Tag Archives: Exclusive Remedy

Florida State Supreme Court Upholds Law’s Validity

Following up on what I reported on earlier this week, the Supreme Court of Florida unanimously decided not to review Daniel Stahl v. Hialeah Hospital, according to Business Insurance’s Stephanie Goldberg.

In my previous post, I mentioned that the 1st District Court of Appeal had ruled that attorney fee schedules violated state law.

But the Court of Appeal also ruled back in March in the above referenced case, that the workers comp system was an adequate exclusive remedy, Ms. Goldberg said in her article.

The State Supreme Court accepted jurisdiction to review the decision, and said in its ruling that, “after further consideration and hearing oral argument in this case, we have determined that we should exercise our discretion and discharge jurisdiction.”

So for the time being, it would seem that Florida’s Workers’ Compensation law is constitutional, and until other cases that are pending are resolved (see my articles, “Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel“, “Update on Constitutionality of Work Comp in Florida“, and “Advocacy Group Petitions Florida Supreme Court to Review Work Comp Constitutionality“), Florida’s injured workers will still have something to protect them.


I am willing to work with any broker, carrier, or employer interested in saving money on expensive surgeries, and to provide the best care for their injured workers or their client’s employees.

Ask me any questions you may have on how to save money on expensive surgeries under workers’ comp.

I am also looking for a partner who shares my vision of global health care for injured workers.

I am also willing to work with any health care provider, medical tourism facilitator or facility to help you take advantage of a market segment treating workers injured on the job. Workers’ compensation is going through dramatic changes, and may one day be folded into general health care. Injured workers needing surgery for compensable injuries will need to seek alternatives that provide quality medical care at lower cost to their employers. Caribbean and Latin America region preferred.

Call me for more information, next steps, or connection strategies at (561) 738-0458 or (561) 603-1685, cell. Email me at: richard_krasner@hotmail.com.

Will accept invitations to speak or attend conferences.

Connect with me on LinkedIn, check out my website, FutureComp Consulting, and follow my blog at: richardkrasner.wordpress.com.

Transforming Workers’ Blog is now viewed all over the world in 250 countries and political entities. I have published nearly 300 articles, many of them re-published in newsletters and other blogs.

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Workers’ Comp Opt-Out Goes Under US Microscope

Laws that allow employers in Texas and Oklahoma to opt out of the states’ workers comp systems could be subject to federal oversight, according to an article today in Business Insurance.com,  amid concerns about their effect on injured workers’ access to benefits and care and potential discrimination against employees who report workplace injuries and illnesses.

The article by Gloria Gonzalez, stated that last October, several Congressmen  wrote to the U.S. Department of Labor asking for a report on how it would re-institute oversight of state workers comp systems.

The department annually tracked states’ compliance with recommended federal standards from 1972 to 2004, following an investigation by ProPublica Inc. and National Public Radio into state workers comp programs, the article reported. (Both ProPublica and NPR reports were previously cited by myself and others in earlier posts)

Ms. Gonzalez wrote that the letter also asked whether the department needed additional authority to protect injured workers’ rights and prevent cost shifting to taxpayers via programs such as Social Security.

Chris Mandel, senior vice president of strategic solutions at Sedgwick Claims Management Services Inc. in Nashville, was quoted as asking, “Is that a prelude to federalization?”

His question came Tuesday at the Business Insurance Rick Management Summit, and his reply to his own question was, “Who knows?  But let’s just say they’re not happy with what they see.”

What does this mean to you?

It means Uncle Sam is watching, and he does not like what he sees going on with the expansion of opt-out legislation. Some of us already don’t like it and have not drunk the kool-aid just yet.

Let’s hope for the sake of injured workers that the feds do take a look under the microscope at the promises of opt-out and they find bacteria that can bring down the entire system, leaving injured workers where their great-grandfathers were before workers’ comp existed…out in the cold and out of luck if they got hurt.

What’s At Stake for Workers Should the GOP Win in November

LynchRyan published today an excellent article in WorkersCompInsider.com about what life was like for American workers in 1915.

The article, by Julie Ferguson, discusses a report published by the Monthly Labor Review, to commemorate their centennial.

