Thursday, July 28, 2016

Paradigm Shift

Technology is always an interest for me. Recently, I saw a story about a major Internet company shifting their business model. It is worthy of discussion because their motivation may need to be a consideration for many of the rest of us.

Over twenty years ago, a company called Angie’s List started providing reviews of service providers on the Internet. In large part, the service afforded opportunities to rank and rate your plumber or other home repair contractor. Then, when someone was planning more repair or remodeling, they could peruse Angie’s List to see how others perceived various service providers that they had used. 

It was a membership site. So, unlike similar providers in the marketplace, only paying members could access these reviews. FoxBusiness reports that Angie’s List is now shifting its service to a new paradigm, and dropping its “paywall.”

Content is what draws us all to the Internet. There are many interesting things to read, movie clips and photos to view, and a vast spectrum of methods for communication. It is an amazing tool and entertainment forum. For many of us, there was a time that the Internet did not exist. Even after it existed, there was a significant period during which it was used only by academics and researchers. Even in the 1980s, the speed at which data was accessible over phone lines and modems made the experience interesting, but often slow and frustrating.

Creating content can be expensive. News providers are a good example. To have news stories for visitors to read, a website either has to pay reporters to write stories, or pay a provider (like the Associated Press wire) for the right to publish existing stories. News organizations have evolved recently from sticks, bricks, and paper to online purveyors of news and entertainment. This shift has challenged them and their assumptions, traditions, and comforts. 

Some news sites provide their content to consumers free of charge, but laced with advertisements (and you may notice those ads are hitting closer and closer to home as your search history and web browsing tell providers more and more about you). Others operate a pay-to-play format in which the consumer is footing the bill by subscribing to the website in order to access content. Still others have tried to build a hybrid model in which advertisement and consumer fees (subscription) each have a role.

Angie’s List was in this hybrid group. According to FoxBusiness, the majority of the company’s revenue was advertisement-generated. But, membership fees (subscription) still generated revenue, and only those who subscribed could view the information and reviews. This hybrid model is intriguing. People paying to read advertising content. At first, some see this as incongruous, but it is exactly the same model that newspapers and magazines have employed forever. You purchase a newspaper, read the articles, and the advertisers hope you notice their ads laced throughout. Back when I delivered newspapers, there were days that the "inserts" (color ads) were thicker than the paper I was putting them in.

Angie’s List is not a news site, so the “content” tends to be created by users (people like you commenting about what they like or do not about service providers). Certainly, there are costs to build and maintain such a site, but without the cost of reporters, editors, etc. So, what motivates Angie’s List's 21st Century paradigm-shift from hybrid to pure advertisement? It turns out that people are different (go figure), and that generations can sometimes be described with generalities.

The rise of the “Millennial” generation is credited with motivating the change at Angie's List. This group is not precisely defines, but generally they are born after 1980. They are generally seen as a group that became adults after the turn of the century. This loose definition includes a vast population of Americans. They are young, they are consuming, and they are getting marketer's attention. 

Angie’s List has been studying its’ customer base, watching behavior and purchasing. This is something companies have been doing forever. It concluded from its demographic research that “Millennials will not pay for reviews.” These “millennials” spend as much of their money on services, and use the same pool of service providers (plumbers, electricians, painters, etc.) used by other generations. But, 90% of Millennials are unwilling “to pay to access reviews.” And so, this growing segment of the population was likely turning to other Internet options for reviews and advice. 

The people visiting the site (subscribers) were valued by Angie’s List for two reasons. First, they paid to visit, that generates revenue. But also, the price that a platform (a newspaper, billboard, website, etc.) can charge advertisers is related to how many people might see the advertiser's pitch. A billboard on the interstate will cost you more to rent than a similar size billboard on a side road. As they tell us in real estate, “location, location, location.” And location may matter as much in the cyberworld (why do businesses pay Google to have their name appear first in the results of an Internet search?)

So, having visitors to the website justifies the rates its owner can charge advertisers. Coincidentally, it is a bonus if advertisement purchasers can predict the interests of those visitors in advance. The data being gathered across the web, for this purpose, is incredible in itself. Try searching a site for plane tickets to a distant destination. Then surf the net as normal. You will notice that advertisement is now tailored to your proposed trip (hotels, rental cars, tourist attractions in that city, etc.). Your search has allowed some algorithm somewhere to tailor sales pitches just for you. So, for example, knowing you need drywall installer, from your search, might allow Angie’s List to push advertisement on painters to you on future visits.

Angie’s List determined that its’ subscription model had “successfully penetrated over 70% of the digital baby boomer households in the United States and over 50% of the digital Gen X (born from mid 1960s to early 1980s) households in the United States. However, it only penetrated 30% of the millennial-owned households in the United States.” They concluded that Millennials are renovating, remodeling, and maintaining homes similarly to other generations, but they are simply less willing to pay for the review information.

In short, the paradigm of subscription was very accepted by older Americans, somewhat acceptable to the baby boomer’s children (Gen X), and not of much interest to the baby boomer’s grandchildren (millennials). That is not to say that the company was losing money or that its’ hybrid model was failing. The concern was that the company was experiencing less growth in its revenue (all the baby boomers have been born, that “generation,” population is fixed, aging, and not a route to growth; the Millennial generation is expanding daily).

In a larger context, what does the Angie’s List experience teach the rest of us? Well, if no one has told you yet, it turns out that Millennials are different. They have interests and issues that drive their consumption of service and goods. The way they consume news tends to be from social media rather than traditional news sources, according to the American Press Institute. The way they perceive the working world is also different. And business is likely to evolve in order to accommodate their perceptions. Their population is still growing. Their purchasing power is growing. And the way they perceive and consume will therefore affect us all.

