Just Bad Law

There's only so much abuse that people will tolerate. Then, after too many people take too much advantage of a situation, hammers are brought out to not just quell the abuse, but to kill it.

Thirteen years ago the chiropractic community had too many unreasonable people taking advantage of workers' compensation liberality. That abuse had been going on for twenty years. It frankly wasn't uncommon to see workers' comp patients getting chiropractic adjustment, consultation, naturopathy and all sorts of other "treatments" for years on end on a weekly basis - treatment protocol that went way beyond any measure of reasonableness.

Not all chiropractors were engaging in such nonsense, of course. Likely it was just a minority that were out of control. But because neither the professional association that governed chiropractic care, nor the professionals themselves, could seem to supervise that group of carrion, an insurance-charged legislature came along and implemented an artificial limitation on chiropractic and physical therapy care.

In 2003, then California Gov. Gray Davis signed into law SB 228 limiting workers to 24 chiropractic and physical therapy visits per injury unless a carrier authorized additional treatment.

Other states also reacted - Texas and Florida to name a couple. The chiropractic professional community simply could not control members whose primary mission was easy money...

I heard tale after tale of chiropractors shutting their doors after these reforms. Some just scaled down their businesses. Others moved on to other pastures.

In the meantime the frequency for back surgeries escalated and the subsequent opiate crisis is well documented.

The lesson - abuse a system too much for too long, and then watch the door slam shut. Worse, the reputation, credibility and reliability of members who were not part of the billing feast were also cast into aspersion. And even worse yet, the ultimate consumer of workers' compensation goods and services, the injured worker, had even fewer options for care and treatment.

Cris Forsyth, government affairs director for the California Chiropractic Association, told WorkCompCentral that chiropractors have long been pariahs in California’s workers’ compensation industry - and there's good historical reason: this is a group of professionals that were particularly and unreasonably abusive, medical guidelines be damned.

Chiropractors can't be completely blamed for SB 228. The trial level courts shared the responsibility. Judges routinely were granting bills and lien claims of chiropractors over the objections of payers, despite treatment impotence and care that went against medical science.

Frankly, California's workers' compensation judges condoned bad behavior.

So we get artificial limitations that we should not otherwise have.

Now the chiropractors want those limitations lifted and have proposed legislation to do so, but in the wrong way.

Assembly Bill 2407, by Assemblyman Rocky Chavez, R-Oceanside, would amend the Labor Code to require the physician treating a worker with a back injury to perform an assessment of the “level of risk for chronic back pain” and determine whether that worker meets the criteria for a surgical consultation. Surgery could be recommended, but only in a limited number of conditions and if there is sufficient evidence to indicate surgery is more effective than other treatment options.

Alternative “covered treatments” that could be deemed appropriate after the assessment under AB 2407 include:

• Acupuncture.
• Chiropractic manipulation.
• Cognitive behavioral therapy.
• Medications, including opiates for short-term prescriptions only.
• Office visits.
• Osteopathic manipulation.
• Physical therapy.
• Occupational therapy.

That's all well and good, but the proposed bill goes beyond amending Labor Code section 4600 in the above particulars by including a slight, though despicable, alteration to the "reasonable" standard of medical care and employer liability.

The existing standard is, "[i]n the case of his or her neglect or refusal reasonably to" provide medical care, then "the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment."

The proposed standard would be, "If the employer neglects or reasonably refuses to provide that treatment...".

Astute legal interpreters should pick up on that instantly: "reasonably refuses...".

So, even if the payer is in the right, by following the Medical Treatment Utilization Schedule or any other treatment guideline, scientific evidence, or other protocol that refutes the services supplied, the payer is STILL liable, because it "reasonably refuses" to pay for the services or goods.

Nice try guys. I'm certain that most don't object to alternative modes of treatment that will provide the best path for return to health of the worker who has a back injury.

But inputting a back door for required payment of services or goods that have no scientific or medical validity is dirty pool.

