Of ‘Aged Statutes and Old Case Law’ — Why Workers’ Comp Must Change

Last week, Dave Dias of Insurance Thought Leadership.com published an article by J. Bradley Young, a partner with a St. Louis law firm that handles workers’ compensation cases for self-insured employers and insurance companies.

The article, What Happens When Technology and Workers’ Comp Law Collide?, discusses the intersection of modern communication technology with the application of existing workers’ compensation law.

I mention this because of something Mr. Young said in his first paragraph that got me thinking about what to write for this week’s post. Mr. Young said that technology can break out of the boundaries created by aged statutes and old case law. I found that part intriguing, and decided to use it in the title.

Those of you who have read my blog for some time know that I advocate a new approach to the way workers’ compensation handles expensive surgeries by opening the system up to medical tourism. This advocacy was recently mentioned in Joe Paduda’s post, I Heart Workers’ Comp.

In this post, Joe listed the reasons why he likes workers’ comp, and said that workers’ comp was great because there are many smart, loud, and committed folks talking and writing about what needs to happen and why, and included my name in that list. I am very grateful for the inclusion.

But what you and Joe may not know about me is that I have been interested in the future of human civilization in all aspects: economic, historical, political, psychological and sociological, for a very long time, ever since high school when I took an elective called “Future Studies”. In college, I took a course called “Global Politics” way before anyone ever heard the term, “globalization”.

Just over ten years ago, I became aware of a theory called Spiral Dynamics, a “bio-psycho-social” model of human and social development when I read a book by the New Age philosopher, Ken Wilber. And late last year, I accepted the position as a Board Member of a new, non-profit organization whose mission is to study globalization and its economic impact. The organization was created by a fellow alum of NYU who is an economist, and has taught economics and worked for the UN in New York. So there is more to me than what you find in my blog and on my LinkedIn profile.

But getting back to Spiral Dynamics, Wilber’s book, A Theory of Everything explained what Spiral Dynamics was and included Wilber’s own Integral approach and his “all lines, all quadrants” map of the Kosmos [Wilber’s term]. In addition to reading Wilber’s book, I have read more than a dozen or so articles on Spiral Dynamics and other related subjects.

Spiral Dynamics was developed by Don Edward Beck and Christopher Cowan, and is based on the work of psychologist, Clare W. Graves, a contemporary of Abraham Maslow. Graves’ theory of human psychology fits alongside a continuum of other psychological theories like Maslow’s Hierarchy of Needs and Lawrence Kohlberg’s Stages of Moral Development. However, Graves believed that:

“Human nature emerges along a developmental path from one equilibrium state to the next. These can be viewed as stages wherein each layer adds new elements to all that came before; in turn, each stands in preparation for a next phase which may or may not come. Every “level of human existence” offers a particular viewing point for the real world as defined by its unique set of perceptual filters, These diverse reality views lead to very different decision-making approaches, organizing principals for business, economic and governance models, and ideas of what appropriate, effective living means.”

Graves developed what he called “the emergent, cyclical, double-helix model of adult biopsychosocial systems development”, and he further defined his model thus:

“Briefly, what I am proposing is that the psychology of the mature human being is an unfolding, emergent, oscillating spiraling process marked by progressive subordination of older, lower-order behavior systems to newer, higher-order systems as an individual’s existential problems change. Each successive stage, wave, or level of existence is a state through which people pass on their way to other states of being…His or her feelings, motivations, ethics and values, biochemistry, degree of neurological activation, learning systems, belief systems, conception of mental health, ideas as to what mental illness is and how it should be treated, conceptions of and preferences for management, education, economics, and political theory and practice are all appropriate to that state.”

Graves discovered eight stages or levels of existence, and labeled them with pairs of letters, starting from A to H, and N to U. A-H represented the life conditions, and N-U represented the ways a human being solves his existential problems.