The report chronicles the news of the day for 1915, and discusses the demographics of the day, as well as providing a portrait of daily life in the US of 1915.

Then the report describes some not so pleasant and mundane issues, such as workplace injuries whereby a woman lost her arm and continued to work because back then there was no workers’ comp laws, and as the follow excerpt says, she either could lose her job or assume the risk. Here is the excerpt:

Theodore Roosevelt, arguing in favor of workers’ compensation (then known as workmen’s compensation) laws in 1913, offered the story of an injured worker that summed up the legal recourse available for workplace injuries at the time. A woman’s arm was ripped off by the uncovered gears of a grinding machine. She had complained earlier to her employer that state law required the gears be covered. Her employer responded that she could either do her job or leave. Under the prevailing common-law rules of negligence, because she continued working she had assumed the risk of the dangerous condition and was not entitled to compensation for her injury.

Unfortunately, many Americans are convinced that the best days this country ever had was before Theodore Roosevelt became President. Grover Norquist, the author of the anti-tax pledge GOP Senators, Congressmen and other officials took some years back, said that he wanted to take the country back before Roosevelt, before the “Socialists” took over.

The Koch Brothers and men like Art Pope in NC believe in the right of businesses to do anything they want, and have been responsible for advocating such things as opt-out legislation and even attacks on the exclusive remedy clause of workers’ comp laws.

Yet, as I wrote the other day in “Trends and Issues In Workers’ Comp 2016“, the Koch Brothers drew up a bill defending exclusive remedy so that businesses would be spared the prospect of tort liability.

But I suspect that there are many others who do not share the Koch Brothers view of exclusive remedy, and do seek to overturn it so that we go back to the bad old days of 1915.

One other excerpt from the report discusses workplace safety, and what steps were taken back then to address them. Pay close attention to the name, Frances Perkins, not only was she the first woman cabinet member (FDR), she was also the first Secretary of Labor, as the excerpt states.

Although working in mines was notoriously dangerous, mill work could also be quite hazardous. BLS reported about 23,000 industrial deaths in 1913 among a workforce of 38 million, equivalent to a rate of 61 deaths per 100,000 workers. In contrast, the most recent data on overall occupational fatalities show a rate of 3.3 deaths per 100,000 workers. Regarding on-the-job safety, Green notes, “There was virtually no regulation, no insurance, and no company fear of a lawsuit when someone was injured or killed.” Frances Perkins, who went on to become the first Secretary of Labor (1933–45), lobbied for better working conditions and hours in 1910 as head of the New York Consumers League. After witnessing the 1911 Triangle Shirtwaist Factory fire, which caused the death of 146 mainly young, immigrant female garment workers in New York’s Greenwich Village, Perkins left her job to become the head of the Committee on Public Safety, where she became an even stronger advocate for workplace safety. From 1911 to 1913, the New York State legislature passed 60 new safety laws recommended by the committee. Workplaces have become safer, and technology has been used in place of workers for some especially dangerous tasks.

So lest you think that the Donald will make America great again, that Cruz can be trusted, that Marco is the real deal, or whatever the hell his slogan is, none of them care about the American worker, none of them care what happens to them and none of them will be able to stop their fellow Republicans from carrying out Norquist’s commandment to take the country back.

Unfortunately, it is not 1915 they want to go back to, but before 1901, the year that “Socialist” Roosevelt became president. They want to repeal the 20th century. That’s what’s at stake.

 

Trends and Issues in Workers’ Comp for 2016

From the ‘What’s happening now in workers’ comp’ department comes two articles written earlier this month by Jacquelyn Connelly in Independent Agent magazine.

The first, written on February 1, talks about new health care trends driving change for workers’ comp. The second, written a week later, deals with the top three regulatory issues to watch for in workers’ comp in 2016.

Let’s start with the first article.

As Ms. Connelly writes, medical now represents on average, 60% of the benefit dollar paid to injured workers, according to Peter Burton, senior division executive for state relations at NCCI (National Council on Compensation Insurance).

Burton said that, “if you went back 25 years ago, it would have been about 40%,” and he went on to say that, “medical is the largest component in most states of the benefit given to injured workers. If you looked at the amount of legislative pricing requested of NCCI during last year, the majority of the requests were medical-related.”

