Monthly Archives: July 2014

Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel

David De Paolo posted on his blog today about a case in Florida where the plaintiffs are challenging the constitutionality of Florida’s workers’ comp system on the grounds that the various reforms over the many years the system has been in existence has served to devalue the workers’ compensation program to such a degree that it no longer can be said to meet its constitutionally declared objectives.

The plaintiffs in Julio Cortes v Velda Farms allege, according to De Paolo, that the comp system became “unconstitutional as an exclusive remedy in stages,” as lawmakers made changes that slowly eroded the benefits and protections available to workers.

The plaintiffs argue that up until 1968, parties could “opt-out” of participating in the comp system, much in the way Texas and Oklahoma are allowing employers to do now, but when workers’ compensation became the exclusive remedy for industrial injuries in 1970, the plaintiffs argue that lawmakers did not provide workers with anything in exchange for completely taking away their right to sue.

The plaintiffs are basing their argument on a 1973 case that asserted that anytime the Legislature takes away a right that had previously been guaranteed to the citizens of the state, it must provide a “reasonable alternative.”

De Paolo says that the plaintiffs have a long way to go in proving their case, but it made me stop and think of what might happen if the workers’ comp system was declared unconstitutional, and what that could mean for medical travel.

First of all, the employees might file claims under the employer’s group heaIth plan, so as part of the benefits package, the employer could offer medical travel as a option under their health plan. Second, it could mean that employers and employees might be more willing to pursue medical care out of state, for different reasons, of course. Employers would be interested in saving money and the employees would be interested in getting treated in their home countries.

Given the workforce demographic in Florida, medical treatment in their home countries in Latin America and the Caribbean would be more likely once injured workers and their employers are no longer be subject to administrative law judges and the courts, and that may boost medical travel in the region.

Corruption Not Limited To US Health Care

Tip of the hat to Joe Paduda today for highlighting topics on Health Wonk Review, one of which dealt with the fact that corruption is a global problem in health care.

The HWR blog today, entitled “Health Wonk Review: Polar Vortex Edition, July 2014”, pointed to another blog called Health Care Renewal, that discussed how corruption in health care is not limited to the US, and cited problems in India, which happens to be one of the largest medical tourism destinations in the world.

The article in Health Care Renewal, entitled, “Health Care Corruption, “No Dirty Little Secret,” but “An Open Sore” – Lessons from India for the US”, quotes from various sources the scope of corruption found in India and the parallels to corruption in the US.

Some of the issues found in both India and the US are as follows:

  • Neoliberalism and privatization
  • Kickbacks to physicians for referrals
  • Kickbacks from pharmaceutical firms
  • Huge fees charged to medical students

Those of you have read my recent posts, “The Stench of Fraud: Why Workers’ Comp Can No Longer Be a Closed System” and “The Stench of Fraud, Continued” won’t be surprised that corruption exists elsewhere. But the fact that it does exist elsewhere should not blind us to the reality that we can do something about it here at home, especially when it concerns injured workers, and represents a complete and utter disregard for the Hippocratic oath that states, “First, do no harm”.

It would seem that this admonishment from Hippocrates falls on deaf ears when there is money to be made from inflicting pain and suffering, as well as heaping abuse on innocent, injured workers.

The Stench of Fraud, Continued

In The Stench of Fraud: Why Workers’ Comp Can No Longer Be a Closed System, I briefly mentioned the plight of one individual, who I called “Ms. X”.

I called her that because her case is still winding through the medico-legal system in her state, and I do not want to prejudice her case, or add to her woes by embarrassing her, even though she herself is bringing light to her situation by using all resources available to her,

But I felt that once I mentioned her in my previous post, it was alright to expound on the subject of fraud, and discuss her case without identifying her personally.

According to her own words to me [bracketed below] and in her correspondence to others, this is how her nightmare began:

I am an injured worker who was maimed by the medical providers in the insurance carrier’s network of medical providers. Mine is a long story that began December 12, 2011 when I was hurt at work.

[A herniated lumbar disk from working in a sitting position in excess of 65 hours one week and during that week, picking up boxes of banking and files from time to time. I began to feel discomfort in my lower back, went home, took it easy over the weekend, went back to work on Monday, worked for approx. an hour or hour and a half, got up, went to the copy machine, made my copies, bent over to pick them up and then that is when the disk herniated.]

