Tuesday, July 31, 2018

Big Data in Health Insurance?

National Public Radio (NPR) is sounding the alarm regarding big data. It reported on a recent gathering of health insurance professionals in San Diego last June, in Health Insurers Are Vacuuming Up Details About You — And It Could Raise Your Rates. I mentioned the story and its implications to a few recently, trying to gauge their impressions. Reactions ranged from "that's alarming" to "NPR is always sounding an alarm about something." There are those who take NPR as undeniable truth and those who simply do not find it credible. Only you know where you are on that spectrum.

But for the sake of argument, its reporting may at least provide a foundation for discussing the implications of data harvesting and privacy. The news has been full of privacy stories recently. Revelations about who has access to our information, and to whom they are selling it, have become a commonplace staple recently. In response, the Europeans have tightened privacy, as has California. Privacy, it seems, is a serious concern to many. 

According to NPR, there is a potential for health insurers to make decisions based upon "social determinants of health." It contends that it is not only possible, but practical for everything you buy, eat, or do to be monitored in the modern world. NPR contends that information such as education level, marital status, gender, and race might all be known to your health insurer. Facts such as gun ownership, gym membership, what magazines you subscribe, and how often you change jobs might also be of interest. And, it asserts that all of that data might be used to "help determine how much you pay for health insurance."

NPR says that industry (data brokers who collect and then sell your details) "are tracking your race, education level, TV habits, marital status, (and) net worth." In our digital age, all of this information is apparently reasonably easy to accumulate, aggregate, and dissect. We voluntarily use loyalty programs at retailers, trading some anonymity for a discount on some products. We shop online and allow those retailers to know much about us based upon what and how often we purchase. 

Those are perhaps reasonably obvious. But, NPR contends that more subtle things may also be used. For instance, a woman with a name change might signal a new marriage that some database could equate to a probability of "a pricey pregnancy," or alternatively "maybe you're stressed and anxious from a recent divorce." Is our weight changing (buying larger clothes)? Is our income level increasing or decreasing (implicate our food or fitness choices)? Are we a minority? What are the characteristics of our neighborhood? NPR contends that these and more might be stereotyped and used by the supercomputers.

Potentially, all of these and more have implications for our health. Or, they may just somehow be linked with healthiness in some computerized analysis. They may predict what health issues we are likely to face. Of course, from a separate set of data, insurance companies are already familiar with the costs and variants of treating such potential health issues. Thus, knowing the cost of an outcome, and predicting the likelihood of that outcome are two important variables in an equation predicting cost. That prediction might mean we can buy coverage or not, and it could effect price.

NPR's perspective is that there appears no denial that insurance companies are accumulating and using data about us today. It explains that some companies admit they are doing so, and explain that their use is benevolent. They say that by studying the person, they may "spot health issues," and thus be prepared to assist their clients "so they get services they need." Some companies are reported to currently decry that such data would be used in determining the pricing decisions regarding health insurance. However, it appears that some believe that such implications are at least possible. 

Our immediate reaction may be that our health data is protected. There are federal and state laws that protect our medical records. Anyone that has been to the doctor is familiar with the raft of forms that must be signed regarding those records. I even met a patient once that had attempted to read all of those forms prior to signing (sarcasm). Truly an ambitious undertaking. However, NPR warns that the data being employed is not from our health records. It contends that instead data is being harvested from public information available on the Internet. 

There are multiple concerns in the pricing debate. First, there is concern, discussed above, that personal information would be used in setting prices based upon assumptions as to the manner in which the way we live might be predicted to impact our health. Second, there is a concern that some information gleaned about us from the Internet might be inaccurate about us individually (there was a funny parody ad that featured people concluding you can't put anything on the Internet that is not true - too funny). Third, there is concern that anecdotal relationships between fact and prediction may be inaccurate presumptions about larger populations. And, finally, there are those who see the potential for discrimination based upon this information. 

Well, in case you did not know, car insurance companies have discriminated against people for years. Gender has been a fact that they consider in setting rates. As a result, it is likely that a female will have lower automobile insurance rates than a male. In fact, CBS News Miami recently reported that a Canadian changed gender, from male to female, to enjoy the insurance savings that comes from the assumptions insurance companies make about gender and driving. Might someone change their identity otherwise in pursuit of savings?

NPR explains that there are various companies involved in this "data mining" business already. Some are large and others just beginning. Reportedly, one already has data sets encompassing "150 million Americans going back to 1993." And, they are purportedly monitoring your social media, gathering data on you from your online interactions, searches and interests. 

There are those who believe insurers will use this landslide of data to sift and select those that it will insure. NPR calls this "cherry picking," and asserts that insurance companies have practiced it "historically." It suggests that this practice will continue, but that the available data in both breadth and depth will enhance the manner in which, and perhaps success of, the selections are made. 

I have written about the implications of Ross, AI and the new Paradigm Coming. Artificial intelligence is intriguing. Once relegated to the back bench of science fiction, AI is rapidly becoming science fact. Ross is a legal research tool built on the IBM Watson foundation. Remember Watson beat humans on Jeopardy some years ago? NPR reports that IBM is using the same learning, evolving, artificial intelligence to assess socioeconomic factors for insurance companies. 

The implications of such tools may give us pause. It might be used to identify people who present significant loss risk. However, the analysis might instead focus upon demographic or geographic groups who are seen as either injury or disease prone. NPR quotes one source suggesting that living in the wrong place could cost you money. That thought reminded me of Elaine (Seinfeld) struggling to have food delivered from a particular restaurant. Remember when she asked a man if she could use his apartment to fool the restaurant into delivering to her? Might one conceal their address to similarly affect insurance pricing?

Some of this data connectivity may seem pretty obvious. For example, someone who purchases cigarettes might find it more challenging to buy health insurance. But, as these databases grow in both the volume of people tracked and the health outcomes observed, a variety of changes might be seen. For example, it may turn out that people who subscribe to the New York Times are seen over a period to be more or less likely to require various medical supplies, visit some particular type of specialty, or undergo some procedure. That relationship between reading material and health consumption may be at once entirely accurate and entirely coincidental. However, some logarithm may nonetheless conclude that reading the Times is (good or bad) for your health, and adjust pricing accordingly.

NPR says that it will spend coming months addressing various aspects of this developing story. It will be curious to watch, regardless of your perspective on NPR and its cohort ProPublica. Whether you are inclined to trust these or not, the subjects of privacy and data harvesting are real. There is indisputable, admitted, evidence that things like gender have influenced insurance decisions in the past. Thus, the real questions likely do not include "will information about me be used to determine coverage and cost?" The real questions, instead are more likely: (1) which data, (2) how much data, (3) how accurately, and (4) how appropriately, "will information about me be used."

