Mental Health and Success

Yesterday's Los Angeles Times article on the revelation of California Secretary of State, Debra Bowen's, life long struggle with depression got me thinking about how significant mental health is to overall health, and how it can impact the ability of employees to deal with a work injury (or even a perceived work injury), let alone just plain working even if the body is healthy.

Workers' compensation is not well adjusted for mental health issues. Mental "injuries" are the bane of workers' compensation.

Look at the various state laws in the current, "modern" workers' compensation state - generally there now has to be some significant "physical" event or issue to trigger benefits for a mental injury.

I put "modern" as an adjective in the above sentence because, for all of the sophistication, education and knowledge we as humans have accumulated in the past 100 years or so since workers' compensation first came around our "medicine" is decidedly in the 19th Century when it comes to psychology and psychiatry in managing and paying for mental health in industrial settings.

CA Sec of State, Debra Bowen

Even California, once the most liberal of states when it came to psychological or psychiatric injury, has put into place limitations requiring (unless a sudden and traumatic injury) that at least 50% of a person's mental health issue be from work before it is "compensable."

Granted, most of the laws on the books now constricting the availability of mental health treatment or recognition of mental health issues as possibly having some industrial causation is rooted in abuses of those laws, principally by professionals that sought to exploit the inherent amorphous nature of mental health and the liberal extensions of the law that metamorphosed over the years.

The problem with the laws that artificially limit the availability of "compensation" for mental "injuries" is that there they inhibit the ability of injured workers to get the treatment needed for a successful return to work.

When we look at the marvelous abilities of people with substantial physical limitations from birth, and their abilities to overcome the difficulties associated with these limitations, we derive hope and optimism for anyone faced with a disability - and we also as a consequence understand how powerfully important mental health is in dealing with physical limitations.

The story of Jennifer Bricker, the little girl abandoned at birth because she was born with no legs, whose adoptive parents never let her use the word "can't", and who ended up becoming a champion acrobat (and as it ends up the natural birth sister of Olympian Dominique Moceanu), inspires the optimist in me.

Other stories of similar import abound: last year at the California Workers' Compensation and Risk Conference in Dana Point keynote speaker was Bethany Hamilton, who lost an arm to a shark attack in Hawaii while surfing at age 13, and who went on to become an internationally ranked, professional surf champion.

Or Jessica Cox, born with no arms, who went on to becoming a private pilot, among many of her accomplishments.

If someone with such a huge impediment (at least to us born with normal function) can overcome all of the obstacles and hurdles in life to become what she wants to be and do incredible things, why are some unable to persevere and get over their work injury?

Why do some become slaves to their workers' compensation claim?

How is it that a top political figure, such as Debra Bowen, is able to manage her depression for so long and contribute to society, do her job, carry on as though she were perfectly healthy physically and mentally?

The difference, I suspect, is that workers' compensation systems don't want to deal with mental health.

Workers' compensation came out of a period of time when there was little to no understanding of mental health. An injury was a traumatic affair - cut off hand, fall from a roof, broken bone. Affected body part was treated with no concern or understanding of the psychological impact of the injury, or the psychology or psychiatry of the patient in any manner whatsoever.

The "Great Generation" knew very little about mental health, and just toughed it out. Mental health wasn't recognized except in pejorative terms; it was shameful to see a psychologist or therapist, family psychological history was kept "in the closet" and if you were depressed you just kept that to yourself...

Nothing in the origin of workers' compensation had anything to do with mental health.

Yet mental health has everything to do with whether or not someone can successfully deal with trauma - any kind of trauma: physical or mental.

I am reminded of mental health issues every time I visit my mother, a resident at a memory care facility. There are many different mental health issues at that facility and every day I see the same faces of deteriorated mental capacity, from advanced stage dementia and Alzheimer's Disease, to neurological impairments that prevent a well functioning brain to deliver the right messages to body parts or speech.

These folks look vapid and lost - but they aren't! Tell them jokes and they find humor and laugh; say "hello Tommy" to them and they smile; hold their hands and they look at you with gratefulness and warmth. They would tell you their amazing life's stories ... if they could remember.

The federal government used to be responsible for taking care of that small segment of the population that had severe mental health problems and subsidized psychiatric hospitals across the nation. That ended in the Ronald Reagan era when he eliminated federal spending on mental health from the budget.

I find it ironic that the President who stopped paying for mental health services himself became the victim of Alzheimer's Disease...

