There was a recurring theme at the Dana Point California Workers' Compensation and Risk Conference this week.
It wasn't the beach, surfboards or aloha.
And while SB 863 was a topic of most sessions, another theme overrode the subject matter and professional surfer Bethany Hamilton's inspirational keynote presentation kept going back to it.
The theme centered on the one thing that technical application of the law, regulations and claims management can not provide: support.
Or more accurately, a rock solid support network.
It came together for me when I was listening to Hamilton talk about the shark attack, the loss of her arm, growing up in a surfing family, her dedication to the goal of becoming a professional surfer and overcoming her disability - she had the unwavering and constant support of her family.
She kept coming back to this central theme - and the support of her sponsor/employer - Rip Curl.
There were many sessions about application of the technical details of SB 863. Interestingly, in many of these presentations speakers went back to the support network - how important it is that the injured worker feel and understand that the people behind the system were there to ensure success after the event that resulted in a claim.
Hamilton had an element that many injured workers lack, and which is paramount over everything - family support. It seemed every other sentence in her presentation was about the support of her mom, dad, brothers, and other family members.
This support and positive communications not only allowed her to deal with the loss of her arm, but to get back in the water one month afterwards and then go on to success in the professional ranks.
Many injured workers don't have that advantage. The best they can have is the support of the people that become engaged in the recovery process: the claims examiner, the doctors, and the employer.
Hamilton praised her employer, Rip Curl, for standing behind her through the ordeal, and thereafter.
Granted, Hamilton has a unique drive and the winning attitude that many don't have. That personal attribute makes a big difference in how one overcomes the adversity of trauma.
Some people are going to need more support than others. Some just need another person who will listen. Others need more material support.
Rosemary McKenzie-Ferguson, founder of the Work Injured Resource Connection and the Bags of Love programs in Australia gets that. Her success in helping injured workers overcome their adversity and return to gainful employment isn't about money, treatment or programs.
It is all about support - being there; providing the positive environment and emotional foundation that so many don't otherwise have.
Employers are critical in this equation. For many, employment is not just a means to a living, but IS the living. Work defines who we are, whether you're a professional surfer or a line worker sewing the product.
It takes a huge commitment in time, energy and emotion to provide this support. Sometimes that's not enough - but most of the time it's what makes the difference between successfully returning someone to work or relegating them to the disability polls.
Many employers and claims agencies have support programs and networks - and these are a great starting point. But we need to remember that workers' compensation claims are uniquely individual. Every single claim is as different as the person is behind the claim.
I think that for most of us in the workers' compensation industry the appeal comes down to making someone's life better after an adverse event. Providing support is exhausting and difficult.
When it works though, the reward can't be measured adequately.
Friday, October 4, 2013
Thursday, October 3, 2013
Perpetuating Bureaucracy
If there's one thing I'm learning at the California Workers' Compensation and Risk Conference in Dana Point, CA this week is that no one knows the impact of SB 863.
Predictably, those who championed the bill are saying that the costs of administration of claims is going to go down and that there are already positive results being demonstrated.
And those on the receiving end of the massive law change are less optimistic, if not outright pessimistic, that California will see any savings and just may have engineered in even more costs.
The real story in my opinion is that the changes brought about are so big, so complex, and so confusing, that no one can have any credible opinion on whether anything will change for the better.
Mark Webb, vice president and general counsel for Pacific Compensation Insurance Co., said, “we don’t know what we’ve got here; let’s not change it until we do” when counseling against any further system modifications for several years.
Max Koonce, senior director of risk management for Walmart, commented that, "at best, California is treading water.”
Martin Brady, executive director of Schools Insurance Authority and part of the SB 863 negotiating team, said “we’re finding our way; we’re midstream. It will take time to sort out the details.”
But I think the most poignant observation about SB 863 came from one of the biggest champions of the legislation, Christine Baker, director of the Department of Industrial Relations, without her really knowing what she was communicating.
Calling the Qualified Medical Examiner process and backlog a "major disaster," (to which she received applause) Baker said there was "too much friction" in the system, calling upon system participants to work together to and cooperate in the resolution of claims. She noted that no other state has a QME process and wondered aloud why we do in California.
Hmm, short -term historical memory going on up in Oakland headquarters. Let's review ...
QMEs were devised in response to one of the "other" reforms back in the 1990s. The process was seen as a way to curtail abuses in the earlier law that gave presumptive favor to the treating physician's opinion on everything medically related.
The treating physician presumption was one of the biggest bone-headed legislative changes ever made to the California system. Upset about "dueling doctors," people in Sacramento that had no understanding of the mechanics of the system decided that instead of having a doctor for the defense, and a doctor for the applicant, which more often resulted in a split in opinion (generally regarding permanent disability, but often treatment as well), they figured that the physician who had the most personal contact with the injured worker - the doctor that was his or her treating physician - knew best about the applicant's condition, needs and disabilities.
It didn't take long for injured workers and their attorneys to figure out that all they had to do was designate their favorite physicians, those whom they knew would write the most favorable reports, as the Primary Treating Physician, and then could control the medical aspects of the case, making referrals to buddies, and describing abnormally large quantities of disability disproportionate to the actual injuries sustained or claimed.
