Tag Archives: psychological

The Many Questions Raised by Drones

State Farm, AIG and USAA have received preliminary approval from the Federal Aviation Administration to test drones for their claims and underwriting functions. On the surface, this sounds like a straightforward proposition. Drones can more quickly and easily survey damage sites after fires, tornados and hurricanes than personnel on the ground. Drones can be equipped to use global positioning software to identify insured structures and take pictures of damage to better and more quickly inform ground-based adjusters, leading to faster settlements and good press for insurers. Drones might also be used by adjusters to reveal hail damage on roofs, which will help to mitigate falls and other injuries to adjusters. The thought is that drones also might be helpful in certain loss control activities, such as identifying otherwise hidden internal or external fire hazards to large structures or plants.

Small portable drones may also find bodies or even survivors in the aftermath of storms. Drones and their operators may see crimes such as looting or arson being committed.

But questions arise: What responsibilities will insurers now have to report crimes to the authorities? How quickly will insurers be required to report? Some drones may use live streamed images to ground-based operators; others may take static pictures that will be retrieved when the drone returns to base. Will the drone-equipped disaster adjuster be required to analyze these pictures immediately or send them to the authorities via Internet uplink as soon as they are retrieved? To avoid problems, should drones not be sent in until after all rescue efforts have ended? However, would this also not create an ethical issue about delaying the use of lifesaving tools because of possible legal complications?

What issues of privacy of customer information or stranger images will insurers face as a result of these new capabilities? For example, the camera is left on while the drone ascends the side of the building, capturing images of people in various stages of dress, seeing a man beating a woman on the 14th or witnessing people shooting up at a party in the penthouse. What must the adjuster report and to whom? What if the party in the penthouse is for diabetics and the adjuster reports this to police as a suspicious incident? Will the adjuster now need to add police investigative skills to competency requirements? How secure will these drones be from tampering if they should malfunction, or how easily can hackers intercept image transmission? Will they be equipped to hear, meaning they can record conversations that may have otherwise been thought to be confidential? In other words, will the drone engender additional responsibilities for the adjuster or will issues otherwise be covered by existing laws and regulations?

We can argue that the courts have agreed that our expectations of privacy with airplanes flying overhead is already reduced. However, airplanes and other commercial or pleasure craft rarely fly under 1,000 feet for any length of time. Commercial drones will operate at a much more personal, in-your-face, level; today they cannot fly higher than 400 feet. Will the courts react the same way as they have with aircraft to privacy concerns associated with drones?

Underwriters will want to use drones, as well, to survey large property complexes to establish baselines not only for pricing and capacity purposes but to provide claims adjusters with a before-loss picture of the property. Drones may also capture more than their own customer’s property. For example, the drone captures a picture or a video of a new product being tested in a courtyard of another business. The other business, fearing industrial espionage, calls the police and gives the clearly visible drone FAA-issued ID number to them.

Ground-based adjusters can trespass or go where they aren’t wanted. However, most are trained to get permission directly from owners and others before trampling on private property. I do not think we will see distantly operated drones knocking on doors, “Greetings human, I am seeking permission to scan your property…please sign here or just nod your agreement.”

Then again, there is the psychological. The convoy of multiple insurer trucks shows up at the town just after a devastating tornado. Up go the drones, circling like buzzards over the wreckage and the dead. Townspeople make rude gestures to the eyes in the sky and clamor after the trucks to gain anything, any image of a missing relative or friend. And the police and fire officials are there, too, crowding the adjusters for information. Will the insurers need to circle the wagons, be available all together to the authorities in an approved command post so that the authorities can gain immediate access to their images? The authorities might have some immunity if they arrest looters from these pictures, but will the insurers, for giving the authorities pictures of the alleged crime? Will the drone bring more frivolous lawsuits from perpetrators of crimes at disaster sites for invasions of personal privacy?

