What Did You Learn?

I'm heading to Boston today for the Workers' Compensation Research Institute's annual wonk-fest: more information, data and analysis of a high order about workers' compensation insurance and the institution of work injury protection under one roof than any sane person would attempt to consume in a single setting.

Which, I suppose, is why it's a two day affair...

I plan on learning something new about how fee schedules affect behavior, about why outcomes differ across state lines, about opt-out and why, or why not, it's misunderstood, about the new trend of "shared economy" and its threats or promises, among other things.

I'm encouraged by the Alliance of Women in Workers' Compensation (a part of Women Executives in Workers' Compensation) timely meeting the day before the conference, taking to task the industry's dispute-based claims model and to demonstrate how an advocacy-based administration model not only produces superior results, but lowers claims costs and represents a solid business model.

But mostly, I'm inspired by the hundreds of professionals that have in mind the health of the workers' compensation institution and what it means to the overall economy.

This is what I'm reading in the general business news media: the world economy is suffering; the United States economy is generally healthy, but perhaps not healthy enough to pull the rest of the world up; and American manufacturing is seeing a resurgence, but without the attendant labor increase as in the past because of advanced automation.

Oh, and the political parties have sunk to new, all time lows, in presidential campaigning - perhaps reflecting the angst the electorate feels with do-nothing elected officials more concerned with re-election than running a government.

Workers' compensation in the modern economy may seem less relevant because there are fewer people who stand the chance of getting hurt on the job. And that's troublesome because workers' compensation has historically had very little relevancy to anyone, either working or employing, until something bad happens at work - then there's plenty of blame to go around even though work comp is allegedly a "no fault" program.

Those that do get hurt on the job face worse prospects than ever with decreasing (relative to inflation) wage replacement, increased scrutiny of medical care, and lower expectations than ever that there is stability in the work place, let alone compassion in work comp.

How do we, as an industry, steer the ship from the focus on cost and expenses to compassion and caring?

How do we reward professionals for doing the right thing in the face of innumerable obstacles?

How do we incentivize workers' compensation vendors to look beyond the next quarter's financials and make long term rewarding plans that benefit the institution, not just Wall Street?

Mostly, how do we protect the primary stakeholders, employers and their workers, so neither is left "holding the bag" after the table cloth has been pulled from the negotiating table?

There are certainly plenty of details to attend to in the field of workers' compensation, and plenty to learn.

As a child, every day I came home from school Mom would ask what I learned. My head would be so full and ready to explode that it was overwhelming, "nothing." I simply couldn't answer!

As I grew older I developed a skill for distilling complex ideas down to basics. For instance, in law school there are rules, then there are exceptions to the rules, and then you are taught the exceptions to the exceptions.

I quickly realized that the exceptions to the exceptions were simply the basic rule restated. So I never learned those double exceptions - that was just unnecessary noise.

Work comp is no different - when we learn to go back to basics the institution of work comp makes incredible sense, and is likewise sensical in its administration; back to basics...

I think that's the overall WCRI theme: Understanding Today to Prepare for Tomorrow.

It's also the basis of AWIWC's pre-conference: Creating an Advocacy Based Claims Model.

Just go back to the basics that were established over 100 years ago and everything makes perfect sense.

Adjuster Does Right

I write all the time about bad things in workers' compensation and how we need to give the world something positive to talk about. Just yesterday I commented on the medical fraud mill in Southern California. The day before that it was about a professional football player that endured decades of delay and denial until he got the medical care recommended by the insurance company's consultant.

Every day there's something negative reported. The whole institution of workers' compensation seems ensconced in delay, denial, refusal, dispute...

This negativity wears on the psyche. People in workers' compensation seem embarrassed to be associated with the industry because of these bad perceptions. Everyone has a neighbor who's "cheating" because they can mow the lawn while out on disability. Doctors don't listen to their patients because they're not paid to do so and can't afford the time if they are to stay in business. Lawyers, even for the defense, get disheartened because financial control takes precedence over return to health.

Even claims adjusters, those who are really on the front line, end up with inferiority complexes, despite doing the right thing.

The tone in the prose of "Adjuster X" in the latest postings in Risk and Insurance's website seems apologetic, even depressing - because he did the right thing against the wishes of his superiors, the broker and the employer.

You can tell by reading his tale that he KNOWS the right answer to his claim question right away: accept or deny. And you can feel his angst as he tries to do his job, correctly and appropriately with sound decision making within the bounds of the law and the description of his job.

The facts seem to me pretty straight forward and point to compensability.

The injured worker, a 54 year old nurse case manager, was driving from one appointment to another when she was involved in a serious rear-end auto accident. She was not wearing a seat belt. She was also, apparently, considered a marginal employee, good enough but not great.

The broker demanded the adjuster deny the claim because of the lack of safety belt, obviously not understanding that workers' compensation is a no fault system. "I told him that my investigation was still ongoing," writes Adjuster X, "and any decision now would be premature," too polite to tell the uneducated broker that negligence has no basis in comp (although in this state apparently benefits could be reduced by 25% for lack of a safety belt in an auto accident).

It appears that after about two weeks of hospital care the adjuster gets a demand letter from an attorney representing the employee demanding the claim be accepted, and after consultation with house counsel Adjuster X ultimately did accept the claim and started paying benefits.

After 10 months the employee's condition didn't improve, and her attorney amended the claim to include psyche and total disability. Opposing medical-legal exams ensued with predictable results.

"Further defense of the case would be time consuming and costly," Adjuster X concludes, "so reluctantly we accepted the case for lifetime disability."

When I read the account by Adjuster X, I hear embarrassment at not meeting the demands of the employer and its broker. I feel anxiety and conflict in knowing someone's life was inescapably altered and who's future is in his hands. In the conclusion I glean relief: decision made, time to move on, another case of heart wrenching decision making processes to take its place.

It's easy to denigrate and criticize "the insurance company" because of the monolithic facade of the establishment, and the cold, dehumanizing character of the process.

But behind that steel and glass are real human beings entrenched in conflict as soon as they walk through the doors to do their jobs. Every day the professional at the claims desk has decisions to make that affect, deeply, others.

