Tuesday, September 18, 2018

Comp Laude 2018 is Around the Corner

On October 10, 2018, the annual CompLaude program will include the People's Choice presentations. That is only 22 days away, which is a bit disconcerting (more on that in a moment). These are approximately 6 minute Ted talks presented by those selected by a committee of judges each year. This program was inaugurated in 2016, an idea of David DePaolo. I wrote about it then in Something New for CompLaude 2016. The People's Choice speakers for 2018 were announced last week. 

The People's Choice Ted Talks are not all there is to Comp Laude of course. There are a variety of educational programs throughout. Details are in the published agenda. Perhaps the most compelling program of this gathering will be the Complex and Catastrophic Claims overview on Tuesday morning. 

Or, perhaps it will be the inspiration of Ben Nemtin describing his recent "bucket list" experiences as documented in his book What do you Want to do Before You Die? Last year, as part of my registration for the event, I received a copy of Dr. Robert Pearl's book Mistreated, and was grateful to both read and hear his thoughts. I am hopeful that this year I will acquire Mr. Nemtin's book and be equally inspired by his thoughts. 

Or, perhaps the most memorable program will be Turning the Churn, an introspective on how people and their perceptions "shape opinions and affect outcomes."

And, I am so very proud that many workers' compensation luminaries that I know who are finalists for Comp Laude recognition. I wrote about them all recently in 2018 Comp Laude Finalists Named

But, I admit I am not ready for the People's Choice. And, I need to be. I am humbled to have been selected to deliver a Ted Talk, my first. Without props or slides, I will pour out some ideas for 6 minutes and see where they land. I have a mere 22 days to prepare this, and the pressure is on. 

Here is what I know about the People's Choice presentations. One will be about interpersonal relationships and interactions, dealing with the world we live in and those with whom we interact. Another will be about connecting with people and investing passion and caring in our tasks. A third will address compassion in our work, building a "culture of compassion" that encompasses relationships and contributions in the world of workers' compensation. Yet another will be about the reaction and growth we might or might not experience when confronted with a traumatic event, an examination of dealing with challenges or tragedy. 

A fifth will be about the trauma of injury, its impacts both physical and emotional; this presentation will be in first person, powerful, and focused upon how employees can enjoy positive outcomes after accidents. Another will be about our perceptions of the millennial generation, their motivations, their strengths, and their potentials; millennials will run the world soon enough and we need to recognize how that impacts both that generation and all the others. And, a seventh will explore how we control our outcomes, how our attitudes influence our perceptions, and how we can learn from experiences and grow. 

Yes, one of those will be mine. No, I am not sharing which. The speakers (in alphabetical order, which does not match the order in which I described their topics above) are: 

Brian Allen - Vice President, Government Affairs, Mitchell 
Brittany Busse - Medical Director of Telehealth, Kura MD, Inc. 
David Langham - Deputy Chief Judge, Florida 
Carlos Luna - VP of Marketing & Business Development, Risico 
Kristy Sands - Vice President – Marketing & Communications, Gallagher Bassett 
Marques Torbert - CEO, Ametros 
Bill Zachry - Senior Fellow, The Sedgwick Institute 

I am proud to be on the list, humbled to have been selected, and a bit overwhelmed by the short preparation time. If you want a taste of the People's Choice, the presentations from 2017 are available here. It is going to be an entertaining and educational hour. David intended it to be so, but also to be motivational and inspirational. I am looking forward to it, and hope to see you there. Now, back to work on my six minutes!

Sunday, September 16, 2018

The Rash to Repeal our Rights

The news recently reminded me about rights in this country. I was reading the BBC News on September 3, 2018 and came across "Malaysia Women Caned for Attempting to have Lesbian Sex." The article notes that "homosexual activity is illegal under both secular and religious laws." And, Malaysia "operates a dual-track legal system," where "Muslims are bound by Sharia" on certain issues, "while members of other faiths follow civil law." This entire paragraph may tend to make us thankful for our Constitution, our protection of equal rights, and the concept of equal protection under the law. 

We are blessed that our Constitution recognizes rights. It does not grant them, it guarantees them. Many a student has struggled to recognize this distinction and its critical importance. Before the Constitution was drafted, our founders began their divorce from Britain with an itemization of complaints "submitted to a candid world." In it, the founders declared our independence and described the actions of the crown that had led to their decision. 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" 
It is critical to us all that these are not beliefs, but "truths." They are not arguable, but are "self-evident." And, we posses these because we "are endowed by (our) Creator" with them. In this powerful language is recognition of a simple truth, we have rights because we exist. We do not gain them through governmental grace or grant, but we are born with them. While that Declaration language is clear, it is not part of the Constitution; it signals intent certainly, but it is not the Constitution itself. 

After that 1776 Declaration, there followed the Articles of Confederation adopted in 1777, ratified in 1781. A decade later in 1787, Congress approved a convention to "revise the Articles." That convention instead adopted the United States Constitution on September 17, 1787. It was ratified in 1788, but contained no bill of rights. This omission, according to the ACLU, rendered it "deeply flawed." Initially, twelve amendments were later proposed, and ten were soon ratified, those first ten amendments have since referred to as the "Bill of Rights." 

According to the ACLU, "the Bill of Rights established soaring principles that guaranteed the most fundamental rights in very general terms." One might well take issue with this characterization of "established," and instead argue that those principles had long existed and were merely "recognized" by these amendments. But, the immediately subsequent use of "guaranteed" aptly reinforces that those rights existed and were recognized, not granted, by the very people whose grant of power created the government itself. 

There was a significant period of history in which those guarantees were interpreted as barring infringement by the federal government, but not the states. Then, in 1868, the Fourteenth Amendment was ratified; there are notable similarities between the Fourteenth and Fifth Amendments. A major distinction of the Fourteenth however is its language "no state shall." This protects "privileges and immunities," precludes deprivation of "life, liberty or property without due process," and guarantees "equal protection of the laws," all in reference to state power. This marked the beginning of a new relationship of federalism in the United States. 

As an aside, two points. First, note that the Fifth and Fourteenth each  departs slightly from the "Life, Liberty and the pursuit of Happiness" in the Declaration. Happiness, it seems was revered in the inception, but less protected in the execution? Or, does it signal a greater appreciation of property in the execution? Second, I note the absence of the Oxford Comma that recently was deemed legally significant. Are "liberty or property," separate thoughts or inextricably co-joined? But, that digression I save for another day.