In my White Paper, I cited that “medical costs in 2008 were 58% of all total claims.”

One explanation Ms. Connelly gives is rising and shifting medical costs.  According to Donna Urben, vice president and workers’ compensation product manager at Erie Insurance, “the rise in medical costs, we’ve all seen it on typical health plans and we’ve also seen it on workers’ comp.” She goes further to say that, “what helps with the control of the increase in medical costs are those states that actually are able to direct medical care.”

Some state workers’ comp laws state that injured workers must go to panel physician established by the employer for a timeframe that is mandated by state guidelines, according to Ms. Urben.

If the injured workers receives medical care that fits the injury,” says Ms. Urben, “that ultimately gets them back to pre-injury status and enables them to return to work more quickly,”…”this explains why in some states that permit direction of care, employers are able to see a reduction in the claim cost on the medical claims side, versus those states that don’t permit direction of care, employers see a greater volatility in the medical costs from a workers’ compensation claim.

Another reason given by Ms. Connelly for the rise of medical costs is the duration of treatment.

Medical costs could also transform under the ACA, says Yvonne Hobson, vice president of corporate underwriting at Amerisure, and could cause some cost-shifting in workers’ comp insurance, by authorizing the use of capitation models that designate a set amount for each enrolled plan member, regardless of whether they take medical during that time.

This is not the first time we have seen this issue of cost-shifting and the ACA come up, as I and others have written about it last year.

Hobson explains that, “there are some injuries, such as soft tissue injures or back or knee or shoulder pain, where the cause of the injury isn’t readily apparent if it happened on the job or outside of work.” There is some discretion on the part of the doctors, Ms. Hobson states, when determining if the injury is work-related or not.

On the other hand, Matt Lyon, of Foremost Insurance Group, cited some predictions that the ACA could reduce the frequency of “Monday morning claims”, where someone gets hurt on the weekend, they don’t have health insurance, and come into work on Monday and file a workers’ comp claim, Ms. Connelly writes.

Mr. Lyon noted that some preliminary studies suggest a slight correlation between the ACA and a decline in fraudulent comp claims.

Ms. Hobson concurs, and stated that, “the challenge with cost-shifting is that the research and the data on it is new, so only time is going to be able to tell us how it’s going to ultimately be impacting workers’ compensation costs.

The final trend, Ms. Connelly mentions is the misuse and abuse of opioids and medical marijuana. I have discussed the opioid abuse issue before, so I will not go into that here, and the other trend is medical marijuana, as well as recreational use.

States such as Alaska, Colorado, Oregon and Washington have allowed recreational use, and 23 states and Washington, D.C. have legalized medical marijuana.

In her second article, Ms. Connelly identifies three regulatory issues. These issues are:

  1. Opt-out laws. Currently, as I have written about, opt-out is only in Texas and Oklahoma, but it was reported recently that the legislation in Tennessee has not passed this year, and maybe voted on again next year. Other states proposed for this legislation are Arkansas, North and South Carolina and West Virginia. The group behind the writing of this legislation is called “A-rock” (ARAWC).
  2. Reform efforts. Peter Burton, cited by Ms. Connelly in the last article, said that insurance agents need to be wary of the “attack on the exclusive remedy”. I have also written about this; yet, my research for this article has found that the ALEC (American Legislative Exchange Council), a right-wing, non-profit organization partly funded by the Castor and Pollux of right-wing, libertarianism, the Koch Brothers has drawn up a bill defending exclusive remedy, which I find puzzling, because I would have thought that they would want to let workers try to sue their employers, which is what happened before the enactment of workers’ comp laws.
  3. Independent contractor classification. The Department of Labor’s Administrator’s interpretation sought to classify most independent contractors as employees.

What does this mean?

For workers’ comp, it means that there are challenges ahead that the industry needs to be aware of, but it also means that business as usual will no longer suffice, nor will doing the same things over and over again, and expecting different results.

As we have seen in Ms. Connelly’s first article, medical costs are rising for workers’ comp claims. She does not mention whether or not this includes expensive surgeries, or is just confined to the immediate treatment of the injury and the subsequent process of returning the injured worker to their pre-injury state.