Beck and Cowan, when developing their theory, took the unfolding, emergent, oscillating process and called it Spiral Dynamics. They co-authored a book also called Spiral Dynamics, which I have also read.

To help understand the levels of existence better, Beck and Cowan borrowed the word “meme”, which was coined by Richard Dawkins, the English biologist, and called their levels, VMEMES, or value-systems, and to further assist in remembering them, used colors for each of the levels of existence.

Image

The first six levels of existence belong to the First Tier, or the Subsistence Tier, and the next two levels belong to the Second Tier, or the Being Tier. The last two levels are speculative, and may belong to the Second Tier or Third Tier.

Spiral Dynamics posits that human beings are primed for a great leap from First Tier to Second Tier thinking, but at the present time, most of the developed world is at the Blue, Orange or Green VMEMES. This is because Spiral Dynamics says that a person or culture can be at more than one level at a time, so that the US at the present time has elements of the Blue, Orange and Green value-systems among its population. And there are still people and cultures that are operating at the lower-order levels, especially in the so-called “Third World” and developing world, and there are those same people and cultures in the developed Western world, although operating in different ways than those in the Third World or developing world.

According to Spiral Dynamics, the only way to solve problems at the Subsistence tier value-systems is to apply Second Tier, Yellow value-system solutions. That is what many far-sighted individuals are trying to do in many areas of human society, and is what the author of another book I am currently reading recommends business leaders and others to do.

The book by Said Dawlabani, is called MEMEnomics, and examines how the United States and the rest of the world got into the economic crisis of the past two decades, and how we need to form a “smart model” of government from the values of the current emerging seventh-level value-system.

What does all this and my interest in globalization and the future of human development have to do with transforming workers’ comp? A lot, because globalization is happening and like it or not, there is not that much that any of us can do about it.

Are you going to stop using a computer or cell phone because the components were made in another country, or even assembled in a third country? No, just as none of us are going to go around naked just because all of our clothing and shoes are made elsewhere. What about food? Would you really rather starve to death or go hungry because some of the food you eat is grown in Mexico, Chile, Thailand or other countries, or that your meat, chicken, fish is raised or caught in foreign waters? No to that too.

So just as everything is globalizing, and I admit not all of it is good or has had the best results, the simple fact is that the world is getting smaller and nothing can stand in the way of globalization, not even ‘aged statutes and old case law’ (or was that old cole slaw? But I digress).

Now, I can hear the howling from certain quarters about my comment above regarding statutes and case law. But before you all condemn me, let me say that I believe that there are many laws, regulations, rules and statutes that have been created in the last one hundred years of workers’ compensation in the US that serve a definite purpose and ought to be retained in the law books for workers’ comp. And I also believe that many of these laws, regulations, rules and statutes were put in place not to protect workers injured on the job, which was their intent, but to benefit those who stood to gain financially from the process of workers’ comp claims handling.

These are some of statutes, regulations and rules that I think should be looked at because they stand in the way of providing an injured worker the best medical care available. I mentioned some of these barriers in my White Paper on medical tourism and workers’ compensation.

One barrier is the requirement that the treating physician be less than 50 miles from the claimant’s home. A hundred years ago, when most people rarely travelled long distances, that 50-mile limit was reasonable. But today, millions of people travel longer than 50 miles for medical care, and yet there are no restrictions placed on them under health insurance plans. But there is for workers’ comp.

Another example is the licensing of the physician in the state where the claimant lives. What is the difference if an individual goes to the Mayo Clinic for heart surgery performed by a physician licensed in Minnesota, but if that person was injured on the job in Wisconsin and needs knee surgery and goes to the Mayo Clinic for that surgery, the orthopedic surgeon must be licensed in Wisconsin? I know about reciprocity, but that only applies if a physician moves from one state to another. Is the practice of medicine different in Wisconsin than in Minnesota for injured workers, or does this apply to all patients, regardless of where they live and who is paying the bill?