Following ratification of the Fourteenth Amendment, the U.S. Supreme Court rendered various decisions through which the guarantees of the Bill of Rights were expanded from only precluding infringement by the federal government to precluding state infringement as well. These Court analyses were referred to as "incorporating" those protections through a combination of their individual respective language and the broader language of the Fourteenth Amendment. 

Though that analysis could perhaps have been broad, simple, and rapid, it was instead conducted through various individual cases in a process the Court labelled "selective incorporation." The sequential process is said to be required by an overarching premise of our legal system that legal interpretations will occur in actual "case and controversy" in which parties with a personal interest in the outcome ("standing") confront each other and express their perspectives. 

Constitutional law can be difficult to understand, and sometimes hard to predict. It perhaps began with the U.S. Supreme Court itself decided to be the arbiter of all things constitutional, see Marbury v. Madison, 5 U.S. 137; 1 Cranch 137; 2 L. Ed. 60 (1803). That is a truth that many Americans do not contemplate often. The Supreme Court's role regarding decisions of constitutionality is not expressed in the Constitution. The power undertaken by the Court in this regard is antithetical to the overriding spirit of American government, that the power rests with the people, and therefore the power of government is limited to that which the people grant. Instead, this power was assumed by the Court based upon its interpretations of implied power, and has been retained since. 

That is not the limit of the Court's interpretations based upon implication and perceived context. The Court has recognized the rights stated in our Constitution. But it has protected other rights, not mentioned in the Constitution, but "implied." For example the U.S. Constitution guarantee of a right to privacy is not explicitly stated in the Bill of Rights, nor elsewhere. That is not to say that we do not have such a right. In fact, beginning in the twentieth century, the U.S. Supreme Court concluded that such a right does exist, despite not being mentioned in the document. The Court concluded that this right is founded upon the guarantees of "liberty" in both the Fifth and Fourteenth Amendments. 

The Court concluded that privacy rights were broad, including: 
"the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390 (1923). 
This implied Constitutional protection for rights not enumerated in the document itself refers to these as "penumbral" rights. An excellent example of the judicial process engaged is Griswold v. Connecticut, 85 S.Ct. 1678 (1965). This decision has been described as "creating" a right to privacy, in relation to contraceptive decisions and state laws. But that language is deceptive, upon the premise discussed above that rights are neither created or granted, but exist in us because we exist. Again, the more apt term might instead be "recognized." 

The Griswold Court noted that "The association of people is not mentioned in the Constitution nor in the Bill of Rights." This surprises many, who mis-remember from secondary school that the First Amendment specifically addresses "freedom of association." The Griswold Court did so conclude, not because the amendment says so, but because it concluded that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees." The rights recognized in the Bill of Rights, according to Griswold, are not exclusive. The penumbras that surround them, the implications they evoke, are "necessary in making the express guarantees fully meaningful." 

Though it figured significantly therein, the First Amendment did not stand alone in the analysis of the Griswold Court. The Court  additionally included in this "privacy" analysis the penumbras of the Third, Fourth, Fifth, and Ninth Amendments. There were various explanations as to the manner in which the Third, Fourth, and Fifth protected privacy and liberty. From those protections, the Court concluded, came the penumbral right of privacy. 

There was not unanimity in Griswold; two justices dissented, an expression of disagreement. Three others joined in a concurring opinion, in which they agreed with the outcome (recognition of privacy) but expressed somewhat different analysis. Written by Justice Goldberg, this concurring explanation emphasizes the guarantees of "liberty" in both the Fifth and Fourteenth Amendments. Justice Goldberg (and the justices that joined this concurrence) conclude that "the concept of liberty" protects privacy. The analysis bolsters that conclusion citing previous court decisions holding the "Due Process Clause protects those liberties." 

Justice Goldberg provides more illumination, however, regarding the Ninth Amendment. He concluded that the wording of the Ninth established that "the Framers of the Constitution believed that there are additional fundamental rights." Though not enumerated in the Constitution, he contended that those "additional" rights nonetheless "exist alongside those fundamental rights specifically mentioned" and that they are equally "protected from governmental infringement." 

Griswold is explanatory of the concept of penumbral rights generally and the rights to association and to privacy specifically. However, a more detailed explanation is perhaps provided by another decision eight years later. While Griswold is familiar to scholars, the American public is generally more familiar with Roe v. Wade, 410 U.S. 113 (1973), at least by name. Roe cited Griswold, and reviewed the "right to privacy" in depth. This again included discussion of "privacy" implications of the First, Fourth, Fifth, and Ninth Amendments. The Roe Court held "this right of privacy" regardless of whether its foundation is the Ninth or Fourteenth, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 

From these examples and many more come the accepted recognition of critical points: our rights are inherent; and the Constitution protects them whether they are stated outright therein or implied. The existence of those rights are protective of us in a way that the Malaysians discussed in that recent news story might only imagine. But, are we appreciative of, protective of, those rights?

In 2015, Fox News reported on a "filmmaker and satirist" visiting Yale University. The premise was to ask students to sign a petition supporting the repeal of the First Amendment (which protects the rights of expression, of religion, and from religion). The story reports that "a solid majority" of those approached were willing to sign the petition. Several were reportedly enthusiastic in their approval for the proposition of removing this reference to expression and implied association. 

In June of 2016, A blog by Mark Bennett contended that "It's Time to Repeal the First Amendment." At the conclusion, he added that "as well as the First, obviously the Second (Amendment)." He asserts that the founders of this country were fallible and that they may periodically have been wrong. He argues that the First Amendment is "one of those times." Mr. Bennett cites various perceived failures of the founders in support of his argument against their infallibility.

In support of his contention that repeal of the First Amendment would be positive for America, he describes the amendment process somewhat obliquely, noting the adoption of the Twenty-First Amendment and its repeal of the Eighteenth. Such amendment to repeal the First, he argues, would enhance American liberty and protect privacy in an age of technology that was simply never imagined by the founders of this country. He cites the potential for someone with "a communication device that can easily offend or embarrass you and countless others," a potentiality I have written of, Assume Everyone is Watching, and Evolving Issues of Body Cameras.