Some employers have seen reductions in medical costs, but overall, the medical costs keep rising, as evidenced by my White Paper that stated that in 2008, the percentage was 58%. Two percentage points in seven years.

Obviously, something or some things are not working. But as long as the industry ignores alternatives, as long as some people suggest that judges won’t order surgery out of the country (do doctors order executions, I wonder?), as long as these same individuals believe that no injured workers (especially Latino workers) will want to or will accept going abroad for surgery, and as long as the “old men” of the industry cling to xenophobia, racism and American Exceptionalism, holding back the workers’ compensation industry from joining the globalization of health care, comp included, then nothing will change, and costs will continue to rise.

Lastly, it is state laws themselves that need to be changed, modified or outright discarded so that employers across the country can realize huge cost savings in their medical claim costs, when their employees need surgery.

To say this will never happen is like saying Man will never fly, go to the Moon, or any of a thousand other “impossible” things we humans have accomplished. Are you saying that going to the Moon or flying is easier than going to another country to get surgery? Or are you just being xenophobic, racist, and delusional that American health care is the best?

You decide, but while you do, the meter is running on medical costs, and the other issues, such as opt-out, reform and job classification are making workers’ comp challenging now and for the future. But it does not have to be that way.

Challenges Facing Work Comp

In three weeks, members of the medical tourism industry will gather in Puerto Vallarta, Mexico to attend the 6th Mexico Medical Tourism Congress.

You may recall that I was invited and attended the Congress last year, and was invited again this year. However, due to personal and financial reasons, I am not attending this year.

I am however, posting my PowerPoint presentation below for your viewing, with narration by yours truly. I hope you find it interesting and informative.

Challenges Facing Workers’ Comp (PowerPoint)

Challenges Facing Workers’ Comp (video)

 

Three Years and Counting

Today, October 29, 2015, marks three years since I began writing this blog.

Before you offer your congratulations, let me tell you that the third year has been the hardest year to write for.

Why that is so is because there has been less written in the blogosphere about workers’ comp that is new and different from all the other years I have been writing.

After writing about the opioid abuse issue, the constitutionality of the exclusive remedy provision of the “grand bargain”, and the expansion of opt-out, among other challenges facing workers’ comp. there isn’t a whole hell of a lot that hasn’t been discussed ad infinitum.

You may have noticed that some of my posts more recently have shifted into the health care arena, and I have attempted to tie those issue to workers’ comp and implementing medical travel.

I have tried this year to get brokers, carriers, and employers to contact me personally by including an action statement at the end of every post, but even those had to be discarded when there was no response.

Yet, I persist in writing. Perhaps I am doing exactly what I have criticized the industry for doing, that is, doing the same thing over and over again, and expecting different results. However, in my case, I firmly believe that what I am doing is right, and have been fortunate this year to finally find some independent person who has the same idea (more on that at a later date).

One thing I have noticed is that as I re-publish my previous posts through Twitter and LinkedIn, especially with the help of Buffer, that I have been getting a few more views, and a few more “likes” on my articles than I did when they were first published.

I would prefer that I get more attention to what I am advocating and can turn my writing into a profitable venture that will provide me with steady income, but most importantly, give injured workers and their employers the opportunity to get better medical care and to save money.

The savings may not be there on a one-to-one basis, but in the aggregate, it may pay off, especially as health care costs in the US continue to rise unabated.

And I have continued to defend my idea to those of limited vision and understanding, because I know the direction human society is going, and I know that one day, it will not matter where one gets medical care, or any other service. A little known part of the TPP now being considered is called TISA, the Trade in Services Agreement, which I have been told, will be signed into law in the near future.

What impact that will have on the transfer of services is yet unknown, but many believe it will open up markets for such services as medical travel, as other trade agreements have opened up markets for goods and capital transfers, not to mention jobs.

So, I am optimistic that somehow this will happen. In the meantime, I continue to write as long as my fingers and brain allow me to write. Thank you for sticking with me these past three years.

Change for Change’s Sake: What Real Change in Workers’ Comp Looks Like

Note: This is my 200th post, so I think you will find it to be one of the best articles I have written so far.

Every industry has its share of conferences, conventions and meetings around the country. The insurance and risk management industries, which includes the workers’ comp industry, is no exception.

