Work Comp History 101

Monday, July 4, 2005 | 0

Why Things Are the Way they Are - an opinion by an experienced claims examiner

The following commentary first appeared in the WorkCompCentral Forums. It has been republished here with some minor editing for context and readability:

1. More experienced adjusters often are less cynical than less experienced ones. New adjusters take too much on face value: the policyholder is just and true and does not lie, the doctor you've chosen for your QME is just and true and has the patient's best interests at heart, the app atty and/or IW is gaming the system.....These are simplifications that are all sometimes true, and sometimes not. And newer adjusters have a harder time differentiating.

2. Most of us (claims examiners) are not intentionally choosing washout docs. At least not anymore, not since the 1989 reforms got rid of the tit for tat bogus claim medical seesaw: injured worker (IW) files bogus claim with 5 separate 'med-legal consults' who all find him near death or almost totally disabled forever; carrier rebuts with 5 separate 'med-legal consults' who will state the opposite, and the case settles somewhere in the middle. And I do mean bogus claims, and bogus med-legals. It was a legal free-for-all, and a lot of these bogus claims, rung up $25-30,000.00 worth of consult reports and tests (and that figure is AFTER the bills were reduced to fee schedule, and not a treatment charge in sight), and then called the adjuster saying things like 'my client's a scumbag, we'll settle for $500.00 C&R with a Thomas waiver on voc rehab, but you have to pay the lien claimants 85% of their original bill or it's no deal'. It was basically a scam, fueled by cappers who hung out at the Employment Development Department (EDD) recruiting 'injured workers' who were not injured, promising them work comp paid better than EDD did, and they could just hop in the van and they'd take care of the rest - take them to the 'doctor' and get their story straight.

Gee, I wonder why we became so cynical? Anyway, the applicant attorneys on these cases basically worked for the doctors at the insurance mill, sold out the IW, and promoted a feeding frenzy. And the only response we had to this was to find doctors on the opposite spectrum who'd look at these folks and rebut the phony med reports, and then we'd still wind up paying closer to the middle, and always, always, the doc's bills because that was the only reason these particular attorneys were even doing this, to split fees under the table with the docs.

Huge insurance fraud going on, and the WCAB mostly looked the other way and treated the obvious fraud claims as though they were legitimate, and forced settlements on insurers for claims that were better tried. It sucked for everyone (except the abusive docs who made billions, seriously billions, on these scams).

3. In the midst of this frenzy of corruption, genuinely injured workers got crushed in the mob. They'd wind up in the same bogus insurance mills, courtesy of their attorneys, that the fraudulent claimants were in. So, it was hard to figure out sometimes who was faking and who was just unfortunate and got caught up in the mill. The mills offered no real medical treatment to these real IWs, just lots of 'exams' and 'tests' and pretend 'physical therapy' that doesn't even deserve the term, provided by medical clerks with not physical therapist anywhere in sight.

From time to time I'd spot one of these genuinely IWs, set up a consult with a truly excellent treating doctor who was very patient-friendly, and pray the IW would see the difference and switch over and at least get proper medical treatment.

The mill docs gave them almost no treatment, just med-legal exams. In fact, it was very common for an IW to see the five separate docs briefly, have a report written about them based on whatever variables the word processing tech entered into the report writing program at the time (ghost writing med reports was common, and one tech testified that in psych reports, he was given no variable less than 'moderately disabled' to enter into the report - and that is pretty high disability in the old psych rating system, but I digress...). The report would outline all the horrible symptoms the IW had, then go on to say they needed a ton of treatment, none of which was offered or even asked for by the doc, and then three months later five permanent and stationary (P&S) reports would arrive, all saying that no further treatment was needed, but the permanent disability (PD) by the way is 80%. Imagine that. And the medical reports varied little from IW to IW - they all seemed to have the exact same symptoms, and the exact same disability, written with the exact same language - the only variable being the identifying data of the IW like name, employer, etc. Anyway, that's the system before the first big reform, the system of abuse that catapulted us into the 90s. And most adjusters with years and years of experience came in during that period.

4. Then the reform of 1989 (which took effect in 1990).

No more dueling docs they said. The primary treating physician is now King of the mountain. What was not anticipated (naively) was that many of the same insurance mills for multiple med-legal reports and no treatment, would turn right around and - voila! - become treatment mills.

And so about five orthopedists, with the help of an army of physician assistants, began treating tens of thousands of IWs, referred by their attorneys. And the treating doc had the presumption. The hope was that, while we insurance companies (ICs) were getting royally screwed, that at least a lot of treatment was going on. However, the very worst of the insurance treating mills were doing very little treatment at all, but they were billing a ton for it. And the treatment wars of the 90s began.

And IWs still were, for the most part, not getting what they deserved on either side, but at least more of the IWs had actual injuries (without capping and multiple med-legal exams to feed them, most of the worst of the applicant attorneys before reform left, were disbarred, or actually started practicing work comp law in a more real way than before.

And during all this time, there have always been good, honest, hard working app attorneys out there, and some who are obnoxious beyond measure but who work hard too, protecting IWs rights and benefits.)

And since you couldn't make the big money on multiple med-legal reports and testing anymore, suddenly everyone with a back twinge needed epidurals at the doctor's very own surgery center (no fee schedule for surgery centers at the time), and you'd wind up with a series of three epidurals - probably unnecessary to boot - for $45,000.00. Not bad money for the enterprising treatment mill doc. Lot's of unnecessary back surgeries, performed by hacks who crippled people, psych treatment for mildly anxious IWs which became ten years of 'talk' which culminated in people being afraid to leave their homes. Great psych treatment that.

And on and on....

