Oregon passed this year, effective January 1, 2012, an interesting law in an attempt to regulate the complex relationship between medical providers and those responsible for paying for workers' compensation medical bills.
The law gives the Workers' Compensation Division authority to fine an individual or firm for attempting to direct care without proper certification. The only option for directing the care of injured workers in Oregon is through managed care organizations certified by the Department of Consumer and Business Services, the parent agency of the Workers' Compensation Division.
There are only five certified organizations operating in Oregon, but they provide about 40% of the treatment to injured workers.
In addition to directing care, managed care organizations can negotiate discounted rates with providers pursuant to ORS 656.248.
The Division implemented rules prohibiting carriers from using PPO rates for workers' comp without a contract signed by the provider and filed with the division. The contract must apply only to workers' compensation treatment, and the discount can't exceed 10%.
Providers were complaining in 2008 that preferred provider organization rates for group health were being applied to workers' compensation payments without their knowledge.
These laws are interesting because according to lawsuits recently filed insurance carriers in Oregon were improperly contracting for reimbursement rates below the state's medical fee schedule.
The suits allege that carriers are reimbursing procedures for treating injured workers at rates negotiated for group health. Providers agree to the discounted rates for group health because insurers are allowed to direct care, according to the attorney who filed these cases in an interview with WorkCompCentral.
But that is not the case in workers' compensation - as noted above, only in managed care organizations can the carrier direct care.
So the key to discounting of medical fees is, according to this logic, who gets to direct care. If the provider gets to direct care then the provider must be paid at fee schedule. If the carrier directs care then the provider gets paid according to the contracted rate.
I'm not sure I understand this logic and I'm sure someone will enlighten me.
I point out this situation as an example of how something perceptibly simple - paying the bill - can get convoluted and complex well beyond the lay person's understanding when the term "workers' compensation" intervenes.
The lawsuits are Lincoln City Physical Therapy LLC v. Travelers Casualty and Surety Co. et al., filed Dec. 2, and Erhardt Physical Therapy and Sports Medicine P.C. v. Liberty Mutual Fire Insurance Co. et al., filed Nov. 29.
Monday, December 12, 2011
Thursday, December 8, 2011
Just Because We Can Doesn't Mean We Should
In a blog editorial in the most recent issue of Harvard Business Review (HBR), co-founder of Fast Company Magazine, Bill Taylor, reminds us that "just because you can doesn't mean you should."
Taylor cites the recent public relations snafu by Bank of America when it announced, then later withdrew amongst well publicized customer outcry, a $5 fee to use it debit cards.
BofA executives reasoned that changing accounts was too much of a hassle and that eventually customers would just accept the fee.
As Taylor points out, this fractured logic, in the sole name of corporate profits and for no other purpose, was deficient. He cites the conclusion of the New York Times as a clear statement of his case, "The revenue the bank expected to raise from the debit fee was not worth the damage to its reputation."
Taylor goes on to discuss what he calls "one of the most subversive articles ever published" in HBR: "Companies and the Customers Who Hate Them."
The article, Taylor explains, was written by a couple of very big business people and a Harvard Business School professor, and concludes, "One of the most influential propositions in marketing, is that customer satisfaction begets loyalty, and loyalty begets profits. Why, then, do so many companies infuriate their customers by binding them with contracts, bleeding them with fees, confounding them with fine print, and otherwise penalizing them for their business? Because, unfortunately, it pays. Companies have found that confused and ill-informed customers, who often end up making poor purchasing decisions, can be highly profitable indeed."
I read that paragraph and immediately thought of workers' compensation - a system that infuriates its customers (workers and their employers) with binding contracts (networks and policies), confounding fine print (the micro-social regulation built into our systems) and penalizing them for their business (workers with needless disability; employers with needlessly inflated experience modification factors).
Yes, keeping our customers confused and ill-informed pays. They make poor purchasing decisions (e.g. surgery for regional low back pain where there is no other clinically significant indications) which creates outsized profits for everyone along the buffet line.
Taylor quotes the earlier HBR article, "Businesses that prey on customers are perpetually vulnerable to their pent-up hostility. Sometimes all it takes to drive mass defection is the appearance of a customer-friendly competitor."
I wrote earlier that Oklahoma may start a national trend with the pending experiment of a Texas-based non-subscription offering. My interest is whether this is a model that will provide discernable, increased, value to our customers and whether by doing so we will see defection from our current centenarian system to a more customer friendly competitor.
"Hopefully, as we put the finishing touches on a lousy year, we can all learn to distinguish between economic value and human values, between what we can do and what we should do," Taylor concludes. "Those distinctions might produce fewer customers who hate us, and lots more who love us."
We all know that change is in the air. Because of the enormity of our industry, and its age, such change doesn't come quickly, but surely we are in for different times.
The Oklahoma experiment will face tremendous lobbying obstacles, no doubt, because those whose mind set is based on the "because we can" sentimentality make no distinction in the provision of value versus extraction of short term profits.
Taylor counsels, "Real leadership is about embracing the 'values proposition' — doing the right thing at all times, and figuring out how to build a great business around that unwavering promise."
I know I'm preaching to the choir in this blog - those of you who read this are already on board in providing value to our customers. Your mission: to extol the philosophy of value to others and remind them that just because we can doesn't mean we should.workers compensation, work comp, injured worker
Taylor cites the recent public relations snafu by Bank of America when it announced, then later withdrew amongst well publicized customer outcry, a $5 fee to use it debit cards.
