Thursday, May 28, 2015

An Interesting Pennsylvania Case Led Me to Check our Numbers for 2015

An interesting case caught the news in Pennsylvania in March. I do not read every news story about workers' compensation, but the headline, "plant worker knocked out by falling refrigerator" caught my eye.  The lead line in the first paragraph led me to read the story through, it said "Joseph Tolle awakened to see a refrigerator still plugged into the wall, swinging above his head." That has to be disconcerting, a heavy object dangling above you from a plug-in.

The story describes the events, which essentially involve a 26 year old security officer hit by a falling fridge, that had been placed on a shelf about eight feet above the floor. It might be best overall if refrigerators remained on the floor? His case went to trial in Pennsylvania in February 2015. The accident occurred around 3:30 a.m. on October 13, 2013. 

Some interesting points are raised by the story. 

The attorney interviewed for the article said that "it can take up to a year for cases to come to completion once a claim is filed." in 2013, the Florida OJCC averaged 142 days (about 4.5 months) from petition or motion until final hearing. Certainly, there were Florida cases that took over a year. With Expert Medical Advisers, bankruptcies and other complications it can happen. Sixteen months seems a bit long however. 

The article noted that in Pennsylvania in 2013 there were 46,630 petitions and remands assigned and "46,032 judges decisions in workers' compensation claims filed in Pennsylvania." In 2013, Florida had 58,041 petitions filed, according to page 11 of the 2013-14 annual report. We do not count remands, so that figure is not a direct corollary to the Pennsylvania number. 

The figure of 46,032 "judges decisions" is interesting.  Last year, our judges averaged 57 trial orders each, and we have 31 judges, so we had about 1,767 trial decisions. The judges entered an average of 393 stipulation orders each, or 12,183 stipulation decisions. They entered about 2,510 "other" orders each, for a total of 77,810 "other" orders. I am not sure how Pennsylvania defines "judges decisions," but it would appear Florida's judges perhaps entered about 91,760 orders by comparison. This may or may not be an "apples to apples" comparison. 

According to a study by the National Association of Workers' Compensation Judiciary, Florida has 31 judges, so that figure (91,760) yields a per-judge "orders entered" average of 2,960 per judge. The study says that Pennsylvania has 90 workers' compensation judges, so the figure reported (46,032) yields about 511 per judge. Again, whether this is "apples to apples" is not clear. 

The article also noted that claim volume is decreasing in Pennsylvania. I recently looked at the figures we have for claim/petition filing in fiscal 2015 (which ends June 30, 2015). Based on the ten months that are behind us for 2015 (through April 30), it looks like the petition and new case filings will be plus or minus one percent of the 2014 figures. Right now the statistics are showing a trend to increase in both categories, but less than three-tenths of one percent.  

An interesting case from PA. I hope the gentleman who woke up looking at a refrigerator dangling over him recovers. If your refrigerator is on a high shelf, you might want to take it down. I hope people are not waiting 16 months for decisions in Florida. I find the comparison of what is going on in these two states' workers' compensation adjudication processes interesting. I hope you do also. 

Wednesday, May 27, 2015

Help Wanted - Mediatior in Pensacola

We are trying to hire a part-time mediator for the Pensacola District Office. The position would require about twenty hours per week, and could be flexible regarding the details. The position could become full-time. 

Mediation in Florida workers' compensation is mandatory, and has to occur within 130 days of petition filing. It is a challenging job. 

Qualified applicants will be certified by the Florida Supreme Court. The Supreme Court does not require someone to be an attorney in order to be certified. However, statute 440.25, requires that for workers' compensation "a mediator must be a member of The Florida Bar for at least 5 years and must complete a mediation training program approved by the Deputy Chief Judge."

So, for this position, you must be a member of the bar for five years and be certified by the Supreme Court. 

If you are interested, visit People First, the state employment application portal. If you know someone that may be interested, email them this post. 


Tuesday, May 26, 2015

Perfect Access to Perfect Information

What if we could have instant access to perfect information? 

Access is not a problem limited to information. If a manufacturer had perfect information about the demand for its product, that would allow planning and would minimize costs for warehousing and inventory. If a service provider knew precisely when it would need how much of a supply, warehousing and storage are likewise minimized. 

The manufacturing and retail marketplace have been struggling with the challenges of what has been labelled "just in time inventory" or perfect access to perfect inventory. Through careful management, the right inventory shows up at the retailer or manufacturer at the right time; as product is sold or used, it is timely replaced on the shelf for the next customer but there is no excess supply to be stored "in the back" awaiting that sale. When you are ready to purchase, the last thing most people want to hear is that it is "out of stock, but can be ordered."

Information might be similar. What if we had perfect access (right now, easily) to perfect information? in March, WorkCompCentral ("WCC," subscription) reported on Maximus Federal Services, a company that provides an "independent medical review," or "IMR" process in California.  In California, this IMR process is used to resolve medical disputes. 

IMR is designed to be an "efficient process" that places medical disputes in the hands of physicians. It is not completely dissimilar to the Florida "expert medical advisor," or "EMA" process. However, it is designed to function in a much broader context within the California dispute resolution process. California has contracted with Maximus to provide this service. Its success has been the subject of some discussion there. 

As WCC reported in March, almost 7,000 cases in the IMR process are "missing medical records." The records are critical to the IMR process, just as they would be to any dispute resolution process. Step one in resolving medical disputes is gaining a full understanding of the diagnosis, the foundational testing results and medical findings that support that diagnosis, and whatever logic supports a recommended course of care. 

The medical information challenges are not unique to California IMR. When cases in Florida are in dispute, it is common for attorneys to begin sending subpoenas and releases to medical care providers and facilities to obtain complete sets of medical records. These efforts all to often produce a volume of irrelevant or marginally relevant records in addition to the pertinent records. 

