¹ Legal academics have previously discussed the concept of separatist legal institutions in the context of judicial adjudication of disputes involving scientific and technological issues. See, e.g., Carter, Stephen L., Separatism and Skepticism, 92 Yale L.J. 1334, 1334-39 (1983)CrossRefGoogle Scholar; Yellin, Joel, High Technology and the Courts: Nuclear Power and the Need for Institutional Reform, 94 Harv. L. Rev. 489, 555-58 (1981)CrossRefGoogle Scholar; Yellin, Joel, Science, Technology, and Administrative Government: Institutional Designs for Environmental Decisionmaking, 92 Yale L.J. 1300, 1306-09 (1983)CrossRefGoogle Scholar. Separatists argue that scientific issues should be separated from legal and policy issues and decided by scientific experts. Thus, science courts—composed of scientific experts—should decide scientific and technological issues, and law courts should be deferential to the decisions rendered by science courts. See Yellin, supra, 92 Yale L.J. at 1308-09. In this Article, I contend that an analogous phenomenon has in fact occurred in the workers’ compensation system. Separatist businesses have failed to integrate the science of occupational medicine into their administrative practices and instead have presumed that physicians practicing in the community can take care of the medical aspects of workers’ compensation. However, this separatist approach is flawed because community physicians, by- and-large, do not have occupational medicine expertise and thus have not initiated important public health measures, such as return-to-work and accident-prevention programs. Thus, I argue that private regulation in the form of managed care systems should be created to encourage the application of known scientific principles to workplaces by breaking down the administrative barriers created by the current separatist approach.

² See Spieler, Emily A., Perpetuating Risk? Workers’ Compensation and the Persistence of Occupational Injuries, 31 Hous. L. Rev. 119, 185-87 (1994)Google Scholar [hereinafter Spieler, Perpetuating Risk?].

³ See id. at 122.

⁴ See Solomon, Barbara, Using Managed Care to Control Workers’ Compensation Costs, Compensation & Benefits Rev., Sept.-Oct. 1993, at 59, 59.CrossRefGoogle Scholar

⁵ See Resnick, Rosalind, Managed Care Comes to Workers’ Compensation, Bus. & Health, Sept. 1992, at 32, at 34.Google ScholarPubMed

⁶ See, e.g., Doherty, Kathleen, It’s High Noon for Workers’ Comp, Bus. & Health, Dec. 1989, at 36, 36Google Scholar; Leavenworth, Geoffrey, The Lowdown on Those Plummeting Workers’ Comp Costs, Bus. & Health, Apr. 1995, at 37, 37Google ScholarPubMed; Ryan, John, A Broad Brush Approach to Managed Care, Risk Mgmt., June 1992, at 46, 48.Google Scholar

⁷ See Hauboldt, Richard, Managed Care: Workers’ Compensation, Med. Group Mgmt. J., Mar.-Apr. 1994, at 10.Google ScholarPubMed

⁸ See Cerne, Frank, Managed Care: Lowering the Boom on Workers’ Comp, Hosp. & Health Networks, Aug. 20, 1994, at 50, 50.Google ScholarPubMed

⁹ In particular, many surgical specialists, such as orthopedic surgeons, maintain a policy of not treating workers’ compensation patients because of substantial differences in compensation compared to mainstream medical practice.

¹⁰ Workers’ compensation programs have not yet embraced managed care programs on a large-scale basis as compared to the mainstream medical care system. See Polakoff, Phillip L. & O'Rourke, Paul F., Managed Care Applications for Workers’ Compensation, Bus. & Health, Mar. 1987, at 26, 26.Google ScholarPubMed

¹¹ See Resnick, supra note 5, at 32, 35.

¹² Currently, worker’s compensation systems do not reward physicians for treatments that result in returning employees to their employment promptly. See Cerne, supra note 8, at 52.

¹³ In Massachusetts, for example, a statute gives responsibility for developing treatment guidelines to the health care services board, comprised of physicians and community members. See Mass. Gen. Laws Ann., ch. 152, § 13(3) (West 1988 & Supp. 1996).

¹⁴ See, e.g., id. § 13(2).

¹⁵ In utilization review, the agent pre-approves a set amount of treatment by the provider and thus assists in the planning and delivery of health care. See Costigan, Michael R. & Robertson, Dwight L., Workers’ Compensation: What Works in Managed Care, Risk Mgmt., Nov. 1992, at 59, 60, 62Google ScholarPubMed. For a more general description of utilization review techniques, see Lamprey, Joanne & Corcoran, Charlotte K. , Utilization Review: Changing Perspectives, in Making Managed Healthcare Work: A Practical Guide to Strategies and Solutions 401, 401-14Google Scholar (Peter Boland ed., 1993) [hereinafter Making Managed Healthcare Work].

¹⁶ For a description of state-sponsored HMO and PPO pilot projects, see Kohn, David, State Report: Florida Mandates Managed Workers’ Comp, Bus. & Health, Apr. 1994, at 98, 98-99Google Scholar; Resnick, supra note 5, at 34-35, 38-39; Solomon, supra note 4, at 63-64.

¹⁷ See Solomon, supra note 4, at 62.