This will be true in a variety of ways. Any service provider, professional or business owner will need to pay attention to this demographic and where it is leading us all. I recently had a conversation with a savvy businessman who evolved through the paper to digital shift. He lamented that a website used to be the critical expense for his business as the Internet's influence began to take hold in the 1990s. He says that now, as critical as the website remains, his work on social media platforms has become as critical or more so. Asked why, he explained "young people do not visit websites unless they see the link on" social media. 

The lesson here is simple. There will be shifts in what is effective and productive. This will be true in hiring and managing. It will be true in how we compile and convey information. We cannot make the world cease to change, but if we are to survive in it we will have to learn to accept and harness this change.  

Wednesday, July 27, 2016

At SAWCA 2016 Annual Convention

At SAWCA's Annual Convention in Sandestin today. It has been a morning of technology and innovation. 

Our morning started with a panel discussion led by Jarrod Magan, of Sedgwick. His panelists were Dr. Jill Rosenthal, Dr. Roberty Snyder, and Tammy Boyd. Dr. Rosenthal is with The Zenith. Dr. Snyder is the medical director for Tennessee, and Tammy Boyd is vice president of NeuroInternational. 

The fact is that technology is coming at us all. Mr. Magan's initial comments made the development track of technology more understandable. From a need to a concept, through a period of enthusiasm and growth, to a period of criticism and ultimately a good many developments never make it to the broad market. 

One of his most poignant points was about Pokemon Go. It is a game, a toy, a distraction. But, he notes that there is a growing body of evidence supporting that this game has gotten people up and moving around, which promotes health. Further, it has had a demonstrable benefit for patients with mental health issues. It is getting them out in the community, it is connecting them with other people, and it is thus effecting unexpected and unintended benefits in health care.

Tammy Boyd explained medications that are individualized for each patient. This begins with DNA testing and ends with formulation specifically for that patient. Dr. Rosenthal discussed the potentials for technology to facilitate better and more thorough communication with and among medical service providers. Dr. Snyder also had several comments about communication issues. Then, a conversation ensued between the panel members, engaging the audience, on details of how DNA is involved, tested, and used. 

Dr. Sharon Heise of the Institute for Human and Machine Cognition presented a fascinating program. I have previously written about one of their great achievements, the Running Man. But, the IHMC is doing so much more. She explained technology that is allowing blind people to see. The researchers are using the human tongue and a camera to transmit images to the brain; absolutely fascinating. 

The IHMC is working on medical devices for those with sensory loss. The video presentation on exoskeletons demonstrated how technology and innovation are changing the prosthetic market. There was also a video about the next generation of rover for travel on planetary explorations. Finally, Dr. Heise presented an overview of the robotics efforts that led to the Running man and the IHMC success at the DARPA Challenge. 

The University of Mississippi Center for Telemedicine was represented by Dr. Tearsanee Davis. The Center is focused on delivering both telehealth (broad focus on wellness and care) and Telemedicine (delivery of actual medical services). She described the need is particularly intense in rural America. She described the Mississippi situation in which one "level one" trauma center exists, in the center of the states. This has to be considered in light of another relevant statistic, that most Mississippians live more than 40 minutes from the nearest medical specialist. 

The concept of telemedicine has been successfully applied in various settings. One of note is health care in the Mississippi correctional system. The telehealth concept allows the delivery of medical services without the necessity of transporting patients, and the security concerns that might entail. But, there is also the potential for perceptions of UM competing with hospitals or physicians in the primary care environment. Dr. Davis explained that instead of competing with these providers, telehealth is cooperating with, supporting, and augmenting the local care. 

The focus is non-emergent issues. There are prescription issues, allergies, infections, and other primary care issues that they have determined do not require a full physical or office visit. She explained that this support is now welcomed by physicians providing in person care around the state. 

A great morning of technology and leading-edge developments in our world. It leaves me inspired about where technology is taking us and how the world will be different.  A phenomenally focused and informative morning!

Tuesday, July 26, 2016

How Are People Viewed and Treated?

The news is full of stories about people being labelled. Some are shocking, and there is discussion about the accuracy of others. But in the age of political correctness, there is a periodic public backlash about describing people. This is not new; it is merely more obvious and more easily shared with the Internet at our fingertips 24/7/365.

Recently, a server at the 
All Stars Bar in Rhode Island referred to a patron as “fatty” on his receipt. The patron saw the reference and posted a picture of it on the Internet. The owner of the bar became aware of the notation and fired the server, who also happened to be his son. The owner called the notation “uncalled for and unacceptable.” The bar owner even offered the customer "a $50 gift card" in compensation for the insult. 

The server/bartender took to social media regarding the notation. But, instead of defending his comment, the server apologized: “what I did was immature and I acted without thinking about the consequences. I acted in a way that was rude, childish, and totally inappropriate. Due to my actions, I was terminated, rightly so.” That reaction is perhaps a little unexpected in today's world where nothing is ever anyone's fault or responsibility. 

Insults can go both ways. Another recent story in the news focused on a "a gay server at a New Jersey restaurant." She says "a customer denied her a tip and wrote her a hateful note on the receipt." The server put a picture of the receipt on social media and there was a notable public reaction. The receipt showed no tip, and instead "someone had written, 'I'm sorry but I cannot tip because I do not agree with your lifestyle.'" The server claimed this was written by the customer named on the receipt.

Investigation by a news station revealed evidence that the receipt in that instance was a hoax. The patrons denied leaving the note and produced their receipt copy from that visit, which indicated a tip was left and no evidence of the "lifestyle" note. The reporter did not ultimately conclude whether the receipt was a hoax or not. The alleged victim, however, received tips from people "from all over the world," following the publicity on the Internet. 