In 2017, the Daily Wire reported on perceptions of "a flawed judgement" in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). A political candidate was quoted concluding that this decision "perverted our electoral system" and presented "a gateway to corruption." The Wire reporting was critical of the candidate and of perceived distinctions regarding sources of money. Citizens presented a challenge to financial limitations on campaign contribution alleging that violated the First Amendment protections on "freedom of speech." That candidate advocated amendment of the Constitution regarding constriction of the freedom of speech recognized in Citizens

In Citizens, the Court explained that laws precluding speech must be "subject to strict scrutiny," meaning that the government starts from a position of disadvantage. This is one of the "standards of review," commonly employed by the Court in analyzing constitutional challenges. Under "strict scrutiny" review, the government action or legislation is presumed to be unconstitutional. The government therefore bears the burden of demonstrating that the action or law both "furthers a compelling interest and is narrowly tailored to achieve that interest." There have been those who characterize the second of these, narrowly tailored, as requiring proof that there is essentially no other way to achieve that compelling interest. 

In March 2018, Justice Stevens (ret.) of the U.S. Supreme Court editorialized in the New York Times regarding guns: "Repeal the Second Amendment." He reveled at the "civic engagement schoolchildren . . . demonstrated" in their spring 2018 gatherings. He conceded a perception of progress in the occurrence of debate regarding changes in gun laws, but advocated instead repeal of the Second Amendment, referring to it as "a relic of the 18th century." 

Justice Stevens briefly recounted perceptions of historical Second Amendment cases, and quotes former Chief Justice Berger's derogation of Second Amendment proponents. Justice Stevens' seeming agreement or reverence with precedent ends, however, with his critique of District of Columbia v. Heller, 554 US 570 (2008). That decision, "that there was an individual right to bear arms," he takes issue with, asserting that it "was wrong and certainly was debatable." Justice Stephens sees "the people" in that Amendment as a collective, not individual, right. 

In March 2018, Esquire reported on the editorial by former Supreme Court Justice Stevens. It noted that calls for repeal of the Second Amendment are not necessarily new. It cited efforts by Representative Owens to that end in 1992 and 1993. Rep. Owens explained that repeal would "eliminate the rationale that people should own guns because the Constitution says so." Rep. Owens, apparently conceded the individual right, and did so prior to Heller. He conceded that repeal "would not in itself outlaw guns - but would set the stage for the legislatures to start getting rid of guns."

However, that contention regarding the effect of repeal is seemingly not as clear as Justice Stevens, Rep. Owens, or the others discussed above might like. Chaos theory (which essentially "teaches us to expect the unexpected") suggests that our existence at this moment results from the confluence of millions of coincidences that both surround and preceded us. 

This was popularized early this century in the movie The Butterfly Effect. Promotion for the movie noted "It has been said something as small as the flutter of a butterfly's wing can ultimately cause a typhoon halfway around the world." The implication is that changes can have cascading or exacerbated effects. One line from the movie perhaps summarizes this "You can't change who people are without destroying who they were." Along this thought process, one might inquire whether you can destroy who we were, when we were endowed by our creator with inalienable rights?

Therefore, one who advocates the repeal of the First Amendment, due to their present feelings about privacy, might well consider that the protection or guarantee of their right to privacy is founded, at least in part, on that very amendment. Those who advocate repeal of the First because of their view of Citizens, might also consider the unintended implications that could arise from repeal or amendment directed at that particular analysis of speech. Might such alteration or repeal cascade into unintended consequences for either speech or association? Might the right to privacy itself be impacted?

It is also worth considering whether repeal affects any change. The presence of a recognition or guarantee of a right in the Constitution certainly supports that it is a fundamental right worthy of guarantees of protection. However, the inverse is not true. The absence of a recognition in specific constitutional text has not prevented the Court from either recognizing that as fundamental or from enforcing protection of it. 

The Legal Dictionary contends "no comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced." This logic is founded on the broad interpretation of our rights as a consequence of our existence and that what government powers do exist only exist because we conveyed to it. The Tenth Amendment makes clear that what the people did not give, the people retain. However, "a partial list" of such recognized penumbral or unenumerated rights "might include": "the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion." 

Thus, a valid question might be considered. Would removing freedom of expression or the "right of the people to keep and bear Arms" from the text of the Constitution necessarily change that these rights are nonetheless fundamental, inherent, and inalienable? Could mere repeal (an act indicating or suggesting a negation or rejection of protection), in itself, repeal protection? Some would suggest not. 

Some would argue that such a repeal would have to also include or be accompanied by some express conveyance of power from the people to the federal government. That is, they would suggest that such a repeal of specific right protections would not negate the accepted existence of the right nonetheless. The right, they would argue, exists and is fundamental whether stated in the Constitution or not. They would argue that to eliminate that right, the people would have to relinquish it specifically, through some grant of specific power to the federal government enumerating power, to the derogation of the people themselves. 

Seemingly, in the absence of such a grant of power, it is seen as possible that the Court could persist following a mere repeal in guaranteeing these rights, recognizing these rights, even if they were not specifically mentioned in the Constitution any longer. There is significant precedent to support the protection of rights despite their absence from textually specific protection. 

In this regard, the Bennett example of the Twenty-First and Eighteenth Amendments is intriguing. By adoption of the Eighteenth, the process eliminated the "manufacture, sale, or transportation of intoxicating liquors" in the United States "for beverage purposes." That amendment granted a power to the government, though not necessarily in explicit terms. That amendment could be seen as an affirmative and purposeful relinquishment of the right to make, sell, and transport liquor. But, note, the amendment did nothing to eliminate a person's ability to consume intoxicating liquor as a beverage. One might argue that the right to consume it, though penumbral before the Eighteenth, remained undisturbed even after ratification. 

The argument might thus be made that the Eighteenth relinquished commercial rights, more so than individual rights. That might be difficult to reconcile with the existing interpretations of the personal nature of both First and Second Amendment guarantees, and the overarching clarity of people's retention of rights found in the Tenth. In that regard, the Twenty-First restored protection of commercial rights, and eliminated a governmental power delegated by the people in the Eighteenth. 