So instead of being able to have a range of evidence to choose from, Workers' Compensation Judges had a much simpler job and were making awards based on the PTP presumption.
It only took a couple of years to "reform" that part of the system, which resulted in the QME process.
The original QME process required the parties to attempt to agree on a single physician for opinions, and failing agreement required various notices to go back and forth, and to the Division of Workers' Compensation, before a panel of three was issued by the state, and then more forms, more time, and more of everything happened, assuming of course that the physicians on the panel were even available for the work. Often, they weren't.
The legacy of this, and many more of the various reforms that have occurred over my 30 years in work comp, are still part of the Tower of Babel that we call workers' compensation in California.
That's why I have to agree with Workers’ Compensation Insurance Rating Bureau President Bill Mudge, who told his audience at the conference that the reform conversation will reoccur in three years.
“All those things are still in our system,” Mudge said. “I’m hard-pressed to see how costs are not going to rise.”
It may be more than three years before "reform" enters the workers' compensation parlance again, but trust me, it will. And I have no faith that those tasked with making changes will have learned anything.
Because if there's one thing that bureaucracy is good at, it is perpetuating bureaucracy.
Predictably, those who championed the bill are saying that the costs of administration of claims is going to go down and that there are already positive results being demonstrated.
And those on the receiving end of the massive law change are less optimistic, if not outright pessimistic, that California will see any savings and just may have engineered in even more costs.
The real story in my opinion is that the changes brought about are so big, so complex, and so confusing, that no one can have any credible opinion on whether anything will change for the better.
Mark Webb, vice president and general counsel for Pacific Compensation Insurance Co., said, “we don’t know what we’ve got here; let’s not change it until we do” when counseling against any further system modifications for several years.
Max Koonce, senior director of risk management for Walmart, commented that, "at best, California is treading water.”
Martin Brady, executive director of Schools Insurance Authority and part of the SB 863 negotiating team, said “we’re finding our way; we’re midstream. It will take time to sort out the details.”
But I think the most poignant observation about SB 863 came from one of the biggest champions of the legislation, Christine Baker, director of the Department of Industrial Relations, without her really knowing what she was communicating.
Calling the Qualified Medical Examiner process and backlog a "major disaster," (to which she received applause) Baker said there was "too much friction" in the system, calling upon system participants to work together to and cooperate in the resolution of claims. She noted that no other state has a QME process and wondered aloud why we do in California.
Hmm, short -term historical memory going on up in Oakland headquarters. Let's review ...
QMEs were devised in response to one of the "other" reforms back in the 1990s. The process was seen as a way to curtail abuses in the earlier law that gave presumptive favor to the treating physician's opinion on everything medically related.
The treating physician presumption was one of the biggest bone-headed legislative changes ever made to the California system. Upset about "dueling doctors," people in Sacramento that had no understanding of the mechanics of the system decided that instead of having a doctor for the defense, and a doctor for the applicant, which more often resulted in a split in opinion (generally regarding permanent disability, but often treatment as well), they figured that the physician who had the most personal contact with the injured worker - the doctor that was his or her treating physician - knew best about the applicant's condition, needs and disabilities.
It didn't take long for injured workers and their attorneys to figure out that all they had to do was designate their favorite physicians, those whom they knew would write the most favorable reports, as the Primary Treating Physician, and then could control the medical aspects of the case, making referrals to buddies, and describing abnormally large quantities of disability disproportionate to the actual injuries sustained or claimed.
So instead of being able to have a range of evidence to choose from, Workers' Compensation Judges had a much simpler job and were making awards based on the PTP presumption.
It only took a couple of years to "reform" that part of the system, which resulted in the QME process.
The original QME process required the parties to attempt to agree on a single physician for opinions, and failing agreement required various notices to go back and forth, and to the Division of Workers' Compensation, before a panel of three was issued by the state, and then more forms, more time, and more of everything happened, assuming of course that the physicians on the panel were even available for the work. Often, they weren't.
The legacy of this, and many more of the various reforms that have occurred over my 30 years in work comp, are still part of the Tower of Babel that we call workers' compensation in California.
That's why I have to agree with Workers’ Compensation Insurance Rating Bureau President Bill Mudge, who told his audience at the conference that the reform conversation will reoccur in three years.
“All those things are still in our system,” Mudge said. “I’m hard-pressed to see how costs are not going to rise.”
It may be more than three years before "reform" enters the workers' compensation parlance again, but trust me, it will. And I have no faith that those tasked with making changes will have learned anything.
Because if there's one thing that bureaucracy is good at, it is perpetuating bureaucracy.
Wednesday, October 2, 2013
Horse Racing Sets Example
“Other states have made attempts at this and failed, but I’d make a strong argument that California manages their workers’ comp risk far better than any state in the country.”
That surprising statement came from John Unick, president of the Thoroughbred Racing Division at MOC Insurance Services a San Francisco-based broker and managing general agency. He was talking about the Finish Line Self Insurance Group that was established 8 years ago to provide affordable coverage to the horse racing industry in California.
A quick search of the WorkCompCentral archives will reveal that the horse racing industry was really hit hard on workers' compensation rates about 10 years ago, with some trainers paying upwards of $40 to $50 per $100 of payroll for coverage. The crisis threatened to shut down horse racing in California.
