Gomer Pyle, the television character played by Jim Nabors on the Andy Griffith Show in the early 1960s catch phrase was, "surprise, surprise, surprise!"
The National Council on Compensation Insurance (NCCI) says just that, as its most recent report on the Professional Employer Organization (PEO) industry refutes the common perception that PEOs are a workers' compensation problem.
In fact, the NCCI report suggests that non-PEO employers might do better if they managed risks as well as PEOs do.
“The conventional but untested wisdom has been that PEOs are a problem,” NCCI Chief Economist Harry Shuford tells WorkCompCentral. “Our analysis suggests that this is not supported by the data.”
NCCI reviewed claim development for PEOs versus non-PEOs in 2004 to 2006 policy years, and found that, in the voluntary large-deductible coverage area, the reported number of claims for a group of policies issued in a given year increased by 2% for PEOs in a five-year time span, compared to 4% for non-PEOs.
The ultimate cost of claims for voluntary large-deductible accounts increased 27.8% for PEOs, compared to 41% for non-PEOs.
The purpose of the NCCI study was to counter arguments that it was misleading to compare PEOs with non-PEOs based on results reported early in the claims process because of complications associated with PEOs, such as their physical separation between the worksite where the worker was injured and the location of the PEO staff responsible for reporting claims.
In terms of statistical relevancy, Shuford said, “This means that the more developed estimates of claims experience for PEOs is even better relative to non-PEOs than indicated by the favorable initial results for PEOs.”
With regard to the collapse of PEO-focused carriers, Park Avenue Property & Casualty Insurance Co., Pegasus Insurance Co. and Southern Eagle Insurance Co., NCCI finds that the recession had more to do with these carrier's problems than writing PEO business.
“There was no discernible pattern that suggested that the key driver was dependence on PEOs for premium,” Shuford said.
Some challenge the reports findings because the PEO industry is dominated by several very large businesses - in fact the NCCI report acknowledges that 15 large PEOs comprise two-thirds of the market.
And the critics say that NCCI ignores one inalienable fact - that all three carriers were focused on PEOs.
"What are the facts of the three insolvencies?" Michael Schroeder, president of Ohio-based insurance manager Roundstone Management told WorkCompCentral. "That is far more important than comparisons of workers' compensation delivery strategies. I am pretty confident a PEO with unchecked access to a workers’ comp insurer can very quickly undermine the insurer’s solvency. I’ve seen it before."
Schroeder may be right - the glaring commonality between the three defunct insurance companies is the focused risk assumption on the PEO industry.
But when California had minimum rates and very specialized, highly focused risk based specialty carriers, the small insurance market thrived - these small carriers completely understood the market that had been underwriting and had exceptional claims management programs that kept reserve ratios adequate.
The NCCI study is not the end-all, be-all to the PEO controversy. But it is a start and does, in my opinion, reflect that there is a legitimate place in the employment market for PEO supplied workers and the coverage of this employment risk by the carrier community.
Again, it all comes down to understanding your market, taking the necessary precautions to minimize risk, and properly managing the risk when the inevitable claim occurs.
Tuesday, June 4, 2013
Monday, June 3, 2013
NE Case Devalues Human Life
When workers' compensation acts to shield an employer from egregious conduct, then the premise of the system needs to be reconsidered.
In Nebraska, a worker was asphyxiated in a grain bin, 58 feet tall and was 21.5 feet across, after his supervisor asked him to go into a grain bin and shovel grain into the center of the bin's conical base to facilitate the removal of the grain.
The employer was slapped on the hands by OSHA for several safety violations including: no lifeline or any other equipment that could prevent the worker from being buried; keeping an auger running in the bin while the worker was within it; failure to maintain communication with the worker while he was within the bin (the supervisor walked away and didn't return until the worker was already dead).
For this, the Nebraska appellate court said ... "too bad worker's family, but Nebraska state law would rather reward employers for bad behavior than compensate families adequately for the loss of a bread-winner or penalize employers for knowing violation of simple, effective, safety parameters."
[The court didn't really say that - I put it in quotes for sarcasm.]
The court DID say that, "knowingly ordering employees to perform an extremely dangerous job, willfully failing to furnish a safe place to work, willfully violating a safety statute, or withholding information about worksite hazards, still falls short of the kind of actual intention to injure that robs the injury of accidental character."
The court went on to uphold the constitutional validity of the act, explaining that the Legislature had a rational basis for electing to differentiate between intentional tort victims who are employees and intentional tort victims who are not employees.
This is not the bargain that was negotiated 100 years ago.
I understand that "the law" is "the law" and that workers' compensation is an exclusive remedy. I get that.
At the same time there also must be an appropriate remedy when an employer willfully (as noted by the court) ignores basic safety practices and knowingly endangers its employees beyond an OSHA wrist slap.
Last week I wrote a column on personal responsibility.
Chuck Holliday wrote in response:
"If you want to talk about personal responsibility, let's talk about corporations taking personal responsibility for their actions. You seem to forget that in many states, the WC system is a 'bargain,' if you can call it that, in which the employee has given up the right to sue his or her employer in tort in return for a no-fault system. Many employees would gladly give up the pittance they receive in no-fault benefits for the ability to sue their employer for its negligence in creating and maintaining an unsafe work environment. [In this Nebraska case, I might add, knowingly and willfully - this was intentional behavior as noted by the court.]
"I think we could turn back the clock on the 'wussification' of America a lot if we required companies to take personal responsibility for their actions and bear the full cost for the injuries they cause. Let's get rid of arbitrary caps on damages, forced arbitration, and administrative appeals of WC decisions. Anyone familiar with WC has to agree that workers continue to get shafted more under each new edition of the AMA Guides. Every year the number of injuries that qualify as WC injuries decreases, which it sounds like the new edition of the DSM will do, too.
"The real 'wussification' of this country is the trend to protect 'persons' whose names end in 'inc' or 'LLC' from taking responsibility for their actions."
In particular with regard to this Nebraska appellate court opinion, I couldn't agree more with Mr. Holliday.
The workers' compensation system fails employees, and their families, when it (and weak OSHA penalties) allows an employer to get off cheap in the death of another human being.
Every insurance category denies coverage to the policy holder where the damage is caused intentionally by the beneficiary.
That this case is even considered "accidental" is not just a miscarriage of justice, but shows callous disregard for the value of human life.
To read the court's opinion in Estate of Teague v. Crossroads Cooperative Association, No. S-12-702, 05/31/2013, click here.
