16 Oct 2017

Following up on the Year’s Top Workers’ Comp Issues: Back to the Future

By Karen C. Yotis, Feature Resident Columnist, LexisNexis Workers’ Compensation eNewsletter

Before the blogs and newswires start posting their usual “boy, wasn’t that something” year-in-review stuff, I thought it would be an interesting exercise to revisit the prophesies that industry soothsayers made earlier in 2017 for a brief reality check. I looked at my files for inspiration and pulled out a panel recording that outFront ideas with kimberly and mark hosted during Q1 to see how their predictions have played out.

Many months later, webinar listeners (and members of Mark Walls’s Workers Comp Analysis Group on LinkedIn) won’t be surprised that the forecasts in Top 20 Workers’ Compensation Issues to Watch in 2017 hit the bulls-eye for most issues square on the, um, mark.

I also reached out to Deborah G. Kohl and Richard B. Rubenstein (from the claimant’s side) along with Albert B. Randall, Jr. (from the employer’s side) to help me continue outFront’s conversation about (1) transparency with workers; (2) public image of workers’ compensation; (3) opportunities for workers’ comp to evolve; (4) external disruptors; and (5) innovation in action.

Here’s how the story has evolved …

TRANSPARENCY OF WORKERS: THROUGH A GLASS DARKLY

Transparency within the context of workers’ compensation means helping injured workers be good consumers within the system. It’s all about making certain injured workers know the claims process and have the best information available to make good decisions. And to be sure, it’s also about keeping costs down and convincing workers that there isn’t a good reason for them to “lawyer up.”

The outFront webinar positioned transparency as an important component of advocacy-based claims management, that industry buzz-word concept that analogizes the relationship between improved customer service and higher levels of organizational performance to the workers’ compensation claims process.

Bert Randall shared a clearly positive view when he stated:

“Rather than an ‘us against them’ mentality that may have existed in earlier times with respect to claims handling, we have seen an evolution in recent years where employers and insurers are working collaboratively with employees following work-related injuries. Workers’ compensation policies and program components are being communicated to employees more clearly than we have seen at any time in the past. Employers are even using their employee-friendly policies as a tool in recruiting efforts by emphasizing their commitment to maintaining a safe and healthy workforce.”

Deborah Kohl felt that advocacy (and its country cousin transparency) haven’t gone far enough and stated:

“[W]hile some insurers or TPA’s have attempted to institute on-line procedures to assist injured workers in determining when or if they have been paid and if (and when) medical procedures have been approved or denied, this is insufficient to meet the needs of the injured worker. Most injured employees feel that they are in the dark as to what is happening, how it happens and their legal rights. This leads to hiring of counsel and more importantly dissatisfaction with the system. Many injured workers feel that the employer does not care about them and that the system is failing them. How can the injured worker be a good consumer when they don’t know their rights regarding medical treatment, the benefits that they may be entitled to or when their benefits might end?”

Rick Rubenstein pointed to a solution that would take advocacy in a decidedly more adversarial direction when he stated:

“The solution to the problem of transparency in the system doesn’t depend on innovation, but mere discovery of what is already available. In New Jersey, for instance, DME and ‘need for treatment’ physicians and treating physicians all have a physician/patient relationship to which they are virtually never held, ethically or professionally. Case nurses have professional responsibilities and ethical duties to which they are never bound. Adjusters who delay benefits are punishable, but seldom punished. Claimants who commit fraud become business decisions, not targets for enforcement. The system can be made to work if people just pay attention and use the administrative, legislative, and forensic tools they already have, to promote transparency, and thus, responsible behavior. The industry does not promote any understanding by claimants, the intended beneficiaries, of their legitimate expectations from the system. The industry, and all too often their own attorneys, talk AT consumers, not to them.”

PUBLIC IMAGE: YES, THERE IS SUCH A THING AS BAD PUBLICITY

Public image in the context of workers’ compensation encompasses the tendency to focus on the “bad” stories, and ongoing efforts to help bring more awareness of the “good” in workers’ compensation, to the point where these positive vibes can even be used as a millennial recruitment tool. During the outFront webinar, Kim clearly believed that “workers’ compensation is about helping people, and we have very purposeful work in that space.” Yet she also lamented “why do so many of our colleagues in that space not see their work in that light?”