For example, an injured worker presents at a hospital emergency room after the work accident. The release or subpoena to that hospital, in an attempt to be thorough, asks for "all records" regarding that patient. The response therefore includes the ER record following the work accident and also all of the records from the injured worker's hospital admission 14 years ago for appendicitis. 

These records are complete with nurses' notes carefully documenting the patient's temperature and medication course over a four day appendicitis hospital stay 14 years ago. The response will include all of the testing for that condition, consultations, surgery reports, etc. Sometimes too much information can be as troubling as too little. 

Seemingly, the carrier or third party administrators should receive timely copies of the records from the work injury. The statute requires medical providers to produce records when they bill for services. Pursuant to the authority in Fla. Stat. 440.13(4)(a), the Division of Workers' Compensation requires health care providers to periodically report on medical care rendered. The providers use the DWC-25 to report diagnosis, treatment rendered, testing needed, and work capacity. It is a self-contained wealth of information when it is properly completed. That is the rub, however, the form is not always complete. The process of obtaining records is not perfect. 

When the records are produced in response, they are not always relevant or complete. Often, the references in the produced records lead to a host of additional providers or facilities whose records must then be sought. The workers' compensation law, Fla. Stat. 440.13(4)(b), calls on the medical provider to provide those records to the injured worker and the employer/carrier. 

Then the law says that Carriers are supposed to review bills from medical providers, called "utilization review" under Fla. Stat. 440.13(6). The review is to "identify over-utilization," and to assure compliance with "practice parameters and protocols." There is an industry of medical bill review that specializes in this process so that insurance company claims adjusters do not have to do so personally. 

So, there is a need for information. It is required for compliance with the law, and more important it is required for imortant decisions. Adjusters or medical bill review specialists need to see the medical records and DWC-25 forms. Employers would benefit from information in the forms, such as work restrictions, duration of anticipated care and more. The injured worker would likewise benefit from easy access to the medical records from the workers' compensation treatment. Even when we are handed a piece of paper, putting our hands on that particular page a few days later can be a real challenge. 

The WCC story in March says that California's struggle in those 7,000 cases appears to be a combination of failures. It says that some submitted records have not been matched to the appropriate case for review. In others, the records have not been submitted by claims administrators because "the treating physician never supplied them." 

It is not that data does not exist. Presumably the medical providers create records to document what they see, feel, conclude, and treat. It is possible that those records are submitted with the medical billing, but are detached in the process of bill review. It is possible that the records are submitted after the bill and that there are then issues with getting the right record attached to the right bill. The information is out there, but there are organization and access issues that are hampering the use of the information. 

After the fact, there is a significant volume of time and effort invested in attempting to effectively use the information; to plan treatment, to assess capacity, to consider return to work, and more. Access to information is imperfect because it is in multiple formats and locations. The data itself may be imperfect because boxes are not checked, explanations are not clear, or internal inconsistencies confound valid conclusions. 

What if we had perfect access to perfect information? Is it possible? Perhaps it is not possible, perfect is a tough goal. There may always be failures in the quality and accessibility of data despite our best efforts. But, arguably things can always be better than they are. While we may never have perfect access, it is practical to think that we could have better access. 

In 2013, the International Association of  Industrial Accident Boards and Commissions (IAIABC) issued its Electronic Billing and Payment National Companion Guide. The IAIABC advocates an electronic billing system for workers' compensation and proposes a national standard for the process. With a national standard, billing from medical providers in any jurisdiction would produce data that is reasonably consistent in format and content. This would simplify the operations of medical bill review companies and insurance companies. With consistent inbound data, the processes for review and approval could likewise be significantly consistent. 

With electronic medical billing, the associated support information such as the doctor's office note or the DWC-25 would be electronically connected to, or associated with, the billing. The protocol could be similar to the manner in which doctor's notes or other medical records are associated with the petition for benefits filed seeking adjudication of workers' compensation issues today. 

The greatest benefit, however, would be in the area of access to information. If all incoming medical billing for an injured worker was connected to an electronic version of the treatment documentation (office note or DWC-25) then that information could be easily and inexpensively put at the fingertips of the injured worker, the employer, and their respective counsel. 

There could be a repository of medical information at the fingertips of the concerned parties. While that access might not be perfect, it would be more contemporaneous and complete than the current release and subpoena process. Time would be saved, as could be expense. Less paper moving through the U.S. Postal Service, and more being reviewed online in an accessible and convenient database. The digital nature of the documents would promote searching and organizing efficiently as well. 

In the WCC article, an official was quoted "there is always room for improvement." That is likely true. We can always be on the lookout for ways to decrease the friction in workers' compensation disputes and decisions. The more ready access to critical information, the quicker and more reliable the decisions that are required. Whether that is medical authorization, workplace accommodation, or otherwise, more rapid, thoughtful, and accurate decisions benefit everyone in the system.

 So, the questions we may want to ask are:

(1) why are the states not implementing electronic medical billing? (2) what can be done in the interim to increase access to better information without subpoenas or releases. 

Christopher Smith, a Tampa attorney representing injured workers has repeatedly proposed a "data warehouse" that would facilitate access to information. Social Security already has one. If suuch a system were replicated here, that warehouse could be stocked with the data that may one day come from electronic billing in WC cases. Does it make sense to wait for the electronic billing process to facilitate this tool, or would it make sense to build it now and stock it with the imperfect data that we already have? This is a question like whether to wait until we have books to build shelves, or whether we should build shelves in hopes the books will come. 

If we cannot have perfect access to perfect data today, should we instead strive for better access to better information in the near term? What kinds of logistical, programming, and privacy concerns will we have to confront to do so? Why are we not working on this?

