Archive for the ‘Best Practices’ Category

Tom Lynch interviewed by Steve Schmutz at Claimwire

Wednesday, June 18th, 2014

Pardon us while we self promote for a minute… but many thanks to Steve Schmutz at Claimwire for featuring Tom Lynch in his interview series. For those of you who don’t know Tom and would like to learn a little more about him, you can read the interview here: Industry Spotlight: 20 Questions with Tom Lynch, CEO at Lynch, Ryan & Associates…and when you’ve read that, here is an archive of all Steve’s prior interviews with insurance leaders. They are interesting reading because they dig below the professional surface with some questions designed to reveal what makes these well-known insurance professionals tick – who influenced them, what their career paths have been like, who they admire and other interesting questions that give insight. Thanks, Steve, for including Tom in your series.
Since this is blog post with Tom Lynch as a topic, it gives me a podium to add my personal perspective. As someone who has known and worked with and for Tom for more than 20 years, I would add that he is remarkable visionary and has been a key influencer in our industry — as well as on the lives and careers of his many employees over the years.
Today. many of the day-to-day employer best practices in managing workers’ comp claims that we take for granted were nurtured in the Lynch Ryan “labs” in the early days of the company. In those bad old days, Tom brought the true entrepreneurial spirit to addressing a broken system. “Changing the paradigm” is a shopworn cliche that rarely plays out beyond press releases, but Lynch Ryan truly shifted the approach by focusing on managing the human event rather than the financial transaction, a change in focus that enabled better and healthier outcomes for worker and employer alike. Tom & team identified many of the flaws and friction points in a malfunctioning system: a system in which most employers had better plans in place to address their copy machine breakdowns than they did for their injured workers; a system that was essentially geared to treating the “bad apple” on the bell curve, but not the preponderance of honest and legitimately injured workers; a system in which employers took a hands-off stance at point-of-injury, a critical management/human juncture; a system in which employers were paying large sums of money for a service it knew little to nothing about. Tom applied common sense management principles and a human-focused approach to fixing these problems saving employers a bundle in the process. Treating people well and fairly was actually more cost effective than treating people suspiciously and punitively — who knew!
Tom hired a remarkable team in those early days (if I do say so myself, heh), inspired them with passion and gave them wide latitude to enact their ideas – effecting some out-sized industry-wide practices that continue to this day. I can say that it has been a true privilege to work with Tom.

Review: Work Safe: An Employer’s Guide to Safety and Health in a Diversified Workforce

Monday, November 18th, 2013

Review of work produced by Peter Rousmaniere, with support from Concentra and Broadspire.
Of the 15 occupations that are expected to see the largest numerical growth between now and 2020, foreign-born workers, immigrants, are currently over-represented in eight of them. And of those eight, six are classified as “low-skilled” for which a high school diploma is not required. The Bureau of Labor Statistics projects that these occupations will grow by 42% between 2010 and 2020. Odds are that they will continue to be over-represented by foreign-born workers.
Consider this:

  • Forty-nine percent of private household employees are immigrants;
    • Within the Construction industry, 65% of all “reinforcing iron and rebar” workers are immigrants, and they total 27% of all construction laborers;
  • Forty percent of maids and housekeepers in the Accommodation industry are immigrants; and,
  • While immigrants comprise 24% of all the workers in the Agricultural industry, they make up 61% of the field workers.

As of 2010, 29% of immigrants between the ages of 25 and 64 lacked a high school degree, as opposed to 7.4% of the U.S.-born population. And, although immigrants make up 15.8% of all U.S. workers (something a bit hard to believe when you consider their ridiculous over-representation in those fast growing industries), they account for 20% of all reported injuries.
These facts, alone, make Peter Rousmaniere’s Work Safe: An Employer’s Guide to Safety and Health in a Diversified Workforce (PDF), published with support from Concentra and Broadspire, a timely and compelling read. Moreover, it’s free and is available as a pdf download at Broadspire.
Rousmaniere, publisher of the Working Immigrants blog since January 2006, and, until November 2013, a columnist for Risk and Insurance Magazine, has, until now, been a “voice crying in the wilderness.” He’s been banging the drum and sounding the alarm, saying that we, as a nation, and particularly as employers, are unprepared–indeed, are refusing to prepare–to deal with the needs and cultural differences presented by immigrant workers. A Harvard MBA, Rousmaniere believes that, although there is a moral imperative for doing so, making the effort to become sensitive to the language and cultural differences in our immigrant workforce just makes good business sense. And in this 57-page, 6×9 inch, handsomely produced Employer’s Guide he skillfully makes the point.
Although immigrants are also over-represented in high-skilled jobs, this book is really aimed at the vast underbelly, immigrant workers who lack the education and skill set to navigate through the thorny thicket of work rules and health care issues, immigrants who may speak wonderful Spanish, or any number of other languages, but nary a word of English. The theme running through the entire book is one that urges us not to assume that English-challenged immigrant workers understand what we say, even when we say it in their language. Rousmaniere makes this point over and over again, so much so that I thought the book could have been somewhat shorter without losing a thing.
To me, this sentence is the big pitch:

“…moderately or low-skilled immigrants working in jobs of average or above-average injury risk are likely to face greater safety issues even if they work alongside U.S.-born workers.”

