Chapter 4: Whose Side Is This Workers’ Comp Doctor On?
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Waiting In Pain

About the Series

A Civil Beat Investigation: In Hawaii’s workers’ comp system, people with long-lasting injuries are often forced to battle doctors hand-picked by insurance companies to get treatment and disability payments.
Chris Brigham has exerted major influence on how Hawaii’s insurers treat injured workers claims. Critics say he has mostly made it easier to slash benefits.

This is Part 4 of an ongoing series, “Waiting In Pain,” about Hawaii’s workers’ compensation system.

Chris Brigham presents himself as an advocate for people who have been injured on the job.

Workers are “members of the family,” the 67-year-old doctor told listeners at a convention in Las Vegas in December. “They really define who the company is.”

And when they’re injured, he says, they should not be cast off as “disposable items.”

He can sound, at times, like an alternative healer, leading his Las Vegas audience in a one-minute mindfulness meditation. He describes his encounters with Peruvian shamans and the lessons they offer. He rails against Big Pharma advertising and advocates for universal health care.

The one-time Oahu resident says he has been profoundly influenced by the Hawaiian values of aloha, pono and kuleana.

So why was this well-intentioned physician, by his own account, once accosted at a conference and thrown against the wall by a drunken attorney representing someone hurt on the job?

Brigham says his push for more objective evaluation of injured workers and up-to-date treatment cost the lawyer money.

His critics would identify a different cause. They see Brigham as the precise opposite of what he claims to be. Forget the veneer of compassion, they say —  he has worked tirelessly across the nation and even outside the U.S. to slash benefits.

Brigham, in fact, has exerted an outsized influence in Hawaii’s approach to workers’ comp, advising what would become the state’s largest insurer on how to evaluate injuries and training officials who decide cases, as well as performing insurance exams himself.

Dr Christopher Brigham
Dr. Christopher Brigham gives a talk entitled “Living Abled! Achieving Shorter Disability Durations and Better Outcomes” at the National Workers’ Compensation and Disability Conference in Las Vegas

 

Lawyers and other worker advocates in Hawaii never slammed him against any walls. But they weren’t happy.

“He’s made a business out of denying compensation to injured workers,” said Douglas Moore, a Honolulu attorney who specializes in representing injured workers.

The starkly contrasting portrayals reflect an industry beset by legal wrangling over insurer obligations to pay for treatment and wages when workers get hurt.

A century ago, with courts clogged by lawsuits by workers claiming injuries, business and labor agreed to a “grand bargain.” Injured workers would get treatment, wages while they got better and payments to make up for their lost capabilities. In return, they gave up the right to sue.

The system has evolved into something as contentious as what it replaced, as illustrated in Civil Beat’s ongoing“Waiting In Pain” series launched in December. Many workplace injuries are not as obvious as, say, a severed hand. They often involve more complicated, less visible injuries to backs, shoulders, knees — and even psyches.

Insurers and claimants fight over the causes. Did they happen at work, or were they present before? Is there objective evidence in the form of an MRI or other imaging? Is a worker’s pain from purely physical causes, or are there psychological components, or even intentional fraud?

Brigham has spent his career on the front lines of this fight. He has examined thousands of employees on behalf of workers’ compensation insurers, and trained many other doctors in Hawaii and elsewhere on how to do insurance exams.

He’s detailed his philosophy in articles, speeches and books. He’s a popular speaker at conventions such as the one in Las Vegas for the workers’ compensation industry. His influence has been felt nationally, and even across the globe, through his editing of a guide widely used to rate impairment from workplace injuries.

His philosophy can be boiled down to the idea that many workers are being “needlessly disabled.” Workers may come to feel that their injuries are more debilitating than they really are, he says, and even feel pain absent objective evidence.

This phenomenon can often be traced, he says, to the greed of some doctors, lawyers and others who have a financial incentive to encourage workers to wallow in pain.

“How do you ever get well if you have to continually demonstrate you have a problem?” he asked during an interview with Civil Beat.

Brigham cites studies on “neuroplasticity” showing that the brain can go through structural changes by obsessing about pain, reinforced when others also emphasize it.

He argues for more consistent and objective evaluation of workplace injuries using the latest science. In trainings for insurance examiners, Brigham has often stressed the importance of integrity, quality and rigorous neutrality.

“If you lose that,” he said, according to a transcript of one training session, “if you’re thought of as somebody whose opinion can be bought … you’re really going to lose your value.”

