Forbes.com posted a review of the results of the annual report of the nonprofit, United Health Foundation. Its survey covers 22 factors for determining the which are the healthiest states. Smoking, obesity, cancer, diabetes, childhood vaccination rate, infant mortality are all included in a composite ranking.
Oklahoma ranks 49th, just ahead of Mississippi. In 2008 we were 50th, just behind Mississippi. In 1990 we were 31st. Why the precipitous drop? Comorbidities are never mentioned in the discussions of loss-cost control. Isn't it time to take a deeper look at the cost problem?
Prior posting that mentions comorbidities: A Fool's Gambit.
Wednesday, November 18, 2009
Thursday, November 12, 2009
Weekend Reading
I just added OKPolicy.org to my Favorites Blogroll in the sidebar. Oklahoma Policy Institute began operations on January 28, 2008. It is a results-oriented, analytical organization "aimed at alleviating poverty, promoting fiscal responsibility, and expanding economic opportunity." You might want to read the article on the closing of the Mercury Marine plant in Stillwater. The company's tactics have angered the people of Oklahoma (the loser) and Wisconsin (the winner).
Nebraska Appleseed, a nonprofit, nonpartisan, public interest law project, has published its analysis of the Nebraska meat-packing industry, "The Speed Kills You." For some this may be all it takes to become a vegetarian. However, the report has some worthy ideas for improving the workers' compensation system beginning at page 49. One is to set every case for hearing within six months of filing the claim. In Oklahoma we could shorten this to two or three months, thus reducing lost worker time. Something to think about.
Nebraska Appleseed, a nonprofit, nonpartisan, public interest law project, has published its analysis of the Nebraska meat-packing industry, "The Speed Kills You." For some this may be all it takes to become a vegetarian. However, the report has some worthy ideas for improving the workers' compensation system beginning at page 49. One is to set every case for hearing within six months of filing the claim. In Oklahoma we could shorten this to two or three months, thus reducing lost worker time. Something to think about.
Tuesday, November 10, 2009
Let's Reduce Lost Time --- Medical Case Management
As mentioned in my last posting, Oklahoma gets a low ranking compared to other states in the category of lost time. How can we improve our standing and get workers back to work quickly?
At the Court we think we are doing our part. Time to trial for nearly every judge is six to eight weeks, just the right amount of time for the attorneys to be prepared. So what else can we do?
I believe that much of the delay outside the courtroom can be ameliorated by judicial appointment of medical case managers.
What criteria should we use to decide when appointment is appropriate? Based on my experience dealing with cases ranging from the mundane to the tar-baby, certain events or circumstances are red flags that in the future will trigger consideration of case manager appointment. They include:
At the Court we think we are doing our part. Time to trial for nearly every judge is six to eight weeks, just the right amount of time for the attorneys to be prepared. So what else can we do?
I believe that much of the delay outside the courtroom can be ameliorated by judicial appointment of medical case managers.
What criteria should we use to decide when appointment is appropriate? Based on my experience dealing with cases ranging from the mundane to the tar-baby, certain events or circumstances are red flags that in the future will trigger consideration of case manager appointment. They include:
- Claimant has missed work for more than thirty days
- Injury to multiple body parts
- Claimant has drug problems or is predisposed to them
- History of missed appointments
- Presence of comorbidities, such as obesity, diabetes, heart disease or heavy smoking, that potentially mask symptoms or impede recovery
- Insurance carrier uses out of state adjusters or multiple PPOs
Tuesday, November 3, 2009
A Fool's Gambit
When it comes to workers' compensation reform, why or why can't we be more like Texas. . .or Kansas. . .or Missouri. . .or this time, Arkansas? Well, take your pick, because yet another state by state scorecard for workers' compensation has been published. Read the analysis and conclusions in Risk and Insurance, one of my favorite websites.
When ranked in the categories of Low Lost Time Frequency, Short Duration of Disability, High Benefit Generosity, Low Insurance Cost, the states received a letter grade and a composite ranking from 1 to 9. Oklahoma ranked 7 (C+).