¹⁸ For examples of state pilot projects involving use of capitation, see Leavenworth, supra note 6, at 38; Tweed, Vera, Moving Toward 24-Hour Care, Bus. & Health, Sept. 1994, at 54, 58.Google ScholarPubMed

¹⁹ For a general discussion describing the capitation method, see Kongstvedt, Peter R., Compensation of Primary Care Physicians in Open Panels, in The Managed Health Care Handbook 55, 55-61 (Kongstvedt, Peter R. ed., 2d ed. 1993)Google Scholar.

²⁰ See ASHFORD, NICHOLAS A. & CALDART, CHARLES C., Technology, Law, and The Working Environment 453-60 (1991)Google Scholar; KEETON, W. PAGE ET AL., Prosser and Keeton on Torts § 80, at 573 (1984)Google Scholar. For a more detailed historical account, see, for example, Watson, Timothy A. & Valen, Michael J., A Historic Review of Workers’ Compensation Reform in Florida, 21 Fla. st. U. L. Rev. 501, 502-03 (1993)Google Scholar; Gurtler, Paul R., Comment, The Workers’ Compensation Principle: A Historical Abstract of the Nature of Workers’ Compensation, 9 Hamline J. Pub. L. & Pol'y 285, 285, 293-95 (1989)Google Scholar.

²¹ Leslie, I. Boden, Workers’ Compensation, in Occupational Health: Recognizing and Preventing Work-Related Disease 201, 201-02 (Levy, Barry S. & Wegman, David H. eds., 3d ed. 1995)Google Scholar [hereinafter Occupational Health].

²² Subsequently, the federal government established workers’ compensation systems for its employees. See id.

²³ Id. Most of the statutes limit the use of workers’ compensation law to accidental injuries. See Keeton et al., supra note 20, at 575.

²⁴ Brigham, Christopher R. & Engelberg, Alan L., The Disability/Impairment Evaluation, in A Practical Approach to Occupational and Environmental Medicine 85, 89-91 (McCunney, Robert J. ed., 2d ed. 1994)Google Scholar [hereinafter A Practical Approach].

²⁵ Id. at 89 90.

²⁶ Id. at 89.

²⁷ See Keeton et al., supra note 20, at 574 (“[T]his remedy is in the nature of a compromise.”).

²⁸ Junius C. McElveen, Jr. & Thomas Beck, Legal and Ethical Issues, in A Practical Approach, supra note 24, at 20, 21. Data show that there is approximately a 60% wage replacement for occupational injury victims and 40% for those who are severely disabled from occupational disease. U.S. Dep't of Labor, an Interim Report to Congress on Occupational Diseases (1980), reprinted in Ashford & Caldart, supra note 20, at 462 [hereinafter U.S. Dep't of Labor Interim Report].

²⁹ See Spieler, Perpetuating Risk?, supra note 2, at 209.

³⁰ The basic exceptions to exclusivity include intentional misconduct by employers, see keeton et al., supra note 20, at 576-77, or when an employer acts in a dual capacity as an employer and a manufacturer- supplier of a product which harms an employee.

³¹ See Brigham & Engelberg, supra note 24, at 85.

³² See id. For recent legal cases that define the role of IME physicians in Massachusetts, see Neff v. Commissioner of the Dep't of Indus. Accidents, 653 N.E.2d 556 (Mass. 1995) (holding that workers’ compensation statute implicitly confers authority to grant waivers to indigent claimants of required IME fee); Scheffler’s Case, 643 N.E.2d 1023 (Mass. 1994) (holding that IME report was prima facie evidence for issues of medical matters and vocational status or ability to perform a specific job); Murphy v. Commissioner of the Dep't of Indus. Accidents, 635 N.E.2d 1180 (Mass. 1994) (holding unconstitutional provisions regarding payment of fees). For recent criticism of expert testimony, see Katz, Jay, “The Fallacy of the Impartial Expert" Revisited, 20 Bull. Am. Acad. Psychiatry L. 141 (1992)Google ScholarPubMed.

³³ The administrative judge decides on the merits of the workers’ compensation claim. See, e.g., Mass. Gen. Laws Ann. ch. 152, § 45 (West 1988).

³⁴ Scarzafava, Gary A. & Herrera, Frank Jr., Workplace Safety—The Prophylactic and Compensatory Rights of the Employee, 13 St. Mary’s L.J. 911, 942 (1982)Google Scholar.

³⁵ Id.

³⁶ See Hylton, Keith N. & Laymon, Steven E., The Internalization Paradox and Workers’ Compensation, 21 Hofstra L. Rev. 109, 126-29 (1992)Google Scholar.

³⁷ See CALABRESI, GUIDO, The Costs of Accidents: A Legal and Economic Analysis 95-129 (1977)Google Scholar. Thus, workers’ compensation, like tort law, may encourage specific deterrence of imposing economically unreasonable risks on employees. This specific deterrence approach contrasts with the general deterrence by regulations that discourage the imposition of defined categories of risks. Specific deterrence presumes that employers will rationally invest in safety, based on free market pressures, in contrast to general deterrence by regulation. See id. at 95.

³⁸ The only law review article which examines in detail the workers’ compensation system as a healthcare delivery system is Ballen, Debra T., The Sleeper Issue in Health Care Reform: The Threat to Workers’ Compensation, 79 Cornell L. Rev. 1291 (1994)Google ScholarPubMed. The article examines the policies underlying the proposed Clinton health care reform proposal for extending 24-hour coverage to workers’ compensation patients. Twenty-four-hour coverage programs provide health care to both workers’ compensation and mainstream patients within the same system. While this approach removes health care providers’ incentive to misclassify patients in order to receive the higher reimbursement, it does not necessarily dissolve the separation in workers’ compensation between health care delivery and administrative systems as described herein, see infra part IV. Instead, 24-hour coverage programs may perpetuate this separation by allowing health care providers to treat workers’ compensation patients in the same manner as mainstream patients, despite the advantages of instead promoting high quality care, injury-prevention, and return-to-work programs.

