

It did.

But another surgery failed to remove it all. Round three is under strategic review. His family, I'm sure, is fatigued by all this. His physicians are likely frustrated they can't resolve his infection.

And yet, he carries on, one of those numbers we study at industry conferences, but a face most of us won't know.

It took a team to resolve my friend's original injuries and it'll take a team to carry him through this most current ordeal.

*********

I have another friend who consults employers about their work comp situations. He's brutally honest with his opinion, and some are easily offended by his style.

He helps his employer clients save money on their work comp policies by ensuring that their employees are promptly and efficiently provided benefits, even if the carrier disputes liability, because he knows that the faster a claim is extinguished, the faster the employee returns to work and the lower the employer's premium.

He takes me to task every once in a while. Sometimes I think he's right. Other times I don't. We agree to disagree and I value his input because he helps keep me honest.

The other day he ranted about workers' compensation conferences.

"Everyone is wasting their time talking and writing about the BS that they think affects work comp," he said. "It’s always about the ‘pigs at the trough’ whining about how they aren’t getting their fair share. 

"When does someone care about an injured worker or the cost to an employer because handling the case was so f'd up?" He complained that injured workers are ignored at these conferences.

He doesn't appreciate that team members collaborate at these conferences. He doesn't realize he's part of that team.

He also didn't know about Comp Laude or my amputee friend...

*********

I think about my mom and how, over a good portion of her 91 years, she has put up with my shenanigans.

I think about my amputee friend, and how he has put up with workers' compensation shenanigans.

And I think about my consultant friend, who has been through family death, has been on the receiving end of the work comp gauntlet, and strives to keep his employer-client's workers from succumbing to industry shenanigans.

We think ALL of it is important.

It's not.

What's important is the legacy. My legacy, your legacy, the legacy of work comp. We are all part of the team, and each team member has a legacy, and each legacy becomes part of the collective legacy.

And at the end of it all is regrets, or lack of.

If you live your life with the goal of having no regrets, then you will have no regrets.

If every one of us strives for that goal, work comp will leave a lasting, positive, legacy.

Irrational Argument

The first day of the Workers Compensation Research Institute's annual conference was chock full of data, statistics and information about cost shifting, medical fee-based incentives, and independent medical review.

But to me, the most interesting of day one of the conference was the two separate sessions dedicated to debating "opt out," the latest pet phrase for alternative work injury protection systems.

The first debate was between Bill Minick of PartnerSource, and Trey Gillespie of the Property Casualty Insurers Association of America.

Minick is one of the major proponents and drivers of opt out. He and his firm are, consequently, lightning rods for opt out criticism, including loud denunciation in the general media such as the ProPublica story on the issue.

Gillespie is a Senior Workers Compensation Director for PCI, and has been strongly critical of the opt out movement.

Their debate was predictable. Gillespie interposed doubt about opt out's intent, and the threat it posed to the Grand Bargain, saying it would destroy people, companies and communities. Minick, of course rebuked those allegations, citing facts, statistics and anecdotes about how opt out can be a sensible, reasonable alternative to traditional work comp for both employers and their workers.

At the end, though, Gillespie pointed out a number of attributes that "a responsible alternative" to work comp would look like, stating for the first time I recall publicly that PCI is not opposed to alternatives if those objectives were met.

Frankly, I thought that was a huge capitulation on the part of Gillespie and PCI.

The bigger debate, though, came in Round Two where a panel comprised of James Mills from the Oklahoma Department of Insurance, attorney Alan Pierce, president of the Workers' Injury Law and Advocacy Group, Elizabeth Bailey,VP Workers' Compensation & Safety of restaurant chainWaffle House Inc., and Bruce Wood, VP & Associate General Counsel with the American Insurance Association. 

The arguments were heated, and in my opinion, curiously hypocritical.

And this is why - all of the arguments against opt out are largely based on just a couple of basic points: there are unreasonable potential restrictions that cause cost shifting and the injured worker gets shafted.

Frankly, those are the same arguments that the general media, and other critics, have been saying about traditional workers' compensation.

Think about it - work comp has been under fire the past few years on the argument that reform measures in various states have eroded benefits and protections for injured workers to such an extent that several states are facing constitutional challenges to their systems.

The opponents to opt out are making the same arguments against the movement that everyone else has been making against traditional work comp!

Limitations on temporary disability duration and the number of chiropractic or physical therapy visits, devaluation of permanent disabilities, restrictions on medical care, fee schedules, utilization guides, constrictions on causation liability, comorbidities, disputes, litigation, etc....

And in the end there is the injured worker, left without much remedy to overcome the financial consequences of a work place injury or illness while, in the meantime, vendors siphon money away for utilization review, bill review, pharmacy review and pretty much any other kind of review you can think of...

Bailey was, perhaps, the most rational and level voice of the entire debate. The Waffle House operates in 23 states where it is either self insured or has a high deductible program. The company employs 40,000 "associates" (see my post of yesterday, "The Culture") 2,000 of whom are in Texas.