We all have different abilities to deal with life and the various twists and turns that come along. Some, like Bricker, Hamilton and Cox don't know the word, "can't."

Others didn't have that imbedded into their psyche. Recognizing and treating mental health as an overall part of successfully rehabilitating injured workers is important. How that is accomplished of course is subject to vast volumes of debate.

Billionaire John Paul DeJoria, the man behind brands such as Paul Mitchell, Patrón, and Rok Mobile (and who was once homeless and destitute), said in a video interview at Business Insider, "successful people do the things unsuccessful people don't want to do."

I think that DeJoria's quote can be extended to systems as well.

[Do you know of someone that was injured at work and overcame incredible obstacles to get back to work and become successful? If so, nominate them for a Comp Laude Award.]

Crossing the Freeway

A couple of days ago I posted about a Labor Day report from research group Economic Roundtable. The study showed that the number of "informal" laborers − those that the employer either doesn't report or misclassifies as independent contractors − grew 400% from 1972 to 2012.

Yesterday the University of Southern California in conjunction with the California Immigrant Policy Center, released a study concluding that the undocumented immigrant population in California comprised nearly 10% of the state workforce.

According to the study, based on Census data and other statistics, including data from the departments of Labor and Homeland Security, there are 2.6-million immigrants living in California without the required paperwork.

Particularly in Los Angeles County (which has been cited by the California Workers' Compensation Institute and other research groups as having much higher claim frequency than the rest of the state), of the 4.4 million immigrants living in the greater Los Angeles region, 1.1 million are here without permission, according to the report.

38% of the agriculture industry is comprised of undocumented workers, as is 14% of the construction industry, according to the report.

The Labor Day report from Economic Roundtable concluded that 16% of the construction industry was made up of illegal labor, resulting in lost premium of about $264 million.

Demonstrating how deeply ingrained into society the undocumented population is, the USC study found that half of these immigrants have already been in the state for 10 years or more.

And 58% of that population lacks any health insurance.

Typical signage along I-5 near San Onofre, CA, warns of immigrants crossing the freeway.

This has obvious implications for workers' compensation in California, which may be a primary source for medical treatment to that population. Though provision of return to work services would not be applicable based on both state and federal case law, just because one does not have immigration papers does not mean that workers' compensation benefits are inapplicable.

A larger issue is really the failure of the employers that use this labor because no payroll is generally associated with it, or falsified payroll information is provided - so not only are employment taxes avoided or discounted, so is workers' compensation premium.

With agriculture and construction having significant undocumented work forces, the impact is greater because of the high risk categories in such industries.

A headline in this morning's WorkCompCentral News highlights the issue - a Marin County contractor pleaded guilty to charges of working without a license, evading income taxes and failing to provide workers' compensation insurance.

Ronald Vernon Cupp of Corte Madera and his brother were hired to construct a sewage line at a shopping center in Mill Valley in February 2013. According an article in the Marin Independent Journal, Cupp paid his employees in cash, didn't report them on his taxes and didn't cover them through workers' compensation insurance.

About 1700 miles away from Sacramento, the Business and Industry Committee of the Texas House of Representatives continues to study the issue of worker misclassification.

Stephanie Gharakhanian, the Workers Defense Project’s research and policy director, told WorkCompCentral the organization is hoping that as a result of the committee’s report, the Legislature will consider “a more expansive misclassification bill” after the successful passage of House Bill 2015 last session.

That bill, which took effect at the beginning of this year, levied a $200 fine per worker on any Texas employer caught misclassifying employees on a public project.

A series of articles on worker misclassification in various states by news service McClatchyDC estimates that 37.7% of Texas construction workers are misclassified, based on a survey of 4,987 employees with 1,881 misclassifications found.

It also estimated a total of 316,793 misclassified workers statewide, listing as its source “Integrated Public Use Microdata Series 2011 Census records and McClatchy survey of workers” and says that its estimates are “derived from specific rates of misclassification over 12 specialties.”

Those interviewed for the WorkCompCentral story said the estimate sounds accurate based on anecdotal experiences; some said too high, some said too low ... must be just about right.

The impact of undocumented workers is both on the premium collection side, and on the work injury claim side - and probably not what you might think.

According to WorkCompCentral columnist, Peter Rousmaniere, in 2010 roughly 40% of work injuries and illnesses do not result in a workers’ comp claim. That might amount to well over 1 million claims that never were submitted, each year.

