It's Not HR

For some reason business likes to use workers' compensation for its human resources issues - namely to terminate an undesired employee.

All too often, when I was a defense lawyer, I was asked to include termination language in settlement papers, or asked what the effect would be on a case if the employee was formally terminated as part of, after, or prior to resolution of the comp case.

In all situations my answer was simply that the work comp case has nothing to do with employee termination or discipline, that it is an HR issue, and that if the company wished to include some termination process included in the work comp case then they should "man up" and just execute the termination.

Because in my experience and training an undesired employee costs far more to maintain than the possible consequences of termination - even if "wrongful" - due to non-production, morale amongst co-employees, and a whole host of other "soft" costs.

Still, workers' compensation gets used inappropriately to rid a company of employees that management is too chicken to deal with otherwise.

A case out of Ohio points to just such boneheaded management use of work comp to cull employment ranks, resulting in case law that isn't necessary and just may make things worse for the rest of the business management world.

Alexis Jones was a claims examiner for the City of Cleveland Department of Law.

Shortly after arriving at work on May 5, 2009, Jones slipped on a piece of cheese that was on the floor. She fell to her knees, but was unhurt. According to her court filings, she didn't even tear her nylon stockings.

About two hours before the end of her workday, the law department's office manager came to see Jones and directed her to submit to a post-accident drug and alcohol test.

The city's written testing policy provides that the city may send an employee for drug and alcohol testing following any on-the-job "accident." The policy defines an accident as an incident where "there is bodily injury to the person requiring medical attention."

The policy further provides that an employee may be disqualified for compensation and benefits under the Ohio Workers’ Compensation Act if the employee refuses to test, or the result of the test is positive. It also states that employees who "test positive after an accident remain subject to disciplinary action, up to and including termination."

At the testing center, Jones indicated that she did not want to be examined and stated she was not injured. Jones was also advised that she could not leave the premises or call her husband, and she was stopped when she attempted to do so.

Jones eventually underwent the medical examination, which revealed no physical injury from her fall, and a breath test, which revealed no trace of alcohol.

She then was given a plastic cup to provide a urine sample, she claimed she was unable to do so because the cup had broken and fallen into the toilet when she tried to collect her urine.

Jones was then given 20 ounces of water and a second cup, but she was still unable to provide a urine sample.

By the time Jones got the second cup, it was already past the end of her normal workday. After informing the testing center staff that her attempts to urinate had been in vain, Jones insisted that she be allowed to leave.

A representative of the city informed her that leaving the testing center and failing to provide a urine sample would be considered a “refusal to test” that had disciplinary consequences, but Jones left anyway.

Jones later testified that she had to leave because she needed to meet her husband, who normally picks her up from work, and she had a meeting that evening regarding her dying father’s end-of-life care.

The following morning, Jones reported to work and offered to return to the testing center to complete the urine sample. The city refused her offer and sent her home instead.

The city subsequently filed a workers' compensation claim on Jones' behalf, over her objection. The law department also held a disciplinary hearing regarding Jones' failure to complete the test.

The Bureau of Workers' Compensation eventually dismissed the claim the city had filed, determining there had been no injury.

The city, however, suspended Jones from work for 10 days.

Jones appealed the disciplinary action, but the Cleveland Civil Service Commission upheld the suspension. Jones sought judicial review, and Cuyahoga County Court of Common Pleas overturned the suspension.

The court found that the commission did not have a sufficient basis to find that Jones refused testing.

Even if she had refused, the court said, the city was not authorized to suspend Jones’ employment because the only ramification of a worker's refusal to take a post-accident test was a disqualification of workers’ compensation benefits.

The city appealed, insisting that the judge's ruling was "unsupported by preponderance of substantial, reliable and probative evidence."

The city lost.

Why did it go this far? What was the real reason for targeting Jones?

We don't know because that is not in the court record.

What we do know is that the city felt compelled to use the workers' compensation process to effect a termination of an employee, and all I can think of is that, for some reason, Jones was deemed an undesirable employee.

But no one in the Department of Law had the testes to effect a termination lawfully, likely in fear that Jones would "retaliate" and cost the department some unallocated funds.

Hey management - workers' compensation is for a work INJURY. If there is no work injury then don't use workers' compensation for your human resources issues.

To read the Ohio court's decision, click here.

Distrust Government

There are three stakeholders in workers' compensation: employers who pay for it; injured workers who benefit from it; and government which sets the rules and enforces them.

Or at least is supposed to.

We prosecute employers who commit fraud. Ditto for employees.

But at least the executive branch of the California state government seems to feel it is beyond reproach when it comes to opening its books for audit.

Assemblyman Tom Daly, D-Anaheim, had made a request for the state auditor to take a look at how the Department of Insurance and Division of Workers' Compensation work with prosecutors, insurers and employers to fight fraud.

But the governor's office didn't like the oversight request.

Sure you trust this guy?

According to sources who discussed the matter with WorkCompCentral on condition of anonymity, Gov Jerry Brown quashed Daly's efforts with considerable political pressure on Democratic members of the audit committee.

Daly’s May 2 audit request says lawmakers created tools to prevent or reduce unnecessary treatments for injured workers, but despite those tools, “there is ample evidence that the system remains rife with fraud and waste in connection with providing care, and related services to injured workers.”

Daly sought an explanation into how and to what extent state agencies, county prosecutors, self-insured employers and insurance companies worked together to fight workers’ compensation fraud.

Daly wanted to know how these entities coordinate anti-fraud efforts and the metrics used to measure progress in reducing fraud. He also wanted the auditor to investigate strategies used in other health care systems to prevent and prosecute fraud, as well as identify practices that may not be fraudulent, but that “result in the wasteful or abusive provision of services to injured workers.”

Staff members for the legislators on the audit committee who responded to reporter inquiries on Thursday said there was some support for the measure by both Democrats and Republicans.

But Brown's office, without explanation, did not want any review of the fraud-fighting apparatus, which is largely funded through assessments on employers and overseen by the Fraud Assessment Commission, the Department of Insurance and the DWC.

So Daly withdrew his request Wednesday depriving the Joint Legislative Audit Committee the opportunity to hear testimony or vote on whether to approve the audit.

Daly's office did not respond to reporter's inquiries either.