These are not isolated incidents. Search the Internet for "insult on receipt" and you will find many examples (and pictures). One that is striking allegedly occurred at a Chinese restaurant in a Washington suburb. A patron offered the server advice based on how she/he perceived the Chinese served food in China. The server took offense and referred to the patron as a "plad (sic)," or plaid (expletive deleted) in the restaurant's computer (called a "point of sale" or "POS" system). The server also made mention of her beliefs regarding the diminutive nature of a certain aspect of this customer's anatomy (this is a family friendly blog, click on the link and read the story for full details). 

The manager of this establishment did not fire the server. Instead, he pointed out that this notation was all in good fun. The manager did apologize to the "plaid" diners, offered $20 gift cards for the diner's "trouble," and removed the "joking" servers from the restaurant's prime dining hour schedule. Not fired, but one might argue there were repercussions. 

Among the examples on the Internet, there are similarities; but there are distinctions among them in terms of the nature of the statements and the reactions of management. It seems probable that these instances will continue to occur and to receive publicity. And how offensive something may be will perhaps vary based on perspective. One re-post of the Chinese restaurant story noted his/her conclusion that insulting the anatomy of the plaid diner "pales in comparison" to other nasty receipt notes. 

These instances, and others that have flowed through my news feed over the years, came to mind when I read a recent American Bar Association article about an administrative law judge deciding cases in the Social Security system. 

It is notable in this discussion that many states have legal privileges that protect notes taken by judges. These are referred to as "deliberative privilege." Essentially, there is a tendency to protect such notes from disclosure so as to encourage judges to take notes. Having conducted thousands of hearings, I can attest to the efficacy of good note taking. Judges sit through hours and hours of testimony. Cases involve many different issues that will have to be decided. And, it is very likely that various witnesses will have different perceptions and recollections of important facts and details. 

With detailed notes, a judge can produce a detailed and effective order. With notes, that can be done efficiently. An alternative employed by some is to instead listen to the recording of a hearing afterwards, and to take notes at that time, as an order is prepared. This is obviously less efficient (hearing all testimony twice), but is as obviously very thorough. Which works best for a particular judge is likely best decided by that judge. 

The Social Security Administrative Law Judge (ALJ) in this story took notes during proceedings. The article mentions that there is a "whistleblower" case ongoing in that judge's office. Perhaps through that legal action, or perhaps because there is no "deliberative privilege" in those proceedings, Judge John Pleuss' notes became very public recently. He referred to individuals appearing before him as (all italics are direct quotes):
one claimant was “very black, African looking woman (actually a gorilla-like appearance),” 

(he) described another claimant as “young, white, female; long brown hair; attractive; looks innocent.” 

Others were deemed 

“buxom,” “obese” or to be wearing a “skimpy black top.”
The result of these notes has been that Judge Pleuss is no longer hearing cases. A judge who cannot hear cases may not be much of an asset; hopefully the office has found other productive work that he can perform while our tax dollars pay him, despite his ongoing issues, and the ongoing investigation by the inspector general. 

The publicity of Judge Pleuss has apparently generated some attention. The ABA mentions that management has placed an "armed security guard . . . in the Madison office since June 20 to ensure safety." There is apparently some premonition or fear of anger or altercation stemming either from the general office atmosphere or the existence or publication of these notes. 

Although Judge Pleuss could not comment for the ABA story, the "president of the Association of Administrative Law Judges" "said Pleuss’ interview notes were 'shorthand descriptions' he used to jog his memory about the cases, and they had been taken out of context." This explanation might make some sense. Names and perspectives might become confused in a trial involving many witnesses. I have often used titles, jobs and even relationships in my trial notes. For example, someone might be "co-worker," "supervisor," "neighbor," "wife," "HR manager," "plant nurse," etc. This does help one to remember how someone is involved in a dispute. 

But, this explanation does not explain why someone's race, gender, or "innocence" is helpful or even appropriate. Comments on how individuals dress, wear make-up, style their hair or other personal attributes similarly seem to likewise lack any relevance, and to may will simply seem inappropriate. I know I do not want to be referred to as the "fat guy," the "balding guy," or the "guy with big ears." See, I know I'm not pretty and I do not need to be reminded of it. 

The story notes that "Judge Pleuss regrets ever writing these notes,” according to the Association president. And most would likely agree that he should regret it. Is there a difference between a waiter's note on a receipt and a judge's notes about an interview or trial?

I would suggest that there is. The behavior of judges is held to a higher standard under the law. Some argue that this is not fair, but the fact remains that our society expects certain behavior of its judges. The foundational belief is that American's faith in and respect for our adjudicatory system is dependent upon judges acting appropriately. To this end, each state has a Code of Judicial Conduct. Florida's is here

The American Bar Association has a "model code," expressing what their collective wisdom believes should be in such codes adopted by the states. Much of what states adopt comes from this model. Canon One of the Mode Code says (italics are direct quote)

A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.


A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

These Codes set a high standard for Judges. Judges must act and speak appropriately. They must make the public confident that the bench has integrity and is impartial. If a judge is impartial, what possible reason would justify irrelevant, and insulting notes about race, gender or appearance generally? But, the most difficult Code provision is the one that says judges shall avoid "the appearance of impropriety." In other words, the judge has to strive to both be appropriate in her or his actions, and to have the public perceive propriety. Thus, behavior is measured by both objectivity, the judge should do the right thing, and subjectivity, the public should perceive proper behavior. 

