Thursday, July 14, 2016

The Conversation, Interests, and Compromise

The 2016 workers' compensation summit in Dallas was an eye-opening experience. I had the opportunity to hear an amazing variety of perspectives on what is both right and wrong with workers' compensation. There was an abundance of objectivity and some speaker's criticisms were even focused inward on her or his own portion of the industry. Make no mistake; there was also no shortage of speaker's criticism for other aspects of the system or other industry segments. A detailed report of the discussions has been published. It is interesting reading.

The Final Report provides the list of discussion topics, but also ranks them into three groups, based on perceptions. The ranking was based on discussions and surveying that occurred after Dallas. The Dallas conversation participants had time to ruminate on the comments and discussion at the Dallas Summit, and perhaps took the time to discuss their perceptions with others in their industry segment or other "inner circle." The Report does not rank issues numerically, but in three tiers reflecting perceptions of their importance (and perhaps how realistic it may be to hope to change or address them). 

Some of the language in the report has been "softened." The purpose of the discussion and the Summit is to stimulate more conversation, not to build walls or stifle discussion. In fact another conversation will be held in Orlando next month, coincident with the Workers' Compensation Institute (#WCI2016). It is encouraging to see some groups like WCI take a lead on discussing what is perceived as problematic. 

From the ranked Report, a few of the priorities are part of my discussion today. 

First Priority Group 
Incentive is different in WC and group health 
Systems are persistently adversarial 
Injured workers beliefs - not informed or uninformed assumptions 

Second Priority Group 
Ability versus disability 
Unrealistic expectation of full recovery and youth 

Third Priority Group 
Lawyers in the system 

This is not a complete list. The full list is available at the links above and merits reading and full consideration. But these issues all occurred to me as I read a recent article on WorkCompCentral, and thought about how the medical and legal aspects of workers' compensation interact. My thoughts on this are not new. 

The law and science are not always in agreement. Opinions permeate the world around us, and there are those who feel that our laws are based on those opinions, sometimes to the exclusion of facts or science. In MMI and Other Artificial Distinctions I explained the interaction of law and medicine in terms of defining recovery and impairment or disability. What are our expectations? Do we expect medical treatment to restore full function and perhaps our youth? Are our expectations consistent with the expectations of others? Does it make sense for our laws to compel medical experts to render opinions on topics like maximum medical improvement, which have no medical meaning or foundation, but which may make our legal decisions more predictable and perhaps consistent?

As an aside, I recently had a similar set of questions asked of me regarding the trend towards medical presumptions in workers' compensation cases. The inquiries came at a seminar and were essentially why compensability presumptions have been inserted into or intertwined with workers' compensation laws. The inquisitor expressed the opinion that such presumptions for heart disease, lung dysfunction, and cancer have "no foundation in science." The question to me was "why have legislatures embraced these unscientific presumptions?" That is a tough question. And it is even tougher when you consider that whether there is or is not science to support these presumptions is itself a matter of opinion. Various opinions on any topic, in sufficient quantity, may lead to consensus. That is one possible answer. Legal definitions are often the product of compromise, and that may be another possible answer. But, I gave the inquisitor the best answer I could muster: "I don't know."

There is a perception that workers' compensation presents incentives for behavior. This may be patient behavior, physician behavior, employer behavior, or even attorney behavior. Worker's compensation is perceived as "persistently adversarial," and that may be a natural consequence of preconceived assumptions and beliefs, or of our personal experiences (nature v. nurture?). While the Dallas report, in this regard, is focuses on injured workers', might others in the system/process likewise have preconceived beliefs or assumptions that color their participation and decisions?

The workers' compensation paradigm is designed to address to primary needs following an accident, medical care and wage replacement. One participant in Dallas voiced the opinion that there are "perverse incentives" inherent in the provision of both of these (the "perverse" did not make the report, as I mentioned some language was "softened" a bit). Their perception, stated succinctly, is that doctors make money from treatment, not recovery; that attorneys (claimant and defense) make money from dysfunction, not recovery; that there is a raft of service providers in the marketplace that make money from dispute, discovery, diagnosis, and dysfunction, not recovery. Some question why the system seems to have lost its focus on recovery. Why is financial damage the focus over return to work?