The industry talks about transparency all of the time and the chorus has been getting louder over the years. For example, it seemed that every presentation at the Self Insurance Institute of America's Workers' Compensation Executive Forum I just attended talked about the need for more transparency.

Employers want transparency because they pay for the system. 

Employees need transparency to know that they're getting what they should.

But the California government doesn't want transparency because it makes the rules, including the rules about enforcing its own rules...

Workers' compensation seems to be a system built on mistrust - and Brown's office wants to keep it that way.

**********POSTSCRIPT**********

On March 31, 2016, the news publication Reveal of The Center for Investigative Reporting published, "Profiteering masquerades as medical care for injured California workers." (Reveal has a whole series on work comp fraud and it is excellent and should be required reading for everyone in the industry, especially in California).

The most telling quote in that piece, which is completely validates by the notion that our government either has something to hide, or an embarrassment to protect, is by accused fraudster, owner of Landmark Medical Management, Kareem Ahmed who was caught on tape, according to the article, stating, "Nobody gives a fuck.”

Indeed, the article points out that "while health care programs such as Medicare have developed an arsenal of weapons to ward off fraud, California state regulators have few tools at their disposal. For one thing, the state shares oversight with hundreds of insurers and self-insured employers, leaving no one clearly in charge."

Perhaps it is THIS embarrassment that Brown intends to hide.

Partial remedy: mandate that ALL medical EOBs be shared with the patient, then reward patients for reporting activity that ends up either fraudulent or clearly erroneous. That is one simple tool that may cost carriers a little more, but could lighten the fraud assessment surcharge on employers considerably.

Hiding the ball by avoiding audits, however, is just plain wrong and the government needs to be called out on this bullshit.

The administration says it wants to deliver "evidence-based, appropriate and quickly delivered" medical care, but does nothing to avoid the opposite.

If mistrust is to be reversed, then we should not tolerate hypocrisy from our government officials.

Culture and Claims

Jon Pearson, Director of Life Path Services for QLI, a spine and brain injury rehabilitation service, gave a wonderful presentation about returning folks to a new normal during the recovery from injury at the Self Insurance Institute of America's Workers' Compensation Executive Forum yesterday.

Part of what he talked about was the team at QLI and how crucial they were to the success of the treatment model.

"If people don't want to work there," Pearson reflected, "then who would want to be a patient there?"

That observation goes well beyond QLI's business model.

Indeed - later in the day a`member on the panel for "Out Front Ideas: How successful Partnerships enhance Your Workers' Compensation Program" noted that claims adjusters have the toughest jobs in workers' compensation because they are expected to deal with their clients (injured workers) with empathy and compassion, yet meet conflicting production and financial goals.

The industry is currently fretting about the drain of talent on the front ends. Attracting, recruiting and retaining good claims handlers is at the top of every work comp adjusting house executive's lists.

How much does the internal culture of a claims house affect the quality of the claims handling? How many people are unwittingly thrown into a claims management situation where the handlers don't want to be there? How much of that contributes to a state's good, or bad, claims ratings and experience?

The Workers Compensation Research Institute recently released survey results of client satisfaction with workers' compensation medical care comparing results across 14 states. The middle of the country scored the highest by far, regardless of whether there were fee schedules, treatment guidelines, etc. Florida was miserably at the bottom.

How much client satisfaction was not the product of the actual medical care, but really of the claims handling experience? After all, the injured worker has to go through the claims handler first to get to the medical care provider...

Obviously self insured entities have much greater say in their claims handling. They competitively seek bids from claims houses, and one of the overall messages coming from the SIIA conference is, essentially, you get what you pay for in claims handling.

So while pricing the job is a consideration, the quality that is provided has a much bigger role; what Out Front panelist Stu Thompson, CEO of The Builders Group, referred simply to as, "value."

We all know of claims handlers who are besieged with extraordinarily high case loads. And there are others that have more reasonable loads.

Kevin Confetti, Deputy Chief Risk Officer for the University of California, said his claims staff's maximum is 100 files per adjuster. He claims very high satisfaction ratings from clients, and good claims experience numbers. I didn't ask him if his handlers like working there, but I have to assume that being a part of the California University payroll isn't that bad of a gig.

The reality of workers' compensation is that the claims process has the most impact: perceptions, finances, expenses and ultimately outcomes are all tied to how well any particular claim is managed.

My take from this week's seminar education is that the claims experience is intimately connected with the happiness of the claims staff. The quality of the service, i.e. the value, is ultimately the product of how well the claims handler deals with the client; from setting expectations up front, to communicating through out the process, to ensuring obstacles are smoothed.

A disgruntled, unhappy, under-appreciated, unmotivated claims staff isn't going to return value.

If the claims staff doesn't want to work there, then would I want my work injured to be clients there?

But, if your claims staff does like their work, and that is reflected in good outcomes, then tell the world about it with a Comp Laude nomination...

Colorado Disruption

Voters in Colorado are being asked to adopt a single payer medical system.

Proposition 20 would enact Amendment 69 to the state Constitution, creating ColoradoCare to pay for medical services provided to all residents of the state regardless of why they need treatment.

The amendment language expressly requires the program to pay for treatment provided to people hurt on the job. And it directs the legislature to repeal parts of the Workers’ Compensation Act obligating employers to cover medical costs for occupational injuries and illnesses.

To pay for all of the medical care, a 3.33% payroll tax would be assessed on all workers and a 6.67% payroll tax on employers in the state. It would also levy a 10% health care premium tax on non-payroll income. Supporters say these taxes will raise $25 billion that will be needed to pay for medical costs for all of the state’s residents.

Opponents say the math is wrong, that costs won't be reduced, and that important safety and other considerations will be thwarted.

Pinnacol Assurance, Colorado's state-chartered carrier, also says its bad for employers and their workers.

“And any workers’ comp savings will be eroded quickly by lower worker productivity and increased indemnity costs,” Edie Sonn, Pinnacol's vice president of communications, wrote on the carrier’s blog. “That’s because ColoradoCare won’t have mechanisms in place to do all the things Pinnacol does: work with employers to keep workers safe and minimize the potential for injury, and work with doctors to help injured workers get back to work in a timely and safe way.”

Which brings me to the point of discussion about just what workers' compensation is supposed to do.