Thus, clearly, the delegation of power to the government is not immutable. Having given power to the government, the people remain able to take that power back. That is the lesson of the Eighteenth and Twenty-First. The example of these two Amendments does not, however, suggest or support that repeal of a recognition or protection of fundamental rights would thereby necessarily empower the government to ignore such rights. Those rights would, following an amendment's repeal, nonetheless remain as fundamental and sacrosanct, in the absence of some specific grant of power. 

Certainly, there are those who would suggest that the nature of the Amendments themselves could be relevant to such discussion. They may see distinction in the manner of prohibition of the First Amendment: "Congress shall make no law" as compared with the Second Amendment: "shall not be infringed." But, each is clearly a prohibition on government action to impair rights. And, even if those amendments were repealed, the inherent rights that they protect would arguably remain in the absence of some grant of power to the government. 

Thus, the arguments of repeal are seemingly more complex than first noted. The rush to repeal might instead be a rash to repeal, neither considered nor studied. A rash and emotional reaction to perceptions and beliefs. In the National Review, Jay Cost responded to Justice Stephens' repeal gauntlet. He notes that the Constitution is hard to amend, and argues that it was so intended. He extols the checks and balances of this document, and warns of "an excess of majoritarianism."  Notably, majoritarianism might be blamed for the ban on Malaysian lesbian sex that led this discussion. There are certainly examples of majority-accepted laws in this country  that have been stricken by the precepts of our Constitution. It is constitutionalism that tempers the expediency of immediacy. 

The upshot is that we find ourselves in a constitutional republic in which the swings of majority whim are constrained and tempered by an overriding (by its own terms, Article VI., the "Supremacy Clause") structure and consistency. That structure is persistently challenged and interpreted. It is is not immutable, but delivers consistencies nonetheless. That structure or its specifics can be changed, but the fact is that it cannot be changed easily. Change does not come rashly, but ponderously. The advocates of the Equal Rights Amendment have recognized that for almost 50 years. Therefore, it seems likely our lifetimes will see advocacy of addition or repeal, perhaps in rash and rapid proposals, but amendment is simply not probable, for better or worse. 


Thursday, September 13, 2018

How to Fix American Healthcare

In July, Fox News reported that some Americans are not renewing their health insurance. Purportedly, about one million have made that election, after learning that the taxpayers would not contribute to their insurance premiums. The article concludes that data supports that "the high-price plans on the individual market are unaffordable and forcing unsubsidized middle-class consumers to drop coverage,” according to research from the Centers for Medicare and Medicaid Services.

The article draws attention back to the promises made when Obamacare was proposed in 2009, such as: “If you like your health care plan, you’ll be able to keep your health care plan – period,” Similar promises were made about keeping your doctor, according to Politifact

The reality is that medical care costs money. There are some who contend that the American system for medical care delivery is broken. In the LA Times, Dr. Robert Pearl (health care provider and industry CEO) takes issue with the manner in which health care is delivered. Dr. Pearl notes that America spends "50% more than any other nation on the globe and our results are in the lower half." Think about that for a minute, We spend $1.50 for every dollar in the next highest country, and we do not achieve results in the top 50%. Apparently, there is support for the contention that shovelling money at a problem may not necessarily solve it. 

He points fingers at: (1) doctors clinging to antiquated methodology and technology, (2) the foundational "fee for services" model that pays for procedures or tests, rather than for results, (3) a siloed record-keeping process that frustrates access to information for both patients and care provider, (4) a reluctance to engage in preventative medicine (he says we "value intervention over prevention), and (5) a reluctance to leverage technology to facilitate better, more frequent care. These are detailed in his book Mistreated. It is a recommended read for anyone that will engage the American health system (this means you). 

There are any number of complaints about the delivery of medical care in this country. Pharmaceuticals are expensive in America. In fact "Americans spend more on prescription drugs than anyone else in the world," according to Bloomberg. The cynic in my head is chanting "we're number one" repeatedly as I compose this. Some, like the American Association of Retired Persons have contended that importing drugs from Canada is an easy solution to that issue. However, there are some who question the AARP's motives, after details emerged regarding financial impacts of its support for the failed Obamacare experiment, as reported by Forbes

Anyone who has visited the doctor's office for a cursory examination may have complaints. A conference attendee recently related to me a sports injury. He made an appointment and visited his family physician as scheduled. Despite arriving 15 minutes early at their urging, he then spent over an hour in the waiting room. Once with the physician, he had his abdomen proded, his ears examined, and was repeatedly asked to "say ahhhhh." And then, the doctor eventually examined the injured foot, opined that he "thought" it was sprained, ordered an x-ray, and referred him to follow up with an orthopedic surgeon. The gentleman complained of a wasted morning, and wondered aloud why he had not just gone to an orthopedic to begin with (he was convinced his throat and ears were unrelated to his foot complaints). He perceived that this physician had delivered no value to him. 

There are always two sides to every debate. The New York Times recently published a rebuttal to what it calls "myths" regarding the cost of American medical care. It contends that the "quality of health care looks pretty good." The study that it cited concludes that hospitalization is less frequent in America, that there is no indicia of an extraordinary number of doctor visits, and that cost containment is a challenge in more than just America. 

The Times refutes any perception that there are not enough primary care physicians in America, and contends that Americans do not "use too much medical care" in a general sense. However, it cites evidence that America ranks "near the top in its use of certain medical services, including expensive imaging tests and specific surgical procedures, like knee replacements and C-sections." Thus, the Times seems to suggest that solutions lie not in the costs of care, but in our selections of the types of care. 

Imagine that you are eating at a cafeteria. Those have become less common perhaps. But in the "old days" we walked through a serving line and viewed various dishes. We selected what we wanted and at the end we paid a price per dish selected. There is some argument that the ultimate charge (what we are spending on eating) is too high in the national aggregate. But, the Times is suggesting instead that the issue is merely that some selections that are expensive are being consumed to frequently, thus driving up that aggregate. 

There are those in society that advocate for universal medical care. The Washington Post recently lamented the repeal of the Obamacare "individual mandate" (a provision in the law that said Americans had to purchase something, whether they wanted to or not). The Post contends that medical care is a "human right," and that every person should have access to care regardless of their ability to pay for it. By definition, when something is provided to those who feel they cannot pay for it, that means someone else will have to pay for it. The simple economics of socialism are lost on too many. 

