Half-Time in Salem - Oregon Self
Transcription
Half-Time in Salem - Oregon Self
COMPLISHMENTS Spring 2011 SI OSIA Legislative Update: Half-Time in Salem By Drew Hagedorn, OSIA Lobbyist Session Overview T he frenetic pace of the 2011 Oregon legislative session shows no signs of slowing as the legislative assembly reaches key mid-session deadlines this month. Voter approval of annual legislative sessions last November resulted in the imposition of strict legislative deadlines to work bills through the committee process. Last Friday, April 8 marked the deadline to schedule bills for work sessions (votes) in their committee of origin. Senate committees must approve Senate bills and House committees must approve House bills by April 22 or the concepts will die in committee. The April 22 deadline will significantly narrow the scope of bills still alive and center legislature’s focus on the 2011-13 biennial budget, which will feature sweeping cuts given the state’s $3.5 billion budget hole. Indeed, the budget process already is in full swing as the legislature approved a $5.7 billion K-12 education budget this week setting the stage for the other core General Fund budgets including public safety and human services. All indications suggest the legislature will meet its June 30 adjournment deadline. OSIA Agenda The OSIA fared well through the first half of the session working with MLAC, state legislators and other stakeholders to avoid dedicated fund raids and defeat myriad legislative proposals counter to self-insurers best interests ranging from proposals from nurse practitioners, chiropractors and the Oregon Trial Lawyers Association. Given Oregon’s severe budget constraints, the specter of fund raids always looms. The OSIA developed and coordinated an opposition coalition to educate legislators that dedicated fund raids are untenable, particularly those such as the Worker Benefit Fund, which exist to ensure injured workers receive the medical treatment they require to get back to work. OSIA members are encouraged to contact OSIA government affairs representative, Drew Hagedorn, if they have questions. Drew can be reached at 503.380.1075 or at [email protected]. OSIA’s 2 0 1 1 A n n ua l Co n f e r e n c e Salishan Spa & Golf Resort G l e n e d e n B e a c h , O r e go n July 13 - 15, 2011 See page 13 All of the bills of concern to the OSIA will be dead after the April 22 deadline. As a result, for the remainder of the session the OSIA’s primary focus will be to coordinate with the Workers’ Compensation Division on their biennial budget and to continue working with legislators and other stakeholders to avoid a dedicated fund raid. (503) 873-0985 • Fax (503) 873-9389 • Email: [email protected] • www.osia.com • 114 Coolidge St • Silverton, OR 97381 President’s Message By Todd Hennelly, OSIA President T he easiest way to write your last article as OSIA President is to provide review and opinion regarding the current events at the Legislature. However, for the 2011 Legislative session there is little news to report that impacts Oregon’s workers’ compensation system in a material manner. Be assured that the Legislative Committee must still execute its annual blocking-and-tackling exercises regarding several, traditional workers’ compensation nemesis that annually look to convert the system to better support their own commercial enterprises. But these agents of negative change have been muted by the economic and budgetary noise that continues to consume Salem. Therefore we have less need to beat the drum and rally the OSIA membership since it appears the status quo will remain and Oregon will continue to enjoy consistency and predictability within its workers’ compensation system. To be clear, I am referring to over two decades of consistent and declining rates unique to Oregon; especially predictable when compared to neighboring states. When the NCCI -National Council on Compensation Insurance, the rating bureau for Oregon and 35 other states, returns in October for their annual presentation I suspect O re g o n ’ s w o r k e r s ’ c o m p e n s a t i o n community will add another year to this legacy of consistency and predictability. Upon reading the previous paragraph no one should conclude that Oregon’s workers’ compensation system is without threats or faults. Threats are always present and there is still plenty of room for improvement. But I am uncertain that the most needed regulatory fixes have sufficient support / political-willpower to systematically change the inherent weaknesses that plague our system. In my opinion the singular issue that most plagues Oregon’s system (and most every other state) is the fair and balanced appellate adjudication of workers’ compensation claims. To be more specific, predictably one-sided administrative law judges, the Board, appellate and supreme courts. Early last century workers’ compensation properly morphed into a social contract wherein injured workers receive statutory benefits without determination of fault or negligence. Tort was removed in exchange for this “no-fault” system. Injured workers are now indemnified following any accident or disease. There is neither betterment nor punitive response. There is also great benefit to workers and their families within the predictability and largess of a system that does not limit duration or dollars. Employers benefit from the same statutory limitations and predictability contained in workers’ compensation. Inherent with any system and certainly to include workers’ compensation is periodic abuse by individuals. And when the abuse of the workers’ compensation system is adjudicated before an ALJ (etc.) the results are, again, sadly predictable. In contrast, with tort there are similar winners and losers but uncertainty regarding a jury verdict. This statement cannot be made regarding workers’ compensation. Any claims professional or defense attorney can attest that decisions rendered are very, very predictable / negatively mono-directional. OV E R 25 Y E A R S O F S E R V I C E Independent Medical Evaluations Record Reviews Online Claims Tools Extensive Provider Network 8 0 0 . 3 31. 