³⁹ See, e.g., Doherty, supra note 6, at 36 (quoting AFL-CIO workers’ compensation expert stating that “workers’ comp is not a benefit—it’s a statutory right”).

⁴⁰ See, e.g., Boden, supra note 21, at 202.

⁴¹ See Cerne, supra note 8, at 52.

⁴² See Dobyns, James H., Role of the Physician in Workers’ Compensation Injuries, 12A J. Hand Surgery 826, 826, 828 (1987)CrossRefGoogle Scholar.

⁴³ The medical record contains the health care provider’s description of how the workplace accident occurred, as well as a description of the physical examination of the injured employee.

⁴⁴ An injured employee may be partially or totally disabled. Furthermore, this disability may be temporary or permanent.

⁴⁵ Insurers hire IME physicians to see patients and review their medical records to make these decisions. In Massachusetts, insurers are allowed to discontinue indemnity and medical payments to the employee “if the IME determines that the employee is capable to return to the job he or she held at the time of the injury.” Mass. Gen. Laws Ann. ch. 152, § 8(1), (2)(d), (4) (West Supp. 1996).

⁴⁶ See id. § 8(2)(d).

⁴⁷ See Spieler, Perpetuating Risk?, supra note 2, at 122-23.

⁴⁸ Id.

⁴⁹ See Solomon, supra note 4, at 59.

⁵⁰ Taylor, Marvin E., Return to Work Following Back Surgery: A Review, 16 Am. J. Indus. Med. 79, 79 (1989)CrossRefGoogle ScholarPubMed.

⁵¹ See Solomon, supra note 4, at 59.

⁵² Id. at 59-60.

⁵³ Spieler, Perpetuating Risk?, supra note 2, at 130-39.

⁵⁴ Id. at 123.

⁵⁵ Id. at 129-61.

⁵⁶ Id. at 123.

⁵⁷ Id.

⁵⁸ Id. at 125-26. Besides describing the paradox concerning the failure of businesses to invest in prevention of workplace injuries despite apparent economic advantages, Professor Spieler also addresses the causes of this phenomenon. She provides four interrelated explanations including: (1) the workers’ compensation paradigm that assumes an inevitableness of workplace harms and relieves employers of fault; (2) the workers’ compensation insurance system that dilutes the deterrent effect of costs; (3) employers’ tendency to decrease claims costs independent of the injury rate; and (4) employer ignorance about the effectiveness of prevention. Id. at 161-244.

While I draw similar conclusions about the etiology of the failure by employers to invest in programs aimed at prevention and mitigation of workplace injuries and diseases, this Article’s explanation is not limited in its focus on employers’ beliefs and inaction. Rather, it provides a description based on perceptions and attitudes of employees and health care providers as well. Moreover, this Article addresses this problem in the context of the advent of managed care and capitation in workers’ compensation. This Article proposes that, given the inevitability of the imposition of managed care in this arena, this new regulatory effort should not perpetuate or even expand the systemic flaw which permits the apparent lack of effect of rising workers’ compensation costs on incentives to reduce and mitigate injuries associated with workplaces. Instead, this Article argues that managed care should be implemented in a manner that reduces total workplace costs, rather than focusing only on treatment costs. Professor Spieler does not address the role of managed care in workers’ compensation.

⁵⁹ Solomon, supra note 4, at 59-64.

⁶⁰ Leavenworth, supra note 6, at 37 (citing a 1994 Louis Harris & Associates study that surveyed risk managers).

⁶¹ See Doherty, supra note 6, at 36.

⁶² Id.

⁶³ Id.

⁶⁴ For example, because fee schedules set a ceiling on reimbursements, they prevent health care providers from relying on treatments that may be more expensive and yet economically worthwhile because of effectiveness in returning patients to their jobs. Similarly, within HMOs, preferred provider networks, and capitated systems, conventional managed care emphasizes reductions in amount of treatment and referral to specialists.

⁶⁵ By using the term welfare benefit, I refer to the ability of state legislatures to reduce the amount provided to claimants by legislation or changes in regulation. In contrast, the term legal right refers to those benefits granted to defined classes of people which cannot be reduced by simple legislation or regulation, but which requires amendments to state or federal constitutions. Thus, I do not differentiate between benefits based on need as compared to other entitlements. My use of this terminology instead turns on the degree to which our society guarantees the workers’ compensation benefit. This approach distinguishes between gratuities which can be easily reduced and entitlements which require greater efforts to change.

⁶⁶ See supra notes 31-37 and accompanying text.

⁶⁷ Medicare and Medicaid programs bear similarity to workers’ compensation systems because they function as social insurance programs subject to statutory or regulatory changes.

⁶⁸ See Scarzafava & Herrera, supra note 34, at 944.

⁶⁹ See, e.g., Gurtler, supra note 20, at 294 (characterizing workers’ compensation as a social benefit); Spieler, Perpetuating Risk?, supra note 2, at 180-81 n.254 (comparing workers’ compensation to other social insurance programs).

