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.

Don't wait until you have a RTW note to start thinking about RTW

As an employer, when you have an injured worker who is out of work with restrictions, there should be no delay in having serious return to work (RTW) conversations.   Even if you don't have restrictions yet, there should be a return to work discussion taking place. 

How can I plan for RTW if I don't know what the injured worker can do?

Your claim representative and nurse case manager (if assigned) will be able to project roughly what the restrictions will involve.  There also other resources available to help, such as Occupational Disability Guidelines (ODG) and the Medical Disability Advisor (please note, we don't endorse either of these, but they are available).  A free, simple, and more accurate resource would be to ask the treating physician!  Most injuries do not require total disability for more than a few days so it is not unreasonable for an employer to make an inquiry as to when the injured worker will be released to return to any type of work and what type of work capabilities are likely.

Make sure the injured worker and their physician know that you have modified duty available?

Do not delay in communicating your intentions to bring an injured worker back to work.  From an injured worker's perspective, there is a great deal of uncertainty about their physical well-being, their financial stability and their future employment situation.  Reducing this uncertainty will help the injured worker focus on the recovery and return to normal activities, including work.  Physicians may not see the point in giving an injured worker a release to return to work if there is not modified work available. 

Are you unsure what type of work to offer?  There are several ways to identify meaningful, productive work.

We've all heard the stories of employers who bring injured workers back to count paperclips, separate nuts and bolts, or count cars in the parking lot.  What's the point?  How does that help anyone?  It damages the employer/employee relationship and makes an employer look unreasonable.

Instead, employers should review the injured worker's job description for less physically demanding tasks that fit within the injured worker's current or future restrictions.  Still can't find anything?  Look at other job descriptions or departments for work.  Before you dismiss this option, consider a few hours of cross training and what it could yield.  The benefits of training employees in various departments benefits everyone in the short term (as a modified duty solution) and in the long term.  Having skilled employees who are trained in various areas can go a long way to help reduce the time an injured worker is away from work and help your business. 

One of the most overlooked options is to ask the injured worker if they have any ideas.  Far too often decisions are made without involving the injured worker.  After all, they are the one who is going to push them to get better, to return to work, and to recover.  What are you doing to make sure your employees want to return to work?  Once you've identified return to work options, discuss the job with them and address any concerns up front.  Problems don't resolve on their own, they snowball.

If you have questions, find answers!

Rather than putting things off until someone contacts you, handle all workers' compensation issues proactively.  If you have questions about the job offer letter, call your claim representative.  If you are unsure if the work you’ve identified is suitable, check with the doctor.

There are few things in life that we can safely and confidently place on "auto-pilot."  Workers' compensation claims management is not one of them.  Put the time in up front and you'll be amazed at the outcomes.

Can we agree on one thing...? Variance between providers' RTW recommendations

In a 2010 study of healthcare providers’ agreement related to return to work (RTW) capabilities, researchers found some areas of consistency and some, well, not so consistent (Ikezawa, Battie, Beach & Gross, 2010).  The aim of the study was to determine if there are differences between providers as it relates to the information providers use to make RTW determinations, and what their RTW determinations were for three different case scenarios:  fracture, dislocation, and low back pain.  The survey focused on collecting three types of information.  Participants were asked to determine the following:  if the person was fit to return to work, assess the physical demands of their job, address any restrictions due to injury, determine the injured workers’ work capacity, and make any other recommendations if they were deemed unfit to work.  The second part of the survey focused on what type of information the participants used to make their decision, as well as commentary on what type of information would have improved their ability to make these determinations.  The final section of the survey focused on demographic information about the participants (specialty, gender, age, years of practice, etc.).

Inquiring minds want to know! 

The results indicate that 97% of the providers were in agreement with each other regarding the RTW readiness case of the fracture (p. 370).  This is likely due to fractures being of clear cut pathology.  Similarly, 94% of the providers agreed with each other related to RTW readiness for the dislocation scenario (p. 370).  For the low back pain case (a nurse who had back pain for eleven months), providers were basically split as to whether the injured worker should return to work or not – 55.6%.  Of note, however, with regards to the back pain case, 56% agreed that RTW with restrictions was appropriate; whereas 44% believed RTW full duty was appropriate. 

What did the providers rely upon to make these determinations?

Not surprisingly, experience and training will influence a provider’s recommendations.  In this study, researchers found the providers relying mostly upon physical examination, current functional status, and occupational status (pp. 370-371).  Providers stated that functional capacity exam (FCE) results, information on availability of modified duties, and patient participation in an occupational rehabilitation program would help improve their ability to accurately address RTW opportunities (p. 371).

