A segment in "Hot Coffee; Is Justice Being Served?" by Susan Salodoff deals with binding arbitration agreements in employment and other contracts, and focuses on Jamie Liegh Jones who alleges she was brutally drugged and gang raped by Haliburton subsidiary KBR employees while working in Iraq, but whose employment agreement with an arbitration clause kept her from a jury for nearly five years.
The Fifth Circuit Appeals Court ultimately found that the binding arbitration clause did not apply to Jones' sexual-assault charges; her contract covered work-related disputes but "stopped at her bedroom door."
Jones finally got to a jury, and lost her case in July 2011.
I don't know if Jones got workers' compensation for her alleged injuries or if those were subject to arbitration also.
The Jones case also sparked 2009 legislation introduced by Senator Al Franken to prohibit government contracts with Defense Department vendors using arbitration clauses in their employment contracts for certain complaints, including sexual assault.
The point of highlighting the Jones case in Hot Coffee was to bring attention to the prevalence of arbitration agreements in every day contractual situations and show how binding arbitration can drastically alter the rights of the parties, particularly where there are uneven bargaining positions such as in an employment situation, cell phone contract, web site service, credit cards, etc.
So it was with some interest when I read in this morning's WorkCompCentral news that an employer's arbitration agreement was unenforceable because it was procedurally and substantively unconscionable.
California's 3rd District Court of Appeal found in the published opinion of Wisdom v. AccentCare, that an arbitration provision in an employment contract was procedurally unconscionable because "its language implied there was no opportunity to negotiate, because the rules of any arbitration were not spelled out in the agreement or attached thereto, and because plaintiffs did not understand that they were waiving their right to a trial, nor was that fact explained to them."
The arbitration agreement was also found to be substantively unconscionable because it lacked mutuality - it violated one of the basic tenets of contact law which is to express some bargained for consideration. In other words, the terms of the arbitration agreement unfairly favored AccentCare.
The court explained that there was no language that bound AccentCare to arbitrate its claims against the plaintiff employees. Instead, the agreement only required the plaintiff employees to arbitrate their claims. Therefore, there was no mutuality of performance, the court concluded.
The plaintiffs in the AccentCare case had filed a complaint for damages, injunctive and declaratory relief, contending that they were not paid for all of the overtime they spent handling off-hour calls. AccentCare had sought to force the matter into binding arbitration.
While the AccentCare case is not about workers' compensation per se, the trend of arbitration clauses in employment contracts is, I think, of concern. At least in California, and I believe in most states, the right to adjudication of one's work injury claims can not be altered and passed down to arbitration unless it is part of a wider collective bargaining agreement where the law presupposes greater bargaining positions on behalf of the employee via union representation.
Even then, arbitration is not binding and can be reviewed by the administrative law courts, and ultimately the civil courts. This ensures a more level playing field and serves as an important protection of our 7th Amendment rights to have disputes resolved by a jury of our peers.
Arbitration can serve as a useful dispute resolution tool where there is a true bargained for exchange and the parties know what they're getting into. The rules of the American Arbitration Association bear this out, with their arbitrator selection process and other procedural rules intended to commit as fair a proceeding as possible while saving the parties time and money.
But like many a good thing arbitration and the waiver of civil rights can be abused.
"We have known the truth for a long time now, and we are very relieved and gratified to get these facts out to the public," Daniel Hedges, a lawyer representing KBR said in the Wall Street Journal.
The curious thing is that KBR spent five years and untold amounts of money attempting to do exactly the opposite.
Sometimes we read about unbelievable workers' compensation cases - the recent firefighter's case of injury on Catalina Island while trimming a wisteria bush comes to mind - but at least the parties have a forum for dispute resolution on a level playing field.
What Hot Coffee wants to remind you is that Constitutional rights are too easily dismissed ... until we need them, and then it might be too late.
Tuesday, January 3, 2012
Florida Excess Profits Law Challenge Opens 2012
2012 is starting off with an interesting political twist in Florida.
Rep. Daniel Davis, R-Jacksonville, filed House Bill 4169 on Dec. 20, seeking to remove workers' compensation and employers' liability from Florida's controversial excess-profits law, which requires carriers to return premiums when they exceed 5% of anticipated underwriting profit.
The bill is being opposed by Florida Insurance Consumer Advocate Robin Smith Westcott and Florida Workers' Advocates (FWA), a claimants' attorneys' group.
HB 4169 would remove workers' compensation and employers' liability from a 1979 law that requires carriers to report their premiums, losses, expenses and dividends to the Florida Office of Insurance Regulation (OIR) each July 1 to cover the most recent three-year reporting period available.
OIR's Property and Casualty Product Review unit told WorkCompCentral Friday that Insurance Commissioner Kevin McCarty collected nearly $16.7 million in excess profits from carriers during fiscal 2010-2011.
But Westcott said collections are down substantially from previous years because of reforms that triggered rate reductions of more than 60% between 2003 and 2010. However McCarty has approved rate increases effective Jan 1, 2011 and again for 2012, for a combined total of 17.7%.
