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September 10, 2014


Trust for America's Health and The Robert Wood Johnson Foundation recently released The State of Obesity: Better Policies for a Healthier America, a 136 page report that can be downloaded in PDF.


This is the most recent in a series of updates on the topic of obesity, and while the report is guardedly more optimistic about the nation's obesity rate -- "there is increasing evidence that obesity rates are stabilizing for adults and children" -- the overall situation is still plenty bleak. Here are some highlights:

  • Adult obesity rates rose in Alaska, Delaware, Idaho, New Jersey, Tennessee and Wyoming
  • More than a third of adults (34.9 percent) were obese as of 2011 to 2012.
  • More than two-thirds of adults were overweight or obese (68.5 percent).
  • Over the past 35 years, obesity rates have more than doubled. From 2009 to 2010 to 2011 to 2012, rates remained the same. The average American is more than 24 pounds heavier today than in 1960.
  • Two states have adult obesity rates above 35 percent (Mississippi and West Virginia), 20 states have rates at or above 30 percent, 42 states have rates above 25 percent and every state is above 20 percent. In 1980, no state was above 15 percent; in 1991, no state was above 20 percent; in 2000, no state was above 25 percent; and, in 2007, only Mississippi was above 30 percent.
  • The 10 states with the highest rates of type 2 diabetes are all in the South. Alabama had the highest rate at 13.8 percent.



Related medical conditions
The report also discusses obesity's link with other serious, life-limiting illnesses. Here's a sampling:

  • Diabetes rates have nearly doubled in the past 20 years -- from 5.5 percent in 1988 to 1994 to 9.3 percent in 2005 to 2010.
  • More than 25 million American adults have diabetes and another 79 million have prediabetes. The CDC projects that one-in-three adults could have diabetes by 2050.
  • One in four Americans has some form of cardiovascular disease.
  • One in three adults has high blood pressure, a leading cause of stroke.
  • Approximately 30 percent of cases of hypertension may be attributable to obesity, and the figure may be as high as 60 percent in men under age 45.
  • People who are overweight are more likely to have high blood pressure, high levels of blood fats and high LDL (bad cholesterol), which are all risk factors for heart disease and stroke.

The report contains significant detail about adult demographics and a special focus on childhood obesity rates, recommendations and policy initiatives.

Obesity and the Work Comp Nexus
How does obesity affect workers' comp? Here are a variety of studies, reports and news related to workers compensation and obesity - from our own pages and from other sources. .

Weighing the Obesity Factor in Workers' Compensation

The Influences of Obesity and Age on Functional Performance During Intermittent Upper Extremity Tasks

New Study Shows Significant Health Risks for Long-haul Drivers

AMA declares obesity a disease

Comorbidities in Workers Compensation, NCCI 2012

Indemnity Benefit Duration and Obesity, NCCI 2012

Safety 2012: Ergonomic Strategies for Managing Obesity in the Workplace

Plump my workforce: new studies document obesity-related work costs

The Not-So-Hidden Cost of Obesity

New York Weighs In on Obesity

Compensable weight loss surgery? A new wrinkle in obesity

The effect of obesity and other comorbidities on workers comp

Weighty matters: the high cost of obesity in the workplace

Obesity in Workers Comp: Duke Sounds the Alarm

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April 30, 2014


In October, 2013, the Food and Drug Administration (FDA) allowed the opiate Zohydro ER to come on the market despite its own Advisory Panel voting 11-2 against it because it was not tamper resistant. Twenty-nine state Attorneys General petitioned the FDA to reverse its decision, but the FDA declined to do so, saying that the drug is safe and effective if used as directed.

We chronicled Massachusetts Governor Deval Patrick's Quixote to the Windmill charge as he attempted to ban the sale of the drug in the state. The windmill won when US District Judge Rya W. Zobel overturned the state's ban. Shortly thereafter, just days before his ban was due to expire, Governor Patrick remounted Rocinante and made a less Quixotic charge: he followed the lead of governors in other states by imposing sweeping restrictions on how Massachusetts doctors prescribe the powerful pain killer, the first pure opiate.

The restrictions, which Zohydro ER's maker, Zogenix, calls "draconian" and "unjstified," require that doctors:

  • Evaluate a patient's substance abuse history and other current medications;
  • Provide a "letter of medical necessity" to the pharmacy;
  • Enter a "pain management treatment agreement" with the patient; and,
  • Use the state's online Prescription Monitoring Program, which tracks prescriptions of controlled substances, before prescribing drugs like Zohydro that are extended-release medications containing only hydrocodone and do not come in an "abuse-deterrent form."

Zogenix is fighting back. On Monday, the San Diego-based company filed a federal lawsuit arguing that the Massachusetts new restrictions impose "draconian" mandates on doctors and "amount to an effective ban of the drug" that is unconstitutional.

The Suit asks that the Court vacate any restrictions imposed on the sale of Zohydro ER.

Governor Patrick says that his problem with Zohydro ER is that it does not come with "abuse deterrent" packaging. Zogenix responds with three assertions:

  • The active ingredient in Zohydro ER, hydrocodone bitartrate, is no more potent than most other opioids;
  • There are more than 30 extended-release opioids on the market, and only one has an FDA-approved label indicating it has abuse deterrent properties; and,
  • No product on the market today addresses the most prevalent form of abuse, taking an excessive number of tablets or capsules.

Yesterday, things got even hotter in the Bay State when drug abuse prevention groups, state lawmakers and organized labor leaders rallied outside the statehouse on Beacon Hill demanding even more restrictions.

The rally drew more than 150 demonstrators who, in addition to the call for greater restrictions, urged Congress and federal officials to reverse the FDA's approval of Zohydro ER.

Those who attended the WCRI's annual conference in Boston in April will recall the stemwinding luncheon speech of Steve Tolman, former Massachusetts state Senator and now President of the Massachusetts AFL-CIO. Tolman, who ardently and passionately does all he can to combat drug abuse in the Commonwealth, was in rare form at yesterday's rally.

"We don't need any more opiates! We don't need any more addiction," he shouted to the crowd. "Yes, we know that people need pain medication, but they need the right type of medication. And it needs to be monitored."

Massachusetts Senate President Therese Murray promised the demonstrators that the legislature will take action and is now working on a comprehensive bill dealing with all aspects of addiction, from education to prevention to treatment.

But, with the exception of theft, the only way people get opioids is by doctors prescribing them, and, right now, doctors are cautious and, in some ways, befuddled. They know there's a big opioid problem, which has prompted Governor Patrick to declare a state of emergency, but they don't want government invading their patient examination rooms. Nonetheless, shortly after the Governor announced his restrictions, the Massachusetts Board of Registration passed emergency regulations adopting them.

Moreover, in this week's New England Journal of Medicine, Doctors Yngvild Olsen and Joshua M. Sharfstein present a thoughtful op-ed focused on Zohydro ER and the greater issue of the intersection of chronic pain and pain management medication. They write:

Chronic pain, which affects tens of millions of people in the United States, is associated with functional loss and disability, reduced quality of life, high health care costs, and premature death. U.S. physicians are now more likely to recognize and treat chronic pain than they have been historically, with the number of prescriptions written for opioids having increased 10-fold since 1990.
Over the same period, however, the rate of overdose deaths in the United States has more than tripled. This is not a coincidence. Many doctors have prescribed opioids for chronic pain without following best practices, understanding the risk for the development of substance-use disorders, or recognizing the red flags that can emerge in clinical practice. There is now evidence from states including our own, Maryland, that some individuals whose path to addiction may have started with a prescription for pain are progressing to heroin.

It is becoming crystal clear that re-educating doctors regarding opioid usage is central to any attempt to fix this problem.

It is also clear that this crisis is not about Zohydro ER, although the drug may prove a catalyst for change. Rather, we are witnessing a growing countrywide realization that we are slipping into a public health crisis unlike anything we have ever seen.

In the workers comp field, there is a glimmer of hope. Progressive Medical and PMSI yesterday reported a slight drop in the number of opioid prescriptions written, as well as the costs of those prescriptions in 2013. Other PBMs are reporting similar moderate declines. But that is workers comp, the tiny caboose on the great big health-care train.

This issue demands more than the piecemeal approach it now is getting. Lives, careers and families are being destroyed, while too many constituencies operate alone, unable to achieve any kind of a cohesive and comprehensive solution. It is time for the FDA, the AMA, the US Congress and Big Phama to come together in serious purpose to address this public health emergency, which is rapidly spiraling out of control.

If not, more of America's humanity will just continue to wither and die. We are better than that.

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April 9, 2014


The U.S. Food and Drug Administration (FDA) has acknowledged that prescription drug overdoses are now the leading cause of injury-related death in America, surpassing auto accidents. Couple that with the Agency's approval last October of Zohydro ER, the first pure opiate painkiller, and you begin to understand why many lawmakers are left scratching their heads. More than half the states' attorneys general have asked the FDA to withdraw approval of the drug. But the Agency is unrepentant. FDA Commissioner Margaret Hamburg told the Senate that the drug is a safe and effective option for patients with excruciating pain.

In late March, a stymied Governor Deval Patrick took the highly unusual step of banning the sale in Massachusetts of the controversial opioid made by California-based Zogenix, Inc. Many in the Massachusetts legislature as well as a number of workers compensation claims professionals thought it was the best thing any governor had ever done, a bold step to protect the citizenry.

Only it's not as simple as that. It's turning out that, however well-intentioned Governor Patrick may be, he probably can't ban the sale of the drug, after all. Yesterday, US District Court Judge Rya W. Zobel told state lawyers that by Monday she wanted to see a lot more research that would buttress the Governor's ban. Nonetheless, she said that she would more than likely grant a preliminary injunction on behalf of Zogenix that would allow Zohydro ER's sale in Massachusetts. Said Zobel, "I think, frankly, the governor is out of line on this."

According to Patrick, his issue with Zohydro ER is that it is not in "an abuse-resistant form," meaning that it is not crush-resistant. Consequently, addicts (or anyone else who has the drug, for that matter,) can crush it and snort it or inject it.

Why would anyone want to do that instead of simply washing it down with a sip of water? Because in its pill form Zohydro ER is an "extended release" medication. That's what the ER stands for. In fact, Zohydro's full legal name is Zohydro ER (hydrocodone bitartrate) Extended Release Capsules. Crushing and snorting or injecting simply bazookas the whole dose at one time, which can be a deadly proposition.

Zogenix's President, Steven J. Farr, attended yesterday's hearing and, afterwards, took pains to let everyone know that Zohydro ER is safer than other hydrocodone drugs because it does not contain Acetaminophen, which can cause liver damage and failure with prolonged, high-dose usage. Farr did not mention that Zohydro ER contains up to five times the hydrocodone found in Vicodin. He did say that the company is in early stage development of abuse-deterrent formulations of the drug. That gave cold comfort to the Governor.

Whatever happens, it is hard to believe that Governor Patrick, a very smart lawyer, actually thinks he's on firm legal footing here, although outside the courthouse that's exactly what he said. As Judge Zobel pointed out (and she was decidedly irate that Patrick banned the drug without ever talking with Zogenix), Patrick cannot blame the Massachusetts opioid epidemic on Zohydro ER because the drug has yet to be dispensed in the state. She urged lawyers for the state and Zogenix to meet before the hearing scheduled for Monday, but she told everyone that Zogenix "probably will prevail."

I have a few thoughts about this little mess:

First, it is not the fault of Zogenix that we have an opioid epidemic in Massachusetts or anywhere else. Yes, there's an epidemic, but drug makers didn't cause it. Irresponsible physicians, doctors who consider the Hippocratic Oath to be a mere suggestion, have placed their patients on the slippery slope to hell by prescribing over and over again strong and addictive narcotics for conditions for which those narcotics were never intended.

Second, the vast majority of physicians would never knowingly over-prescribe any medication. They have not forgotten that Oath and why they went to medical school. The ones I know resent and cannot understand the over-prescribers.

Third, although I wish it had built crush-resistance into Zohydro ER from the beginning, Zogenix did nothing wrong here. In fact, the Zogenix complaint notes: "When FDA approved Zohydro, it considered but rejected the idea of requiring the drug to utilize abuse-deterrent technology." The company did everything it was supposed to do in gaining FDA approval. And that isn't easy. One of the more difficult tasks in the universe is to get FDA approval for a new drug. The camel through the eye of the needle doesn't even begin to describe the process. It takes many years and boatloads of money. So, you can understand that after all those years and money devoted to bringing this drug to market, to have it summarily banned is a bit hard to take.

Fourth, there are many people who suffer with agonizing pain. Think end-stage cancer. Those human beings need and deserve the best pain amelioration they can get, and the goal of the pharmaceutical industry, in addition to making money, is to give them that relief.

Finally, ending the opioid epidemic will require political courage and a much more highly-regulated process to oversee and assure that the relatively few ethically-challenged, weak-kneed and overly greedy physicians who now abuse their privilege are forced to change their bad behavior and follow that "do no harm" rule. If it weren't for them, there would be no epidemic.

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February 12, 2014


The surprising overdose death of acclaimed actor Philip Seymour Hoffman has put a spotlight on a national epidemic: prescription drug abuse. In workers' comp, prescription drugs have been an area of great concern for a number of years; so too in the public health and policy arena. But has the message -- and the necessary education -- filtered to the general public? It would seem not: According to the CDC, prescription painkiller overdoses nearly quadrupled in the decade from 1999 to 2008.

This past week, the New York Times framed the new reality: Prescription Painkillers Seen as a Gateway to Heroin

"Dr. Jason Jerry, an addiction specialist at the Cleveland Clinic's Alcohol and Drug Recovery Center, estimates that half of the 200 or so heroin addicts the clinic sees every month started on prescription opiates.
"Often it's a legitimate prescription, but next thing they know, they're obtaining the pills illicitly," Dr. Jerry said.
In many parts of the country, heroin is much cheaper than prescription opiates. "So people eventually say, 'Why am I paying $1 per milligram for oxy when for a tenth of the price I can get an equivalent dose of heroin?' " Dr. Jerry said.
In many parts of the country, heroin is much cheaper than prescription opiates. "So people eventually say, 'Why am I paying $1 per milligram for oxy when for a tenth of the price I can get an equivalent dose of heroin?' " Dr. Jerry said."


Oklahoma: One state's experience

The investigative journalism non-profit Oklahoma Watch recently published a report on the state's addiction: As Drug Deaths Rise, Millions of Narcotic Prescriptions Filled

According to this report, Once occupying the ignominious position of first in the list of states with prescription drug abuse, Oklahoma is now #8 on the list. In 2012, 844 Oklahomans were killed by overdoses, eclipsing the year's 708 traffic fatalities. The state has a real-time Prescription Monitoring Program that is reported to be one of the best in the nation, but doctors are not required by law to check the database before prescribing controlled dangerous substances. There was an average of 68 prescriptions per patient.

Oklahoma is also seeing a steep rise in heroin use, echoing the concept and experience that opioids are the gateway drug.

"Hal Vorse, a physician who treats habitual drug users and teaches new doctors about addiction at the University of Oklahoma Health Sciences Center, said he's seen the phenomenon in his own practice.
"We're seeing a big surge in heroin, and 85 percent of those people started on prescription opiates," said Vorse. "The cost of their addiction got so high that they switched to heroin because it's cheaper."
Vorse said the price on the street for OxyContin has risen to $1 to $1.50 per milligram. Addicts typically use 200 to 300 milligrams per day, he said. "They find out they can get an equivalent dose of heroin for a third of what it costs for Oxys," Vorse said."

On the Workers Comp front
Meanwhile, in workers' comp's battle against opioids, Joe Paduda says that Opioid guidelines are about to get a whole lot better with the anticipated upcoming release of guidelines by ACOEM. He's has a sneak peek and finds them to be "comprehensive, extremely well-researched and well-documented, and desperately needed."

But he also points out that more progress is needed: Why don't workers' comp payers have pharmacists on staff?.

"I'm only aware of three major work comp insurers (Travelers, BWC-Ohio, Washington L&I) that have pharmacists on staff; the North Dakota State Fund does as well.
With pharmacy costs accounting for somewhere around 15% of total medical spend, that seems like a "miss". Yes, pharmacy costs have been flat in recent years, but the impact of drugs on work comp claim duration and the medical and indemnity expense associated with long-term drug use is quite significant.


The National Conference of State Legislatures offers an overview of state laws

CDC on the Drug Overdose issue

Vital Signs: Overdoses of Prescription Opioid Pain Relievers --- United States, 1999--2008

Prescription Drug Overdose: State Laws

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July 23, 2013


Back in 2009, we blogged an expose from the New York Times concerning the abuse of independent medical exams (IMEs) in New York. The article quoted 79 year old Dr. Hershel Samuels, who performed as many as 50 exams in a day. He filled out a checklist and let others write the reports. Did he read these reports? "I don't," he said. "That's the problem. If I read them all, I'd have them coming out of my ears and I'd never have time to talk to my wife. They want speed and volume. That's the name of the game."

Muckraking journalism apparently did not solve New York's IME problem. Which brings us to orthopedist Michael Katz, who makes a pretty good living performing, among other things, about 1,000 IMEs a year for the state of New York. [Details can be found at the invaluable Workcompcentral (subscription required).] After examining an injured worker, Manuel Bermejo, Dr. Katz wrote up his findings. In testimony, he declared that he spent 10 to 20 minutes with Bermejo. Unfortunately for Dr. Katz, Bermejo secretly recorded the session, which lasted just four seconds shy of 2 minutes.

Tantrum in the Court
When presented evidence of the IME's duration, Queens Supreme Court Judge Duane Hart went ballistic. "How do I stop carriers from putting people like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand?" Judge Hart referred the transcripts of the proceedings to a Queens administrative law judge for potential perjury action against Dr. Katz.

The judge's rage is understandable: IMEs are a vital activity in workers comp: in theory, IMEs offer a fresh, objective look at a worker's injuries to determine what, if anything, is wrong, the extent of the disability and the role work played in it. In an ideal world, the IME is dispassionate, with no vested interest in the ultimate determination of compensability.

Good Faith, Bad Faith, No Faith
Dr. Katz claims he has been set up by plaintiff attorneys, who believe he acts primarily to further the interests of insurance carriers. (Here is a link to a plaintiff attorney's blog featured Dr. Katz and other alleged abusers of IMEs.) On the other hand, there are surely IME doctors who tend to find in favor of injured workers and are thus favored by plaintiff attorneys, .

The world of medicine is supposed to be driven by objective medical evidence, but doctors are hardly robots, evidence is in the eye of the beholder and what the doctor sees might well be influenced by political views, personal history and, yes, even financial considerations.

It is interesting to note that the Bermejo claim began in the workers comp system, where the benefits are limited to lost wages and medical costs. Because the injury involved a fall from heights, the claim also fell under New York's unique - and understandably unreplicated - Scaffold Law. But the claim now involved literally millions of dollars: Bermejo was suing the hospital where he was treated for malpractice. It is this last suit that brought Dr. Katz into Judge Hart's courtroom. The judge was hoping for an objective analysis of the claim in order to determine whether the hospital had really screwed up. Alas, he ended up with no faith whatsoever in the quickie IME performed in the proverbial New York minute.

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March 26, 2013


Imagine identical injuries to two workers: one is a junior college graduate, the other lacks a high school diploma;one can read and compute fairly well, the other reads at the 8th grade level and performs math at the 6th grade level. The injury involves failed back syndrome, with the injured worker experiencing fairly constant pain and the inability to perform sustained physical work.

In the world of workers comp, the first worker is deemed "employable" and entitled to temporary total benefits, followed (in some states) with a lump sum settlement for permanent loss of function. The second worker, lacking the education and skills to transfer to another job, is awarded permanent total disability benefits. In the two claims involving identical injuries, a marginal education pays.

For many years, Missouri resident Todd Grauberger worked for Atlas Van Lines, moving furniture and household goods. He performed heavy lifting routinely, avoiding physically demanding work only when driving from pick up point A to delivery point B. Ironically, his injury did not involve heavy lifting: in December 2001, he bent over to put padding on a nightstand - something virtually anyone could do - and felt an immediate pain in his back. His herniated disc required surgery. Even after some minor improvements, he continued to suffer from substantial pain and numbness in his legs. He was diagnosed with a phrase that terrifies any injured worker - and any claims adjuster: "failed back syndrome."

Grauberger filed for permanent total disability benefits. His employer countered with a vocational rehabilitation assessment that concluded - without directly interviewing Grauberger - that he could perform light factory work or perhaps drive a car or truck. But the claimant's doctor countered that with a failed back and almost no transferable (non-physical) skills, Grauberger was unemployable for any position that he might be qualified to hold. In other words, his only employable asset was the labor of his body and his body was irreparably broken. In a unanimous decision, the Court of Appeals in Missouri sided with Grauberger and upheld the award of permanent total benefits.

Hiring Conundrum
Employers do not give much thought to transferable skills when they hire new employees. They simply hire people qualified to do the work. Indeed, for jobs requiring sheer physical strength, it is often cheaper to hire the lowest skilled available workers. But workers comp, long the great equalizer, takes a post-injury look at employability. Once maximum medical improvement has been reached, the issue for workers comp is simple: the worker is either employable or not. If employable, benefits come to an end. If there are no transferable skills and no reasonable prospect of employment, the benefits may continue for the lifetime of the worker.

Grauberger will never again have to worry about finding gainful employment. Because he can offer nothing of value to the labor market, and because of his persistent, debilitating pain, he will be supported by workers comp indefinitely. It's an odd calculus, seemingly rewarding the absence of marketable skills beyond the strength in one's body. In this Missouri case, limited skills and limited education secure a future well beyond the reach of a failed back and a failing body.

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March 4, 2013


After two stimulating days at the Workers Comp Research Institute conference, the Insider is ready to solve the opioid problem. To be sure, WCRI is a research-driven organization and makes no claims of solving problems; it simply reveals them through stark, powerful data. However, in a series of presentations ranging from improving the way doctors prescribe drugs through the mobilization of entire communities to tackle the problem, the conference has illuminated the path toward a favorable resolution of this increasingly dire problem.

Dr. Karin Mack of the Centers for Disease Control established the parameters of the problem: death from drug overdoses - mostly involving prescribed medications - now kills more people than traffic accidents. While heroin and cocaine account for about 4,000 deaths annually, opioids kill four times as many people - more than 16,000 in 2010. Most of the drug overdoses involved people of working age (between early 20s and 60). Dr. Mack identified the population most at risk:
- "Doctor shoppers"
- People receiving high daily doses of opioids and those using a variety of drugs
- Low income people and those living in rural areas
- Medicaid populations
- People with mental illness or a history of substance abuse

When the discussion shifted specifically to workers comp, the data becomes even more alarming. In some states, over 80% of injured workers receive opioids for pain relief - way too many! The prescribed doses are often much higher than is medically necessary. For many workers, the prescriptions extend for many weeks, even though pain usually subsides relatively quickly. And finally, very few doctors are monitoring patients who have been prescribed opioids.

Doctor Problems
Given that drug abuse has reached catastrophic proportions, and given that most of the problem involves prescribed - as opposed to illicit - medications, it is becoming increasingly clear that doctors are a big part of the drug problem. They are too quick to prescribe opioids; they prescribe them for too long; and they fail to monitor injured workers who are on these medications. The first red flag, in other words, is raised over the heads of our medical practitioners.

Dr. Dean Hashimoto outlined a Massachusetts initiative that significantly reduced doctor mistakes in prescribing opioids (a summary of the state's approach can be found here). The guidelines:
1. Distinguish between acute and chronic pain. For acute pain, doctors should explore ady and all alternatives before prescribing opioids and then carefully re-evaluate before extending the initial prescription.
2. For chronic pain [in itself a red flag], doctors should run urine screens to determine whether the prescribed drug is being used properly and whether other drugs have been taken; they should meet fact to face with patients as frequently as needed; and they should try to focus on function rather than pain.

Note that these are steps that doctors should, but all-too-often don't take. Combine that with the fact that a small number of doctors are generally responsible for a huge number of prescriptions: in California, 3% of doctors prescribe over 50% of the opioids. Once again, doctors are at the root of the drug problem.

In addition to improving best practices in the medical use of opioids, we need to know more about prescription practices. This involves the evolving tool of prescription drug monitoring programs (PDMPs), which track prescription practices of doctors across a given state. Because the programs are state based, they vary widely on how they work: what is tracked, how often data is submitted, how it is analyzed and what is done with it. Ideally, to be effective, the data should be collected on a real-time basis, but in practice, it's generally submitted weekly. Ideally, there should be standards across all state PDMPs: everyone collecting the same data, in the same form, generating information on prescription practices and "hot spots" with consistency.

Brandeis University's Center for Excellence identifies the best practices for PDMAs. But we live in an age where uniform standards are anathema. It's just not going to happen, so we'll have to live with the current chaos - which, however inadequate, is better than nothing.

Community Mobilization
While there is much that can and should be done at the doctor-patient level to fix the opioid problem, such efforts cannot solve the problem. We can actually map the crisis across the country and identify specific communities that have been devastated by drug abuse. The conference highlighted efforts in eastern Kentucky, where in some counties half the children are being raised with no parents in the home (the parents being dead from overdoses, incapacitated by addiction or in prison). Under Operation UNITE, the community has responded with a combination of drug enforcement, coordinated treatment, support for families and friends of abusers, education and mentoring for young adults. They teach kids archery and fishing, among other things, surely an example of putting the beautiful natural surroundings to good use.

It is hardly surprising that one focus of UNITE is the pill mills that are frequently found in poor, rural areas. One doctor prescribed over 100,000 pills a month (!) by issuing 40-50 scripts each day (!). Don't bother asking whether Dr. Hashimoto's standards of treatment were followed.

The Path to a Cure
The WCRI conference illuminates the path toward solving the opioid abuse catastrophe: teach doctors how and when to use these powerful drugs and how to find alternative treatment forms; carefully monitor injured workers on opioids to ensure proper use; severely limit the use of these drugs over the long term; monitor prescription practices to identify doctors who are not with the program; and provide support, mentoring and education to young people in high risk communities.

There are many obstacles to implementing a comprehensive and effective program, but in those areas where key elements have been established, the incidence of opioid abuse has been dramatically reduced. It is ironic, of course, that the stakeholders who must "do no harm" are in fact in the forefront of the problem. They can and must do better. Medicine got us into this mess and it is medicine, with its highly trained and presumably well-intentioned practitioners, that must lead the way out.

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February 7, 2013


The Insider is very much looking forward to the Workers Compensation Research Institute (WCRI) annual conference, taking place on February 27-28 in the virtual epicenter of wonkiness, Cambridge MA. There is always much food for thought in these annual gatherings of insurance execs, state officials, policy makers, attorneys, medical specialists, employers and safety/loss control practitioners.

This year's agenda has zeroed in on the fundamental medicine-related conundrums facing workers comp systems across the country. All of us in workers comp long for insights into the following:
- Unnecessary medical care and its impact on treatment guidelines. (Back surgery, anyone?)
- Medical price regulation: what are the essential elements of an effective fee schedule? (Beware of the state where the doctors love comp...did someone mention "Connecticut"?)
- The Opioid epidemic: treatment protocols involving the generous and prolonged distribution of opioids are destroying lives across the country. Why are so many doctors so clueless about the proper use of pain killers? Whatever happened to "do no harm"?

WCRI's head honcho, Dr. Richard Victor, will host a discussion on health care policy involving (the presumably liberal) Howard Dean and (the assuredly conservative) Greg Judd. The dialogue might not equal the fireworks of July 4th on the Esplanade, but it might come close. The Insider will be listening closely for any indications of that rarest of phenomena: a common ground.

From Gorilla to ?
Last year, Dr. Victor concluded the conference with a discussion of the "gorilla in the room": the enormous and perhaps insoluble problem of structural unemployment among the 20 million people who lost jobs in the recent recession. For many of these people, especially those in their 50s and 60s, there is little prospect of returning to jobs with anywhere near the same rate of pay as before. Many will find themselves lost in the new economy, cobbling together part-time employment without benefits, while struggling to hold onto housing where mortgages exceed the value of the home. Tough times and, so far, not much in the way of effective solutions.

This year Dr. Victor will have to find some other animal analogy to glean lessons from history: Giraffe in the closet? Rhino in the den? He tells us that the lesson might have something to do with the first century Ephesians, toward whom St. Paul addressed some rather famous snail mail. While some might find such a teaser a bit obscure and full of religious overtones, the Insider looks forward to the story. Indeed, we look forward to this year's entire conference with great anticipation. There are few things better for policy wonks - our people! - than listening to the latest research from WCRI. Diligent note-taking will be in order.

If you count yourself among those with wonkish tendencies and you haven't signed up yet, you'd best jump on it immediately. If you have any questions about the conference, contact Andrew Kenneally at WCRI: 617-661-9274.

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December 11, 2012


If you think you are having a bad day, consider the healthcare providers and patients of the Australian Miami Family Medical Center, all of whom have been locked out of medical records. Thousands of patient medical histories, prescriptions, lab test results and health records have been breached, hijacked and encrypted, and are being held for ransom by Russian hackers.

This is not an isolated incident by any means - earlier this year, a small Illinois medical practice was similarly breached with health records stolen, encrypted, for held for ransom. Extortionists also struck Express Scripts a few years ago, threatening exposure of more than 700,000 records.

Not all health data breaches are the result of hackers. In fact, hackers may be the tip of the iceberg. The less dramatic day-today threat of unsecured mobile devices, lost laptops, and disgruntled or dishonest employees likely represents the lion's share of the breaches -- at least at present. And such problems are hardly unique to healthcare - the issue of employees bringing mobile devices into the workplace is a common one, dubbed "bring your own device" or BYOD for short. Security experts quip that it stands for "bring your own danger."

Medical ID Theft
While ransom may not be a particularly successful criminal strategy, the real paydirt might be in medical identity theft. With the high cost of medical care and a proliferation of opioid abuse, medical IDs are increasingly valuable. Thieves can hijack medical identities and health data to file insurance claims or secure medical treatment, prescription drugs and even surgery. On a broader scale, operatives can use medical data to submit false bills to insurers. To add insult to injury, illegal medical transactions may unknowingly be added to patient records, making for inaccuracies and potentially dangerous situations.

People are aware that they could be a victim of financial fraud - medical fraud, not so much. A study by Nationwide Insurance revealed that most people are unaware of the risk of medical ID theft. While people are in the habit of checking financial accounts somewhat regularly, that is often not the case with medical records.

Expect growing risk for health data
Experts say that we can expect to see more healthcare breaches ahead - particularly as more records are digitized. A recently released study on patient data security by Poneman/ID Expert reports:

Ninety-four percent of healthcare organizations surveyed suffered at least one data breach; 45 percent of organizations experienced more than five data breaches during the past two years. Data breaches are an ongoing operational risk that could be costing the U.S. healthcare industry an average of $7 billion annually. A new finding indicates that 69 percent of organizations surveyed do not secure medical devices--such as mammogram imaging and insulin pumps--which hold patients' protected health information

The report paints a picture of an industry that is woefully unprepared to deal with the burgeoning threat. Most organizations surveyed said that they have insufficient resources to prevent and detect data breaches.

In health data breaches involving more than 500 people, HIPAA privacy regulations specify that, in addition to individual notifications, the incident must be reported and made public (See Breach Notification Rule). The US Department of Health & Human Services maintains a database of health data breaches affecting 500+ people - you can check to see if any of your providers are on the list. The Federal Trade Commission offers consumer advice on preventing or recovering from medical identity theft.

Besides individual consumers, employers, insurers and TPAs should be alert for health data fraud and should report any questionable activity. As entities with greater buying power than the average consumer, wholesale buyers can also help manage the risk by requiring adherence to security and privacy standards and having crisis plans in place as part of the RFP or buying process.

Rick Kam, president and co-founder of ID Experts, offers these security tips to healthcare organizations:

  • Operationalize pre-breach and post-breach processes, including incident assessment and incident response processes
  • Restructure the information security function to report directly to the board to symbolize commitment to data privacy and security
  • Conduct combined privacy and security compliance assessments annually
  • Update policies and procedures to include mobile devices and cloud
  • Ensure the Incident Response Plan (IRP) covers business associates, partners, cyber insurance

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December 5, 2012


NCCI Holdings has issued a report on the impact of co-morbidities on workers comp claims. While there are few surprises, the research is able to point toward a handful of specific conditions that are most likely to drive up the cost of a claim: hypertension, drug abuse, chronic pulmonary problems and diabetes. The research also confirms a particular red flag that has frequently been the focus of this blog: the impact of the aging workforce on the costs of workers comp.

The overall scale of the co-morbidity problem is relatively modest: only 6.6 percent of claims involve workers with co-morbid conditions that directly impact their treatment; however, this reflects a nearly a three fold increase between 2000 and 2009. In those claims where co-morbidities are a factor, the cost of medical treatment is double that of less complicated claims. Co-morbidities begin to show up in workers in their mid-30s and rise with age. Workers with co-morbidities are more likely to work in contracting or manufacturing - as opposed to clerical/office and goods and services. Finally, injuries to workers with co-morbidities are more likely to involve lost time, transforming what might normally be a medical-only claim into one involving indemnity.

The majority of claimants with co-morbidity diagnoses are male: 65 percent of all claimants, 73 percent of claims involving drug abuse, 68 percent of claims involving diabetes and 67% of claims involving hypertension. This may also correlate to the fact that men are more likely to be involved in physically demanding jobs, where co-morbidities would have more of an impact on recovery.

American Health
The study notes that illness rates in the general population are increasing, especially in the areas of hypertension, obesity and diabetes. As the incidence rates increase in the general population, the workforce will mirror this growth. While workers with co-morbidities currently comprise only 6.6 percent of injured workers, we should expect to see a steady climb in that percentage over time..Amercian workers reflect American health.

It will be fascinating to track the impact of (virtually) universal healthcare - AKA Obamacare - on workers compensation. For starters, we can hope for earlier diagnosis and treatment of serious health problems. Where workers without health insurance were highly unlikely to undergo treatment for their non-work related conditions, insured workers may receive treatment. Where uninsured workers were only covered by workers comp - and then only for work-related injury and illness - insured workers will have access to preventive care all along. This might help to contain the growth of workers comp costs.

As always, medical treatment under workers comp represents just a miniscule portion (about 3 percent) of total medical costs in America. There is an elephant in the room and it isn't us. But what happens to that elephant will impact the unique, 100 year old public policy experiment that is workers comp. In this era of data mining, there will be much data to be mined.

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November 20, 2012


When a laborer with limited English is disabled from physical work, is he obligated to increase his employability by learning English? This interesting question emerged in the case of Enrique Gutierrez, a 48 year old welder who worked at Merivic, a company specializing in grain-related processing. Gutierrez came to the United States at age 14, but in his 34 years in the country never learned to speak or write English. While at work, Gutierrez fell about 10 feet onto a steel table, injuring his shoulder and wrist. He underwent two surgeries, worked for a while as a one-armed welder, and then was let go. His post-injury functioning was significantly limited, including difficulty lifting and carrying, gripping and grasping, and reaching.

When the workers comp commission found him permanently and totally disabled, the employer appealed and the case reached the Iowa Court of Appeals, where the finding of compensability was upheld. Up until 2007, Iowa courts routinely lowered the indemnity paid to limited English speaking workers, on the theory that a language disability was something within the power of the worker to correct. A case entitled Lovic v. Construction put an end to that practice. The reasoning in this decision is worth quoting:

Unfortunately, this line of cases [involving reduced indemnity] overlooked the fact that the employers who hired these workers should have reasonably anticipated that an injury which limits an ability to return to manual labor work would have far more devastating consequences upon non-English speaking workers than English speaking workers. Oftentimes, this agency has penalized non-English speaking workers despite the knowledge that the employers actually recruited such workers because they were willing to work for less wages.

In other words, you get what you pay for: limited English speaking workers are willing to work for less, so the employer benefits from this potential "disability." The ruling goes on to attack the rationale for the reduced wages:

What has been troublesome to many, including myself, is that this agency has never similarly treated non-immigrant workers for failing to learn other skills. Defendants would certainly have trouble citing any agency or court precedent in the workers' compensation arena where an industrial award for an English speaking worker was lowered because the injured worker, before the injury, failed to anticipate he would suffer a devastating work injury and failed to obtain a type of education before the injury that would mitigate the effects of such an injury.

We simply cannot assume that claimant was capable of such training or that such classes are generally successful in leading to employment where fluent English is required . . . .

By reiterating the logic of the pre-Lovic court, Merivic was attacking settled - albeit recently settled - law. The Appeals Court rejected this "collateral attack" on Lovic and upheld the permanent total award, and in doing stumbled upon yet another conundrum: that of the older worker. The court found that once a laborer goes beyond age 47, his ability to perform physically demanding work comes into question. A vocational expert retained by Gutierrez described the 48 year old worker as "approaching advanced age." The Judge noted that "We have previously held the age of forty-seven is a factor that the commissioner may consider in finding industrial disability." The expert also noted that Gutierrez's entire career involved "limited education" and a work history limited to physically demanding jobs, which his permanent work restrictions now prevented him from performing.

The Very Big Picture
Our Colleague Peter Rousmaniere provides a valuable perspective on aging manual workers. In his Risk & Insurance article "The Age Trap" he points out that 55+ workers comprised 16.7 percent of the workforce in 2010, a number projected to increase to 22.7 percent by 2020. In contrast to Enrique Gutierrez, most aging workers are not injured and eligible for workers comp; to be sure, their bodies are wearing down and they are confronted with diminishing strength and balance, even as they desperately try to hold onto their places in the workforce. Rousmaniere suggests that employers develop a renewed focus on prevention, one that has been adapted to the realities of the aging worker. After all, these workers are valued for the skill and experience they bring to the work, even as their work capacities diminish.

The Big picture here - and it is a very big picture indeed - is the dilemma of aging workers who perform physically demanding jobs and who have little education and virtually no transferable skills. There are millions of such workers, some are immigrants, while many others are native born. Most have zero prospects for a secure retirement, even as Congress contemplates pushing social security retirement even further into the future.

Whether they like their jobs or not, aging workers see themselves working out of necessity well into the their 60s, 70s and even 80s. As their bodies inevitably wear out, as their injuries (cumulative and sudden) lead a number of them into workers comp courts across the country, judges will be confronted with the same dilemma that faced the appeals court in Iowa: for older workers with no transferable skills, workers comp becomes the retirement plan of choice for those with no retirement plans and no way to continue working.

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November 15, 2012


OK, this is something we never contemplated...straight from the Seattle Police Department's Blotter, we bring you Marijwhatnow? A Guide to Legal Marijuana Use In Seattle.

The guide offers an FAQ for citizens about the recently enacted Washington law, which decriminalizes possession of small amounts of marijuana by adults over the age of 21. And Washington is not alone... in Colorado, 55% of the voters recently voted to legalize individual possession of small "recreational" amounts of marijuana. Contrary to what you might think, the vote wasn't all cast by erstwhile hippies and young pot aficionados - some conservative proponents cited the potential billions in tax revenue and the benefits of unclogging the court systems and freeing police time by removing nettlesome petty criminal prosecutions

These voter approvals for recreational use mark a new twist - prior legislative approvals have dealt with medical use of the drug. Last week's election saw other marijuana ballot initiatives in this vein - medical marijuana use was approved in Massachusetts, making it the 18th state (plus DC) to give the nod to medical marijuana use; however, Arkansas voters nixed their ballot initiative 51% to 48%.

The Devil is in the Details
Even with state initiatives, marijuana is still illegal at the federal level. Plus, as with most things, the devil is in the details and most states are scrambling to figure things out. But the train has left the station and is definitely gathering steam so this is an issue that employers need to take seriously. In the Seattle Police guide linked above, we note that the police are looking at the employment-related implications of the law, as well as other matters.

Q. Will police officers be able to smoke marijuana? A. As of right now, no. This is still a very complicated issue.

Q. If I apply for a job at the Seattle Police Department, will past (or current) marijuana use be held against me?
A. The current standard for applicants is that they have not used marijuana in the previous three years. In light of I-502, the department will consult with the City Attorney and the State Attorney General to see if and how that standard may be revised.

"Complicated issue" sums things up nicely. We've compiled some commentary on the matter from various employment law authorities (and will no doubt bring you more in the future!)

Over at the LexisNexis Employment Law Community, attorney Donna Ballman reminds employees that Legal Marijuana Use Can Still Get You Fired. She cites case law on issues ranging from drug testing to the ADA. Most interestingly, she also discusses state laws that prohibit discrimination against medical marijuana users and prohibitions against termination/discrimination based upon an employee's lawful activities off-duty.

Vance O. Knapp writes about Amendment 64: how do employers address the legalization of marijuana in Colorado? He discusses this new law and the state's prior law allowing for medical marijuana use, and offers thoughts for employers. He cites this passage from Colorado's law:

Nothing in this Section is intended to require an employer to permit or to accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.

His post appears at Lexology, which has a good library of employment-law related articles on medical marijuana

Greg Lamm of the Puget Sound Business Journal spoke with labor and employment attorney James Shore, who offered five tips for employers to prepare for the new law. You should read his comments in full detail, but here's a quick summary of key points:
1. Have a written policy covering substances such as drugs and alcohol.
2. Make sure that policy covers any drugs that are illegal under state, federal and local law
3. Make sure that the policy prohibits any detectable amount of illegal drugs, as opposed to using an "under the influence" standard.
4. Employers with multiple locations in multiple states should have one consistent policy
5. Be prepared to see marijuana come up in collective-bargaining and termination negotiations with unionized employees.

We've also dusted off a few prior posts that we made on medical marijuana because they outline some issues employers will need to consider.

The current buzz on medical marijuana and the workplace

One Toke Over the Line

You can find more of our blog posts about pot by searching "marijuana."

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November 13, 2012


The last time we encountered Clayton Osbon, he was strapped to a gurney after being forcibly removed from an airplane. Osbon was a Jet Blue pilot who had a psychotic break during a flight from New York to Las Vegas back in March. He randomly flipped switches in the cockpit, turned off the radio and told his co-pilot that "things just don't matter." When he left the cockpit to go to the bathroom, the co-pilot locked him out of the cabin, after which he ran up the aisles, shouting incoherently about religion and terrorists. The flight was diverted to Amarillo Texas, where Osbon was arrested and charged with interfering with a flight crew - his own, as he was crew leader.

The psychotic episode lasted about a week. After a July trial, Osbon was sent to a prison medical facility in North Carolina for evaluation. He apparently suffered another psychotic episode in prison - a significant event, as it demonstrated that his illness was not a one-time incident caused by the combination of sleep deprivation and substance abuse.

At a recent hearing in Amarillo, a forensic neuropsychiatirst testified that Osbon had experienced a "brief psychotic episode" brought on by lack of sleep. Osbon was found not guilty by reason of insanity. The medical records are sealed - as they should be - but the requirement that Osbon attend a treatment program for substance abuse makes it clear that drugs or alcohol were a factor in the incident. U.S. District Judge Mary Lou Robinson has prohibited Osbon from boarding an airplane without the court's permission; he and a Jet Blue colleague had to drive the 1,300 miles from Georgia to Amarillo for the hearing. The court has also ordered him to seek alternative employment, as his prospects for flying an aircraft are likely gone forever.

Living with Mental Illness
Given his age (49) and the court directive to find alternative employment, Osbon finds himself in the same position as injured workers in the comp system whose disabilities prevent them from returning to their original jobs. As a pilot, Osbon has a formidable set of transferable skills, which theoretically should make finding a new career relatively easy. It is likely, however, that his earnings capacity will be severely reduced. In addition, given the fragility of his current mental state, he may be months away from being able to function in a work environment.

In the course of a few days in March, Osbon went from being a skilled and productive member of society to a confused, fragile individual incapable of functioning in the world as we know it. He is fortunate to be supported by his family - often the sine qua non of survival for people with mental illness. In rebuilding his life, Osbon faces the burden of demonstrating to others - and to himself - that he can once again be sane, reliable and stable.

Osbon's story embodies mystery - and agony - of mental illness. In his case, psychosis appears to have been triggered by a combination of sleep deprivation and substance abuse. But taking it one step further, perhaps the sleep deprivation and substance abuse were part of a desperate effort to mask and subdue a more primal turmoil in his mind. We only know the end result of that fierce inner struggle: a battle was lost, at least for the moment, and Osbon now faces a future where every gesture is scrutinized with fear and every day looms with uncertainty.

Formidable challenges now confront Osbon and those who support him: the search for a return to the simple joys of everyday life, where he can be comfortable in knowing who he is and what he needs to do. We can only wish him well.

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October 22, 2012


Jimmy Walters worked for the Florida Department of Corrections. In December 2009, he came down with a cold, but continued to work for a week. He suffered from chills and nausea on his days off and then experienced chest pain. He went to a hospital, where he was treated for "heart symptoms" and subsequently diagnosed with myopericarditis and cardiomyopathy. He was hospitalized for several days. He filed a workers comp claim, under the Sec 112.18, the "firefighter's presumption" which creates a rebuttable presumption of occupational causation for disabling heart disease.

For most workers, there would be no conceivable issue of compensability for flu-caused heart problems, but most workers do not work in the public safety arena and most workers are not protected by presumption laws. The facts of the case were not in dispute: there was a direct causal relationship between Walters's stomach flu and subsequent heart problems. His initial claim was denied by the state of Florida and by a judge on appeal, who ruled that Walters had not proven that his viral gastroenteritis was an occupational disease or that the exposure was traceable to the workplace.

The District Court of Appeal overturned the ruling and awarded benefits for the treatment of heart disease. The judges noted that the presumption statute shifts the burden of proof from the claimant to the employer: "The state had the burden to prove he did not get the virus at work, and failed to carry its burden." Some burden! The chain of causality is stark and rather crude: for public safety employees, any heart ailment caused by illness is compensable, unless the employer can trace the exposure to specific, non-work conditions. Where the cause/exposure is unknown - as in most cases - there can be no outcome other than the awarding of benefits.

By facilitating benefits to firefighters and police who may develop cancers or heart desease related to employment, law makers acknowledge the unique exposures for the people who protect us.[Back in 2008, my colleague Julie Ferguson provided the background for presumption laws.] But the generous language of these statutes may open the door to compensability far wider than any prudent legislature would intend.

The Politics of Presumption
In practice, presumption laws may create as many problems as they solve. For stressed taxpayers who ultimately foot the bills, cases of questionable compensability can be shocking: the firefighter with lung cancer who smokes two packs a day, the obese cop with heart disease, and now, the corrections officer with a flu-caused heart problem. Are these truly work related? For most people, the answer would be "no way." For the public safety employees covered by presumption laws, compensability is a given. Their safety net is woven of much finer cloth than that which protects most people in the working world.

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October 14, 2012


It would be pretty hard to avoid the news about sugar: it's bad for us. Diets high in sugar contribute mightily to the nation's burgeoning problems of obesity and diabetes and may even be a factor in dementia. But sugar in its crop form is also proving to be deadly. The cause and effect, however, is as murky as a cloudy day in the rainforest.

Will Shorr has written a remarkable, hands-on article in the Guardian, examining the high rates of chronic kidney disease (CKD) among the workers who grow and harvest sugar cane in Central America. CKD is the second leading killer of men in El Salvador.

Why are sugar cane workers succumbing to kidney disease? Is it the working conditions? Is it the pesticides? Is it the diet of the workers? Fingers are pointing in a number of directions, and by the time the truth is sorted out, we may well find a toxic trail that includes of all three factors.

Nicaragua Sugar Estates, one of Central America's largest plantations, has conducted its own internal studies, one of which identified one potential factor in the disease: "strenuous labour with exposure to high environmental temperatures without an adequate hydration program." .Nonetheless, a company spokesman denies the connection: "We're convinced that we have nothing to do with kidney disease. Our productive practices do not generate and are not causal factors for CKD."

But researchers in the US have connected CKD to heat stress and dehydration. A standard day for an El Salvadorian sugar worker lasts between four and five hours, with double shifts during the summer planting season, when temperatures top out at 104 degrees.

Shorr quotes Héctor García, a 33 year old with stage-two kidney failure: "It's very hot; we suffer. People sometimes collapse. More often they vomit, especially when the heat is worse. They do two shifts to earn more money." Another worker, 40 years old and close to death with stage five CKD, reported the same symptoms, compounded by the limited resources in his home: "When I come home, I feel surrendered. Sick. Headache. I can't shower because the water [from the roof-mounted tank] is too hot." The image of the hand-rigged shower, full of very hot water, epitomizes the wretched living conditions of the workers.

Compounding the problem, most CKD sufferers do not even know they are ill: the disease is asymptomatic until its last, most deadly stages. Even when they feel unwell, many workers go into denial - they feel helpless, as they cannot afford the medication or the recommended diet of fresh vegetables and chicken breast. Dialysis - the last hope of the ill - is often avoided, because most of the workers who go on it end up dead anyway, so it appears to their co-workers that dialysis causes the death.

Researchers have found rates of CKD in cane cutters and seed cutters - the most strenuous jobs - to be higher than in pesticide applicators, who have greater exposure to agrochemicals. This seems to indicate that the pesticides are not a significant factor. But this conclusion may be premature.

Five chemicals are used in the cultivation of sugar cane: amine, terbutryn, pendimethalin, 2,4-D and atrazine. Shorr sent the chemical recipe for the yellow potion he observed being sprayed on the crops to Professor Andrew Watterson of the University of Stirling - an authority on agrochemicals and health. They were all herbicides, he noted. Watterson came up with a litany of potential problems:

Atrazine can cause kidney damage at high levels; acute exposure to 2.4-D can cause chronic kidney damage; pendimethalin is "harmful through skin contact and inhalation"; in lab tests, long-term feeding of terbutryn to rats caused kidney damage. None of them are acutely toxic, but this combination, plus the tropical climate, could worsen their effects.

On the prevention side, sprayers are supposed to avoid contact with skin; to wear face shields, respiratory protection, rubber boots and specialist coveralls. We can only surmise that such protective equipment, while technically useful, would be difficult to use in 100 degree weather. On the other hand, assuming the sprayers are protected, other workers do not wear protection and may thus experience greater exposures to the chemicals.

Sugar in the Diet?
Shorr concludes his article with a shocking new study that points in yet another direction. Richard Johnson, of the University of Colorado's Division of Renal Diseases and Hypertension, thinks the problem might have its genesis in a mechanism that his team discovered in rats. Johnson speculates that if dehydrated workers with already sugary kidneys are rehydrating with soft drinks or fruit juice, they may experience a potentially explosive fructose load. He adds that "it's not proven, so we don't want to get ahead of the gun here [rather unfortunate metaphor]." The research has not as-yet been published. But Johnson goes on to say that the experimental data is quite compelling, and it "could explain what's going on."

It would truly be ironic if the cane field workers were dying from kidney failure in part because they use sugary soft drinks to rehydrate. "Buy the world a Coke" indeed!

Collateral Damage?
While it is too early to draw definitive conclusions, the Guardian article identifies at least three converging factors in the high CKD rates among field workers: extremely high heat compounded by hydration problems; a mix of potentially harmful pesticides; and an unhealthy diet too full of sweetened beverages. Add the impoverished living conditions of the workers - and marginal medical care - and you have all the makings of an abbreviated lifespan.

The US gets 23% of the its raw sugar from Central America; the European Union spends more than €4.7m on this import. Sugar is El Salvador's second-biggest export. This is big business. With so much money at stake, the dying workers are little more than collateral damage. It appears that what they really need is an ample supply of clear, cool water, but such a simple remedy, alas, is nowhere in sight.

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October 9, 2012


The alarming crisis precipitated by contaminated steroids has implications for the workers comp system. In Framingham, MA, two towns over from where I write, the New England Compounding Center has been shut down, but not before it shipped over 17,000 vials of methylprednisolone acetate, each potentially contaminated by fungal meningitis. Across 23 states, eight people have died and over 100 others have been sickened. As Denise Gray writes in the New York Times, the incubation period appears to be between a few days and a month; the last doses of the tainted medications were administered on September 17, so there are literally thousands of people at risk for a potentially fatal illness.

Because the steroid is used for the treatment of back pain, this crisis intersects with the workers comp system. Lower back injuries are among the most prevalent in workers comp; across the country, injured workers are receiving all forms of treatment, ranging from physical therapy to surgery to injections. An unknown portion of those sickened by the tainted drugs will have been treated for work-related injuries. These unlucky few will require lengthy and costly treatment, along with extensive hospitalization. They will be eligible for long-term indemnity payments, including support for any qualified dependents. These claims will total hundreds of thousands of dollars. Should an injured worker suffer a stroke - one of the many side effects of the disease - the claim is likely to become a permanent total disability.
[NOTE to comp attorneys: New England Compounding is out of business. The prospects for subrogation are remote.]

Exposure: Limited But Deadly
The good news, if indeed there is any, is that the source of the contamination is highly specific: it involves only drugs shipped by New England Compounding. Thus any injured workers receiving lumbar injections over the past few months can know for sure whether they are at risk. But that - and the fact that most people exposed to the drug will not become ill - is the extent of the good news.

Anyone exposed to the fungus is advised to seek medical help immediately if they experience any of the following symptoms: severe headache, fever, stiff neck, dizziness, weakness, sensitivity to light or loss of balance. For those who have received tainted injections, just reading that list would probably give rise to real or imagined symptoms.

Early treatment is essential and might save a patient's life. The untreated fungus can cause strokes. So logic might indicate that everyone exposed should receive preventive treatment. Unfortunately, the life-saving treatment itself carries risk: antifungal drugs must be administered for months and they can have serious side effects, including kidney damage. Thus those anxiously awaiting the first signs of illness can only watch the days tick by until they are beyond the incubation period. (Even if they do not become ill, individuals exposed to the risk might be tempted to pursue claims for PTSD, given the magnitude of the stress they are experiencing.)