⁷⁰ Cf. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) (upholding constitutionality of retirement act that reduced retirement and disability benefits based on the need to prevent threatened bankruptcy of the retirement system).

⁷¹ 862 S.W.2d 61, 86 (Tex. Ct. App. 1993).

⁷² Id.

⁷³ Id. at 88.

⁷⁴ Id. at 86. The Texas Supreme Court ultimately overruled the appellate court and held that, the reform legislation provided an adequate remedy to employees so as not to violate of the state constitution. 893 S.W.2d 504, 521-22 (Tex. 1995).

⁷⁵ See, e.g., Spieler, Perpetuating Risk?, supra note 2, at 180-81 n.254.

⁷⁶ Fee schedules set the upper limits of reimbursements, and thus fail to assure quality of care.

⁷⁷ See Spieler, Perpetuating Risk?, supra note 2, at 180-81 n.254.

⁷⁸ Typically, a primary care or emergency room physician treats the injured employee after a work- related accident. Thus, the vast majority of work-related injuries and diseases are treated within mainstream medicine, but are not subject to managed care regulation. See Polakoff & O'Rourke, supra note 10, at 26.

⁷⁹ Large businesses may hire in-house health care providers to treat employees, but usually injured employees seek their own physicians within mainstream medicine. See id.

⁸⁰ Nor are insurers likely to serve as coordinators of legal and medical issues under the current system. Insurers have mainly acted as financial institutions that charge appropriate premiums and pay out or deny claims. Outside of this function, insurers have largely limited their activities to implementing traditional managed health care directives, such as utilization review of medical providers. Insurers have not generally undertaken the role of inspecting workplaces or requiring programs to reduce accident costs through adoption of appropriate return-to-work programs, for example.

⁸¹ See, e.g., Tonti, Don G., Healthletics Program, in Workers' Compensation: Strategies for Lowering Costs and Reducing Workers' Suffering 23, 31 (Welch, Edward M.ed., 1989)Google Scholar [hereinafter Workers' Compensation: Strategies] (citing an example of instituting an early intervention program that initially increased reports of injuries).

⁸² Id.

⁸³ See REICH, ROBERT B., The Next American Frontier 144 (1983)Google Scholar; Hayes, Robert H. & Abernathy, William J., Managing Our Way to Economic Decline, Harv. Bus. Rev., July-Aug. 1980, at 67, 68-69Google Scholar; Repetti, James R., Corporate Governance and Stockholder Abdication: Missing Factors in Tax Policy Analysis, 67 Notre Dame L. Rev. 971, 980-83 (1992)Google Scholar.

⁸⁴ See Logue, Dennis E., Shareholder Wealth and Management Compensation, Corp. Acct., Winter 1984, at 38Google Scholar; Repetti, supra note 83, at 981; Tylecote, Andrew, Time Horizons of Management Decisions: Causes and Effects, 14 J. Econ. Stud. 51, 58-59 (1987)CrossRefGoogle Scholar.

⁸⁵ Personnel departments usually obtain medical information either from outside consultants, community providers, or environmental health and safety sources. Employees themselves may be reluctant to file workers’ compensation claims. See Spieler, Perpetuating Risk?, supra note 2, at 217-18.

⁸⁶ See id. at 127.

⁸⁷ One approach for identifying high-hazard jobs—passive surveillance—relies on medical, insurance, and safety records and may underestimate the true extent of cumulative trauma problems. W. Monroe Keyserling, Occupational Ergonomics: Promoting Safety and Health Through Work Design, in Occupational Health, supra note 21, at 161, 175.

⁸⁸ See id.

⁸⁹ One commentator contends that the workers’ compensation system does not reduce the costs of accidents because of this incentive to underreport claims rather than to make the workplace safer. See Spieler, Perpetuating Risk?, supra note 2, at 217-37.

⁹⁰ See id. at 231-33.

⁹¹ The failure to internalize these costs means that nonworkers’ compensation insurers and employees pay the medical costs. Employers do not bear the costs and thus do not experience the financial pressure to reduce these costs.

⁹² See supra notes 75-79 and accompanying text.

⁹³ See Calabresi, supra note 37, at 95-96.

⁹⁴ See Donald E. Galvin, Disability Management: An Overview of a Cost-Effective Human Investment Strategy, in Workers' Compensation: Strategies, supra note 81, at 39, 49.

⁹⁵ See ROBINSON, CYNTHIA, Office of Policy Research, California Dep't of Ins., Lowering Workers' Compensation Insurance Costs by Reducing Injuries and Illnesses at Work 99-100 (1993)Google Scholar [hereinafter California Insurance Study].

⁹⁶ A separatist administrative system, by definition, views health care financing as independent from indemnity payments. Such a system concentrates on reducing health care financing without taking into account that certain reductions in health care financing may increase indemnity payments because they reduce the quality of health care that, in turn, increases lost work time. Similarly, a separatist administrative system does not consider the alternative possibility that increasing health care financing may reduce total workers’ compensation costs if it results in improving the quality of health care in a manner that reduces lost work time.

⁹⁷ Fee schedules control costs by setting a ceiling on the payment for procedures or provider visits. Thus, the quality of care rendered remains unregulated by fee schedules.

⁹⁸ Injury-prevention and return-to-work programs require integration of the administrative and the medical care systems. See infra part V.B.