Some may conclude that this is all innocuous and mundane. For my part, I am retreating with the Luddites. I am reverting to only cash purchases, in person, in small stores. I am eliminating my Internet footprint, closing my online shopping accounts, and cancelling all of my subscriptions. And, maybe I can figure out a way to know who is reading this blog, and sell that information to some supercomputer data broker somewhere?

Sunday, July 29, 2018

Equal Protection in the Bluegrass State

In March, the Kentucky Court of Appeals rendered a consolidated opinion in three cases (each involving a claim against a mining company), collectively styled Napier v. Enterprise Mining, ____ SW3d _____, Case No. 2014-CA-001473-WC (Ky. Ct. App. 2018). It is a panel decision in which three appellate judges concurred (Kramer, Clayton and Nickell). 

The cases "present(ed) a common equal protection constitutional challenge to a statute that provides for "compensation for occupational hearing loss." The statute refers to the American Medical Association Impairment Guides, and requires that any hearing impairment be expressed as an "impairment of the whole person." If the resulting impairment is less than 8% to the body as a whole, then but the benefits do not include "income benefits." The Court concluded that this distinction "violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution, as well as specific sections of the Kentucky Constitution. 

Physicians assigned Mr. Napier "a 4% impairment rating" regarding his hearing loss. The assigned administrative law judge (ALJ) concluded that the indemnity statute distinction violates the equal protection clause, following a Kentucky Supreme Court decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011). Upon rehearing, the ALJ conceded that she/he lacked "authority to determine statutory constitutionality," and therefore did not award indemnity benefits. The Kentucky Board (an administrative body to whom parties may appeal an ALJ decision) concluded it also lacked that authority regarding constitutionality and therefore affirmed the ALJ decision. The other two injured workers whose appeals were consolidated with Mr. Napier's similarly did not meet the 8% impairment threshold. 

It is worthy of note that in the testimony regarding another worker, Mr. Feltner, an expert addressed a related issue pertinent to America's discussion of the interrelationship of "impairment" and "disability." She opined that the "impairment" defined in the Guides to Permanent Impairment for Mr. Feltner's injury "inadequately evinced his substantial functional loss and occupational restrictions." In a broad analysis, there are instances in which an "impairment" may result in entitlement to benefits despite no resulting loss of wage earning capacity, and others in which the loss of wage earning may be more profound than is compensated by an "impairment" calculation. This disconnect has been debated in various contexts and jurisdictions. 

There was further testimony that "varying levels of hearing loss can impact individuals differently." That is, a specific loss of hearing acuity for one person, and the resulting impairment, may present greater "functional difficulties and workplace impediments" for one individual than for another. The point being, again, "impairment" is not the same as "disability."

The constitutional challenges in Napier were founded on two bases: (1) that hearing loss claims have a threshold (8%) that is not consistent with the absence of threshold for other traumatic claims (worker with hearing loss treated differently than worker with back injury), and (2) that those with less than 8% impairment are arbitrarily treated differently than workers with an 8% impairment from hearing loss. In both arguments, the foundation is what the law calls "disparate treatment," that is people similarly situated being nonetheless treated differently. 

The Court quoted Cain v. Lodestar Energy, Inc., 302 S.W.3d 39 (Ky. 2009), holding that "[t]he 14th Amendment to the United States Constitution requires persons who are similarly situated to be treated alike." It noted that workers’ compensation statutes "are presumed to be valid" and compliant with the 14th Amendment "if the classifications that they create are rationally related to a legitimate state interest." 

The Napier court concluded that the law imposes "different statutory treatment for awards of PPD income benefits." It noted that the AMA Guides provide "estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living, excluding work." It concluded that the Kentucky legislature, enacting the reliance on such Guides, "understood impairment and disability are not synonymous." Further the Guides themselves state they “were designed to reflect functional limitations and not intended to measure disability.” 

The Court concluded that establishing the threshold of 8% "segregates all traumatic hearing loss claimants into a special class, isolating them from all other traumatic injury claimants." That is, all hearing loss cases are thus tested, and so all are treated differently than other types of claims. It further agreed that the threshold "erects a wall of separation between two subclasses of hearing loss claimants," those who meet the 8% and those who do not. In each instance, the statute treats workers differently. The Court noted that in enacting this 8% distinction, the legislature was silent regarding the justification for such disparate treatment. 

The Court explained that disparate treatment alone is not dispositive of the analysis. The second factor for consideration is whether the classes of workers thus created "are similarly situated." The Court concluded that in both instances, hearing claims versus other injuries and hearing claims under versus over the threshold, "are in all relevant and consequential respects similarly situated." 

The decision includes discussion of the history of Kentucky Supreme Court vacillation. In 1994, that court concluded that an "irrebuttable presumption of total disability for coal miners’ pneumoconiosis" was not a violation of equal protection. In Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446 (Ky. 1994), the court held that statute favoring injured workers in one industry over those in another industry to be constitutionally sound. However, "seventeen years later," the same court discerned "no rational basis” for the disparate treatment based upon specific industry. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011). Analogizing to those decisions that treat certain employers differently under the law, the court in Napier drew a parallel analysis to Vision, the most recent opinion of the Kentucky Supreme Court.

Finally, the court addressed the Kentucky Legislature's reason for creating this distinction for various hearing loss claims. The analysis in this regard is "whether the differing treatment" is "rationally related to achieving a legitimate state interest." The court concluded that "Vision Mining is dispositive regarding this issue." It quoted that decision, and its explanations for its reversal of Holmes, essentially attempting justification by labeling Vision Mining as presenting a "first challenge." The Vision Mining court purportedly responded to a new and different argument of constitutional infirmity than that previously raised. Some will see that logic and others will refute it. Kentucky's record regarding stare decisis has been discussed here before

The court concluded that "by denying PPD income benefits to those failing to reach its heightened impairment rating threshold (8%), the statute improperly affords governmentally sanctioned separate and unequal treatment to a subclass of hearing loss claimants." The court stated "it is disingenuous to suggest the heightened impairment rating threshold in KRS 342.7305(2) offsets any greater dishonesty, inability, or incompetence among physicians evaluating occupational hearing loss, and any such suggestion “encapsulates the very meaning of arbitrariness, irrationality, and unreasonableness.” 

Of course, some readers will find the outcome axiomatic. The conclusion may be seen as akin to "of course the law cannot arbitrarily treat people differently." However, the Kentucky Supreme Court's vacillating analysis between Holmes and Vision may suggest that courts will sometimes sanction discrimination, at least for a time. 