Safety, return to work, injury prevention - these are offshoots of the workers' compensation insurance formula because it saves the insurance company money, and arguable thus saves the employer money.

Whether the employer, or the worker, is particularly interested in saving the insurance company money is an irrelevant argument though, because, while the carrier may have some influence over behavior, ultimately it is the employer and the worker to behave as desired.

Brian Carpenter, R. Ph., Clinical Director and pharmacist with Optum, made a very poignant observation to attendees at the Self-Insured Workers' Compensation Executive Forum in Scottsdale, AZ yesterday.

The silos that now exist, said Carpenter, interfere with the sharing of important medical and health information. Consequently general health doesn't know what the workers' compensation providers are doing, and visa-versa.

This is, in part, because of the legal and regulatory environment dictating privacy, and it is also in part due to the fact that there are simply too many different data platforms making data share radically difficult.

The unfortunate outcome of this information failure is inappropriate or ineffective treatment that may considerably extend disability or time off work, or worse, result in treatment contraindications.

Jennifer L. Evans, a shareholder with the Polsinelli law firm in Denver, co-authored an analysis of the single-payer proposal for the Colorado Health Foundation.

Evans told WorkCompCentral that Prop 20 would represent a huge culture shift in workers' compensation, but the end result is simply unknown.

“It really is a sea change for workers’ comp,” she said. “On the health care side there’s not much change, mostly just payments. In comp, it appears this would change the infrastructure for where care is furnished and might impact the type of care available.”

In my mind, while completely disruptive to the status quo, ColoradoCare is a debate and idea that is long over due. The arguments against the idea of a single payer system strike me as simply entrenched interests seeking to protect their turf and business models.

But, as we have seen over the past few years in critique after critique, those interests and business models may no longer be relevant, may no longer be economical, and in fact may ultimately be more harmful to employer and employee than what is proposed.

Just what does Pinnacol (or any other workers' compensation carrier) do that is so special for employer safety programs that state or federal agencies don't do now, or that some other more specialized provider could do?

Why is it that return to work is such an insurance company specialty? The migration from medical treatment to disability determination (ergo return to work status) is nothing special - general health and disability insurance providers have been doing this for decades; the only distinction in work comp is that all of this is combined into a very complex equation that the insurance company controls for the purpose of containing costs.

And as noted by Carpenter, the separate silos ultimately are dangerous to employees, and consequently likely more expensive for employers.

The insurance carrier's workers' compensation role is very simple: provide medical care, and pay indemnity, nothing more.

This is a reality that we in the work comp industry simply forget.

All of the other ancillary programs foisted upon worker and employer may help them, or may not - these are completely out of the control of the carrier and depend upon the attitudes, cultures, and willingness of the service recipients to have any impact.

Nobody really knows how all of this will play out.

What we do know is that we are in a dramatic age of disruption. The tech industry has been disrupting existing business models and entire industries for a couple of decades now.

Why anyone would think that the insurance industry, and in particular workers' compensation, is not just as subject to disruption is pure sophistry.

Constitution Times Deuce

The Flying None...

2016 really is the year that challenges to workers' compensation's constitutionality is playing out across the nation in multiple jurisdictions under various theories.

Kentucky governor, Matt Bevin, only the third Republican governor in the history of Kentucky, drew fire for disbanding the Workers’ Compensation Nominating Commission on May 9 and then reconstituted it with new members.

Bevin dismantled the seven-member nominating commission even though all of them were serving unexpired terms. The commission exists to advise the governor on which administrative law judges should hear workers’ compensation cases.

The governor also changed the terms and membership criteria for commission members. State law requires that three of the members be from the state’s majority political party (in this case Democratic) and two from the minority party (Republican). Bevin’s executive order changes the makeup to two Democrats, two Republicans and one at-large member opponents say will mirror’s the governor’s views.

The Kentucky AFL-CIO, and Teamsters Local 89 aren't happy with Bevin and have brought suit to declare the governor's actions unconstitutional. Joining them are former nominating commission member Charles McCoy and Louisville attorney Eric Lamb, who represents three workers' compensation claimants.

They say Bevin is trying to stack the commission against workers and in favor of business.

The suit includes a petition for a temporary and, ultimately, a permanent injunction to prohibit the governor's restructuring from ever taking place. Franklin Judge Phillip Shepherd has scheduled a preliminary hearing for June 1 and the governor's office has decided to hold off on any appointments until at least then.

The challenge isn't appreciated by the governor's office. “Another day, another frivolous lawsuit,” the governor’s press secretary, Amanda Stamper, emailed WorkCompCentral.

The plaintiffs claim that not only did Bevin stack the deck with his new nominating commission, he refused to reappoint six qualified administrative law judges. 

In the meantime California lien claimants challenging SB 863 were thrown out of the Supreme Court of the United States with a no comment "writ denied," the final grasp for straw over.

On Monday, the court denied the petition for certiorari in Angelotti Chiropractic v. Baker, bringing an end to more than three years of litigation over the $100 "activation" fee imposed by SB 863.

They filed suit, with Angelotti Chiropractic serving as the lead plaintiff, asserting the doctors, chiropractors, pharmacies, interpreters, copy companies and other businesses like them have no way to get paid unless they file a lien claim. Thus, they complained that the forfeiture penalty is a governmental deprivation of their ability to be paid.

The U.S. 9th Circuit Court of Appeals wasn't persuaded, finding that a lien merely represented the claimant's expectation of payment.

Once the 9th Circuit denied the plaintiffs' request for reconsideration, the Angelotti plaintiffs turned to the U.S. Supreme Court for relief in January.

Though the California Department of Industrial Relations submitted a waiver of its right to respond to the petition, SCOTUS said it wanted to hear what the administration had to say.

The DIR submitted a response arguing that a lien claimant's "expectations" are not property subject to a governmental taking and that it just imposed a "user fee" on those who chose to use the workers' compensation adjudicatory system to pursue payment.

Apparently SCOTUS was persuaded.

And that's our constitutional lesson in work comp for the day....

Adjust The Portfolio

Peter Lynch is probably one of the most famous investors ever.

As the head of Magellan Fund for 13 years, he averaged returns of 29.2% annually. Assets under his management swelled from $18 million to $14 billion. Like a good athlete he left at the top - the size of the fund nearly too large to continue such incredible gains.