The pressure comes from the broker and employer who aren't educated or experienced in the nuances of workers' compensation law or have some ulterior motive. There's pressure from corporate to meet financial and compliance goals. The threat of litigation adds an additional layer of pressure.

And, "reluctantly," the claims adjuster has to decide between the financial interests of his employer or the humanitarian interests of his ward, the injured worker.

In the end, Adjuster X did the right thing.

Not without considerable anxiety, stress and internal conflict - all of which is palpable in Adjuster X's story.

The employee is likely one for the rolls, and the case file will migrate from adjuster to adjuster through the years to administer lifetime benefits and medical care, likely with no less anxiety, stress and conflict for the successive adjusters.

In my mind, though, Adjuster X made the workers' compensation process function as intended - to me this is ultimately a success story.

There are many more success stories like Adjuster X's, where the right decision is reached through the discord and contention that is inherent in the claims process. We need to recognize those stories and the people that make them happen.

“There are a lot of more positive narratives out there—but they’re lonely, and disconnected. It would make a difference to join them together, as a chorus that has a melody.” Phillip Zelikow, a professor at the University of Virginia, to journalist James Fallows in “How America is Putting Itself Back Together.”

Comp Laude™ 2016 will happen in Burbank, CA Nov 4 & 5. I hope you will share your success stories and celebrate those of others.

No Second Hand Remedy

Exclusive remedy has been under attack, critics say, putting the doctrine and employers at risk as avenues for civil action erode one of the basic elements of workers' compensation - except in California, where another case affirms the sanctity of the concept.

Cynthia Medina worked as a nurse at the Yountville Veterans Home of California for 20 years, between 1990 and 2010.

Medina claimed she encountered second-hand smoke for approximately 30 to 45 minutes per day at the facility because residents were allowed to smoke anywhere on the premises, and she claimed they would "intentionally blow smoke" at her while medications were administered.

Medina was diagnosed with lung cancer in February 2011. She immediately had surgery to remove a portion of her right lung.

Medina filed a claim, pursuant to law, with the state's Victim Compensation and Government Claims Board in March 2013, giving notice she held the state liable for $10 million for causing her cancer.

The board denied her claim as untimely - the Government Code sets a six month deadline for filing suit for damages against a public entity.

Medina then petitioned the superior court for leave to bring her suit despite its untimeliness. The state did not oppose her petition and the trial judge granted leave to sue.

Medina subsequently filed a personal injury complaint. She asserted claims for battery, assault, premises liability, negligence and violation of Labor Code Section 6404.5(d)(12), which addresses employers' obligations regarding workplace smoke exposure.

The state demurred, raising defenses of timeliness and exclusive remedy.

The trial judge sustained the demurrer.

The 1st District Court of Appeals, on Medina's petition for review, said her claim was untimely, but more important to us, said the exclusive remedy of workers' compensation bars the suit.

"There can be little question Medina was performing her job and acting within the course of her employment when administering medications to veterans," the court said. "Nor can there be any doubt that she claims her injury was caused by being exposed to cigarette smoke while she was on the job."

California's courts have treated workplace safety injuries as giving rise to workers' compensation claims, the court said, not private lawsuits, even when those injuries are not directly related to, or a normal part of, the type of work being performed.

To read the decision, click here.

Work Comp 911

An episode of Reno 911 has a department psychologist taking officer mental healthy inventories. Each officer character in the cast is interviewed, and of course the satire is barely acceptable for prime time networks, but satirically accurate to experience.

For instance, Lt. Dangle asks when he will get the results of the evaluation, and the psychologist responds that it's not that kind of evaluation, and that, "It's mainly just there in the file so that if something happens we can just go and look at it and say, 'Yep, we should have seen that coming!'" (2:56)

Doesn't this remind you of the present day obsession with "compliance" and documentation - for no other purpose, it seems, other than to say at some point later down the road, "Yep, we should have seen that coming!" 

Or when Deputy Travis Junior is asked by the psychologist, "Have you ever considered suicide?" Junior says, "No, but I did shoot off a toe once as part of an attempt at workers' comp fraud. The argument was that it wasn't fraud because I was actually missing a toe, but, ah, the department didn't see it that way." (11:23)

Well, that workers' compensation reference is quite obvious. Perhaps it's why the psychologist told Lt. Dangle the for the evaluation ... should have seen that one coming.

And Deputy Trudy Wiegel talks about her addiction to prescription medication, admitting to what we like to call in our world, "doctor shopping". 

Psychologist: "Has a doctor prescribed all these medications for you?" Wiegel: "I have several doctors." Psychologist: "You have several different doctors... Are they aware of one another?" Wiegel: "You mean, do they all exist in reality?" Psychologist: "That wasn't one of my questions, but I'd love to know..." Wiegel: "One of them I met on the Internet, so I haven't actually seen her certificate. I have several kinds of doctors, sometimes they get confused. I just came from the podiatrist and he had me take my top off. You never know what the doctors are going to ask you what to do these days! He took one boob and he threw it around like a pendulum and said he was checking my cholesterol..." (17:40)

This is the kind of professional behavior that guidelines and utilization review were designed to squelch.

After Wiegel told the psychologist that the "podiatrist's" office was a van, he said, "This is not part of the evaluation, just some friendly advise - I'd highly recommend you not go back to that podiatrist." 

Wiegel responds like many who believe that the patient/physician relationship, no matter how toxic, is sacrosanct: "You know what, I don't really want to say, 'mind your own business...'"

-PAUSE-

"...Okay...," the psychologist capitulates.

There's a lot in work comp that is considered sacrosanct. The injured workers' relationships. Exclusive remedy... mind your own business ...

The protection against civil liability found in the exclusive remedy that employers enjoy has expanded through the years to nearly any vendor providing services or goods to the injured worker on behalf of the employer.

First it was the insurance company, because the employer cedes all control on a claim to the carrier via law and contractual relationship. Then it was the doctors, because without medical intervention provided by the employer there could be no treatment to the injured worker. And so on, down the workers' compensation food chain - anywhere a vendor touched an injured worker, or his file, the veil of exclusive remedy seemed to protect aberrant behavior.

