The Foundation

My mother in law, Pat, lives next door. She's 86 years old and set in her ways. She has her habits, she has her opinions, she has her routine.

She's overweight and has been for as long as I've known her. Pat has had long standing issues with borderline diabetes, syncope, vertigo, high blood pressure and a host of other issues.

And like most in her age bracket, she loves sweets.

LOVES sweets. Donuts, cookies, sweet rolls, candy - pretty much everything and anything that someone near diabetic with attendant complicating symptoms should not eat. But Pat has very little self-control. She likes to shop, and likes to shop for what she likes to eat - food with sugar as its primary ingredient.

Pat

Because of her various medical issues, Pat sees doctors often. She has her long standing general practitioner who counsels and warns her about her diet. Her ophthalmologist (cataracts) warns her about her diet. Her dentist warns her about her diet. Specialists, internists, neurologists, and other professionals ... have warned her about her diet.

Last week Pat was referred to a nutritionist by her primary care physician, presumably to provide her with the knowledge and tools necessary to construct and maintain a diet appropriate for a woman with her suite of medical conditions.

And yesterday she consulted with her internist for more counseling about her diabetic state and nutritional admonishment.

Then she went to the grocery store and in her cart my wife found cookies, cinnamon rolls, and cake.

"I'll only have one cookie a day," Pat dissembled actively. "And besides, these were on sale."

Pat loves shopping and loves bargains and, even more, loves buying things particularly when shopping and when a bargain.

She knows this diet is not healthful for her. She knows eating sugar is anathema to her medical condition. She knows that she could cut her pharmaceutical bill by hundreds of dollars a month ... if only she could control her sugar urge (habit).

In the workers' compensation world, Pats various medical issues would be called co-morbidities.

I always thought that was a weird term. Morbid = death. So, if work doesn't kill you, then these other things will!

The payer community doesn't like to pay for someone's death that isn't directly related to work. I get that. I don't like to pay for things I don't cause or use either.

But here's the problem: you can counsel, you can penalize, you can incentivize - but you can not, but for the rarest of examples, change behavior.

And the older one is, the more entrenched behavior becomes.

Because there's a whole host of issues underlying that behavior that nobody has any control over, in the least someone who is not entire psychologically self-aware, or is in denial, or uses that behavior as a control and comfort for an otherwise out of control, uncomfortable life.

Essentially, all of the attempts to alter long term, entrenched behavior that has origins well outside of nearly anyone's understanding, are futile and a waste of time and money.

Pat likes sweets. Sugar is Pat's comfort zone. She knows it's bad for her. She knows it underlies her high blood pressure, her dizziness, her upset stomach.

And she'll continue to consume it in high doses regardless of the risks.

Pat doesn't need to be told that she shouldn't consume sugar, because there's no way to control her outside the examining room.

Rather, Pat should be provided with alternatives. The medical professionals know she craves sweets. They also know that as soon as she's out of the medical office she's in the store buying cookies that she'll claim to consume one per day (but in reality one BOX per day). There are lots of alternatives to refined sugar products: fruit, artificial sweeteners, and other products that would satisfy her carbohydrate conundrum.

Workers' compensation faces these issues daily on a large scale. Co-morbidities: evil health, medical and psychological phenomenon that interfere with return to health, return to work, retrograde of disability.

Trying to change the behavior underlying co-morbidities is futile most of the time, no matter how much we believe it is better for the person, worker or not.

I'm not saying we should just give up trying to ferret out co-morbidities to deal with them in an industrial setting. But we shouldn't obsess over them. Recognize them, understand that likely these won't change, and move on. Make some attempt at correction, but realize when it is ineffective and fruitless.

And then provide some options that are better health options; perhaps not optimal, perhaps not what really should be done, perhaps less than effective - but better than the alternative and within the person's behavior pattern.

You can't teach an old dog new tricks. But you can build upon the foundation.

Any Childhood Experience

Ask Bowzer about his childhood...

Adverse Childhood Experience - ACE.

This is the new buzz phrase to describe early childhood psychological issues underlying complaints of pain that can't be explained by objective physical measurements. The theory: something bad happened early in life that manifests in generalized complaints of pain as an adult.

ACE was also a topic explored at the 17th Annual AAOS Workers' Compensation and Musculoskeletal Injuries course in Boston, MA this past weekend.

