Oops - Was That Your Spine?
Nov 12, 2020

Early versions of the spinal fusion operation go back a little over a century. Back in the day, the primary cause of severe spinal problems was tuberculosis which can attack the spine and cause deformity and disability. We've whipped tuberculosis long since with a combination of vaccination and antibiotics, but as any workers' compensation manager knows, we still have a variety of low back injuries to deal with and spinal fusion is still a treatment of last resort to deal with the chronic pain and other complications of certain back injuries.

Our friends at the Workers' Compensation Research Institute (WCRI) have recently published a study (free to WCRI members) which examines the relative rate of reoperations following spinal fusions covered under comp. The study, as befits the topic, is ferociously technical and we do not recommend it for bedside reading unless your insomnia is world-class, but the basic finding is pretty straightforward and, we think, of interest to any comp program manager. In brief, the readmission rate for comp related cases is almost twice the rate for comparable spinal fusion procedures not covered by comp. A readmission for repeat surgery is bad news for the patient and for the comp payer as well. It may indicate that the provider and/or the clinical setting were lacking. Also of note is the fact that readmission rates vary quite a bit from one clinical setting to another.

But, hey, the WCRI report simply lifts the lid on a whole stew of recent research into spinal surgeries. For example, WalMart recently did their own clinical research on the topic and their results can be summed up very succinctly: 50% of the employees who went to specialized hospitals for back surgery didn't really need it. This is further complicated by a recent report in the Spine Journal which may also be quickly summarized:

[63 y/o female with lumbar HNP and radiculopathy sent to 10 MRI Centers within 3 weeks]


-- mis-diagnosis rate of disc herniation -- 47.5%
-- mis-diagnosis rate of spinal stenosis -- 45.0%
-- mis-diagnosis rate of nerve root involvement -- 72.5%

The important point here is that mis-diagnosis of spinal issues is rife. Even if the procedure goes well with no readmission, WCRI's concern above, it may not have been necessary. So, fellow risk manager, how do we feel about a hazardous operation which was a complete success - except that it wasn't necessary in the first place? Should this be the dictionary example of mixed emotions?

How can you use this news? Well, one obvious takeaway is that medical quality makes a difference. As this Journal has pointed out many times, fee "discounts" can be incredibly expensive*. Does your carrier or TPA track medical quality closely? Do they steer injured employees to the best providers as far as the jurisdiction permits? A spinal fusion procedure, let alone a redo, is not a hangnail. Even when necessary and properly done, it can be devastating for the injured person with a lengthy recovery period.

You have to ask yourself: (1) why is the redo rate higher for comp, (2) is this trip even necessary, and (3) can I be certain that my people are getting the best, most appropriate care? Do your claims professionals help you ask these questions regularly? There's a lot more at stake here than the size of a medical bill. An improper or failed fusion can result in a lifetime of serious pain and disability. In fact, you might want to employ the "mother test" for spinal fusions. If the injured employee were your mother, how would you proceed?

*There's an old adage among classic car collectors that there is nothing more expensive than a great deal on a used Rolls-Royce. Add outdated provider contracting procedures to that list.

This is what a spinal fusion looks like. What could possibly go wrong?


The Good, The Bad, and HR Policy

Let's start with a statistic or two:


Through September, the FBI had conducted more background checks on would-be gun buyers - 28.82 million - than it ever has in an entire year. The previous annual record was 28.36 million, set in 2019. Additionally, 15.1 million weapons were sold in the U.S. in the first nine months of this year, which is more than the total number of guns sold in all of 2019, The New York Times reports.

Got that? Let it settle in for a moment. OK, why do you care? Consider this, from the same article in the Society for Human Resources Management (SHRM) blog: "So often weapons find their way into the brick-and-mortar workplace," says Ty Smith, founder of CommSafe AI, a San Diego-based technology company focused on conflict and violence prevention. "A whole lot of people have armed themselves over the past 10 months."

Believe it or not, after the War of 1812, political belligerency in America had settled down to a point that the following decade or so is referred to as the Era of Good Feelings. Our current period is more like the Era of Frayed Tempers. What does this mean for the intersection of HR policy and risk management? Quite a lot perhaps.

For example, what is your company's policy about employees with concealed weapons permits, whether on company premises or in company vehicles or on company business? Does this impinge on working from home when the employee's home office becomes an extension, for certain legal and insurance purposes, of the company? The SHRM article cites one company which allows employees with concealed carry permits to bring their weapons to work, provided that they give a copy of their permit to HR.

Over half of the states have what are called "guns in trunks" laws covering the placement of firearms inside an employee's car in a company parking lot. Have you and HR reconciled your policies and safety training with such laws in your states? Note that state and local laws regarding firearms in general are much like the laws regarding workers' comp - all over the place. Some states have very specific regs which apply to companies which ban firearms from their premises which specify exactly what you have to do to make the ban stick.