Listen, we don't really need any artificial limitation on chiropractic, or any other care now. We have guidelines, utilization review and independent medical review. AB 2407 just needs to remove the artificial limitations imposed back in 2003.

As it stands, I'm calling BS on AB 2407. This is just bad law.

Twelve years of experience on the receiving end of denigration, and they still don't learn...

That Ain't Workin'

"Money for nothin' and your chicks for free."

Mark Knopfler wrote those words about the ignorantly jealous who had no clue how much work it took to become a rock star.

There's plenty of people, unfortunately, who don't appreciate how much work is involved in healing people and making the industrial injury recovery system operate properly.

It's a workers' compensation stigma: fraud and work comp seem to go together despite so many efforts to eradicate that image.

So when stories come out, like today's news in WorkCompCentral about yet another major bust in Southern California involving a conspiracy of a dozen people raping the system (remember, claim costs are disproportionately higher in the SoCal area, particularly Greater Los Angeles), I fight the urge to get angry, vengeful, or sad. I don't gloat that these characters were finally caught.

Nope - I wonder how many more nonsocial personalities there are scheming to take from the poor and keep it.

The crime circle for which the San Diego District Attorney's Office on Thursday announced the indictment of 13 people was well organized. A self contained sphere of illegal referrals and kickbacks engulfed hundreds, if not thousands, of injured workers and the payer community with chiropractic and diagnostic services designed to take advantage of innocent unknowings and a bureaucratic morass that can hide greed through its complexity.

Many of the perpetrators named in the indictment or who have already pled guilty we have heard of over the years and are well known. If you do any claim work involving Southern California you likely have heard of them. Clearly organized, white collars and ties, with just a whiff of untrustworthiness air around them - you don't want to believe it, but then again you're not surprised.

In a paper on criminal psychological profiling, "Personality Characteristics and Criminal Behavior,"
author Cherie L. Griffith describes the profile of organized criminals:

"Organized crime is more ‘high end’ generally but still warrants priority due to the nature of the type of crimes that are committed under this umbrella style of behavior. The traits that are most prevalent for this type of crime are such things that are normally not politically motivated in nature, they have a hierarchal type structure with the strict behavioral pattern of limiting membership to those who’ve been granted exclusivity; members are required to be loyal and dedicated to the cause, and the governing body. This type of crime generally has their own governing codes in which to act or behave, and the crimes generally will have a ‘self-perpetuating’ element."

This is the manner of crime that is most pronounced when workers' compensation fraud is involved, whether it is medically based, financially based, legally based, or otherwise. There's nearly always a "family" with its own rules, its own morality (or lack of), and they're circular - spinning up and up until volumetric limits are reached. Sometimes these families involve small circles of like minded individuals, sometimes they are large corporations where only the top tier really understand the dynamics.

Illegal referral and kickback schemes are nothing new, unfortunately, in workers' compensation, because they are so easy to perpetrate - by the time anyone notices a few millions dollars are sucked out of the system.

The only reason these miscreants get caught is simple greed. There is never enough to satisfy greed. Those volumetric limits get reached because workers' compensation, seemingly a big pool of money, is still a limited pool of money.

So when greedy expectations aren't met, the ring implodes, stories leak, dissatisfied members squeal.

That is one common element we can count on time and again - the essential characteristic of these criminals is greed. And eventually that greed is the downfall of the organization.

But in the meantime a lot of damage occurs, and sometimes that damage is to human lives, which is a crime far greater than taking a few million dollars out of the work comp system.

Easy money and chicks for free. That ain't working...

Chiropractic Cure to Opioids?

An interesting comment was made by James Rainville, MD, at the 17th Annual AAOS Workers' Compensation and Musculoskeletal Injuries course in Boston, MA this past weekend.

But first a little about Dr. Rainville.