In the early stage of my career, I worked for a small, retail insurance broker on New York’s Long Island, and the men in my company would attend the Risk and Insurance Management Society (RIMS) Conference every year.

I am sure they went there to learn about things other brokers were doing, make connections with insurance company executives, and workers’ comp service providers. But typically, these conferences allowed the participants to hang out with their buddies at the bar, and play a round or two of golf.

So I was mildly amused when I read an article posted today in The Workers’ Compensation Daily from Safety National Insurance Company, titled “It’s Time to Change Workers’ Compensation”.

The article discussed a recent meeting of the Harbor Health Systems 2015 MPN (Medical Provider Networks) Medical Directors, in which an executive from Sedgwick gave the keynote address. His address discussed the need for change in the approach to workers’ comp claims handling.

Harbor Health Systems is based in California, and through the writings of my fellow blogger, David De Paolo, and the personal experiences of two women I previously wrote about, “Ms. X” and “Ms. A”, the California workers’ comp system could use more than a keynote address to change the problems and abuses injured workers are receiving in that state.

FYI, Harbor Health Systems is a subsidiary of One Call Care Management, a company that for the past two years or so has been gobbling up smaller companies, especially in the pharmacy benefit management arena, as well as other smaller workers’ compensation service providers, and as Joe Paduda reported earlier this week, One Call Care Management has acquired an imaging company called MedFocus.

According to Joe, this acquisition consolidates One Call’s stranglehold on the market, so if this is the kind of change Mr. North of Sedgwick was referring to, then it is more of the same.

The article goes on to say that the role of a medical director is to be there to help injured workers to recover from their injuries and resume their lives. I believe “Ms. X” and “Ms. A” would beg to differ.

The article also goes on to say that for years, the workers’ comp medical networks have focused on two things: discount and proximity. They would send injured workers to the physician closest to the employer’s location who would agree to accept a discount on the treatment provided.

Over time, they realized this approach was flawed, and that they should identify the medical providers who produce the best outcomes and incentivize them to treat injured workers by compensating them fairly.

They are learning that when they find these superior physicians, they need to get out of their way and let them practice medicine. The rest of the article details how the industry needs to evolve in how they devote resources to claims, how to better explain the workers’ comp system and protections it provides, and to avail themselves of the opportunities the ACA provides to evolve the way medical care is delivered.

According to Mr. North, when it comes to change, there are three main categories of people:

  • Innovators – people who are truly creating change
  • Learners – people who take what innovators created and work to evolve it
  • Ignorers – people who are uncomfortable with change and have a tendency to ignore it as long as possible

He said that workers’ comp cannot evolve if they are unwilling to take risks and become innovators; otherwise change will not happen.

I agree with his analysis, and my posts have attested to that fact time and time again. Therefore using his categories, it is clear that I would be considered an innovator, since I have been advocating implementing medical travel into workers’ comp.

Workers’ comp needs to take risks, and medical travel affords them of one of those risks.

Yet, those who have derided my idea, or who have not paid any attention to what I am saying, are ignorers, and there may even be people who would see to it that medical travel never becomes part of workers’ comp.

So I would like to add a fourth category to this list. Call them defenders of the status quo, or preventers, or even saboteurs, if it ever got that far.

So what is this change Mr. North is talking about? Is it real change, or just change for the sake of change? And what does real change look like?

Real change is not keeping injured workers and the system locked in a padded cell, wrapped in a straitjacket.

Real change is not buying up smaller companies and cornering the market, so that the very idea of competition is tossed on the dustbin of history.

Real change is not doing the same things over and over again and expecting different results.

Real change is not being afraid to look outside of one’s comfort zone, and outside of one’s national borders at a time when your industry is facing challenges from the expansion of out-out legislation that threatens to destroy workers’ comp, rising medical costs, physician shortages, questions of the constitutionality of exclusive remedy, negative media reports, changes in technology and diversification, and other “seismic shifts”.

Real change is becoming a learner, and I am looking for learners to work with. Real change is being fearless and recognizing that Americans are not the only ones who are able to provide quality medical care.

Real change is going with the flow of change in the world today and joining the globalized world; otherwise you stagnate and die. Time is running out. Real change is possible, but you must go after it.