Then last week the California 4th District Court of Appeals said maybe, just maybe, exclusive remedy may not protect an employer's vendor.

In King v. CompPartners, the court said that an injured worker could potentially assert a viable tort claim against a utilization reviewer for failing to warn about the potential risks associated with the withdrawal from psychotropic medications.

The court did not address whether the scope of the doctor's duty encompassed an obligation to advise Kirk King about what could happen if he wasn't weaned off his medication – it just said King should have been granted leave to amend his complaint to clarify whether this was the conduct for which he sought to hold CompParters liable.

The whole issue of exclusive remedy protection trickling down to providers is sort of like the dialogue between the psychologist and deputy Clementine Johnson:

Psychologist: "Have you ever considered suicide?"

Johnson: "For myself, no."

P: "I guess I have to ask the logical follow up question, have you ever considered suicide for someone else?"

J: "I've considered recommending it."

P: "Under what circumstances would you recommend suicide?"

J: "Two words, Trudy Wiegel."

P: "Your co-worker, Trudy Wiegel, Deputy Wiegel. You have recommended that she kill herself?"

J: "Do you know why? ... Homicide is illegal." (5:49)

The Federal Independent Worker

All the talk in workers' compensation about alternative systems has been about opt-out.

Now, a couple of professors, and Congress, is thinking about creating an "opt-in" system.

Alan Kreuger, a Princeton University professor and Seth Harris, professor of industrial and labor relations from Cornell University, published a paper, A Proposal for Modernizing Labor for 21st Century Work: The “Independent Worker,” through Washington, D.C.-based Brookings Institution's Hamilton Project Wednesday.

The next day a symposium, "The Future of Work," was hosted by U.S. Secretary of Labor Tom Perez on Thursday in the capitol.

In the workers' compensation industry we argue about efficiencies, costs, and details of coverage.

But, we also know, when we "look at the moon," that the administrative nature of modern workers' compensation systems is an important component of the economy and society, and that it is fundamentally a very good concept.

And we also know that there is growing discontent with the disparity between state systems, the inequity of benefit levels and how systems are administered, with some calling for federal oversight and standards.

Kreuger and Harris posit that while the tort system may be the best solution in some cases, overall, workers' compensation can be more efficient than civil litigation.

This had Harris and Kreuger arguing that the federal government should take the lead in establishing an opt-in workers' compensation system to cover Independent Workers - that new class of worker (some call them Dependent Workers...) of the Shared Economy exemplified by Uber, Lyft, AirBnb, DoorDash, GrubHub and others.

“Congress may have to act if the courts all across this country reach varying and confusing decisions,” Kreuger said during a roundtable discussion following the publication of the report. “It’s quite possible, in some jurisdictions, courts will say, under the same law, that they're employees and others are independent contractors. And that’s not a healthy environment for the economy."

Harris, said during the same discussion, “God forbid judges get involved. Then we’re going to end up maybe even worse off, because it’ll be decisions in particular cases with respect to particular sets of facts about particular issues,” adding it might take an act of Congress to get a comprehensive solution.

“We therefore propose that intermediaries be permitted to opt to provide expansive workers’ compensation insurance policies to the independent workers with which they work without transforming these relationships into employment," the authors conclude.

Intermediaries would receive limited liability and protection from tort suits in exchange for this no-fault insurance coverage. And while states would provide the legal framework within which the policies would operate, they would not operate the systems themselves.

States could also require that the policies provide the same level or a higher level of protection to independent workers than their workers’ compensation systems.

“While opt-in and voluntary systems of insurance can create adverse selection and moral hazard problems," because of the potential that only those businesses whose independent workers are more likely to be injured opting to buy the policies, "experience with these policies could inform design changes that might reduce these risks over time.”

Parenthetically, in our industry, we have referred to those changes as "reform," with its own set of problems and concerns.

Intermediaries would also have the right to opt out of the system and be subject to tort actions if workers’ compensation policies are prohibitively expensive say Kreuger and Harris.

I had assumed with enough political noise that eventually Congress might rattle cages with a sword and threaten some sort of oversight or program to rectify disparate system differences in state programs, but this is an all new twist that could provoke the same sort of change.

Contrasting Fault and Value

A case out of Pennsylvania demonstrates that nobody wants to pay for an "injury", which is why there is "fault" in workers' compensation, even though it is supposed to be a no-fault, administrative system.

But a Texas case shows why workers' compensation is a huge bargain compared to the alternative - a jury verdict.

Jamie Gahring's had a history of back problems before he became a line cook at the Stoudt’s pub in Adamstown, stemming from a 1997 industrial injury while he was working for R & R Builders.

In October 2012, Stoudt’s upped Gahring's hours at work from 40-hours to 55 hours per week.

Gahring told his supervisor that the additional hours he was spending on his feet as a line cook at Stoudt’s Brewing Co. were “making his back worse.”

After a few weeks of this schedule, Gahring said, he started having back pain that grew progressively worse with time.

In November orthopedic surgeon Marc P. Oliveri performed a sacroiliac fusion on Gahring.

Dr. Oliveri released him to return to work in January 2013, but Stoudt’s was unable to accommodate Gahring's medical restrictions so they terminated him, and of course Gahring sought compensation.

Gahring filed a claim petition alleging R & R Builders, the 1997 injury, was responsible for the cost of his surgery and his wage-loss during his recovery.

R & R countered that Gahring's back condition was caused by his employment with the pub, and it filed a petition to join Stoudt's to the case.

At the hearing, Gahring testified that he had suffered from ongoing back pain since at least 2002, but it got worse when he started working longer hours at Stoudt's. The complaint to Gahring's supervisor at Stoudt's was corroborated.

The workers' compensation judge found Gahring's back problems were wholly attributable to his employment with Stoudt's, and dismissed Gahring's claim against R & R.

But, the WCJ determined that Gahring had not given Soudt's adequate notice of the claim in accordance with Section 311 of the Pennsylvania Workers' Compensation Act.

Up the appellate chain the case went.