The book has an excellent chapter on safety training in which Rousmaniere doesn’t so much suggest what to say, but rather how to say it. He writes about teaching through stories, role-playing, body mapping and pictures. He’s big on pictures, recommending that employers go so far as to hire cartoonists, because cartoonists have “a knack for telling a story in one or many panels.” He even describes how cartoonists get paid and offers “Tips for working with artists.”
In the Workers’ Compensation chapter, Rousmaniere offers a novel idea — the prepaid indemnity card. He points out that about a third of the people who earn less than $30,000 a year don’t have bank accounts and, consequently pay hundreds of dollars a year in check cashing charges. To help them, he suggests that claims payers contract with debit card vendors to pay indemnity benefits directly to injured workers via the card, which the vendor would arrange to have honored at ATMs. Interestingly, this isn’t a new concept. Rousmaniere says, “An increasing number of employees receive their wages via a payroll debit card.” Left unsaid is what that “increasing number” actually is, but if you think about it, his idea might have more than a little merit because of the inexorable gravitational movement of technology.
The book has an extensive chapter on “Medical Care Across Cultures,” and here Rousmaniere is writing about all medical care, not just work injury care. Again, it’s all about translation and culture. He gives an illustration: “In some societies, it’s believed that coughs are always fatal.” I found myself wishing he’d enlighten us as to which ones.
He writes about “Job-Specific Challenges in Cross-Cultural Care” and says that “Medical Case Managers are likely to have to confront a patient’s steep learning curve when it comes to understanding the American health care system.” I found that one a bit rich, as in – does any patient understand the American health care system, if you can call it that.
In fact, I found that much of the chapter on health care really applied, not only to immigrants, but also to many native-born Americans who are unskilled at navigating the health care maze and have what Rousmaniere calls “low health literacy.” For example, he offers a bullet list of “side effects” for this affliction: failure to seek preventive care, leading to more ER visits and hospital admissions; no written agenda for medical visits; missed appointments; lack of follow-through with imaging tests; misuse of medications; and so on.
Rousmaniere suggests an “Rx for Hospitals: Professional Interpreters.” Moreover, he points out, “The Civil Rights Act obligates medical providers to arrange for patient communication in the most suitable language for the patient.” I did not know that. He offers health care providers another bullet list of tips for overcoming language differences. In today’s health care world the first tip, “Slow down. Plan double the normal time,” might be hard to achieve. Trouble is, the tips all make good sense. They’re thoughtfully done, and, were it not for our health care assembly line process, they’d be the norm. My bottom line takeaway to Rousmaniere’s health care recommendations: they will take nearly dictatorial leadership to implement.
Then for good measure, in case we’ve missed the point, Rousmaniere throws in an entire chapter on translation and interpreting, entitled “Translate This!” But just when you know to the soles of your boots that this translation thing has gone way too far, he throws in this Case Study zinger that makes you think he might be right to concentrate so much on this:

“An English-speaking hospital staff once misinterpreted a patient’s complaint of “intoxicado” as an admission of being intoxicated, not that the patient felt nauseous. The mistake resulted in permanent paralysis and a multi-million dollar financial settlement.”

The translation and interpreting chapter lists a number of resources of which health care and insurance pros will likely be unaware. He compliments California for Senate Bill 853, which “requires that health insurance organizations provide free and timely translation and interpretation services for patients with limited English proficiency.” And Rousmaniere’s “10 Planning Steps for Translation and Interpreting” is spot on.
But for my money, the little jewel in this book is the last chapter – “Free Online Resources.” I loved it. He has hunted down a wonderful library of resources that every professional in the field should have at his or her fingertips. They come as General Resources, such as a number of truly excellent offerings from the State Compensation Fund of California, Spanish to English and English to Spanish dictionaries published by OSHA, and resources aimed at a number of industries, the ones with all those low-skilled, fairly uneducated immigrants. Excellent, indeed!
All this may be a bit much for middle and small market employers, who may not think they have the resources or time to invest in this level of acculturation. I suspect that this book may not be a big seller for them. Health care professionals, on the other hand, would be well-advised to study it closely.
But, here’s an idea: if insurance companies and insurance agencies were to distribute the book to their customers, that would go a long way toward educating employers and getting Peter Rousmaniere out of the “wilderness.” For, in the immortal words of that great American philosopher and discount retailer, Sy Syms, “An educated consumer is our best customer.”
The official launch of the Guide will take place at the National Workers’ Compensation Conference in Las Vegas, NV, November 20-22.

Back to the Future?