Manufacture Versus Assembly
The Wall Street Journal points out that a 2002 Supreme Court ruling placed limits on any federal role in the oversight of drug compounding:

[The FDA] has been stymied by, among other factors, a 2002 Supreme Court decision. In the majority opinion, written by Justice Sandra Day O'Connor, the court struck down as unconstitutional the portion of a 1997 law setting out how the FDA would decide which compounding pharmacies it would regulate

The compounding - as opposed to manufacturing - of drugs is considered a pharmaceutical procedure, so the only oversight comes from the states. And given limited resources, states are not in a position to do the job thoroughly or consistently. As Representative Ed Markey (D-MA) put it, "compounding pharmacies currently fall into a regulatory black hole."

Most of the people receiving the tainted medication will soon be able to resume their normal lives. For the relatively small number who become ill, or even die, the promise of relief from back pain has been transformed by a scandalously unregulated industry into a broken promise of life-altering proportions. For those wondering what role, if any, government should play in free markets, this surely is an example of a place where government belongs.

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October 2, 2012

"Men wanted for hazardous journey. Low wages, bitter cold, long hours of complete darkness. Safe return doubtful. Honour and recognition in event of success."

That is the ad that was allegedly posted to attract crew to Sir Ernest Shackelton's Arctic Expedition on the Nimrod in 1907-09. There's been a lot written about this adventure to one of the then-most remote corners of the earth. It is still among the most remote wilderness locations today - contemporary workers who agree to stint at Antarctic bases have to prepare for a long haul since some locations only afford a two to three month window when bases are reachable.

A few years ago, when Gavin Francis accepted the position as a medical doctor 'wintering' at Halley Base, a profoundly isolated research station on the Caird Coast of Antarctica, he had to plan accordingly since the base is unreachable for ten months of the year. He's written a pretty fascinating article in Granta magazine comparing the preparations he took in terms of supplying a medical kit with the list of supplies in Shackleton's Medical Kit.

"In the well-stocked polar section of the little base library I unearthed the packing list for Shackleton's medical kit - the drugs and dressings he took on the sledge trips of his Nimrod Expedition of 1907, the one that turned back only ninety-seven miles from the South Pole. It added up to a weight of about three kilos, less than a sixth of the modern kit, and to my technomedical mind read more like a witch's grimoire than the best medical advice of just a century ago."

It's a pretty fascinating read, one that we think might tickle the fancy of occupational physicians. We enjoyed the author's observations about how the practice of medicine has changed, particularly in regards to the challenges of caring for a workforce in a remote location.

Chances are, no matter how remote your workplace, planning for employee health and safety program doesn't have quite the same extremes in parameters. But one thing remains true: advance planning can still mean the difference between life and death; knowing how to respond quickly can be the difference between a relatively minor event and a life-changing tragedy.

What's the status of your workplace first aid kit?
In Fundamentals of a Workplace First-Aid Program (PDF), OSHA suggests:

"Employers should make an effort to obtain estimates of EMS response times for all permanent and temporary locations and for all times of the day and night at which they have workers on duty, and they should use that information when planning their first-aid program. When developing a workplace first-aid program, consultation with the local fire and rescue service or emergency medical professionals may be helpful for response time information and other program issues."
The booklet outlines OSHA Requirements, recommended First-Aid Supplies, including Automated External Defibrillators, guidance on First-Aid Courses and Elements of a First-Aid Training Program. In addition to evaluating their own organization's risk factors, employers should be aware of any state laws governing workplace first aid.

ANSI/ISEA Z308.1-2009 is the current minimum performance requirements for first aid kits and their supplies that are intended for use in various work environments. You can purchase these through the American National Standards Institute (ANSI) or the International Safety Equipment Association (ISEA). If you want to save a few dollars, you may be able to find a free copy, such as the one we found minimum contents list from the Minnesota Department of Labor and Industry.

Automated external defibrillators (AEDs) programs are an increasingly common component in a workplace health and safety program to address sudden cardiac arrest. These programs require some medical guidance and training to put in place.

Arguably, one of the most parts of your emergency planning should be to prepare your employees and your supervisors about what to do in the case of a medical emergency. Put your policies and protocols writing and communicate them to your employees frequently. Don't forget to include solitary and remote workers in your emergency planning.

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August 29, 2012


In this era of data mining and predictive analytics, it's really not that difficult to project which comp claims are headed for "catastrophic" levels. Just follow the meds. A new study entitled "The Effects of Opioid Use on Workers Compensation Claims Cost in Michigan" establishes a direct link between long-acting medications and the eventual magnitude of the claim. Where short-acting opioids are involved, the claim is 1.76 times more likely to break the $100K barrier; with long-acting medications, the likelihood increases to a whopping 3.94. The researchers, including Jeffrey Austin White and Jack Tower of Accident Fund Holdings in Lansing MI, demonstrate what has been long known anecdotally: the use of opioids is an "independent risk factor for development of catastrophic claims."

The study examined over 12,000 claims that opened and closed between January 2006 and February 2010. (Had they included claims that were still open, the numbers may have been even more dramatic.) In an effort to isolate just how much opioids drove up the costs, the study accounted for other risk factors including sex, age, attorney involvement, the number of medical treatments and claim duration.

Pain and Dr. Sajedi
There is a relatively simple logic at work: injuries cause pain and opioids alleviate extreme pain. The question, naturally, is which injuries require extreme pain relief and which could be managed with lesser medications. Far too many doctors are too quick to prescribe narcotics, even as they fail to implement the most elementary safeguards to ensure that the drugs are used properly and for as short a duration as possible. (A comparable problem exists with the overuse of antibiotics; doctor training clearly needs more emphasis on pharmacology.)

Which brings us to Dr. Ebrahim Sajedi, 46, an internal medicine specialist in California who gets good reviews from his patients. Trained at the Rochester School of Medicine, Sajedi was busted on 12 felony counts of prescribing medications without a legitimate purpose. He provided scripts for Vicodin, Adderall, Klonopin and similar drugs to four undercover police officers without examining them and for no medical purpose. Why buy drugs on the street when you can get the good stuff from a certified specialist?

Bottom Lines
The prevalence of strong drugs in the comp system should come as no surprise. We live in a culture where we are supposed to live pain free, virtually forever, stimulated and distracted in every waking moment. We can hardly fathom the pain that mankind endured in every generation up until recent times. There is a complex, perhaps ultimately incomprehensible alchemy that takes place when pain relievers are introduced into the body. But this relief comes at great cost and even greater risk.

In workers comp, the cost is borne by the employer. The quick pain fix of opioids inevitably finds its way to the employer's bottom line in the form of prolonged absence from work, higher costs, higher experience mods and bigger insurance premiums. We have long suspected that injured workers on opioids stay out of work far longer than is medically necessary and often find themselves in the downward spiral toward a permanent disability lifestyle. With this Michigan study, we have further documentation that the promiscuous use of drugs undermines the recovery of injured workers and the financial stability of their employers.

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July 24, 2012


Every profession has its unique occupational risks and hazards, and some also have widely recognized work-related health risks associated with the profession. For example, the mining profession is associated with black lung disease; poultry and other food processing workers are at high risk for repetitive stress injuries, and so on. Or see Alice's Mad Hatter and Work-Related Illness for an interesting historical perspective. Even seemingly safe professions such as musicians have work-related health risks.

Some workers we had never really considered from this perspective are astronauts. It's not that we didn't think they took risks - how could you possibly watch a metal cylinder being hurled into the farthest reaches of space and not think of the risks? But beyond curiosity about what they ate and how they handled bodily functions (oh come on, everyone wonders about that), we hadn't given much thought to the more mundane day-to-day health hazards that astronauts face, and we feel safe in saying that most of you probably haven't either.

We think that is about to change. The intriguingly titled Blindness, Bone Loss, and Space Farts: Astronaut Medical Oddities offers a fascinating glimpse into the "curious, bizarre, and potentially dangerous ways that space affects the human body and mind."


Adam Mann of Wired Science says that, "Though astronauts have been flying above the Earth for more than half a century, researchers are still working to understand the medical toll that space takes on travelers' bodies and minds. Astronauts must deal with a highly stressful environment, as well as weakening bones and muscles and the ever-present dangers of radiation. If people are ever to venture far from our home planet, such obstacles will need to be overcome."

We aren't going to go into much more detail about the article, beyond piquing your interest with these few teasers: "flying space barf" "foot molting" and "bugs in space."

Pay attention people, because these are the looming exposures for commuting workers - and the future may not be as far away as you think.

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July 12, 2012


The drum that our colleague Joe Paduda has been beating for several years - the outrageous cost of repackaged drugs in Florida - appears to be resonating. This esoteric little nook and cranny of workers comp that is costing employers millions across many states would normally not attract much attention in mainstream media - heck, even a lot of grizzled workers comp vets weren't conversant with the practice or the potential adverse affect on costs. But yesterday, the issue made the business section of the New York Times in an article by Barry Meier and Katie Thomas, Insurers Pay Big Markups as Doctors Dispense Drugs. They sum up the crux of the matter: "At a time of soaring health care bills, experts say that doctors, middlemen and drug distributors are adding hundreds of millions of dollars annually to the costs borne by taxpayers, insurance companies and employers through the practice of physician dispensing." The article goes on to note that, "The practice has become so profitable that private equity firms are buying stakes in the businesses, and political lobbying over the issue is fierce."

Florida and the case of Automated HealthCare Solutions are used as examples in the article. We've leave you to follow the excellent job the reporters do in outlining the issue, tracking down connections, and showing how a recent legislative attempt to close this costly loophole was squelched. Alan Hays, the Republican state senator in Florida who introduced the defeated bill said that, "The strategy of the people that were opposed to this bill was to put the right amount of dollars in the right hands and get the bill blocked," he said. "And they were successful in doing that." That defeat is costing employers and taxpayers some $62 million, according to the state's insurance commissioner.

Don't miss the accompanying infographic, Paying Much More in the Doctor's Office. Also note the 424 comments to the article, which we are still perusing at this time - it's not often that a detailed workers' comp issue garners that much attention in the so-called mainstream press.

We give a big tip of the hat to Paduda, who has posted on the Florida repackaging issue repeatedly. going back several years, despite some personal jeopardy in the form of a threatened lawsuit, later dismissed by a federal judge.

How Connecticut is dealing with Physician Drug Repackaging

In February, Paduda posted that physician dispensing was coming to Connecticut and urged his readers to contact regulators. At Evidence Based blog, Michael Gavin posts an update: Connecticut Gets Drug Repackaging Right: Removing the Financial Incentive. Interestingly, this was done via a rule change rather than a statutory change. Plus, it does not ban the practice of physician dispensing, and it even allows a reasonable administrative fee. Gavin suggests that these central tenants of an effective regulatory approach to repackaged drugs might serve as a model for other states. Florida, take note!

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June 11, 2012


The immortal Mae West once said that "too much of a good thing can be wonderful." When it comes to pain relievers, however, too much of a good thing can kill you. Which brings us to the sad saga of Anthony Sapko, who died of an accidental prescription drug overdose in August of 2006. Sapko worked as a policeman for 21 years in New Haven, CT, and went on in the mid-1990s to become a state corrections officer. Beginning in 1999, he was treated for depression. He suffered four work-related injuries while working in corrections, the last being a back problem from which he never returned to work.

Sapko was treated with a cornucopia of medications: oxycodone, Zanaflex, Kadian, Celebrex, Roxicodone, Avinza, Lidoderm patches and Duragesic. When his depression deepened in 2006, his psychiatrist prescribed Seroquel. Two weeks later, Sapko was dead. The autopsy revealed a level of oxycodone 20 times normal, and of Seroquel at 5 times normal. The combination of the two over-consumed drugs proved both toxic and fatal.

Suicidal Intent Vs. Accident
Sapko's widow filed for workers compensation death benefits. The claim was denied at the Commission level and again at the Appeals Court level. Sapko's widow argued that the death was directly related to his workplace injuries, but the court found a disconnect: this was not a suicide (where such a link might be established), but an accidental overdose.

In a December 2011 blog, we made note of two similar cases: a compensable case in Tennessee and a denied case in Ohio. Fatal overdoses, in other words, may or may not be compensable, depending upon the specific circumstances and state-based precedents. But the over-arching issues are clear: the abuse of prescription narcotics has reached epidemic proportions in workers comp; some individuals are unable to properly self-manage the use of these medications; and doctors are all-too-too willing to prescribe very powerful drugs to alleviate pain.

Workers compensation is endlessly fascinating because it inevitably brings together pain (from workplace injury) and pain suppression (far too often, opioids). In Sapko's foreshortened life, the combination of medications was toxic. In workers comp as a whole, the mixture of pain and drugs is proving to be a formidable problem.

No Will, No Way?
One of the interesting sidebars in this case is the concept of wilful misconduct: when an injured worker abuses prescription medication, is this a "serious and wilful" action that precludes compensability? Or is the pain so consuming and the drugs so powerfully addicting, that the concept of "wilful" disappears in a drug-induced haze? There are no simple answers. There is undoubtedly some link between Sapko's depression, the work he performed and the injuries he suffered. But in the world of comp these links must be explicit and, unlike life itself, unambiguous. It would require a novelist to reveal the connections. Unfortunately for Sapko's widow and children, the commissioners and judges in charge are simply not in a position to craft that kind of narrative.

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June 5, 2012


Derek Boogaard was a hockey player. Well, sort of. He didn't score goals (only 3 in 6 years) and he spent a lot of time in the penalty box (589 minutes). He was an enforcer: at 6'8" he was a ferocious and much-feared brawler.

As we learn in a New York Times article, he was also addicted to pain medications. While still playing hockey in 2008-2009, he received at least 25 prescriptions for opioids from ten doctors, a total of 600+ pills: eight team doctors of the Wild (his team at the time), an oral surgeon in Minneapolis and a doctor from another NHL team.

In 2010, he was signed by the New York Rangers for $6.5 million, despite his by then well-documented drug problems - he was an active participant in the NHL's substance abuse program. While playing for the Rangers, a team dentist wrote five prescriptions for hydrocodone; another team doctor wrote 10 prescriptions for Ambien.

Occupation-related Pain
There is not much question that Boogaard suffered from pain. Here is just a small segment of his pain-filled saga, from the final few months of his career: In October 2010, a punch from a Toronto player broke a three-tooth bridge in his mouth. A couple of days later, he hurt his hand while punching a Boston player. In November he had his nose broken by an Edmonton player. In December he suffered a concussion in a fight with an Ottowa player. He never played hockey again.

In the months following his retirement, he exhibited erratic behavior and wild mood swings. He acquired numerous prescriptions from current and former doctors. In May of 2011 he signed himself out of a rehab facility, spent a night drinking with friends, and died of an overdose in his Minneapolis apartment. He was 28 years old.

Privilege Has Its Pain
The article quotes Dr. Jane Ballantyne, a pain expert from the University of Washington: "A single course of opiates might be O.K. for normal people who only get injured once in a blue moon, but when injuries are frequent, it can easily turn into chronic treatment instead of just acute treatement. And athletes are at high risk of developing addiction because of their risk-taking personalities." She adds: "the tendency is to overtreat" because team doctors want to help athletes return to competition." [At LynchRyan, we are strong proponents of prompt return to work, but only where there is no risk of re-injury. There is no such thing as modified duty on ice.]

Boogaard was a fan favorite wherever he played. In hockey, fighting is "part of the game." But his sad saga is primarily a story of brain injury and addiction. As a professional athlete, Boogaard had virtually unlimited access to drugs, through doctors who, for the most part, did not bother to document their treatment plans or monitor their patient.

It should come as no surprise that an autopsy revealed that Boogaard had chronic traumatic encephalopathy C.T.E., a brain disease caused by repeated blows to the head.Thus he is linked in death to the growing number of football players who suffered the same fate, the result of frequent concussions.

Official Response Speak
As a lifelong student of language and rhetoric, I cannot miss an opportunity to quote some of the official responses to Boogaard's death:

The NHL: "Based on what we know, Derek Boogaard at all times received medical treatment, care and counseling that was deemed appropriate for the specifics of his situation."

The Minnesota Wild: "The Wild treated Derek's medical status in accordance with the NHL/NHLPA Substance Abuse and Behavioral Health Program as we do with all our players."

The NY Rangers: "We are confident that the medical professionals who treated Derek acted in a professional and responsible manner and in accordance with their best medical judgment. They took extraordinary steps to coordinate the medication prescribed for him with the professionals in charge of the NHL-NHLPA Substance Abuse and Behavioral Health Program."

Not exactly heartfelt or compassionate, just the voices of powerful corporations, protecting their interests, their brands and their proverbial asses. As for Derek Boogaard and his misguided career on ice, RIP for the man who knew no peace.

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May 15, 2012


For those who seek risk conundrums, workers comp is fertile ground. From a micro perspective, the unfortunate Ronald Westerman, a paramedic for a California ambulance company, embodies many of the elements that result in sleepless nights for claims adjusters and actuaries: Westerman had an inordinately long commute (2.5 hours each way!), a sitting job with periodic lifting (inert patients and medical equipment), along with the comorbidities of hypertension, obesity and diabetes. In two years of ambulance work, Westerman gained 70 pounds, thereby compounding the co-morbidity issues.

In March 2009 Westerman returned home from a 36 hour shift and suffered a stroke. His doctor determined that the stroke was work related and that Westerman was permanently and totally disabled. He was 50 years old. While there was some dispute over the cause of the stroke, an independent medical evaluator surmised that it was caused by a blood clot moving through a hole in Westerman's heart to his brain, otherwise known as in-situ thrombosis in his lower extremities - a direct result of too much sitting. (We blogged a compensable fatality from too much sitting here.)

At the appeals level, compensability centered on the performance of a shunt study - an invasive test - that would have determined whether the blood clot caused the stroke. Westerman was willing to undergo the test, but his wife refused to authorize it, due to his fragile health. If there was no hole near the heart, the entire theory of compensability would be disproven; the stroke would not have been work related.

Had the defense attempted to force the test issue, it would have given rise to yet another conundrum: was refusing an invasive test the equivalent of "unreasonable refusal to submit to medical treatment"? Indeed, does a diagnostic test, by itself, meet the definition of "treatment"? Fortunately for Westerman, the defense requested - but did not attempt to require - the shunt test.

Managing Comorbidities
Our esteemed colleague Joe Paduda, who blogs over at Managed Care Matters, provides the macro perspective, one which is unlikely to aid in the sleep patterns for actuaries. He reports on the impact of comorbidities on cost from the recent NCCI conference:

The work done by NCCI was enlightening. 4% of all claims (MO and LT) between 2000 - 09 had treatments, paid for by workers comp, for comorbidities, with hypertension the most common. These claims cost twice as much as those without comorbidities [emphasis added].

It is beyond doubt that comorbidities make work-related injuries more expensive. But what, if anything, can claims managers do about this? In the Westerman case, there is not much to be done, as the stroke resulted in a permanent total disability. But in other cases where there is a path to recovery and even return to work, adjusters should flag these claims for early, intensive intervention, including psychological counseling and support for weight loss and other life style adjustments. To be sure, this would increase the upfront costs, but these steps just might go a long way toward mitigating the ultimate cost of the claims.

As is so often the case in workers comp, it's "pay me now" and "pay me later." To which I can only say to my claims adjuster and actuary friends, "sweet dreams!"

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April 23, 2012


When looking for cutting edge activities in workers comp abuse, it's a good idea to start in California, where key stakeholders occasionally function like pirates in the Gulf of Aden. We have frequently focused on the burgeoning costs of opioids in the workers comp system. As we learned at the Workers Comp Research Institute conference last November, too many doctors who prescribe opioids have no idea what they are doing, no idea how to manage opioid-based treatment and no clue about the potential for harm.

In the entrepreneurial free-for-all that is California, we see the latest trend in opioid abuse: turning the "best practice" of drug testing into an opportunity to milk the system. (The details are available in Greg Jones's article at WorkComp Central - subscription required.)

Here's how it works: doctors who tend to over-prescribe opioids are jumping on the drug testing bandwagon: either through their own testing, or through contracted services, they are able to parlay a simple $200 drug test into a bill for $1,700 or even $3,000. The labs are playing with billing codes, performing the less expensive qualitative tests but charging for the more expensive quantitative tests. It's a clever scam: first over-prescribe, then drug test and over-bill.

The WorkCompCentral article quotes Howard Appel, president of Millennium Laboratories of San Diego: "I'm offended when workers' comp is paying $3,000 for a drug test that cost $200." Appel's company operates under a "responsibility pledge" where explicit ethical standards are used for drug testing and billing.

Genuine Best Practices
We remind Insider readers of the best practices that should accompany virtually any prescription for opioids:

1. Above all, use opioids sparingly; most prescriptions for opioids in the comp system are unnecessary, ill-advised and poorly managed.
2. Virtually all injured workers prescribed opioids should be evaluated for dependency issues prior to beginning an opioid regimen, drug tested prior to receiving opioids and throughout the course of treatment. Without these pre-conditions, opioid use is full of uncertainty and fraught with danger.
3. Ideally, opioids should come with a written contract and a User's Manual. Workers should be tested on their knowledge of the benefits and the risks.

Note that drug testing is a necessary component of the treatment protocol. The problem in California - and probably elsewhere - is that drug testing is of little value where opioids have been mis-prescribed in the first place. Under best practices, opioids are a last resort, rarely used and carefully managed. Under California scheming, they are over-prescribed, over-monitored and over-billed. All of which goes to show that you don't need a fishing boat and a few automatic rifles to become a pirate. A nice white coat and a plastic cup can work just as well.

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March 20, 2012


Today, we slip back in time to 1925 and put on our Flash Gordon glasses to speculate about the future, a time when a doctor not only "sees what is going on in the patient's room by means of a television screen" but also employs a robotic-like instrument called the Teledactyl (Tele, far; Dactyl, finger -- from the Greek) to "feel at a distance."


This image and the story comes from a delightful Smithsonian blog called Paleofuture in a post entitled Telemedicine Predicted in 1925. The post discusses an article by Hugo Gernsback that appeared in the February, 1925 issue of Science and Invention. You can read more about the intriguing robotoic Teledactyl device and Gernsback's predictions for medicine of the future.

Fast forward to 2010, and we see how remarkably prescient Mr. Gernsback's predictions were. Courtesy of a blog comment by Christoph Hadnagy, we find this link to a New York Times story on Denmark Leads the Way in Digital Care, in which 77-year old patient Jens Danstrup talks about what it's like to be a telemedicine patient:

"You see how easy it is for me?" Mr. Danstrup said, sitting at his desk while video chatting with his nurse at Frederiksberg University Hospital, a mile away. "Instead of wasting the day at the hospital?"
He clipped an electronic pulse reader to his finger. It logged his reading and sent it to his doctor. Mr. Danstrup can also look up his personal health record online. His prescriptions are paperless -- his doctors enters them electronically, and any pharmacy in the country can pull them up. Any time he wants to get in touch with his primary care doctor, he sends an e-mail message.
All of this is possible because Mr. Danstrup lives in Denmark, a country that began embracing electronic health records and other health care information technology a decade ago.

Adoption of Electronic Health Records in the US
The Centers for Disease Control issues an annual survey on the use of electronic health records in physician's offices. Last year, partly bolstered by meaningful use incentives in the Affordable Care Act, use grew by 6%. Dr. Elliot King blogs on the EHR increase, noting that:

"In 2011, 57 percent of office-based doctors used electronic medical records/electronic health records (EMR/EHR), according to the CDC. That number compares to the 50.7 percent of physicians' offices using EMR/EHR's in 2010 and 48.3 percent in 2009."

Some physicians are also taking to telemedicine via Skype, FaceTime and other video conferencing services. In Doctors who Skype: Renegades or Heroes?, Jean Riggle looks at the pros and cons of video chat as used by physicians. She notes that there currently aren't any guidelines for electronic communication between physicians and patients and there there are several important questions yet to be solved:

  • How can these chats be integrated into the patient's medical record?
  • Can the actual video be captured and inserted into the record or should a summary of the call suffice?
  • How should physicians be reimbursed for the time they spend using social media?

To follow developments in telemedicine, we offer a few sources:
Federal Health IT programs
American Telemedicine Association
Healthcare IT News

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February 24, 2012


You have to feel sorry for Erik Martin. He went to work for Quick Chek Corp in 1999 as an assistant store manager. He was promoted to store manager in the summer of 2000. He was diagnosed with Parkinson's disease that same year. After informing his supervisor of his diagnosis, she advised him to keep his illness "hush, hush." Martin complied, and never mentioned his illness to the company's HR director. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. Despite his formidable physical difficulties - unrelated to work - he returned to work as soon as he was able.

In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations. Later that same month, Martin injured his back at work. He contacted his doctor, who instructed him to take a darvocet that was previously prescribed to Martin's mother-in-law. Martin visited the doctor the following day, at which time he was prescribed percocet to manage his pain.

Drug Policy
In keeping with company policy, Martin was drug tested two days after the injury. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.

A reasonable person might think that Martin was in compliance with the company policy. He took a pill at the verbal direction of his doctor. Was this a "prescribed" medication? Well, that's where a problem arises.

The word "prescription" comes from the Latin "praescriptus" compounded from "prae", before + scribere, to write = to write before. Historically, a prescription was written before the drug was prepared and administered.

It appears that a "verbal prescription" is an oxymoron: if it isn't in writing, it isn't a prescription. [NOTE: the court ruling did not even address this issue.]

The HR director testified that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company's zero-tolerance drug abuse policy. The director also stated that he was not aware of Martin's Parkinson's disease until this litigation commenced.Thus Martin's termination was consistent with company policy. And in the view of the court, the termination was perfectly legal.

The court wrote:

Unquestionably, the company's drug policy was enforced in a harsh fashion against Martin. The company relied completely on the assessment of the testing company that Martin "failed" the drug test. Quick Chek operates in such a way as to delegate total discretion to interpret the drug test results to the testing company. Once deemed to have failed the drug test, an employee is terminated without exception with no apparent right of appeal. In Vargo v. National Exchange Carriers Assn., Inc., 376 N.J.Super. 364, 383 (App. Div. 2005), we held that a company need not investigate possible legal reasons for a positive drug test before taking action with regard to a prospective employee; nor should such a duty exist with respect to existing employees. NJLAD is not offended by a private company's lack of compassion in these circumstances.

Note how the court starts with a precedent involving a job applicant and then applies it to a loyal employee of long standing: "nor should such a duty exist with respect to existing employees." The court may not see any difference between an applicant and a loyal employee, but I do.

No Room for Compassion
The court "is not offended by a private company's lack of compassion." Well, I am. Zero tolerance policies back companies into a corner; their rigidity may eliminate the need for discretion, but in doing so, these policies also eliminate many good employees. A little discretion in the hands of good managers is a powerful tool toward building a positive work culture. By contrast, zero tolerance policies may provide an illusion of control over matters that are difficult to control, but they are not an effective way to run a company (or a school, for that matter). Indeed, the policy makes it difficult for the company to fulfill its promise as a great place to work:

Quick Chek is proud to be one of NJ's Best Places to Work! With 2,600 team members in over 120 stores, we strive to create a positive experience and fun environment where core values are nurtured, hard work is rewarded and leadership is cultivated.

I wonder what Erik Martin thinks of the company's "core values." When his illness prevented him from doing his job, he requested and was granted a demotion. When his illness prevented him from working, he took (unpaid) time off and focused on recovery. When he was injured at work, he followed his doctor's orders and his company's procedures. Martin's loyalty and perseverance are admirable qualities, but they did not buy him much in the corporate offices of Quick Chek or the courtrooms of New Jersey.

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January 9, 2012


We've bringing you something a bit peripheral to our normal topics today, but it deals with the business of medicine. Plus, it is excellent.

How Doctors Die by Ken Murray, MD talks about how doctors face end of life issues. Many might assume that when faced with a terminal condition, physicians would leverage their expertise and access to the max, harnessing all the latest treatments and technologies. But the picture that Murry paints is a very different one. Armed with the knowledge of just how grueling and terrible the "do everything possible" model can be, many doctors choose to forgo chemo, radiation, surgery, and other life-prolonging treatments entirely.

"What's unusual about them is not how much treatment they get compared to most Americans, but how little. For all the time they spend fending off the deaths of others, they tend to be fairly serene when faced with death themselves. They know exactly what is going to happen, they know the choices, and they generally have access to any sort of medical care they could want. But they go gently."

Some physicians who have participated in or witnessed extraordinary and extreme measures to prolong life - what Murray calls "futile care" - wear "No Code" medallions or tattoos.

Why, if they don't want this treatment themselves, do they inflict it on patients? Murray explores the many often human reasons why family members and physicians make these choices and points to a system that encourages and rewards excessive treatment and unrealistic expectations about what medicine can do. Plus, as a society, we have a cultural bias against accepting death. Perhaps it was ever so - no one want to die. But advertising, a stay-young-forever culture, pharmacology, and the miracles of technology all conspire to make us think we perhaps can live forever. When someone facing a terminal illness chooses acceptance of the natural order, they are often pressured by family and friends for not being a fighter.

The comments in the article are also well worth reading. Other people -- doctors, medical professionals, and "civilians"-- offer their thoughts, opinions, and touching real life experiences with family members, friends, and even their own terminal circumstances.

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December 5, 2011


Florida is famous for at least three things: citrus fruit, sunshine and pain pills. The citrus and sunshine are pretty much permanent, but it appears that the easy dispensing of opioids may be coming to an end. HB 7095, the state's new law regulating opioid distribution, bans doctor dispensing of drugs and subjects pharmacies to inspection of prescription records. The state is determined to put an end to its reputation as the pill mall of America.

Now CVS, the giant pharmacy concern with over 700 stores in Florida, has stepped into the breach. They have notified a small number of doctors that they will no longer honor their prescriptions for opioids. CVS has analyzed prescription data and determined that these doctors are over-prescribing. As with so many issues involving insurance coverage, the data goes into a black box and a determination comes out the far end. What happens in the box remains a mystery. Our esteemed colleague, Joe Paduda, has strongly endorsed the CVS effort at his Managed Care Matters blog.

Feeling the Pain
It should come as no surprise that a key stakeholder in the use of opioids, the Florida Academy of Pain Medicine, is crying foul. The academy points out that the criteria for blackballing doctors is unknown and that doctors - and only doctors - should be allowed to determine who needs pain killers and for how long. As Jeffrey Zipper, chair of the Academy's Medical Affairs committee puts it, "I don't want to be subject to the scrutiny of CVS."

Given the immense dimensions of the prescription drug problem in Florida, it's clear that some doctors have long been abusing their power to prescribe medications. They need scrutiny and they need to be sanctioned. While CVS and other pharmacies are a key part of the distribution network, their leverage in this area is somewhat limited. To begin with, other pharmacies may choose to pick up the rejected business: we're talking big bucks. In addition, CVS at some point will have to disclose the criteria used for rejecting the prescriptions written by certain doctors. Once this happens, doctors may attempt to manipulate their prescription practices to avoid detection and sanction.

In attempting to get its arms around this formidable problem, the State of Florida has reframed the question about who controls controlled substances. While it's apparent that doctors no longer have sole discretion in the area, it remains to be seen how effective and how equitable the control exerted by pharmacies can be. The Insider will monitor with great interest this important experiment in substance abuse control.

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November 3, 2011


We all know that people who smoke and/or are obese tend to have more medical problems, of greater duration, compared to people with healthier lifestyles. The higher medical costs associated with smoking and obesity translate into higher cost for insurance. As a result, it is no surprise that there is a strong trend among employers to charge more for the insurance premiums of workers who smoke or who are obese.

The Insurance Journal writes that the use of premium penalties is expected to climb in 2012 to almost 40 percent of large and mid-sized companies, up from 19 percent this year and only 8 percent in 2009. An Aon Hewitt survey released in June found that almost half of employers expect by 2016 to have programs that penalize workers "for not achieving specific health outcomes" such as lowering their weight, up from 10 percent in 2011. The premium surcharges usually come hand-in-hand with incentives to quit smoking and lose weight. Unfortunately, the carrot of incentives, by themselves, have not succeeded in lowering health costs. Hence the big stick.

Taxing the Poor?
As is often the case, lower paid workers bear the brunt of the higher costs. Obesity and smoking often - but not always - accompany lower income lifestyles. Low income workers already pay a larger proportion of their income for health insurance; now they will pay more for the consequences of their smoking (a formidably taxed bad habit) and obesity (the result of poor dietary habits). The working poor often live in neighborhoods with limited fresh foods and nothing much in the way of health clubs - which they can't afford anyway.

There is evidence that the carrot and stick approach actually works. We have written about the Cleveland Clinic, which refuses to hire smokers or obese individuals and which fosters healthy lifestyles among its 40,000 employees. The clinic has seen medical costs grow by only 2 percent this year, far below the national average of 5 to 8 percent.

The Big "But..."
The move to force people into healthy lifestyles does raise a few interesting issues.
1. In cases where obesity or other unhealthy conditions are beyond the control of the individual (genetics, specific diseases, etc.), the higher premiums might be considered discriminatory, although there has been little such litigation to date.
2. Healthy lifestyles (including regular exercise) may well result in higher medical costs for maintaining well-tuned bodies: the ever-growing incidence of knee, hip and shoulder replacements among active people.
2. The goal is to reduce medical expenses, but the leverage exists only with the principal policy holder: there is no way to force other family members to abide by the lifestyle guidelines.
3. The imposition of wellness standards can lead to legitimate privacy issues: for example, holding employees accountable for behavior away from the job (smoking, drinking, eating).

If all goes as planned, medical costs will indeed come down and people will live longer and longer lives. As people with healthy lifestyles live longer, we will have succeeded in transferring costs from private insurers (who cover working people and their families) to social security (which covers retirees). That will require a hike in social security taxes, which the working poor, among others, can ill afford. It seems that every solution carries the seeds of new problems, just as every problem gives rise to new solutions. It is a privilege, of course, just to watch the entire process as it unfolds before us.

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September 8, 2011


Florida doctors bought 89% of all the Oxycodone sold to practitioners nationwide last year and thousands of outside visitors flocked to the state to buy drugs at the 1,000+ pain clinics. But armed with new legislation, the state is cracking down hard by shutting down pill mills and suspending the licenses of about 80 physicians who were high-volume prescribers. And physicians are now generally barred from dispensing narcotics from their offices. In October, things will get even tougher as a new prescription drug monitoring system will be implemented.

Lizette Alvarez reports on on the Florida pill mill crackdown in The New York Times, stating that "As a result, doctors' purchases of Oxycodone, which reached 32.2 million doses in the first six months of 2010, fell by 97 percent in the same period this year." This article has some eye-opening observations about the scope of the prescription drug problem: "Last year, seven people died in Florida each day from prescription drug overdoses, a nearly 8 percent increase from 2009. This is far more than the number who died from illegal drugs, and the figure is not expected to drop much this year."

You can read more about how authorities are going after medical licenses of over-prescribers in a Miami Herald article by Audra Burch. This article discusses some egregious abuses, including a physician who dispenses from the back of a car and an office with long lines waiting outside and many cars with out-of-state license plates in the parking lot.

Related Resources
The issue of physician dispensing is one that our colleague Joe Paduda has covered extensively. See:
Physician dispensing - Exactly how much more does it cost?
Why Florida's work comp costs are heading up
Florida's dispensing legislation clarified

The issue of transparency related to a physician's relationship with pharmaceutical companies is one that ProPublica has been taking on in their Dollars for Doctors campaign. See:
Patients Deserve to Know What Drug Companies Pay Their Doctor
Piercing the Veil, More Drug Companies Reveal Payments to Doctors

For more about Prescription Monitoring Programs, see:
Alliance of States with Prescription Monitoring Programs - The Alliance was formed in 1990 to provide a forum for the exchange of information and ideas among state and federal agencies on prescription monitoring programs. Since then, it has grown to be a valuable resource to all those concerned with combating the increase in prescription drug abuse, misuse and diversion. Currently, 48 states and one territory either have operating Prescription Monitoring Programs, or have passed legislation to implement them.

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July 6, 2011


All other things being equal, if you had a choice of paying $300 or $1800 for an abdominal CT scan just by going to a clinic or a doctor in a nearby town, would you? It seems like a trick question or a no brainer, but the reality is people are paying the higher cost every day... just because the transparency in health care costs just isn't there. And this lack of transparency gives rise to a situation where patients can pay as much as 683% more for the exact same medical procedure in the same town.

More and more people will begin to notice the cost differentials as the trend for consumers bearing increased responsibility for healthcare costs continues. Whether through insurance arrangements such as high deductible plans or through assuming a higher proportion of co-pays and other out-of-pocket costs in more traditional plans, more consumers have a direct stake in the cost of healthcare. Yet the average person with a healthcare insurance policy is in the dark about the costs for various procedures and treatments. First, many consumers have been insulated from the cost of anything beyond the price of the insurance policy itself. The unit cost of services and procedures has largely been a matter between the insurer the provider. Secondly, medical care is a highly complex service with little in the way of tools available for comparison shopping. It's complex enough that even the treating physicians themselves are often in the dark about costs about specific procedures, tests, or medications.

Change:healthcare, a national organization that is trying to establish more transparency in the cost of healthcare, recently released a cost comparison report for several common medical procedures such as MRIs, CT scans, ultrasounds and PET scans. The Q2 2011 Healthcare Transparency Index reports on what they learned about cost variations by examining claims data over the course of a year for 82,000 employees of small businesses. While it's been widely understood and acknowledged that price might vary greatly depending on what part of the country you are in, this study shows that the price can also vary greatly depending on which side of the street you are on: inter-regional costs fluctuate widely, too.

This wild divergence in pricing is probably less of a surprise to employers, many of whom who have been keeping a close and wary eye on skyrocketing workers' compensation medical costs. There are no co-pays or cost sharing mechanisms on the workers comp side of the house - the employer underwrites 100% of the associated costs of a compensable injury or illness. Many enlightened employers have been tackling costs on the macro level (outcomes) as well as on the micro level (unit costs) by seeking high-performing physician networks. But even with the buying power and the resources that a large employer can bring to bear, it can still be difficult to get it right when it comes to managing workers' compensation medical costs.

Whether in work comp coverage or in general health care, many employers have also recognized the role that the individual employee plays in helping to control costs and stem losses - through behaviors both on the job (safety compliance) and off the job (general wellness and healthy behaviors). Wellness and EAP benefits are widespread as a result. In a similar vein with a potential for a win-win outcome, employers should take every opportunity to help employees to become more savvy consumers of health care services.

Here are some consumer healthcare education tools / resources that might be useful in your wellness program:

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July 5, 2011


Work can be a killer when workers are asked to do too much: intense labor in the heat of summer, the stress of heavy repetitive lifting, moving too quickly among common workplace hazards. But can work kill us from doing too little? Can work-required inactivity lead to a compensable claim?

For twenty five years, Cathleen Renner worked as a manager for AT&T. With a heavy workload, she often brought work home and labored at her computer late into the night. In September 2007, facing a tight deadline, she appeared to pull an all-nighter; she sent an email to a colleague around midnight and was seen at her desk at 7 in the morning, at which time she complained about a pain in her leg. She labored on through the morning. Around 11 am, she had trouble breathing. By the time she reached the hospital, she was dead from a pulmonary embolism (which began with that pain in her leg).

The New Jersey workers compensation had to determined if work was the predominant cause of the death.

Risks in Doing Nothing
Back in May of 2006, we blogged the dangers of inactivity. If people sit still for a long time - for example, during air travel - they are at risk for deep vein thrombosis. It appears that Cathleen's prolonged and unrelieved sitting at her computer caused just such an incident. According to a medical expert, she experienced an "unorganized" blood clot which developed while she was sitting (as opposed to an organized clot, which takes much longer to form). Despite her other risk factors - obesity and the use of birth control pills - the court determined that her death was work related.

The defense argued that Cathleen lived a relatively sedentary life - that her sitting at the computer was no different than her sitting at other times. But her husband countered with the observation that they had school-aged children. Cathleen was always running around, taking the kids to school and appointments, cooking meals, cleaning the house and doing the myriad tasks that virtually all mothers must perform. That's a pretty compelling argument and it convinced the judges: the Superior Court determined that the prolonged sitting while performing work-related tasks caused her death.

Get Out of that Chair!
Savvy employers will note the risks of prolonged sitting and encourage - require! - employees to get up at least once an hour to move around and stretch. (Policies should cover workers in their home offices, too.) Moving around not only prevents blood clots, it also prevents injuries to the spine. Humans are not meant to sit in one place indefinitely. We are built to move and move we must.

With that being stated, I'm going to stand up and stretch a bit. Unless you are reading this on a treadmill, I recommend that you do the same.

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June 21, 2011


We posted earlier this week on draft guidelines for pain management issued by the Massachusetts Department of Industrial Accidents. While we found much to like in the draft, our colleague Peter Rousmaniere, proprietor of his own blog on immigration issues, finds that the guidelines leave much to be desired. He views them as somewhat of a mincing mini-step in an area where rather big strides are needed.

Here are his thoughts on ways to make pain guidelines more effective:

Workers Comp Insider alerted us on Monday to the publication of draft chronic pain guidelines by Massachusetts DIA.

Medical treatment guidelines are helpful where clinicians, payers and courts desire an authoritative third party to say if and when a treatment is appropriate. But the value of guidelines really strikes home not only in the details but in how they pick their topics. Only so much can be covered proficiently. Guidelines need to focus on pressing matters of protecting lives and husbanding scarce resources. Then even the non-clinician in workers comp can say, "I may not understand all the medical details, but I know that these guidelines speak to my top concerns, and I will respect them and promote them accordingly."

Perhaps because workers comp chronic pain treatment guidelines tend to avoid some of the most pressing issues for claims payers, they are not as useful as they could be. Perhaps also because claims payers feel free to ignore them, which they regularly do, we don't see a visible, sustained effort within the claims payer community to improve the management of chronic pain cases.

Something for the Pain
One thing the guidelines have done laudably is to alert their readers to the very important patient safety issue when opioids are prescribed. This is very important: claims payers usually don't require periodic drug tests for injured workers who have been prescribed opiates and they rarely are trained to respond when a test shows that the patient's urine has no trace of the prescribed drug.

On balance, the Massachusetts guidelines, like other chronic pain guidelines used in the workers compensation community, are rather narrowly focused to the point where their usefulness is compromised. These various guidelines focus on non-surgical treatment of patients after they reach the stage at which they can be called chronic pain cases, and before they become extended, multi-year dependents on pain medication.The proposed guidelines devote just a few summary paragraphs to a challenge of the highest importance to claims payers: knowing the specific steps physicians can take to help their extended treatment patients improve their pain experience and function.

Predicting Pain
None of the current guidelines invest any time in describing the quite rich and fertile topic of chronic pain prevention among newly injured workers. Prediction and prevention are areas in which only a few occupational medicine doctors and nurses have achieved proficiency. Claims payers should focus on the need to identify chronic pain risk and encourage doctors to intervene as early as possible, when chronic pain risk, having been identified, can be addressed before the downward cycle begins. Unfortunately, you won't learn about these best practices in these or in other state-promulgated guidelines. (I have proposed that chronic pain predictive models, matured through the wisdom of many, be placed in the public domain and inserted in treatment guidelines.)

Why these gaps? I wonder if the claims community has taken the time to communicate its concerns about chronic pain, so that guideline editors might address them? I imagine that they were back at the office, unaware of guidelines being drafted, and deeply involved in the deep stack of files that welcome them every working day.

Let's Talk!
An inconvenient truth for workers comp claims payers is the universal endorsement of counseling intervention. Virtually all the chronic pain guidelines share a high regard for the psychological dimension of non-cancer chronic pain, which surfaces in pain perceptions and beliefs, catastrophizing, poor locus of control, and other traits that can be both measured and altered. The guidelines recommend time-limited cognitive behavioral therapy, the kind used to help you, say, overcome your anxiety about elevators, re-injury, or perpetual pain. The Massachusetts guidelines contain within their relatively thin girth a full-throated endorsement of psychological intervention - and that's a good thing.

Unfortunately, most claims adjusters refuse to recognize the importance of cognitive therapy. They will have none of it and will deny treatment if the word "psychology" is attached to a request for treatment. The adjusters argue that once they allow psychological treatment, the workers comp courts will require them to pay for a lifetime of counseling intervention. I've heard this argument a lot. I wonder if the claims community and treatment guideline editors have ever had an extended discussion about psychological services and how to frame the issue to be most useful in a workers comp setting.

While the proposed pain guidelines leave a lot to be desired, I believe that an effective strategy for controlling chronic pain risk is within reach. Pain management is an essential element of any cost reduction strategy. If states can begin to draft chronic pain treatment guidelines that are more prescriptive, more specific and more focused on prediction and prevention, we would take a giant step toward bringing the costs of many large comp claims under control.

Submitted by Peter Rousmaniere

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June 20, 2011


In the world of workers comp, chronic pain is a major cost driver. When pain persists beyond expected healing times, the prognosis is grim: injured workers suffering from prolonged pain often drift into anxiety and depression and may even become addicted to powerful pain medications. In the downward spiral of relentless pain, it becomes increasingly difficult to separate physical and psychological issues. The prospect of return to work disappears, the injured worker's life disintegrates and the cost of the claim goes through the roof.

The claims adjusters who are responsible for managing chronic pain injuries usually resist any recommendations for psychological counseling; they avoid such interventions because treatment - whether individual or group therapy - cannot and should not be limited to what is "work related." Pain subsumes the worker's entire life. Yet counseling is often an essential part of what is needed: injured workers talking through their many difficulties and sharing their experience with others.

So is it possible to develop a chronic pain program that limits financial exposures, narrows the treatment options and sets reasonable time frames for completing the treatment cycle? And can pain management encompass at least some focused counseling?

A Guide for the Perplexed?
Massachusetts has taken a shot. The state's Department of Industrial Accidents(DIA) Health Care Services Board has issued draft guidelines (PDF) for managing chronic pain. Under the leadership of Dean Hashimoto, who holds both medical and legal degrees, the draft protocol tiptoes through a minefield populated with poppy plants, doctors with prescription pads and long needles, chiropractors, acupuncturists, counselors and biofeed back practitioners - not to mention the ever-present drug salespeople. The draft guidelines could well serve as a Guide for the Perplexed.

Beginning with the caveat that 10 percent of all chronic pain cases will fall outside of the protocol, Hashimoto's task force tries to set parameters for all types of treatment: the number and type of diagnostic and therapeutic injections permissible; the goal-oriented use of mental health counseling, with specified durations (6 to 12 months); "very limited" use of opioid analgesics, with referral to pain specialists, if needed, and including a detailed list of specific actions designed to avoid addiction.

A Work in Progress
The DIA is soliciting comments on these guidelines. Alas, they are unlikely to hear from the relatively small portion of stakeholders who are profiting from the current chaos: the pill-happy doctors, the attorneys who discourage injured workers from returning to work, the physical therapists and chiropractors who believe that treatment, once begun, should go on forever, and the pharma sales folk who encourage use of the most powerful opiates for what is usually short-term pain.

The draft guidelines are comprehensive and reasonable. As the final guidelines will not and cannot have the force of law, they will not eliminate the abuse that currently exists. But if they help motivated treatment practitioners to offer more effective services, and if they open the door to at least some counseling for injured workers, the guidelines will surely save both lives and careers. That in itself will validate the admirable and essential work of Hashimoto's board.

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May 4, 2011


Last month we blogged the suicide of Dave Duerson, a former NFL star who killed himself at the age of 50. In order to preserve his brain for study, he took the unusual step of shooting himself in the chest. He suspected - and the subsequent autopsy confirmed - that he suffered from chronic traumatic encephalopathy, a degenerative and incurable disease that is linked to memory loss, depression and dementia. A definitive diagnosis is available only through an autopsy.

Among the many ironies surrounding this sad tale is the fact that Duerson sat on the six person NFL committee that reviewed claims for medical benefits submitted by retired players. Duerson was known for his harsh line on these claims, apparently voting to deny benefits in many cases (the votes of individual committee members were not recorded). He even testified before a Senate subcommittee in 2007, supporting the NFL's position that there was no definitive relationship between repeated concussions and subsequent dementia.

The days of denial appear to be over. Dr. Ira Casson, who represented the "prove it" mentality of the NFL, is no longer actively involved. The medical evidence is accumulating; while some refuse to connect the dots, it's increasingly clear that repeated brain trauma (concussion) is often directly related to a precipitous decline in brain function in the post-gridiron years.

Old Game, New Order
The NFL is trying to improve the safety of its players. The new rules limiting return to the playing field after a concussion are taking root. Helmet to helmet hits are being penalized with increasing financial severity. But even as the league tries to limit future exposures, the fate of retired players looms large. There will be increasing numbers of claims for disability, including workers comp where applicable, by players who face a substantially diminished burden of proof to connect dementia to playing field ("workplace") exposures.

It is painful to contemplate the agony of Dave Duerson's final days. Confronted with the incontrovertible evidence of his own demise, he must have realized how wrong he had been in taking the company line on dementia. He knew what his own autopsy would reveal: a brain damaged by chronic traumatic encephalopathy, caused by repeated trauma. His choosing to shoot himself in the chest was a farewell gesture, not only to his own life, but to the beliefs that had led him to take a hard line with his former colleagues. A loyal member of the "old guard," he ended his life with the unmistakable and moving embrace of the new order.

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April 12, 2011


Events at the damaged Fukushima plant continue to deteriorate. Today we learn that Japan's nuclear regulatory agency has raised the Fukushima accident rating level to a 7, the most serious level. Chernobyl is the only other nuclear accident to have been rated a Level 7 event.

U.S. authorities and the news media have been quick to try to stem any public panic about the levels of radiation exposure here in the U.S. This is more than just spin - while many aren't aware of it, there is a national network of radiation monitors called Radnet. It is operated by the Environmental Protection Agency and includes at least 200 monitoring stations spread across the country. It measures radioactive substances in air, precipitation, drinking water, and milk. Reports are that only trace amounts of radiation have surfaced here in the U.S.

People may still have questions and heightened anxiety as the news plays out in alarming daily headlines. Many employees may also have questions about potential exposures related to their specific jobs. Employers would do well to stay informed and be prepared to address concerns.

For example, employees who travel for their jobs may have questions about exposure, particularity if work takes them to Japan or Southeast Asia. Employees in manufacturing firms that get parts or cargo from Japan may have concerns. Airline personnel, mail carriers, and package handlers may have concerns. People who work in or live near domestic nuclear facilities may have concerns.

OSHA and NIOSH have paired up to produce resources for both employers and workers. These include an OSHA resource on Radiation Dispersal from Japan and the Effect on U.S. Workers and a NIOSH page on worker information, which specifically addresses some of the concerns posed above.

Here are some additional resources:

Everyone reacts to news of national and international crises differently. With proper information and facts, most people should be able to put concerns in perspective. But for whatever reason, some people "get stuck" in worry and anxiety mode. Sometimes that can be the result of prior post-traumatic stress, or related to a particular health concern. Be sensitive to the potential for high anxiety - if information and facts don't relieve the stress, it may be a good time for a referral to your organization's EAP.

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April 6, 2011


Nearly a year ago we blogged the issue of a medical fee schedule in Maine. The legislature mandated the creation of a fee schedule way back in 1991. Twenty years later, there have been a few reports, a few changes in the membership of the committee trying to establish the fee schedule and, to date, no fee schedule. We now wonder whether neighboring New Hampshire will follow Maine's example, climbing a slippery mountain trail into a deep fog.

New Hampshire, like Maine, has a two tiered system: in the first tier are managed care networks, which negotiate fees with doctors and hospitals. Everyone in the second tier - those outside the networks, the self-insured, smaller carriers, etc. - are stuck with paying the "usual and customary fees." Medical costs account for 71% of total costs - a truly staggering number when compared to the national average of 58%.

Dr. Gary Woods, an orthopedic surgeon and chair of the NH Workers Comp Advisory Council, thinks that the high percentage of medicals is the result of good medical care, combined with a strong return-to-work focus: in other words, indemnity is relatively low because workers are not out of work very long. Well, doc, show me the numbers. I expect that New Hampshire - ranked 14th highest among states for comp costs - is spending too much on indemnity and way too much on medical services. It's no bargain for anyone.

The Fix is (Not Quite)) In
The New Hampshire legislature is contemplating SB 71, which would impose a fee schedule on medical services. The bill proposes that hospitals be reimbursed at a uniform conversion rate of up to 150% of Medicare rates. While somewhat on the high side for such linked payments, it would probably bring down the overall costs of medical services in the state.

SB 71 is going nowhere, at least for the moment. The bill will remain in committee while the lawmakers appoint a study group to review the proposal and make further recommendations.

Ultimately, the details of the fee schedule will be in the hands of the comp advisory council, of which Dr. Woods is the chair. Hmm. This brings to mind the stalemate in Maine, where Dr. Paul Dionne was for a long time chair of the committee responsible for implementing the fee schedule. The group just couldn't come up with a number that would satisfy the doctors. (How would a doctor define a fair fee schedule? "Usual and customary." ) Last June, facing allegations of a conflict of interest, Dr. Dionne finally stepped aside.

Perhaps the good folks in New Hampshire could speed up the fee schedule project by asking Dr. Woods to step aside. No doctor is going to embrace a cut in reimbursement rates. Dr. Woods would have a choice: he could sit on the sidelines and watch the committee hash out the details, or, with his health and well-being in mind, he could put on his hiking boots and climb one of the Presidentials. I recommend the latter, even if the peak is momentarily obscured by the fog.

Thanks to Work Comp Central for the heads up on this issue (subscription required).

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March 21, 2011


In a move stunning for its contrariness, Vermont is moving toward a single payer health care system. In the course of the debate, the inevitable issue of whether to include workers comp has come up. At this point, a committee will make recommendations on whether to "integrate or align" workers comp with the state's radical reconfiguration of the health care system. (Further details are available at WorkCompCentral - subscription required.)

