Mom's Working and Happy

Generally accepted psychological principal is that working is good for the head and that is why there is such an emphasis on return to work in the workers' compensation context.


Work is a huge part of one's identity.


According to a 2012 study by Abay Asfaw, Ph.D., and Kerry Souza, Ph.D., of the Centers for Disease Control and Prevention, injured workers are 45% more likely to be treated for depression than non-injured workers.


That makes some sense to me, particularly after seeing my father go through his life, essentially "working" all the way up to the end, albeit as a volunteer. Nevertheless, his identity was hugely connected to the Oceanside Police Department where he felt particular swagger in his role as administrator of the department's gang unit database.


I see this in my mother, whom we have relocated to a beautiful memory care facility. Mom has advanced dementia, but she still likes to "work"; her dementia has sharpened her obsessive/compulsive qualities and she can't help but clean up after others. She's put to good use at her new facility and I can tell it brings her joy because she has purpose in life!


And that explains one of her diagnosis of "depression" upon discharge from the last rehabilitation facility - she didn't have anything to there!

Mom getting ready to "work".

So at least in my mind there is a deep connection between work, work injury and mental health.


Some states recognize this and other states don't.


A recent case in Ohio recognizes that it is settled law in that state that a worker's suicide is compensable as long as it is "causally related" to the worker's injury; there has to be "some effect upon the mind" from the injury, because of an injury to the head or because the injury is causing chronic pain, or because it led to the development of a psychological condition, causing the worker to become depressed.


The worker in that case committed suicide 5 days before Christmas, a particularly troubling time for many people regardless of work status. Her estranged husband sought, and obtained, death benefits before it was discovered that he didn't live with her and was charged with committing fraud. The case eventually settled, and what led to the court opinion is that the husband didn't get what he thought he was going to get out of the settlement.



Be that as it may, not all states provide workers' compensation benefits for the survivors of workers who have committed suicide. Illinois, Pennsylvania, Massachusetts and Washington will provide for awards if the worker's suicide had a causal link to the employment or industrial injury, but in other states, suicide is treated as a break in the causal chain.


Earlier this year, the Montana Supreme Court denied a request to decide if, under the 2007 Workers' Compensation Act, a death from suicide is an intentional act and an independent intervening cause that breaks the chain of causation between an industrial injury and the death. The court said it saw no reason to exercise its ability to bring the dispute out of the Workers' Compensation Court, since there was no indication that the normal appeal process would be inadequate for whichever party is aggrieved by the WCC decision.


Florida's workers' compensation statute states compensation is not payable if the injury was "occasioned primarily...by the willful intention of the employee to injure or kill himself, herself or another."


Alabama's comp scheme contains a similar limitation, as does the Longshore and Harbor Workers' Compensation Act. But the Benefits Review Board has recognized an exception when the suicide attempt results from an "irresistible impulse" caused by a work-related injury.


Courts in New York, Nevada and North Carolina will also award benefits for a suicide if the worker was driven to kill herself because of a mental depression and derangement directly related to and caused by her compensable injury.


The point to all of this is that there is wide disparity in the legal recognition of the importance of work to mental health - perhaps as many reasons as there are people making those claims. It is very difficult for claims administrators to ferret out legitimate claims for mental injury arising out of a work place situation.


I have argued before, and I maintain my position, that workers' compensation is not about return to work. RTW is a tool in the workers' compensation administrator's box, but it is not the end goal of the system. It might be the end goal of a worker, or claims payer, but not of the system itself.


And my guess is that there are as many different view points about the efficacy of providing mental health benefits as a part of any workers' compensation treatment scheme. Clearly this is exemplified by the different state's treatment of suicide arising out of a work injury.


I can say one thing after watching my parents go through their senior years - work IS important. How one defines "work" depends upon the circumstances, the individuals involved, the production required.


Whether one is paid in some remunerative fashion or simply gains personal satisfaction from doing a job, most people enjoy feeling productive, which is why there is such a high depression rate among those who get hurt on the job.


I'm keeping Mom working for as long as she wants...

