Kathy Young/AP Photo
States want to move forward on resuming surgeries, for economic reasons, and may see workers’ comp as an opportunity to do so.
On December 12, 2018, Jesse Vogt of Greeley, Colorado, was working at a water treatment instrumentation plant when a machine exploded. He sustained third-degree burns to over half his face and his hands. The scar tissue had to mature for a year before doctors could mitigate it, and they prescribed a treatment of between six and ten laser surgeries throughout 2020.
The first surgery was performed in February, and Vogt came through it well. Then the coronavirus outbreak hit. All his future surgeries and appointments with his general practitioner were suspended indefinitely.
But in early May, Vogt heard from the GP’s receptionist. “Her tone and the way she described it made it sound like the workers’ comp company said, ‘You need to get this going,’” Vogt told me. By the following week, he was sitting in his doctor’s office, wondering why he was called back so quickly. The doctor told him it was not entirely clear why he was there either, and that even this office interaction was “unnecessarily risky” during the pandemic, to say nothing of laser surgeries that turn his face into an exposed gaping wound. Vogt rescheduled his next appointment as a telehealth visit.
The pressure on Vogt to resume his treatments did not appear to come from the GP’s office. It didn’t appear to be coming from the hospital, whose burn center clinic hasn’t even started scheduling patients yet. Vogt and his health providers made it very clear that the workers’ compensation firm was pressuring him to get back onto the operating table.
The system has mutated into one whose main function is to save employers money, often by pushing workers back to employment as quickly as possible.
It’s hard to explain the reason why. It’s true that health care providers have seen revenues for elective surgeries collapse, costing the industry 1.4 million jobs since the crisis began. Providers certainly have incentives to reopen for regular medical care. But insurance companies are the payers; why would they want to get expensive surgeries restarted?
The answer could lie in the often confusing and complex workers’ compensation system, whose health coverage is often inferior to that of other health plans. The system has mutated into one whose main function is to save employers money, often by pushing workers back to employment as quickly as possible.
Claimants are largely obliged to follow the dictates of their workers’ comp providers if they want to maintain benefits, free medical treatment, and (in some cases) the continuation of their jobs. A number of factors, including timelines for settling cases, can influence workers’ comp insurers to push those claimants forward on treatment. That makes them guinea pigs for the final part of the national reopening experiment: bringing non-coronavirus patients into locations that are key vectors for the spread of the disease.
“I’m imagining a judge going through this,” said Michael Duff, a workers’ comp expert and professor at the University of Wyoming. “‘You’re telling people they have to go to the hospital in the midst of COVID-19?’”
Vogt told me his workers’ comp insurance company is Sedgwick, though they are technically a third-party administrator that manages claims on behalf of employers. They have “really cornered the market on workers’ comp in Colorado,” said Duff.
In response to questions from the Prospect, Andrea Buhl, a managing director of clinical operations for Sedgwick, said via email that the company’s “first priority is always the health and well-being of the injured employees.” She added, “We understand that many factors need to be considered in order to achieve a safe and successful surgical procedure at this time, and we are sure to weigh each of them carefully before coming to a recommended decision.”
Some states have begun to reopen surgical centers. Ohio reopened on May 1, and New Jersey plans to at the end of the month. Some elective surgeries, like for cancer or organ transplant, really need to happen in a timely fashion. But a good number are at the discretion of the patient, and if the public feels uneasy grabbing a burger at a local restaurant, exposing themselves to surgery at a hospital that may have treated COVID-19 patients will be a far heavier lift.
But to maintain claims, workers’ comp claimants may have to honor the wishes of insurers and doctors. Jesse Vogt’s case is instructive.
The accident forced Vogt onto “restricted duty,” because the plant he works at involves plastic injection molding, and dust and other chemicals are in the atmosphere at all times. “I’m not allowed to resume my regular duties but can do work,” he said. During the treatment process, some workers are eligible for partial disability payments if the injury restricts them from carrying out their job. Other claimants who might be unable to work at all can get wages paid out completely. And workers’ comp picks up the medical costs. A variety of these benefits are available in Colorado.
The goal is to reach “maximum medical improvement” (MMI), the point at which doctors determine the patient is as healed as they will be from the injury. Only with this determination can an assessment on returning to work be made, and a settlement, if any, fashioned.
Some states set a statutory two-year timeline for determining MMI. In Jesse Vogt’s case, he had to wait a year to heal before the surgical regimen, which would proceed with one procedure a month for up to ten months. That takes him right to the two-year limit. “It’s not unusual that things heat up as we get close to that,” said Duff.
Even in states without such statutes, extending the timeline before MMI keeps workers’ comp payments flowing for partial or full disability, as well as medical payments. Colorado specifically keeps medical care going until MMI is completed. This does give insurers an incentive to complete the timeline promptly, to limit payouts and reach a conclusion.
“It becomes a complicated process, for the worker it can feel arbitrary,” said Duff. “They go through the insurance company doctor or the employer’s doctor, and they come up with a number.” That “permanent impairment” number is linked to the final payout. But getting that number is critical to the employer and the workers’ comp firm.
Pushing to reach MMI could explain why workers’ comp insurers would want to rapidly resume treatment during the pandemic. Technically, a patient could refuse to undergo surgery, but they would be at risk of losing benefits, pending judicial review and possible reinstatement. But a worker’s job could be threatened as well.
States also want to move forward on resuming surgeries, for economic reasons, and may see workers’ comp as an opportunity to do so. In Texas, where the ban on elective surgery has been lifted, the state workers’ comp commissioner has recommended that insurers extend preauthorizations that were in place before the pandemic.
Another reason could be collusion with hospitals. Extreme consolidation of hospital networks has squeezed workers’ comp payers considerably, by raising the cost of medical treatment. With hospital providers in financial crisis—the American Hospital Association claims that the industry is losing $50 billion a month from lack of elective surgeries—it’s reasonable to suggest that the system would turn to the only patients who are compelled to resume surgeries, those under workers’ comp, perhaps by offering discounts to insurers just to get some revenue in the door.
“If I was going to speculate about improper motives, I would be inclined to lean in that direction,” said Duff. “Hospitals are paid less under workers’ comp than they would be under a non-work-related insurance system. But when nothing’s coming in the door, something’s better than nothing.”
Extreme consolidation of hospital networks has squeezed workers’ comp payers considerably, by raising the cost of medical treatment.
Sedgwick Managing Director Andrea Buhl said that the firm “works with healthcare providers to ensure injured workers receive the treatment they need in both a timely and safe manner.” She referred to the American College of Surgeons guidance that lower-level elective surgeries be performed at ambulatory surgical centers, though she added that “delaying treatment may result in prolonged pain and dysfunction, decreased mental well-being, and in some cases increased risk for future injury.”
For his part, Vogt acknowledges that there would be some risk involved of contracting the virus. “If I was allowed to make the decision, which I’m effectively not now, I probably wouldn’t do it,” he said. “The idea that injured workers are potentially being used as lab rats or unwilling agents of economic stimulus to shore up hospital revenue streams during a pandemic makes my blood boil,” he said.
Whether coming from hospitals, workers’ comp firms, employers, or state officials, people injured at work are at or near the front of the line for going back into operating rooms, despite a still-present deadly virus moving through medical facilities.
Duff, the law professor, said the case was “indicative of some of the traps for the unwary, for injured workers.”