Are these difficult standards? Most certainly so.  In fact, the ABA comment to this Canon of conduct says (italics are direct quote):

A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.

The Code is intended to be a burden. The burden is to be expected when assuming office. The burden is to be freely accepted. It is not fair perhaps, but it is part of taking the job (I am so glad I do not have to wash my hands every two minutes like doctors; but they know that going in, it is part of being a doctor. It is their burden, freely taken as part of their decision to be a physician). 

It will be interesting to see how the inspector general concludes this investigation in Madison. Will it conclude that Judge Pleuss' behavior warrants discipline? Should he be fired like the bartender who called a patron "fat" or given different assignments like the server who labelled a customer with an epithet and insulted his manhood? Or, will Judge Pleuss be held to a higher standard, to live up to the Code and to maintain faith and belief in our adjudicatory process? Time will tell. 

Just to jog your memory (and to make this easy to find in the future using Google), this post was written by an old, balding, fat judge with big ears and an odd disposition to colliloquy in his writing.

Sunday, July 24, 2016

Greedy and Stupid in the News

A California attorney has testified regarding a large workers' compensation scandal involving workers' compensation. That testimony recently became public and is causing some discussion. His testimony illustrates problems in this industry, driven by greed and poor character. Some will say greed and fraud are old news. However, stories like this are cautionary tales and they remind us all of the perils that may confront us. 

Attorney Sean O'Keefe admitted to bribes, according to news sources. That in itself is newsworthy. But his crimes are making headlines in part because Mr. O'Keefe is said to be publicly known in his community. His advertising has apparently made him a recognized and familiar figure in California. His website advertisement stressed that he "put injured workers’ needs first." However, it appears that instead he put himself first, focusing on his income and his needs. 

This story says that Mr. O’Keefe paid for referrals to his law firm. And, he made sure his clients "ran up bills at certain medical providers." His clients underwent "MRIs, sleep studies, psychology, medications and toxicology screenings" not because they were demonstrably reasonable or medically necessary, but because those services generated income for medical providers, and those providers engaged in the process of making sure Mr. O'Keefe had clients. They all appear to have looked out for each other and their "bottom lines," instead of looking out for those who came to them for help. How is this best described: "quid pro quo," "you scratch my back, I'll scratch yours," "one hand washing the other?" 

Whatever metaphor is applied to describe this, the article says that in California "injured workers are used for profit." That is troublesome. People are not commodities. We do not exist for people to make money from our pain. We will all have problems, injuries, and illness. The point of medicine is to treat those conditions, by doing what is best for the patient. Doctors, lawyers, or anyone are inappropriate when they use people's pain and misfortune focused on maximizing personal profit.

Essentially in this scheme, a quasi-legal firm called Centro Legal (Center Legal) would recruit clients and make the referrals to attorneys. The attorneys would seek care or seek payment for care already rendered. In California, workers can seek care from physicians and other medical providers. The providers perform services that they deem necessary and later file "liens" in the state workers' compensation adjudication system, themselves seeking payment for their services. Critics say that this system "has allowed questionable providers to reap millions for medical care that otherwise would go unpaid." 

This referral firm marketed by promising workers "they could earn up to $4,000 per month if they were injured at work," apparently indiscriminately passing out business cards  or flyers that said this. The firm would then refer the workers to attorneys like O’Keefe. Centro Legal apparently told the attorneys which medical care provider the workers should consult. Those providers made money and made referrals to other involved providers for medical services or diagnostic studies. 

Similarly, medical care practitioners in this scheme would apparently also refer their patients to Mr. O'Keefe so that they could pursue workers' compensation representation. Knowing he was acting inappropriately, Mr. O'Keefe testified he “'spread the clients around a little bit' so workers’ compensation insurers wouldn’t cry foul over his practices." 

This model apparently brought O'Keefe many clients. He pursued claims on their behalf, for his own gain. It brought him "$1.1 million a year representing injured workers, mostly by collecting a 15 to 18 percent fee from the settlement of their injury cases." 

In a grand jury appearance last December, Mr. O'Keefe acknowledged his culpability and testified that he "was greedy and stupid.” Mr. O'Keefe has already pleaded guilty in a federal case. He admitted to "health care fraud and agreed to cooperate with prosecutors in hopes for a more lenient sentence."

The medical services could be almost anything. One oft-discussed has to do with medications. In another California case discussed in that article, a group of co-defendants are accused of fraud. Allegedly, they mixed medications costing about $20.00 into a cream and billed workers' compensation about $5,000. This "compounding" is allegedly engaged in to avoid fee schedules and other regulatory constraint. That is about a 25000% profit (well, before you pay the bribes to the doctors that sign the prescriptions to explain the exceptional need and to justify it). The news from California suggests that this is not uncommon and describes another similar case involving charges made against Medicare and other healthcare plans. 

So, what happens to Mr. O'Keefe? He is disbarred. Even in California is it unlikely he will ever be readmitted to the bar. California has a reputation for being a forgiving bar. Some perceive that it affords a location of second chances for attorneys. But, it seems likely that active fraud like this will mean the end of a legal career. 

Shortly after the California story, news hit of a medical scheme in Florida. Fox News Reported the Justice Department charges three in $1 billion Medicare fraud scheme. This fraud scheme is said to involve Medicare and Medicaid billings exceeding $1 billion. Yes that "billion" with a "B," right here in Florida. This scheme is said to involve "a network of doctors, hospitals and health-care providers across South Florida." 

Similarly to the California situation, the principals of this Florida conspiracy are alleged to have "paid and received bribes and kickbacks to get thousands of patients admitted to facilities" (emphasis added) in order to benefit the principals (the consipirators). Then, the patients "were often given medically unnecessary and sometimes harmful treatments, which were then billed to Medicare and Medicaid." The Florida principals deny wrongdoing and apparently look forward to their day in court.