On the day that I was hurt at work, the human resources manager told me that she was going to call the insurance carrier to find out what to do or where to send me. When she returned, she wanted me to sign a “release letter”. I had just gotten that job on November 16, 2011. I got the message that someone there didn’t want me to file a WC claim by virtue of the effort to induce me to sign a release letter. I needed that job and hoped that my back would feel better. I didn’t sign a release letter but I did write a letter indicating that I was hurt at the copier but that I didn’t want to go to their Doctors. I asked if I could go home. At some point, the HR manager gave me a couple of Advil and water for the pain. I had gone home from there – Monday, 12/12/2011. By Thursday, 12/15/2011, my back did not improve, so I placed a call into the HR Mgr. and said that I need to see their Doctors… the HR Mgr. responded by saying something to the effect “Why, you don’t have any money to go to your own Doctor?” (Not verbatim). I was taken aback by this. She knew I was hurt at work. She continued by saying, “We have a release letter signed by you!”. I responded by saying something to the effect that I never signed a release letter. We argued… and so on.

She goes on to say in her correspondence that:

…former employer who fired me less than 3 months after I filed a WC injury. On the very day that I filed a WC claim, my employer placed an ad on Craigslist to replace me. I didn’t learn until sometime in May 2012 that my former employer lied to the insurance carrier about the circumstances of my injury and what I had said. For the record, I was hurt at work and due to the working conditions and surroundings, including my desk and number of hours that I had to work, 65-66 hours the previous week. Our office had very little storage, therefore, myself and the other Escrow Officer, had to pack up boxes of files for closings and banking. We lifted these boxes weekly and sometimes daily due to the lack of space.

Because of what has happened to me, I have been upfront with Doctors outside of the workers comp system. At one of the Doctors, a pain management Doctor that I went to see in early 2014 – March or so, one of the female investigators that I had seen near my apartment on prior occasions (or was her twin) showed up and was placed inside a room before I was, I arrived first, was placed inside the room next to her. During that visit to the Doctor after being placed in the room next to the investigator, the receptionist from the front desk asked me several times if I did recreational drugs and had I ever done recreational drugs. Clearly, a continued effort to create a negative review of me and/or my history. Another Doctor who I visited to get a referral to an orthopedic Doctor insisted that what I describe does not happen. She said that there are no instances in the US of a person being forced under anesthesia. Further, she said that I was delusional and that I should see a psychiatrist, and that the pain that I have is psychologically driven and not real pain.

She was given three epidurals, and this is what happened to her after the first epidural, which went without incident:

I was forced under anesthesia for simple lumbar epidurals. At the 2nd epidural procedure, after objecting to anesthesia, I was told I had no choice, that it was the policy of the surgery center (_____ ___ Outpatient Surgery Center) that all patients must undergo anesthesia. I awakened from that with severe neck pain and slight left arm pain. My Doctor had injected my neck, left side of my spine, left leg with some sort of chemical that tingled and popped like Alka Seltzer. In fact, the tingling went from my lower left lumbar down my left leg all the way up my back and felt like a popping sensation in my head. I was there to receive a lumbar steroid epidural injection and “trigger point shots” in the left side lumbar area.

The next epidural procedure, I made it clear I that I did not want to be placed under anesthesia not only on the phone (a day prior to the procedure) but also before the procedure in pre-op and I re-stated the same in the operating room for everyone to hear. I restated that I was to get a local pain blocker (just as I had during the first lumbar epidural). Instead, my Doctor abruptly shoved the needle into my back without any pain blocker whatsoever. I could feel the needle going through the textures of my back (not precisely or with care into the spinal area where the disk is). My head flew up as I screamed “Wait!” or “Stop!”. He would not relent! As my head hit the operating room table (where a towel and prop to lay my head was), he moved the needle inside me to the nerve in my back next to my spine and held it against the nerve! The pain was so excruciating that I bit into the towel that was for my head to rest on and screamed with the towel in my mouth. Pure agony! He would not stop! I had no choice once again but to give into anesthesia. When I awakened, I thought to myself, Oh my God, they didn’t! I had injuries now throughout my back, neck, shoulders and arm. I could feel the nerves firing all over my back and next to both sides of my spine from the injections of some sort of chemical (the Alka Seltzer feeling again) that over the coming months, burned and corroded the ligaments in my spine, tendons and muscles in my back. It felt as though I was being burned from the inside out. PAIN from burning, PAIN from damage and maiming! I can now and then could feel that some of the tissue/muscles were pushed away from my spine creating the feeling of divots or holes on both sides of my spine. I could feel what seemed to be a muscle pushed away and hanging down on to the right mid side of my person. The ligaments that are in my neck and run up into my skull feel damaged, sore. My spine felt “chiseled” in specific areas most prominently in the top of my back and neck and the bottom near the lumbar sacrum area. I now have instability in my spinal column. I can feel the vertebrae in my spinal column moving not in sync with the other vertebrae…

There is a lot more detail to her case that is beyond the scope of this blog to address, but I am sure my readers have gotten a clear idea of what she has gone through. As a former Claims Examiner and Claims Administrator for a wrap-up insurance program, I have never seen, nor heard of such abuse inflicted upon an injured worker.