BofA executives reasoned that changing accounts was too much of a hassle and that eventually customers would just accept the fee.
As Taylor points out, this fractured logic, in the sole name of corporate profits and for no other purpose, was deficient. He cites the conclusion of the New York Times as a clear statement of his case, "The revenue the bank expected to raise from the debit fee was not worth the damage to its reputation."
Taylor goes on to discuss what he calls "one of the most subversive articles ever published" in HBR: "Companies and the Customers Who Hate Them."
The article, Taylor explains, was written by a couple of very big business people and a Harvard Business School professor, and concludes, "One of the most influential propositions in marketing, is that customer satisfaction begets loyalty, and loyalty begets profits. Why, then, do so many companies infuriate their customers by binding them with contracts, bleeding them with fees, confounding them with fine print, and otherwise penalizing them for their business? Because, unfortunately, it pays. Companies have found that confused and ill-informed customers, who often end up making poor purchasing decisions, can be highly profitable indeed."
I read that paragraph and immediately thought of workers' compensation - a system that infuriates its customers (workers and their employers) with binding contracts (networks and policies), confounding fine print (the micro-social regulation built into our systems) and penalizing them for their business (workers with needless disability; employers with needlessly inflated experience modification factors).
Yes, keeping our customers confused and ill-informed pays. They make poor purchasing decisions (e.g. surgery for regional low back pain where there is no other clinically significant indications) which creates outsized profits for everyone along the buffet line.
Taylor quotes the earlier HBR article, "Businesses that prey on customers are perpetually vulnerable to their pent-up hostility. Sometimes all it takes to drive mass defection is the appearance of a customer-friendly competitor."
I wrote earlier that Oklahoma may start a national trend with the pending experiment of a Texas-based non-subscription offering. My interest is whether this is a model that will provide discernable, increased, value to our customers and whether by doing so we will see defection from our current centenarian system to a more customer friendly competitor.
"Hopefully, as we put the finishing touches on a lousy year, we can all learn to distinguish between economic value and human values, between what we can do and what we should do," Taylor concludes. "Those distinctions might produce fewer customers who hate us, and lots more who love us."
We all know that change is in the air. Because of the enormity of our industry, and its age, such change doesn't come quickly, but surely we are in for different times.
The Oklahoma experiment will face tremendous lobbying obstacles, no doubt, because those whose mind set is based on the "because we can" sentimentality make no distinction in the provision of value versus extraction of short term profits.
Taylor counsels, "Real leadership is about embracing the 'values proposition' — doing the right thing at all times, and figuring out how to build a great business around that unwavering promise."
I know I'm preaching to the choir in this blog - those of you who read this are already on board in providing value to our customers. Your mission: to extol the philosophy of value to others and remind them that just because we can doesn't mean we should.workers compensation, work comp, injured worker
Professional Sports and the Relevancy of Comp
Professional sports represents an odd situation for workers' compensation schemes. There is a high degree of risk of injury or even death, especially for the more violent sports such as football, or sports involving speed and/or endurance such as cycling.
Work in professional sports really comes down to being all about performance on play day. Enhancements to performance are encouraged except to the extent that enhancements may be outlawed either by the sports governing body or by law (and even then enhancements are encouraged, just more quietly, as we have seen throughout the history of cycling).
Like most jobs the worker in professional sports has a "shelf life" but this is typically much, much shorter than the average nine-to-fiver. Consequently for the short life of a professional athlete the pay grade must be much higher on a per unit basis than the nine-to-fiver; and since work comp is based on payroll this inflates the premium (which of course is absorbed by the various income streams).
In professional sports there is tremendous peer pressure to perform despite the athlete's health, or lack there of. And the support crew around the professional athlete encourages and provides assistance to assure top performance at and during show time.
This is because professional sports is big business. Television rights, stadium tickets, food and beverage concessions - all of this adds up to billions of dollars per year in economic activity related to the entertainment of enthusiasts.
Primarily involving football, but applicable to other sports, we are seeing an increase in litigation claiming the practices of sports leagues, which are not a part of the workers' compensation system because the leagues are not the employer - the teams are - seeking redress for what athletes are now claiming to be essentially intentionally inflicted injuries, or in the least a negligent ignorance of the safety for athletes.
This morning WorkCompCentral News reported a new lawsuit filed by eleven National Football League (NFL) players against the league over the use of the drug Toradol, contending that the league ignored the drug's blood-thinning side effects, which enhanced their concussions and other injuries.
"The Toradol label states that 'Toradol inhibits platelet function and is therefore, contraindicated in patients . . . at high risk of bleeding,'" the complaint states. "Toradol is not to be used if the recipient has a closed head injury or bleeding in the brain. 'The bleeding risk of Toradol is an utmost concern in collision sports such as football. Even a small increase in bleeding risk can exacerbate high-risk injuries, such as concussions, spinal cord, spleen, and kidney trauma.'"
Marc S. Albert, one of the plaintiffs' attorneys on the case, told our reporter that the exclusive remedy of workers' compensation should not be an issue in the case, because the players have opted to sue the NFL, as opposed to their individual teams. Many players are opting to file civil suits, because teams' workers' compensation carriers are denying claims for concussion-related injuries, Albert said.
"This is an epidemic, it happened in every locker room, it is something the NFL certainly knew about," Albert said of the Toradol use. "It is league practice, so to speak, by every team doctor in every locker room. It is being given in wholesale format, so to speak. It is why the league is the defendant in this case."
