Fairness To Self

Monday I espoused that workers' compensation had nothing to do with return to work because the ultimate decision lied with the worker, and his or her motivations.

I followed up a couple days later with a rant that there's nothing "fair" about workers' compensation.

The Supreme Court in Kentucky in April confirmed both of those tenets in ruling that the state's laws did not permit an offset against temporary total disability indemnity benefits if an employer provided an injured worker with a job during the recovery phase and while on TTD, even if that was unfair.

The result has been that many employers have stopped with their return to work programs.

The Supreme Court in its opinion in Quad/Graphics v. Mario Holguin said the employer made a good public policy argument for allowing employers to suspend TTD if they return an injured worker to employment on light duty before full recovery.

The employer, Quad/Graphics, (in reality, likely their insurance company, but it is not identified in the court's opinion) had argued that if it does not receive an offset, the plaintiff was getting “an unfair and unnecessary windfall.” Without an offset, employers “will stop placing its injured employees on light-duty work and the result will force employees to live off of reduced TTD benefits.”

The court found there is no law in Kentucky's statute books that allows employers to offset any benefits except in very narrow circumstances and not in any case where the worker is doing a job he was not employed to do.

According to WorkCompCentral's story this morning, many employers in Kentucky now, including some municipalities, have been dropping return-to-work policies entirely, confirming Quad/Graphics' argument.

Following release of the judgment, the Kentucky League of Cities told its 380 members to “discontinue any modified-duty work program you may have to avoid paying injured workers both for modified duty and workers' compensation indemnity benefits.”

The Quad/Graphics case is an unpublished opinion, which means it does not have binding authority as general law - the ruling is only applicable to that specific case. Still, the court basically affirms: there's nothing about return to work in workers' compensation and fairness is up to the legislature - everything else is an accommodation only:

"Workers' compensation is a statutory creation," the court concluded citing earlier case law for the quote. "Thus, the proper forum for the argument is the legislative."

Does return to work make sense? Sure it does. The employee derives the benefit of belonging, having more to do than contemplate his or her work comp case, and interact socially at a meaningful level. The employer ultimately saves money by reducing disability in the long run (because back to work will shorten disability duration - there are many studies confirming this), getting back to normal production faster and improving moral.

Employers that whine it's not fair do what is being reported - wah... They are short sighted and fail "the right thing" test.

But they prove as well that return to work is not a part of work comp, it is only an accommodation. And they further prove that there's nothing fair about work comp except what the legislature says is fair.

An employer waiting for sanctification from the legislature, though, isn't fair to itself...

Stop Return to Work

Floydell, WorkCompCentral's human resources manager, looked puzzled when she came into my office the other morning for a meeting.

"What?"

"You're eating a donut," she replied.

"I love donuts." Particularly what I was eating - plain cake, hmmmm.

She was confused.

"But you're so healthy, eating the right things and riding your bicycle for exercise..."

"Whoa, whoa, whoa," I interjected. "I don't ride my bicycle for exercise. I ride my bicycle because I like to ride my bicycle - it has nothing to do with health or exercise other than it keeps me from coming in here and yelling at employees. The health benefits are fortuitous, not intentional."

Floydell understood, but I don't think was quite convinced. The notion that a cyclist would eat, let alone love, donuts didn't seem to correlate. And people ride bicycles for exercise, in her mind, not just because they like to...

I like to ride.

I thought of that conversation yesterday as I was wrapping up an 83 mile ride. I had ridden down to Malibu, up Mulholland Highway near Leo Carrillo State Beach, to the crest over to Kanan Dume Road, up Latigo Canyon Road over the top and down to Pacific Coast Highway then headed back towards Ventura.

I probably should have just headed straight home from there - I was feeling a bit of "anchor syndrome" on the ride and weather was just ... weird.

But I got to Encinal Canyon Road and my obsessive driven trajectory took me back up the mountain, then reverse course down Mulholland, and finally home.

That little diversion, though, cost me time against a change in the wind direction - and sure enough, I was provided a head wind on the worst part of the ride: flat, boring, straight into the wind Hueneme Road for five miles.

I wanted to quit. I contemplated calling my wife for a wussy ride. The ball of my right foot felt hot and irritated from friction. I was dehydrated. My back hurt. And it was hotter than I anticipated.

I kept going though. It's only 5 miles of hell - I just did 78, what's the big deal? So onward I rode.

