Florida Judge David Langham wrote last week about a very important idea discussed in Dallas during the first meeting of the 2016 Workers' Compensation Summit. It was, in my mind, one of the biggest ideas from our two-day gathering, and I fully intended to write about it earlier than now. However, life gets in the way, and Hizzoner's missive was the reminder (re: kick in the pants) I needed to get back to this very important point.
The conversation at the Summit was talking about treatment delayed, and the damage that can be done while a claim is investigated or contested. This is a huge issue for workers' compensation, as treatment delayed can eventually mean proper care denied. Our industry makes some people in these situations wait for interminable periods, and often their condition degrades far beyond a level that will accommodate a full recovery. The situation is exacerbated for many as general health insurance will not pay for treatment if a work related injury is alleged, claimed or even suspected.
Langham's article does a tremendous job of describing the pitfalls these workers face. It is a catch 22 situation that results in much needless suffering in this country. If, after sometimes years of litigation and delay, the injured worker prevails and benefits are ordered, the workers' comp carrier is going to have to provide the sought after medical treatment. If the worker fails and the claim is rejected, health insurance is going to have to pick up the tab. Ultimately the worker still covered by general health is going to get treatment, but the matter of “when” can cause widespread suffering, and even permanent impairment that might not have otherwise been. The situation is even worse for those who lose their health coverage due to work loss during the process.
(I am assuming for this discussion that health coverage exists, since Obamacare fixed our health issues and everyone having insurance is now the law of the land – we are, after all, a nation of law abiding peoples)
It is ultimately one of the most easily solvable dilemmas we face. At the Summit that easy solution came from Paul Sighinolfi, Chairman of the Maine Workers' Compensation Board. He explained to the group that Maine had largely addressed the issue years ago with a simple legislative effort. In his state, Maine statute 222 simply requires that persons covered by general health or disability policies cannot be denied treatment or benefits simply because they have filed a workers' compensation claim. It reads:
“Payment of benefits due a person under an insured disability plan or insured medical payments plan may not be delayed or refused because that person has filed a workers’ compensation claim based on the same personal injury or disease.”
You can read the full statute here. In this scenario, one way or another, an insurance company is going to provide timely care. The folks in subrogation can figure it all out when the dust settles.
Now, some of you might be asking, “But what of the cost and complexity of that subrogation?” I would respond by proffering this query; What is the cost of all that treatment delayed? Does a shoulder injury forced to wait six months for surgery cost more to treat after that delay? Do we as an industry spend more to treat patients who have successfully fought their battle for benefits? Do the claim costs increase due to the psychological influence of such a postponement? I suspect the answer would be a resounding “yes” to the affirmative, and it is possible, nay probable, that timely care by any means ultimately will cost less than the routine world of subrogation over an injury where a workplace connection is established.
Now doesn't that just make too much sense?
General health insurers could be given access to judges within the workers' comp system, thereby getting them out of civil court. They could pursue reimbursement for treatment expenses incurred for suspected work related injuries even for non-lost time situations, where a claim would have been less likely to be filed, given medical coverage was available. Doctors and their patients would experience less system friction, since the field of battle would have been shifted away from their purview. And for workers' comp carriers, there could actually be some savings involved, since in most states negotiated provider discounts are greater for health insurers than for workers' comp. Add to that the fact that prompt treatment could mean less indemnity exposure, and this looks like a pretty good deal, indeed.
And the injured worker wins because we have not made their prompt medical care a secondary priority while we argue over the finances.
Insurance companies excel at managing risk, and at times the denial based on the existence of other coverages, even for situations outside of workers' comp, represents plain stupidity. My neighbor experienced two car accidents within one month several years ago. Neither was her fault; in both situations she was hit by others. Treatment for her injuries was denied by the carrier for the at fault party on the first accident, based on the allegation she was injured in the second accident. The carrier from the second accident denied payment, citing the first accident as the likely cause. I am sure you can see where this is going; the carrier for both accidents was the same company. They had to hire a lawyer and go to court to straighten the whole thing out. A similar situation happened recently to one of my associates here in the office. After getting married she left our group health plan and joined her husband's plan. Shortly after she required medical care, and payment was denied as a “pre-existing condition” that was the responsibility of her previous insurer. The previous plan would not cover it, since she was no longer their insured. Again, these plans were both with the same carrier. It was a senseless delay based on idiotic policy rather than common sense.
In workers' comp, where the patient has even less control over their situation, no one wants to be left hanging while others argue about who is picking up the tab. In a setting where someone is going to eventually pay, it makes sense to provide the care now and work out the payment particulars later. For a reasonable and common sense solution to one of our biggest pain points, we need to look no further than our most northeastern state.
When it comes to treatment delayed over financial responsibility, that pain in Maine goes plainly down the drain.