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I am willing to work with any broker, carrier, or employer interested in saving money on expensive surgeries, and to provide the best care for their injured workers or their client’s employees.

Call me for more information, next steps, or connection strategies at (561) 738-0458 or (561) 603-1685, cell. Email me at: richard_krasner@hotmail.com.

Ask me any questions you may have on how to save money on expensive surgeries under workers’ comp.

Connect with me on LinkedIn, check out my website, FutureComp Consulting, and follow my blog at: richardkrasner.wordpress.com. Share this article, or leave a comment below.

Advocacy Group Petitions Florida Supreme Court to Review Work Comp Constitutionality

As I reported three weeks ago in “Breaking News on ACA and Exclusive Remedy”, the issue of constitutionality of Florida’s workers’ comp system was settled by the 3rd District Court of Appeal.

However, Stephanie Goldberg reported today in Business Insurance that an advocacy group has petitioned the Florida Supreme Court to review the case that challenges the constitutionality of the state’s workers’ comp system.

The Florida Workers’ Advocates filed an appeal with the Court to review The State of Florida v. Florida Workers’ Advocates et al.

The case questions whether workers’ comp is an adequate exclusive remedy for injured workers. This issue was discussed in my previous articles, “Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel” and “Update on Constitutionality of Work Comp in Florida“.

As far as Florida Workers’ Advocates are concerned, the issue of the constitutionality of workers’ comp has not been settled, so expect more on this in the future.

What does it mean for you?

Probably nothing, because the Supreme Court will probably uphold the District Court of Appeal ruling that the plaintiffs had no legal standing to challenge the constitutionality, and that will settle the matter.

————————————————————————————————————————————-

I am willing to work with any broker, carrier, or employer interested in saving money on expensive surgeries, and to provide the best care for their injured workers or their client’s employees.

Call me for more information, next steps, or connection strategies at (561) 738-0458 or (561) 603-1685, cell. Email me at: richard_krasner@hotmail.com.

Ask me any questions you may have on how to save money on expensive surgeries under workers’ comp.

Connect with me on LinkedIn, check out my website, FutureComp Consulting, and follow my blog at: richardkrasner.wordpress.com. Share this article, or leave a comment below.

Exclusive Remedy in Workers’ Comp under Assault

Exclusive-Remedy-Rule

As I reported last July in my article, Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel, and three weeks later in my article, Update on Constitutionality of Work Comp in Florida, the concept of workers’ comp being the “exclusive remedy” for injured workers in Florida was ruled unconstitutional by a Miami-Dade county circuit judge.

Last week, Business Insurance’s Stephanie Goldberg and others, reported that a district court judge in Pottawatomie County, Oklahoma ruled that its state’s workers’ comp law does not provide exclusive remedy for “foreseeable” injuries. The article, No exclusive remedy for ‘foreseeable’ injures in Oklahoma: Court, discusses a case involving an employee of a tire company who was injured while loosening a bolt on a wheel in February 2014.

The judge ruled that the employee could sue his employer, because his injury was “foreseeable” and therefore, he did not suffer a compensable injury under Oklahoma’s Administrative Workers’ Compensation Act.

The Act states, according to Goldberg, that an accident is an event that “was unintended, unanticipated, unforeseen, unplanned and unexpected.” His attorney is quoted as saying that Oklahoma’s exclusive remedy provision “contains unconstitutional provisions which deny an injured worker’s right to an adequate remedy.”

In an interview with a local newspaper in Oklahoma, the attorney said that the Administrative Workers’ Compensation Act “abrogates the employer/defendant’s immunity from a negligence action in district court. Exclusive remedy is dead.”

It occurred to me that there was a pattern here with the cases in Florida and in Oklahoma, and that an organization called “ALEC”, the American Legislative Exchange Council, might behind these moves, but I did not find any connection to them.

What it does signify is a return to the kind of world that existed in the years before workers’ compensation was enacted in all fifty states. Workers who were injured on the job would sue their employers, if they were able to go to court, and try to get their injuries paid for. What the exclusive remedy did was to create a “grand bargain” whereby the employee gives up the right to sue, and the employer, or his insurance carrier, pays for his lost wages and medical care.