The Commonwealth Court on Monday ruled that Gahring's statement that the additional hours he was spending on his feet as a line cook at Stoudt’s Brewing Co. were “making his back worse” was good enough to forewarn his employer that the aggravation of his pre-existing back problems was work-related, upholding the trial court's findings against the pub.

The case was Gahring v. WCAB (R & R Builders and Stoudt's Building Co.), No. 534 CD 2015.

In the meantime, a Texas jury schooled Tyson foods about being a non-subscriber by awarding an injured worker about $2.2 million.

Asa Ferrell claimed that he twice suffered injuries to his neck and shoulders when coworkers pulled overhead doors down onto him. Ferrell said he also severely injured his back when Tyson put him to work moving heavy boxes in a confined space that didn't allow him to use proper lifting techniques.

The jury found Tyson's negligence wasn't to blame for either of the door mishaps, but it said Tyson's negligence had led to Ferrell's back injury.

The jury awarded him $498,382 for his physical impairment from this injury plus $774,478 for his pain and suffering.

He also got $127,752 for his mental anguish and emotional distress, $358,600 for his medical expenses, and $505,936 for his lost earning capacity.

I'm sure Tyson no longer thinks workers' compensation lacks value. And the carrier for Stoudt's got a lesson in workers' compensation's no fault architecture.

So, while an employer may not be happy with the "liberal interpretation" of workers' compensation laws, including notice provisions, in favor of the injured worker, it still beats a civil jury verdict nearly any day.

Lessons learned: work comp DOES have value; and, pick your fights carefully...

Getting Along

Show me a business that complains about workers' compensation, and I'll show you a business that's mismanaged with a whole lot more problems than just workers' compensation.

I was at a lunch with some adjusters the other day. One of them had a great comparison story about two mining companies (this was in Nevada) which accounts she worked. 

One was actively involved in their workers' compensation claims, to the point where the CEO took the time to visit injured workers, and they liberally provided their injured everything under the law. They did not dispute much of anything, and if there was a question about compensability, they erred in favor of the employee. They brought injured workers back as soon as possible, even if the usual and customary couldn't be performed, and even if there was no particular position - just get back to the work place. They didn't use work comp to cull their labor force; if an employee wasn’t good for the company then they just let them go. Their experience was very low, and ergo their premiums were very low. 

But the other mining company treated their people like the dirt they were digging, disputed everything (she said EVERYTHING), didn’t communicate with the workers, didn't communicate with the adjuster other than to complain about paying something, and ergo, their experience was sky high and of course they were upset about their workers' compensation program.

I always go back to the experience and great wisdom of Bill Zachry, Albertson/Vons/Safeway's chief risk officer who has managed that business' work comp experience to 40% below industry average, and feels he can trim it another 30% - all without cheating injured workers out of compensation and ensuring that good vendors are paid and utilized. His rules of operation - err on the side of the employee; go beyond the law to provide what is necessary to return an employee to health; deal with all of the issues, not just the work-related/caused issues, and never forget that there is a person at the center of a claim. He holds everyone along the injured worker interaction chain accountable.

It comes down to a very simple algorithm: call everyone to task to follow the rules. Hold them accountable.

Do that and the injured worker will receive the best treatment, and if the best treatment is rendered (including allowance for dealing with psychosocial issues - i.e. treat the "whole" person) outcomes are better, faster and more complete. 

And the great news is, if the employer does this, it will cost the employer less (in premiums) in the long run, AND the employer will experience greater productivity with less lost time for employees which means others don't have to be paid overtime to fill the labor gaps.

There is nothing wrong with the ‘System’. It doesn’t need to be fixed – it needs to heal itself. It is not going to be healed by those who make their living sucking the life blood from both the injured worker and the employer. 

There's no magic here. Carriers don’t pay for benefits. They collect the basis for benefits in the form of dollars via premiums from the employers. Employers collect that money, built into their goods and services, from consumers (except for the recalcitrant cheaters who deservedly should be put behind bars). 

The carriers are gate keepers, and dole the benefits out to everyone else – least of whom is the injured worker. In the process, they keep an amount for themselves to return to investors/shareholders.

Insurers collect capital and deploy it with the intent of earning a return on investment. They even take on a bit of risk – although not exactly with their money (remember, "their" money is actually the employer's, entrusted to the insurance company for reallocation upon the occurrence of certain events).

The answer to the problem isn’t in getting the Department of Insurance, the Workers' Compensation Insurance Rating Bureau, the carriers, the brokers, the providers, and the laws and regulations to do better. 

The answer is to educate the employers that they are the ones in charge. They are paying for a service - mandated, yes, but they are the ones paying.

If you paid for a car repair and it wasn’t fixed, you’d go on a tear and demand it be corrected immediately – OR ELSE! Legal action would pursue vendor inaction. 

Everyone in the chain is responsible – carriers, adjusters, providers, etc. - and should be held accountable.

And everyone already knows that. Carriers, government, defense attorneys, claimant attorneys, medical providers, ancillary vendors: everyone in this industry is well aware of where the money comes from and to whom the obligations are owed. 

When employers press that point to those in the chain of supply (as Zachry does), everyone seems to get along much better. The injured worker and the employer get what they need and are entitled to.

In California we have Section 3762 of the Labor Code. There are two very important mandates in that section: 1) disclose everything that affects the employer’s premium, and 2) provide the employer with sufficient information to design a Return to Work program for the injured worker.

Other states have similar provisions in their laws.

That's all an educated employer needs: did you make that call today and what did you say; did you not make that call; did you authorize a treatment or did you delay/deny it; did you pay benefits on time; did you use stress and duress to extort an injured worker into taking a lesser settlement, etc.?

When the employer knows and understands what is supposed to happen, when its supposed to happen, and why, then accountability follows and everyone gets along just fine.

And the employer can go about expertly managing the rest of its business.

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.

You Don't Belong Here

Richard was an FBI agent.

He's a resident at Mom's memory care facility. I've known him since Mom started there.