Though he doesn't engage any reasoning as to why there may not be reporting of an occupational injury or illness, saving that for another column, the fact of illegal work status is likely a big contributor.

At some point the political hot potato of immigration reform is going to have to be addressed. And the workers' compensation industry is going to have to keep a close eye on what ultimately gets decided by Congress.

Plead It Correctly

Just in time for the Insurance Council of Texas' annual workers' compensation conference in a couple weeks, a Texas appellate court reversed a bad faith jury verdict of nearly a half million dollars, which should provide some topical discussion material for presenters.

In the famous Ruttiger case, the Texas Supreme Court ruled that a 1989 overhaul of the state Workers' Compensation Act had eliminated causes of action for the breach of workers' compensation carriers' common-law duty of good faith and fair dealing when adjusting claims.

The court did say, though, that the amended act “does not purport to preclude all types of claims against workers’ compensation insurers,” and that Insurance Code Section 541.061 would continue to apply to carriers.

That code section provides that it is an unfair or deceptive trade practice for a carrier to misrepresent an insurance policy by making an untrue statement of fact or misstatement of law.

On Friday, the Court of Appeals for the state's 5th District last week said that Jeff Palmer could take nothing on his claim after a jury awarded him $483,716.69 against Texas Mutual, because he had failed to include a plea of an alleged violation of Insurance Code Section 541.061 in his amended petition for relief.

Palmer claimed a January 2006 back injury from using a jackhammer to break concrete. Doctors determined that he had a slipped disc in his back, with some nerve impingement.

Texas Mutual initially accepted Palmer's injury as compensable and began paying him temporary income and medical benefits.

In February 2006, Palmer's doctor requested authorization to perform an L4-5 and L5-S1 laminectomy and discectomy. Texas Mutual granted approval for the procedure on the same day it filed a dispute over the extent of Palmer's injuries with the Division of Workers’ Compensation.

Bowzer's back pain a procedural morass.

For the next several months, the parties haggled over whether Texas Mutual was obligated to pay for the surgery it had authorized, in light of its contest to the compensability of the condition the surgery was supposed to address. Palmer's doctor refused to do the surgery until the parties resolved this dispute.

Palmer finally got his surgery in July 2006, and Texas Mutual paid for it, as well as for his post-surgical care, physical therapy and pain management. Once Palmer reached maximum medical improvement, Texas Mutual paid him benefits of $267.25 per week for 15 weeks.

After the payments ended, Palmer filed suit against Texas Mutual in July 2007. In his initial complaint, Palmer accused the carrier of violating its common-law duty of good faith and fair dealing, unspecified provisions of the Insurance Code and the Texas Deceptive Trade Practices Act.

He blamed Texas Mutual's "brazen and dilatory blockage" of his surgery as the reason he had to endure months of pain, and he asserted that the prolonged impingement on the nerves in his spine had led to his development of left thigh and calf atrophy.

Texas Mutual filed special exceptions to Palmer's complaint, asserting that his claims under the Insurance Code should be stricken pursuant to the Supreme Court's decision in Ruttiger.

It supported its motion with citation to language from the Ruttiger decision holding that a dispute about whether a worker’s claim was covered under workers’ compensation will not constitute a misrepresentation under Section 541.061.

Dallas District Judge Kenneth Molberg struck Palmer's Insurance Code claims. Palmer amended his petition to plead only a breach of the common-law duty of good faith and fair dealing and unconscionable acts under the Deceptive Trade Practices Act.

The case then proceeded to trial, and Texas Mutual moved for a directed verdict in its favor.

Molberg denied the motion, saying he found Texas Mutual’s actions to be "absolutely incomprehensible." He chided the carrier for having engaged in "one of the most outrageous, egregious administrations of a claim that I've ever seen."

Later, despite his earlier ruling striking Palmer's Insurance Code-based claims, Molberg agreed to instruct the jury as to Section 541.060.

Texas Mutual objected, but Molberg overruled the carrier.

The jury then returned a verdict finding Texas Mutual had made a misrepresentation as to the availability of coverage for Palmer's back surgery by authorizing it while simultaneously disputing its liability. The jury awarded Palmer $483,716.69 in damages.

Texas Mutual appealed and on Friday, the 5th District Court of Appeals agreed with the carrier's procedural argument, finding an abuse of discretion by Molberg.