The complaint that Albert and his fellow attorneys filed mentions "cattle calls," where groups of players were called to receive Toradol injections shortly before game time, regardless of the type of injuries they had.
The other brain injury suits against the NFL also name as defendants helmet manufacturers and others, and allege negligence about infliction of chronic traumatic encephalopathy (CTE). CTE is a progressive and degenerative disease seen in people who have suffered multiple concussions or other forms of head trauma.
Just yesterday WorkCompCentral reported on the case of National Hockey League star, Derek Boogaard, who died of a drug overdose. According to the story, Boogaard CTE and his doctors said that even if Boogaard had survived his drug overdose he would have probably suffered from dementia-like symptoms.
To complicate matters relative to risk (for both the athlete and the employer/team), there is a trend to limit forums to seek benefits. Florida earlier this year passed a law restricting professional athletes from seeking benefits in states other than where their team is based, the 12th state in the nation to recognize "extraterritorial reciprocity" regarding workers' compensation claims. Michigan yesterday moved a bill through the state senate purporting to do the same thing.
Perhaps what this recent acrimony between athletes and their employers is telling us is that workers' compensation is inadequate to deal with the modern issues of professional sports. I wonder if this is just a small representation of a larger social issue - that work comp is archaic relative to the modern economy and that the risks have changed dramatically.
We know that Texas style non-subscription fans are seeking to change the status quo in neighboring Oklahoma to provide for voluntary protection systems. Is this the new trend to bring health and indemnity programs in line with the new economy ("new" relative to the age of the workers' compensation scheme)? I think it is.
I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10.
Work in professional sports really comes down to being all about performance on play day. Enhancements to performance are encouraged except to the extent that enhancements may be outlawed either by the sports governing body or by law (and even then enhancements are encouraged, just more quietly, as we have seen throughout the history of cycling).
Like most jobs the worker in professional sports has a "shelf life" but this is typically much, much shorter than the average nine-to-fiver. Consequently for the short life of a professional athlete the pay grade must be much higher on a per unit basis than the nine-to-fiver; and since work comp is based on payroll this inflates the premium (which of course is absorbed by the various income streams).
In professional sports there is tremendous peer pressure to perform despite the athlete's health, or lack there of. And the support crew around the professional athlete encourages and provides assistance to assure top performance at and during show time.
This is because professional sports is big business. Television rights, stadium tickets, food and beverage concessions - all of this adds up to billions of dollars per year in economic activity related to the entertainment of enthusiasts.
Primarily involving football, but applicable to other sports, we are seeing an increase in litigation claiming the practices of sports leagues, which are not a part of the workers' compensation system because the leagues are not the employer - the teams are - seeking redress for what athletes are now claiming to be essentially intentionally inflicted injuries, or in the least a negligent ignorance of the safety for athletes.
This morning WorkCompCentral News reported a new lawsuit filed by eleven National Football League (NFL) players against the league over the use of the drug Toradol, contending that the league ignored the drug's blood-thinning side effects, which enhanced their concussions and other injuries.
"The Toradol label states that 'Toradol inhibits platelet function and is therefore, contraindicated in patients . . . at high risk of bleeding,'" the complaint states. "Toradol is not to be used if the recipient has a closed head injury or bleeding in the brain. 'The bleeding risk of Toradol is an utmost concern in collision sports such as football. Even a small increase in bleeding risk can exacerbate high-risk injuries, such as concussions, spinal cord, spleen, and kidney trauma.'"
Marc S. Albert, one of the plaintiffs' attorneys on the case, told our reporter that the exclusive remedy of workers' compensation should not be an issue in the case, because the players have opted to sue the NFL, as opposed to their individual teams. Many players are opting to file civil suits, because teams' workers' compensation carriers are denying claims for concussion-related injuries, Albert said.
"This is an epidemic, it happened in every locker room, it is something the NFL certainly knew about," Albert said of the Toradol use. "It is league practice, so to speak, by every team doctor in every locker room. It is being given in wholesale format, so to speak. It is why the league is the defendant in this case."
The complaint that Albert and his fellow attorneys filed mentions "cattle calls," where groups of players were called to receive Toradol injections shortly before game time, regardless of the type of injuries they had.
The other brain injury suits against the NFL also name as defendants helmet manufacturers and others, and allege negligence about infliction of chronic traumatic encephalopathy (CTE). CTE is a progressive and degenerative disease seen in people who have suffered multiple concussions or other forms of head trauma.
Just yesterday WorkCompCentral reported on the case of National Hockey League star, Derek Boogaard, who died of a drug overdose. According to the story, Boogaard CTE and his doctors said that even if Boogaard had survived his drug overdose he would have probably suffered from dementia-like symptoms.
To complicate matters relative to risk (for both the athlete and the employer/team), there is a trend to limit forums to seek benefits. Florida earlier this year passed a law restricting professional athletes from seeking benefits in states other than where their team is based, the 12th state in the nation to recognize "extraterritorial reciprocity" regarding workers' compensation claims. Michigan yesterday moved a bill through the state senate purporting to do the same thing.
Perhaps what this recent acrimony between athletes and their employers is telling us is that workers' compensation is inadequate to deal with the modern issues of professional sports. I wonder if this is just a small representation of a larger social issue - that work comp is archaic relative to the modern economy and that the risks have changed dramatically.
We know that Texas style non-subscription fans are seeking to change the status quo in neighboring Oklahoma to provide for voluntary protection systems. Is this the new trend to bring health and indemnity programs in line with the new economy ("new" relative to the age of the workers' compensation scheme)? I think it is.