In Nebraska, a worker was asphyxiated in a grain bin, 58 feet tall and was 21.5 feet across, after his supervisor asked him to go into a grain bin and shovel grain into the center of the bin's conical base to facilitate the removal of the grain.
The employer was slapped on the hands by OSHA for several safety violations including: no lifeline or any other equipment that could prevent the worker from being buried; keeping an auger running in the bin while the worker was within it; failure to maintain communication with the worker while he was within the bin (the supervisor walked away and didn't return until the worker was already dead).
For this, the Nebraska appellate court said ... "too bad worker's family, but Nebraska state law would rather reward employers for bad behavior than compensate families adequately for the loss of a bread-winner or penalize employers for knowing violation of simple, effective, safety parameters."
[The court didn't really say that - I put it in quotes for sarcasm.]
The court DID say that, "knowingly ordering employees to perform an extremely dangerous job, willfully failing to furnish a safe place to work, willfully violating a safety statute, or withholding information about worksite hazards, still falls short of the kind of actual intention to injure that robs the injury of accidental character."
The court went on to uphold the constitutional validity of the act, explaining that the Legislature had a rational basis for electing to differentiate between intentional tort victims who are employees and intentional tort victims who are not employees.
This is not the bargain that was negotiated 100 years ago.
I understand that "the law" is "the law" and that workers' compensation is an exclusive remedy. I get that.
At the same time there also must be an appropriate remedy when an employer willfully (as noted by the court) ignores basic safety practices and knowingly endangers its employees beyond an OSHA wrist slap.
Last week I wrote a column on personal responsibility.
Chuck Holliday wrote in response:
"If you want to talk about personal responsibility, let's talk about corporations taking personal responsibility for their actions. You seem to forget that in many states, the WC system is a 'bargain,' if you can call it that, in which the employee has given up the right to sue his or her employer in tort in return for a no-fault system. Many employees would gladly give up the pittance they receive in no-fault benefits for the ability to sue their employer for its negligence in creating and maintaining an unsafe work environment. [In this Nebraska case, I might add, knowingly and willfully - this was intentional behavior as noted by the court.]
"I think we could turn back the clock on the 'wussification' of America a lot if we required companies to take personal responsibility for their actions and bear the full cost for the injuries they cause. Let's get rid of arbitrary caps on damages, forced arbitration, and administrative appeals of WC decisions. Anyone familiar with WC has to agree that workers continue to get shafted more under each new edition of the AMA Guides. Every year the number of injuries that qualify as WC injuries decreases, which it sounds like the new edition of the DSM will do, too.
"The real 'wussification' of this country is the trend to protect 'persons' whose names end in 'inc' or 'LLC' from taking responsibility for their actions."
In particular with regard to this Nebraska appellate court opinion, I couldn't agree more with Mr. Holliday.
The workers' compensation system fails employees, and their families, when it (and weak OSHA penalties) allows an employer to get off cheap in the death of another human being.
Every insurance category denies coverage to the policy holder where the damage is caused intentionally by the beneficiary.
That this case is even considered "accidental" is not just a miscarriage of justice, but shows callous disregard for the value of human life.
To read the court's opinion in Estate of Teague v. Crossroads Cooperative Association, No. S-12-702, 05/31/2013, click here.
Friday, May 31, 2013
TX Innovates With Specialty Networks
Some may dispute this, but Texas continues to be a leading innovator in workers' compensation concepts, and not just because it is the home of non-subscription.
Prior to September 1, 2005, before the Texas Workers' Compensation Commission (TWCC) became the Division of Workers' Compensation (DWC) and the agencies duties were reorganized under the Department of Insurance, Texas was fodder for derision and criticism over the management of its workers' compensation system.
Since reformation and reorganization in 2005, however, Texas has led the way in establishing one of the most robust workers' compensation insurance markets in the country, with profitable underwriting for carriers, and affordable coverage for employers.
Employers opting into the state's system, rather than providing alternative benefit plans or going completely bare, has been increasing and carrier participation in the system has also been increasing.
The process has not been without pain, for sure. Injured workers' benefits are not the most generous, and medical coverage issues in the vast rural areas of Texas remain. Many physician and other medial vendors still feel that the Texas system lacks fairness in reimbursement for services, but participation rates remain steady.
One of the innovations that Texas brought to the workers' compensation market was medical management networks, and idea that has spread across the country with variations, but with the essential features mirroring those pioneered in Texas.
Texas is innovating again with new laws that would further the ability to create provider networks that don't easily fit within the certified network system created in Texas.
The certified network system in Texas requires application, interview, review, certification, maintenance and all sorts of other mandates to ensure that the network is operating properly and providing services without discrimination, and to ensure that physicians are properly paid.
With certification, however, comes cost and for small providers of specialty services or equipment, joining a network was prohibitive.
Texas is on the verge, however, of creating a method for these small specialty providers to become sub-networks, and thus create the ability to join larger networks that are certified.
This should in theory increase business for the small providers, decrease costs for networks, and offer more choice to payers.
Texas state Sen. Leticia Van de Putte, D-San Antonio, had little trouble moving Senate Bill 1322 through the state Legislature during the legislative session that ended on Monday. The bill passed the Senate with a 30-0 vote and won House approval with a 145-3 vote. The bill is now on Gov. Rick Perry's desk for his veto or final approval.
SB 1322 will allow home health care services and durable medical equipment providers to voluntarily create informal "specialty" networks. Before this bill, the legal requirements made it too costly for home health care and DME providers to form "certified networks."
The benefit to these specialty providers is consolidation of resources and operations - in particular billing and collection functions.
In addition the bill will allow home health care and DME networks to contract with certified networks and payers directly, which should increase business volume, in exchange for the discounted rates that a network will command.
Smaller vendors, who might be overlooked by some of the large health care networks, will now have opportunities for business and informal specialty networks can also provide services to underserved, rural areas.
Nothing is perfect, and nothing is set in stone - I'm sure there are downsides to this development. It is an untested concept and the idea still needs to get to the regulatory stage, assuming Gov. Perry signs the bill.
Nevertheless, they do things different in Texas, and managing workers' compensation is one of them. We'll see in a few years whether this idea pans out as expected.
Prior to September 1, 2005, before the Texas Workers' Compensation Commission (TWCC) became the Division of Workers' Compensation (DWC) and the agencies duties were reorganized under the Department of Insurance, Texas was fodder for derision and criticism over the management of its workers' compensation system.
