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How Medicare Can Heal Workers' Comp

By Barry Thompson

Tuesday, March 31, 2015 | 232 | 0 | min read

I make the case that workers’ comp in every state should carve out its medical line and relinquish it to Medicare. The respective statutory systems for indemnity benefits would remain. This scenario, albeit challenging in execution, would correct the cause of many systemic workers' comp ills.

Barry Thompson

Barry Thompson

First we must admit that the root of most WC problems lies in the delivery of medical care. Workers' compensation medicine inhabits its own “bizzaro-world” often lacking both clinical science and common sense. This is not by the fault of most medical practitioners themselves, but more so by the pervasive manipulations, exaggerations and legal stretching of sensibilities that otherwise defy clinical standards as enjoyed in nonclaim treatment venues.

The ubiquitous counterintuitive flaw is that WC medicine often is used to expand a claim rather than provide a cure. Anyone in the WC business can agree to the following truths as just a sample of medically-related frustrations:

  • Most any study performed shows higher costs and worse outcomes in WC medicine versus nonclaim care. Common injuries and diagnosis take longer to heal as WC claims.
  • Hearing judges regularly disregard clinical opinions in favor of subjective evidence. A common judicial outcome is to award illogical progressions of expanding diagnosis as travelling through and manifesting in various body parts.
  • Causal relationship has an extremely low and speculative threshold when combined with chronic overlays and comorbidities.
  • Chronic conditions are accepted as arising out of incredibly specious initial traumas.
  • Multiple surgeries and lifetime narcotic regimes are embraced in the face of perpetual and repeated failures to cure and all to the general detriment of claimant health.
  • Various entities have profit streams directly related to churning medical care.
  • Most of the pendulum-swinging effort in statutory legal reform amounts to limited attempts in controlling medical systems already tainted by legal gamesmanship. Therefore, the results don’t always support optimal clinical perspectives or patient well-being.

WC professionals may have a jaded viewpoint and accept this nonsense as part of the game. I ask you to consider a world where WC medical care was a nonissue. How much conflict and cost could be taken out of the system?

Let’s take it another step and consider ridding the current system of Medicare set-asides. We all know MSAs and their surrounding requirements increase cost, require added resources and waste temporary total disability money in process-delays. MSAs are a hijacking of any given state’s ability to allow compromised settlements over unproven causal relationship. In effect, when no one has determined direct causal relationship, MSAs simply decree all future care be paid, in advance, as an addendum to a settlement. Another terrible dynamic of this hijacking is how Medicare profits from the wild abandon in WC medicine in so much as a litany of future responsibilities can be attached to a claim absent a clinical “reasonable and customary” test by which Medicare itself might never accept such treatment requirements.

Through the MSA process Medicare enjoys an exceptionally advantageous position with respect to WC. However, the playing field can be leveled by giving Medicare every claim from day one. There should certainly be a direct reimbursement requirement from WC claim payers to Medicare for related care provided. I argue that this scenario would be much less costly and more efficient and fair than the current big-picture scheme that is WC medicine.

Here are a few practical thoughts in application that require no big changes:

  • Medicare uses its current rules for “reasonable and necessary” to approve all care and to formally conclude treatment. Disputes can be handled via existing channels available thru Medicare.
  • Medicare uses its current fee schedules.
  • Medicare uses its current rules for determining “chronic” conditions as opposed to curative treatment. This is the arbiter for otherwise obstinate litigated MMI arguments and sets the bar for drawing-down the WC reimbursement requirement and transferring a case to group health if ongoing care is necessary.

Here are additional suggested changes to support the concept:

  • Questionable causation or responsibility for migrating diagnosis could be given a percentage likelihood that would be applied to Medicare reimbursements. Independent physicians from opposing sides could put forth opinions and a review process could establish the percentage applied to the life of the medical case. For example, a clinical consensus decrees that aggravated shoulder pain is 25% likely as due to job-related issues and therefore future Medicare reimbursements from WC are 25% of cost.
  • Extent of disability and permanency could still be determined by state-sanctioned independent medical examiners and litigation process. The difference being limited opportunity to exploit medical opinion, as Medicare would refer for these opinions and aspects of Medicare’s rules and controls and requisite threat of sanctions would govern the providers.
  • Medicare would need to categorize WC-preferred providers with appropriate qualification in occupationally-related medicine.
  • The ability to actually settle medical costs would no longer exist in any state.
  • New employer insurance products or funding mechanisms could be invented to cover “Ongoing Medicare Reimbursements” on certain classes of long-term claims where indemnity is fully closed, as well as the sporadic one-off future claims that might arise as allegedly part of an initial WC claim, with a “claims made” type of trigger. No more MSAs.

In conclusion, this concept would profoundly improve WC in four ways:

1) It provides a nationally accepted level of care to injured workers.

2) It brings clinical common sense to an otherwise specious and manipulated system.

3) It ends the oppressive impact of MSAs.

4) It saves an incredible amount of direct costs, frictional costs and resources while reducing litigation.

This idea is radical, but among the calls to revise the “Grand Bargain, it does not totally explode the current state system. I say let the debate begin!

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