Misclassification and Regulation, Will Government be Nimble

The Federal Aviation Administration (FAA) recently announced that it will scramble to enact registration regulations for remote control aircraft, called "drones." It hopes to have these in place before the 2015 holiday season. Some report that holiday drone sales are anticipated to be over 1 million units this year; lots of gift-giving. These are not your remote-control helicopters for $19.99. These include four-rotor craft with cameras mounted beneath, selling for $600-$1,000 at your local home technology store. The law is struggling to keep up with this relatively new technology.

There have been model planes for years. Perhaps it is disingenuous to call drones "new." But model planes were a somewhat expensive hobby, engaged in by relatively few. Recent technology has not created drones, but has increased the capability of these devices while decreasing cost. Previously, there was apparently no perception of regulation needed for very small aircraft. In fact, the Delawareonline reports some believe the FAA lacks jurisdiction to regulate anything under 55 pounds. All of these new roto-drones seem to fit into that weight category. 

The FAA will now try to have regulations in place for drones by the 2015 holiday season. That is ambitious. When it announce plans for these rules there were only about 60 shopping days remaining until Christmas. DelawareOnline reported that the FAA goal was to have regulations submitted by November 20, 2015. It named a committee of "25 representatives from the aviation industry" to accomplish that regulatory feat in less than 30 days. The committee's final report was dated November 21, 2015. 

The FAA is reacting to this technology. It is likely that the outcome will be a requirement that owners of these drones will have to register them in a federal database. The government is seeking to adapt to the technological change with rules that acknowledge the challenge. The alternatives are to do nothing regarding these devices or to use existing regulation to deal with change, a more reactive approach. Technology is evolving and the government strives to keep up. The capability of various technology is repeatedly doubling, rapidly, as costs bring more and more technology into consumer hands. Regulation will be a challenge. 

Employment also continues to evolve in the United States. We look to regulation and legislation to provide parameters and consistency. But that appears to be a similar challenge. We see evolving relationships in the workplace. Seemingly gone are the career jobs that end with 30 years of service and a gold watch. It seems that employment regulation and definition is more reactive, with various jurisdictions facing challenges of misclassification independently and generally using existing law. 

Last November, I was introduced to the subject of Internet-based car ride services, with specific emphasis on Uber and Lyft. There is a great debate surrounding these two, and others like them. They are "disruptive" to the marketplace of existing alternatives, such as taxis and limousines. These traditional ride sources are resistant to the new Internet services. Taxi drivers see them as destroying their livelihood. They decry the taxes and licensing for which they are responsible, and which Internet ride services seem to avoid. 

In January 2015, I shared Misclassification - What is it? Msclassification is essentially where a workers' description is misrepresented. Someone who is an employee is labelled an independent contractor. There are multiple encouragements for this labelling. They include tax avoidance as well as reduced costs for both workers' and unemployment compensation.

Employers are responsible to collect and in some part match taxes for employees. Taxes represent a cost for employers. There is bookkeeping expense for income tax, but the FICA taxes have to be matched. Many people assume that their Social Security and Medicare taxes are about 7.5%, because that is what is withheld from their paychecks. But in most instances, the employer pays another 7.5%. Social Security and Medicare consume 15% of American payroll. Despite this there are solvency issues for these programs. 

Another misclassification motivation is workers' compensation. Employers are often (if the business is of sufficient size) required to provide workers' compensation coverage for employees. Employees are entitled to overtime and other wage protections by the Fair Labor Standard Act (FLSA), which does not provide that protection to contractors. As a company achieves various employee counts, other laws become implicated, such as the Americans with Disabilities Act, the Family Medical Leave Act, the mandatory health insurance law and more. Thus, an employer may have a variety of incentives to minimize the number of employees. 

Misclassification and Uber have both been back in the news recently. 

Federal Express was sued by a multitude of drivers. Forbes recently reported that one suit has been settled after "a 2014 Ninth Circuit ruling that FedEx misclassified drivers as independent contractors." FedEx is creating a $228 million fund to resolve claims by over 2,000 . . . drivers." It is possible that the money due to these drivers is compensation that would have been paid as wages had it not been for the misclassification. Will FedEx likewise be paying the 7.5% FICA tax to Washington on those back earnings?

FedEx is not alone. One website reported in May that Lowe's entered a settlement with home improvement contractors. Another reported a painters class action suit settlement earlier in 2015. Exotic dancers, restaurant workers, construction workers and more have been involved in litigation regarding allegations of misclassification, seeking overtime, workers' compensation, and other benefits.

A Reuters story notes that California has concluded that the disruptive Uber drivers are employees, not contractors. The story says "classifying Uber drivers as employees opens the company up to considerably higher costs." These include "Social Security (the FICA mentioned above), workers' compensation and unemployment insurance." The New York Times cautions that Uber decisions currently affect small numbers of drivers, and that Uber plans an appeal. The Times reports that Uber has successfully litigated the question, and five states have conversely concluded that Uber drivers are contractors. 

With the cooperation of "check cashing" businesses, construction company misclassification has been labelled "A Made in Florida Construction Industry Rip-Off." In June 2015, according to WorkCompCentral, Florida CFO Atwater announced arrests in a "massive fraud ring," the purpose of which was to use "shell companies" and "check-cashing stores" to improperly "rent" workers' compensation insurance coverage. 

North Carolina focused legislative efforts on misclassification in 2015. The News Observer reported on the efforts, which some North Carolineans claim were not sufficient. In that opinion piece, the author claimed that North Carolina should look south to Florida for effective methodology for attacking misclassification. Some apparently see misclassification as created in Florida, while others see Florida efforts as the guide to battling it. 

The commonality of all of this seems to be imagination. The world is changing, with many seeking comparative advantage. Individuals and companies are trying to find ways to avoid regulation to increase profit, by leveraging technology, by creative use of legal definitions. 

Last May, I attended a presentation by Salim Ismail presented by the National Council on Compensation Insurance. A key point of Ismail's presentation was that the law will have trouble keeping up with disruptive technology. He contends that the law is too slow to effectively react in the paradigm of ever-changing terrain. He points out that the Google Car has rear-view mirrors, but no steering wheel. 

He explains that legislators thought to require mirrors, but none ever thought to require cars to have steering wheels. His point is that the legislative process did not predict the disruption or the technology and finds itself playing catch-up. Is that description any less applicable to misrepresentation; have legislators and regulators merely failed to anticipate the imagination and ingenuity of those that might seek to skirt the regulations? 