6 6 2 2 w w w.omacime.com 2 Simply stated, until there is some kind of parity in the adjudication of contested workers’ compensation claims no state, to include Oregon, will have a truly fair and balanced workers’ compensation system. Special to Oregon and in contrast to the previous statement, the best example of “fair and balanced” continues to be MLAC. Management and Labor working together for a result that preserves the ultimate goal of both sides: System efficiency wherein employee benefits are high and employer costs are low. I personally believe that a cost-benefit ratio is the best measure of a workers’ compensation system. In Oregon our injured workers receive relatively good benefits and employers have relatively low cost. The OSIA looks to maintain this ratio so that a future president can report three decades of consistent workers’ compensation rates. Sadly, our neighbors to both the north and south continue to struggle with their respective systems. Most recently, insurance trade periodicals report that California workers’ compensation insurers are calling for a 40% increase in rates. Why? Insurer combined ratios (the measure of insurance company profitability) indicate an objective need. Losses to insurers are significant and not Continued on page 9 C L I N I C LO C AT I O N S I N : Alaska Idaho Oregon Washington Identifying Exaggerated Claims: Creative Billing Practices in the Chiropractic Profession By Lisa Kouzes, D.C. A t a continuing education class a few years ago I was surprised when I heard, “You have to perform [this diagnostic test] on the visit after a physical exam, so [auto] insurance will pay for it.” Obviously the test was not delayed for the patient’s benefit. I guess if you had forked over more than 10K for this machine, you would want your money’s worth, too. But what made this reality worse was no chiropractor in the room expressed a problem with it. Many seminars later my ‘surprise’ has turned into ‘defeated acceptance.’ This OSIA 2011 SPONSORS OSIA thanks the following sponsors for their support. GOLD • Cummins Goodman Fish Denley & Vickers PC • • Radler, Bohy, Replogle LLP • Ronald W. Atwood PC • • Sather Byerly & Holloway LLP • Wallace Klor & Mann • may be what unsuspecting chiropractors are incorporating into their practices everyday, creative billing. On a lighter note, I know most doctors are doing what is in the best interest of their patients. Research supports the valuable role chiropractors play in the management of musculoskeletal injuries and conditions when used appropriately. I am an advocate of the profession, but also know the value of professional skepticism. I will come back to my experience at seminars later in this article, but first I want to start off with the basics. The ChiroCode Institute publishes a yearly reference of the ICD-9 and CPT codes used most often by the profession. Guidance of proper documentation, diagnosis, and procedure coding are included and updated to provide chiropractors with accepted billing standards. As advertised, they are “The Chiropractic Standard for Getting Paid… and Keeping It!” Billing suggestions made at seminars may not fall within the parameters of the annual ChiroCode DeskBook. This guide is readily available for cross referencing, but there are some who appear to have not done so. SILVER • MES Solutions • A common mistake is to bill manual therapy (CPT code 97140) and chiropractic manipulative therapy (CPT codes 98940 98943) when both have been performed to the same area of the body. BRONZE • Corvel • ExamWorks • • Medical Consultants Network • • Objective Medical Assessments Corp • • Oregon Medical Evaluations Inc • Reinisch Mackenzie PC • • Star Medical Inc. • Sunrise Medical Consultants • Manual therapy includes a variety of techniques to reduce pain and improve function and mobility. Active Release Technique (ART) and Graston, for example, may cost thousands of dollars for seminars and tools. The misuse may occur when a Continued on page 5 3 Excellent Programs Featured at OSIA’s Spring Meeting O SIA’s Annual Spring Meeting, held on March 11 at the Kaiser Permanent Town Hall, offered some excellent programs. An array of speakers provided attendees with information on a variety of topics. OSIA would like to thank the exhibitors participating in the Spring Meeting (see exhibitor list in sidebar). OSIA 2011 Spring Meeting March 11, 2011 Kaiser Permanente Town Hall Portland, Oregon Exhibitor List Presentations included: “Legislation in 2011” – Todd Hennelly, OSIA President, Empire Pacific Risk Management and Mark Davison, OSIA Legislative Committee Chair, Mark John Davison LLC Crowe Paradis Services................................................ Steve Jones Brief updates were provided on what is going on during the 2011 Legislative Session and what OSIA is doing on WC issues as well as the status of the Alternative Collateral Funding project. will be provided. Medical Consultants Network.....Lauren Pickthorn, Jessica Chappa “WC Case Law Update” – Jerry Keene, Oregon Workers’ Compensation Institute Star Medical Inc.................................................................. Jill Jarvi ExamWorks................................................................Kayla McCain NW Occupational Med Center.............................. JoAnna Lattig OMAC.................................................................... Katherine Taylor Sunrise Medical Consultants..................................... April Rains Keene reviewed significant changes in the Medical Fees and Payment and Medical Services rules. Cases that were discussed included Hopkins v SAIF (Arthritis and “Combined Conditions”), Dynea USA, Inc. v. Fairbanks (Claims involving Preexisting Infestations), Blacknall v. Manpower, Inc. (Interim Medical Benefits Limited to Workers with Private Insurance) and Basin Tire Service, Inc. v. Minyard (Limitations on Medical Services Available on Closed Claims). The Independent Medical Evaluators...........Paula Boga, Jessica “ASTYM: Effective, Evidence-Based Rehab for Challenging Musculoskeletal Problems” – Aimee Jackson, PT, Director, Cedar Hills Physical Therapy ASTYM treatment is a rehabilitation program that stimulates the regenerative healing process of the body. The approach reviewed Jackson is a newer, non-invasive therapy that works fast and consistently. The ASTYM system rejuvenates muscles, tendons and ligaments for a variety of musculoskeletal problems. “Psychological vs. Neuropsychological Exam” – Dr. Donna Wicher, Ph.D., ExamWorks This presentation examined psychological evaluations and neuropsychological evaluations. Dr. Wicher reviewed the indications for neuropsychological evaluations, medically stationary status and permanent impairment and prior neuropsychological testing. “Creating Sustainable Workforce Health Plan” – Kay Zimmerli, Product Strategist – Health & Wellness, Kaiser Permanente Zimmerli addressed workforce health as a business strategy and discussed how you can help improve efficiency and productivity, and positively impact your bottom line. Key elements include developing a workforce health strategy, building a workforce health plan, reporting and analytics, effective member engagement and the six principles of a sustainable plan. “Case Management Adding up the Savings!” – Terry Tamraz, RN, BSN, CCM, Medical Case Management Supervisor, Genex Services Calming your anxiety with your problems files was the focus of this presentation. Tamraz discussed how case managers accomplish their goals, case managers as “conductors” of all parties involved in the file and red flags. She then broke down cost savings in terms of hard dollar categories, soft dollars and avoiding litigation. 