Richard is in his mid-to-late 60s. He's over six feet tall, but hunches over on his walker so he looks more like five foot ten. He always wears an FBI hat, has at least 2 hand held radios (and gets very upset if one is missing) and, as one would expect from an FBI agent, always has a serious demeanor.

Vascular dementia is Richard's disease. According to the Alzhiemer's Association website, "Vascular dementia is a decline in thinking skills caused by conditions that block or reduce blood flow to the brain, depriving brain cells of vital oxygen and nutrients."

His wife told me that Richard was fine, a normal operating brain, when he went to bed one night. He woke up the next day severely incapacitated.

Vascular dementia can work like that, sort of like a stroke. One day you're all good, the next morning you have significant cognitive impairment, though more often than not changes are progressive, and yes, age is a factor.

Richard's dementia has attacked, in particular, his speech. He can still speak, but it is in whispered tones and he mumbles. I have to work very hard to understand what he is saying.

He also had an issue with his right arm. At first his wife thought it was a symptom of his vascular dementia, but Richard's physician determined that it was a pinched nerve because Richard was sleeping on it. A pillow between the arm and body at night resolved that, and now Richard's right arm is completely functional again.

After his right arm regained function, his wife asked Richard to write his name as a test of the progression of his disease. He didn't just sign his name, he composed a note:

"I love this place. But I don't belong here." [signature - which his wife said was true to his normal sign].

This brought tears to Richard's wife as she showed me the note. I welled up too. There is no other place for Richard to go...

Many in the California workers' compensation system, be they claimants or vendors, might love the space, but feel they don't belong and the courts are saying, essentially, love it or leave it.

Yesterday California's 1st District Court of Appeal upheld the constitutionality of independent medical review, concluding what has always been the overriding theme in workers' compensation legislative changes throughout history: the legislature can do whatever it wants.

"We conclude that [Frances Stevens'] state constitutional challenges fail because the Legislature has plenary powers over the workers’ compensation system under article XIV, section 4 of the state Constitution (Section 4)," the court said. "And we conclude that her federal due process challenge fails because California’s scheme for evaluating workers’ treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard."

U.S. District Judge Jesus G. Bernal said in a Sept. 21 ruling in the RICO case brought by first responders against Corvel and York Risk Service that, "prior to final adjudication, workers' compensation claimants do not have a sufficient property interest in their benefits to establish the injury to property required for a RICO cause of action."

Workers' compensation is seen as a right by most of the population. Get hurt at work, or at least allege an injury, and it is the right of the claimant, and those riding his or her coattails, to benefits.

The court decisions are making it clear though that there isn't any right to workers' compensation benefits, and that what the legislature giveth, the legislature can taketh away.

Yesterday I said that workers' compensation is not about justice; that the system is simply a wealth re-appropriation system with dispute resolution built in to put finality to transactions that have some level of disagreement.

I think these recent court decisions firmly support that statement. The courts have warned that workers' compensation isn't worth fighting about; disputes don't belong in the courts because workers' compensation isn't about justice.

Work comp can't be about justice is because it is not a right bestowed by a constitutional grant. The only "right" is that the legislature has constitutional authority to do what it wants regarding work comp.

Sure, there may be some disagreement about exactly how much should be paid at a given time, or whether or not an "injury" falls within the ambit of work comp, or whether a particular procedure is authorized or covered ... but if the legislature says how to do something, or who gets what specifically, then that's the way it is and there's not a whole lot anyone can do about it other than get the legislature to change the rules.

There were times when Labor ruled the California legislature, and the work comp system expanded. Now Business rules the California legislature and work comp is contracting.

The fight isn't in the courts. The courts want nothing to do with work comp because there are no rights involved. One has a right to life, liberty and pursuit of happiness, sure, but those aren't guaranteed. It's up to individuals to sew their own guarantee though.

Which is why I concluded yesterday, "injured workers should get into and out of workers' compensation as rapidly as possible. Whatever it takes to exit the system with some modicum of health for the future, and whatever indemnity the law provides, is the goal."

The legislature has spoken, the courts have affirmed: Don't fall in love with the place. You don't belong here. 

And, unfortunately, there is no other place to go.

Ain't No Justice

I'm probably going to get slammed by injured workers for this post, but that's okay because there's a truth that needs to be said.

There's a reality to workers' compensation that most injured workers who get wrapped up into the system, particularly in litigation, don't appreciate, much less understand:

Workers' compensation has nothing to do with justice.

Nothing.

If you are looking to correct wrongs done to you, or another, via the workers' compensation dispute resolution system, regardless of state or jurisdiction, you're wasting time, money, and your own health.

Here's the bottom line: Workers' compensation is simply a wealth reallocation system. That's all it is.

It was not, and never was intended to, right a wrong, bring people to justice, or provide any sort of revenge.

Justice has no place in workers’ comp. Work comp is only moves money from one pocket to another, with some deductions along the way to pay for that service.

Money comes in from a business in the form of premium. A percent is skimmed right off the top by the procuring broker or agent. Then some is allocated for investment by the insurance or holding company. Some is set aside to pay the cost of claims and the office building and staff. Other amounts are paid to various vendors. At the end of the day there may be some left to return to investors, or to pay employer dividends.

The only reason there’s a dispute resolution process in work comp is because whenever money is involved someone wants more than they are entitled to or what others think they should get, and there has to be a process to manage the dispute and put finality into a transaction.

There’s nothing “fair” about workers’ compensation. Fairness is a legislative matter. 

Legislatures determine what is "fair," and if legislatures go too far out of the "fairness" balance, then a court will intervene. There are state supreme courts reviewing the fairness equation right now, but the standard for review will be the standard espoused by the US Supreme Court in 1917 when America's highest court held compulsory work comp was constitutional.

So long as comp provided a "reasonably just substitute" to a tort claim, the US Supreme Court ruled in New York Central Railroad Co. v. White (1917), then it could be the sole means a worker had for recovering against an employer.

There's a lot of factors going into the determination of "reasonably just substitute" - not just how much money a claimant gets, or the timeliness or thoroughness of medical treatment, etc.