Another interesting point made in this study is that only a small percentage of providers considered the sustainability of RTW, motivation to RTW, recovery expectations, and guarding movements.  Not until more recently are practitioners focusing on the biopsychosocial, or multi-dimensional, aspects of RTW.  These differences in approach will more than likely yield differing RTW recommendations and should be considered when evaluating a provider’s recommendations for RTW (p. 372).

 Regardless of their agreement, the majority of providers gave some type of RTW recommendation involving restrictions –so no matter their perspective (biomedical vs. biopsychosocial), we can expect some type of restrictions from an injury and prepare for them accordingly. 

 As noted above, the availability of modified duty was emphasized as being one of the factors providers are looking at when determining the injured worker’s release to RTW.  If you have modified duty, be sure that the providers are aware of it!  For those employers that utilized a panel of physicians or a providers list, send them copies of your modified duty jobs to keep on file in the event one of your employers visits there.  If that’s not the case, it would behoove you to provide the treating physician with a pre-injury job description and/or a modified duty job description to keep in the injured worker’s file.  The more informed provider will more than likely make a more accurate RTW recommendation.

References:

Ikezawa, Y., Battie, M. C., Beach, J., & Gross, D. (2010).  Do clinicians working within the same context make consistent return-to-work recommendations?.  Journal of Occupational Rehabilitation, 20, 367-377. doi:10.1007/s10926-010-9230-z

Upset About your Workers' Compensation costs? What are you going to do about it?

There's ample research and discussion about factors that may lead to delayed recovery or poorer outcomes for workers' compensation claims.  We're all really good at pointing the finger and saying that it's because of the doctor, the unmotivated injured worker, or the employer who just doesn't get it.  I'd like to ask one simple question to those who are frustrated or angry about workers' compensation outcomes.  What are you going to do about it?

In the extreme case, an employer could shut down the business, throw in the towel.  Highly unlikely.  Realistically there are several steps employers and other stakeholders can take to GET INVOLVED in their claim management programs.  Here's just a few of my favorite.

• Report all injuries as soon as possible.  It's fairly common knowledge that the sooner everyone knows about an injury, the sooner it can be managed.  This leads to the next important point.
• Get the injured worker prompt appropriate medical care.  Get them the best care a workers' compensation dollar can buy.  If you want the best outcome, why would you skimp here?  Who would you want to see if it were your injury -- the doctor who just processes injuries and prescribes anti-inflammatories, tells you to follow up with your family physician if not better in a week or the occupational health physician who understands how to approach work injuries, what is necessary to help you get better and back to work, and what the signs of trouble may be?  Do you want a physician who follows what massive amounts of research says provides the best outcome, or the doctor who disregards evidence-based medicine in exchange for their anecdotal, 30 year old medical school training.  I wouldn't want a mechanic who only worked on cars from the 1970s to work on my 21st century car that's basically a computer running on gasoline (or electric, for that matter).  Get your employees to the best providers who are on top of the most current medical practices, and follow evidence-based treatment guidelines.
• Reduce delays in care by getting treatment approved, appointments scheduled, and referrals made TIMELY.  The sooner we can help that injured worker get the care they need, the sooner everyone can learn what the true injury is, what the treatment plan will look like and assess the RTW opportunities.  Nurse case managers can help with this process.
• Communicate effectively!  Communication is often the cause and the solution to all problems in a claim.  Keep everyone in the loop -- find a way to do it. Maybe it's a list of everyone who you need to update, written down on a sheet of paper.  Maybe it's an email distribution list that you create for each employee's claim.  Whatever your strategy is, keep everyone up to date.  As the saying goes, communicate by a factor of 10, and then say it one more time.  This group includes the injured worker, the employee's supervisor, the claim representative, nurse case manager, medical providers, and whoever else may be involved in the claim.  Documentation will be key in communicating technical, detailed information.  One example of this is the injured worker's pre-injury job description.  Document it, send it around for review and approval (including the injured worker) and then send it to the treating physician, physical therapist, and nurse case manager.  After all, how can you plan to get an injured worker back to work if you don't know what they need to do?  Identify barriers to return to work early on and develop a plan to address them.

These suggestions are based upon evidence.  Researchers from the Department of Physiotherapy and the Department of Epidemiology and Preventative Medicine at Monash University in Melbourne, Australia conducted a study involving the aforementioned interventions.  The results?  In their study, their intervention reduced costs associated with RTW claims by 34% and cut the days away from work by 58% (Iles & Wyatt, 2013).