Finish Line now covers 98% of all thoroughbred trainers in the state and generates about $16.5 million in "premium" to fund the program every year.
The managers of the group took a creative, and unusual, way of calculating premiums for members.
The groups 450 members pay based on the number of horses as opposed to employees – in other words, a trainer with 50 horses is going to pay 10 times more for workers’ comp coverage as a trainer with five horses. This formula was devised to get around the issue of trainers routinely underreporting payroll.
Because underreporting payroll was so rampant in the industry, and the injury rate remained high (this is, after all, a sport) traditional carriers just assessed higher rates per payroll ever year, until it reached the critical stage threatening the industry's survival. And trainers would underreport payroll even more, creating a vicious cycle.
Under the Finish Line program, because rates are based on each horse, they are easily quantified and there is no gaming on payroll. In fact, the occupation with the highest injury rate in the industry - exercise trainers - were not counted on a trainer's payroll in the past. Trainers would consider them independent contractors even though under California law they are to be considered employees, along with jockeys.
Now, exercise trainers are covered for work comp because their payroll is not a factor.
Finish Line’s members pay $2.95 a day per horse. This makes calculating premiums a snap because the number of horses trainers have at each racetrack is easily traceable with stable superintendents.
Another important factor that has been critical to Finish Line’s success has been how it calculates its experience modification rate or mod rate. The program does not base its performance on individual members’ mod rate, but rather on the group’s performance.
If a jockey is injured in a race as a result of another horse’s actions, but the jockey on the horse at fault did not get injured, the mod rate for the trainer whose jockey was injured would go up, even though he or she did everything right. Calculating the mod rate as a group is one way to make everyone responsible for each other’s actions.
This is the kind of creativity with the right incentives constructed that can make workers' compensation a shared burden without the volatility of radical reforms bent on changing claim behavior. All claims originate from employment - how the employment relationship is managed can have a dramatic impact on how the overall system performs.
And at the same time encourage safe practices as well as discourage fraudulent behavior.
Obviously this method of "insurance" is not transferable to other industries. The point I'm making is that non-traditional techniques can be successfully deployed to manage risks if one is willing to explore alternative options with an open mind and a little creativity.
That surprising statement came from John Unick, president of the Thoroughbred Racing Division at MOC Insurance Services a San Francisco-based broker and managing general agency. He was talking about the Finish Line Self Insurance Group that was established 8 years ago to provide affordable coverage to the horse racing industry in California.
A quick search of the WorkCompCentral archives will reveal that the horse racing industry was really hit hard on workers' compensation rates about 10 years ago, with some trainers paying upwards of $40 to $50 per $100 of payroll for coverage. The crisis threatened to shut down horse racing in California.
Finish Line now covers 98% of all thoroughbred trainers in the state and generates about $16.5 million in "premium" to fund the program every year.
The managers of the group took a creative, and unusual, way of calculating premiums for members.
The groups 450 members pay based on the number of horses as opposed to employees – in other words, a trainer with 50 horses is going to pay 10 times more for workers’ comp coverage as a trainer with five horses. This formula was devised to get around the issue of trainers routinely underreporting payroll.
Because underreporting payroll was so rampant in the industry, and the injury rate remained high (this is, after all, a sport) traditional carriers just assessed higher rates per payroll ever year, until it reached the critical stage threatening the industry's survival. And trainers would underreport payroll even more, creating a vicious cycle.
Under the Finish Line program, because rates are based on each horse, they are easily quantified and there is no gaming on payroll. In fact, the occupation with the highest injury rate in the industry - exercise trainers - were not counted on a trainer's payroll in the past. Trainers would consider them independent contractors even though under California law they are to be considered employees, along with jockeys.
Now, exercise trainers are covered for work comp because their payroll is not a factor.
Finish Line’s members pay $2.95 a day per horse. This makes calculating premiums a snap because the number of horses trainers have at each racetrack is easily traceable with stable superintendents.
Another important factor that has been critical to Finish Line’s success has been how it calculates its experience modification rate or mod rate. The program does not base its performance on individual members’ mod rate, but rather on the group’s performance.
If a jockey is injured in a race as a result of another horse’s actions, but the jockey on the horse at fault did not get injured, the mod rate for the trainer whose jockey was injured would go up, even though he or she did everything right. Calculating the mod rate as a group is one way to make everyone responsible for each other’s actions.
This is the kind of creativity with the right incentives constructed that can make workers' compensation a shared burden without the volatility of radical reforms bent on changing claim behavior. All claims originate from employment - how the employment relationship is managed can have a dramatic impact on how the overall system performs.
And at the same time encourage safe practices as well as discourage fraudulent behavior.
Obviously this method of "insurance" is not transferable to other industries. The point I'm making is that non-traditional techniques can be successfully deployed to manage risks if one is willing to explore alternative options with an open mind and a little creativity.
Tuesday, October 1, 2013
Why Penalties Won't Expedite IMR
The debate about the big volume of Independent Medical Review requests in California's new system that were recently reported is all over the map.
Some say that the provider, Maximus, is at fault and many support the Division of Workers' Compensation's proposal for new time lines and penalties for various actions and/or inactions.
There's also plenty of blame slinging going on with employer representatives accusing the applicant attorneys, applicant attorneys implicating carriers/administrators, and everyone else pointing fingers at each other.