Certainly there are court challenges pending in various states arguing that work comp is no longer fair, that the Grand Bargain has been compromised to such an extent that it doesn't meet the Supreme Court's standard of a "reasonably just substitute," but that's not in the NOW, i.e. the present reality. Any future supreme court ruling about workers' compensation constitutionality won't help the claimant TODAY.

You or I may not make it to tomorrow. We need to deal with today...

As in any wealth reallocation system there are winners and losers. And there is plenty of friction in the system that gets in the way of an injured worker receiving benefits - there's no argument about that. 

Injured workers all too often get the short end of the stick. We have chronicled that many times in this blog and in the news.

But, there was a time not too long ago that the business sector felt they were getting the short end of the stick too, that they weren't being treated fairly and they couldn't get justice either.

Here's the real deal: Employers and their workers are in the same boat - without work to do, there is no employer, nor workers who may get injured. Likewise, without workers, there's no way business can get done.

Each needs the other. Sometimes that relationship is more balanced than at other times.

It’s not intended to be “fair.” It is simply reallocation of wealth - plain and simple. 

Everyone in the workers' compensation industry makes money off the misery of injured workers and their families.

We all profit off the injured worker in some context or other. Some, I’ll certainly agree, push the boundaries of ethics, morality, and legality.

To be clear, I'm not against an injured worker having legal representation. Most systems are complex. The concepts and terms are confusing, unfamiliar, and there are many traps for the unwary.

But a lawyer on your case is not about seeking justice. For the claimant, a lawyer's job is to maximize case value because that's how they get paid. The more the case is worth in terms of dollars, the better the pay day. For the claims payer the lawyer's job is about minimizing the expense.

And there's nothing wrong with that because, as I said, workers' compensation is about wealth reallocation and the injured worker's attorney does the job by reallocating as much as possible within the rules of the game to the injured worker. The defense lawyer checks the balance.

Sometimes wrongs occur in cases, and the lawyer will seek redress for those wrongs - again within the rules of the game. And those rules generally provide for some remuneration to compensate for those wrongs (we call such remuneration, "penalties"). The motive, again, is case value maximization - not to teach a lesson (though sometimes a lesson may in fact be taught).

An injured worker seeking justice through the workers' compensation dispute resolution system jeopardizes health, sanity, and life itself wasting years that could be spent living while trying to buck a system designed as an administrative process.

The bottom line - injured workers should get into and out of workers' compensation as rapidly as possible. Whatever it takes to exit the system with some modicum of health for the future, and whatever indemnity the law provides, is the goal.

Living the claim takes years off a life for naught. Workers' compensation litigation is a terrible place to live.

Would Shakespeare Bargain?

There is an essential element to the Grand Bargain: one can't have it both ways.

We've gone over that theme before when I point out that an employer wished it had workers' compensation coverage rather than be exposed to the vagaries and unlimited damages in civil litigation.

And visa-versa, I've pointed out workers who would have preferred the skimpy, though certain, benefits of work comp rather than hoping to hit it with a big jury award 5 to 10 years post incident.

The reverse can also be said - employers often complain about the expense of workers' compensation, though generally those who do haven't been exposed to the civil system; and injured workers complain about the skimpy benefits, unreasonable denials and complex rules, though they haven't had to wait for some fact finder to estimate their own fault in an accident.

We also forget that the Grand Bargain is between two stakeholders, and two only: employer and employee. The third stakeholder, the government, is there to set and enforce the rules.

Everyone else is a vendor - pure and simple.

But in work comp we confuse stakeholders and vendors, sometimes because the law blends them. For instance, in Florida employers are more often than not referred as one in the same as their insurance carrier (see any Florida 1st DCA opinion).

The usual work comp insurance policy does mandate a substitution of the employer by the insurance company. The carrier assumes all of the rights, privileges, responsibilities, and duties that the law otherwise imposes on the employer.

Except the insurance company does not have the same motivations as the employer - and therein lies a problem.

Oklahoma attorney and provocateur, Bob Burke, yesterday sent an email to his list of subscribers describing just such a situation, and this leaves both the employer and the injured worker in limbo.

"Michael Hill at Burton Law has filed a negligence lawsuit in Murray County for a worker who was injured when a picnic table broke during an authorized break. The injury occurred 'outside the employer's facility,' which makes it not compensable under 85A O.S. SEC. 2(13).

"As expected, the premises liability carrier has filed a Motion to Dismiss, asserting that this is workers' compensation and there is exclusive remedy.

"We are arguing that the Employer cannot have it both ways. If it is workers' comp, there is exclusive remedy. If the comp law makes it not compensable, then common law remedies must apply and there is no exclusive remedy afforded the Employer."

And of course this makes complete sense. But those with the money, the insurance companies that are going to fight this battle, owe no allegiance to the injured worker. And the employer has delegated its interests to the carriers (and of course will complain later about its' premiums).

Has the employer also delegated its honor?

In Shakespeare's Henry IV, during the battle of Shrewsbury, Falstaff, after Prince Henry exits the stage, goes on a diatribe in response to Prince Henry's remark about owing "God a death" - a reference to honor.

Says Falstaff:

'Tis not due yet; I would be loath to pay him before
his day. What need I be so forward with him that
calls not on me? Well, 'tis no matter; honour pricks
me on. Yea, but how if honour prick me off when I
come on? how then? Can honour set to a leg? no: or
an arm? no: or take away the grief of a wound? no.
Honour hath no skill in surgery, then? no. What is
honour? a word. What is in that word honour? what
is that honour? air. A trim reckoning! Who hath it?
he that died o' Wednesday. Doth he feel it? no.
Doth he hear it? no. 'Tis insensible, then. Yea,
to the dead. But will it not live with the living?
no. Why? detraction will not suffer it. Therefore
I'll none of it. Honour is a mere scutcheon: and so
ends my catechism.

Exit

What Falstaff is saying is that honor is useless when one is wounded: it cannot set an arm or a leg, or take away the “grief of a wound,” and it has “no skill in surgery.” In fact, being merely a word, honor is nothing but thin air, and that the only people who have honor are the dead, but it does them no good, for they cannot feel or hear it.