Monday, November 4th, 2013

If you’ve been following the blog-o-sphere and the LinkedIn-o-sphere, you know that the space is crowded. Lots of workers comp practitioners have glommed on to the idea that the way to get ahead is to write and post frequently. Connect with more than 500 others in the profession. Write something, anything, put your name on it and throw it up against the wall to see if anything sticks. Kind of the way Garrison Keillor used to say he changed socks on a book tour.
Every once in a while, something helpful and interesting appears and gains a bit of temporary caché for itself and for its author. Mostly, the topics center on the persistent rise in medical costs and, even more often, on the insidious and, some would say, criminal use of opioids, which a regrettable number of alleged doctors, having checked their Hippocratic Oath at the door, are prescribing at a hell-bent-for-leather rate at a hell-bent-for-leather profit. The poor, unfortunate souls for whom these scripts are written are nothing more than high-cost collateral damage.
Consequently, efforts to control workers compensation costs are now almost entirely dedicated to reining in costs associated with medical care with a huge emphasis on prescription drugs.
My colleagues and I have always believed (and, I add, have time and again been proven right) that the workplace is the best place to control and manage work injuries and costs. That, in order to do that, employers need to be educated so that they understand that they, not the vendors to whom they outsource payment responsibilities, are the hub of the workers comp wheel. In the mid 1990s, at the height of the worst workers comp crisis ever to hit the market, this hypothesis became fact. Our clients, as well as the clients of a number of our competitors, overcame the workers comp troubles of the day because they learned that treating workers compensation in a Management 101 kind of way reduces costs to a minimum and goes a long way toward bolstering profits as well as employee morale and productivity. This meant training supervisors in the proper response to work injuries, keeping close communication with injured workers, creating good relationships with treating physicians, bringing injured workers back to work under medical supervision, seeing that injured workers received full pay while on modified duty, and measuring success every month just as they measured success in every other business enterprise. These, and other program components, gave these enlightened employers a distinctive competitive advantage, and the results spoke for themselves.
Something has happened between then and now. I think of it as the “workers compensation dark ages.” There are still enlightened employers, but many have lost their way. We took a system that we had made relatively simple for employers to manage (and let’s not forget that it is employers who ultimately pay the bills) and we made it progressively more complicated. We made medical care into a haunted house maze that only experts can navigate (hence, the rise of medical experts). Employers, suddenly realizing that they are now the south bound end of a north bound mule, have relinquished control to a myriad of vendors, the “experts.” Not all employers, of course. Large, sophisticated organizations with well-oiled risk management departments, have not lost the focus, although they have to work harder to stay the course.
So, like Pogo, “We have met the enemy, and he is us.”
The question is: What are we going to do about it? Could it be that the way forward is by way of the way back?

Annals of Claims Management: Full Catastrophe Denial

Tuesday, May 7th, 2013

In the Insider’s decade of exploring workers comp, we have encountered many unusual instances of compensability, legitimate claim denials and outright fraud. But rarely have we found cases where a claims administrator, in this case, a TPA, simply refuses to pay for medically necessary treatment. The saga of the late Charles Romano reminds us that the great bargain of workers comp is not just between employers and their workers; it includes the good faith effort of claims adjusters to carry out the letter – and spirit – of the law.
Charles Romano worked as a stocker for Ralph’s Grocery Company, a California-based operation that is part of the Kroger chain. It is worth noting from the outset that Kroger is self-insured for comp, with Sedgwick serving as the TPA. As a stocker, Romano presumably did a lot of lifting and reaching. He suffered a work related injury involving his shoulder and back in August of 2003.
A Solution Worse than the Problem
After conservative treatment failed to resolve the problem, he underwent surgery in December 2003. What had seemed like a relatively simple solution to a shoulder problem quickly descended into a grave, life-threatening situation: Romano contracted a MRSA infection following the surgery, which led directly to total paralysis. He suffered renal failure and several heart attacks, which were related to the MRSA infection. After enduring inadequate medical treatment directly related to the TPA’s denial of treatment, Romano died in May 2008.
Nearly three years after the initial surgery, a workers comp administrative law judge (WCJ) ordered that the TPA pay for all the medical expenses related to the infection. Without consulting with medical professionals, the TPA unilaterally refused all payments – totalling, by this time, hundreds of thousands of dollars. The TPA appealed the adverse ruling.
In February 2012, a workers comp administrative law judge imposed penalties for delay of treatment in eleven specific instances, finding that the TPA “failed in its statutory duty to provide medical care, egregious behavior which increased the suffering of a horrifically ill individual.” He imposed the maximum $10,000 fine for each denial of treatment.
Unappealing Appeal
The TPA appealed the penalties for delayed treatment. In what surely qualifies as a new definition of chutzpah, the TPA contended that penalties were not appropriate, among other reasons, because the claimant had died. Well, duh, the routine denial of treatment throughout the course of the illness was a significant factor in the death. Romano simply did not receive medically necessary treatments to address his formidable medical conditions.
NOTE: The penalties, even when maxed out at $10,000 per incident, is dwarfed by the suffering inflicted upon Romano.
The Workers Comp Appeals Board upheld the penalties [For a link to a PDF of the lengthy ruling, Google “Charles Romano Trust vs. Kroger Company]:

The WCJ’s Report makes it clear that he imposed the harshest penalties possible under section 5814 because of defendant’s extensive history of delay in the provision of medical treatment; the effects of those delays on a paralyzed, catastrophically ill employee; the lengths of the various delays; and defendant’s repeated failure to act when the delays were brought to its attention.