Deb Kohl offered one answer when she told this author, “workers’ compensation has a poor public image. From the employee’s perspective and that of the employee’s counsel, it’s hard to imagine a positive story where an insurer has assisted a worker about and beyond the statutory mandates.”

Bert Randall had a different take, and used program enhancements at American Airlines brought about by its WC Director who has “led an effort to provide ‘concierge service’ to employees by ensuring they are well educated and spearheaded efforts to provide early nurse case management services and return-to-work guidance at injury onset to help facilitate treatment and return-to-work issues as soon as an injury takes place. They are also developing occupational health clinics at all their hubs for prompt access to care immediately after work-related injuries and to help facilitate other wellness initiatives such as treatment of non-occupational acute illnesses.”

OPPORTUNITIES TO EVOLVE: BEWARE THE FEDS

The conversation about how workers’ comp should evolve to better meet the needs of today’s workforce is driven in large part by the threat of federal intervention. With federal intervention put on hold back in January (and expected to remain so throughout 2017) outFront emphasized the importance of the industry taking charge of its own agenda and working with legislators to create change in the areas of benefit adequacy, misaligned incentives, and ensuring prompt access to appropriate medical care.

While the threat of federalization will likely remain subdued for the near term because of President Trump’s more pressing ACA, tax reform and immigration issues, Bert Randall still expects the industry to improve efforts to better meet injured workers’ needs through enhanced benefits and safeguards. Mentioning the increased judicial activism in state courts, Randall posited that “many state legislatures and administrative agencies will likely continue to develop benefit structures that are moderate in nature to stave off further attack from the plaintiffs’ bar and prevent wholesale changes brought about by judicial action such as we’ve seen in Oklahoma and Florida.”

Rick Rubenstein had an entirely different take. To him, “perhaps the better question is: How long before the redundant, inefficient, and often conflicting operation of 50 separate workers’ compensation systems is discovered by advocates of single-payor on one hand, and free market on the other, presenting a sitting duck for attacking inefficiency and duplication of effort in the medical benefits provided through workers’ compensation?”

INNOVATION IN ACTION: COUNTING CHICKENS THAT HAVEN’T YET HATCHED

The explosion of digital information, predictive analytics, and the Internet of Things (IoT) is causing a Renaissance within the workers’ compensation industry. But rather than merely introducing innovative solutions such as digital health, InsureTech, MedTech, and machine learning and automation, outFront challenged us to understand how (and whether) an innovation delivers value in the form of an improved process, efficiency or reduced cost. But where is this all going, outside the context of a forward-thinking webinar?

Bert Randall continues to be amazed at how employers, insurers and their vendor-partners are using technology to develop the metrics necessary to enhance the handling of comp claims. In his view:

“through technological data collection and efficiency, a ‘win-win’ situation has been created whereby employees are receiving better healthcare and more timely benefits while employers and insurers are able to use predictive programs to determine those claims that pose the most significant exposure.”

More efficient resource allocation during claims handling and easier fraud detection also support Randall’s positive take on innovation.

Rick Rubenstein was a bit less circumspect. He took a hard-hitting attitude when he stated:

“Garbage in, garbage out. There is no national, regional, or even local consensus on the protocols for treating even the most common of injuries, the concept of lost time, light duty, or reduction in earning potential due to injury. Innovative solutions are not going to be efficacious solutions without values-based consensus on medicine or rehabilitation/wage replacement goals.”

Deb Kohl had a more practical approach that left no doubt about her view on whether innovation is delivering value when she stated:

“I represent real human beings seeking medical treatment and weekly benefits. My clients don’t care about these so-called innovated solutions. They only thing they care about is getting a check and getting treatment to get better. These industry ‘innovations’ are really just cottage industries looking for business and creating new ways to sell products to the megalith insurance companies.”

GROWING PAINS

Workers’ comp professionals tend to focus attention on Issues relating to the ACA, OSHA, and constitutional challenges to the Grand Bargain. But the select topics discussed above speak more specifically to the direction of the industry at large and help us get a grounded sense of the sweeping changes that are beginning to evolve (and yes, even disrupt) the workers’ compensation industry, despite its oft-times stodgy self.