The case troubles me on a couple of fronts.

First, I don't understand why the carrier first approved, very quickly and expediently I might add, surgical treatment, and then delay, deny and otherwise welch on that deal. The carrier's behavior clearly exacerbated the situation.

Who made that decision? Why? And what was the purpose, other than to save carrier money that should otherwise have gone to providing the originally APPROVED treatment?

Frankly, Texas Mutual deserved to be sued. They brought the lawsuit upon themselves.

Second, was Palmer setting up Texas Mutual? I understand that the delay of several months was probably a painful several months, but back surgery is painful in itself for up to a year or more - and the nerve impingement leading to atrophy may actually have been a product of the treatment itself rather than the original injury.

Did Palmer expect to take on the carrier in civil court at the start? Was the intent to get better, or get money?

To be blunt, the 5th District was not only procedurally correct, but the trial judge, Molberg, appeared to have stepped outside his role of independent jurist by resuscitating Palmer's pleading failure.

The full story with links to the 5th District's opinion and the parties' briefs is on WorkCompCentral.

Contracting Workers

One reason formal employment statistics aren't growing as robustly as economists had predicted post Great Recession is that so much of the economy has stayed underground.

Research group Economic Roundtable released a report around Labor Day in which the authors concluded that the number of "informal" employees − those either unreported or misclassified as independent contractors − working in construction in the Golden State has grown 400% since 1972 to a total of 143,900 in 2011 − 16% of the state's construction workforce. Of that number, 104,100 workers were unreported to state regulators and 39,800 were misclassified.

Construction is one of the keystone industries in California, and in many other parts of the country, that were particularly hard hit in the recession which was precipitated by bad housing loans.

After the 2007 recession, the report showed that the number of informal workers increased year-over-year while the number of formal employees dropped.

“They take these jobs out of economic necessity, which happened a lot in the great recession, or they leave the industry,” study author Yvonne Yen Liu said.

The cost to the workers' compensation industry was estimated at $264 million just in 2011 - this is a cost that the rest of legitimate, properly reporting, employers in all industries share in keeping the workers' compensation system afloat.

Probably worse, however, is that this population lacks work injury protection (though maybe, as one might gather from some of my recent posts that may not be such a bad thing...).

And of course misclassified and unreported workers create a loss of tax revenue and a lack of contributions to health care programs like Medicare.

Yen Liu said the study, which draws on 40 years of data from federal and state statistics, illustrates the informal labor issue clearer than ever before.

"Employee? Whatever ... I just want to work."

The study recommends that general contractors, not just subcontractors, be held liable for misclassifying or not reporting employees.

A bill aimed at doing just that, Assembly Bill 1897, passed the Assembly in May and the Senate on Wednesday.

Contractors, of course, oppose the bill, stating that the industry doesn't need more regulation, but tighter enforcement.

Tom Holsman, chief executive officer for the Associated General Contractors of California, said California’s legal and regulatory system make it difficult for construction companies to comply with the law, citing as an example penalties for hiring undocumented workers.

He also says it's too difficult for contractors to determine whether one is an independent contractor or must be classified as an employee because California's legal test used to draw that distinction consists of 25 questions, where in other states it’s usually comprised of between six and 12.

I'm calling balderdash on Holsman's statement. The test, at least for workers' compensation purposes which is the most liberal of standards when it comes to employment relationships, is really, really easy: direction and control of the labor provided.

There are some questions that one can ask to help provide a clearer answer, but any questionable answer is easily resolved by defaulting to a liberal interpretation of employment relation.

The only time there is a question, it seems, is if a contractor is trying to improve his profit margin.

Large contractors that do government work don't seem to have this problem because they get severely penalized for lying and can be banned from government work in the future. Most construction work is done by small contractor firms.

AB 1897 is the legislature's attempt to make private industry do the government's job. My guess is that isn't going to work because the benefit of falsifying employment validation reports is greater than the potential cost.

In addition, AB 1897 doesn't apply to "employers" with work forces of less than 25 (inclusive of contracted labor), and it applies not to just contractors but to any business that might employ contract labor (my neighbor's farm for instance).

AB 1897 isn't needed. The government just needs to do its job enforcing existing laws and regulations. And contractors need to quell their profit expectations.

Stop Whining, Do Something

The Labor Day holiday weekend gave me a couple extra days to think and write - excuse the length of this entry.