4 Remembering why we fight for safety By Michael Wood, Oregon OSHA Administrator E ach year, as Workers Memorial Day approaches on April 28, I find myself wondering how we can improve our understanding of the continued loss of lives to hazards and situations that we know how to prevent. Is there some way to persuade more people that it is simply unnecessary to accept the loss of even a single worker to a preventable event in the workplace? This year, the news is good. The various lists of names will all be smaller than they have been – and the decrease is not explained by the economic downturn alone. The Oregon workers’ compensation system accepted 17 fatality claims for the 2010 calendar year. And, perhaps most striking, none of those claims came from the construction industry. The 2010 total is 45 percent lower than the previous low – 31 death claims. And that decrease is worth acknowledging and even celebrating. But in the midst of that celebration, I find myself confronting two sobering thoughts. First, I know that for the friends, families, and co-workers of those 17 workers, the real sense of tragedy and loss is not in any way lessened by the fact that it was one of 17, instead of 31, or instead of 85, or instead of 150. For the individual worker ’s family and colleagues, the reality of a life cut short strikes just as deeply, if not more so. We have our successes, and we should be proud of those. But we are not always successful, and we need to be honest about that. Second, I realize that next year’s total is likely to be higher. The reality is that those 17 fatalities represent a statistical low point. There are some very good reasons the number has gone down, but part of it is random statistical fluctuation – what some might call dumb luck. I wish I could say that we will see the number continue to drop year after year, but it is not likely. For example, the lack of construction fatalities does not prove that the industry has finally become completely safe. We know that’s not true. On the other hand, a year with no construction fatalities would have been inconceivable to most in the industry two decades ago. And now it has happened. If it’s happened once, it can happen again. And if it’s happened in construction, then it can happen in other high-hazard industries as well. It’s because we’ve glimpsed that success that I encourage everyone – employers and workers alike – to take seriously the commitment we make every year on Workers Memorial Day: Mourn the dead. But fight for the living. Because it is a fight we can win. Michael Wood is a certified safety professional and the administrator of Oregon OSHA, the Occupational Safety and Health Division of the Oregon Department of Consumer and Business Services. Identifying Exaggerated Claims: Creative Billing Practices in the Chiropractic Profession . . . continued from page 3 chiropractor performs manual therapy to an area also adjusted and charges for both; however, included in the chiropractic manipulation code is manual therapy. Therefore, billing separately for manual therapy in this case would be redundant. This is explicitly stated in the 2011 ChiroCode DeskBook on Page 85F, “97140 Bundling.” CPT Assistant addressed this issue in 1999. Neuromuscular reeducation (CPT code 97112) is another commonly misused code. A chiropractor may incorporate this into the treatment plan when the diagnosis is only of sprain/strain with no neurological involvement; however, neuromuscular reeducation is reserved for those patients with significant neurological deficit, such as in stroke victims. ChiroCode addressed this in their January 2008 issue of Hot Topics. Some doctors use the opportunity afforded by personal injury claims to be “patient advocates” by including many diagnoses, often redundant or out of proportion with the type of accident or injury. Evidence of this on the CMS-1500 form may be additional ICD-9 codes in 5 Box 19 (reserved for local use). There are doctors who treat with the “shotgun approach.” You may see multiple passive modalities and multiple units of each billed at every visit. The patient may be seen five days in a row, but not on weekends, or the patient may come in three times a week for six months. Each of these examples reflects a premise of the more treatment the better; however, this may not actually be in the best interest of the patient, but may be for monetary gain. If so, this approach may Continued on page 7 Ronald W. Atwood, P.C. 200 Oregon Trail Building 333 S.W. Fifth Avenue Portland, Oregon 97204 Ronald 503-525-0963 W. Atwood, P.C. FAX 503-525-0966 E-mail: [email protected] 200 Oregon Trail Building Representing employers S.W. Compensation Fifth Avenue in 333 Workers Portland, OregonOregon, 97204 cases throughout Washington, Montana and 503-525-0963 onFAX the Waterfront since 503-525-0966 1978. E-mail: [email protected] Representing employers in Workers Compensation cases throughout Oregon, Washington, Montana and on the Waterfront since 1978. 6 Identifying Exaggerated Claims: Creative Billing Practices in the Chiropractic Profession . . . continued from page 5 be the “style” of the provider, not what is proportionate for the degree of injury and needs of the individual patient. Appropriate treatment might include the chiropractic adjustment and a couple of passive modalities during the acute phase of recovery. As the condition improves, the number of passive modalities and the frequency of visits should diminish. Therapeutic exercises would be a good addition to the treatment plan and should be directed toward establishing a homebased program; however, when there are charges for therapeutic exercises or activities on every visit, making a patient independent may not be the goal. There are more complex strategies to increase revenue from personal injury cases than what I have identified thus far. I see two categories: 1) Those suggested by manufacturers of therapeutic or diagnostic equipment sold to chiropractors to get “bigger settlements,” and, 2) elaborately structured fraudulent car accident rings. First, the manufacturers; it seems chiropractors have an affinity for technological equipment and services that are redundant to cheaper, simpler means of managing cases. Dynamic surface electromyography (EMG), motion x-ray (digital fluoroscopy), and digitized x-ray evaluations