Since reformation and reorganization in 2005, however, Texas has led the way in establishing one of the most robust workers' compensation insurance markets in the country, with profitable underwriting for carriers, and affordable coverage for employers.
Employers opting into the state's system, rather than providing alternative benefit plans or going completely bare, has been increasing and carrier participation in the system has also been increasing.
The process has not been without pain, for sure. Injured workers' benefits are not the most generous, and medical coverage issues in the vast rural areas of Texas remain. Many physician and other medial vendors still feel that the Texas system lacks fairness in reimbursement for services, but participation rates remain steady.
One of the innovations that Texas brought to the workers' compensation market was medical management networks, and idea that has spread across the country with variations, but with the essential features mirroring those pioneered in Texas.
Texas is innovating again with new laws that would further the ability to create provider networks that don't easily fit within the certified network system created in Texas.
The certified network system in Texas requires application, interview, review, certification, maintenance and all sorts of other mandates to ensure that the network is operating properly and providing services without discrimination, and to ensure that physicians are properly paid.
With certification, however, comes cost and for small providers of specialty services or equipment, joining a network was prohibitive.
Texas is on the verge, however, of creating a method for these small specialty providers to become sub-networks, and thus create the ability to join larger networks that are certified.
This should in theory increase business for the small providers, decrease costs for networks, and offer more choice to payers.
Texas state Sen. Leticia Van de Putte, D-San Antonio, had little trouble moving Senate Bill 1322 through the state Legislature during the legislative session that ended on Monday. The bill passed the Senate with a 30-0 vote and won House approval with a 145-3 vote. The bill is now on Gov. Rick Perry's desk for his veto or final approval.
SB 1322 will allow home health care services and durable medical equipment providers to voluntarily create informal "specialty" networks. Before this bill, the legal requirements made it too costly for home health care and DME providers to form "certified networks."
The benefit to these specialty providers is consolidation of resources and operations - in particular billing and collection functions.
In addition the bill will allow home health care and DME networks to contract with certified networks and payers directly, which should increase business volume, in exchange for the discounted rates that a network will command.
Smaller vendors, who might be overlooked by some of the large health care networks, will now have opportunities for business and informal specialty networks can also provide services to underserved, rural areas.
Nothing is perfect, and nothing is set in stone - I'm sure there are downsides to this development. It is an untested concept and the idea still needs to get to the regulatory stage, assuming Gov. Perry signs the bill.
Nevertheless, they do things different in Texas, and managing workers' compensation is one of them. We'll see in a few years whether this idea pans out as expected.
Thursday, May 30, 2013
NY's Failure in Leadership
Robert Beloten, chairman of the New York State Workers' Compensation Board (SWCB), issued a highly critical bulletin on the non-scheduled permanent partial disability (PPD-NSL) rating process Tuesday that blames carriers, claimants' attorneys and treating physicians for "bad faith" delays that slowed implementation of a key piece of the 2007 reforms signed into law by former Gov. Eliot Spitzer on March 13, 2007.
The bulletin notes that prior to 2007, PPD-NSL benefits were considered "lifetime" benefits. Approximately 8,700 injured workers were classified as having a PPD-NSL claim each year, the bulletin states, which accounted for approximately 40% of the lost wage benefits paid annually. The average time from date of injury to maximum medical improvement (MMI) was 4.8 years.
The Spitzer reforms of 2007 put caps on the PPD-NSL process and was expected to save about $1 billion per year - but this didn't happen.
While the SWCB took some time to introduce new guidelines for the determination of benefits (the 2012 NYS Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity, aka 2012 Guidelines) along with a new process effective January 2012, SWCB is expressing its disappointment with the lethargy the industry in adopting and utilizing the 2012 Guidelines and processes.
Beloten says private insurance carriers are the worst because they lose control over the funding of the PPD-NSL benefit:
"Data shows that despite these efforts, carriers have not achieved the level of PPD-NSL classifications that were expected. As of March 13, 2013, only 2,062 claims with accident dates from March 13, 2007 – March 12, 2008 have been classified, compared to 6,102 claims from 2002 at the same five year point. Private carriers are slowest – perhaps deterred by the requirement to deposit the present value of the PPD-NSL benefits into the Aggregate Trust Fund (ATF) if they cannot settle the claim within six months of classification. While increased Section 32 settlements prior to classification may account for some of the reduction in classifications, it is not sufficient to account for all of it. The average time from accident to classification has been increasing steadily and is now 6.4 years."
Taking aim at physicians, Beloten's bulletin says:
"The classification process has been plagued by non-compliance and bad faith delays. Many providers fail to provide the required medical documentation using the Form C-4.3, even when specifically directed and despite the significant fee payable to the provider. In some cases, parties have delayed classification by falsely claiming that they are in settlement discussions or by disputing that the claimant has reached MMI many years after the injury. These claims are based on alleged new injuries or the possibility of surgery, when none exists. These tactics result in prolonged temporary disability and forestall the classification process and imposition of caps, thereby driving up the cost of workers' compensation for all employers and undermining the legislative bargain on the 2007 Reform."
And with respect to attorneys introducing new injury claims or other tactics designed to prolong TTD status, Beloten says, "These tactics result in prolonged temporary disability and forestall the classification process and imposition of caps, thereby driving up the cost of workers' compensation for all employers and undermining the legislative bargain on the 2007 reform."
Beloten didn't criticize his own board, however, for taking 5 years to figure things out - Spitzer signed the reform law in 2007, and SWCB didn't issue its new guides and procedures until 2011, effective January 2012. That is a shame, because if Beloten wants any credibility at all with the participants in the New York system he must also accept part of the blame for the system failing to respond to legislative mandate.
In response to these delays, SWCB has issued a new program to speed up the process of impairment ratings, including the creation of "specialized parts in each district to handle the classification of PPD-NSL claims."
But some think that this process may violate another part of New York law that requires judges to handle cases from cradle to grave - I don't see it that way because the bulletin makes it clear that this is a voluntary program for the parties.
While SWCB chastises doctors on reporting, doctors say that the form, C 4.3, is unreasonably complex and difficult to complete.
This is a problem that is common in workers' compensation system in the bigger states - the complexity of the forms that are required to be used by participants increases errors, decreases compliance, and generally makes a mess out of things, not to mention that complex forms just take more time to complete.
But let's get to the heart of the matter - leadership. Beloten's bulletin points to a significant problem: delays in resolving disputed claims on PPD-NSL claims increased, rather than decreased, following the Spitzer reforms and this has created additional burden and expense on the system.
