David D’s Wisdom at Home on the Range

By Bill Minick, JD, LLM bminick@partnersource.com 

I will never forget a long drive with my then 10-year-old son across the flattest, most arid, brown and crusty peanut fields of west Texas, headed to a dove hunting lodge for the weekend.  Like most of us, I came from generations of farmers and ranchers, and the comforts of a fully-staffed, mini-resort are the closest we want to come to returning to the agricultural life.  But my son, staring wistfully out of the truck window that day at the passing peanut fields said, “Dad, I belong out here.”

Somehow, in a most urban setting, in the middle of Dallas, my family has raised a rancher – with virtually no experience, whatsoever, on a ranch.  He’s been the epitome of “Big Hat, No Cattle”.  Until now.  

At 17 years old, he’s working hard this summer as a ranch hand in East Texas, cutting hay, rounding up cattle, doing forestry work, and building a barn that will hold 1,000 bales of hay.  Like so many other occupations, on-the-job accidents can and do happen, quickly and unexpectedly, in such an environment.

Yesterday, my big boy called to say he suffered a cut when a “purlin” – a long metal part of the framing for the barn they are building – fell and raked across his left wrist.  I pray daily for his safety on this well-run and maintained ranch and am grateful that it’s only a flesh wound. 

A deeper cut on the wrist could have been a real doozy – requiring substantial medical expense, time away from work and even permanent impairment.  

As this occupational injury hits “close to home”, I’m reminded of workers’ comp industry legend and my good friend, David Depaolo.  While his favorite past times included the laser-focused pursuit of another personal best record on a bicycle, motorcycle or surfboard, his professional mission alternated between praising the workers’ comp industry for the good it does for millions of injured workers every year…and sternly needling keepers of the workers’ comp status quo toward greater self-examination and true innovation.  In an October 19, 2015 post (“Opt Out and Propublica”), David said he believed that “ANY work injury protection plan or system MUST be an employee benefit”, and like many industry thought leaders, expressed concerns about how workers’ compensation “laws have put a tourniquet on both business and labor.”  

Understandably, David’s feelings about a competitive alternative to workers’ comp similarly alternated between praise and a march to the guillotine.  In that same post he notes that, “This is America, a capitalistic economy where, in general, competition fosters better everything for everyone”.  And David found “a lot of appeal to the concept of the opt-out movement”.  Unlike the bombastic opposition we’ve heard from many over the past two years, David encouraged thoughtful, respectful, and productive dialogue between industry executives and thought leaders regarding competitive alternatives to traditional workers’ comp – for example, going “head to head” on the merits of challenging the status quo and delivering better benefits and outcomes for all injured workers.

“Nearly everyone that I have come across in the past few years criticizes workers' compensation as too complex, and too costly for too little - i.e. not delivering the value that we expect. So opt-out should provide the remedy.

Should...” But hasn’t yet.

In a post on May 5, 2015 (“Marketing Value”), David said, “I waffle on whether opt-out is good or bad….Maybe it is, maybe it isn't. I don't have the data and the facts to either substantiate that claim or challenge it.”  Such direct and objective comments have led to the release of more information on Texas and Oklahoma injury benefit plan results, such as this 2016 Texas actuarial analysis validated by a credible, former NCCI actuary; the first Oklahoma Option Performance Report; and a WorkCompCentral report demonstrating how most workers covered by injury benefit plans receive Better Disability Benefits.

I have been comforted this summer, knowing my son’s ranch employer provides workers’ compensation insurance coverage with a stable company that has a good reputation for fair handling of injury claims.  I would be at least equally as comfortable (and, perhaps, more so) if my son was covered by a quality injury benefit plan that has broader access to the best medical providers in Texas.  But what if his employer had rejected workers’ comp coverage and did not have a “good” plan (or worse, had no injury benefit coverage at all, as allowed under Texas law)?  What if my son was catastrophically gored by a bull or injured in a range fire and his employer went bankrupt as the result, with no insurance company or guarantee fund available to pay needed medical care and other expenses or damages?

Among the long list of highly-credible employers, insurers and service providers that we all know support competitive alternatives to traditional workers’ comp, I’m not aware of ANY who want to spend one dollar or one ounce of political capital to protect such an irresponsible employer who truly “opts out”, with no definitely determinable commitment to a high level of injury benefits and no insurance to fund a significant loss.

So, knowing full well this is a topic that is not going to simply go away, opponents of transformational change can continue to dodge relevant statutes, regulations, court opinions, reports and studies (not to mention political winds) that support development of competitive alternatives and undergird three decades of success in the Texas market and two strong years of performance in Oklahoma.  Or we can follow David D’s lead and put everything on the table for a respectful, thoughtful dialogue about mandated benefits, financial security, injury reporting and medical practices that drive the best outcomes for injured workers and employers.  Perhaps we can even discuss [gasp!] removal of the exclusive remedy rule, that much-revered, unchangeable (?) and inviolable (?) pillar of the Grand Bargain. 

Given the widespread acknowledgement that America’s workers’ compensation system performance should be significantly improved, let’s spend some more time in future WorkCompCentral blog posts reflecting on other things David Depaolo had to say about competition, innovation and caring for injured workers – a subject that hit close to home this week.

Bill Minick is the leading authority on delivery of better medical outcomes to injured workers and economic development through innovative alternatives to traditional workers’ compensation systems. He is active in many civic, trade, and charitable organizations, has multiple law and insurance licenses, and holds degrees from Abilene Christian University, Pepperdine University School of Law and Southern Methodist University School of Law.