Biased In Favor Of Insurers?

Advocates for injured workers say that his approach also happens to minimize costs for workers’ comp insurers, who often pay less for treatment, wages and permanent disability awards when insurance doctors conclude an injury isn’t real or can be blamed on something else.

In a letter to an auto insurer that paid Brigham to evaluate accident victims, one Hawaii doctor stated that it appeared Brigham “wrote his opinions on behalf of the insurance carrier for a paycheck rather than what is best for the patient,” according to a later lawsuit.

That lawsuit called Brigham “a medical doctor who has a reputation in the community and nationally for being biased and predisposed in favor of the insurance companies that hire him.”

Brigham grew up in New Jersey. In high school, he said he was a socially insecure computer nerd, tinkering with vacuum-tube computers in a barn outside Princeton. He graduated from Rutgers and the Washington University School of Medicine in St. Louis.

He started off as a family doctor, but early on says he became appalled at the reports done by doctors assessing worker injuries. The reports, he said, were often biased and superficial and failed to take a logical approach to sizing up impairment.

He also found himself interested in why patients with similar afflictions have much different outcomes, with some fighting through impairments and others falling into a spiral of disability. It seemed to suggest psychological, social and spiritual components.

He decided he could make a difference by improving the quality of insurance assessments of injured workers, often called “independent medical exams.” In retrospect, it was an idea whose time had come, as insurers looked for ways to professionalize the process — or, critics say, to cut costs at the expense of workers.

Brigham told Civil Beat it was never his goal to seek out controversy. It’s found him nonetheless. And much of it has played out in Hawaii.

He came to Hawaii often to speak at conferences, he said, and decided to move from Maine in the early 2000s, in part to escape the winters. 

“I felt like it was home,” he said. “I loved the people. I love everything that is Hawaii.” 

In a 2013 speech, he said he found “that many of the Hawaiian values, when practiced, result in a joyful, rewarding life.”

An avid sailor who also likes to kayak, bicycle, run and hike, he’s married with three daughters. He moved back to the mainland several years ago.

In his Las Vegas speech in December, Brigham laid out his view of injuries and impairment with some examples.

He described a hypothetical workers’ comp claimant named “Jim.”

Jim “loves food,” Brigham said, the one thing in his life that gives him pleasure, and eats whatever he wants. He drinks and smokes, avoids exercise and because of his bad habits has developed hypertension, diabetes and obesity. He’s angry, depressed, and blames everyone but himself. He is “involved in litigation.”

“Actually, I think I saw Jim at the casino last night,” he said, to laughter from his audience. “You’ve seen Jims in your life.” Later in the speech, he returned to the imaginary patient. “You probably don’t like Jim…,” he said. “Jim is not fun to be around.”

Brigham described his opposite, a real person, his friend and cycling partner Mike. Mike eats well, stays active, gets plenty of sleep, knows how to deal with stress and is loved by his friends and family — traits that empower him to work through physical setbacks. He said he saw the same qualities in wounded veterans he worked with at Marine Corps Base Hawaii in Kaneohe.

The reason for the differences, he believes, is that some people have never been taught how to bounce back from adversity.

But he also returns to the idea that people can be convinced that they are impaired even when they’re not, especially when they’re encouraged to do so by those who would profit.

“I have no tolerance though for those who from my perspective take advantage of the system for making an inappropriate amount of money at the detriment of the individual,” he said.

An Influential Figure In Hawaii

Steven Birnbaum, a Bay Area attorney who’s represented injured workers since 1982, doesn’t buy it.

“The idea that Brigham would put forward, that people think they’re disabled when they’re not disabled, is unbelievable,” he said. “People know when they’re disabled.”

Workers have no incentive to embrace disability, consciously or not, Birnbaum said. Plaintiffs in workers’ comp cases rarely make up for what they lost as a result of being injured. They miss their friends at work and don’t like knocking around the house with little to do.

“Typically, for a working class male who has seen himself as the head of the household, the self-esteem that’s lost when they can’t do their jobs — it’s devastating,” he said.

Rather than doctors and lawyers convincing them they’re disabled, Birnbaum said he far more often sees the exact opposite: injured workers trying to get the doctors, against their better judgment, to clear them for work.

Brigham brought his approach to Hawaii in the early 2000s and quickly became a major player on the workers’ comp scene.