But Steven Cardinale, co-founder and Managing Director of CID Management, a Utilization Review company, put it best to me in an email when he said, "SB 863 was conceived in such a way as to assure the overuse of IMR."
I have to agree with Mr. Cardinale - none of the participants in the California system is really to blame for the huge volume going to IMR because the law essentially guaranteed that this would happen, and this is why:
Labor Code section 4610.5, which is a new section added by SB 863 and is the start of the IMR process, provides that the EMPLOYEE has 30 days "after the service of the utilization review decision" to request an IMR (emphasis mine).
The time by which an employee may request an IMR of a UR decision gets extended if the employer doesn't fulfill some obligatory notice requirements or if liability is disputed.
In addition, Labor Code section 4610.6 provides that the cost of the IMR "shall be borne by employers through a fee system established by the administrative director."
Also (you KNEW there was more to the story), no UR decision on a treatment request can be the subject of further review by UR for a year after the UR decision (Labor Code section 4610(g)(6).
So what the Legislature has done is to create time pressures with no other recourse for injured workers to get some determination of a treatment request, and no disincentives.
In fact, the entire process creates huge incentives to seek IMR.
An applicant attorney on a UR dispute is going to absolutely request IMR all of the time. Not only is there nothing to lose by doing so, but the applicant attorney faces an irate client if he fails to do so, and in fact may face claims and/or liability of malpractice for failing to do so.
My guess is that most applicant attorneys have a process already in place for staff to immediately and automatically request an IMR of any and every UR decision that is adverse (or perhaps not even adverse) to their client if, for nothing else, to protect against a claim of malpractice.
And I would not blame applicant attorneys one bit for doing so - their malpractice insurance carriers would demand such systems!
The fact that July 1, 2013 marked the date that any and all UR decisions, regardless of date of injury, would be subject to IMR firmly cemented the radical increase in case load Maximus and the DWC experienced and/or reported.
This has NOTHING to do with Maximus' ability to handle the case load.
There is NOTHING that DWC did to exacerbate the situation.
Applicant attorneys and their clients are not to blame; carriers and administrators have nothing to do with this situation.
The blame is purely, simply, and irrevocably upon the architects of the IMR process and the drafters of the SB 863 language.
The authors, perhaps unwittingly, created intense motivations for nearly every medical treatment request to be appealed to IMR.
The ONLY way to avoid an IMR is to avoid UR in the first place.
The law provides only that carriers and administrators have some UR system in place - it does not mandate that every medical treatment request go through UR, though I know that some payers have systems in place to force all requests to UR for their own reasons, either operational efficiency or liability concerns.
But that is irrelevant to this discussion, which as you likely have concluded, is just another example of unintended consequences.
I was initially a proponent of IMR and frankly I think that the CONCEPT is sound.
But the execution is fatally flawed and will never work in its current configuration. The motivations built into the law are misguided.
Back to the drawing board folks...
Some say that the provider, Maximus, is at fault and many support the Division of Workers' Compensation's proposal for new time lines and penalties for various actions and/or inactions.
There's also plenty of blame slinging going on with employer representatives accusing the applicant attorneys, applicant attorneys implicating carriers/administrators, and everyone else pointing fingers at each other.
But Steven Cardinale, co-founder and Managing Director of CID Management, a Utilization Review company, put it best to me in an email when he said, "SB 863 was conceived in such a way as to assure the overuse of IMR."
I have to agree with Mr. Cardinale - none of the participants in the California system is really to blame for the huge volume going to IMR because the law essentially guaranteed that this would happen, and this is why:
Labor Code section 4610.5, which is a new section added by SB 863 and is the start of the IMR process, provides that the EMPLOYEE has 30 days "after the service of the utilization review decision" to request an IMR (emphasis mine).
The time by which an employee may request an IMR of a UR decision gets extended if the employer doesn't fulfill some obligatory notice requirements or if liability is disputed.
In addition, Labor Code section 4610.6 provides that the cost of the IMR "shall be borne by employers through a fee system established by the administrative director."
Also (you KNEW there was more to the story), no UR decision on a treatment request can be the subject of further review by UR for a year after the UR decision (Labor Code section 4610(g)(6).
So what the Legislature has done is to create time pressures with no other recourse for injured workers to get some determination of a treatment request, and no disincentives.
In fact, the entire process creates huge incentives to seek IMR.
An applicant attorney on a UR dispute is going to absolutely request IMR all of the time. Not only is there nothing to lose by doing so, but the applicant attorney faces an irate client if he fails to do so, and in fact may face claims and/or liability of malpractice for failing to do so.
My guess is that most applicant attorneys have a process already in place for staff to immediately and automatically request an IMR of any and every UR decision that is adverse (or perhaps not even adverse) to their client if, for nothing else, to protect against a claim of malpractice.
And I would not blame applicant attorneys one bit for doing so - their malpractice insurance carriers would demand such systems!
The fact that July 1, 2013 marked the date that any and all UR decisions, regardless of date of injury, would be subject to IMR firmly cemented the radical increase in case load Maximus and the DWC experienced and/or reported.
This has NOTHING to do with Maximus' ability to handle the case load.
There is NOTHING that DWC did to exacerbate the situation.