Sunday, May 24, 2015

Who Reads This Stuff

The world of the Internet is a curious and interesting place. The blog you are reading is an infinitesimally small part of an incredibly vast assortment of data and information out there for consumption.

Who reads this material? Well obviously you do. But who are you and how did you get here. Part of the benefit of the Internet is the dissemination of information. But an ancillary benefit is the gathering of data. Google Blogger is the platform that I selected to blog. There are a number of free platforms on the web, and this one just seemed to work for me (O.K., I admit that it was reasonably easy to use and I got started with it and stuck with it as a creature of habit).

So who are you? The analytical tools on this platform tell me that about 69% of you are from the United States. The programming does not break it down more than that. I would suspect that most of you are from Florida. But at only 69%, that leaves a great deal, almost a third of you, that are not.

My second largest audience is from Russia, almost 16%. I was surprised by that. To my knowledge there is no wokers' compensation system per se in Russia. The third largest audience is France (6%), then Great Britain (3%), and then Germany (2%). About one percent each come from India, Ukraine, Taiwan, and China. I found that assortment astounding for a blog centered on workers' compensation, and more specifically Florida.

How did you get here? Forty-six percent of you got here through a Google search; Another 18% from a LinkedIn post. That is almost two-thirds from two sources. The OJCC website has a link to the blog. Twenty percent of you reached this platform on that referral. Facebook was the source of almost another 12%, and I am not even on Facebook. Bing brought in almost another 4%. 

What software are you using? Well 33% of you are using Chrome, twenty-six percent Firefox, 24% Internet Explorer, and 12% explorer. That is 95% on essentially three software platforms. Then a handful of you are running software like Opera, Samsung and GSA.

It is indeed interesting to see who is accessing these thoughts and how you are doing it. Is there a better illustration of the simple fact that information is becoming increasingly simple to access? 

In the early days of the Internet, and since, we all have used a wide variety of search engines, AOL, Alta Vista, WebCrawler, Yahoo, Ask, and Bing? But at least in this little non-scientific study, we do not see these platforms. 

I find it interesting that you are such a diverse audience in terms of your location, how you found this, and how you are accessing it. Thanks for reading. I hope the information is as interesting to you. 


Thursday, May 21, 2015

Illinois Moving Towards Major Contributing Cause?

There is a fair amount of coverage in the media about the differences between various states' workers' compensation programs. I outlines some of this in a recent paper regarding an analysis of state workers' compensation insurance premiums, Comparing the Premium Cost of Workers' Compensation. This brings a perspective to the biennial Oregon study of workers' compensation premiums.

An interesting quote cited in that paper is the Workers' Compensation Research Institute (WCRI) that

“the state by state approach to workers’ compensation in the U.S. has often led to a ‘rush to the bottom’ on the part of jurisdictions.” 

An Illinois representative recently echoed that language in a an article on 5 NBC Chicago, saying "we support rooting out fraud and corruption, but this side of the aisle will not join other states in a race to the bottom." Though the Oregon premium study is said to be for introspection, rather that state-to-state comparison, it is inevitable that states look to such studies to see how they rank.

Two states that seem inevitable for comparison are Illinois and Indiana. How many school kids mislabled these two on that old "fill in the map" assignment? They even look similar. But they are similar in other ways. Recently, What can Illinois Learn From Its Neighbor noted some similarities in the states and some distinctions in the two states' workers' compensation laws.

In the 2014 Oregon rate study, Illinois had the seventh highest premium for workers' compensation. Indiana, right next door, had the second lowest in the country. Some wonder how these two geographically, and some say economically, similar states can be such a contrast.

Illinois Governor Bruce Rauner has been critical of the workers' compensation reforms passed this century. On his blog, he says that the 2011 reform "accomplished very little. Illinois' workers' compensation system remains uncompetitive (sic) with neighboring states and our economy continues to suffer."

He has proposed some amendments to Illinois workers' compensation. According to the Injury Law Blog, those changes would

"• Make it harder for employees to claim they were injured traveling to or from work
• Limit damage awards in civil suits
• Reducing the power of labor unions
• Withdraw wage laws for taxpayer-funded construction workers
• Toughen the standards workers must meet to prove their injury occurred on-the-job
• Dramatically reduce reimbursement rates for healthcare centers that treat workers"

Specifically, the Governor is proposing  major component is the proposal that compensability in Illinois would be controlled by the "major contributing cause" standard, similar to Florida's. 

One pending bill (HB2421) would redefine "injury" as follows:

"The term "injury" as used in this Act means a medical condition or impairment that arises out of and in the course of employment. An injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For the purposes of this Section, "major contributing cause" means the cause which is more than 50% responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. "Injury" includes the aggravation of a pre-existing condition by an accident arising out of and in the course of the employment, but only for so long as the aggravation of the pre-existing condition continues to be the major contributing cause of the disability." (Emphasis added).

The Major Contributing Cause standard in Florida is not found in the definition of injury, but in the "coverage" section, 440.09, which says

"The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought." (Emphasis added).

The two provisions are strikingly similar. 

Various reforms to workers' compensation programs are being considereed around the country. Tennessee recently rejected the Oklahoma opt-out, and according to WorkCompCentral South Carolina will consider it next. Even the Federal government is considering changes to its workers' compensation. Will Illinois adopt this causation standard, or other reforms? 

Update 05.28.15 WorkCompCentral reported that reforms are struggling in Illinois Legislature



Tuesday, May 19, 2015

Is it Padgett Time Yet?

Many think that Florida is alone in the debate of exclusive remedy. Not so. Certainly, there is a spirited debate here regarding the "Padgett" case. That matter is still pending in the Third District Court of Appeal (Miami), case number 14-2062. The oral argument was March 30, 2015. No further word since that time according to the online case docket.