I do not want this to be a Luddite’s rant against drones. Far from it; drones have useful purposes. While drone capabilities were honed in war, their peaceful use should be considered. There is no reason why realtors, insurers, surveyors and others should not have a shot at making their case to use drones in the course of their legitimate business. However, there will be others who use drones in less than legal ways, and we must provide some guidance to insurers and others what constitutes legal and authorized use. We must also have means within each drone’s system that provide credible and legal evidentiary documentation of use: authorized, legal or not. Because the drone increases the field of vision for its user, issues of privacy and legitimate acquisition of images and other information by authorities needs to be spelled out. Disposal of drones must also be spelled out in regulations so that they or any remnant information are destroyed so that they do not get into the wrong hands.

The question isn’t whether drones will be used for legitimate business reasons; the question is when. Because they increase the visibility of their users, issues are raised in the area of privacy that require discussion and perhaps court attention. There is also the unknown, the psychological—the vulture drones over the tornado-stricken town. People in war zones have learned to fear the drones because they are harbingers of death. Granted, we have not experienced drone warfare in the U.S., but we know that they have been used as impersonal killers in other places. Unlike whirring helicopters and buzzing planes, they are small, quiet, can hover low to the ground and will interface with individuals. What will we think of the drone climbing outside of our apartment building with its dark camera lens pointed directly at us? Will we think Big Brother, or will we come to accept this new technology as we have the convenience store video camera or the red-light camera at the busy intersection?

These questions must be asked and answered to some satisfaction before we go trundling off and build vast drone fleets. The time is now, because after drones are deployed is not the time to understand that the user has increased his or her company’s risk of lawsuit and even criminal prosecution that has not been properly identified, assessed, and managed.

Select articles and studies of the issues associated with drones.

— Calo, Ryan. “The Drone as Privacy Catalyst.” Stanford Law Review Online 64 (2011): 29-33. Abstract: Associated today with the theater of war, the widespread domestic use of drones for surveillance seems inevitable. Existing privacy law will not stand in its way. It may be tempting to conclude on this basis that drones will further erode our individual and collective privacy. Yet the opposite may happen. Drones may help restore our mental model of a privacy violation. They could be just the visceral jolt society needs to drag privacy law into the 21st century.

— Cavoukian, Ann. Privacy and Drones: Unmanned Aerial Vehicles. Information and Privacy Commissioner of Ontario, Canada, 2012. Summary: The aim of this paper is to provide a background for general privacy readers, as well as for potential users or regulators of UAV activities, as they relate to the collection, use, and disclosure of personal information.

— Friedenzohn, Daniel, and Alexander Mirot. “The Fear of Drones: Privacy and Unmanned Aircraft.” Journal of Law Enforcement 3, No. 5 (2013): 1-14. Abstract: The article focuses on the consequence of the use of unmanned aircraft systems, (UAS) or drones, planned to be integrated by U.S. in the national space. Topics discussed use of the technology by military forces, confirmation hearings of disclosed by Central Intelligence Agency (CIA) Director John Brennan and degradation of privacy as a result of law enforcement’s relation with the use of the UAS.

— Pasztor, Andy, and John Emshwiller. “Drone Use Takes Off on the Home Front.” The Wall Street Journal, April 12, 2012. Issue Discussed: With little public attention, dozens of universities and law-enforcement agencies have been given approval by federal aviation regulators to use unmanned aircraft known as drones, according to documents obtained via Freedom of Information Act requests by an advocacy group.

— Wesson, Kyle, and Todd Humphreys. “Hacking Drones.” Scientific American 309, No. 5 (2013): 55-59. Abstract: The article focuses on the lack of safety measures in drone aircraft. It states that drones can be used in various settings, which include search and rescue operations, scientific research and power line monitoring. Also mentioned are the Modernization and Reform Act of 2012 issued by the U.S. Federal Aviation Administration (FAA), effectiveness of jamming devices in the navigation system of drones and the challenges to balance the economic benefits of drones. considering the public safety.