Lynch wrote several books on investing and I read a few. I won't say my investment prowess even came close to his.

Not even close.

Peter Lynch

Lack of trust, lack of research, lack of time ...

But the one maxim that Lynch repeated over and over in his writings was to buy what you know.

Lynch would watch the consuming habits of his wife, his kids, his friends - and ask about the products or services that were being purchased and why. Then he'd take a look at the sector, and the companies in that sector to determine whether a company was under valued based on his criteria.

It's really a simple evaluation. Basically, Lynch was interested in the early consumer adoption of a product to predict whether a company making that product would be successful.

The key, according to Lynch, is to buy what you already know and watch the cycles...

With that in mind, I'm intrigued by workers' compensation insurance at this point in time.

Work comp, as we know, is highly cyclical. While the rest of the economy cycles, work comp seems to have higher highs, and lower lows.

The mantra, of course: buy low, sell high.

The trick for investors is to spot the beginning of an up cycle, and it seems like we're entering that phase now.

NCCI, in its last state of the industry observation, noted that carriers for the first time in decades are posting combined ratios below 100. That means they're making underwriting profits - which is nearly unheard of in work comp.

That the business community is tolerating rates and premiums supporting an underwriting profit is unique; work comp carrier profits are typically the product of savvy investments. But investment returns lately have not been good because conservative products, e.g. bonds, have been suppressed by unprecedentedly low interest rates.

There are several trends emerging, though, that fare well for carriers.

In big states California and New York, the minimum wage will increase a third to $15/hour over the next several years. Quite simply, this just means more premium money into carrier coffers because policies are tied to payroll. The more payroll, the bigger the premium, the more money into the insurance company treasury.

In addition, the Department of Labor's recent change to exempt vs. non-exempt/overtime regulations means hundreds of thousands of individuals will see an increase in wages; again, more money in payroll means bigger premiums which means more money to the insurance companies.

The seventh or eighth largest (depending on who is measuring) economy in the world, California, is adding more jobs, faster, than any other state in the nation. The latest unemployment statistics put the state at 5.3% unemployment. More telling, employment in California increased 2.8% in the last twelve months, compared to 1.9% nationally. In addition, most of those jobs are in low risk sectors like IT, or professional services. And the most populous areas, the Bay Area, Los Angeles and Orange Counties, are seeing unemployment rates well below the national average...

Finally, interest rates are poised to head up. After seven years of near zero interest on Federal Treasury Bonds, the mainstay of the investment community, Wall Streeters are seeing signs that the Federal Reserve is getting ready to slowly raise rates as the global economy starts warming up - and there's no reason not to believe that it will since American consumers will, at least for a short period of time, have a bit more purchasing power due to the aforementioned increases in minimum wage and overtime.

So, lots of fresh money will be heading into insurance company treasuries.

But what about paying out that money in claims?

Here's what we know on a national basis: frequency continues to decline reflecting safety and the ongoing shift in the economy to office-type work; work comp medical inflation is at an historic low (unlike the general health sector); and severity is at an all time low.

So, the work comp line is going to be flush with cash for a few years until those high wage claims start hitting the books - which means that carriers will be investing more money into better instruments to make more money before it is needed to pay claims, thus greater dividends to investors which makes the stock prices go up.

Now, I could be a complete investing moron - certainly my track record does not speak to any Lynch-style wonderment.

And economists who watch the insurance industry, like the great Bob Hartwig, may disagree with my analysis.

But, if we follow Lynch's advise, this is something we know. Seems like a good time to adjust the portfolio...

No Limits

Changes in the weather...

Workers' compensation is a pendulum that swings back and forth.

For the past 10 or so years the interests of payers have trumped those of beneficiaries, as laws across the nation limited benefits, and consequently services and fees.

That swing to the right was precipitated by an earlier swing to the left which caused a perception that escalating benefits were out of proportion to the risk payers were willing to accept.

Expansion, contraction - workers' compensation is like the weather with high pressure pushing the winds and temperatures one way, and low pressure the other. The changes in the weather were mostly the product of legislative actions.

These past couple of years have seen several constitutional challenges to various workers' compensation "reform" laws, some successful, some not. 

What is remarkable is that "reform" is coming from state supreme courts, not legislative movements. State supreme courts have weighed in on work comp occasionally, but the wave of high court "reform" is, in my experience, unprecedented.

One of the constitutional targets that appears to be gaining steam are challenges to limits on fees attorneys can charge and collect in the representation of the injured.

Attorney fees were easy targets in reform laws. High rates of litigation are tied to high costs, and that litigation cost was perceived to be the product of lawyer attraction, so the theory was limit fees, limit litigation due to financial unattractiveness of the field.

Florida's Supreme Court just last month struck down the limitations on fees on the ground that the law violated due process since the restrictions left no means to secure a reasonable fee if the statutory formula yielded a grossly inadequate level of compensation for attorneys.

The Utah Supreme Court late Wednesday took a different tack on invalidating that state's fee restrictions: because the state's Constitution provides (as do most states) that the Utah Supreme Court has sole and plenary power over attorneys then any legislative control over lawyers violates the constitutional guarantee of separation of powers.

In other words, only the judicial branch can regulate attorneys, and their fees. Attempts by the legislative branch violate the separation of powers, the Utah Supreme Court concluded.

Frankly, this is a brilliant strategy that likely will find traction in many other jurisdictions.

Utah didn't have a maximum fee limitation until 1991. Then, the legislature implemented a law providing a fee of 25% for the first $25,000 of an award, 20% for the next $25,000 of the award, and 10% of amounts awarded in excess of $50,000, up to a maximum of $18,590.

After a lengthy unsuccessful battle to get the Utah Labor Commission to revise fee regulations, the Injured Workers' Association of Utah brought suit.

The St. George District Court rejected all of the association's constitutional arguments and granted summary judgment in favor of the state.

The association appealed this decision directly to the Supreme Court. On appeal, the association limited its arguments to an assertion that the fee restrictions violated principles of equal protection and the separation of powers doctrine.

Without addressing the equal protection argument the court said it has had plenary power to regulate the practice of law in Utah under that state's Constitution.

Accordingly, the court concluded that the legislative delegation of authority to the Labor Commission to create a fee schedule, as well as the fee schedule itself, were "unconstitutional encroachments upon the power of the judiciary to govern the practice of law."