The Vermont approach would completely separate indemnity from medical benefits. Employers would continue to pay for the indemnity portion, but are unlikely to have any input into treatment plans. The Insider has pointed out - ad nauseum, some might say - that the relatively miniscule comp system is quite different from the behemoth health delivery system. In the interests of saving the Vermont committee a little time, here are a few of the conundrums confronting anyone trying to merge the two systems:

: Comp is paid solely by employers. Injured workers pay nothing (no co-pays, not deductibles, ever).
: Consumers pay quite a bit for conventional health coverage: a portion of premiums along with co-pays and deductibles for treatment and for medications
: Comp has very narrowly defined eligibility requirements, while conventional health has virtually none
: The goal of comp is to provide medical treatment for injured workers and, if possible, return them to work; if return to work is not possible, comp pays lost wage benefits and injury-related medical bills virtually forever.
: The goal of the conventional health system is to take care of people, regardless of the employment implications
: Comp provides indemnity, temporary or permanent, for those unable to work. No such wage replacements exist in the conventional health system
: Perhaps most important, medical services under comp have an occupational focus, with the explicit goal of returning people to their jobs. In the conventional health system, any occupational focus would be subordinate to the goals of the consumer.

Should Vermont achieve its ambitious goal of universal coverage, the presumption is that everyone would have a primary care physician, who would serve as gatekeeper for all medical services. (Let's set aside, for a moment, where the Green Mountain state will be able to find these primary care doctors.) In a unified system, injured workers would go to their primary care physicians for work-related injuries. These primary care docs may or may not focus on returning their patients to work. Many people hate their jobs and might welcome a few weeks or months of indemnity-supported leave. The primary care physician might be quite sympathetic to their cause.

This brings us to the great divide between conventional health care and workers comp: conventional health care may or may not embrace the need for return to work. Indeed, if the work is hazardous - as much work is - the doctor may want to discourage his patient from returning to it. The doctor's goal is to "do no harm" - so why send someone back into harm's way? If the patient suffers from lower back problems and has a job involving material handling, what is the right thing for the doctor to do?

Who Pays?
In the current system, workers comp pays doctors for eligible medical services. Whether or not they like the comp fee schedules, doctors are acutely aware that comp is paying for the services of a particular individual. Often, treatment is provided by occupational specialists, who bring a unique "return-to-work" focus to the treatment plan. These occ docs are often in communication with employers seeking to return injured workers to productive employment. The occ docs specify the restrictions so that employers can design appropriate modified duty jobs. The employers have a sense of urgency, as they are losing the productivity of the individual who is out of work - and of course, they are paying all of the costs associated with the injury.

Under the proposed Vermont system, all bills will be paid the same way. Comp disappears from the doctor's view. Employers may have little input into the choice of doctors or specific treatment plans. The role of occupational doctors is unclear, to say the least. Given that primary care physicians generally lack an occupational focus, return to work may become secondary to the comfort and personal inclinations of the patient. As a result, there is a risk of substantial increases in indemnity costs.

When contemplating change on the scale of Vermont's single payer system, it is tempting to brush aside the implications for something as small as the workers comp system. That would be a big mistake. The system might be small, but the costs to the state's employers are already substantial and have the potential for going much higher. The comp system plays an unique and long-established role in protecting both workers and employers. As they take steps to transform healthcare in Vermont, lawmakers need to remember that workers comp itself is worthy of their protection.

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March 1, 2011


Dave Duerson was a star safety in the NFL. He used his head in the way that aggressive defensive backs often do - as a battering ram to bring an opponent down, maybe even jar the ball loose. He was articulate, generous and in his post-football life, successful. So it saddened many of his friends and colleagues to learn that he had committed suicide last month. But even in this last, desperate act there was a method to the madness: he shot himself in the chest, so that his brain would be left intact. He was convinced that the downward spiral of his life over the past few years was due to football-related brain damage - chronic traumatic encephalopathy. He texted his ex-wife just before he shot himself, requesting that his brain be given to the NFL brain bank. Just in case she did not get the message, he left a written note with the same instructions.

We have blogged the issue of concussions in the NFL and their potential for long-term brain damage. As this prior blog pointed out, a changing of the NFL's medical guard indicates that the league finally appears willing to confront the issue head on (so to speak). They no longer systematically deny a connection between concussions on the field and severe cognitive problems after football careers come to an end.

Over the past few years, Duerson was in a downward spiral. He lost his business to bankruptcy. He (uncharacteristically) assaulted his wife, who soon felt compelled to end their marriage. While his friends did not see major changes in his behavior, he talked openly of his fears of dementia. He suffered short-term memory loss, blurred vision and pain on the left side of his brain. He looked into the future and despaired at what he saw coming. At the time of his death, Duerson was only 50.

Suicide as Political Act
Duerson's last gesture was an explicitly political act. He was convinced that his life problems - and the rapidly diminishing quality of that life - were directly connected to his years as a football player. So he not only decided to end his life, he made sure that suicide would leave his brain intact for research. The NFL has been (belatedly) collecting the brains of deceased players willing to donate them, to try and determine the impact of repeated violent collisions on aging. At this point, there is not much doubt of the causal connection - not in every individual who played the game, but surely in a significant percentage who suffered from multiple concussions.

With this connection medically proven, the burden falls on the NFL to improve player safety. That will not be easy. This past season, a number of players - most notably the Steelers linebacker James Harrison- complained about the newly implemented fines for helmut to helmut hits, defined as:

"using any part of a players helmet (including the top/crown and forehead/hairline parts) or facemask to butt, spear, or ram an opponent violently or unnecessarily; although such violent or unnecessary use of the helmet is impermissible against any opponent, game officials will give special attention in administering this rule to protect those players who are in virtually defenseless postures..."

Duerson the player would have agreed with Harrison about the rule. Duerson the retiree would have supported it. Experience is an exacting and often cruel teacher. As Duerson's sad demise demonstrates, what we choose to ignore in the prime of life may give birth to demons that haunt us as we age.

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February 28, 2011


We have been following the sad saga of Joseph Casias, a former Walmart employee in Battle Creek, Michigan. Casias, 29, suffers from a sinus cancer and an inoperable brain tumor. (He looks so much older than his years.) After 5 unusually successful years as a Walmart employee, he injured his knee on the job, after which he underwent a mandatory drug test. Casias has a prescription for medical marijuana (legal in Michigan). Inevitably, he failed the drug test. Walmart fired him.

He sued for wrongful termination in federal court. He lost.

Judge Robert Jonker found that while Casias's use of marijuana was legal, Walmart was within its rights to terminate him. Nothing in the Michigan statute legalizing pot regulates private employment. As we pointed out in a recent blog, the issue of legal drugs in the workplace is a gray zone of formidable dimensions. Employers will usually err on the side of caution, as the exposures for negligent retention appear to outweigh the pressure to accommodate disabled employees. Hence, Walmart wins.

What is lost in the standard personnel procedures that identified Casias as a (legal) drug user and terminated his employment is a simple fact that may or may not concern Walmart. Casias was a highly motivated and valued employee. His work was exemplary. Workers like Casias are not easy to find, especially when the pay is marginal. It's worth a little extra effort to hold on to them. By following their own rules to the letter, Walmart wins in court but loses on the selling floor.

Legally Disemployed
Even though states are showing some flexibility in their approaches to marijuana, legalization is no help to workers who have a prescription for the drug. These folks will routinely fail post-accident drug tests. As a result, any injury to a worker using medical marijuana will result in a termination. Zero tolerance, zero employment.

We are not suggesting that states attempt to preempt the rights of employers in statutes that legalize marijuana. With so much at stake, with so many complex risk factors at play, employers must have the final say in who works and who is let go. We can only hope that employers use their powers - dare I say it? - compassionately.

Did Walmart have an alternative? With his serious illness, Joseph Casias appears to meet the ADA's definition of disabled. Walmart could have approached the dilemma through the ADA accommodation process. After Casias failed the drug test, they could have determined: first, that the drug was prescribed; second, that the drug use was not a factor in his injury; and third, that there have been no indications that his drug use has impacted his performance on the job. Having passed this three-pronged test, Walmart could have decided to "accommodate" Casias's disability by waiving the drug test results and retaining him as an employee.

Alas, in the world of huge corporations, the fate of one man just isn't worth that much effort. Why bother being flexible when it's so much easier - and perfectly legal - to show employees the door?

You know the Walmart motto: Save money. Live better. Nothing in there about doing the right thing for the likes of Joe Casias.

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February 21, 2011


Dr. Trang Nguyen has some serious doubts about the effectiveness of spinal fusions, especially in workers comp. In his study of 1,450 cases of chronic lower back pain in the Ohio comp system, Dr. Nguyen focused on an outcome near and dear to the hearts of all comp practitioners: the number of injured workers returning to the workplace after surgery. The results of his compelling (if less than purely scientific) study, published in Spine Magazine, are cause for alarm.

Dr. Nugyen looked at cases involving chronic back pain that were at least two years old, divided equally among workers who had spinal fusions and those who did not. Among those with fusions, only 25% returned to work, compared to 66% among those who received conservative (non-invasive) treatment such as physical therapy.

That is a huge differential. In addition, 27% of the fused workers had to undergo a second surgery, and as any claims adjuster can tell you, doubling up on spinal surgery places workers on a downward slope toward failed back syndrome: permanent total disability. Among the fused workers, 11% were permanently disabled, compared to only 2% among those who avoided surgery. Finally, most of the workers who underwent fusions were still on strong opiates two years after the treatment. In other words, they still suffered from the pain that led them to treatment in the first place.

While this is not a definitive study, the findings surely offer a cautionary tale not only for workers who suffer from back pain, but for their families and employers as well. It is no great mystery why fusions have become the treatment of preference for so many medical specialists. One doctor used the analogy of giving out hammers: people with hammers - surgeons who can do fusions - look for nails (people who might need the treatment).

Something for the Pain
We are an impatient culture. When in pain, we want immediate relief. Given time, appropriate medications and the skilled hands of physical therapists and chiropractors, the pain usually goes away, or at least reaches more tolerable levels. To be sure, there are severe injuries when fusion is the necessary option; however, pain alone is not an indicator of such severity. The problem with fusion is that it creates rigidity in a part of the body that is designed for flexibility. A rigid spine is an open invitation to lifelong pain and despair.

From the comp perspective, we should remain aggressively sceptical of most proposed spinal fusions. Claims adjusters should routinely require a disciplined utilization review, an objective second opinion and an independent medical exam. Place a strong burden of proof on any doctor proposing fusion for an injured worker. Fusion should be the treatment of last resort.

These are not merely delaying tactics. Rather, they are essential strategies for buying precious time, time for the natural healing process to take place and time to avoid what often becomes a path to oblivion. If, as this study shows, the odds for return to work are more than double for workers receiving conservative treatment, then it is in everyone's best interest to avoid fusion surgery. Refuse to Fuse. That's a motto worth posting over the desk of every comp adjuster in America.

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February 7, 2011


We have been tracking the hazardous effort to integrate medical marijuana into the workplace. It's not an easy fit. The burden falls on legislators, who write the laws, and on judges, who interpret these laws. The testing ground is often California, where fantasy and reality are so intertwined, it's getting more and more difficult to separate them.

We read in WorkCompCentral (subscription required) that a state senator named Mark Leno (any relation to Jay?) has introduced a bill to clarify the rights of medical marijuana users in the workplace. Senate Bill 129 gives workers a right to "damages, injunctive relief, reasonable attorney's fees and costs..." if employment decisions are based upon their medical use of marijuana. Then Governor Schwarzenegger vetoed the bill in 2008. Senator Leno is guessing he might have better luck with Governor Brown (AKA Governor Moonbeam).

Joe Elford, chief counsel for Americans for Safe Access, believes that legislation in necessary in order to assure equal rights for medical marijuana users who are not technically disabled: employers have an obligation to accommodate the disabled, but they may not view others the same way. "Under SB 129 you don't have to be disabled, you simply have to be a medical marijuana patient."

He goes on to say that Proposition 215 was not intended just for the unemployed: its protections must include workers in the workplace.

Ah, there's the rub. How do you draw the line between drug free workplaces and medically approved use of marijuana (and, for that matter, opiates and other pain killers)?

Locked Out, Tagged Out, Zoned Out
SB 129 tries to have it both ways. On the one hand, it states: "Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment." Any employee who is under the influence of marijuana at work can be terminated.

On the other hand, the bill tries to protect the rights of at least some employees at work who might in fact be somewhat impaired by their use of pot. While the bill does not provide protection for workers in "safety sensitive" positions, it does protect everyone else. It defines "safety sensitive" as "a job that has greater than normal level of trust, responsibility for or impact on the health and safety of others or where errors in judgment, inattentiveness or diminished coordination could put others in danger."

Hmm, what have these guys been smoking? How many jobs can you think of where "errors in judgment, inattentiveness or diminished coordination" would not be a serious if not immediate problem? Would this legislation actually protect employers from "negligent retention" claims where their (somewhat) stoned workers make marijuana-induced mistakes? "Sure, he messed up the calculation of your benefits. But you'll have to cut him some slack. He was on (medically approved) medication."

I have the greatest sympathy for legislators struggling to balance the rights of workers in need of specific medications with the rights of everyone else. But in this case, they appear to be straddling the Grand Canyon. Is there any job where inattentiveness and diminished coordination would be acceptable? Consulting? Actuaries? (just kidding). I would suggest that the legislators create a specific list of any such jobs. That would make for interesting hearings, at the very least, and the applications for these positions would increase exponentially.

You have a problem with how I'm doing my job? Dude, I'm locked out. Try me a little later.

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January 18, 2011


NCCI has published an interesting study on the relationship between obesity and the cost of workers compensation claims. To no one's surprise, the study concludes that medical costs for the same injury are 3 times higher among obese claimants in the first year, rising to five times higher at 60 months. In addition, claims for the non-obese are much more likely to be medical only; obese workers, when injured, tend to lose time and collect indemnity. For the same injury and all else being equal, the range of medical treatment, the costs and the duration of the claim are consistently greater for obese employees.

The study cites CDC data on the incidence of obesity in the general population. In 1990 10 states had incidence rates of obesity under 10% and none were above 15%. By 2009, 33 states had incidence rates equal to or above 25% and nine (mostly deep south) states had rates at 30% or higher.

The study is based upon 27,000 claims, of which 7,000 carried a specific diagnosis for obesity as a co-morbidity. Data wonks will duly note that there must have been a significant number of obese claimants outside the "obese" group, due to the fact that treating doctors would not consistently list obesity under the diagnosis.

Underwriting the Overweight
I feel a great deal of sympathy these days for the challenges facing comp underwriters and actuaries. Their customary approach of using the rear view mirror as the major indicator of future risk is increasingly ineffective. Now you can add the issue of obesity to mostly hidden factors that can seriously skew loss ratios.

The CDC data clearly indicates an alarming upward trend in obesity. Many of the obese are in the workforce. Indeed, companies might hire a person within the normal weight range and then see this individual gain substantial weight during the course of employment. Many of these burgeoning employees are performing physically demanding tasks. When they suffer from back strains, for example, the medical costs associated with treatment are more than double those of the non-obese. (On the other hand, the cost for the medical treatment of carpal tunnel injuries is virtually the same for the obese and non-obese.)

Fire the Big People?
With this data in hand, it may be tempting for employers to avoid hiring the obese and find ways of terminating current employees who tip the scale in the wrong direction. This would eliminate some very productive people. In addition, it raises the specter of discrimination. The Americans with Disabilities Act protects those with disabilities that impact "one or more major life activities." That might - but does necessarily - include the morbidly obese.

The NCCI study raises the issue of higher costs for injuries involving the obese. There is a more proactive way to look at the issue. Employers could focus on incentives to promote wellness. Employees who stay fit could receive enhanced benefits. We have drug-free and smoke-free workplaces. Perhaps it's time for snack-free workplaces - or healthy snacks. Out with soda machines and in with the vitamin water.

It's interesting to note that when opening comp claims, insurers generally do not collect data on height and weight . They really should. Where the data indicates that weight will be a significant factor in recovery, steps could be taken to encourage weight loss as part of the treatment plan. (For an example of court-ordered weight reduction, see our blog on the obese pizza maker here.)

Ultimately, the effort of employers to control losses will come up against the freedom of people to act as they choose. It's one thing to provide incentives for losing weight, it's quite another - especially in the deep south - to take away the Coca Colas. For many strong advocates of the American way, them's fighting words, indeed.

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January 4, 2011


For nearly 15 years, beginning in 1990, Bradley Clark was a baggage handler for United Airlines. He started at age 33, and by the time he was unable to perform the work, he was nearly 50. Ten years in, he began experiencing pain in his thumb joints. In 2004 he banged his hand against a cart and was diagnosed with bilateral carpal tunnel, for which he had surgery. Unfortunately, the surgery did not stop the pain. (NOTE to claims adjusters: This is yet another example of unnecessary surgery, based upon the wrong diagnosis.)

With pain continuing after the surgery, Clark sought treatment from a hand specialist. He treated with Dr. Charles T. Woolley, who performed surgical fusions on both thumbs. Coverage of this surgery was denied, as a succession of five physicians concluded that Clark's problem was osteoarthritis, which is hereditary and unrelated to work. The opinions included an IME performed by two doctors, who concurred with the other doctors that the condition was not work related.

Slam dunk for the employer, right?

Making the Case
In his choice of a hand surgeon, Bradley Clark stumbled upon a stubborn and determined physician, one more than willing to disagree with his colleagues. Dr. Woolley diagnosed bilateral trapeziometacarpal joint arthritis and insisted that it was work related. Among his impressively detailed findings:
- Clark was too young to develop osteoarthritis, as he was only 43 years old when the pain first developed.
- He found no genetic pre-disposition to developing osteoarthritis, as none of the other joints in Clark's hands, such as his fingers, revealed osteoarthritis. There was no osteoarthritis in any other part of his body.
- Osteoarthritis in the thumbs is typically seen in women, in particular post-menopausal women. Clark rather obviously did not fall within this category.
- Clark performed significant lifting for 16 years, which required repetitive pinching of his thumbs. This kind of grabbing/pinching activity places significant loading on the thumbs and ultimately leads to a wear and tear of the thumb joints. Wear and tear over time led to instability of his joints causing the osteoarthritis. His TMC or thumb joints became unstable over time because of the repetitive grabbing/pinching use. Over time with continued use, his cartilage in his thumbs wore off due to the repetitive friction from the pinching/grabbing.
- Contusions/strains, such as the work injury he sustained in November 2004, also contributed to the osteoarthritis, because they cause damage to the cartilage which leads to instability of the ligament. Jamming one's thumb also contributes to the development of osteoarthritis because it damages the ligament causing instability and then osteoarthritis.
- The thumb basal joint (where the thumb meets the wrist) is exposed to very high stresses with grabbing activities and the forces felt at the tip of the thumb are multiplied twelve times in their effect on the thumb base, thus predisposing this joint to wear and tear. Clark's work activities as a ramp serviceman are the exact kind of activities to cause wear and tear to the thumb joint because of the grabbing involved; this wear and tear led directly to the osteoarthritis in his thumbs.

Deep Knowledge
While there were five doctors lined up against him, Woolley was the only hand specialist among them. The duelling docs bolstered their differing cases through articles in medical journals. The Oregon Court of Appeals was faced with a choice: side with the majority or side with the expert.

Ultimately, Dr. Woolley's opinion prevailed. His compelling testimony, combined with his intimate knowledge of hands, won the day. So let's have a little hand for Dr. Woolley, who could have taken the easy way out and deferred to his colleagues, but instead fought the good fight for a hard-working man who could no longer do his job.

(For the record, we duly note that Clark retired from his job long before the onerous baggage fees went into effect, at which time many of us lost a bit of sympathy for these harried and ultimately blameless workers.)

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November 15, 2010


Last week, our nation honored its veterans for service rendered to the country. Although belatedly, we join in offering thanks. One could make the case that our nation's gratitude should be a 365-day-a-year tribute rather than largely confined to a single celebratory day. On returning home, many veterans face an enormous hurdle, the day-in-day-out battle of finding employment, a formidable challenge for any vet but made even more difficult in the current economy. Beyond an expression of appreciation, there are many good reasons why employers should hire vets. The U.S. Department of Labor has collaborated with Office of Disability Employment Policy (ODEP), the Veterans' Employment and Training Service (VETS), and other federal agencies to offer a Step-by-Step Employer Toolkit for Hiring Veterans.

In addition to their military service, there is another debt that we owe to our vets, particularly those who have been wounded physically or psychologically. It is one of life's great ironies that war, which is responsible for so much death and destruction, is also a catalyst for the advance of medicine and medical technologies.

Just as weapons become more sophisticated, so too do the medical technologies designed treat the wounds that these weapons exact. From wars in ancient times to the present, civilian medicine has been advanced by battlefield medicine, first practiced on wounded warriors.


Wired Magazine has been one of the ongoing sources we turn to get our fix about battlefield advances in medical technology. A recent article - Military's Freakiest Medical Projects - is a fascinating case in point, highlighting advances in prosthetic limbs, skin grafts, burn repair, bone cement, suspended animation, and more. The article's intro explains that "Some of the Pentagon's extreme medical innovations have already debuted in the war zone. And with myriad applications outside of combat, these advances in military medicine mean that revolutionary changes for civilian care aren't far behind."

Another recent article - Exoskeletons, Robo Rats and Synthetic Skin: The Pentagon's Cyborg Army - focuses on technologies that foster recovery, such as neurally controlled prosthetics, or that enhance performance, such as wearable exoskeletons that amplify amplify troop strength and endurance.

As exciting as these developments are, not all effective treatments rely on advanced technology - some are reassuringly "old-school." A case in point is this heartwarming story about vets with PTSD who train service dogs as companions for vets in wheelchairs. The dogs do double duty, serving as therapy dogs for those with PTSD while they are being trained, and later as helper dogs for those confined in wheelchairs. You can learn more about this most excellent program at Paws for Purple Hearts.

And if you doubt the healing and restorative power of dogs, we leave you with this evidence: an incredible compilation of clips of dogs welcoming home soldiers. One warning: have a box of tissues nearby!

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October 13, 2010


Obesity as a health problem is not going away, nor is the issue of whether obese people are considered disabled under the Americans with Disabilities Act (ADA). The latest iteration of this saga involves the late Lisa Harrison, a morbidly obese employee of Resources for Human Development (RHD) in New Orleans. Harrison, an intervention prevention/specialist, worked with the children of mothers undergoing treatment for addiction. By all accounts, she performed her job well, but RHD viewed her as limited in a number of major life activities, including walking, so they fired her. Harrison died before the EEOC filed suit, but the lawsuit lives on.

Keith Hill, the field director of the EEOC's New Orleans office, stated, "This is a classic case of disability bias, based on myths and stereotypes. The evidence shows that Ms. Harrison was a good and dedicated employee who did not deserve to be fired. All covered employers, whether for-profit or non-profit, must abide by the ADA's provisions."

It's important to note that the EEOC is not basing the lawsuit on obesity itself, but rather on the idea that RHD perceived Harrison to be disabled. That's why they fired her. The larger issue - so to speak - is whether morbid obesity in itself is a disability. This particular case will not attempt to resolve that condundrum. Thus far, the courts have resisted the idea that any and all obesity is a disability. They look for physiological causes for the obesity, including thyroid disorders and genetics. If there is no specific medical cause for the weight problem, obese people are generally not considered to be disabled.

It all comes down - as it usually does - to the ability to perform the essential functions of the job. Harrison did not seek any accommodation based upon a disability. She simply did her job and apparently did it well. It will be interesting to see whether the RHD defense raises the issue of risk: whether Harrison's morbid obesity placed her or her young charges at immediate risk of harm - not hypothetical, but imminent - a difficult standard to prove.

Related posts:
If you search the Insider for "obesity" you will find three pages of postings. Here are a couple of highlights:
The story of Adam Childers, the obese pizza maker whose stomach stapling operation was covered by workers comp.
The federal case involving Stephen Grindle, whose job loss due to obesity was not covered by the ADA.

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September 24, 2010


The folks at American College of Occupational and Environmental Medicine (ACOEM) know something about doctors. They also know quite a bit about workplace injuries in that most of the members are physicians actively practicing in the field, in one capacity or another. That's why we sat up and took notice when we saw their recent publication, A Guide to High-Value Physician Services in Workers' Compensation - How to find the best available care for your injured workers. ACOEM joined forces with the International Association of Industrial Accident Boards and Commissions (IAIABC) to produce the 11-page "best practice" summary, which includes the best thinking and contributions from a diverse group of workers' compensation system stakeholders in a meeting convened by ACOEM and the IAIABC last April. You can see the list of participants on page 11 - a group of heavy hitters that includes a geographical and industrial sampling. It's great to see a think tank of employers and insurers sitting down at table with policymakers and physicians to come to some agreement about best practices. The only thing we might suggest for improvement would be to add a representative from labor at any future convocations.

The stated purpose of the document is to provide specific guidance and resources to all stakeholders in the workers comp system - from injured workers and employers to insurers and TPAs - to help identify the best physicians for care of both everyday, uncomplicated injuries, as well as for specialized medical services addressing catastrophic injury or administrative tasks required by the workers' compensation process.

It identifies ways to find physicians who:

  • Are willing to accept patients covered by workers' compensation insurance
  • Employ best practices in providing high quality and compassionate medical care
  • Respect and fulfill the extra responsibilities that the workers compensation system creates
  • Produce better overall outcomes at comparatively better total cost over the course of an injury or illness. (High-quality care produces better outcomes for workers and better value for payers.)

The Guide offers both a "High value" checklist and a step-by-step process for identifying physicians, verifying credentials, working with, and measuring performance. We put this one on our "required reading" list. And for adjunct reading, we also recommend ACOEM's Preventing Needless Work Disability by Helping People Stay Employed.

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June 29, 2010


Five years ago almost to the day we blogged the saga of Dr. Jayant Patel, a surgeon of staggering incompetence who wreaked havoc on the citizens of Bundaberg, Australia. After 14 weeks of testimony, more than 75 witnesses and nearly 50 hours of deliberations over six days, a jury convicted Patel of manslaughter in the deaths of four patients and causing "grievous bodily harm" to a fifth. These charges involve just a small number of the cases where Patel's doctoring skills have been called into question. There may be further trials ahead.

The most appalling aspect of this case involves institutional denial: despite Patel's obvious incompetence - nurses actually hid patients from him - and despite explicit and alarming descriptions of his shortcomings as a doctor, administrators continued to support Patel, even naming him "employee of the month" following an egregious operating error that led to the death of a patient. Only when an enterprising reporter Googled his name did his prior problems as a surgeon in America pop up, at which point his employment was finally terminated.

The maximum penalty for manslaughter in Australia is life in prison. Dr. Death, in other words, is facing life. (He is filing an appeal.) In a just world, the administrators who hired, coddled and facilitated Patel would also be held accountable. But in case you haven't noticed, this is not exactly a just world. The wheels of justice, slow though they may be, have finally put an end to Patel's bizarre career, which transformed the medical premise of "do no harm" into its opposite. We can only say that he will do no further harm - a small consolation to his victims and a savage indictment of his profession.

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June 23, 2010


We return to the beautiful state of Maine, where moose wander the woods looking for whatever interests a moose and where employers self-insured for workers comp look for a fee schedule. The moose are a lot happier than the self-insureds. As we have pointed out in prior blogs, the legislature mandated the creation of a fee schedule for medical services nearly 20 years ago. There is still no fee schedule. So while insurance carriers are free to negotiate with hospitals to determine rates, self-insureds - Bath Iron Works (BIW) the most notable and vocal - are stuck paying the exorbitant "usual and customary" fees.

BIW has sued a number of times to move this process to a conclusion. Most recently, they sued to remove Paul Dionne, chairman of the workers comp board, from heading up the fee schedule committee. Dionne is also board chairman of Central Maine Healthcare Corp., which includes Central Maine Medical Center in Lewiston. While he claims objectivity, Dionne is in an untenable situation: you do not ask a medical provider how much they want to cut their own revenues.

In deference to the "appearance" of a conflict of interest, and perhaps in an acknowledgement that after 20 years, enough is enough, Dionne has recused himself from any further involvement in the fee schedule process.

"It's a hard decision because this is a very important issue for the workers' compensation system," he said. "But I've got a lot of confidence in the board members."

So from here on Dionne will follow the debate from the sidelines: no conflict, but plenty of interest. His confidence in the other board members might give rise to anxiety for BIW. Regardless, this is surely a step in the right direction.

When it comes to the long-mandated, long-absent fee schedule, patience is wearing a bit thin in Maine. The moose may wander where they choose, but self-insureds are caught in a very expensive trap. Too bad they don't sell fee schedules at L.L. Bean.

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April 8, 2010


We like to keep our eye on advances in rehabilitative and assistive tehnologies, so we were delighted to find one of our favorite inventors and entrepreneurs Dean Kamen showcasing another of his awe-inspiring inventions in a TED talk. Kamen is perhaps most known for the invention of the Segway. We were particularly smitten by his iBOT, a revolutionary stair-climbing wheelchair that allowed the user to raise up on two wheels to be eye level to a standing person. Unfortunately, these went off the market due to cost but you can see the iBOT in action here.

Kamen's recent invention is the DEKA Arm (or the "Luke Arm"), a highly advanced prosthetic arm which he created for veterans who lost limbs in the war. He tells the fascinating story of the development and shows some of the capabilities in the following TED video. Inspiring and exciting! (You can also view his recent appearance on the Colbert Report and you can read about it at Dean Kamen's "Luke Arm" Prosthesis Readies for Clinical Trials.)

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April 5, 2010


Dr. Diane Shafer practices medicine in the Tug Valley area of West Virginia. The Tug River runs along the Kentucky border. It's a hard-scrabble part of the state, famous mostly for the Matewan coal mine strike in the 1920s. (Mother Jones, featured recently in one of our blogs, led the miners in an unsuccessful attempt to establish a union.) With a declining population and a median household income of $27,000, the area is dirt poor.

Which brings us to Dr. Shafer, an orthopedic surgeon. She may practice in a desperately poor part of a relatively poor state, but she is doing pretty well for herself. We read in the Insurance Journal that prosecutors have been very busy tracking her activities. A January raid of her bank holdings yielded more than $500,000 in cash and valuables. About half that haul consisted of stacks of $100 bills found in one of her safety deposit boxes.

Where did the cash come from? Don't bother looking for surgical fees. Dr. Shafer sells drugs. A state-federal probe tracked hundreds of people who entered Shafer's storefront clinic daily, paid between $150 and $450 cash, and left with pain drug prescriptions. Evidence included photos showing a line of people waiting to see Shafer that reached the sidewalk and stretched down the street, with as many as 30 people waiting outside. Dr. Shafer was not just running the most popular ortho practice in Mingo County, population 26,000. It must have qualified as the most popular ortho practice in the world.

FBI Special Agent James Lafferty said in a sworn statement: "The condition of Dr. Shafer's office during the execution of the search warrant indicated that it would be physically impossible for her to utilize her examining tables. She indicated that she examined her patients 'at another location.''' In the back of her pick up truck, perhaps?

Dr. Shafer has parlayed her wealth into an interest in politics. She is running for the state senate with the slogan "You are Safer with Shafer." Well, you certainly feel less pain when she is doing her thing. On her platform, outlined in rather primitive form at her website, she proposes giving free prescriptions to senior citizens. She does not specify which drugs she has in mind, but we can probably guess.

This is not the good Doc's first encounter with law enforcement. Her license was suspended in the 1990s for bribery and falsification of evidence in a workers comp case. (Why am I not surprised?) Eventually, her license was reinstated. The latter court noted: "The evidence is undisputed that the appellee is a hardworking, valuable member of her medically under-served community, and her technical ability to practice medicine is unquestioned."

History Repeating Itself.
Mingo County may be poor, but it has a fascinating history, summarized here. The origin of the county is worthy of a Faulkner novel:

Mingo County is the youngest county in the state, formed by an act of the state legislature in 1895 from parts of Logan County. Its founding was related to a legal protest by a moonshiner who claimed that the Logan County Court that had found him guilty did not have jurisdiction over his case because his still was actually located in Lincoln County. A land survey was taken and discovered that the defendant was correct. The charges were then refilled in Lincoln County court. Although the moonshiner was ultimately found guilty of his crime, the state legislature was made aware of the situation and determined that Logan County was too large for the expeditious administration of justice and decided to create a new county, called Mingo. The county was named in honor of the Mingo Indian tribe that had been the earliest known settlers of the region.

Dr. Shafer appears to be carrying on in the tradition of Mingo's founding moonshiner. She is also likely to end up as he did, with a conviction. The shutting down of her wildly popular practice may well drive the good folks of Mingo back into the hills in pursuit of more traditional methods of mitigating pain: no prescription is required; the medication comes only in liquid form; and there are no warning labels, but the risks of consuming it are beyond calculation.

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March 22, 2010


Last August we blogged the case of Adam Childers, a morbidly obese pizza maker in Indiana who suffered a back injury. Childers's weight was in itself a substantial obstacle to his getting better, so the court ordered the comp carrier to pay for gastric by-pass surgery. Now we find a similar case in New York, where the state supreme court requires the state fund to pay for by-pass surgery.

Salvatore Laezzo, an employee of the state Turnpike Authority, slipped and fell at work back in 2002. He suffered injuries to his head, neck, back and knees. While we might assume that Laezzo had some weight issues at the time of the injury, in the subsequent years of relative inactivity his weight increased dramatically. There was substantial evidence that Laezzo's weight gain was caused by his work injury. In effect, the New York court has set a somewhat narrower standard for compensability than the court in Indiana: had Laezzo been morbidly obese prior to the injury, the court might have ruled for the carrier.

Seeds of Compensability
New York has some interesting and rather expansive notions of compensability in workers comp. The current ruling cites a precedent involving Stephen Spyhalsky, a construction worker [Spyhalsky v. Cross Construction N.Y.S.2d 212). The court ordered the comp carrier to pay for artificial insemination of Spyhalsky's wife, after back surgery compromised the route taken by his sperm. This unusual definition of compensability leads directly to another intriguing issue: had Spyhalsky been permanently disabled, would the comp carrier be required to pay dependency benefits for the resulting child? In all likelihood, yes.
NOTE: We blogged a somewhat similar situation in Arkansas, where the wife of a deceased claimant was artificially inseminated with his frozen sperm. After a rather complex deliberation, the court rejected her claim for additional dependency benefits.)

When in Doubt, Leave Them Out?
While the logic for including gastric by-pass surgery under workers comp is certainly understandable, there is a strong potential for unintended consequences: obese job applicants, who already face myriad problems in finding employment, may encounter even more discrimination. These well-publicized court rulings place the burden of gastric by-pass surgery directly on comp insurers and employers. The latter may shy away from hiring qualified obese applicants. After all, the obese are at greater risk for injury and, once injured, their weight becomes a substantial obstacle to returning to productive employment.

It would be nice to think that the pending expansion of healthcare benefits to nearly all Americans might make this cost-shifting problem go away. Alas, the game of "pin the tail on the payer" has only just begun.

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March 19, 2010


Joseph Casias was the Associate of the Year in 2008 for the Walmart in Battle Creek, Michigan. He achieved this despite his ongoing struggle with sinus cancer and an inoperable brain tumor. During his five years with the organization, the 29 year old Casias went to work every day determined to be the best. To help manage the pain that accompanied his challenging illness, his doctor prescribed medical marijuana, which is legal in Michigan. Casias used the drug only at home and was never "high" when he reported for work. (See our recent post on medical marijuana here.)

Last November Casias sprained his knee at work. Walmart ran a routine drug screen following the injury. Unsurprisingly, Casias tested positive for marijuana. Despite the doctor's prescription, Walmart terminated Casias for violation of the company drug policy. Despite the legality of Casias's pot use, the company appears to be on firm ground: as with smokers in many states, companies are free to impose their own prohibitions on the use of otherwise legal products.

Casias collected unemployment insurance after his termination. Now it appears that Walmart has had second thoughts about that, too. They are contesting his UI eligibility, as he was terminated for cause. Casias has already been collecting UI for over three months, so he is likely nearing the end of the benefit. But when Walmart sees a penny on the floor, they will push old ladies aside to get it.

Company Speech, Company Soul
In a recent ruling, the U.S. Supreme Court determined that corporations have the same free speech rights as do individuals. Perhaps the court will be tempted to take it one step further and rule that corporations have souls.

One look at Walmart should convince them otherwise. In their typical tone-deaf manner, Walmart has acted within legal parameters; Casias was in technical violation of company drug policy, even though his drug use was medically necessary and presented no risk to the employee, co-workers or the public. Casias was an award-winning employee - but, I suspect, a drag on the company health plan. So Walmart seized the opportunity of a failed drug test to show Casias the door.

As usual, Walmart shoppers, there are plenty of specials today, but don't bother looking in aisle three for remnants of compassion or a company soul .

Note: We have blogged Walmart's compassion struggles many times. Just enter "Walmart" into the site search engine in the column to the right.

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March 11, 2010


The Brain Injury Association reminds us that March is Brain Injury Awareness Month, so it was timely to see that our colleague Peter Rousmaniere has an important piece on brain injury recovery in the current issue of Risk Management magazine: Gray Matters: The Employer's Role in Brain Injury Recovery. It is important for two reasons: it sheds light and hope on the issue of traumatic brain injuries and the improved prospects for recovery, including return to work; and it serves as an illustration of some important differences between workers compensation and group health

The article notes that each year, 50,000 Americans die of a traumatic brain injury and 235,000 are hospitalized. There really aren't good statistics to tell us the prevalence of work-related brain injuries. Although there are better statistics available for what Rousmaniere calls "the signature wound of today's wars," many think that the estimate of 320,000 war-related traumatic brain injuries may be on the low side.

The good news, as Rousmaniere documents with examples, is that with proper medical care there have been great advances for a type of injury that was once written off as lost cause: "In the past, many adults with work-related traumatic brain injury were simply warehoused. But with advances in treatment and care strategies, including an employer that is ready and willing to help in gradual return to work, many survivors of severe brain injury can regain most of their former way of life."

Part of the challenge is early identification, rapid response, and aggressive treatment early in the injury, and aggressive recovery goals. Patients who are treated in the workers comp system, where care is often managed and coordinated and where insurers and employers aggressively advocate for recovery and return to work, often have an advantage over those patients treated under group health. With workers compensation, employers/insurers have financial responsibility for the life of a claim and, therefore, more incentive to work towards maximum recovery. Rousmaniere cites a case manager who says, "You have a workers compensation brain injured patient who is in the same hospital room as a nonworkers compensation patient, and the difference in resources is like night and day."

Rousmaniere cites examples of successes, along with best practices that contributed to those successes - including the important role that the employer can play in maximizing recovery, some of the challenges that occur, and some of the best practices:

As with all successful brain injury recoveries, job coaching is a critical phase that demands employer participation. Rehab counselors often make the trip with the worker back to her or his workplace. Memory failure, a signature feature of brain injury, is sometimes best treated, in part, at the physical site of the employer. So for several months, the vocational specialist helps the worker find ways to organize the day, reinforce memory and work with others. In this way, the patient's prospects for recovery are greatly improved.

Department of Defense embarks on more aggressive brain injury screening program
Rousmaniere discusses the prevalence of war-related TBI and some of the promising medical advances. He cites the recovery of reporter Bob Woodruff, perhaps one of the cases that we are all most familiar with due to the news coverage. After returning to his job as a reporter, Woodruff became an advocate for our soldiers in the field, developing a ReMIND, a foundation to provide resources and support to injured service members, veterans and their families.

In speaking of his own recovery, Woodruff praised the quality of the care and support that he received, but saw with dismay that such treatment and recovery resources were not always available to service members with similar injuries. He saw the military culture as often stigmatizing or impeding screenings, and treatment options being limited once a vet returned home. That's why the Department of Defense's recent policy announcement is such welcome news: head-injury evaluations will be mandatory for all troops who suffer possible concussions. Moving to an incident-based response is a significant change from prior protocol, which depended on service members to self-identify with a complaint. The weakness in this approach is that service members are highly mission-focused and can shrug off complaints that can later prove to be serious problems.

America's Heroes at Work is a U.S. Department of Labor project that addresses the employment challenges of returning service members living with Traumatic Brain Injury (TBI) and/or Post-Traumatic Stress Disorder (PTSD). The resources and links pages are particularly helpful - and a good resource for employers who are working with either vets or non-vets who are recovering from TBIs.

TBI resources
Brain Injury Association of America
Survivors' Voice
Traumatic Brain Injury Survival Guide
Brain Injury Resource Center

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February 1, 2010


My colleague Julie Ferguson raised some fascinating issues relating to the growing movement to approve marijuana as a medication. As is so often the case, the implications for workers comp diverge substantially from general health issues. A toke may be just what the doctor ordered for pain management, but in the context of the workplace, any such prescriptions are likely to preclude actually reporting to work.

Here are just a few reasons why the use of medical marijuana is incompatible with the workplace:
- I cannot think of any job suitable for a person who is experiencing a marijuana high (actuaries? Just kidding)
- You cannot operate a motor vehicle or any piece of equipment safely while under the infuence of marijuana
- Imagine the impact on co-workers when a fellow employee lights up a joint. ("Note from a doctor. Yeah, right! By the way, who is your doctor?")
- Smoking is prohibited by law in virtually all indoor workplaces. "Accommodating" a marijuana smoker by allowing him/her to light up outside of the building raises issues for co-workers and the general public, not to mention the police.

It will be very interesting to see how strongly state legislatures step in to protect medical marijuana users. As Julie pointed out, no state is currently requiring that employers offer "reasonable accommodation" in this situation; it is unlikely that any will do so. The day may come when marijuana makes the list of approved medications in the workers comp system, but prescriptions for weed are unlikely to be accompanied by a return-to-work release from the doctor.

Medical marijuana, along with alcoholic beverages and prescribed opiates, may be legal substances, but employees under their influence do not belong in the workplace. Employers should place the burden of proof squarely on the shoulders of the treating doctor, who must be able to certify in writing that the prescribed use of pot does not put the employee, co-workers and the public at risk for injury. Quite frankly, unless someone works from home, I don't see how this burden of proof can be met. When it comes to performing a job safely, any toke is a toke over the line.

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January 28, 2010


In our news roundup Wednesday, we cited a few items about medical marijuana, the most interesting to our purposes being the recent California court ruling about whether marijuana should be covered as a workers' comp medical benefit. In his posting on the topic, Roberto Ceniceros notes that there is a growing likelihood that medical marijuana will become a comp issue at some point, particularly since NJ just became the 14th state to allow medical marijuana use.

Now honestly, we hadn't given a great deal of thought to these laws previously, but if 14 states have enacted such legislation, it seems to be nearing critical mass so we went Googling to see what we could learn. Not only did we find a good resource that offers an overview of the 14 legal medical marijuana states, we also learned that there are an additional 12 states with pending legislation to legalize medical marijuana. The site is a great resource for tracking legislation, and it provides summaries with links to relevant state laws and to state sites. Did you ever think you'd see the day when states were posting marijuana FAQs?

Medical marijuana and employment issues
Clearly, medical marijuana is an issue that requires attention from any employers who have employees in affected states. And judging by the trend, it's something all employers may want to think about, starting now. Above and beyond complex issues such as workers comp, there are some immediate employment issues that come to mind: Can employers refuse to hire someone who is authorized by the state to use medical marijuana? Can an authorized medical marijuana user be fired for flunking a drug test? And if fired, can an employee file a discrimination suit under ADA? How do drug testing programs handle positive results for authorized users? And if marijuana is not considered an illicit substance due to medical authorization, how do zero tolerance programs need to adjust for this? How do employers authenticate those who are authorized to use marijuana versus those who are not authorized? And it's not just employers who have questions - authorized users of medical marijuana have employment questions too.

At, Tresa Baldas looks at many of these issues: Employers in a Haze Over Medical Marijuana Use. Citing Danielle Urban of the Denver office of Atlanta's Fisher & Phillips:

" ... under federal law, employers are not prohibited from taking adverse actions against someone who tests positive for marijuana. But Colorado permits medical marijuana, and another state law says it's illegal for an employer to fire someone for engaging in legal, off-duty behavior.

And then there's the Americans With Disabilities Act to consider. Under the ADA, an employee fired for using pot for health reasons could file a discrimination lawsuit.

"It's a gray area to know what you can do," Urban said. "But I think it's still risky to just fire someone for using it."

At least in Colorado, the caution seems well placed. According to Renee McGaw writing in the Denver Business Journal, the state has two conflicting laws: one that says that employers don't have to accommodate medical marijuana use in the workplace while another prohibits firing employees for engaging in legal activities during nonworking hours.

On the heels of New Jersey's recent law legalizing medical marijuana, Amy Komoroski Wiwi and Nicole P. Crifo of the law firm Lowenstein Sandler PC also examine some of these issues in the unintended Impact of New Jersey's New Medical Marijuana Law on the Workplace.

The authors note that "The Act states that a qualifying patient "shall not be subject to any civil or administrative penalty, or denied any right or privilege" related to the medical use of marijuana, but it also explicitly provides that employers are not required "to accommodate the medical use of marijuana in any workplace.'" This is similar verbiage to some other state laws. (Colorado: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Rhode Island: "...employers are not required to make accommodations for employees who use medical marijuana." Montana: "Nothing ... may be construed to require an employer to accommodate the medical use of marijuana in any workplace." )

As for the issue of drug testing, the authors suggest caution when medical marijuana is cited as a defense in a positive drug test result. First, there is the matter of whether the user is authorized or not; and if so, an employer must consider whether it could be subject to liability under laws prohibiting disability discrimination for taking any adverse action against an authorized and registered user.

It's still uncertain ground. Courts in California and Montana have upheld employers that terminated employees who failed company drug tests, but each state law is different and issues haven't been fully tested in the courts. In its FAQs, when asked "What should I tell my employer if I am subjected to a drug test?," the state of Montana responds: "The law is silent on this issue."

Wiwi and Crifo offer some good tips to employers:

  • Review the company's policies and other documents addressing drug use and testing (including drug testing consent forms) and update them as necessary to state your position on medical marijuana use by job applicants and employees.
  • Ensure that all Human Resources and drug testing personnel are aware of the company's policy regarding medical marijuana.
  • Adopt appropriate measures for maintaining the confidentiality of employees' and applicants' registry status.
  • Maintain uniformity in the enforcement of any drug testing policy and response to positive test results.

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January 8, 2010


Six years ago Robin Hove was working as a security guard. The Saskatchewan resident became entangled with a shoplifter. In the course of the struggle, an open cut in the shoplifter's mouth bled onto Hove: "The blood came pouring out of his mouth, into my eyes and into my mouth and I was just drowning in it." Ugh.

Hove, suffering from post-traumatic stress, has not worked since the incident. For five years, his doctor prescribed conventional anxiety medications. None worked. Then his doctor prescribed medical marijuana. Bingo. Hove began to enjoy life again. While still incapable of working, he was able to get out of the house and function somewhat normally. A few tokes and he was as good as new.

Unfortunately for Hove, the Saskatchewan Workers Compensation Board does not recognize medical marijuana as a legitimate medication; marijuana is not listed in the catalogue of approved pharmaceuticals. Hove has to pay for the pot himself. It's running a whopping $600 per month (and they used to refer to "nickel bags"!).

Hove is appealing the board's denial of his request that his marijuana expenses be reimbursed. My advice to Hove: don't hold your breath. The board is unlikely to budge.

Like, Heroic
Hove found himself in the news recently. He was enjoying a coffee at a local restaurant when a robber armed with a machete tried to rob a nearby gas station. Hove reacted instinctively and heroically, helping to subdue the man. He received a commendation from the mayor for his selfless actions.

Hove's heroism does raise a couple of questions: what is the relationship between his post-traumatic stress and his ability to intervene in a dangerous situation? Was he "stoned" (sorry about that) or unmedicated when he took action? And finally, if he is capable of heroic acts, why can't he go back to work?

If Hove's ability to act is directly related to his consumption of pot, he is probably not employable. No employer would or could tolerate an employee constantly functioning under the influence of marijuana. Thus in all likelihood, Hove will continue his spacy path as an individual with a disability. He will find comfort in his drug of choice, but it will take a third of his limited disability income to pay for the medication. There's a lot of anxiety in the situation, but relief is just a toke away.

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January 6, 2010


It's been some time since we've made a foray into one of our favorite topics: emerging health technology, particularly in the area of rehabilitative and assistive technologies. We've compiled a few stories that we found fascinating and promising. If you enjoy them and and would like to read more, we point you to the following excellent sources: Always: Medgadget and MassDevice. Sometimes: Wired and Gizmodo.

Throw out those crutches
Crutches are an awkward and uncomfortable so we are delighted to learn about the Freedom-Leg, an "off-loading prosthetic," which allows users greater mobility. The device allows a user to avoid putting any weight on the injured foot, ankle or knee, but keeps the strength in the upper muscles of the injured leg.

Bionic fingers
If you are advancing in years as I am, you will remember TV's popular Six-Million Dollar Man and The Bionic Woman. Yesterday's fantasy is today's reality, giving powerful new potential to amputees. Prodigits is a prostehetic device for partial-hand amputees who are missing one or more fingers. Bionic or self-contained fingers that are individually powered allow users to bend, touch, grasp, and point.

Gastric "condom" for obesity, diabetes treatment
A recurring topic here on the blog is the debilitating impact of comorbidities such as obesity and diabetes on the recovery process. Obesity is frequently also a contributing factor to a work-related injury. Recently, we've seen some controversial court decisions mandating that employers foot the bill for gastric by-pass surgery for workers who are recovering from work-related injuries.

A new temporary device, the EndoBarrier Gastric Bypass, holds promise for helping with weight loss. The device is implanted endoscopically via the mouth, creating a chamber in the stomach which limits the amount of food a patient can digest. A prior story showed the device had positive results in clinical trials.


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November 11, 2009


On this Veteran's Day, here's a salute to all the veterans and active military service members out there. In the shadow of the horrific events at Fort Hood, this day of commemoration takes on a particular poignancy.

Here at Workers Comp Insider, we have a tendency to view things through the lens of dis-ability and the restoration work-ability because that's the nature of what it is that we do. So we were particularly intrigued to read about new research that is offering hope to unlock some of the secrets of post traumatic stress disorder (PTSD) and traumatic brain injuries (TBI), two of the most frequent and debilitating types of injuries sustained in Afghanistan and Iraq.

Powerful new scanning techniques are allowing doctors to see how the brain changes with such injuries, and doctors are learning that there are many similarities in these injuries, including symptoms like memory and attention problems, anxiety, irritability, depression and insomnia. This leads researchers to believe that the two disorders share brain regions.

"A brain processing system that includes the amygdala -- the fear hot spot -- becomes overactive. Other regions important for attention and memory, regions that usually moderate our response to fear, are tamped down.

"The good news is this neural signal is not permanent. It can change with treatment," Hayes says.

Her lab performed MRI scans while patients either tried to suppress their negative memories, or followed PTSD therapy and changed how they thought about their trauma. That fear-processing region quickly cooled down when people followed the PTSD therapy.

It's work that has implications far beyond the military: About a quarter of a million Americans will develop PTSD at some point in their lives. Anyone can develop it after a terrifying experience, from a car accident or hurricane to rape or child abuse."

These physical signs that tests are revealing hold the potential to greatly enhance a physician's ability to accurately diagnose and treat PTSD - an illness that is often unrecognized and untreated. While there is heightened awareness of PTSD, it can be difficult to diagnose and there are limitations for establishing accurate prevalence rates.

Additional Resources on PTSD and TBI
National Center for PTSD - with resources for veterans, the general public, providers, and researchers
Veterans: where to get help for PTSD
Post-Traumatic Stress Disorder (PTSD) - from the National Institute of Mental Health
Post Traumatic Stress Disorder Gateway
Defense and Veterans Brain Injury Defense Center
Traumatic Brain Injury Information Page - from the National Institute of Neurological Disorders and Stroke (NINDS)
Traumatic Brain Injury - from the CDC

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October 14, 2009


You might not think that the H1N1 virus, commonly know as swine flu, has anything to do with the ADA. Well, you clearly have not been reading Nation's Restaurant News. Lisa Jennings writes a complex and cautionary tale for restaurant managers, warning them to back off from asking obviously sick employees whether they have the swine flu. Somehow, this advice does not sit well with me - or with anyone else who might sit down for a meal in a restaurant.

Attorneys with nothing else to do have raised the issue that swine flu may be a disability under the ADA. After all, we have all been warned of a potential pandemic and there have been a relatively small number of fatalities associated with the virus. But does that mean that every case of swine flu is a disability? Is the ADA's recent recognition of shorter term disabilities meant to include a week of sore throats, coughing and fever?

Jennings quotes Virginia attorney Jonathan Mook, who notes that the ADA sets limits for when and how employers may inquire about medical conditions. He concedes that swine flu may not technically be a disability, but "it could be perceived as disabling because of the myths about it. If an employer asks specifically about swine flu, for example, and later is perceived as not wanting to work near the employee, even after the worker is no longer contagious, there may be grounds for a discrimination complaint."

Are employers really supposed to worry about that?

Fortunately, the article recommends that employers focus on symptoms:

In communities where an outbreak occurs, it is a good idea to include in every preshift meeting questions about specific symptoms related to the flu. It's also OK for employers to ask whether employees have fevers, sore throats, coughs or intestinal ills, so long as they don't ask for a diagnosis [emphasis added].

In addition, attorneys say, employers are permitted to send employees home if they're showing symptoms of the flu and are allowed to ask them to stay home for three to seven days, as recommended by the CDC in Atlanta--or as long as necessary to complete treatment, such as antiviral medication.

So the attorneys say that it's ok to send people home for flu-like symptoms, as long as you don't suggest that you are doing so because you think they have swine flu.