I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10.
Tuesday, December 6, 2011
The Value in Work Comp: Non-discriminating Medical Care
In an editorial in the Los Angeles Times yesterday, Spike Dolomite Ward apologized to President Obama. She had contracted cancer but didn't have health insurance. Then she learned that she could not be discriminated against due to a provision in the President's health care reform law known commonly and derisively as "ObamaCare". The editorial had one telling paragraph that I think is an important message to anyone in the workers' compensation industry:
"If you are fortunate enough to still be employed and have insurance through your employers, you may feel insulated from the sufferings of people like me right now. But things can change abruptly. If you still have a good job with insurance, that doesn't mean that you're better than me, more deserving than me or smarter than me. It just means that you are luckier. And access to healthcare shouldn't depend on luck."
Workers' compensation is, in its purest form, a universal health care system - if you qualify (i.e. get hurt or ill at work) then you get medical care. Care is generally meted out according to guidelines (as in ObamaCare) so there is some loss of control over the direction care goes, but you don't have to pay even a deductible - certainly most people would look upon the beneficence of such as system as a great social value. And there is no luck being qualified for system benefits - if you're employed you're covered.
I read that editorial before reading in the news this morning the story of hockey player Derek Boogaard. Derek didn't think about head injuries playing professional hockey - he cared about "enforcing", a hockey term for being the bad-ass on the ice that takes out other players at the direction of the coach.
Boogaard died at age 28 from a drug overdose. I don't know whether Boogaard had a work comp claim at the time of his death, or whether his drug overdose was related to any work comp treatment regimen (as I had been pointing out with other published case law the past couple of posts here). According to media reports, Boogaard had advanced stages of chronic traumatic encephalopathy (CTE) when he died and his doctor reportedly told the family that if Boogaard had survived his OD he would have had advanced dementia-like symptoms.
At age 28...
The connection I'm making is that the general public has no regard, no understanding of the value of workers' compensation until it is too late. To the business owner workers' compensation is a troubling bill that adds to the expense of doing business, to provide money to deadbeats who would rather not work. To the employee that falls into the system it is a maddening labyrinth of regulations, forms, and adversity that gets in the way of recovery. To the politician workers' compensation is a complex entitlement system that plays well to deal making and grand standing.
Workers' compensation is, in its purest form, a universal health care system - if you qualify (i.e. get hurt or ill at work) then you get medical care. Care is generally meted out according to guidelines (as in ObamaCare) so there is some loss of control over the direction care goes, but you don't have to pay even a deductible - certainly most people would look upon the beneficence of such as system as a great social value. And there is no luck being qualified for system benefits - if you're employed you're covered.
I read that editorial before reading in the news this morning the story of hockey player Derek Boogaard. Derek didn't think about head injuries playing professional hockey - he cared about "enforcing", a hockey term for being the bad-ass on the ice that takes out other players at the direction of the coach.
Boogaard died at age 28 from a drug overdose. I don't know whether Boogaard had a work comp claim at the time of his death, or whether his drug overdose was related to any work comp treatment regimen (as I had been pointing out with other published case law the past couple of posts here). According to media reports, Boogaard had advanced stages of chronic traumatic encephalopathy (CTE) when he died and his doctor reportedly told the family that if Boogaard had survived his OD he would have had advanced dementia-like symptoms.
At age 28...
The connection I'm making is that the general public has no regard, no understanding of the value of workers' compensation until it is too late. To the business owner workers' compensation is a troubling bill that adds to the expense of doing business, to provide money to deadbeats who would rather not work. To the employee that falls into the system it is a maddening labyrinth of regulations, forms, and adversity that gets in the way of recovery. To the politician workers' compensation is a complex entitlement system that plays well to deal making and grand standing.
Each of these people don't appreciate that medical care in workers' compensation is delivered without discrimination, without regard for pre-existing conditions (those may affect indemnity, but not medical care), and at no cost to the recipient - not even a deductible.
Value in workers' compensation is not appreciated by such people, until disaster hits.
Disaster did hit a Texas business when it got stung with a $2.8 million jury verdict for the fatal fall of a worker.
Disaster hit Boogaard and his family with the onset of CTE (and perhaps all of the National League Football players who have brought suit against the league for unsafe equipment).
Disaster almost hit Ms. Ward when she contracted cancer and found that she was uninsured until she realized that she could not be discriminated against for pre-existing conditions in obtaining health insurance.
We're on the inside. People don't see workers' compensation like we do. We work the system daily in our various roles. We know what to expect with the system.
We are lousy at communicating the value of workers' compensation to the general public though.
The next time you're at a cocktail party, or sitting next to someone in an airliner, or wherever, and the conversation inevitably gets to the "so what do you do for a living" course, how do you respond? Like most of us, I bet you start out by saying that you are involved in workers' compensation. Unless you are talking to someone else in the work comp world you'll observe either rolled eyes, a smirk, some look of disdain, or a combination of all three.
Perhaps the response should be something along the lines of, "I help ensure the delivery of value in the biggest, most comprehensive medical care delivery system in the world," and that you are proud that the delivery of medical care is without regard to prior condition, or discrimination.
And that the value you provide keeps Americans working in America at American jobs.
Value in workers' compensation is not appreciated by such people, until disaster hits.
Disaster did hit a Texas business when it got stung with a $2.8 million jury verdict for the fatal fall of a worker.