Dr. Rainville is a University of Massachusetts Medical School trained physician with a boat load of publications and scientific studies to his name. He's an Assistant Clinical Professor at Harvard Medical School, is Chief of Physical Medicine and Rehabilitation at New England Baptist Hospital, is a member of several professional organizations including the North American Spine Society, American Academy of Physical Medicine and Rehabilitation, and the Physiatric Association of Spine, Sports and Orthopedic Rehab, pecializes in medical management of spine conditions, disorders and injuries and medical musculoskeletal management.

In other words, he really knows his stuff about back and neck pain.

And what he said made me think that our own laws have been a major contributing factor to the dramatic increase in opioid abuse along with the attendant disabilities, deaths and other human horrors that these awful, addictive, destructive drugs wrought on individuals, and ultimately society.

We blame the drug companies for overt pushing because these drugs are big profit.

We blame unethical and immoral physicians seeking greedy new revenue streams.

We blame "crack head" addicts for getting out of control, and then supporting their habits by circling the pharmacy planet so they can make a few bucks on the black market.

We seek to address the problem by creating more complex rules, drug formularies, pharmacy benefit management programs, throwing docs in jail for murder and other circuitous ways of dealing with the problem.

But the opioid "problem" didn't just occur over night. It was brewing for some time, and a big part of the "problem" was the making, I believe, of our own doing ... by legislation.

Dr. Rainville pointed out in his lecture that physicians, when confronted with a case of generalized back or neck pain, should prescribe chiropractic; it is better for the patient that chiropractic be dispensed than opioids, because chiropractors can not (at least yet) make prescriptions.

But chiropractic treatment has come under artificial limitations.

California, in response to abusive chiropractic practices, in 2004 limited by statute the quantity of chiropractic and physical medicine to 24 visits.

I don't know the actual numbers, and I'm not sure anyone has really done a study - but I certainly don't remember opioids being an issue before the artificial chiropractic limitation.

They certainly were afterwards, and it took only a few years for that trend to develop into a hockey stick graph.

A presentation by Joseph Barr, MD, presented some cursory statistics that would tend to support this theory - Oxycontin was introduce to the market around 1996. Rapid increase in the prescription and consumption of that drug started occurring in the early 2000s, about the same time that abusive chiropractic practices were coming under scrutiny.
Could it be that the legislature's good intentions at curbing some small element of the system in fact helped create a much bigger, more sinister problem?

Other states also restricted chiropractic in workers' compensation around that same era.

It may be coincidental, or it may not. I don't have that answer - but there is an interesting correlation nonetheless.

Now we have guidelines, lots of them, that didn't exist in 1996, or weren't well known or adopted by workers' compensation. All of them make evidence based recommendations on the number of chiropractic and physical medicine treatments.

While the claims payer may limit treatment per some guideline, the nice thing about guidelines is that they are only guides ... and can be rebutted by facts or other evidence.

Laws can't be changed, and may be relied upon by payers for short term cost containment to the detriment of long term claim expense and ultimately a destroyed human life. But guidelines don't have to be followed (although in practice I'm afraid these too are all too often relied upon as hard "ceilings" on treatment).

Sure, you don't want some chiropractor providing treatment three days per week for years. There are other sensible ways of corralling incorrigible chiropractors other than hard limits.

Shutting down care absolutely, though, doesn't seem to have been the answer.

Textual Despondency

"Text neck."

This condition reportedly has been a "world wide health concern" since around 2011 when conditions associated with excessive cell phone usage for texting and other mobile communications activities other than a phone call were starting to be identified.

A couple of weeks ago I was in San Francisco for the California Workers' Compensation Institute's annual meeting.

San Francisco must be the leading city where this "condition" could be studied. I was astounded at how many people walk around that town with their necks bent towards the ground, small devices in hand, paying zero attention to where they are, where they're going, or anyone or anything around them.

The number of people with zero spatial orientation or situational awareness as a result of profound hand-held device distraction was amazing to me.