are some of the more popular choices. These devices and services are not advertised for use in private insurance or cash cases, but for creating “bigger settlements” in personal injury cases. A pattern seen for dynamic surface EMG is billing CPT codes 96002 (dynamic surface EMG) and 95851 (range of motion measurements) on the visit after a formal evaluation and management (E/M) service is charged, though these are lesser-included components of the E/M service. There are entities offering professional interpretations of the dynamic surface EMG print-out graphs. Again, this service is only for personal injury cases and the doctors may be offered a chance to win a vacation to a resort for sending in studies. Motion x-ray studies and digitized x-ray reports may be redundant to prior studies or ordered at a time inconsistent with a clinical decision-making process relative to diagnosis and management of the injured patient. Charges seen for digitized x-ray may include the use of CPT code 76499 (unlisted diagnostic radiographic procedure), though the patient is not exposed to ionizing radiation. In fact, the service provided is a simple secondopinion read of existing films received electronically or literally scanned into a computer program. Once electronic, areas of interest are identified manually and the computer calculates angles and lengths. Studies suggest this method is as accurate as manual measurements from plain films. As described by Wikipedia, a “capper,” or middle man, acquires vehicles to be crashed and finds volunteers willing to put themselves in harms way for quick cash. There are often many poor immigrant volunteers in the crash vehicle. Different strategies are then employed to cause an accident. At the top are medical and legal professionals to whom the injured volunteers are funneled by the “capper.” These doctors may make false or exaggerated diagnoses, bill for treatment not rendered, or treat excessively. The professionals at the top profit most from the fraudulent car accidents. Now, I would not expect that one could identify these fraudulent rings from bills alone, but it would be logical that providers interested in this type of business would go to any length to obtain money including some of the strategies listed above. Who knows, maybe I was sitting next to one of them at the seminar. To my knowledge, the most criminal of insurance fraud would be car accident rings. Did you know that... Our turn around service is 3-5 Days We can help obtain 1-800-664-8604 Phone 503-620-6625 Fax 503-620-6725 www.STARMEDICAL.us 7 diagnosticsforyou Copy service available inyouroffice Extensive physicians list with over 200 available Request can be made by phone,faxorinternet WALLACE, KLOR & MANN, P.C. ATTORNEYS AT LAW A distinguished law firm partnering with exceptional employers to achieve outstanding results Serving Northwest Employers since 1989 SEATTLE – PORTLAND 1-800-447-1223 WK&M OREGON 5800 MEADOWS RD. SUITE 220 LAKE OSWEGO, OR 97035 WASHINGTON 4200 TWO UNION SQUARE 601 UNION ST. SEATTLE, WA 98101-‐4000 SCHUYLER T. WALLACE, JR. -‐ JOHN L. KLOR -‐ LAWRENCE E. MANN – JEFFERY H. CAPENER Christopher A. Bishop – Drew D. Dalton – Brian J. Duckworth – Brad G. Garber – Alisa M. Grammer David C. Johansen – William A. Masters – Daniel L. Meyers -‐ Rebecca Wareham Portlock Emily J. Pringle -‐ Ashlee S. Sharp – Edward L. Stock WWW.WALLACEKLORMANN.COM 8 President’s Message . . . continued from page 2 sustainable. Some insurers will look to cancel California policies or exit the state. Still, I am confident relatively few California employers will experience a 40% increase in workers’ compensation rates next year for two primary reasons: First, the state’s insurance commission will not approve a 40% rate increase and second, competition remains fierce in the country’s largest insurance market. Be assured many employers and insurers will feel pain. And the pain of a broken workers’ compensation system is felt equally by those that buy traditional coverage and those that are self-insured. California workers’ compensation is again broken and there is a lesson to be learned. Broken over a decade ago and then optimistically “fixed”, California’s new workers’ compensation legislation was hailed by almost all. For years rates plummeted and most were happy with the exception of those parasitical vendors and providers that were cutout of the food chain. But with each session the parasites won legislative battles while bad precedents created bad case law. California’s fresh start with new legislation has crumbled because of the relentless pummeling from those who want back into the workers’ compensation food chain. System costs are again growing disproportionate to workers’ benefits. Oregon could be California without the continued diligence of your OSIA. The state of Washington continues to make news within the insurance trade periodicals and the traditional media outlets. As a monopolistic state Washington workers’ compensation buyers have no choice. In fact, insurance agents cannot get involved in the marketing process with Labor & Industries (L&I). The most recent and most dire prognostications have L&I going bankrupt within five (5) years. Some argue L&I will be bankrupt much sooner. Still voters soundly rejected revolutionary legislative change to Washington’s workers’ compensation system last November. The Washington Legislature has failed incremental change thus far this session. In addition, calls for 20+% and 30+% rate increases in recent successive years have been muted since no one apparently has the stomach for drama in Washington. The Washington workers’ compensation system has been troubled for many years. It appears that system has begun to truly fail which will have very negative consequences to all Washington employers and possibly its citizens too. heavy employers (think construction, heavy industry and distribution) detest the unpredictability of 10-20-30-40% annual rate increases because this business expense cannot be easily built into pricing estimates for future business. Huge rate increases result in devastated profit margins to rate heavy employers. There is little doubt that Oregon business development advocates will be trumpeting the stability of Oregon’s workers’ compensation system... And downplaying the negative consequences of last year’s Measures 66 and 67. While today’s world may be very unpredict ab le, at least O reg on’s employers can count on stability in workers’ compensation. The MLAC battles may not be fierce for 2011 but there will be greater contests in the future. Your support of this association is literally the only thing separating Oregon from the more challenging workers’ compensation future for some