And what about your premises' liability coverages? What's covered - or not - if something does happen involving firearms? Have definitions and limits kept pace with the growth of firearms possession and concealed carry permits in the US? Promulgating policies may belong in HR but keeping coverages current and aligned with day to day reality falls squarely on risk management. The SHRM article has a good deal of relevant information and cogent examples. We strongly recommend it.


Quick Take 1:
Self-Driving Cars - They're Baaack

Call it the "Herzberg Effect." After a great deal of discussion and promising demonstration cases, autonomous vehicles (AV) faded from the popular press after an Uber AV killed pedestrian Elaine Herzberg in March, 2018. The folks trying to perfect the AV went back to their drawing boards and they've been relatively quiet ever since while they work out the remaining bugs in AV driving systems. Now they're coming back.

AVs loom large in our view because they offer the best hope of delivering a major reduction in fleet liability costs and collateral property losses and injuries. We have already wrung most of the savings possible from improved driver training, better vehicle designs in terms of protecting passengers from serious injuries, and driver assist technologies, such as automatic braking*. The most promising remaining improvement involves replacing distractible human drivers (cell phones, conversations, cups of coffee, etc.) with advanced systems which stay 100% focused on driving and traffic.

A recent article in ITL brings us up to date on new work on AVs. Designers and manufacturers have become much more rigorous about testing their AVs and they are starting to resurface with the sort of real world test data that could sell the public on the safety of letting a car drive them around with no one sitting behind the wheel. Couple this with new developments in telematics, in this case, AVs talking incessantly to other AVs to allow them to share the road safely, and you get a sense that AVs really are on the doorstep now.

Remember the early years of aviation?** Newspaper articles in the 20's were as often about crashes as about new feats in long distance flying. A guy named Lindbergh did a lot to turn that around. We probably will not have a "Lucky Lindy" event in AV development. The more likely scenario is that more and more risk managers - that's us, folks - will start to push for greater adoption of the best available AV technology for the straightforward purposes of reducing transportation risks, injuries, and costs. No heroics, just the consistent application of good sense. Isn't that what risk management is all about?

Go ahead - get distracted. The car is driving.

*It is only a slight exaggeration to point out that my own Ford Fusion has more radar antennae than a Nimitz-class aircraft carrier.

**OK, you're not that old, but you've read about early aviation, right?


Quick Take 2:
Let's Talk Mental

Once upon a time, "mental stress" was an easy claim to substantiate under California comp law. I had one client back in the 80's where retail banking employees routinely made stress claims based on the rigors of having to deal with sometimes pushy customers who didn't see why they had to show identification for certain transactions. "Well, I've been banking here for five years now!"

A recent Missouri claims case provides a good example of how stress claims are defined in most jurisdictions today. We call this case to your attention to help make a clear difference between true stress comp claims, often called "mental/mental," like the one profiled in the referenced article, and regular physical injury claims which may have a mental health component. As we have noted in previous issues of this illustrious rag, the kind of situational depression that may accompany significant physical injury needs to be identified and dealt with like any other complication.

Cognitive Behavioral Therapy (CBT) has made great strides in helping injured employees deal with the depression that commonly follows a painful injury, time off work, loss of income, and the life pattern disruptions those factors can cause. A very ordinary claim can have severe financial and emotional impacts which many of us are ill-equipped to deal with. We all know the proverbial wisdom about "don't buy a mental health claim." You see in the referenced article how the employer avoided buying into a mental condition which did not meet the definitions required under Missouri law.

On the other hand, an injured employee who is struggling to return to work after a serious physical injury is a different matter from the stressed engineer described who apparently did not have an underlying physical injury. A short, inexpensive course of CBT may be the key to a timely resolution. In short, don't give yourself a stress claim over an injured colleague who needs a little counseling to help him/her complete healing and get back to work.

We're mad as hell and we're not going to take it anymore!

Now that's real stress.


Say It Isn't So...

Wondering about D&O?

"The market [for D&O] was correcting itself, and on top of that came the current economic and financial crisis," said Heather Fong Quade, deputy head of product development, financial lines, at Allianz Global Corporate & Specialty. "The financial crisis mainly touched the banks, but this is touching everybody and every business, and it is just too early to understand its impact." (See here.) Isn't it nice to have company?


Words to Remember

The next issue of our Journal will be out the week after Thanksgiving, on the theory that even risk managers deserve a day off once in a while. Two thoughts for Turkey Day:

If you are really thankful, what do you do? You share.
(W. Clement Stone)

A brief grace before everyone pounces on the food.
Eat thy meat with joy, and drink thy wine with a merry heart, for this is the word of the Lord.


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