Patrick Robinson, the workers’ comp judge from District 1W (Shreveport) recently confirmed his official appointment as Director of the Louisiana Office of Workers’ Compensation (OWC.) He holds the position on an interim/semi-permanent basis until a new gubernatorial administration is elected and in place.
Louisiana Comp Blog met with Robinson to discuss his goals for the OWC with himself at the helm, the issues surrounding the fee schedule update, and how he thinks the comp world will change and adjust in the coming decade. What follows is a candid look at the life and times of our new top regulator in the local comp community.
Comp Blog: To help us get to know you, what is your personal background? Are you from Louisiana originally?
Patrick Robinson: Yes I’m originally from Shreveport and grew up there. I went to college in Hammond at Southeastern, was in the Army for three years at Fort Polk and then back to law school. I practiced in Shreveport for about two and a half years and then came back down here to Baton Rouge and practiced with LWCC briefly and Liberty Mutual, plus a little private work. And then, when the judgeship opened up in Shreveport in 2011 I went back up there.
Comp Blog: What is the best thing about being a judge and do you plan to continue?
Robinson: I tell all of my friends who are lawyers that if they have a chance to be a judge, even for a little while, that they should take it. It gives you a different, unique perspective on the law and allows you to take a step back and see the issue overhead rather than being directly involved and invested in either side. It’s something I really enjoy doing and right now I’m just on leave from my position in Shreveport until the end of the administration in December. So I’ll go back to doing that when I’ve finished [the Interim Directorship.]
Comp Blog: Do you think you would have any desire to extend your tenure as Director beyond the new administration if the offer was extended?
Robinson: Well, there are a lot of variables involved in that, this is an interesting job for sure. Ask me again in December and I’ll let you know.
Comp Blog: What new perspective did you gain from witnessing the adversarial aspects of the comp system from a judge’s vantage point?
Robinson: Well luckily, in addition to my work on the carrier/employer side with LWCC and Liberty Mutual, I also opened up a practice and represented primarily claimants for a few years. So I developed a sense of both sides – and there are real difficulties on both sides. That gave me an appreciation for those difficulties.
In my experience, the attorney for either party would really rather settle the case, the really tough job that the attorney has is acting as a buffer between the client and the opposing party. The lawyers know the law and the lawyers know the judges, so they have an idea generally how things are going to come out. It’s not a uniform rule certainly, some [attorneys] like to fight more than others, but I think the good ones serve as a buffer and generate a quick and fair resolution of cases when they can.
Comp Blog: Moving toward your present position, who approached you about the Director position and how did that conversation get going?
Robinson: Wes Hataway approached me in the Fall about it. I believe Wes is either the longest-serving and second-longest serving Director of the OWC to date. It’s probably a position that starts to wear on you after a few years, I can already tell that. At one point, [Hataway] indicated that he would be leaving prior to the end of the administration and asked me if I was interested. I told him I was [interested initially] and he spoke with Executive Director [of the Louisiana Workforce Commission] Curt Eysink and we discussed it between the three of us. In the end, everything worked out.
Comp Blog: What does a typical day as Director of the OWC look like?
Robinson: It is really such a unique position. I like to tell people that it’s a series of meetings with the same people at different places, and there’s a little bit of truth to that.
Some of [the job responsibilities] are putting out fires, for example, giving general guidance about the system to an employee that feels like he’s being treated unfairly. But a lot of it is just meeting with the stakeholders and getting input from everybody about the things that they think need to be corrected. The fee schedule for instance is a big one. The goal is to broker a solution that makes everybody happy, or at least makes everyone equally unhappy.
Comp Blog: There has been a lot of buzz surrounding the fee schedule update, both in light of the recent Legislative Auditor’s report and the WCRI Medical Cost Index for our state. What additional information can you give us about that? Is legislative action needed or can this be addressed through the rulemaking process?