of our neighboring states. We thank you for continued institutional support of the OSIA and I personally thank those that volunteer their time to serve. There is workers’ compensation drama on the near horizon in both California and Washington. Drama is manifested in potentially huge annual rate swings. Rate Important Dates July 13-15, 2011 Wednesday evening – Friday afternoon OSIA’s Annual Conference The Salishan Spa & Golf Resort, Gleneden Beach Additional program information and registration will be posted on OSIA’s website at www.osia.com We know the issues involved with complex claims and have the board-certified physicians to help you manage them with fewer bumps along the way. visit mcn.com or call 800.248.6269 9 Arthritis or an Arthritic Condition By Dave Runner, SAIF In Hopkins v. SAIF, 349 Or 348, 351-52 (2010), the Supreme Court discussed the meaning of the phrase “arthritis or an arthritic condition” in the definition of “preexisting condition” in ORS 656.005(24)(a)(A). The court particularly focused on the term “arthritis” and identified the following three “core elements”: (1) inflammation of one or more joints; (2) due to infectious, metabolic, or constitutional causes; and (3) resulting in breakdown, degeneration, or structural change. (The court expressly left undefined the arguably broader expression “arthritic condition.” More about that later.) Question of Law or Fact: In Hopkins, the Supreme Court held that the legal meaning of statutory term “arthritis” is a matter of law, not a question of fact. 349 Or at 355. After legally defining the term and identifying its various elements, however, the court then held that whether the various elements constituting “arthritis” are present in a particular case is a question of fact, and the court reviews the board’s findings regarding those elements for “substantial evidence.” Id. at 364. Employer Burden of Proof: The court clearly stated that that the burden of proving the existence of “arthritis” is on the employer under ORS 656.266. Id. at 351-52. In the absence of evidence addressing the necessary elements, therefore, the employer loses on that issue. Expert Evidence Required: Also, it is clear from case law since Hopkins that the presence or absence of the various elements of “arthritis” in a particular case is a complex medical question that can be resolved only through expert medical evidence. Rodney C. Walters, Sr., 63 Van Natta 114 (2011); Staffing Services, Inc. v. Kalaveras, 241 Or App 130, __ P3d _ (2011). It is important, therefore, for defense counsel to make sure that a doctor addresses all of the elements of the “arthritis” definition. Proving “Arthritis” under Hopkins The key to proving “arthritis” is to present medical experts with standard definitions of the terms (such as those from sources found probative in Hopkins), get the expert to endorse (or assume) those definitions, and then have the expert offer an opinion on the presence of each element. Core Element 1: “Inflammation of one or more joints” This element concerns the basic nature of “arthritis” and its possible locations in the body. Joint • Hopkins Definition: The court did not specifically define this term in Hopkins, but it did clearly hold that the term is not limited to the moveable or “freely¬articulating” joints. 349 Or at 363. • Helpful Dictionary Definitions: “Joint” means “the point of contact between elements of an animal skeleton (as femur and hip bone) whether movable or rigidly fixed together with the parts (as membranes, tendons, ligaments) that surround and support it.” Webster ’s Third New International Dictionary 1219 (unabridged ed 2002). Disc and Adjacent Vertebrae: In Dorland’s Illustrated Medical Dictionary 930 (29th ed 2000), the term “joint” also is defined as “the place of union or junction between two or more bones of the skeleton.” In an illustration accompanying this definition, the dictionary further identifies two vertebrae and the disc between them as one kind of “joint.” Id. at 931. Continued on page 14 10 Continuing Our Commitment to the Employers and Insurers of the Pacific Northwest in Workers’ Compensation and other Employment Related Issues ˙Full Range of IME Services ˙Personalized Service ˙Online Scheduling ˙Educational Seminars 10260 SW Greenburg Road Lincoln Tower, Suite 1250 Portland, Oregon 97223 503-245-1846 159 South Jackson Street Suite 300 Seattle, Washington 98104 206-622-7940 (503) 684-3988 - (800) 490-7800 www.ormedeval.com Portland Medford Bend Newport www.rmcomplaw.com Your Risk Management Solution Local. National. Reliable. Independent Medical Evaluations Servicing the Workers’ Compensation, No-Fault, Liability and Disability Industries Industry leading claims management and cost containment solutions. Call (503) 501-5560 or learn more at www.corvel.com OREGON CLINIC LOCATIONS: Portland • Bend • Eugene • Medford Pendleton • Salem • The Dalles To Schedule: 503.796.2775 or 800.388.2775 www.examworks.com 11 f2 CV-522_Portland ad.indd 1 1/10/11 2:26 PM We are a Beaverton law firm representing employers in Oregon and Washington. The firm counsels employers in workers’ compensation and employment law matters, insurance-related issues, BOLI claims, premium audits, non-complying employers, civil litigation, unemployment, arbitration, and mediation. 8625 SW Cascade Avenue, Suite 405 Beaverton, OR 97008-7138 503-924-4310 fax 503-924-4317 www.rbr-lawyers.com Robert J. Radler Ronald L. Bohy William H. Replogle Linda D. Conratt Karen S. Varney Howard R. Nielsen Richard J. Cantwell Marc Hull Linda C. Attridge 12 OSIA’s 2 0 1 1 A n n ua l Co n f e r e n c e Salishan Spa & Golf Resort G l e n e d e n B e a c h , O r e go n July 13 - 15, 2011 Exhibitor Fair Registration Fees The OSIA 2011 Annual Conference is packed with some dynamite presentations. • State Economist Tom Potiowsky will analyze Oregon’s latest economic factors and their likely impacts on the next year or two. • What Happened and Didn’t Happen to Workers’ Compensation in the 2011 Legislative Session • Updates from WCD and MLAC Exhibit Fees Before June 24, 2011: $700 Member Fee for 6’ x 8’ Space / $1,200 Non-Member Fee for 6’ x 8’ Space Exhibit Fees After June 24, 2011: $800 Member Fee for 6’ x 8’ Space / $1,300 Non-Member Fee for 6’ x 8’ Space Fee covers attendance by one person at the Conference including seminars, meals, breaks and President’s Reception. One additional Exhibitor representative can attend at the special rate of $100. OSIA Annual Conference Registration Information • Social Networking/Facebook and Employment Issues • Economic Advantages for Pro-Active Claims Management • Attorney Jerry Keene will review and critique the recent trend in cases on “arising out of and in the employment