Others may instead question whether there are other statutes that are similarly discriminatory. For example, in 2018, the Florida Legislature passed Senate Bill 376, discussed at length in I'm Just a Bill - PTSD in Florida. This bill will become law on October 1, 2018, and elevates "first responders" for different treatment under the law. It does so not by amending the Florida workers' compensation law, but instead by adding language to section 112.1815, Florida Statutes, which changes benefits for first responders "notwithstanding" the provisions and limitations of the workers' compensation law. This bill is not the first such beneficial provision. First responders in Florida are already treated differently than all other workers as regards various cardiopulmonary claims. 

A hypothetical PTSD example might be of assistance. Last Valentine's Day, a student was accused of entering a Florida high school and killing 17 people and injuring multiple others. A Broward Sheriff's deputy on the scene elected not to enter the school of confront the shooter, which itself generated significant news coverage. When the shooting was over, and the shooter had fled the scene, students, teachers, and staff evacuated the scene. Evacuees lost friends and peers in the violence. Some of those evacuees likely saw their dead and wounded friends and peers as they exited. That experience is undoubtedly traumatic, emotional, and devastating.

The wounded were transported to local hospitals where triage nurses, emergency room doctors, surgeons and other staff encountered them and their wounds. Employees of the medical examiner likely had to visit the school to retrieve the deceased. Someone had to later enter that building to repair physical damage and clean the results of the violence. Teachers and staff later had to return to work at that school. Thereafter, Senate Bill 376 was passed and will soon become law; benefits for PTSD injury to first responders will be statutorily different than for other Florida workers. 

I have heard people question "what if such an event occurred after October 1, 2018, with identical facts?" There is curiosity about whether the police officer (first responder) that did nothing to stop the attack might nonetheless be eligible for benefits for PTSD based upon his observations following the event. There are questions as to why that worker would be potentially entitled to such benefits that would perhaps be nonetheless denied to the teachers, janitors, and other school staff who worked through, responded to, survived after, and returned to work after the attack. Some have suggested that treating first responders differently amounts to "disparate treatment" and is therefore not appropriate under the equal protection clause of the United States Constitution, similarly to the Kentucky court's Napier conclusions. 

In that context, there have also been those who voice similar concerns with the manner in which first responder benefits for heart disease are seemingly treated different from the illness of other workers. Some posit that the presumption in favor of compensability for firefighters, police, and others creates protections that they enjoy but which other workers do not. 

At conferences over the years, I have heard attorneys opine regarding the first responder benefit enhancements. It is safe to say that there does not appear to be consensus regarding these enhancements and the Equal Protection Clause. That is not surprising as the Equal Protection Clause is a complex and difficult analysis at times, which is evidenced by the fact that the Kentucky Supreme Court has struggled even to agree with itself regarding the appropriate interpretation. 

Whether any constitutional infirmity actually exists, of course, will be unknown unless a challenge is raised in the courts. Like Kentucky, the Florida workers' compensation trial judges (JCCs) have no authority to conclude a statute is unconstitutional. Thus, any such challenge might be raised before a Judge of Compensation Claims for the purpose of obtaining testimony and other evidence (the "record"), but any decision on a constitutional question would be for the First District Court on appeal. 

In the meantime, such questions are perhaps merely interesting to think about or to discuss over a glass of iced tea at the annual workers' compensation conference in Orlando. 

Thursday, July 26, 2018

2018 Comp Laude Finalists Named

I awake this morning to find that the Comp Laude finalists have been named. I described the process for selection, and my nominations, in A Comp Laude, Overview, Community, and Commitment. I was honored to be a 2017 nominee, and was humbled and shocked to be selected. I was confident enough of not being selected in fact, that I skipped the award ceremony last October, described in What a Week it Was. Frankly, I still periodically think that night was a dream.

The nomination process for Comp Laude is no easy task. One must put into words how the nominee has affected workers' compensation. We all know people who we respect, we cherish, and whom we may even strive in some small way to emulate. Knowing them is easy. Capturing our thoughts and feelings in words, perhaps not so much so. 

Today, I congratulate the following finalists (this is not an exhaustive list, visit the link above to see them all). 

I met Dr. Christopher Brigham at the Workers' Compensation Institute several years ago. He is an amazingly accomplished physician, and has played significant roles in the revision of impairment guides and treatment plans. He is recognized nationally as a compelling figure in workers' compensation. But, his lasting legacy may be his book Living Abled and Healthy

Richard Chait is a Florida attorney whom I have known for several years. I cannot recall when I first met Richard; it sometimes seems as if I have known him forever. Richard is a focused and dedicated advocate. I have seen his passion and commitment in various regulatory and legislative meetings over the years. I sometimes do not agree with Richard, but I always believe in his sincerity. 

I first met Geoffrey Bichler in the hearing room. I presided over a difficult and somewhat complex case many years ago. It was a pleasure because of the professionalism and preparation of all four of the involved attorneys. Since then, I have often interacted with him in regards to legislation and regulation. I am also proud to serve with him on the board of Kids' Chance of Florida. 

The Workers' Compensation Institute began sponsoring and promoting a philanthropic work day at Give Kids the World Village (GKTW) about five years ago. In conjunction with the annual WCI conference, it also hosts a gala to raise funds for GKTW. It is heartwarming and encouraging to see workers' compensation professionals gather in support of something bigger than themselves. 

Tom Glasson is one of those people that seems to be at every conference. He is a voice of considered reason and persuasion. His passion for workers' compensation is exceeded only by his decades of experience, throughout the claims process. Tom was part of the National Conversation on workers' compensation, and brought perspective and balance to those discussions

Stacy Hosman is known to so many in the adjusting community. Her work with the Workers' Compensation Claims Professionals (WCCP) on their events and functions is well known. But, there is a philanthropic side of WCCP also. Each year at their annual holiday seminar, the WCCP gathers teddy bear donations for distribution to kids in hospitals. The effort has grown each year, and hundreds of kids are benefited annually. 

George Kagan is a legend of Florida workers' compensation. His writing and wit is known by lawyers across the state. George has been a leader in the Bar, in education, and in appellate practice. He is a legend in Florida workers' compensation, and a fixture at educational events. He has dedicated a lifetime to the shaping of workers' compensation in Florida. And, he has done it with style and humor. 

Michele Adams has been in charge of workers' compensation at Disney in various capacities for the last two decades. Since 2015, she has been Vice President of Risk Management for this employer at which some 80,000+ "cast members" work. I have served on panels with Ms. Adams, heard her speak repeatedly, and come to know her professionally. She consistently exhibits an appreciation for the challenges that injured workers face when accidents happen. 

Steve Rissman is the Program Chair for the annual Workers' Compensation Institute each August. He has filled that role for decades, consistently producing some of the very best educational opportunities in the country. Steve is another person whom I cannot recall "first meeting," it seems I have known him forever. Steve is a driving force behind better informed community members. His commitment to the WCI and to workers' compensation is patent. 

