People are talking about workers' compensation, perhaps more today than ever. This is the seventh in an 11-post series (links to the first six are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.
Some perceive that recovery from injuries and illness is more challenging in workers’ compensation than in other settings, including those covered by health insurance. This disparity is blamed in part on medical ignorance. In some manner, this is interrelated with system failures, incentives, beliefs, perceptions, and expectations, which are all discussed in other posts.
There is a perception that relatively minor injuries and illnesses may fail to resolve in workers’ compensation. Instead, despite delivery of appropriate care and treatment, injuries escalate or lead to a cascade of tangentially interrelated maladies or complaints. Through these evolutions, work-related injuries proceed in a downward spiral toward dysfunction or disability. Some perceive that the benefit structure system of workers’ compensation contributes to this phenomenon. Some believe that attorney involvement, staffing and training, and benefit structures have the potential to contribute to poor recovery outcomes in work accident and illness.
Some perceive that the path to dysfunction or disability is intended in some population of injuries and illness. They believe that some portion of the population inappropriately seeks to enhance delivery of benefits or services. The motivations may be related to attention, compassion, financial, or otherwise. In its most blatant, or intentional form this is referred to as malingering. Regardless of motivation, the additional care, referrals, testing, and dysfunction/disability are seen as increasing costs in a micro-sense, that is in a particular claim. However, there is some sentiment that system complexity and regulation can be driven by the actions, well-intentioned or otherwise, of those who magnify symptoms, complaints, or dysfunction.
Some perceive workers’ compensation systems as losing sight of appropriate priorities. They note the focus on metrics, data, and measures. They describe decision-making based upon protocols and procedures. However, they lament a perceived trend toward the “business” of medicine and away from the “practice.” As systems and payers require more documentation and data, they perceive a detrimental effect on provider/patient relationships and deleterious effects on both care, recovery, and restoration. The suggestion is that a patient, in any medical situation, must remain the center of the medical process. The purpose of the care, i.e. this particular patient, must remain the primary focus. Communication needs to be facilitated to enable and encourage recovery and restoration.
Methodology has to be developed and deployed that will engage injured workers in their recovery. The population that are disheartened or discouraged because of injury, its severity, their progress, or their preconceived notions or expectations of recovery must be engaged and invested in their recovery despite the challenges, physical or emotional, that present. There have been successes with patient-focused, motivated recovery, and return to function and employment. Those programs should be identified and replicated for application to greater populations of injured workers.
The critical point in a claim
In an analysis similar to medical ignorance, some note that there are a multitude of challenges in the path from injury/illness to recovery. Each of these challenges has the potential to either reinforce the course to success or to derail the recovery. In some part, these challenges are mentioned in these posts. However, there is also acknowledgement that it is impractical to attempt to list each and every potential pitfall o medical care or workers' compensation generally.
However, medically, emotionally, vocationally, or otherwise, it is believed that analysis could help identify the points at which critical decisions are made by the multitude of individuals involved, such as the patient, providers, representatives, and the system itself. The goal would be better decisions at these critical points. With better understanding of when and where recovery can be potentially derailed, With recognition of when these likely occur, perhaps missteps and mistakes might be diminished, perceptions adjusted, and favorable recovery outcomes maximized.
People who are acting inappropriately
There is some frustration that the various systems are populated by some proportion of providers that are “bad actors.” Some express frustration that workers’ compensation systems invest significant effort and resources in the establishment of regulation, restriction and reporting ostensibly aimed at assuring minimal inappropriate behavior by those who provide services to or on behalf of injured workers and employers. However, there are perceptions that these efforts are ineffective and inefficient.
Some voice concern that the “bad actors” are too often not punished or not punished sufficiently. Some contend that these entities are known to the community, and that their behavior is distrusted or lamented, but that they remain engaged in the industry. There is a belief that regulatory agencies react to bad or inappropriate behavior by increasing the volume of broad regulation rather than effectively enforcing existing regulation to address these “bad actors.” Some perceive this as driving an ever-increasing volume of regulation that results in additional cost and inconvenience to the entire marketplace, while making no effective change in the deterrence of the admittedly poor behavior by the minority of “bad actors.”
A noted element of concern in this regard is the silo nature of government in which responsibilities for regulation may be divided among specialized agencies. An example cited is that each state has an agency for licensure of professions like legal, medical, and insurance professionals. However, there may also be separate agencies for the regulation of insurance companies, hospitals, outpatient centers, and ancillary professionals such as therapists or rehabilitation specialists. In addition, specific activity such as fraud, overutilization, and regulatory compliance may be delegated to still other agencies. There is a perception that the variety of agencies and seeming overlap of responsibility may contribute to the ineffectiveness of both regulation and compliance.
There is also a perception that the very nature of America’s federalist system contributes to a frustration of regulatory efforts. Examples have been cited in which professional providers of services have been charged in a particular jurisdiction. In lieu of prosecution some may voluntarily consent to cease practice in that jurisdiction. Others may be convicted in a jurisdiction, similarly resulting in loss of licensure.
However, examples are cited of these same providers relocating to other jurisdictions, obtaining new licensure, and continuing with the same behavior addressed in the former jurisdiction. Some refer to this progression by analogizing an arcade amusement “whack-a-mole.” (an arcade game in which players use a mallet to hit toy moles, which pop-up seemingly at random, and drop back into their holes. The object of the amusement is that the player’s attention can be effectively directed at only one mole at a time, and while one is being “whacked,” others are escaping attention of the player who possesses but one mallet).
There has been discussion of some methodology for clearly communicating state perceptions of “bad actors” in the various marketplaces. If a database existed, from which a state might discern a provider’s history of behavior prior to issuance of a license, that might work to prevent re-occurrence of unacceptable behavior. Some contend greater attention by federal licensure officials (Such as the Drug Enforcement Agency, which authorizes medical providers to prescribe controlled substances) might forestall some inappropriate activity. Similarly, federal officials determine who may approve providers receive reimbursements from Medicare and similar agencies could perhaps be more vigilant, regarding poor performance or behavior.
More effective and uniform enforcement of existing regulation is likely appropriate. The viability and vitality of workers’ compensation is dependent upon regulation being comprehensible and appropriately enforced. Those who consistently disregard legislation and regulation should be removed from the system and consistently punished. It is noteworthy that in 2017 California appears to be on this track regarding removal of physicians from the pool of available providers.
Other posts in this series:
(2) Benefit adequacy, Regulatory complexity, Delays in treatment even if compensable
(3) System failures, Incentive is different in WC and group health, Systems are persistently adversarial
(4) Staffing and training of the workers’ compensation professions, Permanent partial compensation, Opt out movement
(5) Injured workers beliefs - not informed or uninformed assumption, Treatment protocols, a benefit or a burden, Perceptions and education
(6) Vocational rehabilitation, Ability versus disability, Methodology of claims handling
(7) Medical ignorance, The critical point in a claim, People who are acting inappropriately
(8) Misclassification, Unrealistic expectation of full recovery and youth, Federalization
(9) A new national commission?, Employee participation in the conversation, Occupational disease
(10) Lawyers in the system, Competition between states, Roles and delineation
(11) Single payer, Outliers, Conclusions