But look, Arkansas ranks 3 (A-). Isn't a group working on a "modified" Arkansas plan for another round of workers' comp reform. Did anyone notice that Arkansas ranks near the bottom for injury benefits? Only seven states have lower benefit rankings. It sounds so high-minded to say we will scrap the old system for a new high performing one that moves us to the head of the class. But what are the hidden costs and tradeoffs? For Arkansas low benefits (C) equals low costs(A+). Sounds easy.
What about the number one state, Massachusetts? It has high benefits (A+) and low cost (A+). They have worked at improving their system for 15 years, starting under Republican governor William Weld --- not your usual 90-day wonder that we are always promised. They broadened the number of covered workers by eliminating uninsured independent contractors. In Oklahoma we try to make it easier to work without coverage. They tuned up their existing system by cracking down on the fraudulent underreporting of wages. Why is there more talk about that?
In the final analysis, modeling Oklahoma after another state is a fool's gambit, taking an uncalculated risk for an intangible gain. Let's face it. We may never get high marks in some of the categories. For example, duration of disability may be influenced by unreported factors, Oklahoma's consistently high rankings in obesity, heart disease and diabetes. This complicating factor may never change and thus dampens any attempt to reduce lost time. So why should we throw out the baby with the bath water, and fill the pan with another state's bath water?
Instead, we should be committed to continuously improving the existing system. Our mission should be to get workers back to work as expeditiously as possible. One of our goals to accomplish this mission should be to streamline the authorization process for medical treatment. We will measure of our success by steadily climbing up the rankings ladder, not taking one giant step to the top.
When ranked in the categories of Low Lost Time Frequency, Short Duration of Disability, High Benefit Generosity, Low Insurance Cost, the states received a letter grade and a composite ranking from 1 to 9. Oklahoma ranked 7 (C+).
But look, Arkansas ranks 3 (A-). Isn't a group working on a "modified" Arkansas plan for another round of workers' comp reform. Did anyone notice that Arkansas ranks near the bottom for injury benefits? Only seven states have lower benefit rankings. It sounds so high-minded to say we will scrap the old system for a new high performing one that moves us to the head of the class. But what are the hidden costs and tradeoffs? For Arkansas low benefits (C) equals low costs(A+). Sounds easy.
What about the number one state, Massachusetts? It has high benefits (A+) and low cost (A+). They have worked at improving their system for 15 years, starting under Republican governor William Weld --- not your usual 90-day wonder that we are always promised. They broadened the number of covered workers by eliminating uninsured independent contractors. In Oklahoma we try to make it easier to work without coverage. They tuned up their existing system by cracking down on the fraudulent underreporting of wages. Why is there more talk about that?
In the final analysis, modeling Oklahoma after another state is a fool's gambit, taking an uncalculated risk for an intangible gain. Let's face it. We may never get high marks in some of the categories. For example, duration of disability may be influenced by unreported factors, Oklahoma's consistently high rankings in obesity, heart disease and diabetes. This complicating factor may never change and thus dampens any attempt to reduce lost time. So why should we throw out the baby with the bath water, and fill the pan with another state's bath water?
Instead, we should be committed to continuously improving the existing system. Our mission should be to get workers back to work as expeditiously as possible. One of our goals to accomplish this mission should be to streamline the authorization process for medical treatment. We will measure of our success by steadily climbing up the rankings ladder, not taking one giant step to the top.
Thursday, October 29, 2009
Our Aging Workforce
Aging America: The Iceberg Dead Ahead by Tom Lynch, founder of LynchRyan, Inc., is a remarkable article on the potential impact of older workers on the workers' compensation system. Baby boomers are reaching retirement age but 50% will defer retirement for a variety of reasons: global economic meltdown, rising health costs, inadequate social security and Medicare systems.
Generally the higher cost of treating injuries to older workers is offset by their lower accident frequency. However, the data does not consider the growing proportion of aging workers. Lynch predicts losses will rise significantly due to Boomer injuries, driving up employer premiums.
Good read for the weekend.
Generally the higher cost of treating injuries to older workers is offset by their lower accident frequency. However, the data does not consider the growing proportion of aging workers. Lynch predicts losses will rise significantly due to Boomer injuries, driving up employer premiums.
Good read for the weekend.