While it may be true that SWCB "has diligently enforced the duration caps since their enactment" the fact remains that the Board did not act diligently in the balance of its obligations under the act, and failure to accept part of the blame in a public manner is a failure in leadership.
New rules, new guides, new forms, new processes - all are great. But if SWCB can not accept responsibility for taking so long to implement these actions, how can it, after only one year, blame others for non-compliance?
If SWCB wants to be taken seriously, it must also look at itself, accept that it failed in its primary responsibility of timely issuing guidelines and procedures, THEN lay the foundation for others to follow the path towards improvement.
The Board should not blame others for a failure in the system to correct a deeply ingrained culture where the leadership itself didn't change.
The bulletin notes that prior to 2007, PPD-NSL benefits were considered "lifetime" benefits. Approximately 8,700 injured workers were classified as having a PPD-NSL claim each year, the bulletin states, which accounted for approximately 40% of the lost wage benefits paid annually. The average time from date of injury to maximum medical improvement (MMI) was 4.8 years.
The Spitzer reforms of 2007 put caps on the PPD-NSL process and was expected to save about $1 billion per year - but this didn't happen.
While the SWCB took some time to introduce new guidelines for the determination of benefits (the 2012 NYS Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity, aka 2012 Guidelines) along with a new process effective January 2012, SWCB is expressing its disappointment with the lethargy the industry in adopting and utilizing the 2012 Guidelines and processes.
Beloten says private insurance carriers are the worst because they lose control over the funding of the PPD-NSL benefit:
"Data shows that despite these efforts, carriers have not achieved the level of PPD-NSL classifications that were expected. As of March 13, 2013, only 2,062 claims with accident dates from March 13, 2007 – March 12, 2008 have been classified, compared to 6,102 claims from 2002 at the same five year point. Private carriers are slowest – perhaps deterred by the requirement to deposit the present value of the PPD-NSL benefits into the Aggregate Trust Fund (ATF) if they cannot settle the claim within six months of classification. While increased Section 32 settlements prior to classification may account for some of the reduction in classifications, it is not sufficient to account for all of it. The average time from accident to classification has been increasing steadily and is now 6.4 years."
Taking aim at physicians, Beloten's bulletin says:
"The classification process has been plagued by non-compliance and bad faith delays. Many providers fail to provide the required medical documentation using the Form C-4.3, even when specifically directed and despite the significant fee payable to the provider. In some cases, parties have delayed classification by falsely claiming that they are in settlement discussions or by disputing that the claimant has reached MMI many years after the injury. These claims are based on alleged new injuries or the possibility of surgery, when none exists. These tactics result in prolonged temporary disability and forestall the classification process and imposition of caps, thereby driving up the cost of workers' compensation for all employers and undermining the legislative bargain on the 2007 Reform."
And with respect to attorneys introducing new injury claims or other tactics designed to prolong TTD status, Beloten says, "These tactics result in prolonged temporary disability and forestall the classification process and imposition of caps, thereby driving up the cost of workers' compensation for all employers and undermining the legislative bargain on the 2007 reform."
Beloten didn't criticize his own board, however, for taking 5 years to figure things out - Spitzer signed the reform law in 2007, and SWCB didn't issue its new guides and procedures until 2011, effective January 2012. That is a shame, because if Beloten wants any credibility at all with the participants in the New York system he must also accept part of the blame for the system failing to respond to legislative mandate.
In response to these delays, SWCB has issued a new program to speed up the process of impairment ratings, including the creation of "specialized parts in each district to handle the classification of PPD-NSL claims."
But some think that this process may violate another part of New York law that requires judges to handle cases from cradle to grave - I don't see it that way because the bulletin makes it clear that this is a voluntary program for the parties.
While SWCB chastises doctors on reporting, doctors say that the form, C 4.3, is unreasonably complex and difficult to complete.
This is a problem that is common in workers' compensation system in the bigger states - the complexity of the forms that are required to be used by participants increases errors, decreases compliance, and generally makes a mess out of things, not to mention that complex forms just take more time to complete.
But let's get to the heart of the matter - leadership. Beloten's bulletin points to a significant problem: delays in resolving disputed claims on PPD-NSL claims increased, rather than decreased, following the Spitzer reforms and this has created additional burden and expense on the system.
While it may be true that SWCB "has diligently enforced the duration caps since their enactment" the fact remains that the Board did not act diligently in the balance of its obligations under the act, and failure to accept part of the blame in a public manner is a failure in leadership.
New rules, new guides, new forms, new processes - all are great. But if SWCB can not accept responsibility for taking so long to implement these actions, how can it, after only one year, blame others for non-compliance?
If SWCB wants to be taken seriously, it must also look at itself, accept that it failed in its primary responsibility of timely issuing guidelines and procedures, THEN lay the foundation for others to follow the path towards improvement.
The Board should not blame others for a failure in the system to correct a deeply ingrained culture where the leadership itself didn't change.
Wednesday, May 29, 2013
DSM-V and the Wussification of America
A bit of a controversy is arising in psychiatric and psychological circles with the release of the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).
Many workers' compensation systems rely on earlier editions of the DSM for diagnosis and medical legal reporting of industrial mental health issues in arriving at indemnity equations.
While much of the controversy over DSM-V is the elimination of the Global Assessment of Functioning scale (GAF) which some states, notably California, uses as part of the whole person impairment percentage for determining a permanent disability rating, the more problematic issue with DSM-V is that there are more diagnosable conditions with lower thresholds for meeting diagnostic criteria.
This is part of a wider problem that America faces - the disease-ification of our population; making mountains out of mole hills.
In other words, more people are now being diagnosed with some condition that in the past would not have been an issue.
I'm not sure why this has occurred - perhaps it is our legal system which tries to find ways to pay people for wrongs they have experienced; perhaps it is our insurance system that won't pay for services unless there is some diagnosis; perhaps it is because of our social benefits system (Social Security, etc.) that won't provide benefits unless a physician has made a certain diagnosis.
I don't know - but one thing is for certain, if we are to believe all of these guides and manuals directing the health care community, we are all a lot more sick than we used to be.
Many workers' compensation systems rely on earlier editions of the DSM for diagnosis and medical legal reporting of industrial mental health issues in arriving at indemnity equations.
While much of the controversy over DSM-V is the elimination of the Global Assessment of Functioning scale (GAF) which some states, notably California, uses as part of the whole person impairment percentage for determining a permanent disability rating, the more problematic issue with DSM-V is that there are more diagnosable conditions with lower thresholds for meeting diagnostic criteria.