A Note from the Doctor and FMLA
To complicate matters even further, a specific diagnosis of swine flu is unlikely, as most people with flu-like symptoms are instructed to stay home and employ the usual remedies. We are not to go to hospitals and clinics unless symptoms are unusually severe. The CDC does not want to overwhelm emergency rooms and local clinics with needless requests for documentation.

On the other hand, if there is a formal diagnosis of swine flu, the employee may be eligible for FMLA leave, as this particular flu would be considered a "serious medical condition" - as opposed to regular flu, which might also kill you but is not viewed as a part of a world-wide pandemic. Go figure.

I hope that a fear of (preposterous) litigation does not result in employers keeping sick people at work. No one with flu-like symptoms belongs in the workplace. I have never sued anyone, but if my scrambled eggs are delivered by a waitperson with a runny nose, flushed skin, an expectorant cough and a raspy voice, I won't eat a thing. And if there happens to be a lawyer in the next booth, I surely would be tempted to strike up a conversation.

Postscript: A note of thanks to my esteemed colleague Jennifer Christian, CEO of Webility, who somehow finds the time to read National Restaurant News.

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August 20, 2009


Earlier this week, my colleague Julie Ferguson blogged an intriguing case in Indiana, where Adam Childers, an obese pizza baker, suffered a back injury when he was hit by a swinging freezer door. He was unable to get better due to his obesity. As a result, the Indiana court ordered the employer to pay for weight reduction surgery, to be followed by back surgery, all the while providing temporary total disability benefits to Childers. A relatively large claim becomes a very large claim due to the prospect of sequential surgeries. This case raises some fascinating issues concerning the cost of getting better. Boy, does it ever!

There is no need to repeat the succinct summary of the case provided in Julie's blog. For those interested in the details, here is the actual opinion of the court.

This case raises two compelling issues: First, the degree to which employers become responsible for non-work related factors in recovery; and second, the looming specter of widespread discrimination against people whose pre-existing conditions make virtually any injury substantially more difficult to manage.

Taking People as They Are
Employers cannot set a high bar for "health and wellness" and then exclude everyone who falls below it. Any health standards must be grounded in business necessity. As we have seen in recent blogs, employers might be in a position to reject applicants who smoke (depending upon the state), but they generally cannot arbitrarily turn away people with co-morbidities that may impact recovery times: diabetes, heart conditions, asthma, etc.

In the Indiana case, at the time of the injury Childers weighed 340 pounds and smoked 30 cigarettes a day. In its opinion, the court did not consider him "disabled" as defined in the ADA: his weight did not "substantially impact" one or more major life activities. Thus, despite his weight, he did not fall into a protected class.

Once injured, however, Childers's weight became a major obstacle to his recovery. Indeed, any obese person suffering from back, hip, knee, leg or ankle injuries would find recovery extremely difficult, as their spine and limbs are routinely stressed by the sheer weight of the body. Under Indiana law, the pre-existing condition of obesity combines with the work-related injury to produce a single injury. With the pre-existing condition absorbed into the workers comp claim, the employer is responsible for any and all treatments required to bring the worker to maximum medical improvement.

There is a definite logic to the Indiana court's position. The problem is not in its protection of Childers, but in the implications for all Indiana employers as they are confronted with hiring decisions.

When in Doubt, Leave Them Out?
With the Childers's decision, employers in Indiana have been put on notice that at least one conspicuous part of the labor pool - obese people - bring the risk of substantially higher costs following injuries in the workplace. As employers make day to day hiring decisions, they may well have the image of higher costs of injuries associated with obesity in the back of their minds. Given two applicants, one obese, one within normal weight ranges, employers may be tempted to ignore other important hiring factors such as motivation and experience and reject the obese applicant.

Thus the unfortunate consequence of providing extensive benefits to Childers is that it may have the proverbial "chilling effect" on the job prospects for others with similar weight problems. The obese already suffer from the daily judgment of a thousand eyes: their weight problems are impossible to hide. Now they may have to overcome the additional burden of fearful Indiana employers, who exclude them from employment in the vague hope of keeping the costs of comp under control.

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August 18, 2009


Yesterday, my colleague blogged about employers that refuse to hire smokers and cited another employer who would like to extend that ban to obese applicants. Health-related matters and their associated costs are challenging for employers and we expect they will continue to be played out in the courts. In fact, yesterday, Roberto Ceniceros blogged about a surprise ruling by the Indiana Court of Appeals about weight loss surgery related to a workers comp claim ... or at least the ruling was a surprise to us. In Boston's Gourmet Pizza v. Adam Childers, the court determined that the employer must pay for weight-reduction surgery for Childers as a precursor to treating the work-related back injury. The employer must provide temporary total disability benefits while the employee prepares for, and recovers from, the weight-loss surgery. The subsequent treatment path for the back injury is unclear, various treatments have been under consideration but the employer's weight was deemed a barrier to any success.

In 2007, the then 25-year-old Adam Childers sustained a back injury after being struck in the back by a freezer door while serving as a cook for his employer. At the time, he weighed 340 pounds and smoked about a pack and a half of cigarettes a day. Because of his weight, his physician advised against any nuerosurgery, but Childers' back pain persisted and other treatments did not provide relief. Over the course of this treatment, his weight increased to 380 pounds. His physician suggested lap band or gastric bypass surgery to get his weight down, both to relieve his symptoms and to improve his suitability for potential surgical treatments, such as spinal fusion.

Understandably, the employer balked at footing the bill for weight loss surgery. While the employer assumed responsibility in providing treatment for Childer's work-related injury, they contested the idea that they should have any responsibility for providing secondary medical treatment for a preexisting condition. However, in Indiana, a preexisting condition is not a bar to benefits, a matter that the courts have taken up in several prior cases. Ceniceros sums up it ups this way: But the court agreed with a Worker's Compensation Board finding that the worker's pre-existing medical and health condition combined with the accident to create a single injury for which he is entitled to work comp benefits.

We've posted many times about the high-cost of obesity and diabetes in the workplace, and how comorbidities can add to the cost of workers comp injuries. We've also blogged about employers' increasingly aggressive efforts to target so-called lifestyle issues that impact health. Decisions like this might heighten employers' resolve to control obesity - but in that regard, they may find themselves between a rock and a hard place.

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August 17, 2009


Back in December of 2006 we blogged the story of Scott Rodrigues, a new hire of the Scotts lawn care company, who was fired after failing a drug test. No news here, perhaps, except that the drug in his system, nicotine is perfectly legal. Scott's is self-insured for health benefits, so they have a vested interest in making sure that employees follow basic wellness practices.

On his way to a pre-placement drug test, Mr. Rodrigues chewed on Nicorette gum. He was trying to kick the habit. Ironically, the Nicorette may have triggered the positive finding for nicotine. Rodrigues was hired provisionally and then abruptly terminated once the test results were released.

Rodrigues brought suit in federal court for violation of privacy and civil rights. Judge George O'Toole has ruled in favor of the company. The judge found no violation of privacy laws, as Rodrigues smoked while walking down the street and in a restaurant parking lot. His supervisor spotted a pack of cigarettes on the dashboard of his truck. Would the judge have ruled for Rodrigues if the employer had peeked through a window to see him smoking at home?

O'Toole also rejected the notion that the firing violated a 1974 federal law that protects employee rights to benefits. O'Toole ruled that Rodrigues was not yet a bona fide employee and was working on the condition that he pass the urinalysis.

Jim King, a spokesman for Scotts, said the smoking ban has never been used to fire an "existing" employee. It is used solely to screen out applicants. Since the ban went into effect in 2005, the percentage of smokers among the company's 7,000 employees has fallen to 7 percent from 28 percent.

[The Insider notes in passing that even as a "provisional" employee, Rodrigues was covered by workers comp from the moment he began working - indeed, while he was on his way to the drug testing lab.]

Whether employees can smoke or not depends upon the state they work in. A few states (e.g., Kentucky, Louisiana) explicitly protect smoker rights. Other states do not. It's interesting that Rodrigues pursued his case in federal court, probably because Massachusetts laws offered no protection to smokers.

Is Obesity Next?
We all know that smoking increases the risk of illness and the cost of medical coverage. The same goes for obesity. So the next front in the battle to control the business side of medical costs may well be the bathroom scale. The New York Times magazine profiles the Cleveland Clinic, which has been upheld as a model for medical cost control. Two years ago, they stopped hiring smokers. Delos M. Cosgrove, the heart surgeon who is the clinic's chief executive, would like to expand the hiring ban to include applicants who are obese.

"Why is it unfair? Has anyone ever shown the law of conservation of matter doesn't apply?" Cosgrove states that people's weight is a reflection of how much they eat and how active they are. The country has grown fat because it's consuming more calories and burning fewer. Our national weight problem brings huge costs, both medical and economic. Yet our anti-obesity efforts have none of the urgency of our antismoking efforts. "We should declare obesity a disease and say we're going to help you get over it."

Should the Cleveland Clinic - or any other employer- decline to hire obese people, it will be interesting to track the results. Where obesity can be traced back to genetic or chemical issues - where it qualifies as a disability under the Americans with Disabilities Act- employers would be guilty of discrimination. If no such causes can be specified, employers may be on solid ground. (The unaddressed issue in these hiring practices, of course, is the loss of a vast pool of talented and often essential workers.)

A recent article in Health Affairs estimated the annual cost of obesity to be $147 billion and growing. That translates into $1,250 per household, mostly in taxes and insurance premiums.

The Fat Tax
Cosgrove is interested in an idea that some economists favor: charging higher health-insurance premiums to anyone with a certain body-mass index. Call it the Fat Tax. Another alternative might be taxing the calorie-rich foods that lead to obesity: just imagine paying a little surcharge for your large order of fries, your jumbo soda and your two-for-one pizza. That would be interesting, indeed! Just as smokers pay a tax-driven premium for their cigarettes, eaters would be taxed for their food addictions.

This is simply not going to happen. To be sure, fundamental wellness is the cornerstone of any plan to contain health care costs. But when the public good collides with the rights of freedom and privacy, individual rights will win out. Policy wonks may not like it, but citizens can eat whatever they damn well please. Lighting up after that supersized meal? Well, that's one area where the public good pretty much trumps the private right.

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August 11, 2009


Last week, 61-year old rock musician Steven Tyler fell off the stage and suffered a broken shoulder, along with stitches in his head and back. He has had to cancel upcoming shows, though it's likely he'll be on a self-imposed return-to-work plan in the near future. Many musicians are like athletes in their devotion to their profession and their determination to return to work as soon as feasible. (Not to mention the economic impact of canceling shows, which although there is event cancellation insurance for that type of thing, still must take a bite from a musician's earnings.)

Falling off stages isn't all that unusual a work-related occurrence for musicians and other performers. Celebrity spills are a favorite fare on the Internet, with video clips drawing millions of viewers and little sympathy. Fashion model falls seem to be a particular favorite for the YouTubers, and frequently available given that a job-related hazard for models is teetering around on ridiculous footwear. But despite the vicarious pleasure that many viewers take in seeing pop culture icons coming down to earth, slips and falls are nothing to take lightly - they are one of the most common injuries in many professions, resulting in disabling injuries. They are also a leading source of fatalities in the construction industry.

Injuries beyond the falls
We went looking for more information about musician injuries and came upon Looking at Musicians' Health Through the Ages, an examination of performance-related musculoskeletal disorders (PRMDs) from the scholarly Medical Problems of Performing Artists. This is a publication that bills itself as "...the first clinical medical journal devoted to the etiology, diagnosis, and treatment of medical and psychological disorders related to the performing arts. Original peer-reviewed research papers cover topics including neurologic disorders, musculoskeletal conditions, voice and hearing disorders, anxieties, stress, substance abuse, disorders of aging, and other health issues related to actors, dancers, singers, musicians, and other performers. Alas, the interesting articles entitled "Bagpiper's Hernia" and "The Psychological Profile of a Rock Band: Using Intellectual and Personality Measures with Musicians" are available only to subscribers.

For some other sites related to musician injuries, see Musician's Health, an educational website devoted to common musician's injuries and information on preventing those injuries. Instrumental injuries often include similar repetitive motion injuries to those that are commonly associated with computer use. Musicians' Injuries describes various types of performance-related injuries and offers advice on how to avoid them.

Hearing-related injuries are common for musicians
Hearing loss is another risk for musicians and conductors - and not just for rock musicians, as might be commonly assumed. Doug Owens, a USM music education professor and trumpet player who has experienced hearing loss himself, has been studying the issue of hearing loss and musicians. For his doctoral dissertation, he had ten high school band directors wear noise monitors for two days on the job.

"Owens found they were exposed to mean average noise levels of 85 to 93 decibels, similar to a vacuum cleaner or a leaf blower. Noise exposures peaked at 101 to 115 decibels, similar to a jackhammer or a crowd at a basketball game.

Comparing eight-hour exposure rates, Owen found noise levels for all of the band directors were more than three times higher than recommended by the National Institute of Occupational Safety and Health."

In learning more about this topic, we also discovered H.E.A.R., a site with an acronym that stands for Hearing Education and Awareness for Rockers. The site describes itself as "a non-profit grassroots hearing health organization of hearing professionals, audiologists, ear doctors, educators, music industry professionals, and musicians dedicated to the prevention of hearing loss and tinnitus for musicians, music students, recording engineers, music industry professionals and music fans, especially young people." The site offers the latest in hearing-related research, news and advice, along with a quick and easy test to assess whether concerts are harming your hearing.

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June 9, 2009


If health care reform is the proverbial 800 pound gorilla, then the medical portion of workers comp is a 15 pound Maine Coon cat: it might big for a cat, but compared to a giant gorilla, it is barely noticeable. Nonetheless, this cat is blessed with a very strong notion of what it needs. As the nation moves closer to universal health care, the implications for workers comp are both profound and troubling. Comp medical services comprise a mere 2% of total medical expenditures, so policy makers in Washington will be inclined to ignore its special needs. That could create profound problems for the employers, insurers, and state administrators who deal with comp issues.

There are a number of key reasons why reform of health care may undermine the ability of states to deliver a quality workers comp system. (We previously blogged these issues here, here and here.) In order to provide some focus for the pending debates, here is a brief summary of how comp fits into the overall medical universe:

The focus is similar but not identical
The general health care system focuses on the prevention of what can be prevented and the treatment of that which can be treated, up to limits of coveraged defined in specific health plans. The overall goal is to preserve the life and health of individuals and families. This system provides treatment from conception up to the moment of death.
The comp system has a much narrower focus: comp provides treatment only to workers who are in the course and scope of employment. Comp treats work-related injury and illness, with the specific goal of returning injured/ill workers to productive employment.

Eligibility is Radically Different
The general health system provides defined services to individuals and families. Virtually any illness or injury is covered, including many forms of mental illness.
Comp covers only what occurs during work and is proven to be work-related, with an almost phobic disregard for mental impairments.

The cost structures are very different
In general healthcare, the premiums for coverage are paid by individuals and their employers. Depending upon the plan, individuals and their family members assume at least some of the cost of treatment, through premiums, co-pays and deductibles. The trend has been to shift more and more of the costs onto the consumer (which, in turn, becomes an incentive to reduce utilization).
In comp, employees never pay comp premiums and are never charged co-pays or deductibles. Injured workers are covered from the first dollar. Thus, only the employer, self-insured or who purchases mandatory coverage, and the insurer have the incentive to control costs. No such incentive exists for injured workers.

There are Perverse Incentives in the Comp System
Under comp, injured workers are paid not to work (indemnity). They may not like their jobs. They may malinger, seeking treatment more often than medically necessary (no co-pays to discourage them), thus prolonging disability in order to avoid work. The incentives for returning injured/ill employees to work lie primarily with the employer (who pays the premiums or is self insured) and the carrier (who pays the bills, which may exceed the premiums collected).

For employees with minimal job skills and perhaps no job to return to, the incentive for remaining on comp as long as possible is powerful.

Comp is a State-Based Program
The new mandates for health insurance coverage will come from the federal government. Comp, by contrast, is strictly a state by state program. The new federal mandates (eg., employee choice of doctor) may well conflict with long-established systems.

Policy makers are trying to create a new paradigm for medical coverage in the twenty first century: truly, a daunting task. Ultimately, the new direction for health care will be driven by cost and coverage. Whether the providers are public, private or both, health care cost controls and rationing will lurk in the shadows: will there be a cap on total expenditures for any given individual and any given conditions? Will there be limits on end-of-life services? How much of the costs will be shifted to consumers? What incentives will be created to reduce utilization?

In stark contrast, comp is and will remain an early 20th century system, based upon an industrial world that no longer exists. It already provides virtually universal coverage for people who work. The costs belong exclusively to employers and carriers; there is no cost-shifting onto injured workers and there are no incentives for these workers to limit expenditures. The over-arching goals are returning injured workers to productive employment and providing lifetime benefits for the totally disabled.

So it all comes down to this: When and if the 800 pound gorilla that is universal health care actually sits down, will it be beside - or on top of - the comp coon cat? Will the federal mandates take into account the unique and idiosyncratic needs of the comp model, or will the new mandates inadvertently crush the system, state by state by state?

There are often unintended consequences when well-intentioned humans try to solve gargantuan problems. Let's hope that the comp system does not fall victim to this fundamental law of human endeavor.

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April 29, 2009


To follow up on my colleague Jon's Monday post on Swine Flu Meets Workers Comp, we've compiled a list of swine flu news and planning resources for employers.

How Employers Should Respond to the Swine Flu Outbreak - the Workplace Safety Compliance Practice Group of the employment law firm Jackson Lewis suggests 8 steps for employers to take in responding to employee concerns. - Workplace Planning - HHS and the Centers for Disease Control and Prevention have developed guidelines, including checklists, to assist businesses, industries, and other employers in planning for a pandemic outbreak as well as for other comparable catastrophes.

Guidance on Preparing Workplaces for an Influenza Pandemic - a new guide for employers from OSHA

CDC Swine Influenza - news, updates, and resources from the Centers for Disease Control and Prevention

WHO Swine Influenza - global updates and news from the World Health Organization.

MedlinePlus: Swine Flu - excellent page with news, articles and links to a variety of resources.

Taking Care of Yourself: What to Do if You Get Sick with Flu - from the CDC
Taking Care of a Sick Person in Your Home - from the CDC

Global disease alert map from HealthMap
H1N1 Swine Flu

News feeds
CDC Emergency Twitter feed
What's new on the CDC Swine Flu page
CNN Health News
Y! Health Cold & Flu News

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April 27, 2009


It's only Monday morning and many of us are just refocusing after a weekend of gardening, football drafts, NBA playoffs, baseball (Ellsbury steals home!), so we are probably not quite ready to think about the unthinkable: a potential swine flu pandemic, originating in Mexico and already active in several major American cities.

Here is the official government announcement (which appears to circumvent potential panic by burying the bad news in gov-speak):

As a consequence of confirmed cases of Swine Influenza A (swH1N1) in California, Texas, Kansas, and New York, on this date and after consultation with public health officials as necessary, I, Charles E. Johnson, Acting Secretary of the U.S. Department of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, 42 U.S.C. § 247d, do hereby determine that a public health emergency exists nationwide involving Swine Influenza A that affects or has significant potential to affect national security.
[Where, oh where, do they learn to write like that?]

As is our custom, we focus on the implications for workers comp. Back in 2005 we blogged the ramifications of smallpox exposure from the comp perspective. The smallpox exposure - a result of the terrorism scare - proved to be a false alarm. The swine flu, unfortunately, appears to be all too real.

The Comp Dimension
It's not difficult to isolate the kinds of activities that might expose an individual to the Swine flu. Many of these exposures are prevalent in the world of work:
: travel
: frequenting congested areas (travel terminals, public transportation, classrooms, etc.)
: touching anything handled by strangers
: eating out
: meeting business colleagues from around the country and around the world

In order for the flu to be a compensable event under comp, certain requirements must be met:
: the individual must be "in the course and scope of employment" when exposed to the virus
: the exposure must arise out of work (as opposed to being a totally random event)
: work itself must put the individual in harm's way

An individual commuting to work via public transportation might have high risk exposure, but flu caught on a subway or bus would not normally be covered by comp. But if the exposure stems from company-provided transportation (for example, a van), the subsequent illness might well be compensable.

If one worker in a closed environment brings the flu to work, co-workers who succomb to the virus can make a good case that the illness is work related. The initiator, however, would not have a compensable claim, unless he/she could demonstrate a definitive work-related exposure.

Health workers are on the front lines of any pandemic. Even though it might be impossible to prove that they actually caught the virus at work, any and all cases of Swine Flu are likely be compensable.

If you fly on an airplane on company business and the person next to you is sneezing and coughing, your exposure is work-related and the subsequent illness is likely to be compensable. If you are flying to visit Aunt Martha, you are on your own.

The comp system is not well equipt to deal with illness. It's usually very difficult, if not impossible, to determine exactly when an individual actually caught the virus. With state laws varying in their assumptions of compensability, with a multitude of insurance carriers and third party administrators making compensability determinations, we will see a crazy quilt of decisions regarding the compensability of swine flu.

There is a lot of money at stake in these compensability decisions. For mild cases, the issue is moot. It's the more severe cases - prolonged illness and even death - that raise the greatest concerns. While thus far the fatalities have been limited to residents of Mexico, if the feared pandemic occurs, there will be prolonged illness and even fatalities in the states. Then the crucial decisions regarding compensability will directly impact the future cost of workers comp insurance.

What is to be Done?
So how should employers handle flu exposures? For a start, educate employees on prevention. The above government website has some helpful hints - and they are actually written in plain English; unfortunately, they are only written in English.

Any employee showing up at work with flu symptoms should be sent home immediately. And if any employee appears to come down with the flu while "in the course and scope" of employment, employers should report the illness to the insurer/TPA, so that a proper compensability determination can be made. As in all things comp, it is usually a mistake for the employer to make assumptions about compensability. When in doubt, report the illness and let the experts determine what to do.

As the world lurches from one crisis (economic) to another (pandemic), it is all too clear that we have fulfilled the Chinese (?) curse: "May you live in interesting times." We do, indeed.

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March 10, 2009


Historically, the tendency has been for employers to segment potential employee health and disability issues into two discrete silos: occupational safety, prevention, and other issues related to workers comp are most often managed by risk managers and safety staff. General employee health issues are usually tucked under an organization's benefits and human resources department as part of group health - or under a wellness program, if one exists. But increasingly, data shows that the two are often inextricably linked and it makes good sense to address health issues with a more holistic approach. This seems an area rife for attention given the recent multi-year trend of decreased claim frequency and increased claim severity in workers comp. It's also a critical issue given the aging work force. Employers need to recognize the effect that co-morbid conditions such as obesity, diabetes, and high blood pressure can have on disability recovery and medical costs - and to get more upfront about preventing and addressing these health conditions.

Roberto Cencineros, writing for Business Insurance notes that NCCI has released preliminary findings on an upcoming report on obesity which shows that workers comp medical claims open for one year cost three times as much when the injured employee is obese, and claims that are open for five years are five times more costly when involving an obese claimant. For smaller claims, the study will show that the cost differential can be even greater.

This should not be eye-opening news - there have been numerous other studies linking obesity to high medical costs and longer duration of lost time. One 2007 study documenting the cost link between obesity and workers comp by researchers at Duke University found that obese workers filed twice the number of workers' compensation claims, had seven times higher medical costs from those claims and lost 13 times more days of work from work injury or work illness than non-obese workers.

Ceniceros notes that the workers comp industry has focused on treating specific injured body parts while overlooking so-called co-morbidity factors, such as obesity, that increase claims duration and costs. Comorbidities not only can lengthen the recovery period, they may also be a precipitating factor in claims. According to the article, "...some employers even have begun collecting obesity data to help fend off future claims that may not be work-related, particularly those involving police and firefighters who must take pre-employment physicals and whose heart attacks and other ailments often are presumed to be work-related, said Glenn Backus, senior vice president for Alternative Service Concepts L.L.C., a Reno, Nev.- based claims administrator."

For more on the dawning awareness that workers comp programs should not be divorced from overall employee health issues, see the Bill Thorness article in the 2008 NCCI Issues Report, Wellness Comp, (PDF) where he addresses the issue of whether there is a place for health promotion programs in workers comp. "The bottom line is that workers compensation specialists should at least be at the table for discussions on how to make the workforce healthier. Health and productivity shifts the basic value proposition, according to AON, into the question of "How can [healthcare] plans be modified to incent employees to adopt healthy behaviors, moderate cost increases, and minimize absenteeism and presenteeism?"

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November 18, 2008


There is a fascinating article in today's Wall Street Journal (subscription required) that raises interesting implications for workers compensation. Melinda Beck writes that warning labels on medications can actually stimulate symptoms, especially when stress is involved. In other words, when an injured employee reads a warning label - "this medicine may cause vomiting, headaches, drowsiness, etc" - he or she is more likely to have these symptoms. The label itself creates a self-fulfilling expectation. Doctors call this the "nocebo" effect, a phenomenon parallel to placebos.

"People's expectations play a very important role in how they react to medications," says Richard Kradin, a physician and psychoanalyst at MGH in Boston. He notes that 25% of patients who get completely inert placebos in clinical trials complain of the listed side effects - usually headaches, drowsiness and dizziness.

The implications for workers comp are profound: experiments have shown that telling patients they may feel pain triggers the release of neuropeptide cholecystokinin (CKK), which heightens pain sensations. Because work-related injury almost always involves pain, the expectation of pain can make the pain felt by the patient even worse.

This phenomenon may help explain the inordinate dependence upon strong narcotics in the workers comp system (a frequent Insider focus). We all dread pain. Injured workers have a heightened awareness of pain relating to their injuries. They bring this awareness to the examination table. In their efforts to alleviate (real and imagined) pain, doctors tend to reach for stronger-than-necessary medications in order to provide the relief their patients demand.

Stress is a key factor in the nocebo effect. Stress drives the anticipation of pain and the over-reaction to medication warnings. It is present in virtually all workers comp situations, so we can project that the nocebo effect is a fairly constant factor in the treatment of work-related injuries.

Calming the Waters
The article points out the importance of good communication between doctors and patients. Doctors need to focus not just on information ("this medicine might really make you sick") but on the need to maintain contact: "If you have any problems or concerns, don't hesitate to call me." Reassurance from a doctor can literally reduce the amount of pain and stress experienced by the patient.

The nocebo effect may be indicative of the need to shift the focus of western medicine beyond symptom and treatment to encompass the whole being of the patient, with a particular focus on stress reduction. If injured workers received some help in eastern stress reduction techniques (e.g., meditation), their craving for stronger medications might subside. They would also recover faster. (Will insurance carriers pay for stress reduction interventions? Of course not!)

Daniel Moerman, a professor of anthropology at the University of Michigan says that "physician communication with patients is the closest thing to magic. It gets communicated in incredibly subtle ways - a flash in the eye, a smile, a spring in the step." Doctors, in other words, are shamans. Their ability to heal is not limited to the medications and treatments they prescribe. They can heal just by conveying a strong belief in their ability to heal.

APOLITICAL FOOTNOTE: Let's take the nocebo concept one step further. The election of Barrack Obama as president may have as much to do with his calm presence as his politics. He has a reasurring coolness in a time of transcendent stress. His body language communicates a confidence in his ability to solve problems. His Marcus Welby-esque manner conveys the notion that our imploding economy can indeed be fixed and our wounded world can eventually be healed.

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October 6, 2008


We have been following the market trajectory of Actiq, the lollypop for pain manufactured by Cephalon. Actiq contains fentanyl, a highly addictive substance about 80 times more potent than morphine. It provides relief within 15 minutes. The drug, intended for breakthrough cancer pain, costs about $2,400 for a month's supply.

Cephalon bought the small company that developed the drug in 2000; annual sales of Actiq prior to the purchase were just $15 million - a limited market share dictated by the narrow target audience. By 2005 Cephalon had pushed sales to $500 million. That's a lot of lollypops and, you might think, a lot help for cancer patients. Not so. Fewer than 20 percent of the patients receiving the drug have cancer. Actiq's meteoric rise was fueled by off label prescriptions, most often involving doctors treating transient pain. (As many as 90 percent of prescriptions were off label.)

Back in 2006 John Carreyou wrote in the Wall Street Journal (subscription required) that Cephalon sales reps fanned out to visit all kinds of doctors, few of whom specialized in cancer patients. Doctors reported hundreds of visits from sales reps, who gave the doctors coupons for free trial doses. Nothing like freebies to stimulate sales.

Cephalon is supposed to self-monitor the off label use of its drugs. When they receive a report of a doctor prescribing the drug for non-cancer purposes, the company is supposed to send a (strongly worded?) letter to that doctor reminding him or her that Actiq is only for cancer pain. The company sent out more than 3,300 such letters. I would love to read one: a pharma company making the case against its own product...We can assume that the letters were rarely read and even more rarely effective.

Cancer and Comp?
Through aggressive marketing, Actiq worked its way into the workers comp system (where cancer is is almost never compensable). Lollypops for pain became a major player in comp pharma: NCCI reports that by 2006 Actiq ranked number 11 in frequency of prescription and number 4 in total cost. These are astounding numbers, given that virtually every prescription was off-label.

Cephalon describes itself as "a global biopharmaceutical company driven to expand the boundaries of science to improve human health." It appears they confused expanding the boundaries of science with those of sales. The company states that they are "Driven by why." Actually, they are driven by "why not?" Why not expand market share ten fold? Why not put this powerful drug in the hands of people with transient pain?

Well, here's one reason why not: Cephalon recently agreed to pay a whopping $437 million to settle a bunch of federal and state claims. Our colleague Joe Paduda reports that they are also going to reveal the names of doctors they have paid to promote the drug. Insurers and PBMs take note: The list will be a compelling read.

So Long, Sucker!
Lollypops date from about 1784, but initially referred to soft, rather than hard candy. The term may have derived from the term "lolly" (tongue) and "pop" (slap). The first references to the lollypop in its modern context date to the 1920s. This latest incarnation of a "tongue slap" is a long way from a little sugar high. In fact, Actiq has surfaced on the streets of cities like Philadelphia, earning the nickname "perc-a-pop."

Oh well, look on the bright side. It's relatively hygienic: you can get stoned without sharing a needle and nobody wants to share a lollypop. Yuck!

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August 28, 2008


Yesterday, at Managed Care Matters, our good friend Joe Paduda published an excellent "how-to primer" for starting a workers' compensation medical network. Essentially, Joe's advice for would-be network creators is:

  • Bring the right physicians into the network - board-certified occupational health specialists, for example, as well as primary care and specialist physicians who understand workers' compensation;
  • Exclude physicians who don't know anything about the subject;
  • Pay the physicians a reasonable rate; and,
  • Support the network physicians by sending them patients.
If the network is formed in that way it should be of gold standard caliber. But that's easier said than done.

We're all familiar with the super-large networks that include anyone with a medical degree - as long as "anyone" agrees to see network patients for a discounted fee, which the network can then tout as "savings" for employers regardless of the quality of care. Most of these networks and the doctors in them came from the group health arena where modified duty, transitional duty, early return to work, the buzzwords of workers' compensation professionals, are foreign concepts. And why should that be surprising? After all, workers' compensation is only one, tiny room in the American health care house that Jack built.

What workers' compensation professionals sometimes forget is that most doctors, whether in or out of these networks, went to medical school because they wanted to devote their lives to healing the sick, not to becoming some company's external medical personnel director. Many, perhaps most, physicians in networks that have physician directories the size of New York City's phone book understand "injuries," but not workers' compensation, and that is not their fault. It is ours. We have not educated them sufficiently regarding workers' compensation, nor have we cohesively partnered with them to help injured workers transition at the right pace back to full duty, which, in my 25-year Lynch Ryan experience, is where injured workers really want to be.

Consider this. Most doctors have small practices that turn them into small business owners. I've never met one who liked that, the business end of medicine. Most are not technologically facile, and workers' compensation injuries comprise a minor share of their "business." Their responsibility focuses totally on their patients and what's wrong with them. They don't see a real need to be overly interested in the workplace; in fact, they most often don't even know what or where that is. On the assembly line that has become American health care, where insurers force physicians to cycle through patients in fifteen minute intervals, who has time to probe deeply about the workplace and what goes on there? When some claims adjuster or nurse case manager wants to pin them down about physical restrictions or a date when their patient can return to work, they err on the side of humongous caution in order, in their minds, to "do no harm." This leaves workers' compensation professionals and employers befuddled, scratching their heads and wondering what is wrong with the doctor. They think, "Why can't the doctor see what's really going on here?" They don't understand the doctors and the doctors don't understand them.

That's the scenario in which workers' compensation professionals very often find themselves. At Lynch Ryan, the only way we have ever found to deal with it successfully is one doctor at a time, sitting face to face and finding common ground. Occupational health specialist or not, an educated physician is a powerful weapon for good in the little world of workers' compensation.

In my next post I'll describe the step-by-step process my colleagues and I went through to build the first workers' compensation medical network in Massachusetts once upon a time. Here's a teaser: It was a thing of beauty, profoundly successful for everyone involved, and would not be legal today.

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June 23, 2008


Search behemoth Google is making its initial foray into the electronic medical records (EMR) business with the recent launch of Google Health. (Also see the FAQs). This service goes toe-to-toe with Microsoft's Health Vault in the race to become the web's dominant player. Some large health plans such as Kaiser Permananete have been rolling out EMR programs to members. And a single medical record digital system that was implemented by the military a year ago is improving care and eliciting favorable reviews from patients.

A single, portable, user-controlled medical record that is available online offers many potential benefits. People would have medical information such as diagnoses, lab reports, and prescriptions downloadable from providers in a single record that would be accessible anytime and anywhere. Single records will create efficiencies and eliminate duplications. Plus, a host of other user-controlled benefits would follow, such as medication management that would screen for potentially harmful interactions, an alert system for scheduling tests or screenings, and even device connections that would allow electronic readings of such things as blood pressure and sugar monitors. It would be much easier for consumers to manage their health care, particularly for complex conditions.

But there are impediments, a primary one being physician adoption. Fewer than one out of every five doctors are using computerized patient records, according to a recent report in the The New England Journal of Medicine (see NYT: Most Doctors Aren’t Using Electronic Health Records.) The study reports that the physicians who are using electronic records report many advantages: 82 percent said they improved the quality of clinical decisions, 86 percent said they helped in avoiding medication errors and 85 percent said they improved the delivery of preventative care. For those who haven't moved to computerized records, the initial cost and disatisfaction with available products were cited as barriers.

Among consumers, privacy is front and center as a barrier to adoption. Scare stories abound. Consumers fear medical record theft and fraud, data mining by insurers and providers, and leaks of sensitive medical data to inappropriate parties such as employers. Of course, such security breaches can happen offline, too, but the ability to search data adds an additional layer of concern. Consumers want legal protections, including the ability to control who sees what. Services like Google and HealthVault have plans to keep controls with the consumer, but the public may be skeptical given the many security breaches that have occurred with identity fraud. Problems or not, the trend is clear so keep alert for developments on this front. A new Medicare pilot program by Health and Human Services aims to offer physicians incentives that will lower the cost barrier and hasten adoption rates.

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May 28, 2008


The Group Insurance Commission (GIC) in Massachusetts came up with a nifty idea: let's grade physicians based upon efficiency and competence; we'll reward those with high marks and penalize those who are (relative) failures. (The GIC administers health plans for public sector employees.) The GIC worked with the MA Medical Society (MMS) and a number of insurance carriers to come up with a reasonable methodology and metrics for grading doctors. After four years of planning, the GIC rolled out the program. Unfortunately, the MMS rolled out the lawyers: they are suing GIC and a number of health plans for defamation, interference, breach of contract, bad faith and violation of due process. Other than that, Mrs. Lincoln, what did you think of the play?

The suit claims doctors have been capriciously ranked into tiers, from 1 through 3, based upon a faulty analysis of billings. The tiers assigned to a given doctor result in progressively higher co-payments for their patients. For example, the Tufts Health plan has established the following co-pays for doctor visits:
Tier 1 doctor = $15 co-pay
Tier 2 doctor = $25 co-pay
Tier 3 doctor = $35 co-pay

The MMS claims, first, that the tiering system is based upon faulty data. For example, one doctor who specializes in treating severe cases of multiple sclerosis has an inflated "cost per patient" due to her inter-disciplinary approach. She has a tier 3 ranking. But this low score does not take into account the severity of her patients's conditions or her success in treating them. In another example, one doctor simply examined medical records and provided an interpretation: he was held accountable for the ultimate treatment provided to patients he never actually saw.

With low rankings based upon incomplete and often inaccurate data, the MMS concluded that good doctors have been defamed.

In addition, MMS claims that patients have been defrauded, by being directed toward certain doctors for no particular reason. They pay less for tier 1 visits, even though they may not be getting the best available services; conversely, they have to pay substantially more for tier 3 visits, even though the quality may well exceed that of tier 1 doctors.

Dr. Bruce S. Auerbach, president of the MMS, said efforts to improve the tiering program have failed.

"There is a right way to do this, and a wrong way - and the Clinical Performance Improvement initiative is definitely not the right way."

"We have worked with the GIC for four years to improve its program, and the agency has made changes in some limited areas. However, the GIC has refused to correct the CPI's most glaring problem, which is its ranking of individual physicians using inaccurate, unreliable, and invalid tools and data."

Not Close Enough
We all know that there are physicians whose services are mediocre and at times, dangerous. But the problem is in the data: how do you determine the quality of services? How do you distinguish between prudent and outrageous treatment? Data is data, but behind the numbers are stories of lives saved and lives ruined. Number crunching computers cannot tell the difference.

Unless the parties settle prior to trial, the discovery process will expose GIC's methodology for grading doctors as clearly as an MRI. Based upon the MMA's lawsuit, the GIC's metrics appear to be fairly crude. The good news is that a number of mediocre doctors have been exposed. Unfortunately, the broad net cast by the tiering system has tainted the reputations of some very competent and compassionate physicians. In this particular endeavor, "reasonably close" assessments are not sufficient. The margin of error - where the reputation of a doctor is at stake - is very small indeed.

Medicine is both a science and an art. With the livelihoods of medical practitioners at risk, any methodologies for evaluating the quality and effectiveness of services must be precise and accurate to the nth degree. If your methodology cannot distinguish between incompetence and art, if it cannot place virtually every outstanding physician in the top tier, then the metrics are pretty worthless. At first glance, GIC's admirable effort to triage the docs fails to pass muster. In all likelihood, the pending clash in court will send all the parties back to the proverbial drawing board.

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May 16, 2008


Norma Perez is a psychologist who leads the post-traumatic stress disorder (PTSD) program at a medical facility for veterans in Temple, Texas. As we read in the Washington Post, she is pretty busy with claims. Given that veterans with a PTSD diagnosis are eligible for up to $2,527 a month in disability benefits, she came up with a great way to reduce caseloads and save money: stop making the diagnosis.

In an email to mental health specialists and social workers at the facility, she recommended that they consider using a diagnosis of "Adjustment Disorder" (which does not involve a disability payment). She added that they "really don't have time to do the extensive testing that should be done to determine PTSD." An interesting concept, given that Perez was in charge of a PTSD unit.

Unfortunately for Perez, the email was leaked to veteran advocacy groups and all hell broke loose. John Soltz, chairman of and an Iraq war veteran stated that "many veterans believe that the government just doesn't want to pay out the disability that comes along with a PTSD diagnosis, and this revelation will not allay their concerns."

Melanie Slaon, executive director of Citizens for Responsibility and Ethics in Washington (an oxymoron, perhaps), was more blunt: "It is outrageous that the VA is calling on its employees to deliberately misdiagnose returning veterans in an effort to cut costs. Those who have risked their lives serving our country deserve far better."

Stressed Out Norma
The VA has tossed Perez under the bus. Veteran Affairs Secretary James Peake issued a statement calling Perez's email "inappropriate" and incompatible with VA policy. The Perez doctrine "has been repudiated at the highest level of our health care organization." Peake went on to state that Perez has been "counseled" and is "extremely apologetic." She remains in her job.

Let's face it. Perez has been under a lot of stress lately. She could probably find a shrink to put her out of work for a few weeks, but she should not count on workers comp to pick up the tab. Stress claims are rarely compensable. Norma's stress is both work-related and self-induced. When it comes to benefit entitlements, she is on her own.

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April 22, 2008


In conventional medicine, people are generally free to choose their care, up to the limits of their coverage. They can opt for certain procedures or decide to forego them. For the most part, adults are independent players in the medical system, acting in accord with their own wishes. In the final analysis, our health is an individual concern, factoring in, of course, the concerns of family members and "generally accepted" medical practices.

Workers comp is somewhat different. In addition to the preferences of the injured worker, his/her family and the treating physician, you have to take into account the interests of the employer, who is paying the bills (no co-pays or deductibles for the patient). Unhealthy behaviors or refusing treatment might be acceptable in conventional health care, but they raise compelling issues in workers comp. The case can and should be made that under comp, the injured worker has an obligation to get better.

Let's look at two cases: one involves an invasive diagnostic procedure, the other medically imprudent behavior.

Uncomfortable Diagnostics
Sewell Chan writes in the New York Times about Brian Persaud, a 33 year old construction worker. He was working at a Brooklyn construction project when he sustained a head injury. He was driven to New York Presbyterian hospital, where he received eight stitches for a head wound. As part of standard medical procedure, doctors wanted to perform a rectal exam, in order to rule out spinal injury. Persaud objected, a physical struggle ensued. While it's not clear whether the invasive procedure even took place, Persaud filed a civil suit, claiming that the exam comprised assault and battery at the hands of hospital workers.

Persaud’s lawyers turned to two experts, a neurologist-psychiatrist and a forensic psychologist, who testified that Persaud suffered from anxiety, depression and post-traumatic stress disorder as a result of the episode. The hospital put forward a doctor who testified that a rectal examination is an important part of advanced life support for trauma patients.

The case took eleven days to present, but the jury rejected Persaud's claim in less than an hour. In this case, the invasive procedure was deemed necessary to rule out more serious injuries. In general, patients may decline medical treatment if they are informed of the consequences of doing so and capable of making such a decision. But doctors have more leeway to perform a procedure if a patient has sustained a potentially life-threatening injury and if the doctor doubts the patient’s capacity to make informed decisions.

While the employer's interests were not directly represented in this confrontation, they were part of the mix: the employer would want to ensure that Persaud received a complete diagnostic work up, so that liability for this particular claim would be limited to the incident that occurred at work. Persaud's refusal of a necessary diagnostic test might lead directly to expensive medical complications.

Which leads us to our second example (from Lynch Ryan case files).

Incomplete Treatment
Maria M. worked as a maid for a home cleaning service. While approaching a job site, she slipped and fell on an icy sidewalk and broke her ankle. (It had recently snowed, so there was no negligence on the part of homeowner.) No question about compensability here. In order to repair the break, a temporary pin was inserted. Unfortunately, Maria was doctor-phobic. She refused to have the pin removed. As months went by, her condition worsened. She walked with a pronounced limp. The employer tried to accommodate her on light duty, but eventually they ran out of tasks. Maria was only getting worse. She was terminated due to her inability to perform the work.

The insurer was caught in the middle of a difficult situation. The injury was clearly compensable, but Maria's refusal to cooperate in her treatment involved "wilful intent" - a refusal to get better. The carrier had an opportunity to deny the claim within the six month "pay without prejudice" period, but they failed to do so. The claim dragged on. Even after an independent medical exam favorable to the employer, the carrier continued paying the claim. Eventually, the case settled for about $35,000, for the indemnity and loss of function exposures. Given the severity of Maria's condition, this is not a huge settlement. (The carrier feared an exposure of twice that amount.) However, the employer expressed frustration at the increase in his comp premiums. Maria's disability was the result of her own refusal to cooperate with recommended treatment, not the work-related incident itself.

Inconclusive Conclusions
All of which leads us to an inconclusive conclusion: do injured employees have an obligation to get better? Must they submit to medically necessary diagnostics? Are they required to do everything possible to return to productive employment? Is it necessary to take the employer's interests into account when determining diagnostic and treatment options? Well, maybe yes and maybe no. It all depends...

In the world of comp, the interests of employee, employer and medicine itself strive for an elusive balance. In the case by case, state by state approach, results vary dramatically. It's hard to find a consistent pattern. In the ideal world, injured workers do everything possible to get better and their employers do everything possible to facilitate a return to work. But in case you haven't noticed, we live in a world that falls way short of the ideal.

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March 31, 2008


This series is meant to paint a realistic, well-sourced and objective portrait of American health care early in the 21st century as compared with that of our 29 partners in the Organization for Economic Cooperation and Development (OECD, all of us comprising the most developed democracies in the world), and to examine how workers' compensation fits into that mix. We've done a lot of the former and some of the latter. Now it's time to finish the job.

First, a bullet-point recap. In Parts One through Four we saw that:

  • American per capita health care spending is two and a half times the average in the OECD and 25% higher than our closest competitor, Switzerland.
  • American per capita health care spending on pharmaceuticals is double that of the average in the OECD.
  • We perform more sophisticated testing and surgeries than any other country.
  • Our physicians earn double the compensation of their OECD counterparts.
  • Our hospital stays are 25% shorter and our doctor visits 42% fewer than other OECD citizens.
  • Despite all the spending, we don't live longer and are no healthier than the average among OECD countries.
  • There has been explosive growth in the incidence of Type 2 Diabetes, much of it caused by an epidemic of obesity, and 27% of the per capita increase in our spending on health care since 1987 is attributable to obesity.
  • At nearly 31%, the percentage of obese adults in the US is the highest in the OECD and 25% higher than Mexico, the country that wins obesity's OECD silver medal, yet we been unable either to halt or reverse the growth of obesity in America.
  • Thirty-one percent of our total health care expenditures go toward insurance administrative costs, far more than any other OECD country.
Meanwhile, over on the workers' comp side of things...
It is indisputable that health care costs in America far exceed those for any other OECD country and have been sharply and steadily rising over the last 20 years. Bleak as that portrait is, the situation with health care costs in workers compensation is even more dire:
  • Since 1996, worker' compensation medical treatment costs, representing only 3% - 4% of total US spending on health care, have been rising at twice the rate of those sharply and steadily rising group health costs.
  • We spend significantly more to treat worker injuries than similar injuries in group health, principally because of over-utilization of medical services.
  • Pharmaceutical costs, representing 18% of total incurred losses at the fifth service year, are a large chunk of the ice beneath the water line, the costs that are often hidden and unknowable (When have you ever seen prescription drugs itemized on a loss run?). If you are an employer, ask yourself these questions: Do you have any idea of the prescription drugs your injured workers are taking? Do you have any idea of the extent to which your injured workers are being prescribed narcotics, such as OxyContin, Actiq, Fentora, Duragesic, even Vicodin? If not, you need to have an immediate talk with your insurer and your Pharmacy Benefit Manager. It's that important.
None of us can do much about the ridiculous costs of health care in America today. To quote Hercule Poirot, the problem is "a many-headed Hydra." But employers and insurers can do something about the ridiculous costs of health care in workers' compensation. What, you say?

At the end of this five-part series, here is a conclusion and a modest proposal, which to many will seem trite, even pedestrian, but 24 years working with more than 4,000 clients guarantees it works:

Conclusion: medical costs grow as indemnity costs grow, because injured workers stay out of work longer than is medically necessary.

The modest proposal: A caring, aggressive, systemic, performance-oriented and measured program that focuses on a) preventing injuries from occurring in the first place and b) if injuries do occur despite your best efforts, bringing injured employees back to work in some medically approved capacity of temporary modified duty as quickly as possible. This early return to work will keep injured workers connected to the workplace and the ingrained routine of getting up, getting dressed and going to work every day. Absent that, the injured worker will stay at home where he or she will create a new routine of staying out of work and making up his or her own, stay-at-home modified duty program. If I were injured and could not go to work because my employer had nothing for me to do, that's what I would do, and so would you. And that does not have to happen.

It's a lot of work, but it's as simple as that.

I've enjoyed writing this series. I hope it's given you something to think about.

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March 13, 2008


In 1992 I became a Trustee of a major, tertiary care, teaching hospital in Massachusetts. For Trustee indoctrination, new Trustees spent a week in a classroom learning about every facet of hospital life. One morning we were briefed by the hospital's CFO. I was astonished to learn that the hospital had 27 different billing systems, one for each insurer and HMO with which it did business. To me, this was Kafkaesque. I mention it now, because in the intervening years, the situation has become worse, much worse.

At 31% of total US health care expenditures, the administrative costs of healthcare providers are double those in Canada (Woolhandler et al, New England Journal of Medicine, August 21, 2003, page 768), and, with the exception of tiny Luxembourg (population 425,000), America's health administration and insurance costs are the highest of any of the world's developed democracies.

We spend more, far more, than any other country in the world on health care. Do we get what we pay for? In Parts Two and Three of this series on health care, we examine that question. In Parts Four and Five we relate it all to workers' compensation, at 3% to 4%, a tiny room in the American health care house that Jack built.

The US compared with other developed countries: The cost explosion.

The United States has been a member of the Organization for Economic Cooperation and Development since the OECD's founding in 1961 (the forerunner of the OECD was the Organization for European Economic Cooperation, set up under the Marshall Plan in 1947). There are 30 member-countries of the OECD, all democracies, most of which are thought to be the most economically advanced nations in the world.

In September, 2007, the US Congressional Research Service, the best research group you've never heard of, published a report for Congress titled, "U.S. Health Care Spending: Comparison with Other OECD Countries." (Abstract , including downloadable full report in PDF.) This 60-page, well sourced report paints a grim, if occasionally confusing picture.

Until 1980, US spending on health care, as measured as a percentage of gross domestic product (GDP) ranked at the high end of OECD countries, but not excessively so. In 1980, US spending as a share of GDP was 8.8%, which compared favorably to Sweden's 9.0%, Denmark's 8.9%, Ireland's 8.3% and the Netherlands 7.2%. True, spending in the United Kingdom, at 5.6%, France and Norway, at 7.0%, each, and Canada, at 7.1%, was lower, but no one could claim that the US spending was out of control.

Then something happened. By 1990, our spending as a share of GDP had grown to 11.9%, while the rest of the OECD countries remained fairly static – Sweden's and Denmark's declined to 8.3%, the UK's rose to 6.0%, and so on. And by 2003, the US share had ballooned to 15.3%, nearly three percentage points higher than Switzerland, at the time our closest competitor. In fact, in 2004, the OECD average spending as a percentage share of GDP, excluding the US, was 8.6%, just over half of the US share.

In the average OECD country nearly 74% of healthcare costs are publicly financed; in the US, less than 45 %. Moreover, per capita health care spending in OECD countries, excluding the US is $2,438; in the US, per capita spending is 250% higher, at $6,102.

When analyzing why the US spends so much more on health care, one hardly knows where to begin, because in nearly every category we dwarf the field.

Take prescription drugs, for example. Average per capita spending on pharmaceuticals among all OECD countries, including the US is $383, but in the US it is $752, which is $153 dollars per person more than the second largest spender, France. Despite this, because the US spends so much on all of health care, pharmaceuticals account for only 12.3% of total spending, which is near the bottom of the pack among all OECD countries where average spending on pharmaceuticals is 17.8%.

One would think, perhaps, that spending is so much higher in the US because we have more hospitalization, or doctor visits per capita, but one would be wrong. Hospital discharges per 1,000 people in the US are 25% lower than the average for all OECD countries, and doctor visits are 42% lower.

Well, maybe people have significantly more intense and aggressive service while they are hospitalized in the US? One indicator of intensity is the average length of acute care hospital stay. In the US, the length of acute hospital stay is 5.6 days, which is less than all but eight of the other 29 OECD countries. But shorter stays could mean higher efficiency. A better way to look at it is to look at specific causes for hospital stays, like heart attacks, for instance. The US average hospital stay following acute myocardial infarction is 5.5 days, the lowest in the OECD.

Consider childbirth. Here the US has the third-lowest rate of stay, 1.9 days – much shorter than the OECD average of 3.6 days.

Another reason for high costs in the US is our aggressive testing. Only Japan has more CT scanners and MRI units per million people.

And, although doctors will roll their eyes when they read this, still another reason for our higher costs is physician compensation. At an average of $230,000 and $161,000 for specialist and general practitioner pay, respectively, each of these groups earns more than double their OECD counterparts.

Clearly then, there is no denying that, for whatever reasons, the US outspends its OECD partners by a long shot. The question that has to be asked is: Are we getting what we are paying for? All of us, taxpayers, employers, employees and individuals – the collective “we.”

That will be the subject of Part Three in this series.

Prior posts in this series:
Part 1: The best health care plan in America

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March 11, 2008


In 1986, US workers' compensation medical costs were 44% of total incurred loss dollars. Ten years later, the percentage had grown to 48%. By 2006, medical costs amounted to 58% of total loss costs. And today, nearly a third of the way through 2008, they hover around 60%. The annual workers' comp medical cost rate of growth is nearly double the painfully steep rate of growth in the Group Health arena, and it has been so since 1996 (Source: NCCI and Insurance Information Institute).

And why not? Workers' compensation health care is the best health care plan in America, maybe even the world. Injured employees pay no premiums, co-pays, or deductibles. Prescription drugs are free, and tax-free indemnity payments cover most lost wages. No wonder acute and traumatic injuries cost nearly 50% more than similar injuries in the group health world, according to an NCCI Research Brief (Workers Compensation vs. Group Health: A Comparison of Utilization.)

No wonder chronic, soft tissue, musculoskeletal injuries cost more than double similar injuries in the group health world. And the disparity is probably even more than that, because NCCI could only examine and compare cost data for the first three months following injuries. Why? Because workers' compensation tracks injuries by claim numbers, but group health does not. Therefore, in group health, the further one gets from the date of injury, the harder it is to tie rendered medical services to a particular injury.