There is really no precise methodology for predicting when a decision will come from the Third District. I have previously attempted to provide some parameters for prediction of the currently pending Florida Supreme Court workers' compensation casesCastellanos and Westphal. It is absolutely not a scientific method, but it is the best I have. Essentially, I randomly select a population of recent decisions of a court, and then reference how long ago the oral argument was in each of those cases.

On May 13, 2015, the Third District Court of Appeal rendered 35 opinions/decisions. Most of those were "per curium" decisions, meaning that the orders were brief, rather than long, descriptive explanations. Some were more substantive though. Many of those case dockets evidence no oral argument (OA). The following May 13, 2015 decisions involved an OA (date in parenthesis): 

14-0985 (04.15.15; 28 days to decision)
14-1668 (04.15.15; 28 days)
14-2988 (03.24.15; 50 days)
13-2751 (04.27.15; 16 days)
14-0020 (04.27.15; 16 days)
14-2981 (04.28.15; 15 days)

The average is about 26 days. The oral argument in The State of Florida v. Florida Workers' Advocates (Padgett) was March 30, 2015. Twenty-six days would have been April 25, 2015. Fifty days, commensurate with the decision in 14-2988 (the longest on this list) would be May 19, 2015 (yesterday). 

The Opinions page of the court's website supports that the Third District strives to release opinons on a schedule, each Wednesday. However, archived opinions page suggests that the court may deviate from this schedule, with opinions sometimes issued on other days.  

It is fair to say that there is no way to predict when the Court will issue its decision. It is also fair to say that the decision in this case could issue any day. If you want to keep an eye on the court, check the opinions page

Remember, if the Third District affirms the trial court's conclusion that exclusive remedy is unconstitutional, the Florida Supreme Court will consider the case. If the District Court reverses the trial court, the Florida Supreme Court may still consider the case, but does not have to do so. 

I get a lot of questions about what will happen in Padgett. There is much to consider. At the oral argument, one of the judges asked about Elsa Padgett's employer. The judge noted that when Ms. Padgett became an intervenor (the original parties to that lawsuit had both departed, and Ms. Padgett was allowed to intervene along with Florida Workers' Advocates against the State of Florida, as the nominal defendant), she was asserting her rights to have access to the Florida tort system, that is to avoid the exclusive remedy that protects her employer from the tort system. 

Ms. Padgett's employer, the party whom she would presumably sue if allowed by the trial court's decision, was not a party to that litigation. That employer has not been heard. Some question whether that employer has been afforded any due process in the development of its potential liability in this case. They think that the employer who would be sued if exclusive remedy is stricken should have notice of that potential and an opportunity to be heard regarding the striking of that defense. 

These prognosticators predict that this will be the point upon which this case is decided by the Third District. They say this procedural point resolves the appellate case and allows the court to avoid the deeper constitutional issues that have been raised. They prognosticate reversal on this procedural ground, and predict that the case will be sent back to the trial court. 

That said, I have not heard anyone say that they know how it will come out, though some make predictions like the foregoing. Likewise, we don't know when the Court's decision will be published. However, it seems to me that it could be anytime now. Out of curiosity, I will be watching the Court's website today. 

Robert Hartwig on the Workplace of Tomorrow

The NCCI Annual Issues Symposium was in Orlando last week. An interesting gathering of various constituents of the workers' compensation world. I could not stay long, but long enough to hear two great programs. Robert Hartwig of the Insurance Information Institute presented the Workplace of Tomorrow, and Salim Ismail of Singularity University. Mr. Ismail's presentation foretold big changes coming for our economy generally. 

Mr. Hartwig provided an overview of the marketplace that is property and casualty (P&C) insurance. This is a very broad product line, including insurance on cars, homes, factories, and workers' compensation. He noted that profits in this market have followed a "peak and valley" pattern. There were valleys in 1975, 1984, 1992, and 2001. For some reason, no deep valley since then. 

He provided a very interesting overview of insurance industry profitability, charting such events as hurricane Andrew, September 11, the hurricane landfall clusters around the turn of the century, and Sandy. Mr. Hartwig also provided illustration of the "peak and trough" pattern of written insurance premiums, with reference to such historical points as World War II, "The Great Depression" and the "Great Recession." The emerging patterns and historical references were intriguing. 

One notable conclusion is that the marketplace is in a "very strong financial position." The surplus at the end of 2014 was a record $674.7 Billion. 

There is evidence of premium growth in some state's markets. Several of these are in the great plains. Mr. Hartwig noted that these states were not as engaged in the building boom that preceded the real estate bubble. They thus missed some economic benefit from that boom, but suffered less influence of the resulting over- inventory, foreclosures, and other implications. He also noted that several of these states have enjoyed recent economic growth related to expansions in energy resource exploration and retrieval there.

He noted that "states with the poorest performing economies also produced some of the most negative net change in premiums of the past 6 years." It was troubling to see Florida 6th from the bottom of his graph of percentage change. Certainly, Florida was a big beneficiary of the building boom, and the resulting inventories and foreclosures have been a burden. 

Mr. Hartwig cautioned that the current state of the P&C market  is not necessarily any guarantee of the future. He notes that there have been challenges to the P&C market, some specific to workers' compensation. 

A general concern is the low return on investments. Investment income has decreased the last three years. The income returns "are still below their 2007 pre-crisis peak." He noted that "low yields have an especially large influence on profitability of long-tailed lines like WC (workers' compensation)." 

An even more specific concern for workers' compensation is the friction or perceived friction that is currently perceived in the litigation arena. Mr. Hartwig noted the criticisms this year from Probublica and the Occupational Safety and Health Administration (OSHA). He noted that these criticisms may have centered on anecdotal examples of specific benefits. It will be interesting to see whether the questioning, such as is raised in this publicity, will continue or fade. 