I have met Bob Wilson repeatedly. Through our mutual interest in workers' compensation, we have had many opportunities to interact over the last few years. I have been impressed by his willingness to speak out on topics that are often unpopular or seemingly controversial. His commitment to the community are evident in his writing, his company's best blog efforts, his leadership of the National Conversation, and his involvement in Kids' Chance (both in the nation and right here in Florida). 

Marc Salm is the Risk Management Vice President at Publix Supermarkets. He is a passionate educator and lecturer. I have witnessed his commitment to both workers' compensation and the well-being of injured workers in a variety of contexts. He has been engaged in the legislative and regulatory process for as long as I can remember. He is passionate and engaged.

Dr. Talmadge has been involved in treating injured workers for almost 50 years in Tennessee. He has played significant roles in the defining of appropriate independent medical examination roles and the revisions to the American Medical Association Guides to Permanent Impairment. He has been an integral member of the team that led Tennessee into the administrative process following the significant statutory revisions in 2013, working as a consultant for the state. He has delivered hundreds of professional lectures and illustrates leadership and professionalism. 

Richard Thompson was a Florida workers' compensation judge. I never had the privilege of practicing before him, and knew him in that role only in passing. But, he resigned some years ago and went to work in industry. Since that time, he has been a beacon of leadership for the bar specifically and the workers' compensation community as a whole. He has been involved in legislative and regulatory change, been a voice of reason in many heated debates, and contributed his knowledge as a lecturer and leader. 

I am justifiably proud of this group. No, I had nothing to do with their commitment to workers' compensation. But, they are all leaders with a passion for this community we call workers' compensation. They each bring their perspective to the table, challenge us all, and inform us all. We may have disagreements on points or philosophies, but each of these finalists has made a palpable difference in workers' compensation, striving for what each believes in. I am proud to know them, humbled to know them. I am saddened that it is likely impractical for them to all be presented an award in October. I am confident, however, that they each understand that potential. I have mentioned before that several noted their surprise at being nominated. I do so appreciate humility and personal strength. 

Remember though, that there are so many in this community. Most will never even be nominated (unless you do so). Recognizing that, it is a tremendous honor to even be on the list, and more so to be on the list as a finalist. I so look forward to October to find out who will be called onto the stage. I hope you will take the time to nominate someone you respect, appreciate, and sometimes disagree with when nominations open for 2019.

Tuesday, July 24, 2018

Makes you Think (Hopefully)

There is a song by the Corries called The Bricklayer song. It dates from 1969, when it was written by by Pat Cooksey under the title "Sick Note." According to PatCooksey.com, the song was popularized in Europe by various singers under the two titles. However, in America it was performed under the titles "Dear Boss" and "Why Paddy's not at Work Today." I first came across it in a note some years ago.

As an aside, for the Millenials and Next-geners out there, social media has been around for eons. It was not invented recently, merely digitized. In the "good old days," things of interest were passed from person to person on a media we called "paper." These "papers" were often pinned to a framed piece of cork on a wall, which we called a "bulletin board." Often when we found something of interest on such a board, we would take the paper and put it into a "copier." We would then keep the copy and put the original back up. 

Make no mistake, the content of some of those pages was offensive, insulting, and inappropriate. In that manner, not that different from today's social media. It was read, discussed, copied, and redistributed. Significant time in the workplace was devoted to sharing and talking about such documents, little different from today. But, it was sometimes much harder to trace that material to a source; today postings leave digital "fingerprints," but back then you would have had to find actual fingerprints and found the time to trace them. 

The point with that recognition (or for some a revelation perhaps) is that the world is not necessarily any different in character today. Certainly, information may move more rapidly, may spread more readily, but that distinction is about speed and convenience. Information has been around a long time. It has always spread (in the real "old days" it was merely repeated over garden fences and across pub tables in what was called "gossip"). The first time I ran across The Bricklayer Song, it was in lyrics on a bulletin board in an industrial break room. I surmise it was placed there not to make fun of injury, but to remind people of workplace danger. 

Humor is difficult. What one finds humorous, another may find insulting. A word may be uttered appropriately by one person, but its use by another found offensive. Subjects may be acceptable in one context and taboo in another. Society in the 21st century is seemingly increasingly polarized. Individuals and groups are struck by words and thoughts, sometimes these disappoint and perhaps more often they offend. 

Is it possible to be lighthearted about a subject without offending someone? There is some perception it is not. Several years ago at a football party a commercial for an insurance company ran. It featured cavemen and their portrayal was not flattering. A fellow guest turned to a group and proclaimed "its this political correctness, they can only make fun of a group that no longer exists." That comment led to an interesting discussion that centered on why any group is so isolated, attacked, belittled. Why does humor so often focus on the perceived weakness of some person or group?

But, in a simpler time (or perhaps a time when people were simpler), The Bricklayer Song was contrived (the full lyrics are restated below, courtesy of Metrolyrics). It may be troubling to some, who could perceive it as making light of work injuries. It may be making light of injury, safety, or even intelligence. But it may also merely be making light of human nature. See, whether we want to admit it or not, we all make errors and mistakes. 

We forget things periodically. Sometimes it is something simple like a seatbelt, or a safety line. Other times it may be more involved like a "lock out - tag out" process. We know we are responsible for keeping ourselves safe, but we are imperfect in both thought an action. That is a consequence of our very nature as humans. These thoughts came to me when The Bricklayer Song was reminded to me by a recent email. The sender suggested it would be siutable for blog, and thus here you are. 

I commend the lyrics to you. I understand that they make light of someone being injured, but encourage instead focus upon them making light of human imperfection. We all face challenges, we contrive solutions, we deal with supervisors, and we make misjudgments and mistakes. Those are often no big deal, we realize we forgot to buckle up when we arrive and reach out of habit to unbuckle. Other times, our mistakes may lead to injury, ours or someone else's. 