So Falstaff concludes that honor is worthless, “a mere scutcheon,” and that he wants nothing to do with it.

Which is Shakespeare's genius: In a play obsessed with the idea of honor, Falstaff calls into question the entire set of moral values on which most of the characters base their lives.

And in workers' compensation, we too have to question the entire set of moral values that underlie the obligations that an employer defers to its insurance companies (both work comp and civil). Other than what is mandated by law, the claims administrator has no allegiance to the injured worker, and unless it's a large account, has no real interest in making the employer happy either. Premium in, business done - next job is to minimize the outflow...

It's just business. But it is business that challenges the honor of the Grand Bargain.

The claims payers can help, and many do a good job, but it is the actual employer that restores the honor to meet the original Grand Bargain obligation.

Because the Grand Bargain, for all its permutations, machinations, extensions and challenges, exists only between Business and Labor.

Regardless of allegiance or business, fortunately there are many in this industry who do value honor, and the obligations to both employer and employee.

Recognize those in the industry that uphold honor - attend the WorkCompCentral Comp Laude Awards and Gala on December 5 in Burbank, CA. Call for special pricing, 805-484-0333.

Vetoes and The Bargain

Bowzer knows.

The Grand Bargain - the courts have told us many times that workers' compensation is a legislative and regulatory matter, and that they will abide by what the legislature desires.

But the Grand Bargain is also politics exemplar of the circuitous manner in which a part of the bargain is surreptitiously and detrimentally altered against one party or the other.

In the case of California's AB 1542, (Mathis and Cooley), politics has stuck it to injured workers with brain injuries.

AB 1542 was a bill that passed through the legislative branch with near unanimity (note it was dually sponsored by a Republican AND a Democrat - how often do you see such bilateral agreement?) to Governor Brown's desk. The bill was fostered in response to the Division of Workers' Compensation's proposed (and now permanent) elimination of the specialty of neuropsychology as a choice in the Qualified Medical Examiner process.

The official regulatory reason to get rid of neuropsychology as a QME panel choice was the category was a mistake 20 years ago and should never have been an option, and was missed when the QME process was visited several years ago. Now that the QME selection process has being automated, effective October 1, which required regulatory action to implement, the administration decided it's a good opportunity to clean this up.

The Department of Industrial Relations says its rules provide that QMEs can only be specialties recognized by a state medical board, and since neuropsychology isn't recognized by a California medical board, namely the California Psychology Board, it doesn't meet DIR criteria.

Brown's veto message follows the Administration's party line.

"This bill undermines the Division of Workers' Compensation's authority to apply consistent standards when it determines eligible medical specialties for the Qualified Medical Evaluator panel," Brown's veto message says. "The Division is not in the position to determine the validity of a physician's qualifications. That power resides with the physician's licensing board. If the Board of Psychology believes there is value in recognizing neuropsychology as a subspecialty, it should do so."

Of course, I call Bull on this, as I have in the past.

The CPB defers to the national board for specialization, and neuropsychology is so recognized, and in fact was the first specialty in psychology to achieve that status.

In fact, neuropsychology is endorsed by the American Academy of Neurology as not only a viable specialty for the evaluation of cognition in brain injury cases, but one of the only specialties for such.

Not only is the specialty nationally recognized, and that recognition is, by delegation, recognized by a California board (and probably more importantly, the medical profession in general), but the Division can call it's own rules, and make an exception to it's "standard." That exception has resided for 20 years.

In addition, Brown says the Division apparently doesn't have the expertise "to determine the validity of a physician's qualifications." Bullshit. Why is there an Executive Medical Director position within the DWC? And if the DWC has no expertise, then how can the Division routinely test, qualify, and scrutinize (and in fact has disciplinary authority) medical professionals that are in the QME system?

So what's the real reason? Why now? Why neuropsychology? Why the urgency? And what, if any, is the detrimental impact to the DWC?

In other words, why does DIR/DWC really care?

Brad Wixen, an attorney who specializes in the cross-examination of medical professionals, offered this explanation:

"They (the Administration) are afraid that applicants attorneys will use neuropsyche as a loophole to avoid the restrictions against psychiatric injuries that are currently written into the law. Surely some attorneys will try to make the case for neurocognitive on too many cases. But that is what Judges and laws are for."

That may be. But it is too simplistic. If applicant attorneys were routinely abusing loopholes and circumventing the psyche prohibitions by selecting neuropsychology for QME work (which the defense could oppose, by the way), then this would have surfaced as a problem long ago.

Nope - politics is much more sinister than something with that easy an explanation. There's another reason, something that is much deeper, much more politically connected, involving much more money and power.

Maybe I'm "out there." Perhaps my cynicism is way too obtuse, or my imagination too far afield from reality...

There are three football teams in California. The NFL wants a fourth to satisfy the demand. Traumatic brain injury leading to dementia and Alzheimers has been scientifically and medically correlated and those diseases are very, very expensive over the lifetime of the sufferer...

Los Angeles will finally get its team...

I got a laugh from the audience at a recent panel when I observed, "workers' compensation is a political construct that obfuscates medical science in order to achieve a financial goal."

It's not a laughing matter.

This is one current example of how the Grand Bargain gets altered.

No More Silos

There's one glaring and obvious conclusion to be reached from the Workers' Compensation Research Institute's latest study finding a great likelihood of case shifting out of group health onto workers' compensation - the silos that have been created throughout the years of various health care systems need to be consolidated into a single system regardless of fault, causation, or jurisdiction.

The only qualifying measure should be employment.

Some may call this universal care, 24 hour care, socialism, whatever - it's the only thing that makes sense.

The reason is that financial incentives definitely influence provider behavior. We have known that for years. It is not a mystery - in fact it completely makes sense and is in line with what behaviorists would expect.

Yes, there are legal issues and practical considerations - these have all been argued and debated for years.

None of those reasons or objections can't be engineered out or at least ameliorated.

The primary reasons why any shifting would occur are two-fold and the first and most important consideration is that it is the primary treating physician who first sees the patient who is going to ask the probing, leading questions, that will determine how an injury or illness "occurred" - i.e. causation.