Even in the elevator of the hotel where normally cellular signals aren't strong, if existent at all, a couple of gentlemen occupied the car as I got on heading to upper floors; they both were completely immersed in their devices. They did not look up, acknowledge my presence in any way or even acknowledge each other.

We got to the seventh floor and, without even a short little glance above the screen in his hand held one fellow starts toward the open doors and says, I presume to the other guy in the elevator, "see you at dinner."

The other guy, likewise, did not take his stare off the screen of his hand held device, thumb busy scrambling about presumably entering text, and just grunted, "yep."

That scene was basically played out my entire stay in San Francisco on numerous occasions in elevators, standing in lines, walking the streets.

I experimented a bit by attempting to interrupt the myopically text bound with interjections of conversation such as "have a nice day," "what floor," or a short joke or two about whatever happened to be on my mind at the time.

Zero response. If someone was engaged in their hand held device they were not going to alter that interaction with some actual, live, human conversation - won't happen, no how, no way, at least not in San Francisco.

There are the obvious dangers of using a hand held device while operating machinery, automobiles ... trains ....

I figure that it won't be long, however, until this is condition becomes an "injury" within the meaning of workers' compensation. Certainly in states like California that recognize the continuous trauma theory of causation text neck will be a new injury trend.

There are some medical professionals already recognizing text neck and seeking to cure those afflicted with the condition, warning of dire physical consequences if left untreated: Flattening of the Spinal, Curve Onset of Early Arthritis, Spinal Degeneration Spinal Misalignment, Disc Herniation Disc Compression, Muscle Damage Nerve Damage, Loss of Lung Volume Capacity and Gastrointestinal Problems.

Honest...

I'm being facetious about this, of course, because all of this just seems rather silly.

Certainly the "cure" to this "disease" is to stop texting or using a hand held device excessively.

But in the context of workers' compensation claims, nothing is silly.

In a Forbes article it was noted that some are using knowledge of the condition to get cases of neck injury claims dismissed.

Obviously though if the conditions of compensation exists - you do text your employee once in a while to check on their status or have your assistant get you something for lunch, don't you? - that strategy will back fire.

POSTSCRIPT: Oprah on texting out of social context: http://www.businessinsider.com/just-say-hello-cure-loneliness-2014-3

Texas Medical Up 8%? Yawn...

I haven't written much about Texas lately because the state has been so boring.

After all, what can you say about a system that has continued to lower costs, deliver benefits, and rank as one of the most efficient systems in the United States.

All of us pundits have attributed the state's performance to various things such as competition from non-subscription, closed prescription formulary and independent medical.

But this being workers' compensation, we also can not deny cyclicality, and inherent ties to the economy and culture of a state.

The Workers Compensation Research Institute released a report Tuesday indicating that medical payments per workers' compensation injury claim in Texas grew by nearly 8% from 2010 to 2011.

Researchers attribute the rise to fee schedule increases resulting from 2005 legislation, that state's landmark reform, HB 7.

"Prior to the reforms in 2001 and 2005, Texas medical payments per claim were the highest of the study states," Ramona Tanabe, WCRI's deputy director and counsel, said in a prepared statement. "In recent years, however, they were lower than the typical state in the study."

Texas paid lower medical payments per claim than most other states, the study said, because it paid lower than typical prices for some medical care and experienced large decreases in the use of medical care.

Wonks call medical care use, "utilization." While the report says that there was lower utilization as a result of these legislative changes, particularly in the fields of chiropractic and other physical medicine fields, this can also be interpreted as more restricted access to care.

If a medical service provider does not find it financially beneficial to participate in the workers' compensation medical delivery system because a fee schedule does not compensate sufficiently to induce participation, then there is restriction to medical care access and consequently lower utilization.

Whether that utilization and access to care is supplanted by some other medical delivery system or not, or whether the providers shift to other payment models typically isn't a focus of workers' compensation specific research - there isn't a whole lot of motivation to find out because the primary focus of workers' compensation research is on system costs.