Recognizing the costs of misclassification, can the law effectively play catch-up on the issues presented by Uber drivers and the various other service-providing Internet applications? Is the FAA drone regulation process illustrative? The FAA cannot have been unaware of drones for the last several years of evolution. But the issue now becomes critical and thus the 2015 pre-holiday rush to regulate them. It seems unlikely that awareness is the primary issue. Drones have been a concern for some time, but their prevalence has led to dramatic and rapid action in the closing months of 2015. In short, the FAA decided to act. 

Has the time come to act similarly on misclassification? Will North Carolina and other states deal with misclassification? Are existing regulations sufficient, and it is a matter of deciding to enforce? Perhaps recent Florida successes support that existing regulation is sufficient. But, if additional regulation is required to deal with the misclassification problem, can blue-ribbon panels be assembled, actions taken, as the FAA recently did for drones? 

Maybe Ismael is wrong, and government can be nimble enough to keep pace with evolving technology and imaginative wrongdoers. Or will the misclassification issue linger, regulated by a multitude of federal and state laws that perhaps are not as imaginative as those who would seek to avoid them?

Interesting days are ahead.

It's not the Age, its the Mileage

Back in 1981, the Bangles released a cover of Simon and Garfunkel’s Hazy Shade of Winter. A memorable lyric is “time, time, time, see what’s become of me.” The song reminds us of our life changing and the passage of time: “seasons change with their scenery, weaving time in a tapestry;” “time, time, time . . ..” Also in 1981, the intrepid Indiana Jones brought context to aging. He noted “it’s not the age, honey, it’s the mileage.” We are all moving inexorably forward, aging every day. 

A very interesting story caught my eye on November 18, 2015, regarding a woman in Shenzhen City in Guangdong, China (just north of Hong Kong). I was drawn by the headline, "Overtime made me an Old Lady," and the link lead to Rocketnews ("Bringing you yesterday's news from Japan and Asia, today").

The 25 year-old pictured below was photographed on the streets with a sign that reportedly (I cannot read Chinese) said “overnight and overtime work has made me into an old lady. Both my love and work lives are miserable. I request approval for workers’ compensation.” One of my first thought when I saw this is whether such a sign would satisfy the filing requirement of Fla. Stat. 440.192 (the Florida petition for benefits statute)? Here, the law requires specific information in a particular format to claim workers' compensation. Would a sign suffice in China? But I digress, back to the story.

The story on Rocketnews said this “was an unusual yet straightforward demand that triggered debate and reflection on the state of working conditions in” China. The young woman reportedly “claims that working long hours and sometimes going without sleep have taken a toll on her physically. She says that this has led to rapid aging which she compares to a work related injury.” Would this be a repetitive trauma injury? After all, Phil McGraw reportedly once said "life is a contact sport."

This young lady is likely out of luck in China. Rocketnews apparently discussed this with Chinese attorneys, and the consensus seems to be that “her claims would not be covered in workers’ compensation.” But, they note that “her actions are indicative of an increasing awareness of workers’ rights in Chinese society.” 

As I write this post at 4:30 in the morning, focusing on the workday before me, I am wondering . . .. Nah, I guess the odds are probably not really any better for me making a compensable claim for this here. Though I sometimes feel worn-out from long hours, no one is making me. The state just expects judges to work 40 hours a week, and that is generally in the 9:00-5:00 world of daylight. 

Rocketnews reported that there were many comments in online discussions regarding her protest. They say that “comments range from support to derision.” In an indictment of the "world-wide" nature of the "world-wide-web," my several Google searches here in the U.S. did not yield any social media hits for this protester, or the comments reported by Rocketnews. But the issue there is likely that I am too "seasoned" to intuitively know (or not smart enough to figure out) how to access Chinese social media. In all likelihood, someone younger (or at least smarter) out there could probably find that material easily (if you do, email me the links and I will update this post). 

In a bit of a backhand at America, the Rocketnews author laments it is “too bad she (this protesting young lady) doesn’t live in the USA where the lawyer ecosystem is much lusher.” Ecosystem? American lawyers have an ecosystem? You can learn a great deal reading the Internet, either about the way things are or at least the way things are perceived. But, the article also notes that even in America, the case would be “tough though,” concluding that in the pictures she does not “look so old,” but merely tired and angry.

Don't sugar-coat it folks, do I ever look tired and angry? I hope not! If I, or someone else you know, do sometime, please remember “it’s not the age, it’s the mileage," and remind us to relax and smile. You never know what kind of a bad day someone might be having and a kind word often works wonders. 

I hope you have a safe and happy holiday season. In the spirit of this Chinese protest, I will be working some half-days this week. I hope you also get some rest and relaxation!

The Bumped Knee Massacree

If it doesn't work, is it fraud? 

If the result of some accident turns out to not be an injury, is it fraud to visit the doctor to find that out? 

There was a story last spring in the Daily Republic regarding a man standing trial for workers' compensation fraud. Fraud is a common subject in the news. Many states are taking a harder position on workers' compensation fraud. Some are doing an amazing job of publicizing their efforts. This story is worth reading, and the comments that have been added since it ran may also be interesting. 

I am confident I see more fraud news stories from Ohio than any other state. I recently sat with a regulator from Ohio at the Southern Association of Workers' Compensation Administrators (SAWCA) Regulator Roundtable (TM) in Orlando at the #WCEC2015. I mentioned my perception of Ohio and he acknowledged that his agency does a good job of publicizing those convicted of taking benefits to which they were not entitled. This is an intended part of their deterrent effort. 

It is important to remember that there are a vast number of people who have workplace accidents. That the Internet reveals tens of cases of fraud allegation or conviction, compared to that vast number of work injuries, suggests that despite the seemingly significant volume of news stories, only a very small percentage of those injured are ever accused or convicted of fraud. But it is a problem for those with legitimate injuries. The fraudsters may cast doubt on the system, reinforce bias and suspicion, and potentially take benefits from deserving people. 

The Daily Republic piece was interesting because the accused there never received anything. It reminded me of the longest song of all time (I will get emails correcting me on that point), Alice's Restaurant by Arlo Guthrie. This was a Vietnam-era song essentially protesting the induction of young men who chose military service over jail. A complex subject, the song meanders for about 30 minutes to tell the folksy tale of a Thanksgiving dinner "that couldn't be beat." 