There is a symbiosis between lawyers and doctors. Each is a noble profession. Each is a profession that can bring relief to people, can help people. But, the professional focus has to remain on those people, and their individual best interest. The focus of these professions cannot be on maximizing profit, particularly when this works to the detriment of the everyday people involved. 

Where has this industry seen this? It has appeared in diagnostic testing. There was a time when doctors were seemingly infatuated with referrals for thermography. The practice has decreased in recent years, as some have declined to pay for this testing. There was some perception, even when the testing was popular, that the doctors who found this testing compelling were doctors who owned thermogram machines. 

There has been a perception in physician dispensing. Some believe that doctors who dispense medications in their office, and thus profit from the dispensing, write more prescriptions than other doctors. The question is asked, why are patients more likely to receive a higher volume of prescriptions when the doctor dispenses?

In the first decade of this century, spinal fusion rates increased 70% in America. Some allege that a portion of these surgeries are "unnecessary and potentially dangerous." Data in a recent study reported by CBS News supports that "a small group of doctors performed these procedures far more frequently than their peers." This article concedes that there are appropriate cases for spinal fusion, but that some of the high-volume providers may be performing ten times the surgeries performed by the national average. It notes "there is also a financial incentive to performing a spinal fusion. It can earn a surgeon thousands of dollars - and five times as much as less risky alternatives."

These are examples. And, while there are doubts and concerns created by various procedures, testing, patterns and trends, in the end the real focus should be this particular human being. What is in the best interest of this person? That focus should be considered, extensive, and honest. Is the diagnostic testing for this patient going to make a difference in reaching conclusions? Is the medication necessary for this patient to relieve symptoms or improve function? Does the surgical procedure make sense for this patient, and do the odds in this case favor the treatment in this case? In each of these, is the patient well-informed of the probabilities of success and the potentials for detriment or side effects, complications, or other harm?

When people become commodities, society has a problem. When profit becomes the singular core motivation, people are likely to be harmed. Individuals can be harmed through the process directly, undergoing procedures which are inappropriate, unnecessary and potentially damaging. But, it causes a greater harm to other individuals who really need diagnostics and care. They may face skepticism and delay, because some test or procedure is inappropriately over-recommended. In the forest of such a practice a patient may struggle to focus payer attention on their individual tree. 

Worse, resources are limited, including time. Only so many people can undergo any medical test in a given day. Testing requires equipment and personnel. Anyone undergoing an unnecessary test or procedure is taking the time and resources that might otherwise be used by someone that legitimately, and perhaps urgently, needs the testing or care.

So, conflict occurs. Doctors make recommendations and referrals. Authorization for that care may be denied in some settings. Care may be provided without authorization in other settings. Payment or authorization may then be sought in the legal system, with zealous attorneys presenting both perspectives on those questions, and judges may be asked to decide who gets care, what care, who is reimbursed, etc. As an aside, litigation is rarely an efficient process. It requires time, patience, intellect, focus and more. 

There are difficult questions presented. Do attorneys (on either side) make referrals to, or insist upon, certain doctors because of their perception of what that doctor will or will not recommend? Do doctors make referrals to specialists or facilities because of their perceptions of what outcomes are likely? Do physicians recommend performing certain procedures because of financial gain? Are incentives misaligned?

The answer seems to be that some attorneys, some doctors and some other professionals act inappropriately. Those who misbehave make our world harder for the rest of us. They raise skepticism, they consume resources, and periodically they make the news. By their actions, they unfortunately color the rest of us similarly, and impact the way in which all professionals are perceived in this system called workers' compensation. 

It is troubling when the "greedy and stupid" harm people, harm processes, harm systems, and harm us all.

Thursday, July 21, 2016

Single-Payer Lessons from Vermont

Recently, I outlined plans in Colorado for a "single payer" system. They are considering creating a mandatory, state-run, health insurance program. The costs are significant. After the post ran, a reader inquired "have these people heard of Vermont?" That pointed me to some additional discussion of single payer, which might be worthy of review. 

The simple fact is that when injury or illness occur, someone has to pay. This is not necessarily in the financial sense, but it can be. Staying out of the financial analysis for a moment, it is possible for the injured or sick person to receive no care, and there is some population of Americans that live in this paradigm. They receive care only in emergency rooms, and always at someone else's expense. This case is unlikely to be extensive and rehabilitative, more likely to be limited to stabilization. In the event of minimal or nor care the "cost" may not be financial. It can be a cost in the quality of life, and in the most severe instances, it could be life itself.

But, the focus of single payer is more on financial cost. In that accounting debate, the issue is driven by the socialistic nature of America's medical system. It is intriguing to hear people debate whether socialized medicine is the solution for America, when the fact is that socialized medicine is here. The legislators of this country decided long ago that the law would mandate care, of some degree, for everyone. 

Their decision, arguably not well thought out, and perhaps poorly implemented without consideration of unintended consequences, places a notable burden on American hospitals and urgent care. Many have criticized this effect. Some lament that American socialism has not done a better job with providing full and free access to primary care. Others criticize government for being involved at all, and think our current socialized system goes too far. 

It turns out that Vermont was the first state to try single payer. They were apparently sold on the idea by some of the same intellects that brought the rest of us Obamacare (remember, cheaper premiums, lower deductibles, you can keep your doctor, you can keep your plan . . .). But single payer failed in Vermont despite its purportedly liberal populace, strong legislative support, and the steadfast commitment of the state's governor. 