If those costs go somewhere else, well, it's not our problem...

Chiropractic care took one of the biggest hits in HB 7 as Texas followed a formula other states adopted - hard lining the number of chiropractic visits permitted.

A 71% decrease occurred in visits per claim to Texas chiropractors from 2001 to 2011, from 39 to 12.

Price increases in 2011 from 2010 were due to higher prices paid for non-hospital care, higher prices for hospital outpatient payments per service and rapid growth in hospital payments per inpatient episode, the study found.

Higher medical payments were fueled by fee schedule increases following Medicare updates required under HB 7, the study reported, and the 2011 ban on informal networks, which allowed medical service prices to be negotiated. WCRI also reported a decrease in the use of non-hospital care slightly offset the increase in prices.

But the study also found the average medical cost per claim on a 12-month average at just over $9,800 in Texas, fourth-lowest and 18% lower than the median of the 16 study states. Average cost per claim was lower only in Michigan, California and Massachusetts.

(I know you're thinking this: ... California?)

Texas remains one of the few states where carriers can make an underwriting profit in work comp with one of the lowest average combined ratios in the states. Some will say that is at the cost of injured workers, others will say it reflects good system management.

I'll just say it's what the people of Texas have - each workers' compensation system reflects in large part the culture of that state and general sentiment towards work, and working.

In other words, it is what it is - and while other states can mimic elements of Texas, the culture and attitudes of the state are much more difficult to assimilate.

When Zealousness Becomes Malicious

When does zealousness become malicious?

It seems that's what is being asked of the  U.S. District Court in Sacramento in a case brought by five California chiropractors against The Travelers after the insurance company accused them of illegally practicing medicine and seeking criminal prosecution. 

Judge Lawrence K. Karlton ruled that the chiropractors can proceed with a civil action alleging Travelers Property and Casualty Co. engaged in malicious prosecution by persuading prosecutors to file criminal charges against them.

At the heart of the action is the practice of manipulation under anesthesia (MUA), whereby chiropractors make adjustments on a patient who is sedated by anesthesia administered by a medical doctor.

The story starts in August 2005, when San Joaquin County Deputy District Attorney James C. Wydert, according to the story reported in WorkCompCentral this morning, filed a criminal complaint against Michael Yates and Joseph Ambrose at the request of Travelers based on the recommendations of its investigator in the matter, William Reynolds. 

The DA alleged improper practice of medicine for performing MUAs, insurance fraud, conspiracy and grand theft. 

Wydert also filed a separate criminal complaint against Richard Sausedo and Pedram Vaezi alleging illegal practice of medicine and insurance fraud.

Then in March 2006, Wydert filed a criminal complaint accusing Wilmer Origel of insurance fraud and practicing medicine without a license.

The complaints against Yates, Ambrose, Sausedo and Vaezi were all dismissed “in the interest of justice,” according to documents filed with the federal court. In 2008, a jury in Stockton returned a 10-2 verdict to acquit Origel.

According to Daniel Horowitz, who was Origel’s attorney during the criminal proceeding, documents were discovered that suggested Reynolds “was running the show” and the district attorney’s office was doing what he said to do.

Reportedly, Reynolds on Aug. 25, 2005, said in an email to Steven K. Piper, another Travelers investigator, that a successful prosecution could be a "huge benefit to the company."

In the same email, he also said that a California Insurance Department investigator indicated the department wanted to prosecute all chiropractors for billing for MUAs.

“It would dramatically affect the insurance commissioner’s budget and political standing to have a major arrest investigation of this magnitude,” Reynolds wrote, according to the WorkCompCentral story. “The financial impact would be huge!”

The California Board of Chiropractic Examiners had issued a statement in 1990 that MUAs were within the chiropractic scope of practice and issued formal rules to that effect in March 2010.