Lest the ruling be considered in any respect ambiguous, the court went on to say: “We have rarely encountered a case in which a defendant has exhibited such blithe disregard for its legal and ethical obligation to provide medical care to a critically injured worker.”
Risk Transfer, Risk Retention
It is tempting to conclude that the TPA’s actions were related to their customer’s risk assumption – otherwise known as self insurance. It is one thing to purchase insurance (risk transfer) and have the insurance company assume liability for a catastrophic loss. It is quite another for a self-insured company to absorb a loss of this magnitude on its own. (Presumably Kroger had some form of stop loss in place.) Despite the multiple findings of compensability, despite the judicial determination that the horrendous MRSA infection was indeed work related, the TPA persisted in denying treatments and rejecting payments, long after Romano’s untimely death.
As Mark Twain famously noted, “denial is not just a river in Egypt.” It’s also a poor strategy for managing claims. In his last years, the unfortunate Charles Romano certainly had to confront health issues beyond anyone’s worst nightmare; denial for him was not an option. For reasons that remain unclear, when it came to paying for Romano’s extensive and expensive care, the TPA chose a path of full catastrophe denial .
In the findings of the court, this denial was in itself an unmitigated disaster for the acutely vulnerable Romano, accelerating his precipitous decline and death. In the interests of saving their client some serious bucks, the TPA dug in its heels and refused to accept the compensability of a claim that had been adjudicated as compensable. In doing so, they violated the spirit and letter of the workers comp contract and earned themselves, in this particular instance at least, a place on the Insider’s Management Wall of Shame.

Opioid Catastrophe: The Data Leads to Doctors

Monday, March 4th, 2013

After two stimulating days at the Workers Comp Research Institute conference, the Insider is ready to solve the opioid problem. To be sure, WCRI is a research-driven organization and makes no claims of solving problems; it simply reveals them through stark, powerful data. However, in a series of presentations ranging from improving the way doctors prescribe drugs through the mobilization of entire communities to tackle the problem, the conference has illuminated the path toward a favorable resolution of this increasingly dire problem.
Dr. Karin Mack of the Centers for Disease Control established the parameters of the problem: death from drug overdoses – mostly involving prescribed medications – now kills more people than traffic accidents. While heroin and cocaine account for about 4,000 deaths annually, opioids kill four times as many people – more than 16,000 in 2010. Most of the drug overdoses involved people of working age (between early 20s and 60). Dr. Mack identified the population most at risk:
– “Doctor shoppers”
– People receiving high daily doses of opioids and those using a variety of drugs
– Low income people and those living in rural areas
– Medicaid populations
– People with mental illness or a history of substance abuse
When the discussion shifted specifically to workers comp, the data becomes even more alarming. In some states, over 80% of injured workers receive opioids for pain relief – way too many! The prescribed doses are often much higher than is medically necessary. For many workers, the prescriptions extend for many weeks, even though pain usually subsides relatively quickly. And finally, very few doctors are monitoring patients who have been prescribed opioids.
Doctor Problems
Given that drug abuse has reached catastrophic proportions, and given that most of the problem involves prescribed – as opposed to illicit – medications, it is becoming increasingly clear that doctors are a big part of the drug problem. They are too quick to prescribe opioids; they prescribe them for too long; and they fail to monitor injured workers who are on these medications. The first red flag, in other words, is raised over the heads of our medical practitioners.
Dr. Dean Hashimoto outlined a Massachusetts initiative that significantly reduced doctor mistakes in prescribing opioids (a summary of the state’s approach can be found here). The guidelines:
1. Distinguish between acute and chronic pain. For acute pain, doctors should explore ady and all alternatives before prescribing opioids and then carefully re-evaluate before extending the initial prescription.
2. For chronic pain [in itself a red flag], doctors should run urine screens to determine whether the prescribed drug is being used properly and whether other drugs have been taken; they should meet fact to face with patients as frequently as needed; and they should try to focus on function rather than pain.
Note that these are steps that doctors should, but all-too-often don’t take. Combine that with the fact that a small number of doctors are generally responsible for a huge number of prescriptions: in California, 3% of doctors prescribe over 50% of the opioids. Once again, doctors are at the root of the drug problem.
PDMPs
In addition to improving best practices in the medical use of opioids, we need to know more about prescription practices. This involves the evolving tool of prescription drug monitoring programs (PDMPs), which track prescription practices of doctors across a given state. Because the programs are state based, they vary widely on how they work: what is tracked, how often data is submitted, how it is analyzed and what is done with it. Ideally, to be effective, the data should be collected on a real-time basis, but in practice, it’s generally submitted weekly. Ideally, there should be standards across all state PDMPs: everyone collecting the same data, in the same form, generating information on prescription practices and “hot spots” with consistency.
Brandeis University’s Center for Excellence identifies the best practices for PDMAs. But we live in an age where uniform standards are anathema. It’s just not going to happen, so we’ll have to live with the current chaos – which, however inadequate, is better than nothing.
Community Mobilization
While there is much that can and should be done at the doctor-patient level to fix the opioid problem, such efforts cannot solve the problem. We can actually map the crisis across the country and identify specific communities that have been devastated by drug abuse. The conference highlighted efforts in eastern Kentucky, where in some counties half the children are being raised with no parents in the home (the parents being dead from overdoses, incapacitated by addiction or in prison). Under Operation UNITE, the community has responded with a combination of drug enforcement, coordinated treatment, support for families and friends of abusers, education and mentoring for young adults. They teach kids archery and fishing, among other things, surely an example of putting the beautiful natural surroundings to good use.
It is hardly surprising that one focus of UNITE is the pill mills that are frequently found in poor, rural areas. One doctor prescribed over 100,000 pills a month (!) by issuing 40-50 scripts each day (!). Don’t bother asking whether Dr. Hashimoto’s standards of treatment were followed.
The Path to a Cure
The WCRI conference illuminates the path toward solving the opioid abuse catastrophe: teach doctors how and when to use these powerful drugs and how to find alternative treatment forms; carefully monitor injured workers on opioids to ensure proper use; severely limit the use of these drugs over the long term; monitor prescription practices to identify doctors who are not with the program; and provide support, mentoring and education to young people in high risk communities.
There are many obstacles to implementing a comprehensive and effective program, but in those areas where key elements have been established, the incidence of opioid abuse has been dramatically reduced. It is ironic, of course, that the stakeholders who must “do no harm” are in fact in the forefront of the problem. They can and must do better. Medicine got us into this mess and it is medicine, with its highly trained and presumably well-intentioned practitioners, that must lead the way out.