This conversation included a perception that injured workers and those who advocate for them are driven to disability, because the only financial incentives in workers' compensation are to compensate disability. Incidentally, that conclusion is contradicted in some systems that focus on "impairment" instead. There is a valid debate between compensating Functional Loss v. Financial Loss. Some systems provide compensation when there is no disability whatever. At a conference recently, I was asked why a particular Florida firefighter can be rated with a significant PIR, compensated with tens of thousands of dollars in "impairment benefits" and remains employed with not a dollar in lost earnings. My answer, as you may have guessed, started with "good question, I don't know." I then pointed out that the best answer is more likely "because the law says so." And with that, perhaps the discussion turns back to why state laws say what they do; what is science, what is compromise, and what else is involved?

The Dallas conversation also focused on whether people should be viewed in terms of what they cannot do (disability), or in terms of what they can do (ability). This is an interesting discussion. What abilities do any of us have, and how are any of us limited or constrained. I recently had an amazing student in a class. Confined to a wheelchair, and with severely limited use of either hand, he processed class material, asked questions (and made quips and retorts) using a computer, grasped concepts, and took tests. He is intelligent and inspiring person. I suspect that he would take offense at being labelled "disabled," and I would tell him that this world is his for the taking. With his brain, his focus, and some technology, the sky is the limit for him to put his abilities to work. Some might see limitations, but I think he sees opportunity and his intellect will take him far (in my humble opinion). Is the manner in which we view ourselves and our ability the key? Can the system help us see opportunity and ability?

On July 5, 2016, WorkCompCentral (WCC) ran an interesting article, Embattled AMA Guides Editor Tries to Rise Above the Squabble. The article describes Dr. Christopher Brigham as a "polarizing figure in workers' compensation." He is said to have "outspoken admirers for his work on impairment and disability assessment." But to also have "earned equally vocal detractors." The discussion is largely centered on his work "developing the sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment."

In MMI and Other Artificial Distinctions, the role of impairment ratings and guides was discussed. Essentially, workers' compensation systems have struggled to find a method by which a worker can be fairly (what is fair is a question of opinion also) compensated for the effects of an accidental injury at work (that "accidental" point alone is the subject of much debate, but that is for another day). In order to provide compensation, our systems struggle with compensating loss of earnings (financial) or loss of capacity (function). And, in workers compensation and other injury law, the concept of a permanent impairment rating (PIR) has become engrained and indispensable. If function is to be compensated, then there must be some methodology for determining function. 

And the law has drawn physicians into this process; because there has to be a process. Is the medical perspective on ability the most persuasive in terms of determining financial compensation? Should the vocational perspective play a role, and if so to what extent? This also is a topic for another day. The point is that the law, through a process of compromise and contention, has arrived at the current reliance on PIR. 

Such medical determinations have historically been criticized. One side of the debate is interested in a PIR that is as low as possible, as that perhaps minimizes financial exposure. Another perspective is interested the highest possible PIR as that maximizes damages (and some argue maximizes attorney commissions). And, both sides of the debate have even been heard to aspire to the "best science" for such determinations, but they cannot agree on what the "best science" is. Each side is seemingly enamored with the particular science that results in their own desired PIR guide outcome, generally lower or higher. WCC concluded, for example, that "plaintiffs' attorneys care, though, because higher ratings correlate to higher payments for their clients." And while that may be a valid conclusion, the inverse motivation of employers for "lower ratings" and "lower payments" might be equally defensible. 