The court went on to say that it would not adopt a fee schedule of its own making, as it found the Utah Rules of Professional Conduct adequately safeguarded injured workers by limiting attorneys to charging only "reasonable" fees for their services.

The court said it was not persuaded that having a fee schedule "actually protects injured workers," as there was "some evidence that there are now very few attorneys willing to represent injured workers in Utah and injured workers suffer as a result of being unable to obtain representation."

According to WorkCompCentral's research on the story, a vast majority of states have laws that place limitations on fees, and many use a percentage of recovery as a limit.

2016 is, indeed, shaping up to be the Constitutional Year in workers' compensation.

To read the Utah Supreme Court's decision in Workers' Association of Utah v. State, click here.

Summit Notes

Bob Wilson from workerscompensation.com has posted links to the notes compiled by David Langham arising out of the 2016 Workers' Compensation Summit held in Dallas last week.

The notes are broken down into five categories; plagiarizing Bob's post hopefully with his permission:

Summit Notes – These are generalized notes of comments made during our two days of discussion. They are generally presented in the overall order they were made.

Friction Points – these notations were part of a discussion about those transactional points that slow down, increase the cost or potentially disrupt the claims process.

Paradoxical Incentive Points – these notes are related to discussions where incentive/payment structures may not be in line with desired outcomes.

Regulatory Points – a great deal of energy went into discussing regulatory burdens and oversight as related to workers’ compensation. These are broken out for your benefit here.

Imperative Issues* – These are the final points that the group identified as pain points or problem areas within workers’ compensation. *IMPORTANT NOTICE REGARDING THIS FINAL DOCUMENT: This is simply the release of a rough outline. The group will be working further on these points, and is currently undergoing a survey process to prioritize these particular issues. Once that is complete, we plan a more formalized document that contains a “Statement of Purpose” as well as extended commentary surrounding these points.

Bob's blog post where you can not only download these documents, but also leave comment for aggregation and inclusion is http://www.workerscompensation.com/compnewsnetwork/from-bobs-cluttered-desk/23908-the-notes-from-the-workers-comp-summit-now-it-is-your-turn-to-join-the-national-conversation.html.

Summit attendees are encouraging comment and participation regarding these notes and documents. Please comment either at the bottom of Bob's post, or in any of the LinkedIn groups where these notes are available and/or discussed.

Thanks to Bob Wilson and David Langham for putting the Summit together and getting things moving. Thanks also to all of the participants for taking time to participate with no other agenda than hoping to improve work injury protection systems.

People Don't Change

Psychological issues are more prevalent in workers' compensation claims than in the general health population studies show.

Yet workers' compensation claims management traditionally does the least to address them, typically for fear of opening the proverbial Pandora's Box.

A 2002 study published in the Journal of Occupational and Environmental Medicine found 37.7% of injured workers had a pre-existing psych condition categorized as “Axis I,” (on the three Axis scale as published in the Diagnostics and Statistics Manual IV by the American Psychiatric Association) which includes conditions such as anxiety, depression and substance abuse, but not personality disorders. In comparison, 15.4% of the general population had one of those conditions.

For injured workers with psychological conditions before their injury, 10.2% had pre-existing major depression, 9.2% had an anxiety disorder and 24.9% had any substance disorder, including 15.9% with alcohol dependence and 13.5% with drug dependence, according to the study.

After the injury, the rate of major depression found in the study increased to 48.5%. The rate of alcohol dependence dropped to 1.3%, but the rate of opioid dependence grew to 13.8%, compared to 1.6% pre-injury (which makes sense now as we understand the path to opiates within the treatment context of pain complaints).

The JOEM study looked at 1,595 injured workers with chronic musculoskeletal pain who had been out of work for at least four months, and had begun a rehab program in Dallas.

Stalled in the Colorado state legislature is House Bill 1399, by Rep. Jonathan Singer, D-Longmont, that would prohibit denying a claim for mental impairment benefits based solely on the occupation of the worker.

The bill would have also required injured workers who file a psychological stress claim to undergo an examination by an accredited physician BEFORE the claim could be denied.

Daniel Bruns, a psychologist in Greeley, CO, told WorkCompCentral in a phone interview that the state's treatment guidelines recommendation of a psych evaluation for all patients with chronic pain or delayed recovery, before more radical treatments such as surgery, has reduced costs in those claims categories.

“In workers’ comp there’s been this fear that it would drive up costs,” Bruns told WorkCompCentral. “In Colorado, it lowered costs.”

There's a movement afoot in work comp claims to treat "the whole body" and this trend is facilitated by billing codes that permit such treatment without implicating wholesale acceptance of a person's entire psychological dysfunction.

Psych issues are more pronounced in workers' compensation than the general health population because of the disruptive nature of a work injury and the way the system responds. It makes sense to provide services intended to mitigate psych impact.

Certainly, work comp as currently configured, can not address all of a person's psychology. The system isn't designed for such intervention, and I suspect doing so would meet quite a bit of resistance not only from payers, but from the injured workers themselves who may be adverse to opening up their lives to possible exposure to others.

Still, I'm guided by the old saying, "people don't change; their personalities just become more acute."

Studies and anecdotes show that claims payers and their subject who recognize that maxim, in general, have more positive results.

But it takes both, the willing payer and the willing subject, to make addressing psych issues in the work comp context ... work.

Medical Standards

The Journal of Occupational and Environmental Medicine has published a study confirming the assumption that medical treatment in accordance with the current suite of published evidence based guidelines results in shorter disability duration and, ergo, better health outcomes for the subject.

The study used 45,951 indemnity claims with two years of development filed between 2008 and 2013 from the Accident Fund, United Heartland, Third Coast Underwriters and CompWest.

A compliance score was devised by comparing diagnosis and treatment codes, and seeing whether Work Loss Data Institute’s UR Advisor product rated the selected treatment as “green flag,” meaning the treatment is recommended for that diagnosis; black flag, meaning denial recommended; red flag when a review of the treatment is advised; and yellow flag if the treatment is allowed on a limited basis. Using a calculation based on how often green or yellow versus black flags appeared, claims were sorted into low-compliance and high-compliance groups.