Case studies were presented to orthopedists in the audience to show how this phenomenon materializes.

The remedy, at least from the orthopedic standpoint, was less clear.

ACE can have a profound effect not only on the "experience" of incurring a work injury (or any injury for that matter) but also the duration and extent of disability - perhaps even more so.

Yet, ACE is something that is more universally applicable to claims than we likely appreciate.

That childhood experiences affect adult behavior has long been settled in the psychological world.

And while ACE certainly impacts the injured worker's claim experience, I suspect it affect how a claim is handled as well - i.e. ACE in reverse.

Underlying psychological trauma is, for a lot of people, difficult to accept, and is part of the reason that in workers' compensation there is a very low threshold of "causation," because the process is supposed to be administrative and essentially self-executing.

The theory is that while there will be some claims for which someone's co-morbidities are being paid for through the work comp system, those are exceptions and just a cost of the system, whether it is psychology, obesity, cardiac, etc.

That theory was temporarily lost on a Pennsylvania claims adjuster that was probably frustrated and having a bad day when she told a claimant with a known history of childhood sexual abuse that the carrier was "tired of paying for something that happened to you as a child," in a settlement conversation.

The claims adjuster later retracted that statement and apologized, but the damage was done and she, and the carrier, were sued in civil court by the claimant for psychological harm.

The carrier, PMA Insurance Group and the claims representative, Mylene Zimmerman, raised the defense of exclusive remedy.

The Pennsylvania Superior Court last week said there is no such protection and that the claimant, Matthew Charlton was not barred from seeking a tort recovery from them.

Since Charlton's claim was premised on the idea that Zimmerman intentionally caused him injury by referencing a non-work-related psychological injury, which exacerbated the harm caused by the non-work-related psychological injury, the court said his claim was not based upon a work-related injury.

What we experience as children shapes us as adults. These could be adverse, or positive - in either situation an employer, and ultimately the claims payer, must take the worker as he or she is at the moment, including any baggage that may come along (which is why I propose that the phrase be renamed, "Any Childhood Experience," to reflect this reality).

Workers' compensation laws have been dissected over time, and exceptions to liability for the Whole Person in a claim have been carved out, largely because there are folks who are, "tired of paying for something that happened to you as a child."

Ultimately, though, that emotion may cost more than simply treating the Whole Person, as we see in Charlton vs. PMA/Zimmerman.

Angels in Blue

NOT the crummy photo I shot from 41Mike!

When I was a young child I wanted to fly jets for the Navy. I was completely infatuated with Naval Aviation. Back then, the plane to fly was the F-4 (workhorse of Vietnam), but Corsairs, Sabers (actually, I think those were only Air Force), and pretty much anything else that burned kerosene and made loud noise would catch my attention.

My brother, friends and I would "fly" on the swing set, as high as we could go in attempts to "loop" just like dog fighters, and we would make jet kind of noises, and "radio" calls to one another.

And of course then the F-14, Tom Cruise and Top Gun came out. I think I watched that movie a hundred times.

But the creme-de-la-creme was, of course, the Blue Angels - gawd did I want to be one of them, in their flight suits, steely reflective helmet shields, and deep blue F-18s. I would fantasize about huge, diamond formation loops trailed with smoke a mile into the sky, and blasting past the stands just a couple hundred feet off the runway, inverted of course.

Those dreams were dashed though when I learned that imperfect vision was a dis-qualifier. Imperfect vision ... hell, I wore Coke-bottle glasses as a kid (which were supplanted by contact lenses when I discovered girls, and eventually radial keratotomy).

Still, when the Blue Angels are in town, I get excited like a 10 year old - every single time.

This weekend they're the headliner at the Point Mugu Naval Airshow at Naval Base Ventura County, Point Mugu.

I rarely actually go to the air show any more because I can see much of the show from my house just a few miles away. And I've been spoiled - when my boy was in high school, his best friend's father was Commander of the base so we got to sit in the VIP section, right in front of the action, with food and beer galore.

But that special treat got trumped yesterday upon my return flight from visiting Mom.

As I was descending into Oxnard, Point Mugu Approached advised another aircraft in the area about a Blue Angels arrival. I assumed the aircraft was approaching the Naval base airfield.