References:
Iles, R. A., & Wyatt, M. (2013). Applying the evidence: a real-world example of an intervention to reduce workers' compensation costs. Physical Therapy Reviews, 18(5), 395-402.

Nurse Case Managers are NOT the Claims Police

This week's post comes to us from Eastern's own Director of Medical Cost Management, Nancy Crago, RN, BS, CCIM, AIC.  Nancy has over 35 years of nursing experience as well as 16 years of insurance experience.  She has had the opportunity to work directly in many areas of workers' compensation claims ranging from telephonic case management, claims adjusting, and supervision of adjusters and case management teams.  

What is a case manager?

The Case Management Society of America defines a case manager as a health care professional who is responsible for utilizing the case management process for individuals with health-related needs, with the goal of maximizing their wellness, autonomy and appropriate use of resources.  

What experience do case managers have?
Nurse Case Managers are registered nurses with at least 10 years of nursing experience.  Many nurses have advanced degrees and have specialized clinical skills and knowledge.  In addition, many nurses have national certification from organizations which focus on case management.  These include CCM, CRRN, and CDMS.  Continuing education is required to maintain professional licenses and national certifications.

Nurse Case Managers who work in the workers’ compensation environment generally have backgrounds in orthopedics, neurology, critical care, emergency trauma, general surgery, rehabilitation, or occupational health.  

Exactly what is it that nurse case managers do?
Case Managers have several roles – they are advocates, facilitators, coordinators and educators.  The foremost role is advocate.  Whenever a case manager works with an injured worker, the nurse establishes a relationship with that person.  The case manager and injured worker establish goals and plans to meet those goals.  While working as a case manager in workers’ comp it is essential that the case manager inform the injured workers that any information related to the claim and its outcome will be shared with the physician(s), claims representative, and employer.

How can employers maximize the benefits of case managers?
Collaboration is the key to a successful outcome with a case manager.  Case managers are looking for a win-win situation – the injured workers returns to wellness and the employer regains a productive employee.  Although the case manager will be an expert about the injury and treatment, he or she may not be an expert about the injured worker’s job and specific requirements.  Share a detailed job description with the case manager.  This will foster understanding about your business.  This knowledge and a written job description helps the case manager to clearly discuss how the injured worker can safely return to work during recovery from the work injury.   Use the case manager’s medical knowledge to help design a job around any restrictions the physician may order.  Ask questions about the treatment plan – how long will treatment last, are there other effective treatments. 

Case managers are NOT the "claims police"
Injured workers (and some mistaken employers) may think that the case manager is assigned as a policeman.  Nothing can be further from the truth.  Medical care is becoming more and more complex.  The case manager will assist the injured worker to understand the treatment plan, medications, and why early return to work is essential for a full recovery. 

Because the case manager brings medical expertise to the claim, he or she will always be pushing toward the next outcome and goal.  Expect the case manager to provide suggestions and recommendations for next steps.

Through education and experience, a case manager brings medical expertise to the claim.  A case manager also helps to coordinate care with a variety of healthcare providers—physicians, therapists, pharmacists, etc.   Case Managers are not “claims police”.  Their only focus is on returning injured workers to wellness through appropriate medical care.  As nurses, case managers are advocates for the injured worker, which benefits the injured worker and the employer. 

Thank you to Nancy for sharing her experience and insight on some of the many aspects of case management!

 

Vocational Rehabilitation: Who has the best outcomes and why it matters

When an injured worker receives permanent restrictions that prevents them from returning to his/her pre-injury position a few things may happen.  The employer may modify the injured worker's pre-injury job to accommodate the restrictions.  The employer may offer the injured worker a different position within the organization.  Unfortunately, sometimes an employer is either unable or refuses to do so and the injured worker is without a job to return to.  While many of us would say, well I'd just go out and find another job.  As research has shown, if you're a married male, younger than 50 years in age, who has a solid education, not attorney represented for your claim, and who participates in a vocational rehabilitation program -- yes, you most likely will (Blackwell, Leierer, Haupt & Kampitsi, 2003).  That's because individuals who fit this demographic profile have been found to have the best return to work outcomes after a claim.  That is not to say that other injured workers won't benefit from vocational rehabilitation services such as retraining or on-the-job-training.  Generally speaking, the more transferrable skills and individual possesses, the more likely they are to find work in another setting.  A lower education level and being over the age of 50 may limit an individual in their job search.