Applicant attorneys and their clients are not to blame; carriers and administrators have nothing to do with this situation.
The blame is purely, simply, and irrevocably upon the architects of the IMR process and the drafters of the SB 863 language.
The authors, perhaps unwittingly, created intense motivations for nearly every medical treatment request to be appealed to IMR.
The ONLY way to avoid an IMR is to avoid UR in the first place.
The law provides only that carriers and administrators have some UR system in place - it does not mandate that every medical treatment request go through UR, though I know that some payers have systems in place to force all requests to UR for their own reasons, either operational efficiency or liability concerns.
But that is irrelevant to this discussion, which as you likely have concluded, is just another example of unintended consequences.
I was initially a proponent of IMR and frankly I think that the CONCEPT is sound.
But the execution is fatally flawed and will never work in its current configuration. The motivations built into the law are misguided.
Back to the drawing board folks...
Monday, September 30, 2013
The Love Hate Dichotomy of Comp
Business hates the cost of workers' compensation and there are continual attempts to hold down the expense by excluding conditions or refining qualifications for coverage.
That is until business gets sued civilly for employment conditions or injuries.
Then all of a sudden workers' compensation should be applicable.
In Louisiana the workers' compensation statutes had been interpreted for several years by two appellate level courts to exclude hearing loss from coverage - that is workers who have demonstrated injurious exposure resulting in a gradual degradation of their hearing over time could not receive workers' compensation benefits.
The underlying theory is that Louisiana law requires an injury to be "sudden" or "violent" to fall within the ambit of workers' compensation, though there is a catch all phrase permitting coverage where "the usefulness of a physical function is seriously permanently impaired."
In a case that's similar factually to those prior appellate holdings, Graphic Packaging International Inc. got sued, and lost, by six former employees alleging their hearing had been damaged gradually from years of workplace exposure. Each plaintiff was awarded $50,000.
There originally were 16 employees with separate lawsuits. One of the plaintiffs had been working at the plant since the 1950s.
The parties chose six claimants to represent the "first flight" of plaintiffs whose cases would be tried together.
The plaintiffs alleged that the plant was so noisy that people had to yell to be heard or read lips and use hand signals. They testified that their hearing had not been tested regularly and when they were tested, they weren't given the results. Their employer did not provide hearing protection until the late 1980s or early 1990s, the plaintiffs said.
The workers said that their hearing loss occurred gradually, and some were not aware of a problem until 2004, when their attorneys had their hearing tested. (In reading the cases and the news report, it seems there may be a cottage industry in Louisiana on hearing loss cases.)
Fortunately for Graphic the Louisiana 2nd Circuit Court of Appeal ruled that gradual hearing loss caused by years of workplace exposure is compensable as an occupational disease under the Louisiana Workers' Compensation Act.
Earlier opinions by the 3rd and 4th Circuit Court of Appeal have held that hearing loss does not meet the definition of accident in Louisiana.
The 2011opinion from the 4th Circuit in Becker v. Murphy Oil Corp. ruled "that gradual hearing loss resulting from occupational noise exposure over a period of many years simply cannot meet the definition of an 'accident' under any version of the LWCA."
If In Arrant v. Graphic Packaging International Inc. et al., 48,197-CA, 09/25/2013, goes up to the Supreme Court and Graphic wins, then the plaintiffs probably are out of luck because the statute of limitations has long run on filing for work comp benefits.
I'm not offering an opinion on Louisiana law, or even the court opinions.
All I'm pointing out is that workers' compensation is certainly convenient when it is more cost effective than doing without.
And that cottage legal industries will sprout whenever there is opportunity for exploitation.
That is until business gets sued civilly for employment conditions or injuries.
Then all of a sudden workers' compensation should be applicable.
In Louisiana the workers' compensation statutes had been interpreted for several years by two appellate level courts to exclude hearing loss from coverage - that is workers who have demonstrated injurious exposure resulting in a gradual degradation of their hearing over time could not receive workers' compensation benefits.
The underlying theory is that Louisiana law requires an injury to be "sudden" or "violent" to fall within the ambit of workers' compensation, though there is a catch all phrase permitting coverage where "the usefulness of a physical function is seriously permanently impaired."
In a case that's similar factually to those prior appellate holdings, Graphic Packaging International Inc. got sued, and lost, by six former employees alleging their hearing had been damaged gradually from years of workplace exposure. Each plaintiff was awarded $50,000.
There originally were 16 employees with separate lawsuits. One of the plaintiffs had been working at the plant since the 1950s.
The parties chose six claimants to represent the "first flight" of plaintiffs whose cases would be tried together.
The plaintiffs alleged that the plant was so noisy that people had to yell to be heard or read lips and use hand signals. They testified that their hearing had not been tested regularly and when they were tested, they weren't given the results. Their employer did not provide hearing protection until the late 1980s or early 1990s, the plaintiffs said.
The workers said that their hearing loss occurred gradually, and some were not aware of a problem until 2004, when their attorneys had their hearing tested. (In reading the cases and the news report, it seems there may be a cottage industry in Louisiana on hearing loss cases.)
Fortunately for Graphic the Louisiana 2nd Circuit Court of Appeal ruled that gradual hearing loss caused by years of workplace exposure is compensable as an occupational disease under the Louisiana Workers' Compensation Act.