disputes and what can be done about them. • Brain Injuries • Medical Travel Packages and Workers’ Compensation • WC Board Member Greig Lowell will cover the latest case law and changes at WCB and WCD in a fun, interactive game that will test the knowledge of the contestants and the audience. • Building a “Healthcare Marketplace Collaborative” to address the inefficiencies and high cost of healthcare delivery. Other Featured Events include the Annual Exhibitor Fair, the Annual Golf Tournament and the WCPAC Silent Auction. Take advantage of the Annual Conference’s networking opportunities with your peers and suppliers. Registration Before June 30, 2011 First Registrant Additional Registrants Spouse OSIA Member Organization $300.00 $235.00 $100.00 Non-Member Organization $375.00 $310.00 $125.00 First Registrant Additional Registrants Spouse OSIA Member Organization $325.00 $260.00 $125.00 Non-Member Organization $400.00 $335.00 $150.00 Registration after June 30, 2011 special one-day Registration before June 30, 2011 First Registrant Additional Registrants OSIA Member Organization $150.00 $120.00 Non-Member Organization $190.00 $160.00 First Registrant Additional Registrants OSIA Member Organization $175.00 $145.00 Non-Member Organization $215.00 $185.00 special one-day Registration after June 30, 2011 Registration may be split by two different employees of an organization so that one can attend on Thursday and the other on Friday. If you exercise this option, please indicate that on your registration. Lodging Information Annual Golf Tournament Fee Secure your room reservations early! The Salishan Spa & Golf Resort is offering OSIA registrants a fantastic lodging rate. The OSIA room block includes Traditional and Deluxe Guestrooms at $135.00 plus a discounted $7.50 Resort Fee. Salishan is offering a government rate of $103.00 for the Traditional Guestrooms plus a discounted $7.50 Resort Fee. There is also a 10% room tax. To make reservations, please refer to the OSIA room block when calling Salishan at 1-800-452-2300 or 1-888-SALISHAN. 13 Room reservations must be made by June 13 to ensure availability at the OSIA grouprates. $110.00 Scramble Format General Registration will be available online soon at www.osia.com Arthritis or an Arthritic Condition . . . continued from page 10 Inflammation the affected tissue.” Dorland’s at 897. • Hopkins Definition: The court did not specifically define this term in Hopkins, but it did hold that it does not include acute inflammation due to a traumatic injury, such as a sprained ankle. 349 Or at 361-62. (More about “traumatic arthritis” below under the heading on “constitutional” causes.) “Hypertrophy” is “the enlargement or overgrowth of an organ or part due to an increase in size of its constituent cells.” Dorland’s at 859. It also is defined as “overgrowth or excessive development of an organ or part (as that resulting from unusually steady or severe use or in compensation for an organic deficiency)[.j” Webster’s at 1114. • Key to Proving: This element is the most likely one to be contested or found missing unless it is addressed e ff e c t i v e l y. A g a i n , t h e k e y i s to present medical experts with standard definitions of the term, get them to endorse (or assume) those definitions, and then have them offer an opinion on the kinds and locations of “inflammation” in your case. • Helpful Dictionary Definitions: “Inflammation” is “a localized protective response elicited by injury or destruction of tissues, which serves to destroy, dilute, or wall off (sequester) both the injurious agent and the injured tissue.” Dorland’s at 897. “Acute inflammation” is “inflammation, usually of sudden onset, characterized by the classic signs (see inflammation), in which the vascular and exudative processes predominate.” Dorland’s at 897. Those “classic signs” are identified earlier in the general definition of “inflammation” as “pain (dolor), heat (calor), redness (rubor), swelling (tumor), and loss of function (functio laesa).” “Hypertrophic arthritis” is synonymous with “degenerative a r t h r i t i s / ’ We b s t e r ’ s a t 111 4 ; “osteoarthritis/, Dorland’s at 151; and, in the spine, “spondylosis.” Id. at 1684. “Spondylosis” is a “general term for degenerative spinal changes due to osteoarthritis.” Dorland’s at 1684. “Cervical spondylosis” is “degenerative joint disease affecting the cervical vertebrae, intervertebral disks, and surrounding ligaments and connective tissue, sometimes with pain or paresthesia radiating down the arms as a result of pressure on the nerve roots.” Dorland’s at 1684. “Lumbar spondylosis” is “degenerative joint disease affecting the lumbar vertebrae and intervertebral disks, causing pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by associated protruding disks or osteophytes.” Dorland’s at 1684. “Chronic inflammation” is “inflammation of slow progress and marked chiefly by the formation of new connective tissue; it may be a continuation of an acute form or a prolonged low-grade form, and usually causes permanent tissue damage.” Dorland’s at 897. “Thoracic spondylosis” is not specifically defined, presumably because it is less common than cervical or lumbar spondylosis. To the extent it is present, however, the definitions of cervical and lumbar spondylosis above can be used by analogy to establish the involvement of the vertebrae and intervertebral discs. Thoracic spondylosis was the condition at issue in Hopkins. “Hypertrophic inflammation” is “inflammation marked by increase in the size of the elements composing “Degenerative arthritis” is “arthritis of middle age characterized by degenerative and sometimes 14 hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of apposing joint surfaces with consequent distortion of joint position usu. without bony stiffening.” Webster’s at 593. “Osteoarthritis” is “a noninflammatory degenerative joint disease seen mainly in older persons, characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane. It is accompanied by pain, usually after prolonged activity.” Dorland’s at 1286. (Note: By “noninflammatory” the definition ostensibly seeks to distinguish osteoarthritis from rheumatoid arthritis, which is caused by inflammatory lesions in the synovial membranes. The definition, therefore, should not be read to exclude chronic or hypertrophic inflammation.) Core Element 2: Due to infectious, metabolic, or constitutional causes This element concerns the potential causes of “arthritis.” Infectious •Dictionary Definition: This term connotes invasion and multiplication of microorganisms in the body. Diagnoses include “viral arthritis,” “bacterial arthritis” and “septic arthritis.” Dorland’s at 151. In most cases, this phenomenon should be