The WCC article notes that some see the AMA Guides 6th as a drive to lower PIR. The 6th Edition has led to debate and litigation. But Dr. Brigham says that there was no intention to lower PIRs. He says that the "AMA Guides aren't concerned with whether ratings rise or fall as long as they are up to date with medical and scientific research." He explains that the intent is to have a PIR that "seems to make sense." Dr. Brigham contends that this latest effort is driven by science. Would the editors of prior editions concede the purported scientific superiority of the 6th, or did they have equal confidence in the scientific foundation of the 2nd, 3rd, etc.?

Perhaps the criticism of the 6th is driven by the change in method. One physician says the Fifth Edition "was an evolution of what was created in the early 1970s. The sixth is like a revolution, because it's based on prior versions, but it's a whole new approach." And the criticisms, some say, are based not on the science of disability, but on the financial impact. Change is hard, and dramatic change is really hard. 

Dr. Brigham says that the Sixth Edition "bases its impairment rating on a diagnosis that creates a baseline level of impairment, which is then lowered or raised 'based on consideration of function, which is often the subjective response of a patient.'" He says that this "blends physical examination findings with clinical studies." He sees this as providing a measure of objectivity and consistency with a measure of subjectivity and discretion. It seems, from his perspective, that the 6th is a compromise. 

Dr. Brigham says that the Guides have been criticized for "bias toward the employer, bias toward the worker, a wide variability of assigned ratings among practitioners, lack of content validity, failure to reflect true or perceived functional loss, inconsistency and ambiguity in definitions, and poor predictive capability, to name a few." And he describes a process of consensus. Dr. Brigham says that there are disagreements among doctors as to approach and conclusions. So, the Guides result from a deliberative process among people (albeit very smart people) without unanimous consensus as to the "right" answers. In short, it appears that there is no mathematical equation. Ultimately, there are differences of opinion and disagreements as to what the Guides should say. Then there are disagreements as to how they should be interpreted.

This debate is much like other debates in our American democracy. There are perspectives and beliefs. Virtually everyone involved is willing to concede that it is possible that science can guide the debate, but then the debate seems to evolve into "which" or "whose" science. And, according to WCC, we then see the involvement of advocacy groups. The story notes that recently "consumer advocacy group Public Citizen sent a letter to the U.S. Department of Labor." It advocates that the government reverse course and quit using the 6th Edition. And some would question what Public Citizen's motivation might be. Is it science or is it money?

This WCC discussion of Dr. Brigham, ability, disability, and PIR is interesting in the context of the National Conversation on workers' compensation. Returning to the points listed above, the relevant issue in the Third Priority Group is perhaps "lawyers in the system." This, like the others, may be a matter of perspective. Years ago, I read results from a survey regarding how Americans feel about attorneys. This was a study in which one group was asked what they disliked most about attorneys generally, and a similar group was asked what they liked or admired the most about their own attorney. As I remember the gist, the list of attributes from each group was very similar. What is not admired in the profession may be the most admired in our own advocate.

In the end, there will be lawyers in the system. There will be lobbyists, interest groups, vendors, suppliers, payers, workers, and more. There are a multitude of perspectives and opinions. And in the end, they will matter most in shaping what workers' compensation will be. 

The flaws in the various workers' compensation systems are apparent. The National Conversation is making strides in both identification and suggesting solutions. But, the fact remains that advocates will be involved. Interest groups will be involved. People will perhaps tend to act in their own best interest. When they do, we all have to be willing to say so. And, in the end there will be various compromises and curiosities. The reason that no system can be perfect is simply that none of us can agree on what "perfect" means. Certainly, we could all be rational, reasonable, compromise, and just agree to do it my way. Certainly, that would be the most logical path. But, I somehow doubt that is any more likely than us all agreeing to build a system exactly like you would prefer.

So, the real solution in my opinion is that there be more discussion. The solution will never be "perfect" from every perspective. We will disagree, debate, and even hurt feelings. But if we could all agree that we need a system that is effective, and agree to both listen and speak, perhaps we have a chance to make a system all that it can be, while admitting that it may never be "perfect."

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