According to NCCI's last report in September, despite the lastest increases, rates in the state are still down 58% from their peak and the current rates are still too low for the 2012 policy year by 8.9%.
Total direct written premium in the state is around $2.325 billion with a accident year combined ratio of around 119%.
Compare that to the 2006 accident year combined ratio of only 74%.
Florida has the second highest increase of loss costs in the South at 8.9%. Virginia's increase of 10.5% beat Florida, and 9 other states are showing either flat or decreases in loss costs.
With the 2012 rate increase, NCCI places Florida at 19th out of all states in terms of premium per $100 of payroll at $1.91. For comparison, North Dakota is cheapest at $1.02 per $100 of payroll, and Montana is highest at $3.33 per $100 of payroll.
In addition, according to NCCI, claims frequency experienced its first increase in 2010 accident year, the first increase in 9 years, seemingly contradictory to the economic decline.
There are still plenty of issues in Florida confronting workers' compensation regulators for 2012 with the usual issues concerning physician dispensed drugs, pharmaceutical overdosing, changes to experience rating formulas, continued decline in claims frequency (noted by NCCI as a continuing international phenomenon related to much safer work places) and recent case law such as the Kaufmann case on attorney fees.
To the extent that Florida's excess profit law impacts the state's carriers the record is less complete.
Attorneys for FFVA Mutual Insurance Co., a Maitland, Fla.-based workers' compensation carrier, agreed to suspend a 2009 lawsuit filed with DOAH over McCarty's order that the carrier return nearly $10.5 million in excess profits. OIR based its assessment on revenues and expenses FFVA collected between 2004 and 2006.
In return, McCarty agreed to hold hearings and review the rules by which he makes the assessments. FFVA's law firm, Foley & Lardner, argued that OIR regulations don't allow carriers to include such items as federal and state income taxes, reinsurance costs and surplus-note expenses in their calculations of profit and loss.
It seems to me that given the issues above and the current volatility of Florida's workers' compensation market, including the continued tepid growth in employment in the state that HB 4169 won't get much traction. Still, it will be an interesting issue to observe as the new year opens in the Florida Legislature on Jan. 10.
Rep. Daniel Davis, R-Jacksonville, filed House Bill 4169 on Dec. 20, seeking to remove workers' compensation and employers' liability from Florida's controversial excess-profits law, which requires carriers to return premiums when they exceed 5% of anticipated underwriting profit.
The bill is being opposed by Florida Insurance Consumer Advocate Robin Smith Westcott and Florida Workers' Advocates (FWA), a claimants' attorneys' group.
HB 4169 would remove workers' compensation and employers' liability from a 1979 law that requires carriers to report their premiums, losses, expenses and dividends to the Florida Office of Insurance Regulation (OIR) each July 1 to cover the most recent three-year reporting period available.
OIR's Property and Casualty Product Review unit told WorkCompCentral Friday that Insurance Commissioner Kevin McCarty collected nearly $16.7 million in excess profits from carriers during fiscal 2010-2011.
But Westcott said collections are down substantially from previous years because of reforms that triggered rate reductions of more than 60% between 2003 and 2010. However McCarty has approved rate increases effective Jan 1, 2011 and again for 2012, for a combined total of 17.7%.
According to NCCI's last report in September, despite the lastest increases, rates in the state are still down 58% from their peak and the current rates are still too low for the 2012 policy year by 8.9%.
Total direct written premium in the state is around $2.325 billion with a accident year combined ratio of around 119%.
Compare that to the 2006 accident year combined ratio of only 74%.
Florida has the second highest increase of loss costs in the South at 8.9%. Virginia's increase of 10.5% beat Florida, and 9 other states are showing either flat or decreases in loss costs.
With the 2012 rate increase, NCCI places Florida at 19th out of all states in terms of premium per $100 of payroll at $1.91. For comparison, North Dakota is cheapest at $1.02 per $100 of payroll, and Montana is highest at $3.33 per $100 of payroll.
In addition, according to NCCI, claims frequency experienced its first increase in 2010 accident year, the first increase in 9 years, seemingly contradictory to the economic decline.
There are still plenty of issues in Florida confronting workers' compensation regulators for 2012 with the usual issues concerning physician dispensed drugs, pharmaceutical overdosing, changes to experience rating formulas, continued decline in claims frequency (noted by NCCI as a continuing international phenomenon related to much safer work places) and recent case law such as the Kaufmann case on attorney fees.
To the extent that Florida's excess profit law impacts the state's carriers the record is less complete.
Attorneys for FFVA Mutual Insurance Co., a Maitland, Fla.-based workers' compensation carrier, agreed to suspend a 2009 lawsuit filed with DOAH over McCarty's order that the carrier return nearly $10.5 million in excess profits. OIR based its assessment on revenues and expenses FFVA collected between 2004 and 2006.
In return, McCarty agreed to hold hearings and review the rules by which he makes the assessments. FFVA's law firm, Foley & Lardner, argued that OIR regulations don't allow carriers to include such items as federal and state income taxes, reinsurance costs and surplus-note expenses in their calculations of profit and loss.