Training Employers: How To Reach The Other 80%

Tuesday, February 19th, 2013

Last week, WorkersCompensation.com published a blog post by John D’Alusio entitled, “The Responsibility of Policyholder Education.” In it, Mr. D’Alusio talks about a friend’s troubling, frustrating and painful experience after a work injury, a torn finger tendon. The friend works for a self-insured Florida city whose claims are managed by an unnamed TPA. According to Mr. D’Alusio’s friend, the TPA, slow off the mark, delayed necessary treatment, dueling physicians traded opinions (slowly) and the employer, the city, was uninvolved, uneducated and unhelpful. In a word, clueless.
Mr. D’Alusio’s overarching question in all of this is, “Who’s responsible for educating the employer and employee about the workers comp system?” In other words, who is responsible for teaching workers comp best practices to employers who are all legally required to comply with workers comp statutes?
Here at Workers Comp Insider, we don’t usually talk about ourselves, but Mr. D’Alusio’s question prompts me to step outside that box for a moment, because his question is the same one I faced nearly 30 years ago.
I was an entrepreneur looking to start a business, and friends in the insurance industry suggested looking at workers comp, because costs around the country were raging like a California wildfire, and nobody seemed to have any answers that worked.
Knowing nothing about the subject, I at least had fresh eyes. And what I saw was that, even though workers comp insurers, agents, TPAs, et al, claimed to provide employer education, no one was actually doing it. The only thing employers knew about workers comp was that they had to buy it, and if employees were injured, the insurer was supposed to take care of it. Employers lived in a workers comp wasteland.
That insight was why we created Lynch Ryan with the mission to educate employers that the workplace is the best place to control and manage workers compensation. We were successful in that, and we grew into a substantial and influential management consulting company, and in 1991 Travelers Insurance made us an offer we couldn’t refuse, because they needed help. Heady stuff.
Yet, today, while large, enterprise organizations (many of them our clients), have sophisticated systems in place, systems that start with an unrelenting focus on safety, that provide immediate and excellent care for injured workers when safety fails, that return them to meaningful transitional work along a programmed path back to full duty, and that, consequently, keep costs to an absolute minimum, the other 80% of American business does not have the resources or the training to do the same, as Mr. D’Alusio’s Florida example illustrates. Why? Because traditional training is expensive, and a $7,000 premium (add a zero, if you’d like) doesn’t justify it, so everything is always unplanned and reactive. Moreover, many insurers, TPAs and agents have neither the time nor the inclination to provide meaningful training for the folks who pay the bills.
So, I’m back to my 30-year old question. We have millions of employers in America, call them all students. Who teaches, and how do they do it?
The answer? Technology and eLearning. That’s our new sandbox. What’s yours?
If you’d like to see what we’re doing, here’s a 1-minute tease. Contact Lynch Ryan if you’d like to know more – email me directly or connect with me on LinkedIn.

