While most in the workers' comp space predicted the act would have little direct impact in the immediate future, they were more than willing to speculate on the potential ramifications down the road. Some questioned the very relevancy of the workers' comp system in the wake of the ruling.
The excerpts of online postings below offer a variety of views from bloggers and attorneys who will speak at the upcoming National Workers' Compensation and Disability ConferenceŽ & Expo, produced by LRP Publications.
The decision. By a vote of 5-4, the U.S. Supreme Court rendered a 90-page opinion in National Federation of Business vs. Sebelius. The court said Congress has no authority under the Commerce Clause of the U.S. Constitution to require individuals to own a minimum level of insurance, but it does have the authority to use its taxation authority to impose a coverage mandate. Beginning in 2014, most individuals must own a minimum level of health insurance or pay a penalty of up to $2,250 per family.
The court, however, did say states would be able to opt out of the expansion of the Medicaid insurance program. The court said Congress cannot penalize states that choose to not participate in that new program by taking away their existing Medicaid funding.
David Dapaola. "My immediate thought was that we are one more step closer to declaring workers' compensation in its present form redundant, unnecessary, illogical and administratively, financially and socially irrelevant," said David Dapaola, founder/president/CEO of WorkCompCentral.com.
Since most workers will now be covered for medical care, "what is the logic behind maintaining a medical component in workers' compensation?" he asked. "Why does there have to be any 'cost shifting' at all?"
In response to the argument that general health care and industrial medicine are different because of the indemnity component in workers' comp -- requiring physicians to take into account return-to-work issues and potential disability -- Dapaolo says those arguments "assume a physician who is treating an injured worker must know all about impairment and disability. That of course is nonsense."
Qualified medical evaluators or independent medical evaluators are trained to evaluate impairments. "Treating physicians treat. Evaluating physicians evaluate," he said.
"If all of the work force has medical coverage then why go through machinations and discriminating maneuvers to determine through 'causation' standards as to whether a worker should get treated via the workers' compensation system or the general health system?" he asked. "Doing so just defies logic.
"I can certainly support such activity when it comes to the indemnity component -- put money on the table and people inherently try to find a way to put some of that in their own pockets. But doing so for medical treatment lacks human compassion and social responsibility."
"This is a sad day for employers nationwide with 50 or more employees," said Jennifer Jordan, general counsel for MEDVAL LLC, and editor-in-chief of The Complete Guide to Medicare Secondary Payer Compliance, a LexisNexis publication. "The federal government has officially taxed us into absorbing the burden of the nation's health crisis.
"In addition to carrying workers' compensation coverage just in case employees get hurt at work, employers are now mandatorily required to provide health care for their employees' general well being, extend coverage to their children longer, absorb pre-existing conditions, and nearly double the Medicare contribution so those employees will have medical benefits when they become old or disabled," she said. "Short of an unemployment fund assessment to provide medical benefits in the event that you fire someone, there aren't many scenarios left for an employer to provide medical benefits.
"Now, from the workers' compensation perspective, these same employers could potentially benefit from a reduction of claims that might otherwise have not originated at work," she explained. "Many workers' comp claims I see are exacerbations of preexisting conditions that were generally untreated prior to the work incident. That is not to say that these individuals did not have insurance available, but given the national statistics about the number of people who are without, it can be assumed some portion of those claimants were uninsured. Had prior medical care been available and obtained, can it be assumed that the claimant would not have dislocated that disc or joint or simply heard that final pop while at work? Only time will tell.
"For the most part, I believe work comp will be business as usual. Even in situations like mentioned above, workers' comp is still the cheaper treatment alternative because there are no out of pocket expenses and you would get paid for your time off of work while obtaining treatment, not to mention be reimbursed for mileage.
"I think the only area that I expect 'Obamacare' to make a difference is in settlements. Even in situations involving Medicare Set-Asides that fully fund a lifetime of anticipated care, claimants and their attorneys are very reluctant to give up medical benefits out of fear of the unknown. If claimants could be certain that they could obtain related medical care post-settlement because there is insurance available that cannot exclude preexisting conditions, the reluctance could disappear. With any hope, this may also lead to more realistic projections of future treatment as there is no compulsion to prepare for the worst case scenario in every situation, making settlements more attractive from the insurers' side as well."
Joe Paduda. "Overall, this is good news," said Joe Paduda, principal of Health Strategy Associates and author of the ManagedCareMatters blog. He believes the likely increase in the number of insured Americans will have several positive implications for the workers' comp system.