It seems to me that given the issues above and the current volatility of Florida's workers' compensation market, including the continued tepid growth in employment in the state that HB 4169 won't get much traction. Still, it will be an interesting issue to observe as the new year opens in the Florida Legislature on Jan. 10.
Wednesday, December 28, 2011
Firefighters, Wisteria Bushes and AOE/COE
This case, reported in this morning's WorkCompCentral News, is sure to bring about loud objection from the employer/business community:
A firefighter's decision to help his wife trim the wisteria in front of their Catalina Island home was incidentally related to his job because island residents would occasionally go to his home for emergency help, the 2nd District Court of Appeal ruled in an unpublished decision. The court said that the firefighter's injuries were work-related under the dual purpose doctrine. This doctrine allows a claim to be compensable if the activity the applicant was performing at the time of injury benefited both the injured worker and the employer.
Warner, a firefighter for the County of Los Angeles Fire Department, was stationed at Catalina Island and lived at a house with his wife. The job required him to be continuously on call for 24 hours a day, seven days a week, and he responded to weekend fire calls about 26 times per year.
On Sunday, Feb. 14, 2010, Warner had just finished doing some inventory work inside his home office before leaving to check on more equipment inside his fire truck. As he walked down the stairs in front of the house, his wife asked him to trim the wisteria that grew over the walkway into their home. Warner climbed up a ladder and began to trim the wisteria, but a trellis gave way, causing Warner to fall. He suffered neck, back, elbow, wrist and shoulder injuries.
A firefighter's decision to help his wife trim the wisteria in front of their Catalina Island home was incidentally related to his job because island residents would occasionally go to his home for emergency help, the 2nd District Court of Appeal ruled in an unpublished decision. The court said that the firefighter's injuries were work-related under the dual purpose doctrine. This doctrine allows a claim to be compensable if the activity the applicant was performing at the time of injury benefited both the injured worker and the employer.
Warner, a firefighter for the County of Los Angeles Fire Department, was stationed at Catalina Island and lived at a house with his wife. The job required him to be continuously on call for 24 hours a day, seven days a week, and he responded to weekend fire calls about 26 times per year.
On Sunday, Feb. 14, 2010, Warner had just finished doing some inventory work inside his home office before leaving to check on more equipment inside his fire truck. As he walked down the stairs in front of the house, his wife asked him to trim the wisteria that grew over the walkway into their home. Warner climbed up a ladder and began to trim the wisteria, but a trellis gave way, causing Warner to fall. He suffered neck, back, elbow, wrist and shoulder injuries.
A workers' compensation judge and the Workers' Compensation Appeals Board denied his claim, concluding that the injury did not arise out of or occur in the course of employment. However, the 2nd DCA determined that Warner's trimming of the wisteria incidentally benefited his employer, because it made it easier for island residents to go to Warner's home in case of an emergency.
"Here, trimming the wisteria ensures residents have safe access to petitioner's house and allows him to reach his fire truck in a safe and timely manner when responding to emergency calls," Presiding Justice Paul Turner wrote on behalf of the majority. "No doubt, petitioner trimmed the wisteria at his wife's request. But this does not negate that the activity was impliedly authorized by the county because it is undisputed that island residents sometimes go to petitioner's home for help. By trimming the wisteria, petitioner was engaging in an activity that benefited both himself and his employer."
Justice Richard M. Mosk dissented, arguing that Warner's fall was not compensable under any special rule.
"The wisteria did not prevent petitioner from reaching his fire apparatus," Mosk wrote. "Indeed, he apparently saw no need to deal with it. He only undertook to trim it at his wife's request. As attributed to petitioner, trimming the wisteria improves the appearance of the house. There is no evidence that petitioner's wife or petitioner undertook to cut the wisteria as a safety measure for members of the public who came to the residence for services."
"Here, trimming the wisteria ensures residents have safe access to petitioner's house and allows him to reach his fire truck in a safe and timely manner when responding to emergency calls," Presiding Justice Paul Turner wrote on behalf of the majority. "No doubt, petitioner trimmed the wisteria at his wife's request. But this does not negate that the activity was impliedly authorized by the county because it is undisputed that island residents sometimes go to petitioner's home for help. By trimming the wisteria, petitioner was engaging in an activity that benefited both himself and his employer."
Justice Richard M. Mosk dissented, arguing that Warner's fall was not compensable under any special rule.
"The wisteria did not prevent petitioner from reaching his fire apparatus," Mosk wrote. "Indeed, he apparently saw no need to deal with it. He only undertook to trim it at his wife's request. As attributed to petitioner, trimming the wisteria improves the appearance of the house. There is no evidence that petitioner's wife or petitioner undertook to cut the wisteria as a safety measure for members of the public who came to the residence for services."
Tuesday, December 27, 2011
NFL Suits and Report Cards - Transparency the Issue
I said I was taking a vacation during the week between Christmas and New Years.
I lied.
Too much going on. Maybe I just won't be as consistent in my posting, but I found after reading the news this morning that I couldn't shut up.
Two things this morning have fired up my typing fingers: Another NFL lawsuit and the WLDI annual report cards.
NFL Suit
Twenty-five former football players sued the National Football League last week - players filed two lawsuits against the NFL, one in Georgia and one in Florida federal courts.
