Monday, December 24, 2012

Could be the Season?

'Twas the week before Christmas, and all through states
compromise failing and we seem doomed to our fates
The attention was focused on a cliff, we all knew
In hopes of compromise, the members worked through

The nation was coasting, with Christmas in sight
The machinations of Washington just not our plight
And the battle lines drawn, and our own travels to roam
We all settled our brains and left the office for home

When up in D.C. there arose such a clatter
Our LinkedIn alerts announced the grand matter
Away to the Internet we flew like a flash
Looked up the news, and wondered at the brash

The atmosphere in DC has given all doubt
Many think anymore they can work nothing out
But what to our wondering eyes should appear
The Senate and House brought us a gift this year

A singular bill, which means nothing to some
But to others it implicates all that is done
The SMART Act affects all who would compromise their case
The bureaucracy and red tape have hindered their pace

With a wicked slow process, and ambiguous drive
The MSA rules frustrated the injured and their lives
Their cases they languished, awaiting MSA consideration
Their lives on hold awaiting prognostication

On Murphy, on Kind, on House and on Senate
For Christmas, for New Years, Could they really pass it?
From chamber to chamber, from caucus to committee
They called the bill out, and voila! Equanimity!

An then in a twinkling, they passed the SMART act
A simple bipartisan effort which will facilitate a pact
A blessing to all, whether claimant or defense
The simplification of settlements is no simple pretense
There is much to be done in this country, with laws and with bills
The passage of SMART does not cure all our ills
But this SMART bill effort does prove, quiet effectively
Both sides can work together when they wish, definitely!

The headlines have described conflict in Washington these many months. It has been said that Congress could not agree to anything. Confronted with a calendar as proof, some believe they would nonetheless debate what day it is. Perhaps this remains true with some subjects, but Christmas 2012 will long be remembered for a slight but critical thaw in the Capitol.

I was surprised when the House of Representatives passed the SMART act, H.R. 1845. This occurred December 19, 2012. This bill is intended to return a modicum of sanity to the Medicare Secondary Payer Act. The success was a pleasant surprise. The margin, 401 to 3, was simply astounding. In the current political climate, it is heartening to see such a margin of agreement on such an important topic. Certainly, such progress was to be celebrated. I remember wondering on the 19th if this could be just more of the same from Washington, a token passage upon which one chamber might celebrate.

December 22, however, brought more astounding news. The Senate also passed the SMART act, and not to be outdone in demonstrating bipartisanship, the Senate vote was unanimous. Although there had been rumors that the SMART act was making progress, whisperings that there was real hope of passage, too many have become too jaded to accept that this was really a potential. Representatives Murphy and Kind, and frankly all of their peers in both chambers, deserve a congratulations and "well done."
Truly a Christmas miracle to see the partisanship set briefly aside. It is hoped that this effort will bring some much needed reform to the MSA approval process. Time-lines should shorten, and claim closure may perhaps become a bit less stressful for all involved.

Monday, December 17, 2012

Changes in Attitude Changes in Latitude

Jimmy Buffet sings these lyrics, and most will find something in Margaritaville with which to identify. We all struggle with change, some more than others certainly. Even when we overcome the struggle and accept change, many of us remain in passive mode. We deal with how change is transmitted, how it is manifested, and how it affects us. Few “cross the river” and become agents of change. To do so, we have to revert to habits we accepted as children and forego some of the assumptions we accept as adults.

First Corinthians says:
"When I was a child, I spoke like a child, I thought like a child, I reasoned like a child. When I became a man, I gave up childish ways."
Understanding the wisdom this encompasses is simple. The message is clear, concise and persuasive. As a basic premise, however, I would suggest that giving up childish ways does not necessarily mean that we must give up thinking and reasoning like a child. I remember years ago going on vacation with my family and having to tell my kids to power-down their video players when the airplane door was closed. They asked “why,” and as the adult I gave them the best answer I could, “because the stewardess said so.”

I recently read The Secret Live of the Corporate Jester. This short book is full of messages and tips that can either help you understand how to be an agent of change, or at least how to understand why and how agents of change are operating in your organization. Understanding, at a minimum, is critical to you dealing with the change that results from the efforts of such agents.

Children bring to any process a critical element, not unlike that of the Corporate Jester. When you were a child, you always asked “why?” Every child does, to the consternation and frustration of every adult in the room. Such adults invariably seek the refuge of the comforting platitudes like “because,” or “because I said so.”

Similarly, in organizations, the question is posed “why do we do it this way,” to which the only response all too often is “that’s the way we’ve always done it.” This may seem to us to be a reason, but in fact it is no more than “because” or “because I said so.” These are not intellectual responses. They are the kind of pabulum that people hide behind while they wait for someone to steal their Cheese, as described in another worthy book Who Moved My Cheese.