"When injured workers have coverage, there is no need for workers' comp to pay for non-occupational conditions for injured claimants," he says. "There will be somewhere around 24 - 28 million more Americans with health insurance; thus there will be a lot less need for hospitals and other providers to cost shift to work comp to make up for revenues lost due to treating the uninsured." He also points out that people with health insurance are generally healthier than those without it, and "healthier claimants heal faster and don't need as much treatment."
Another on the pro side for Paduda is what he calls more science; "more science and less art in the practice of medicine as comparative effectiveness research gains traction," he said, "good news indeed for comp payers saddled with back surgeries and H-Wave devices."
Paduda also cites several possible negative consequences such as a potential increase in claims frequency.
"The data indicate those workers with health insurance are more likely to file comp claims than those without, but that appears to be a statistical relationship and not a causal one," he said. "Employers who provide insurance have better employee relationships, which appears to make employees less afraid to file workers' comp claims."
Access to physicians could become problematic if primary care providers and specialists are deluged with patients seeking medical treatment they had previously avoided due to the expense. "Payers would be well advised to develop strategies to strengthen relationships with primary care," Paduda said.
Finally, Paduda said big managed care companies may dedicate less interest and fewer resources to workers' comp. "Make no mistake, this is an event for which the big and small health plans were woefully unprepared," he said. "Many have been scrambling to adapt, investing in technology, getting bigger via acquisition, and strengthening relationships with providers."
Robert G. Rassp. "I am relieved that the Supreme Court upheld the Affordable Care Act and hope the public will realize 'Obamacare' is in a positive light and is in everyone's best interest," said Robert G. Rassp, LexisNexis author of Lawyer's Guide to the AMA Guides and California Workers' Compensation; and chairman of the board of directors for Friends Research Institute.
"I am hopeful this is a first step to a single payer system that incorporates 24-hour care so we do not need a separate medical system for work injuries," Rassp said. "I believe our workers' comp system would be better off with medical treatment being seamless with preservation of some kind of medical-legal system that evaluates permanent disability separate and apart from treatment. Of course, the Employee Retirement Income Security Act would have to be revised by our divided Congress if we ever head in the direction of 24-hour care."
Thomas A. Robinson. "I tend to think the Supreme Court's ruling, while obviously important to the nation as a whole, is essentially neutral when it comes to the workers' compensation system," said Thomas A. Robinson, LexisNexis author, and executive committee member of Larson's National Workers' Compensation Advisory Board.
"On the one hand, a full implementation of the Affordable Care Act that increases the number of insured Americans over the long haul would be positive for the comp world: the result may lessen the incentive for the uninsured worker to associate the sting and discomfort in his or her lower back to moving the 45-pound box of merchandise at work instead of picking up the worker's six-year-old child at home," Robinson said. "On the other hand, if the medical care delivery system is flooded with newly insureds seeking immediate care, the wait for routine medical care in connection with work-related injuries may be significantly increased. While Chief Justice Roberts' ruling is now in, the 'jury' is still out with regard to the full effects on the comp system."
Peter Rousmaniere. "The Affordable Care Act's implementation going forward will be noisy, dense and energy sapping among healthcare providers," opined Peter Rousmaniere, a workers' comp columnist for Risk & InsuranceŽ Magazine, consultant, longtime workers' comp veteran, and author of www.workingimmigrants.com. "Providers who are accustomed to thinking of workers' comp as a profitable side business will on balance be more insistent on keeping high returns from treating injured workers.
"Supply will be more problematic," he said. "However, the claims payer which focuses on nurturing good relations with a relatively small number of providers should not experience any greater difficulties except in geographic regions where supply already is thin."
Bob Wilson. "The industry has had many months to debate the impact of Health Care Reform on workers' compensation. To that end the Supreme Court decision is a 'non-event' as it leaves what is legislated to be the law of the land in place," explained Robert Wilson, president and CEO of WorkersCompensation.com. "The focus shifts forward on two potential paths; one is the possibility of a Republican win and eventual repeal, the other, an implementation of the Affordable Care Act."
Wilson does not foresee major changes to the workers' comp system from the plan at least over the next decade. "Through the entire legislative process the government was looking for specific paths to which they could avoid the assumption of medical obligations, and I believe comp is clearly one of those entities. Because of this I see early peripheral struggles over comorbidity issues, and the potential for the two systems attempting to shift costs to one another -- there will be initial confusion over certain areas of accountability."
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August 13, 2012
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