Archive for the ‘Disability’ Category

Cyborgs and workers comp

Wednesday, October 19th, 2016

cyborgs

 

We’re looking forward to the workers’ comp age of the cyborgs and it looks as though we are getting closer.

Just in case you are sketchy on just what a cyborg is, here’s a refresher from Wikipedia:

“A cyborg (short for “cybernetic organism”) is a being with both organic and biomechatronic body parts. The term was coined in 1960 by Manfred Clynes and Nathan S. Kline.

The term cyborg is not the same thing as bionic, biorobot or android; it applies to an organism that has restored function or enhanced abilities due to the integration of some artificial component or technology that relies on some sort of feedback.”

We are happy to see Roberto Ceniceros championing some exciting mobility technologies in his recent column at Risk & Insurance: The Case for Exoskeletons. He talks about how they are helping some patients with spinal cord injuries to stand up and walk.

“Exoskeletons are assistive devices often described as “wearable robots” or “Segways with legs.” Since 2014, the Food and Drug Administration has approved two models for personal use, including one earlier this year.

Some workers’ comp insurers have already approved a few claims for the motorized devices and the cost of training. Other underwriters have declined to fund them.

The battery-powered devices cost at least $80,000 plus additional training. Safety questions remain and some doctors who agree on the medical benefits they provide are still wary of certifying them as “medically necessary.”

An accompanying article – The New Normal by Susannah Levine – talks more about how advanced care techniques and technologies are helping workers with brain and spinal cord injuries get back to living full lives. She interviews several people who work with catastrophically injured workers talk about what they are seeing in the field.

Also related, NPR Shots features a story on iBOTS or standing wheelchairs: A Reboot For Wheelchair That Can Stand Up And Climb Stairs. These promising chairs were invented by Dean Kamen and although beloved for the few who had them, they went out of production in 2009. But there is hope for a comeback:

“Toyota announced this year that it’s bankrolling a reboot of the iBOT, which the machine’s inventor, Dean Kamen, says will allow him to make some improvements.

“With advances in computers, the advances in solid-state gyros and electronics … we can take a hundred pounds out of it. We can take a lot of cost out of it. We can improve it,” he told NPR.

Kamen is widely known as the inventor of the Segway, which was actually a byproduct from development of the iBOT. The first iteration of the wheelchair had a $25,000 price tag — too high even for the department of Veterans Affairs in most cases. Most veterans who had iBOTs got them from veterans charities, and all but a few are now sitting in the garage, with nowhere to service them.”

The story also interviews Gary Linfoot, a former Army helicopter pilot, who talks about how the iBOT changed his life.

We’ve been posting about mobility devices and assistive technologies over the years – see Make way for the cyborgs: robotic mobility devices. We’re excitied to see the renewed interest in iBOTs and the progress of other devices that help the disabled and the injured lead more functional lives. Bring on the cyborgs!

The Sickest Of The Sick, The Poorest Of The Poor

Tuesday, April 5th, 2016

They comprise less than 4% of the nation’s population, yet consume nearly 34% of health care dollars. Sixty percent are age 65 or older. About 40% are younger people with ADL-qualifying disabilities. More than half fall below the federal poverty level. Almost half never graduated high school. Nearly two-thirds are female. Fifty-eight percent are white/non-hispanics.

They are America’s “Dual Eligibles,” our fellow citizens who qualify for both Medicare and Medicaid benefits. Technically, because they’re Duals, they are not the “uninsured.” Still, they sit smack dab in Obamacare’s bulls eye.

In 2003, here in Massachusetts, a pioneering visionary decided to create a non-profit HMO that would offer as its sole product a Senior Care Option plan aimed at the over-65 Dual population. As a former head of the Long-Term Care Division within the Commonwealth’s Medicaid Program, Mass Health, Dr. Bob Master knew a lot about the Duals and the many challenges they presented. Somehow, he convinced a few academics and business people to join his brand new Board of Directors for his Quixotic quest. I was one of them.

In the early days, the hunt for funding was all-consuming, but against considerable odds, funding was found, and, with the support of CMS and Mass Health, an incubator for the nation was born – Commonwealth Care Alliance.