⁹⁹ Under workers’ compensation, the employer bears financial responsibility for all injuries arising from the workplace, without regard to the employer’s or employee’s negligence. See DOBBS, DAN B., Torts and Compensation: Personal Accountability and Social Responsibility for Injury 870 (1993)Google Scholar. Thus, workers’ compensation should ideally provide a financial incentive to employers to make the work place safer. In comparison, the public-at-Iarge pays for general welfare programs. See Spieler, Emily A., Injured Workers, Workers’ Compensation, and Work: New Perspectives on the Workers’ Compensation Debate in West Virginia, 95 W. Va. L. Rev. 333, 357 (1993)Google Scholar [hereinafter Spieler, Injured Workers].

¹⁰⁰ Dobbs, supra note 99, at 870.

¹⁰¹ Under workers’ compensation, employers bear the sole burden of paying medical bills. Unlike private insurance programs for mainstream medicine, workers’ compensation does not require employees to pay deductibles. See Doherty, supra note 6, at 38.

¹⁰² See Spieler, Injured Workers, supra note 99, at 357 (workers’ compensation is enmeshed with social concerns including the social responsibility of employers).

¹⁰³ See supra notes 71-74 and accompanying text.

¹⁰⁴ Because the welfare benefit paradigm focuses on reductions in health care financing, this approach ignores total costs including indemnity payments.

¹⁰⁵ See infra part VI.

¹⁰⁶ See, e.g., Doherty, supra note 6, at 36.

¹⁰⁷ See id.

¹⁰⁸ See id.

¹⁰⁹ See Peirce, Ellen R. & Dworkin, Terry M., Workers’ Compensation and Occupational Disease: A Return to Original Intent, 67 Or. L. Rev. 649, 652-55 (1988)Google Scholar.

¹¹⁰ Id. at 651.

¹¹¹ See Watson & Valen, supra note 20, at 501.

¹¹² See Ballen, supra note 38, at 1293.

¹¹³ See Doherty, supra note 6, at 38.

¹¹⁴ 862 S.W.2d 61 (Tex. Ct. App. 1993). At present, there are no published cases which directly address whether managed care provisions in a workers’ compensation system may violate the rights of employees.

¹¹⁵ 893 S.W.2d 504, 516 (Tex. 1995).

¹¹⁶ 862 S.W.2d at 81-88, 93-96 (finding that the act violated Texas constitutional provisions guaranteeing rights to open courts, due course of law, equal protection, and jury trials).

¹¹⁷ Id at 86.

¹¹⁸ Id. at 87. In other words, the impairment-based system that required a 15% threshold was not an “adequate or reasonable substitute" for common law negligence actions. Id. at 86.

¹¹⁹ The Texas Supreme Court, however, ultimately overruled the appellate court and found that the reform legislation provided an adequate remedy. 893 S.W.2d at 521.

¹²⁰ See Ballen, supra note 38, at 1293.

¹²¹ Traditional managed care programs may not contain the kind of providers necessary to care for injured employees. See Costigan & Robertson, supra note 15, at 60.

¹²² Thus, the health care provider not only treats the injury or disease, but also influences whether it will be categorized as a workers’ compensation case as well as the amount of compensation obtained. This additional responsibility may encourage more doctor shopping as compared to that found within the regular health care delivery system. See Ballen, supra note 38, at 1293.

¹²³ Studies show that workers’ compensation patients take longer to recover and require more treatment than similar patients in the regular health care delivery system. See Greenough, C.G. & Fraser, R.D., The Effects of Compensation on Recovery from Low-Back Injury, 14 Spine 947, 953 (1989)CrossRefGoogle ScholarPubMed; Tweed, supra note 18, at 56.

¹²⁴ See Ballen, supra note 38, at 1293.

¹²⁵ Thus, managed care programs have grown in number during the past several years to keep medical costs reasonable. See id. at 1293-94.

¹²⁶ See Elhauge, Einer, Allocating Health Care Morally, 82 Cal. L. Rev. 1449, 1465-72 (1994)CrossRefGoogle ScholarPubMed. For an outstanding discussion about limitations of the rights paradigm generally, see Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse (1991)Google Scholar.

¹²⁷ See Elhauge, supra note 126, at 1465-72.

¹²⁸ See id. at 1525-26 (noting the importance of allowing individuals to choose their care-allocating plan).

¹²⁹ Managed care has become the dominant force in mainstream health care delivery. See Peter Boland, Market Overview and Delivery System Dynamics, in Making Managed Healthcare Work, supra note 15, at 3, 3.

¹³⁰ The most common forms of cost controls have been fee schedules and utilization review. See supra note 41 and accompanying text.

¹³¹ See id.

¹³² Health care providers do not have a comparable right to gain access to workplaces, although individual employees may provide information to their providers concerning workplace safety.

¹³³ Health care providers do not possess the same authority as, for example, Occupational Safety and Health Administration inspectors.

¹³⁴ Physicians should identify the optimal time to return to work prior to complete recovery. They should not, however, recommend return to work if the patient cannot withstand the demands placed on him or her by the restricted duty. See Imbus, Harold R., Clinical Aspects of Occupational Medicine, in Occupational Medicine 3, 10 (Zenz, Carl et al. eds., 3d ed. 1994)Google Scholar.

¹³⁵ See, e.g., Texas Workers’ Compensation Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995) (sustaining validity of workers’ compensation reform against constitutional challenge by employees and unions).