The Alice's Restaurant "Massacree" (phon.) involves the dumping of the resulting Thanksgiving garbage, after the meal "that couldn't be beat." Driving about town in a "red VW microbus," with a half-ton of garbage, Guthrie is helping his hostess by taking her garbage to the dump. They find the dump closed for Thanksgiving, and leave in frustration, "off into the sunset looking for another place to put the garbage." 

As they drive back from the dump, they see "another pile of garbage" at the bottom of a small ravine. They decided that "one big pile was better than two little piles" of garbage. Applying considerable logic, they conclude that "rather than bring that one up, we decided to throw ours down." The savvy reader has already noted that big pile or small, Arlo and company have just littered. Needless to say they are discovered and prosecuted. 

Towards the end of the song, our protagonist Guthrie sits on a bench in the police station and is approached by a man who "was mean and ugly and nasty and horrible and all kinds of things," who asked him "kid, what'd you get?" Describing his recent experience with the justice system, Arlo tells him "I didn't get nothin'. I had to pay fifty dollars and pick up the garbage." It is farcical and funny. If you have never heard it, and you have 30 minutes to kill (not kidding), give it a listen this Thanksgiving as you ponder the feast clean-up. 

Much like Arlo, the protagonist in this workers' compensation story likewise "didn't get nothing" except a preliminary medical exam, and prosecuted for fraud. 

The story reports that Deonte Walker "bumped his knee at work." He thereafter "limped into a NorthBay Healthcare medical clinic using borrowed crutches." Mr. Walker never saw a doctor, but was examined by "a physician's assistant who thought he was faking it." The clinic visit was "billed at $102 along with X-ray costs." 

Thereafter, he neither returned to the clinic nor to work. He received no "payments from anybody for the injury claim." His employer, though, referred the matter to their insurance company and surveillance was undertaken. Video demonstrated Mr. Walker "running up a flight of stairs a week after his injury," and the insurance company reported the matter to the District Attorney. 

The story says that by the time the District Attorney had been contacted, "Walker, who has no criminal history, had called his employer saying he wanted to drop the injury claim altogether." According to the story, after "medical, in-house reviews, billing and investigative costs," the initial $102 spent on the claim substantively had "added up to more than $5,000.00." 

Fraud charges were pursued "on the basis that Walker had lied to his employer and to the physician's assistant about his injury." Because funds were expended on "assorted medical, bureaucratic and investigation costs," Walker was also charged with theft. 

This story made me think of Alice and Arlo, see above. But beyond that it made me think of some broader questions. First, how does $102.00 in actual benefits balloon into $5,000.00? How prevalent is it for an employer to pursue surveillance regarding an employee who makes one trip to a medical clinic, and never sees a doctor? And finally, is it fraud to go to a clinic to be examined and to see if you are injured? 

Arlo makes some fun in his song. He says that the investigation of his littering offense was "the biggest crime of the last fifty years" and that the local officials "turned out in force." They were "usin' up all kinds of cop equipment" and "takin' plaster tire tracks, footprints, dog-smellin' prints" and they "took twenty-seven 8 x 10 colored glossy photographs." 

For the millenials, we used to take pictures with a camera, not a cellphone, and the results were often printed on special paper so "pictures" were viewed on paper, not on our computers or phones. clarity could be hoped for in printing the photos in a large format, and 8 x 10 was a popular, larger size. 

But back to the story. In other words, the police investigated Arlo's littering infraction like it was a federal murder scene. Arlo noted that "everybody wanted to get in the newspaper story about it." 

The Deonte Walker story made a small splash in workers' compensation news circles. It was featured on LexisNexis, the Daily Republic, and Thereporter.com last spring. I suspected this "bumped knee massacree" would return to the news so that everyone would by now know whether Deonte "had to pay fifty dollars and pick up the garbage." But the matter has not resurfaced to date. Perhaps like "how many licks it takes to get to the center of a tootsie-pop," (another boomer pop-culture reference you can Google) the "world may never know" how the prosecution concluded. 

Make no mistake, I am not advocating fraud. But this "Bumped Knee Massacree" made me wonder. Is it fraud to visit a clinic for an examination? The Massacree also made me think about Arlo, Thanksgiving, and all that entails. The case makes for interesting reading, and perhaps some conversation. 

Here's wishing you and yours a great November and a safe and happy Thanksgiving. For my part this week, I reflect today on this industry and the people I have met in it. I had the chance to see a fair number of them this year at confernces and events. I have learned a great deal from so many, whose patient professionalism contribute so much to workers' compensation. 

I am thankful for each of you and for the opportunities I have had to expand my knowledge of the law. Your suggestions and challenges make this job interesting and worth doing. In reflecting this week, I have much for which to be thankful. I hope you do too. 

#workerscomp
#workcom

A Reasonable Attoneys Fee?

There have been a couple of interesting decisions in and Oregon case styled SAIF v. Traner. The recovering worker suffered a shoulder injury, which was accepted. The recovering worker later made a claim for "arthralgia" which the Workers' Compensation Board concluded was "only a symptom of the accepted shoulder injury and was not a new or omitted condition." Thus, the arthralgia became part of the compensable injury, but the recovering worker was not therefore entitled to "recover compensation or a penalty," as a result of successfully litigating its inclusion/compensability. 

But, that did not mean that the carrier, SAIF, was off the hook. SAIF stands for State Accident Insurance Fund. It is "Oregon's not-for-profit, state-chartered workers' compensation insurance company," and "the market leader" in Oregon according to its website. Just because the recovering worker was not entitled to compensation or penalty did not mean that the attorney should not recover a fee. The Board concluded that SAIF's failure to file a formal denial within 60 days of the claim "justified an award to claimant for attorney fees." The Court agreed, concluding that the recovering worker "vindicated her procedural right to a timely response to her claim."

That was concluded by the Court in SAIF v. Traner, 270 Or App 67, 346 P3d 1248 (2015), the "principal case." Similar to what is common in our Florida process, the fee entitlement issue was thus decided, but the fee amount remained for determination in a subsequent hearing.

The attorneys then filed for fees of $16,800, citing two statutory sections: ORS 656.262(11) and ORS 656.382(2). The Court mentions ORS 656.382(2) somewhat dismissively ("SAIF is correct that the statute in its form at the time of this case provides no authority for fees on appeal in the absence of 'compensation.'"). And, turns its attention to ORS 656.262(11), which it notes "is an independent authorization for an award of attorney fees." The history of the two statutes is reviewed in support of that conclusion. 