WLDI provided access to the Official Disability Guidelines database but did not ask the researchers to conduct the study, didn’t participate in it and provided no funding, according to WLDI. The UR Advisor product used in the study is a tool for looking up information in the Official Disability Guidelines, they said.

According to the research, claim duration was 13.2% longer, and medical costs were 37.9% higher for claims in the low-compliance group compared to the high-compliance group. In a subset of the most medically complex claims, duration for the low-compliance group was 18% longer than for the high-compliance group, and medical costs were 38% higher.
More, similar conclusions were made based on the data.

Though the study used ODG, rival publishers were equally enthusiastic about the report and are interested in how the methodology used to test ODG can be applied to other guidelines.

It has always interested me why different jurisdictions have different treatment guidelines since, presumably, all humans possess the same anatomy and biology regardless of location.

Ultimately, the difference between ODG and the American College of Orthopedic and Environmental Medicine guidelines is in the presentation of information and timeliness of incorporation of new research.

Different states, however, essentially succumb to special interests pressure to develop their own guidelines at great expense.

More importantly, though, is that state guidelines will eventually lag behind the research, becoming out of date, because the cost of staffing, reading, cataloging, reviewing, and confirming the vast universe of medical research is too costly, too daunting.

While there is usually a provision in the law for other EBM guidelines to supplant the state presumed default, doing so is thwarted by costs to the subject, or by operation of law.

California is a classic example. There is really no reason for California to have separate guidelines, yet the state continues to rely on its own, antiquated, Medical Treatment Utilization Guidelines. The law provides that the MTUS may be rebutted with other EBM, but if the payer's Utilization Review doesn't accept that argument, and the matter goes to Independent Medical Review, it's over.

Because IMR will follow the MTUS. And, once in the rabbit hole of IMR, there's no getting out.

Other states don't have any guidelines, and the JOEM study is a great argument for those states to adopt one of the standards (and hopefully shy away from the special interests intent on creating their own standards).

For instance, Pennsylvania law makers have before them House Bill 1800, a proposal to adopt “nationally recognized,” evidence-based medical treatment guidelines in workers’ compensation. Opponents say the guidelines are a one-size-fits-all approach to treatment.

Nebraska's attempt failed last year against the same arguments.

Buying into those arguments simply reflects a lack of understanding what treatment guidelines are and ignores the fact that the general health insurance industry has been following guidelines since, basically, forever...

Whether I'm in California, Florida, Arkansas or Alaska, my physiology doesn't change, and neither should treatment protocol.

There has been a lot of talk lately about standards across state lines. Medical treatment protocol should be one of them.

It's Getting Transparent

Transparency is an issue in workers' compensation, probably more so than other industries, because the complex nature involving the intersection of medical, indemnity and liability creates too many potential shadows.

Opaqueness breeds mistrust.

This is particularly true when a state legislature creates an anonymous sub-system, like California's Independent Medical Review process.

The thought behind anonymity in IMR was to alleviate excess litigation by reducing the probability of medical disputes - if a party does not know who is making the IMR decision then there is very little likelihood that the party can subpoena that individual for interrogation.

But the statute doesn't say that the entire process has to be anonymous - just the name or identity of the person making the IMR decision.

So the State of California's Division of Workers' Compensation has rolled out a huge new feature in the IMR website that hosts decisions that allows users to search independent medical review decisions by the specialty of the reviewer and whether the underlying utilization review decision was upheld, overturned or partially overturned.

DWC’s new web page allows users to sift through IMR decisions by treatment request categories such as pharmaceuticals, surgery and diagnostic testing. For some categories including pharmaceuticals, it includes sub-categories including benzodiazepines, opioids and topical compounds.

The page also allows sorting individual treatment decisions by outcome.

This is huge.

While agency officials have not yet elaborated on DWC's expectations for this new tool, I for one think it is a tremendous vote of confidence in the process, and should lead to much better oversight and administration of the IMR process, in addition to providing parties with much needed confidence that the system is, or isn't as the case may be, working properly.

California Applicant Attorneys Association president, Bert Arnold, told WorkCompCentral that he was concerned about the ratio of cases being decided by different specialties which are not indicative of the proportion of medical specialities being submitted for review.

That's a valid critique, and one that should be noted by officials as they seek to improve the system.

In the past such criticism would not be afforded simply because nobody knew, other than Maximus, who was doing what with the disputes.

At least now we have some idea as to qualifications for opinions.

It's not perfect, but it is a giant step in the right direction.

Kudos to DWC for the foresight in providing this information, and its confidence that providing more transparency is good for the system. Perhaps in small chunks some trust can be restored.

Conspiracy of Good

We didn't solve the world's problems, nor the problems of workers' compensation.

Heck, we didn't solve any problems.

What we did do was come to a consensus about workers' compensation issues and begin the process of prioritizing them in order of importance and what was most solvable.

"Workcompster" identities obscured to protect the guilty.

I'm talking about the "secret" Workers' Compensation Summit 2016.
"Secret" because some out on the Internet, who have declared the media theirs, have accused this gathering of "workcompsters" a conspiratorial effort to further profiteering off the oppressed masses because The Summit wasn't advertised, and was invitation only.

About 40 people from diverse backgrounds who either work in, work with, or have been part of, workers' compensation from a multitude of jurisdictions.

There were lawyers, judges, doctors, insurance executives, risk managers, program managers, third party administrators, employers, and even injured workers - all to opine on the state of work comp, and essentially performa SWOT analysis (strengths, weaknesses, opportunities and threats).

That many people means that many different opinions. It was exhausting for the participants. Even more so for the organizers.

Keeping topics on track, keeping the discussion moving forward, ensuring that everyone had the opportunity to participate - a tough job.

Fellow blogger and president of workerscompensation.com, Bob Wilson, spearheaded the effort with a lot of help from Florida workers' compensation judicial system's head judge, David Langham.

I missed the first day because of scheduling and travel mishaps, which is fine, because I like to participate in the making of decisions, not so much the analysis of issues.

Here's what we hope to accomplish:

1.  Catalogue, itemize and prioritize where work comp, or the current work injury protection ecosphere (which includes "opt out") both falls short, and does well;
2. Further examine these issues and stimulate further dialogue within other groups of national influence such as IAIABC or SAWCA by publishing the findings and promoting additional meetings;
3. Foster standards and make suggestions that jurisdictions could adopt in order to minimize differences and irregularities.
4. Encourage a return to healthful work injury protection systems for the new economy.