Then lo and behold, off to my left as I passed through 3,000 feet, there they were! Diamond formation of six ships, smoke trailing, leveling off after a loop! I got the best seat in the house in Forty One Mike!

I fumbled for my phone camera and took a crummy shot - trying to see what I was shooting on the LCD screen of the phone with sun in my eyes, sunglasses on, and hand flying the approach ...

Mugu Approach called me up just as I took that crummy photo to advise of the Blue Angels presence off my 11 o'clock and that the ships would be breaking right to enter the Mugu pattern.

"In sight," was all I could muster over the radio - I was so excited. I really wanted to yell, "You're Damn Right they're in sight, Yahoo!"

Honestly, I don't really know why the Blue Angels get me so excited - I've seen them dozens of times. They've flown the exact same routine for years. I would say that the new perspective from 3,000 feet was it, but I feel the same excitement every time on the ground regardless of where I am.

Workers' compensation has a weird hold on me too - after more than 30 years one would think this would get routine and boring. But every day holds a new surprise.

For instance, the Missouri Court of Appeals this week ruled in Kolar v. First Student that a morbidly obese bus driver was entitled to benefits for an injury to his left leg that was caused by his uneven distribution of his substantial weight after he suffered an industrial injury to his right leg.

The court ruled the claimant was entitled to have that award enhanced by 12.5% to reflect the cumulative impact of his disabilities.

This might not seem to be a big deal, but the Kolar case is the first published case to address whether the "multiplicity factor" for cumulative disabilities survived the 2005 legislative reform that did away with liberal construction of the Missouri Workers' Compensation Act.

Missouri workers' compensation judges have historically had discretion to award a worker with multiple injuries compensation above the sum owed for each of his individual disabilities, if there is evidence that the combination of those disabilities exceeds the sum owed for the disabilities individually. The extent to which the award is enhanced is known as the "multiplicity factor."

Since there is no provision for such an enhancement within the text of the Workers' Compensation Act itself, attorneys in the state have been saying that strict construction of the act's provisions would not allow workers to have a "multiplicity factor" included in their awards of benefits.

They were wrong - at least for the moment. The court said that since the Legislature did not expressly terminate the use of "multiplicity factors" then they must have intended to keep that practice.

Missouri observed their work comp law fly a huge, mile high, diamond formation loop - and then break right to enter the landing pattern.

Some things change, some things stay the same - it's all thrilling to me.

The Workplace & Diabetes

A couple of recent studies tying type 2 diabetes to the work place seem to me to add fuel to the universal medical provision argument.

A German study of more than 5,300 working adults found that high levels of workplace stress can lead directly to an occurrence of type 2 diabetes.

The study comes from the Institute of Epidemiology in Munich. It followed workers ages 29 to 66, measuring their levels of stress and correlating it to their health.

The conclusion was that those under high work place stress are 45 percent more likely to develop type 2 diabetes regardless of whether one is overweight or not.

Related disorders include stroke, heart disease and blindness.

The Institute reportedly followed the subjects for 13 years. During that time, almost 300 of those in the study developed type 2 diabetes despite the fact that they all been healthy at the start of the study.

The increase in risk in work-related stress was identified independently of classic risk factors such as obesity, age or gender.

Researcher Professor Karl-Heinz Ladwig told the British publication Daily Mail: “According to our data, roughly one in five people in employment is affected by high levels of stress at work. We don't mean normal job stress but rather the situation in which the individuals concerned rate the demands made upon them as very high and at the same time have little scope for maneuver or decision-making.”

The findings were published by the journal Psychosomatic Medicine.

Yesterday the LA Times published a story about another study that found a link between long work hours, low pay and diabetes, but there is inadequate explanation for why.

The study was made available online Thursday by the journal Lancet Diabetes and Endocrinology.

The team of researchers scoured the medical literature and found reliable data on 222,120 adults from the United States, Europe, Australia and Japan, where up to 68% of them worked “long hours” (generally defined as more than 55 hours per week).

A total of 4,963 of these men and women were diagnosed with Type 2 diabetes during the time they were tracked. There was a small link to "long hours" - about 7 percent.

More interesting was the link to socio-economic status: of those with low incomes, working long hours was associated with a 26% increased risk of developing diabetes after adjusting for other demographic factors.