The court describes a limitation on fees in ORS 656.262(11) as a "soft cap." This sounds similar to the presumptive fee which once existed in Fla. Stat. §440.34. The Court noted that this "soft cap" was $3,000 and had been increased during the recent legislative session to $4,000. The Court also noted that the legislature had contemplated future increases in that "soft cap," with "annual adjustments" under the statute.

The Court quotes ORS 656.262(11) at length in the opinion. This foundation for fee entitlement says "in assessing fees, the director, an Administrative Law Judge, the board or the court shall consider the proportionate benefit to the injured worker." Though this language is cited, the opinion provides little insight into the Court's analysis of this point, the benefit to the injured worker, the proportion, etc. It remains unclear from the opinion how those factors might figure in the calculus of a fee in similar cases. 

Another interesting concept is discussed by the court, in footnote 2. The Court notes that the legislature empowered the Workers' Compensation Board to "adopt rules for the establishment, assessment and enforcement of an hourly attorney fee rate specified in this (ORS 656.262(14)(a), a different) subsection." In Oregon, there is a method for establishing an hourly fee rate in some situations. While that section did not strictly apply to the case at bar, the Court noted its presence and procedure. 

Returning to the issue at hand of the ORS 656.262(11) fee, the court concluded that the $3,000 cap could be exceeded "upon a finding of 'extraordinary circumstances.'” Noting that the claimed $16,800 was sought as recompense for 48.9 hours (rate of $343.56), the Court concluded that the case was "not extraordinary, all in all." Unlike the multi-factor consideration for deviation from the statutorily presumed fee that was in Fla. Stat. §440.34, the Court's inquiry seems limited to whether the matter was "extraordinary." 

The conclusion was a holding awarding $3,334. For the time claimed, this results in an hourly rate of $68.18. Whether that rate granted, or the $343.56 sought per hour sought is a "reasonable fee" or not would be for the reader to conclude. However this case illustrates a method of fee calculation that is different from Florida's and interesting. The opinion is worth a read. 

First We Try, Then We Trust

The Claims Administration Committee at SAWCA's All Committee Conference Thursday (11.19.15) presented Steve Heinen with contributions by Bob Wilson and Wade McGuffey, Esq. It was an interesting mix of material. 

Mr. Heinen is an insurance broker and trainer. He missed his calling. He should be doing two shows a night in Vegas, it was that funny. Steve has a way of plucking a humorous anecdote from his life experience to add to the mix as he progresses through a presentation. Yesterday, he was on the subject of a safety culture in America and pointed out some challenges we will face.

He finds it ironic that most of our effort in this industry is focused on a very small number of claims. We have all heard this before, but Steve used a pyramid structure to illustrate. The top, very tip, of the pyramid is the litigated claims that consume so much resource and attention. Below this is the lost time claims, then the medical only claims, then the first-aid claims, then the near-misses, and the foundation is the safety culture. 

Just when you thought you had his pyramid analogy in focus, he switches rafts mid-stream and asks the audience to picture it instead as an iceberg where everyone is focused on the litigated claims "tip" visible to the world, and there is a very large portion of the iceberg that is under the water line and receiving little attention. He cautioned us that this is backward thinking, and that greater focus on the larger part of the pyramid might have a marked effect on the much smaller litigated claims portion. 

Mr. Heinen used an interactive PowerPoint that allowed the audience to participate in the program and add their perceptions and conclusions. This was in real-time and made for some interesting discussion. One example was was the physician choice variations among the states. He presented the question of whether the audience preferred employer or employee choice, tabulated votes, and presented a graphic to illustrate how the distribution is today. This generated thoughts and discussion from the audience. 

The consensus seemed to be that whichever party picks the physician, there is a good probability that the other party will have trust issues with that provider. Examples came from the audience, explaining individual state's selection process, from employer chosen doctors, or employer chosen doctor panels to employee choice. In each paradigm, there were descriptions of corresponding trust issues. 

Steve seized on that, and his presentation was intertwined with examples for building better trust in the employment relationship, before the near miss or accident, in the safety culture. 

Bob Wilson, from WorkersCompensation.com, followed Steve for a quick speech. Bob is a gifted speaker with an ability to find the tight humorous anecdote to slip into a theme. He spoke of a television show involving company CEOs that go "under cover" in their own companies to find ways to improve their business. He related that the show tends to reveal issues, which the CEO repairs and that each show includes both a raft of employee complaints and a happy-ending conclusion. 

He described one show in which the subject of a workers' compensation claim was mentioned. This company was led by the son of its founder. This son and CEO was undercover when a worker mentioned the work accident that occurred years earlier when the CEO's father was living and running the company. Bob said he momentarily expected a "horror story" such as those about other employment issues in various episodes.

Instead, he said, this employee described the time immediately after the accident. The CEO did two things that changed the course of that recovery. He called the injured worker at the hospital and the worker's spouse at home. His brief, simple message to each was in the same spirit: the company hates that you are hurt, the company values you as part of a team/family, the company is going to take care of you, and will see you back at work. 

Mr. Wilson then tied that back to Steve Heinen's message, trust. Trust can be difficult. In a 1999 movie, Entrapment, starring  Sean Connery and Catherine Zeta-Jones, the story of a master thief mentoring a young protege is told against the backdrop of stunning scenery and romantic tension. Early in the mentor/protege relationship, trust is discussed, and Sean Connery, in that trademark voice with eye-twinkling countenance says "first we try, then we trust." 

So, actions (try) perhaps are the key to trust? Perhaps actions speak louder than words?

Wade McGuffey is a defense attorney from Georgia. He took the stage and discussed mathematical issues for a time. He touched on major contributing cause, apportionment of pre-existing conditions and prior work injuries, and contribution among multiple employers for resulting disabilities and expenses. Then, true to Steve Heinen's theme of trust, he related some anecdotes as well. 

In one, he described an employer who has instituted a "warm up" program in which all employees before a shift do some stretching and preparation together. He said that this company used to provide his firm significant business as the result of accidents, but not so much since this program was instigated. The program builds trust as it demonstrates an interest in employee well-being. 

It is possible that the stretching better prepares those bodies for the tasks ahead on that shift. Is it also possible that there is value in the employees knowing that the employer cares about them and is willing to invest time and money in their well-being? Perhaps the attitude demonstration is as beneficial as the stretching?