Baltimore Ravens running back Jamal Lewis and three other players filed the first suit in the U.S. District Court for the Northern District of Georgia last Wednesday, in a case titled Lewis v. NFL. St. Louis Rams offensive lineman Kyle Turley and a group of 21 other players filed the second suit in the U.S. District Court for the Southern District of Florida on Thursday.
The two suits are the latest addition to a collection of four other concussion-related suits filed by players since last July. All of the actions allege that the league breached a duty to protect players from concussions that led to disabling brain injuries, such as chronic traumatic encephalopathy (CTE).
The suits allege the NFL's creation of the Mild Traumatic Brain Injury Committee (MTBI Committee) in 1994, which was created to research and resolve the impact of concussions in 1994. When the committee identified medical evidence suggesting that repeated concussions could result in tragic brain injuries, the NFL concealed it, the players' complaint contends.
The suits are unique because they are filed against the league rather than the teams. The teams are the players' employers so there should not be exclusivity.
What's also interesting is that these suits potentially create a little bit of a conflict between the teams and the NFL because there is certainly big subrogation potential behind the players' suits. Will the workers' compensation insurance companies for the teams seek to recoup some of their expenditures by intervening in these suits? And if so, will team owners, who essentially are the owners of the NFL, seek to quash such litigation? Who REALLY controls the money in this circuitous examination of liability?
For work comp wonks, interesting just scratches the surface regarding the issues in these suits.
Report Cards
The Work Loss Data Institute published its 2012 State Report Cards for Workers' Comp. This report intends to show insurers, state agencies and employers which states are doing well in treating workers and getting them back to work.
I'll admit to being ignorant as to the methodology of the report and how "grades" are derived.
It is interesting to me because for the most part, workers' compensation medical care completely lacks transparency.
The WLDI report doesn't resolve this lack of transparency, and in fact I think highlights the fact that there is no way anyone other than within a single entity (and likely even that is doubtful) can compare health outcomes and costs from one provider to the next.
I bring this up because I just finished "The Company That Solved Health Care" by John Torinus.
Torinus argues that the health care industry doesn't want health outcomes from vendor to vendor to be known because that would create market competition. In health care, as in workers' compensation, the health care industry goes to great lengths to ensure that the care consumer (in workers' compensation its the injured worker) has no idea who does good work on a defined quantitative schedule of comparison and what the costs are. Consumers have been trained to just rely on what their doctor tells them and follow along like dogs. The medical industry has been successful in taking the consumerism out of health care, and that is what has driven health care costs to spiral far outside the rate of inflation, unchecked, and why it will continue to worsen.
Workers' compensation is no different, and in fact its worse - the consumer, injured worker, has absolutely no financial stake in the medical equation. There is no financial reason for the injured worker to seek comparison, nor is there any way for the injured worker to make comparison.
And, since the entire bill is paid for by a third party - the nasty, antagonistic insurance company - a natural conflict is created and the medical industry takes full advantage of this by ensuring that there is acrimony between the two. The injured worker is led to believe that the medical community is really the one on the side of him or her.
WLDI's report card is a step toward rating overall system efficiency, but what it really does in my mind is graphically explain that there is no transparency in workers' compensation medical care, nor will there ever be unless the carriers band together, aggregate their data, and take the BIG risk of publicly displaying and rewarding or punishing do-gooders and bad-actors.
Carriers will never do this - their argument is that there is too much liability involved and they will get their pants sued off by the medical industry. They are probably right, they will get their pants sued off.
But in reality, the carriers don't want to make this information public because that jeopardizes the built in premium increase system of the experience modification factor. There is a conflict of interests in the exposure of VALUE in the medical equation of workers' compensation by carriers.
You will see me rant on through out this coming year on this topic because it is one that I think needs to be examined more closely. We will never have true workers' compensation "reform" unless and until there is transparency in the medical side of the system.
I lied.
Too much going on. Maybe I just won't be as consistent in my posting, but I found after reading the news this morning that I couldn't shut up.
Two things this morning have fired up my typing fingers: Another NFL lawsuit and the WLDI annual report cards.
NFL Suit
Twenty-five former football players sued the National Football League last week - players filed two lawsuits against the NFL, one in Georgia and one in Florida federal courts.
Baltimore Ravens running back Jamal Lewis and three other players filed the first suit in the U.S. District Court for the Northern District of Georgia last Wednesday, in a case titled Lewis v. NFL. St. Louis Rams offensive lineman Kyle Turley and a group of 21 other players filed the second suit in the U.S. District Court for the Southern District of Florida on Thursday.
The two suits are the latest addition to a collection of four other concussion-related suits filed by players since last July. All of the actions allege that the league breached a duty to protect players from concussions that led to disabling brain injuries, such as chronic traumatic encephalopathy (CTE).
The suits allege the NFL's creation of the Mild Traumatic Brain Injury Committee (MTBI Committee) in 1994, which was created to research and resolve the impact of concussions in 1994. When the committee identified medical evidence suggesting that repeated concussions could result in tragic brain injuries, the NFL concealed it, the players' complaint contends.