TRIA and Party Out of Bounds

Insurance is the lubricant of our financial engine. It is what keeps the gears of industry turning and the hum of the economy constant.

Without insurance, the business world is much less inclined to take on risk, and without an appetite for risk innovation stifles. When innovation stops, economic opportunity falters, which means people run out of things to build, people to service, and jobs disappear.

I know that's a simplistic statement of the role insurance plays in our modern economy, but when distilled to the basics, it is reasonably accurate.

Which is why I don't understand why self-described conservative members of Congress would have any issue reauthorizing the Terrorism Risk Insurance Act which set to expire at year's end.

Congress enacted TRIA in 2002, in response to complaints that terrorism insurance was either becoming unavailable, or when offered, was extremely costly in the wake of oh nine eleven. The law provides a government reinsurance backstop in the case of a terrorist attack by providing mechanisms for avoiding an immediate drawdown of capital for insured losses or possibly covering the most extreme losses. Extended first in 2005 and again in 2007, it is up again for renewal.

In TRIA's current form, a single terrorist act must cause $5 million in damages to be certified for TRIA coverage. Then the aggregate insured loss from certified acts of terrorism must be $100 million in a year for the government to get involved. After that an insurer must pay a deductible of 20% of its annual premiums for the government coverage to begin.

Once those thresholds are passed, the government covers 85% of insured losses from a terrorist attack. If insured losses to terrorism do not exceed $27.5 billion, the Secretary of the Treasury is required to recoup 133% of the government coverage by 2017 through surcharges on property/casualty policies. But if losses exceed $27.5 billion, the secretary has the discretion to recoup surcharges or not.

There are three potential TRIA extension bills: HR 508, is considered the lead TRIA reauthorization bill in Congress with 84 co-sponsors. Rep. Michael Grimm, D-New York, introduced the measure on Feb. 5.

Two other House reauthorization bills were filed last May - HR 2146, authored by Rep. Michael Capuano, D-Mass., and HR 1945, by Rep. Bennie Thompson, D-Miss. They lack the backing of Grimm's bill, according to industry observers.
HR 508 is now in the Subcommittee on Insurance, which is under the House Financial Services Committee.

There are currently no Senate TRIA reauthorization bills, but solid rumor has it that Sens. Tim Johnson, (D-S.D.), who chairs the committee and Mike Crapo, (R-Idaho), ranking member of the committee, intend to propose a bi-partisan TRIA reauthorization bill.

The holdup in passing TRIA, according to observers, is that the extreme conservative faction of the Republican party (the ones that have an affinity for tea) see it as a government handout, so even Republicans that are in favor of the bill - those from states with large employers and insurance company backing - want to wait until after November elections so they don't alienate potential votes.

It seems that the overall sentiment, though, is to get an extension passed.

Failure to provide the insurance community with some level of security in the face of a huge catastrophic loss ultimately will inhibit the ability of the American economy to grow and provide the jobs that are needed for the government to collect taxes and provide the services necessary to keep the populace content.

Indeed, last week the Rand Corp. released a study cited widely by insurers that concluded that renewing TRIA would contribute to improved national security.

And the reason is obvious - the whole point of terrorism is to strike fear, and the best way to strike fear is to disrupt lives and infiltrate the financial system by setting up events that cause dislocation of resources.

If TRIA is in place then there is less incentive to commit terrorism because the net effect is minimal disruption.

Seems to me that brewing tea took the Party Out Of Bounds:

"People get sick, they play the wrong games.
Ya know, it can ruin your name!"

I Would Like To Say No Problem

At first blush you might think my little rant here has nothing to do with workers' compensation, but the residue of corporate lexicon tends to infiltrate culture, ultimately affecting our behavior towards others and how we do our jobs.

The reality is that workers' compensation is a people business in which there is a lot of communication. How we communicate directly affects the quality of service that is provided, and directly affects the perception of quality.

There are a couple of phrases in general modern American dialogue that absolutely drive me crazy.

One of them is when folks say or write that they "would like to" do this or that.

