In a memorable Dilbert cartoon (April 30, 1995), Dilbert is introduced to a new vice president of his company. She asks about his day and he explains he was just emailing a coworker who is near a window to see if it is raining.

Judge David Langham

He explains that "If it is raining, I will fashion a raincoat from a large garbage bag." The new VP asks. "Are you planning to go out at lunch?" and Dilbert replies, "Only if it rains."

This seems circular logic at best. 

In 2016, I posted Cost-Shifting Evolves Into Case-Shifting. There, two studies by the Workers Compensation Research Institute are discussed. The focus is on how workers' compensation fee schedules may incentivize physicians. There is suggestion that doctors might formulate decisions based upon which payer is perceived as more generous, rather than upon an objective assessment of medical indicators and evidence. 

In 2015, I posted Cost-Shifting the ACA, and Workers' Compensation. That discussed a WCRI report that approached the concepts of group health insurance care limitations. The capitation of care in those settings was similarly seen as a potential driving force influencing the decisions or opinions of health care providers. 

Both of those analyses are focused on the decisions of the physician. They noted that most of us are likely to make decisions that are in our personal economic self-interest. That truth is hard for us to accept, as we all like to feel we are more altruistic. However, we do tend to make decisions we perceive will benefit us. When we make our personal economic choices, our goal is usually to benefit ourselves by minimizing price while maximizing value. 

In February 2019, WorkCompCentral reported "WCRI: High Group Health Deductibles Linked to Comp Case-Shifting." At the outset, the headline seemed to reiterate the prior studies, but upon examination, this is a different motivation than discussed in the two previous studies. Those were focused on the decision-making of doctors in the diagnosis setting. This latest study focused on the employee making a decision regarding reporting an injury in the first instance. 

Researchers concluded that patients are incentivized to "shifting from group health" as their share of the cost (deductible) renders them "increasingly responsible." WCRI reportedly warns that this "could have a substantial cost impact." A mere "1% shift to workers' comp" as regards soft tissue injuries might add as much as "$35 million to workers’ comp costs in a state such as Pennsylvania, or more than $80 million in a state such as California." 

In this study, the researchers did not have any knowledge regarding work-relatedness. Thus, there is no empirical foundation from which to conclude any particular patient's injury was or was not actually work-related. The study examined more than 100,000 patients. It found that: 

"Injured workers who had $550 remaining on their deductible at the time of an injury were about 1.4 percentage points more likely to file a workers’ compensation claim, compared to workers with no deductible at the time of injury." 

Thus, the study indicates some prevalence for reporting when the alternative group health path represents an immediate personal financial cost.

The tendency was more pervasive "for injured workers with soft-tissue conditions, such as pain in the back, knee or shoulder." By comparison, more apparent causation injuries, such as those caused by discreet trauma, exhibited less potential for this shifting impact, which was "not statistically significant." That conclusion is notably consistent with the other two WCRI studies mentioned above. 

Interestingly, the WCRI report notes that the perceived shift to workers' compensation, or at least the "increase in workers' compensation claims," was more prevalent "in states where employees could choose their initial provider." The researchers' conjecture that making that choice between group health and workers' compensation is more likely to lead to shifting if the decision does not impact the patient's choice of physician.

Choice of physician is a subject often raised in discussion of workers' compensation. Anytime conversation turns to reform in Florida, the topic of physician choice is a likely topic. There are those who criticize employer choice, alleging that it makes physicians "loyal" to employers and less likely to diagnose a condition as work-related.

It is rare that such critics will acknowledge that a patient-choice paradigm might create a similar, but opposite, incentive or loyalty as regards patients. If there is physician bias, through the incentives identified by WCRI or otherwise, perhaps the workers' compensation community can rectify that perceived bias irrespective of who makes the physician choice. 

The study notes that group health deductibles are increasing. It notes that the "average deductible for health plans with a deductible grew, from $616 in 2007 to $1,505 in 2017." There are some who contend that is a consequence of national health care policy, while others insist these increases would have occurred without the implementation of Obamacare.

Furthermore, the volume of "group health plans had annual deductibles of more than $1,000 increased, from 12% in 2007 to 51% in 2017." There is significant focus on the cost of American medical care. Whatever the cause, the increased impact on consumers appears clear.

The foundational truth is that deciding whether an injury is or is not work-related should be about facts — like Dilbert deciding on whether to go out at lunch should be about whether he wants to go out or is without other recourse to obtain food, etc.

Deciding whether to go out based on that allowing him to employ his raincoat or to get wet is ludicrous and thus hilarious. Perhaps, his intent is to go out only if he can thereby test his handy rain coat adaptation. But whether something is or is not work-related should depend upon the science of medicine.

While it may be naive to conclude that human emotion can be wholly removed from such decisions, it is nonetheless a goal that is worthy of consideration and discussion. Perhaps it would appropriately be part of a larger discussion of reforming the health care delivery system.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.