Policy Wonks, Lend Me Your Ears!

Thursday, February 7th, 2013

The Insider is very much looking forward to the Workers Compensation Research Institute (WCRI) annual conference, taking place on February 27-28 in the virtual epicenter of wonkiness, Cambridge MA. There is always much food for thought in these annual gatherings of insurance execs, state officials, policy makers, attorneys, medical specialists, employers and safety/loss control practitioners.
This year’s agenda has zeroed in on the fundamental medicine-related conundrums facing workers comp systems across the country. All of us in workers comp long for insights into the following:
Unnecessary medical care and its impact on treatment guidelines. (Back surgery, anyone?)
Medical price regulation: what are the essential elements of an effective fee schedule? (Beware of the state where the doctors love comp…did someone mention “Connecticut”?)
The Opioid epidemic: treatment protocols involving the generous and prolonged distribution of opioids are destroying lives across the country. Why are so many doctors so clueless about the proper use of pain killers? Whatever happened to “do no harm”?
WCRI’s head honcho, Dr. Richard Victor, will host a discussion on health care policy involving (the presumably liberal) Howard Dean and (the assuredly conservative) Greg Judd. The dialogue might not equal the fireworks of July 4th on the Esplanade, but it might come close. The Insider will be listening closely for any indications of that rarest of phenomena: a common ground.
From Gorilla to ?
Last year, Dr. Victor concluded the conference with a discussion of the “gorilla in the room”: the enormous and perhaps insoluble problem of structural unemployment among the 20 million people who lost jobs in the recent recession. For many of these people, especially those in their 50s and 60s, there is little prospect of returning to jobs with anywhere near the same rate of pay as before. Many will find themselves lost in the new economy, cobbling together part-time employment without benefits, while struggling to hold onto housing where mortgages exceed the value of the home. Tough times and, so far, not much in the way of effective solutions.
This year Dr. Victor will have to find some other animal analogy to glean lessons from history: Giraffe in the closet? Rhino in the den? He tells us that the lesson might have something to do with the first century Ephesians, toward whom St. Paul addressed some rather famous snail mail. While some might find such a teaser a bit obscure and full of religious overtones, the Insider looks forward to the story. Indeed, we look forward to this year’s entire conference with great anticipation. There are few things better for policy wonks – our people! – than listening to the latest research from WCRI. Diligent note-taking will be in order.
If you count yourself among those with wonkish tendencies and you haven’t signed up yet, you’d best jump on it immediately. If you have any questions about the conference, contact Andrew Kenneally at WCRI: 617-661-9274.

Aging Workers, Limited English, Limited Skills

Tuesday, November 20th, 2012

When a laborer with limited English is disabled from physical work, is he obligated to increase his employability by learning English? This interesting question emerged in the case of Enrique Gutierrez, a 48 year old welder who worked at Merivic, a company specializing in grain-related processing. Gutierrez came to the United States at age 14, but in his 34 years in the country never learned to speak or write English. While at work, Gutierrez fell about 10 feet onto a steel table, injuring his shoulder and wrist. He underwent two surgeries, worked for a while as a one-armed welder, and then was let go. His post-injury functioning was significantly limited, including difficulty lifting and carrying, gripping and grasping, and reaching.
When the workers comp commission found him permanently and totally disabled, the employer appealed and the case reached the Iowa Court of Appeals, where the finding of compensability was upheld. Up until 2007, Iowa courts routinely lowered the indemnity paid to limited English speaking workers, on the theory that a language disability was something within the power of the worker to correct. A case entitled Lovic v. Construction put an end to that practice. The reasoning in this decision is worth quoting:

Unfortunately, this line of cases [involving reduced indemnity]
overlooked the fact that the employers who hired these workers should
have reasonably anticipated that an injury which limits an ability to return
to manual labor work would have far more devastating consequences
upon non-English speaking workers than English speaking workers.
Oftentimes, this agency has penalized non-English speaking workers
despite the knowledge that the employers actually recruited such workers
because they were willing to work for less wages.

In other words, you get what you pay for: limited English speaking workers are willing to work for less, so the employer benefits from this potential “disability.” The ruling goes on to attack the rationale for the reduced wages:

What has been troublesome to many, including myself, is that this
agency has never similarly treated non-immigrant workers for failing to
learn other skills. Defendants would certainly have trouble citing any
agency or court precedent in the workers’ compensation arena where an
industrial award for an English speaking worker was lowered because the
injured worker, before the injury, failed to anticipate he would suffer a
devastating work injury and failed to obtain a type of education before the
injury that would mitigate the effects of such an injury.
We simply cannot assume that claimant was capable of such training or that such classes are generally successful in leading to employment where fluent English is required . . . .