It's no secret that over-utilization is the biggest reason that workers' comp medical costs are so much higher than costs in group health. True, on the whole and with some notable exceptions, workers' comp medical fee schedules have caused prices for individual medical services to be only slightly higher than individual services in group health, but in nearly every part of the country workers' comp utilization dwarfs that of group health. Makes you wonder what the workers' comp case management and utilization review companies are actually doing, doesn't it?

The difference here is stark. The group health plans put systemic fences around utilization. Workers' comp does not. If you twist your knee mowing the lawn out in the back forty on a Saturday morning and require arthroscopic knee surgery, your health plan will approve a certain number of visits to a rehab facility after surgery, normally six or seven. After that, you'll need approval for any more. Of course, you can always choose to self-pay. But in the world of workers' compensation, that's one decision you don't have to make.

Because health care utilization and costs have become such large issues in workers' compensation, as well as group health, and because in this frenzied Presidential election season that seems to never end health care has become quite the political football, over the coming days I'm going to examine specific parts of it further. Next up - a bit of analysis of the current mantra all current presidential candidates seem to agree on (some might call it a "lie," but I couldn't possibly go that far), namely, that here in America "we have the best health care in the world."

If only that were true.

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March 6, 2008


Health Wonkery runs a wide gamut this week: we have big Pharma front and center with cowardly marketing, poison in the pills and a controversial study that finds a racial factor in whether meds are taken properly; we have extremely divergent views on health care reform, from single payer and a big role for government to status quo and no role for government; we have Canada backpedaling on a call for fewer doctors; and finally, a story about bad boys (and girls) being bad: incompetent agent, inattentive insured, aggressive insurer. Never a dull moment in wonk world!

Let's get to it.

Taking the "S" out of STDs? Fard Johnmar, writing at Envisioning 2.0, focuses on an interesting side of the Gardasil debate: Merck's unwillingness to use "sex" to sell its new product for preventing sexually transmitted diseases (STDs). Fard speculates that fear of the "abstinence only" crowd may be behind the strategy. It's ironic, of course, that we live in a culture willing to use sex to sell everything from cars to shampoo.

Terror in small places:Here are two terrifying posts (one and two) from Roy Poses, which raise the issue of what's in those little pills we routinely swallow:

The story began with a sudden increase in the rate of severe adverse effects occurring after the administration of heparin, a 70+ year old anti-clotting drug. Attention first focused on a Baxter International facility in New Jersey, but then it turned out the heparin was not really made there, and was traced to a factory in China, which, it turns out, was never inspected by the US FDA or any government agency from the US or China. Furthermore, that factory actually didn't make the heparin either, but obtained heparin from middle-men in China, who in turn apparently got the heparin from a number of suppliers, including tiny "workshops," where conditions were unsanitary and primitive, and which were never inspected by anyone. And the top leaders of the American companies involved denied they actually knew where the heparin was coming from. This sorry tale of mismanagement raises doubt about the most basic quality of the US (and world) drug supply, so in some ways is even more serious than most of the cases heretofore reported on Health Care Renewal.

White Collar Racketeering: New York Personal Injury Attorney offers two hits (one and two) with anti-Kudos all around: Allstate, along with doctors and medical consulting companies, was sued for for racketeering for doing rigged "independent" medical exams to cut short payments to treating doctors. This suit follows by one month a similar one against State Farm.

What consumers want: Jane Sarasohn-Kahn at Health Populi finds much wisdom in a Deloitte survey regarding health insurance. Most Americans are looking for a consumer driven product - as opposed to the industry-driven products currently available.

Heart Failure and Race: Jason Shafrin at Healthcare-economist explores the causes of high chronic heart failure in racial minorities. A paper by Emilia Simeonova claims that 5% is due to differences in doctor quality, 20% is due to differences in socio-economic factors, but vast majority of the mortality differences are due to the fact that blacks are less likely to take their medication than whites.

Medicare Advantage (or Disadvantage): David Harlow at health care law blog examines the question of whether higher costs for Medicare Advantage plans are excessive or worthwhile.

Bad Boys and Girls: Henry Stern at Insureblog presents "Bad Boys, Bad Boys, Whatcha Gonna Do When They Come for You?" He asks, "what do an incompetent insurance agent, an unscrupulous client and a possibly negligent insurer have in common?"

Aids in Africa: GrrlScientist at Living the Scientific Life reviews the book The Invisible Cure: Africa, the West, and the Fight Against AIDS. The book, by Helen Epstein, is a clear-eyed look at the African AIDS epidemic and the West's often misguided attempts to assist in this battle. Grrlscientist highly recommends the book. We highly recommend her review, which summarizes the aids crisis in its most potent environment.

Frivolous Lawsuits: Jose DeJesus MD presents Discouraging Frivolous Malpractice Lawsuits posted at Physician Entrepreneur.

Single Payer System: Ian Welsh at Firedoglake explores the ethics and politics of a single payer system and opines that, one way or another, we are all in this together.

Too Many/Too Few Docs? From our neighbor to the north, Sam Solomon of Canadianmedicineblogspot ponders the Canadian shift from "too many docs" to "not enough." He finds a muddied logic in the twists and turns of Canadian public policy.

Policy Debate: Jane Hiebert-White of Health Affairs Blog hosts a debate between Rep. Jim Cooper (D-TN) and Rep. Paul Ryan (R-WI) on the rapidly rising health spending projections--is it a market issue or government problem? Ryan and Cooper could hardly be further apart in their views - in itself an indication of how far we are from solving the national health care problem.

Not All Policies are Alike: Louise at Colorado Health Insurance Insider Blog challenges the notion that health insurance is a digital switch, where people either have it or do not. She finds many variations in coverage and deductibles. In the current market, there are many sizes and some don't fit anyone at all.

Local Solutions? Which leads us to Drew Weilage at Our Own System. Drew thinks a global solution is simply out of reach. He recommends solving problems locally. (After reading the two congressional entries above, you might be inclined to agree.)

That's it for this week. Assuming all these problems will not be resolved in the next few days, Health Wonk Review will back at it soon. Stay posted.

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February 19, 2008


Our colleague Peter Rousmaniere has a fascinating article on PPOs in the current issue of Risk & Insurance magazine, entitled "Has Competition Vanished?" Coventry has become the 900 pound gorilla of workers comp medical services, with 4,700 hospitals and 580,000 doctors. Through the aggressive use of acquisitions and partnerships, Coventry is approaching monopolistic status. The question, of course, is what this means for the carriers and employers using the network for workers comp. Is the Big Kahuna delivering quality services?

Coventry begins with a promise to their payers: they will secure medical services at a discount. According to one source, Coventry slashes more than 30 percent off state fee schedules. While this might be appropriate in states with inflated fee schedules (Connecticut comes to mind), it is definitely counter-productive where fee schedules are already putting the squeeze on providers. When you are dealing with as many providers as Coventry, it is tempting to grow fat off the small margin of a small margin. Unfortunately, slashing fees is no quarantee of quality. In addition, it's often an invitation for providers to rely on quantity to make for skimpy reimbursements: repeated (and unnecessary) visits become "just what the doctor ordered."

With its sophisticated understanding of the market it now dominates, Coventry is hedging its bets. They struck a deal with Aetna to sell and market the latter's innovative program, Aetna Workers Comp Access. Aetna is building a network of providers selected for good clinical outcomes and economy in treatment. They have built 27 networks so far, with more on the way. Aetna is onto something important: instead of relying on discounts, they are looking for providers who understand return-to-work philosophy. Their primary concern is the quality and effectiveness of treatment.

Aetna is moving in the right direction. I hope they offer medical providers financial incentives for speeding the return-to-work process. Rather than demanding discounts, they should offer a reimbursement scheme that rewards results: fee schedule plus, not minus.

It will be intriguing to watch the partnering ritual between humongous Coventry and willowy Aetna. In many respects they are unlikely partners, with diametrically opposed philosophies. In the struggle between cost cutting and treatment quality, something has to give (and it's usually quality). I'd like to think that Coventry will see the value of paying more for something that produces better results. If they do, we may see something truly unique: a big gorilla that really knows how to dance.

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February 14, 2008


Chad Hennings spent nine years as a lineman for the Dallas Cowboys. He accounted for 28 sacks, 6 fumble recoveries, 4 return yards and 1 touchdown in 107 games before retiring after the 2000 season. He also suffered permanent damage to his back. The question is whether or not his work-related back injury is compensable under the Texas workers comp system.

The Texas workers' comp law treats pro athletes as a special class. Under Texas Labor Code §406.095(a), a pro athlete "employed under a contract for hire or a collective bargaining agreement who is entitled to benefits for medical care and weekly benefits that are equal to or greater than the benefits provided" by workers' comp must make an election between the two types of benefits. At first glance, it's a no-brainer. Henning's benefit package as a player dwarfs benefits under the comp system: he earned $1.4 million in salary and benefits in his final season with the Cowboys, including $225,000 under an "injury-protection clause," $38,921.98 from the Cowboys to cover his medical costs and $87,500 in severance pay.

Reversing Field
At first, the court system threw Hennings for a loss. The 10th Court's original July 23, 2007, opinion deemed Hennings' overall contractual package of salary and medical benefits during his pro football career to be higher than benefits available under workers' comp, thus rendering Hennings ineligible for such benefits under Texas law. But in its Jan. 30 opinion, the court reversed itself and upheld a jury finding that, in Hennings' case, workers' comp was a better deal for him because of its longer duration. After re-consideration, the court separated the indemnity benefit (where comp was insignificant) from the medical (where taken over a lifetime, comp might well exceed the deal offered by the Cowboys). In other words, Hennings's medical benefit of $38,921 might well prove less than the lifetime medical charges for treating his back problems. Heck, he could blow through that in a single surgery.

Based upon the Court's ruling, a Texas-size door has been opened for all professional athletes in the state to access the robust medical benefits of the workers comp system.

The decision may not help many retired pro athletes, because it may be too late for them to seek workers' compensation; the statute of limitations may have run on their potential claims. (Most states require that claims be filed within 2 years or less of the occurrence.) Going forward, I would not be surprised to see players routinely file comp claims immediately after injuries, knowing that they will not qualify for benefits in the short run, but protecting their interests once they quit the game.

Rate Setting Dilemma
If professional athletes are increasingly successful in their efforts to win workers comp benefits, insurance carriers and regulators will face an interesting dilemma: determining an actuarially defensible rate for coverage. Right now, the Scopes classification manual offers just two classes for professional athletes:

Class code 9178 Athletic Team or Park: Non-Contact sports. Applies to players, coaches, managers or umpires and includes all players on the salary list of the insured, whether regularly played or not. Non-contact sports include baseball and basketball.

NOTE: Authors of the Manual obviously did not see the Detroit Piston "bad boys" in their prime!
Class code 9179 Athletic Team or Park: Contact Sports. Applies to players, coaches, managers or umpires...Contact sports include football, hockey and roller derbies.

As a point of reference, the current rate for class 9178 in Massachusetts is $23.11. Oddly enough, the rate for 9179 (contact sports) is slightly lower at $22.55. That is well below the rates for roofers and steel erectors.

NCCI might want to consider some serious revisions to the Scopes Manual. To begin with, separate classes are needed for coaches (relatively modest exposures) and players (huge exposures). They might even want to approach it in a manner similar to the construction industry, where the payroll is broken out by activity: field goal kickers, for example, are lower risks than lineman. Running backs are always at risk for knee injuries. And after the most recent SuperBowl, it appears that quarterbacks take their lives in their hands with every snap of the ball.

A Parallel Universe?
Professional athletes and workers comp are an odd mix. Where comp offers a combinatin of indemnity and medical benefits, for athletes the only issue is medical. With their enormous salaries, athletes will rarely have a need for indemnity benefits, which top out around $50,000 a year in even the more generous states. Medical benefits are a different matter entirely. When it comes to work-related injuries, comp provides lifetime coverage, with no co-pays, no deductibles and no time limits. Comp offers the best medical coverage of any kind, anywhere in the world. Just what a disabled athlete needs...

The permanent partial and permanent total exposures for football players are humongous: concussions, back injuries, blown out knees, torn rotator cuffs, torn biceps, nerve damage. Feed the injury data from pro football and pro baseball to an actuary and you'll generate a rate that exceeds the current top ticket professions of structural steel erectors and lumberjacks. The rate would soar well above $100 per one hundred dollars of payroll.

The optimum solution lies outside of the comp system. Workers comp indemnity is simply not crafted to protect the interests of (wildly overpaid) athletes. The players associations of the various professional sports need to sit down with management and craft a parallel universe: not the conventional workers comp system, but a combination of income protection and lifetime medical benefits that contemplate the real risks inherent in professional sports.

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January 7, 2008


The Insider has often speculated about the thought process of medical providers, so we are very interested in case of Dr. Patrick Chan, a neurosurgeon working out of Searcy, Arkansas. The Canadian trained doctor has pleaded guilty to charges of demanding and accepting kickbacks from surgical implant maker Blackstone Medical of Springfield MA, a subsidiary of Orthofix International. Dr. Chan used the (expensive) devices in back surgeries. He was a very busy fellow, billing about $200,000 a month. He has amassed a $10 million nest egg (minus the court-assessed penalty of $1.5 million plus substantial legal fees).

The kickback scheme initiated by the doctor raises two compelling issues: one involves how a doctor determines which medical device to use. Dr. Chan reduced that decision tree to its barest branches. "I use the device that pays me the most money."

The second dimension of Dr. Chan's thought process involves utilization: when should a specific device be used? Apparently, Dr. Chan went out of his way to find opportunities to use his preferred surgical implants. His work is being reviewed to determine whether the surgical procedures were in fact needed. One suit, filed in Arizona, alleges that in 2005 Dr. Chan told his patient, a young trucker, that if he did not agree to implantation of a spinal device, he was at risk of becoming a quadriplegic. After the surgery, a worker's compensation evaluation of the MRI done prior to the procedure showed that it was medically unnecessary. [NOTE to insurer: Speed up the utilization review process!]

Breakthroughs, Innovations...and Scams
Blackstone Medical touts itself as the home of "Breakthrough Thinking." Parent company Orthofix is "always innovating." Unfortunately, high level thinking and innovation, along with overly ambitious marketing goals, have led the companies into an ethical morass.

Dr. Chan is currently under house arrest and awaiting sentencing. He faces up to five years in prison. We can assume that he is under considerable pressure to testify against his former suppliers. It's ironic, of course, that Dr. Chan and the people at Blackstone began with the same goal in mind: helping people in pain. They intended no harm, but, alas, much harm has apparently been done.

Thanks to fellow blogger Joe Paduda at Managed Care Matters for the heads up on this interesting story.

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December 4, 2007


In yesterday's post, Julie Ferguson mentioned a recent study that directly links night shift work with certain forms of cancer. The International Agency for Research on Cancer (IARC) is about to list shift work as a "probable" carcinogen. This will put shift work into the same category as anabolic steroids, ultraviolet radiation and diesel engine exhaust.

The potential number of people impacted by this designation is staggering - roughly 15 to 20 percent of the workforce in developed countries.

The scientists suspect that shift work is dangerous because it disrupts the circadian rhythm, the body's biological clock. Light shuts down melatonin production, so people working in artificial light at night may have lower melatonin levels, which can raise their chances of developing cancer. Sleep deprivation might also be a factor. Not getting enough sleep makes your immune system vulnerable to attack and less able to fight off potentially cancerous cells.

Perhaps the most alarming finding is the impact of switching between night and day shifts: it's probably better to work just at night and adjust accordingly. Shifting back and forth - a common practice in medical facility shift assignments - appears to compound the risks. The body's clock is prevented from establishing a steady course.

The studies do point the way toward making shift work safer, with one relatively simple recommendation: shift workers should make sure that when they do sleep, they do so in a darkened room. The balance between light and dark is important for the body. When shift workers finally climb into bed, an (artificially) darkened room might enhance the body's ability to generate protective melatonin.

Compensable Cancers?
What does this mean for workers comp? Not much. The comp system is notoriously conservative, slow to react and even slower to allow compensability where definitive proof is lacking. Under the prevailing standard in most states, work exposure would have to be the "predominant cause" for cancer to be compensable. A claimant would be hard pressed to prove that other risks for cancer in their lives were not significant factors in the illness: family history, lifestyle issues and other exposures. Given the general uncertainty about cancer's origins, claims will be routinely and aggressively denied.

Our colleague Peter Rousmaniere has completed a remarkable series of articles in Risk & Insurance magazine, which graphically illustrate the inability of the comp system to confront workplace illness issues. The system balks at comprehending - and compensating - victims of illness caused by the events of 9/11, even though the "cause" -- toxic dust - is pretty difficult to overlook.

Thus it is highly unlikely that shift workers with cancer will receive much of a welcome - let alone sympathy - in the comp system. They are awake for all of us, doing the jobs that must be done at night. Their "thanks" is limited to higher pay (shift differential). Their lives are disrupted, their health is apparently at risk. But when it comes to work-induced cancers, they are on their own.

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November 15, 2007


Maggie Mahar of Health Beat has posted a fresh edition of Health Wonk Review, which is ready for your perusal. With the political season upon us, HWR has been quite lively of late, as participants debate the various health plans that candidates throw into the public arena. This week is no exception, with posts commenting on ideas put forth by Romney, Schwarzenegger, and Giuliani. (Well, OK, the Governator is not a presidential candidate, but any reforms in the behemoth of California should be of interest to us all.) Maggie also covers and offers analysis on the ongoing debate on universal health care as it plays out on some submitted posts, specifically in reaction to a recent editorial by Peter Huber of the Manhattan Institute. And there's much, much more in this week's HWR, all tied together with excellent and informed commentary.

This is Maggie Mahar's first time hosting Health Wonk Review. Maggie's blog is relatively new, a project of The Century Foundation, a nonprofit public policy research institution, where she is a fellow. But Maggie is hardly a rookie when it comes to health care - she boasts a very impressive resume. Author of several books, Maggie was previously a financial journalist whose work appeared in Institutional Investor, The New York Times, and Barron's. At Barron's, she was a senior editor for a number of years. She was also previously a professor at Yale University, from which she holds a B.A. and a Ph.D. She's a very welcome addition to the roster of experts who participate in Health Wonk Review!

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November 14, 2007


There is a bill pending in the US Congress to require parity between mental and physical health benefits. The bill is a follow up to similar legislation passed in 1996, which was severely limited in scope: Employers did not have to provide any mental-health benefits. Copays and deductibles could be higher for mental-health expenses. Visits could be limited. And small businesses and self-insured employers which cover healthcare costs directly were entirely exempt. Not exactly my understanding of the word "parity."

Full Parity for Mental Illnesses expands the Mental Health Parity Act of 1996 (MHPA) to prohibit a group health plan from imposing treatment limitations or financial requirements on the coverage of mental health benefits unless comparable limitations are imposed on medical and surgical benefits.

Here is a summary of the pending bill prepared by the National Alliance for the Mentally Ill:
[The proposed legislation] provides full parity for all categories of mental disorders, including schizophrenia, bipolar disorder, major depression, obsessive-compulsive disorder, and severe anxiety disorders. Coverage is also contingent on the mental illness being included in an authorized treatment plan, the treatment plan is in accordance with standard protocols and the treatment plan meets medical necessity determination criteria.
Defines "treatment limitations" as limits on the frequency of treatment, the number of visits, the number of covered hospital days, or other limits on the scope and duration of treatment and defines "financial requirements" to include deductibles, coinsurance, co-payments, and catastrophic maximums.
Eliminates the September30, 2001 sunset provision in the MHPA. Like the MHPA, the bill does not require plans to provide coverage for benefits relating to alcohol and drug abuse. There is a small business exemption for companies with 25 or fewer employees.

No Parity in Comp
Parity is an important concept, but one that simply does not exist in the workers comp system. Comp carriers habitually reject any claims for benefits based upon work-related mental disability (post traumatic stress syndrome, stress in general, depression, etc.). The insurer strategy is usually "Deny, Deny, Deny" until a judge orders otherwise.

There are a number of reasons for this virtually universal aversion to accepting mental disability claims:
: The standards for eligibility in most states are very high: work must be the predominant cause of the disability. Most of us have plenty of stress in our lives away from work.
NOTE: Long gone are the days when in order for a claim to be compensable under comp, California required a mere 10 percent of the stress to be work related!
: Comp benefits tend to be very open ended. Once the carrier accepts a (mental health-based) claim, they are likely to own it forever. As a result, they usually start by rejecting the claim.
: Unlike physical injuries, where objective criteria for treatment and recovery are often (but not always) straight-forward, the end-point for a mental disability can be very elusive.
: managed care can limit treatment for open-ended physical problems (requiring, for example, limited physical therapy, chiropractic visits, etc). Similar limits on mental health treatment (up to and including hospitalization) are more difficult - but not necessarily impossible - to impose.

It's unfortunate that comp turns its back on the mental aspects of injury. Over the years we have seen many claims where a little counseling after the injury could significantly speed recovery. Well-structured groups could provide support to workers recovering from injuries at a very modest cost. As a culture, we have no problem treating physical disabilities, but when it comes to issues of mental health, we balk. Ironically, as often as not the mental barriers to recovery trump the physical. Out-of-work employees often succomb to depression - and once that happens, full recovery and return to productive employment are much less likely to occur.

Ultimately, it's a matter of who pays, how much and when. The enormous cost of losing a productive worker is seldom factored into the equation. While Congress is about to force the parity issue on employers and insurers for conventional health coverage, no such pressure is pending - or is even foreseeable - for the workers comp system.

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November 1, 2007


The "anti-Halloween" edition of Health Wonk Review is up, hosted by Hank Stern at Insureblog. It's truly amazing. If you've never sampled this pot-pourri of health-related blogs, now is the time. It doesn't get any better than this witches's brew of historic events and contemporary thought. Bravo, Hank. (And no, I did not know that it was on this day in 1512 that the Sistine Chapel first opened to visitors. Michaelangelo painted this entire masterpiece in an ergonomically compromised position, flat on his back. No way he could get away with that today!)

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June 14, 2007


For the latest reads on health policy issues - everything from Armageddon to the uterus - head on over Health Business Blog. David Williams has done a masterful job in compiling the latest Health Wonk Review.

David's blog is always worth a read, too. We enjoyed the recent podcast and transcript of an interview with Rudy Rupak, Founder and President of Planet Hospital, one of the leading Medical Tourism companies. Rupak discusses a trip that opened his eyes to the potential for medical tourism:

"We started the company in 2002 when my fiancee and I were traveling overseas in Bangkok. I describe her as a professional patient and she got ill while we were in Bangkok and refused to go to a third-world hospital. She had visions know, tents instead of buildings. And I tell her, at least get a shot of painkillers and come back to the hotel room or something. Now we go there and this hospital was just truly amazing. And, she had her own private nurse, a doctor who saw her within 20 minutes of her arrival, took ownership of the problem, and a chef to take care of her meal requirements based on the doctor's orders. After three days stay with her medications, tests, etc., her bill was a staggering 411 dollars. And that's when I thought there is a business here.

Also, David posts about sun exposure and UV protection - a timely issue with summer upon us -- and July is UV Safety Month. David discusses the SHADE Foundation, established by Sondra Schilling (wife of Red Sox ace Curt Schilling) and offers some resources for sun protection.

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May 29, 2007


Felicia Dunn-Jones was a civil rights lawyer who worked one block away from the World Trade Center. She fled the office on 9/11, inhaling dust from the falling towers. She was covered with ash laced with asbestos and other hazardous material as she ran for safety. Now, nearly six years later, over five years after her death, New York City Medical Examiner Dr. Charles Hirsch has determined that Dunn-Jones's death was related to the 9/11 attack. In the days and months following the attact, Dunn-Jones developed a serious cough and had trouble breathing. She died five months later.

Dr. Hirsch has amended Dunn-Jones's death certificate to indicate that exposure to trade center dust "was contributory to her death." The manner of death thus changes from natural causes to homicide.

The medical examiner still has some doubts as to whether the trade center dust caused the sarcoidosis that killed Ms. Dunn-Jones. He suspects it was a pre-existing condition, nonetheless clearly and significantly aggravated by the exposure on 9/11.

Who Pays?
The issue for Dunn-Jones's family is not one of payment. They have already received $2.6 million from the Victim Compensation Fund. But it does raise an interesting question relative to workers compensation: was Dunn-Jones's illness work-related?

In the moments following the attack, Dunn-Jones fled her office. Technically, once she reached the streets, she was no longer at work...She was commuting, heading away from work. She eventually made her way home to Staten Island.

An administrative law judge could reasonably conclude that this is not a work-related illness. Dunn-Jones happened to be at work, which happened to be near the World Trade Center, which happened to be attacked. Once she fled the building, she was a commuter (a commuter suffering from terror, but a commuter nonetheless). On the other hand, an equally reasonable judge might lean toward compensability, based upon the fact that Dunn-Jones was at work when the attack took place - and it was physically impossible for her to remain there. She was not engaged in an ordinary commute, but a horrific flight from immanent danger.

Perhaps these are morbid distinctions that most of us would prefer to ignore. But the center attack is certainly not the last incident of its kind. Millions of employers are paying for workers comp policies, under the assumption that employees are covered for work-related injury and illness. If and when the next attack comes, the issue of compensability will quickly become paramount. It is no exaggeration to state that the future of the insurance industry as a whole might be at stake.

In the meantime, we would do well to return to the Book of Common Prayer for consolation. Sure, we are inclined in this country to translate tragedy into dollars. Someone must pay for all the pain, suffering and loss. But beyond the issue of jackpot settlements lies the simple fact of our mortality. "Earth to earth, ashes to ashes, dust to dust."

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May 16, 2007


Unhealthy worker lifestyles and an aging work force may portend trouble on the horizon for the nation's employers. A recent article in The Wall Street Journal points to the disturbing trend of long-term worker disabilities that are accelerating at a rapid pace. This comes at a time when employers may be facing labor shortages with the impending retirement of the large boomer population.

The WSJ article uses data from The 2006 CDA Long-Term Disability Claims Review (PDF), an annual study issued by the Council for Disability Awareness. Some of the salient points from the study:

  • More than 500,000 individuals received long-term disability insurance payments from CDA member companies in 2006 - 4.4% more than 2005.
    CDA member companies paid in excess of $7.2 billion in long-term disability insurance claims in 2006, a 7.5% increase over benefits paid in 2005.
  • 33% of individuals receiving long-term disability insurance benefits did not qualify for Social Security Disability Insurance, and 95% of reported disabilities were not work-related.
  • 6.8 million disabled workers received payments through SSDI in 2006, 4.4% more than in 2005 and 51% more than the 4.5 million disabled workers receiving payments in 1997.
  • The rate of disability for women workers is growing faster than that of their male counterparts. Since 1997 the number of women covered under SSDI has grown from 16% to 47% of covered workers compared to a 9.9% growth rate for men, while the rate of disability for women workers has grown more than 60% compared to 32% for male.
For the last two decades, there have been numerous attempts to cobble the various disability programs together and serve them under one roof: 24-hour coverage, disability management, and absence management, to name a few. Often, for all but the largest self-insured employers, these attempts have been less than successful due to complex state-by-state regulatory environments, in-house management silos that administer programs differently (risk management vs human resources), and differences in program incentives, disincentives, and benefit structures. One area where workers comp has made huge progress and serves as a model for non-work related disability programs is in the area of return-to-work programs. For many, migrating RTW to disability has been slow going - often because it is a voluntary employee financed benefit, so the urgency hasn't always been there. But with the converging forces of aging workers, a less healthy population (increased obesity, diabetes), and a tight labor pool, the sense of urgency may be growing.

The WSJ article discusses the ways that many large employers are making workplace accommodations to retain workers:

"American Express says it has altered the company cafeteria at its Greensboro, N.C., call center to accommodate wheelchair-bound workers, enabling them to access microwaves and bus their trays on carts. Company employees who rely on public transportation because of medical reasons, such as paratransit transportation, can get flexible work schedules to accommodate their needs.

At General Motors Corp., a joint program with the United Auto Workers union helps disabled workers find new positions within the company that are more amenable to a worker's ailment. Under this so-called Adapt program, disabled workers meet with company doctors, ergonomic representatives and others who review the employee's disability and try to match that to available jobs. Workers who install windshields, for instance, but who develop problems that restrict how high they can raise their arm, could be moved to door installation instead, since that job doesn't require workers lift their arms above their shoulders, GM says."

These types of creative programs are always easier for the big guys to effect than the smaller employers, given the law of large numbers, but the large employers can also serve as laboratories for what works well and what doesn't. And the climate may be right for moving the needle a little further in terms of a unified approach to disability management and stay at work/return to work programs.

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May 15, 2007


Three executives of Purdue Pharma have agreed to pay fines totalling $635 million to resolve charges relating to the marketing of Oxycontin. The company admits to understating the risks involved with this potent drug and to deliberately misleading doctors and the public about its addictive qualities. From 1996 to 2001 the company claimed that Oxycontin was a "miracle" drug, safer than rival medications. Alas, it turns out that the drug was subject to abuse and led rapidly to addiction. And the company apparently knew this all along.

The pleas involved Michael Friedman, CEO, Howard Udel, the chief legal officer, and Dr. Paul Goldenheim, the former head of research. While claiming to have taken steps to prevent misstatements in the promotion of the drug, Mike, Howie and Paul pled guilty under the legal principle that holds high-level executives accountable for the improper acts of others. I'm sure that they privately berated their marketing department for the lies and deceptions, even as the dollars began to roll in.

Company revenues associated with OxyContin between 2000 and 2006 approached $10 billion. So the $635 million fine, while appearing hefty, is about six per cent of revenues. As a tax on criminal negligence, that isn't bad. Even Al Capone would have approved.

You don't achieve overwhelming market share by sitting around and waiting for doctors to discover you. It takes very aggressive marketing and, in this case, pretty dramatic misreprentation to dominate the market for pain killers. The company told two fundamental lies in their drive to sell their product:
1. That OxyContin was less addictive than other opiates. It's not.
2. That the drug was less readily subject to abuse. Not true.

It turns out that OxyContin is highly addictive and the company knew it. In addition, they put a warning right on the label not to crush the pill and ingest/inject it. You might get stoned. You might, indeed. By crushing the pill, users circumvent the "time release" characteristic and access the full power in one overwhelming (and highly addicting) moment.

Purdue Pharma did a great job of pushing (that is the operative word) OxyContin deep into the medical system. Originally intended for treatment of extreme pain in cancer patients, the company's marketers successfully presented it as the drug of choice for common ailments such as routine back pain. That's why it rose to prominence in the workers comp system. (See our post here.)

The Great American Success Story?
In the ideal world, when a drug is created, it will be prescribed prudently and carefully, and only for the purposes for which it was intended. When you develop an effective product to manage extreme pain, you would limit its use to cases of extreme pain. That's in the ideal system - not exactly how you would describe the current status of health care in America.

The real American way is achieving market saturation, market dominance, even if your product is best used by a limited population. And to dominate the market, you tell people what they want to hear: the product is extremely safe and effective. It works better than anything else. And heck, if you have a workers comp claim, the prescription won't cost the employee a dime! We'll even give them 50 tabs, 40 more than they really need for their little back strain, so they can generate some income on the side.

This country has locked up more people for using and abusing drugs than any country in history. We have a real problem with people getting stoned. Nonetheless, when a legitimate company becomes a pusher, when their misrepresentations and outright lies lead to addiction and death, nothing much happens. If Mike, Howie and Paul sold a few ounces of marijuana or crack cocaine, or even a few tabs of OxyContin, to an undercover agent, they'd be going to jail for a long, long time.

But after their enterprise made billions, Purdue Pharma hired Rudy Giuliani Partners LLC to work out a deal with the prosecutors. In case you're wondering, Giuliani Partners is "dedicated to helping leaders solve critical strategic issues, accelerate growth, and enhance the reputation and brand of their organizations in the context of strongly held values."

Hmm. This drug scandal certainly became an embarassing "strategic issue" for Purdue Pharma. As for "enhancing the reputation and the context of strongly held values" - I'm still trying to figure out what the company's core values are. Your guess is as good as mine. In any event, Guiliani Partners undoubtedly earned a hefty fee. Once you get beyond a few days of bad press, Mike, Howie and Paul are still very free and very rich. Overall, you'd have to say that Rudy's boys cut them a pretty good deal, one that even the bootlegger Capone would appreciate.

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May 1, 2007


A jury in Alexandria VA recently found Dr. William Hurwitz guilty of 16 counts of drug trafficking, determining that he prescribed massive quantities of medicine to patients in chronic pain. The 12-member jury acquitted Hurwitz on 17 other trafficking counts, but Hurwitz faces up to 20 years in prison for each count on which he was convicted. He will be sentenced July 13.

This was the second trial for Dr. Hurwitz. In the first, the judge improperly told jurors that they could not consider whether Hurwitz acted in "good faith" when he prescribed the large doses of medicine. So whether he acted in good faith or not, the good doctor is going where drugs are readily available, but prescriptions are never needed.

Hurwitz is a trusting soul who has become a lightening rod for the issue of pain management. He defines pain in a very simple manner: "Ultimately, pain is what the patient says it is..." In other words, as a doctor, he does not put himself in a position to question his patients. If they say they are in pain, he provides the strongest available medications. In large quantities. Repeatedly. If his patient "loses" the prescription, he immediately provides another.

During the four-week retrial, prosecutors argued that Hurwitz was a common drug dealer whose McLean waiting room was filled with sleeping and incoherent patients with track marks on their arms. The prosecution presented 41 witnesses, including 12 former patients who had been convicted of drug crimes.

"He crossed the line from a healer to a dealer," Assistant U.S. Attorney Gene Rossi told the jury in closing arguments April 18.

Dealer as Healer
In an article by New York Times reporter John Tierney, we read of a compelling incident in support of Dr. Hurwitz:

It occurred...during the appearance of a hostile witness, Dr. Robin Hamill-Ruth, one of the experts who was paid by the federal prosecutors to analyze Dr. Hurwitz’s prescriptions for OxyContin and other opioids.

Dr. Hamill-Ruth, who noted that she never prescribed the highest-strength OxyContin tablet, said some of Dr. Hurwitz’s actions were “illegal and immoral” because he prescribed high doses despite warning signs in patient behavior that the opioids were being resold or misused.

Then, during cross-examination by the defense, Dr. Hamill-Ruth was shown records of a patient who had switched to Dr. Hurwitz after being under her care at the University of Virginia Pain Management Center. This patient, Kathleen Lohrey, an occupational therapist living in Charlottesville, Va., complained of migraine headaches so severe that she stayed in bed most days.

Mrs. Lohrey had frequently gone to emergency rooms and had once been taken in handcuffs to a mental-health facility because she was suicidal. In 2001, after five years of headaches and an assortment of doctors, tests, therapies and medicines, she went to Dr. Hamill-Ruth’s clinic and said that the only relief she had ever gotten was by taking Percocet and Vicodin, which contain opioids.

Mrs. Lohrey was informed that the clinic’s philosophy “includes avoidance of all opioids in chronic headache management,” according to the clinic’s record. The clinic offered an injection to anesthetize a nerve in her forehead, but noted that “the patient is not eager to pursue this option.” Mrs. Lohrey was referred to a psychologist and given a prescription for BuSpar, a drug to treat anxiety, not pain.

“You gave her BuSpar and told her to come back in two and a half months?” Richard Sauber, Dr. Hurwitz’s lawyer, asked Dr. Hamill-Ruth. Dr. Hamill-Ruth replied that unfortunately, the clinic was too short-staffed at that point to see Mrs. Lohrey sooner. Under further questioning Dr. Hamill-Ruth said that she was not aware that BuSpar’s side effects included headaches.

Mrs. Lohrey looked elsewhere for help. Having seen Dr. Hurwitz on television _ — “60 Minutes” and other programs had featured his controversial high-dose opioid treatments — she sent him a letter describing her pain and the accompanying nausea and vertigo.

“I have lost hope of retrieving my life as it was,” she wrote, because she could find no doctor to take her seriously. “I currently have a physician who has said that I am psychologically manufacturing my headaches, and that I am addicted to narcotic pain relief. This of course is not the first time that I have been treated as a ‘nut’ or a ‘junkie.’ "

While I normally would lean toward Dr. Hamill-Ruth's approach to pain management - minimizing the use of opiates - she clearly was no help to Mrs. Lohrey and may have exacerbated her condition (by prescribing a medication with a headache side-effect). Her cavalier approach may have been even less helpful than Dr. Hurwitz's.

What is Pain?
There are no objective tests to validate or measure pain. It's a very complicated issue, with extraordinary ramifications in the workers comp system (where Oxycontin is all-too-frequently prescribed - see our prior post here).

As Dr. Hurwitz says, pain is what the patient says it is. Ah, but patients can lie, especially those who are addicts, who will do anything and say anything to secure their next dose. Hurwitz, if nothing else, was phenominally naive. His "good faith" was trumped by his poor judgment. If pain is what the patient says it is, then we'd best have a very close look at the patient. That's where good Dr. Hurwitz morphed into Dr. Feelgood. He was so focused on making the pain go away, he routinely prescribed pain relievers that all-too-quickly become problems unto themselves. And now he pays a price well out of proportion to his crime. In the matter of pain and pain management, there is very little middle ground.

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April 24, 2007


Duke University recently published a study of its own employees, which found a significant link between obesity and the cost of workers compensation. The analysis found that obese workers filed twice the number of workers' compensation claims, had seven times higher medical costs from those claims and lost 13 times more days of work from work injury or work illness than non-obese workers. Although these are alarming numbers, the practical implications for American employers are not entirely clear.

The researchers looked at the relationship between body mass index (BMI) and the rate of workers' compensation claims. Because the BMI takes into account both a person's height and weight, it is considered the most accurate measure of obesity. For Americans, a BMI of 18.5 to 24.9 is considered normal; 25 to 29.9 is considered overweight, and 30 and above is considered obese. (You can calculate your own BMI here.)

The researchers zeroed in on employees with a BMI greater than 40. That is way up on the scale (so to speak). These employees had 11.65 claims per 100 workers, compared with 5.8 claims per 100 in workers within the recommended range. (With these incident rates, Duke may receive a letter from OSHA as a "high frequency" employer. See our blog here.)

Some of the numbers are truly alarming: in terms of average lost days of work, the obese averaged 183.63 per 100 employees (that makes lumberjacks look good!), compared with 14.19 per 100 for those in the recommended range. Yikes! The average medical claims costs per 100 employees were $51,019 for the obese and $7,503 for the non-obese. These are huge differentials.

The disparity between the obese and the "normal" is so large, it raises some questions that the press release simply doesn't address. How many people meeting the definition of obese were included in the study? Were the trends truly "average" - or did a relatively small number of outlier claims magnify the disparity? Perhaps most important, how well does Duke manage its injured workers? How effective is their return to work/stay at work program? Are they able to accommodate injured employees, whether obese or not?

As you would expect from an academic institution, Duke recommends a proactive approach. Truls Ostbye, a professor of community medicine, says the following:

Given the strong link between obesity and workers' compensation costs, maintaining healthy weight is not only important to workers but should also be a high priority for employers. Work-based programs designed to target healthful eating and physical activity should be developed and then evaluated as part of a strategy to make all workplaces healthier and safer.

I'm sure some less enlightened employers might be inclined to come up with a simpler solution: fire anyone who is obese. (These workers may or may not be protected under the Americans with Disabilities Act. It's a gray area that we've looked at in the past.) But realistically, obese people are valuable contributors in many workplaces. It's neither practical nor desirable to exclude them simply on the basis of their size.

Ultimately, the calculus of employment has to take in a number of key factors:
- the work performed
- the motivation of the employee
- the inherent risks in the work
- the employee's willingness to tackle what is ultimately a personal problem

As a company specializing in the control of workers comp costs, Lynch Ryan focuses on the looming challenges for American employers: an aging workforce. undocumented workers with few transferable skills, the lack of conventional health insurance. Obesity certainly belongs on the short list of big challenges. The Duke study may or may not reflect the true cost of obesity to employers across the country. But the alarm has been sounded. Prudent employers will analyze their own situations and take action to mitigate the risks.

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February 28, 2007


Last week, Ezra Klein put the issue of health literacy back on our radar screen with a link to a recent Washington Post article, A Silent Epidemic. The article discusses the complexity of the health care system, and how a huge swath of the population is unprepared to effectively engage that system because of functional illiteracy, language, or culture. The article cites a 1999 report by the American Medical Association finding that most medical forms are written at a graduate school level while the average U.S. adult has eighth-grade level literacy skills. Another study cited painted a bleaker picture:

A study published in the Journal of the American Medical Association in 1995 found that more than 80 percent of patients treated at two of the nation's largest public hospitals could not understand instructions written at the fourth-grade level for the preparation of gastrointestinal X-rays known as an upper GI series. A 1999 study of more than 3,200 Medicare recipients found that one in three native-born patients could not answer a question about normal blood sugar readings even after being given a paper to read that listed the correct answer. And a study of 2,500 elderly patients published last year in the Journal of General Internal Medicine reported that patients with low health literacy were twice as likely to die during a five-year period as those with adequate skills, regardless of age, race or income.

The Joint Commission recently issued a report 65-page report on this issue entitled "What Did the Doctor Say?": Improving Health Literacy to Protect Patient Safety (PDF), but if you'd like a quick executive summary, see recent press release on Low Health Literacy Puts Patients at Risk, which offers a summary of the issue along with some specific recommendations for healthcare providers to address the problem. These include:

  • The sensitization, education and training of clinicians and health care organization leaders and staff regarding health literacy issues and patient-centered communications.
  • The development of patient-friendly navigational aids in health care facilities.
  • The enhanced training and use of interpreters for patients.
  • The re-design of informed consent forms and the informed consent process.
  • The development of insurance enrollment forms and benefits explanations that are "client-centered."
  • The use of established patient communication methods such as "teach back."
  • The expanded adaptation and use of adult learning centers to meet patient health literacy needs.
  • The development of patient self-management skills.
  • Health care organization assessment of the literacy levels and language needs of the communities they serve.
  • The design of public health interventions that are audience-centered and can be communicated in the context of the lives of the target population.
  • The integration of the patient communication priority into emerging physician pay-for-performance programs.
  • The provision of medical liability insurance discounts for physicians who apply patient-centered communication techniques.

Workers compensation implications
This issue has great relevance to employers for the implications that health literacy can have on workers compensation, general disability, and general work force wellness. Good outcomes require good communication. If you want to ensure that your workers get good medical care and return to health and to work as soon as possible, effective communication between the injured worker and the treating physician is essential. And it would appear that if the average reading comprehension is at eighth grade level, few employers are immune. The challenges for employers with a high population of unskilled workers or workers who have or no English are even greater.

First and foremost, employers and managers should understand the risks inherent in their work force. Illiteracy is also an issue that with enormous implications for safety and training. Organizations with a work population that is at high risk from a health literacy perspective should also take particular care to select physicians who have cultural competence. And when a work injury occurs, there may be a need for a health care liaison to help and advocate for the injured worker. For complex cases, this might be a nurse case manager. For simple injuries, employers might assign a workers comp injury coordinator who would follow up with the injured worker frequently during the recovery process, and verify that medical instructions are understood and being followed. A translator might also be part of the care team if the worker has limited English.

Related posts:
When it comes to safety, make sure you speak the same language!
A health literacy crisis looming?
Cultural competence in healthcare and beyond

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February 8, 2007


David Harlow of HealthBlawg is the excellent host of this week's Health Wonk Review and he notes that it is our silver anniversary, the 25th edition. We have a fine host for such a momentous occasion, too - his post is a thing of beauty, he has done a masterful job of providing context for all the entries.

For those of you who may be wondering, the title of David's blog is not a misspelling, but a deliberate fusion of the word "blog" and "law" to arrive at "blawg," the preferred term used by legal bloggers (because "blog" just wasn't an ungainly enough term in its own right?) David is a health care lawyer and consultant who helps various health care providers, vendors and payers to navigate regulatory maze. His unique perspective and expertise is a good addition to our wonky circle - you may want to drop by HealthBlawg now and again to see what's on his mind.

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February 5, 2007


Ted Johnson was a linebacker for the New England Patriots. His specialty was stopping the run. As any viewer of the recent NFL playoffs knows, run stoppers use their heads: first, to think strategically -- where to go in the course of a given play - but then literally: torpedoing head first into the body of an opposing player. That's how you "stop the run." The result? All too often what football practitioners call "dings" and what the rest of us call concussions.

Ted Johnson has three superbowl rings, a broken marriage, a life in tatters and, it appears, a broken brain. At age 34, he has incipient Alzheimers. His persistent depression has led him to abuse medications. The brain damage he suffered in football appears to be permanent, placing him on an inexorable downward path (see our recent blog on permanent brain damage and depression among football players here).

Johnson thinks he knows exactly when the brain damage occurred. In 2002, he suffered a concussion in a game. In middle of the following week, he was given a "no contact" jersey for practice, which legendary coach Bill Belichick converted for unknown reasons to "full contact." In a subsequent drill, Johnson suffered another concussion. He eventually returned to full action, again, suffering countless "dings" over the course of three more seasons in the NFL. We may never know whether the two successive incidents were the cause of his current problems, but there is little question that he has suffered permanent brain damage.

All of which brings us to the issue of sports medicine and the concept of returning to work as quickly as possible.

Modified Duty in the Working World
Workers comp practitioners understand that injured workers recover quicker if they are able to return to the workplace and perform some or all of their pre-injury duties. Treating doctors determine what the employee can and cannot do. Employers match the restrictions with available work. For some employees with extensive restrictions, that might mean performing job functions totally unrelated to the original job. Any work can be performed, as long as it is valuable to the employer and within the capacities of the recovering employee. The important part of modified duty is getting dressed and going to work: the worker feels productive and feels like part of the team.

The whole system falls apart if two conditions are not met: the doctor must accurately specify the restrictions necessitated by the injury, along with appropriate time frames; and the employer must make sure that the employee follows those restrictions carefully, never exceeding the doctor's limits. If any ambiguity or doubt arises, the employer communicates with the doctor to clarify which work activities are acceptable and which are not.

Modified Duty in the NFL?
Now let's return to the violent world of the NFL. There is a lot of money at stake. The pressure to win from week to week is intense. Indeed, winning is the only way the entire league measures performance. As Vince Lombardi said, "If winning isn't everything, why do they keep score?"

With all this focus on winning, it's not surprising that the league itself does not know how to handle concussions. There is no explicit protocal for treatment and no required period for "time away from work." (With high profile cases of brain damage such as Johnson's, maybe that will change.) At the same time, there really is no "light duty" available for injured players. Whenever a player takes the field, it's all full duty - full duty with a vengeance. The opposing side shows no mercy. If they can exploit the injury to their advantage, they will do it. Players whose injuries prevent them from returning to the playing field indefinitely are placed on "injured reserve." Once on this dreaded list, they are ineligible for the remainder of the season.

In Ted Johnson's case, the doctor apparently restricted his activity for a few days following the initial concussion. The trainer set him up for limited duty. For reasons that may never be clear, the coach ordered him to participate in full contact drills. Johnson did not object. As one teammate said of him, "Teddy was one of those guys who...played by the code. He played hurt. He played tough, he played physical and he never let his teammates down. He was there for you every play.’’ Despite all of his recent problems, despite his bitterness directed at his former coach, he talked about returning to the Patriots as an active player just a few months ago.

Ted Johnson has become a symbol of all that is ambiguous about professional football. His precipitous demise reminds us that sports medicine analogies have their limits. The pressures of our working world - the need to get valued employees back to "full duty" as quickly as possible - must always be tempered by the needs of the worker and the time frame of the healing process itself. Life, fortunately, is not a football game. We have many ways to measure success and accomplishment, only one of which involves the final score.

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January 25, 2007


The latest edition of Health Wonk Review, hosted by Jane Hiebert-White at Health Affairs, is up. Jane has done a terrific job of weaving together many disparate threads, all timely and all resonating with interesting implications for risk management, insurance, business and government. There are plenty of viewpoints among the talented participants. Whether your interest is national and state policy, big pharma or fundamental cost controls, this posting is a great place to begin. Health policy rocks! Check it out.

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January 19, 2007


As we head toward the climax of the football season, with just four teams left on the path to the Superbowl, we read in the New York Times (registration required) that the big hits we cheer for may be causing permanent damage.

In November, Andre Waters, a 44 year old former safety for the Philadelphia Eagles, killed himself. He may have been a great safety, but he did not perform his job safely. He was famous for his relentless style and his ferocious hits. Waters thought he might have had as many as 15 concussions during his career. "I just wouldn't say anything. I'd sniff some smelling salts, then go back in there."

For the moment, we will pass on the question whether Waters's death - despite the wilful intent - is work-related and possibly compensable under workers comp.

Chris Nowinski, a former lineman for Harvard and professional wrestler, convinced Waters's family to provide brain tissues for testing. The results revealed the brain of an 85 year old man with early stage Alzheimer's. Nowinski himself suffers from bouts of depression, which he relates directly to his half dozen concussions. "I have maybe a small window of understanding that other people don't," he says, "just because I have certain bad days when my brain doesn't work as well as it does on other days...But I know and understand...because I know it'll probably be fine tomorrow." Of course, Nowinski is only 28 years old. I wonder how he'll feel at 44.

The NFL policy on concussions is what you might label "wishful thinking." They allow players who sustain a concussion to return to play the same day if they appear to have recovered. Despite a concussion, the Jets' Laveranues Coles was available during the playoffs, as is the Colts' Cato June, who suffered a concussion last week and who looks forward to jamming his helmet in the bodies of the New England Patriots this week. The NFL's mild traumatic brain injury committee has published several papers in the journal Neurosurgery defending the practice. They see no signs of neurocognitive decline among the players returning to "work" immediately after being injured. But Nowinski points out that these studies are limited to active players. When you look at players after retirement, the picture is not so rosy.

In a survey of more than 2,500 former players, the Center for the Study of Retired Athletes found that those who had sustained three or more concussions were three times more likely to develop earlier onset of Alzheimer's. A new study finds a similar correlation with depression. That's after just three concussions. The odds against Andre Waters, with his 15 or so concussions, must have been formidable.

Let the Games Begin!
Humankind needs danger-ridden spectacles. We cheer on our gladiators, even as we deride the behemoths from the other city. According to Wikipedia, the Roman gladiators were less prone to killing off the losers than Hollywood has led us to believe. Some died, some lived to fight another day. After three years of toil, the best-performing gladiators of old could retire and live the good life. Not all that different from modern times. But at what price? When the spectators have left the stadium, when the awards have all been handed out, we're left with the walking wounded, the ones who paid the price. It's enough to give us pause, but not for long, as we breathlessly look forward to the Sunday kick off.

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January 12, 2007


Gina Kolata has a provocative article in the New York Times (free registration required), which outlines a very proactive approach to the treatment of strains and sprains. Dr. William Roberts, a sports medicine specialist, says "we want to keep you moving."

Dr. James Weinstein, an orthopedic surgeon, hurt his back while lifting a box. He was in a lot of pain. He could not sit and after lying down, he could barely get up. (Been there, done that.) So, contrary to conventional wisdom, he decided to go out for a run.

"I took an anti-inflammatory, iced up and off I went." When he finished running, he felt "pretty good."

The theory here is that injured tissue heals better if it's under some sort of stress. Beyond that, if the injury is not severe, resting it will probably prolong recovery. In other words, in treating many of the routine strains and sprains that occur in the workplace, the best course of action may be to keep people active - very active.

Conversely, the worst approach may well be the most common: take a steady stream of anti-inflammatory drugs and stay off your feet. One study suggests that taking anti-inflammatories is fine at the onset of injury (and just prior to vigorous exercise). But once the inflammation has set in, the drugs can make matters worse.

Dr. Weinstein's advice is pretty radical: Before exercise, take one anti-inflammatory pill. Ice the area for 20 minutes. Then start your usual exercise or activity - the one that caused the injury! When you finish, ice the injured area again. The anti-inflammatory reduces pain and swelling and forestalls new inflammation from the pending exercise. The icing constricts blood vessels before and after exercise, thereby preventing some of the inflammatory white blood cells from reaching the injured tissue.

As one doctor put it, if the pain is no worse after exercising than it is when the person simply walks, then exercise is the preferred course of action. These doctors are operating with a sense of urgency: "If you take athletes or active people out, they get depressed, they get wacky." The same goes for many disabled workers.

Implications for Workers Comp
This article focuses on athletes in training. While we might like to think of workers as "industrial athletes," that's not always the case. People training on their own are highly motivated. Injured workers run the gamut from highly to marginally motivated. Some are in good physical condition; many are not. People exercise for themselves and their own well being. We work, well, to make a living. In too many instances, not working for a while, or performing only very light duty tasks, are more attractive than speeding back to our regular jobs.

I wonder what a return to work plan from Dr. Weinstein might look like. Perhaps a workday divided like this: some time spent in the original, physically demanding job that caused the injury, with icing before and after. Then some time on lighter duty functions that give the affected body parts a rest. Such a plan may seem far fetched, but what strikes me in this situation is the difficulty in "doing no harm." When the conventional doctor prescribes pills combined with no work or with light duty, he or she may be prolonging disability. It may seem counter-intuitive, but the best treatment plan for the patient immobilized with pain may be to get up and get moving.

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January 3, 2007


If you were spending more time lounging with family and friends on the day after Christmas than reading the paper, you might have missed an important health article in The York Times about the tangle of laws confronting diabetics in the workplace. According to the article, diabetes accounts for nearly 5 percent of the 15,000 annual complaints that the Equal Employment Opportunity Commission hears under the the Americans With Disabilities Act of 1990, trailing only back impairment, orthopedic injuries, and depression as a leading complaint. The American Diabetes Association reports about 100 calls a month about workplace problems related to diabetes.