Tuesday, October 27, 2009
LexisNexis Top 25 Blogs
As the blogosphere of workers' compensation information expands, how do we find the better blogs? LexisNexis, publisher of Larson on Workers' Compensation, answers by annually honoring the Top 25 Blogs for Workers' Compensation and Workplace Issues.
I am delighted that Judge Tom Talks is one of the Top 25 in the category of Best Individual Bloggers. JTT is described as the "quintessential 'virtual watercooler.'" I'm not sure what that means, but I think it refers to stripping out the legalese and using a conversational style.
Our keynote speaker at the Stillwater Conference, Jon Coppelman, is again selected in the category of Best Ongoing Achievement for the "gold standard of workers' compensation blogs," Workers' Comp Insider. Congratulations, Jon!
I am delighted that Judge Tom Talks is one of the Top 25 in the category of Best Individual Bloggers. JTT is described as the "quintessential 'virtual watercooler.'" I'm not sure what that means, but I think it refers to stripping out the legalese and using a conversational style.
Our keynote speaker at the Stillwater Conference, Jon Coppelman, is again selected in the category of Best Ongoing Achievement for the "gold standard of workers' compensation blogs," Workers' Comp Insider. Congratulations, Jon!
Sunday, October 25, 2009
Continuing Medical Maintenance
Continuing medical maintenance (CMM) is the latest hot topic in Oklahoma workers' compensation. Usage of generic and designer drugs is on the rise. Thanks to the ubiquitous marketing campaigns of the drug companies, patients can now tell their doctors what to prescribe for their ailments.
In the workers' compensation world this translates into escalating use of narcotics to control chronic non-cancer pain. Unfortunately the pain relieving effect brings the risk of side effects that alter the emotional and mental status of the patient. They also may increase the patient's pain sensitivity. Besides the risk to the patient, there is an ever increasing expense to the insurance carrier.
Judges must weight these costs and benefits while complying with the legal intent of CMM to provide stability to the injured worker's condition after he has reached maximum medical improvement. We are concerned that the Physican Advisory Committee Guidelines for Prescription of Opioid Medications is not followed after a CMM order is issued with the resulting escalation of narcotic strength and dosage. It should be noted that the Guidelines require the physician to wean the patient from narcotics if there has not been an improvement in physical functioning. I seldom see this happening after a CMM order.
How can we balance the needs and risks? There are no guidelines that establish fact patterns justifying a CMM order. Case law requires medical evidence before a time limitation can be imposed, and statements that CMM "should be limited to ___ months" are conspicuously absent from the medical reports. Current orders used by all the judges allow the parties [insurance carriers, this includes you] to modify or review the CMM order at any time, but they never do.
So, what can we do? As usual there isn't just one approach to solving the problem. We can wait for an appellate decision that settles the issue, or we can wait for the legislature to enact restrictions, or . . . .
Rather than waiting, I have revised my standard CMM orders.
If the claimant is expected to receive narcotics, my order will automatically review the case in six months to decide whether he and his physician are complying with the Guidelines. If there is no improvement of function over the baseline, weaning may be ordered; or the review may be rescheduled until I am satisfied that continued dispensing of narcotics is justified.
If the claimant is not expected to receive narcotics, there is no review; and narcotics may not be prescribed without a subsequent court order.
This approach imposes limitations that protect the injured worker and assures Court review. Let's not allow the cure to be worse than the injury.
In the workers' compensation world this translates into escalating use of narcotics to control chronic non-cancer pain. Unfortunately the pain relieving effect brings the risk of side effects that alter the emotional and mental status of the patient. They also may increase the patient's pain sensitivity. Besides the risk to the patient, there is an ever increasing expense to the insurance carrier.
Judges must weight these costs and benefits while complying with the legal intent of CMM to provide stability to the injured worker's condition after he has reached maximum medical improvement. We are concerned that the Physican Advisory Committee Guidelines for Prescription of Opioid Medications is not followed after a CMM order is issued with the resulting escalation of narcotic strength and dosage. It should be noted that the Guidelines require the physician to wean the patient from narcotics if there has not been an improvement in physical functioning. I seldom see this happening after a CMM order.