As in, "I would like to thank you for...", or "I would like to say...".

Listen, if you would like to, then just do it! Why the apologetic tone, the request for permission, the soft, fuzzy, misdirection of action?

The phrase, "I would like," intones a lack of fortitude. It tells the listener or reader that the person speaking or writing doesn't have any confidence in what they are about to say or write. It lacks authority.

Worse, it lacks genuineness - it tells the recipient that there is doubt in the communication.

Do you say to your spouse or significant other, "I would like to love you"? No! You say, "I love you."

Saying "I would like to" is negative. It implies there's something wrong, that "but if" then it would be okay. Prefacing your phrase with "I would like" communicates insincerity.

If you "would like" to do or say something, then then DO it or SAY it!

If you want something, then you only need four letters: W A N T.

If you are in the process of communicating, then there is no need for permission because you are already in the act, so you don't say "I would like to say." Just say it!

Think about how this language affects your day to day job. The mindset of asking permission delays action, defers responsibility and slows down processes. It communicates inaction or worse, apathy.

Listen to yourself carefully throughout the day as you communicate to others - try to catch yourself whenever you reach for the "I would like to" phrase, and then restate whatever you're going to say into a positive, direct communication of action: "I want," "I am," "I will."

You will be amazed at not only the authority your communication attains, but how much more ACTION you can get with direct, positive communication.

Another phrase that has crept into our culture that absolutely drives me nuts is the phrase, "no problem," in response to a "thank you."

ARE YOU KIDDING ME?

First, you just said "No." I don't like "no." I want something, perhaps I got it, perhaps I didn't, but the phrase "no problem" is a negative communication - you just told me right off the bat, "no."

Don't tell me "no"! I praise you, give you thanks for your efforts, and then you tell me "no"?

I'm not going to return to you in the future unless it's absolutely necessary because apparently you are a negative person and you tell me "no" all of the time...

Second, apparently whatever you did for me in your quest for earning a living just put you out of the way because there must have been some sort of problem.

If it wasn't a problem then why are you creating one now?

It's not a problem, it's a job. If I thank you for doing your job I have communicated that I appreciate the effort. I am telling you that it is worthwhile for me to interact with you at least on a business level.

And then you reply that you were put out of the way for doing something that you are paid to do?

Excuse me if I interfered with your business day! Pardon my intrusion into your busy life. Sorry you have to earn a living and it's not pleasurable.

I DIDN'T KNOW I WAS A PROBLEM!

When someone says thank you, your response should be, "It was my pleasure."

Because it IS your pleasure. Without me purchasing your goods or services you would not have a job - then you really do have a problem!

People throughout the business day say "no problem" without any thought - that's how deeply ingrained into our culture that phrase has crept - and that's a shame because common language phrases shape our interactions and affect our reactions.

Try this experiment today - whenever someone says "thank you" respond with a smile and say, "it was my pleasure."

I can guarantee that you will experience an immediate positive reaction!

At WorkCompCentral headquarters we have banned the phrase, "no problem" in response to "thank you." And we deal with it just like a parent does with unacceptable language in the home - we have a quarter jar and when someone gets caught uttering the banned phrase they dispense a quarter into the jar.

There aren't too many quarters being put in that jar any longer.

And if YOU ever receive the "no problem" response from a WorkCompCentral employee or representative after saying "thank you," I want to know about it, because there's going to be a disgorgement of pocket change.

So go forth into your business day. Be assertive and take control - if you WOULD then just DO. And make it YOUR PLEASURE to provide the services for which you are being paid.

It All Depends

Workers' compensation is a social and cultural phenomenon, which is why states and other governments have different execution of the same basic concept.

Time changes things too.

In the 1950s, when I was born, the standard family was a husband, wife and 2.3 children. Families are different now.

The 2010 Census reflects that more than 300 million people live in some 116 million households, and for the first time since the Census Bureau began tracking such data, fewer than half of those households are headed by a husband and wife.

Likewise, about 7.7 million Americans are living with unmarried partners of either the same or opposite sex, and 4.2 million children are part of "blended families."