Perhaps The Bricklayer's song's value can be seen there, reminding us of our fallibility. Perhaps it can remind us that we are not perfect while it cajoles us into avoiding errors and injury. Read the lyrics, and listen to the band. Accept it as a commentary on, a protest of, work injury. If it offends, you have my apologies. If it reminds you of how simple it is to make mistakes, then you are welcome. The lyrics:

Dear Sir I Write This Note To You To Tell You Of My Plight
For At The Time Of Writing It I'm Not A Pretty Sight
My Body Is All Black And Blue, My Face A Deathly Grey
And I Write This Note To Say Why I Am Not At Work Today

Whilst Working On The 14th Floor Some Bricks I Had To Clear
But Tossing Them From Such A Height Was Not A Good Idea
The Foreman Wasn't Very Pleased He Is An Awkward Sod
And He Said I Had To Cart Them Down The Ladders In Me Hod

Clearing All These Bricks By Hand It Was So Very Slow
So I Hoisted Up A Barrel And Secured A Rope Below
But In Me Haste To Do The Job, I Was Too Blind To See
That A Barrel Full Of Building Bricks Was Heavier Than Me

And So When I Untied The Rope The Barrel Fell Like Lead
And Clinging Tightly To The Rope I Started Up Instead
I Shot Up Like A Rocket, And To My Dismay I Found
That Halfway Up I Met The Bloody Barrel Coming Down

Well The Barrel Broke Me Shoulder As To The Ground It Sped
And When I Reached The Top I Banged The Pulley With Me Head
But I Clung On Tightly None With Shock From This Almighty Blow
While The Barrel Spilled Out Half Its Bricks Some 14 Floors Below

When These Bricks Had Fallen From The Barrel To The Floor
I Then Outweighed The Barrel And So Started Down Once More
But I Clung On Tightly To The Rope My Body Racked With Pain
And Halfway Down I Met The Bloody Barrel Once Again

Now The Force Of This Collision Halfway Down The Office Block
Caused Multiple Abrasions And A Nasty Case Of Shock
But I Clung On Tightly To The Rope As I Fell Towards The Ground
And I Landed On The Broken Bricks The Barrel Had Scattered Round

Now As I Lay There On The Ground I Thought I'd Passed The Worst
But The Barrel Hit The Pulley Wheel And Then The Bottom Burst
A Shower Of Bricks Rained Down On Me I Didn't Have A Hope
As I Lay There Bleeding On The Ground I Let Go The Bloody Rope

The Barrel Now Being Heavier So Started Down Once More
It Landed Right Across Me As I Lay There On The Floor
It Broke Three Ribs And My Left Arm And I Can Only Say
I Hope You'll Understand Why I Am Not At Work Today

Sunday, July 22, 2018

Confusion and Disconnects in Medicine

If we are involved in an accident, we each would want the best care possible, delivered as expeditiously as possible. There will be instances in which we will make medical care decisions for ourselves and other situations in which decisions will be made for us. It is circumstance when our decision making may not follow our personal routine.

In our day-to-day, we make decisions about consumption based upon our available resources and the price of goods and services. We act, generally, in our own best interest in those decisions (you tend to buy the car you want or like, not thinking of whether fellow Americans were employed building it). Though we are likewise consumers of medical care, there will be decisions that we will not make. One of the great challenges in our medical care system seems to be that the person needing the care (you) has become too detached from the decision making. 

For example, you may purchase health insurance, or you may decline. You decide whether that product provides you value in exchange for your money. A great many do not perceive value, and thus elect not to purchase; as a result, they may later find themselves with medical bills they will not pay, and that cost is passed to the rest of society. Those who do purchase insurance may cede some or all of their choices in medical care to that insurance company. It may dictate the physician choices, testing, and care provided. 

A second example is incapacity. We may, through event or disease, lack the capacity to make medical decisions. In those instances, firefighters, paramedics, doctors, and nurses may make decisions for us. In doing so, they will likely focus entirely upon the goal of alleviating our medical symptoms, and pay little or no attention to cost. Thus through contract for insurance or through circumstance, we consumers may be detached from the decisions that are normal for us in other circumstances. 

An example that has been in the news recently is medical transportation. When an accident occurs, there has developed a tendency to "encourage" care. I recently heard an acquaintance recount the aftermath of a vehicle accident. The collision reportedly occurred after being stopped at a light. Neither car exhibited any damage (no scrapes, dents, scratches). However, a passing driver perceived stopped traffic and summoned authorities. When they arrived, the two drivers had exchanged insurance information and were about to depart, having concluded there was nothing to this event. 

However, responding police and ambulance personnel questioned both drivers. Photographs were taken and a report generated. And, before the conversations were over my acquaintance had signed a document written in tiny print, "knowingly" waiving medical care or attention. Before signing, the ambulance crew had reportedly reminded my acquaintance repeatedly that both an ambulance ride and emergency room services would be "free." The other driver, moments before ready to depart and forget this non-event, was instead talked into being transported to the emergency room by the ambulance crew.

At this point in recounting the story, a medical provider in the group noted that it was likely best to get a medical evaluation despite perceptions regarding lack of injury. Another in the conversation decried the crew's repeated persuasion as unnecessary and inappropriate "pressure." A lawyer then interjected that the crew was merely following instructions and such entreaties and forms were likely ambulance company policy. Yet another noted the  company had likely been sued at some point after an accident victim learned later that injuries were more serious than perceived. Another noted that ambulances and fuel cost money, and the company only gets paid if it takes someone to the hospital. It was a lively conversation in which various perspectives, conjectures, and conclusions were voiced. 

That conversation and the various perspectives came back to me when I recently read of developments in the debate of air ambulance services. 

A Consumer Reports article in 2017 described a Florida family, their daughter injured at home. Responding paramedics recommended an air ambulance helicopter. Over doubts of necessity, the parent was "a mom first,” and "didn’t question the decision." Four years later, the mom struggles with a remaining invoice balance of almost $20,000. The air ambulance was not in her insurance network, and so the transport was not fully covered. 

Consumer Reports says that the average air ambulance bill is $30,000. It explains that deregulation of the airline industry in the 1970s rendered states unable to regulate the cost of such services. Those law changes, though perhaps never intended to address a topic like air ambulance service, preclude states nonetheless. Regulation aimed at airlines and consumer travel constrains state regulation of air ambulance cost. 

And, that regulation preclusion goes for workers' compensation as well. Thus, there is a service in the marketplace which can (1) charge whatever it wishes, and (2) can leverage fear and uncertainty to book customers (who may or may not even be conscious). If we accept that everyone acts at all times with the highest morals and never in a self-interested manner, then perhaps that is appropriate. If we fear that human nature may pressure us differently than the highest morals suggest, then perhaps it is not. 

Air ambulance services are becoming increasingly available. Consumer Reports says that the number of U.S. air ambulance providers has doubled since 2000. The industry growth is attributable to companies that offer such services for profit. Charges over $50,000 for a transport are not unheard of, whether the customer has insurance or assets, or is utterly unprepared to pay such amounts. 

A trade group spokesperson quoted in the Consumer Reports article explained that companies have contracted to provide services through Medicare or Medicaid, which "pay $200 to $6,000 per transport." Thus, companies lose money on those transports and "must collect more from people with private insurance to make up the difference." Thus, like so much else in America, there is a socialistic process being applied by the government. Those who qualify for Medicare or Medicaid have their cost controlled by government and the rest of the consuming population is then billed more to subsidize their use of services. Socialism is a model that has attracted many acolytes over the years, but which has failed repeatedly. If everyone were "insured" by the government, and all fees were thus capped, would there be any air ambulances at all?