¹³⁶ See Lee, S.Newman, Occupational Illness, 333 wNew Eng. J. Med. 1128, 1128(1995)Google Scholar.

¹³⁷ Traditional medicine disciplines focus on the internal biology of patients. Primary care disciplines include internal medicine, family medicine, and pediatrics. Internists focus on the internal biology of adults, while pediatricians specialize in treatment based on the internal biology of children. Family medicine practitioners take a broader view of the dynamics of families, but still focus on internal medicine and pediatrics. The discipline of occupational and environmental health represents a relatively new approach to medicine, by focusing on environmental determinants of disease.

¹³⁸ Mainstream managed care programs thus focus on reductions in mortality and morbidity rates as criteria for quality of care. See Kathleen Jennison, Organizational Dynamics of Quality Control, in Making Managed Healthcare Work, supra note 15, at 421, 427.

¹³⁹ See Mariner, Wendy K., Outcomes Assessment in Health Care Reform: Promise and Limitations, 20 Am. J.L. & Med. 37, 42-43 (1994)Google ScholarPubMed.

¹⁴⁰ Traditional medicine focuses on what can be done in the physician’s office. Alternatively, occupational medicine physicians treat the workplace to prevent and ameliorate injury and disease.

¹⁴¹ See, e.g., Loeppke, Ronald R., Prevention and Managed Care: The Next Generation, 37 J. Occupational & Env't. Med. 558, 560, 562 (1995)CrossRefGoogle ScholarPubMed (promoting a managed care program which emphasizes prevention based on a patient-centered approach).

¹⁴² See infra part V.

¹⁴³ See LaDou, Joseph, The Practice of Occupational Medicine, in Occupational Medicine 1, 1 (LaDou, Joseph ed., 1990)Google Scholar.

¹⁴⁴ Professor Spieler noted that:

Spieler, supra note 2, at 241.

¹⁴⁵ Fee schedules may encourage overutilization if they simply fix the amount paid per visit or procedure. Thus, if fee schedules fix the fees per visit or services and ensure comprehensive service, health care providers seeking to maximize income may increase the quality of services provided. See Johnson, William G. ET AL., The Zenith Project: Report no. 1, The Excess Costs of Health Care for Work- Related Injuries 7 (1995)Google Scholar.

¹⁴⁶ See supra note 21 and accompanying text.

¹⁴⁷ See Ballen, supra note 38, at 1293.

¹⁴⁸ See Newman, supra note 136, at 1133.

¹⁴⁹ Physicians, in making return-to-work evaluations, allow patients to return to those work duties which will not adversely affect their health. See Robert J. McCunney, Occupational Medical Services, in A Practical Approach, supra note 24, at 3, 8.

¹⁵⁰ See supra part 1V.A-B.

¹⁵¹ See Last, John M., Scope and Methods of Prevention, in Public Health and Preventive Medicine 3, 3 (Last, John M. et al. eds., 12th ed. 1986)Google Scholar. Prevention consists of three components: (1) primary prevention prevents the occurrence of disease or injury; (2) secondary prevention provides for early detection and intervention, ideally before the pathology becomes evident; and (3) tertiary prevention minimizes the effect of disease and disability. Id. For the purposes of this Article, the term prevention refers to primary and secondary prevention. Return-to-work programs represent an example of tertiary prevention.

¹⁵² Id.

¹⁵³ Id. at 4.

¹⁵⁴ In Texas Workers’ Compensation Commission v. Garcia, the Texas Supreme Court noted that the original Texas workers’ compensation act, like other workers’ compensation statutes, “was part of a nationwide compensation movement, [and] was perceived to be in the best interests of both employers and employees.” 893 S.W.2d 504, 511 (Tex. 1995).

¹⁵⁵ For a summary of the clinical approach to occupational medicine, see Imbus, supra note 134, at 3- 12.

¹⁵⁶ See O. Bruce Dickerson & Walter E. Baker, Practical Ergonomics and Work with Video Display Terminals, in Occupational Medicine, supra note 134, at 428, 428-29.

¹⁵⁷ See infra part VI.A.

¹⁵⁸ See McCunney, supra note 149, at 3-16.

¹⁵⁹ See Benjamin H. Hoffman & Douglas C. Gray, The Establishment of an Occupational Health Program, in A Practical Approach, supra note 24, at 48,48-49.

¹⁶⁰ See McCunney, supra note 149, at 3; Newman, supra note 136, at 1128 (few physicians are “trained to recognize or prevent occupationally induced illness”).

¹⁶¹ See McCunney, supra note 149, at 3.

¹⁶² The total costs of workplace accidents include accident costs and the costs of their prevention. Accident costs include lost work time and medical treatment costs.

¹⁶³ See, e.g., Kasdan, Ann S. & McElwain, Nancy P., Return-to-Work Programs Following Occupational Hand Injuries, 4 Occupational Med. State of Art Rev. 539, 539 (1989)Google ScholarPubMed; Ryden, L. Alicia et al., Benefits of a Back Care and Light Duty Health Promotion Program in a Hospital Setting, 13 J. Community Health 222, 222 (1988)CrossRefGoogle ScholarPubMed; Taylor, supra note 50, at 79.

¹⁶⁴ See Ryden et al., supra note 163, at 224.