Mr. Hartwig noted other challenges. The current development of "opt-out" legislation poses intriguing questions about the future of workers' compensation. If this becomes a broadly available option, who will exercise it? It is not likely to be the small or medium businesses. The largest businesses, with already existing ERISA plans in place for other employee programs are likely to be enticed by the opt-out option. These large employers, with resources and experience regarding safety and loss prevention, could be among the best risks in the pool. The loss of their participation could impact the course of the marketplace for businesses that remain in the risk pool. 

Another challenge is the litigation of challenges to the function and protection of workers' comp. Mr. Hartwig noted that there are challenges to "exclusive remedy" in several states, a prominent one, "Padgett," here in Florida. The allegation is that the "Grand Bargain has been breached and that benefits are now insufficient." 

He concludes that the "objective of trial lawyers (is) to tap into the tort system." There are benefits and burdens of the tort system also, for both sides of the debate. We in Florida continue to watch for the appellate decision in our "grand bargain" challenge, Padgett. The oral argument was at the end of March, and we approach 60 days waiting for the Third District's opinion. Floridians are Court Watching, but we are not alone. 

More than a few years ago, the Grateful Dead gave us Casey Jones. As I sat in the NCCI Annual Issues Symposium in Orlando, listening to Robert Hartwig, I somehow heard the Dead reminding me "trouble ahead, trouble behind, and you know that notion just crossed my mind." Many times people say of their weather "if you don't like it, stick around a minute and it will change." Perhaps the same can be said of comp?" With legislative action on one side and court interpretations on the other, stick around a minute change may be inevitable. 

There have been periods of stability and volatility in the history of workers' compensation. As illustrated in the overview of the Oregon Premium Study, the market moves in similarities.  The overall twenty-year trend is lower premiums across the country, even in states that have not engaged in "reform." However, it is equally apparent that states are unique in many ways and any one might be in crisis at a given time, and simultaneously others may be in a stable, calm period.  

The Dead conclude Casey Jones with "trouble with you is the trouble with me, got two good eyes, but you still don't see." And that perhaps is the cardinal sin. There are signs around us and much to take in. There is good and there is bad and no side of the debate owns all the moral high ground. The challenges of workers' compensation will continue. Some are currently foreseen, or foreseeable, by experts like Mr. Hartwig, other challenges may be more predictable.  

Hopefully we all can to listen better, understand more of each others' challenges, and continue to work towards the ultimate purpose of workers' compensation "to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer."

Presentations like this one last week are a good start. Mr. Hartwig brought a variety of perspectives and ideas to the fore. It was well researched and presented. The bottom line is that we are in a reasonably calm period right now, but there are likely changes coming to challenge us all. 


#workerscomp

#FLJCC

#NAWCJ

Sunday, May 17, 2015

Salim Ismail and a Lifechanging Seminar in Orlando

In the midst of one of their early conversations, Luke Skywalker reassures Yoda of his bravery, saying "I'm not afraid." Yoda replies knowingly "oh, you will be. You will be." Perhaps we all need to accept that we may experience fear?

I have written about the changes in technology, and the great changes and challenges that lay ahead of us as individuals, a workforce, an industry, and a nation. My thoughts on this started with Attorneys Obsolete? last year. In 2015, I penned Three D Employment, a post that addresses some of the impacts that technology may soon have on our work-world. Most recently, I asked How will Any of us Adapt? The implications of technology on our work, the workforce and our economy have interested me for some time. As goes the workplace, so goes the ancillary of workers' compensation. 

I spend a great deal of time reading. It brings me relaxation and I have always enjoyed it. Classes are another story for me. Frankly, many classes do not appeal to me; it is harder for me to learn that way, compared to reading. Last week at the NCCI Annual Issues Symposium, I sat in on a couple of classes anyway. I was enthralled. They were outstanding! 

The first was presented by Robert Hartwig of the Insurance Information Institute. I have seen him speak before, and he is always good. This program was the best I have seen him deliver. The second that I attended was presented by Salim Ismail. He is with Singularity University, an author and one of those silicon valley technology gurus you read about. This was my first exposure to him, the University, and several concepts. He was incredible. 

Today I focus on Mr. Ismail, because of the impressions he left on me. I was not alone, there were many an "Amen" heard from my surroundings during his speech. 

In my three posts above, I thought I did a pretty good job of raising issues related to the coming impacts of technology. I also felt like I had a pretty firm grasp on where things may be headed. I was wrong. My thoughts barely scratched the surface. New ideas are going to keep coming. The pace is going to increase. Our economy is heading for a significant shift regarding how people earn livings. 

New products are coming to market faster. There are new ideas, and we do not all adapt to them easily or cheerfully. This is illustrated in an interesting article on Forbes which details some ideas that historically drew criticism prior to acceptance. 

The title of Mr. Ismail's presentation was "Disruptive Convergence, Jaw Dropping Insights into Breakthrough Technologies." Despite the breadth of his topic, I walked away realizing that the audience did not fully appreciate that his predictions and expectations from technology are harbingers for our entire existence, the entire planet, and will touch us at virtually every level of our existence. 

He says that we will lose two billion (that is not a typo, BILLION) jobs near-term. Before we could panic, he assured us that the economy will create enough jobs to offset this and more. He reminded us that in the 19th Century, 50% of workers were employed in agriculture. There was a revolution, and technology decreased the number of hands needed to feed us. As a result, we did not see 1/2 of the country unemployed as they were displaced from agriculture; instead we saw people shift to other occupations. Mr. Ismail projected that this same kind of shift would occur again in this next technological revolution. But it is likely to affect us more rapidly than the agricultural revolution. That was a reasonably slow evolution, over the last half of the 19th Century, caused by new technology. By comparison, we are in the midst of a revolution instead. 