In a commentary that accompanies the study, a pair of Harvard researchers wrote that it’s too early to rule out the idea that “working long hours per se is toxic.”

Bowzer stress and diabetes?!!

According to the American Diabetes Association's website, 23.6 million Americans have diabetes, constituting 7.8% of the population. Of that 23.6 million, 5.7 million have not been diagnosed yet. 

That's a big potential work comp claims population...

Workers' compensation for the most part covers industrially related (not necessarily caused) disease - if there is some work place exposure to elements that may cause or contribute to disease then there generally is workers' compensation liability.

This is a paradox that is as old as workers' compensation - the causation question.

For instance, many states have either limitations or complete dissociation of mental disease from work comp coverage - presumably because outside influences are too difficult to control and business doesn't believe it should be responsible for someone's mental health.

On the other side are exposures that generally are highly correlated to industrial settings - mesothelioma as a consequence of asbestos is an example (and was the subject of independent compensation systems).

In the middle, and it's a big middle, are these fuzzy exposures like diabetes and work place stress.

One man's stress is another man's stimulation. The degree to which a person can tolerate stress, or long work hours, is highly subjective and dependent upon a person's "pain tolerance."

Which is why workers' compensation laws are to be liberally construed in favor of the injured worker.

The purpose of that rule of construction is because this big fuzzy middle area can't be well defined and in order to make good on the promise of expeditiousness workers' compensation is supposed to do away with as much controversy and dispute as possible.

Over 100 years of workers' compensation legal interpretation by the courts should have taught us that, for the most part, disputes on causation when there is a scintilla of evidence of industrial exposure are going to be resolved in favor of the worker.

Will work comp systems see an increase in diabetes related claims as a consequence of these recent studies? I don't know - maybe.

I did a search on WorkCompCentral for "stress diabetes" and the results demonstrate the contentiousness of such claims.

I think the bigger lesson is that workers' compensation systems seem archaically anachronistic - for the most part workers' compensation has not evolved, and the issue of causation, essentially a dispute regarding liability, is a precursor to the provision of medical treatment.

This gets in the way of one of the primary missions of workers' compensation - to expeditiously provide medical treatment.

As long as there is a legal requirement on causation (AOE/COE) there will be disputes, which delays treatment, increases costs (exponentially by the way - just look at attorneys fees inflation) and destroys lives.

And really the only way out of this conundrum is to simply get rid of the causation requirement, which is basically to envelope employer paid medical treatment into a universal program regardless of causation, leaving the indemnity part of the equation for argument.

I know that prospect doesn't sit well with many, particularly more conservative thinkers. I get that. But at some point someone pays, directly or indirectly, for the health of the population.

Apportionment Frustrations

Apportionment is one of those aggravating legal concepts that befuddle everyone with its technical intricacies, and is particularly frustrating to employers who feel unfairly penalized for disability not entirely caused by their industrial claim.

WorkCompCentral News this morning highlighted the confusion with a story on two similar claims with very different outcomes, likely to cause a bit of consternation to the employer community.

The first case is Acme Steel et al. v. WCAB, No. A137915, where the 1st District Court of Appeals in California rejected a ruling that did not apportion any part of Michael Borman's disability for progressive hearing loss when there was a pre-existing Findings and Award for hearing loss due to a 1993 explosion at work.

Borman had received a stipulated award based on a 22% permanent disability rating for the 1993 injury. As time passed, however, his condition worsened.

Borman filed a claim for benefits asserting he was permanently and totally disabled because his total hearing loss left him without any future earning capacity.

The Workers' Compensation Judge ruled that he was entitled to a Permanent Total Disability award because there was no possible job that could accommodate Borman's difficulty with oral communication and other physical limitations. The WCJ rejected apportionment to Borman's prior hearing loss claim since he had suffered no loss of earnings as a result of that injury.

I will stop the discussion here to pause and reflect on this rationale.

I know that permanent disability is a legal fiction. But that legal fiction has some basis in fact, otherwise it would not become a part of the culture.

That legal fiction is that, at least with regards to why permanent disability indemnity exists for injuries in the 1993 era, there is some diminution in the ability of the injured worker to compete in the open labor market.

Obviously, then, a 22% permanent disability award was incorrect for the 1993 injury, because there was no diminution in Borman's ability to compete for a job since he maintained his job ... for many years, likely getting pay raises along the way.