Your Biggest Unmeasured Cost

Some claims resolve unremarkably. People heal, they go back to work, they resolve their claim around permanent impairment, if any, and adapt to their post-injury circumstances. We don’t focus on those claims. They simply pass through the system, without fuss and without remark. There are no water cooler conversations about the claimant who did what was expected of him or her. This group represents about 80% of our claims, but only about 20% of our resources in loss costs and processing headaches.

There’s another much smaller group that do attract our time, attention and concern. They are the claims, often with similar injuries to those that heal unremarkably, that fail to resolve, demand disproportionate amounts of time to administer, result in serial disputes and cost significantly more. They cause considerably more wear and tear on claims personnel and demand more time from our dispute resolution systems. They are the 20% who represent 80% of the claims costs, and most of the excess stomach acid for system administrators, claims managers and regulators.

The difference is often the development of a secondary condition that focuses claimants on what they have lost, on their symptoms and on their “new identity” as injured (and often disabled) persons.

Sometimes, this secondary condition is explicitly claimed as a compensable injury, but, in the U.S., psychological conditions are generally not compensable without a direct causal connection to a discernible traumatic incident. Harm that occurs as a reaction to the experience of the compensation system is often dismissed as malingering, secondary gain behavior or personal weakness, and you may thinking, “We don’t compensate that.” Think again.

To be sure, you may not be using the words, “exacerbation of primary claims due to secondary psychological overlay,” but you are still paying for it. The research evidence is now overwhelming. Psychological conditions, whether pre-existing or acquired after a claim arises, affect the physical healing as well as the probability that an injured person will return to his pre-injury life.

You are paying for secondary psychological overlay, whether or not your systems are set up to detect and measure this cost driver. It is very likely your largest unmeasured cost driver.

All of these conditions are attributable to secondary psychological overlay:

  • Unexplained failure to thrive and return to work;
  • Functional syndromes that have neither explained cause nor effective treatment;
  • Unexplained chronic pain (and all the expensive treatments and addiction problems that go with it); and
  • The appearance of secondary physical symptoms that complicate recovery

There are indirect repercussions, as well. Some people seem to develop the attitude that they are entitled to whatever treatment or benefits that they request, or that they deserve special treatment by the system. There is burnout, desensitization and turnover among staff, with the very significant attendant costs of recruitment and training of new personnel. These claims drive (and are driven by) lawyer behavior that enables “victimhood” and doctor behavior that “medicalizes” symptoms and sets inappropriate patient expectations.  The list of cost centers goes on and on.

We haven’t done a very good job of measuring this cost driver. Partly, that’s because our analytics are limited by the data we’ve collected. If we haven’t collected the right data (or haven’t even asked the right questions in the first place), then it’s hard to directly analyze the phenomenon. Partly, it’s a matter of the complexity of the calculation. Factoring personnel costs and systemic behavior changes by lawyers and doctors makes things a lot more complicated.

We avoid useful thinking about these claims. In fact, we habitually avoid thinking about anything psychological. Effective treatment is elusive, and we have too many examples of ineffective treatment stretching into lifelong periodic sessions with “the shrink.” We can’t see the injury associated with these claims, and tend to think that they aren’t “real” in the same way as physical injuries. This outmoded approach isn’t serving us well, as increasing claims severity in many jurisdictions clearly demonstrates. And there’s an element of fear of the unknown — if we acknowledge those claims, we just might have to learn different approaches to claims management and develop different substantive knowledge that we’ve needed in the past.

Unfortunately, this avoidance of all things psychological is a holdover from “person as a machine” thinking — the idea that we can fix the broken part, and the mechanism will go back into the production cycle. Alternatively, the thinking may presume that the difficulty with the worker is a disease, for which discovery of the right medication or treatment will restore equilibrium. Either way, it’s gotten much harder to maintain these simplistic views of injury and disability, given the overwhelming evidence that people are significantly affected by factors that have to do with their biopsychosocial environment and experience.