This poor woman, who was just doing her job, was taken advantage of by a broken, corrupt and dysfunctional workers’ compensation system that makes the injured worker seem like the guilty party, when it is the providers and legal system who are guilty of injuring and maiming the worker.

To illustrate just how they are characterizing this woman, here is another part of her correspondence regarding an attempt to make her out to have a psychological problem:

The insurance carrier and/or it’s attorneys are working hard to impair my credibility. Several attempts to have me include a psych claim ,since I finally realized that I was being maimed, have been made. Even the AME has placed a notation in his last report that is false – saying that I have ongoing psychological “???”. For the record, I haven’t any history of psych issues. This is a lie that is meant to bode well in favor of the defense. I have never before had a psychological condition. I did mark on a form that I was depressed but that was due to the pain! Not anything else.

In my insurance career, I came across another poor soul who suffered from depression due to the pain he suffered as a result of his injury. At the time, I was the No-Fault Claims Supervisor of the NY office of an automobile insurance company that insured Black Car limousines (Owner and Owner and Another). A Coptic Christian gentleman from Egypt cried in my office before he was seen by our medical consultant. Recognizing that my job was to limit the amount of money we paid to this individual, I did speak to our consultant just prior to the examination. It was the least I could do for this person. So reading what Ms. X has written does not surprize me in the least.

A letter Ms. X forwarded to me from a defense attorney even stated that her epidurals were harming her and not helping. This letter was part of a plan to get her to settle for a few thousand dollars. The lawyer’s text is as follows:

Additionally, the applicant appears to not be benefitting from the treatment, in fact, the treatment by both the employer’s physician and your physician [addressing claimant’s former attorney] appears to be harming rather than helping the applicant.

She also stated in her correspondence that she discovered that:

…some of my medical forms, surgery reports, paperwork had been falsified, changed over and above my signature and due to the anesthesia form (copy handed to me) was marked differently than the first page that I signed and more.

Finally, to make matters worse, she received a letter from a law firm representing her workers’ comp primary physician, demanding her to cease and desist from making false and libelous statements on the internet about their client. From what I understand, this is the physician who the defense attorney said above was harming her. It is no wonder that by mistreating Ms. X this workers’ comp doctor prompted her to take the actions she did to warn people about his conduct.

As I mentioned in the last post on this subject, Ms, X would have been homeless if it was not for her sister. She was subsequently fired from her job as a Manager of her department by her employer after filing the workers’ comp claim.

The events and actions discussed by Ms. X and disclosed here by me, further elaborates just how much the stench of fraud and abuse in the system has become unbearable. These words that I have quoted are but a small part of the whole story Ms. X has told people about, but it is clear that there is something rotten in the state of CA, if not in the state of Denmark, paraphrasing Shakespeare. And we all know that when something is rotten, the stench is overpowering.

Yet, the medico-legal system is arrayed against Ms. X, and the end result, I am afraid will be that she loses, and her work comp settlement will be liened against by the primary physician’s attorney, or the case will be decided in the insurer/employer’s favor, and Ms. X will be unable to go back to work, and will be forever marked as someone who brings attention to herself and not in a positive light. And furthermore, she may be marked as having a psychological issue, when in reality, she is only trying to get the proper treatment for her herniated disk. This psychological defense strategy smacks of something the Soviets used to do to political dissidents.

One gets the feeling that even though the Soviet Union is no more, we are more like the Soviet Union and other authoritarian states, in that the individual is powerless against the power and prestige of physicians, hospitals, lawyers, the courts, and other medical providers, and the system itself.

If ever there was a more clearer case of why we need to transform workers’ comp from the broken, corrupt and dysfunctional system I have been describing these past two years, this case is it.

How different Ms. X’s life would have been if she had gone to an honest and reputable treating physician, received the proper medical treatment, and if necessary, gotten back surgery to repair her herniated disk, even if she received the surgery from her employer or insurance carrier in another country, as a medical tourism option.

And how different her life would be if she did not have to be threatened with a lawsuit from a shyster law firm that is representing a shyster physician, as well as being misrepresented by bad attorneys, so that I had to ask someone I knew if he could help her. There is a saying, “a fish rots from the head down”, and in this case, the stench of the fish called ‘Workers’ Comp fraud’ is taking down the entire system.

What is Health Tourism? A Primer for the Workers’ Comp Industry

Thanks go to Maria Todd, PhD, one of my medical tourism connections, and a fellow alumna from FAU, who sent the following post from her Medical Tourism Insights with Maria Todd blog.

Maria’s post muses on whether a city is a medical tourism destination candidate.  Maria does a very good job in this post in explaining the different types of health tourism and who goes abroad for what kind of service.