In December 2014, Forbes Magazine published Six Reasons Why Vermont's Single-Payer Health Plan Was Doomed From The Start. It documents the demise of Vermont's single-payer experiment. Apparently, by 2014 the planned program had been on life-support for some time and the governor elected to "pull the plug" and let it pass with dignity. 

No one can argue that Vermont was not warned. After the well-paid consultants and the contractors outlined and described the plan, critics of single-payer claimed that such a "mega-system will inevitably lead to:" (italics are direct quotes) 

coercive mandates, 
ballooning costs, 
increased taxes, 
bureaucratic outrages, 
shabby facilities, 
disgruntled providers, 
long waiting lines, 
lower quality care, 
special interest nest-feathering, and 
destructive wage and price controls. 

Some fairly critical comments. The consultant architects of the Vermont plan condescendingly disagreed ("was this (list) written by my adolescent children by any chance") with those concerns, yet offered no substantive response. They cavalierly ridiculed, but did not apparently provide proof to refute the criticisms. Instead, they promised significant cost savings and the Vermont legislature mandated that the state begin its journey to single payer; mandated that they figure out how to finance it. A poetic quote from the governor bears mentioning. He said that “if Vermont gets single-payer health care right, which I believe we will, other states will follow.” 

The ultimate outcome is clear. Setting out to build better care, the Vermonters and their consultants failed miserably. After investing years in single payer, they abandoned it. and Forbes says that six reasons explain their failure. 

First, the implementation of the Vermont plan would be expensive. Forbes says this was actually two flaws, the plan would "cost more by covering more people" and "it would cost more by forcing everyone to obtain more financially generous coverage than people currently have." So not only would everyone have to be covered, as Colorado is currently planning, but they would have to be covered with policies that are beyond what most consumers have chosen to buy. Imagine the government mandating that every American own a car, and while we are at it we will mandate that they are all Mercedes? 

Second, the state would have to find revenue to fund the program. Colorado's plan is a ten percent tax on all income in the state. Depending on how one calculates, that could be about a 33% tax increase on Coloradans. The impact in Colorado seems likely to benefit businesses and cost the insured individuals more. I have hypothesized, once ColoradoCare is in place, the costs may rise beyond the initial 10% estimates. The plan in Vermont "would have required a 160 percent tax increase." Some recent predictions are for American medical costs to increase at a 6% annual rate for at least the next 5 years. The government has lower estimates. The Vermonters similarly projected costs and calculated revenues. Then they accepted that their single payer system would require literally huge amounts of revenue. 

Third, despite the cost and coverage expansions, the Vermont plan would have ultimately delivered less services. Some contend that the government there would have soon been deciding "whether or not you should be allowed to have that knee replacement or that mammogram." The program also had significant patient participation costs (co-payments and deductibles). Though "everyone" would be insured and there would be coverage for all, high deductibles of up to 40% could have been a discouraging factor in actually obtaining care.

A visit to the doctor billed at $100 could cost the patient as much as $40. An outpatient surgery cost of $5,600, however, might cost the patient $2,240. How many people really have that kind of money sitting around? Having insurance is a benefit if one can afford to use it. But if you lack the money to pay your deductible, your share, you might just forego that surgery anyway. If the "co-pay" or "deductible" cost prohibits care, you are right back to the "somebody has to pay" discussion above, and the payment is potentially not in money but in suffering, lost productivity, etc. 

Fourth, it turns out that neither hospitals or insurance companies liked the single payer idea. Well, the insurance companies are pretty easy to understand. Just imagine the government stepping in and both offering the product your business sells, and mandating that everyone in the state buy from them instead of you; a literal "no brainer." But the hospitals did not like it because the plan would require them to be paid less for their services. Doctors would also be paid less.

The current system of medical care is an accountant's dream. It is so complex and intricate that only an accountant could figure it out. Hospitals today charge some patients more (because they can) and some insurers pay more, while other payers like Medicare and Medicaid pay less and still others like workers' compensation perhaps pay double. For the same service, no predictability or certainty about payment. But, with so many payers and with a great deal of flexibility, there is room for maneuvering. If there is only one payer (with a few scoflaw patients still presenting for care without even the single payer coverage) the maneuverability is perhaps gone, or greatly diminshed. Perhaps the hospital will be paid the same for each particular procedure it performs. Forbes predicted that reimbursement to hospitals would have decreased 16%.

Single payer, touted as a path to greater coverage, in Vermont turned out to be an expensive path to a destination where many would be worse off than before. Some are motivated to such socialism in hopes of raising the status of those without resources. The goal is more care, more benefit for the underpriviliged. What some seem incapable of understanding is that in any resource distribution system, more for someone means less for someone else. The single payer program in Vermont was designed so that a population would receive less, in benefit, in coverage, etc., so that another population could be provided more. A race to the lowest common denominator. 

Fifth, the consultants made some arguably significant math errors. They expected or anticipated millions in federal subsidies for their system. But when the math was finished, their financial predictions had missed the mark by hundreds of millions of dollars, according to Forbes. So, the tax implications discussed above, the 160% increase, turned out to be an understatement. Still more revenue would be required, to cover the absence of initially mis-predicted funding from Washington. 

Finally, Forbes points out that state plans of any kind are too dependent upon the federal government. The U.S. government is the largest payer of health claims through the socialistic Medicare and Medicade plans (not to mention military, veteran and other medical programs). The Federal government also provides tax incentives to individuals and business that encourage the purchase of health insurance. Forbes says these tax code incentives or subsidies are worth "$500 billion a year." The interdependence fostered by these federal programs is complex and pervasive. In the end, for Vermont, they were simply too daunting.

