Tag Archives: summit

Time for Summit With Plaintiffs’ Lawyers

Though they are often opponents, plaintiffs’ lawyers and insurers are rarely enemies. They may agree only to disagree, arguing with vigor—and countering objections to their arguments—on behalf of justice, as they define it; as they implore a jury to ratify it; as they ask a judge to certify it; as they appeal to the public to accept or reject it. But they are also professionals, which means they can separate the law from the litigants. They can talk to each other and learn from one another, so they may help not just their respective cases but the broader cause of safety and fairness.

Insurers should host a summit between themselves and plaintiffs’ lawyers, because the former can better understand the concerns of the latter. Where they can do good, they should achieve it. Where they can pursue goodness, they should do it. Where they can negotiate in good faith, they should renew their faith in the good they can accomplish together.

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According to Wayne R. Cohen, a professor at The George Washington University School of Law and a Washington, DC, injury claims attorney, talk is not cheap; but it is cheaper than battling for months or years in court. He says: “Dialogue is neither an expression of weakness nor an effort for the weak-minded. It takes discipline to listen to your adversary, in contrast to talking over what your adversary has to say. By showing respect, each side may improve its chances of finding common ground without losing territory, so to speak.”

I agree with Professor Cohen, not because I think every summit can solve every problem, but because I know we can solve some problems with a summit. If nothing else, a summit can clarify where insurers and plaintiffs’ agree, while it can reveal where a gap is too great to bridge and too dangerous to cross. Put another way, or to put it the way Winston Churchill said it: “Jaw, jaw is better than war, war.”

It is better to talk, when the parties in dispute are not too disputatious to abandon reason and too eager to fight, than it is to lose so much over what may be so little. It is better to reduce the chances of war, by which I mean litigation, unless the avoidable, in theory, becomes the inevitable, in reality.

Until that time, insurers should talk to plaintiffs’ lawyers. They should talk by exchanging ideas, not insults, because the essence of diplomacy is the attempt to reach a solution. Whatever complicates that attempt, be it words or deeds, be it threats or acts that threaten to disrupt these proposed talks—whatever each party can do, for the talks to continue, it should do.

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Let the parties talk, so we can talk about—and praise—their attempt to do the right thing. Let them talk about what is right, based on their attempt to see it; based on their attempt to will it.

Let them talk, please.

Predictions for Work Comp in 2015

Once again, I’ll head out on a limb with saw firmly in hand…

1.  Aetna will NOT be able to sell the Coventry workers’ comp services (CWCS) division.  I’ll double down on last year’s prediction: Even if the giant health plan wants to dump workers’ comp, the network – which is where all the profit is – isn’t sellable. The rest of the operation isn’t worth much; the bill review business continues to deteriorate (and CWCS is looking for a replacement bill-review application), competitors are picking off key staff and customers continue to switch out services and network states.

2.  Workers’ comp premiums will grow nicely, driven by continued improvement in employment and gradually increasing wages coupled with increases in premium rates in key states (we’re talking about you, California).

3.  Additional research will be published showing just how costly, ill-advised and expensive physician dispensing of drugs to workers’ comp patients is. Following on the excellent work done by CWCI and Accident Fund/Johns Hopkins, we can expect to learn more about the damage done to patients, employers, insurers and taxpayers by docs looking to Hoover dollars out of employers’ pocketbooks.

4.  Expect more mergers and acquisitions; there will be several $250 million-plus transactions in the workers’ comp services space, with more deals won by private equity firms. Of late, most transactions have been “strategics,” where one company buys another; the financials of these have been such that private equity firms couldn’t match the prices paid. I’d expect that will change somewhat in 2015 as  “platform” companies come on the market.

5.  A bill renewing TRIA will be passed; the new GOP majorities want to show they can “govern,” and this has bipartisan support.

6.  Liberty Mutual will continue to de-emphasize workers’ comp. The company’s continued focus on personal lines and property and liability coverage stands in stark contrast to the changes in workers’ comp. The sale of Summit, management shifts and the financial structuring of legacy work comp claims portend more change to come. Recent financial results show the wisdom of this strategy.

7.  After a pretty busy 2014, regulators will be even more active on the medical management front. Workers’ comp regulators in several more states will adopt drug formularies or allow payers to more tightly restrict the use of Scheduled drugs via evidence-based medical guidelines and utilization review (UR). While the former is easy, the latter is better, as it enables payers to more precisely focus their clinical management on the individual patient. Expect more restrictions on physician dispensing and compounding, increased adoption of medical guidelines and UR, along with incremental changes in several key states (California, we hope) to “fix” past reform efforts.

8. There will be at least two new workers’ comp medical management companies with significant mindshare by the end of 2015. These firms, pretty much unknown today, are going to be broadly known among decision-makers within the year. While they will not generate much revenue this year, they will be attracting a lot of attention.

9. Outcomes-based networks will continue to produce much heat and little real activity. After predicting for years that small, expert-physician networks will gain significant share, I’m throwing in the virtual towel. There’s just too much money being made by managed care firms, insurers and third-party administrators (TPAs) on today’s percentage-of-savings, huge generalist network/bill review business model. Yes, there will be press releases and articles and speeches; no, there won’t be more than a very few real implementations.

10.  Medical marijuana will be a non-event. Amid all the discussion of medical marijuana among workers’ comp professionals, there are very few (as in no) documented instances of prescribing/dispensing of marijuana for comp claimants. Yes, there will likely be a few breathless reports about specific claims, but just a few. And, yes, there may also be a few instances of individuals under the influence of medical marijuana incurring workers’ comp claims, but these will be few indeed.

There you have it – here’s hoping I’m more prescient this year than I was last.

This article first appeared on Managed Care Matters on Jan. 5, 2014.