It also makes sense that the less "employable" an injured worker is, the more it increases the exposure of the claim -- thereby increasing the value of the claim. The goal of any vocational rehabilitation plan is to assess an injured worker's employment history, transferrable skills, education, and provide services (re-training, job search tools) to identify employment opportunities.  The more dismal the re-employment picture is, the greater the challenge it is to return the injured worker to gainful employment.

Employers can take steps to avoid this process by identifying employment opportunities within their company, looking at potential modifications (see our post on AskJAN.org) or any cross-training opportunities within their organization.  When you can control or influence the outcome, your results will usually be better than when you let an injured worker's future be subject to the employment market.

Employers who have injured workers that are given permanent restrictions should think long and hard about providing modified duty, on a permanent basis to their injured workers.  It is not a decision to be taken lightly.  An unrestricted person may have a difficult time finding work, let alone adding in physical restrictions and a period of unemployment due to a work injury. 

References:  Blackwell, T. L., Leierer, S. J., Haupt, S. & Kampitsis, A. (2003).  Predictors of vocational rehabilitation return-to-work outcomes in workers' compensation. Rehabilitation Counseling Bulletin, 46(2), 108.

Concurrent employment conundrum: Return to Work for those who work more than one job

Some states provide benefits for concurrent employment if the injured worker is unable to work one or both (or more, I suppose) of their pre-injury jobs.  The workers' compensation policy covering the injury pays for the lost wages the injured worker sustains due to the work injury, which includes wages lost at another job.

Here's the scenario:

Steve works for No Leaks Plumbing as a plumber.  He also works part time as a bartender at Ps and Qs,Pub on the weekends.  While Steve is working to loosen a pipe under a sink at a customer's home (working for No Leaks Plumbing), he injures his right shoulder.  After going for treatment, he is given one-handed restrictions.  The good news is, No Leaks Plumbing is insured with Eastern Alliance and has a solid return to wellness program.  No Leaks Plumbing can bring Steve back the following day to work within his restrictions.  Unfortunately, Ps and Qs Pub cannot. 

What's the big deal, right?

Well, if the state that Steve files a claim in considers concurrent employment wages as part of the claim, then it can have implications for No Leaks Plumbing.

When calculating the compensation Steve is due as part of his injury, the claim representative would obtain wage information from No Leaks Plumbing and Ps and Qs Pub.  These wages would be combined to determine Steve's pre-injury average weekly wage (AWW).  Based upon the AWW, Steve's compensation rate, or temporary total disability rate, would be roughly 66 2/3% of the average weekly wage.

Let's say Steve makes $1000 per week at No Leaks.  He makes $200 working at Ps and Qs Pub.  One may think that since Steve is working for No Leaks without a loss of earnings, his wages from Ps and Qs Pub wouldn't matter. That is incorrect.

Steve's AWW would be $1200.  If Steve is able to earn his pre-injury hours, earning his pre-injury wages on modified duty, the compensation carrier would still owe Steve 2/3s of the difference between his post-injury earnings and his pre-injury average weekly wage.  In this example, it would be $1200 (AWW) - $1000 (wages working modified duty) = $200.  66 2/3% of $200 = $133.33.  Steve would receive a paycheck from No Leaks, and a temporary partial disability (TPD) check for a percentage of his lost wages from Ps and Qs Pub, in the amount of $133.33.

This puts No Leaks in a difficult position.  They support modified duty but Ps and Qs Pub does not.  The claim representative can attempt to work with Ps and Qs to bring the injured worker back to modified duty, but the pub really has no reason to, other than to have an employee performing some type of work. 

Keep in mind, as long as an injured worker's earning capacity is reduced, due to the work injury, then there is likely going to be benefits due to that worker.

What can be done in this situation?

• The claim representative can encourage the injured worker to discuss modified duty with their concurrent employer
• Obtain a job description from the other employer to help the treating physician determine what the injured worker can safely do at the pub.
• The primary employer (No Leaks) could consider placing the injured worker at a local not-for-profit organization through transitional duty to reduce exposure under the claim, rather than simply paying the injured worker their pre-injury wages.
• If all attempts fail to bring the injured worker back to work at the other employer, the primary employer (No Leaks) may be forced to cover the secondary employer's wages until the injured worker is recovered to perform the work at the pub.

Concurrent employment creates a unique challenge for employers and insurance carriers.  An effective RTW program can help control workers' compensation costs, and can help employers control the aspects of their claims that are within their control.  Sharing expertise and experience with the secondary employer may help them understand why it is a good idea to bring an injured worker back to modified duty.

You've heard of early RTW, but what about late RTW?