My post, "The Word Didn't Get There," generated a lot of commentary. Some agreed with the post, and some disagreed.

Several said I need to stop picking on the insurance companies and claims administrators, some wanted to know more information about who, what and when, presumably for some legal attention.

One person even said they were going to cancel their WorkCompCentral subscription because I was being too hard on insurance companies.

And some said I was being too soft - that quite simply the insurance or third party administrator folks are just capitalists doing their jobs maximizing profits for shareholders so they're not to blame; and they're also not to be relied upon for corrective leadership either.

"You can stop bitching at the professionals that participate in the System to ‘do better,'" I was told. "They are all Capitalist and their job is to maximize their profits. It is the job of the government to regulate what is ‘fair and reasonable’."

On the heels of that, another insurance professional contacted me to point out that a big travesty of the workers' compensation system is how the law permits the shifting of system liabilities on to greater tax payer funded systems.

In California, for instance, there is a capitation on the maximum amount of temporary total disability time - in general it is 104 weeks (unless the injury falls within the statutory catastrophic categories).

I'm told, "the 104 week CAP from what I've seen is like a license for employers, carriers, and TPAs simply to refuse payment of benefits because - no matter what happens - the worst case scenario is 104 weeks of TTD.  Meanwhile, EDD [Employment Development Department for those not in California - responsible for administration of the state disability system] pays, followed by Social Security benefits."

According to this professional, "I've reviewed several cases on which the dates of injury are, at the very least, 5 years old and the applicant has been TTD for most of the time, beyond 104 weeks.  But who really cares?  Case denied (although ultimately found industrial) and still no payment of TTD because it doesn't matter - in the end, only 104 weeks will be due.  Meanwhile, injured workers are financially ruined, not to mention, suffering from the physical and in many cases, the emotional effects of their injuries."

Advocates and supporters of the insurance and TPA industries are going to say these are isolated incidences, and that the industry does a good job of ensuring compliance.

But why should there be ANY isolated cases? Just because we make mistakes? 

What if it were YOU on the receiving end of a mistake? What if it were YOUR money, YOUR treatment, YOUR life?

The California Division of Workers' Compensation has an Audit Unit and each year they publish a report on the "success" of the industry to meet its obligations. But every year there is widespread failure documented.

You may argue that the term "widespread failure" is inaccurate. After all, the Audit Unit in its last report from 2012 reviewed 3,445 files resulting in 4,690 violations. Some of these audits are random but by regulation most audits occur via some complaint or because the subject failed an audit last time.

There are penalties for failing to process a claim in compliance with law. But even if a penalty is assessed, it might not be subject to payment (sort of like getting a parking ticket that you might not have to pay). 

In the Audit Unit's small 2012 sampling, penalties would have been $1,273,489. But 83% were "not subject" to payment.

Remember that the $1.2 million in penalties was derived on a survey of only 3,445 files. To me, that's pretty significant.

In 2012 the unpaid indemnity in the audited files averaged $1,078.18 – the prior two years were $1,530.27 and $1,468.87 for 2010 and 2011, respectively. So if these statistics are taken at face value then one could argue that compliance is improving and that the industry is doing a better job at meeting is obligations.

Or is it?

While we can't extrapolate the compliance numbers directly to the bigger picture because audits are triggered by regulation to occur on some earlier findings of misfeasance - not all audits are completely random as I noted - we can use these numbers for illustration of how big an issue this likely is.

Let's assume that the audit findings of unpaid/underpaid/late-paid indemnity is applicable to just 10% of all cases (which is likely too small from the anecdotes I get every day). In California nearly 500,000 new litigation cases are filed every year, and we know that quite often litigation is initiated because someone isn't getting their money, or isn't getting it in a timely manner...

But, using 10% as a hypothetical, that's about 50,000 cases ("about" because 500,000 total cases isn't accurate - again, just illustrating a point). If the average unpaid indemnity of $1,078.18 is applied to those 50,000 cases, now we're talking nearly $54 MILLION dollars, just in California, that injured workers (or their beneficiaries) didn't get.

And that $54 million obligation likely got pushed on to EDD and then Social Security.

A complaint I hear from the claims adjuster side of the business is that most of their claims handling experience is all compliance related - all of the forms, reporting, data inputting, crossing tees and dotting eyes, takes time away from the proper administration of claims.

But when I look at these kind of numbers, it seems to me that there isn't nearly enough emphasis on compliance.

