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Langham: Picking Doctors

By David Langham

Wednesday, August 30, 2017 | 508 | 0 | min read

I ran into a lawyer recently at a Florida Worker's Compensation office. Our conversation turned to medical care within the Florida system. He described frustration, an issue of trust and a system where the employer's carrier selects virtually all of the physicians.

Judge David Langham

Judge David Langham

His contention was that all doctors selected by employer carriers are committed to finding nothing wrong with the patient, releasing the patient to return to work immediately and avoiding the performance of expensive medical care at the responsibility of the carrier.

I was admittedly a bit surprised by the "all doctors" generalization. 

He argues that these doctors are not reluctant to identify some malady that requires treatment. He says that they recommend surgery and similar care, but they consistently conclude that the need for that surgery or other remedial care is the result of some pre-existing injury or congenital abnormality.

He summarizes that the patients need care, the doctors are eager to perform the care, but that they feel it is bad for their medical business to relate the need to the work injury. 

He named names freely, and indicated certain practice groups and facilities within his community at which he believes these outcomes are certainty, or near certainty. He spoke confidently from personal anecdotal experience of these outcomes regarding the workers he represents.

It is impossible to independently discern either the prevalence of such physician conclusions or the sincerity. I do, however, think that the lawyer making these points was sincere in his perception.

As I reflected thereafter on his thoughts, I remembered years ago when Florida claimants had much more discretion in physician selection. There were complaints in those days of certain physicians being persistently inclined to finding a work-related malady or injury in every patient who was examined. One might see a similarity in those perceptions to the inverse perceptions of this attorney. 

In the 1980s and 1990s, some in this industry perceived a population of Florida physicians consistently concluding that anything and everything wrong with the patient was the result of some work accident. Based thereon, observers perceived a trend toward expansive interpretations of fact and proliferation of expert conclusions of compensability, need for treatment and disability/impairment related to a work injury.  

Admittedly, time can round the edges on perceptions and recollections, but I do not recall those perceptions being generalized about all doctors.

Is it possible that physicians could be partisan for either the injured worker or the defense? From what has been described to me, it seems probable that at least there is a perception of such partiality now in one direction, and perhaps there was a similar prior perception in another direction. I have not been provided evidence that supports predispositions or perspectives, but that does not change these perspectives and perceptions that have been expressed. 

If a patient does not have trust in a physician, that could affect the patient's decision-making. That may be as true for the employer/carrier's decision-making when it similarly lacks confidence in a medical provider. And, though we perceive medicine as science, there remains a great deal that we simply do not know about the human body, or the human condition for that matter. A great debate in modern workers' compensation revolves around the foundations of medical opinion, treatment guidelines, impairment ratings, Daubert, Frye and more. 

There are a great many people who have a deep and philosophical interest in the law and this practice of workers' compensation. I have consistently been impressed with the willingness of so many to view issues in an objective and reasonably dispassionate manner. I have had some incredibly rewarding academic conversations about capitalism, the law, and the various social or socialistic constructs like workers' compensation and Social Security that have become intertwined. 

Despite their ability to discuss issues academically and dispassionately, I also recognize that there are a fair few who have strong feelings, who have reached strong conclusions, and who are well-capable of being steadfast and unrelenting advocates for their chosen perspective. I respect that also, no matter which side they are on. One of the great proofs of professionalism is someone who can be conversational, courteous and even critical without making the discussion personal or insulting. 

The professional studies and interprets, agrees and disagrees and supports her/his position. But the professional does so while respecting, listening to and being courteous to those with whom she/he may disagree. There is room in American society for such conversations and disagreements. 

As an aside, I recall watching one attorney try cases over the years. I could always tell when he was frustrated or angry, not because his tone or volume changed, but because he became increasingly formal and courteous with the witness who was frustrating him. His reaction was not anger — it was measured and increased courtesy. That was always impressive. If everyone reacted to frustration with more courtesy, what a world we would live in.

What is the ultimate goal of workers' compensation? That question will drive some debates (not a great opening line at most cocktail parties). Some contend that it is medical recovery. Others contend that it is compensation for disability. Still others argue that it is immunity for employers. And the point, perhaps, is that what is "the most critical" may depend upon the perspective from which the system is viewed. 

Are medical decisions being driven by the lure of future business in the current Florida model of "employer choice" as the lawyer recently described to me? If it is, would it be fair to suspect that the same motivation might have driven similar, if opposite, behavior when employee choice was more prevalent?

Is there a methodology in which physician decisions, recommendations, and opinions would not be perceived with this skepticism and distrust? 

We may be well-served to ponder the potential that conclusions or opinions in this regard, and others, might be driven by individual personal perspectives. Is it possible to put those perspectives aside, and have professional and courteous conversations and debates about these individual perspectives? Is it possible to find a process in which doubts are minimized, and confidence is maximized for both employers and employees?

Perhaps it is true that there is no perfect model or method at our collective disposal, and therefore workers' compensation may arguably reach conclusions and outcomes based on legislative compromise, no matter how imperfect that may be. Perhaps, as some have suggested, legislative processes are doomed to cycles on various peripheries as there is action and reaction to the weaknesses inherent in any particular perspective or model, the so-called "swinging pendulum" that does not rest in centrist equilibrium but instead remains in persistent motion. 

Academically, it is fascinating. Workers' compensation has consumed a great many of my hours, in contemplation, study and conversations like the one that led to this post. It is intriguing, complex and sometimes frustrating. But at the end of every analysis are two human beings. One is a human being who is experiencing dysfunction, and there is a corresponding human being(s) who employs that person. These two, the employee and employer, are the purpose of this system in which we labor. 

In the end, there is a great deal to think about in these debates. Perspectives will be different. Conclusions will be reached. Perhaps imperfection is the best we can achieve. As we discuss these questions and perspectives, hopefully everyone involved can listen courteously.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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