Defining Disability - Part III: The Regulatory Perspective

The disability time clock

We've said it before and we'll say it again, upon issuance of that work-related disability note, the clock starts ticking.  Before that work status report makes it to the employer or claim representative's desk,   Many states have some type of waiting period in which wage benefits are not due under a workers' compensation claim. Typically these waiting periods are something like 3, 5 or 7 days.  After this waiting period has expired, in some states, the injured worker is then entitled to wages from the first date of disability (retroactive to the first date of disability).  Other states, the retro period is longer.  An example of this is Pennsylvania.  The waiting period is 7 days.  So if you're disabled for 7 days or less, you are not entitled to wage loss benefits.  However, if you're disabled for 8 days or more, you're entitled to benefits from that day forward, up until the 14th day.  If you're disabled more than 14 days, then you're entitled to benefits retroactively to the first day of disability.  Not sure why people get confused by this...

Not only does the first date of disability impact the wage calculations, it also starts the compensability decision clock.  States have compensability due dates or deadlines that dictate how long a claim representative or workers' compensation carrier has to accept or deny a claim.  This is based on the workers' compensation laws in each state.

Impairment or Permanency Ratings

Whether or not an employee is back to work can have an impact on their permanency or impairment rating.  In some states, an injured worker is entitled to wage benefits based upon their earning capacity after an injury.  In others, they may qualify for an impairment or permanency rating.  This is a very basic generalization for explanatory purposes only, however, when an injured worker has an injury to a particular body part (or in some states, any injury) they may be found to have a permanent impairment.  In an attempt to compensate the injured worker for their permanent impairment, they receive a rating from a physician who evaluates the degree or percentage of impairment.  Many states have a schedule of injuries that indicates how many weeks of disability benefits an injury equates to.  This rating, given as a percentage by a physician, is then multiplied by the number of weeks to get the total amount of permanency.

There are also factors that can increase or decrease a rating, depending on what state the injured worker is receiving benefits.  Some states take into account the injured worker's RTW status.  If they are not back to work or of they are back to work can impact the amount of their rating.

Employers are encouraged to offer modified duty, not only to reduce an impairment rating, but because it also helps that injured worker's recovery.  This posts primarily focuses on the "laws" and "regulations" as they relate to disability, but that is what takes place from this perspective.

Much of what the laws look at is related to when benefits are due, how much the injured worker is entitled to, and what makes them eligible or ineligible.  The laws focus on earning capacity and residual impairment related to the work injury.

They don't take every circumstance into consideration, they may not even consider if the employer has work available or not - it may be that once and injured worker reaches maximum medical improvement, they are no longer entitled to a certain level of wage benefits.  The laws dictate the benefits due to injured workers and the actions of the workers' compensation carrier.

We hope you found this series of posts to be informative.  Each of us have our own perspective on disability and its definition depending on what we do -- as employers, injured workers, medical providers, and insurance carriers.  If we expect to understand what the other person is saying, we must understand where they're coming from and what the word "disability" means to them.

Defining Disability - Part II: The Workplace/Employer's Perspective

In our last post we introduced three different perspectives as they relate to how we define "disability."  The goal of these posts is to enlighten the respective participants in the WC/disability management community as to the various lenses through which others are viewing disability - doctors, injured workers, employers, and workers' compensation professionals.  With greater understanding, the hope is that we can cut out some of the miscommunication and confusion, creating a greater awareness of where people are coming from -- yes, we're talking about the radical idea of empathy in workers' compensation.

This post will outline some of the constructs we use to define disability when we're talking about it from the employer or workplace setting.

Workplace/Employer Perspectives - Workers' Compensation

We'll preface this post by stating that we're not going to address FMLA or short/long term disability - rather we will focus on disability as it relates to modified duty in the workplace.

It is common practice for an injured worker to bring their employer a "Return to Work" or "Work Status" note from their treating physician as a result of a work related injury.

The employer is now in a position to make a determination as to whether they can or cannot accommodate the restrictions.  Maybe the injured worker's pre-injury position falls well within their restrictions.  More often than not, the restrictions impact some aspect of that injured worker's job.  Consider a person who sits at a desk but has walking limitations.  They can perform their job, but may need a closer parking space or a wheelchair to navigate the building until they can reach their desk. 

With the exception of very large companies, most employers don't have one person who solely handles workers' compensation claims and manages the return to work of injured employees.  If they do, then the frequency of their lost time claims probably justifies their pay.  For the average employer, workers' compensation is not something they have to handle every day (and they're thankful for that). 

Considerations for Employers and Employees

We will assume that an employer has identified work within the injured employee's restrictions.  Much of the focus rests on the actual work the injured worker is performing and what work their doctor says they can and cannot safely perform. 

Employers aren't always considering the other factors that may impede or promote return to work outside of the "disability" note.  Does the supervisor understand what the injured worker is being asked to do on modified duty?  Do they understand that they cannot/should not ask the injured worker to do work outside of their modified duty work assignment if it falls outside of the work restrictions?  Who should the injured worker address concerns with? 

Does the injured worker have a good relationship with their employer and coworkers?  Have their been past performance issues that the employer may be weighing in to their ability or inability to offer work (right or wrong it happens)?

While many of these factors do not impact the injured worker's entitlement to benefits, it can impact the outcome of the claim and should not be overlooked.

From an employer's perspective, they are focused on the work that needs to be done to continue their operations, costs associated with having a workers' compensation claim, the costs associated with replacement labor/overtime to compensate for the injured worker's disability, and hopefully they're considering the positive impact that modified duty can have on all of these factors.

Tune in next time when we'll be discussing RTW from a regulatory perspective.  Rest assured, the title is far less interesting than the useful content provided in that post.