Mr. Ismail brought some humorous points to the fore brilliantly. Unfortunately, he also belittled a few individuals with whom he disagrees. Certainly we can agree or disagree with one another, but hopefully we can do so respectfully. I mentioned already that this program was life-changing. I was very impressed, but the belittling comments were distracting.  

He predicts that life as we know it will change radically. He related his belief that his three-year-old son will never obtain a driver's license. As I have written, self-driving cars will become a paradigm in our future. But, Mr. Ismail predicts that it will become THE paradigm. And, he predicts that it will do so in the next dozen years. Drivers' licenses an anachronism in the next twelve years. Driver-less cars will not be a reality, but will be the reality.

Vehicles will not be owned by the vast majority of us in the future. In a nation that worships the auto in our lives and pop-culture, the concept of not owning a car is simply unfathomable for many. But he says it is coming. Mr. Ismail notes that vehicles in our present day paradigm spend more than 90% of their useful lives sitting and depreciating. 

He suggests that vehicle sharing will increase dramatically, with the advent of driver-less cars. Cars will be owned, but we will use them for a price at times we need them. They will be less private, far less personalized and our society will be different as a result. Less will be needed. They will likely be connected to the Internet. They will communicate with each other. It will be different. 

Mr. Ismail predicts that our society may reach a point where many people will not work because they do not need to do so. Technology, in his perspective will eradicate our need for productivity. We will build machines, but those machines will build everything thereafter, including new production machines. He sees a future in which the government provides every person a living wage with which to provide themselves food and shelter.

He explained that Switzerland is debating a new socialization in which all citizens are paid a living wage regardless of whether she or he works at all. A point that was not addressed is how this might affect government. Our societal governance survives on tax revenue. Currently the main paradigm in the U.S. is an income tax, though there has been much discussion of the benefits of consumption taxes (sales). 

If we evolve, as he predicts, to a paradigm in which work is less common, it will be less valued, and this will affect how it is compensated or valued, which may likewise affect the revenue to government under an income tax paradigm. This shift may drive the U.S. to a consumption tax of some form.  

If we reach that point, what will we do with our time? Eugene Delacroix said that "we work not only to produce, but to give value to time." If we reach the point were work is not required to survive, how will we give value to time? Will there be more artists, musicians, writers, and beauty in our world. Or, will we all spend more time watching reruns of Gilligan's Island? That dichotomy is likely worthy of some consideration.

Ismail believes that legal structures and constructs are reactionary. He believes that these constructs cannot keep up with evolving technology, with its accelerating pace. An example cited involved "bio-hackers" who have developed an injection for the human eye that results in "night vision." He contends that this cannot be controlled through legal constructs because governments cannot react quickly enough to the developments. 

Humorously, in support of this critique of government regulation, he notes that the self-driving Google car now on the road has rear-view mirrors, but no steering wheel. Both are irrelevant to a driver-less car, but the law requires rear-view mirrors. Without the foresight to predict the advent of this driver-less paradigm however, no regulator thought to make a steering wheel legally mandatory. 

Mr. Ismail addressed change as well as any speaker I have heard. He noted that business, the "corporate culture," does not like change. He explained that when change is proposed it is the company's "immune system," that is internal resistance, which will most likely kill change (we so often hear something "won't work" and "this is how we've always done it"). 

He explains that it is because of this truism that Tesla, without an existing immune system or culture or habit, can jump successfully into the electric car market while seasoned vehicle monoliths like Ford and Toyota struggle to leverage electricity as a technology. 

Mr. Ismail cited example after example of "disruption" caused by advancing technology. He explained that technology is developing in an exponential manner. The development is not linear or mathematical, because progress is occurring in an environment or model where the pace between developments doubles, generally every two years. Thus developments are coming faster. Just as Moore's law described the progression of computing power and miniaturization, Mr. Ismail's doubling progression model describes the development of progress and innovation. 

As an example, he noted the three-D printing is not a new invention. He says that is a thirty year-old idea. However, when conceived, it had to be developed. There was capability added with each iteration of the concept, essentially doubling in effectiveness and functionality every two years. The progress in the early portion of development is still seemingly slow, but as time passes the increase in functionality spikes upward in nearly a vertical line. Thus, recently the first item ever manufactured by humans not on Earth was printed with a three-D printer on the international space station. 

Technology is changing the economics of our world. Mr. Ismail cites Kodak and the paper photograph paradigm of the Twentieth Century. He describes it as a paradigm fraught with scarcity, of time, and resources. There were limits in how much film could be loaded, or even carrier with one, limits on turn-around because they required development and printing, and cost of the actual printing. There was waste of these relatively expensive and time-consuming prints. The technology shift to digital photos removed the delays, rendered it possible for a single photographer to carry the capacity (film) for millions of photos easily, eliminated processing delay and cost, and rendered disposal of excess photos simple, quick and free.

When we look around us, we see changes. We all recognize the impact that disruptive convergence of technology has wrought in our existence. The Kodak and digital photography illustration is insightful and illuminating. Land-line telephones, records, CDs, DVDs and the Blockbuster store, all victims of the same disruption. Recognizing that we have seen the process, despite the fact that many of us deny or ignore it, Mr. Ismail provided a chilling prediction: the "most disruption is ahead of us, not behind us."

He predicts that industries will be changes. There will be ripple effects, such as the auto-body shop discussion in my previous posts. Changes will come as technology and disruption comes to functions in our society, though these direct effects will be of concern, the ripple-effects or indirect impacts may be far more important. It is perhaps more simple for Ford to perceive the competition that Tesla brings to the market for cars. It is perhaps less obvious for the insurance industry that driver-less cars will mean less accidents, thus less exposure, thus less need for both the product and adjusting claims against it. 