Disaster hit Boogaard and his family with the onset of CTE (and perhaps all of the National League Football players who have brought suit against the league for unsafe equipment).
Disaster almost hit Ms. Ward when she contracted cancer and found that she was uninsured until she realized that she could not be discriminated against for pre-existing conditions in obtaining health insurance.
We're on the inside. People don't see workers' compensation like we do. We work the system daily in our various roles. We know what to expect with the system.
We are lousy at communicating the value of workers' compensation to the general public though.
The next time you're at a cocktail party, or sitting next to someone in an airliner, or wherever, and the conversation inevitably gets to the "so what do you do for a living" course, how do you respond? Like most of us, I bet you start out by saying that you are involved in workers' compensation. Unless you are talking to someone else in the work comp world you'll observe either rolled eyes, a smirk, some look of disdain, or a combination of all three.
Perhaps the response should be something along the lines of, "I help ensure the delivery of value in the biggest, most comprehensive medical care delivery system in the world," and that you are proud that the delivery of medical care is without regard to prior condition, or discrimination.
And that the value you provide keeps Americans working in America at American jobs.
Compensable Consequence: Dogs versus Drugs
An injury that occurred when an injured worker's dog pulled away from him, causing his shoulder surgery to fail, is compensable, because it was a direct and natural consequence of the original work injury, the Tennessee Supreme Court, Special Workers' Compensation Appeals Panel ruled in Kirby v. Memphis Jewish Nursing Home, W2010-02261-WC-R3-WC, 12/01/2011.
David Kirby was employed as a heating, ventilation and air conditioning technician for the Memphis Jewish Nursing Home. He injured his shoulder on Sept. 24, 2008, when he slipped on some stairs while climbing down from a roof.
Kirby underwent surgery to repair a torn labrum and biceps tendon. He underwent physical therapy after the surgery and was progressing well until late September 2009, when he returned home and found one of his dogs off the leash and loose. Kirby grabbed the dog's collar, but the dog tried to run away, pulling on his shoulder. Kirby felt pain immediately and visited his doctor.
The dog's pull had caused Kirby's tendon to tear again, creating what orthopedists call a "Popeye" deformity to the biceps. Kirby and his doctor decided it was best not to perform any additional surgery. Kirby applied for workers' compensation benefits.
I find the Kirby case analogous to drug overdose cases that I had been highlighting recently.
A couple of days ago a reader challenged my opinion that a court was correct in finding compensable a worker's death due to drug overdose.
Change the facts in the above case a little to read that every time the worker felt pain due to his shoulder injury he popped another Oxycontin - and finally ingested enough to overdose.
How is taking medication prescribed by a treating physician - albeit outside of prescribed dosage - different than exceeding the physical limits of a freshly repaired body part?
One could argue that taking too much medication is voluntary - but then again grabbing a dog's collar is also voluntary. One could argue that taking too much medication is known to cause death and/or further disability - but then again it is reasonably foreseeable (one of those terms you learn as a first year law student) that grabbing a dog's collar after surgical correction could also lead to further injury of the shoulder.
In the Kirby case, the employer argued that Kirby's negligence had caused the second injury, breaking the chain of causation.
The appellate court's opinion noted that Kirby's physician had encouraged Kirby to "push past his limits" in order to improve his range of motion. The doctor had not advised Kirby to avoid walking his dog and had testified that failure is one of the risks of shoulder surgery. The court determined that the second injury was, therefore, a direct and natural consequence of the original injury.
In drug overdose cases, particularly the couple that I have observed in the past few posts, the employer argues that taking too much medication is outside the employer's control and is purely voluntary on the part of the employee.
Where do you draw the line on control? The employee's physicians had provided prescriptions for narcotics for pain. The physicians, per the prescriptions, had placed a limit on the quantity of drugs to be taken. One of the risks of these drugs is death if taken in excessive quantities or mixed with other drugs or alcohol. I'm reasonably sure that there are warnings on the labels of these drugs per FDA regulation.
I think it is helpful to think of workers' compensation as the first real universal health care system, albeit applicable only to people that are employed. You get hurt at work, your medical is covered. If one thinks of workers' compensation in those terms then compensable consequence cases are easier to understand.
In the Kirby case, a not yet completely healed should injury was still the responsibility of the employer even though the re-injury was due to a non-employment event because the universal health care rationale of workers' compensation dictates that result.
In drug overdose cases, a not yet completely healed worker is still the responsibility of the employer even though excess pharmaceutical intake is a non-employment event because the universal health care rationale dictates that result.
I don't like this result, but I have a hard time arguing against it until we change our culture of surgery and drugs as the cure of all that ills us.workers compensation, work comp, injured worker
David Kirby was employed as a heating, ventilation and air conditioning technician for the Memphis Jewish Nursing Home. He injured his shoulder on Sept. 24, 2008, when he slipped on some stairs while climbing down from a roof.
Kirby underwent surgery to repair a torn labrum and biceps tendon. He underwent physical therapy after the surgery and was progressing well until late September 2009, when he returned home and found one of his dogs off the leash and loose. Kirby grabbed the dog's collar, but the dog tried to run away, pulling on his shoulder. Kirby felt pain immediately and visited his doctor.
The dog's pull had caused Kirby's tendon to tear again, creating what orthopedists call a "Popeye" deformity to the biceps. Kirby and his doctor decided it was best not to perform any additional surgery. Kirby applied for workers' compensation benefits.