The suits are unique because they are filed against the league rather than the teams. The teams are the players' employers so there should not be exclusivity.
What's also interesting is that these suits potentially create a little bit of a conflict between the teams and the NFL because there is certainly big subrogation potential behind the players' suits. Will the workers' compensation insurance companies for the teams seek to recoup some of their expenditures by intervening in these suits? And if so, will team owners, who essentially are the owners of the NFL, seek to quash such litigation? Who REALLY controls the money in this circuitous examination of liability?
For work comp wonks, interesting just scratches the surface regarding the issues in these suits.
Report Cards
The Work Loss Data Institute published its 2012 State Report Cards for Workers' Comp. This report intends to show insurers, state agencies and employers which states are doing well in treating workers and getting them back to work.
I'll admit to being ignorant as to the methodology of the report and how "grades" are derived.
It is interesting to me because for the most part, workers' compensation medical care completely lacks transparency.
The WLDI report doesn't resolve this lack of transparency, and in fact I think highlights the fact that there is no way anyone other than within a single entity (and likely even that is doubtful) can compare health outcomes and costs from one provider to the next.
I bring this up because I just finished "The Company That Solved Health Care" by John Torinus.
Torinus argues that the health care industry doesn't want health outcomes from vendor to vendor to be known because that would create market competition. In health care, as in workers' compensation, the health care industry goes to great lengths to ensure that the care consumer (in workers' compensation its the injured worker) has no idea who does good work on a defined quantitative schedule of comparison and what the costs are. Consumers have been trained to just rely on what their doctor tells them and follow along like dogs. The medical industry has been successful in taking the consumerism out of health care, and that is what has driven health care costs to spiral far outside the rate of inflation, unchecked, and why it will continue to worsen.
Workers' compensation is no different, and in fact its worse - the consumer, injured worker, has absolutely no financial stake in the medical equation. There is no financial reason for the injured worker to seek comparison, nor is there any way for the injured worker to make comparison.
And, since the entire bill is paid for by a third party - the nasty, antagonistic insurance company - a natural conflict is created and the medical industry takes full advantage of this by ensuring that there is acrimony between the two. The injured worker is led to believe that the medical community is really the one on the side of him or her.
WLDI's report card is a step toward rating overall system efficiency, but what it really does in my mind is graphically explain that there is no transparency in workers' compensation medical care, nor will there ever be unless the carriers band together, aggregate their data, and take the BIG risk of publicly displaying and rewarding or punishing do-gooders and bad-actors.
Carriers will never do this - their argument is that there is too much liability involved and they will get their pants sued off by the medical industry. They are probably right, they will get their pants sued off.
But in reality, the carriers don't want to make this information public because that jeopardizes the built in premium increase system of the experience modification factor. There is a conflict of interests in the exposure of VALUE in the medical equation of workers' compensation by carriers.
You will see me rant on through out this coming year on this topic because it is one that I think needs to be examined more closely. We will never have true workers' compensation "reform" unless and until there is transparency in the medical side of the system.
Friday, December 23, 2011
OK High Court Strikes Reform Provisions
While I was out sick with the stomach flu the Oklahoma Supreme Court acted with surprising speed in surgically excising offending parts from that state's recent attempt at workers' compensation reform.
Striking provisions limiting service as independent medical examiners to medical doctors and doctors of osteopathy, the court said that the legislature had created a suspect special class without justification or a rational basis.
“We also find that there is neither a distinctive characteristic upon which this different treatment is reasonably founded nor one which furnishes a practical and real basis for discrimination between the groups within the classes. Therefore, the distinction becomes arbitrary and without relation to the subject matter,” Justice Douglas Combs wrote. Such different treatment violates the state Constitution, the majority concluded.
The court also eliminated provisions of the new statute that changed the standard for review of workers’ compensation claims from “a preponderance of the evidence” to “clear and convincing evidence.”
The opinion concluded that the Legislature was in violation of the separation of powers clause of the Oklahoma Constitution by providing that the Workers’ Compensation Court, in using the Official Disability Guidelines, must use the “clear and convincing evidence” standard (rather than “preponderance of the evidence") when making exceptions to the guidelines.
The plaintiffs in the suit alleged that the offending provisions were late changes to the reform bill, inserted at the last minute during the political process.
As SB 878 went through the committee process, the bill's language was such that all "physicians" could continue to serve as independent medical examiners, J. Dan Post of Tulsa, one of the chiropractors who brought the lawsuit, said. However, "at the last minute" a change was made in the bill's language which allowed only medical doctors (MDs) and doctors of osteopathy (DOs) to serve as independent medical examiners, Post said.
The other individual plaintiff, Oklahoma City chiropractor Brad Hayes, said that late language changes made to SB 878 caused the problem. The provision limiting testimony at Workers' Compensation Court hearings to medical doctors and orthopedists "doesn't make any sense," Hayes said. Hayes said he has served as an independent medical examiner “but it’s not a large part of my practice.”
In the meantime, 2012 is heating up as the grand experiment to take Texas-style non-subscription to Oklahoma, which may be the test state for what could be a trend if the experiment produces positive results.