Despite socialism's flaws, America long ago decided that medicine would be socialized here. There are those who support the next step in that process. They advocate that medical care is a human right and that everyone is fully entitled to a full measure of care regardless of their ability to pay, personally or through insurance. They advocate "single payer," and wax eloquent about their high personal morals and Utopianist ideals. But, single payer has been tried, see Single Payer Lessons from Vermont. Colorado voters recently rejected single payer. The economics of socialism simply do not work, on the limited scale of single payer or the macro-scale of a country. Despite the analysis of the ambulance drivers discussed above, there is no "free" ride to the hospital nor "free" care. Everything costs, the only distinction is in who pays. 

To that end, government has tried the experiment of mandating insurance coverage in the commercial market. The Obamacare plan required everyone to have health insurance, and used the federal tax enforcement of the Internal Revenue Service to make sure that they all did. The "individual mandate" was to assure that everyone paid their share. But, it somehow escaped analysis that there are Americans who do not pay taxes and do not file income tax returns. The selected enforcement vehicle did not provide uniform enforcement. 

And, Obamacare neither resulted in universal coverage, nor even approached it. Years into mandatory coverage, there remained large populations of uninsured Americans when we were all finally relieved of the mandate. And, many of those who eschewed coverage all along paid no penalty, made no contribution. But, those who did have coverage almost universally received less and paid more. People who do not want insurance, it seems, will not buy it even when the cost is subsidized. The Obamacare process did not "fix" healthcare, and in the process many lost choices, lost their preferred doctor, lost their preferred insurance, and paid more. Despite this, there remain Obamacare fans even today. 

When we require goods or services, we make economic decisions. If price were no object, undoubtedly we would all live in beach front mansions and drive Maseratis. We would dine on champagne and caviar, vacation on the French riviera, and our lives would be "perfect." But, certainly that is fallacious. Everyone cannot have everything. There is not enough beach front available. Scarcity determines pricing in a capitalist market. Understand that power similarly determines access in socialistic or communistic markets. There will be always be economic choices. In capitalism consumers make them while in other systems they are made for us. 

The complications that arise with medicine are difficult. First, there is a planning disconnect. Second, there is a payment disconnect. We are often called upon to make medical decisions on the spur of the moment, without planning. We may lack time for reflection and contemplation, or to consider the relative value of alternatives. And, we often have health insurance, thus the cost of services may not concern us as long as our own deductible or co-pay is affordable. Both of these disconnects may influence our decisions. 

Furthermore, when we make medical choices, they are often very important or even life-critical. Our mental state at those moments may be stressed; we may have just been in an accident, received a scary diagnosis, or witnessed an injury to a loved one. Even in the best of circumstances, the most informed and careful among us may not make the most logical decisions at certain moments in our lives. 

After an accident, air ambulances are offered as an alternative. A responding official, police, fire, paramedic, is offering or even recommending that service. The consumer involved (patient or family member) may be stressed, emotional or even distraught. And, there is no one among us, with a loved one in need, that does not want them to have the best and most rapid care. We will frankly be inclined to accept that recommendation, accept the air ambulance. But, should the price be disclosed? Should the price of that service should be consistent for everyone? Should they tell us if our insurance will not cover it?

The other side of the equation likewise bears consideration. Helicopters are expensive. Flight crews, paramedics, medical supplies, fuel, and maintenance all cost money. The air ambulance helicopter does not fly a schedule, and cannot be easy to budget and plan. In effect, the company's assets and employees sit idle much of the day awaiting the chance to deploy and provide service in an urgency. In reality, we all hope they sit and wait most or all of the time; their idleness means people in the community are well and safe and do not require help. 

But, as the crews and equipment wait, they are nonetheless paid. Therefore, when they are dispatched, the cost of the service will undoubtedly be expensive; more expensive than an ambulance, which in turn is similarly more expensive than taking a cab, which in turn is more than driving yourself or a neighbor to the hospital. 

In a similar setting, Fox News recently reported on a family that took an infant to the emergency room after a fall from a bed. The child never lost consciousness, but was upset. The parents sought medical care from "an abundance of caution." The hospital personnel provided a bottle of formula and the child took a brief nap. The family later received a bill for $18,836. The family was shocked. They object to the bill in light of their perception of the value of services they obtained (exam, bottle, bed). 

However, this story illustrates the value that lay not in what the hospital delivered, but in what it was prepared and staffed to deliver. It is a "trauma center" and is prepared for "car accidents, mass shootings, multiple vehicle collisions" (seems a lot like simply "car accidents"), according to a hospital spokesperson. The point seemingly being that having that equipment, talent, etc. is expensive and everyone must share the cost, regardless of whether they utilize or need the services that the facility and personnel are prepared to provide. The conclusion is everyone must share, that is the definition of socialism. 

Our society recognizes the value of the air ambulance. These obviously save lives. So too do ambulances save lives, as do police officers, paramedics, and fire fighters. But, the cost of many of those services, are social costs, and they have been socialized in America. Those who pay no taxes are nonetheless entitled to the protection of the police who are paid by taxes. Through that socialistic approach protection is afforded for us each. They patrol our streets, put out our fire, respond to our fall, usually without cost to us. 

But, that social coverage is not always what we personally desire. We would each feel safer if we had a bodyguard assigned to us individually. But, the police do not provide that level of personal attention. There are few of them, many of us, and we each get our allotted social measure of protection, whether we contribute to the cost of it or not.

If we want more (personal bodyguard), we may obtain that at our own cost. Should the socialist analysis be applied and taxes raised to support what we each want (bodyguard) instead of what we have (police)? Our lives are protected by police and firefighters, but collectively, not individually. Because it is collective, socialist, it comes in equal measure to us all. It does not necessarily provide what we want, but what society has decided to fund. There is a persistent American disagreement between those who want to pay less for government and those who want to consume more from government. It is the friction point between socialism and capitalism. 

As a society we seem unable to accept compromise in our healthcare. In healthcare, the Utopianists seek the best and the most medical care for all, regardless of their ability or willingness to pay. In healthcare, provision of some publicly-funded care (similar to some police protection) is seen by some as inhumane. They ignore the stresses on the system, and the delays in care that would invariably result, if everyone were provided everything. Alternatively, there are those who decry liability for the "good of all," and believe that those who need or want services or goods should pay for them. And, in the midst of these two competing mindsets, we have the confusion and disconnects of our current American medical system. 

