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
drew.hagedorn@tonkon.com.
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: osia@osia.com • 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.
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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
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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.
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• 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.
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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
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FAX 503-525-0966
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Representing employers
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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.
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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
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and other Employment
Related Issues
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www.ormedeval.com
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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: bkarecki@ormedeval.com
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: jeanette.decker@providence.org
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
karli@olsonvu.com
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 jennifer.r.flood@state.or.us
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: Nick.Hilbers@OCDC.net
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: pwoodward@medres.net
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: WMCMA@gmail.com 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: mhorn@avamere.com
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
todd.hennelly@empirepac.com
Attorney
Cummins Goodman Fish Denley
& Vickers PC
503-476-8200 Fax: 503-476-8201
ahg@cumminsgoodman.com
MCO Client Rep
Providence MCO
503-574-6209 Fax: 503-574-8625
timothy.meier@providence.org
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
tamic@ci.hillsboro.or.us
Jill Jarvi
Executive Director
Oregon Self Insurers Association
503-873-0985 Fax: 503-873-9389
pres@wvcross.com
Marketing Director
Star Medical Inc
503-620-6625 Fax: 503-620-6725
jill@starmedical.us
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
vbisby@ci.portland.or.us
John Klor
Administrative Services
Oregon Self Insurers Association
503-873-0985 Fax: 503-873-9389
osia@osia.com
Shareholder
Wallace Klor and Mann PC
503-224-8949 Fax: 503-224-0410
jklorr@wallaceklormann.com
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
Casey.r.parvey@kp.org
Field Services Manager
City County Insurance Services
503-585-1121
pmarlette@cisoregon.org
Tonkon Torp
503-802-5757 Fax: 503-972-7457
drew.hagedorn@tonkon.com
O SIA Assoc.
Mbr Representat iv e
Beth Karecki
Marketing Director
Oregon Medical Evaluations Inc.
503-684-3988 Fax: 503-684-6077
bkarecki@ormedeval.com
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
mark.mjdavison@gmail.com
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
Steve.eversmeyer@portofportland.com
1-866-391-9911 ~ www.sunrisemed.nett
20