And, Forbes suggests, the state could not "prevent people from getting private health insurance in neighboring states like New Hampshire." There is perhaps less danger of that for Colorodans because they will be forced to buy ColoradoCare like group health. Their "purchase" will look more like the Federal Insurance Contribution Act (FICA) that funds Social Security, Medicare, and Medicade. But in either scenario, there will be some population that does not contribute and yet still required medical care. In a state the size of Vermont it would be feasible to move to a neighboring state to live without state mandated coverage. Who would move, the poor or the rich?

So, after significant investment of time and money, Vermont pulled the plug in 2014. Vermont Governor Shumlin commented that the single-payer concept presented untenable risks of: "economic disruption" regarding "small businesses, working families, and the state’s economy.” Having worked since 2011 to build single-payer for Vermont, and having invested untold volumes of state money, single payer was abandoned. The winners were apparently those who advocated the new system. Despite its ultimate demise, those consultants were paid handsomely by the state to develop it, before the plug was pulled. 

Forbes says Vermont's plan was a waste of time and resources. It says that single payer as designed and proposed there was "something that attempted to refute the laws of arithmetic." The Vermont plan attempted to force residents to pay higher taxes and buy "more generous coverage," while convincing hospitals to and doctors to "to accept pay cuts." In short, it offered detriment after detriment. In its defense, it was consistent in that it was apparently uniformly bad for everyone involved. So Vermont pulled the plug. And now some wonder if it was the Vermont plan itself, and not the criticism, that "was written by . . . adolescent children." 

Forbes concludes that single payer is not feasible. It says there are too many forces arrayed against it. The forces are entrenched, savvy, and powerful. There is too much money at stake in the systems. And yet, Colorado voters will have the opportunity to vote on wading into the pool into which Vermonters dipped a toe. This will be interesting to watch.

Monday, July 18, 2016

We've Lost a Leader and a Friend - Rest in Peace David DePaolo

I was at the Florida Association of Self-Insureds (FASI) on Monday. It was a hectic trip, exacerbated by an excruciatingly early departure, a delayed flight, a malfunctioning GPS, and an arrival at the podium literally two minutes before my time to speak. It is always fun to speak at FASI, though and well worth the effort.

Afterwards, I stepped out of the room to share a few words with a fellow attendee, and noticed a couple of messages on my phone. I returned the calls as I headed back north, and I was kicked in the gut by the news that David DePaolo had passed. I have known David for about ten years. He was a fellow techy and we have spent hours discussing electronic filing, legal process, procedure, and workers’ compensation generally.

I've always admired David's entrepreneurial spirit. His enthusiasm for the law generally, and for Worker's Compensation specifically, were inspiring. He was the driving force behind WorkCompCentral. He instigated the CompLaude awards. He was a fellow blogger, an enthusiastic student of the law, and a consistent cheerleader for everyone trying to make a difference in the market.

David had an amazing way of cutting to the chase, with great precision and frank bluntness. One of my lasting impressions of him will be from the National Conversation Summit in Dallas last May. Due to other commitments, David was late. He appeared only on the second day. Here he was at a business meeting among luminaries of workers’ compensation, wearing some of the loudest colored running shoes I've ever seen. He explained them to me on a break, but did not have to. His Depaolo’s World blog was one of my regular stops. 

Having missed day one of the Summit, and I suspect some sleep to get there, David was behind the curve. He worked hard to catch up. More than once he defused a tense moment with one of his quips. David could always make people laugh. Sometimes with what he said, but often just by the way he said things. 

At one point, in classic DePaolo style, he redirected our efforts. I was trying to put some notes on the overhead screen to discuss and he looked at me and said "I guess I really just don't know what we're doing here." He then succinctly described his frustration with that moment’s process, and suggested some other routes to our end goal. He was good at that, pointing out incongruity, suggesting alternate methodology; analyzing without being critical or harsh. I had seen that modus operandi before, it was typical DePaolo.

I'm told that he passed while riding his motorcycle. I find some solace in that. In all of the time that I have known him, I believe he was never happier than when he was writing, flying his airplane, riding his bicycle, or enjoying his motorcycle. Last year he rode motorcycles through Italy with his son.

I envied him his passion, his focus and his joy in life. He had a certain joie de vivre that was hard to describe, but which was infectious. You could not spend time with him without being inspired, motivated, invigorated to the task of making a better industry. Every time I spoke with him he was enthused about something, brainstorming a new idea, questioning the status quo.

It is hard to lose a colleague. It is difficult to lose a kindred spirit. It is hard for an industry like ours to lose anyone with the kind of passion and intellect the David DePaolo brought to the table. But as I headed north on I-75 from FASI, I selfishly lamented losing a friend. In the end, that is how I will remember him.

Rest in peace David, and peace be on your family through this time.

Sunday, July 17, 2016

An Inclusion Debate with Interesting Implications

New Mexico has an interesting distinction in their workers' compensation statute. There is no coverage for farmworkers. The appellate court in New Mexico deemed this unconstitutional about a year ago. The New Mexico Supreme Court was asked to review the matter.

On June 30, 2016 the Supreme Court agreed that this provision of the law is unconstitutional. The decision came in Rodriguez v. Brand West Dairy, and Aguirre v. M.A. & Sons Chili Products. WorkCompCentral reported in a July 5, 2016 story that the appellate court's decision was "almost exactly one year ago." The appellate court focused on the distinction and concluded that "there was no longer a rational basis for the exemption." The exclusion of agricultural workers had been "part of the Workers' Compensation Act for almost 80 years."