And maybe the compliance burden is just an excuse. Maybe the truth is that the reason compliance is such a burden is because case loads are too high to do effective work.

I received a different email from yet another former claims adjuster, who is now going to law school. She relates a story similar to those above, where quality claims work is "rewarded" by the supervisor with case load manipulation so that the executives think the numbers are reasonable based on the case load report. But after the report was delivered the numbers were shifted around to punish or burden the adjuster.

Or maybe the manipulation was just to "meet the numbers" so the supervisor looked good to the executives.

This particular adjuster complained to upper level executives and to state officials (NOT in California by the way!), but the conduct continued. So she quit and will be a lawyer next year...

All of which makes me think that maybe government isn't doing it's job. Workers' compensation is for the most part a compulsory, mandatory system - enforcement therefore is the government's job.

Sure there are laws and regulations by which the government plays by to regulate the industry, but perhaps these regulations are inadequate and don't give the government enough teeth to FORCE compliance 100% of the time.

I know I'm going to hear that 100% compliance isn't reasonable and is unachievable.

That's shirking responsibility and making excuses. I hate excuses. 

Industries all over the world seek and many achieve 100% compliance on a variety of service or manufacturing standards. The workers' compensation industry shouldn't be any different, and in fact, should be held to a more strict standard since it is the LIVES of PEOPLE that we are dealing with.

The flip side of the coin is, of course, that recipients can't be trusted either to report concurrent income, or go back to work timely, etc. But that's why we have certain systems in place and guidelines to help determine whether any particular individual is an outlier and needs to be treated differently, or be reviewed for potential abuse.

Here's a big problem with enforcement and compliance - fear of industry retribution. People on the front lines, the ones that are actually doing the work, want to keep their jobs. They are fearful of speaking out. These are people that are passionate about the mission of workers' compensation, and want to continue working in the industry.

I hate big government. I come from a perspective that reasonable people will behave reasonably and don't require Big Brother to keep them straight.

Unfortunately not all people are reasonable, nor do all people behave reasonably.

The reason insurance, and workers' compensation in particular, is so heavily regulated is because of the potential for harm and abuse is huge. Poet Oscar Wilde wrote, "I can resist everything except temptation." Temptation drives bad behavior. Regulators, i.e. the government, are there to protect the public from bad behavior - would it not be reasonable then to expect that government act more forcefully to trim temptation?

One person wrote me with what may be perceived as a radical idea - that all cases, 100% of them, be audited; that funding for this state action might initially cost about $50 million (hmmm - isn't that about what is probably being denied injured workers?) but after the industry adjusted to this oversight the cost would go down; and the cost would be funded by penalties that are ACTUALLY COLLECTED (i.e. mandatory payment or lose the license).

I'm not sure this is a workable idea, by the way, but the employer (that's right EMPLOYER) advocate that raised this idea insists that it could work and that it wouldn't have to be in place for long for insurance companies to understand that 100% compliance was compulsory, just like the rest of work comp.

Industry leaders over the past couple of months have been expanding on the idea that workers' compensation needs to rebrand itself in the public's eye if it is to attract new top talent from the millennial generation. The industry needs to be seen as helping others in times of need rather than as an industry or system that is antithetical to Robin Hood: take from the poor and keep it.

How is the industry to honestly promote brand identity of "doing good" when the actuality is far different? Do you think the millennial generation is that stupid?

100% compliance should be the goal of every claims house. Forced audit of every file could be a good mechanism if I thought that government could pull it off - but I don't have any confidence that would happen (brings to mind the phrase, "close enough for government work...").

Certainly, however, broader, stronger, and more effective auditing and financial penalties, up to and including revocation of insurance or claims administration licensure, should be implemented so the industry understands that government, The People, are serious about workers' compensation delivering the value that employers pay for, and workers rely upon.

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Post script - Rafael Gonzalez, VP at Helios, posted on Linked In that, "Of the individuals receiving SS disability benefits in 2012 in US, 1.4 mill (12.8% of all 10.9 mill beneficiaries, or 15.9% of 8.8 mill disabled workers) had a connection to work comp. www.nasi.org"

So I did some quick research: 

A prior study funded by the SSA concluded that various state WC reforms during the 1990s contributed to a 3-4% growth in SSDI payments.(http://www.ssa.gov/policy/docs/ssb/v72n3/v72n3p69.html)

In 2012 about 12.7 million people got SSD. 3.5 million got supplemental security income, and 1.4 million got both. The gross population for these benefits is 12.7 million.