I averaged only 18 MPH. Ugh. But at least I could brag about the mileage, 7,300 feet of climbing, and 4,344 calories burned.

And I'll do it again. I'll ride this morning when this post is done, and I'll ride tomorrow, and the next day and the next day.

Yep, I like to ride my bicycle. I don't know why, except that I've always liked 2 wheels, either powered by me or an engine. Doesn't matter - give me wheels and I just go.

If my job were just to be on two wheels, there would never be any motivation problem. I can get hurt, and as soon as I am able I'm back on the bike. My recovery times after accidents and injuries are remarkably quick, and I don't think it's that I heal any faster than anyone else - I just am motivated to get back on my bike.

I really do like to ride my bicycle.

But my job isn't to be on two wheels. My job is to run a company.

I have lots of other things I have to do for my job. Fortunately, now that WorkCompCentral is a relatively mature company, I have been able to delegate most of the stuff I don't like to do for my job and can focus mostly on what I do like for work: reading, writing and speaking.

If I were a workers' compensation claimant, assuming all of my regular job duties other than reading, writing and speaking, I'm not so sure I would be that motivated to return to work. I think I would take my time getting back to the job, particularly if I didn't get along with co-workers, or despised my boss or customers.

Which is why I think that this industry's obsession with return to work as an end goal is misguided.

Return to work has nothing to do with workers' compensation or the recovery of the injured worker. Return to work is a nice outcome, but it can not be a goal because the only person who can determine whether there will be a return to work is the injured worker!

The employer has to want the employee back too.

The antonym of return to work is don't return to work.

I recall many, many instances during my defense lawyer days when I was essentially tasked with using the workers' compensation system to make sure that an undesirable employee DIDN'T return to work!

Clauses were inserted into settlement papers, extra money was paid, and other motivation was provided to keep a particular claimant from coming back to the work place.

That was, and still is, wrong. Using workers' compensation as a human resources management tool is a bastardization of the system, and sends the wrong message to the work force.

Workers' compensation is about medical treatment for an injury and indemnity for the infirmity only. It is not designed to motivate an employment decision (and every time legislatures try that, it fails...).

While return to work is nice for the employer because it lowers the experience, and is nice for employees because work is so essential to human being's identity - there has to be something other than just collecting a pay check for return to work to be successful.

And those are things that we have absolutely no control over.

Return to health is a much better, and more realistic, goal. Getting the injured worker healed up as good as we can is what the medical treatment component of workers' compensation is about.

When we can't get someone back to pre-injury health, then the indemnity component kicks in.

But there really isn't any place for return to work as a discipline in workers' compensation, because it is the employee who must have the discipline to do that. What you do, what the carrier does, what the employer does, what the physician does - none of that matters!

If the injured worker doesn't like the job, doesn't like the boss, doesn't like life ... ain't nothing you can do about that.

That's the stark reality of the world we are tasked to work in. Why is it that injured workers can perform all sorts of tasks on surveillance video that they can't do if they're asked to go back to work before they're ready after a work injury? It's not because they can't, it's because they don't want to...

I like to ride my bicycle, so I'm going for a ride as soon as I hit "publish". Then I'm going to go to work, but only because I'm not getting paid to ride my bicycle. And when I get to work I'm going to focus most of my energy on reading, writing and speaking - because those are the things I like to do.

Hopefully someone else in the organization will take care of managing employees, reviewing contracts, make sales, interface with customers, deal with the bank, take care of the accounting chores, do IT trouble shooting, etc.

And if I'm really lucky, there will be donuts in the break room with some fresh ground and brewed coffee.

********

Post script: Yes, there were donuts today in the break room!

Back To Health

While a committee of the International Association of Industrial Accident Boards and Commissions is about to finalize a paper (due out at the end of this year) it is preparing to educate the workers’ compensation industry about return to work, I think the philosophy adopted by United Airlines under their Corporate Director for Safety, Joan Vincenz, may be a better, less contentious, and less risky, approach.

Study after study shows that people need work. It provides purpose, routine, accomplishment. It is necessary for physical and mental health. People who work are, overall, happier and healthier, and live longer, more fulfilling lives.

The objection to a return to work philosophy, though is that there is potential for abuse. Workers may be returned to light duty, but end up doing work that is beyond their physical abilities at the time. There may be opportunity to fudge status or pressure to expedite the process.

It comes down to communication, and enforcement. Clear communication about a worker's abilities needs to be transmitted and understood to everyone, and there needs to be a method of ensuring that any restrictions are clearly observed.