In 2005, he trained hearing officers at the state labor department on “clinical aspects” of workers’ compensation cases, according to the website of the Academy of Independent Medical Examiners, Hawaii.

He also trained judges how to use the impairment guides, he testified in a case before a court-appointed adjudicator.

The idea that Brigham would put forward, that people think they’re disabled when they’re not disabled, is unbelievable. People know when they’re disabled.
— Steven Birnbaum, Honolulu attorney

In 2006, the Hawaii Employers’ Mutual Insurance Company, or HEMIC, embraced Brigham’s approach when it hired him to improve assessments of injured workers. One of his primary roles was to review the impairment ratings done by other insurance doctors.

HEMIC was on its way to becoming the largest workers’ comp carrier in Hawaii. The company hired Brigham, one of the foremost experts in the country, “with the goal of achieving national best practices,” the company’s chief operating officer wrote to state legislators two years later.

HEMIC, Hawaii’s largest workers’ comp insurer, hired Brigham to help it “achieve national best practices.” But some HEMIC staff objected to Brigham’s review of other doctors’ assessments of injured workers.
HEMIC, Hawaii’s largest workers’ comp insurer, hired Brigham to help it “achieve national best practices.” But some HEMIC staff objected to Brigham’s review of other doctors’ assessments of injured workers.

Doctors were recruited into the program and credentialed. The resulting standards brought high-quality and unbiased opinions, the HEMIC official said.

Not everyone agreed, even within HEMIC.

An attorney and a claims manager at the insurer later said they took flack from their bosses in part because they objected to Brigham’s reviews. The claims manager argued that the reviews would, among other faults, violate the humanitarian purpose of restoring workers to health and paying them enough to get by.

 

It is my observation, and that of many others, both in Hawaii and elsewhere, that some physicians tragically are using injured workers as pawns for their financial gain.
— Chris Brigham

An arbitrator in the lawyer’s case found that the Brigham reviews were a legitimate cost containment strategy. A judge in the claims manager’s case, meanwhile, ruled that the dispute was a disagreement over a business decision rather than retaliation for her reporting a violation of public policy.

In 2012, Brigham argued against a Hawaii bill – one of many over the past decade – that would have required both parties in a workers’ comp case to agree on the doctor chosen to examine an injured worker.

“It is my observation, and that of many others, both in Hawaii and elsewhere, that some physicians tragically are using injured workers as pawns for their financial gain,” he wrote. These doctors, he continued, were guilty of shoddy treatment, dispensing opiates from their offices and “needless disabling.”

The bulwark against such practices, he said, was Hawaii’s handful of doctors who “have focused on developing a strong skill set in performing these assessments.”

The bill failed.

New Disability Ratings Draw Flak

In the midst of his work in Hawaii, Brigham took on a project with national implications.

In 2007, the American Medical Association published the 6th edition of its “Guides to the Evaluation of Permanent Impairment.” Brigham served as senior contributing editor, helped write several chapters and was widely seen as the major force in shaping the new edition.

The guides, in use since 1971, have a profound influence on workers’ comp cases in most states, including Hawaii, which use its impairment ratings to help determine cash awards for lost earnings potential.  (Hawaii uses an earlier edition.)

Dr Christopher Brigham MD Mandalay Las Vegas
Dr. Chris Brigham talks to attendees after his speech at a Las Vegas workers’ comp conference.

Brigham said that the new edition reflected medical advances and corrected some inflated ratings in the previous edition. He argued it would reduce variability between doctors who did ratings. Why should two workers with the exact same impairment be rated differently?

But in several states, the new edition drew criticism for slashing many impairment ratings – and benefits. State officials debated whether to adopt it. In 2010, the controversy led to a hearing of a subcommittee of the U.S. House Committee on Education and Labor.

Several witnesses testified that the 6th edition reduced far more impairment ratings than it increased, and despite the claims of objectivity, was based on scant evidence.

The ratings “have been created out of thin air,” said Emily Spieler, dean at the time of the Northeastern University School of Law and former commissioner of West Virginia’s workers’ comp system.

“With the widespread adoption of the Guides, a small number of physicians is designing the system based on consensus without validation or any real attention to justice,” Spieler stated in her written comments.         

Christopher Godfrey, then commissioner of Iowa’s workers’ comp program, said a state task force had concluded that the new edition was “not the result of a consensus at all as much as it was the work of one person, Dr. Christopher Brigham.”