This is part of a wider problem that America faces - the disease-ification of our population; making mountains out of mole hills.
In other words, more people are now being diagnosed with some condition that in the past would not have been an issue.
I'm not sure why this has occurred - perhaps it is our legal system which tries to find ways to pay people for wrongs they have experienced; perhaps it is our insurance system that won't pay for services unless there is some diagnosis; perhaps it is because of our social benefits system (Social Security, etc.) that won't provide benefits unless a physician has made a certain diagnosis.
I don't know - but one thing is for certain, if we are to believe all of these guides and manuals directing the health care community, we are all a lot more sick than we used to be.
Maybe this is a big part of what is driving up medical costs. My psychiatrist brother-in-law quipped once that in medical school they teach that 3/4s of what is wrong with a person is in their heads...
The authors of DSM-V seem to have good intentions.
Dr. William Narrow, the research director of the DSM-V task force and a psychiatrist who works for the Arlington Va.-based American Psychiatric Association (APA), defended the new tome to WorkCompCentral, stating that the new manual moves away from the GAF because it was too easy to game.
Narrow said the APA put the World Health Organization Disability Assessment Schedule Version 2.0 (WHODAS ) in the DSM-V for review and consideration by the mental health community.
Narrow said he felt the WHODAS "does a better job of assessing disability" than the GAF and is "very reliable." The GAF, he explained, "is not a measure of disability" but rather a "measure of overall functioning" that "mixes disability and symptomatology" in a way that the WHODAS does not.
Fair enough, but this unilateral reconstruction of a tool does not take into account myriad and complex systems that already make use of the earlier model.
The authors of DSM-V seem to have good intentions.
Dr. William Narrow, the research director of the DSM-V task force and a psychiatrist who works for the Arlington Va.-based American Psychiatric Association (APA), defended the new tome to WorkCompCentral, stating that the new manual moves away from the GAF because it was too easy to game.
Narrow said the APA put the World Health Organization Disability Assessment Schedule Version 2.0 (WHODAS ) in the DSM-V for review and consideration by the mental health community.
Narrow said he felt the WHODAS "does a better job of assessing disability" than the GAF and is "very reliable." The GAF, he explained, "is not a measure of disability" but rather a "measure of overall functioning" that "mixes disability and symptomatology" in a way that the WHODAS does not.
Fair enough, but this unilateral reconstruction of a tool does not take into account myriad and complex systems that already make use of the earlier model.
And while Narrow may be correct about gaming GAF, the fact is that GAF has been in use for many, many years and is a standard without too much objection by those who use it.
Changing standards without legal authority or precedence is not just expensive, it is time consuming and difficult to do because of competing interests and politics.
But, regardless of the elimination of GAF, the fact remains that, as Paul D. Godec of Kissinger & Fellman, a labor and employment attorney in Denver, remarked to WorkCompCentral, "virtually every one of us is going to have some diagnosable condition under the DSM-V."
The broadening of diagnostic criteria just adds to the wussification of America - the removal of personal responsibility in society.
Wussification starts at a young age, with such otherwise benign events as organized sports that recognize every child with an award even if they are a loser.
It continues into adulthood with no-fault systems, such as workers' compensation or divorce, where no one is accountable for their own behavior because they are going to be taken care of regardless of how or who caused an accident or situation.
It seems that nearly everywhere one turns there is no personal responsibility anymore - it's always someone else's fault, or no one's fault. Everyone's a victim...
Whether DSM-V may or may not have an impact directly on workers' compensation systems is irrelevant - DSM-V makes more people ill when they were previously considered to be normally functioning.
We don't need more ill people in this country. We need people that are strong, healthy, vibrant, productive AND WHO TAKE RESPONSIBILITY FOR THEMSELVES. We do this by not recognizing illness when there really isn't any.
Remember the best selling self-help book from the 70's, I'm OK, You're OK, by Thomas A Harris MD? The emphasis of the book is helping people understand how their life position affects their communications (transactions) and relationships.
There are four states according to Harris:
The most common is number one: As children we see that adults are large, strong and competent and that we are little, weak and often make mistakes, so we conclude I'm Not OK, You're OK.
DSM-V emphasizes that I'm not OK: I'm a wussy and a victim so take care of me...
We need medical manuals that emphasize number four, where people gain the maturity to engage in Adult to Adult dialogue and stop with the victimization mentality that has become so prevalent in American society.
Let's stop the wussification of America and refuse to recognize trite diagnosis that do nothing other than give physicians and other health care providers something new to put on their bills to insurance companies for reimbursement.
Changing standards without legal authority or precedence is not just expensive, it is time consuming and difficult to do because of competing interests and politics.
But, regardless of the elimination of GAF, the fact remains that, as Paul D. Godec of Kissinger & Fellman, a labor and employment attorney in Denver, remarked to WorkCompCentral, "virtually every one of us is going to have some diagnosable condition under the DSM-V."
The broadening of diagnostic criteria just adds to the wussification of America - the removal of personal responsibility in society.
Wussification starts at a young age, with such otherwise benign events as organized sports that recognize every child with an award even if they are a loser.
It continues into adulthood with no-fault systems, such as workers' compensation or divorce, where no one is accountable for their own behavior because they are going to be taken care of regardless of how or who caused an accident or situation.
It seems that nearly everywhere one turns there is no personal responsibility anymore - it's always someone else's fault, or no one's fault. Everyone's a victim...
Whether DSM-V may or may not have an impact directly on workers' compensation systems is irrelevant - DSM-V makes more people ill when they were previously considered to be normally functioning.
We don't need more ill people in this country. We need people that are strong, healthy, vibrant, productive AND WHO TAKE RESPONSIBILITY FOR THEMSELVES. We do this by not recognizing illness when there really isn't any.
Remember the best selling self-help book from the 70's, I'm OK, You're OK, by Thomas A Harris MD? The emphasis of the book is helping people understand how their life position affects their communications (transactions) and relationships.
There are four states according to Harris:
- I'm Not OK, You're OK
- I'm Not OK, You're Not OK
- I'm OK, You're Not OK
- I'm OK, You're OK
The most common is number one: As children we see that adults are large, strong and competent and that we are little, weak and often make mistakes, so we conclude I'm Not OK, You're OK.
DSM-V emphasizes that I'm not OK: I'm a wussy and a victim so take care of me...