But that’s the trouble. How do we deal with this relatively small cohort of expensive claims without opening the proverbial Pandora’s box? On the one hand, acknowledging the biopsychosocial elements of the claims process may open the door to psychological claiming, which in the past has been a nightmare of unending expensive interventions with few or no positive outcomes. (Alternatively, focus on biopsychosocial factors exposes underlying matters about which the claim manager often has little or no control, such as the claimant’s prior history or the nature of the person’s off-work relationships.) On the other hand, failure to acknowledge the biopsychosocial elements flies in the face of an avalanche of research findings associating a bewildering and seemingly inconsistent array of factors correlated with good or poor outcomes. So what are you supposed to do?

First, quit pretending that the biopsychosocial flagging systems that have flooded the market are going to save you. There has never been a published properly controlled study that could show that the identification of people pursuant to a flagging system and subsequent intervention efforts had any more impact than just providing more personalized attention to claimants generally. Flagging systems have value for predicting outcomes for groups, rather than individuals. They are useful for managing reserves and initiating increased scrutiny of behavior. When misused, they also carry a potential for adverse impact through the mechanism of self-fulfilling prophesy. When you tell a well-intentioned claims manager that certain claimants have “flags,” it’s hard to predict the subtle ways in which the manager will treat the claimant differently, but it’s almost certain that the differences will be there. Identification of a person at risk, without more, has never made anyone recover faster or better.

Second, acknowledge that the presence of a secondary psychological overlay is very likely to affect the worker’s physical recovery. The research findings overwhelmingly demonstrate that psychological conditions such as depression and anxiety, a sense that personal control has been transferred to others and individual expectations for recovery have significant physical impact on physical welfare and healing of the claimant and the experience of things like chronic pain. The research shows that even the way that we talk to a patient about pain can have significant impact on the clinical outcome. It’s time to stop blaming the worker or assuming that the person is out to take advantage of the system. Just as the medical profession has acknowledged “iatrogenic” (system-created) injury, the workers’ compensation world would benefit from understanding that our compensation systems actually cause additional harm to the people we are supposed to be helping. Our system design should be more focused on preventing that harm than trying to suppress the costs associated with it.

Third, find a way of thinking about secondary psychological overlay to original injury that helps you understand how it all fits together. Such a conceptual model will help you to understand the relationship between findings that aren’t obviously related. For example, understanding the relationship between the positive impact of early intervention programs, the negative impact of lawyer representation and the negative impact of sleeplessness may be difficult without an overarching explanatory framework. There are several models out there, but I suggest that most everyone agrees that a very basic place to start is the understanding that the worker’s loss of an internalized sense of control over one’s own life is critical to explaining what’s happening to people in the claiming environment.

Finally, whatever your model of secondary psychological harm, find the places that you can control or improve the claims environment. Can you encourage early intervention or other activity that maintains the important sense of identity as a “worker” that is endangered by injury and absence from the workplace? Can you institute mechanisms that reduce the time and stress of dispute resolution and attend to the real personal needs of people in dispute? Can you arrange circumstances so that claimants get their calls returned more quickly to preserve their feeling of being valued, or minimize the repetition of their story, to prevent unnecessary entrenchment of a changed view of self? There are literally dozens of systemic changes that you can control that will have a positive impact on the worker and his recovery. It’s a different orientation than mere “cost cutting,” but it will have a greater long-term and sustainable impact.

The complication of claims because of undiagnosed and unmitigated secondary psychological overlays threatens the integrity of workers’ compensation generally. Whether you recognize it or not, it is a very significant underlying cost driver. In the absence of understanding this phenomenon, systemic attempts to control costs have led to the increasing perception of a failure of the underlying quid pro quo that is reflected in recent litigation in Florida and changes in the structure of the Oklahoma system.  Most of us have within our control some aspect of the system can lead to the reduced incidence of secondary psychological complication of a claim.  All of us can insist that our policy makers and regulators open their eyes to this hidden source of complexity and poor outcomes, and that they respond to it in a meaningful way.