We may be full of hot air. Nothing may come of this.

The soil has been parched from a work comp drought for too long. We think precipitation is on the way so we're planting the seeds of change. Then fertilization will occur as the bees of the work comp hive spread the pollen.

There are plenty of obstacles and certainly many things that we can't change.

But there's enough that we can.

That's our intent and our focus.

Does It Matter?

Dallas, Texas, is where a large diverse group of workers' compensation interests have gathered to start a national conversation about what work comp should look like and act like in this new economy.

Whether work comp is even relevant any longer is on the table too.

The issues are voluminous, the opinions diverse; solutions amorphous.

Yesterday I opined that ultimately the state of workers' compensation will return to entropy - the natural order is chaos; we can corral competing interests for some period of time before elements escape that order and operate outside the mean.

That would explain why the bigger jurisdictions seem to "reform" workers' compensation on a rather regular cycle.

I also reviewed the theory that more of decision-making is based on irrational thought, rather than logic.

This explains perfectly why workers' compensation is the way it is. Work comp is a pure political animal. Politics is all about emotion, not so much about logic.

For instance, Kentucky Gov. Matt Bevin this week replaced all seven members of the state’s Workers’ Compensation Nominating Commission in an executive order Monday "… to achieve greater economy, efficiency and improved administration of the Kentucky workers’ compensation system.”

But that order is clouded in political machinations that appear to be more about personal vendettas than the will of the public.

Bevin, a Republican who took office in December, called into question several actions taken by his Democratic predecessor, Steve Beshear, during a speech on April 19, targeting the Department of Workers' Compensation Claims. Bevin noted “two major potential irregularities within the workers’ compensation branch,” pointing to settlements for volunteer firefighters and requisition of defense attorney services.

The Workers’ Compensation Nominating Commission is the third state board that Bevin has overhauled or purged of members appointed by Beshear, according to a report by the Courier Journal.

Curiously, Beshear’s son, Kentucky Attorney General Andy Beshear, filed a lawsuit against Bevin last month, saying the governor acted illegally in cutting higher education spending without legislative approval.

That administrative law judges require political appointment in the first place is not a rational personnel management process; that any aspect of a public service is held against unrelated political maneuvers is the entropic consequence.

The Kentucky story is just one example in an endless supply of political emotion overriding logical decision-making. It is a demonstration of how outliers get created.

And when we really get down to it, workers' compensation itself operates outside the mean. The vast majority of people do not get hurt or ill at work. So, work comp itself is an outlier.

I wonder then, whether discussing what to do with work comp, or how to make it more effective, or any other discussion relative to such a minor subset of existence, really even matters; because what we're talking about is restoring order to a very minor subset of the greater social order.

But as we see in the theory of entropy, chaos spreads, eventually infecting all of order - and when all order is dislodged then we have anarchy.

The origins of work comp are rooted in anarchy. Work comp was intended to bring order to the chaos that can occur to business, to labor, to society, when people get hurt performing labor that results in financial ruin for the worker, the business and perhaps the community.

So, I've answered my own question. What we're doing in Dallas, what others are doing in other discussions around the country (and world frankly), is necessary. The containment of anarchy starts with the minor subsets/outliers because entropy is infectious.

Work comp, or some system of work injury protection, is necessary for the economy and greater good. Very few will have to avail themselves of "the system" but it must be available when needed.

And it must be effective and responsive.

That's why we're in Dallas.

The Natural State

The relevancy of workers' compensation is in question, so that is bringing industry professionals, and injured workers, together in various forums to open dialogues about what a modern work injury protection system should do, how it should function and what it would look like, including the 2016 Workers' Compensation Summit in Dallas TX that starts today (I will miss the first day due to travels).

Work comp escapes general insurance/risk management definitions. Most lines of insurance/risk management are monopolistic - there is only one element to worry about, only one principle to manage.

For instance health insurance only deals with medical, life insurance only deals with (curiously) death. Even auto or home insurance, which could have a "medical" provision, is really monopolistic because the medical component is just reimbursed, not managed.

Workers' compensation, however, is a triad: disability and medical lines are directly controlled and managed in the work comp setting, and so is liability (because of the exclusive remedy portion).

There's a lot of ideas floating around, and a lot of concepts being discussed. Some of that conversation is fairly basic, working within the existing framework of work comp. Some of it is more radical suggesting strategies that dismember the triad.

Regardless of what the "ideal" system is (and I don't think there are any, just compromises), there are plenty of outside forces which the laws of physics and mathematics say will impact whatever is implemented.

Economist Daniel Kaheneman, in his book, Thinking, Fast and Slow, argues that most decision-making, even at the highest level, is impacted by swarms of intuitive biases, misinterpretations of data, illusions and misconceptions of which those making decisions are blindly unconscious and thus no one decision-maker (and thus, over time, no one decision) is consistently superior to another.

The theory of entropy also comes into play; that is, the natural state of all things is chaos, i.e. without order. Regardless of how much we implement rules, constrictions, fortifications, etc., eventually all order returns to its natural state of chaos.

Think about computers for instance. Computers essentially manage electricity to create the illusion that there is order and stability, so I can type this blog. It seems reasonably reliable and I can predict that when I hit the "R" key an R will appear on the screen.

But we know that computers eventually all crash and cease function. That's because the natural state of electricity is chaos - electricity is nothing more than the harnessing of electrons zipping around space into some short form utility until that energy is release and the electrons return to a disordered state.

Light bulbs exemplify this - light is temporary and transient. It is "on" only when the electricity is ordered to vibrate a filament, and when the electricity to the filament is terminated the light ceases.

If we take the theory of entropy, and apply Kahenaneman's argument about decision bias, then it would seem that no matter what we do with workers' compensation, or any work injury protection system, there will be, in mathematical terms, a return to the mean, a natural state of chaos, in part because of bias in the decisions that produce the design.

Which is to say there will always be winners and losers, there will always be a vast majority for which the system will work, and there will be outliers that fall between the cracks or get more than what they're supposed to.

The purpose of this dialogue that is occurring around the country is to propose work injury protection schema that serves the modern, information age, economy.