I often recount the story of the five monkeys to illustrate my point on this. I am not sure of the origin of this parable, which is restated across the Internet in support of a variety of arguments. However, the parable is interesting because it illustrates that people acclimate to their surroundings, and accept that things are appropriate simply because that is the way they have always been. Asked to articulate a logical explanation for the status quo, they are at a loss.

Innovators are among us. Some of them we see coming, and to their threats we can adjust. Others surprise us, and their innovations allow us no time to prepare and adjust. Their success will be our failure if our only reaction is to disregard or denigrate their innovation, convinced inherently of our own superiority and comfortable in our paradigm of “this has always worked,” or this “is how we’ve always done it.”

Returning to Corinthians, I would suggest that we need to far more often return to the innocence of the child, and speak like the child. Ask the “why” questions. Do so until the so called adults can provide an explanation that is beyond “because.” Think like a child. That is be curious, creative, and uninhibited. Reason like a child. This is not to say be a child. How does a child “reason?” A child reasons from a position of unmitigated curiosity and often a dearth of data. This juxtaposition leads the child’s reasoning model in which all presumptions are questioned and all conclusions must be supported by facts. Whether the answer is acceptable to the child is dependent upon the acceptance of each fact upon which the conclusion supposedly rests.

Last week the Chairman of the Federal Communication Commission (FCC) wrote a letter to the Federal Aviation Administration (FAA). Essentially, the FCC points out that there is absolutely no evidence that any portable electronic device can interfere in any way with any aircraft. The FAA’s own research fails to prove any foundation for the electronic device ban. Turns out there have been many times that passengers did not power-off their devices. 

Likewise, it turns out that none of those instances has resulted in any interference or mishap. Although claims of interference have been made by Boeing and others, no one has ever been able to replicate these instances. Furthermore, the ban on all electronic devices, some of which do not even transmit a signal such as a DVD player, is simply inexplicable. It is encouraging to see a Federal leader ask the “why” question. It is hoped that she will not accept the “because” answer that I provided my kids when explaining the inexplicable. Perhaps this FAA policy will be reconsidered in light of the absolute and complete dearth of data to support it?

To progress and grow, we must deny the efficacy of laddership and insist on the progress of leadership. That one is higher on the ladder, that it is this person’s “turn,” does not select the best leaders. A leader must have ideas, must question what others accept as assumptions of fact, and must focus the analysis on both the status quo and the potential for change. Are you a leader, a follower, or a “jester?”

Change for the sake of change, however, brings no value. First and foremost, our actions must be focused on bringing value. What goal are we striving for, and does that goal merit our effort? Is the goal appropriate and worthy?  Within the filter of this touchstone, we must question why we do what we do. From where do our processes come? Are they the best, most efficient, processes to our goal?

Examples of the Five Monkeys

The Corporate Jester: http://www.corporatejester.com/

Who Moved My Cheese: http://www.whomovedmycheese.com/

Saturday, December 8, 2012

Don't Decry the Data

WorkCompCentral reported last week that Oklahoma is considering implementation of an administrative system for workers' compensation disputes. The effort is being spearheaded by Oklahoma Senator Mark Allen, whose company does business in both Oklahoma and Arkansas. He notes that his company's activities are similar in both states, but that rates are about thirty percent lower in Arkansas. 

The article says that only Oklahoma and Nebraska have separate court systems for workers' compensation. They note that Rhode Island assigns workers' compensation cases to its constitutional court system like all other cases, and Tennessee has a "hybrid" system that involves the state's constitutional courts. Though not mentioned in the article, Alabama has a similar process which involves its constitutional courts, and which does not have a separate judicial or administrative hearing process in place. 

Workers' compensation experts Greg Krohm (former director of the International Association of Industrial Boards and Commissions) and John Burton (Professor and member of the National Association of Social Insurance) believed that there is no proof that administrative systems necessarily save costs. Mr. Krohm noted that "there are so many variables" to consider. Professor Burton noted that there are few "judicial based systems left" and so studying the differences would be difficult. 

I do not have any basis to disagree with either Mr. Krohm or Professor Burton. Each is a national leader in worker's compensation, and each has been exposed to a multitude of issues over many years. What workers compensation adjudicators learn, however, is that decisions in workers' compensation have to be made, and unfortunately that is not always the best evidence. Sometimes this is because procuring the best evidence is expensive, beyond the pale of what is justifiable in a particular case. Sometimes this is because the best evidence is simply not available, such as the injured workers' testimony in a death or brain injury case, as was reported by the Workers' Comp Insider in recent years. When we do not have the best evidence, the show must go on, and we instead struggle with making the best decision we can with the evidence the parties do bring to us. 