Judge Karlton said the emails show Reynolds “was both interested in the monetary benefits to his company of declaring MUAs illegal and saw his influence as a motivating force in the criminal prosecutions.”

Karlton also wrote that Lon Malcom, a criminal investigator for the Department of Insurance, said during a March 29, 2011, deposition that an affidavit he submitted to the San Joaquin District Attorney’s Office to establish probable cause for a search warrant was “totally based” on information provided by Reynolds.

The case is going through procedural issues now with the latest activity being a dismissal of certain causes of action against Travelers, but also upholding other substantive allegations of the plaintiffs.

Regardless of the outcome of this case, which may or may not survive procedural challenges, it is a disgusting display of the callous disregard of the insurance industry, and of the government, for the rights of professionals (or anyone for that matter) where they are clearly operating within the law.

It's not the alleged crime that motivated these people to cause grief for others. It is the Almighty Dollar.

There's a reason that insurance is categorized as a part of the Financial Industry - because it's all about money, and this case demonstrates that to an unfortunately perverse degree.

I don't care if you're a medical professional, a legal professional, an insurance professional, an injured worker, an employer or the government. Money corrupts.

Reynolds, Piper and all of the others may all be fine people - but their zealousness was supercharged by the perception of power fueled by monetary gain. They went over the line by a wide margin.

I do not know the fate of Reynolds, Piper or anyone else involved in the manipulation of the system, but in my mind they are the ones that deserve punishment for these dishonest, unethical acts. The Travelers should likewise be made to account for the injustice brought upon these chiropractors.

Banning the Criminal Activity Makes the Criminal More Sophisticated

In 2003 the California legislature passed SB 228.

Among its various controversial provisions was a constriction on the number of chiropractic visits an injured worker was entitled to.

This law was implemented because some chiropractors would take advantage of workers' compensation's life long medical care provision and have patients on weekly adjustment programs for years, running up chiropractic bills in the tens of thousands of dollars per case.

But to prove that as soon as you shut down a well another spigot opens up (or, since this is county fair season in California, "Whack-A-Mole") unscrupulous chiropractors have teamed up with similarly characterized physicians to take advantage of the law in complex schemes to continue unfair profiteering, and according to some, illegally bilking the work comp system, and other medical systems.

California law allows licensed professionals, such as chiropractors, acupuncturists, registered nurses and doctors of podiatric medicine, to own up to 49% of medical corporations. A physician or physicians who are licensed by the Medical Board of California must own at least 51% of the corporation. California Corporations Code Section 13401.5 further says the number of licensed professionals can’t exceed the number of licensed physicians in a medical corporation.

These are known as multidisciplinary clinics and allow patients to go to a single clinic to get all the treatment they need under one roof - which would seem like a great, convenient model for patient convenience.

Chiropractors intent on unfair business practices however "lease" the use of doctors' name and licenses for medical clinics to take advantage of this liberality.

Using what's known as the MD-DC model, chiropractors get around the SB 228 constriction by having physicians order up services and make referrals for unnecessary procedures.

Several fraud experts who talked to WorkCompCentral on the condition that their names not be published said that multidisciplinary clinics -- and the MD-DC model in particular -- have become more prevalent in California after the implementation of Senate Bill 228 in 2003 and are responsible for highly inflated, if not outright fraudulent, medical billings.

But these schemes are notoriously difficult, and expensive, to prove in a court of law because of the sophistication that these people use in their accounting and other records.

And while the criminal aspect of these enterprises is alarming, the truly shocking element is that these people have no regard for the patients that are subjected to "treatments" in the name of ill-gotten gains.

For instance, the Division of Workers' Compensation (DWC) suspended the Qualified Medical Examiner (QME) license of chiropractor Richard Skala for six months but stayed the suspension and placed him on probation from July 25, 2011, through Jan. 24, 2012.