Bob immediately set out to prove that Duals could achieve significantly better health and well-being at lower cost if they were cared for in a home-based regimen by highly trained teams of providers. And between 2003 and 2014, CCA produced eye-popping proof of concept results. For example, thirty-day hospital readmission rates for these sickest of the sick and poorest of the poor consistently beat Medicare’s overall rate. CCA achieved annual Medicare star ratings of 4.5 or better (Because of Senior Care Option demographics, it is statistically impossible for the company to achieve a higher rating).

CMS took note. And when medical, academic and political luminaries were crafting the Affordable Care Act, Bob was instrumental in convincing them Duals were a target not to be missed.

Consequently, the Affordable Care Act created demonstration projects in nine states from California to Massachusetts to see whether it’s possible to improve the health of all Duals, those over the age of 65 as well as under it, while reducing their health care costs. A tall order, indeed, because it had never been done before.

CMS and Mass Medicaid issued a humongously big RFP. Commonwealth Care Alliance answered it and won the right to play in the new sandbox, called One Care. The year 2014 was spent in preparing. For example, in order to be ready, the company had to double the size of staff (there are now more than 800) and train the newbies to successfully manage CCA’s unique model of care. That was not easy.

In early 2015, we opened the floodgates to the state’s thousands of Duals under the age of 65. Since then, it’s been a thrilling ride, because throughout 2015 CCA had a few near-death-experiences. But with the help of both CMS and Medicaid we were able to negotiate the potholes and speed-bumps, and now, after more than a few sleepless nights, the company cares for more than 17,000 Duals with Medicare and Medicaid premium of more than $850 million. In essence, CCA is beginning (barely) to do well by doing good. To my mind, if the Affordable Care Act, Obamacare, does nothing more than significantly improve the lot in life of the nation’s Duals while lowering their cost of care, it will be a success of the first order.

Now, it’s time to turn the reins over to a new era of leadership. Last Friday, we had a retirement party for Bob Master where CCA employees who could free themselves from work for a couple of hours came to Boston to say hail and farewell. Many came on their own time. There was a great big cake and a lake-full of diet soda and coffee, but no dignitaries, just current staff and a number of Directors. The Chair of the Board said nice things about Bob and the ride we’d all been on. I described how, after all this time, Bob and I had discovered less than a year ago over lunch that, in addition to growing up in the next town to each other, we had been comrades in arms back in the late-60s in Vietnam; in the same Division, even, at the same time. Funny, that.

Many employees read stories they’d prepared for the occasion. Honest tears were shed. Bob gave an extemporaneous speech that was heartfelt and touching. He thanked all who had joined in the noble quest, many by name. Then he rode off into the sunset.

But the work goes on.

 

 

 

 

Fifty States, Fifty Different Laws: A Peter Rousmaniere Analysis

Monday, February 1st, 2016

According to the Bureau of Labor Statistics’ (BLS) Consumer Price Index calculator, what you bought for $100 in 1973 would today cost $533.82. Despite this, during that same period wage growth for the median hourly worker grew by less that 4%. 

Moreover, as the following chart from the Economic Policy Institute (EPI) shows, while wages flattened out after 1973, productivity continued to increase at a steady pace through 2010.

Everything seems to be going up across America except hourly compensation. That helps explain why our recent economic high hard one to the head, known as The Great Recession, has left so many families living paycheck to paycheck, one crisis away from living under a bridge. It also illuminates why the indemnity and medical benefits of workers’ compensation are critical to economic survival following a work injury.

In 2015, ProPublica and NPR published a series of exposès that showed widespread disparity in the way the various states deal with work injuries. Workers’ comp professionals didn’t like the series much, complaining en masse that it was biased, agenda-driven and just plain wrong. Silly me, I thought the series actually made some important points, especially around the level of compensation for loss of function.

Into this battle now rides Peter Rousmaniere, friend, colleague, Harvard MBA, WorkCompCentral columnist and all-around deep thinker.

Mr. Rousmaniere spent a good portion of 2015 researching the economic consequences to injured workers with respect to how the different state workers’ compensation laws deal with the early days of a work injury. He illustrates his findings in The Uncompensated Worker: The Financial Impact of Workers’ Comp on Injured Workers & Their Families, published as a workcompcentral special report.