Despite the many federal and state laws, working diabetics may have little in the way of legal protection. Courts have little consistency in interpreting federal and state discrimination laws, and while some related impairment such as blindness may be obvious and protected, other complications may be less apparent and may not be protected. Job restrictions are often framed as a public safety issue, perhaps understandable when applied to pilots or drivers, but this excuse has been used to bar mechanics and food manufacturers from work that they had been successfully engaged in until they crossed the often invisible line into diabetes. And, according to the article, "Establishing discrimination has become harder since 1999, when the Supreme Court held that if a disability can be corrected with medicine or things like prostheses, it is not necessarily protected."

Employment challenges and costs
The challenges for employers range from broad issues of safety and productivity to mundane daily matters of allocating breaks and allowing food consumption on the job. In terms of health care costs, diabetes is one of "the big three," trailing only heart disease and hypertension. Trending shows that the issue is likely to get worse, not better, and ironically, the matter may be recursive. A recent study linking work stress to the onset of diabetes shows that the work itself may be a contributing factor to the problem.

One reality that employers must face is that this is an issue that will increase in significance with the aging workplace. The most prevalent form of diabetes is Type 2, or the non-insulin dependent variety. Once referred to as "elderly onset," this terminology has largely been dropped as this condition affects more and more people at younger ages. Type 2 diabetes is frequently linked to weight and inactivity. To get the full measure of the scope of the problem, we refer you back a year to Diabetes and Its Awful Toll Quietly Emerge as a Crisis, another article in the NYT that described the worsening epidemic of diabetes in New York, where one person in every eight is now a diabetic and where the prevalence is nearly a third higher than in the nation. Nationwide, the Centers for Disease Control estimates that as many as 21 million Americans are diabetic, and 41 million more are prediabetic, meaning that without an alteration in lifestyle, sugar could elevate to diabetic levels.

It's not an issue that's going to go away. Some employers are tackling the issue head on through their wellness programs, offering employees health screenings, risk assessments, and exercise and weight control programs. The American Diabetes Association offers suggestions for workplace activities geared to prevention. For other resources, see:

New York Times - ongoing coverage of diabetes
Daibetes at Work
Questions and Answers About Diabetes in the Workplace and the Americans with Disabilities Act (ADA)

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December 21, 2006


We recently blogged the beginning of a national dialogue on universal healthcare. Because we focus our attention on the workers comp perspective, we pointed out that any national health plan will come up against - and in some ways run contrary to - the long-established, state-based workers compensation systems.

The National Council on Compensation Insurance (NCCI) recently published a study (PDF) that compares the costs of similar injuries under conventional health insurance and workers comp. Not surprisingly, the costs under comp are higher: higher not just for some injuries, but in literally each of the dozen injury-types examined. The study compares data only for the first three months after the injury. We can assume that the further out you go from the date of the injury, the greater the differential between the two systems. If anything, the three month time frame of this study significantly understates the higher costs of health care in the comp system.

NCCI studied a number of "chronic and complex" injuries (herniated disc, carpal tunnel, bursitis) and "acute and trauma-related" injuries (fractures and cuts). The cost differentials tended to be much higher in the "chronic and complex" injuries, with one exception: the cost of treating broken ankles was 50% higher in the comp system, comparable to the higher costs for the chronic and complex injuries. The costs of treating bursitis, carpal tunnel and herniated discs under workers comp were more than double those of conventional health plans.

Why The Difference?
While details can be found in the full study, we can boil down the higher costs of comp to a few fundamental issues:
: people treated under the comp system go to doctors and physical therapists much more often than those injured away from work.
: People treated under the comp system have many more diagnostic tests run - at higher cost - than those in the general health system
: The prices paid for medical services under comp tend to be higher than those paid under general health insurance (except in states where there are effective fee schedules)

Why do people treat more often in the comp system? Here we move beyond the limited scope of NCCI's study and draw upon our 20+ years in the comp business. When dealing with comp, you need to Keep in mind the underlying condundrum: people injured and out of work are being paid (indemnity) for not working. To be sure, injured workers all want to get better and most look forward to a speedy return to work.

The road back to work may be paved with good intentions, but, alas, it's also full of potholes. If you are at all ambivalent about your job (and many people are), if your injury gives rise to second thoughts about your safety at work, if being inactive while out of work leads to depression (it often does), you might find yourself focusing on the pain and the things you no longer can do. You might succomb to a "disability syndrome," where you no longer think of yourself as a worker, but as a person with a disability. Thinking of yourself as "disabled" is usually not a conscious decision, but more of a sublimal thought process. Perhaps equally important, you might have an employer who sends mixed messages about your returning to the job. Maybe underneath it all, they blame the you for the injury and they don't want you back.

Work-related and Non Work-related Treatment
Here are the key cost drivers that make medical care in the comp system more expensive:
: People out of work have lots of free time to visit doctors and have tests run.
: Because there are never any co-pays or deductibles in the comp system, there are no disincentives for seeking additional treatment. (Even a $15 co-pay begins to hurt after the 5th or 10th visit)
: Physical therapy feels good, so the end point keeps receding into the future. Where health plans arbitrarily cap the number of visits allowed per body part, comp has a harder time imposing any such limits.

Co-pays in the conventional health system serve as a brake on over-utilization. In addition, unless people with non-work-related injuries have disability insurance, they are not being paid during their recovery. They have a lot of incentive for getting back to work as quickly as possible. The incentives in the comp system are not so readily aligned with return to work. Injured workers can "root in" on comp benefits. It can be addicting to keep going back to your doctor and your physical therapist. Especially in "chronic and complex" injuries, the search for permanent solutions can be endless.

Thus comp involves a convergance of potentially contradictory forces: virtually unlimited medical care for your injury with no disincentives to the worker for seeking additional treatment; and the paradoxical position of being paid not to work, which may discourage a quick return to productive employment.

Forever Different
There is a way to align indemnity benefits for workers comp and non-work-related injuries: implement 24 hour coverage. Under this approach, every worker is covered by a disability policy that mirrors the benefits under comp. Lynch Ryan experimented with programs of this type in the mid-1990s. We aligned the indemnity benefits of the disability insurance with those of a given state's workers comp benefits. It was a great concept, but employers were reluctant to buy it. Comp, after all, is a statutory requirement, while disability coverage is optional. And even under a 24 hour program, the co-pays and treatment limits under conventional health insurance will always be less attractive to the consumer than the more open-ended benefits under comp.

Because comp is such a small part of the overall health system (about 3%), planners trying to craft a national health program are unlikely to take into account the comp system's idiosyncrasies. If we as a nation ever figure out how to provide universal health coverage, we might well end up solving one problem and creating a myriad of new problems in the comp system. That would be bad news for employers (and perhaps good news for the consultants who serve them).

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December 15, 2006

Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning. Winston Churchill, November 1942

When it comes to universal health insurance, we'll have to push the Churchill quote back even further. Senator Ron Wyden (D-Oregon) has proposed a new bill that at least brings us to the beginning of the beginning. The bill, entitled "The Healthy Americans Act," guarantees universal, private health insurance for all Americans. (For an introduction to the issue and some useful links, see Managed Care Matters here.) Under the Wyden bill, every family, indeed, every individual, will be assured coverage by any insurer they choose. Limits on coverage for pre-existing conditions will be prohibited. Insurers cannot reject anyone, regardless of their health or genetic dispositions. The Wyden bill will end our employer-based system, replacing it with a completely portable plan that is controlled by the individual. Employers will contribute financially to the plans, but selection will have nothing whatsoever to do with one's employment.

Universal health insurance is an issue of mind-boggling dimensions. We are not going to attempt a comprehensive discussion in one quick blog - especially on a Friday! It's fair to note that any proposed expansion of coverage, any dramatic adjustments to the current (dysfunctional) system, will have to confront a number of conundrums. Here are just a few:
Health Care Rationing: every plan has coverage limits. It's one thing to guarantee coverage to all citizens, it's quite another to figure out what is included in the coverage: Exotic treatment for serious illnesses? Number of chiropractic and physical therapy visits? At home kidney dialysis? Brand name medications?
The dilemma of personal responsibility: how will coverage deal with obesity? Addiction? Unsafe behaviors? (It's one thing to incentivize good behavior. Will insurers try to stigmatize risky behaviors?)
Catastrophic Illness and "End of Life" issues: who makes the decisions? who pays the bills?

The Comp Difference
If you glance through some of the initial reactions to the Wyden bill at Ezra Klein's blog, you'll see that workers comp is marginal to the discussion. Beyond that, it's misunderstood. Comp is and probably always will be different from conventional health care. So no matter how the dialogue on universal health care proceeds, the Insider will try to keep a steady focus on the implications for the workers comp system.

Here are some of the comp issues that impact the implementation of universal health care:
Comp is a state by state program, so any federally mandated health care mandates will rub up against a wide variety of state practices.
Comp premiums are experience based, so employers always have a financial stake in the outcome of a workers comp claim. (Unless they self insure for health insurance, employers generally have no direct financial stake in the outcome of non-work related medical issues.)
In most states. employers can require injured employees to seek treatment at specific occupational medical practices. This may run against the open choices of the Wyden plan.
Workers unable to work collect indemnity, usually about 2/3 of their average weekly wage. So it really matters whether a condition is work related or not.
The goal in workers comp is always the quickest possible return to productive employment. The goal in regular health insurance is a return to optimum health. The two goals are similar, but not necessarily synonomous. There are times when they are incompatible: for example, returning to a job that is inherently unhealthy.
Workers comp never requires co-pays or deductibles from the injured worker. No matter what shape the new universal health coverage takes, there will be significant charges - and incentives for cost savings - for the consumer.

Workers comp will always offer better benefits to injured workers than they can receive under conventional health insurance. Employers will always have to pay for it, with their costs running parallel to their losses. In exchange for providing the (state mandated) coverage under comp, employers will want to maintain at least some management control over the course of treatment for workplace injuries.

While it's far too soon to worry about the impact of universal health insurance on workers comp, it's certainly not too soon to speculate.This is not the end of the discussion, or even the middle. We're at the beginning of the beginning, which is a very interesting place to be.

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December 1, 2006


In March of 2005 we blogged the issue of firing people who smoke. At that time, we wrote about the strict non-smoking policies of Weyco, a company in the health care field. When you're in health care, prohibiting smoking is a logical extension of your fundamental business. But what if you're in the lawn care business? Can you still fire people who smoke off the job?

The Scotts Company did just that. They fired 30 year old Scott (obviously no relation!) Rodrigues of Bourne, Massachusetts, when a drug test came up positive for nicotine. Scott is now suing Scott for violating his privacy and civil rights. The company, a subsidiary of Scotts-Miracle Gro, Inc., instituted a policy early this year forbidding smoking, on or off the job. The policy has only been implemented in the 20 states that apparently allow it (which include Massachusetts). The company is upfront about the requirement. It's posted on the website for potential hires. They perform a post-hire test on all new employees for nicotine. Their stated goal is to promote healthy lifestyles and hold down insurance costs. [IMPORTANT NOTE: They are self-insured for health.]

Rodrigues, a pack a day smoker, says he never indulged in the habit during his few weeks on the job. Ironically, he was trying to quit. Alas, he was chewing nicotine-loaded Nicorette gum on his way to the drug test! (Needless to add, he drove to the test without bothering to ask what they were going to test for.)

Massachusetts has never specifically addressed the issue of smoker's rights. Mr. Rodrigues's attorney, Harvey Schwartz, says that testing for nicotine would be OK if the substance directly affected the work, which it does not. "Being compelled to provide a urine sample and the information that the sample contains is a violation of his privacy, where it has no relation to his job."

Other attorneys believe that the company is on solid ground. They see a legitimate business interest for not hiring smokers. As with so many issues impacting the workplace, the final decision will be up to the courts.

Health Insurance and Comp
The Insider is especially intrigued by the self-insurance angle. The Scott Company recognizes the well-documented relationship between smoking and myriad health problems. They assume that by not hiring smokers, the cost of their workers's health insurance will go down. That's true up to a point. While they can try to dictate the behavior of their employees, they cannot impose their standards on the employee's family members. A non-smoking employee might well go home to a house full of second-hand smoke. Could you be fired for being married to a smoker?

Beyond that, there is the issue of exposure to the "Miracle-Gro" chemicals that the company spreads on lawns. If an employee were to develop lung cancer, and if the employee demonstrates that he does not smoke (using his clean nicotine tests as proof), he might have a clear path to demonstrating that his illness is work-related and thus compensable under workers comp. That would surely be an unintended consequence of a non-smoking policy.

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November 22, 2006


Thanksgiving is upon us and our thoughts begin to drift away from the workplace, but a compelling article in the New York Times by health writer Gina Kolata brings us abruptly back to work. The article cites a new study, published in the Journal of the American Medical Association, that raises serious questions about the reliance on surgery for treating herniated discs. The basic findings are startling:

People with ruptured disks in their lower backs usually recover whether or not they have surgery. Surgery appeared to relieve pain more quickly (emphasis added) but most people recovered eventually and that there was no harm in waiting. Patients who had surgery often reported immediate relief. But by three to six months, patients in both groups reported marked improvement. Doctors once feared that waiting would aggravate the condition; this study shows that waiting does not have any negative effect on the eventual outcome.

Sciatica occurs when the soft gel-like material inside a spinal disk protrudes through the outer lining of the disk like a bubble on a bicycle tire. That compresses and inflames a nerve root that forms the sciatic nerve. Doctors often associate the condition with a traumatic incident - lifting - which often enough occurs at work, making the condition work-related. (The predisposition for sciatica may well be genetic - it tends to run in families. But given a work-related cause, comp will pay the bills.)

Ruptured discs are associated with excrutiating pain. (For a very personal perspective, see our posting from a year ago.) The pain can feel like a burning fork in the buttocks. Or it can be a searing pain down the back of a leg. It can be so intense that some people cannot walk. Some cannot sit. In my case, I could barely crawl.

Surgery is certainly a viable option. The operation is quick and generally effective. It involves gently pushing the compressed nerve root away from the herniated disk. Then the surgeon makes an incision in the disk and deflates it. The nerve returns to its normal position, the inflammation goes away, and the pain often disappears.

So in the world of workers comp, where ruptured discs are common, what should we do: perform surgery or wait it out?

The Comp Perspective on Pain
Ultimately, the choice of whether to have surgery is up to the injured employee. And this difficult decision comes down to two fundamental issues: pain and time. In our frequent postings on pharmacology, we note the abundant reliance on narcotics in the workers comp system. People naturally avoid pain and are quick to take medications that make them feel better - even though the medications themselves can have a debilitating impact on recovery.

Injured workers experiencing pain have to perform a difficult calculus: how long can I tolerate the pain? Is it worthwhile to risk surgery, to make the pain go away sooner? Is it worth the risk to stifle the pain through powerful medications, under the assumptions that (1) the pain will eventually go away and (2) I will not develop any problems with the medications themselves?

The Comp Perspective on Time
Then there is the time issue: in the comp system, injured workers get paid to wait. They collect indemnity (usually 2/3 of their average weekly wage, tax free) for the duration of the period where they are unable to work. (We can assume that few workers with severe back pain will be able to take on a modified duty job at work.) So avoiding surgery might actually prolong the time away from work.

There is one other important factor involving time: during a prolonged period of disability - during the wait to get better - injured workers can get used to the idea of being paid not to work. Indeed, indemnity appears to offer a perverse incentive: as long as the pain lasts, I get paid not to work. As soon as the pain goes away, indemnity checks stop and I have to go back to work. For people who don't love their jobs (or their supervisors), the seduction of the indemnity check can be very powerful.

Cost Benefit Analysis
The researchers involved in this study are not concerned about workers comp. Nonetheless, they are interested in the cost effectiveness of surgery compared with waiting. Although the complete analysis has not been published, Dr. Anna N. A. Tosteson of Dartmouth, an author of the study, said that Medicare paid a total of $5,425 for the operation and that private insurers might pay three to four times that. But that's just the cost of surgery. What about the impact of indemnity? For an average worker receiving an indemnity check of $600 a week, $10,000 (estimated cost of the surgery) equates to four months of indemnity.

So from a policy perspective, should insurance carriers start to push back from the surgery option? I don't think so. Given the risk of prolonged disability when people are being paid not to work, given the heavy reliance on narcotics for dealing with pain in the comp system, surgery might still be the preferred option. In comp, time is of the essence. Because surgery speeds the return to work, it might well be the preferred path to recovery.

Talking Turkey
Enough talk about back injuries. Let's talk real turkeys instead. Here's wishing all our readers a wonderful and safe holiday.

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November 8, 2006


Cover-All, Inc, bills itself as the nation’s largest full service flooring installation and refinishing contractor. They have over 1,500 employees in 30 states. Here's how they describe themselves: We're the people who install floors for Home Depot in 17 states. The Home Depot utilizes Cover-All's residential installation services for all trades exclusively in over 300 stores across the country. Our customers, like Carpet One, JPS Surface Solutions, the Home Depot and so many others understand the value of partnering with Cover-All. They realize the relationship can provide an opportunity to grow their business beyond the barriers of their previously limited labor capabilities.

Here's how Deputy District Attorney Michael Gara describes them: they're crooks. Three of the company's owners have been indicted for felony fraud and conspiracy. The charges each bring a maximum sentence of five years in jail. The owners are currently under $100,000 bail.

The indictment claims that Cover-All Inc. underreported their payroll to the State Compensation Insurance Fund by nearly $32 million between September 2001 and April 2006, saving the company $10.98 million in premiums. That's a lot of payroll and a lot of premium. If you do the math, here's what you find:
: On average, they avoided comp premiums on over a hundred employees per year for five years
: They avoided about $2m per year in premiums

The scheme was uncovered when insurance fund auditors noticed the company's reported payroll under its workers' compensation insurance policy differed from what the company was reporting to the state's Employment Development Department, which collects payroll taxes and administers unemployment benefits.
[Sidebar note: With millions in annual comp premium, Cover-All must have been audited each year. Did they have two sets of books, one for workers comp and one for unemployment insurance? How did they manage to get away with the fraud for five full years?]

Why take the chance?
Why would a reputable and growing company take this kind of risk? Keep in mind that this alleged fraud occurred during the period when California had the highest rates (by far) for workers comp insurance in the nation. Based on the above numbers, and assuming that the premium calculation involved the two basic class codes for carpet and tile installers (Scopes classes #5478 & 5348), we estimate the manual rate for installers in California at about $30 per $100 of payroll. That is three to four times higher than the rates you typically find in other states. Is it far fetched to imagine the frustration of Cover-All's owners, paying so much more for workers' comp in California than they were paying in all the other states where they operated? Did they, as a result, hatch a simplistic plan to under-report the payroll, thereby achieving a level of premium relief unavailable to other employers in the state?

If you review the Cover-All website, you see a number of good things. They appear to hire installers as employees (as opposed to calling them "independent contractors"). They have a robust benefit package, including health and dental, 401K and other goodies. They have forged a partnership with one of the country's largest home improvement retailers. They appear to be well on their way to achieving their goal of becoming the nation's largest flooring service.

So why risk it all in a rather primitive scheme to avoid insurance premiums? We may never know the answer. But I suspect that the sheer outrage of the cost of comp in California drove them over the edge. It's ironic that the indictment comes at a time when California has finally achieved meaningful reform of their comp system. Insurance rates have come down dramatically and are likely to continue to do so. Unfortunately for Cover-All, the owners's view of the emerging good times may soon be obscurred by some inconveniently placed iron bars.

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October 11, 2006


In an effort to control skyrocketing medical costs, many employers are now providing on-site access to primary medical care. A recent article on workplace medical clinics in the Orlando Sentinel discusses the national trend and how it is in evidence in central Florida.

"According to a recent survey by the global consulting firm Watson Wyatt, 22 percent of large companies -- those with 2,000 workers or more -- have health clinics for their employees either at or near the workplace. The same survey found that, based on current plans, the portion of large companies with on-site clinics will rise to 27 percent by the end of next year."

Typically, on-site clinics have been confined to both occupational medicine - treating and preventing work injuries - and to larger employers. That may be changing. Today, some health service providers are targeting smaller employers, with a half day on-site medical services provided at a rate of about a half day per every 150 employees.

Employers that implement clinics are generally motivated by the potential to manage costs, but as the number of uninsured workers continues to increase and the working population continues to age, keeping the work force well may become an increasingly important issue. On-site clinics can also enhance productivity since since employees don't have to take the time from work for off-site appointments. In addition, medical care can be a powerful benefit and differentiator for employers, bolstering both recruitment and retention.

For more on this topic, also see The Doc Is In-House, an article by Susan J. Wells in SHRM's April 2006 HR Magazine. Among other issues, the article discusses the potential cost savings:

" ...according to a study published in the December 2005 issue of the American Journal of Preventive Medicine, employers can see a return of $3 to $6 for each dollar spent over two to five years on workplace health program strategies, which include medical screenings, financial perks for participation in health programs, health education classes, healthier food in the cafeteria and on-site clinics."

But the real savings may not just in the cost per care, but in reduced disability:

"That type of program design also proved effective for Power Flame Inc., a 187-employee manufacturer of gas and oil burners in Parsons, Kan. Before adopting on-site care, Power Flame's health insurance costs were about double the national average and were rising at a double-digit rate annually, chiefly because of catastrophic claims.
"An analysis of these claims showed that each one was related to lifestyle choices and preceded by warning signs," says Walter Keener, SPHR, the company's director of human resources. "The only long-term, effective way of reducing health costs was healthier employees."

The implications for workers comp are many. Medical cost containment is the most obvious. A generally healthier work force means fewer injuries and faster recovery for injuries that do occur. Immediacy and proximity of care are also greatly beneficial to treat any on-the-job injuries. And the advantage of having a doctor who understands the workplace and the nature of work is also invaluable in terms of establishing effective return-to-work programs. Of course, cornerstones of any in-house programs must be quality and integrity The term "company doc" has historically had a very bad associations as being too aligned with the employer's and not the employee's interest.

We'll keep our eye out for more stories on this topic. It would seem likely that we will see an upsurge in "doc in a box" type clinic arrangements being made available to smaller employers.

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October 3, 2006


If the term "medical tourism" hasn't crossed you radar screen yet, it will soon because tens of thousands of your fellow citizens are now traveling to India, Malaysia, Thailand, and Turkey to have surgery performed at bargain basement prices. There are even medical tourism agencies cropping up to help prospective travelers match the right destination with their medical needs and arrange all the travel details.

Why would people stray so far from home risking all the vagaries of a foreign medical and legal system for a medical procedures available within a few mile radius of home? Cost is the obvious reason. A hip replacement that would cost $40,000 here might cost under $6,000 in India. Rotator cuff repair would cost less than a tenth the price, or about $3,700 versus $40,000. Those are numbers that would make you think twice.

Faced with medical costs that have skyrocketed year after year, many employers and insurers are looking at those numbers and finding them attractive, too. To curb costs, Blue Ridge Paper in Canton, N.C., recently made plans to send paper mill technician Carl Garrett to India for gall bladder and shoulder surgery - they even offered Garrett 25 percent of the savings, a deal he found appealing. That is, until United Steelworkers interceded and put a halt to the plans. USW President Leo Gerard had this to say in a letter to Congress.

Our members, along with thousands of unrepresented workers, are now being confronted with proposals to literally export themselves to have certain “expensive” medical procedures provided in India.

With companies now proposing to send their own American employees abroad for less expensive health care services, there can be no doubt that the U.S. health system is in immediate need of massive reform.

The right to safe, secure and dependable health care in one’s own country should not be surrendered for any reason, certainly not to fatten the profit margins of corporate investors.

Right now, much of the surgery involves elective procedures such as dentistry and plastic surgery, but demand is rapidly accelerating. How long before employers and insurers are looking to have injured workers fly to Phuket to get a rotator cuff repaired?

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October 2, 2006


It's only Monday, so it might be too early in the week for this. But the Insider is committed to keeping our readers informed on the latest developments in risk and human resource management. Today, we confront the physical, emotional and legal time bomb of BlackBerry addiction.

We first tracked the health implications of using tiny keyboards in our "BlackBerry Thumb" posting in February of last year. Well, repetitive motion is certainly a potential problem, but that may prove to be the least of the worries for employers who hand out these devices. We now find that the seductive technology embodied in PDAs is leading workers into hospitals, mental health facilities and courtrooms."Crackberry" devices are addictive. Workers find themselves unable to put the little contraptions down. By connecting workers 24/7 to their jobs, employers suddenly find themselves on the hook for unanticipated liabilities.

The Independent out of Great Britain tells us of Nada Kakabadse (now that's a splendid name!), a professor at England's Northampton Business School. The good professor warns British employers that they could face multi-million-pound legal actions from BlackBerry-addicted staff on a similar scale as class law-suits taken against tobacco companies. That's a pretty big scale, indeed! Research by the University of Northampton has revealed that one-third of BlackBerry users showed signs of addictive behaviour similar to an alcoholic being unable to pass a pub without a drink. "Just one more email for the road..."

Textbook symptoms
The report found that some BlackBerry users displayed textbook addictive symptoms - denial, withdrawal and antisocial behaviour - and that time with their families was being taken up with BlackBerry-checking, even at the dinner table.

As a result, Professor Kakabadse notes that employers are being sued for failing in their duty of care to staff and in following health and safety guidelines. In one case in the US, a female business consultant claimed that her marriage fell apart because she was constantly checking messages. She ended up losing custody of her children and sued her employer for damages. [Note to our lawyer readers: I have no citations for this and the subsequent cases.]

Written Policies
"Enlightened companies that issue BlackBerrys as standard like pen and paper should also have policies on how to use them, so that people can use technology in a way that doesn't have an addictive side," said Professor Kakabadse. So perhaps your written policy should require that the device be turned off during dinner, during any interactions with spouse and children, during love making for sure and at bedtime. [Just how such a policy would be enforced is beyond the scope of this posting.] One Chicago hotel has even offered to lock up your Blackberry, so you can enjoy your stay unencumbered and unconnected.

The Independent article cites another recent case, where a woman sued after putting cleaning fluid on her baby's nappy instead of baby oil because she was distracted by her BlackBerry. [We sympathize with this poor working mom for making such a common mistake in the nursery. No question, it's her employer's fault.]

One study reveals that nine out of every 10 users have a compulsive need to check for messages and that nearly half experience long-term negative consequences associated with carrying a BlackBerry. A survey of business workers by researchers at the Sloan School of Management at Massachusetts Institute of Technology in the US found that employees were constantly tired because they were waking up in the middle of the night to check or send messages. One interviewee likened the sense of potential gain from staying in touch with work to "pulling the lever of a slot machine".

24/7 = Always at Work
A professor at Rutgers's School of Business, Gayle Porter, predicts in a soon-to-be-published study that disgruntled workers who feel they are unable to turn off their personal digital assistants and mobile telephones will begin suing their employers for their technology addictions -- and that such lawsuits could potentially cost corporate America hundreds of millions of dollars.

"If companies develop a culture in which people are expected to be available 24 hours a day, then they should be prepared for the physical and psychological consequences," Mrs. Porter said. "Addicts exhibit extreme behavior and have no control over themselves. So a corporation handing someone a BlackBerry on his first day of work could be seen as enabling, even accelerating, a serious addiction to technology."

Be Forewarned
The trends are clear, the dangers incontrovertible. Uncontrolled use of Blackberry-type devices can lead to physical, mental and social debilitation. Someone is bound to announce the development of a new 12 step program for Crackberry addicts. The road to recovery will begin with the assertion that "I am an addict." Meanwhile, employers should develop comprehensive written warnings to accompany the provision of any PDAs. These guidelines should set clear parameters for appropriate Blackberry use. With half the marriages in this country already ending in divorce, employers need to avoid any possible inference that work - and work-provided equipment - is a significant cause of marital discord. In the ever-expanding definition of risk management, this is one area where increased vigilance - and a few disclaimers - are definitely in order.

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September 28, 2006


We recently blogged a ruling in the U. S. 6th District Court, in which the judges determined that morbid obesity is generally not a disability. The judges’s thinking in this particular case appears to have powerful implications for the ADA and for all employers with obese workers who have difficulty performing their jobs. HR professionals might be tempted to assume that morbid obesity is not a disability protected by the ADA. So if severely overweight employees cannot handle the job, you just terminate them, right? Not so fast!

Christopher Cornell examines some of the ramifications in the current issue of HR Executive (free registration required). [In the interests of full disclosure, the Insider is quoted in the article.]

The 6th district court assertion that most morbid obesity does not entail a disability was contained in a single footnote, written by a single justice. It would take a ruling from the U. S. Supreme Court (or an act of Congress) to have a definitive answer as to whether morbid obesity is covered by the ADA. Meanwhile, it would be foolish and counter-productive to incorporate the 6th district’s ruling into basic HR policies.

The Accommodation Process
Why does it matter? The EEOC brought the action against Watkins Motor Lines on behalf of Stephen Grindle, a 400 pound driver/dock worker. The EEOC appears to believe that morbid obesity is inherently a disability. If it is, employers would be required to “reasonably accommodate” obese workers through the ADA’s formal accommodation process. That means going through a specific series of steps to determine which essential job functions need accommodation and the degree to which the accommodations can be “reasonably” accomplished without “undue hardship” for the employer. If the employer cannot accommodate the worker in the current job, they are required to offer the employee any open and available positions for which the worker is qualified (at the same or a lower rate of pay). Only after going through these additional steps – and documenting each action - can the employer terminate a morbidly obese (“disabled”) employee.

If, on the other hand, morbid obesity is not a disability, employers would not have to go through this step by step accommodation process and document the results. If employees are unable to perform the job’s essential functions, you can just let them go, which is what Watkins Motor Lines did ten years ago.

To Accommodate or Not to Accommodate, That is the Question
So what should managers do? Despite the 6th district ruling, we believe that managers should assume that morbid obesity is still a disability and approach any situations involving obese employees through a formal accommodation process. First of all, some courts are likely to view morbid obesity as a disability. So if you terminate someone without going through the formal process and end up in one of these courts, you will lose. In the world of the ADA, process trumps results. In other words, even if your ultimate decision to terminate is found to be valid, you can lose your case simply for failing to follow the accommodation process.

In addition, accommodation is usually the right thing to do. You hired the individual because he or she had the needed skills for the job. The worker is able to handle some if not most of the job functions. In all likelihood, you value the contribution that the employee makes toward the success of your organization. It’s worth an effort to keep the person on board.

Working with Obesity
Employers have the right to define the nature and the essential functions of a job. So employers should keep their eyes on those essential functions. Make sure employees - disabled or not – can do the work safely. If you’re not sure, require the employee to undergo a “fitness for duty” functional capacity exam at a reputable occupational health provider. If employees cannot do the job, try to accommodate them: identify the functions they can handle; explore “off-loading” the activities they cannot perform safely to other workers. If that proves impossible – if the employee can no longer perform the essential job functions – then explore any open and vacant positions within the company for which the individual is qualified. (It’s easier and less risky to move an incumbent into a vacant position than to hire a stranger.) If there are no such positions available and none likely to become available in the near future, the employee can be (safely) terminated.

It’s important to note that even though Watkins Motor Lines eventually prevailed in their decision to terminate Grindle, it took them ten years and countless hours of work to do it. I suspect that if they had simply gone through the formal accommodation process back in 1995, they would have been much better off. Even if at the end of the process they had still decided to terminate Grindle, they would have demonstrated a good faith effort to acknowledge his physical issues and to work with him. In retrospect, that would have been cheaper, more efficient and fairer – in all, a solid management approach to what is fast becoming a widespread problem in the workplace.

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July 28, 2006


Tim Gee at Medical Connectivity Consulting is hosting Health Wonk Review #12 - and he has a baker's dozen of meaty posts from around the health policy blogosphere. Well worth a visit!

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July 26, 2006


Pandemics seem to be the topic of the month. Risk Management's July issue contains an article by Darrell Knapp on Avian Flu: Bracing for a Pandemic, which analyzes the potential effects of a pandemic on various lines of insurance, along with action steps that insurers should take to mitigate risk. Essentially, the article states that a pandemic would strain but not break the system, although there could be an uptick in the numbers of failed insurers, particularly those specializing in lines most directly affected.

The Society of Actuaries assesses the state of readiness for handling a pandemic in a series of articles and white papers. And in the May issue of HR Magazine, Nancy Hatch Woodward discusses discusses the effects that a pandemic could have on the workplace.

"According to HHS, employers should reasonably expect an absenteeism rate of up to 40 percent in the middle of a severe pandemic as employees fall ill or die, leave work to care for family members, deal with grief from the loss of loved ones, look after their children (if schools close) or are just too scared to come to work.
In addition, your employees could be placed in quarantine. Or the transportation systems they count on to get to work may shut down. “The absenteeism rate will include everyone—including your leadership,” warns Donaghy.
Companies must decide the minimum number of people they will need to keep their operations running, says Dr. Myles Druckman, vice president of medical assistance for International SOS in Trevose, Pa., which provides medical assistance, international health care and security services. Some employers may even want to consider closing down during the pandemic. But most companies don’t have that luxury."

Compensability issues
Little of the literature specifically addresses workers compensation risks. If a worker catches the flu from a coworker, would that be a compensable illness? Not likely, since "ordinary diseases of life" are not generally compensable, unless the nature of a worker's specific responsibilities increased the exposure, and the illness can be determined as arising "out of and in the course of employment" such as in the case of a health care worker. In an article in Insurance Journal, Robert Meder also points to workers stationed overseas and traveling workers as being potential points of exposure. Knapp's article also notes that there will be an average of " ... three weeks of work missed by all survivors, whether they have been infected or not, due to a combination of illness, caring for ill individuals and voluntary or involuntary quarantine," and suggests that the increased number of employees working from home would pose a challenge for compensability determinations.

Most authors agree on two things: with a pandemic, it is not a question of "if" but "when" and - insurers and employers alike - we should all have better emergency plans in place. Instead of tucking a murder mystery or the latest Stephen King book in your suitcase for vacation reading, catch up on the latest pandemic literature - truth is likely to be scarier than fiction.

More on the topic:
Flu Wiki
United we Fall: Preparing for the Next Pandemic
Avian Flu: Unprepared for What Isn't Coming?
Preparing for Avian Flu

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July 24, 2006


It's Monday morning, as good time as any for thinking about drugs. NCCI has issued an interim update of its comprehensive study (PDF) of drugs in the workers comp system. They find that drugs as a percentage of total costs continue to rise, but at a slightly slower rate. There appears to be a slow but steady uptick in the learning curve, as the system shifts to greater reliance on generic drugs, which are now prescribed 89 per cent of the time. Because it covers only through 2003, the study still reflects a heavy reliance on Vioxx (it does slip to #6 overall, down from its prior position as #2) and on oxycontin (holding its own at #4). With two anti-inflammatories leaving the market (Vioxx and Bextra), Celebrex should strengthen its #1 position in the forthcoming studies, despite some concerns about the side effects.

In trying to figure out why drugs are such a big part of the costs in Florida, NCCI discovered that the number one drug is Oxycontin - an expensive (and addictive) pain killer. Party time for the sales reps in Florida! How about a trip to...Disneyworld?

Our colleague Joe Paduda has done his own study of drugs in the comp system. His findings appear to align with NCCI's, with the addition of some problems emerging with third party payers.

Snake Oil?
It's not always easy to grasp the implications of NCCI's study. The numbers are just so large. They are the sum total of millions of prescription decisions, made by thousands of doctors all across the country. Alex Berenson in the New York Times zeroes in on one doctor, a psychiatrist, who became so fond of Xyrem, a drug developed for the treatment of narcolepsy, that he morphed into a full time spokesman ("salesman") for the manufacturer, Jazz Pharmaceuticals. Dr. Peter Gleason was recently busted for recommending the drug for a wide range of "off label" uses, including the treatment of depression. The active ingredient in Xyrem is gamma hydroxybutyrate, or GHB, an illegal street drug with a history of use in date rape. Dr. Gleason likes the drug because it knocks you out. Ditto for the date rapers.

In a news release about Dr. Gleason's indictment, the FBI compared the doctor to a "carnival snake-oil salesmen." (Can you spell "defamation"?) He abandoned his private practice to become a nationwide spokesman for the $600 per month drug, even coaching doctors to leave out the "disease diagnosis" line on the prescriptions.

But is it a crime? The article quotes noted civil liberties lawyer Harvey Silverglate: "What they are doing is criminalizing conduct that is not clearly criminal." Indeed, doctors do have the right to recommend "off label" uses for drugs. Of course, they are supposed to base such recommendations on peer-reviewed research, as opposed to the anecdotal evidence that Gleason brings to the table. When Gleason says that the drug is "safer than table salt" and "safe for children," he has probably crossed an ethical line. The question is whether he has committed a crime.

Meanwhile, Gleason's annual earnings in excess of $100,000 from Jazz have abruptly dried up. The company has severed ties with him. In a most intriguing reversal, it appears that Gleason refused to provide testimony against Jazz, but Jazz is cooperating with the investigation and may well be preparing to testify against the good doctor.

From this vantage point, it appears that Gleason's overwhelming faith in the drug may prove his downfall. No one need question the sincerity of his believe in Xyrem. It's just what he was selling (a schedule III controlled substance) and the way he was selling it, as if it were a mocha colored syrup, in a clear bottle with a cork stopper. "Just rub a bit on and all your troubles go away..."

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July 13, 2006


Jason Shafrin at Healthcare Economist is hosting the eleventh edition of Health Wonk Review. Do you know what HSA, RHIO, and CDHC stand for? If not, you can join the ranks of the enlightened by reading today's issue - Health Wonk Review is a good way to keep current on trends and emerging issues in health care and health care policy.

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June 29, 2006


Let's say someone offers to pay you to do some research about their product. You set up a non-profit research entity and deposit their hefty check. What would your goal be: to prove the product ineffective? to discourage people from using it? Not likely. But how would you determine the extent to which the source of your funds contaminates the research? Would it help clarify matters if the donor gave you some stock in the company and paid you to educate other doctors about their product?

If you like murky waters, you'll love big pharma's contributions to the charitable trusts set up by docs around the country. In a fascinating article by New York Times reporter Reed Abelson (registration required), we read that charities established by doctors are the recipients of money to fund research: not research in the abstract, but research pertaining to the use of products manufactured by the donors themselves. This arrangement, while not inherently illegal, is loaded with potential conflicts of interest. Call it business as usual in the world of medicine.

When Charity and Profits Intersect
Abelson writes about Dr. Maria Rosa Costanzo, who made a presentation to cardiologists at a conference in March. She touted a $14,000 blood filtering device, which her research demonstrated was more effective (albeit more expensive) than intravenous diuretic drugs at removing excess fluid from patients with heart failure.

Although outside researchers raised questions about the study's conclusions, the doctor was convinced. "We believe these results challenge current medical practice and recommendations." She predicted many patients might benefit. Dr. Costanzo did disclose to the audience that she was a paid consultant with stock in the device's maker, a Minnesota company called CHF Solutions. But she omitted another potentially important detail: CHF Solutions was also one of the largest donors to the nonprofit research foundation that had overseen the study. The company contributed about $180,000 in 2004.

In addition, Dr. Costanzo did not bother informing her listeners that the nonprofit entity conducting the research, the Midwest Heart Foundation, was in turn an arm of the for-profit medical group outside of Chicago where Dr. Costanzo and more than 50 of her fellow doctors treat heart patients -- in many cases using products and drugs made by CHF Solutions and other big donors to their charity. Although the CHF Solutions filter has not yet won wide acceptance across the country, for physicians at Dr. Costanzo's medical group, it is the device of choice.

If you check out the foundation's website, you'll see that they promote their ability to "offer our patients access to the most progressive cardiovascular treatments and preventative strategies, giving them the same opportunities as patients at university hospitals." In other words, patients can access the latest technologies, even before they have been formally approved by the FDA. As good as this sounds, I would be surprised if the doctors disclose their financial interests to their patients. These patients might have second thoughts if they knew that the research is potentially biased from the outset.

Contaminated Thinking?
The more the Insider probes the decision-making process in medicine, the more questions we have. Why do doctors prescribe some drugs more than others? Why has oxycontin proved so popular among doctors treating workplace injuries? Why do drug companies hire ex-cheerleaders (with no background in science) to sell drugs to doctors? Do doctors think about the potential conflict between their own financial interests and the products they recommend to their patients? The ultimate question, of course, is whether patients are getting the best possible treatment, with the most effective medications, or whether the interests of the patients are subordinated to the financial interests of the doctors.

There are no easy answers. We like to think of charity and good medicine as matters of the heart. But in the world of American medical care, when you scan the doctor's chest, you just might see something that looks less like a heart and more like a wallet.

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June 29, 2006


Emily Goodson and Jack Mason at HealthNex have done a great job hosting Health Wonk Review #10, which is now up and ready for your perusal. HealthNex, if you are not familiar with it, is a blog " ... by IBMers and Friends on Networked, Patient-Centric Healthcare," covering such interesting topics as electronic health records, health information exchange, clinical transformation, biobanking, etc.

As with past issues, HWR is a great way to sample the creme de la creme of the health-care policy blogs. The cost of health care is of increasing importance to those of us who are interested in workers comp. When I first began working in this field, medical expenditures were about 45 percent of the claims dollar, and now medical costs represent a whopping 57 percent of total claim costs. Despite this, we don't have a lot of clout in the overall health-care marketplace. Workers compensation represents a fairly modest part of the health care market - somewhere around 2 percent, according to our friend Joe Paduda. Our collective fate is inextricably linked to the larger health-care market so the trends certainly do bear watching.

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June 15, 2006


We're honored to host Health Wonk Review #9 here at Workers' Comp Insider. Health wonkery is part of a long, fine tradition of social commentary on medicine, medical providers, and health care delivery systems. Witness the entertaining online exhibit from the University of Virginia Health System, Very Ill: The Many Faces of Medical Caricature in Nineteenth-Century England & France, which demonstrates that pointed social commentary on both the suffering masses and the physicians who treat them has been a popular topic through the ages.

Satire by George Cruikshank, James Gillray, Thomas Rowlandson and many others show us that health care and politics have long been intertwined, and a favored subject of complaint with the teeming masses. Since the early days of medicine, medical providers have been experimenting with various payment and compensation schemes; complaints about the high cost of medicine are nothing new.

Today, blogs are the favored podium for those who would comment on the state of medicine, medical costs, and health care systems. Blogs afford the widespread dissemination of ideas from providers, critics, and policy makers alike. And thus, following in this fine tradition, I give you Health Wonk Review #9:

Roy Poses of Health Care Renewal submits the post Resistant Strain Indeed: Research Chief Stirs Up Merck, which discusses the recent shake up in the leadership of the firm's drug development research team, posing the question as to whether the shake-up will help or hurt. Although the new bosses seem put out about the supposed inefficiency of Merck scientists, particularly at all the efforts they spent to "check and recheck" their work, the Vioxx affair would suggest that the problems at Merck were not due to inefficiency or excessive effort spent looking for erroneous work.

Marcus Newberry of Fixing Healthcare explores the medicalization of prevention, and expresses concern about the danger of bringing prevention under the medical care system. In his post The Lifestyle Chronicles - Prevention, Where Fore Art Thou?", he suggests that prevention is a separate branch of health care with a different mind-set, different goals, different procedures and tools from medical care.

Fard Johnmar of Envisioning 2.0 has launched a new series exploring the relationship between the FDA and the pharmaceutical industry. In the latest post in this series, he examines whether the FDA is a "paper tiger" or "overzealous regulator." (Access his entire series here).

David Williams of Health Business Blog posts about OPB or "Other post employment benefits," a seemingly minor accounting rule change that may hasten the demise of employer-funded retirement health benefits, in turn increasing the burden on Medicare.

Joe Paduda of Managed Care Matters reports on more reimbursement nastiness going on in California. Wellpoint has decided to pay docs less for performing procedures in hospitals than in outpatient settings; hospitals are crying foul, arguing that health plans shouldn't be encouraging physicians to consider cost when planning treatment. Joe argues that it is well-known that hospitals use over-payments by private insurers to cover indigent care costs, a practice that is unfair to health plans and employers. He calls for both parties to stop acting like children and focus on the real issue - adequate coverage for the uninsured and universal access.

Jason Shafrin of Healthcare Economist discusses the Deficit Reduction Act (DRA) and the ways that it will contribute to reshaping Medicaid. Since the President signed the DRA in February of this year, states have been afforded more freedom in designing their Medicaid programs. His post gives a variety of examples of how some states decided to overhaul their Medicaid system under the auspice of the DRA.

Henry Stern of InsureBlog reports that Vermont is the latest state to take a whack at universal health coverage. Check out his surprising take on this attempt in his post on the big doin's in the Green Mountain State.

Rita Schwab of MSSPNexus Blog profiles Kay Brown a Medical Staff Service Professional (MSSP) from Florida in her fourth in an ongoing series of interviews with interesting people in health care. Ms. Brown assisted her hospital in dealing with Hurricane Francis in 2004. Her interesting perspective on lessons learned during the crisis are most timely with this year's hurricane season bearing down on Florida as we post.

Rod Ward of Informaticopia reports in from on the road. He's been participating in blogging from the 9th International Congress on Nursing Informatics in Seoul Korea that ran from June 11-14. The Congress offered eclectic news and views on health informatics and elearning; the blog offers a day-by-day window into the activities at the conference through posts and podcasts.

And finally, here at Workers Comp Insider, my colleague Jon Coppelman explores the intersection of the ADA and OSHA standards, which are in potential conflict with the new diagnosis of intermittent explosive disorder. While managers may feel some pressure to accommodate employees with violent tempers, Jon advises employers to concentrate on the need for maintaining a safe workplace. In most cases, that means firing violent employees, regardless of their medically-based diagnosis.

Visit Health Wonk Review to review archives of past editions or to keep track of upcoming schedules and hosts. Or, if you prefer, sign up to be notified when new editions are posted.

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June 2, 2006


Health Wonk Review #8 - the trailblazing issue - is posted at The Medical Blog Network. Check it out - many interesting posts from some of the best and the brightest in the health wonk blogosphere. Kudos to Dmitriy Kruglyak who has done a superb job hosting. Note that he has introduced a new format and process for submitting entries for HWR and other medical blog carnivals that will make things easier for both hosts and contributors.

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May 31, 2006


One of the ironies of modern life is that we can go anywhere in the world, but we often find ourselves immobilized in the process. There are a number of circumstances that render us immobile: long haul air travel - 4 plus hours (on a bad day, that might be just runway time!). Sitting in a traffic jam or driving to a distant destination. Long hours in front of the computer or TV. Any prolonged period of inactivity places us at risk for Deep Vein Thrombosis - a blood clot that can lead to health complications, even death.

The Insider is not sure why people in Great Britain are much more focused on DVT risk than Americans. In England you even can buy specific insurance for DVT. Airlines based in England are contemplating changes in seat design to reduce the risks. The threat of lawsuits might soon result in posted warnings for airline passengers.

Some people are more at risk for DVT than others. Here's a listing of risk factors, a broad net that encompasses most of us. (For more detail on these factors, check out the website).

: age - as people over 40 are at greater risk of DVT
: a past history of DVT
: a family history of DVT
: an inherited condition that makes the blood more likely to clot than usual
: immobility
: obesity
: recent surgery or an injury, especially to the hips or knees
: pregnancy
: having recently had a baby
: having cancer and its treatments
: taking a contraceptive pill that contains oestrogen - but most modern pills contain a low-dose, which increases the risk by an amount that is acceptable for most women
: hormone replacement therapy (HRT) - but for many women, the other benefits outweigh the increase in risk of DVT
: treatment for other circulation or heart problems

Risk Transfer and Risk Mitigation
As with any risk, there are a number of ways to respond. Some people move immediately to risk transfer: get someone else to cover the potential loss. That's where the new insurance policies come in. If you die of DVT within 10 days of air travel, you collect 10,000 pounds. Congratulations!? This insurance is odd for several reasons: the risks are strongest after the 10 day eligibility period ends, so you might succomb from DVT but not collect anything. (Chaulk one up for the insurance actuaries!) In addition, because the insurance only pays for your death, it's really life insurance. Why bother insuring for just one potential source of your demise when a simple life policy covers you under virtually any circumstances? It's hard to imagine that DVT insurance is going to be a hot seller.

A more attractive alternative to insurance, we think, is the practical advice offered to people locked into a sedentary position: just get your blood circulating. On an airline, get up and move around. If you're driving in a car, or if you have a window seat on the plane, you can perform "traffic jam aerobics." If you are adverse to any suggestions of exercise, just make sure you stop and get out of the car for a stretch every two hours. It also helps to drink plenty of water and limit the consumption of alcoholic beverages and caffeine.

Here are some specific exercises, many of which will not be appropriate for the driver, unless the traffic is at a complete standstill:

Downward Foot Press: Press the balls of your feet down hard against the floor and raise your heels to increase the blood flow in your legs. Hold for five seconds and repeat 10 times. (Needless to add, avoid downward pressure on the accelerator!)

Shoulder Rolls: To ease the tension of sitting in one position for too long, lift the shoulders up towards the ears, roll the shoulders backwards and then down in as big a circle as you can manage. This will help to release tension in the upper back and neck, so is especially good if driving for long distances in stressful traffic.

Shoulder Press: Lift the arms to touch the car roof, take the arms outwards and back down, and repeat.

Elbow Circles: Place your fingertips on your shoulders and draw circles in the air with your elbows. Another great move to help release tension in the neck and upper back. (You might also get some interesting responses from other drivers.)

The bottom line is relatively simple. If you find yourself in a situation which severely limits your ability to move around, do something to engage the muscles of your arms and feet. A few simple risk mitigation steps will do the trick. As for the insurance, buy a lottery ticket instead. The likelihood of a payout is about the same.

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May 24, 2006


The way we react to a news item often depends upon our pre-conceived notions. We all have an innate sense of what is good and just, tasteless and outrageous (although your "outrageous" might be my "humorous"). Our fellow bloggers at "Overlawyered" scan the news for indications that our over-litigious society is out of control, with greedy lawyers in eternal pursuit of the almighty dollar. They are not lacking for material.

When they blogged a recent jury award for discrimination, they implied that once again, juries had fallen under the spell of slick attorneys. Here's their summary:

Sonoma County, Calif., allowed health care caseworker George Alberigi, 52, to interview Medi-Cal clients by phone from his home, by way of accommodating his psychiatric conditions, namely panic disorder and agoraphobia (fear of public places). Then in 2001 he applied for a promotion. The county turned him down on the grounds that the higher-level job required meeting clients in person. Disheartened, Alberigi went on permanent medical disability. Now a jury has awarded him $1.5 million in lost wages and $5 million in other damages including pain and suffering.

From this summary, it sounds as if Alberigi used his disability to leverage the system.

Another Point of View
We find a lot more detail and a radically different perspective on this case in another law blog. There is little doubt that Alberigi had a mental disability. In the mid-1980s, Alberigi was first diagnosed with panic disorder and agoraphobia. The panic attacks caused Alberigi to get tense all over, his muscles got ridged, he would grit his teeth, squeezing and ringing his hands. Sometimes he was rigid with panic, and unable to think. His heart beat fast and, he started holding his breath, squeezed his eyes shut and felt like he was going to die. As Alberigi stated, “Sometimes I wished that I would die to get away from the panic.”

Despite this disability, Alberigi was able to function as a case worker, even though the disability made it difficult for him to interact in person with strangers. The County accommodated Alberigi’s disabilities for fifteen years by allowing him to restrict his face-to-face contact with clients. Although he came to the office each day and interacted regularly with co-workers, he was allowed to conduct business with clients primarily by telephone and only rarely met face-to-face with clients. He apparently performed his job well. He had received numerous commendations for his willingness to help others. His performance reviews stressed this positive aspect of his character:

- “Mr. Alberigi is always supportive of co-workers. He provides a calming influence in the unit in times of stress for others.” [Note the irony in that comment!]

- “His positive and upbeat attitude have made him well liked and respected by his co-workers.”

In 2000, he received his division’s Distinguished Employee Award:

“George always helps co-workers with their caseloads when he has extra time... He always expresses a positive attitude towards clients and co-workers and goes the extra mile to help others.”

Change for the Worse
It does not appear that Alberigi was seeking a promotion. Instead, in 2001 the County transferred him from his long-term position, allegedly for the purpose of enabling him to gain more experience and be promoted. The County, however, did not give Alberigi a choice and made no effort to accommodate his known disabilities. The new position required face-to-face contact. As a result, Alberigi experienced severe anxiety and panic attacks in 2002 and went out on disability. The County sent him to doctors of their choosing for a fitness-for-duty evaluation. These doctors concluded that Alberigi did suffer from panic disorder with agoraphobia and recommended that he be assigned a caseload that did not involve face-to-face contact with clients.

Despite these recommendations from their own doctors, the County refused to accommodate Alberigi, claiming for the first time that face-to-face contact with clients was an essential function of the position. Alberigi asked to be returned to his old position. The County refused this request. Hence the lawsuit.

Learning to Listen
Despite his severe disability, Alberigi was able to function as a dedicated and competent employee. He had the respect and support of his coworkers. Management, for reasons unknown, decided to shake up his narrow world and force him out of a nurturing situation. This obviously did not work to anyone's advantage. The result was a disservice to Alberigi, to his employer and to the taxpayers of Sonoma County.

In addition, the story becomes fodder for perpetuation of a particular world view. If you only focus on the jury award, you may well conclude that this case involved a miscarriage of justice: Alberigi (and his attorneys) did not deserve the settlement. Once again, a jury came up with a ridiculous and undeserved award. The reality appears a bit more complicated. The Insider is all for reform of a judicial system that treats pain and suffering like a lottery. On the other hand, managers - people with control over others - need to be held accountable for their actions. Managers need to combine their vision of the work that needs doing with the realities of the people doing it. In this sad tale, management apparently lost sight of its mission, abused its powers and prevented a proven employee from carrying out his job. No doubt about it, they have to pay for these mistakes.

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May 23, 2006


If so, you're in luck. Hank Stern at InsureBlog is hosting Health Wonk Review #7. Drop by for your biweekly ration of the best-in-class blogging on health policy, infrastructure, insurance, technology, and managed care.