Earlier opinions by the 3rd and 4th Circuit Court of Appeal have held that hearing loss does not meet the definition of accident in Louisiana.
The 2011opinion from the 4th Circuit in Becker v. Murphy Oil Corp. ruled "that gradual hearing loss resulting from occupational noise exposure over a period of many years simply cannot meet the definition of an 'accident' under any version of the LWCA."
If In Arrant v. Graphic Packaging International Inc. et al., 48,197-CA, 09/25/2013, goes up to the Supreme Court and Graphic wins, then the plaintiffs probably are out of luck because the statute of limitations has long run on filing for work comp benefits.
I'm not offering an opinion on Louisiana law, or even the court opinions.
All I'm pointing out is that workers' compensation is certainly convenient when it is more cost effective than doing without.
And that cottage legal industries will sprout whenever there is opportunity for exploitation.
Friday, September 27, 2013
Don't Be A Professional Athelete
Sitting on the desk of California Governor Jerry Brown, among other legislation sent his way this month, is the NFL Bill, AB 1309, by Assemblyman Henry Perea, D-Fresno.
I have come out against this bill since the beginning and I know that my rants here won't make a rat's arse difference to the Governor; he's going to sign it because my words are not as powerful as the NFL lobby.
But that won't preclude me from pointing out what a travesty this piece of thoughtless legislation is, and how it not only will deny professional athletes from rightly deserved workers' compensation, but likely will increase the cost of providing coverage because of the litigation that is going to follow.
The reason is that professional athletes move around a lot, and there is always going to be a debate about what happened when and where.
Not only that, but in order to preserve rights in California, athletes are going to file claims much earlier, and more frequently, to ensure they are protected against the new statute of limitations in the bill.
AB 1309 provides that an athlete who spent fewer than 20% of his "duty days" in California in the year preceding an on-the-field injury, must file a claim in his home state. Additionally, the bill says an athlete must spend at least 20% of his career duty days or two years for a California team, and spend fewer than seven years with an out-of-state team to file such an occupational disease or cumulative trauma claim in California.
Our report on the bill this morning includes vignettes of popular athletes that would create such litigation over these restrictions after a review of a database of professional athlete work comp claims in California published by the Los Angeles Times.
Basketball star Bill Walton would not have been allowed to file his two cumulative trauma claims that are included in the L.A. Times database. While in college at UCLA, Walton led the Bruins to two national championships. But because of injuries he saw limited action while on the roster for the San Diego / Los Angeles Clippers from 1979 to 1985, after playing or the Portland Trail Blazers from 1974 to 1978, and for the Boston Celtics from 1985 to 1987.
Walton's case would exceed the requirement to play fewer than seven years for an out-of-state team despite the fact that the end of his career was in California.
Walton has filed 14 claims for specific injuries reflected in the L.A. Times list of about 800 NBA players who have filed claims in California. Would Walton be excluded from those claims because of the "duty day" requirement?
Bo Jackson, the cross-sport wonder, played football for the Los Angeles Raiders and baseball for the Kansas City Royals. He dislocated his hip in 1990 during a playoff game in the Los Angeles Memorial Coliseum ending his professional football career after just four years.
At the time, he had played five seasons for the Royals and then went on to play three years for the Chicago White Sox and another season for the California Angels.
The L.A. Times database shows Jackson filed a cumulative trauma claim against the Chicago White Sox and another claim against the Los Angeles Angels.
Because Jackson played baseball for eight years for teams outside of California, Jackson would be prohibited from filing a claim in California, even though his last year in baseball was in California and even though his football career ended with his injury in Los Angeles.
The Los Angeles Times points out other absurd results under the bill because of the perception that professional athletes earn big money - that's not the case for most athletes covered by AB 1309.
For instance, hockey player David Cousineau, who skated for teams such as the Las Vegas Wranglers, Phoenix Roadrunners and Long Beach Ice Dogs, earned just $650 a week toward the end of his five-year career.
Though he never made the NHL, The LA Times database reflects a string of traumas to his head, shoulders, back and legs. In 2010, Cousineau settled claims against his last two teams for $68,000 by compromise and release thus agreeing to cover his own medical expenses for these injuries.
The professional sports franchises are banking that the general public doesn't know or care about the athletes; they want their entertainment and they want it fast, furious, competitive. The more damage the better.
The only way to make an impact against what I feel is not only poor legislation and a draconian law is for the player's unions to organize strikes and refuse to play. Whether the unions have the resources, and the support of their members, to do that is questionable.
Athletes generally tend to be in a state of denial with regard to injuries - that's built into their mentality through years of training while young, supple, and able to quickly recover.
I think it's a forgone conclusion that Brown will sign AB 1309. I also think it's foolish for anyone to be a professional athlete in football, baseball, basketball, hockey or soccer.
I have come out against this bill since the beginning and I know that my rants here won't make a rat's arse difference to the Governor; he's going to sign it because my words are not as powerful as the NFL lobby.
But that won't preclude me from pointing out what a travesty this piece of thoughtless legislation is, and how it not only will deny professional athletes from rightly deserved workers' compensation, but likely will increase the cost of providing coverage because of the litigation that is going to follow.
The reason is that professional athletes move around a lot, and there is always going to be a debate about what happened when and where.