In the Uncompensated Worker, Peter Rousmaniere creates the metaphorical Tim, a New York electrician earning the median wage for New York electricians. He then goes really deep into the take home pay hit Tim experiences following a work injury. He shows how Tim will always suffer earnings losses while injured regardless of how long he’s out of work, and he does it by considering the waiting period (the number of calendar days between the injury and when indemnity payments will begin), the “shortfall” (“The difference between a workers’ after-tax take-home pay and the amount of the replacement wages”), the “retroactive” calculation (the number of days an injured worker has to lose from work before being paid indemnity for the waiting period) and the maximum weekly benefit cap.

Here’s how Rousmaniere describes what happens to Tim if he misses three, six or ten days due to the injury:

While Tim’s 6% shortfall may not seem unreasonable, additional deductions further reduce his replacement wages. First, there’s a waiting period during which a worker receives nothing, a retroactive period (in most states) and a maximum weekly benefit cap. The amount Tim actually receives depends on the number of days he missed work. We can correlate work and calendar days for Tim by looking at a calendar and figuring his first lost work day on a Monday. If Tim misses three days of work, he receives nothing; losing six days of work yields close to one work day of replacement wages, and losing 10 work days yields five work days (seven calendar days) of replacement wages.

With that New York backdrop, Rousmaniere then shows how Tim would fare in each of the other states. But he goes even farther. Drawing from Economic Policy Institute estimates, which create basic monthly household budgets based on household size and location “to attain a modest yet adequate standard of living,” he builds an EPI-estimated monthly basic budget for Tim and his family of four. He then lays out what happens to the family economy when Tim is out of work due to injury for an extended time, say more than a month. If Tim’s spouse works part-time, the family can’t afford the basic budget in 29 states; if the spouse doesn’t work, they’re under water to the tune of $2,200 a month in every state.

This is sobering stuff. The 50-state and District of Columbia chart at the end of the report is nearly totally comprised of negative numbers.

Reading the report, I’m left with this: Assume (as most claim adjusters tell me) that well over 90% of injured workers really are injured and want to get back to work as expeditiously as possible. Should those workers suffer economic deprivation simply because they had the misfortune to be injured at work? Does society have an obligation to ensure that families, already perilously close to the edge of the financial cliff, are not booted into the abyss because of that work injury? And, finally, is it time for indemnity and medical benefit parity among the states (for example, if Tim were injured in New Jersey he’d fare considerably better than in New York)?

Peter Rousmaniere has performed a valuable service with The Uncompensated Worker. When (it should not be “if”) you read it, you’ll come away admiring the level of research and detail that went into producing it. I also hope you come away thinking their just might be a better way.

 

Are We Only Paying Lip Service To Psychosocial Issues In Workers’ Compensation?

Wednesday, November 4th, 2015

It is a cliché in the workers’ comp industry that claims adjusters never want “to buy a psych claim.” Perhaps that’s why they rarely resort to psychologists until the horse is out of the barn and grazing four pastures over. By then it’s a last resort kind of thing.

I was reminded of this last week in Idaho at the Industrial Commission’s annual conference when Bob Wilson opined during his presentation that he considers the “psychosocial” issue one of the most difficult facing the workers’ comp industry today, one that will become even more problematic tomorrow, a veritable iceberg dead ahead.

I could not agree more.

So, why is it adjusters don’t want to “buy a psych claim?” Pretty simple, really. Most claims adjusters have had the unfortunate experience of referring an injured worker to a psychologist after all else has failed only to discover that the injured worker turns into the psychologist’s lifetime annuity and the adjuster’s worst nightmare. Treatment goes on forever. Also, it often turns into an attitude thing. Claims adjusters consider “going on forever” claims their “problem children.”

That’s a logical inference. The steady march of time is a formidable opponent as one tries to assist an injured person to return to the bosom of the workplace. The longer a worker stays out of work, the more difficult the problem becomes. Comorbidities begin to sprout like the weeds in my woebegone garden. In many cases, staying out of work becomes the new full-time job. What’s an over-burdened adjuster to do?

Perhaps on Day 1 of the claim giving strong consideration to the psychosocial would help. Unfortunately, as adjuster pros know, the First Report of Injury won’t give many clues here. Deep digging is required. If available, predictive analytics can be the adjuster’s best friend. Still, an even better bosom buddy is experience. Over thousands of conversations with injured workers, an experienced claims adjuster will acquire a profound recognition of nuance. Not settling for the basic questions, but rather peeling the injured person’s personality onion to discover what really matters will allow for early detection of those relatively rare cases where speedy referral to a qualified psychologist might make all the difference.