The violation Skala was accused of was referral of patients to the 51% owner of Golden State Neuro Medical Association Inc., Ramanathan Prakash, to conduct “nerve conduction velocity testing” on four occasions between March 11, 2008, and May 20, 2009. DWC says in its complaint that these referrals were made for profit in violation of Labor Code section 139.3.

Skala was a partner in Golden State Neuro Medical Association Inc. Prakash's QME status was terminated in 2011 for not reporting that he held an ownership interest in the medical practice.

Prakash was eventually found guilty of MediCare fraud for participating in a scheme that falsified patient records and billings.

All of which shows that you can ban the criminal activity, but you can't remove the criminals.

New York Demonstrates the Difficulty in Cultural Change

I talk quite often about the culture of workers' compensation in this column, and how difficult it is to change even when everyone involved in the system acknowledges the damage and inefficiency of behavior that is not beneficial to anyone other than a particular interest subset.

New York is in the middle of a culture fight, with interest groups that have been bloodied and sent home in other states 3,200 miles away clamoring to stay in the fight in order to protect their turf, even if that turf can not empirically be supported in any other manner than to say, "it's always been this way."

The New York Workers' Compensation Alliance released results from a Freedom of Information Law request filed by the New York Committee for Occupational Safety and Health (NYCOSH) showing that there were 202,643 requests for variances from the state's medical treatment guidelines filed by treating physicians, chiropractors, and physical therapists from Dec. 1, 2010 -- when the guides were implemented -- through Feb. 4, 2012.

Robert Grey, a claimants' attorney and chairman of the Alliance, told WorkCompCentral Tuesday the bulk of variances now in dispute involve treatment by chiropractors and physical therapists.

The guidelines limit chiropractic care and physical therapy to four weeks following an injury unless functional improvement can be demonstrated. If medical providers can verify improvement in a worker's function, the guides then allow an additional four weeks of treatment – up to a maximum of eight weeks.

The vast majority of requests are for injuries that are "grandfathered" into the guidelines according to Grey.

NYCOSH Executive Director Joel Shufro said his group did not ask the board to delineate between variance requests on injuries pre-dating implementation of the guides.

"But I can tell you the bulk of the injuries in these cases range anywhere from several years ago to a decade ago, "Grey said. "These are instances in which the board told workers years ago they were entitled to symptomatic treatment. The board is now saying it has changed its mind."

The Alliance said the board is receiving an average of 20,000 variance requests a month. The board has held 19,479 hearings since the guides took effect and has scheduled another 1,347 hearings.

The board denied 8,562 variances following hearings and granted another 10,857 variances at hearings, the Alliance said.

The board rejected another 50,000 variance requests without receiving a formal response from an insurer or holding a hearing. The alliance said that leaves about 130,000 variance requests that await final action.

NYCOSH, which is lobbying to pass Senate 3741, filed by Sen. George Maziarz, R-Newfane, would prohibit State Workers' Compensation Board (SWCB) from applying the guides to injuries or illnesses that occurred before the guides were implemented.

Proponents of S 3741 use the same, tired old argument that arises anytime there is a culture shock - that it is costing more presently to deal with the change than what is being saved:

"This is causing tremendous problems for workers, and it results in a flood of paperwork and litigation that creates enormous expense for employers, health care providers, injured workers and the board," Grey said.

"What the board is failing to recognize is that people are not parts of a machine, where all you care about is function. These are human beings, and this treatment is required to keep them working," he said.

This is a short sighted argument, and only perpetuates the entitlement mentality that is at the root of systemic dysfunction within workers' compensation systems.

California saw the same reaction from chiropractors and physical therapists in 2004 when reform laws limited such treatment protocol to a specific number of visits.

After a couple of years of considerable litigation, regulatory and legislative fighting, that one little aspect of culture changed. Fights have erupted in other aspects of the system, but empirically supported evidence of the value of chiropractic and physical therapy treatments, upon which the California limitations were based, prevailed. The California judicial body upheld the limitations strictly.