How can we balance the needs and risks? There are no guidelines that establish fact patterns justifying a CMM order. Case law requires medical evidence before a time limitation can be imposed, and statements that CMM "should be limited to ___ months" are conspicuously absent from the medical reports. Current orders used by all the judges allow the parties [insurance carriers, this includes you] to modify or review the CMM order at any time, but they never do.
So, what can we do? As usual there isn't just one approach to solving the problem. We can wait for an appellate decision that settles the issue, or we can wait for the legislature to enact restrictions, or . . . .
Rather than waiting, I have revised my standard CMM orders.
If the claimant is expected to receive narcotics, my order will automatically review the case in six months to decide whether he and his physician are complying with the Guidelines. If there is no improvement of function over the baseline, weaning may be ordered; or the review may be rescheduled until I am satisfied that continued dispensing of narcotics is justified.
If the claimant is not expected to receive narcotics, there is no review; and narcotics may not be prescribed without a subsequent court order.
This approach imposes limitations that protect the injured worker and assures Court review. Let's not allow the cure to be worse than the injury.
Wednesday, September 23, 2009
Major Cause --- Boy Was I Wrong!
Major cause is the most puzzling of the new terms in the 2005 legislative reforms. "Major cause means the predominate [sic] cause," and the employment must be the major cause of the injury. Predominate [sic] is a synonym for major, and we have a term defined in terms of itself. What I call a circular definition which is no definition at all. That's the problem, and we traditionally look to the appellate courts for clarity.
The COCA tried to make sense of the term and establish guidelines for its application in the case of American Airlines v. Crabb. The Supreme Court then agreed to review the opinion. Originally I posted the unpublished COCA case, and then made a stab at predicting the ultimate outcome. I was one of those who unfortunately concluded that the Supreme Court would clarify the nebulous verbiage. Boy was I wrong!
The Supreme Court avoided the issue. Released yesterday, the opinion holds that the claimant's date of injury preceded the 2005 amendments; thus making it unnecessary to address the major cause dilemma. Crabb alleged a cumulative trauma injury with date of awareness in 2004. The Court held that the date of awareness is the date of injury, and therefore 2004 substantive law applies. Since the major cause requirement adds a new element of proof which must be viewed as substantive, it cannot be applied because it was enacted after the injury date.
Judge Buettner, author of the COCA opinion, held that the date of injury was the date of last exposure based on 85 O.S. §11(B)(5) and CNA Insurance v. Ellis. I agreed. How did we get it wrong? Ellis was an apportionment case and Crabb was not. Is that the distinction? Or not? More on this in a later post.
In the meantime what do we do now? For now I (meaning one of ten judges at the WCC) will follow the reasoning of my previous posting on this question. Would the claimant's current injury-producing need for medical treatment have occurred but for the workplace trauma? And so it goes.
The COCA tried to make sense of the term and establish guidelines for its application in the case of American Airlines v. Crabb. The Supreme Court then agreed to review the opinion. Originally I posted the unpublished COCA case, and then made a stab at predicting the ultimate outcome. I was one of those who unfortunately concluded that the Supreme Court would clarify the nebulous verbiage. Boy was I wrong!
The Supreme Court avoided the issue. Released yesterday, the opinion holds that the claimant's date of injury preceded the 2005 amendments; thus making it unnecessary to address the major cause dilemma. Crabb alleged a cumulative trauma injury with date of awareness in 2004. The Court held that the date of awareness is the date of injury, and therefore 2004 substantive law applies. Since the major cause requirement adds a new element of proof which must be viewed as substantive, it cannot be applied because it was enacted after the injury date.
Judge Buettner, author of the COCA opinion, held that the date of injury was the date of last exposure based on 85 O.S. §11(B)(5) and CNA Insurance v. Ellis. I agreed. How did we get it wrong? Ellis was an apportionment case and Crabb was not. Is that the distinction? Or not? More on this in a later post.
In the meantime what do we do now? For now I (meaning one of ten judges at the WCC) will follow the reasoning of my previous posting on this question. Would the claimant's current injury-producing need for medical treatment have occurred but for the workplace trauma? And so it goes.
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