Both are difficult to achieve in any environment.

Some states have tried engaging the employer and employee in the process with incentives. Mostly, I don't believe these work, because the incentives are one sided - to the employer (or insurance company).

California's incentive system failed miserably, in my opinion. This attempt tried to provide a benefit to the employer (mostly insurance carrier) by decreasing the permanent disability indemnity award if the worker was brought back (and imagine the worker's chagrin that he gets cheated out of a benefit for going back to work...).

The flip side of the California equation was that the indemnity award would be increased if there was no offer of return to work. Obviously this process generated misguided, and lopsided, policies.

Oregon's policy is to reimburse the employer for half of the wages for 66 days of light or transitional work. Again, the incentive is lopsided. Workers might benefit from return to work, but sometimes there needs to be a better reason.

My panelist in the Conversations session at the IAIABC convention, Vicenze told the audience that United Airlines has a "return to health" policy.

The idea is that sometimes an employee is not going to come back to the job. Sometimes the injury was too severe, sometimes there are other factors inhibiting return to the job.

But the universal goal is to get the injured worker back to as good of health as is possible - one can not go back to work unless one is healthy. If one is healthy then getting back to work is the next step and generally not a big step.

But without health, there can't be that second step.

Which makes a lot of sense to me. And Vincenze says her company has seen great success with that philosophy.

It's a slightly different mindset, slightly different approach, slightly different dialogue, a finessed detail.

Often, though, success is in the details.

Fly The Claim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It's a pretty simple concept.

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

Lots of details.

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

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

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

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

Ugh ....

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

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

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

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

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

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

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

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

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

Kentucky RTW

Kentucky has learned how to frustrate attempts by injured workers, and their employers, to get back on the job after a work injury.

The state's Supreme Court on April 2, in Quad/Graphics v. Holguin, ruled that Quad/Graphics was not entitled to an offset against temporary disability indemnity for the full salary it paid Mario Holguin after the third finger of his left hand was severed in a workplace accident, because Holguin was unable to return to his customary duties.

Holguin's finger was successfully reattached on the same day of the accident, but for about two months the company had reassigned him to "one-handed" duty doing quality-control checks and other odd jobs while healing.

First, the employer, Quad/Graphics, deserved kudos for doing the right thing and getting their employee back to work ASAP.

Quad/Graphics reasonably and logically argued that it was entitled to an offset from its TTD obligations for the time that it paid Holguin his full salary.

It turns out that Kentucky law doesn't allow that - the state apparently would rather ensure that the disabled remain so, and that employers just forget about attempting to employ them.

“Quad contends that without an offset for the light-duty wages, employers will stop placing their employees on light-duty work and the result will force employees to live off of reduced TTD benefits,” the court acknowledged in its opinion. But the justices said any change to Kentucky’s workers’ compensation laws would have to come from the state Legislature.

I get it - that the state's Supreme Court doesn't want to make law is commendable. That's the rule the courts are supposed to respect: courts interpret the law, legislatures make the law.

According to WorkCompCentral reporter Steve Sadin in his report yesterday, though, the Kentucky League of Cities, which operates a workers’ compensation risk pool for the commonwealth’s municipalities, has been advising its members not to return claimants to light-duty work while they are recovering.

And Sadin has confirmed that at least one city is following that advise.

That's an unfortunately lamentable consequence of the Quad/Graphics case.

It's not that the absurdity of such a rule is lost on the League though. Terri Johnson, the League’s senior marketing and communications manager, told Sadin that it is seeking a legislative fix.

This is pretty much a no-brainer issue. When a worker remains on disability not only does the injured lose the benefits of holding steady work (financial, physical, emotional), the country loses a productive contributing citizen and taxpayers have another beneficiary to support.

A few thousand miles to the north west, the State of Washington's Joint Legislative Audit and Review Committee is recommending changes that the state Labor & Industries Department, which administers Washington workers' compensation, adopt as standard operating practice a pair of return-to-work pilot projects.

Washington's Early Return to Work and Early Ability to Work Assessment programs use predictive analytics to flag injured workers who are less likely to return to work following an injury and then implement strategies to intervene.

The Washington state Committee obviously sees the tripartite benefits of return to work programs.

Kentucky can too.

Though the Kentucky Legislature does not go back into session until next year, employers and workers in the state should unite on this cause and lobby their lawmakers because this is one area where there truly can be the proverbial win-win outcome.