By reiterating the logic of the pre-Lovic court, Merivic was attacking settled – albeit recently settled – law. The Appeals Court rejected this “collateral attack” on Lovic and upheld the permanent total award, and in doing stumbled upon yet another conundrum: that of the older worker. The court found that once a laborer goes beyond age 47, his ability to perform physically demanding work comes into question. A vocational expert retained by Gutierrez described the 48 year old worker as “approaching advanced age.” The Judge noted that “We have previously held the age of forty-seven is a factor that the commissioner may consider in finding industrial disability.” The expert also noted that Gutierrez’s entire career involved “limited education” and a work history limited to physically demanding jobs, which his permanent work restrictions now prevented him from performing.
The Very Big Picture
Our Colleague Peter Rousmaniere provides a valuable perspective on aging manual workers. In his Risk & Insurance article “The Age Trap” he points out that 55+ workers comprised 16.7 percent of the workforce in 2010, a number projected to increase to 22.7 percent by 2020. In contrast to Enrique Gutierrez, most aging workers are not injured and eligible for workers comp; to be sure, their bodies are wearing down and they are confronted with diminishing strength and balance, even as they desperately try to hold onto their places in the workforce. Rousmaniere suggests that employers develop a renewed focus on prevention, one that has been adapted to the realities of the aging worker. After all, these workers are valued for the skill and experience they bring to the work, even as their work capacities diminish.
The Big picture here – and it is a very big picture indeed – is the dilemma of aging workers who perform physically demanding jobs and who have little education and virtually no transferable skills. There are millions of such workers, some are immigrants, while many others are native born. Most have zero prospects for a secure retirement, even as Congress contemplates pushing social security retirement even further into the future.
Whether they like their jobs or not, aging workers see themselves working out of necessity well into the their 60s, 70s and even 80s. As their bodies inevitably wear out, as their injuries (cumulative and sudden) lead a number of them into workers comp courts across the country, judges will be confronted with the same dilemma that faced the appeals court in Iowa: for older workers with no transferable skills, workers comp becomes the retirement plan of choice for those with no retirement plans and no way to continue working.

A Modest Proposal for New York

Monday, November 5th, 2012

New York’s workers’ compensation system has taken a few high hard ones to the head lately. Premiums are now the 5th highest in the nation (according to the well-respected “2012 Oregon Workers’ Compensation Premium Rate Ranking”); its surcharges are the highest in the nation; the Spitzer reforms, aimed at reducing costs to employers and improving care for injured workers, have done neither; attorney involvement is among, if not the, highest in the nation; the house-that-Jack-built bureaucracy is cumbersome and unwieldy; and all the parties in the system, every last one of them, bemoan what they perceive to be a train wreck of monumental proportions.
At the same time, New York’s Workers’ Compensation Board has come under wilting criticism from nearly all quarters. Mike Whitely, from Work Comp Central, has been doing an excellent job of reporting and documenting the whole thing. Last week, the New York Business Council weighed in with some heavy artillery of its own. In short, everyone’s frustrated, and tempers are frayed.
I know the Board’s senior management, and I am absolutely convinced that all of them, from Jeff Fenster on down, are highly dedicated. These are competent professionals doing the very best they can, but they are up against long odds. They are David with a broken slingshot, and Goliath is growing bigger every day. It does not appear that New York’s loggerheaded vested interests – lawyers, doctors, insurers, unions, the Legislature, employers, and more still – will come to any grand bargain anytime soon.
So, is there anything the Board or anyone else can do to create some positive, forward momentum? I think there is, and it involves what is known as Code Rule 60, which is the New York Department of Labor’s Workplace Safety and Loss Prevention Incentive Program. It’s sometimes known by its really catchy and memorable acronym, WSLPIP. Code Rule 60, which came into being in September of 2009, is supposed to help employers establish DOL certified and approved safety, return to work, and drug and alcohol prevention programs. Participating employers receive premium credits: 4% for safety, 4% for return to work and 2% for drug and alcohol prevention. The credits run for 3 years (but the two 4% components drop to 2% in the second and third years) and are renewable. Only employers with experience modifiers of less than 1.3 are eligible (although why the state prohibits employers who would seem to need it the most from participating is a piece of logic beyond my comprehension).
The premise of Code Rule 60 is that employers who establish these programs will have safer workplaces and, eventually, lower costs. Not a bad idea. The problem is that the DOL has made the program so ridiculously bureaucratic that it would be easier for a New York employer to find his way through a dense maze of thorns, blindfolded, than to negotiate the journey to Code Rule 60 certification. Don’t believe me? Here is the official Labor Law Regulation (PDF), in other words, the way through the thicket. It’s 20 pages of dense bureaucratese. Busy employers find it nearly impossible to wade through the legal Pig Latin.
Code Rule 60 is totally process driven. There is no performance requirement. No performance measurement. Just build a certified program, and good things will happen. Maybe. The New York DOL doesn’t seem to care if the program reduces loss costs. All the DOL wants to know is: Have employers built their programs the way we told them to build them?
With the preceding as background, you might be forgiven for asking how successful has the program been? Regardless of whether they’ve reduced loss costs, how many employers have succeeded in getting those precious premium credits? Even the New York Business Council couldn’t find out, but, anecdotally, the number is fewer than five. Since September, 2009.
So, here’s my proposal: First, scrap Rule 60. It’s not working, and it never will in its present form. Second, Jeff Fenster should pick up the phone and call Paul Meagher, the highly respected President of the Massachusetts Workers’ Compensation Rating and Inspection Bureau (WCRIB). Why? Because long ago at the height of the Massachusetts workers’ compensation crisis, when 65% of the Commonwealth’s employers were in the High Risk Pool, Mr. Meagher was instrumental in establishing the Massachusetts Qualified Loss Management Program. The QLMP (later replicated in Missouri, West Virginia and New Hampshire) is totally performance driven, and it played a big role in the Massachusetts workers’ compensation turnaround, the continued success of which was documented last week by the Workers’ Compensation Research Institute and last month in the Oregon study.
Here’s how it works. Premium credits accrue to Loss Management Consulting Firms whose Massachusetts customers the WCRIB certifies have reduced their loss costs in the year following engaging a firm. The greater the loss cost reduction, the greater the credit, up to 15%, which is then passed on to the Loss Management Consulting Firm’s customers in the succeeding year. Lower loss costs mean lower premiums for employers. The Loss Management Consulting Firms have to requalify every year. So, if a Firm’s results slip, it will see its credit, and probably customer portfolio, reduced. In the QLMP, all of the incentives are lined up so that everyone is motivated towards reducing costs, while providing safe workplaces and high quality care for injured workers. (Full disclosure moment: The QLMP was an idea I gave to the WCRIB and the Massachusetts Division of Insurance).
Here are the rules for the Massachusetts QLMP (PDF), with a Q&A at the end. Four pages, written in simple English that any employer or agent can understand.
Senior management of the New York Workers’ Compensation Board has told me on many occasions that their overarching goals are to reduce costs to employers and to see that high-quality care is provided to injured workers. It’s obvious that Rule 60 is doing neither. A New York version of the Massachusetts QLMP would be a good first step in that direction.