I find the Kirby case analogous to drug overdose cases that I had been highlighting recently.
A couple of days ago a reader challenged my opinion that a court was correct in finding compensable a worker's death due to drug overdose.
Change the facts in the above case a little to read that every time the worker felt pain due to his shoulder injury he popped another Oxycontin - and finally ingested enough to overdose.
How is taking medication prescribed by a treating physician - albeit outside of prescribed dosage - different than exceeding the physical limits of a freshly repaired body part?
One could argue that taking too much medication is voluntary - but then again grabbing a dog's collar is also voluntary. One could argue that taking too much medication is known to cause death and/or further disability - but then again it is reasonably foreseeable (one of those terms you learn as a first year law student) that grabbing a dog's collar after surgical correction could also lead to further injury of the shoulder.
In the Kirby case, the employer argued that Kirby's negligence had caused the second injury, breaking the chain of causation.
The appellate court's opinion noted that Kirby's physician had encouraged Kirby to "push past his limits" in order to improve his range of motion. The doctor had not advised Kirby to avoid walking his dog and had testified that failure is one of the risks of shoulder surgery. The court determined that the second injury was, therefore, a direct and natural consequence of the original injury.
In drug overdose cases, particularly the couple that I have observed in the past few posts, the employer argues that taking too much medication is outside the employer's control and is purely voluntary on the part of the employee.
Where do you draw the line on control? The employee's physicians had provided prescriptions for narcotics for pain. The physicians, per the prescriptions, had placed a limit on the quantity of drugs to be taken. One of the risks of these drugs is death if taken in excessive quantities or mixed with other drugs or alcohol. I'm reasonably sure that there are warnings on the labels of these drugs per FDA regulation.
I think it is helpful to think of workers' compensation as the first real universal health care system, albeit applicable only to people that are employed. You get hurt at work, your medical is covered. If one thinks of workers' compensation in those terms then compensable consequence cases are easier to understand.
In the Kirby case, a not yet completely healed should injury was still the responsibility of the employer even though the re-injury was due to a non-employment event because the universal health care rationale of workers' compensation dictates that result.
In drug overdose cases, a not yet completely healed worker is still the responsibility of the employer even though excess pharmaceutical intake is a non-employment event because the universal health care rationale dictates that result.
I don't like this result, but I have a hard time arguing against it until we change our culture of surgery and drugs as the cure of all that ills us.workers compensation, work comp, injured worker
Sunday, December 4, 2011
Pennsylvania Case of Back Pain and Another Tragic Outcome
Another tragic case of drug overdose in a workers' compensation setting was reported this morning in WorkCompCentral news.
In finding the overdose a compensable consequence, the court in the Pennsylvania case of J.D. Landscaping v. WCAB (Heffernan), No. 1866 CD 2010, 12/2/11 turned down the employer's argument, stating:
"In arguing that the Board and the WCJ nevertheless erred in granting Claimant’s fatal claim petition because of the June 4, 2007, UR determination, Employer contends, in essence, that there can be no causal relationship between a decedent’s death and a work-related injury where a decedent dies as a result of medical treatment deemed by a UR determination to be neither reasonable nor necessary. Employer misconstrues the import of a UR determination."
The court explained that UR determines whether treatment is "reasonable and necessary," which differs from the concept of "causation." Heffernan's family only had the burden to show that the fentanyl overdose was causally related to his work injury.
In finding the overdose a compensable consequence, the court in the Pennsylvania case of J.D. Landscaping v. WCAB (Heffernan), No. 1866 CD 2010, 12/2/11 turned down the employer's argument, stating:
"In arguing that the Board and the WCJ nevertheless erred in granting Claimant’s fatal claim petition because of the June 4, 2007, UR determination, Employer contends, in essence, that there can be no causal relationship between a decedent’s death and a work-related injury where a decedent dies as a result of medical treatment deemed by a UR determination to be neither reasonable nor necessary. Employer misconstrues the import of a UR determination."
The court explained that UR determines whether treatment is "reasonable and necessary," which differs from the concept of "causation." Heffernan's family only had the burden to show that the fentanyl overdose was causally related to his work injury.
Here are the facts as related by the court's opinion:
James Heffernan herniated a disc in his back while working for J.D. Landscaping in July 2002. In March 2006, the employer filed a utilization review (UR) request, which rejected the medications prescribed by Heffernan's treating physician, Dr. George Rodriguez.
On June 4, 2007, Rodriguez had prescribed Sonata, fentanyl, oxycodone, Fentora, Docusate, and Lyrica. Utilization review again concluded that the prescription was not reasonable or necessary.
The pharmacy refuses to fill the prescription because of the UR denial.
It doesn't stop there - Hefferman sees another Rodriguez (it is unknown whether the two doctors are related). This time Dr. Daisy Rodriguez examined Heffernan, and prescribed the following:
Somehow this prescription escapes UR and/or the pharmacy ignores UR and/or the drugs were dispensed by the physician. Regardless Heffernan died on June 18, 2007, as a result of a fentanyl overdose. Emergency responders noted that he had several fentanyl patches in his hand.
Although Daisy had prescribed only one fentanyl patch every other day, eight of the patches were missing.
I don't know what the malpractice law is in Pennsylvania, but the Rodriguez duo should be held accountable either through a direct claim by Hefferman's widow, or subrogation by the employer/carrier, or both.
James Heffernan herniated a disc in his back while working for J.D. Landscaping in July 2002. In March 2006, the employer filed a utilization review (UR) request, which rejected the medications prescribed by Heffernan's treating physician, Dr. George Rodriguez.