In Oklahoma, this comes after the state authorized some employers to opt-out of the state’s statutory system, as I mentioned in my article, Opt-out as a way in: Implementing Medical Tourism into Workers’ Compensation. I am all in favor of giving employers some flexibility in their workers’ comp program, and unlike what is done in Texas, where some employers simply go without, while others opt-out or are a part of the system, Oklahoma requires employers to follow certain guidelines.

Yet, this ruling, and the one in Florida, do not bode well for the survival of workers’ comp as a whole, and that would be a sad day indeed.

What does this mean for medical tourism and workers’ comp?

Well, if these rulings hold, and workers’ comp is ruled unconstitutional, one of two things would happen. Either, state legislatures would have to rewrite their laws, or we would go back to the bad old days before workers’ comp enactment. Then you would have a “wild, wild, west” of lawsuits and injured workers losing their cases. If there is a workers’ comp version of the NRA, they would be very happy indeed with that outcome.

What it would mean for medical tourism? It would probably be a boon, because then more injured workers would be able to go out of the country for needed surgery, but the question as to who would pay for it would need to be determined. It could be paid for under group health, but that would cost-shift a workers’ comp claim to health care, or it could be paid for out of the settlement.

Let’s hope that there are wiser heads around to prevent what would be a mass catastrophe, as far as injured workers and their families are concerned.

Update on Constitutionality of Work Comp in Florida

Three weeks ago, I discussed a workers’ compensation case here in Florida where the Plaintiff and his attorney alleged that the Florida workers’ compensation act was unconstitutional.

The article, Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel, suggested that if the Florida act was ruled unconstitutional, there could be an opening for medical travel in workers’ comp in Florida, as both injured workers and their employers would no longer be subjected to administrative law judges and the courts.

At that time, it was speculative if the workers’ comp act would be ruled unconstitutional. But as CA attorney David De Paolo wrote yesterday on his blog about another case in Florida, the judge in that case declared the system to be unconstitutional.

According to De Paolo, a ruling on Wednesday by Miami-Dade Circuit Judge Jorge Cueto in Padgett vs. State of Florida, said that the exclusive remedy provision of Section 440.11 is facially unconstitutional.

David reported that the basis for Judge Cueto’s ruling is that over the years the Florida workers’ compensation act’s original grant of benefits for permanent disability, which was part of the “Grand Bargain,” has been so eroded as to no longer serve as an adequate remedy.

Judge Cueto, David says, cited the original constitutional test of the exclusive remedy of workers’ compensation in the United States Supreme Court case of New York Central Railroad v. White, 243 US 188 (1917), a case in which ironically the business community sought to declare compulsory workers’ compensation laws unconstitutional.

According to David, Judge Cueto quoted one of the more powerful passages in that case:

“One of the grounds of its concern (the workers’ compensation act in question) with the continued life and earning power of the individual is its interest in the prevention of pauperism, with its concomitants of vice and crime.”

For years, David tells us, attorneys representing injured workers throughout the nation have been saying that the compensation bargain has been eroded and one need only visit all of the various injured worker “forums” on the Internet to see that this particular demographic feels pushed into pauperism as a consequence of industrial injury.

What the judge is actually saying, David explains, is that if the remedy provided by the Florida Act is mandatory and exclusive, then it doesn’t meet constitutional muster because there isn’t enough money to keep injured workers from diving into pauperism, which harms all of society and places excessive burdens on other systems such as Social Security or Medicare (or what we like to call in our sanitized jargon “cost shifting”).

In previous posts, The Stench of Fraud: Why Workers’ Comp Can No Longer Be a Closed System and The Stench of Fraud, Continued, I discussed the plight of someone I called “Ms. X”. This individual has been abused by the system in her state, and has been reduced to some level of pauperism by the system for its failures to adequately and fairly treat her for her work-related injuries. As I reported at the time, she has been abused by both the medical profession in CA, the legal profession, her former employer, and is now subject to having her communication, both telephonic and internet, being monitored by defense attorneys.