The definition of permanent disability in California has changed over the years. Now it is supposed to be reflective of a loss of earning capacity. Under this theory, Borman should not have received any permanent disability indemnity for the 1993 injury because there obviously was no loss of earning capacity.

Okay - so we see the folderol of permanent disability. If we accept that it is simply fiction, that it is a concept that is not based on fact, but is simply society's way of placating one who encounters misfortune at the work place, then there should be no problem. Pay and move on.

But we don't accept permanent disability as simply fiction. We ascribe fact to this fiction. And thus, fact must become reality in the long term so one who gets a permanent disability award but successfully continues employed life after a work place incident is seen as dichotomous.

Back to the story - the 1st DCA, in an unpublished decision Tuesday, ordered the WCAB to return the case to a judge for additional proceedings on apportionment since the expert's unrebutted opinion was that the causative sources for Borman's hearing loss could be apportioned between industrial sources and nonindustrial sources.

In other words, substantial medical evidence was ignored at the trial level.

Compared and contrasted in the WCC article was another case that was taken to the California Supreme Court - and rejected.

In Pacific Compensation Insurance Co. v. WCAB (Nilsen), Gregory Nilsen had a significant documented history of treatment for his lumbar spine, degenerative joint disease, chronic pain and anxiety disorder before his industrial injury, but the WCJ reasoned that none of these conditions contributed to Nilsen's total loss-of-earning capacity after a February 2007 workplace accident.

The WCJ ruled that liability for Nilsen's permanent and total disability fell entirely upon Nilsen's employer and its carrier, the Pacific Compensation Insurance Co.

Pacific petitioned up the appellate chain to the Supreme Court without success.

The probable reason (we'll never really know since no appellate review resulted in an explanatory opinion) why there was no apportionment in Nielsen's case was because there wasn't any hard evidence of prior disability - like an earlier Findings and Award as in the Borman case.

The attorney for Nilsen explained to WCC how he distinguished the two cases: "You can have a preexisting disability and then have a new injury which in and of itself creates a total disability, notwithstanding that there was previous disability," he said, "but you have to be able to differentiate the cause of that total disability from the preexisting disability."

Evidence. It all comes down to the evidence, whether it is credible, believable, substantial.

And sometimes even that doesn't count.

In the end, apportionment remains incalculably frustrating for employers despite years of reform attempts to tighten the standards.

AL Needs Comp Modernization

An Alabama appellate court was pitched the troubling conundrum of who pays for an industrial injury pending a resolution of liability between two different employers - and whiffed.

Apparently there is no law in Alabama directing what would seem to be a relatively common problem.

In the meantime the injured worker ends up facing the same sort of delays one would have faced without workers' compensation in place.

In Office Max Inc. v. Academy, No. 2110861 and Office Max v. Richey, No. 2110862, 05/17/2013, Sandra Richey filed a civil suit against her employer, Office Max, alleging that she had suffered injuries to her knees in 2002 and to her shoulders in 2005, during the course of her employment.

On three occasions – in June 2008, March 2010 and July 2010 – Richey requested the issuance of orders directing Office Max to provide her with medical care from the treating physician it had authorized.

Trial judges granted each of her requests.

In arguments presented to the trial court at a hearing on Richey's second request, Office Max pointed out that Richey had left and taken a job with Academy Ltd. Office Max contended that this subsequent employment had caused or contributed to Richey's knee and shoulder problems and so Academy should be held liable for her benefits.

Office Max then filed a motion, which was granted, to implead Academy as a party (implead is simply adding another party to a civil case to adjudicate liability).

Academy moved for summary judgment in its favor on Office Max's claim that it should be liable for Richey's benefits, stating that any injuries Richey might have sustained in the scope of her employment with Academy were merely recurrences of injuries she had originally sustained in the course of her work for Office Max.

A trial judge granted Academy's motion and granted Richey's FOURTH (emphasis added) motion to compel Office Max to pay for additional medical care.

Office Max appealed both decisions and the appeals were consolidated by the Court of Civil Appeals.

The court found that summary judgment in favor of Academy was improper because even Ritchey's treating physician said that her employment with Academy may have contributed in some part to her condition.

Presiding Judge William Thompson in a concurring opinion agreed that the summary judgment had to be reversed, but he wanted to highlight the problem Richey was having in obtaining medical care.