These are a few memorializations of three hours of presentation and discussion. The theme of trust raised so many examples from the audience and the speakers. These were in various workers' compensation relationships between employer and employee, doctors, and more. The result was a conversational and intriguing discussion of where claims management, or perhaps just plain management, stands today in workers' compensation and through what successful courses that path to success might pass. 

Cost Shifting, the ACA, and Workers' Comp

In September, the Workers’ Compensation Research Institute (WCRI) issued an intriguing report titled Will the Affordable Care Act Shift Claims to Workers’ Compensation Payors? As most WCRI reports, this one is dense, packed with data and conclusions; more tables and charts than one could hope. After reading it, I concluded that the report is misnamed, and should perhaps have been How Much Will the Affordable Care Act Shift Claims to Workers’ Compensation Payors?

I find the study compelling. As I read the Introduction and Summary of Findings, I began to think of Captain Renault in Casablanca. In a classic scene, he sits at a table gambling. A raid occurs and as the other officials enter, he exclaims “I am shocked, shocked to find gambling is going on in here." Perhaps the WCRI report is not telling us something we did not know, but is merely making it more widely known?

The report supports that there will be cost shifting in the delivery of medical care. This will be an inevitable outcome of a few simple truths carefully laid out in the Introduction and Summary of Findings. First, health insurers exist to make money. Pause here and catch your breath while you wrap your head around that one. Before you get too distracted by that, let me just assure you that all car producers, software companies, dating apps, sports teams, and purveyors of fine or fast foods likewise exist to make money. It is capitalism, which in the near term may remain a driving force in this country's economy.

The next truth is that human beings react in ways that further their own self-interest. "Shocked, shocked I am!” People will actually take actions that work to their own personal advantage. Who would have thought it? Certainly, there are those who preach the common good, and there are even some who work toward the common good. But in the end many an environmentalist will elect the less expensive or higher quality or more comfortable car over the one that is the most environmentally friendly. 

Personal wealth, comfort, or happiness may trump the big picture aspirations. Think of the allegations that Hollywood elite fly about in private jets to give speeches and attend conferences on carbon emissions. While we would all like to believe in commonality and community, there is a pull toward selfishness sometimes. 

The WCRI report notes that group health is evolving to “capitated” care. This is a model in which your doctor gets a sum-certain each year to provide your medical care. If she spends all of her time with you, she loses money because that sum-certain runs out and care thereafter she is providing free. If she spends none of her time with you she makes lots of money because she receives the sum-certain nonetheless. 

Imagine that you convince a bunch of people to each give you $20 per year to answer all of their questions about “the price of tea in China.” If they all send in the money but none call with questions, you end up with their money and very little to do. A great gig if you can get it. But with no price disincentive to calling, what if all of your customers call every five minutes with a tea question? See, this illustrates one of the classic conundrums of insurance, which we will save for another day, the disconnect between the person seeking service and the entity paying the bill. If someone else is paying, might an individual demand more of a product than she or he would if personal expense were involved?

What is pushing capitated care? Well, as mentioned above, health insurance companies exist to make money. Recent federal legislation has changed the way health insurance must work. For example insurance companies cannot refuse to cover conditions that you had when you bought the insurance policy. This is the "no exclusion of pre-existing conditions."

This sounds wonderful, but like many things in life it will cost money. Cost who money? Some insist that it will cost the big insurance company, not “real” (our) money. Strange thing about people and companies alike, if you find a way to make their expenses rise, they will likely find some way to make their income rise or their other expenses decline. They will all act in their best interest. Count on it, we all do (though we hate to admit it and I will likely get emails and comments telling me how altruistic  and selfless certain people are).

Next, the report notes that there are some workers’ compensation injuries in which causation is reasonably simple. It notes ”a patient presents with a fractured tibia – the cause of the fracture is usually identified with a specific event, and determining whether or not that event was work-related is also relatively straightforward.” Just imagine an employee whose arm is caught in a machine and broken, or whose vehicle is struck by another and suffers a broken leg, or who twists to tighten something and falls from a ladder resulting in a broken wrist, all at work, all witnessed, and all pretty simple causation issues. 

But other injuries and their causation are perhaps not as apparent. The report notes as an example “a patient presenting with a soft-tissue condition (e.g., non-specific back pain or strain/sprain of knee or shoulder).” The report seems to conclude that the injury from a specific event will be deemed compensable or not factually, was the patient at work and doing work when the tibia fractured, wrist broken, etc.?

The causation of the soft-tissue injury, however, is ”often uncertain," according to the report. For determining causation, or “responsibility” regarding these, it claims that “the professional judgement of the treating physician is heavily relied on.” The authors suggest that when this judgement is required, the physician’s self-interest could direct the outcome in a direction that provides financial reward to the doctor. 

In other words, for a certain population of injuries, causation is up to the opinion of the physician. This has some other interesting implications. If this is true, does that mean that there has been cost shifting away from workers' compensation during a non-capitated group health model, when that benefited doctors? That is a question worth pondering. So, says WCRI, there is a population of injuries that present upon physical examination that could be workers’ compensation or not.

There have been complaints in the past that some population of claims presented as workers’ compensation because that medical coverage was the only medical coverage this particular person had. If there is no group health coverage available for a patient, then the choice in that setting might be between workers’ compensation pays, the patient pays, or no one pays. Any provider of services will not be enamored with the concept of “no one pays.” 

Of course the provider or facility can afford some instances of “no one pays,” they simply charge more for services to those who do pay. Trust me, this explains why a single Tylenol in the hospital might cost $35.00 when a bottle of 500 generic acetaminophen costs $10.00 at the store. There is a markup on some things.

There is therefore a history (at least the perception) of shifting to workers’ compensation. Given the choice of a corporate payor responsible for the bill and an individual, there might be some inclination on the part of the “professional judgement” to lean toward the path of least resistance to reimbursement/payment. Some have suggested that this is a truth, others claim it is a possibility and still others deny it occurs. 

By the same token, there have been anecdotal complaints of cost-shifting to group health from workers’ compensation. This highlights one of the other interesting implications. Workers’ compensation is statutory. Rights and responsibilities are defined, regulations describe the processes and the application is generally state-wide. One key point upon which states are compared is “physician choice,” that is, who picks the workers’ compensation doctor? There are “employer choice” states and “worker choice” states.