clear and relatively easy for a doctor to establish through examination and testing. Metabolic •Dictionary Definition: This term connotes internal biochemical processes in the body. Diagnoses include “rheumatoid arthritis” and “crystal-induced” or “gouty arthritis.” Dorland’s at 151. Continued on page 15 Arthritis or an Arthritic Condition . . . continued from page 2 Constitutional •Hopkins Definition: Hopkins defined “constitutional” as “[p]ertaining to the structure of the body.” 349 Or at 350 n 1. Also, “having to do with, inherent in, or affecting the constitution or structure of body or mind.” Id. (quoting Webster’s) •Aging Process: The term includes the aging process according to legislative history recited approvingly in Hopkins, 349 Or at 357 (citing testimony of John Shilts); see also id. at 364 (holding that evidence of “progressive degeneration” was substantial evidence that the worker’s condition was caused by “infectious, metabolic, or constitutional causes”). •Traumatic Arthritis: The term also presumably includes structural change in a joint due to traumatic injury that later leads to “traumatic arthritis.” Such traumatic structural change would satisfy the definition of “constitutional” in Hopkins, recited above, which then could be a gradual cause of “traumatic arthritis.” Core Element 3: Resulting in breakdown, degeneration, or structural change This element concerns the extent to which the condition must progress before it properly can be characterized as “arthritis.” •Hopkins Definition: The Supreme Court In Hopkins did not expressly define the terms “breakdown, degeneration, or structural change.” Based on its discussion and application of the terms, however, the court presumably meant to connote some perceptible change in a joint that affects its configuration or function. Breakdown •Dictionary Definition: “[A] physical, mental, or nervous collapse: a sometimes sudden marked loss of health, strength, faculties, or ability to cope.” Webster’s at 272. Degeneration “Arthritic Condition” •D i c t i o n a r y D e f i n i t i o n : “[D]eterioration; change from a higher to a lower form; especially change of tissue to a lower or less functionally active form.” Dorland’s at 438. “[A] lowering of effective power, vitality, or essential quality to an enfeebled and worsened kind or state.” Webster’s at 593. •Definition: The dictionary defines the word “arthritic” to mean “of, relating to, or affected with arthritis.” Webster’s Third New International Dictionary 123 (unabridged ed 2002); see Karjalainen v. Curtis, Johnson & Pennywise, Inc., 208 Or App 674, 68283 (2006), rev den, 342 Or 473 (2007). Structural Change Helpful Dictionary Definitions: •“Structural” means “pertaining to or affecting the structure.” Dorland’s at 1596. Also, “of, relating to, or involving the physical makeup of a plant or animal body and esp. its plan of organization.” Webster’s at 2266. •“Structure” means” “the components and their manner of arrangement in constituting a whole.” Dorland’s at 1596. •“Change” is “to make different in some particular but short of conversion into something else.” Webster’s at 373. 15 •Broader than “Arthritis”: Given the above definition, to be an “arthritic condition,” a medical condition or disease need not qualify as “arthritis” itself. It need only be associated with, related to, or affected with arthritis. Hence, a condition that is not “arthritis” in isolation, but is a cause or effect of “arthritis” would appear to qualify as “an arthritic condition.” •Key to Proving: Present the above definitions to medical experts, get them to endorse (or assume) those definitions, and have them offer opinions regarding the “arthritic” cause or effect in your case. 16 C UMMINS G OODMAN F ISH D ENLEY & V ICKERS , P.C. I NSURANCE D EFENSE , E MPLOYMENT L AW , W ORKERS ’ C OMPENSATION D EFENSE , OSHA D EFENSE , G ENERAL L ITIGATION AND B USINESS L AW Cummins Goodman Fish Denley & Vickers, P.C. is proud of our long-term association with OSIA. We look forward to continuing our commitment to the organization and its members in the future. Thank you for your continued support and efforts on behalf of the self insured employers in Oregon. CUMMINS GOODMAN FISH DENLEY & VICKERS PC 100 S. COLLEGE STREET • PO BOX 609 • NEWBERG, OREGON 97132-0609 PHONE: 503-476-8200 • FAX: 503-476-8201 • www.cumminsgoodman.com 17 JAMES S. ANDERSON ELLIOTT C. CUMMINS MATTHEW F. DENLEY REUEL K. FISH GEORGE W. GOODMAN ANDREW H. GRAHAM JULIA M. HIER JONATHAN A. ROSE DAMON L. VICKERS DOUG E. WATSON Industry Related Association Meetings It is the goal of OSIA to better inform our membership of industry related meetings and conferences through our newsletter, siCOMPlishments. All future editions of this newsletter will include a calendar of these meetings as well as a contact person for each association. We will be expanding this section as we hear from our membership of associations that they would like included for future issues. In order to add your association to our calendar please contact: Beth Karecki Oregon Medical Evaluations, Inc. 6900 SW Atlanta St., Bldg 2, Ste. 120 Portland, OR 97223 (503) 684-3988 or (800) 490-7800 FAX (503) 684-6077 e-mail: [email protected] DMEC/Disability Management Employer Coalition Oregon/SW Washington Chapter Contact: Casey Parvey, (503) 813-3991 Email: Casey.R.Parvey@kporg Website: www.dmec.org Oregon/SW Washington Chapter Meeting Date: May 4, 2011 Time: 8:00 am to 2:00 pm Location: Kaiser Town Hall Date: October 5, 2011 Time: 8:00 am to 11:30 am Location: Kaiser Town Hall Cost: $35.00 Members; $45.00 Non-Members WCCA/Workers’ Compensation Claims Association Contact: Jeanette Decker, Reservations: (503) 503-574-6205 Email: [email protected] online: www.WCCAonline.org Location: Courtyard by Marriott, 15686 SW Sequoia Parkway, Tigard, OR NEW LOCATION: Hilton Garden Inn, Lake Oswego Lunch Meetings 2011 Dates: May 11th Cost: $20.00 Members; $25.00 Non-Members Time: Registration 11:15 a.m.; 11:30 to 1:00 pm Meeting Fall Seminar Date: Location: Time: Cost: October 11, 2011 Wilsonville, Holiday Inn (503) 570-8500 Registration: 7:00 am Program: 8:00 am to 4:00 pm Members: $75.00 Non-Members: $85.00 Walk-Ins: Additional $5.00 WCCA Golf Tournament & Banquet Contact: Email: Online: Date: Location: Time: Dinner: Karli Olson, 503-841-6994 [email protected] www.WCCAonline.org August 30, 2011 Langdon Farms Golf Club, 24377 NE Airport Road, Aurora, OR, www.langdonfarms.com Check-in: 11:30-1:00 pm Shotgun start: 1:45 pm 6:30 BBQ in new Red Shed WCCA Holiday Dinner Date: December 14, 2011 Location: Embassy Suites TIME: 3:30 pm Registration 4:00 to 5:00 pm Training 5:00 to 5:30 pm Meet & Cocktails 5:30 to 6:30 pm Buffet Dinner 6:30 to 7:00 pm Vote