We need medical manuals that emphasize number four, where people gain the maturity to engage in Adult to Adult dialogue and stop with the victimization mentality that has become so prevalent in American society.
Let's stop the wussification of America and refuse to recognize trite diagnosis that do nothing other than give physicians and other health care providers something new to put on their bills to insurance companies for reimbursement.
Tuesday, May 28, 2013
The Profile and Why Federalist Expansionism is Alarming
“My dad fought a war so this can never happen in America. I will not dishonor my father’s memory by giving up what he fought for. No, sir. With all due respect, I will not consent to a search without a proper warrant.” - Larry Gaines, private pilot to a Customs and Border Protection (CBP) agent seeking an unlawful, warrantless search of Gaines' aircraft because his flight fit a "profile" of “from west to east, from California.”
Coming off the Memorial Day holiday weekend, where the nation pays tribute to those who have fallen in the name of our country, I'm struck by the perversity of our collective sentiments versus an incongruous police state that has been evolving since terrorism was declared a national threat.
If you follow any sort of politics at all outside the workers' compensation arena you might have noticed an alarming trend over the past decade - expansion of the federal government's willingness to disregard individual Constitutional rights and the use of its mighty resources to quell individual dissent.
This started with the creation, funding and expansion of the Department of Homeland Security (DHS) and its more familiar agency, the Transportation Security Agency (TSA). Despite billions of dollars in funding for personnel and fancy machines, there has not been a single case of terrorism that has been thwarted by this massive bureaucracy.
We get a false sense of security as backscatter machines prob our bodies with electrons and we take our shoes and belts off and remove lap top computers from brief cases - while questionable TSA employees rifle through our bags committing theft (and we all know that the few that were actually caught are only representative of a much bigger problem).
But we all accept TSA like apathetic sheep because the federal government said we have to in order to ensure orderly travel, despite the fact that there is not one scintilla of evidence that TSA has ever made travel safer. None.
Then we get to Larry Gaines. His plight is not unique at all now in the general aviation community. It seems that a couple times per month some completely law abiding private pilot is detained and essentially searched, without warrant, and without legal authority, in the name of terrorism, despite the fact that general aviation has never been identified as a credible terrorism threat - it's simply much, much easier to plant a bomb at the Boston Marathon than it is to learn how to fly a plane and rig it as an explosive device.
And, by the way, these reports of aircraft and pilot interceptions do not involve the ONLY governmental agency that has ANY authority whatsoever over an aircraft and its pilot - the Federal Aviation Administration (FAA). The FAA, from what I have read thus far, disassociates itself completely from the police activity of these rogue federal agencies.
Coming off the Memorial Day holiday weekend, where the nation pays tribute to those who have fallen in the name of our country, I'm struck by the perversity of our collective sentiments versus an incongruous police state that has been evolving since terrorism was declared a national threat.
If you follow any sort of politics at all outside the workers' compensation arena you might have noticed an alarming trend over the past decade - expansion of the federal government's willingness to disregard individual Constitutional rights and the use of its mighty resources to quell individual dissent.
This started with the creation, funding and expansion of the Department of Homeland Security (DHS) and its more familiar agency, the Transportation Security Agency (TSA). Despite billions of dollars in funding for personnel and fancy machines, there has not been a single case of terrorism that has been thwarted by this massive bureaucracy.
We get a false sense of security as backscatter machines prob our bodies with electrons and we take our shoes and belts off and remove lap top computers from brief cases - while questionable TSA employees rifle through our bags committing theft (and we all know that the few that were actually caught are only representative of a much bigger problem).
But we all accept TSA like apathetic sheep because the federal government said we have to in order to ensure orderly travel, despite the fact that there is not one scintilla of evidence that TSA has ever made travel safer. None.
Then we get to Larry Gaines. His plight is not unique at all now in the general aviation community. It seems that a couple times per month some completely law abiding private pilot is detained and essentially searched, without warrant, and without legal authority, in the name of terrorism, despite the fact that general aviation has never been identified as a credible terrorism threat - it's simply much, much easier to plant a bomb at the Boston Marathon than it is to learn how to fly a plane and rig it as an explosive device.
And, by the way, these reports of aircraft and pilot interceptions do not involve the ONLY governmental agency that has ANY authority whatsoever over an aircraft and its pilot - the Federal Aviation Administration (FAA). The FAA, from what I have read thus far, disassociates itself completely from the police activity of these rogue federal agencies.
The fact is that neither DHS, TSA, CBP or any local police agency has any authority WHATSOEVER to detain, search, investigate, confiscate, prosecute, etc. any violation of any aviation law or regulation - NONE. They can not conduct "ramp checks" (inspecting an aircraft on the ground as a matter of course); they can not confiscate pilot certificates; they can not search an aircraft or detain a pilot for anything that occurs in the air, or at an airport once past security fencing.
And yet that does not keep these entities from using their police authority to engage in these unlawful activities because they have money, ergo power, and will use that ostensible authority because they have the resources and know that in order for YOU to muster sufficient resources to protect your rights you need to spend a lot of money in a short period of time, and by then these autocrats have had their way - they've made their point.
Other recent, glaring, and despicable examples of the federal government's disdain for the People's Constitutional Rights are the Justice Department's recent actions against journalists - unprecedented, and unfounded activities that are designed for no purpose other than to stifle the ability of The Media to keep a check on government.
There is the warrant against Fox News reporter James Rosen where the Justice Department with the blessing of the Attorney General of the United States, Eric Holder, obtained his Google account emails in which he corresponded with a State Department analyst suspected of leaking classified information about North Korea. Rosen was doing his job - he did not violate any laws, he did not engage in illegal activity, he did not create a security threat or a breach of safety for the public.
Investigators routinely search the e-mails of suspected leakers, but Congress has forbidden search warrants for journalists’ work product materials unless the reporter committed a crime - and Rosen committed no crime. His activity is Constitutionally protected and this very same issue has come before the United States Supreme Court many times in the past and on each occasion the government has lost.
But because the government deemed Rosen's activity against its own interests - SECRECY - they have engaged in a tactic designed to quell his First Amendment right of freedom of the press and have used him as an example to make sure that other journalists don't start investigating things the government doesn't want you to know.
And yet that does not keep these entities from using their police authority to engage in these unlawful activities because they have money, ergo power, and will use that ostensible authority because they have the resources and know that in order for YOU to muster sufficient resources to protect your rights you need to spend a lot of money in a short period of time, and by then these autocrats have had their way - they've made their point.