In this instance, there is some evidence to support Senator Allen's effort. And before we discuss the details of the evidence that is available, it is important that everyone in the debate acknowledge that the ambiguous "cost" may include much that is not measurable in dollars and cents spent by the workers' compensation systems. While it is reasonable to consider those funds expended by a workers' compensation system, it is ineffective to isolate the analysis to those direct impacts.

The Florida Office of Judges of Compensation Claims (OJCC) recently issued the 2012 Annual Report. Statutorily, the OJCC reports each December on a spectrum of metrics, one of which is the cost of litigation resolved. Over the course of ten years, the OJCC has reported (page 18) the "cost per claim" by dividing the OJCC annual budget by the volume of petitions closed over that year. Over the last ten years, the cost per closed petition has been $181.00. The Annual Report contrasts that to civil filing fees in Florida, which range from $55.00 each for small claims to as much as $400.00 for Circuit Court filings. As the report notes, the Florida workers' compensation system cost includes the clerk and adjudication services that the civil courts provide, but also include mediation services that are not afforded by the Circuit system. In short, the workers' compensation adjudication process in Florida is a financial bargain.

The "cost" of the workers' compensation system, though, includes the impact on people in the system. This system is for injured employees and the employers for whom they work. When an accident occurs, the employee is affected through pain, loss of function, loss of income, and more. The employer is likewise affected through loss of the advantage for which they hired the worker. The employee may not be present, may be sporadically missing work for medical appointments, and may not be at 100% when they are present. It is axiomatic that the employer hired the employee to begin with because the employer needed that person, her/his skills, etc. After an injury, co-workers may be tasked to take up the resulting work-load, or the employer may have to hire temporary help to accommodate the absence or decreased attendance of the injured worker. In short, both the employee and the employer face issues following a work accident.

According to some blogs on the Internet, it can take about a year to get a civil case to trial. The web has included predictions in recent years that budget cuts will lead to further delays in civil cases. Court resources may decline, and the demands of the criminal justice system are subject to Constitutional constraints that do not apply to civil litigation. An injured worker should not be subject to such a delay, nor should that person's employer. Policy makers should remember that workers' compensation disputes may be focused on large issues that might be seen in civil lawsuits, such as the compensation for total disability or attendant care for the rest of some person's life. 

However, many decisions in workers' compensation are less monetarily impressive, such as an authorization of a change in doctor, provision of a medical test, or authorization of some discreet treatment such as a surgery. These medical care issues may pale in monetary terms. However, these are critical decisions in the diagnosis, treatment and recovery of an injured worker. The goal of workers' compensation is coincidental for employer and employee. The injured worker wants relief from symptoms and dysfunction and to return to work. The employer wants their employee back with as little residual dysfunction as possible. Unfortunately, there are disagreements in this process. When there is disagreement, the speed of resolution or adjudication is critical. Physicians will tell us that early medical intervention is beneficial and that delays may detrimentally impact the efficacy of care. Delay may likewise negatively impact the employee, who is receiving less than pre-injury wages during litigation, or perhaps no income at all in a denied claim. The employer may likewise suffer economic loss during such delay, in the payment to temporary workers, overtime to coworkers, or training expense of new staff. 

Certainly, there are reasons for delay in decisions in particular cases. Some questions may not be ready for an answer. But when those disputes are ready for an answer, there is a benefit to both employee and employer in a process that is dedicated to their disputes, focused upon their issues, and capable of bringing their disputes to timely resolution or adjudication. In 2006, the Florida OJCC averaged 485 days between the filing of a petition and the beginning of trial. In 2012, the average was 166 days. In 2006, the Florida OJCC averaged 212 days between petition filing and the first mediation. In 2012, that average was just 88 days. Along the way, the OJCC leveraged technology, brought innovation to the attorneys and other interested parties, and deployed multiple processes that enhanced transparency and therefore efficiency. 

The WorkCompCentral article quoted Oklahoma Senate President Pro Tempore Brian Bingman as favoring the change to an administrative process, but saying "the devil is in the details." Isn't it always? I would suggest that those who will study Tennessee and Oklahoma should perhaps focus less on whether there are sufficient "court" states remaining to study, and instead make comparisons that are relevant to their decision. I would suggest that those comparisons are essentially whether costs, in their broadest definitions, can be reduced. This means deciding whether employees and employers will receive more rapid and focused consideration than they receive under the court system. Will the proposed process bring greater transparency? Will the process make the dispute process more efficient, empower litigants to make better decisions and resolve their own disputes through compromise? Will the process deliver all of this at less monetary expense, measured per claim, than the expense required by the court system?

There is plenty of evidence in the marketplace in this regard. Certainly, it may not be the best evidence. However, it is the best evidence that is available.