Wednesday, December 30, 2015

The Comp Awakens!

I hope you have concluded your annual Christmas, Festivus, Hanukah, Kwanza, or “other” celebration. The year draws inexorably to a close. I reflect back this week on the year that was, a collection for all of us of ups, downs, and so much in between. This is my last post for 2015. 

You may have noted that our year-end included a subtle reminder of 1977. Some of you will have been to see the seventh Star Wars (for the first time a Star Wars sequence and Episode coincide). It is titled The Force Awakens. Some fans avoided it, because of their disappointment with the fourth through sixth Star Wars movies, which were in fact the first through third Episodes (prequels). Some die-hard fans despise these. They decry anything but the original Star Wars movie, episode four, and its sequels, Episodes five and six, the second and third movies. That may seem a little closed-minded? Do the prequels not, at least potentially, add something to the discussion?

2015 was a year of workers’ compensation challenges. A primary feature is our ongoing inability to get a handle on drug abuse. An American dies every 11.2 minutes from drug abuse. Much of it is prescription medication; some is street drugs, which many claim was that person’s destination to which prescription drugs paved the path. We need to address this in 2016. Just today, some encouraging news that one manufacturer of Opiods has agreed to pay a state allegedly damaged by Opiods. 

In Revenge of the Sith (Episode III, the sixth movie, “Revenge”), Yoda tells Obi-Wan "in a dark place we find ourselves, and a little more knowledge lights our way." As an industry and a nation we need to find that knowledge regarding pain and dealing with it. Opiods are killing people. We know how pain has been treated historically, with ever-increasing dosages of medication. In The Empire Strikes Back (Episode V, the second movie, “Empire”) Yoda tells Luke that "you must unlearn what you have learned." In other words, continuing to do what we have always done may not be the solution. 

We have seen criticism of the concept of workers’ compensation in 2015. ProPublica has published a series of critical articles. Some people assert these articles are one-sided or unbalanced; others refer to them as “attacks.” In Return of the Jedi (Episode VI, the third movie, “Jedi”) Obi-Wan Kenobi tries to explain to Luke that Anakin became Darth Vader, but they are different people. He says "many of the truths that we cling to depend on our point of view." Can the combatants step back from the fight and consider each other’s perspectives? 

Is workers’ compensation ideal, or perfect? Unlikely. But is workers’ compensation “the dark side?” That is just as unlikely. Can we try to put our points-of-view aside and work toward a system that is less-than-ideal for anyone but a reasonable compromise for everyone?

I think that workers’ compensation can be improved. I have had many an “expert” knowingly shake her/his head in pity as they tell me in response that it cannot be fixed. My response is the same as Han Solo’s in Empire, "never tell me the odds." See, I know a great many people who have devoted their professional lives to comp. I have seen many changes in statute, regulation and interpretation, in Florida and elsewhere. We have to believe that this system can be improved, nothing and no one is perfect. We are each other’s solution if we think about it. 

Some suggest that “the solution” is to involve the federal government. One lonely Jedi has been wandering for 40 years preaching the federalization solution to whoever will pause to listen. This year we have again heard rumblings of federalization. What would that mean? Would Congress act to nationalize the system, pre-empt if from the states? With the current interpretations of the Commerce Clause, it seems likely Congress could. Legal scholars might argue over the Commerce Clause, the “dormant” Commerce Clause, and more. Some even question whether the executive branch could pre-empt the states without Congress. There are some intriguing aspects to this

From where will leadership for workers’ compensation come? There are a great many pundits and prognosticators. They are quick to tell us what we can or cannot do. I am reminded of Qui-Gon Jinn’s advice to Jar Jar Binks in The Phantom Menace (Episode I: the fourth movie, “Menace”). He says “the ability to speak does not make you intelligent." Perhaps the same could be said for some of those (us?) prognosticators? Defending himself a bit, Obi Wan in A New Hope (Episode IV, the first movie, “Hope”) questions "who's more foolish? The fool or the fool who follows him?" We might do well to ask ourselves that of anyone who would have us blindly follow to her or his solutions? Feel free to remind them, as Watto did in Phantom, “mind tricks don’t work on me;” I think for myself. 

To change workers’ compensation, you will have to believe. In Empire, Yoda uses telepathy to lift a spaceship out of a swamp. Our hero, Luke Skywalker, expresses his disbelief at this feat. Yoda acknowledges Luke’s disbelief and says “that is why you fail.” If you think you can’t, you certainly won’t. Yoda reminds us that we may "do or do not. There is no try."

2016 will bring plenty of activity on the current state-centric regulatory scene. States will continue down the formulary path, but will Florida? States will likely continue to work on treatment guidelines and evidence-based medicine. Virginia has already struggled with a medical fee schedule, and that appears to be a debate that will continue in 2016. Attorney’s fees will be of interest; In Florida, this could have very interesting consequences. Constitutionality will be of interest here and elsewhere. The debate over sufficiency of benefits is also likely not over. The market has seen instability from the failure of stare decisis and that trend too may continue. There will be change in 2016. As Shmi Skywalker said in Menace, “you can’t stop change any more than you can stop the suns from setting.”

The courts have demonstrated some long timelines in 2014 and 2015. We enter 2016 hopeful that there will eventually be resolution and guidance. In Florida, we await word from the Florida Supreme Court. History has demonstrated minimal Florida Supreme Court involvement in workers’ compensation, about one case per year, since the elimination of the Industrial Relations Commission and the establishment of exclusive appellate jurisdiction of the First District Court. But we now await three major decisions from the Florida Supreme Court, and we wait, and we wait. But as Yoda told Luke in Empire, “Patience you must have, my young Padawan."

So, let’s look to that future. As Shmi Skywalker encourages young Anakin in Menace: "now, be brave and don't look back. Don't look back." We may learn from the past, but we have to look to the future. Across the continent, there will likely be legislation and regulation that is characterized as proactive and reactive. Some will lead, others will follow. Where is workers’ compensation going in 2016? As Yoda noted in Empire, the future is “difficult to see. Always in motion is the future.”

So what advice for 2016? Well, I would wish you “good luck,” but like Obi Wan teaches in Hope: “there is no such thing as luck.” I would remind you of the advice of Gold Five in Hope, as Luke vacillates taking his shot, that we must all “stay on target,” focused on the destination that we each believe will bring progress (we could all be right or wrong, but our focus and perseverance could perhaps drive some productive conversations?) Unlike the Hope fans whom refuse to see the other movies, perhaps no one can have it all their way? Perhaps the origins of Comp, like Hope, cannot be the “end-all;” perhaps progress could mean something other than steadfast insistence on clinging to the original? 

Conversations, ideas, compromise? Perhaps we can bring “balance to the force?” as Obi Wan noted in Sith. No one is all-powerful. As Padme reminds young Anakin in Attack of the Clones (Episode II, the fifth movie): “you're not all-powerful, Ani.” As with too many others', Anakin’s hubris shines in his response, telling her “well, I should be.” It is perhaps easiest to know we are right (whatever we individually believe) and to know we “should be” all powerful and able to “fix” it as we each individually would. But, we all know that is neither rational nor practical, and so we must work together. 

Finally, in the spirit of a team approach, let’s share. As Yoda advised Luke in Jedi, “always pass on what you have learned." All the lessons we can learn through study and cooperation may prevent us from having to make each of the possible mistakes ourselves. 

Happy New Year.

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