Not only that, but in order to preserve rights in California, athletes are going to file claims much earlier, and more frequently, to ensure they are protected against the new statute of limitations in the bill.
AB 1309 provides that an athlete who spent fewer than 20% of his "duty days" in California in the year preceding an on-the-field injury, must file a claim in his home state. Additionally, the bill says an athlete must spend at least 20% of his career duty days or two years for a California team, and spend fewer than seven years with an out-of-state team to file such an occupational disease or cumulative trauma claim in California.
Our report on the bill this morning includes vignettes of popular athletes that would create such litigation over these restrictions after a review of a database of professional athlete work comp claims in California published by the Los Angeles Times.
Basketball star Bill Walton would not have been allowed to file his two cumulative trauma claims that are included in the L.A. Times database. While in college at UCLA, Walton led the Bruins to two national championships. But because of injuries he saw limited action while on the roster for the San Diego / Los Angeles Clippers from 1979 to 1985, after playing or the Portland Trail Blazers from 1974 to 1978, and for the Boston Celtics from 1985 to 1987.
Walton's case would exceed the requirement to play fewer than seven years for an out-of-state team despite the fact that the end of his career was in California.
Walton has filed 14 claims for specific injuries reflected in the L.A. Times list of about 800 NBA players who have filed claims in California. Would Walton be excluded from those claims because of the "duty day" requirement?
Bo Jackson, the cross-sport wonder, played football for the Los Angeles Raiders and baseball for the Kansas City Royals. He dislocated his hip in 1990 during a playoff game in the Los Angeles Memorial Coliseum ending his professional football career after just four years.
At the time, he had played five seasons for the Royals and then went on to play three years for the Chicago White Sox and another season for the California Angels.
The L.A. Times database shows Jackson filed a cumulative trauma claim against the Chicago White Sox and another claim against the Los Angeles Angels.
Because Jackson played baseball for eight years for teams outside of California, Jackson would be prohibited from filing a claim in California, even though his last year in baseball was in California and even though his football career ended with his injury in Los Angeles.
The Los Angeles Times points out other absurd results under the bill because of the perception that professional athletes earn big money - that's not the case for most athletes covered by AB 1309.
For instance, hockey player David Cousineau, who skated for teams such as the Las Vegas Wranglers, Phoenix Roadrunners and Long Beach Ice Dogs, earned just $650 a week toward the end of his five-year career.
Though he never made the NHL, The LA Times database reflects a string of traumas to his head, shoulders, back and legs. In 2010, Cousineau settled claims against his last two teams for $68,000 by compromise and release thus agreeing to cover his own medical expenses for these injuries.
The professional sports franchises are banking that the general public doesn't know or care about the athletes; they want their entertainment and they want it fast, furious, competitive. The more damage the better.
The only way to make an impact against what I feel is not only poor legislation and a draconian law is for the player's unions to organize strikes and refuse to play. Whether the unions have the resources, and the support of their members, to do that is questionable.
Athletes generally tend to be in a state of denial with regard to injuries - that's built into their mentality through years of training while young, supple, and able to quickly recover.
I think it's a forgone conclusion that Brown will sign AB 1309. I also think it's foolish for anyone to be a professional athlete in football, baseball, basketball, hockey or soccer.
Thursday, September 26, 2013
Don't Blame; Wear the Shoes
The blame game is on with the California Independent Medical Review process.
August saw 15,731 IMR applications. The trend appears to be about the same number of requests for September.
But the company that secured a two-year no-bid contract to provide IMR services, Maximus Federal Services, allegedly is still working to clear requests from July when the company received about 3,000, according to the Division of Workers' Compensation.
Maximus wouldn't talk to WorkCompCentral reporter Greg Jones, instead deferring all questions to the DWC.
DWC has simply said that they think the numbers have peaked and that things will settle down, calling the back log of requests of up to two months a "slight delay."
California Applicants’ Attorneys Association consultant, Mark Gerlach, told Jones that the problems begin with Utilization Review - inadequate instruction, direction and control over the UR process that is causing an excess number of IMR requests.
Gerlach believes there are too many UR decisions made on faulty or incomplete information because UR is not required to review complete medical records pertaining to a treatment request and physicians aren't tasked or willing to provide more information with their work loads. He proposes that UR reviewers undertake more effort to communicate directly with physicians making the treatment requests.
“Physicians will often say if they get a chance to talk to the UR reviewer, they can work things out. But in case after case, when you look at the UR decision, it says, ‘I attempted to call the physician twice, was not able to get through, and therefore, I’m denying the treatment,'” Gerlach claims.
That may be, but I think the issue is deeper - too much UR in the first place.
It was excess UR that caused the IMR process to be conceived and delivered via SB 863. The complaint from the negotiators of that bill was that too many medical treatment decisions were taking up judicial resources.
Now too many medical treatment decisions are taking up administrative resources.
And the common denominator is UR, because an IMR can not occur without a UR decision denying treatment in the first place.
I don't know who is making all of the IMR requests. IMR can be requested by the injured worker, his or her representative or the treating physician. I'm not sure it matters - IMR doesn't begin unless there is a UR denial.
And each IMR request costs the carrier (and ultimately the employer) $560 for a "standard review."