In either type of state, ancillary services may likewise be under the control of the employer (or its carrier). Even if the worker picked the doctor, s/he may nonetheless be limited to a specific facility for obtaining an MRI, a surgery, therapy or other services.

In either type of state, there may be statutory punishment for illegal drug use. A group health system is unlikely to check for such substances in evaluating an injury, but many workers’ compensation systems do so. The implications of a positive drug test might affect the care and treatment under workers’ compensation. But, in a far broader context, a positive test might mean the end of the employment relationship. In other words, if I report this as comp, knowing I smoked some pot last week, I might lose my job in seeking treatment.

Indemnity is a great benefit. I know only a few people who pay for personal disability insurance. I had a friend years ago whose son found great joy in experiments. I have lost track, but suspect that young man is in a lab somewhere today doing really interesting stuff. One night, years ago he lit the garage on fire with one of his experiments. My friend, hearing the cries, ran to his aid and tried to extinguish the flames (by stomping with his feet). This was not a good idea as the material on fire was a polymer, which stuck (still burning) to his feet. The result was serious burns to both feet.

He was at work the next day, on pain medication, using a wheelchair. When I asked why he did not take a few days off, he explained that his leave was exhausted, and he had no disability coverage. For him, not working meant no income for his family. Thus, he worked in circumstances that were not ideal.

So, a patient might pick workers’ compensation or not because of the perceived benefit of indemnity, to choose their own doctor, to have easier access to medical testing, and many more reasons. Likewise, a patient might pick group health or not for better choice of a variety of doctors, greater access to testing, or avoiding the “stigma” of workers compensation (there are some employers who donot like to hire people with a history of workers’ compensation claims).  

So the concept of “shifting” is nothing new. “I am shocked, shocked to find cost-shifting is going on in here."  There have been anecdotal examples of it explained to me for as long as I can remember. As group health becomes less and less "generous," there may be some inclination for the close calls to be shifted to workers’ compensation. Instead of the captitation limit of group health, a provider may instead elect pay for services in the workers' compensation system.

How much? The question will be fluid. The first elements of cost containment are hitting group health in America now with these capitation plans under the "affordable" Care Act. Elements of society are frankly tired of people being allowed to buy the coverage that they want at the price they or their employer is willing to pay. The “Cadillac tax” is phasing in, which will cost employers money, perhaps significant money, and the health plans may become less generous. Some argue that health insurance will become more egalitarian not by bringing everyone up to the highest level, but by bringing everyone together at the lowest. Time will tell.  

Will health care be sustainable in America? Will those who pay little to nothing for group health under Affordable Care, or those  who pay a great deal in order to subsidize it, be good consumers in the system? Will medical care costs decrease as we experience the great savings that have been promised? How tight will the capitation become in group health? These questions will have to play out in coming years. 

The suggestion is that the tighter the group health reimbursement, the more attractive workers’ compensation may seem in some “professional judgement.” The higher the price of beef, the more chicken we might consume as we look for alternatives. The cost shifting is perhaps no different, except perhaps on the grandness of scale. 

I cannot claim to be shocked that cost-shifting exists. Economics are real for people, companies, and countries. Incentives drive people (I bought two cans of pumpkin for Thanksgiving, though I needed one; there was a price break on that second can I could not resist). I think we will see cost-shifting continue in both directions depending on the comparative advantages people and doctors perceive in each depending on circumstances and specifics of plans and laws. The WCRI report is dense and full of information. It is well worth the time to read. 

Techies Talk Tech at SAWCA ACC 2015

Delece Brooks (GA). Matt Bryant, Fran Davis (KY), Christine Dicken, and Roger Williams (VA) participated in a panel presentation at SAWCA's All Committee Conference this morning. Larry White of Louisiana moderated. They addressed the technological retooling of computer systems, databases and processes by state agencies that manage workers' compensation.

Christine provided an overview of the process of planning and mapping the development of computer and technology tools. She described the interaction with end-users early in the process, determination of key elements for the tool, and charting the various elements that will be part of the tool. This "tool" could be a website, a case management process, or other software. 

She described how information is solicited, organized, analyzed and then presented. A key in the discussion is that various constituency groups and audiences may have dissimilar interests and needs. What is the purpose of the tool, who does it serve, and what should it accomplish for them? The tool should be effective in addressing needs and concerns in a broad perspective for as many end-users as practical.

She described that this benefits everyone in the process, including the vendor that will produce the tool. An overall plan on the front-end of a program evolution can prevent the need for changes and re-writes later in the process.

Matt Bryant noted that these discussion of modernization and programming are a recurring theme. He noted that there seem to be a large number of workers’ compensation agencies and entities currently are in a process of updating technology. He noted that there is a great deal of information coming into these agencies. He posits that a prime goal of the tool creation process is to identify the relevant information within these masses of information. He described that programs can be developed to find the "diamond in the rough" of the massive document filings in state programs, second injury funds, and more.

Roger Williams noted that Virginia went on line with its electronic filing in the Fall of 2008. Virginia was a paper-based system that transition to paperless at that time. He noted that Commissioners during that transition period did not have the expertise to plan or coordinate software development. Commissioner Williams advocated that any agency working through a re-tooling should have an agency employee, a “go to” person, that has enough expertise to understand complications and problems, and able to communicate effectively with whatever vendor is selected to build or modify the tool.

A key reason for these database and programming tools is solving problems for the public. This may be because the public is the end user. It may also be that the tool makes the agency more effective or efficient in providing service to the public, thus the agency personnel are the end user, but the public is a beneficiary. As the customer's systems and computer capability changes, the state agencies might also have to evolve. The process from Commissioner Williams' perspective is ongoing. He notes that re-tooling is not a destination, it is a journey. 

He notes that finding and keeping qualified information technology professionals is difficult. Commissioner Williams said that Virginia has expanded its information technology staff markedly to develop and operate these new tools. He also noted that there are likely to be competing interests within the agency. Each function within an agency may seek its own tools and system upgrades. There may therefore be competing interests internally, seeking devotion of programming and other resources. 

Resistance to change is a consideration. Anything that is different may cause anxiety to participants in any marketplace, including workers' compensation. Commissioner Williams, as an example, described his reluctance in giving up paper such as his diary/planner, when Virginia moved to an electronic process. He says he would not return to the paper process, but admits it was not an easy transition for him and many others.