And psychologists need to shoulder some responsibility here. Most know not even the first thing about workers’ compensation and give every indication of being proud of it. The only insurance premium that matters is the one labeled “Malpractice.” Experience Modification is nothing more than an oxymoron. Many do not understand, and do not want to understand, that helping someone become as mentally healthy as the day of exiting the womb is not the same thing as maximum medical improvement.

And what if payers and psychologists could agree to the rules of the road right up front. For instance, coming to an understanding about qualitative and quantitative goals, about the need for a finite number of sessions, about agreeing that there are certain signs which, if manifested at the beginning of a claim, suggest that the claim would benefit from early psychological intervention? And what about the idea that entrance into a payer network should not be determined solely by a License to practice and the forced acceptance of a ridiculously low fee? Quality and results matter.

There’s a fair amount of education that ought to go on here. Payers would be wise to begin that education today. Why? Because identifying early and resolving quickly the factors that have the potential to turn physical injuries into mental health problems will save employers, the folks who pay the bills, a significant amount of money and adjusters, whose goal it is to put the toothpaste back in the tube, considerable otherwise wasted time.

The next frontier in prevention: Mental Health

Wednesday, May 6th, 2015

May is Mental Health Month and while the focus of workers comp prevention generally revolves around issues of physical safety, perhaps employers should expend more energy in promoting the mental/emotional well being of workers, as well. We just had a dramatic example of the effects of mental illness in the workplace in the horrific case of the suicidal Germanwings pilot who crashed the commercial jet he was flying, resulting in 150 casualties. While this might seem an outlier, an extreme case, the workplace has all too many examples of violence resulting in injuries and death. Depression and mental health issues are a workplace reality and, on the whole, they aren’t being addressed all that effectively. This should be no surprise – society at large isn’t doing such a great job when it comes to mental health issues.

Mental Health America has designated this year’s Mental Health Month theme as a prevention/early intervention one: B4Stage4. They note that we need to change the way we think about mental health:

“When we think about cancer, heart disease, or diabetes, we don’t wait years to treat them. We start before Stage 4–we begin with prevention. When people are in the first stage of those diseases and are beginning to show signs or symptoms like a persistent cough, high blood pressure, or high blood sugar, we try immediately to reverse these symptoms. We don’t ignore them. In fact, we develop a plan of action to reverse and sometimes stop the progression of the disease. So why don’t we do the same for individuals who are dealing with potentially serious mental illness?”

Among the many steps to rectify this, MHA suggests Getting informed;
Getting screened and Getting help. The site has a plethora of communication resources, graphics and fact sheets that would help in an employer communication program.

Employers should Treat the individual, not the stigma.” That’s the advice from Terri L. Rhodes, Executive Director of the Disability Management Employer Coalition (DMEC) in a recent issue of Risk and Insurance. She cites the prevalence of depression in the general population at about 9 percent, according to the centers for Disease Control. This makes it likely that about 1 in every 10 workers is grappling with depression at some point in their work life.

Rhodes says:

Employers in particular need to become educated about recognizing signs and symptoms of depression and anxiety. This alone sends a powerful message that mental illness, like all illness, respects no title or position. Utilize the services of EAPs.”

She notes that while EAPs are an almost ubiquitous benefit, “they are woefully underutilized.” Managers should be trained in when and how to best use and refer to EAPs.

Mental health as a preventive issue is important, but it also an important consideration in post-injury recovery and return to work. An article in LexisNexis talks about post-injury depression as it relates to dealing with disabilities, the process of pursuing workers’ compensation benefits, and anxiety related to the ability to return to work.

The article cites the costs from a recent study on post-injury depression conducted by Abay Asfaw, Ph.D., and Kerry Souza, Ph.D., of the Centers for Disease Control and Prevention.

The study further quotes the determination of the Bureau of Labor Statistics that “after-injury depression costs workers, group health insurance plans and/or taxpayers at least an extra $8.2 million … within a 3-month study period in 2005 dollars. Such costs of treating depression as a sequel to injury are typically not included in estimates of the economic burden of occupational injury.” These numbers do not include related costs, such as inpatient care and prescription drugs.

Employers can play a significant role in fostering workplace mental health, both in the general work population and specifically with workers who are in post-injury recovery. Here are some resources for learning more.

Partnership for Workplace Mental Health – a program of the American Psychiatric Foundation in conjunction with various employers. It offers employer case examples, publications and services.