The Post lamented "no longer will the government ensure that the nation is insured," as a result of the mandate repeal. That statement ignorantly ignores that even when Obamacare mandated everyone to have insurance, media reported that 27 million remained without such coverage, according to Bloomberg. That may not be curious to some, but if Obamacare was mandatory, as it said it was, how is it that anyone was without coverage? Perhaps there are various definitions for "mandatory?" My understanding of "mandatory" is that it means "required." If something is mandatory then everyone would have it. But, the Quixotic imposition of mandatory did not effect full participation. 

It is also worth noting that Obamacare did result in a larger population of "covered" Americans. However, there are some who believe that a significant amount of that increase was through the concurrent expansion of government benefit eligibility. The Heritage Foundation calculated in 2014 that 71% of early Obamacare coverage expansion "was attributable to the Obamacare expansion of Medicaid to able-bodied, working age adults." It seems debatable whether Obamacare resulted in significantly more individuals purchasing health insurance. 

Back to the Fox News article that started this discussion. Some states (13) report that the cost of certain health insurance "plans are already at least 40 percent higher this year than last year." One state has reportedly seen "premiums leap 65 percent." According to the Kaiser Foundation, premiums increased significantly in 2017 (in some locals the increase was double-digit). Since 2013, health insurance premiums have roughly doubled according to eHealth. Arguably, Obamacare neither reduced the cost of health coverage nor achieved its mandate of coverage. The lamentation "no longer will the government ensure that the nation is insured" seems a bit disingenuous in these regards. 

There is conjecture that without government coercion, fewer will purchase health insurance. That may be due to the increase in premium cost in recent years, which some perceive were driven by Obamacare itself and others say was inevitable even without that experiment. That may be because Americans have been rooted in individualism and freedom for centuries, and perhaps they do not favor being told what products they must purchase? I can only imagine the hue and cry if the strawberry producers convinced Congress to mandate that all Americans buy $321 worth (cost of average health plan) of strawberries each month ("but I don't like strawberries," - "no one said you have to eat or enjoy them, just buy them.") Some cynics would complain about buying something they neither want nor believe they need, and others might argue that forcing people to make purchases is antithetical to American freedom.

In the end, the debates about health insurance may be worthy. However, the discussion points raised by Dr. Pearl and the Times may also have merit. Could we leverage technology so that a follow up appointment with our physician might be a Skype experience rather than a morning spent sitting in a waiting room full of sick people? Might we figure out a way to allow patients and other providers with ready and inexpensive access to records, as the Cleveland Clinic and Medicare have done. Might pricing transparency, record portability, and technology leveraging, as advocated recently by Medicare, provide a path to better enabled consumers in the marketplace? What if those consuming services were the ones actually paying the cost, would we each become better consumers? 

There are undoubtedly a great many components included in the American medical care "big picture." There are problems and complications identified by Dr. Pearl and others. There is data suggesting that America may be struggling with issues not dissimilar from the rest of the world. There is a seemingly endless parade of contended issues, alleged failures, and purportedly "bad actors." It is complex without a doubt. However, it seems likely that there are solutions more imaginative than shoveling money. Perhaps if the bigger issues were addressed, care refocused on patients, and innovation encouraged, the costs could be reduced? 

That is not to criticize shoveling money as "a" solution. It seems fair for the country not to interfere with those who wish to attempt to solve their own problems with their own money. However, it seems that shoveling taxpayer money at a problem should come with some assurance that simultaneous efforts are engaged to streamline waste, to leverage consumer participation, and facilitate good health care outcomes. 

Of note, there are some who perceive government intervention and management a poor solution to any problem. An attendee at a recent gathering challenged me to name a single government agency that has (1) remained focused on the goal for which it was created, (2) made significant progress on its mission, and (3) did not grow exponentially in size and budget. I was not able to, are you? This attendee contended that the Department of Energy (DOE) was formed in the 1970s to address our dependence on foreign oil. That has allegedly morphed over time. Upon return to the office, I read that some contend the main accomplishment of DOE has been its own growth in personnel and budget - "the result of 15 years of searching for something to do." Will healthcare benefit from more government intervention, regulation, and management? 

It also seems fair in this national healthcare debate that we hear no more lies and deception like "you can keep your doctor." We should avoid fanciful promises to suspend the laws of economics. Scarcity is real, the effects of demand are real, and only in Utopia can everyone have as much of anything that they want. To increase access to relevant and affordable care, it is time that we focus on how to deliver better quality health care, with patient engagement, without endless tests, consultations, and procedures that do not contribute to the diagnosis and treatment of the problem. And, while we are at it, we have to focus on preventative care. We will have to get America off the couch and somehow regain activity, exercise, and all of its benefits. 

Can we improve American healthcare? Absolutely. Is the solution in forcing people to do things they find distasteful? Is the solution only to be pursued in "finding" money to shovel at the existing and inefficient cost paradigm? It seems probable that there are a great many issues that could benefit from attention, could increase efficiency, and could decrease costs. Perhaps it is time to focus our efforts on the process and its shortcomings, rather than merely trying to find enough of other people's money to continue to fund those various shortcomings?


Tuesday, September 11, 2018

Opioids can Interfere and Complicate

In May, WorkCompCentral reported Court Reinstates Denial of PTD Award for Worker With Opioid Addiction. In Borkovec v. Dish Network, Case No. 17-0743 (Iowa Ct. App., May 2016), the issue of opioid dependence is aptly illustrated.

The worker in this instance was injured in 2009 when a "drunk driver crossed the center line and hit (his) vehicle head-on." The Court noted there were "significant work-related injuries," and another person died in the collision. The injuries required multiple surgeries, "intensive therapy, and continuing treatment for pain." His recovery concluded at maximum medical improvement (MMI) and a 34% permanent partial impairment was imposed. At that time, "some addiction issues with opioid medication" were noted.

In 2014, the treating doctor mentioned that "chronic opioid use can create a hyperalgesic effect." This is an "overly sensitive" reaction "to pain otherwise reduced by the use of opioids." A year earlier, another physician had noted "slow speech and thought processes along with impaired judgment and insight." That doctor had "recommended a comprehensive pain management program," but the injured worker was rejected by multiple programs. A third doctor opined that the injured worker, in 2014, was "not at MMI for his opioid addiction."