The examples of air ambulance and the trauma center are revealing. The fastest, most direct, and most efficacious is what we all want for ourselves or loved ones. The cost of that is very high, and likely somewhat justifiably so as a nature of its very business model, just like the trauma center hospital. Through our use of such services, in emotionally challenging circumstances (or because we are not capable of making decisions and a helicopter is summoned for us based on the paramedic's judgment), we may incur incredible expense, that could follow us for years. 

In the end, the system and processes that we have are the result of legislative compromise. Over the years, the advocates of "pay nothing" and "pay everything" have been forced to various compromises. In various legislative and regulatory constructs, there are potentials for exploiting loopholes. Some see the deregulation act as such a loophole and decry the air ambulance company charging as they do. Others see value in the air ambulance and implicitly trust in them to make honorable decisions about necessity. 

A great many believe that the system and process that we live within, the result of compromise, is flawed and antiquated. They advocate for change. But, they advocate most often from the same polar positions described above, their own personal positions. They advocate that more taxes and more "free" care will solve the dilemma or that less government involvement will. Each ignores some modicum of the reality, and their solutions seem to focus mostly on who can scream the loudest. 

As yet, the screaming has not solved the complaints regarding air ambulance services. As yet, there seems no real solution at all. For now, we are locked in an ideological dispute. In all likelihood, that debate will eventually be stalled with another compromise. Whatever it is will change our consumption, expectations, or both. That compromise will enhance care for some, impair care for others. And, unfortunately, history suggests that regardless it will increase costs. Seemingly every solution in our history has increased cost.  

Thursday, July 19, 2018

"But it's Legal"

We hear it time and again, "the states where marijuana is legal." I have heard that phrase or something similar from an assortment of knowledgeable, well-educated, and seemingly well-meaning members of the workers' compensation community in recent years. There is a disconnect in that perspective, as what they really mean to communicate is that the use of marijuana has been decriminalized in particular states, under particular state's laws.

The fact remains that marijuana is illegal. Recently, the Maine Supreme Court recognized this, see Federal Law Matters in Maine. It was previously recognized similarly by the Colorado Supreme Court in Coats v. Dish Network, discussed more fully below. 

Pot is a complicated subject; some thoughts on it are described in Marijuana May be a Problem - You Think? Notable among problems are the current lack of science to support medical use, the federal illegality, and questions about its side-effects and potential detriments. Remember, "medical marijuana" remains an oxymoron, as the substance is not legally accepted for treatment of any medical condition (by definition, Schedule I). There are some approved medications that employ marijuana derivatives; I leave to the reader whether that is a valid distinction. 

But, at least as regards marijuana, the current trend is to ignore the law. The federal government, under two seemingly very different Presidents, has acquiesced in the production, transport, and sale of vast quantities of cannabis in America. Thus, while it remains illegal there is little if any enforcement of the federal law (we know where it is grown and sold if the government wished to stop it). Whether one agrees with its use or presence, it appears clear that weed is here to stay, regardless of what the law says.

The presence of marijuana in our society will provide us with a variety of challenges. That is being discussed by safety personnel often. In parallel to the various commentator comments I hear of "pot is legal," I hear safety professionals lament their fears of accidental injury related to, contributed to, or caused by pot intoxication/impairment. A major challenge with this will be that, as yet, there is reportedly no reliable process for Measuring Marijuana Intoxication. That is a complication specifically of pot. Despite the scientific challenges of determining intoxication, Colorado has adopted a presumption of pot "impairment" at 5 nanograms of THC per milliliter of blood. See C.R.S. 42-4-1301(6)(a)(IV) (2017). I have heard several argue over whether there is science to support that standard, but it has been statutorily adopted nonetheless. 

The fact is that blood alcohol can be similarly measured. With alcohol, presence has been shown to equate to impairment. Over the course of decades, following the abolition of prohibition, America struggled with alcohol on its roads and in its workplaces. States now have strict laws regarding driving under the influence, in many instances based upon a "presence" equals "impairment" presumption. And, now even states like Florida that do restrict pot access are advertising about laws prohibiting driving under the influence of pot (a seemingly tacit admission that it is in society); Those prosecutions may be more difficult because of the different pot analysis of "presence" and "impairment." 

A similar effort has included addressing alcohol and other drugs (alcohol is a drug) in state workers' compensation laws, reflected in a 50 state survey produced by Lexis Nexis. There is a perceived safety threat from working while impaired. Those who lament a law punishing an employee (or his family) for pot use on-the-job might feel differently if a pot-using employee operating some equipment injured a sober co-worker. Would the employer be perceived as negligent for allowing the pot-using employee to be at work? Would the sympathy be with the innocent injured employee or the pot-using (or otherwise impaired) worker that caused injury? 

Thus, it is possible and perhaps probable that if you are injured at work and found to have been under the influence of alcohol or other drugs, such a finding might affect entitlement to or amount of workers' compensation benefits. Florida is one off many states with such potential ramifications. This legal construct might be seen as deterrent for employees. Employees might think of the workers' compensation consequences before working under the influence, but then again so might drivers. 

In Florida, the state says 24,334 DUI convictions were rendered in 2017. Despite the illegality, the danger of injury or death, and the financial burden that a DUI can cause, people nonetheless drink and drive. Somewhat surprisingly, the drive for self-preservation and arrest-avoidance does not deter some from that activity. One might wonder if the workers' compensation penalties for impairment or intoxication are likewise disregarded by workers who chose to ingest and then work? 

This all came back to mind with a July 2018 headline from the Denver Post: Colorado denies widow half of late husband’s workers’ compensation due to his marijuana use. The story is brief, providing little detail. Essentially, Adam Lee was working on a ski lift when he was crushed to death last December. Blood testing established the presence of THC, and so the workers' compensation death benefits for Mr. Lee's family have been reduced 50%. It is worth noting that some states might deny all benefits if drug impairment were demonstrated, and some states presume impairment from the presence of drugs.

Somewhat more thorough coverage comes from Denver ABC affiliate Channel 7. It's headline leads with "legal marijuana use." But, the issue of "legal use" of pot has already been addressed by Colorado's Supreme Court in Coats v. Dish Network, 350 P.3d 849 (Co. 2015). That decision is discussed in Federal Law Matters in Colorado. Essentially, Coats sued his employer when he was terminated for failing a drug test at work, after admittedly smoking marijuana on a doctor's recommendation (doctors will not "prescribe" marijuana as it is illegal). He claimed that the termination violated his rights under the "Colorado's 'lawful activities statute.'” That law essentially says that employees may not be fired for engaging in legal activities outside of work. 

The Colorado Supreme Court concluded that this state law protection did not apply to Mr. Coats' use of pot outside of work. It noted that while Colorado had decriminalized the use of pot, that substance remains illegal under federal law (as the Maine Supreme Court recently noted, see above). Despite what you hear about pot "being legal," it simply is not. 

