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March 30, 2016

What Schrodinger Says on Opt-Out

Summary:

Like Schrodinger's cat, claims about the Oklahoma Option need to be kept in a locked box, far from prying eyes.

Photo Courtesy of Serge Melki

I’ve said before regarding Opt Out—the alternative plan in Oklahoma that allows employers to escape the workers’ compensation system but maintain the benefits of exclusive remedy—that repeatedly using the word “transparency” will not make it so. Yet, when it comes to “the Oklahoma Option,” the word “transparency” is tossed around like cheap hash on a roadhouse griddle. Proponents continually use the word to describe the scheme. It is used so much that, if it were true, the entire concept would be completely invisible because it would be so incredibly, endlessly transparent.

And, of course, the Oklahoma Option is anything but.

Really smart people will know the story of Schrodinger’s cat from advanced science classes they took at some hoity-toity university or elementary school. The rest of us Neanderthals have learned about it from the weekly science lessons we get watching the hit television show “The Big Bang Theory.” For those of you who neither attended fancy schools nor are “Big Bang Theory” aficionados, Schrodinger’s cat is a thought experiment devised by Austrian physicist Erwin Schrodinger in 1935. It illustrates the problem of quantum mechanics applied to everyday objects. In the experiment, a cat, a flask of poison and a radioactive source are placed in a sealed box. If an internal monitor detects radioactivity, the flask is shattered, releasing the poison and killing the cat. The Copenhagen interpretation of quantum mechanics implies that, after a while, the cat is simultaneously thought of in two states. In other words, if the box remains unopened, the cat may be thought of as both alive and dead.

I think that experiment lends itself well to Opt Out transparency.

In the realm of Opt Out promotion, the word “transparency” is sprinkled around like holy water. It is used as if it intended to sanctify and purify the concept for the consuming public. It is employed to describe the communication that employers use to educate their workers about their rights and responsibilities. It is used in reference to the overall plans and approval process, and it is used to defend the existence of the plan. Problem is, Opt Out is not transparent in the way proponents would have you believe.

See Also: Texas Is NOT an Opt-Out State

For instance:

  • The application process to have an employer plan approved is now confidential. All documents and information submitted to the state to obtain approval to Opt Out is closed to public eyes. This is because of reforms specifically pushed by Oklahoma Opt Out proponents last year.
  • The plans themselves are not available through the state. They were initially, but they have been removed from public access since the previously referenced reforms took effect. At the recent WCRI conference in Boston, a workers’ compensation director for a very large and well-known company took up that issue, directly telling Option author Bill Minick that she was uncomfortable with Opt Out and that she wanted to know where she could actually see existing employer plans. (I wanted to rush up to this woman and hug her in front of all 400 attendees, but I did not know her personally and thought it probably would have appeared wildly inappropriate and would possibly lead to some sort of assault charges being filed). Minick assured her the plans were easily obtainable, mentioning that ProPublica published many. He also told her several courts have copies. He did not mention that courts only have those copies because they have been entered into evidence in multiple lawsuits, and I noted he did not tell her she could get them from the state. Someone on the panel suggested Minick could just send them all to her, and he agreed he could. I am not sure he agreed he would. In a recent article on InsuranceThoughtLeadership.com, Minick stated, “The idea of establishing a public database of SPDs (summary plan description) has also historically proven impractical.”

That statement, explaining why plans are not available to the public, was made in an article describing how transparent Opt Out is. I swear, I could not make this stuff up if I tried. Furthermore:

  • There is absolutely no audit function allowing the state to see how employers are managing their plans. They are under no obligation to report their activity to anyone.
  • Under many of these plans, an employee appealing a denial may not testify or submit evidence at that appeal. The people reviewing the appeal are selected by the employer.
  • Even the denial letters issued on behalf of some employers contain strict confidentiality language, instructing the injured worker not to share the information contained within the letter with “any unauthorized individuals.”

I could go on (and on and on and on), but you get the idea.

So, this is the paradox known as Schrodinger’s Opt Out. The Oklahoma Option has been placed, by legislative and regulatory fiat, in a sealed box and kept away from prying eyes. It is in that state that it may be simultaneously thought of as both transparent and not transparent. Only by opening the box and thrusting the concept under the unforgiving light of scrutiny do we learn the truth.

That, of course, is what is happening. The Oklahoma Option, recently found to be unconstitutional, has been subjected to tremendous review in a variety of formats and mediums. The claims of transparency do not hold up when exposed to that scrutiny; instead, opaqueness rules the day. The concept of transparency when related to the Oklahoma Option can only survive in a closed and impenetrable box, where the claims can be protected from prying eyes.

The cat is out of the bag, and the concept is out of Schrodinger’s box. The transparency variable cannot be easily applied in that situation. Just repeating the word many times will not change that reality.

And that, for my” Big Bang Theory” friends, is the big Bazinga.

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About the Author

Bob Wilson is a founding partner, president and CEO of WorkersCompensation.com, based in Sarasota, Fla. He has presented at seminars and conferences on a variety of topics, related to both technology within the workers’ compensation industry and bettering the workers’ comp system through improved employee/employer relations and claims management techniques.

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