"There needs to be a rule of law, preferably a statutory one, that enables an employee situated like the one in this case, where the injuries are compensable and there is a question only as to which employer is liable for the benefits, to obtain necessary medical treatment as expeditiously as possible while the two employers litigate who is ultimately responsible for payment of the medical benefits," he opined. "I encourage our legislature to amend the Workers' Compensation Act...and to grant a trial court, in cases involving disputes where two or more employers are potentially liable for benefits for one or more compensable injuries, the authority to order each employer to pay a proportionate share of the employee's medical expenses pending a final determination of liability or, especially in cases involving application of the 'last-injurious-exposure rule,' to order the employee's former employer to pay the medical expenses pending a final determination of liability."

Reform is in the air and a number of states have passed substantial changes to their systems this past legislative season.

Alabama's lawmakers can easily deal with this issue by allowing the injured worker to make an election and then let the employer/defendants battle out the liability apart from the injured worker's claim.

Workers' compensation is supposed to be about providing medical treatment and indemnity to injured workers efficiently, expeditiously and without question of negligence or liability. Failure to direct who pays for what in the pendancy of a dispute between employers obstructs this mandate.

The NFL, Apportionment and Substantial Evidence

It's playoff season in the National Football League so it is only fitting that we get workers' compensation news concerning professional football claims.

In a fact pattern that I have personally defended against (unsuccessfully by the way) when I was practicing law, the Oakland Raiders may be stuck paying for the entirety of a claim that has an 11 year cumulative trauma history because of a failure of medical opinion on the issue of apportionment.

The Oakland Raiders have asked the California 4th District Court of Appeal, Division 3, to review a panel decision holding the team and its insurer, Ace USA, liable for former defensive tackle Sean Gilbert's permanent total disability claim for cumulative injuries. Gilbert played for the Raiders for only the final season in his career.

The Workers' Compensation Appeals Board (WCAB) in its panel opinion said that the Raider's Qualified Medical Examiner's (QME) opinion was not substantial evidence on the issue of apportioning Gilbert's injuries to the other teams he played for.

The Los Angeles Rams drafted Gilbert in the first round of the 1992 NFL draft, and he spent the next four seasons playing for the franchise. Gilbert joined the Washington Redskins for one season in 1996, did not play at all in 1997, and subsequently signed with the Carolina Panthers for the next five seasons. The Oakland Raiders employed Gilbert for the last season of his career in 2003, when he played six games for the Northern California franchise as a backup.

The Raiders' QME apportioned liability for Gilbert's claim based upon the percentage of time he spent playing for each team.

But two of the WCAB commissioners agreed with Gilbert's QME who said that apportionment could not be done with any reasonable medical probability because there wasn't any evidence of limitations or injury during the 11 years Gilbert was in the NFL.

The majority said that the defense could have cross-examined Gilbert's QME but didn't - no substantial evidence means you lose! And the dissenting commissioner simply said that he didn't think Gilbert's QME adequately addressed the issue either, but it sounds like he was leaning towards the majority outcome anyhow:

"Escobedo v. Marshalls (2005) requires a physician to determine what percentage of applicant's permanent disability was caused by his industrial injury and what percentage was caused by other factors," Commissioner Moresi wrote. "However, in Benson v. Permanente Medical Group (2007), the Appeals Board noted that under some circumstances it may be impossible for a physician to parcel out between successive injuries the causative factors of a current level of disability. This may have been [Gilbert's QME's] intent, but he does not adequately address this issue."

Here's my take-aways from this case:

1. The "good old days" of "expert opinion" are gone - medical opinion must be supported by both fact and science. Just saying it is, because one is an expert, doesn't make it so. If the Raider's QME was apportioning to other exposure then there needs to be supporting evidence upon which to base that opinion and in this case just dividing up the liability without some evidence in the record that indicates an exposure is not substantial evidence. We see this all the time.
2. When you don't have substantial evidence to support your case, and the other side has better evidence (remember that substantial evidence is evidence that is "good enough"), then there should be an attempt to challenge that evidence. In this case, either get a change in opinion that supports apportionment or disqualifies the opinion completely so you can start over.
3. Professional football is brutal and the players come out of their careers with significant injuries and disabilities. workers compensation, work comp, injured worker