Georgia has a ten year old claims management system. Delece Brooks described their system and claimed that Georgia was the first in the country to deploy an electronic filing system. Five years ago, the agency launched a re-tooling with a project manager and new programming. With personnel changes and leadership changes, the re-tooling process became mired and unresponsive. She described her assumption of leadership as Executive Director five years ago, and the presence of new Commissioners. 

The agency underwent an audit process to identify their strengths and set new goals for deploying  new process and system. Through that critical review process, the Georgia Board identified flaws, set goals, and charted a course that has resulted in the recent deployment of its second generation case management software. 

Ms. Brooks described the agency’s challenge in trimming staff and re-orienting positions, goals, and processes. She stressed repeatedly that a project manager is critical to the process of anticipating needs, adjusting for competing interests, and building a platform that functions appropriately and effectively for all of the constituencies. Having the right staff in the right positions to utilize technical skills is seen as critical at the outset. 

Fran Davis stressed that agencies have many competing processes and responsibilities. She described the importance of understanding each business interest of the agency is critical. She encouraged agencies to spend time at the outset of re-tooling on understanding those various processes and addressing the concerns of regulatory, adjudicatory, and other processes. 

It is instructional to see states working to improve and deploy electronic capabilities. A Florida attendee afterwards expressed pride that Florida has already launched and maintained a state-of-the-art system. I am proud that our state-of-the-art system is world-class and has been developed and provided for a total cost to date of $1 million, far less than any jurisdiction of which I am aware. I am not sure when Georgia deployed their system but we are proud that e-JCC was deployed in November 2005. Happy tenth birthday eJCC.

SAWCA 2015 All Commitee Conference off to a Great Start

SAWCA’s All Committee Conference kicked off on Wednesday morning with a panel discussion regarding transition to government leadership positions. We had regulators from five jurisdictions sharing their experience of transitioning from the business world to government and all that entails.

The panelists included Abbie Hudgens (TN), Beth Aldridge (MS), Tom Hebson (Safety National), and Paul Sighinolfi (Maine). They shared their perceptions of whether new state appointees have a honeymoon in which to adjust to government service, and provided advice on how new appointees can effectively transition. The conclusion was a mixed reaction to that question with some feeling they enjoyed a honeymoon and others feeling that there was none. 

Tom Hebson stressed that workers' compensation systems in the United States do not tend to have transition plans for their leadership. Often, leaders are appointed to lead agencies, and those may or may not be individuals from within an agency, may or may not have prior government experience. He described key leaders leaving agencies, and not being replaced instantly due to the processes involved. He suggested that documentation and communication are critical for new regulators to acclimate to responsibilities.

Paul Sighinolfi echoed this sentiment, noting that there is often not a transition period in state government. He noted that in state government, there can often be no provision for a new key employee to be concurrently employed with a departing key employee. The opportunities for training, transition and continuity are frustrated. He felt that this makes transitioning into an agency more difficult than perhaps it needs to be. 

Frank McKay and Paul Sighinolfi each stressed that a critical element of successful transition is coming to the job with a goal or objectives in mind. Mr. Sighinolfi described his interest in providing a regulatory process that had been discussed but never implemented. He credits some of his success with the drive that comes from having goals and aspirations. There was consensus on the panel that goals and purpose help with a successful transition.

We learned that state systems are somewhat different. Beth Aldridge pointed out that she serves as an appellate judge of workers’ compensation claims. She is a physical therapist by profession, and described her position and appointment process. She said there were questions about her service by some who perceived that Commission position in a certain way based on prior Commissioners and their respective backgrounds. In other words, prior Commissioner's experience and background created expectations among some, and she did not fit the "mold" those people perceived. 

She stressed that in the transition, there is value in enunciating strengths and attributes that an appointee brings to the job. No one will be a copy of the “last commissioner,” but each will bring certain strengths, skills, and background to the job. Enunciating those skills and strengths will assist the marketplace with understanding how contributions will be made to the jurisdiction’s workers’ compensation system. A critical point is that everyone brings tools and skills. Enunciating those, defining one's contribution, may be helpful in making the marketplace more comfortable in the transition. 

Frank McKay noted that he found key agency employees were important to him in the transition. He recommended early discussions as to the functions, strengths and ideas of the existing agency employees. He described a comfort level achieved by having the right people in the right positions, and building a team that can address concerns and challenges. That may require changes in positions, and even replacement of team members to acquire the skill sets needed for agency excellence, and to achieve the goals and aspirations of new leadership. 

When asked to summarize their perceptions of a "key" to success in such a transition, the panelists were concise. They agreed that agencies need to be transparent and open, and leadership has to live that. The panelists agreed that interaction with other agency heads in similar positions through an organization like SAWCA is important, for collegiality, commiseration, but moreso for ideas and solutions. 

Abbie Hudgens moderated this panel through a variety of intricacies and concerns. They provided a conversational discussion, and critical take-aways for attendees. While there may be no absolute answer as to the way to manage such a transition, attendees were provided with concrete examples and sound advice for transitioning, building a team, and achieving goals. 

What is Hot in Workers Compensation?

Henry Tillman once said that "the saying 'getting there is half the fun' became obsolete with the advent of commercial airlines." I am not sure who Mr. Tillman is, in fact no one seems to know. But, I am doubting that Mr. Tillman has travelled lately. I spent the better part of yesterday (12 hours starting at 04:30) in a seeming remake of Trains, Planes and Automobiles, making my way from suburban Florida to rural West Virginia. 

I do mean rural. We are staying at an amazing venue in the beautiful West Virginia mountains. But, a trip to the local mall last night for a few forgotten items was instructive. The local mall is anchored on one end by K-Mart and on the other end by an auto parts store. "Toto, I've a feeling we're not in Kansas anymore!" But what we really need, education, intellect, and expertise on workers' compensation, our attendees and speakers have brought with them to this idyllic, beautiful, and yes rural, environment. 

I am here for the Southern Association of Workers' Compensation Administrators. This is an amazing group of thought leaders from across the country. Among them are the administrators and leaders from 20 jurisdictions. The latest state to join the group was Maine, which some might struggle with given the word Southern in the name. But "Southern" may be just a state of mind?

National gatherings like this are eye-opening. They provide a unique opportunity to appreciate what is going on in various jurisdictions. It was at a SAWCA event that I first heard of states requiring electronic medical billing. Other ideas I have been exposed to at SAWCA events include the Texas drug formulary, the Oklahoma Opt-out, Georgia pill-mill efforts, Colorado Marijuana impairment measurement science, and New Mexico Marijuana reimbursement struggles. This is a short list, but the point is that each state is at the forefront of something. Each of those will likely be discussed in my state eventually, and it is good to know what has already occurred. 