ACOEM’s Work Disability Prevention Guideline: “Preventing Needless Work Disability by Helping People Stay Employed

The Disability Management Coalition

Jennifer Christian, MD: A Big Idea Person If There Ever Was One

Tuesday, June 3rd, 2014

The workers comp buzzword of the era seems to be “Opioids.” Whether it’s big Pharma creating ever stronger varieties and then using money and muscle to co-opt doctors, or physicians dispensing from a kind of pharmacy in their offices and over-prescribing on a grand scale, Opiates rule the day. Everyone talks about them and many try to do something to counter what is turning, or, in some areas has turned, into a bona fide epidemic.

The Opioid problem is relatively easy to understand. Greed throws a Fancy Dress Ball, and everyone shows up. And there are villains. Joe Paduda has been shining an arc light on many at his highly influential Managed Care Matters blog. He deserves great credit for making it just about impossible for people to ignore this issue. Joe does outrage well.
We’ve also written about it often, for example, recently focusing on my home state of Massachusetts and the Zohydro ER wars.

Which brings me to Dr. Jennifer Christian, a heroine of mine of considerable distinction.

Jennifer, or Dr. J, as she’s sometimes known to friends, does not go after the easy answers. Smart and articulate, she never settles for a quick fix when something more profound is needed. Unfortunately, quick fixes seem to be what everyone clamors for these days. In any event, before I get to the main point of this screed, I want to take just a moment of your time to sing Dr. Christian’s praises.

I’ve known Jennifer since Managed Comp, which many readers (I hope) recall as the nation’s largest managing general underwriter and which I co-founded with Tufts Associated Health Plan in 1987. Jennifer became Managed Comp’s Chief Medical Officer in the mid 1990s and thus began to have an impact on how injured workers were treated on a large scale. Earlier in her career she had tremendous success reducing frequency and severity (by 68%) at Maine’s Bath Iron Works, where 8,000 iron workers were breaking records in their workers comp race to the bottom.
After Managed Comp, she founded Webility, her consulting company, and, in 2001, the Work Fitness & Disability Roundtable, still going strong with more than 1,300 worldwide members from all areas of workers comp and disability management. The Roundtable just published issue number 3,206.
In 2006, Jennifer, a woman of big ideas, created the 60 Summit Project, whose mission was to “Propagate the work disability prevention paradigm across North America.” From 2006 to 2012, she fashioned 60 Summit groups in all 50 states and 10 Canadian Provinces.

As Chair of the Work Fitness & Disability Section of the American College of Occupational & Environmental Medicine (ACOEM), Jennifer was instrumental in creating the ACOEM Guidelines, which emphasize a systems and evidence-based treatment of the whole person.

So, why am I heralding this remarkable physician? Here’s why: Over time, Jennifer came to realize more and more that, as we say at Commonwealth Care Alliance, “Healthy is harder for some.” And the ACE Study proved that. Haven’t heard of the ACE Study? It’s a 17,000 person study and collaboration between the Centers for Disease Control and Kaiser Permanente. ACE stands for Adverse Childhood Experiences, and the the study produced a 10-question tool that can predict injuries that will more than likely have difficult outcomes unless systemic and personal intervention is applied. I say “personal,” because Jennifer believes that what’s required in those kinds of cases is not the traditional approach to working with injured and disabled people. She realizes that returning those unfortunates to good health requires the assistance of a guide or coach, trained, experienced and good at helping people see what is in their best interest, who will lead them to find the tools and resources they need to make themselves better.

Sounds touchy-feely, doesn’t it? A little soft? So what? Jennifer is proving that it works.

She’s created a program she calls Maze-Masters, and is piloting it with a couple of insurers (confidential, at the moment). She’s hoping that as she builds success after success, insurers will see the benefits to this one-on-one, personal approach. I think insurers and employers will always do what is in their economic best interests, so I’m hoping she trumpets the cost savings above all else, because that’s the way the world works.
I’m also hoping that at least one insurer, a super-regional perhaps, dives into Maze-Masters with both feet. Better yet, SSDI, Social Security’s Disability Insurance program, is fertile ground for this kind of effort.