For those ages 18-64 (i.e. our working age population) there were gross of 8.4 million WORKERS receiving one or both types of benefits, totaling over $13 billion dollars in 2012.
(http://www.ssa.gov/policy/docs/statcomps/di_asr/2012/sect05.html#table66)

So let's do the easy math - 16% of $13 billion means that work comp was successful in off loading it's indemnity obligation to government social programs to the tune of $2.56 billion dollars.

And we're going to argue about whether on not work comp does it's job????

Pain, MRIs and Disability

Another study sponsored by Liberty Mutual concludes that early magnetic resonance imaging for diagnosis of back pain leads to higher costs and poorer outcomes.

The study, published in the August issue of the medical journal Spine, showed that when back pain patients went through MRI scans within the first month after injury, they were between 18 to 55 times as likely as the reference group to receive more diagnostic and invasive procedures.

Glenn Pransky, a co-author of the study and director of the Liberty Mutual Center for Disability Research, said that that MRIs can put patients in a mindset of trying to find a specific problem in their back and then seeking to fix it.

“People get hung up on thinking, ‘Oh, I’ve got this ruptured disc. That must be the problem. I won’t be well until somebody fixes that ruptured disc,’” Pransky said.

As many of us know, herniated discs and other spinal "abnormalities" are actually quite common.

Pain is complex, and the cause of pain is often illusive.

In an Aug. 20 webinar from managed care company Paradigm Outcomes, two physicians pointed out that pain can come from many places.

"When you look at somebody’s pain, they have the pain sensation − there could be nerve pain, there could be soft tissue-muscle-tendon pain," said Steven Moskowitz, senior medical director of Paradigm’s pain program. "They could have pain because they’re deconditioned and out of shape and stiff, and so it hurts to be stiff and to move when you’re stiff. And then they can have the emotional components of catastrophizing and being fearful of activity.”

Bowzer's pain started bending over for his cigar.

In his most recent book, Living Abled and Healthy, Christopher Brigham, MD, no stranger to workers' compensation and lead editor to the AMA 6th Ed. Guide for Rating Permanent Disability, examines people that have had catastrophic injuries or who grew up "less than able" but overcame these difficulties, and compares to folks who can't seem to surmount such obstacles.

[Disclosure - Brigham is a friend and I contributed a small part to the book.]

Brigham argues that our mind-body connections are surprisingly strong and that people in general discount the effect our emotions, psychology, feelings, perceptions, affect our physical being.

"If we believe something is helping us we will likely feel better. If we believe something is hurting us we will likely feel worse. Our attitudes define who we are and the choices we make determine our destinies."

Robert Aurbach, an attorney, researcher and international work comp expert now consulting in Australia, has noted that neuroplasticity - the brain's ability to reorganize itself by forming new neural connections - can play a big role in one's perception of ability versus disability.

Essentially, continued "training" to be disabled, rather than abled, forms neural connections that reinforce negative associations with pain.

The extent to which early MRIs contribute to the perception and emotion of disability has yet to be fully quantified, but the Liberty Mutual study suggests that it is not insignificant.

According to a 2013 report from the Bureau of Labor Statistics, sprains, strains and tears made up 38% of work-related injuries in 2012, making those the most common source of claims. In that category, the back was the most-often injured body part, making up 36% of sprains, strains and tears.

Essentially that means that 1/6th of all work injury claims are comprised of back related pain issues. How many of those end up worse because of diagnosis and treatment fostered by early MRI findings that might have otherwise been adequately (and perhaps more effectively and efficiently) treated conservatively isn't known but I suspect it is considerable.

The authors of the Liberty Mutual study found that MRI use for lower back pain patients wasn’t distributed evenly across the U.S. and they hope to continue the study to determine whether certain states are more prone to improper use of the scans.

I think it would also be interesting and beneficial to correlate that study with data and information about disability rates; my guess is that we (the grand collective "we") make people more disabled than they otherwise would be in our zeal to use medical technology and attempt to find easy answers to complex problems, like pain and disability.

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I'm taking tomorrow, Friday August 29, and of course Monday, September 1, off for the Labor Day weekend and will return on Tuesday September 2. Remember that without the labor of the people in this country there would be no need for workers' compensation.