"The amount of uncertainty about the cause of the medical condition provides the opportunity for the financial incentives to influence the decision," the study summary states.

The second, and perhaps no less important consideration, is that group health plans are moving more towards capitated reimbursement systems, following the Affordable Care Act model, whereas workers' compensation is, by and large, still fee for service. The WCRI theory is that providers would rather be paid by service because they can make more money.

So the obvious answer would be to convert workers' compensation to capitated plans - but doing so runs afoul of workers' compensation's primary medical promise: treatment for life; ergo, a capitated plan in workers' compensation would alienate more providers than even low fee schedules.

Thus, the only way to combat any cost shifting is to align the medical incentives, and the only way to reasonably accomplish that is to have one medical system - not the panoply of systems that now create a dizzying array of complexity certain only to increase costs and diminish outcomes.

There have been attempts in the past on a state basis to implement some type of "24 hour" coverage or other universal plans and they have mostly been defeated or marginalized by all of the conflicting interests.

Yet, if medical care, including workers' compensation, is to escape the current dysfunction of competing financial incentives, the only avenue is to eliminate the competing incentives.

As long as there are silos of opportunity, the best silo will get the business, and the burden. And it's all the same - the cost shakes down to the consumer at some level anyhow.

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."

Report First Aid

Three thousand five hundred miles away, at the Workers' Compensation Institute's annual workers' compensation mega-fest in Orlando, Florida, and I find out that Californians still don't have agreement on a) what a first aid injury is, and b) whether it has to be reported.

Employers don't like to report injuries. Well, most employers. Actually, employers don't like injuries is a more accurate statement.

There are some employers, of course, that have no regard for their employees, and thus don't want to report any injuries because they believe, rightly or wrongly, that doing so will affect their insurance premium. These employers seem to generally have poor management systems in the first place, if at all (recall the contractors in the news recently, going to jail for the death of a worker - that employer displayed a callous disregard for employees, and for any rules frankly, which is why the judge "threw the book" at them...).

But an issue has arisen in California over reporting of "first aid" injuries. The Workers' Compensation Insurance Rating Bureau wants carriers to report everything to them, including first aid injuries. State Compensation Insurance Fund had not been doing so, but capitulated to WCIRB desires in January of this year, and has issued a mandate to its insured employers requiring them to report those injuries.

This has raised a bit of a fire storm, because there isn't any law requiring the reporting of first aid injuries, and in fact the law implies differently.

California Code of Regulations Section 14001(a), "Reporting of Occupational Injury or Illness," and Labor Code Section 6409.1 both require every employer to file with the Department of Industrial Relations a complete report of every occupational injury or illness that results in lost time or that "requires medical treatment beyond first aid." The section defines "lost time" as absence from work for a full day or shift after the date of injury.

Labor Code Section 5401(a) defines first aid as a one-time treatment and follow-up visit for the purpose of observation of "minor scratches, cuts, burns, splinters or other minor industrial injury, which do not ordinarily require medical care."

But the WCIRB last year formed a working group to study the issue, because it was concerned that some employers were getting away with non-reporting, and because injured workers whose conditions deteriorate could experience delays or denials.

A summary of the small medical-only claims working group meeting in February 2014 posted to the WCIRB's website declares, "Neither the California Labor Code nor the standard policy contract provide for a first aid exception to the insured employer's responsibility to report a workplace injury or the insurer's liability to pay the cost of a workplace injury."

The summary also said the insurance commissioner's regulations in the Uniform Statistical Reporting Plan and the Experience Rating Plan do not have an exception for reporting first aid injuries.

All of this, of course, leads me to a story...  

The best job I ever had was while I was in college at a local mom and pops hardware store in Lemon Grove, CA, called, of course, Lemon Grove Hardware.

It literally WAS a mom and pops hardware store: mom was Dortha and dad was Olin. I worked there starting in my sophomore year at San Diego Great University, through each summer, until graduation. I learned about hardware of course, I learned about customer service, I learned about retail marketing, I learned about retail operations...

And I learned about workers' compensation.

I had "graduated" to fixing screen doors and was trimming screen material after an installation when the box knife slipped and I sliced my finger. I frankly didn't think much of it. Blood was all over the place but I quickly wrapped it with a shop towel and began finishing my work.

Olin was frantically concerned. I argued with him for probably 5 minutes about whether I needed stitches or that I was even injured. Olin insisted that I go to the doctor, and repeated that I need not worry about the medical expense because it was covered by something called "workers' compensation."

Workers' compensation - what a concept! I had no idea, probably like the vast majority of workers, regardless of whether they are fresh into the work force or experienced laborers...

So off I went to urgent care, took a couple stitches in the finger, and returned to the best job I ever had.

I did not return to the doctor afterwards. I removed the stitches myself (having probably way too much experience doing so with prior non-industrial injuries).

Frankly, Olin could have considered that "injury" something that would need just "first aid." I wouldn't have known any better and I personally didn't think that sewing up the wound was necessary. And regardless, my "medical attention" required only one visit to a doctor for a minor procedure.

But the point is that Olin wasn't thinking about his workers' compensation premium. He wasn't thinking the potential impact on his experience. He wasn't thinking about paperwork.

He was thinking of ME, his employee.

So what's the big deal about reporting minor first aid only injuries?

The WCIRB's particular interest isn't the employee, but acquiring data on all injuries for a more complete statistical picture. They have a job to do.

For the rest of us: It's not about the paperwork. It's not about whether the premium is going to increase. And it's not about whether the state or any agency or organization has statistics.

It's really about whether or not an injured worker is going to receive, or be denied, treatment and other benefits later on down the road.

If not reporting a first aid injury results in a delay or denial later down the road, then that's reason enough to report all injuries, regardless of severity (or lack of).

As risk management consultant and CompMetrics owner Bill Cobb noted in the WorkCompCentral story this morning, the effect of a small claim that only requires stitches would work out to a "rounding error" on an employers' X-mod.

First aid is an exception to reporting, and as we know, make exceptions and exceptions get abused.

Not all employers are like Olin.

All injuries, and claims of injury, should be reported, even if originally minor.