Treatment for War Trauma: Just Say “Om”

Tuesday, October 30th, 2012

As we begin to survey the damage from Hurricane Sandy, a symptom of the global warming that has been religiously ignored in the course of the presidential debates, our thoughts turn toward the impact of trauma: Sandy’s trauma involves man’s influence on nature, but in war we have trauma that is purely the result of mankind’s inability to live in peace.
About 2.4 million soldiers have cycled through the wars in Iraq and Afganistan. One third or more of those returning from battlefields suffer from post-traumatic stress disorders (PTSD) or depression. Suicide has overtaken combat as the leading cause of death in the Army. [That stark statement is worth a second read.] To date, treatment of PTSD has centered primarily on cognitive processing therapy (CPT), a labor-intensive approach that places veterans in a one-to-one relationship with a therapist. But only 40 percent who enroll actually benefit from the therapy, and even if it were more effective, the vast numbers of soldiers in need would require thousands of additional psychologists.
Tina Rosenberg writes in the New York Times of new approaches to treatment. Instead of using the one-to-one model, these new therapies work in groups. And instead of rehashing the images that gave rise to PTSD, these therapies focus on the present moment, long after the trauma has occurred. The Washington-based Center for Mind-Body Medicine has designed a course that involves conscious breathing, meditation, mindfulness, guided visual imagery and biofeedback. Other therapies include acupuncture and yoga. The Center has a proven track record, working with Kosovo high school students and Gaza residents. The techniques appear to work: following the ten-week program, participants in Kosovo had significantly lower symptoms of PTSD than non-participants.
In Gaza, center staff trained over 400 group leaders, who were able to provide therapeutic interventions with 50,000 people. Because of its group approach and relatively short training cycle, large numbers of people can be reached quickly and at very low cost. And retention levels within the training are much higher than those for individual counseling.
Life Skills
In comparison to CPT therapy, the group approach stresses practical coping skills. While there may still be some social stigma attached to participation in individual therapy, there is no such negativity associated with group work – aside, perhaps, from its New Age aura. Most important, the tools being taught are universal: we all experience stress and some degree of trauma and we all need practical techniques to help us adjust to the pace of modern life. Teaching life skills such as mindfulness and meditation does not isolate PTSD sufferers from everyone else; to the contrary, the fundamental lesson is that we all experience suffering and we are all in this together.
Surely these same group techniques would be helpful to devastated citizens recovering from this week’s unprecedented natural disaster.
Teach Politicians to Breath?
I often wonder what would happen if our politicians were taught a few mindfulness exercises. Perhaps there would be more compassion in the world. Perhaps law and policy makers would pause a minute before they spoke, before they ridiculed their opponents or declared war on another country. Perhaps the elected officials who find life sacred at the moment of conception but insignificant once birth occurs would empathize with the plight of women compelled to carry a rapist’s child.
These are agitating thoughts, indeed. Time to take a deep breath, sit still for a moment, and just say “om.”