Other recent, glaring, and despicable examples of the federal government's disdain for the People's Constitutional Rights are the Justice Department's recent actions against journalists - unprecedented, and unfounded activities that are designed for no purpose other than to stifle the ability of The Media to keep a check on government.
There is the warrant against Fox News reporter James Rosen where the Justice Department with the blessing of the Attorney General of the United States, Eric Holder, obtained his Google account emails in which he corresponded with a State Department analyst suspected of leaking classified information about North Korea. Rosen was doing his job - he did not violate any laws, he did not engage in illegal activity, he did not create a security threat or a breach of safety for the public.
Investigators routinely search the e-mails of suspected leakers, but Congress has forbidden search warrants for journalists’ work product materials unless the reporter committed a crime - and Rosen committed no crime. His activity is Constitutionally protected and this very same issue has come before the United States Supreme Court many times in the past and on each occasion the government has lost.
But because the government deemed Rosen's activity against its own interests - SECRECY - they have engaged in a tactic designed to quell his First Amendment right of freedom of the press and have used him as an example to make sure that other journalists don't start investigating things the government doesn't want you to know.
The federal government knows that they have resources, and that it takes lots of money to fight them.
And of course there is also the FBI's seizure of Associated Press reporter's phone records in the name of ferreting out who leaked information about a potential terrorist plot.
The issue isn't a direct threat to The Press - but the result has been to chill sources, and without sources news can not be responsibly reported.
And of course there is also the FBI's seizure of Associated Press reporter's phone records in the name of ferreting out who leaked information about a potential terrorist plot.
The issue isn't a direct threat to The Press - but the result has been to chill sources, and without sources news can not be responsibly reported.
So while The Press experiences some legal challenges, the practical effect is that people are no longer willing to talk to The Press for fear that the federal government is going to come after them by the flagrant disregard of the Constitutional rights of journalists.
What does this have to do with workers' compensation?
Maybe nothing. And, maybe - everything.
We're in our own little cocoon of the workers' compensation world. We fight about benefit rates, about reimbursement to vendors, about waiting periods and presumptions. We alter standards for causation, carve out separate rules for psychiatric issues, develop formulas for indemnity, research risk rates and actuarially determine which business classes deserve our underwriting attention.
What does this have to do with workers' compensation?
Maybe nothing. And, maybe - everything.
We're in our own little cocoon of the workers' compensation world. We fight about benefit rates, about reimbursement to vendors, about waiting periods and presumptions. We alter standards for causation, carve out separate rules for psychiatric issues, develop formulas for indemnity, research risk rates and actuarially determine which business classes deserve our underwriting attention.
But once the federal government encroaches on the rights of the people, and the rights of states to govern as they please, none of what we do in work comp will matter. States won't need to distinguish themselves, or build systems to fit their unique cultures, because the Feds will take over for us.
The increasing power of the federal government in all respects of our lives should be alarming to you. If you recall there have been attempts to expand the powers of the federal government in insurance regulation, there have been attempts to create a federal net for workers' compensation, and perhaps the most invasive federal involvement to present is the aggressiveness of the Centers for Medicare and Medicaid Services to go after Medicare funding from awards.
The increasing power of the federal government in all respects of our lives should be alarming to you. If you recall there have been attempts to expand the powers of the federal government in insurance regulation, there have been attempts to create a federal net for workers' compensation, and perhaps the most invasive federal involvement to present is the aggressiveness of the Centers for Medicare and Medicaid Services to go after Medicare funding from awards.
And don't forget that we now have federally mandated health insurance...
Is the federal government going to interfere with workers' compensation trends because they might fit the "profile" - going from west to east from California? It's been proposed before and if we don't keep a check on federal power then we may one day wake up to a rude, new, reality.
postscript: see this article on targeting general aviation and the growing police state by The Atlantic writer James Fallows: http://www.theatlantic.com/national/archive/2013/05/annals-of-the-security-state-even-more-airplane-stories/276239/.
Is the federal government going to interfere with workers' compensation trends because they might fit the "profile" - going from west to east from California? It's been proposed before and if we don't keep a check on federal power then we may one day wake up to a rude, new, reality.
postscript: see this article on targeting general aviation and the growing police state by The Atlantic writer James Fallows: http://www.theatlantic.com/national/archive/2013/05/annals-of-the-security-state-even-more-airplane-stories/276239/.
Friday, May 24, 2013
Why I Don't Believe in Presumptions
A recent Oregon case provides an interesting perspective on statutory presumptions, and is demonstrative of why I generally don't believe in these statutory creatures.
Alan Hull worked as a fire district chief for the Estacada Rural Fire District.
In June 2007, the Clackamas County Sheriff's Office informed him that it suspected one of his long-term employees had embezzled $1.9 million from the fire district during the course of several years. The sheriff's office asked him to go undercover and gather evidence against the employee.
Hull agreed to do so, and the employee was later arrested.
The embezzlement, however, became the subject of public concern and anger. Some members of the public demanded that Hull be removed from office.
He suffered a heart attack in October 2007, shortly after asking his wife if she had overheard a comment by a nearby individual about the embezzlement.
Hull filed a claim for benefits, contending his heart attack was the result of stress from his undercover work and the community anger directed at him.
An administrative law judge ruled that Hull was not entitled to benefit from the statutory "firefighter's presumption," which provides a rebuttable presumption that a firefighter's cardiovascular condition is a compensable occupational disease.
The judge reasoned that since Hull's heart attack was caused by his stress, his claim was for a "mental disorder" and not a cardiovascular condition. The judge then proceeded to apply the heightened standard of proof for the compensability of mental disorder claims and denied Hull's request for benefits.
After the Workers' Compensation Board reversed the Court of Appeals Court of Appeals said it read Oregon's statutory scheme as providing that when a cardiovascular disease is caused by a stress-related mental disorder, the firefighters' presumption does not apply.
Since it was undisputed that Hull's heart attack was caused by his work-related stress, his heart attack had to be treated as a mental disorder, the court said.
In my mind, and I'm no doctor obviously, stress from fighting fires and saving lives, dealing with death, doom and destruction on a regular basis is no different than stress from engaging in a job activity that is generally outside the scope of defined duties but nevertheless results in considerable damage to the heart.
I'm no expert on Oregon work comp law, but Hull's claim wasn't for psychiatric or psychological injury - it was specifically for a heart attack and the Workers' Compensation Board's decision was the correct application of the law.