¹⁶⁵ See Costigan & Robertson, supra note 15, at 62. In Massachusetts, the Department of Industrial Accidents has initiated a program to collect data in a comprehensive manner from insurers. The Medical Utilization Tracking and Trending System will evaluate the effectiveness of providers and organizations in treating injured employees.

¹⁶⁶ See Frank H. Leone, Working with the Business Community, in A Practical Approach, supra note 24, at 106, 108.

¹⁶⁷ See Robert Galvin, Health Care Management, in A Practical Approach, supra note 24, at 581, 594.

¹⁶⁸ See Jeffrey S. Harris, Economics of Occupational Medicine, in A Practical Approach, supra note 24, at 491, 496.

¹⁶⁹ See Hoffman & Gray, supra note 159, at 50-52.

¹⁷⁰ See id. at 54-56.

¹⁷¹ See Robert J. McCunney & Reid T. Boswell, Musculoskeletal Disorders, in. A Practical Approach, supra note 24, at 166, 170.

¹⁷² See id.

¹⁷³ See Greenough & Fraser, supra note 123, at 954.

¹⁷⁴ See McCunney & Boswell, supra note 171, at 170.

¹⁷⁵ Small businesses may have difficulty establishing restricted duty positions because of less flexible employment arrangements. Perhaps the establishment of cooperative arrangements among small businesses or providing community service restricted duty jobs may be helpful.

¹⁷⁶ If workers’ compensation provides more generous reimbursement, cost-shifting may occur in the opposite direction. Cost-shifting may be occurring in both directions, depending on the particular payment mechanisms employed.

¹⁷⁷ I recognize that this is an optimistic view. It would be necessary to encourage long-term relationships between providers and employers in these situations. The positive results might not become manifest until several years after injury-prevention programs begin. Indeed, as noted earlier, the initiation of these programs may trigger an increase in workers’ compensation claims in the short term because physicians would educate injured employees about the relationship between their injuries and work.

¹⁷⁸ For a description of various capitation pilot projects, see Leavenworth, supra note 6, at 38-41.

¹⁷⁹ See Wise, Dan, How Providing More Care Costs Less, Bus. & Health, Apr. 1994, at 67, 67.Google ScholarPubMed

¹⁸⁰ See id. at 67-68.

¹⁸¹ Id. at 67.

¹⁸² Spieler, Perpetuating Risk?, supra note 2, at 154.

¹⁸³ Id. at 159 (citing California Insurance Study, supra note 95, at iii). The medical literature also provides numerous examples of the cost-effectiveness of accident-prevention programs. See id. at 154-55; see, e.g., Coleman, Sharon & Hansen, Sandra, Reducing Work-Related Back Injuries, Nursing Mgmt., Nov. 1994, at 58, 61.Google ScholarPubMed

¹⁸⁴ California Insurance Study, supra note 95, at iii-iv.

¹⁸⁵ See id. at 88.

¹⁸⁶ See, e.g., Greenough & Fraser, supra note 123, at 954; Ryden et al., supra note 163, at 223; Taylor, supra note 50, at 86. Researchers have also demonstrated the effectiveness of return-to-work programs for other injuries. See, e.g., Goodman, R. Cole, An Aggressive Return-to-Work Program in Surgical Treatment of Carpal Tunnel Syndrome: A Comparison of Costs, 89 Plastic & Reconstructive Surgery 715, 716 (1992)CrossRefGoogle ScholarPubMed; Kasdan & McElwain, supra note 163, at 540.

¹⁸⁷ See Taylor, supra note 50, at 79.

¹⁸⁸ See Ryden et al., supra note 163, at 223.

¹⁸⁹ See id. at 224.

¹⁹⁰ See Greenough & Fraser, supra note 123, at 954.

¹⁹¹ See Ryden et al., supra note 163, at 224.

¹⁹² See Goodman, supra note 186, at 715 (aggressive return-to-work program for carpal tunnel syndrome reduced costs by 58%); Kasdan & McElwain, supra note 163, at 543 (return-to-work programs for hand injuries reduce workers’ compensation costs and employee replacement costs).

¹⁹³ Such encouragement would not be extraordinary, given the requirements under the Americans with Disabilities Act (ADA), which require employers to make reasonable accommodations for disabled employees. It prohibits employment discrimination against the disabled and applies to employers with 15 or more employees. 42 U.S.C. § 12101 (1994). The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. 29 C.F.R. § 1630.2(g) (1995). Under the ADA, the employer must make reasonable accommodations for disabled individuals who can perform the essential function of a job with or without reasonable accommodations. 42 U.S.C. § 12112(b)(5). Similarly, in return-to-work programs, an employer identifies available jobs which can be performed by temporarily disabled employees.

¹⁹⁴ See Wise, supra note 179, at 67.

¹⁹⁵ See id. at 70.

¹⁹⁶ See Leavenworth, supra note 6, at 38; Managed Care: High Quality Medical Providers Can Encourage Savings, Use of Programs, 6 Workers’ Compensation Rep. (BNA) No. 22, at 529, 529-30 (Oct. 30, 1995)Google Scholar.

¹⁹⁷ See Cerne, supra note 8, at 52 (president of managed care firm in California states that whether patients stay is a function of quality of care, rather than if there is mandatory lock-in with one provider); Elhauge, supra note 126, at 1538-41.

¹⁹⁸ See U.S. Dep't of Labor Interim Report, supra note 28, at 462.