This third doctor recommended "in the strongest terms," that the injured worker "be taken off of these medications if at all possible.” A deputy workers’ compensation commissioner concluded that the worker was "permanently and totally disabled (PTD) and an odd-lot worker based on his physical injuries," but that he "had not achieved MMI for his mental conditions or his opioid addiction." The Workers Compensation Commissioner affirmed the conclusions of causation of the worker's injuries, but because the worker was not MMI for the opioid addiction, she reversed the award of PTD. She concluded that treatment of the "opioid addiction . . . would likely significantly improve his functional capacity."

The matter proceeded to the district court, which disagreed. It concluded that "treatment of (his) opioid addiction would not significantly increase his physical functioning and ability to return to work" The court reinstated the award of PTD benefits, and the employer appealed. 

The appellate court explained its standards of review. A recent post Abuse of Discretion mentioned how these standards are applied by appellate courts. When acting within their appropriate scope, appellate courts follow these standards strictly. The Iowa Court noted it was bound by the trial judge and Commissioner's factual findings. and provided a lucid and clear explanation of the "substantial evidence" review standard. The Court dissected the various medical opinions regarding the injured workers' capabilities and physical restrictions. Some of those were clearly related to the physical injuries for which he had reached MMI. 

However, the Court did not agree with the worker's claims that his physical injuries are so disabling that his opioid addiction is irrelevant or superfluous. Of note, "at least two medical experts have indicated that additional treatment for [opioid] dependency should result in improved functional capacity and significant improvement." The Court noted that some of the worker's activity restrictions were directly related to "significant narcotic medications” that are part of his treatment regimen.  

The Appellate Court concluded that the "Commissioner’s findings of fact were based on substantial evidence," and were therefore appropriately affirmed. It reversed the district court and reinstated the Commissioner's decision that the conclusion of PTD was premature in light of the ongoing opioid use and issues. 

The decision was not unanimous. Judge Danilson concurred in the outcome, but wrote a concurring opinion to express concern. Judge Danilson feared that the injured worker would either be unsuccessful with overcoming addiction, or would remain significantly impaired even if addiction were overcome. The Judge noted that after "a good faith effort to overcome" addiction, the "healing period should end," and at that time the overall impairment and entitlement to benefits should be determined. Judge Danilson cautioned that the worker "should not be held hostage endlessly on some slight glimmer of hope he may be employable with very substantial work restrictions in the future."

The points are worthy of consideration. Should a worker be labelled as "permanently disabled," before reaching maximum medical improvement for all conditions? Should the severity of the conditions for which MMI has been reached contribute to answering that question? In other words, if a condition that has reached MMI is itself totally debilitating, should ongoing remedial care for some ancillary concern preclude rating and compensation? Does the analysis suggest any caution in regards to the provision of, the amount of, opioids in workers' compensation injuries? When a treatment regimen starts down the opioid path, what future implications does that hold?

The casual reader, from just what is set forth above, will see that there are complexities in workers' compensation. The work injury can be influenced by the condition and health of the worker that exists at the time of injury (pre-existing conditions) and by things that occur after (complications). And, those are worthy of thought and discussion. The medical complications of opioids are clear from this Iowa example, but as a potential complication, medication is perhaps one among many? 

Another implication worthy of note, is that the use of medications, application of modalities, and treatments are used by Medicare to predict future care needs. When determining the likely cost of future medical care at the time of settlement, the cost of past treatment can be used to project probable future expense. Thus, the prescription of opioids, benzodiazepines, or other long-term medications may complicate or even frustrate the potential for settlement in states that allow settlement of future medical care (which implicates Medicare). 

The prescription of medication is thus a broader set of considerations that are worthy of consideration. The payer in the equation has motivation to monitor the use of prescription medication, to consider alternative modalities and efforts. There are potential downsides to prescription medication. They include  costs of addiction, withdrawal, and settlement. But, more importantly, there is human cost to addiction. Payers would do well to ask what is in the best interest of the injured worker, holistically, medically, and vocationally. Decisions about how to heal should include consideration of whether today's modality (opioids) creates tomorrow's complication (addiction). And, the focus should remain on the human being that is being treated. 

Overprescription alone may not be at the root of today's American overdose and death, but The Atlantic and others suggest that it played a significant role. Opioids are killing Americans. Some are prescribed and others from the street. They involve risk, of hyperalgesic effect, addiction, disability, and even death. The potential downsides, today and tomorrow, should be considered by all involved when treatment is planned and executed. It is possible that in some instances the cure may become as significant a problem to a particular human being as the injury itself. 

Sunday, September 9, 2018

Defamation in the News

In 2017, I penned the Litigation Privilege. It is an overview of the privilege that applies to statements and comments in litigation. It is similar to the privilege that applies to debates in legislative processes. The crux is to allow the parties in litigation to make their respective allegations and arguments without fear of being sued for the defamation torts, "slander" and "libel." A great many people struggle to remember the distinction between these. I remember by association, that "slander" is "spoken," both beginning with "s," and the written defamation, "libel" is the one that is written (or "not spoken").

In 2018, the Nevada Supreme Court decided Fitzgerald v. Mobile Billboards, Case 72803 (May 3, 2018). The Court was called upon to explain the difference between "absolute" privilege and "conditional" privilege. Under Nevada law, there is a distinction when it comes to litigation. 

The injured worker filed a workers' compensation claim. The employer "made statements to the insurance company expressing concern regarding appellant's usage of prescription pain medication." Specifically, that the injured worker "was attempting to obtain more and different prescription painkillers after his industrial injury, that multiple prescription painkillers, and prescriptions for additional painkillers, were found in [his] personal property."

The insurance company wrote to the injured worker regarding the employer's concerns and "repeated the statements to (his) workers' compensation doctor." The injured worker therefore filed a complaint for defamation in the district court the carrier for repeating those statements. He alleged they "were false and harmed his reputation and livelihood."

The Court explained that in Nevada, the absolute common law privilege applies to workers' compensation proceedings, and other "quasi-judicial proceedings." That is a general rule regarding the "litigation privilege."

However, the legislature specifically addressed privilege as regards the inappropriate seeking of medication. For that specific provision of the law, the legislature instead created a specific "conditional privilege." The "common law" as inherited from our British roots, and as comprised of judicial decision after decision (precedent) can be changed, or "abrogated," by legislative action. Statutes can change the common law. 