Sure, the "whack-a-mole" phenomenon occurred, and costs bubbled up in other medical sectors - and those sectors are now the subject of litigation, regulatory and legislative battles.

But the point is that a strong judicial body, one that upholds the law, is a key component to cultural change.

It is no surprise that SWCB is now swamped with variance requests. It is no surprise that SWCB is rejecting variance requests en masse. And it is no surprise that special interests are fighting hard to hold on to their special income sources until alternative income sources can be identified.

In the long run, this too will pass. The culture will change. Therapy solely for the purpose of symptomatic maintenance will disappear, and people's entitlement attitudes will change.

Life ain't perfect. People experience pain. Everyone experiences pain. Pain is just a part of living. If you are not feeling some pain at some point during the day you are likely horizontal and inert.

Most humans just deal with it. A small subset of our species is encouraged to perpetuate victim mentality by groups that have a vested interest in pain.

This would not even be an argument if workers' compensation were not an entitlement with no investment by the worker other than some time. But since workers' compensation requires no worker investment the alternative is to place limitations on the entitlement. In medical treatment those limitations are implemented by guidelines which, for the most part, are based on empirically derived evidence.

New York should stay the course and defeat S 3741. The state will be better off in the long run.

3.25 Chiro Visits Per Week for Four Years: Cultural Illness Perpetuated

You read a case like Leca v. Workers' Compensation Appeal Board (Philadelphia School District), No. 679 C.C. 2011, 03/07/2012 and you can't help but shake your head at how some abusive professionals take advantage of workers' compensation, damaging the system for other reasonable, moral providers.

John Leca, a police officer for the Philadelphia School District, injured his back while trying to break up a fight on April 14, 2004. The employer accepted liability and issued a notice of compensation payable.

Four years and 450 treatments later (what took so long?) the employer sought utilization review (UR) of Leca's ongoing chiropractic treatments.

Four years with 450 visits of chiropractic... Really?? That's 3.25 chiropractic visits every week for four years!

The original UR was by a chiropractor who said that despite the fact that Leca wasn't improving the treatment was reasonable because it was keeping him off drugs...

The employer/carrier obtained reports from some orthopedists who opined that the ongoing chiropractic was not justified because there was no evidence that Leca was improving or stabilizing, calling the treatments "palliative".

A workers' compensation judge found the orthopedists to be more credible and granted the employer's petition. The WCAB affirmed. Leca appealed.

In its majority opinion, the Commonwealth Court noted that the claimant argued the workers' compensation judge erred by relying on medical experts who did not review the records related to chiropractic treatment. Leca based this argument on Brookside Family Practice v. WCAB, a 2006 decision by the Commonwealth Court that held a workers' compensation judge erred by relying on testimony from an employer's experts who did not offer any evidence related to the effectiveness of the use of a spinal cord stimulator, which was the specific procedure under review.

But the Brookside decision is not applicable to Leca's case, the Commonwealth Court said. Leca's treatment was repetitive and ongoing, unlike the two specific procedures that were at issue in Brookside. Moreover, the physicians who testified for the employer addressed the specific chiropractic treatment under review and "credibly and persuasively opined" that the treatment was unnecessary.

The court also rejected the claimant's argument that the workers' compensation judge should not have relied on testimony from orthopedists about treatments performed by a chiropractor. The court said it is well established in Pennsylvania law that the opinion of medical doctors may be considered, even if they are not specialists in the specific field under review.

What the court was really saying is that it wasn't going to put up with abusive practices, regardless if a peer says that it is okay.

3.25 chiropractic visits every week for four years is abusive and I don't care how good it makes one feel. There is no reasonable support for this kind of activity and you can bet that if Leca had a co-pay or some other financial obligation there would not even be an issue.

The entitlement mentality fostered by free medical care, and the willingness of professionals to abuse that entitlement for their own interests is a cultural illness that is at the root of systemic problems with workers' compensation.