I mentioned in my White Paper that there are laws that make it illegal for a physician to consult with a patient online without an initial face-to-face meeting. In the age of Skype and telemedicine this sounds like our laws have not caught up with our technology. I also mentioned that it is illegal for a physician who is outside of the state and who has examined the patient in person to continue to treat via the Internet after the patient goes home.

Really, with GoToMeeting and other software being developed for that very purpose? And finally, it is illegal in most states for a physician outside that state to consult by phone with the patient residing in that state if the physician is not licensed to practice there. Again this sounds like early twentieth century laws are still dictating how medicine is conducted in the twenty-first century.

In the course of writing my blog, I have gotten many comments, both positive and negative, about my ideas. Those that were positive have been published to my blog, but some of the comments that are negative border on racist and bigoted. This is especially true when I discuss medical tourism to countries like Mexico and Brazil, which one individual called “backwaters”.

First off, I don’t consider any country a “backwater” because once upon a time, this country was called a backwater by people in Europe, and while there may be some rural and isolated parts of this country still around, they are nowhere near as bad off as some people imagine our neighbors to the south to be.

All countries have problems. Some countries have good problems, and there are countries that would love to have those problems. Then there are countries that have bad problems, and there are countries that have really bad problems. But at no time, have I ever advocated that patients go to such places for medical care. I do advocate that patients go to medical facilities that are the best in a particular country and in a certain region of that country. I would never advocate someone to go to a facility that is not the best or in a region of a country that has problems.

We need to stop demonizing other people and other cultures and reach out to them and help them move along the spiral so that they can reach the value-system level we are currently at; while we are moving higher up the spiral to the next level. We need to understand that where they are now, we once were; as we will be, so too will they, but in their own good time. I heard that on a science-fiction show once where enlightened beings help humans look for a new home after their home was destroyed by war.

We also need to stop relying on outmoded ways of thinking and on outmoded rules and regulations that were formulated during the Industrial Age, for an industrial society, and create new rules and regulations that open up all human systems to the vast potential that lies ahead as the human race becomes a global community. Ken Wilber talks about the four worldviews: Egocentric, Ethnocentric, Worldcentric and Kosmocentric.

We are moving out of the Ethnocentric worldview and into the Worldcentric worldview. It would help if we opened up our minds to this new worldview. We can start by doing so in workers’ comp and let some fresh air and fresh ideas into the workers’ compensation system that was created one hundred years ago after the tragic Triangle Shirtwaist Factory fire. But first we must recognize that we are all in this together and must do all we can to make the lives of our brothers and sisters better, even if that means throwing out the old rules and starting over with new rules and new regulations, instead of going around in circles created by ‘aged statutes and old case law’.

Now that’s an idea we should all embrace.

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I’d like to get to know you better, so please complete the form below and let me know who you are, where you are from (country and city, please), and what you like about my blog.

Thank you so much,

Richard

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About Transforming Workers' Comp

Have worked in the Insurance and Risk Management industry for more than thirty years in New York, Florida and Texas in the Claims and Risk Management spheres, primarily in Workers’ Compensation Claims, Auto No-Fault and Property & Casualty Claims Administration and Claims Management. Have experience in Risk and Insurance Business Analysis, Risk Management Information Systems, and Insurance Data Processing and Data Management. Received my Master’s in Health Administration (MHA) degree from Florida Atlantic University in Boca Raton, Florida in December 2011. Received my Master of Arts (MA) degree in American History from New York University, and received my Bachelor of Arts (BA) degree in Liberal Arts (Political Science/History/Social Sciences) from SUNY Brockport. I have studied World History, Global Politics, and have a strong interest in the future of human civilization in all aspects; economic, political and social. I am looking for new opportunities that will utilize my previous experience and MHA degree. I am available for speaking engagements and am willing to travel. LinkedIn Profile: http://www.linkedin.com/in/richardkrasner Resume: https://www.box.com/s/z8rxcks6ix41m3ocvvep

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