Langham: Defining 'Progress'

Wednesday, December 21, 2016 | 0

How do we define progress?  Perhaps that is one of the most vexing questions regarding the concept of worker's compensation and the debates about its future.

Judge David Langham

In simple terms, "progress" is the opposite of "regress," and perhaps that is a sound starting point. Webster's Dictionary defines "progress" as "a forward or onward movement (as to an objective or to a goal)" and as "gradual betterment." Each of these offers us perspective in our pursuit of understanding. Progress is moving forward toward a goal and avoiding moving backward. 

But that is the real rub. Is it possible for everyone to agree on what forward means? Depending upon perspective, is it possible to move forward without simultaneously moving backward?

I recently witnessed a conversation regarding fundamental elements of workers' compensation. It was a professional and friendly conversation, but disagreements were expressed. As an aside, I am always encouraged when I see and participate in cordial and courteous disagreement on a subject. There is a tendency this century toward name-calling, demeaning and insulting as discussion formats.

Hopefully, we could instead have meaningful discussions in which we accept as a premise three facts: (1) universal agreement is unlikely and elusive, (2) in disagreement neither side is necessarily right or wrong and (3) our personal perspective on someone's position makes us neither smarter nor dumber than them — perhaps similar or different, but not better or worse.

This particular conversation revolved around physician choice in workers' compensation. There were various perspectives shared regarding perceptions of the importance of physician choice.

In workers' compensation systems, there are two polar positions on this topic. And, as with many policy issues, there are a number "middle-ground" approaches in between. Some state systems afford injured workers complete discretion in selecting the physician who will treat a work injury. On the other end of the spectrum, there are states that instead afford unfettered discretion to employers in selecting the physicians to provide such care. 

In between these two polestars are an interesting assortment of legislative or regulatory constraints affording some measure of bilateral decision-making. There are states that afford absolute employer choice initially, with equally absolute employee choice following the passage of some time period. There are states that afford employee choice of providers, but only from a "panel" or "list" selected by the employer.

Florida's paradigm affords employer choice but allows an employee "veto" of sorts. The employer selects, but the employee can force the employer to select an alternative, a "one-time-change." There are even paths through which the Florida employee might select his own physician.

In the end, there are seemingly as many paradigms as state systems. 

For the most part, state experts with whom I have conversed tend to believe strongly in the plan adopted by their respective state. Reiterating, their individual perspectives are not "right" or "wrong," and neither my or your agreement with them make us or them smart/dumb or better/worse. Whether we agree or disagree may perhaps illustrate the similarity or differences in our background, experiences or perspective. Or, it may simply illustrate how similar their system is to the one with which we are personally familiar or comfortable. But our agreement or disagreement neither defines us nor necessarily limits us in our ability to consider their conclusions intellectually. 

In this recent conversation regarding physician choice, one perspective expressed this issue as a matter of "progress." The speaker noted that workers' compensation in a particular jurisdiction had begun with an unfettered employer choice of physician. That paradigm was dismissively referred to as the "company doctor" paradigm. This phraseology perhaps recalls to mind the repressive industrial revolution image of "the company store," an environment where geographic or economic isolation rendered certain consumers subject to manipulation or ill-use. 

The speaker lamented the history of employer-choice and recounted the long period this jurisdiction operated under that paradigm. But change came to that jurisdiction in the last 40 years. Sometime in our lifetimes (please note that there is ample ambiguity; focus on the subject rather than upon deciphering what jurisdiction), the speaker related that this jurisdiction transitioned to an employee choice paradigm. The speaker lauded this "progress."

The speaker cautioned that any discussion of physician choice should recognize (and perhaps revere) this "progress." In essence, having fought long and hard for the change to employee choice, why would any state consider reverting? What was missing from the expressed perspective was a definition of "progress." 

Another perspective entered the conversation. This voice suggested statistical data supports that "better" medical outcomes are achieved in systems with employer choice. A study was cited and data shared. This voice suggested that moving to a paradigm of employer-selected medical care would produce "progress" for workers' compensation.