Trauma incidents for the most part are limited to a very small subset of occupations, for instance, so perhaps the triad of work comp isn't the best way to manage most exposures. Health care remains the biggest exposure for most of the populations, so perhaps that is a component that needs to be available to all working people, not just those who can afford it.

Disability is an even smaller subset than medical care. The vast majority of the working population won't ever be disabled, not even temporarily, at least not to the extent that work productivity is compromised.

Even liability - one of the most sacrosanct features of work comp is exclusive remedy, but perhaps that's not relevant to most employers in the 21st century as it was 100 years ago because of safety laws, oversight and simply the fact that we're not so industrial any longer.

100 years of work comp, 100 years of order, and we're seeing entropy creep in.

Court rulings, unconstitutional provisions, uncompensated workers, increasing costs, profiteering, and downright bad behavior; it simply is a return to the mean, a return to the natural state of things.

If we believe, as most do I think, that the vast majority of people are essentially "good", then the mean will function quite well no matter what the natural state is. The examination of entropy that is now ongoing is a product of the outliers; functions, actions, people and things that don't concern the vast majority of the population.

So while it may be time for a rebuild, a time to return order and a new architecture drawn, the reality is that theses discussions are about re-ordering the outliers and broadening the bell curve that got castrated over time as a consequence of entropy.

How all this plays out is anyone's guess. I'm just saying that no matter what is done, eventually it too will return to a state of entropy because decisions are not rational no matter how rational we believe the decision-maker to be and we can't control nature.

That's not to say that what is work comp now can't be better or that there is a better model for work injury protections.

But what replaces the work comp that we have known the past 100 years will also, eventually, regress to the mean, have outliers on the curve, and entropy returns.

But that may take another 100 years.

Assume Responsibility

I know I'm going to get flamed for this blog post, but I have always committed to telling the story the way I see it.

I have taken on insurance companies and their executives, doctors and other medical vendors, attorneys and the legal profession.

Politicians of course haven't escaped my vitriol, and employers also haven't escaped criticism.

The only workers' compensation population that hasn't been met with cynicism has been injured workers.

There's two sides to every story, as they say. 

Most in the work injury protection schema do good deeds most of the time for most people. There are some times when things go awry, either intentionally or negligently. I get that. There are also laws and regulations that don't work effectively, or have contraindications which contaminate too large a population. I get that too.

Workers' compensation, or any form of work injury protection system, requires a lot of people to synchronize. Synchronicity is not easy. Sometimes the harmony goes awry. That's how life is.

Recipients of system failures get a raw deal. Sometimes it's corrected. Sometimes not. Sometimes the correction doesn't meet the expectations of the recipient and other times it exceeds expectations.

Most move on, find their new paths in life and return some positive energy back to the world. They aren't in the same place they were before injury, and certainly it's a struggle to shift directions, particularly later in life and particularly if unprepared financially and emotionally for an alteration to the expected path.

The vast majority do move on, find positivity in life, strive to make the most out of it, and refuse to let life get in the way of living.

However, there's a vociferous militant minority of the injured worker population who have made it their mission to inform the world of the injustices imparted on them by "the system" and all its nefarious participants.

They have ridiculed most all work comp sectors named above, but have spared me for the most part. 

I'm sure that will change now.

Here's my gripe: these unmodulated venters are all about negativity, and offer nothing to resolve either their own issues, or the issues facing the workers' compensation institution.

These folks have taken to the immediacy and vast reach of the Internet to let the world know about the work injury commercial complex; how all of workers' compensation is out to get them, and you too. They rail about injustice, and about conspiracy, profits, and ill will towards all.

They hijack award systems to claim, incorrectly and falsely, victory and acknowledgment.

Even after being adjudged fraudulent themselves...

If your opinion opposes their's, then crucifixion and burning at the stakes begins and doesn't stop until the witches are excoriated.

But never, ever, is there a solution suggested, or any attempt to make a positive change. 

Just victimization.

You may not choose to BECOME a victim, but you do choose to REMAIN a victim...

You all know who I'm talking about. I know you’re upset at bloggers, at TPAs, and a whole host of other people connected to the work comp environment, and this is fueled by your personal experiences. I completely understand your emotions and what you believe in.

You have drawn ire from people in the industry, but it's not because you are being vilified, or because they have a disdain for the injured worker with a voice, or any other malicious reason.

It is very simple - you offer nothing positive relative to change.

Anyone can complain. Few do anything to effectuate change.

Drawing attention to the negative does nothing to further the conversation, offers no solutions, provides no road map.

It’s easy to foment revolution, but revolution without offering a solution (and not nationalization of work comp or calling in the National Guard) simply ends with anarchy.

Some have gone as far as criticizing their own - people who are working hard at making changes in their own way. There is a visible injured worker population who are doing something POSITIVE. They have taken their rage, disgust, observations, and done something that helps others. It is long, it is tough, it is out of the ordinary - but it is effective, demonstrates a solution and one that will likely result in positive change as organizations review and study what is being done and then implementing it it their own systems.

It simply is not enough to complain. Everyone has a complaint. A complaint without a solution is bullshit. You may as well just dig a hole and hide because no one is going to pay attention.

Everyone knows that bad things happens in work comp and that there are profiteers off of the injured. That’s no secret.

So what are YOU going to do about it? 

Working outside of the system, criticizing others, denigrating the institution, doesn’t help anyone, anywhere, and in fact makes one simply a militant.

The answer is to work WITH the system. Everyone does it in their own way. They work, and work hard, with other people that WANT to make a difference understanding that this is not a one person job; hell, it’s not even a job for a community, but a job for an industry of people.

Maybe I call them as I see them, but I also work with the top leaders to help with change.

It doesn’t happen quickly. Heck, sometimes it doesn’t happen at all.

But other than publish vicious attacks, why not study the system, study the law, the regulations, and PROPOSE solutions that a politician or regulator or chief executive, or any other leader can endorse and work with?

What has happened, through this militant virulence is that your credibility as an activist is suspect because you attack everyone (and I'm sure to end up on that attack list because of this post).

Here's the deal: Too many people don't want to assume the same level of responsibility that they presume for their rights.

If you want change then make change happen with action. Actually DO something POSITIVE. Blogging, calling others names, denigrating the institution - none of that matters. 

What's YOUR solution? How are YOU going to step up and BE change?