She is the founder and CEO of Mercury Advisory Group, a part of Mercury Healthcare International. She travels the world consulting and speaking on health tourism, managed care, and integrated health delivery systems operations, among all of her other activities, and is the author of over a dozen professional trade books in health care.

Her reputation in the health tourism industry is well known to me because every time I meet a new person at a medical tourism conference, we always mention her name.

The Stench of Fraud: Why Workers’ Comp Can No Longer Be a Closed System

The subject of fraud in workers’ compensation usually refers to claimants who fraudulently file claims to get benefits that don’t belong to them.

But there is another kind of fraud in workers’ compensation…the kind of fraud perpetrated by physicians, hospitals, and other medical facilities, either against the injured workers or against the system itself.

Why this kind of fraud exists is for the same reason that fraud conducted by larcenous and bogus claimant’s exists. Greed.

In a post today on his blog, CA attorney, David De Paolo mentions several cases where physicians or hospitals were charged with using phony or unapproved implants on patients.

Kickbacks, defrauding of insurance companies, and compounding problems are just the tip of the iceberg. One individual, who I will call Ms. X, has been a victim of not only of fraud, but of abuse by the medical providers she was forced to go to under CA work comp laws.

To summarize her experience, let me just say that she endured three epidurals that not only hurt her, they may have damaged her muscles and nerves, and even a defense attorney, in a letter to convince her to settle for a few thousand dollars, said that she was being harmed. Anesthesia was administered against her will, and the legal system took advantage of her as well.

Medical records and forms were changed, doctors treated her with contempt, and her life has been turned upside down and would have been homeless if not for her sister.

Those of you who have read my blog these nearly two years, know that I have been passionate about giving injured workers the best medical care available, and at the lowest cost possible. I know that the American health care system is broken and dysfunctional, but now it seems that it is actually harmful to those whose medical condition is the result of a workplace injury.

Those who criticize my idea to implement medical tourism into workers’ comp should look themselves in a mirror and ask themselves this question: do we really provide injured workers with the best medical care possible, given our broken and dysfunctional health care and workers’ comp systems, and because we have been strait-jacketed into this situation by antiquated state statutes and laws that actually perpetuate this fraud and abuse?

To the medical tourism industry, I am asking the following question that you need to answer, and answer affirmatively so that the health care industry will take you seriously. Will you follow the lead of these fraudsters and hucksters and use phony or unapproved implants on your medical tourism patients, or will you guarantee that you will use FDA approved and legitimate implants and will dispense drugs that have not been compounded in suspect labs? And will you agree to weed out those providers, mostly in the cosmetic and plastic surgery arena, and see that they are turned into the appropriate authorities in their home countries, because they are giving medical tourism a bad name.

And will both the medical tourism and workers’ comp industry promise that patients such as Ms. X will not be maimed and battered by a corrupt and fraud-prone workers’ comp and health care system?

Maybe it is time to get rid of the bad doctors, medical facilities, lawyers, and workers’ comp personnel who care more about their jobs and the profits of the companies that provide services to the workers’ comp industry, than the health and welfare of every single injured worker. And maybe it is time to seriously look at some out of the box solutions to the problems our broken, corrupt, and dysfunctional system is causing injured workers. Medical tourism could be one of those solutions.

 

Travel expense may be reimbursed under certain conditions

Just happened to come across the following blog post here on WordPress from a workers’ comp lawyer.

The lawyer, Karl Voigt, answered a question on another website about being reimbursed for travel expenses in the state of Pennsylvania.

His response is worth considering for the implementation of medical tourism into workers’ comp, for all other states, besides Pennsylvania.

“There is a compelling argument that the carrier should reimburse your costs. Until about 1992, workers’ compensation carriers would regularly have to reimburse Pennsylvania claimants for all travel expenses incurred treating their work injury. Unfortunately, following the issuance of an appellate case, Helen Mining Co. V. WCAB, 616 A.2d 759, the law changed. The courts can now only award travel expenses in cases where the requisite medical treatment is not available in your locale. If you can indeed prove that it was absolutely necessary to travel out-of-state for treatment, there is a good chance that your expenses should be reimbursed.”

If an employee, or his employer believes that it is necessary for the employee to get their surgery out of state, i.e., in another state or even another country, it may be argued that the work comp carrier would have to pay for it.

Yet, if the carrier went along with it in the first place, there would be no need to request reimbursement, as the surgery and travel expenses would be paid for. If the employer and the carrier determine that they can save money by having claimants go out of the country for medical care, then there would be no need for the courts to award travel expenses in the first place, thus freeing the claimant from the grip of the medical-legal system that workers’ comp law has created.