***********************
Speaking of 2012, it is just around the corner, and many of you I'm sure will be taking some well deserved rest time between now and January 3 ... so am I! I'm glad that 34,282 of you have followed my opinions since I started this blog in April. It was my goal to post something thought provoking every business day, and except for this past Wednesday, I at least posted every business day (maybe not exactly thought provoking posts each time though!).
To each of you, Happy Holidays. Enjoy this time with friends and family and we'll regroup for what promises to be a very exciting New Year in 2012.
Striking provisions limiting service as independent medical examiners to medical doctors and doctors of osteopathy, the court said that the legislature had created a suspect special class without justification or a rational basis.
“We also find that there is neither a distinctive characteristic upon which this different treatment is reasonably founded nor one which furnishes a practical and real basis for discrimination between the groups within the classes. Therefore, the distinction becomes arbitrary and without relation to the subject matter,” Justice Douglas Combs wrote. Such different treatment violates the state Constitution, the majority concluded.
The court also eliminated provisions of the new statute that changed the standard for review of workers’ compensation claims from “a preponderance of the evidence” to “clear and convincing evidence.”
The opinion concluded that the Legislature was in violation of the separation of powers clause of the Oklahoma Constitution by providing that the Workers’ Compensation Court, in using the Official Disability Guidelines, must use the “clear and convincing evidence” standard (rather than “preponderance of the evidence") when making exceptions to the guidelines.
The plaintiffs in the suit alleged that the offending provisions were late changes to the reform bill, inserted at the last minute during the political process.
As SB 878 went through the committee process, the bill's language was such that all "physicians" could continue to serve as independent medical examiners, J. Dan Post of Tulsa, one of the chiropractors who brought the lawsuit, said. However, "at the last minute" a change was made in the bill's language which allowed only medical doctors (MDs) and doctors of osteopathy (DOs) to serve as independent medical examiners, Post said.
The other individual plaintiff, Oklahoma City chiropractor Brad Hayes, said that late language changes made to SB 878 caused the problem. The provision limiting testimony at Workers' Compensation Court hearings to medical doctors and orthopedists "doesn't make any sense," Hayes said. Hayes said he has served as an independent medical examiner “but it’s not a large part of my practice.”
In the meantime, 2012 is heating up as the grand experiment to take Texas-style non-subscription to Oklahoma, which may be the test state for what could be a trend if the experiment produces positive results.
***********************
Speaking of 2012, it is just around the corner, and many of you I'm sure will be taking some well deserved rest time between now and January 3 ... so am I! I'm glad that 34,282 of you have followed my opinions since I started this blog in April. It was my goal to post something thought provoking every business day, and except for this past Wednesday, I at least posted every business day (maybe not exactly thought provoking posts each time though!).
To each of you, Happy Holidays. Enjoy this time with friends and family and we'll regroup for what promises to be a very exciting New Year in 2012.
Thursday, December 22, 2011
Hot Coffee Was Perfect for the Stomach Flu
I hate being sick - my compulsions and drive wreak havoc on my emotions as I lay useless, unable to focus or muster enough energy to even change my fever-induced sweat soaked t-shirt.
About 10 p.m. Tuesday night I woke up with the most horrendous stomach pain I've felt in a long time. Remember those Pepto Bismal commercials with the black ugly bug wearing a kaiser helmet? That's what my stomach felt like. Then things started expelling from me like Linda Blair in the Exorcist. Except from opposite orifices.
So yesterday was spent mostly in the fetal position. I wondered what I could do - aha, watch a movie. I never watch movies because I can't sit still long enough to get through an entire film. Perhaps being too ill to do anything else I actually could watch a film! So I did - it had been on my assignment list for some time and having the stomach flu presented a perfect opportunity.
I watched "Hot Coffee; Is Justice Being Served?" by Susan Salodoff.
First, my literary disclaimer - the reason this movie was on my assignment list is because Ms. Salodoff and I are part of a panel discussion at the California Applicant Attorneys Association (CAAA) Winter Conference in Mission Hills on Friday January 27. The topic of the panel discussion is how big business is able to sway public opinion by controlling media outputs. My portion of the panel will review how Unicover Partners sucked a half billion dollars out of workers' compensation precipitating "reform" across America while injured workers and physicians were laid bare as sacrificial scapegoats to an unknowing (and largely uncaring) populace.
But Unicover Partners is not the point of this column. If you want to read more about Unicover go to my editorials many years ago on WorkCompCentral, or in Forbes Magazine.
What this column is about is "Hot Coffee" - this movie starts with a review of the infamous spilled coffee case of Stella Liebeck who received a jury award of $2.7 million against McDonalds for burns received when she spilled a fresh cup of coffee in her lap.
The case drew national attention as comics mocked it, politicians cited it, and the American public shook its head - how can a simple act of spilling coffee result in a $2.7 million judgment (by the way the jury verdict was reduced substantially by the judge and the parties subsequently entered into a confidential settlement before the case could reach the appellate level).
The amount of misinformation that was spun by McDonalds, the US business community and bought hook, line and sinker by the population turned the case from one of horrific third degree burns to this poor 91 year old woman's legs and thighs into a national campaign for "tort reform".