And this affects workers' compensation, particularly when talking about dependent's benefits.

Most state laws concerning dependency were drafted long ago when traditional families were the norm, and the concept of proving dependency wasn't all that difficult: husband, wife, children...

Now the concept of dependency, along with the notion of what constitutes a family in America, has changed. Some states recognize same sex relationships. In other cases there may be multiple marriages in a person's life, with children from one or all of those relationships, or children from no formal relationship.

A couple of decisions by the Arkansas Court of Appeals last month show how troubling this can become, particularly for insurance companies trying to settle cases - careful determination of just who are dependents is critical.

Jeremy Royal married his second wife, Crystal Royal, in 2005. The couple had no children together but each had minor children from other marriages.

After Jeremy was killed in a work-related traffic accident in August 2010, the Starnet Insurance Co. began paying weekly benefits of $246.08 to Crystal, and benefits of $105.46 to Austin Royal and Tiana Royal – the children of Jeremy's first wife, Rosana Royal.

Starnet later stopped paying benefits to Tiana after discovering that she was not Jeremy's biological child.

The carrier also stopped paying benefits to Crystal once it learned she had separated from Jeremy in May 2010 and filed for divorce a month later.

Crystal had not asked for spousal support in her divorce filing, and she had obtained a domestic violence restraining order against Jeremy based on allegations that he had beaten her. Crystal had also removed Jeremy from her phone plan and dropped him from her health and life insurance once she filed for divorce.

However, Crystal testified that Jeremy had continued to support her during their separation, giving her money to help pay her bills and allowing her to charge purchases to his credit account with a local store.

An Administrative Law Judge ruled that neither Crystal nor Tiana were entitled to survivor benefits from Starnet.

And Starnet was denied recovery of the money it had already paid to Crystal and Tiana.

The Arkansas Workers' Compensation Commission reversed the ALJ's ruling as to Starnet's entitlement to a credit, but otherwise upheld her decision.

The Court of Appeals affirmed the commission's ruling that Crystal was not eligible for survivor benefits and reversed the commission's ruling as to Starnet's claim for a credit.

The question of dependency is a question of fact, the court said, and substantial evidence supported the commission's finding that Crystal was not, in fact, dependent on Jeremy at the time he died.

Regarding Starnet's claim for reimbursement the court said there was no statutory mechanism to make this happen (remember that workers' compensation is a wholly statutory scheme).

In another case, Myers v. The Death and Permanent Total Disability Trust Fund, Zurich American Insurance Co. had accepted a worker's death as compensable but because it couldn't figure out to whom to pay benefits, it asked the Workers' Compensation Commission for a decision.

Andrew and Samantha Myers married in 2010. At the time, Samantha had three children – Makenna Lilly, Kennady Williams and Lastyn Tomlison – with three different biological fathers.

The children all lived with Andrew and Samantha. Samantha testified that she received sporadic payments from the children's fathers, and some government assistance, but Andrew was their main source of support.

Andrew was also paying support to Haely Morris – the mother of his biological children Taylor Myers and Caleb Myers.

When Andrew died in July 2012, Samantha asserted a claim for survivor benefits on behalf of Makenna, Kennady and Lastyn, on the grounds that they had been Andrew's dependents. Haely strongly supported Samantha's claim, and even attempted to waive Taylor and Caleb's entitlement to benefits in favor of Samantha and her children.

The ALJ ruled that Haely could not waive her children's benefits, but he did find that Samantha and her children were entitled to benefits on their own right and awarded Samantha a weekly benefit of $231, and said that Taylor, Caleb, Makenna, Kennady and Lastyn each were entitled to a weekly benefit of $41.80.

The Death and Permanent Total Disability Trust Fund appealed, but the Workers' Compensation Commission affirmed the ruling.

The Court of Appeals last month ruled that Samantha and her children were entitled to death benefits, but that Samantha should not have received a larger share than her children or Andrew's biological children.

These cases are reminders that workers' compensation is a unique blend of culture, social values, economic reality and legal enforcement.

