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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."

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.

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.

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.

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.

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:

• Robert Wood Johnson Foundation: Comparing Health Care Quality: A National Directory
• NCQA: NCQA Health Insurance Plan Rankings 2010-2011
• NCQA: Report Cards - online resources to help you choose a health plan or physician
• URAC: Consumer Resource Center - various tools with "information on your rights as a consumer and how to successfully navigate the US healthcare system."
• Foundation for Informed Medical Decision Making - has as its mission "We are working to advance research, policy, and clinical models to ensure that patients understand their choices and have the information and support they need to make sound medical decisions."
• The Dartmouth Atlas of Healthcare - The project uses Medicare data to provide information and analysis about national, regional, and local markets, as well as hospitals and their affiliated physicians.
• Kaiser Family Foundation: Health Insurance Costs - Consumer Protections

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.

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

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.

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.

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:

• EPA's Real Time Monitoring data - access state-by-state readings on drinking water, milk, and other measures.
• FAQs from the EPA about the nuclear power situation in Japan
• Radiation Dose Chart
• Radiation doses in perspective
• Radfacts - A Quick-Reference Guide to Radiation Terms & Concepts
• Radiation health effects
• Nuclear Energy Institute - Safety and Security

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).

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.

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.

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.

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.

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.

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.

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.)

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!

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.

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.

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.

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.

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.)

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.

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.

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.

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.

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

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.

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 Law.com, 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.

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.

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.

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."

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

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.

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.

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.

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.

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."

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 inadvertantly 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.

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.

PandemicFlu.gov - 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

Maps
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

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.

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.

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?"

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.

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!

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.

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.

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.

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.

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 VoteVets.org 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.

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.

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.

• 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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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!

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.

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!)

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 of…you 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.

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."

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.

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."

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 brand...in 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.

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.

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?

Solutions
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.

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.

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

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.

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.

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.

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.

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.

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)

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).

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.

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.

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.

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.

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.

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?

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 w