What is the point?
By Judge David Langham
What is the point? What is the purpose of workers’ compensation? I was confounded by that question recently in an exchange of emails with a judge from another jurisdiction. The foundation arises from this judge’s perceptions of employer-selected medical care; there is some apparent tendency to find that concept difficult to comprehend. In Florida, for the most part, medical care providers in workers’ compensation are selected by the employer (or carrier).
The judge with whom I was corresponding works in a state in which the insurance companies each have a “medical provider network” or “MPN.” In this manner, the carrier controls the population of “available” physicians, but the injured worker may choose from among those in the MPN (Florida unsuccessfully tried something similar called “managed care” in the 1990s). A third alternative also exists in some jurisdictions where the injured worker has virtually unfettered choice of treating physicians (employee choice).
This is a complex topic. Employer/Carriers like the process in which they select the treating doctor, and the injured workers (and their advocates) like the opposite. The MPN process is a compromise between these two, and other compromise processes exist. For example, some jurisdictions have required that a “list” of some number (3 or 5) of specific providers is offered from which the worker may select one (yes, Virginia, Florida has tried that route also). Sometimes I marvel at all the approaches I have seen attempted, and as yet none is perfect.
In short, there is great intellectual and emotional disagreement in the world of workers’ compensation as to whether employee or employer choice is best for workers’ compensation; There is also disagreement as to what form that choice should take and whether “checks and balances” should be included. But, the point of workers’ compensation is patently clear – to return the injured worker to function and health, to allow them to return to work, and to do so at a reasonable cost to the employer. In Florida, we like that intent so much that they put it in our statute, section 440.015 (the first section of our law, the “preamble” if you will).
Of course optimum recovery and return-to-work is not always the ultimate outcome, but that should be our overarching goal even if we sometimes fail. Let’s get people effective remedial treatment, effective palliative care, and let’s make the effort to get them back to the function and activity they enjoyed before the injury. Let’s ameliorate damage and strive for recovery (return of function).
The recent inquiry I got from this judge was focused on an apparent perception of employer choice being “bad.” The perception being that an injured worker might prefer to have no workers’ compensation medical care rather than accept the care provided (employer choice). A perception that a worker or her/his attorney prefer a physician “directed by the personal injury attorney.” There is likely room here to ask what qualifications an attorney (on either side of a dispute) has in directing a physician; as likely, the same question might be made about a claims adjuster or risk manager. Do we want anyone “directing” the physician? That discussion is for another day, but note there are many judges who lament being called upon to make medical decisions generally.
In my recent exchange, the judge posited a hypothetical in which the worker is injured in a vehicle accident while at work. Thus, there would the entitlement to workers’ compensation and the potential to collect damages from the other driver(s), which in workers’ compensation is often referred to as a “third party claim.” The judge questioned whether such a worker might effectively refuse workers’ compensation medical care.
This judge wondered aloud if “refusal” of treatment from the proffered provider in an “employer choice” state, and election instead to treat with a physician “directed by the personal injury attorney,” might mean that the injured worker must “abandon his or her workers' compensation case to preserve the personal injury case.” And that, as you might guess, is where I thought about the “what is the point?” question with which this post led. I struggle to understand how” preserving the personal injury case” can compete for primacy with the real goals of workers’ compensation.
The assumption of this inquiring judge appears to be that accepting care from an employer-selected physician would result in (1) no care, (2) poor care, (3) premature release to return to work, (4) a low impairment rating or activity restrictions. The assumption appears to be that treating with an employer-selected physician would somehow damage (as oppose to “preserve”) that third-party “personal injury case.” The inquiring judge suggested that “the employer/carrier directed treatment may lead to evidence that could be used against the injured worker in the personal injury case.”
I fired back a quick reply, suggesting that treatment with the employer-selected doctor might instead result in alleviation of symptoms, improved function and return to employment. I suggested that such an outcome would in fact be positive. Positive for the person that suffered the injury. What is the point of workers’ compensation? To provide treatment, to alleviate symptoms, to restore function and to facilitate return to work, at a reasonable cost to the employer. The point of the workers’ compensation system, as far as I can tell, is not the preservation or protection of some “personal injury case.” It is about the protection, preservation, and remediation of a person, the injured person, a human being.
As I engaged in this email exchange, I could hear David DePaolo reverberating in the back of my head. The David I knew would say that workers’ compensation should be true to its goals of treatment, remediation, and rehabilitation. He would say that the acid test of selecting a physician(s) (whoever is selecting) should be based on how effective the provider is at both the mechanics of treating the physical injuries and the psychology of “cheerleading” and “commiserating” with the person who is being treated (bedside manner).
I am troubled that one might lose sight of this goal and instead focus on how “to preserve the personal injury case.” The best outcome for the patient is quality care, compassionate treatment, a supportive care team, and the most complete recovery practical. The best outcome, full recovery with no residual symptoms, is what every injured person wants. Accidents and illness are an interruption of life, they can be painful, they can be costly, and the best we can hope for is to eliminate both the immediate problem and the residual effects. When elimination is not possible, then we should hope for the maximum amelioration of both problem and effects.
If complete recovery is possible, that should be our goal. And if that fails “to preserve the personal injury case,” then so be it. If complete recovery is not possible, then this hypothetical worker would hopefully recover monetarily for her/his resulting damages from the “third party.” But that recovery of damages is not our goal in workers’ compensation. What is the point? The point is to efficiently deliver medically necessary care, to rehabilitate, to ameliorate, and to return the worker to function. Function is good. I am troubled that some may be missing the recovery “tree” for the “forest” that is workers’ compensation.
I am confident that many others recognize the importance of quality care. It benefits the injured worker and the employer that wants her/him back at work. Sometimes the focus might be distracted, a “personal injury case” might apparently be put before a person. But, whether employee choice, employer choice, or some compromise in between, workers’ compensation’s focus has to be on quality care and return of function. What is best for the person is good treatment and optimal recovery. Let’s keep our collective eye on that ball; let’s make that the focus of our analysis of how workers’ compensation can be better. Let’s remember, from all perspectives involved, it is not a “case,” it is not a “claim,” it is a person. That’s the point.