We live in a complex society. Workers' compensation tends to reflect that.

The Market Is Dynamic

At the upcoming Workers' Compensation Research Institute 2014 Annual Issues & Research Conference in Boston next week, National Council on Compensation Insurance's chief economist, Harry Shuford will present "How the Economy Drives Workers' Compensation."

I don't know what Harry is going to present. But I've heard Harry in past NCCI events and he always does a masterful job of explaining how economic issues affect workers' compensation underwriting.

Harry would probably criticize my explanation of the economy's relationship to workers' compensation, but here's my elementary school version.

When employment is high, and payrolls increase, workers' compensation premiums go up. That's because workers' compensation premiums are based in large part on how big the work force is, and the best indicator of the size of a work force risk is how much money the work force is being paid, which is then modified by what kind of jobs that work force is doing.

Smart guys with lots of computing power (in the old days it used to be really fast slide rules) figure out what kind of jobs are risky, and which are not so risky, and ascribe a modifier to the payroll number to determine the ultimate premium cost.

When investment yields are low and claim exposure is high, workers' compensation premiums go up, of course depending usually on whether the state insurance commissioner agrees that these circumstances were not of the carrier's making.

And visa versa - when fewer are employed and payrolls decrease, premiums go down, and when investment yields are good and claim exposure is controlled, premiums don't go up (but usually don't go down appreciably).

Generally the industry doesn't expect to make much money, if at all, on an underwriting versus expense basis - a measurement called the combined ratio.

A combined ratio of 100 means that for every dollar coming in the door, a dollar goes out the door. If the combined ratio is higher than 100 then there is more cash going out the door in claims and expenses than is coming in from customer's premiums. And if the number is less than 100 then there is more cash coming in and less going out.

Workers' compensation is a cash flow mechanism. Carriers bet that the cash flow spread, what is parlayed into investments, yields enough money to generate a profit over time. The old adage that a dollar today is worth ten cents more tomorrow is what drives work comp profit margins.

As an investment, workers' compensation is not a great business. There are a lot easier and less risky ways to make more money than the general profit margin in work comp. But it's not a bad line if one can stomach the ever changing statutory and regulatory framework one must work within, and the consequential changing assumptions regarding the risk of investing in the market.

There is still a good appetite for workers' compensation risk however, as market statistics demonstrate.

Today it was reported that Travelers Group surpassed Liberty Mutual Group as the nation’s top workers’ compensation insurer in 2013, reporting direct written premiums of $4.14 billion to Liberty’s $3.59 billion, according to figures released Tuesday by the National Association of Insurance Commissioners.

Liberty had been top dog for many years, but the company has in the past let it be known that its appetite for workers' compensation risk, particularly in the ever changing market of California, was waning. So its move to number two is not particularly surprising.

And also not surprising is that the industry’s top 25 companies had a 7% increase in direct premiums written from a year earlier with a combined $51.4 billion in 2013.

The numbers reflect the 2.1 million new jobs nationwide, a modest increase in payrolls “and rate increases being pushed through as well,” said Robert Hartwig, president of the Insurance Information Institute.

Hartwig also told WorkCompCentral that “some of the most unprofitable business is being shed into the state funds,” predicting that the trend may continue for a while.

The private carrier appetite for risk must not be too healthy in New York, as that state's fund, New York State Insurance Fund, was sixth on the list, even ahead of big economy California's State Compensation Insurance Fund, which moved down the scale to twelfth. 

Apparently there is a lot of unprofitable business in New York that the private carriers don't want to touch.

Here are the Top 10 in direct written premium in 2013 and their change since 2012:

• Travelers Group, $4.14 billion, up 8.9%.
• Liberty Mutual Group, $3.59 billion, down 14.2%.
• Hartford Fire & Casualty Group, $3.35 billion, up 1.7%.
• American International Group, $2.85 billion, down 3.5%.
• Zurich Insurance Group, $2.53 billion, down 8.6%.
• New York State Insurance Fund, $2.28 billion, up 17.4%.
• Berkshire Hathaway Group, $1.76 billion, up 39.9%.
• AmTrust NGH Group, $1.67 billion, up 82.0%.
• Old Republic Group, $1.20 billion, up 7.9%.
• WR Berkley Corp. Group, $1.16 billion, up 17.4%.