The movie takes a look at the cases of Stella Liebeck; of Colin Gourley - born with brain defects because of physician malpractice which could not be even be closely compensated because of damage caps; of Oliver Diaz - Mississippi Supreme Court justice targeted by Big Business with not only big advertising campaign but after election by two Federal indictments (both of which he prevailed against) that took him out of office for 3 years; of Jamie Liegh Jones - brutally drugged and gang raped by Haliburton employees while working in Iraq but whose employment agreement with an arbitration clause prevented adequate access to justice.
Each of these people, and their families, did not know that bad things would happen to them. Each of these people did not know that the justice system had been rigged against them through media control, political spending or the contractual waiver of 7th Amendment rights. Each of these people would have been perfectly content to live life as it is, without concern for our rights as American citizens except for the intervention of misfortune casting them into the nasty world of "tort reform" hysteria.
A more recent example of how we, as American citizens, don't take the time to understand the issues and make independent judgment is a friend of mine - a staunch right wing Republican who is anti-Obama and in particular anti-ObamaCare.
That is until her sister, recently laid off from work and whose husband's business closed due to the recession, was diagnosed with ovarian cancer and because of the aforementioned misfortunes ended up with no health insurance. All of a sudden, ObamaCare's non-discrimination laws against pre-existing conditions is a God-send. Obama isn't so bad after all...
We're all busy people just trying to live our lives. As a consequence we rely on others to filter information that shapes our opinions. Too often we don't even do that! There's always at least two sides to every story. Don't accept at face value anything, particularly if it involves matters of great public policy, such as workers' compensation.workers compensation, work comp, injured worker
About 10 p.m. Tuesday night I woke up with the most horrendous stomach pain I've felt in a long time. Remember those Pepto Bismal commercials with the black ugly bug wearing a kaiser helmet? That's what my stomach felt like. Then things started expelling from me like Linda Blair in the Exorcist. Except from opposite orifices.
So yesterday was spent mostly in the fetal position. I wondered what I could do - aha, watch a movie. I never watch movies because I can't sit still long enough to get through an entire film. Perhaps being too ill to do anything else I actually could watch a film! So I did - it had been on my assignment list for some time and having the stomach flu presented a perfect opportunity.
I watched "Hot Coffee; Is Justice Being Served?" by Susan Salodoff.
First, my literary disclaimer - the reason this movie was on my assignment list is because Ms. Salodoff and I are part of a panel discussion at the California Applicant Attorneys Association (CAAA) Winter Conference in Mission Hills on Friday January 27. The topic of the panel discussion is how big business is able to sway public opinion by controlling media outputs. My portion of the panel will review how Unicover Partners sucked a half billion dollars out of workers' compensation precipitating "reform" across America while injured workers and physicians were laid bare as sacrificial scapegoats to an unknowing (and largely uncaring) populace.
But Unicover Partners is not the point of this column. If you want to read more about Unicover go to my editorials many years ago on WorkCompCentral, or in Forbes Magazine.
What this column is about is "Hot Coffee" - this movie starts with a review of the infamous spilled coffee case of Stella Liebeck who received a jury award of $2.7 million against McDonalds for burns received when she spilled a fresh cup of coffee in her lap.
The case drew national attention as comics mocked it, politicians cited it, and the American public shook its head - how can a simple act of spilling coffee result in a $2.7 million judgment (by the way the jury verdict was reduced substantially by the judge and the parties subsequently entered into a confidential settlement before the case could reach the appellate level).
The amount of misinformation that was spun by McDonalds, the US business community and bought hook, line and sinker by the population turned the case from one of horrific third degree burns to this poor 91 year old woman's legs and thighs into a national campaign for "tort reform".
The movie takes a look at the cases of Stella Liebeck; of Colin Gourley - born with brain defects because of physician malpractice which could not be even be closely compensated because of damage caps; of Oliver Diaz - Mississippi Supreme Court justice targeted by Big Business with not only big advertising campaign but after election by two Federal indictments (both of which he prevailed against) that took him out of office for 3 years; of Jamie Liegh Jones - brutally drugged and gang raped by Haliburton employees while working in Iraq but whose employment agreement with an arbitration clause prevented adequate access to justice.
Each of these people, and their families, did not know that bad things would happen to them. Each of these people did not know that the justice system had been rigged against them through media control, political spending or the contractual waiver of 7th Amendment rights. Each of these people would have been perfectly content to live life as it is, without concern for our rights as American citizens except for the intervention of misfortune casting them into the nasty world of "tort reform" hysteria.
A more recent example of how we, as American citizens, don't take the time to understand the issues and make independent judgment is a friend of mine - a staunch right wing Republican who is anti-Obama and in particular anti-ObamaCare.
That is until her sister, recently laid off from work and whose husband's business closed due to the recession, was diagnosed with ovarian cancer and because of the aforementioned misfortunes ended up with no health insurance. All of a sudden, ObamaCare's non-discrimination laws against pre-existing conditions is a God-send. Obama isn't so bad after all...