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May 8, 2006


The Insider is determined to do its part in preparing the nation for a flu pandemic. Although the President did not specifically mention bloggers in his mobilization plans, we think that blogs offer a unique tool for getting out the word and for maintaining communications under adverse circumstances. Best of all, you don't have to come within three feet of a blogger to access the information.

The President states that "our efforts require the participation of, and coordination by, all levels of government and segments of society. State and local governments must be prepared, and my Administration will work with them to provide the necessary guidance in order to best protect their citizens. No less important will be the actions of individual citizens, whose participation is necessary to the success of these efforts."

Initial response to the President's plans have tended toward scepticism. There seems to be a sense at the state level that the feds don't plan to take much responsibility; that much of the burden will fall at the state and local levels; and that not much in the way of federal resources will reach the states as they confront the awesome challenges of a pandemic. It's like waiting for Katrina without a storm track.

Unity or Chaos?
The President tells us that "our Nation will face this global threat united in purpose and united in action in order to best protect our families, our communities, our nation, and our world from the threat of pandemic influenza." The Insider is not so sure about the unity in action. If the pandemic is as horrific as some project, we may see more chaos than unity. But one way or the other, we'll probably muddle on through.

For larger businesses who want to give it a shot, the CDC has put together a comprehensive planning checklist. It's full of generic advice that is certainly useful, but may prove really difficult to implement. For example, one recommendation is to "establish policies for employees who have been exposed to pandemic influenza, are suspected to be ill, or become ill at the worksite (e.g., infection control response, immediate mandatory sick leave)." How would you define and implement "immediate mandatory sick leave"? Many employers will balk at the prospect of uniformed guards, in protective masks, escorting unwilling workers to their cars. Most HR departments would need a few months to work out the kinks in this one policy area.

Basic Hygiene
No matter how sophisticated your planning may be, executing a flu game plan may come down to the basics. People should not get too close to one another (stay at least three feet apart). Most important, people have to know how to cough and sneeze. The government has a poster (available in five languages) here.

Here's the text of the poster, with a few annotations:

To help stop the spread of germs,

Cover your mouth and nose with a tissue when you cough or sneeze. [Have you ever noticed how many people routinely fail to do this? For people who do it wrong, should progressive discipline apply, or is it "one unprotected sneeze" and you're tossed out of the workplace?]
If you don't have a tissue, cough or sneeze into your upper sleeve, not your hands. [Might work in a factory, but not practical for those in Armani suits.]
Put your used tissue in the waste basket. [Most industrial workplaces I've toured lack waste baskets.]
Clean your hands after coughing or sneezing. [If you wash after each cough/sneeze, as you're supposed to, there will be a lot of lost productivity.]

Wash with soap and water. {Assumes that these are readily available.]
Clean with alcohol-based hand cleaner.
[Might not be practical in many work environments.]

Just-In-Time Management
I have a strong suspicion that very few companies (and few families) will take the necessary steps to prepare for the Big One. When it comes to what appear to be remote risks, we all practice just-in-time management and hope for the best.

In a pandemic, as long as electrical power is available, people should be able to access computers and communicate over the net. Many, the Insider included, will be able to work from remote locations. Sooner or later you may want to check out an interesting, net-grown resource called fluwiki. Based upon the open-sourced format of Wikipedia, fluwiki is public flu compendium, focused in a very practical way on managing families and businesses during a pandemic. The home-grown survival lists are more entertaining that those provided by the CDC. Even if you are convinced that this pandemic will never happen, you might want to save this site under your favorites for future reference. You never know when it might come in handy.

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April 20, 2006


The Insider has long puzzled over the decision-making process of doctors treating injured workers. Why do they rely so heavily on expensive pain killers when over-the-counter medicine might do the job just as well? Why do they choose one knee replacement part over another? Why are so many doctors quick to certify a disability, when the injured worker retains much of his or her ability to function? Why do so many doctors fail to see the relationship between being productive and being healthy?

As fellow-blogger Julie Ferguson pointed out yesterday, twenty one doctors with an interest in occupational medicine have published a fascinating report on the medical aspects of disability. Their white paper is entitled: Preventing Needless Work Disability by Helping People Stay Employed. It's a must read. From our perspective, the white paper is a 52 page symphony, closely aligning all the disparate players in the disability world. These doctors, affiliated with the American College of Occupational and Environmental Medicine (ACOEM), understand the problem and they propose realistic solutions.

Medically Unnecessary Disability
The white paper affirms what many of us in the field have long suspected: most time away from work due to a disability is medically unnecessary. You might want to read that line again: in most cases, it's not medical necessity that causes people to miss work. They are absent because of a host of issues involving insurance, work culture, medical practice and bureaucracies. At her own website, Webility MD, Dr. Jennifer Christian, one of the principle authors of the report, summarizes the difference between what is medically necessary and medically unnecessary as follows:

Medically-necessary disability is time away from work because:

  • work is medically contraindicated, or
  • therapy or recovery requires confinement to home or bed, or
  • there is no practical way to keep a vulnerable employee safe at work.

Medically-unnecessary disability is time away from work due to the interplay of the following non-medical features:

  • employers and physicians communicate poorly about injured and ill employees' ability to work
  • employers fail to address environmental and motivational problems, causing injured employees to stay out of work longer than medically necessary
  • physicians do not see disability as an outcome for which they are responsible.

The Paradigm for Occ Med
The white paper describes in compelling detail the many factors that prevent the medical delivery system from carrying out its fundamental role: "do no harm." If a doctor enables an injured worker to become a disabled person, he or she has indeed done much harm. The goal should always be to keep disabled people working: rather than fitting the injured worker to the benefit (workers comp, STD/LTD), keep the focus where it belongs: Staying at work. And for those who must lose some time, returning them to productive employment as quickly as possible.

This draft paper is worthy of widespread attention, not just among professionals who are directly involved in medical services, but among all of us who struggle with the issues of risk management, disability management and productivity in the workplace. The paper does not place the entire responsibility for fixing the current problems on the medical system. Insurers have a role, as do the employers whose workers are injured. Right now, it often seems that every special interest pulls in a separate direction. This white paper is a blueprint for bringing us back together, where we truly belong.

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April 20, 2006


Fard Johnmar of Envisioning 2.0 gets some help from an illustrious wonk in hosting the latest carnival of the creme de la creme of recent health policy-related blogging - Health Wonk Review #5. Plan to stay awhile - lots of good reading!

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April 11, 2006


Health experts predict that the health implications for the workers involved in the World Trade Center cleanup will take more than 20 years to be fully evident. A recent article in the PhillyBurbs discusses the frustrations that sick workers and health authorities alike are having in trying to come to grips with the health ramifications of post 9-11 cleanups. The World Trade Center Health Registry is faced with the daunting task of trying to track information on some 71,437 people who worked at ground zero, but even the matter of keeping a running tally of deaths is proving difficult. And although the health tracking is an important effort, many wish that there were less emphasis on the future and more on addressing the serious health issues that are emerging every day. In many cases, the workers have no financial or medical protection:

"Through its worker compensation program, the U.S. government has taken a dim view of any injury claim not directly from the day of the attacks.
Allen, 46, was one of the 485 federal employees to file for workers compensation claiming injuries from the aftermath at ground zero. Virtually all of those claims, some 478, were either rejected by the government or abandoned. Of the claims stemming from the day of the attacks, the government approved nearly all 987 of those.
New York state received 8,491 injury and exposure claims due to the events of Sept. 11 or the cleanup effort. About 680 - less than 10 percent - remain unresolved, but New York state insists it still has no idea how many of its resolved claims were granted or rejected."

Terrible stories are surfacing about WTC workers who are suffering severe and incapacitating disabilities - some are dying in poverty with inadequate medical care, and these stories will become more common as time goes on. At the time of the event, praise for the heroics of these workers was profuse - we need to find a way to care for these workers so those words don't ring hollow.

If the experience of the workers in the nation's nuclear defense industry are any measure, help may not be quick in coming. While it looks like these workers eventually found some relief, the next generation, toxic site cleanup workers, are exposed to serious health risks and the first workers comp claims are being filed.

Toxic exposure and toxic torts
Toxic exposures pose a unique challenge for the workers compensation system. Workers who contract occupational illnesses have a much harder time of making their case for compensation than a worker who suffers an occupational injury from a single event. It may be years before an illness surfaces, and even then, it is difficult to prove that the exposure was solely related to work and not to exposure that may have occurred in ordinary life. In some cases, such as radiation exposures or asbestosis, the dangers are so clearly linked to the exposure that the case is clear. But with the WTC, it's unclear if any accurate analyses of the toxic residues have been conducted. Certainly, the WTC environmental dangers were at best underestimated and at worst falsified by the EPA in the immediate wake of the events.

When workers compensation does not provide remedy, toxic torts often are the result, such as in the popcorn lung case. As the number of ill and dying WTC workers who have no workers comp coverage expands, we will have to see if the courts will be the place where workers turn for relief.

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April 6, 2006


For those of you who have been waiting with bated breath to get your next heaping helping of health wonkishness, David Williams of Health Business Blog does a fine job of hosting the fourth and latest edition of Health Wonk Review. Some good reading!

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March 30, 2006


DB's Medical Rants discusses an L.A. Times article that reports on a recent study in the New England Journal of Medicine about quality of health care. The study shows that, rich or poor, most people only get the right medical care about 50% of the time. This study didn't deal with access of care; rather, it looked at the care that is provided.

"Recommended care included things that have been scientifically shown to be medically effective and are accepted as the best standard for various conditions. The researchers looked at 439 such measures of quality for 30 common medical conditions and preventive care.
For example, after a patient has a heart attack, doctors should prescribe a beta blocker, a follow-up treatment shown to save lives, but they do so only half the time. An anti-inflammatory steroid inhaler is the first line of treatment for someone with asthma, yet only one in two asthmatics receive a prescription when they need it. And patients have about a 50% chance of getting the right diagnostic test if they have pneumonia."

Fragmentation is one of the primary reasons for the breakdown in quality that the study cites. Most people have mutiple physicians and see a variety of specialists in the course of receiving care, The study is interesting in and of itself, and DB's comments about the survey were also noteworthy:

"... patients generally benefit when one physician understands their problems and manages all those problems. Yet our reimbursement system provides incentives against that rational system. Subspecialists can care for a single problem and receive the same (or greater) reimbursement for a visit.

If we want better quality, we must understand and learn how much time good quality takes. It will take more time for each visit, but I believe that time (and appropriate reimbursement) will be the key factor in improving health care. No other profession works under, or is asked to work under, such severe time pressures."

It would be interesting to see how a similar health care quality study in the context of workers compensation would play out. The playing field is level among patients since work-related injuries are all covered by the same benefits, at least on a state by state basis. However, physician reimbursement is discounted right from the get-go, and networks often demand further discounts on top of that - hardly an incentive system designed to foster quality. The conventional wisdom would generally support the idea that an expert primary physician would produce the best outcomes. Fragmentation of care can be a significant issue, and it would appear that case management has evolved largely to address this and to ensure continuity of care, to expedite the recovery process, and to foster good communication across multiple providers.

Discounts continue to be one of the primary attributes that employers use as a purchasing criteria for medical care. If one accepts the premise that quality care translates to better outcomes - recovery and the return to work - then it would seem in everyone's best interests to ensure quality. To ask physicians to do more -- as they must by the very nature of workers compensation -- and to do it for less seems like the wrong way to go about ensuring quality. Minimizing costs in workers compensation is largely contingent on aligning incentives for all participants - physicians are no exception.

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March 23, 2006


Grab a cup of coffee and drop by Kate Steadman's place over at Healthy Policy blog to read the third edition of Health Wonk Review. Kate does a stellar job explaining why health wonks often don't get the recognition they are due. There's a great collection of wonky posts from the brightest in the blogosphere. If you care about health care issues, be there or be square.

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March 3, 2006


Franklin Roosevelt may or may not have begun an address to the Daughters of the American Revolution with the memorable line, "Fellow Immigrants." (A curmudgeonly blogger says a reporter made up the quote.) If Roosevelt didn't say it, he should have. It's a great line and perhaps more compelling than ever. The current debate over illegal immigrants - as fractious and divisive as the debate over abortion - has created a fault line that runs through every aspect of our culture.

In an excellent article in the New York Times (registration required) by Nina Bernstein, we read about the effect on access to health care that well publicized "throw them out" legislative initiatives have had on undocumented immigrants. Not surprisingly, these immigrants are sensitive to anti-immigration sentiments. For example, knowing that identity requirements are tightening, Chinese immigrant workers in New York City are shying away from the conventional health system (which in many cases is not exactly welcoming) and relying more on traditional herbal remedies. Bernstein writes of the sad demise of Ming Qiang Zhao, a 52 year old restaurant worker who could not afford to continue treatment for his nasal cancer. He relied on street remedies until he finally collapsed in a coma. The system which discouraged him from securing ongoing treatment readily admitted him on an emergency basis: a very expensive proposition ($5,400 day) involving several near-bankrupt hospitals. Unable to decipher the effect of the herbal remedies that he had been taking, the doctors treated him as best they could until Ming died.

Who cares?
Beyond the humanitarian issues, beyond the inflammatory rhetoric seeking to toss the illegals out, is the reality of having a two-tier health care system. In the system that most of us subscribe to, treatment is readily available, pharmacology is the best in the world, and minor ailments are treated with respect and concern. In the parallel universe of undocumented immigrants, there are bootleg remedies and unlicensed practitioners - until you collapse and are taken by ambulance to an emergency room.

The public health implications of this two-tiered system are alarming. Bernstein quotes James Tallon, president of the United Hospital Fund: "Anything that keeps anyone away from the health system makes no sense at all. It takes one epidemic to change everyone's attitudes about this." (We've already blogged the terrifying conjunction of avian flu and illegal workers in the poultry industry.)

The debate over what to do about illegal immigration impacts every one of us. I highly recommend that Insider readers track the current debate in Washington through Peter Rousmaniere's working immigrants blog, which is devoted solely to immigration-related issues.

Public Policy Parameters
The immigration issue is complex. There are no easy solutions. The problem is going to test us in ways that we can hardly envision. It brings to mind something that Roosevelt definitely did say: "When you get to the end of your rope, tie a knot and hang on. "I would hope to see the debate over immigration guided by a few basic assumptions:
- It's neither feasible nor desirable to deport 11+ million undocumented people and their families.
- Undocumented workers are an important part of our economy. If they disappeared tomorrow, we would all suffer the consequences.
- It's counter-productive to cut off immigrant access to the health care system. You don't want people treated by quacks. Somehow, we must open health care to everyone residing in our borders. It's the right thing to do and it's in our own selfish interests to do it.
- No matter what people think about illegal immigration, we must develop some kind of fundamental accommodation, some way of making every immigrant visible, so that these people are able to engage in the mainstream culture on a basic level.
- As we figure out ways to accommodate undocumented workers, the cost of doing business will definitely go up. When the protective umbrella of fair labor laws and fundamental benefits begins to cover workers who are currently "off the books," the cost of labor will rise.
- You can build walls to keep people out, but walls tend to become prisons for people on both sides.

There are undoubtedly many more assumptions could be added to this list. Insider readers should jump in on the discussion. This problem is not going away. And how we address it as a nation has powerful implications for all of us.

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February 23, 2006


While risk managers might be tempted to ignore the potential disruption associated with a world-wide avian flu pandemic, they are paid to think about the unthinkable. So today as a public service, the Insider hopes to stimulate some disaster planning among our readers. Even with the prospect of millions dying in a few days or weeks, businesses need contingency plans, no matter how unrealistic they may seem. In an article in the New York Times (registration required), Patricia Olsen outlines the steps that small businesses can take in preparing for a possible avian flu pandemic.

"Many people plan for the worst-case scenario, but that's not the way to go about it," said Donna R. Childs, co-author of "Contingency Planning and Disaster Recovery: A Small Business Guide" (John Wiley & Sons, 2002). "Take incremental steps and build on that." The concept of incremental steps is a good one. The difficulty, of course, is determining which small steps might actually mitigate the impact of a really big disaster such as an avian flu outbreak.

Advice From the Ivory Tower
The article quotes Peter Morici, an economist and professor of business at the University of Maryland: "Besides backing up vital records and functions at a secondary location [good advice], it is a good idea for small businesses to start networking to find a source of replacement workers." To which I say, yeah, right. These days it's hard enough to have a workforce, let alone a shadow back up crew.

In addition, Morici suggests that if a business's area is quarantined, but its customers are in areas that are not, then it might pay to move to another location. Again, the professor is probably right, but I'm not sure how practical it is to pack up and move under the ominous shadow of a flu outbreak.

One immediate - and very doable - step is to secure business-interruption insurance to cover lost income during a shut down. This insurance is generally available at an incremental cost to current commercial insurance. It is also a good idea to cross-train employees and identify potential new suppliers (although finding new suppliers is akin to finding a shadow work crew: good idea, but terribly difficult under the circumstances).

We're From the Government...
The Centers for Disease Control and Prevention (CDC) has developed a handy checklist (PDF) that walks small businesses through the process for developing a pandemic preparation plan. (NOTE: The Times article has the wrong links.) Some of the suggestions are practical: stockpile paper masks, disinfectants and related hygienic supplies. Develop plans that involve less face-to-face contact: eliminate shared workstations, avoid mass meetings, encourage telecommuting.

It's when the pandemic hits that the suggestions become more problemmatic. To prevent influenza spread at the worksite, the checklist recommends policies to promote respitory hygiene, cough etiquette and "prompt exclusion of people with flu symptoms." Does this mean having guards (presumably wearing masks) escort anyone with symptoms off the premises? Will companies need "cough police" to enforce good hygiene? Will small businesses be able to differentiate between avian flu symptoms and an ordinary cold or hay fever?

I am all for being prepared. But as all risk managers know, there is much in the terrifying prospect of a flu pandemic that exceeds our abilities to plan. We can dutifully go through our checklists. We can look around for additional suppliers and even replacement employees. But it's hard to envision these "incremental steps" having a significant impact on our ability to sustain business operations. It's comparable to Katrina: you can board up the windows. You can move valuables to the attic. But if the waters rise above your roof, your preparations will not amount to much.

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February 21, 2006


The good news from Iraq (OK, there isn't much) involves the dramatic improvement in battle-related trauma treatment. Soldiers are surviving injuries that in prior wars would have resulted in certain death. So far, over 15,000 soldiers have been injured since the fighting began in March 2003. By the time major military operations have been completed, more than two million soliders will have been deployed in Iraq and Afghanistan. That would project to about 70,000 troops suffering physical injuries.

These wounded soldiers return to the states, go through rehabilitation and then, one hopes, they return to the workplace. When you consider that about 30 percent of the armed forces are citizen soldiers (National Guard and Reservists), you realize that many of these injured soldiers will be returning to the jobs they left behind. Their employers will be confronted with the challenges of "reasonable accommodation" - trying to adapt job functions to the capabilities of their returning workers.

As challenging as this accommodation process is likely to be, it may prove far easier than dealing with the mental health issues of returning soldiers.

The Stress of War
There's something about people trying to kill you 24/7 that gives rise to inordinate stress. This is stress of a level that few people outside of the military - or a war zone - ever experience. In a compelling article (PDF) written by Robert Hartwig for the Insurance Information Institute, we learn that nearly 30 percent of returning military personnel suffer from at least one type of mental health problem, including depression, anxiety and/or post-traumatic stress syndrome (PTSD).

Here we have a confluence of issues that bode poorly for these returning heroes. We seem to expect that people thrown into war will simply pack up their gear, change into civilian clothes and go about their business. For some, that may prove possible. But for others, the transition will be excrutiating.

Given this country's ambivalence about mental health treatment, it's not surprising to find that even soldiers with stress symptoms often resist treatment. Hartwig quotes a study in the New England Journal of Medicine that found a reluctance to use mental health services even among soldiers who met screening criteria for major depression, anxiety or PTSD:
- only 78 percent acknowledged a problem
- just 43 percent indicated an interested in receiving help
- only 40 percent had received help within the past year (and just 27 percent received help from a mental health professional)

The respondants cited a number of reasons for not seeking help, including the belief that they would be perceived as weak (65 percent), embarassment (41 percent) and difficulty getting time off for treatment (55 percent). (As for that last problem, employers would likely be obligated to provide release time for counseling under the Americans with Disabilities Act.) But tellingly, 38 percent indicated that they did not trust mental health professionals, while 25 percent believed that mental health care doesn't work at all!

There are at least three significant themes here: First, we live in a culture that continues to stigmatize mental illness. Second, the mental health profession has done a poor job of explaining itself to the general public. And third, the employers of these mentally stressed (and untreated) soldiers will be confronted with a host of problems when these former workers return from their battlefield commitments.

Hartwig points out that returning veterans with physical or mental impairments are entitled to lifetime benefits from the Veterans Administration (assuming, of course, that VA services are adequately funded). The VA also operates a Readjustment and Counseling Service to ease the transition of veterans returning to civilian life. Insurance claims adjusters would do well to take note of these resources!

Business as Unusual
As civilian soldiers return to their jobs in the months and years ahead, the workplace will be subject to new stresses and strains. Having sacrificed so much through their military service, returning workers may find themselves unable to handle the jobs that had once been routine. Employers will have to work diligently and creatively to ease the transition back to productive employment. If nothing else, employers should encourage access to counseling services for stressed-out employees (on company time, if needed).

If employers drop the ball by ignoring the transition problems of their returning workers, there could be some very big problems indeed: disruption and violence, lower productivity, unanticipated injuries and increased costs for workers compensation, to mention just a few. Many of the civilian soldiers returning to the workplace will face challenges unlike anything they experienced prior to going off to war. Employers take heed: this cannot be managed under the heading of "business as usual."

Special thanks to our colleague Joe Paduda at Managed Care Matters for pointing out this important article.

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February 7, 2006


[Warning: This is not appropriate reading for bedtime.]
I'm not sure where the complacency about undocumented workers comes from, but I suspect that it's a combination of racism and economics. We tolerate the presence of these second class workers because it results in cheaper products and services for us, and because we don't really have to look at these struggling immigrants very often. They operate in the shadows of our culture. These undocumented workers are transient, unrepresented, and frequently unwilling to report injuries or illnesses because of real concerns about their continued employment or their immigration status. They work in substandard conditions, with few or no benefits. But that doesn't impact us directly, does it?

Well, think again. Our colleague Peter Rousmaniere, who tracks the issue of immigrant workers, has posted a truly terrifying scenario where the second class worker becomes the carrier for an unstoppable disease.

It Cannot Happen Here...Can It?
Peter links to the Occupational Health Disaster Expert Network (OHDEN), a website run by Gary Greenberg MD. The goal of this well-documented and extensively linked site is to speed up transmission of time sensitive information on high profile occupational risks.

Dr. Greenberg tells us that the danger from a new influenza will begin when its DNA combines with the ordinary "flu" we experience every winter. If (or when) this strain develops, the public health fear is of a highly transmissible virus
with frequently fatal consequences. The resulting novel germ could then spread through our species unimpeded by any prior immunity, and would kill millions before effective vaccination and antiviral therapies might bring it under control. This would no longer be an"avian" influenza, but an accidental hybrid, an intensely lethal human

A Workplace Illness
Avian influenza is an occupational disease involving poultry workers. So it is in the poultry-processing workplace that the we find the intersection of two distinct issues: undocumented immigrant workers and flu pandemic risk. Poultry workers are largely foreign-born and poorly educated. They routinely work in horrendous conditions. (Again, that's ok, as long as we can get a good price on chicken parts in the grocery store...) Even without viral dangers, Greenberg points out that these workers are exposed to intense levels of ammonia, organic dust, disinfectant, environmental cold, bird-specific fungi and bacteria, allergens, insect pathogens, and then the violent instruments and machinery required for the production of boneless filets and dressed, plucked fryers. Yikes!

I won't go into the ergonomic horrors of chicken processing jobs. Again, we all know it's bad, but no one forced these people to come here. No one made them take these jobs! And yes, we know that the pay isn't great, but it's better than these workers would find in their home countries. As for benefits, they are unlikely to be able to afford (or qualify for) health insurance, and if undocumented, they are also ineligible for Medicaid. Many are migrants, and so they have no medical records, no continuity of care, and no routine access to health monitoring. They are off the radar screen and beyond reach of our medical system. So what's the big deal?

Here's the point where the proverbial chickens may come home to roost. Greenberg tells us that the creation of a deadly new virus requires just one single transformation - a single virus in a single victim. Once this killer virus is set loose, the costs to humankind will be beyond the calculations of all but the most intrepid actuaries.

While many people apparently feel either cultural superiority or indifference toward the millions of immigrant workers in this country, our fates are inextricably joined. Their second class status, combined with marginal working conditions, may place them at greater risk for the initial development of the virus. But once developed, the virus will make no distinction between second and first class. There will be no reliable barriers to transmission. We'll all face the same, irresistible force, much like the tsunami that tore through Asia in 2004.

Greenberg recommends a few practical steps to alleviate the risk of this unprecedented catatrophe. The steps are reasonable, relatively simple, and not all that expensive:
- All poultry workers need to be vaccinated against seasonal
influenza. This recommendation should be achieved worldwide. Urgent
action will be required for workers in the northern hemisphere (with
our own flu season already here).

- Free and urgent treatment of poultry workers' respiratory illnesses
should be provided, regardless of immigration status and insurance

- Health status among these workers needs to be evaluated, monitored
and reported.

Greenberg's recommendations are prudent and doable. But there is no way they will be implemented. Our national denial of the immigrant problem fatally extends even to a situation where we are all directly at risk. Greenberg will be viewed as just another "Chicken Little," claiming that the sky is falling. Politically, it's likely to prove impossible to elevate immigrant workers to the point where they are both acknowledged and accepted, let alone routinely treated for respitory illness.

If we're really lucky, there may be few direct consequences. The pandemic might not happen. If, however, Greenberg's worst case scenario takes place, we will finally be confronted with the real cost of our current indifference. Then, of course, it will be too late.

At that point, I imagine that someone will start a new blog called "Journal of the Plague Year." Let's just hope we are all around to read it.

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February 1, 2006


The Insider has warned tech-savvy readers that many of our indespensable gadgets can be the source of injuries. A year ago we wrote about Blackberry Thumb, to which we now return. Perhaps this is risk management on a small and highly personal level, but it's risk management nonetheless. Despite the fact that few people seem concerned, in the interests of public awareness, we now expand our focus from the lowly thumb to include elbows, ears, and perhaps even the brain.

Thumb Troubles
People addicted to their Blackberry's - or to text messaging on other portable devices - may find themselves experiencing some pain and numbness, possible symptoms of "Blackberry Thumb." It's really just another word for tendonitis and the latest incarnation of what used to be called "Nintendonitis." Of course, if Blackberry has to shut down due to a long simmering patent dispute (the company appears to have lost out at the final level of judicial appeal), "Blackberry Thumb" will disappear as all Blackberry users inadvertantly follow the doctors's advice for treating the ailment: lay off thumb typing for a while. If the shut down is avoided, loyal users in need of a break could try one-hand operation, typing in the letters with the blunt end of a pencil or a stylus, or simply typing shorter messages.

Moving up the arm, we find that people who spend a lot of time on their phones (cellular or land based) may be susceptible to cubital tunnel syndrome, a kind of "tennis elbow" that is caused by pressure on the ulnar nerve. The symptoms are very similar to the pain that comes from hitting your funny bone, which is actually the ulnar nerve located on the inside of the elbow. The nerve runs through a passage called the cubital tunnel. When this area becomes irritated from injury or pressure, it can lead to the syndrome.

Numbness on the inside of the hand and in the ring and little fingers is an early sign of cubital tunnel syndrome. (Are you feeling these symptoms already?) The numbness may develop into pain. The numbness is often felt when the elbows are bent for long periods, such as when talking on the phone or while sleeping. The hand and thumb may also become clumsy as the muscles are impacted.

The solution is simple, but many people fail to follow it: Keep switching hands (and ears) as you talk. Or even better, get a headset.

What did you say?
Traveling further up the body, we come to the head - source of many of the world's problems, indeed! Apple's little Nano/Ipod devices have become enormously popular (over 22.5 million sold in 2005). This line of elegant, miniature products enables people to shut out the world, no matter where they are, and listen to music (or books, lectures, TV shows, whatever). The danger is the in-the-ear design of IPod earplugs: you are literally pumping sound directly into the ear drum. With the long battery life of these devices, people can place a strain on their eardrums for which evolution has not really prepared us.

Once again, the solution is relatively simple. Keep the volume at a reasonable level and take frequent breaks. You also might want to limit the heavy metal bands.

Moderation in an Immoderate World
In yesterday's State of the Union address, the president acknowledges that we are addicted to oil. (That's a bit like doctors telling us that we as a nation have a problem with prescription medications.) We are addicted to far more than oil. Omni-present devices connect us (phones and internet), disconnect us (music) and distract us (games). Our brains are on overload.

Here's a prescription that doesn't require a note from the doctor: a few times a week, leave behind your cell phone/Blackberry/Treo, IPod, portable CD player/radio, put on your sneakers and go out for a walk. As far as I can tell, walking is unambiguously good for you. It connects you the old fashion way: through the simple enjoyment of the sights, smells and sounds of the world around you. And the only energy consumed is your own.

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January 25, 2006


As part of the Insider's relentless effort to understand what goes on inside a doctor's brain, today we examine the choice of hardware for spinal implants. When a doctor does an implant, which product does he or she use? Is the decision based upon the merits of the product, or are there extraneous factors such as financial incentives (i.e., bribes)? How can you be sure that the doctor about to operate on your spine has made an objective choice?

In the past we have blogged the decision-making process that leads a doctor to prescribe designer drugs (Oxycontin or Vioxx), as opposed to cheaper generics. Drug companies appeal to the doc's stomach (free meals) and to the lower regions (cheerleaders as drug salespeople). Today our colleague Joe Paduda points us toward a lawsuit involving Medtronic, a manufacturer of medical devices. A company whistle blower alleges payments to doctors in the hundreds of thousands of dollars, as incentives ("bribes") to use Medtronic devices.

Reed Abelson writes in the New York Times (registration required) that a variety of techniques have been used to get doctors to choose one brand of devices over another. Hire the doctor as a consultant. (One doc, Thomas Zdeblick, a Wisconsin surgeon, was paid $400,000 a year for eight days of consulting.) Invite the doctors to a resort. (Medtronics commonly paid for doctors to attend professional meetings and picked up the tab for snorkeling or golf.)

My favorite example of entertaining doctors involves a Memphis strip club called PlatinumPlus. When Medtronics brought doctors to the club, they disguised the expenses as an evening at the ballet. La Fille mal Gardee, for sure! Perhaps they should have been more upfront (so to speak) about the strip club. After all, the entertainment provided unobstructed views of flexible and presumably healthy spinal cords in action. You could count the ribs, if you were so inclined. That's work-related for a surgeon, isn't it?

Ethical Dilemmas
While paying doctors for legitimate consulting is above board, the payments become illegal when they are linked to a doctor's use of a particular device and violate the federal law against kickbacks. But even if the payments are within the law - and Medtronic has not been found guilty of any illegal activity - the increasing amounts being given to doctors distort their judgment, said Arthur Caplan, a medical ethicist at the University of Pennsylvania, who said such industry payments were "too damn lucrative to believe anyone can resist." Too damn lucrative, indeed. The path to the brain might not always be through the wallet, but you'd be hard pressed to prove otherwise with these amounts of money changing hands.

Invasion of the Tissue Snatchers!
Medtronics took another hit on its credibility when a subsidiary apparently harvested tissue from corpses, undocumented and authorized, and recycled it into the bodies of living people. The process involves allografts (defined here).The FDA has advised doctors of the potential problems - they want recipients tested for a number of communicable diseases including HIV-1 and 2 (the viruses that cause AIDS), hepatitis B virus, hepatitis C virus, and syphilis.

Medtronics put out a Q & A for tissue recipients here, but confined their comments to the living. As one tissue recipient put it, "It's very unsettling and nerve racking because I don't know who it came from. I don't know about their medical history..." There is one thing you do know about the donors: they're all dead.

Ethical Cleansing
Medtronics has taken steps to clarify their ethical standards. You can read their impressive Code of Conduct here (PDF). They are denying any wrong-doing and taking aggressive action to clean up their image. But this is not just an image problem. There is no doubt that surgeons have a role to play in the improvement of medical devices. But how and when to pay them, how to encourage them to use your products without resorting to bribes or dubious entertainment, that can be a tough line to draw. I may not be able to tell one implant device from another, but I think I know the difference between a ballet and a strip club. Let's hope that the Medtronic sales force can figure it out as well.

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January 18, 2006


In the face of rising health care costs, employers are getting more and more aggressive about targeting employee lifestyle issues. Last week we linked to an item about Weyco, a company that is fast becoming the poster child for companies that are implementing behavior modification programs to reduce health risks. Last year, Michigan-based Weyco raised a hue and cry by implementing tests for smoking and firing those who either fail the tests or refuse to take the tests. This year, the company is mandating medical tests and physical examinations for employees, and raising health insurance rates for those who don't comply.

What's next, mandating that covered spouses and family members take screening tests too? Yes, according to an article this week in Forbes. The article discusses various ways that employers are using rewards and penalties to try to shape employee health behaviors to minimize risks and the associated costs.

"At some companies, employees who meet specified health targets can qualify for lower insurance premiums.
Beginning this month, employees of King County, Wash., and their covered spouses or domestic partners will be asked to take an annual wellness assessment. It's voluntary, but those who refuse to participate will pay the highest level of out-of-pocket expenses under a new three-tier benefit design. Those who take the assessment and begin taking steps to improve their health are eligible for the lowest level of out-of-pocket expenses.
A few employers are taking a punitive approach, typically by tacking on a surcharge for smoking. At least four states -- Alabama, Georgia, Kentucky and West Virginia -- now charge higher premiums to state employees who smoke and lower premiums to non-smokers, according to the National Conference of State Legislatures."

The surcharge for smoking issue that has been implemented in several states is often based on self-disclosure, and has led to a few unexpected turns. In New Jersey, for example, some state employees were snitching on fellow employees, but when the state began disallowing anonymous accusations, the snitching decreased.

It's clear we haven't seen the end of these issues. What do you think? Give your opinion in our brief Lifestyle Choices survey. (View results)

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December 22, 2005


About a year ago the Insider cautioned people to view snow shoveling as a risk-laden form of heavy lifting. Recently New England experienced a storm of surprising ferocity. I shoveled once, I shoveled twice, and then, all dressed and showered and heading out for a Christmas party, I found that municipal plows had once again closed up the end of my driveway. So resplendant in jacket and tie, I grabbed a shovel, muttered a few curses and furiously attacked the four foot wall of heavy snow.

A few days later, I could not get out of bed. In all, I spent two days literally crawling around the house, sleeping fitfully on the sofa. The pain was severe. My personal physician recommended 600 mg of ibuprofen three times a day. In doing so, he was working within the first line of defense for pain: anti-inflammatory medications -- drugs that reduce redness, swelling, and pain. These drugs are NSAIDs -- Non-Steroidal Anti-Inflammatory Drugs.

Here's a little history on NSAIDS from the Pain Foundation's very useful website:

In 1899, Friedrich Bayer and Company began marketing the first NSAID (Bayer® aspirin) in Europe. Although it is now over 100 years old, Bayer® aspirin is still sold today as a popular NSAID, because it can reduce fever, pain, and symptoms of inflammation. NSAIDs are considered to be inexpensive and are also easily accessible to patients when traveling in virtually every country. They are available for everyone’s use at the local drug store, and some are available by a prescription from your doctor. NSAID medications include aspirin, ibuprofen, naprosyn, ketoprofen, relafen, and many others.

As I began taking my ibuprofen, which I hasten to add was not all that effective or consistent in reducing the pain, I found myself thinking about stronger medications -- narcotics -- which, we all know, are the most powerful means of blocking pain. And therein I found the answer to a question I've raised a few times in this blog: Why do doctors treating work-related injuries frequently prescribe high-risk narcotics (oxycontin, for example)? Where prior speculations focused on the doctors's brains/stomachs (free lunches sponsored by drug companies) and even genitals (hottie cheerleaders promoting the drugs), my own acute pain led me to conclude that doctors often follow their hearts. They are, in a word, sympathetic to the extreme discomfort of their patients. They reach for the prescription pad to (temporarily) alleviate the pain, while at the same time creating significant potential for lasting problems of a different kind.

My own doctor made no move toward narcotics, nor did I request any. I knew from my own research on back strains that the pain usually resolved itself in a couple of days and that narcotics should be considered a last resort. True to form, the pain lessened significantly after two days. I was moving cautiously by day three and reasonably mobile after five days.

Pain creates a world of its own. When pain is acute, it becomes the single, overarching focus of your life. When this acute pain becomes chronic, patients are at risk for extended disability. Workers comp claims adjusters are often reluctant to approve pain interventions. But help with chronic pain is often a key factor in returning injured workers to the job. Pain specialists help people understand and cope. They teach patients essential skills and strategies to help manage pain while dealing with day-to-day life. These strategies include breathing and stretching exercises or relaxation and pacing techniques. Pain intervention helps people:

1. Examine their thoughts and beliefs about pain that may inhibit or interfere with optimal functioning.

2. Review emotions, behaviors, beliefs, or relationships that could be contributing to their pain.

3. Recognize that they have control over how an experience will affect them and their loved ones.

A patient’s perception of pain is one of the biggest determinants in a successful outcome for pain management. This perception in turn may determine the structure, nature and quality of the patient’s life -- including whether the individual is able to resume his or her place in the workforce.

I consider myself lucky to be back to work in less than a week. I am at full duty, if not quite fully recovered. I find myself looking at the long-term forecasts, trying to anticipate the next big storm. Once again, I will be confronted with the need to clear snow from the driveway. I am resolved to stay calm. I might even put in a last minute request to Santa for a snowblower.

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November 29, 2005


The Insider has long puzzled over the way controversial drugs become industry favorites in the workers comp system. In a previous blog, we described the fancy dinners sponsored by drug companies, where doctors listened to a colleague describe symptoms and the presumed prescription cure. At that point, it appeared that the path to the doctor's brain (where prescriptions are determined) was through the stomach. A recent article by Stephanie Saul in the New York Times (subscription required) suggests that the path might actually run a bit lower in the doctor's body.

"Give me an O!"
You probably don't connect drug sales with cheerleading. But that's because you assume that doctors operate to a higher standard than the usual "sex sells." Medicine is still a largely male profession - and sex really does sell. Ms. Saul points out that sales reps for the pharmaceutical companies are frequently female and invariably good looking. Less recognized is the fact that a good many are recruited from the ranks of college cheerleaders.

"They don't ask what the major is," says T. Lynn Williamson, a cheerleading advisor at the University of Kentucky. Proven cheerleading skills suffice. "Exaggerated motions, exaggerated smiles, exaggerated enthusiasm - they learn those things, and they can get people to do what they want." What a terrifying thought: that hyper-cuteness can directly influence a doctor's choice of medication!

Some industry critics view wholesomely sexy drug representatives as a variation on the seductive inducements like dinners, golf outings and speaking fees that pharmaceutical companies have dangled to sway doctors to their brands

There are about 90,000 drug representatives across the country. Among these, cheerleaders stand out. Ms. Saul quotes Jamie Reidy, a drug representative who was fired by Eli Lilly this year after writing a book lampooning the industry, "Hard Sell: The Evolution of a Viagra Salesman."

In an interview, Mr. Reidy remembered a sales call with the "all-time most attractive, coolest woman in the history of drug repdom." At first, he said, the doctor "gave ten reasons not to use one of our drugs." But, Mr. Reidy added: "She gave a little hair toss and a tug on his sleeve and said, 'Come on, doctor, I need the scrips.' He said, 'O.K., how do I dose that thing?'" How do you dose it, indeed!

Controlling Costs
So it appears the answer to the question of how oxycontin and Vioxx rose to the top of prescribed medications in the workers comp system may be simpler - and more troubling - than we suspected. It's just a matter of waving the pom poms!

Just how far does the inappropriate influence go? There is a federal lawsuit pending against Novartis involving a saleswoman encouraged to exploit a personal relationship (AKA, engage in sex) with a doctor to increase her sales. Novartis denies the charges. A doctor in Washington pleaded guilty to assault last year and gave up his license after forcibly kissing a saleswoman on the lips.

So here is the anatomy lesson for the day: the road to prescription choice runs at least at times through the stomachs and lower regions of the doctors who prescribe them. Any strategy for controlling the costs of prescription drugs in the comp system needs to take that cynical lesson into account.

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November 8, 2005


Want to sample some interesting new blogs and find out what the hot news and trends are in the medical arena? This week, Rita Schwab at MSSP Nexus is hosting Grand Rounds, a rotating weekly roundup of eclectic posts from medical bloggers. Even though none of us at Lynch Ryan are medical providers, Rita was kind enough to ask us to participate - thanks, Rita! Working in the occupational arena, we have a window seat on issues related to occupational medicine, prevention, and quality care -- and as some of you may have noticed, we have no shortage of opinions -- so we are happy for the opportunity to participate.

Many pioneer physician blogs were inspiration to us back in the "olden days" of blogging and provided great role models when we were getting started. Check out Grand Rounds to see why.

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October 12, 2005


Yesterday's blog concerning genetic testing has prompted some thoughtful responses from our readers. It has also led to further research into the current and rather compelling story of Eddie Curry, a highly touted young center for the Chicago Bulls. Curry missed the last 13 games of the season and the playoffs due to a heart problem. The Bulls wanted him to submit to a genetic test, to determine whether he's susceptible to cardiomyopathy, the ailment that killed former Boston Celtics guard Reggie Lewis and Loyola Marymount star Hank Gathers. Curry, citing his right to privacy, refused. He was subsequently traded to the New York Knicks, who say they have no intention of requiring the genetic test "because of New York's privacy and employment laws." Instead, the Knicks will rely on their team doctors.

John Hollinger at ESPN Insider was at the Knick's press conference: "Isiah Thomas, [the Knicks general manager] must have said 'I have tremendous confidence in our medical team' about 12 times in a 20-minute [period]."

Wow. This is a loaded and truly fascinating situation. Were the Bulls being prudent in requiring the DNA test, or were they violating the ADA? Were they concerned for Curry's well being or the team's bottom line? Are the Knicks and their team doctors opening themselves to lawsuits (from Curry's family, no less) for allowing him to play without knowing the details of his condition? Is the life of a 22 year old worth the risk, if he can pull down the boards and put up some points?

Hollinger has a rather scathing analysis of the risks the Knicks are taking: not the health risks per se, but the impact on the team's future performance. He's not impressed with their risk management skills.

The Death of Reggie Lewis
This situation brings to mind the saga of Reggie Lewis, the former Boston Celtics captain whose death from a heart ailment in 1993 is still wending its way through the courts. (A thorough and lucid summary of the story can be found here.) Lewis passed out briefly during a playoff game. He was sent to New England Baptist hospital where he underwent a number of tests supervised by a team of 12 of the most respected cardiologists in the Boston area. This team was called "The Dream Team" based on a similar phrase to describe the superior talent of the gold medal winning USA basketball of 1992. After thorough testing, the Dream Team diagnosed Lewis to be suffering from ventricular tachycardia, the most dangerous form of arrhythmia. The cause of this was believed to be focal cardiomyopathy, a disease of heart muscle. Of the various forms of arrhythmia, some are harmless and others are potentially life-threatening, such as this diagnosed one. Dr. Stanley Lewis, director of clinical cardiology at New England Deaconess Hospital and member of the Dream Team, said, "When you talk about arrhythmia's that result in loss of consciousness' you're dealing with a deadly arrhythmia."

Lewis found the dream team's diagnosis -- and its resulting immediate end of his basketball career -- to be a nightmare, so he sought a second opinion. He consulted with Gilbert Mudge, a well known cardiologist who ran his own tests and declared that Lewis was not suffering from any sort of cardiomyopathy but merely from a curable neurocardiogenic fainting disorder.

Approximately two months after receiving Mudge's favorable diagnosis, Reggie Lewis collapsed and died shooting baskets at a Boston gym. An autopsy revealed that his heart was abnormal, enlarged and extensively scarred. The state medical examiner was vague about the description of the scarring and the how it was likely caused.

Hidden Truth
Overarching this entire sad saga is the distinct possibility that Lewis abused cocaine. If this is true (his widow denies it vehemently), his failure to disclose the drug use directly impacted Mudge's findings and those of the dream team as well. The author of this study finds plenty of blame to distribute among the blazing egos of the dream team docs, Gilbert Mudge and Reggie Lewis himself.

It is a cautionary tale, but the lessons are probably beyond the reach of the ambitious New York Knicks and their new center. In the best of worlds, people would look at all the available information and make informed judgments concerning Eddie Curry's future. The world of professional sport is far from ideal -- there is simply too much at stake. So here's wishing Mr. Curry the best of luck as he throws up his jump shots and fights for his rebounds. Every time he loses his balance and falls to the floor, we'll all just hold our collective breaths -- to see if he is able to get up off the floor and go on with the game.

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September 22, 2005


While the Insider tends to focus on trends relating to workers comp, our esteemed colleague Joe Paduda tracks health care at his Managed Care Matters blog. You don't have to follow health care for very long before it converges on comp. We've been here before and we will be here again.

Health care in this country is already rationed, although you rarely hear that term used. (Here's one doctor not afraid to use it.) Our rationing tool is, quite bluntly, based upon class. Those who can afford health insurance buy it. Those who cannot, don't. The dividing line is not employment: most poor people work, but they still don't have health insurance. They either have employers who don't offer it as a benefit, they work too few hours to qualify for the benefit, or they simply cannot afford it. Nearly 20% of Americans under 65 lack health insurance.

In his September 22 blog, Paduda engages in a hypothetical debate with a libertarian who supports Medical Savings Accounts (MSAs) -- a mechanism by which people are incentivized not to spend their health insurance dollars. Paduda directs us to a paper by the invaluable Kaiser Foundation, which dismantles the MSA approach one vital statistic at a time. Here's the bottom line: most health care expenses are incurred by those who are very ill (gee, that's a surprise!). In fact, 5% of the population burns up over half of all health care dollars. And the sickest 1% account for 40% of the dollars spent. Medical savings accounts would have a trivial impact on this spending, at best.

There are truly ominous trends in health care. Costs continue to go up. In addition to paying higher premiums, insured workers are paying higher deductibles, higher co-pays and more and more for brand name medications. As cost rise, coverage declines. Fewer employers opt to provide health care benefits: in the crucial small employer sector (with between 3 and 199 workers), 68% of employers offered health care back in 2000. In 2004 the percentage dropped to 59%. Beyond that, as costs rise, many people with low incomes are forced to opt out.

Where's Comp?
In a number of fundamentals, health insurance and workers comp diverge. Health insurance is an option; workers comp is mandatory. The employee portion of health care is free to rise at precipitous rates -- as has been amply demonstrated. In stark contrast, employees never pay a penny for the health care benefits associated with workers comp. To be sure, they are entitled only to payment for treatments directly related to their workplace injuries and illnesses. Nonethless, the treatments are free, prescriptions are free, and injured workers often can collect indemnity benefits while they are disabled.

Does this mean we will see more fraud in workers comp, more instances with employees trying to collect comp for non-work related problems? I don't think so. But we should all be concerned with the overall health of the workforce. On some level, those of us on the workers comp side depend upon the conventional health system to prevent illness, stabilize any non-work related conditions and ensure that our workers are fundamentally sound. It's hardly reassuring to think that uninsured workers are slow to report health problems, reluctant to seek treatment and unable to access preventive care. We can and should have a "best practice" approach to safety in the workplace, but no safety program can compensate for workers in declining health. These vulnerable workers stand at the very spot where the health insurance crisis and workers comp converge.

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August 31, 2005


Let's paraphrase an old joke: a woman walks into the doctor's office for an examination. "You're too fat." the doctor says. "I want a second opinion," says the woman. "You're ugly, too," says the doc.

An interesting firestorm is brewing in New Hampshire over the comments of Dr. Terry Bennett, a Harvard trained physician who prides himself in "telling it like it is." When the story first broke, it appeared that the woman patient had brought a complaint against the doctor for simply saying she was fat. An immediate groundswell of support emerged for the doctor, whose candor, the pundits felt, was in the best interests of the patient. Anti-attorney websites railed at yet another frivolous lawsuit defaming a sincere and well-meaning physician.

As is so often the case in these situations, the first take on the story was somewhat over-simplified. According to a recent article, the NH Board of Medicine is looking into a complaint related not to the comment about being fat, but the racial slur that accompanied it. Here's the quote from the good doctor as presented by the board: "You need to lose weight. Let's face it. If your husband were to die tomorrow, who would want you? Well, men might want you, but not the types that you want to want you. Might even be a black guy."

If that indeed is what Bennett said, you could certainly argue that his comments go well beyond the normal bounds of medical protocol. (The good doc would probably enjoy a recent movie release entitled "The Aristocrats" -- an homage to bad taste in which the same basic -- and obscene -- joke is told by dozens of comics, but that's a different story.)

Bennett is no stranger to this type of controversy. In another case going back to 2001, a patient accused him of suggesting she commit suicide. The documents paraphrased what Bennett, 67, allegedly told the patient, who was suffering from the effects of brain surgery. "(Bennett) spoke to the patient in an unprofessional manner suggesting that she purchase a pistol with which to commit suicide as a means of putting an end to her life."

Bennett denies doing anything wrong. "They're trying to make me the poster boy for bad medicine," he said. "I'm making them the poster boys and girls for insane law enforcement ... for interference of my First Amendment rights." Bennett has his supporters, including many of his patients, among whom is a black man who calls Bennett a personal friend.

So what's the issue here? And is there anything wrong with the candor of Dr. Bennett?

Boundary Issues
I am all for candor in communication. There are undoubtedly some obese people who need to be confronted with the life-threatening risks inherent in their situations. Such confrontation, when done in a caring and supportive manner, can be an effective way of getting someone's attention, especially if they are in denial. But if the quotes are accurate, Dr. Bennett needs a course in communication skills. He has not just violated the standards of good taste. By inappropriately bringing up his patient's sex life -- and by demeaning her further through disparaging references to blacks -- he has crossed a boundary that exists not just in the doctor - patient relationship, but in employer - employee relationships as well. His comments reveal a hostility and an edge that is totally inappropriate. Many of us enjoy a good joke, but Bennett's comments appear to be less an attempt at humor than at gratuitous humiliation. That's just bad medicine. And regardless of what the first amendment pundits say, the Board is doing the right thing by investigating the situation.

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August 26, 2005


Earlier this week, the Trust for American's Health issued a new report on obesity in Anmerica with the disturbing news that about 25% of American adults are obese. Health Daily News Central has more information on the details of this report. We've also previously blogged about obesity and workers comp.

About the same time this report was released, the news broke that Dr. Tony Bennett is being investigated by New Hampshire's Attorney General and the New Hampshire Board of Medicine for offending one of his patients by telling her she was obese and needed to lose weight. He refuses to apologize for his remarks and faces possible disciplinary action ranging from a reprimand to revocation of his license.

We don't know exactly what the doctor said or the manner in which he said it, but we have to wonder if this woman isn't taking the state's motto of "live free or die" a little too much to heart. Should a doctor only tell patients the health information that they want to hear? We don't think so, and would be interested in hearing your thoughts on the matter.

Reactions from the blogosphere
Obesity is a well defined condition. It responds to weight loss. How can this possibly have caused a stir? -- DB's Medical Rants

He was "reported" for telling a patient the truth. If we cannot tell patients that they are obese - and that they should do something about it - then can we tell patients to stop smoking, or stop drinking - or what about crack cocaine? -- DB's Medical Rants

When did rudeness become a matter for attorneys general? -- Medpundit

The NH Medical Board either a) has information about this that's way more serious than that alreayd announced, or b) is filled with utter morons without enough do.
Time will tell. --

... But if the reporting is accurate, it would seem to be another piece of evidence that contradicts the frequent excuse of tort-reform opponents that aggressive medical malpractice lawsuits are needed to compensate for under-vigilant medical boards. -- Overlawyered.

Kevin, M.D. has posted more reactions from the blogosphere

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August 24, 2005


We talked a bit about "framing" on Monday - the depersonalization that can occur when people are lumped into broad categories or stereotypes, and how that pigeonholing can set the trajectory for future behaviors and events. Thus, an injured worker can make the leap from being your best employee to a rather suspicious "claimant" in one fell swoop. So it was of some interest when, in doing our weekly medical blog rounds, we came upon a post that related to the transformation and depersonalization that often occurs when one becomes "a patient."

Rita Schwab at MSSPNexus points us to a story in The New York Times about the degrading shift from person to patient* that often occurs when one crosses the threshold into a hospital. Rita comments that, often, " ... the courtesies that help lubricate and dignify civil society are neglected precisely when they are needed most, when people are feeling acutely cut off from others and betrayed by their own bodies."

She excerpts this incident from the article:

"Mary Duffy was lying in bed half-asleep on the morning after her breast cancer surgery in February when a group of white-coated strangers filed into her hospital room.

Without a word, one of them - a man - leaned over Ms. Duffy, pulled back her blanket, and stripped her nightgown from her shoulders.

Weak from the surgery, Ms. Duffy, 55, still managed to exclaim, "Well, good morning," a quiver of sarcasm in her voice.

But the doctor ignored her. He talked about carcinomas and circled her bed like a presenter at a lawnmower trade show, while his audience, a half-dozen medical students in their 20's, stared at Ms. Duffy's naked body with detached curiosity, she said. "

If you or a family member has been hospitalized recently, you may identify with some of the stories and issues discussed in the article. It made me recall The Doctor, an old film in which William Hurt played a successful but brusque surgeon who learned what it feels like to have the tables turned after he gets cancer.