In the hearing and subsequent written critiques, worker advocates argue that the new edition discounts subjective factors, such as pain, and dismisses the opinions of treating doctors even though they may be in the best position to understand how a worker’s impairment affects their job performance.

In short, the critics say that the guide does not reflect new medical science but policy choices about how much to compensate injured workers.

Brigham defends the work and says the guide incorporates the consensus opinion of hundreds of doctors and others.

A Focus Of Controversy

As that debate unfolded, Brigham became embroiled in another controversy in Hawaii.

A man named Christopher Allott-Rodgers claimed he had injured his right knee in a car accident. But Farmers Insurance Hawaii, he said, was refusing to pay medical bills based on a report by Brigham, who never spoke to him or examined him. Brigham found that all of Allott-Rodgers problems were from the natural progression of medical conditions that were present before the accident, according to a later complaint filed against Farmers.

In a review of the Farmers’ denials, a hearing officer for the Hawaii Insurance Commissioner pointed out that one of the records Brigham used to formulate his opinion was not about Allott-Rodgers, but about his wife.

Brigham had concluded that letters Allott-Rodgers sent Farmers appeared “unusually argumentative and threatening.” But he offered no examples, the hearing officer said. Besides, his conclusions went beyond his expertise.

Much of Brigham’s medical evaluation focused on what had motivated Allott-Rodgers to make his claim rather than the condition of his right knee, the hearing officer said. Brigham had cited studies he said showed a tie between pain and a person’s chance of getting money.

The hearing officer disagreed. People “… should ordinarily not be penalized for making a claim or viewed as trying to get away with something,” he wrote.

He found it “unacceptable” that Brigham had suggested Allott-Rodgers was malingering, especially since another doctor hired by Farmers before Brigham had concluded that the car accident caused his knee injury.

In the end, the hearing officer, considering a number of other factors, concluded that some of Farmers’ denials were improper and others were not. But he expressly rejected Brigham’s opinions.

Brigham told Civil Beat he did not recall the specifics of the case. But in general, he said, when people claim lingering pain from accidents that, for instance, occurred in a parking lot or didn’t seriously damage the car, “questions have to be raised.”

Two years later, in 2015, Allott-Rodgers became one of eight plaintiffs to sue Farmers.

In each plaintiff’s case, Brigham was paid “a substantial fee” to write reports without examining or talking to the patients or their treating doctors, the complaint said. Farmers knew Brigham’s reports could be used to cut off benefits, the plaintiffs alleged.

In late 2016, the parties agreed to a settlement, confidential except for the provision that Farmers would no longer use Brigham for any purpose.

Brigham also has exerted his influence through consulting work.

In 2012, Ontario’s Workplace Safety and Insurance Board paid him almost $100,000 to advise staff how to accurately rate workplace impairments and streamline the process, the Toronto Star reported in 2016. One of his recommendations was for staff to take into account conditions the worker had before the workplace injury.

After Brigham’s report, the board changed its policy to encourage claims managers to cut payments for pre-existing conditions, the Star reported. In the next two years, personal injury awards dropped 37 percent.

Critics said the policy change undermined the board’s “thin-skull” principle — the idea that you might have been born with a thin skull, but if it didn’t affect your ability to work until something fell on your head, it shouldn’t affect your compensation.

Attorney Maryth Yachnin, part of a group that represents injured workers, told the Star that Brigham’s report had legitimized the cuts.

“We do see that kind of moral judgment about our clients, that they are not accepting responsibility, that they’re not really trying or even that they’re faking,” she told the Star. “The whole idea that our clients choose this experience of disability and pain is so ridiculous.”

Brigham told Civil Beat that he was not involved in the board’s actions after finishing his report, and does not know if his findings were applied appropriately. “I was surprised by the outcome,” he said.

Listening to Brigham talk, it can sometimes sound like he looks at all workers’ comp claims as suspect. Not at all true, he said. He recognizes that people really do experience pain from injuries. And the industry itself can make things worse with its sometimes hard-edged approach.

The system “is outdated, it’s dysfunctional,” he said. “We need to hold all the stakeholders accountable, and we need to do everything we can do to get better outcomes.”

And no one on the other side would argue with what he says next, though they would dispute the reasons.

“It’s a tragedy,” he said, “when people get caught up in this system.”

About the Author

John Hill

John Hill is investigations editor at Civil Beat. You can reach him by email at jhill@civilbeat.org or by phone at 808-377-0240, or follow him on Twitter at @johncornellhill.

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