If what Gerlach says is true, that so many UR denials are based on failure to communicate, then there is a breakdown in the process as one file gets pushed off a desk to make way for the next file. The time burdens, the work load, the human factor, can not deal with the volume for whatever reason.
Workers' compensation has many areas of study and analysis. We look at lots of numbers to try and figure out what is happening, whether it is frequency and severity of injury, to volume of certain medical procedures or prescriptions - numbers are a big part of the workers' compensation analysis.
But one thing that we aren't very good at, and I think it's just because nobody has done it, is to follow the life cycle of a treatment request (or any other micro-process within the system).
This is called systems analysis - the study of sets of interacting entities to identify a better course of action and make a better decision than might otherwise have been made."
The truth is that we as an industry don't really know how this entire machine that has been constructed to process industrial injury claims really works. We have rules and procedures, laws and regulations, but the fact is that we don't have any real, foundational understanding as to how all of this impacts the momentum of a case.
When computers were first coming into the scene, Apple and Microsoft, and other top software vendors, spent tons of time and money actually sitting down with users to observe exactly how they interacted with the machines. Visual and auditory cues were observed, ergonomic tests were devised, users were interviewed, all in the attempt to completely understand the process by which someone interacts with a system to get the proposed work done, one step at a time.
This analysis allowed designers and engineers to skip redundant steps and build in better functionality and reliability.
Work comp is a Byzantine mess that has been compiled over the years to address concerns and desires of various special interest constituents without adequately studying how such changes would affect the actual life cycle of a claim file.
Assumptions were made based on anecdotal evidence often charged with emotional pleas that were not necessarily based on real, tested, validated data.
We can speculate, we can blame, but until we "walk a mile in [their] shoes" we really won't have any idea what to do.
August saw 15,731 IMR applications. The trend appears to be about the same number of requests for September.
But the company that secured a two-year no-bid contract to provide IMR services, Maximus Federal Services, allegedly is still working to clear requests from July when the company received about 3,000, according to the Division of Workers' Compensation.
Maximus wouldn't talk to WorkCompCentral reporter Greg Jones, instead deferring all questions to the DWC.
DWC has simply said that they think the numbers have peaked and that things will settle down, calling the back log of requests of up to two months a "slight delay."
California Applicants’ Attorneys Association consultant, Mark Gerlach, told Jones that the problems begin with Utilization Review - inadequate instruction, direction and control over the UR process that is causing an excess number of IMR requests.
Gerlach believes there are too many UR decisions made on faulty or incomplete information because UR is not required to review complete medical records pertaining to a treatment request and physicians aren't tasked or willing to provide more information with their work loads. He proposes that UR reviewers undertake more effort to communicate directly with physicians making the treatment requests.
“Physicians will often say if they get a chance to talk to the UR reviewer, they can work things out. But in case after case, when you look at the UR decision, it says, ‘I attempted to call the physician twice, was not able to get through, and therefore, I’m denying the treatment,'” Gerlach claims.
That may be, but I think the issue is deeper - too much UR in the first place.
It was excess UR that caused the IMR process to be conceived and delivered via SB 863. The complaint from the negotiators of that bill was that too many medical treatment decisions were taking up judicial resources.
Now too many medical treatment decisions are taking up administrative resources.
And the common denominator is UR, because an IMR can not occur without a UR decision denying treatment in the first place.
I don't know who is making all of the IMR requests. IMR can be requested by the injured worker, his or her representative or the treating physician. I'm not sure it matters - IMR doesn't begin unless there is a UR denial.
And each IMR request costs the carrier (and ultimately the employer) $560 for a "standard review."
If what Gerlach says is true, that so many UR denials are based on failure to communicate, then there is a breakdown in the process as one file gets pushed off a desk to make way for the next file. The time burdens, the work load, the human factor, can not deal with the volume for whatever reason.
Workers' compensation has many areas of study and analysis. We look at lots of numbers to try and figure out what is happening, whether it is frequency and severity of injury, to volume of certain medical procedures or prescriptions - numbers are a big part of the workers' compensation analysis.
But one thing that we aren't very good at, and I think it's just because nobody has done it, is to follow the life cycle of a treatment request (or any other micro-process within the system).
This is called systems analysis - the study of sets of interacting entities to identify a better course of action and make a better decision than might otherwise have been made."
The truth is that we as an industry don't really know how this entire machine that has been constructed to process industrial injury claims really works. We have rules and procedures, laws and regulations, but the fact is that we don't have any real, foundational understanding as to how all of this impacts the momentum of a case.
When computers were first coming into the scene, Apple and Microsoft, and other top software vendors, spent tons of time and money actually sitting down with users to observe exactly how they interacted with the machines. Visual and auditory cues were observed, ergonomic tests were devised, users were interviewed, all in the attempt to completely understand the process by which someone interacts with a system to get the proposed work done, one step at a time.
This analysis allowed designers and engineers to skip redundant steps and build in better functionality and reliability.
Work comp is a Byzantine mess that has been compiled over the years to address concerns and desires of various special interest constituents without adequately studying how such changes would affect the actual life cycle of a claim file.
Assumptions were made based on anecdotal evidence often charged with emotional pleas that were not necessarily based on real, tested, validated data.
We can speculate, we can blame, but until we "walk a mile in [their] shoes" we really won't have any idea what to do.
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