The coming technology will mean much for us. He notes that biometrics and truth verification are progressing. Mr. Ismail predicts that within 5 years it will be impossible to tell a lie without detection. Will that change litigation? He says that medical diagnosis with a handheld device like Dr. McCoy used on Star Trek to make diagnoses is not only coming, but will be here in a few years. Doctors will scan you, get a diagnoses, and address care. He questions whether it could be a cure for hypochondria? He did not mention malingering, but I heard the word twice while leaving the program. 

The key to the success of many of these progresses is leverage of non-owned assets. Mr. Ismail explains that Airbnb has become the largest hotel company in the world, but that it owns not one hotel room. The company has revolutionized hospitality using other people's assets, letting other people own the risk of financing and building that structure. Likewise, Uber has revolutionized transportation, but owns no vehicles and has no driver employees. 

He admits that there will be privacy concerns presented by these technologies and others. The increasing digitization of our world makes misappropriation easier as data and value are aggregated. This will make for challenges. Securing our information and data may be a field in which we will see expansion of jobs. 

Essentially, his message comes down to a few statements. Change is coming, and it will be exponential in scope and pace. The change that is coming will overshadow the examples we have seen thus far. A new paradigm of "ExCo" or "exponential companies" or "exponential organizations" will continue to grow and expand as influences in our society. We will see paradigms shift and ideas or assumptions will be challenged. There will be ripple effects that will be hard to predict and may be intense. 

After this presentation, I rode the elevator to the parking garage with several glassy-eyed executives. Some said it cannot be real, and others said that he just cannot be right. One said that it was real, but insisted "not in my lifetime."

I have seen that glassy-eyed look before. At the turn-of-the-century, trying to explain the benefits of electronic filing to attorneys, those looks and blank stares were not uncommon. I remember one attorney complained in 2006 that e-filing would require him to purchase a computer. The point of that is that some of us will accept and adapt to the coming disruption more easily than others.

Technology will surpass (pass or run over) some of us though. Mr. Ismail said that when he performs conferences for corporate boards, he suggests to people that they either need to become ready for change and adaptation or they need to accept their inability to do so and retire.

The pace of change is increasing. For those of us who have tried to adapt to new technology, and failed, the bad news is it's going to get harder and harder to keep up. For those of you who have successfully kept pace with change thus far, congratulations! However, you may find your success more and more difficult to maintain.

If there is an upside, it is that my children, who take to technology on an intuitive level, will finally have to work to keep up. I do not enjoy wishing this pain on them. But there is some feeling of satisfaction that they will have to face a challenge, and will have to use their wits, education and focus to work their way through it.

So I cower here under my bed, in the dark, and send out this post to those of you who were brave enough to get up and go to work today despite the gloom and doom that the impending quantum shifts portend. Welcome to the future. Your time is now. Will you adapt to the changes, grasp the coming disruption, or is it time to retire?

We could perhaps take our resolve from yet another Yoda quote. He seeks to focus on the accomplishment, in this case our acceptance and mastery of this coming technology and the shifts in our reality. We may be willing to try to adapt and leverage, but as Yoda says, we must "do or do not. There is no try."

#workerscomp

#FLJCC

#NAWCJ

Wednesday, May 13, 2015

I gawr-on-tee it

There was a chef named Justin Wilson in the early days of the Food Channel. He was a "Cajun cook" and humorist with a heavy accent. He would consistently tell the audience that they were going to like his recipe, with the catchphrase "I gawr-on-tee it" (phon.) It developed a following, and he gawr-on-teed products in television ads also, such as Cajun spiced potato chips.

His persona came to my memory when I recently read a story on Florida Today that proclaimed a provider in Florida that sells warranties on spine surgery. Florida Today reported a physician "is now offering warranties for spine surgeries." Under his offer, this physician's "practice assures its patients that their back pain will be eliminated after surgery." 

There are some stated restrictions. The "warranty covers the area of the spine where the surgery" is performed, as in "cervical or lumbar region." Furthermore, "all services must be provided at this articular surgeon's offices or facilities. 

Describing the warranty plan as a "win-win-win" solution, this physician says that his practice can offer this warranty because of their "proven outcomes," and the breadth of services offered by his practice. A spokesperson for the clinics told the Florida Today that "the response has been fantastic from patients, insurance companies and work comp carriers." 

There is a cost for the warranty, it does not come with the surgery the way a warranty comes with a new car. The cost? According to the vice-president of the practice, "the warranty differs in price depending on what type of procedure is performed," the "age of the patient," and covers a certain period of years. 

The physician says that he is "willing to stand behind our results, to cover any additional treatment the patient may need." He guarantees "his practice will eliminate all back pain, chronic or not." As it is described, however, the warranty sounds more like a promise to continue providing other care after surgery. In other words, continued complaints post-surgery would continue to be treated at the doctor's facilities without further charge. 

Not exactly a Justin Wilson gawr-on-tee of a good outcome from surgery. It is more of a "we'll keep treating you after surgery" promise. But is there a place in the medical profession for physicians to commit to conclusion of treatment with some fixed cost - such as the spine surgery warranty offered in this example? There is much discussion in workers' compensation and group insurance about the predictability of the marketplace. Can a concept of a provider-backed warranty such as this provide that predictability?

Do we really want our physician telling us, "you gonna feel much more better, I gawr-on-tee it?"



Tuesday, May 12, 2015

A More Efficient Process Advocated

Some lessons and reminders from a recent New Jersey decision.