And the worst thing was, IWs were getting hurt by doctors and clinic owners who couldn't care less. I had a man with a mild back strain who it turned out was unable to leave a wheelchair. Red flags, anyone? The treating doc just said, 'Huh. I don't know why he can't walk. But he's P&S now. Here's my bill.' Or an IW with a non-healing wound for a year and a half (!!) where the treating doctor again just said, 'Huh. I don't know. Here's my bill.' That one we rushed to a renowned specialist in non-healing wounds and he was just barely able to save that man's entire leg from being amputated. The applicant treatment mill doc? Not even mildly interested. The applicant attorney? Finally caught on when we raised the alarm and waved it frantically at him, but he was at first defending his favorite mill doc and not wanting to switch doctors. We had to point out what was really going on in stark black and white and looming amputation before the app attorney woke up and agreed to let the IW get the treatment needed to save his leg. Home exercise 'kits' that contained a $30 heating pad and a $10 pillow billed for $1200.00. Transportation companies, owned by the doctors and/or their relatives, charging $1000.00 for a 28 mile round trip in a regular car with no special services of any kind. This is the system we worked with from 1990 up to last year.

5. And finally we have the reforms over the last two years, the real overhaul of the system, where everyone is just trying to catch some breathing space to absorb it all, learn it all, keep up with the case law as it comes out almost weekly, and settle down some. Lots of questions, lots of growing pains, lots of missteps. The institutions are trying to adapt and keep up, and you guys (injured workers) are right smack in the middle of the massive changes. It's a wonder any of you can figure anything out right now, things are so unsettled.

6. Which leads us to, why washout Qualified Medical Examiners (QMEs)?

Well, with a history like this, how could there not be washout QMEs? Along with what we call whore QMEs (those are always the ones on the other side, whatever side you're on). Docs learned to write reports that pleased their particular patronage - applicant or IC.

And sometimes it's hard to know when they are doing it. Sometimes you catch them, when you send a really injured person to a doc and notice that the doc wrote the same 'no disability, no treatment' report he wrote on all the fake cases you sent to him. And then you know that this doc isn't telling the truth, he's telling you what he thinks you want to hear. And time, experience, and a good oral tradition among experienced adjusters helps flush these docs out. Of course, then they switch sides on you too - this year's IC washout is next year' applicant whore. Usually they switch like this to try to create 'credibility' in hopes of jumping off the consult merry-go-round and enter AMEville', where the air is supposed to be purer and you don't get blackballed by one side or the other for stating your honest opinion. At least this seems to be the thinking.

I always tried to use the most credible doctors I could discern, and then let them know, either in the cover letter or on the phone, that I really, really, wanted their honest medical opinion, regardless of what it turned out to be. I tried to make it clear that I would not knowingly reward canned reports or reports geared to 'make the adjuster happy'. I made it my goal, from day one as an adjuster, that I would sleep soundly with the claims decisions I made, and that I would not alter an IW's life due to the opinion of a doctor that was lying to me to get business. Finding those honest docs though, that is a job of work. There are a lot of them out there, but they are spooked, afraid to show their real face for fear of work drying up. Or they are so fed up they become unnecessarily antagonistic and make it difficult to deal with them even if you are rooting for them.

7. Finally, I was very lucky in my early career to work for managers who believed we were put here to deliver benefits, not deny benefits when they were due, managers who were honest and supported my claims decisions, never asking me to do the wrong thing, the dishonest thing, to delay and obfuscate and prevent real people with real injuries from getting their rightful benefits.

And I also got some very good advice from a particular manager, who noticed me upset one day that an IW outright lied to the WCJ about a conversation we had, on the advice of his attorney, in order to gain a penalty. Fortunately the judge, who was notoriously liberal and applicant friendly, could smell the lie too and said my testimony was the more credible of the two. But I had really tried to help that IW, to make his life easier, to be compassionate, and then he stood up and barefaced lied about something to get more money, and I was furious. I felt betrayed by someone I tried to help.

And this supervisor saw that, and he came up to me quietly and said, "Never let the bad actions of one IW determine how you're going to treat the next IW. Each one stands alone, and should be judged alone, as though they were the first one you ever dealt with. This guy cheated and lied. The guy whose file you're going to pick up in a minute, he's not this guy. He deserves a clean slate." That really struck me, and I've never forgotten it.

Each IW is a clean slate, not colored by whatever bad actions other IWs may do, or the sleaziness of their attorney (how many IWs really know if their attorney is sleazy or honest?), or by the dishonesty of the insurance mill docs he may have gotten shuttled to in the crowd of fake IWs out there. Each one deserves a clean slate to start off with. And that system has worked pretty well for me over the years.

So, that in a nutshell is the adjuster side of the birth and growth and depth of cynicism, and how the system has fostered it. It should never have gotten this way, but here we are now, and we have to deal with it. And that's why you sometimes get shunted around to QMEs who are not honest, and why we don't always know that about them.

Some lessons are learned hard all 'round, for everyone. Unfortunately, you guys (injured workers) are the ones who get hurt the most often.

And remember, just because the doc's in a white coat, and was arranged by your attorney, does not mean that doc gives two cents about you or your claim. That doc may just be saying whatever gets him the most billing on your case, and the most return referrals from your attorney. Sometimes it's blatant, sometimes it's subtle. But don't make the mistake of believing everything you hear from the doc on your side either. You don't want to be the next IW crippled by the spine surgery that should never have been attempted, or having all your teeth removed and replaced with implants because the nice dentist said it was the right thing to do for the one chipped tooth.

There are some very bad actors out there, and they're on the applicant side too. Don't surrender your medical decision-making to someone who may not be looking out for your best interests. Unfortunately, some of the very worst of these docs are virtual svengalis, convincing IWs that only they hold the key to their recovery.

ALWAYS get a second opinion before you let someone cut on you (or replace all your teeth) unless it's an emergency situation, where you might not have options.

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