Drug Testing En Masse Risky

A federal appellate court gave a pyric victory to an employer in Tennessee, remanding a case back to the trial level because the reasons for mass drug testing of its workforce might have a reasonable basis and not be violative of the Americans with Disabilities Act; that it was an issue for the jury and not the judge.

Dura Automotive Systems is a manufacturer of glass windows for cars, trucks, and busses. Its facility contains a variety of heavy equipment and active machinery, including high-temperature injection molds, presses, air powered tools, cutting machines, die casts, fork lifts, tow motors, hi-lo lifters, and portable cranes.

Between the end of 2006 and early 2007, the company claimed, workers at its Lawrenceburg, Tennessee plant experienced substantially more work-related accidents than Dura's other facilities. Several employees allegedly also tested positive for controlled substances after their accidents.

Dura said that Lawrenceburg police had alerted its local management of illicit drug activity taking place at the plant.

The company decided to implement a new substance-abuse policy, which appeared in the March 2007 revision of the employee handbook and a July 2007 document issued by the company’s human resources department.

Pursuant to this policy, Dura reserved the right to conduct drug tests on its employees, and employees were expressly prohibited from “being impaired by or under the influence” of alcohol, illegal drugs, prescription medications, or over-the-counter drugs, if the use of such drugs endangered others or affected their job performance.

In May 2007, Dura ordered a plant-wide drug screening of the Lawrenceburg facility’s more than 400 employees. Dura hired Freedom From Self to administer the drug tests to its workforce.

Dura instructed FFS to test for 12 substances—amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates,oxycodone, phencyclidine, and propoxyphene—some of which appear in prescription medications.

Velma Bates, Claudia Birdyshaw, Mark Long, John Toungett, Carolyn Wade, Richard White and Willarene Fisher had all worked for Dura at its Lawrenceburg plant.

Between them, Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher, had prescriptions for oxycodone, Cymbalta, Didrex, Lortrab, Soma, and Xanax. They claimed that their use of these medications was what yielded positive results on the FFS drug test.

Dura placed all workers who tested positive on a 30-day leave of absence and instructed them to inform FFS if they were taking any prescription medications that contained the prohibited drug compounds.

An FFS employee then identified which of the medications carried a warning from the manufacturer for users not to operate dangerous machinery while taking the drug. FFS relayed this information to Dura, which informed the employees taking the medications that they would be terminated if they continued to use the drugs. However, if the employee tested negative after a second drug test, Dura said the worker would be allowed to return to work.

Wade and Fisher complied with the requirement and Dura reinstated them to their positions. But the remaining plaintiffs continued to take their medications and Dura fired them after they again tested positive.

After the drug testing, Dura claimed, the accident rate and amount of property damage at the Lawrenceburg facility decreased.

Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher filed a complaint against Dura in May 2008 alleging the company had violated the ADA by subjecting them to an unlawful drug screening and then terminating them on the basis of their disabilities, or perceived disabilities.

There is some procedural history where the case goes back and forth between the trial court and the appellate court to resolve issues such as standing to sue, reclassification under different portions of the ADA and other issues.

Ultimately the trial judge found that Dura's drug testing of its workforce qualified as a medical examination or disability inquiry, in violation of Section 12112(d)(4), as a matter of law. The jury then returned a verdict collectively awarding the plaintiffs over $870,000 in damages.

On appeal, Dura argued that its drug testing had screened for substances that were "either illegal or, even if legally prescribed and used, may impair an individual’s mental alertness or motor skills" thus constituting an unreasonable business risk given the busy factory and heavy machinery, thus the drug testing was "job-related and consistent with business necessity."

The plaintiffs said that Dura's "plea for safety inside the front door of the plant," was a merely a pretense for conducting a drug test protocol that "was designed to seek information on possible weaknesses in employees." Thus, they said, the "substance screen as practiced by Dura Automotive Systems was a medical exam."

The 6th Circuit said the issue was not so clear-cut and that the issue of whether Dura violated the ADA should have gone to the jury and could not be found as a matter of law.

"Much depends on Dura’s credibility," the court said, stating it was possible a jury could see Dura’s explanation as a pretext, or find that the drug test had targeted information about employees' physical or mental health, regardless of Dura’s stated intent.

But it was not a matter of law that Dura violated the ADA.

The case is Bates et al. v. Dura Automotive Systems, No. 11-6088.