We're all busy people just trying to live our lives. As a consequence we rely on others to filter information that shapes our opinions. Too often we don't even do that! There's always at least two sides to every story. Don't accept at face value anything, particularly if it involves matters of great public policy, such as workers' compensation.workers compensation, work comp, injured worker
Tuesday, December 20, 2011
NH Case Illustrates Legal Fiction in Causation
In his book, Stabbed In the Back: Confronting Back Pain in an Overtreated Society, Nortin Hadler MD argues that much of what we consider an "injury" in our health care and workers' compensation systems are not really injuries.
Dr. Hadler's book specifically addresses regional back pain as a condition that has gone from a normal experience of the human body, the product of general aging for the most part, to an "injury" providing substance to a grand medical sub-industry attempting to treat something with very limited success, if any at all, from a statistical and scientific standpoint.
What Dr. Hadler bemoans is how the laws and legal systems in the United States turn what otherwise would not be medically an injury into a condition that not only increases medical costs but disability. The import of Dr. Hadler's work is that society has essentially created injuries where none exist.
Much of what Dr. Hadler writes about is the product of the law, whether statutorily expressed or interpreted through cases - the point is that we legally recognize an injury (or the inverse, DON'T recognize an injury) other than the fact that the law says so with no underlying medical basis.
Essentially, Dr. Hadler points to confusion on causation. There is medical causation, and then there is legal causation.
A condition may have a basis in medical science, but not be recognized for legal purposes, which is generally tied to some system of indemnity and/or reimbursement for expense.
A New Hampshire case that was reported this morning in WorkCompCentral News is a perfect example of why physicians have a difficult time understanding how the law impacts what is, or isn't an injury.
The Supreme Court of New Hampshire decided that the Legislature intended to exclude a former business owner's depression from the list of compensable injuries, in the case of In Re Appeal of Letellier.
In the months before the business closed, Letellier saw a nurse at Concord Psychiatric Associates because of stress. He was diagnosed with major depression and hypertension, and filed a workers' compensation claim with Chartis Insurance for mental stress and severe depression.
The state's Compensation Appeals Board (CAB) awarded Letellier reimbursement for medical bills and expenses, but did not award indemnity benefits. Both parties appealed, with Letellier arguing for indemnity benefits and Chartis contending that the injury was not compensable at all.
The state Supreme Court noted that while major depression arising from work-related stress can be compensable, state law specifically exempts mental injuries caused by "any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer." In other words, the statutory language bars compensation for mental injuries caused by good faith personnel actions.
In the months before the business closed, Letellier saw a nurse at Concord Psychiatric Associates because of stress. He was diagnosed with major depression and hypertension, and filed a workers' compensation claim with Chartis Insurance for mental stress and severe depression.
The state's Compensation Appeals Board (CAB) awarded Letellier reimbursement for medical bills and expenses, but did not award indemnity benefits. Both parties appealed, with Letellier arguing for indemnity benefits and Chartis contending that the injury was not compensable at all.
The state Supreme Court noted that while major depression arising from work-related stress can be compensable, state law specifically exempts mental injuries caused by "any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer." In other words, the statutory language bars compensation for mental injuries caused by good faith personnel actions.
"Like the listed exclusions, the possibility of a business failure is a normal condition of employment," the court wrote. "It, too, is often precipitated by poor company performance or general economic conditions. A business failure is indistinguishable from the specifically enumerated exclusions. Viewing the plain meaning of the phrase 'any similar action' in light of this fact compels us to conclude that the phrase encompasses a business failure."
To add to a physician's confusion over causation, even the law can't agree sometimes! In this New Hampshire case, two of the five justices on the court's panel dissented.
Chief Justice Linda Stewart Dalianis wrote that the statute only excludes "mental injuries that result from a good faith personnel action." She explained that even if the Legislature did not intend to allow claims such as Letellier's, the statute's actual language appears to render his claim compensable.
"Moreover, I believe that because of our obligation to construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose, we must interpret the statutory exclusion at issue narrowly," Dalianis wrote. "Thus, I would hold that the claimant's cumulative occupational stress and resulting depression, caused by the failure of his business, do not fall within the statutory exclusion from the definition of 'injury.'"
When I lecture to physicians, I tell them that many things which they see medically as measurable science is described legally in fictional terms. I think this case illustrates that point.workers compensation, work comp, injured worker
To add to a physician's confusion over causation, even the law can't agree sometimes! In this New Hampshire case, two of the five justices on the court's panel dissented.
Chief Justice Linda Stewart Dalianis wrote that the statute only excludes "mental injuries that result from a good faith personnel action." She explained that even if the Legislature did not intend to allow claims such as Letellier's, the statute's actual language appears to render his claim compensable.
"Moreover, I believe that because of our obligation to construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose, we must interpret the statutory exclusion at issue narrowly," Dalianis wrote. "Thus, I would hold that the claimant's cumulative occupational stress and resulting depression, caused by the failure of his business, do not fall within the statutory exclusion from the definition of 'injury.'"
When I lecture to physicians, I tell them that many things which they see medically as measurable science is described legally in fictional terms. I think this case illustrates that point.workers compensation, work comp, injured worker
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