for Sec/Treas & Prize Drawings Cost: $30.00 PWC/Professionals in Workers’ Compensation Contact: Jennifer Flood 503-947-7031 or [email protected] NEW LOCATION: Crowne Plaza (HWY 217 & Kruse Way) Cost: $17.00 Members; $25.00 Non-Members NEW TIME: 11:15 am to 12:45 pm 2011 Meeting Dates: May 18th RIMS/Risk Insurance Management Society Contact: Nick Hilbers Email: [email protected] Phone: (971)-224-1027 Website: www.oregon.rims.org Location: Multnomah Athletic Club Cost: Members: $15.00 Nonmembers: $25.00 Time: 11:30 registration & Lunch 12:30 to 1:00 p.m. On the 3rd Thursday of each month from Sep to May 18 OARP/Oregon Association of Rehabilitation Professionals Contact: Bob Cook: (503) 598-0711 or Website: http://www.oarp.org ALNC/American Association of Legal Nurse Consultants Contact: Peg Woodward (503-452-1748) Email: [email protected] 2011 Dinner Meetings: Location: Oregon Medical Association Time: 6:30 pm to 8:00 pm Dates: TBA 2011 Brown Bag Lunch Meetings: Location: Medical Resource Network, 10725 SW Barbur Blvd, Ste. 200, Portland Time: 11:30 am to 1:00 pm Dates: TBA RSVP’s accepted by mail only to: Peg Woodward, 10725 SW Barbur Blvd., Ste. 200, Portland, OR 97035 (checks made payable to: The Greater Portland/Valley Chapter of the AALNC) Meeting Dates: (Third Wednesday of every other month with alternate Dinner and Lunch Meetings) OMCMG/The Oregon Medical Case Management Group Contact: OMCMG Office phone: 503-224-9460 Fax: 503-243-6685 Website: www.omcmg.org Location: Rotating Hospitals in the Portland Area Lunch Meetings: Registration:11:30 am to 12:00 pm Meeting: 12:00 pm to 1:00 pm Networking: 1:00 pm to 1:30 pm Cost: Members: $10.00 Non Members: $20.00 2011 Lunch Meetings Date: Location: June 2 (‘Infectious Disease”, Pat Preston) OMA (11740 SW 68th Parkway, Tigard, OR 97223 Date: Aug 4 (“Brain Injury: A Physiatrist’s Perspective”, Robert Djergaian, MD) Location: SW Washington Medical Center, Vancouver, WA, Millplain Campus (NE Mother Joseph Place or 600 NE 92nd Ave) Date: Sept 2 (“Vent Weaning 101) Location: Vibra Specialty Hospital (10300 SE Hancock, Portland) continued on page 15 Oregon Released Workers’ Comp Premium Rate Ranking Calendar Year 2010 Portland, OR (CompNewsNetwork) T he final, detailed report of Oregon’s 2010 Workers’ Compensation Premium Rate Ranking Study has been released. The results suggest that Oregon employers in the voluntary market pay, on average, the 41st highest workers’ compensation premium rates in the nation. Oregon’s premium rate index is $1.69 per $100 of payroll. National premium rate indices range from a low of $1.02 per $100 of payroll in North Dakota to a high of $3.33 in Montana. in 2000 at $2.26. After increasing in 2002 and 2004, it decreased to $2.48 per $100 of payroll in 2006 and $2.26 in 2008. For 2010 it has continued its decrease, now to $2.04, which is the all-time low. Tracking the longer-term trends, the national median rate index peaked in 1994 at $4.35 and reached a low point Oregon’s rate index remained at 17 percent below the national median in 2010. Industry Related Association Meetings . . . continued from page 14 OMCMG 2011 Lunch Meetings cont. Date: Oct 6 (Home Infusion) Location: Legacy Meridian Park Medical Center Date: Dec 1 (Holiday Meeting/Fundraiser/ Award Celebration – “Self Care for the Case Manager” Location: OMA Workers’ Compensation Auto/Liability Federal Services Disability Evaluations Peer Review Services Utilization Review Services WMCMA & OMCMG Joint Conference Date: April 30, 2011 Location: Great Wolf Lodge, Grand Mound (Chehalis, WA) Time: 8:45 am to 3:45 pm Cost: TBA Speaker: Teri Treiger, RN-C, MA, CCM, CCP Register: [email protected] or WMCMA: 425-329-9456 Topic: Case Management 2011: Present & Future 3rd Annual July Mixer at the WellSpring Date: TBA Location: Wellspring Center, Woodburn, OR Time: 4:30 pm TO 7:00 pm Topic: The Comedic Stylings of: TBA Cost: Free/ 1 CEU for Case Managers & Social Workers OMCMG Annual Vendor Faire & Conference Contact: Margaret Horn (503) 341-7562 or email: [email protected] Date: November 7, 2011 Location: Sheridan Inn at the Airport Time: Registration: 7:00 am to 8:00 am Meeting: 8:00 am to 4:30 pm Topic: “Case Management: Return on Investment” Cost: Member $85.00 Nonmember $125.00 SERVING AK, ID, OR, WA 1010 SOUTH 336TH STREET SUITE 330 FEDERAL WAY, WA 98003 9221 S.W. BARBUR SUITE 305 PORTLAND, OR 97219 866-253-6959 877-709-8069 Setting the Standard for IME and Peer Review Services Nationwide www.messolutions.com 19 OSIA Board 2010/2011 O SIA P resident O S I A Di r e ct o r O S I A Dir e ct o r Todd Hennelly Andrew H. Graham Tim Meier President Empire Pacific Risk Management Inc 503-968-6300 Fax: 503-968-6305 [email protected] Attorney Cummins Goodman Fish Denley & Vickers PC 503-476-8200 Fax: 503-476-8201 [email protected] MCO Client Rep Providence MCO 503-574-6209 Fax: 503-574-8625 [email protected] O SIA Vice Preside nt O S I A Ma n a g e m e n t S e r vic es Tami Cockeram O S I A Di r e ct o r Bill Cross Risk Manager City of Hillsboro 503-681-6108 Fax: 503-681-5215 [email protected] Jill Jarvi Executive Director Oregon Self Insurers Association 503-873-0985 Fax: 503-873-9389 [email protected] Marketing Director Star Medical Inc 503-620-6625 Fax: 503-620-6725 [email protected] O SIA Secretary/ Tr e as ure r O S I A Ma n a g e m e n t S e r vic es Viki Bisby O S I A Di r e ct o r Cory Cross Senior Analyst City of Portland 503-823-5264 Fax: 503-823-6120 [email protected] John Klor Administrative Services Oregon Self Insurers Association 503-873-0985 Fax: 503-873-9389 [email protected] Shareholder Wallace Klor and Mann PC 503-224-8949 Fax: 503-224-0410 [email protected] O SIA Regular M em be r Representative O S I A Di r e ct o r O S I A Lo b b y is t Drew Hagedorn Casey Parvey Penny Marlette Manager – OccupHealth Sales Kaiser Permanente Health Plan 503-813-3991 Fax: 503-813-4242 [email protected] Field Services Manager City County Insurance Services 503-585-1121 [email protected] Tonkon Torp 503-802-5757 Fax: 503-972-7457 [email protected] O SIA Assoc. Mbr Representat iv e Beth Karecki Marketing Director Oregon Medical Evaluations Inc. 503-684-3988 Fax: 503-684-6077 [email protected] O SIA Director How do you measure an IME? - Objectivity - Impartiality - Accuracy -Timeliness. Mark Davison President Mark John Davison LLC 503-593-8135 Fax: 503-246-2134 [email protected] Scheduling weekly in these locations: Everett Portland Seattle Bellevue Silverdale Salem Bellingham Tacoma Eugene Yakima Medford Tukwila Olympia Spokane Bend Newport Vancouver Tri-Cities O SIA Director Steve Eversmeyer Safety & Loss Control Manager Port of Portland 503-944-7423 Fax: 503-944-7281 [email protected] 1-866-391-9911 ~ www.sunrisemed.nett 20