The Supreme Court opinion follows a somewhat different analysis, focusing instead upon equal protection under the law. This is an interesting course, as the equal protection clause of the United States Constitution is focused on discrimination, or disparate treatment, based upon suspect classifications such as race or national origin. The Court's analysis is not clear on how disparity based on employment choices rises to the same level, or how it is subject to equal protection. One New Mexico justice dissented, asserting that this legislative decision is not an equal protection violation. 

I have previously noted that this effort by New Mexico farmworkers to get "into" workers' compensation is a interesting juxtaposition to Florida workers' efforts to get "out of" workers' compensation. There have been a variety of cases in which injured Florida workers have sought to avoid the constraints of workers' compensation in cases like Florida Workers' Advocates v. State of Florida (hereafter "FWA"). 

The decision of the Court creates coverage for employees back to March 30, 2012. The appellate court concluded that this date was appropriate because, according to WorkCompCentral, a trial decision on that date "put the WCA on notice that the exemption might not pass constitutional muster." That conclusion, in itself, is very interesting. This reasoning by an appellate court is essentially "when you suspect there could be a problem, you should act." 

The New Mexico Supreme Court concluded that this "retroactive application" was inappropriate. It concluded that its re-write of the New Mexico statute would apply only prospectively, that is after the Supreme Court mandate. The Court noted that employers had "relied on the statutory exclusion," and should not be prejudiced retroactively for that reliance. 

It is worthy of discussion that "ex post facto law" is forbidden by the United States Constitution. Article 1, Section 9, Clause 3. Specifically, this prohibition is directed at criminal prosecution. The logic is simple. Prosecuting someone for an act which was legal at the time is seen as tyrannical. The same logic, however, can be effectively applied in this context also. 

Workers' compensation is a social and legal contract. Workers and employers have engaged in a "mutual renunciation" of rights by entering this contract. Employees that are covered by workers' compensation generally have given up their rights to sue their employer, and thus access to the civil court system, the process inherent there, various descriptions of damages, and the right to trial by jury which many states afford (the right to jury in the U.S. Constitution is a right in criminal, not civil, litigation). 

So, a significant population of New Mexico agriculture employees enjoyed access to civil courts, rights to a jury, potential entitlement to civil damages. Some may even have been suing their employer at the same time that the claimants in Rodriguez and Aguirre were seeking inclusion and workers' compensation benefits. These other workers, seeking civil damages, might well have been happy with their civil justice access. Certainly, that potential is consistent with the desires of the workers in FWA, preferring civil litigation to workers' compensation. For the appellate court to erase those workers' rights to avoid workers' compensation, retroactively, was inappropriate, poorly reasoned, and inconsistent with the concepts of liberty upon which America was founded. 

So, beginning in 2016, agricultural workers in New Mexico are covered by workers' compensation. There will be employers who are troubled by this change. Workers' compensation is a cost of doing business. In one paradigm, this cost is the premium for workers' compensation insurance. In the self-insured paradigm, it is instead the cost of paying benefits. But it is a cost. And the more people (payroll) that is covered by the system, the higher the premiums or other costs will be. 

There are likewise employees who are troubled by his expansion. There is some population, proven by FWA and similar cases, that prefer not to be covered by workers' compensation. And these workers are now a part of the system despite their individual preference. Certainly, the decision brings greater consistency. Consistency is sometimes an desirable end in itself. 

WorkCompCentral notes that agriculture exclusions remain in other states, including: Oklahoma, "Arkansas, Indiana, Iowa, Kentucky, Georgia, Kansas, Maine, Missouri, Nebraska and Wyoming." 

Florida has a broad definition of "employee," found in section 440.02(15)(a) Fla. Stat.:
“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors." 
This would seem to put Florida in the category of providing "equal" access to workers' compensation, as the New Mexico court has legislated. But Fla. Stat. 440.02(15)(d) says that “Employee” does not, in certain circumstances, include: 
"A real estate licensee; Bands, orchestras, and musical and theatrical performers, including disk jockeys; An owner-operator of a motor vehicle who transports property under a written contract; A person whose employment is both casual and not in the course of the trade, business, profession, or occupation of the employer; A volunteer; Persons who serve in private nonprofit agencies and who receive no compensation; Volunteers participating in federal programs established under Pub. L. No. 93-113; Any officer of a corporation who elects to be exempt from this chapter, An exercise rider; A taxicab, limousine, or other passenger vehicle-for-hire driver; A person who performs services as a sports official for . . . interscholastic sports, Medicaid-enrolled clients under chapter 393." 
But what if a real estate licensee (one, not all), or a band member, sports official, owner-operator or exercise rider decides that she or he wants coverage, just as Rodriguez and Aguirre did? Should that one individual's preference to participate in workers' compensation in Florida override the will of the others? When legislatures pass laws, they do so as the elected representatives of the people. They hold hearings, listen to the public, consider multiple perspectives and potential impacts of their decisions. They make compromises and strive to effect fairness among competing interests. 

When parties litigate, they espouse the perspectives in their interest. Certainly, it is rare that a case proceeds with only one perspective presented (unless that party fails to provide notice to those who are sued, which does happen). Courts strive to interpret legal concepts like "equal protection" as espoused by the New Mexico Supreme Court. They do so in a far narrower process, without public testimony and perhaps with no opportunity to consider what is in the best interest of the larger population. 

Their myopic actions in this manner might thus result in a world in which legislative authority to make law will simply fail. The three branch system of government will perhaps evolve to two as the executive branch increasingly dictates by order and the courts increasingly legislate by fiat. This will seem problematic to some. Those who think that such change is impossible perhaps need to look around.

Thursday, July 14, 2016

The Conversation, Interests, and Compromise

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

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

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

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

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

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

Third Priority Group 
Lawyers in the system 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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