Human Capital Wears Out

... and only women can get pregnant.

A few days ago the post was about the workers’ compensation appeals process and a woman whose initial ankle injury cascaded into a medical condition for her low back pain and then treatment for depression. Her frailness brought back an economist’s maxim about the human condition of an aging population. That’s why the subtitle of this blog is what it is, human capital wears out. But how the insurance industry and the law view the human condition leads me to think one day the fact women get pregnant may be used against them in the claims process. If you think that notion is far fetched, think again. Shortly after the Pease case was reported a lawyer asked me a question with very similar issues. And so today we discuss whether doctors can refuse to do surgery after a work injury unless female workers stop having sexual relations.

Absurd you ask; absolutely but that’s where they are heading.

FACTS: Client has been treating for a torn rotator cuff. While off work he’s getting weekly benefits (TTD). After 6 months of conservative care the medical doctor prescribes surgery and the client agrees to proceed with surgery. It then comes to the attention of the treating doctor, perhaps based on conversation or on preop blood work or whatever, that client is a smoker. MD tells him he needs to stop smoking for 6 mos before he will perform the type of procedure that he recommends. Now I can fully appreciate that smokers don't heal as well as non-smokers do, but get real, are we going to delay medical treatment based on patient habits? If so is sexual activity similar as a bad habit? 

Here is the question my friend, the Chicago lawyer, posed.

LEGAL ISSUE: If the doctor says no to surgery until after the injured worker stops smoking, then is there an ongoing claim for TTD and, if so, for how long, or is the claim one of intermittent TTD, interrupted by PPD during period of smoking withdrawal, or none of the above?

SUMMARY: For those of you who don’t understand the legal jargon allow me to simplify the issue and the underling facts. A worker is injured and the company doctors say he needs shoulder surgery (In my client's situation it is surgery on his spine for a ruptured disc). But the worker has a bad habit of smoking cigarettes, not very unusual for people to smoke. The doctor says no surgery until you stop smoking because the outcome will likely fail to resolve your medical problems. This is not the first case I’ve seen with this issue; it seems to be the current soup de jure in Iowa workers’ compensation circles. We will shortly file a case with the same issue. Here is the legal issue: Is the employee entitled to receive weekly benefits while they attempt to stop smoking or indefinitely if they are unable to stop smoking?

As I pointed out we have this exact issue in one of our cases and we allowed it to go on without resolution and now the doctor has just released the patient without surgery and declared him at MMI. The underlying spinal condition still exists and the symptoms persist, but the insurance company thinks they are off the hook. We are now left with the same diagnosis but no resolution of his symptoms. Where does this end or does the patient have to suffer lifelong spinal pain?

Here is what I thought at the time. The smoking isn't a condition created by a work injury; it's basically as you describe, a self inflicted wound or a choice having to do with a personal habit adding nothing to the employer's trade or business. As such it's nothing that is causally related to the work injury or work. But it is “medical condition” of the patient and the employer takes the employee as he is; not as the employer wants him to be. People aren’t perfect; they are exactly the opposite, imperfect. Some smoke, but that's all part of the human condition. Human capital wears out so the older you get the more physical problems that exist. And if we can exclude for smoking cigarettes then excluding for weight loss while we wait for the patient to stop eating can’t be far behind. If that be the case these cases, medical and legal, will have no end in sight.

What is the relevance of a system that isn’t in touch with reality?

This is what Occupy Wall Street is about, but OWS has no leader that can articulate a clear message to solidify those who are disenfranchised and no longer find this American economic system relevant.

What bothers me about what the doctors are doing is that smoking and eating aren't different in terms of being a personal choice. If cessation of smoking cigarettes is a reason to do or not perform surgery, than isn't also eating or not eating (weight loss) a valid reason? Where do we stop and start?

Stand up if you’re not overweight on an insurance chart. You get my point, we are all overweight. If the law is going to have any relevance to people it has be realistic in terms of what we consider a game changer. But my colleague adds another layer to this argument that I hadn’t considered.

Colleagues Comment: Perhaps the distinction is that smoking impedes the recovery because of its effects on the oxygen supply in the body and the red blood cells and all of the stuff you already know about. I hadn’t thought about the eating analogy. Pregnancy also interrupts medical care. How is that handled in Iowa?

Yeah what about pregnancy and female medical issues? Can a doctor tell a female patient she can’t have surgery unless she stops having sexual intercourse because a pregnancy will interfere with recovery? Where do we start and stop? And when is sexual activity, like smoking or eating relevant?

Today's music video is a play on words. Never assume without knowing. The name of the group isn't what American's think of when they see the word Viagra. This groups name is VIA Gra.

It’s a play on words, the first three letters stand for "vocal-instrumental ensemble" in Ukrainian, and "gra" means "game" (or "play") in Ukrainian.