In analyzing the employer's statements at issue in this case, the trial court (not the workers' compensation judge as this dispute was in the defamation legal proceeding in which the employee sued for damages) applied the overarching common-law absolute privilege. The Nevada Supreme Court reversed and instructed that the analysis, when there is a specific statutory provision, should focus on that specific rather than on the general provisions of the common law. That in itself is a pertinent reminder for practitioners. 

The trial court applied the absolute privilege and dismissed the injured worker's case. The Supreme Court cautioned that dismissal before trial was appropriate in Nevada only when "it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [him] to relief." 

The Court explained that the absolute privilege requires demonstration of two elements:
"(1) a judicial for quasi-judicial] proceeding must be contemplated in good faith and under serious consideration, and (2) the communication must be related to the litigation." 
If these are satisfied, then the privilege applies and "acts as a complete bar to defamation claims based on privileged statements."

However, the Court explained that the workers' compensation law has a more specific privilege. It "precludes liability in a defamation suit for certain statements made in relation to a violation of" that law. This privilege provides protection within workers' compensation proceedings, but only if the "defamatory statement is made in good faith." The Court concluded that the "Legislature did not believe that, in the context of a workers' compensation claim, speaking freely about a person's actual or perceived violation of NRS 616D.300 outweighed the risks of statements made with malicious intent."

Thus, the Court concluded that the "absolute privilege" with no reference to malice or good faith, had been rejected by the legislature in these specific proceedings. Thus, it had constructed an alternative, conditional, privilege in the workers' compensation law. The Court held "the common law absolute privilege has been abrogated by the statutory conditional privilege" in this context. 

The case was remanded (back to the trial court) for re-analysis of the allegations in light of that conditional privilege. The Court instructed that the case would proceed to a jury only if the trial court determined that there was "sufficient evidence for the jury reasonably to infer that the publication was made with malice in fact." If there was not sufficient evidence of actual malice, then the appropriate outcome would be dismissal of the case based upon the conditional privilege. 

The decision is instructive on the process of statutory abrogation of the common law. Litigants may wish to be aware of how statutes like the workers' compensation law change common law. It is also of interest regarding the expression of information that is potentially libel or slander. The definition of defamation includes that statements are "untrue." Possibly the best defense against such allegations, therefore, is not the legal analysis of privilege as explained by the Nevada court. Perhaps instead, the best defense is truth?


Thursday, September 6, 2018

Solving the Wrong Problem?

There has been a lot of excitement about the 6th Edition of the American Medical Associations' Guide to Permanent Impairment. The story is not new. Rumblings about the implementation of the 6th Edition, without formal adoption began with earlier editions. See Madrid v. St. Joseph Hospital, 928 P.2d 250 (NM 1996). 

More recently, and specifically as regards the 6th Edition, Pennsylvania has struggled. That is discussed in some length in As Florida Waits and High Court Magnifies Protz. The short story with Pennsylvania is that invalidating the methodology of adopting the AMA 6th impaired the entire IRE, or Impairment Rating Evaluation process. 

In August 2018, the Kansas rendered Johnson v. US Foods, ___ P.3d __, Case No. 117,725 (KS 2018). Johnson may be reviewed by the Kansas Supreme Court, according to WorkCompCentral (pay subscription) on September 6, 2018. This was not about the adoption process for the AMA 6th Edition, but a due process indictment of the 6th Edition itself. The injured worker was assigned a 6% whole person impairment under the 6th Edition, following injury and a spinal fusion. However, the same doctor that assigned that rating also opined that under the AMA 4th Edition the impairment "would have been 25%." 

The injured worker complained that his "award" for the neck surgery was $14,810.80 under the law. The Court noted that had the legislature not adopted the 6th Edition, his "award" calculation "would have been nearly $47,000 greater," in the amount of $61,713.70. As such, the legislative adoption of the 6th Edition reduced the workers' recovery, in which it also determined he had a constitutionally protected property right. 

A prominent physician involved in the publication of the AMA 6th Edition, Dr. Christopher Brigham, noted the Johnson decision at the WCI conference in August. WorkCompCentral reported on that in Sixth Edition Author Suggests Multiplier to Adjust Impairment Ratings. The doctor accepted that medical determinations of impairment could have the effect of changing the amount of compensation benefits provided. 

He therefore suggested "states can offset low impairment ratings with their own tweaks to the ratings." His suggestion, however, seems directed not to tweaking the ratings, but tweaking the various statutory calculations that are dependent upon the ratings. He suggested that "If states think the ratings are too low, they can come up with a multiplier, say 1.4 or something." These states could thereby maintain the payment level to injured workers and nonetheless embrace the 6th Edition. 

That was an interesting proposal. As I read the WorkCompCentral story suggesting a multiplier, I was reminded of a Dilbert cartoon from years ago. In it, Dilbert complains that he is being sent on a trip to teach Cobol (common business oriented language), a computer program. Dilbert explains to his boss that his associate Wally is the expert in Cobol, but the boss notes "Wally was busy that day." Our pragmatist Dilbert suggests rescheduling the class, to which the boss replies "Okay does tomorrow work for you?" Exasperated, Dilbert exclaims "You're solving the wrong problem." And that punch line reverberates through my brain as regards impairment. 

American workers' compensation struggles with the interaction between injury, impairment, and disability. To some degree, that struggle stems from the legal system's insistence that our medical brethren deliver opinions grounded not in science or medicine, but in law. An excellent example is maximum medical improvement (MMI), discussed in Artificial and Arbitrary Distinctions. Doctors do not care about MMI. That determination is of no use in diagnosing or treating a medical condition or complaint. But, we in the legal field nonetheless compel doctors to make that MMI determination. The legal system is insisting doctors spend time on decisions of no relevance to their prime function - the diagnosis and treatment of people. 

Permanent Impairment is a similar issue, also discussed in Artificial and Arbitrary Distinctions. The doctors did not become involved in impairment because it enhances diagnosis or treatment. The doctors became involved because legal processes demanded quantification, and with that requirement came the unsurprising realization that doctors are human, individual, and sometimes opinionated. Those who litigate, and who sought these ratings, quickly learned that different doctors could have different opinions on questions like impairment. Thus, having lured the medical profession into a chore of little interest to it, the legal system pushed for uniformity or at least a modicum of consistency. 