Mr. Lee's widow is now seeking a judicial determination that the workers' compensation insurance company should not be allowed to reduce her workers' compensation death benefits. Her livelihood has been significantly affected, and she and her children are struggling with financial survival. Without knowing the details of Mr. Lee's earnings or specifics of Colorado law, understand generally that workers' compensation tends to almost never replace 100% of pre-injury earnings. When the reduced "normal" figure is then reduced 50% (purportedly $800.00 per month in this case), the effect may be significant upon the payment of a worker's family's bills. 

Will the case come down to an issue of "intoxication," that is: was Mr. Lee under the influence of, or impaired by, pot when he died? In that regard, it is possible that the use of pot, or "being high," might be viewed no differently than being otherwise "intoxicated," or "under the influence" on the job. Taking prescribed medications, over-the-counter remedies, or even alcohol might well render one "impaired," and a potential danger to themselves or others. To deter people from such circumstances, one might defend the scheme of a reduced benefit for any accident resulting from such intoxication. If one could lose a job or suffer economic damage (reduced injury benefits) one might choose not to work after use of such substances. This deterrent effect is possible, but some will argue it is not probable. 

Or, will the case come down to an issue of "presence." That is a complication of marijuana. Marijuana remains detectable in drug screenings long after the "high" passes. One might smoke marijuana and have THC (or its metabolites) detectable in urine testing for 8-77 days, according to this herb.co post. However, the evidence of THC itself in the blood may last only 2 days, according to this herb.co post. Thus, if THC evidence is discovered on a post-accident drug screening, depending on the type of test, it might suggest very recent or very remote drug use. Should remote drug use result in reduced or denied workers' compensation benefits? 

Mr. Lee became "caught" and was tragically crushed to death in a ski lift. The evidence of his marijuana use came from postmortem testing. A graphic in the Channel 7 video represent that the "high level" of THC found was 41 nanograms per milliliter. Remember, Colorado presumes impairment for drivers at 5 nanograms of THC per milliliter of blood. See C.R.S. 42-4-1301(6)(a)(IV) (2017). Channel 7 noted the intoxication conundrum, stating "that current science can't determine if Adam was impaired or intoxicated at the time of his death." But, its investigation does not discuss the 5ng/ml legal presumption, nor expound further on the 41ng/ml test result represented in the graphic. 

Courtesy Channel 7.

Perhaps the trial of this matter will include evidence on the type of testing (urine or blood), and argument on whether that, or any, testing demonstrates "intoxication" or only "presence." There may be discussion of the intent and meaning of the workers' compensation statute that says benefits will be reduced when such a test is positive. And, potentially argument about the perceived conflict between benefit reduction and use of substances off-the-job.

Ms. Lee is quoted by Channel 7 as "frustrated" because her widow benefits have been decreased "because he smoked a legal substance." Of course, the Colorado Supreme Court has already cleared up that question. Despite what you may hear from conference presenters, marijuana is not "a legal substance." That Channel 7 provides no perspective on that fact is curious in a general sense, and more so in that this is billed as an "investigative" story. That Channel 7 leads its coverage with the "legal marijuana use" headline suggests either a lack of investigation by the station, or that the reporting is instead tending toward advocacy of one perspective without mention of others. 

The station interviewed "an administrative law judge with Colorado’s Department of Labor," John Sandberg. He stated "as it stands now, with a positive test result, an employer has the right to reduce those benefits." Judge Sandberg conceded that reduction of benefits in workers' compensation could be viewed as contradictory to Colorado's "legalized marijuana," and opined that is "a good social issue," one for "the general assembly." The interview is edited; if the judge pointed out the fact that the Colorado Supreme Court has clarified that pot is not legal, that was not included in the story. 

In the end, the workplace can be dangerous. That is the reason for workers' compensation to begin with. Workers should be able to engage in their trade or profession without fear of intoxicated or impaired co-workers. It is doubtful that anyone would seriously argue that allowing workers to drink or use drugs on-the-job is appropriate. The reporting ignores this parallel: alcohol is in fact "legal," alcohol is a drug, and a worker who tests positive for alcohol may see denial or reduction of benefits in workers' compensation. Despite the view reported by Channel 7, the legality of weed may not be the critical point. 

The complexity with marijuana may instead be in whether "presence" or "intoxication" is the issue. Dealing with the fact that marijuana's presence can be detected for many days renders this topic potentially difficult in its own right, and different from substances like alcohol and other drugs with which science supports presence equaling impairment. But, the fact that Colorado law has equated a level or presence (5ng/ml) with impairment may be critical if the levels reported in the Channel 7 video (41ng/ml) are accurate (eight times the presumptive threshold). 

Despite that distinction, it appears that generally the "presence" of drugs at the time of an accident can result in denial or reduction of workers' compensation, perhaps regardless of "impairment." The various laws cited by Lexis seem to support this conclusion is possible in a variety of states. This seems true of alcohol (legal), cough syrup (legal), prescription medication (legal) or pot (not legal, anywhere in America, despite what ill-informed conference pundits tell you). 

Awareness is a potential factor. Channel 7 asked Ms. Lee how many Colorado workers she though were aware that smoking dope could put "their families at risk?” She opined "I imagine none of them do!” That is lamentable. It is acknowledged that few workers have significant understanding of workers' compensation until an injury or illness occur. Certainly, a greater understanding would be beneficial, but is it a realistic expectation? Perhaps most of us live life believing that "it will never happen to me?"

And, it is possible that awareness is not the issue. It seems likely in 2018 that everyone knows of the penalties for DUI, and yet Florida had 24,334 DUI convictions last year. In Florida, even police officers who know the law have been accused. Of course, some may feign ignorance, like the man who recently claimed he was not "drinking and driving" as he only took sips when the car was not in motion. But, the volume of DUI convictions may suggest that awareness of potential penalties may not necessarily prevent consumption. However, it may be that there is always room for greater awareness? 

The Lee matter is currently scheduled for a hearing before a Colorado "administrative law judge in the coming months." I am confident that the presiding judge will not be Judge Sandberg, who already spoke to the press on-the-record about the law which may be argued in the case. In the end, we will perhaps learn if "presence" or "intoxication" is the standard in Colorado. If intoxication is the issue, we may learn about the science behind thresholds like the 5ng/ml driving presumption which the news reports did not mention. 

We will see if the workers' compensation system upholds the statutory reduction of benefits, either because of that law and despite the decriminalization, or concludes that the right to smoke pot preempts the workers' compensation law. It is also possible that the Colorado workers' compensation system will address the continuing misconception that marijuana is legal.