California’s State Compensation Insurance Fund was No. 12, with direct written premiums of $1.11 billion, a 23% increase.

Texas Mutual Insurance Co. held its No. 13 ranking with direct written premium of $1.03 billion, a 13.8% increase.

Shuford will probably tell us at the conference next week that some of the big premium drivers, the riskiest categories with the highest payroll, haven't quite recovered completely from the 2008 recession - such as the construction and trucking industries.

But then we have new growth in the health care sector with its related sub-industries and it's trillions of dollars in payroll as the roll out of the Affordable Care Act continues over the years. The health care sector is generally low risk and high payroll - an attractive combination if you're an underwriter.

In the meantime the investment returns remain below inflationary rates because of the Federal Reserve's monetary policy which has kept interest rates artificially low, and historically anemic.

Which is to say that the overall workers' compensation underwriting market is particularly dynamic right now.

In the past couple of years the economists that follow this market have generally opined that the current trend of low investment yields, increasing payrolls, and an ability to pass along some of the risk onto policy holders will continue for a couple more years.

So far it looks like their forecasts are accurate.

See you in Boston.

Point At The Moon

The other day the California Workers' Compensation Appeals Board issued an en banc decision, ruling that Independent Medical Review can not be enforced if the original Utilization Review process was deficient.

Yesterday I celebrated a couple of vignettes about doing the right thing.

The case of Dubon v. World Restoration has litigators in the California system abuzz. Defense attorneys are saying that it is going to create chaos. Applicant attorneys say its about time that their clients' procedural rights were recognized.

And is there any wonder why 11% of the totality of claims (those that have attorney involvement) consume 77.7% of all of the costs?

Or that defense attorney fees continue to escalate well beyond the rate of inflation, from $608 million in 2010 to $773 million in 2012, and likely much, much more than that in 2013?

Workers' compensation has become so procedurally controlled that substantive decision making, and ergo, substantive control over a claim is nearly irrelevant any longer.

The claims system in California is all about fighting the wrong thing.

This is not just about attorneys. Cases don't get to attorneys unless there is some dispute, or at least a perception that there is a dispute.

But the Dubon case nearly ensures that there is going to be a dispute because the applicant attorneys are going to examine every single element of the UR process for procedural deficiency.

Procedural deficiency is easy to uncover in any workers' compensation case - the volume of cases foisted upon handlers at many claims shops nearly guarantees a missed deadline, an incorrect address, a failed notice, some defect somewhere along the process.

The Dubon case talks about "material" defects - but who's to say what's "material"? You got it - the courts...

The rules and requirements are so complex that it is nearly impossible for the less than expert employer to follow them without some mistake.

The forms that the Division of Workers' Compensation approves are so intimidating, so legal, and yes, complex, that they scare the injured worker into seeking legal advise.

Jose Dubon had suffered injuries to his back in 2003 and 2004 while working for World Restoration. Last July, he requested authorization from his employer's insurance carrier – the State Compensation Insurance Fund – for surgery. State Fund's agent, Bunch CareSolutions, denied the request last July based on a UR report by Dr. Donald A. deGrange, a board-certified orthopedic surgeon.

After Dubon unsuccessfully invoked Bunch CareSolutions' internal UR appeal process, he filed for IMR.

Pursuant to the new administrative dispute-resolution process that was created by Senate Bill 863, an applicant or applicant attorney has 30 days after receiving an adverse UR decision to apply for IMR. But the IMR contractor, Maximus Federal Services Inc., will not look at any case in which there has not yet been a UR denial.

The WCAB found the UR decision in the Dubon case to be invalid because the UR doctor either did not receive or did not review all of the relevant medical records related to Dubon's condition.

I.e., there could have been no effective denial because of the lack of records.