Some argue that this perspective likewise did not include a definition of "progress." One strength of this perspective was that it had a foundation in data (although it is possible that other studies exist and may contradict the cited study). 

Workers' compensation is a regulatory process. And regulatory processes are Newtonian. The same three laws of motion that Newton described for the physical world can be aptly applied to regulatory process. 

These three laws are:

(1) An object at rest will remain at rest unless acted on by an unbalanced force. An object in motion continues in motion with the same speed and in the same direction unless acted upon by an unbalanced force.
(2) Acceleration is produced when a force acts on a mass. The greater the mass (of the object being accelerated) the greater the amount of force needed (to accelerate the object).
(3) For every action there is an equal and opposite re-action.

Rephrased for our regulatory context, these three laws might be 

(1) A process in place will remain in place until sufficient political will forces its change. (Either "we do it this way because we have always done so" or "we can't do that because we never have").
(2) The more a process or regulation will affect power and money, the more people it will affect and the more political force will be needed to accomplish change. 
(3) For every regulatory or legislative change, someone will perceive detriment and thereafter seek regress (change back) or an alternative course (a different change creating advantage or perceived equity.

The missing element from the recent conversation may not be the absence of a definition of "progress." Perhaps what is missing is "the goal." That is the real rub of the debate of "progress."

Progress, you see is not an independent variable that can be defined (refined) in a vacuum. Progress is a measure that can be relevant only in relation to "an objective or to a goal," per Webster's Dictionary. Unless a goal is defined, then whether some action represents "progress" or "regress" is indeterminable. Without a destination in mind, one cannot opine as to whether a step in any direction will take one closer to or away from. 

The goal has to be stated at the outset. The goal cannot be conformed at the end of analysis in order to claim success and justify the analysis. In other words, having randomly taken three steps this morning, I cannot find myself in the kitchen and declare success by stating in retrospect that my goal was, in fact, the kitchen. Only when the goal is set and stated, i.e. "the kitchen," can the progress of the three steps be said to be either progress (toward) or regress (away).

Without stating a goal, one of the recent conversation participants equates the change to employee choice as "progress," implies any other alternative would be "regress," and (emotionally or intellectually) arrives at a perspective in favor of employee choice (remaining in motion in the same direction and same speed.) Similarly, another participant suggests that empirical data (the cited study) should be the "unbalanced force" that should overcome that status quo and change either speed or direction (or both) and move a system to (or toward) employer-choice. 

In this respect — medical care for injured workers — the goal should not be difficult to discern or state. The goal should be returning injured workers to function and employability following any work injury. That goal benefits the injured worker and the employer.

This provision of recovery and rehabilitation — restoration of function and health — should be the polestar of the analysis. This should be the goal. The question of whether something is progress or regress should center on discussion of whether any element (physician choice, indemnity extent or duration, definitions, regulations, processes) brings the systems, and the workers and employers they protect, closer to that goal. 

Sentimentality about what "has always been," has no place in the analysis. Whether a path to some current paradigm was easy or hard is not the analysis. Continuing today merely because it is consistent avoids change, and is perhaps easy. It may be preferred or justified "just because." But intellectually, if the current process is the correct course, no volume of questioning should change that. In other words, if a process is worthy of retention, let it be so on the merits of the discussion, not upon the emotion of familiarity. 

Alternatively, if the current process and course is so fragile that it cannot stand the tests of "why," "why not," and "what if," then perhaps it is simply too fragile to merit our support. With ambitious and meritorious goals, focused on improving people's ability to live, contribute and grow, can we have a discussion focused on an appropriate goal (recovery and return to function)? Can we have discussions that ignore our personalities, personal failings and biases?

As we close 2016 and take the national conversation on workers' compensation into 2017, I hope we can bring intellect and focus to the table. Let's focus on the data and the outcomes, and decide how to make progress toward appropriate goals for employees and employers across this continent. Let's remember what Newton taught us: Appreciate the influence of motion, inertia and outside forces.

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