On April 14, 2014, the Superior Court of New Jersey, Appellate Division, decided Roderick v, Taxi & Limousine Three, LLC, Docket number A-3789-1314. It is an interesting decision because it provides an insight on the process of adjudicating workers' compensation disputes. 

This workers' compensation appeal resulted from a March 11, 2014 order. The adjudicator denied a motion to reinstate Mr. Roderick's claim petition. The motion was filed "nearly four years earlier."  

The appellate court was able to "derive the following facts from the sparse record on appeal" (emphasis added). A petition was filed in October 2008 seeking compensation. The employer/carrier responded two months later with a motion to dismiss the petition, alleging it was vague. Another eight months passed and the trial judge granted the motion on August 26, 2009, "even though petitioner had by then amended his claim petition and cured the deficiency."

One of the specific record deficiencies noted in the appellate opinion was the absence of both the petition and response from the record. 

Curiously, at that August 2009 hearing, "petitioner's attorney did not appear."  The employer/carrier's attorney reportedly represented to the trial judge that there was a dispute regarding disclosure of certain information about a pension the petitioner might be receiving and that petitioner's counsel "had indicated that he had no opposition to the case being dismissed at this time for failure to prosecute the claim."  The trial judge dismissed the petition on the record, explaining her/his logic "for those foregoing reasons, I will dismiss this matter without prejudice." 

The appellate court noted that this "statement is ambiguous." It held that "one cannot discern whether the JOC was referring to that part of the colloquy concerning petitioner's initial petition, the discussion concerning the railroad pension, the discussion concerning petitioner's attorney not caring about the dismissal, or all three." 

About six months later, the petitioner provided proof regarding the pension question and sought to have the petition reinstated. The Employer/Carrier "wrote to the court" and stated there was no opposition to "Petitioner's Motion to Reinstate the Case." Despite the lack of opposition, the trial judge did not reinstate the petition. The Court noted that "once again, the JOC made no record of her reasoning."

On February 2, 2011, "the JOC finally indicated to [petitioner's counsel], in chambers, that she did not trust the [p]etitioner to comply with his other obligations in the case," and declined to reinstate the petition. 

The hearing ultimately came three years later when "a different JOC finally denied it, for reasons unrelated to the initial deficit in the claim petition." The case was complicated by a subsequent vehicle accident that left the petitioner incompetent and dependent on a guardian. Settlement discussions were frustrated by a child support lien. The petitioner later passed away. Then the case finally came to the appellate court.

In the appellate action, documents were submitted to the court. They were apparently not part of the record, but were nonetheless provided. The Court noted that "it is difficult to discern which of the letters exchanged between counsel, if any, were ever before the trial court, and thus properly before us."

The Court concluded that  "in short, the competent evidence in this record demonstrates that petitioner's motion, which had been filed on March 17, 2010, was denied nearly four years later, on March 11, 2014, after petitioner had sustained fatal injuries in an accident."

The Court said that "during the four years petitioner's reinstatement motion was pending, someone lost sight of the policies underpinning the Workers' Compensation Act (WCA)."  It was critical of the failure to "make a clear record when ruling on motions, and the reason for granting respondent's initial motion." 

Reminding everyone that workers' compensation is "important social legislation," the Court cited thirty-year-old precedent holding "the need for expeditious handling of workers' compensation cases to be in the public interest[,]" and that "[l]ong delays create an appearance of injustice as well as real injustice many times." 

Recognizing that each party may have borne some responsibility for delay in this case, the Court held that "we cannot conclude on the record before us that petitioner was responsible for the four-year delay in deciding his motion."  The Court also noted that the motion to dismiss was for vagueness, and that the ambiguities had been cured by the time the petition was dismissed. 

The Court was critical that the trial judge nonetheless dismissed the petition, but seems more disturbed that the record does not describe the "why" behind the trial judge's decisions. The Court conceded that trial judges have busy dockets, and that "it may be that the JOCs involved in the case before us had ample reasons for either taking action or refraining from taking action on petitioner's reinstatement motion."

Concluding, however, that on the record presented, the trial judge's decisions were "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." the Court reversed the dismissal.

The lessons are reasonably simple. Delay can be destructive. That does not mean that delay cannot or is not justified, it certainly can be. Judicial decisions affect real people in profound ways. Timeliness is important. When that cannot be accomplished, the reasons therefore should be clearly documented.

A couple of points. 

First, all of the parties deserve some fundamentals from the adjudication process. The adjudicator must be available, ready and willing to serve the parties. When there is a need for a hearing one should be offered.  

Second, when there are hearings there should be a record of the proceedings. If there is no hearing then the adjudication(s) should be made based upon a sound written record. 

Finally, either on a recording or in the order, the evidence or facts relied upon and the reason for the decision should be clear. Judges should explain their decisions clearly. That may not require a law review article in each order, but the appellate court should not have to attempt mind-reading to determine the logic that led to a decision. 

A court should never struggle with trying to discern what was in the record, what was seen as relevant or persuasive. Many of the failures in this case seem to come down to communication and procedure.

As a side note on delay, it may be that when cases are delayed it makes sense for the trial judge to make specific findings that justify the decision. Perhaps the order should clearly state why there is delay, whether any party has voiced an objection to delay or continuance and whether there are or are not demonstrated circumstances beyond the moving party's control. It might not hurt to note whether there is or is not prejudice resulting from the delay.

I agree with the Court wholeheartedly in their conclusion that workers' compensation is important legislation. Both parties to the social contract have foregone substantial rights in exchange for the substantial benefits and obligations they have accepted in return. The worker and employer are entitled to a system that respects them, affords them a prompt and meaningful opportunity to be heard, and provides decisions that are complete, clear, and accompanied by a record that affords an opportunity for meaningful appellate review.