Lately, I’ve been writing about people, Quixotes all, charging great big windmills. Some will say this is another windmill charge. Not me, though. That is small mind thinking. Disability in all its forms with all its problems (think about those opioids) requires great big minds thinking great big ideas. That’s Jennifer Christian in a nutshell.
Oh, one last thing, just in case you’re wondering: I have absolutely no connection or involvement, economic or otherwise, in anything Jennifer is doing. I just admire the woman.

Pike’s Pique: The Stress of Behaving Badly

Monday, July 29th, 2013

John Pike may be the most (in)famous campus cop in America. He was video taped on November 18, 2011, at the University of California, Davis, spraying seated demonstrators with pepper spray. His demeanor was remarkably casual, as if he were spraying bushes for an infestation of bugs. He is now the subject of a meme that has spread across the internet, with images of Pike spraying Christina, in the famous painting by Andrew Wyeth, among other things. While we live in a culture where many are famous for being famous (the Kardashians come to mind), Pike is famous for one moment of his policing career.
An internal investigation by the university recommended that Pike be demoted. New police chief Michael Carmichael – the original chief had resigned – rejected that recommendation, deciding, in July of 2012, to fire Pike. There were a number of problems with Pike’s behaviour: he used an unapproved pepper spray that was three times stronger than the university’s preferred brand and he violated university protocol by spraying people in the face at close range.
Enter Workers Comp
Pike has filed a stress claim under the California workers comp statute. The state used to be famous for its lenient criteria for stress claims: only 10 percent of the stress had to be work related for a claim to be compensable. (How could work not comprise at least 10 percent of what is wrong in one’s life?) Over time, California tightened up the compensability guidelines, which now total six (as outlined by the Kenton Koszdin Law Office):
1.The employment must be six months or more. Check
2.The employee must have a psychiatric condition that is listed in DSM IV. Probably a check.
3.The employee must prove that the actual events of employment are the predominant cause of the psychiatric condition (51% or more). Definitely a check.
4.A psychiatric condition that is substantially caused (35%–45%) by good faith, non discriminatory personnel action(s) is not compensable as a work-related injury. Examples of good faith personnel actions are criticism of the employee’s work or attendance, change in work assignments, and decision about raises or promotion. The employer has the burden of proof on this issue. DNA.
5.A psychiatric injury that is caused by the litigation process is not compensable. Examples of psychiatric injury caused by the litigation process are an employees reaction to the denial of their claim, dealing with an abusive claims adjuster, or having their benefits terminated.DNA
6.A stress claim or mental–mental psychiatric injury claim filed after termination or notice of termination is not compensable unless the employer know of the injury or medical records of treatment for the psychiatric dated prior to the termination exist. He filed on June 10, presumably before the notice of termination.
A Mental-Mental Claim
Pike must prove compensability of the notoriously difficult “mental-mental” claim. In many states, there must be a physical injury that precedes the mental disability. In this case, the physical injury was limited to the protesters; the university settled their claims for $1 million. In the immediate aftermath of the incident, Pike in his new-found infamy has been subject to harassment, threats and humiliation. He is the principal subject of a meme that has spread throughout the internet. Stressful? Certainly. Compensable? Possibly, but by no means a certainty.
Pike’s former employer will try to show that he violated policy in spraying the students, including the use of an unapproved spray. Pike will undoubtedly try to show the ambiguity of the university’s policies, perhaps a lack of training specific to the circumstances he faced.
In the meantime, Pike has lost a job that paid in excess of $100,000 per year. He has achieved indelible fame for a single, ill-advised work-day decision. He is without a doubt suffering from work-related stress – stress of his own making – but the compensability of that stress is another matter altogether. We await the results of the August conference with great interest.