In Texas, the Waffle House opted out in 2002 because costs were out of control and they saw no viable way to curtail their costs. Bailey said that the company's costs were driven by very high medical charges but that no one was ever getting better. 

They have stayed with opt out in the state because they saw huge improvement in communications with their "associates" because it was forced - they had to do it under ERISA law, and found that in fact it returned huge benefits and trust with employees. As a consequence the company experience a big reduction in indemnity because of the change in CULTURE.

In other words, opt out in Texas forced trust between the company and its workers.

Trust - oh yeah, a concept that seems to have escaped traditional workers' compensation.

By the way, Bailey also said that they are not opting out in Oklahoma, at least not yet. That environment is too unsettled at the time and the company is waiting to see how both systems turn out.

So, here's the message - it doesn't matter how you provide work injury protection. Employers that are good people will ensure that their workers are taken care of because they understand that human assets are the most important part of a business, and those that don't ... won't.

This basic truth transcends through the insured market. There are insurance companies that will do the right thing, and of course there are those that won't (e.g., how many carriers do you know that will voluntarily pay temporary disability beyond the statutory cap, or don't dispute statutory presumptions in order to curtail long tail liability on cancer claims?).

What I learned - it really doesn't matter if work injury protection is based on traditional work comp or opt out or some other program. It all comes down to whether the employer and/or carrier is going to do the right thing, and that comes down to how workers are valued, and the culture of the company, its insurer and the system within which it all operates.

 Trust operates in mysterious ways.

The Customer

It seems kind of silly and trite, but WHO is the customer?

Analogies to an experience every single person has as the end recipient of a business transaction were frequent at the Alliance of Women in Workers' Compensation mini-conference on advocacy based claims management in Boston the day before the annual Workers' Compensation Research Institute's meeting.

What is advocacy based claims management?

The short answer is - doing the right thing.

The challenge is changing a culture based on skepticism and mistrust.

Much of the panel discussions came from large, self-insured employers; a distinct minority in the work comp world, and a subset that has an entirely different agenda, different mind-set and with much greater resources, than the great majority of the insured work comp world.

For one thing, each of these big companies don't call their employees, "employees." Terms like partners, associates, and cast members come from a culture of top down appreciation for the human assets of the company and an understanding of the import these people have on the experience of the purchaser of the goods or services of the business.

When the folks doing the presentations talked about their injured workers they were nearly universally referred to as "customers." It's a change in mindset, a change in culture, a different way of looking at how we approach the issue of a work injury or illness.

Workers' compensation is a people business. It doesn't get any more simple than that. The job of work comp is to take care of people. When dealing with people, relationships matter. A lot. The customer analogy of the injured/ill worker fits. They are the end recipient of the goods and services of The Grand Bargain. The moment a worker comes into the work comp fold that customer relationship has started.

Business literature is replete with lessons about the customer relationship; the very best companies, those that excel over and above the competition, have a very basic, common core: solid relationships with their customers.

We know that intuitively. Even in the business of workers' compensation, really successful companies build and maintain relationships with their customers; and really successful claims management builds relationships with THEIR customers.

Just because it's simple, though, doesn't mean that it's easy.

Indeed, in one of the collaboration break outs one of the attendees, a vice president of an employer work comp trust acknowledged that many of his members don't have that same regard for workers as those self-insureds up on the stage, noting that their expectation for paying $50,000 in premium is that the insurance company just takes care of everything - and are surprised when asked to take the worker back!

So the business, the entity that has the workers, itself first needs to recognize that its workers have value and that workers' compensation is not a vehicle for other human resource issues.

And within a claims organization, how a successful claims experience and/or relationship often is not measured according to customer-based metrics. Instead of gauging the quality of the workers' compensation encounter, we measure compliance, either regulatory external compliance (don't want those penalties) or internal company compliance (get a bonus for closing 120% of your case load!).

Imagine if you were a retail customer and wanted to buy something, but in the store you were met with skepticism, the subject of investigation. Instead of a sales person showing you, for example, different shoes, you were instead asked why you would want any shoes in the first place ("What's wrong with the shoes you have now?")!

Or at a restaurant and you really wanted a rib-eye steak, but the waiter told you that you were too fat to be eating steak and that he would only serve you a salad...

Yet, that's how we traditionally meet the injured worker at first contact. Instead of a compassionate question about fears and expectations, we initiate investigations...

Know your customer (i.e the person being serviced). This seems obvious, but in workers' compensation we don't take much time to know our customers, or what they really need to return to health, and ultimately back to work. For various reasons, the culture of the workers' compensation claims process does not allow the development of beneficial customer relations, and consequently the customer, i.e. the injured worker, is disengaged from a process in which they should otherwise take ownership.

The devolution of workers' compensation has taken many, many years. Turning the culture around, bringing value back to the customer, making the injured worker a part of their own solution, will likewise take many years.

But efforts like those of the Alliance of Women in Workers' Compensation will, I think, build momentum because there's a very solid business case: continue to treat the customer poorly and eventually you go out of business.

It's that simple.