¹⁹⁹ See Boden, supra note 21, at 204.

²⁰⁰ Office of Technology Assessment, U.S. Congress, Preventing Illness and Injury in the Workplace,in Ashford & Caldart, supra note 20, at 454.

²⁰¹ See Kasdan & McElwain, supra note 163, at 539.

²⁰² Greenough & Fraser, supra note 123, at 954; Kasdan & McElwain, supra note 163, at 539.

²⁰³ See Rodwin, Marc A., Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 Am. J.L. & Med. 241, 254 (1995)Google Scholar; see generally Orentlicher, David, Health Care Reform and the Patient-Physician Relationship, 5 Health Matrix 141 (1995)Google ScholarPubMed (writing about discontinuities of physician-patient relationship and division of fiduciary duty).

²⁰⁴ See Council on Ethical and Judicial Affairs, American Medical Ass'n, Ethical Issues in Managed Care, 273 Jama 330, 331 (1995)CrossRefGoogle Scholar.

²⁰⁵ See Kathleen M. Rest, Ethics in Occupational and Environmental Health, in Occupational Health, supra note 21, at 241, 252.

²⁰⁶ See id. at 241-53.

²⁰⁷ The code of ethical conduct for occupational medicine physicians requires that they “accord the highest priority to the health and safety of individuals in both the workplace and the environment.” See American College of Occupational and Environmental Medicine, Code of Ethical Conduct, reprinted in Occupational Health, supra note 21, at 252 [hereinafter Occupational Medicine Code of Ethical Conduct]. Even if paid by the employer, an occupational medicine physician may have a legal duty under tort law to provide quality care to patients. The vulnerability of occupational medicine physicians to malpractice actions under tort law depends on their contractual relationship with their employer. See Postol, Lawrence P., Suing the Doctor: Lawsuits by Injured Workers Against the Occupational Physician, 31 J. Occupational Med. 891, 891 (1989)CrossRefGoogle ScholarPubMed. The contractual relationship does not protect from liability physicians who serve as independent consultants or who work in independent clinics. See Billauer, Barbara P., The Legal Liability of the Occupational Health Professional, 27 J. Occupational Med. 185, 186 (1985)Google ScholarPubMed. This duty includes the responsibility of proper diagnosis, treatment, and return-to-work decisionmaking. The failure to satisfy this duty may result in medical malpractice. See, e.g., Williams v. Katz, 23 F.3d 190 (7th Cir. 1994). To satisfy the duty to diagnose properly, a physician must recognize the workrelatedness of an injury or illness. Indeed, this determination, if not properly made, could detrimentally affect the health of the patient. If a physician failed to diagnose occupational asthma, for example, the physician’s inaction may fatally harm the patient on return to the workplace exposure. The standard of care for treatment would require the physician to provide care consistent with that provided by other occupational medicine specialists. See Billauer, supra, at 186. A physician also has a duty not to return a patient to work until medically reasonable. See, e.g., Ewing v. St. Louis-Clayton Ortho Group, Inc., 790 F.2d 682 (8th Cir. 1986).

²⁰⁸ There are three typical contractual arrangements between occupational medicine physicians and employers. First, the physician may serve as a medical director or staff physician within the medical department of a company. Second, the physician may work as a consultant to handle various occupational health issues as they arise. Third, the physician may work in an independent clinic and provide medical services to the employees of businesses. The businesses may contract directly with the clinic. In all three situations, the physician has a strong financial incentive to share common objectives with employers. If physicians serve as medical directors of a company, they may have the most stable financial relationship and a longer time horizon to achieve desired goals. Physicians who serve as consultants or who work in independent clinics have less stable financial relationships with employers. For example, the contracts of these physicians might be renewable on an annual basis or even subject to termination at will. Thus, consultants and physicians in independent clinics may have the strongest financial incentives to satisfy the objectives shared with employers within a shorter time horizon.

²⁰⁹ See McElveen & Beck, supra note 28, at 30-31.

²¹⁰ See Occupational Medicine Code of Ethical Conduct, supra note 207, at 252.

²¹¹ See Council on Ethical and Judicial Affairs, supra note 204, at 335.

²¹² These approaches are consistent with those recently recommended for all physicians by the Council on Ethical and Judicial Affairs of the American Medical Association. See id. at 334-35.

²¹³ See supra part VI.A.

²¹⁴ See Ballen, supra note 38, at 1293.

²¹⁵ Analogously, attorneys not only act in the interests of their clients, but are also officers of the court who are committed to certain public ideals.

²¹⁶ Occupational Medicine Code of Ethical Conduct, supra note 207, at 252.

²¹⁷ See MCCUNNEY, ROBERT J., Handbook of Occupational Medicine 4 (1988)Google Scholar.

²¹⁸ For a fascinating study of how corporate physicians cope with their modern day conflicts of interest, see WALSH, DIANA C., Corporate Physicians: Between Medicine and Management (1987)CrossRefGoogle Scholar.

²¹⁹ State laws allowing employees to choose their own providers have not significantly hampered the implementation of managed care. See Solomon, supra note 4, at 62. Managed care programs that provide high quality care not only retain patients referred by employers, see Leavenworth, supra note 6, at 38, but actually attract employees from outside the system. See Wise, supra note 179, at 70.

²²⁰ See Leavenworth, supra note 6, at 38; Resnick, supra note 5, at 38; Solomon, supra note 4, at 62.