(* If the NYT article is archived, you may be able to access it from here with free registration.)

What happens when your injured workers visit the doctor?
Employers need to give some thought to what happens when their injured workers become patients. As Rita points out, this is a very vulnerable point for your employee and the medical milieu can be a highly confusing and frustrating labyrinth. In addition to all the regular depersonalization inherent in encounters with the medical world, employees who seek care under the banner of workers comp can be made to feel like they are somehow less worthy, second-class patients. And in a sense, they are - workers comp rates are generally discounted by fee schedules and network negotiations; further, some providers are reluctant to be involved in what they see as a potentially contentious case.

Employers that truly care about the recovery of their injured workers would do well to assume the role of patient advocate. This entails advance planning by seeking out and meeting the quality medical providers near your facilities and making these doctors familiar with your organization and your return-to-work programs. In representing your work force, you have more buying power and more influence to ensure timely service and priority care than any one individual walking in off the street would. If an employee is experiencing frustration or confusion during the course of treatment, you want to know that and be in a position to help resolve those issues whenever possible. If you don't pay attention to those frustrations, an attorney would be glad to!

Hands-on advocacy
Often, employers think that managing the relationship with providers is the job of the insurer or the contracted network, but we would argue that this is not a relationship that can be "outsourced" on the day-to-day managerial level. Employers need to be an active participant in this relationship, and to ensure that injured employees get top quality care and service. And we would add that a good place to begin is to be more concerned with quality than with discounts when seeking out a network or a doctor -- in fact, we often encourage employers to pay more to ensure good service. Cheap medical care is no bargain; a few extra dollars spent early might be the best bargain of all.

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July 20, 2005


The first of what promises to be thousands of lawsuits pertaining to Vioxx is currently underway in Angleton TX, a town of 18,000 people. According to an article in the New York Times (registration required), famed plaintiff attorney W. Mark Lanier has zeroed in on a letter sent by Merck to physicians in 2001 which significantly understates the heart risks faced by patients taking the medication. The letter says that only 0.5 per cent of patients in a clinical trial experienced problems. The real number was more like 14.6 per cent experiencing some problems, with 2.5 per cent encountering serious problems such as heart attacks.

"Y'all didn't tell him the truth about the safety of Vioxx, did you?" Lanier asked Dr. Nancy Santanello, a senior Merck scientist. Y'all in big trouble, for sure!

Big Market Share = Big Problem
In the course of just four years in the marketplace, Vioxx was prescribed to 20 million people. In the workers comp system, it became the third most prescribed drug, just behind Oxycontin. While Oxycontin has proven to be highly addictive and a favorite of illicit users, Vioxx was never abused for pleasurable side effects. It was marketed as an anti-inflammatory medication for treating arthritis and pain. The drug was voluntarily withdrawn from the market last September. Lancet, the British journal, says that the company had enough alarming data to pull the drug all the way back in 2000, prior to the blandly worded letter that went out to physicians in 2001.

The drug is gone, but the lawyers are not going away any time soon. The financial implications are enormous. Epidemiologists have estimated that tens of thousands of Vioxx users may have suffered serious side effects from taking the medicine. One estimate has Merck paying out $18 billion -- big bucks even for a drug company.

Lawyers are going to focus on three types of damages:

Physical pain and suffering, mental anguish and physical

Medical expenses associated with the allegedly defective product
loss of earnings and or earning capacity

For persons who have died, family members can bring a
wrongful death action.

If you google "Vioxx" you come up mostly with lawyers, who are offering free evaluations of your situation online.

The Workers Comp Angle
In its short but highly effective shelf life in the American marketplace, Vioxx became a best seller in the workers comp system. As the liability saga unfolds in courtrooms across America, workers comp insurers will be more than disinterested bystanders. Here's why: heart attacks and strokes are known side-effects from taking Vioxx. Assume a worker took Vioxx for work-related lower back pain. In the course of treatment, he suffers a stroke and is permanently disabled. While there may be recourse in suing Merck, the first line of defense is workers comp: "I took the medicine for a work related injury. The medicine caused my stroke. Therefore, the stroke is causally related to my work injury." Up go the reserves, up go the payments, up go the premiums.

Even if the worker pursues a third party action against Merck, there is no guarantee that the insurer will benefit very much from the subrogation. Judges often limit insurer recoveries in these situations. Insurers may end up absorbing much of the financial impact of the medication on their claim -- which means, in turn, that some of the costs will be passed along to employers through the experience rating system. (It's important to note, however, that due to the discounting of "excess losses" -- those above $5,000 in each claim -- the Vioxx burden will fall more on workers comp insurers than on the insureds.)

Remember Vioxx!
Is there a lesson here? We think that doctors are making some peculiar decisions in relying so heavily on exotic medications such as Vioxx and Oxycontin. We question the process that leads doctors to pick the most expensive medication where other proven, less expensive alternatives are readily available. We remain sceptical of the influence that drug companies exert on which medicines are prescribed and when. Perhaps insurers and pharmacy management programs should hand out free mugs to every physician in their networks, emblazoned with the motto: "Remember Vioxx." It won't cost much and it just might save a lot of money in the long run.

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July 15, 2005


The Insider is intrigued by the decision-making process that leads a doctor to prescribe a particular drug -- say, oxycontin, a potent and addictive pain killer -- as opposed to some other medication for a work-related injury. Oxycontin was orignally developed for the extreme pain of cancer but quickly migrated to an almost routine use among workers with strains and sprains. Who got inside the doctor's head to reach for the more potent and more dangerous medication -- and how did they do it?

According to a fascinating article in today's Wall Street Journal by Scott Hensley and Barbara Martinez (available by subscription only), the path to a doctor's brain is at least in part through his stomach. Drug companies are sponsoring luncheons at fancy restaurants, where a trained doctor leads a discussion on a specific medical condition that requires pharmaceutical intervention, just possibly a drug manufactured by the company picking up the tab for the lunch.

The doctor who leads the luncheon discussion has been trained by the drug company in the efficacy of a given medication for a specific condition. The article cites one luncheon focusing on "sinus headaches." The lead doctor advises his fellow docs to consider the possibility that the condition is really a migraine. While he does not specifically recommend the sponsoring company's product for migraine, he has definitely planted a seed that may sprout the next time a patient complains about sinus headache.

Doctors are paid a fee to attend training sessions sponsored by the drug company. They are also paid for each "educational session" which they run. The fees do not appear to be huge -- in the range of $750 to $1,200, but some doctors were supplementing their income to the tune of $60,000+ per year. It's important to note that the participating doctors insisted that they are not flacks for the drug companies -- they say that they answer questions at these sessions honestly and candidly. In the example of the migraine headaches above, the lead doctor mentioned the availability of generic medications,in addition to those made by the sponsoring company.

In 2004, there were 237,000 meetings involving doctors presenting to their fellow docs. By comparison, in the same year there were 134,000 meetings involving a salesperson presenting to doctors. Which was more effective? The return on investment for the presentations involving a doctor was twice that of the other sessions.

Spreading Vioxx
Drawing upon documentation involving pending litigation, the article states that
increased use of Vioxx can be traced directly to doctor seminars. Doctors who attended a lecture on Vioxx on average wrote $624 more in Vioxx prescriptions than those who did not attend. For doctors attending a more intimate group, such as the above luncheons, the increase was $718. By contrast, doctors attending a lecture by a salesperson only wrote $166 more in Vioxx prescriptions. It does not take a lot of imagination to track the rise in Vioxx use, from one lecture hall to another, from one luncheon to another. The road to the proliferation of Vioxx was paved one menu at a time.

Not-So-Exact Science
To those of us on the outside, medicine appears to be an exact science. As patients, we certainly hope it is. But to the front-line practitioners, it can be far from exact, a world of intense time pressures, full of puzzling symptoms and inordinate urgency. Faced with these pressures, a treating physician may well rely on the advice he heard while consuming grilled salmon with mustard-dill sauce.

For a fascinating summer read, I highly recommend Complications, written by Atul Gawande, a surgeon who is also a fine writer. The book will help you appreciate the uncertainties of medicine and give you a little insight into what goes on inside a doctor's brain.

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July 8, 2005


We have long been intrigued by a number of conundrums relative to drug prescriptions in the workers comp system. Why are exotic brand name drugs prescribed so frequently, when effective generics are readily available? Why are doctors so quick to adopt "off line" uses for exotic drugs, endorsing unconventional applications for very expensive medications? What accounts for the remarkable success of pharmacy companies in getting doctors to do what they want them to do? And why do insurers simply pay the bills, without asking doctors the rationale for what appears to be a very odd and problemmatic decision-making process?

Paying Too Much...
Our esteemed colleague, Peter Rousmaniere, principal of Rousmaniere Associates, has delved long and deep in these issues. He has two intriguing articles in the current issue of Risk and Insurance (available here). In the first article he presents a study done by a Cleveland area Pharmacist, Phillip Parsons, in conjunction with the Ohio State Fund and Archestral, a data analysis firm. They analyzed a number of prescriptions written in Ohio, Michigan and Pennsylvania. The study found that of the total $179 million in payments for the two million prescriptions, about $25 million were questionable. Overall, 20 percent of prescription payments contained at least one error.

Among the problems uncovered were:

8 percent to 15 percent of drug purchases conflicted with the compensable diagnosis.
7 percent to 10 percent of prescriptions were for brand names when generic substitutes were available.
As many as 11 percent of prescriptions were incorrectly priced.
All told, about 9 percent of prescriptions, or $16 million of total paid prescriptions, had no evident relationship to the work injury. For example, payments were made for Lotrel, used to reduce high blood pressure, which would rarely be appropriate for treating a work-related injury.

A second major type of error was failure to price the drug at the lowest available price. In all, about $4 million, or about 2 percent of total payment, was due to incorrect pricing.

Perhaps the most alarming finding of the study is in the area of painkillers. Exotic brand-name drugs were routinely prescribed, rather than less expensive generic equivalents. Paying for brand names added $11 million, or 6 percent of total payments. Beyond that, the study found that the ratio of brand to generic purchases was significantly higher for the more powerful pain medications, such as Oxycontin. In one egregious example, $12,000 was paid for one year of Oxycontin, for a 1990 workers' compensation claim of "neurotic depression." Yikes!

For all cases with both brand and generic alternatives, 8.6 percent of generic opportunities were missed. For pain medications, 12 percent of generic opportunities were missed. For the federal Drug Enforcement Administration's "schedule II" pain drugs those with highest known abuse more than 20 percent were brand instead of generic. I suspect that this one study is truly indicative of a national problem.

The Wrong Medication...
In a second article, Rousmaniere explores what may be an even more important issue: the heavy reliance of the medical community on pain killers to treat work-related injuries. Rousmaniere cites the treatment guidelines of the American College of Occupational and Environmental Medicine, which state: "Pain medications are typically not useful in the subacute and chronic phases [of injury] and have been shown to be the most important factor impeding recovery of function." [Emphasis added.] Get that? Pain medication slows down recovery! And in the world of workers comp, slower recovery translates into significantly higher costs.

The article goes on to challenge readers to analyze the root causes of over-medication. Rousmaniere offers a long menu of interesting options for getting control of pharmacy costs. The menu includes:

Aggressively enforce generic substitution rules; promote the availability of drug-detox vendors; screen for possible illicit usage and refer cases for investigation; promote among employers substance abuse/EAP services; contact high-volume pain-med-prescribing doctors to discuss treatment philosophy; promote alternative, non-drug-focused treatments for chronic-pain issues; require prior approval and peer review of all narcotic prescriptions ongoing for more than 90 days; require claimants receiving narcotics to participate in a drug education program; and promote pain-management treatment guidelines.

There is plenty of food for thought here. It's not only a list of what needs to be done, but it raises the issue of who should do it. Pharmacy management has become an industry buzz word. Everyone seems to be doing it, but are they doing it effectively? Are we really getting to the core issues: too many doctors are routinely prescribing expensive, highly addictive medications for work-related injuries. The entire medical community is relying much too heavily on pain medication to solve problems. To put it bluntly, we appear to be paying too much for the wrong medications. And that's certainly no prescription for success.

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June 27, 2005


David Montgomery, a staff writer for the Washington Post, has written a moving and intimate article (registration required) about John Keitz, who weighs 625 pounds (down from his maximum weight of 781 pounds). The article is accompanied by a remarkable set of photographs, which you should be able to link to at the article. Keitz is so heavy his legs will not support his weight. The last time he stood on his feet was Aug. 1, 1998. That night he was making macaroni and cheese for his wife, Gina. He boiled and drained the noodles. Right after he cut in the Velveeta (nutritionists take note), he went down -- and he has been bedridden ever since. Keitz is 39 years old. This article presents Keitz as a man of Falstaffian dimensions, who regales the reporter with his exploits as a youth and dreams of the day when he can sit up and even stand up on his own.

Morbid Obesity Personified
Keitz has to lie on his front, because if he were to lie on his back, rolls of flesh would press on his windpipe and suffocate him. His head never touches sheet or pillow. At night, his left cheek nestles upon a soft white pile of shoulder and breast meat.

Every time Keitz must be moved -- usually to the hospital to treat his asthma -- a major public drama ensues. One time, firefighters removed two windows from his second-story apartment and extracted him with a lift truck. More recently, firefighters used a whale sling from the National Aquarium in Baltimore to haul him out of his house in Dundalk. They put him on a flatbed truck. His ordeal was rehashed on late-night television and morning radio.

Obesity as Illness
At 26, Keitz got the first dramatic warning that his weight was barreling out of control. On the job at a bowling alley, his knees gave out. Doctors diagnosed severe arthritis. He stopped working regularly and began receiving disability checks. I think we can assume that the disability payments were under SSDI and not workers comp.

Montgomery writes that many scientists, doctors and health insurance executives are coming around to the conviction that obesity is a disease. But it is a disease with personal responsibility attached. Advocates for obese people say health care is full of conditions that involve personal choice: smoking; alcoholism; gum disease brought on by poor dental hygiene; skin cancer following too much tanning. Yet obesity is unique in how much blame is placed on the victims themselves. "Once you take off this moral interpretation, it is a dysfunction of the body and an abnormal physiological state," says Morgan Downey, executive director of the American Obesity Association in Washington.

Workers Comp Risks
I would direct you to the 6th image in the gallery of photos that accompanies the article. (It is sometimes difficult to access Washington Post articles, so I will describe the scene in detail.) Six men from East Coast Ambulance surround Keitz. They have placed a yellow rubber tarp under him. On the count of three, they all lift. You can see the strain on the face of one of the men near to the camera -- the faces of the others are obscured in the dim light of the dingy apartment. The men have only the yellow tarp to hold -- there are no handles, so the lift places tremendous pressure on their forearms, fingers and wrists. Four of the men are clustered around Keitz's formidable upper body, so only two are available to lift his lower body. Theoretically, it's a 105 pound lift for each man. However, Keitz's great bulk is prone to shifting, so the weight itself may change as they head for the ambulance. Indeed, you can tell from the photo that some of the men bear more weight than others (at least one appears to be "dogging" it). Ergonomically, the lift is far from ideal. Beyond that, there is clutter on the floor -- tripping hazards for the men as they begin to move Keitz toward the door. There is no stretcher or gurney in the photo -- it appears that they are going to carry him out of the house to the waiting ambulance.

The doorway is of average width. How will the men get through it, when Keitz's bulk alone will barely fit through? The men at his head will have to squeeze ahead, while trying to keep Keitz from slipping out of the sling. We are left with no answers, as this is the only photo of this particular move. Given the absence of additional details in what is a very comprehensive article, perhaps we can assume that the lift was performed without any problems. No workers comp claims this time. (One hospital client of ours had two serious back injuries in the single lift from an ambulance of a similarly sized person.)

Heavy Issues
Obesity is surely a personal crisis for those who suffer from it, as well as for those who love them. It presents challenges to employers. It is also a crisis for the insurance industry -- to pay or not to pay for stomach stapling, that is the question -- see this Los Angeles Times article. On the front lines, it's a huge challenge for health care workers who are called upon to move morbidly obese individuals under very difficult conditions. In the working world, it's not always possible to perform the work as outlined in the ergonomic textbooks. All too often the workers -- and their employers -- are left to bear the consequences.

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June 21, 2005


The aging of the American workforce is a dynamic that we have been tracking closely. I can personally swear that as one ages the body begins to wear down. Oh, that this truth were not so.

In my father's day, it was common for people (mostly men) to work until age 65 and then retire on the proverbial company pension augmented by social security benefits. That changed dramatically toward the end of the twentieth century.

In the mid to late 90s, the goal became to retire early; age 55 would be nice. The dot-com bubble suckered us all into thinking it could be done. In 1998, a Gallup survey, conducted for USB Financial Services, found that only 36% of respondents planned to wait to retire until age 62 (pdf). But the horror of 9/11, the war on terror, the stock market collapse of 2001 that substantially reduced portfolios and the myriad Enron-type scandals that blew away entire pension funds all hit older workers smack dab in the middle of their futures. And when Gallup conducted the same survey in 2002, the percentage of workers who planned to put off retirement until after age 62 had grown to 47%. In 2004, the number had ballooned to 57%.

So, now we've returned to my father's time, except without the pensions and with significantly delayed and threatened social security. Older workers will continue to get older on the shop floor.

Do you think that the workers' compensation system is prepared for this? Age isn't considered in workers' comp manual rating. (Neither is education, but we'll leave that for another time.)

Rotator cuff sprains and aging
Here's something to think about. The rotator cuff sprain (something I know a great deal about) ranks 28th in terms of injury frequency for all workers, but 3rd for workers age 65 and above. In fact, 3 of the top 4 injuries to older workers are of the soft tissue variety to the shoulder, neck and lower back. To see a dramatic example of how bodies really do break down over time consider the following NCCI chart, which depicts the frequency of rotator cuff sprains by different age groups.

When valued at 18 months, the rotator cuff sprain of an older worker costs about a third more than for any other age group, $28,360 versus $21,910 for all other age groups. Moreover, every one of the top ten injuries to older workers costs substantially more than the same injuries among younger workers. And this situation will get worse as more and more older workers are literally forced by financial circumstances to stay on the job.

We believe that this phenomenon is so serious an issue that it may ultimately impact the way manual rates are calculated.

The impact on employers
As if running an American company weren't hard enough already, what does this mean for employers?

It's a problem. On the one hand, older workers have been doing their jobs for a long time; they're good at them, and they have experience that just can't be found in their younger colleagues. On the other hand, although younger workers have more injuries, those injuries are substantially less costly than their older mentors.

A knee-jerk, and very discriminatory, response might be for employers to try to "weed out" the older population and replace it with its younger version. We can only hope no employer starts the long walk down this painful and litigious road.

We'll continue to think about this issue and report on it in subsequent blog postings. As always, we invite your comments. But for now, we advise employers with aging blue collar workforces to re-double their safety and ergonomic efforts in order to provide as much protection as possible for these very skilled and experienced, but potentially brittle workers.

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June 10, 2005


The National Institute of Mental Health recently issued the findings of its $20 million study of mental health in the United States. Parallel studies are taking place in 27 other countries, but even though these studies have not yet been completed, the National Institute of Mental Health is ready to declare us the winners. "We lead the world in a lot of good things, but we're also leaders in this one particular domain that we'd rather not be," said Ronald Kessler, the Harvard professor of health care policy who led the effort, called the National Comorbidity Survey Replication (PDFs here).

News Coverage
I am as fascinated by the way the study is being presented in the media as by the study itself. Just take a look at some of the headlines gleaned from newspapers and the internet:
"U.S. Leads in Mental Illness" (Washington Post)
"U.S. Mental Health Holding Steady"(Science Now)
"U.S. Mental Survey Depresses Experts" (
"Mental Disorders Strike Nearly Half of All Americans"
"Little Change in Suicidal Thoughts or plans in U.S. " (Medical News Today)
And the winner is:
"Survey Says Person Next to You is Nuts" (Web Pro News)

The study involved face to face interviews with over 9,000 individuals. The surveyers were carefully trained. The questionnaires were detailed and comprehensive. I am not sure how you can extrapolate the mental health condition of 296 million people by surveying .00003 percent of them, but I'm neither a mathematician nor a mental health expert, which is probably just as well.

The study found that less than half of those in need of mental health services get treated. Those who seek treatment typically do so after a decade or more of delays, during which time they are likely to develop additional problems. And the treatment they receive is usually inadequate. The study projects that almost half of Americans (about 145 million people) meet the criteria for illness at some point in their lives, but acknowledges that most cases are mild and do not require formal treatment. Every year about 6 percent of adults are so seriously affected that they cannot perform even routine activities for periods averaging three months.

The report speculates that this lack of appropriate intervention results from a number of causes, including the failure to recognize early warning signs, inadequate health insurance (I would add, routine exclusion of mental health services by health insurers) and the lingering stigma that surrounds mental illness. Indeed, once people are perceived as having a mental problem, they may not be able to escape being seen in that light.

Thomas Insel, chief of the National Institute of Mental Health, said the nation needs to recognize that mental illness is a chronic condition that requires expert medical attention just as heart disease, Alzheimer's and diabetes do. Intel was disappointed to learn from the survey that despite the availability of effective treatments for many mental illnesses, about a third of people in need rely solely on nonprofessional sources such as Internet support groups and spiritual advisers.

"You wouldn't rely on your priest for treatment if you had breast cancer," Insel said. "Why would you go to your priest for a major depressive disorder? These are real medical and brain disorders, and they need to be treated that way." [Disclaimer: reading the Insider will do nothing for depression and may on certain days actually increase anxiety.]

Implications for the Workplace
The study does not attempt to project the number of American workers trying to perform their jobs while suffering from mental disorders. But if nearly half the population has a problem at some point in their lives, then the workplace must be pretty well saturated with potential issues. We have a long way to go in recognizing how mental health impacts job performance and in developing meaningful interventions. When you're Number One, it's lonely -- and sometimes even dangerous -- at the top.

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May 24, 2005


Workers comp is about injuries and injuries require medical attention. Our colleague Joe Paduda blogs the problem of finding good medical care under the comp system. Back in the 90's, there seemed to be a proliferation of occupation medical practices: from hospital based occ clinics to the "doc in a box" walk-in clinics, there were a lot of options for treating injured workers. These options have diminished dramatically over the past few years. Why? It's pretty simple: a combination of not enough volume (injury rates are declining) and suppressed rates of reimbursement (rate schedules for medical services under comp tend to be low). In addition, you need to consider the context: total health care in this country costs $1.4 trillion, while the comp portion of this is only $30 billion. Comp, in other words, is chump change in comparison to medical care in general.

Paduda's blog shows that the prevalent trend is away from networks specializing in work related injury and toward bringing injured workers into conventional health networks -- in other words, family practices. This is far from an ideal situation. Occupational medicine brings a unique and essential focus to work injury: the goal is always to keep people as productive as possible; to help them heal faster by returning them to work as soon as possible, often through the prudent use of temporary modified duty. I'm not sure that traditional family practices view injuries the same way. Family doctors are perhaps more sensitive to the pressures and issues outside of work. I suspect they are more inclined to give the injured work time away from work, especially when they know that any lost wages will be covered by indemnity payments. They are not used to communicating directly with their patient's employer. Indeed, if the patient doesn't like his or her job, the doctor may be inclined to separate the goal of getting the patient better from returning him or her to work.

Paduda highlights one exception to this trend: the recently announced merging of The Hartford's workers comp business with Aetna's workers comp specialty network, which is available in Pennsylvania, New Jersey, Connecticut, Texas and Virginia. Aetna's network includes 130,000 physicians, hospitals and other health care providers. Aetna, along with Corvel, HealthFirst, Concentra and Focus, and a few others, continue to offer occupational services for injured workers.

Preferred Provider Networks that Really Work
I have long been intrigued with the issue of medical care in the workers comp system. I'm not sure that anyone has got it quite right. In the ideal system, doctors explicitly buy into the notion that a rapid return to work is the optimum result. They are committed to a "sports medicine" approach. They limit office visits and therapy to what is truly needed. They prescribe the necessary medications, but are careful to use generics where appropriate (even though the patient doesn't really care, because there is no co-pay). These doctors are able to resist the raucous pitch of drug companies to experiment with off-line use of branded medications. And they communicate readily with their patients, the employer and the insurance carrier.

In exchange for all this good work, occupational doctors should be paid reasonable rates -- which in many states means paying well above scheduled rates. Too often, the established rates (and the rates within many of the formal medical provider networks) are ferociously suppressed, which can lead doctors to make up the difference by over-utilization; in other words, suppressed rates do not necessarily produce lower costs. In addition to paying occ docs above rate schedules, they should also be reimbursed for certain key activities that usually are provided for free -- such as filling out return-to-work status reports. If you don't pay for such reports, the message to the doctor is that the reports are not important. In the comp system, there is no more important communication than the doctor's take on medically necessary restrictions -- what the employee can and cannot do.

We recommend that employers with any significant volume of injuries develop a relationship with their local providers, whether or not they are in a formal provider network. Make sure that the provider understands your commitment to modified duty. And let your carrier or TPA know that you are not interested in saving a few pennies by forcing your medical provider into a punitive rate schedule. Rather, you want to pay a little extra, in order to secure the level and quality of service that ensures success in workers comp cost control.

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May 24, 2005


Over the weekend, one of our regular readers left a comment in another post asking for information about work injuries that are aggravated by a pre-existing condition. At one time, most state laws had Second or Subsequent Injury Funds (SIFs) that offered some measure of recovery to employers/insurers for injuries that were exacerbated by a pre-existing condition, whether that condition was due to a work-related injury or some other prior illness or condition. In workers comp, an employer's premium rates are based on past loss experience. A second injury can often result in a very expensive claim, so the inclination would be to avoid taking any chances by hiring someone with a pre-existing condition. The purpose of SIFs is to prevent discrimination of disabled employees in hiring. SIFs provide a measure of financial relief for employers, either by reimbursing insurers/employers directly, or by taking over benefit payments for the injured worker.

Since the 1990 enactment of the Americans with Disabilities Act (ADA), many feel these funds have outlived their purpose since the ADA affords job applicants protection from discrimination on the basis of health or disability issues. Because of this, many states have eliminated funds in recent years, but funds are still operational in about 20 states - check with your insurer, your agent, or your state workers comp authority to find out if your state has such a fund.

The way that funds operate varies from state to state. In most states that still have funds, an employer must be able to demonstrate that they knew about the pre-existing injury or condition prior to the second injury. That's the tricky part. ADA prohibits an employer from exploring past medical history in the hiring process, so any knowledge about pre-existing conditions must be gained after an employment offer and before a work injury. Sometimes, this can be done in post-hire medical exams or through conditional job offers contingent on medical exams, but this is another tricky area. The law firm of Wildman Harald offers an employer guidelines for complying with the ADA in the hiring process.

For more information, Mark Nevils of Insurance Recovery Group has an excellent primer on Second Injury Funds (pdf) that's worth a read for more details. And California employers take note - he also has an article on the new amendment to the California Workers Compensation Law (SB 899) dealing with apportionment of permanent disabilities (pdf). This amendment offers some loss mitigation opportunities for employers in the event of pre-existing conditions.

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May 16, 2005


Lately we've been thinking a lot about drugs. According to a study released by NCCI last year, prescriptions are taking an increasing portion of medical care in workers compensation: rising from about 6.7% of total costs in 1997 to 12.1% in 2002. The precentage today is probably higher than that.

So what? Is this really news? The LynchRyan focus is not so much on rising costs as on which costs are rising: in other words, which drugs are being prescribed under the workers compensation system and why.

Generic versus Brand Name
In the battle between generics and brand name drugs, brand names are winning out big time in workers comp. The NCCI study (going only through 2002) reveals that generics are prescribed 79% of the time. This sounds good -- where generic equivalents are available, they are prescribed a majority of the time. But let's look a little deeper. The study reveals that 56% of the time, there are no generic equivalents. In other words, over half the time doctors are prescribing brand name drugs, which are always more expensive. As a result, generic drugs comprise only 35% of written prescriptions. Beyond that, doctors are making some interesting choices in which drugs they prescribe. Take a look at NCCI's top 10 drugs by total paid:

First in line, Celebrex, an anti-inflammatory with no generic equivalent. It's advertised as an arthritis drug.
Second, Oxycontin, a painkiller originally developed for terminal cancer patients. (Some studies show still show Oxycontin as the #1 drug under workers comp.) Oxycontin's addictive potential and readily abusable state are well documented.
Third, Vioxx, another anti-inflammatory (recently removed from the market).
Fourth, Hydrocodone, another painkiller, and the first generic to make the list.
Fifth, Neurontin, prescribed for pain. This drug is specified for certain seizure disorders and for the pain of shingles. Why is it so popular for workers comp pain?
The top 10 list is rounded out by Ultram (a painkiller with a generic available); Carisprodol, a generic muscle relaxer; Cyclobenzaprine, another generic muscle relaxant; Soma, a brand name muscle relaxant; and Ambien, a brand name sedative.

I am tempted to ask, what's the problem with Soma's sales force? Why is their brand lagging behind the generic equivalents?

In general, pain killers comprise 55% of workers comp prescriptions. No surprise, given that pain is a major component in injuries. But why are doctors relying on brand names, when there are very powerful generic drugs available for pain? Why prescribe Oxycontin? Why is Neurontin so popular?

Is this what consumers want?
There is one major difference between prescriptions written for workers comp and those written under conventional health plans. When you fill a prescription under your health plan, you almost always are asked for a co-payment. The co-pay tends to be much higher for brand name drugs, which is an incentive for the consumer to choose a generic equivalent. But in workers comp, there is never a co-pay. Thus there is no incentive for the consumer to make do with a generic equivalent. Does this mean that consumers -- injured workers -- are driving up the costs of prescriptions by requesting brand name medications? It might be a factor, but I doubt that it's a major factor. The answers lie in the highly trained minds of the doctors. Just what are they thinking? What leads a doctor to prescribe a powerful and addictive drug, when a safer generic is readily available? What is the specific decision making process for a doctor when he or she takes out the little prescription pad?

This is a workers comp blog. We don't presume to have the answers to these compelling questions. We do try, however, to identify the key issues and this is indeed a big one. Prescription choices and costs are an important dimension of the workers comp world. The continuing popularity of the widely abused Oxycontin, the off-label use of branded drugs such as Neurontin, and the heavy reliance on branded anti-inflammatory drugs add up to big profits for the drug companies. But are they medically necessary? Are these drugs really what injured workers need to get better? Are doctors making the right choices for the right reasons? Only time -- and better data -- will tell. We will surely revisit this issue in future blogs.

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May 11, 2005


The Canadian Centre for Occupational Health and Safety (CCOHS) recently held a national forum on Recognizing and Preventing Occupational Disease. and as a part of that forum, delegates participated in workshops where they developed new strategies for dealing with occupational disease. The preliminary results of these forums are posted as survey recommendations under the following categories:

  • Infectious Diseases
  • Occupational Cancer
  • Respiratory Diseases
  • Stress
  • Workplace Musculoskeletal Disorders (WMSDs/RSI)
  • General Occupational Diseases

Through Friday, May 13, site visitors can take the survey, although Canadian data only will be used in final results. In addition to offering recommendations from the survey, the site affords access to many of the presentations on occupational disease that were made at the forum, either in PowerPoint or PDF formats. The CCOHS is an extensive resource that may be less familiar to U.S. readers. It offers many excellent health and safety resources in English, French, and Spanish. Although the Canadian comp system and regulatory matters are different in Canada than in the U.S., worker health and safety issues are universal.

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April 13, 2005


I set out this morning to blog the general status of "exclusive remedy" in the workers comp system, but I've been distracted by a specific case which involves an injury to a professional athlete. I will return to the more general ramifications of "exclusive remedy" in a few days.

Greg Lotysz was a lineman for the New York Jets. In July of 2000 he sustained an injury to the anterior ligament of his left knee while blocking another player during pre-season practice . Pursuant to his NFL Player contract and the players's Collective Bargaining Agreement, he received care from the Jets' Medical Department. Lotysz underwent surgery and post-surgery rehabilitation under the care of the Jets' physicians. A post-surgical infection resulted in permanent damage to his knee, which in turn brought a premature end to his football career.

No Malpractice Here
Lotysz tried to sue the team doctors for $10 million in damages, but in December of 2002 an appeals court in New York ruled against him. The court found that the doctors were employees of the Jets, that their medical services were made available to plaintiff as a consequence of his employment and that their services were not available to members of the general public. In other words, the court viewed the team doctors as co-workers of the same employer, so tort liability was not available as a remedy. You cannot sue your employer and you cannot sue co-workers for work-related injuries. Comp was the "exclusive remedy" for the injured player. It's interesting to note that the unions for all the major pro-sports leagues (NFL, NBA, NHL and MLB) filed a friends-of-the-court brief in Lotysz's behalf, arguing that team doctors are actually independent contractors. (You can view a detailed case study of Lotysz's story here.)

The fact that Lotysz's claim falls under the workers compensation system is not all bad. While he cannot sue the doctors for malpractice, he is eligible for indemnity benefits (admittedly chump change compared to a professional lineman's salary) and for lifetime medical benefits for any treatments related to the injury (given the apparent permanency of his disability, this could turn out to be a significant benefit).

It is important to note that hospitals and similar medical facilities that treat both the public and their own employees may not find the courts so receptive to the "exclusive remedy" approach. For the most part, when hospitals treat their own employees for work related injuries, they become a third party vendor. If employees are unhappy with the treatment, they usually have the option of pursuing tort remedies. The main difference, I would guess, is that the hospitals routinely treat the public, while the "team doctors" have a more limited practice.

Docs and Jocks
The Lotysz opinion is binding only in New York. It's possible that under similar circumstances other states will conclude that team doctors are indeed third parties and thus liable to lawsuits for malpractice. In the world of professional athletics, the medical profession is intricately involved in what from time to time may be ambiguous circumstances. With such enormous sums of money at stake, owners may pressure doctors to rush star athletes back onto the field. Permanent damage may result. Under these circumstances the player will certainly want to pursue a tort remedy. Whether this option is available to the athlete remains a state by state situation.

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April 4, 2005


As the costs of health insurance rise, the number of people who cannot afford it rise, too. An article in the Los Angeles Times (registration required) addresses the issue of people spending more of their income on health insurance, to the point where they can no longer afford coverage. Working families are devoting as much as 25% of their income for health insurance, forcing them to reduce other expenditures drastically. Of course, this is not a new issue. We blogged it back on March 9, 2004.

"More people are nearing a tipping point," says Mark Goldberg, senior vice president for policy at the National Coalition on Health Care, an organization of businesses, provider groups and pension funds that advocates for affordable healthcare. "Eventually, something has to give."

Like the house-rich, cash-poor who stretch their finances to pay for housing, those who are barely holding on to their coverage are increasingly known as the "insured poor." Eventually, many probably will lose the battle, joining the 45 million Americans without medical coverage.

The Times article points out that more employers also are capping the amount they spend on health costs, meaning they're no longer increasing what they contribute to an employee's plan. So as premiums rise, employees are on the hook for paying for them, which in effect is a cut in pay by the amount of the increase. In addition, as premiums climb higher and higher, a small but growing number of companies, mostly smaller firms, have started dropping employee health insurance altogether.

The Kaiser Foundation estimates that in 2001 about 15% of the workforce lacked health coverage. In Florida, the figure appears to be 20%. While a number of states have gotten involved to the point of providing coverage for minors, the needs of adults have not really hit the radar screen.

Implications for Workers Compensation
Its not hard to see that a lack of health insurance coverage might impact workers compensation. Uninsured workers are much less likely to practice preventive health care (annual check ups, etc). As a result, they are at higher risk in the workplace for aggravation of their non work-related conditions. Their basic health may deteriorate due to untreated illness. Indeed, some untreated conditions will impact their ability to perform their jobs safely.

The Kaiser report reveals that among the employed who lack a high school diploma, 40% lack health coverage. That is special cause for concern, as research shows an increasing correlation between a lack of education and prolonged disability under workers compensation. To a large degree, the higher comp costs are probably the result of a lack of transferable skills. But the absence of health coverage may also be a hidden factor: among less educated workers, when there is only one insurance option, there may be inevitable cost shifting into workers comp (which is, of course, available to virtually all employees).

Its hardly a good strategy to put workers in the debilitating situation of proving their conditions are work related (and thereby collecting both medical and indemnity benefits) or, in the absence of such proof, trying to pay their own way through the medical system (doomed from the start).

The Kaiser study shows that 25% of the self-employed lack health care coverage. Its interesting to note that independent contractors by definition, self-employed are thus more likely to lack both health insurance and workers compensation coverage. This despite the fact that they often are involved in high risk work such as the construction trades. (We blogged the conundrum of independent contractors back in March of this year.)

The lack of health insurance for so many Americans is a crisis -- a relatively quiet crisis at this point, considering the scale of the problem. But as the issue bleeds more and more into the middle class, and as the impact on workers compensation costs becomes more pronounced, the crisis should become more visible. Eventually, our politicians might be ready to frame a coherent discussion of a real problem: reliable and affordable health care for all Americans. But I'm not exactly holding my breath.

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March 29, 2005


In this country, when traumatic events occur, we send in the counselors. Whether its a school shooting, a tragic fire or violence in the workplace, counselors are routinely sent in to help survivors deal with the trauma. Is that the best way to help people heal? Is it a universally accepted response?

After a recent conference in Rome called "Project One Billion," New York Times essayist Dr. Sally Satel raises some interesting doubts about the efficacy of counseling (registration required to read the article). The article is entitled "Bread and Shelter, Yes. Psychiatrists, No" -- a compelling title, given that Satel herself is a psychiatrist. The Conference was organized by Dr. Richard Mollica, a psychiatrist at Harvard, under the auspices of the World Bank, the World Health Organization, and humanitarian nonprofit organizations.

A Billion Sufferers?
"One billion" signifies the number of people worldwide, roughly one in six, suffering the psychological consequences of war, torture and terrorism. (Unless you include the trauma of abject poverty, I think or at least I hope that one billion may be an overstatement.) The conference addressed the fundamental issue of how to provide help: can therapy and counseling speed the healing process for the survivors of significant trauma?

Dr. Satel states that for the last 15 years or so, humanitarian workers have been exporting the concept of post-traumatic stress disorder and trauma counseling around the globe. They have rushed in to impose a Western-style "debriefing" - a group therapy technique intended to get victims to express their feelings about a horrific event and to relive it as vividly as they can - without regard to the needs of the victims, their natural healing systems or their very conception of what mental illness might be.

This particular conference appears to have concluded that the use of this type of debriefing is not what is really needed by people who have suffered from trauma. Instead, Dr. Mollica urges that Western mental health workers collaborate with indigenous healers. The W.H.O. now instructs aid workers to "listen, convey compassion, assure basic physical needs, not force talking, and provide or mobilize company preferably from family or significant others." That sounds like good advice in any post-traumatic stress situation, no matter what the circumstances.

Keep it Practical
Kenneth Miller, a psychologist in the Chicago areas Bosnian Mental Health Program, saw much suffering among his clients - they had been placed in concentration camps before migrating to the United States - yet they did not really want to talk about the terrible things that had happened. The most successful feature of his program involved practical help such as education and job training. These people wanted to move on, not linger on their terrible recent past.

If you examine any traumatic situation, you will find a variety of responses among the victims. Some will want to talk, others will want to move on with their lives as quickly as possible. There is no one size fits all remedy. I imagine that the most important quality for any responders any people who come face to face with victims in the immediate aftermath is the ability to listen carefully. It is not helpful -- it can indeed be most harmful -- to impose on those who suffer our own belief systems and our own narrow views of the healing process.

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March 22, 2005


A little while back we blogged the conundrum of smokers, whose habit, while not illegal, does impact their over-all health and their ability to recover from injuries (whether work related or not). Today well look at obesity: another physical condition that can severely impact the recovery time of injured workers.

Obesity and Discrimination
As with smoking, obese individuals are generally not considered disabled, and thus are not explicitly protected by the 1964 Civil Rights Act or the more recent Americans with Disabilities Act. Only one state, Michigan, protects obese individuals from discrimination in employment. In all other states, it appears that employers can readily discriminate against obese people.

Advocates for the obese point out that such discrimination is common. Obese people face many obstacles in hiring, in promotion and in pay.

Slower Recovery
Writing in Risk & Insurance Magazine, our colleague Peter Rousmaniere explores some of obesitys impact on the recovery of workers from work-related injuries. While its clear that obesity can have an adverse impact on the duration of disability, Rousmaniere finds that most claims adjusters fail to focus on the relationship of weight to recovery. Weight becomes a wellness issue that falls beyond the parameters of a specific injury. Doctors are more likely to be aware of it. For example, they might hesitate to perform knee replacement surgery on an individual whose weight might compromise the success of the operation.

Safety Hazards
Morbidly obese individuals face unanticipated safety hazards. For example, emergency exits and fire escapes may be inaccessible for a person weighing 300 plus pounds. The ability to navigate stairs under less than ideal conditions is likely to be very limited. There were a number of sad tales from the 9/11 disaster involving obese individuals unable to make it down the seemingly endless stairways of the World Trade Center Towers. In addition, its safe to assume that many obese people may lack the aerobic capacity required by emergency situations to beat a rapid path to safety.

Accent the Positive
We do not recommend discriminating against any class of people, whether they smoke or are obese. On the other hand, it is certainly fair for employers to promote and encourage wellness. If smokers want to quit, its in the employers best interests to help them. If obese people want help in losing weight, again, its in the employers best interests to help them.

It gets tricky indeed reaches the level of a conundrum when smokers are comfortable with their smoking and when obese people have no interest in changing their situation. Here, employers need to tread cautiously, but with the understanding that when smokers or obese individuals are injured on the job, their recoveries may be compromised by their situations. Disability may be prolonged. It may be more difficult to accommodate obese people on temporary modified duty. It is therefore all the more important to keep the lines of communication open and to make sure that every worker, regardless of their habits or physical condition, feels valued. If someone is good enough to hire and train, they are important enough to retain. Employers must never lose sight of this simple but compelling truth.

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March 14, 2005


On a bitter cold day in the dead of winter a few years back, I drove into the underground parking garage of a major insurance company. There were dozens of people huddled outside the elevators. I first assumed that there was a fire drill and the building had been evacuated. On second look, I discovered that these were employees who wanted to smoke. They were "outside" -- albeit, underground. I think it was simply too cold to smoke at the street level. I wondered whether the exposure to bitter cold would compound the health risks of these people, who had been banished from the indoor space to indulge their habits.

Smoking is frequently in the news. Weyco, a Michigan-based health care benefits company, announced recently that it would terminate any employees who persisted in smoking, on or off the job. The company pointed to the higher cost of health care for smokers -- which they estimate at $4,000 per employee -- and to the fact that they are in the health business, coordinating cost-effective health care for employers. It is interesting to note that they have one employee in Illinois, which prohibits discrimination against smokers. If this employee chooses to smoke, there is nothing Weyco can do about it. I can almost see the smirk when he or she lights up!

There are currently 29 states that prohibit discrimination against smokers (listed here). That means there are 23 that allow employers to refuse to hire and retain people who smoke. Unlike the use of illegal drugs, smoking is not an illegal activity per se. You just cannot do it in many places. Some of the pro-smoker websites point out that even where smoking is illegal (bars, for example), some judges have ruled that the bar owner has no obligation to enforce the statute.

Workplace fairness, a pro-smoker website, points out the downside of this type of discrimination. Across-the-board policies result in the termination of skilled employees, whose services are valued, even if they are at higher risk for prolonged illness and even if the cost of their healthcare is higher than other employees. They raise caution flags about the loss of privacy in our culture: not only is smoking prohibited on the job, you can be fired for lighting up at home. And they wonder what's next: if smoking is a cause for termination, what other "unprotected" activities will follow?

The struggle between smoker rights and non-smoker rights is one of the great cultural divides, playing out in workplaces and in public settings across the country. It will be interesting to see what happens in the coming years. There was a flurry of legislative activity in the early 1990s to enact smoker-protection laws. It's probably safe to assume that list of 29 states with protections for smokers will not change much. Like so many other issues, this one will head into the courtrooms, where conflicting rights will play out in front of a judge -- who may or may not slip out the back of the courthouse for quick puff.

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January 28, 2005


Remember smallpox? At the height of concerns about terrorism following 9/11, the federal government proposed that health care providers and first responders get vaccinated against the disease. The lack of response, as they say, was deafening. Recently there was a privately-funded simulation of a smallpox incident in the news. Headed up by former Secretary of State Madeline Albright, the exercise -- dubbed "Atlantic Storm" -- posed a scenario in which terrorists spread dried smallpox at an airport in Frankfurt, Germany and a number of other locations throughout Europe and the United States. The simulation revealed a number of serious weaknesses in our current planning. As the former Polish Prime Minister, Jerzy Buzek, put it: "Fortunately, we are not prime ministers anymore. Nobody is ready."

Here are a few facts concerning the vaccination for smallpox (for detailed information, see the CDC's website):

  • For the most part, the vaccination is safe: the rate of adverse response to the vaccine is relatively small (1,000 serious reactions for every million vaccinated). However, given the scale of the anticipated inoculations that would be needed if all health care providers needed protection, there is cause for concern. Under rare circumstances the vaccine can lead to death.

  • After vaccination, the individual is potentially contagious, for up to three weeks (as long as the vaccination site remains open). This means that health care workers -- primary targets for vaccination -- might not be able to work for a significant period of time.

  • There is a portion of the general population that is at higher risk for adverse reaction to the vaccine (e.g., people with a history of eczema or acne, HIV positive individuals, burn victims, cancer patients, pregnant women). There are guidelines for screening these individuals out of a vaccination program.

The Public Policy conundrum
The smallpox vaccination program raises a number of issues involving workers compensation and other forms of insurance. In addition, there are some gray areas, where vaccinated workers and their families may face periods of disability that are not covered by insurance. Here is our take on just a few of these issues:

If employers require their employees to be vaccinated, any adverse responses would certainly be covered by workers comp, up to and including death. Even if the vaccination is "voluntary," adverse reactions are still likely to be covered by workers comp. There is a potential "disproportionate impact" on insurers of health care facilities and ambulance services, whose workers are first in line for vaccination. This exposure is not currently contemplated in workers comp rates.

Regarding the significant portion of the general population that is at higher risk for adverse reaction to the vaccine (see above), many of these vulnerable individuals work in health care facilities, where their not being vaccinated might put them at higher risk for serious illness. If exposed to smallpox, they would be at very high risk when they are compelled to take the vaccine to stave off the illness.

As if the real risks were not enough, the considerable publicity about the dangers of the vaccine significantly increases the probability of "false positives" -- people reporting what may be imaginary ailments. These "false positives" would immediately appear on the workers comp radar screen.

Here's the crux of the problem for the health care industry: inoculated workers might not be allowed to come into contact with patients during their potentially contagious period (up to 21 days). This would apply especially to health care workers whose patients include the highly vulnerable groups mentioned above. This inability to work is not a period of "disability" but of quarantine. Workers comp would not apply. Who replaces the lost wages during this period? Is it fair to require workers to use their sick leave? What if they do not have any sick leave? Beyond that, if there is a mass inoculation of health care workers, how will hospitals staff their facilities during the quarantine period?

As if all the above weren't enough to worry about, during the contagious period, a worker might infect family members. How would these exposures be covered?

This is not meant as a definitive summary of the smallpox policy issues. However, it is clear that any mass inoculation program will raise a number of concerns that need to be confronted head on, not as we are currently doing, with our heads buried in the sand.

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January 13, 2005


Back on November 15 and 16, we blogged the problem of sleep deprivation for interning doctors and the potential negative impact on the treatment of injured workers. Interns are routinely on call for over 30 consecutive hours. Once beyond about 16 hours, they are more prone to making mistakes. Given that these sleep deprived doctors staff our emergency rooms, which are the first line of defense for injured workers, the potential for harm in the treatment provided to these workers is substantial.

A new article in the New England Journal of Medicine indicates that the danger does not end when the seemingly interminable shift is finally over. Doctors who drive home after working these extended shifts are twice as likely to have accidents. Thus, their sleep deprivation, a product of a medical system that exploits the services of some of our most talented citizens, poses a risk to patients, to these highly trained and valued people themselves, and to the general public.

Liz Kowalczyk, author of a related article in the Boston Globe, quotes Dr. Charles Czeiler, chief of the division of sleep medicine at Brigham and Women's Hospital: "That's akin to letting someone get behind the wheel when you know they're drunk. Yet hospitals are forcing interns to work these shifts."

Some steps have already been taken to reduce the number of hours interns are allowed to work. Nonetheless, extended shifts are still sanctioned by the Accreditation Council for Graduate Medical Education. Sleep deprivation (and low wages) appear to be a "rite of passage" into the ultimately prestigious and lucrative medical field. The working conditions of our young doctors are nothing less than scandalous. There is a powerful correlation between sleep deprivation and poor performance. If we are serious about providing good health care in this country, and if we are serious about providing decent working conditions for our valued medical professsionals-in-training, then we will find a way to put an end to the barbarous "on call" practices of our teaching hospitals.

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January 12, 2005


OK, all you early-adapter occupational docs, case managers, and healthcare professionals - or anyone else with a penchant for technology - here's a fun site to add to your bookmarks: Medgadget is a weblog featuring the latest medical gadgets and technologies. A sampling of recent posts include an AutoPulse resuscitation system, a pill sized thermometer that monitors body temperature and transmits data to a hand-held, and a no-post-office-should-be-without-one anthrax "smoke detector."

And for more on emerging medical technologies, Wired's Med Tech Center usually has some interesting articles. You might also want to visit Engadget and Gizmodo, both fun sites for technophiles who are looking to be more efficient both on the job and off. And if you have a yen to put some of those new tech toys to use in your occupational practice, you might check out some of the news and reviews at or Palmdoc Chronicles.

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January 11, 2005


Many employers are aggressively testing job applicants and employees for drug use. According to a brief article in today's New York Times (registration required), it is now scientifically proven that poppy seeds can cause false positives for opiate abuse. Poppy seeds come from the same plant that produces heroin.

Arnahad O'Connor points out that "eating a couple of bagels heavily coated with poppy seeds can result in morphine in a person's system for hours, leading a routine drug test to come back positive." However, the amount of opiates in the bloodstream is far lower than if the individual is abusing pain killers. Indeed, you cannot get high, no matter how many bagels you eat! IN response to the issue of false positives, the federal government recently raised the threshold for opiates in workplace testing, to 2,000 nanograms a milliliter, up from 300. Under the new standard, eating three large poppy seed bagels could push a person over the 300 threshold, but not the 2000.

For a less serious take on this issue, we recommend the amusing summary in Straight Dope. And for the definitive history, check out According to this posting, written by Barbara Mikkelson, the issue began back in 1990, when a police officer was suspended for four months because his drug test showed positive for morphine. He had eaten four (!) poppy seed bagels the day before the urine sample was taken. He was subsequently reinstated with back pay after it was determined that poppy seeds -- not drug use -- had produced those results. (Let's hope the officer received some nutrition counseling!)

Mikkelson also points out that furloughed prisoners from the federal prison system must agree in writing not to eat any products containing poppy seeds while in half-way houses or while on probation. I wonder if this requirement will be eliminated, given the above change in federal drug standards.

The utility and justice of drug testing is well beyond the scope of today's blog. But it is worth noting that a poppy seeded bagel with cream cheese, or a nice slice of poppy seed cake, will no longer put your employment in jeopardy. Happy eating!

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December 17, 2004


A Saint Louis University study that appears in the December issue of Pain reports that black Americans who suffer work-related back injuries are compensated less for their injuries than white people in similar situations.

"The implications of these differences are sobering. Even though patients have equal access to health care through the worker's compensation system, there are substantial differences in the treatment costs that they incur," principal investigator Raymond C. Tait, a professor of psychiatry, said in a prepared statement.

He and his colleagues studied 1,472 lower back injury worker's compensation cases in Missouri. They found that money spent on medical care for blacks was about a third (an average of $4,000 less) of that spent on whites and that total disability settlements for blacks were about half ($3,000 lower) than the amounts given to whites."

The study also cites prior research by the Institute of Medicine on racial and ethnic disparities in health care. Congress requested this study in 1999, and the final report which was issued in 2002 found that:

" ... a consistent body of research demonstrates significant variation in the rates of medical procedures by race, even when insurance status, income, age, and severity of conditions are comparable. This research indicates that U.S. racial and ethnic minorities are less likely to receive even routine medical procedures and experience a lower quality of health services.

The report says a large body of research underscores the existence of disparities. For example, minorities are less likely to be given appropriate cardiac medications or to undergo bypass surgery, and are less likely to receive kidney dialysis or transplants. By contrast, they are more likely to receive certain less-desirable procedures, such as lower limb amputations for diabetes and other conditions."

This is quite disturbing stuff indeed. The report suggest the need for more evidence-based medical guidelines to help providers and health plans make sound decisions and to ensure equity of care. It also points to the need for more minority providers.

Thanks to Jordan Barab at Confined Space for pointing us to the recent St. Louis study.

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December 16, 2004


According to the American Chiropractic Association (ACA), back pain is one the most common work-related injuries in the United States, accounting annually for approximately one-quarter of all lost or unproductive workdays. What do ACA members consider to be the most backbreaking jobs? Heavy truck and tractor-trailer drivers top the list, followed by construction workers, landscapers, police officers, farmers, shingle roofers, firefighters/EMTs, delivery drivers, nursing home workers, and auto mechanics.

Off the job activities can also exacerbate back pain. Spine-Health suggests that the holidays can add stress that can worsen chronic back pain. They offer some pointers to those suffering from back pain on how to get through the holiday season.

More information
MedlinePlus: back pain
Mayo Clinic: back pain
Preventing back pain at home and work
Lifting Guidelines and RTW
Study shows active recovery fosters return to work

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November 18, 2004