IMEs in a New York Minute

Tuesday, July 23rd, 2013

Back in 2009, we blogged an expose from the New York Times concerning the abuse of independent medical exams (IMEs) in New York. The article quoted 79 year old Dr. Hershel Samuels, who performed as many as 50 exams in a day. He filled out a checklist and let others write the reports. Did he read these reports? “I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. They want speed and volume. That’s the name of the game.”
Muckraking journalism apparently did not solve New York’s IME problem. Which brings us to orthopedist Michael Katz, who makes a pretty good living performing, among other things, about 1,000 IMEs a year for the state of New York. [Details can be found at the invaluable Workcompcentral (subscription required).] After examining an injured worker, Manuel Bermejo, Dr. Katz wrote up his findings. In testimony, he declared that he spent 10 to 20 minutes with Bermejo. Unfortunately for Dr. Katz, Bermejo secretly recorded the session, which lasted just four seconds shy of 2 minutes.
Tantrum in the Court
When presented evidence of the IME’s duration, Queens Supreme Court Judge Duane Hart went ballistic. “How do I stop carriers from putting people like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand?” Judge Hart referred the transcripts of the proceedings to a Queens administrative law judge for potential perjury action against Dr. Katz.
The judge’s rage is understandable: IMEs are a vital activity in workers comp: in theory, IMEs offer a fresh, objective look at a worker’s injuries to determine what, if anything, is wrong, the extent of the disability and the role work played in it. In an ideal world, the IME is dispassionate, with no vested interest in the ultimate determination of compensability.
Good Faith, Bad Faith, No Faith
Dr. Katz claims he has been set up by plaintiff attorneys, who believe he acts primarily to further the interests of insurance carriers. (Here is a link to a plaintiff attorney’s blog featured Dr. Katz and other alleged abusers of IMEs.) On the other hand, there are surely IME doctors who tend to find in favor of injured workers and are thus favored by plaintiff attorneys, .
The world of medicine is supposed to be driven by objective medical evidence, but doctors are hardly robots, evidence is in the eye of the beholder and what the doctor sees might well be influenced by political views, personal history and, yes, even financial considerations.
It is interesting to note that the Bermejo claim began in the workers comp system, where the benefits are limited to lost wages and medical costs. Because the injury involved a fall from heights, the claim also fell under New York’s unique – and understandably unreplicated – Scaffold Law. But the claim now involved literally millions of dollars: Bermejo was suing the hospital where he was treated for malpractice. It is this last suit that brought Dr. Katz into Judge Hart’s courtroom. The judge was hoping for an objective analysis of the claim in order to determine whether the hospital had really screwed up. Alas, he ended up with no faith whatsoever in the quickie IME performed in the proverbial New York minute.

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.

Massachusetts: Governor Adding Insult to Injury?

Wednesday, April 24th, 2013

We have long touted Massachusetts as the gold standard for workers compensation reform. In 1990 the state operated the second or third highest cost comp system in the nation; today MA is ranked 44th, with rates less than half of those in the other New England states. At the same time, the benefit structure is relatively generous, with a maximum indemnity wage of $1,150. The “taxachusetts” label applies to many aspects of living in the Bay State, but the cost of workers comp insurance is certainly not one of them.
But as is so often the case, failure lurks at the edge of success. The Insider has written extensively about the rate suppression that is opening like a sink hole below the market. The comp rates are so low, even good risks become questionable, simply due to the law of averages. Any company in MA with a .80 mod is by definition a marginal risk, because there is not enough premium to cover the exposure.
Generous to a Point
While benefits for injured workers are for the most part generous, there is one aspect of comp where state benefits fall short of what is needed and what is available in most states: injured workers only receive 60 percent of their average weekly wage, compared to the 66 2/3 percent or higher offered in other states. The 60 percent figure emerged in negotiations during the monumental reforms of 1990; even then it seemed harsh to extract savings from the pockets of those least able to afford it.
Now, in a desperate effort to increase revenues, Governor Deval Patrick is proposing that workers comp indemnity benefits be taxed. As a result, the already reduced 60 percent would be reduced another 4-6%, depending upon the final income tax rate in the new budget. Such taxation would violate the spirit of workers comp and exacerbate the stress of being injured and out of work. One of the unintended consequences of such a tax would be to push injured workers into the hands of attorneys, who thrive on friction and live off the most inefficient and expensive part of comp, cash settlements.
A Matter of Fairness
There are many factors contributing to the MA success story: a stingy fee schedule that doctors abhor, reduced reliance on settlements, which antagonizes claimant attorneys, a speedier dispute resolution process, and a reduction in indemnity benefits for workers.
In the Bay State, injured workers have already paid a price for the lower costs of workers comp. It would be unfair to ask these workers to make even greater sacrifices, when workers in other states receive higher benefits with no taxation. No matter what the rationale for taxing indemnity benefits may be – supporting education, fixing infrastructure – the measly $8 million raised by such a tax would be insignificant when compared to the cost to those least able to absorb it. It’s hard enough suffering through the pain of injury and recovery without adding insult to injury by further reducing already reduced income. This is a very bad idea and it should be tossed from the budget immediately.