On June 4, 2007, Rodriguez had prescribed Sonata, fentanyl, oxycodone, Fentora, Docusate, and Lyrica. Utilization review again concluded that the prescription was not reasonable or necessary.
The pharmacy refuses to fill the prescription because of the UR denial.
It doesn't stop there - Hefferman sees another Rodriguez (it is unknown whether the two doctors are related). This time Dr. Daisy Rodriguez examined Heffernan, and prescribed the following:
- Actiq, 800 mcg (fentanyl lozenge), once a day;
- Duragesic (fentanyl patch), 50 mcg and 100 mcg in combination, once every other day;
- Fentora (fentanyl tablet) 800 mcg, three times a day;
- Ambien, 10 mg, as needed for sleep;
- Colace, 100 mg, two times a day;
- Lyrica, two times a day; and
- Oxy IR (Oxycodone tablet), 5 mg, every four hours as needed.
Somehow this prescription escapes UR and/or the pharmacy ignores UR and/or the drugs were dispensed by the physician. Regardless Heffernan died on June 18, 2007, as a result of a fentanyl overdose. Emergency responders noted that he had several fentanyl patches in his hand.
Although Daisy had prescribed only one fentanyl patch every other day, eight of the patches were missing.
I don't know what the malpractice law is in Pennsylvania, but the Rodriguez duo should be held accountable either through a direct claim by Hefferman's widow, or subrogation by the employer/carrier, or both.
Regardless - what is wrong with this picture? It's the same story we see occurring every day in this country:
- Claim of back pain - a diagnosis of herniated disc is, based on current scientific literature, inconsequential and should not be the basis of either opioid dispensation nor invasive treatment techniques;
- Physicians ignoring their Hypocratic Oath;
- An over-trusting person in pain hypnotized by our culture of surgery and drugs as the remedy for everything that ills us;
- A system that chalks this death up as just another number, another statistic, another casualty in the world of workers' compensation without learning anything about how, what, why needless disability and death is inflicted through our distorted sense of social entitlement.
Friday, December 2, 2011
TN Case Is a Clear Example of How Work Comp Kills People
This morning's top headline in WorkCompCentral news should be alarming to anyone who has been following the trend of prescription medication abuse in workers' compensation.
In Kilburn v. Granite State Insurance Co., the Special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee decided that Judy Kilburn should be allowed to amend her husband's workers' compensation claim to add a claim for death benefits.
Charles Kilburn, suffered neck injuries in a work-related auto accident in November 2008, and subsequently underwent a cervical fusion surgery. His treating neurosurgeon prescribed oxycodone.
Dr. William Leone, a pain-management specialist, examined Charles on Jan. 4, 2010, and noted that he was taking 15 milligrams of oxycodone four times a day. Leone recommended that the dosage not be increased. Charles overdosed on Jan. 28, 2010. The medical examiner's report showed that his blood contained 409 nanograms per milliliter of oxycodone. (Emphasis added.)
Judy Kilburn, Charles' widow, filed a motion to amend her husband's pending workers' compensation claim to add a claim for death benefits, but the Chancery Court of Williamson County denied the motion. The court stated that “Kilburn's negligent overdose of prescription pain medications breaks the chain of causation because it is an independent, intervening cause.”
The Special Workers' Compensation Appeals Panel reversed, stating that there was insufficient evidence to rule in favor of the defendant. The court likened the Kilburns' case to Shelton v. Central Mutual Insurance Co., a 2009 decision which also featured a claimant's overdose that was allegedly the “natural result of the original work injury.”
The legal analysts see this case as setting a new standard for burden of proof in Tennessee - that part of the story I have omitted.
The value of this case is that it is a stark, and frankly disgusting, example of a) how workers' compensation disables people unnecessarily, and b) how workers' compensation kills people.
Robert J. Barth, PhD, in an article published in the March/April 2011 edition of the AMA Guides Newsletter, states:
"[S]cientific findings indicate that prescription narcotics are the leading cause of death among workers’ compensation claimants who have undergone back fusions. This scientific discovery warrants emphasis. It indicates that prescription narcotics (in conjunction with workers’ compensation and back fusions) are actually turning a non–life-threatening issue (back pain) into the number one cause of death. Equally noteworthy are the reports that poisoning deaths, primarily involving prescription medications (prominently including narcotics, which exceed the deaths caused by heroin and cocaine combined), have actually overtaken motor vehicle accidents as the top cause of death among middle-aged Americans." (Citations omitted.)
Nortin M. Hadler, MD, in his most recent book, "Stabbed in the Back", provides substantial evidence that neck and back pain, without corroborating physical findings beyond the routine disk bulge, is over-treated and supports an entire industry that creates more disability (and death) than if such cases were left to their own accord. Hadler cites an alarming increase in back treatment cases in the last decade, and a correspondingly alarming increase in the amount of disability during that same period, as evidence that we are a system out of control.
The Kilburn case highlights the conclusions of Barth and Hadler, and should be offensive to anyone in our industry. Without any doubt in my mind, Kilburn's overdose death IS the responsibility of the the workers' compensation system, IS the responsibility of the employer/carrier, and his widow MUST be compensated for his death.