The applicable statutory presumption, ORS 656.802(4) reads:
"Death, disability or impairment of health of firefighters of any political division who have completed five or more years of employment as firefighters, caused by any disease of the lungs or respiratory tract, hypertension or cardiovascular-renal disease, and resulting from their employment as firefighters is an occupational disease. Any condition or impairment of health arising under this subsection shall be presumed to result from a firefighters employment. However, any such firefighter must have taken a physical examination upon becoming a firefighter, or subsequently thereto, which failed to reveal any evidence of such condition or impairment of health which preexisted employment. Denial of a claim for any condition or impairment of health arising under this subsection must be on the basis of clear and convincing medical evidence that the cause of the condition or impairment is unrelated to the firefighters employment."
In comparison, the Court of Appeals found that Hull's myocardial infarction was a physical event that was the product of a mental disorder under 656.802(1)(b), and thus applied 656.802(3) dealing with "mental disorders":
Notwithstanding any other provision of this chapter, a mental disorder is not compensable under this chapter unless the worker establishes all of the following:
"(a)The employment conditions producing the mental disorder exist in a real and objective sense.
"(b)The employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.
"(c)There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.
"(d)There is clear and convincing evidence that the mental disorder arose out of and in the course of employment."
The Court said that the mental disorder provision was an exception to the firefighter's presumption and said that the legislative history supported this interpretation.
Because there was no dispute factually that Hull's heart attack was either induced or aggravated by mental stress, the Court said the injury must be analyzed under the mental stress statute.
My suspicion is that had Hull and his attorney anticipated that stress would trump the heart attack presumption that the case would have been worked up differently and that there would not be case law on the issue.
This is one of the reasons why presumptions lead to increased litigation, perhaps unfair denial of benefits, and are just plain troublesome.
Had Hull known that his case would be analyzed as a mental case rather than a physical case he would have presented sufficient evidence that such was the case. Rather, Hull relied up on a presumption that turned out to be inapplicable.
But it makes no sense because it is undisputed that Hull's heart attack was cause by work issues!
Perhaps technically the Court of Appeals is correct, but in the application of this case the analysis is backwards. One way or another it is undisputed that Hull's heart attack was industrially caused but for an incorrect application of the evidence.
Alan Hull worked as a fire district chief for the Estacada Rural Fire District.
In June 2007, the Clackamas County Sheriff's Office informed him that it suspected one of his long-term employees had embezzled $1.9 million from the fire district during the course of several years. The sheriff's office asked him to go undercover and gather evidence against the employee.
Hull agreed to do so, and the employee was later arrested.
The embezzlement, however, became the subject of public concern and anger. Some members of the public demanded that Hull be removed from office.
He suffered a heart attack in October 2007, shortly after asking his wife if she had overheard a comment by a nearby individual about the embezzlement.
Hull filed a claim for benefits, contending his heart attack was the result of stress from his undercover work and the community anger directed at him.
An administrative law judge ruled that Hull was not entitled to benefit from the statutory "firefighter's presumption," which provides a rebuttable presumption that a firefighter's cardiovascular condition is a compensable occupational disease.
The judge reasoned that since Hull's heart attack was caused by his stress, his claim was for a "mental disorder" and not a cardiovascular condition. The judge then proceeded to apply the heightened standard of proof for the compensability of mental disorder claims and denied Hull's request for benefits.
After the Workers' Compensation Board reversed the Court of Appeals Court of Appeals said it read Oregon's statutory scheme as providing that when a cardiovascular disease is caused by a stress-related mental disorder, the firefighters' presumption does not apply.
Since it was undisputed that Hull's heart attack was caused by his work-related stress, his heart attack had to be treated as a mental disorder, the court said.
In my mind, and I'm no doctor obviously, stress from fighting fires and saving lives, dealing with death, doom and destruction on a regular basis is no different than stress from engaging in a job activity that is generally outside the scope of defined duties but nevertheless results in considerable damage to the heart.
I'm no expert on Oregon work comp law, but Hull's claim wasn't for psychiatric or psychological injury - it was specifically for a heart attack and the Workers' Compensation Board's decision was the correct application of the law.
The applicable statutory presumption, ORS 656.802(4) reads:
"Death, disability or impairment of health of firefighters of any political division who have completed five or more years of employment as firefighters, caused by any disease of the lungs or respiratory tract, hypertension or cardiovascular-renal disease, and resulting from their employment as firefighters is an occupational disease. Any condition or impairment of health arising under this subsection shall be presumed to result from a firefighters employment. However, any such firefighter must have taken a physical examination upon becoming a firefighter, or subsequently thereto, which failed to reveal any evidence of such condition or impairment of health which preexisted employment. Denial of a claim for any condition or impairment of health arising under this subsection must be on the basis of clear and convincing medical evidence that the cause of the condition or impairment is unrelated to the firefighters employment."
In comparison, the Court of Appeals found that Hull's myocardial infarction was a physical event that was the product of a mental disorder under 656.802(1)(b), and thus applied 656.802(3) dealing with "mental disorders":
Notwithstanding any other provision of this chapter, a mental disorder is not compensable under this chapter unless the worker establishes all of the following:
"(a)The employment conditions producing the mental disorder exist in a real and objective sense.
"(b)The employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.
"(c)There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.
"(d)There is clear and convincing evidence that the mental disorder arose out of and in the course of employment."
The Court said that the mental disorder provision was an exception to the firefighter's presumption and said that the legislative history supported this interpretation.
Because there was no dispute factually that Hull's heart attack was either induced or aggravated by mental stress, the Court said the injury must be analyzed under the mental stress statute.
My suspicion is that had Hull and his attorney anticipated that stress would trump the heart attack presumption that the case would have been worked up differently and that there would not be case law on the issue.
This is one of the reasons why presumptions lead to increased litigation, perhaps unfair denial of benefits, and are just plain troublesome.
Had Hull known that his case would be analyzed as a mental case rather than a physical case he would have presented sufficient evidence that such was the case. Rather, Hull relied up on a presumption that turned out to be inapplicable.
But it makes no sense because it is undisputed that Hull's heart attack was cause by work issues!
Perhaps technically the Court of Appeals is correct, but in the application of this case the analysis is backwards. One way or another it is undisputed that Hull's heart attack was industrially caused but for an incorrect application of the evidence.
The case was remanded, presumably for further work up. In the meantime a firefighter who went above and beyond call of duty suffers not only indignity, but a real injury, real disability, and further delay.
And the employer may get to pass the buck onto other social systems for its ultimate responsibility.
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