In light of the civil unrest in Ferguson, Missouri and the militarization of the police there, one has to assume that we are living in a police state more like that of Communist China, Cuba, and North Korea, as well as the former Soviet Union, instead of the US. I can see why Judge Cueto ruled as he did in the Padgett case, since the injured worker is being treated like a political prisoner or a common criminal, instead of as someone who needs to be taken care of when suffering an injury arising out of and in the course of their employment.

But back to the case before us.

Without going any deeper into the ruling itself, and to get to the wider point of what it means for workers’ compensation, let me say that as David mentions in his blog, the adequacy of benefits in workers’ compensation is getting the attention of the judicial system from coast to coast.” He goes on further to say that in California, the constitutionality of the state’s system is being picked at piece by piece.

In addition, last year, he states, the Texas Office of Injured Employees Counsel released a couple of reports suggesting the dispute resolution system lacked constitutional protections for injured workers, and there are other states where workers’ compensation laws are being questioned as conforming to the original bargain in one form or another.

He also points to the Oklahoma opt-out (see my posts, Opt-out as a way in: Implementing Medical Tourism into Workers’ Compensation and Opt-out as a way in: An Update for more in-depth understanding of what an opt-out program is), as well as the constitutional attacks, complaints about costs and inadequate benefits, and says that what is really going on here is a debate that he’s been having for quite some time: Is workers’ compensation even relevant any longer?

I think another point that needs to be made is this: are our politicians, or at least some of them (the Tea Party/Libertarian wing of the GOP) trying to undo the rights of injured workers the same way many of their governors have been doing to public employee and private employee unions since a former head of the Screen Actors Guild became their knight in shining armor and patron saint.

David goes on to add, and I agree with him that, this debate is getting louder and, as work comp is a microcosm of society, it points to larger issues facing society – a huge discord between the minority of “haves” versus the vast majority of “have nots.” In other words, between the “one percent” and Willard Mittens Romney’s (aka, Thurston Howell III) “forty-seven percent”.

But what is really happening at a much deeper level is that ever since the late 1970’s or early 1980’s (“Well, there you go again!”), the US has been in the grip of what Said Dawlabani calls “the only money matters” vMeme. This vMeme (or value system) is what has been driving the American economy off a cliff for more than thirty years, and is being orchestrated by the players on Wall Street.

We have seen this in nearly every industry that Wall Street gets its grubby little hands on. It has happened in retail, in banking, insurance, health care, and now workers’ comp. My fellow blogger, Joe Paduda has written extensively about the corporate buyouts of third party claims administrators and claims management companies, as well as other service providers to the workers’ comp industry such as pharmacy benefit management firms and translation/transportation companies.

These acquisitions have either come from competitors buying up each other, or from private equity firms seeing the potential of big payouts to their investors from workers’ compensation. But in the consolidation and accumulation of companies that has taken place over the years, jobs have been lost, workers have been ignored or forgotten as the main reason why workers’ comp exists in the first place, and as I’ve said many times before, it is a broken and dysfunctional system that is too dependent on the legal system or on doctors who are milking the system for all they can.

The social safety net that began to be weaved one hundred years ago, from the enactment of workers’ comp to Social Security, Medicare and Medicaid, is being slowly unravaled by Ayn Rand devotees who think such things are “entitlements”, but who believe that a millionaire or billionaire who gets a tax break at our expense is a “job creator”, and therefore they are entitled to get wealthier. Yet, I’d like to see how wealthy they’d be without workers making the goods or providing the services that they are getting rich from.

David brings up one other point about the judge’s ruling and its meaning that I also agree with. He says that Judge Cueto in the Padgett case is really opening up a debate about whether society is taking care of its own any longer, and that the Padgett case is about social unrest. We are, indeed, meandering into challenging times where the nation’s soul is being examined.

And I would add, that it is incumbent on everyone who cares for sick or injured people, no matter whether they are rich or poor, that they get the best care available and at the lowest cost possible, even if that means having them travel to other countries to get it. Because in the final analysis, if the Rand Paul’s and Paul Ryan’s and the Letter to the Editor writers to the Wall Street Journal, Fox News viewers and talk radio ditto heads get their way, this country will look like it did in 1789, not 2014.

Medical travel may be able to salvage some of the social safety net, but the industry must make that decision. The future medical care of injured American workers depends on it if the Padgett case stands.