There seems to be a bit of debate as to whether or not Dubon will increase litigation. Some say that all treatment cases will be combed through by applicant attorneys for UR deficiency, others say that this is already a strategy and that Dubon just reflects reality.

All of that is immaterial - these cases ARE ALREADY LITIGATED! They have already gotten to an attorney.

It's not about whether a case goes litigated, it's about the volume of cases for which expedited hearings will be requested because of medical treatment disputes.

Look again at the stats above: 11% of claims consume over 77% of all costs.

It's not rocket science. It's not even science. It's very elemental.

The process is stacked against the claims payer. There is no way to effectively combat this fact - if you're a claims administrator you WILL pay. If you are going to rest your laurels on procedure, you WILL PAY MORE.

Attorney involvement drives up costs exponentially - that's pretty darn obvious. So it is a very basic proposition that in order to lower costs in the state then don't let a case get to an attorney.

The way to keep a case from getting to an attorney - just pay the claim.

Provide medical. Provide indemnity. Keep the injured worker informed about the claim, make sure they understand what is going on, and just give them what they need to move on.

We don't need UR. We don't need IMR.

We just need sensible claims handling which means moving away from procedure and just dealing with substance.

Yesterday I highlighted a couple of cases where the administrator ignored the rules, ignored her bosses, risked professional ostracism, and did the right thing; got the cases closed quickly, efficiently, without litigation and with lower costs.

Imagine that - a claims administrator using her head rather than the book. Getting things done; if you don't dispute then attorneys don't get involved. That's how it works.

Stop whining about costs. That's a misdirected conversation.

A friend reminded me the other day of a Chinese Proverb: ‘The difference between a human and a dog is that, when you point at the Moon, the dog looks at your finger."

Not so in work comp.

Rules, Wise Men & Fools

About four days ago I posted a commentary that we don't need to "fix" anything in workers' compensation, that we just need to do our jobs.

About the same time I was preparing for my father's services. You know by now that my dad was an optimist and in keeping with his personality he didn't want any mourning. He wanted a party - a celebration of life.

A member of the Workers' Compensation Roundtable LinkedIn group, Tracey Davies, must be an optimist too. She responded to my post above with a couple of success stories.

And I thought to myself as I we celebrated Dad's life (yes, it was a helluva party) that we don't celebrate workers' compensation successes at all. We criticize the failures, target the negative, focus on what we think is wrong.

But there are good outcomes, success stories that we should celebrate.

So with Tracey's permission I've taken her two vignettes, polished them with a little editing, and present them here for your consideration as deeds done good in handling claims.

Vignette # 1:

This is the story of a 34-year-old fireman. A third generation fireman.

He was trying to rescue the victim of a motor vehicle accident. He ran to his truck to grab the jaws of life. Without thinking about himself he grabs this 75 pound tool with his left hand. The weight of the tool jerked his arm down which tore up his shoulder.

The operative report says there is a rotator cuff tear from 2 o'clock to 9 o'clock (I guess that's a pretty big tear). Biceps tendon was completely retracted.

The fireman has surgery and thereafter starts the much needed physical therapy.

But the fireman gets depressed because he knows that he is not gaining enough strength to pass his Functional Capacity Evaluation to return to work. (Firefighters are required to lift 150 lbs. over head).

Being a firefighter is all he has wanted to do since he was 6 yrs old, like his father, and his grandfather.

Knowing this the adjuster gets concerned so she directs him to the best shoulder specialist she could find. She pays his Temporary Total Disability timely, she pays his medical bills. She talks to the firefighter weekly, encourages him, tries to lift his spirits.

The Fire Chief calls the adjuster eventually and tells her that if the fireman cannot pass the FCE he will be terminated.

The adjuster knows that the surgeon is getting ready to release firefighter at Maximum Medical Improvement with permanent restrictions that will exceed the FCE requirements, which would result in the firefighter's termination.

The adjuster contacts the physical therapist about a work hardening program specifically designed for the firefighter. The adjuster also asks the surgeon to keep the firefighter on TTD and begs him to order 4 weeks of work hardening.