A careful listener at a SAWCA event will come away with perceptions of what is hot in workers' compensation. A fair measure will come from the program and agenda. But another measure will come from the conversations around a meal or beverage break. The "us to" and the "that would never work in _____" comments usually lead into illuminating comments about what is hot in other jurisdictions. 

SAWCA is unlike any other education organization to which I have belonged. It programs each convention with key note speakers, like so many others. But a major portion of the programming is provided by standing committees on substantive workers' compensation concerns. These committees each program a portion of the program independently. Thus, it is a "what's hot" in both a macro and micro sense. 

Having now had my full measure of "half the fun" just getting here, I am anticipating what the week will bring. We begin today with a Board meeting. Experience tells me that our agenda will be punctuated with "war stories" from the latest tribulations of various jurisdictions, but we will also do the business that keeps SAWCA running. 

On Wednesday, we kick off the program with advice for the new and newer administrators. The title is "How Long Does the Honeymoon Last?" Coincidentally, this will be held in the Eisenhower Room here at the hotel, a program for leaders in that room has certain poetic appeal. Workers' compensation administrators and industry experts will discuss the challenges of undertaking leadership roles in this industry. With new roles and responsibilities may come some period for a learning curve, and the issues is how long that period may last. What can regulators do to get up-to-speed rapidly, and be ready when that honeymoon is over?

The second general session will be presented by the Management Information Systems (MIS) Committee. We have all seen success in the endeavor to bring modern technology to bear on administering workers' compensation systems. Industry and government alike have been driven to leverage technology for both better performance and cost savings. Each peak we best provides us an amazing vista on the path travelled, but usually an equally amazing view of the path ahead. With each achievement, we can pause for the pat on the back, but we can also see new peaks to challenge. Technology is ever-changing and state systems have to be prepared to ascend those next peaks. 

With an array of MIS experts we will discuss this from multiple aspects. First, the challenges of keeping systems current with consumer needs. Workers' compensation administrators have many consumer constituents, recovering workers, employers, insurance companies, rate-making organizations and departments, and the state's public. There are many with an interest in workers' compensation. Second, how do agencies re-tool, that is make major hardware or software changes, to keep up with developing technology and the customer's needs?

The Self-Insured and Insurance Committee will focus as usual on the involvement of risk in workers' compensation. The risk allocation needs are complex, and can be vastly different for business and government entities. The Committee has brought an industry expert, Scott Richbourg, to focus our thoughts on how public entities are regulated as self-insureds. These are often large employers, and as government entities may have unique challenges. How regulators monitor these and other self-insureds presents challenges and bears attention.  

Alan Greenspan once said "I know you think you understand what you thought I said but I'm not sure you realize that what you heard is not what I meant." There are barriers to effective communication in the world of workers' compensation. The SAWCA Adjudication Committee and Administration & Procedure Committee will host a frank discussion of where our communications break down. Employer, carrier, and regulator participants will involve the audience in a frank discussion of better communications, challenges, and solutions. 

On Thursday, one of the great challenges of modern workers' compensation will take center stage. There are many instances in which a recovering worker's benefits may be seen as wholly the responsibility of the employer. In other instances, the disability may be seen as a result of more than one condition or event. States have moved to statutory models that may allow determinations of responsibility between work events and non-work, apportionment, and between multiple work events, contribution, that may not have occurred at the same employer. The statutory changes that allow consideration of such issues have brought challenges to adjudicators and the regulators and administrators of workers' compensation systems. 

In the current era of workers' compensation, hot topics seem to always include constitutional issues. An amazing panel of experts will address the recent Pennsylvania Commonwealth Court decision in Protz. Whether in terms of fee schedules, treatment guides, impairment guides or more, state laws rely on documents that are compiled by other government agencies and private organizations. The Pennsylvania court recently found constitutional infirmity in such a delegation. While it is a focused state court decision, applying a specific state constitution, the decision raises questions for all workers' compensation administrators. 

Workers' compensation is the matriarch and patriarch of a sometimes dysfunctional family. One challenge in this family is that two of the siblings, medicine and the law, seem to consistently find a way to disagree. Some are genuine disputes on a foundational level, while others sometimes seem to be the equivalent of a "he's touching me" argument in the bask seat of the "family truckster" as we attempt to traverse our collective way to the nirvana of Wally World. SAWCA welcomes J. Osbahr, III, MD, a Member of the Board of Trustees with the American Medical Association. The relationship and perspective of the medical community will be the focus. This is expected to lead to a discussion of why systems face low populations of ready, willing, and able physicians to aid recovering workers. 

Friday will cap the week. The learned and articulate Chief Judge of Kentucky will provide an overview of recent appellate cases there. Some feel that the Kentucky Supreme Court has seemingly thrown the stare decisis baby out with the bathwater in recent decisions. Whether there a role for stare decisis in workers' compensation will make for an interesting discussion. 

The programming concludes with Bob Wilson of WorkersCompensation.com moderating a panel discussion of "things that make you go Hmmmmm." This avant garde prognosticator on all things workers' compensation will query regulators and industry experts alike. Edification on many burning questions of "why" and "how" on issues like Marijuana, medicine, and legal procedure may be on the agenda as panelists take the "hot seat" and Mr. Wilson has his chance to cross-examine. 

This is the promise of the agenda, a menu of interesting offerings that may represent what is hot in workers' compensation. I will be blogging live from the SAWCA All Committee Conference this week, trying to take in the substance of the programs and the ensuing conversations. 

Then Friday I will begin the return trip with high hopes of avoiding traffic jams, road construction, my smart phone's seemingly vengeful selection of dirt-road routes, long TSA lines, delayed flights, over-stuffed luggage bins, flight durations too short for delivery of even a simple bottle of water to each passenger, and more. Isn't travelling fun?

After all, if getting there is half the fun, is trying to get home the other half? And if those two are true, does that mean that all the "fun" is in the travel, leaving no fun for the destination? Well, I said the program was interesting and compelling. I will hope that somehow it also includes some fun. Perhaps getting there is half the fun, getting home is half the fun and being there is half the fun? Math was never my strong suit.  

Live from West Virginia, it SAWCA ACC!