Viola, the Guides to Permanent Impairment were born in the 1970s. Fifty years later, the guides are middle-aged. The imperfections and wrinkles have begun to show. Periodically over the years, the Guides have undergone surgery to adjust their conclusions. Some efforts have been cosmetic and others perhaps could be characterized as actually remedial. Unfortunately, each attempt to smooth them out in one spot has seemingly either caused or illuminated perceptions of wrinkles in another. The solution it seems is to keep doing plastic surgery on them. 

Dr. Brigham's proposal at WCI is similar. He is essentially saying that the guides 6th Edition are appropriate and scientific. He suggests that if the conclusions of the Guides are not to someone's liking in terms of benefit calculation, the solution is not to ignore the knowledge of pathology and healing expressed in the guides, but to change the effect of those ratings. In all, not a bad suggestion if I am correctly understanding his proposal (shameless plug, I hope to ask him more about this at the Workers' Compensation Hot Seat on September 20, 2018; register here). I will be curious also to hear what workers' compensation guru Alan Pierce has to say on that thought. 

I would suggest however, that much like Dilbert's boss, we are "SOLVING THE WRONG PROBLEM." The calculation of an impairment rating is not the problem. I would argue that even the statutory formula that converts that impairment to some measure of dollars is not the problem. The real problem is that both the legal and medical communities seem content to unquestioningly accept that somehow impairment is relevant. I would suggest, for the sake of discussion, that it is not. 

As an exemplar, I would direct attention to the Florida Act, specifically Section 440.015: 
It is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as 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. (Emphasis added). 
Simply stated, workers' compensation is about disability. Disability is defined by Webster's 
a physical, mental, cognitive, or developmental condition that impairs, interferes with, or limits a person's ability to engage in certain tasks or actions or participate in typical daily activities and interactions
That is, limit on tasks or actions or participation. Workers' compensation systems have struggled with compensating injured workers. Statutes have defined and calculated benefits to compensate either "impairment" or "disability." But, the overarching theme of workers' compensation is clearly disability. That is true also in the common law right to redress, which workers' compensation both precludes and replaces when it comes to work-place injuries. 

A human body might suffer an injury by accident which results in assignment of a low or high impairment rating. There are workers' compensation systems that would then provide compensation based upon that impairment rating regardless of the existence of any disability. For example, a Florida worker with a 50% impairment would be entitled to 235 weeks of "impairment benefits" (it is a "sliding scale" entitlement, set forth in full at the bottom of this post) Section 440.15(3)(g), F.S. 

That employee would be so entitled, even if the moment after reaching MMI the employee returned to work. That is, returned to work earning as much as pre-accident, or even earning more. This hypothetical employee would receive benefits, though she/he suffers no loss or either actual earnings or earning capacity. Those weeks of benefits would be to compensate the worker for the "impairment" that is published in a book, and related to the injury and care that has been rendered, and the ultimate outcome. But, nonetheless, the benefits would be based not on "disability" but "impairment." 

So, if impairment does not measure disability, why then is it used? Some will argue that impairment is appropriate because it is determined by the physician rather than the patient (a patient might say "I can't work" or "when I work this [symptom] occurs"). With the involvement of the doctor, and the reference to the published Guides, there may be those who believe that consistency and transparency are achieved, and from that limited definition conclude "fairness" results. 

However, the opposite outcome is also possible. Could a patient be rated with a 1% or even 0% impairment and yet be utterly incapable of returning to work as a result of the work accident? Some would argue that is possible. The WorkCompCentral article points out that some maladies in fact result in an impairment of 0%. Thus a productive worker is injured on the job, medically treated, assigned a 0% impairment, and is utterly incapable of work. But, the impairment benefit model discussed above would provide no compensation for that complete disability, as it reacts only to the impairment. 

In an impairment-driven calculation, a worker fully capable of work without loss of earning might receive years of benefits while a worker with no hope of working, but a minimal impairment rating, might receive little or nothing. 

The fallacy in the impairment guides is arguably not that they change over time. The weakness is not necessarily that those guides might be influenced in their formulation or application by human imperfection. The weakness, the "right problem" to fix is perhaps that workers' compensation is a medical and disability substitute for common law, for negligence, for tort damages. The key word being "disability." Certainly, one may successfully argue that disability is harder to prove, to disprove, to evaluate. It may be less objective and more subjective. Determinations may be less consistent, and require more determinations of fact. But is the answer to those difficulties an abandonment of the disability concept? 

Some will return time and again to the objectivity argument. Impairment guides, they will tell us, produce consistent financial results based upon an objective standard. Perhaps that argument wins the day. But, if it does then why not merely use a height standard? The statutes could award benefits not relative to the impairment rating, but to the patient's height. Four feet tall to four feet six inches receive "x" weeks per inch; for every inch between four feet six five feet, "y" weeks per inch, etc. 

This is a preposterous proposal, and yet it is as transparent and objective as the impairment guides model. If the ultimate goals are objectivity, transparency, and predictability, the "tape measure" model is as efficient as any, and arguably as relevant as the impairment process. And, of course there might be litigation over which tape measures were being used. 

However, I would suggest that if there is perceived a problem in the current setting then perhaps Dilbert is right on point. Perhaps it makes more sense to return to the roots of workers' compensation and to statutorily define benefits based on disability. That is, based upon the economic impact that a particular injury and its effects work on a particular worker. Perhaps it would be less consistent and transparent, perhaps it would be more work, but it is true to the roots of workers' compensation, disability and ability. The systems might just benefit from remembering workers' compensation's roots, what workers give up in the grand bargain, and why disability matters.




Section 440.15(3)(g):

(g) Notwithstanding paragraph (c), for accidents occurring on or after October 1, 2003, an employee’s entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of temporary benefits, whichever occurs earlier, and continues for the following periods:
1. Two weeks of benefits are to be paid to the employee for each percentage point of impairment from 1 percent up to and including 10 percent.
2. For each percentage point of impairment from 11 percent up to and including 15 percent, 3 weeks of benefits are to be paid.
3. For each percentage point of impairment from 16 percent up to and including 20 percent, 4 weeks of benefits are to be paid.
4. For each percentage point of impairment from 21 percent and higher, 6 weeks of benefits are to be paid.