Legal causation aside (and in most jurisdictions this would not even be contested), this is a social morality issue. Perhaps the auto accident did cause some neck pain - how did this neck pain get so far as to require surgery? Is there no responsibility on the system - on the employer, on the carrier, on the physicians - to counsel and educate Kilburn that surgery in the vast majority of cases DOES NOT WORK? That unless there is a broken bone, some displacement of anatomic features, surgery has a miserable success rate? That neck and back pain are a part of life and that there are alternatives to invasive procedures and hard-core narcotics?
Would Kilburn have chosen this line of treatment had he actually known that more people die from over-medication in workers' compensation cases than motor vehicle accidents? Would he have consented to surgery if he had know the terrible success rate of invasive spine procedures?
We don't know what Kilburn's co-morbidities were. We don't know what psycho-social factors engaged Kilburn into the work comp system, or how psycho-social factors played upon his perception of pain, or the motivations for the course his case took.
What I firmly believe is that if Kilburn had not made a workers' compensation claim, he likely would be alive today (absent some other intervening traumatic event).
How many other Kilburn cases are there right now, where a victim of workers' compensation is on the edge of death?
This case is a poster child for radical change in how we deal with pain and disability in our culture. We're killing our own work force. Isn't this what workers' compensation was devised to correct 100 years ago? We have strayed far from the concept's original intent.workers compensation, work comp, injured worker
In Kilburn v. Granite State Insurance Co., the Special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee decided that Judy Kilburn should be allowed to amend her husband's workers' compensation claim to add a claim for death benefits.
Charles Kilburn, suffered neck injuries in a work-related auto accident in November 2008, and subsequently underwent a cervical fusion surgery. His treating neurosurgeon prescribed oxycodone.
Dr. William Leone, a pain-management specialist, examined Charles on Jan. 4, 2010, and noted that he was taking 15 milligrams of oxycodone four times a day. Leone recommended that the dosage not be increased. Charles overdosed on Jan. 28, 2010. The medical examiner's report showed that his blood contained 409 nanograms per milliliter of oxycodone. (Emphasis added.)
Judy Kilburn, Charles' widow, filed a motion to amend her husband's pending workers' compensation claim to add a claim for death benefits, but the Chancery Court of Williamson County denied the motion. The court stated that “Kilburn's negligent overdose of prescription pain medications breaks the chain of causation because it is an independent, intervening cause.”
The Special Workers' Compensation Appeals Panel reversed, stating that there was insufficient evidence to rule in favor of the defendant. The court likened the Kilburns' case to Shelton v. Central Mutual Insurance Co., a 2009 decision which also featured a claimant's overdose that was allegedly the “natural result of the original work injury.”
The legal analysts see this case as setting a new standard for burden of proof in Tennessee - that part of the story I have omitted.
The value of this case is that it is a stark, and frankly disgusting, example of a) how workers' compensation disables people unnecessarily, and b) how workers' compensation kills people.
Robert J. Barth, PhD, in an article published in the March/April 2011 edition of the AMA Guides Newsletter, states:
"[S]cientific findings indicate that prescription narcotics are the leading cause of death among workers’ compensation claimants who have undergone back fusions. This scientific discovery warrants emphasis. It indicates that prescription narcotics (in conjunction with workers’ compensation and back fusions) are actually turning a non–life-threatening issue (back pain) into the number one cause of death. Equally noteworthy are the reports that poisoning deaths, primarily involving prescription medications (prominently including narcotics, which exceed the deaths caused by heroin and cocaine combined), have actually overtaken motor vehicle accidents as the top cause of death among middle-aged Americans." (Citations omitted.)
Nortin M. Hadler, MD, in his most recent book, "Stabbed in the Back", provides substantial evidence that neck and back pain, without corroborating physical findings beyond the routine disk bulge, is over-treated and supports an entire industry that creates more disability (and death) than if such cases were left to their own accord. Hadler cites an alarming increase in back treatment cases in the last decade, and a correspondingly alarming increase in the amount of disability during that same period, as evidence that we are a system out of control.
The Kilburn case highlights the conclusions of Barth and Hadler, and should be offensive to anyone in our industry. Without any doubt in my mind, Kilburn's overdose death IS the responsibility of the the workers' compensation system, IS the responsibility of the employer/carrier, and his widow MUST be compensated for his death.
Legal causation aside (and in most jurisdictions this would not even be contested), this is a social morality issue. Perhaps the auto accident did cause some neck pain - how did this neck pain get so far as to require surgery? Is there no responsibility on the system - on the employer, on the carrier, on the physicians - to counsel and educate Kilburn that surgery in the vast majority of cases DOES NOT WORK? That unless there is a broken bone, some displacement of anatomic features, surgery has a miserable success rate? That neck and back pain are a part of life and that there are alternatives to invasive procedures and hard-core narcotics?
Would Kilburn have chosen this line of treatment had he actually known that more people die from over-medication in workers' compensation cases than motor vehicle accidents? Would he have consented to surgery if he had know the terrible success rate of invasive spine procedures?
We don't know what Kilburn's co-morbidities were. We don't know what psycho-social factors engaged Kilburn into the work comp system, or how psycho-social factors played upon his perception of pain, or the motivations for the course his case took.
What I firmly believe is that if Kilburn had not made a workers' compensation claim, he likely would be alive today (absent some other intervening traumatic event).
How many other Kilburn cases are there right now, where a victim of workers' compensation is on the edge of death?
This case is a poster child for radical change in how we deal with pain and disability in our culture. We're killing our own work force. Isn't this what workers' compensation was devised to correct 100 years ago? We have strayed far from the concept's original intent.workers compensation, work comp, injured worker
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