Robinson: The fee schedule as it stands right now is authorized under section 1034.2 of the workers’ comp act, but, the fee schedule in terms of the actual numbers is a rule; it’s part of the administrative code. So all we’re doing is updating that rule. More wholesale changes would and, if the Legislature decides to do that, will require legislation [to change the statute.] We don’t have the authority to make huge changes but we do have the authority under the current law to adjust these fees within the confines of 1034.2.
The significant problems with the fee schedule are a per diem which is artificially low and an outpatient level of expense that is too high. My understanding in talking to providers is that the outpatient charges have been inflated in large part because of the [artificially low] per diem, to balance that out. Another issue is pain management fees that are significantly higher than average, we need to establish some predictability there. These are all concerns that, to the extent we can, we are going to address in the update.
Comp Blog: Predictability has been a consistent complaint from the employer/carrier side with respect to outpatient surgery, can you comment further on that?
Robinson: The Medical Treatment Guidelines have done a significant amount of work in leveling out medical cost per claim. The stats that we’re seeing since 2011 [when the MTGs were implemented] show a reversal of the upward trend we had been seeing, with much more consistent numbers, and even turning downward a bit. So that’s controlling costs.
The fee schedule is not meant to take a wholesale red pen to everything and make it all ridiculously inexpensive; you don’t want to price doctors out of workers’ comp because that creates access to care issues. The fee schedule is meant to control some of things are are going uncontrolled at this point and bring them in line with reasonable charges so that carriers can reserve files properly and the system can run smoothly.
In addition, litigation costs on the “usual and customary” aspect are just huge and one of the consequences of that is the fact that our defense costs on claims in Louisiana are just out of line with the rest of the region. We need to answer these questions [regarding what is usual and customary] instead of leaving them to be litigated. Everyone may not be entirely happy with the answer, but at least you know what the answer is and you don’t have to go to court and fight about it.
Comp Blog: Are there any other hot button issues you’re sensing for our state, whether or not you’ll be able to address them during your Directorship?
Robinson: One of the things is to get an update to the Medical Treatment Guidelines. The Medical Director and the Associate Medical Director are working on that and we’ll be meeting with the Medical Advisory Council in April with some proposed updates to the Guidelines and try to get through the rulemaking process.
The other thing hot button issue is a formulary. I think some of this talk has been resolved by the caselaw. The caselaw has been saying that the employer has the choice of pharmacy, so that will get some control of pharmaceutical expenses. Whether a formulary is necessary or appropriate is something that I think we need to talk about between now and the end of the year, it has to be addressed. The objections to the Texas-style formulary are related to the fact that it’s an ODG [Work Loss Data Institute: Official Disability Guidelines] standard. The positive goals of a formulary though would be cost-savings sure, but also, it could help curb some of the opioid addiction issues we’re seeing. There are of course, employees who need narcotic medication, and then there are those who do not. It’s not just a workers’ comp issue it’s a national and international issue. Workers’ comp can’t solve the problems of the world, but we can do something.
Comp Blog: Have you handled or presided over any cases involving opioid addiction in your career?
Robinson: I had a case in Shreveport where a lady had failed back syndrome from unsuccessful surgeries and could still do some level of work, but for ten years she’d been taking narcotics. From a practical standpoint, no one was going to hire her – no employer wants an employee who is taking multiple narcotics every day. Plus, the additional health issues that taking those medications over the long term causes are a deterrent to hiring that person. But the court of appeal said that the fact that she may have been addicted to narcotics didn’t qualify as a physical disability that allowed her to have any kind of ongoing benefits. So she’s out there, addicted to medication, unable to work, unable to get benefits through the workers’ comp system. That’s a bad result and the system as a whole failed her because individuals within that system failed her. There are a lot of people out there with similar stories.
Comp Blog: By way of conclusion, where do you see workers’ comp going in the next decade, either locally or nationally?
Robinson: I’m just trying to get to December!
Opt-out and the exclusive remedy challenges I know are big. Look, I believe in our system, but we need to stop throwing it out of balance. In ten years do we still have this system? I hope so, I think our system often gets good results and meets its intended purposes. We need to focus on the things that everybody can get on board for, like effective and safe return to work. People lose sight of the majority and get jaded and that’s unfortunate.