The surgeon thinks the adjuster is crazy, but consents and the firefighter starts "boot camp".

The adjuster's claims manager is angry with her for incurring the extra expense to rehabilitate the firefighter, but the adjuster doesn't care; she wants the firefighter to return to the job he loves.

The firefighter completes boot camp, passes the FCE and returns to work, full duty.

The firefighter calls the adjuster 2 weeks later to tell her that he went to a fire and had to carry a victim, at least 150 pounds, over head, down a ladder and did so successfully, and though a little sore, felt 10 feet tall, and thanked her for all her help.

The adjuster offers a settlement to close out the claim and after the firefighter checked with several attorneys who tell him the offer is more then fair and they could do no better he settles.

One year after injury, the claim is settled, closed and in storage.

The association for which the adjuster handles claims praises her for a huge cost savings during the policy year of the injured firefighter, and many like him, because she has very few litigated files and virtually no legal costs.

Vignette # 2:

A 72 year old gentleman has been employed with a school district as a custodian for 45 years.

Obviously a good employee, with good attendance; he loved his job, loved the kids. His children and grandchildren attended the school that he worked for.

Custodians do back breaking work, especially during summer break. He and the other custodians have to clear every room of every piece of furniture, make repairs, clean and wax all the floors.

This 72 year old man experiences a lumbar strain, so the adjuster sends him to the doctor and the doctor places him under permanent restrictions.

The adjuster contacts the school district employer asking if they can accommodate these permanent restrictions and the employer says "no," which would force the custodian to retire.

The custodian doesn't want to retire. He needs to feel useful.

The adjuster is outraged that the employer cannot find something for a 45-year employee, in good standing, to do. She knows that once the doctor places an injured worker at MMI that she can terminate TTD, but she does not.

Instead the adjuster makes a deal with the custodian, advises him to go see the admissions counselor at the local vocational technical school (for free) to determine what classes he would like to take. She assures the custodian that TTD benefits will continue until arrangements can be made for vocational rehabilitation.

The adjuster's supervisor is observing her for the day and overhears the conversation, but undeterred the adjuster keeps her word.

Eventually the custodian meets with a vocational counselor and decides on a course of study. He provides the adjuster with an outline of course study, tuition, costs, etc.

The adjuster settles the claim for the cost of the vocational rehabilitation, a small amount of Permanent Partial Disability and waives credit for overpayment of TTD. (And the adjuster gets chewed out by her claims manager for allowing the continuation of benefits after MMI).

The claim is settled, full final and complete. Total incurred expense on claim was less then $7000.

The adjuster contacted the custodian shortly after settlement and speaks to his wife who informs the adjuster that he is attending classes. Adjuster feels great, completes closing requirements of file. File is closed and in storage w/in 100 days of injury. Adjuster sleeps very well at night.

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Tracey says she has more of them and I encourage her, and you too, to publicize these successes.

Why not? What's wrong with showing the world that this system CAN work if we MAKE it work?

Here's the take-away: Royal Air Force Capt. Paul "Pablo" Mason has been quoted as stating,
"Rules are for the guidance of wise men and the obedience of fools."

We have lots of rules in workers' compensation and lots of people looking over our shoulders to make sure we follow those rules.

Guess what - sometimes the rules need to be ignored and we just need to do the right thing, regardless of the potential consequences, if doing the right thing means restoring the life of an injured worker. 

Rules should GUIDE us to do the right thing, but should not constrict us into foolishness.

Sometimes the short term expense is well over-ridden by the long term savings - monetarily, socially, psychologically, physically - in every sense of measurement.

Go out and do the right thing - and then tell us about the success (perhaps to the chagrin of the pessimists...).

And then, like at Dad's Celebration, we can all raise our glasses and toast aloud: "SALUD!"

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One last thing - Tracey's LinkedIn profile indicates she is looking for employment. It's obvious to me that Tracey is a) talented, b) experienced, c) passionate, and most importantly, d) cares about people. I know you have a position open for Tracey....