So much of what we hear about return to work focuses on early return to work. The majority of injured workers receive medical care, return to modified duty and then eventually their pre-injury jobs. But there's also a group of injured workers who receive medical care, and are given restrictions that are ultimately deemed permanent.  The injuries are typically more severe, or require more than conservative treatment.  Eventually, disability persists so long that we lose focus on return to work as a treatment goal. As Sullivan and Hyman (p. 1, 2014) put it,

     "Evidence-based clinical guidelines emphasize early return-to-work as a critical          
     treatment objective in the management of recent onset pain conditions.  However, 
     something changes when a pain condition becomes chronic.  For chronic pain        
     conditions, return-to-work is rarely put forward as a primary treatment objective.  
     Consequently, successful return to work is rarely an outcome in the treatment of chronic 
     pain conditions."

In their editorial, the authors emphasize the importance of remaining active in ALL phases of recovery, even after an individual's pain becomes "chronic."  If all the treatment that is provided (primarily prescription pain medications) does nothing to improve the individual's level of function, then they aren't really working, are they?  One can argue that pain medication alleviates the individual's pain, but if that doesn't result in an increase in function, is it worth it?  Why aren't we focusing on function?

There's also an assumption that individuals with chronic pain cannot work.  The authors cite a study in which 40% of chronic pain patients who underwent a return-to-work intervention program were successful in their return to work.  If you don't think it is an option, you will never look for information to prove yourself wrong.  Employers who adamantly proclaim that they don't have modified duty will not then go look for modified duty options.  Injured workers who believe that they will never return to work will most likely not look for opportunities to go back to work. 

"Beliefs are the roadmaps of behavior" (p. 2, 2014).  We must keep return to work on the table.  When I say "we," I mean insurance professionals, case managers, medical providers, employers, and injured workers.  The return to work may not be a pre-injury position, but there is work out there for those who want it.  Take workers' compensation, or any other type of benefits, out of the equation, and focus on the individual.  This is their life, for the rest of their life, not just until their benefits expire or their claims settle.  What are "we" doing to provide the best outcome and what are we doing to return them to wellness via return to work?  Can we really expect an injured worker to stay motivated if their physician has thrown in the RTW towel?

To read the editorial, click here.

References:
Sullivan, M. J. L., Hyman, M. H. (2014).  Return to work as a treatment objective for patients with chronic pain?  Journal of Pain Relief, 3(1).  doi:  10.4172/2167-0846.1000130 







Where in the PA WC Act does it say employers have to offer work to an injured worker? Right here...

I once had an employer ask me to show them where in the Pennsylvania Workers' Compensation Act it states that they have to bring an injured worker back to work.  I kindly directed them to Rules and Regs --  Title 34. Labor and Industry, Part VII. Bureau of Workers’ Compensation, Chapter 123. General Provisions Part II,  Subchapter D. Earning Power Determination, section 123.301 Employer job offer obligation.  Here’s a link to this particular subchapter.

The Rules and Regulations state that if a job is open with the liable employer, that the injured worker is capable of performing, “…the employer shall offer that job to the employee prior to seeking a modification or suspension of benefits based upon earning power.”  Basically, if you’re a Pennsylvania employer who is currently hiring for a position that an injured worker is vocationally and physically suited to perform, then the employer has an obligation to offer that job to the employee. 

If the employer offers the job and the injured worker fails to respond to it or refuses it, then the employer’s duty has been satisfied and they can seek relief for refusal of a valid job offer and/or pursue evidence of earning power through a labor market survey/earning power assessment.  If the employer has more than one opening that the injured worker could perform, the employer has the right to choose which job to offer.

Just for clarification – “…prior to seeking a modification or suspension of benefits based upon earning power” means that the employer/insurance carrier cannot seek relief through an earning power assessment/labor market survey if there is suitable job available to the injured worker at their pre-injury place of employment.  Proving earning power basically means that an employer/insurance carrier utilizes the services of a vocational counselor to provide proof that there is work that exists in the usual employment area of the injured worker that he/she is vocationally and physically suited to perform.

This earning power assessment consists of a vocational interview with the injured worker to review his/her work history, vocational skills and any other relevant attributes pertaining to their employability.  Some examples are military experience, education level, prior jobs held, or any certifications that the injured worker may possess.  The vocational counselor then conducts a labor market survey to see what types of jobs exist in the market that the injured worker could perform, taking into consideration their work abilities.  Once the survey is completed, the vocational counselor determines realistic earnings for these jobs for the injured worker. 

Once the labor market survey/earning power assessment has been completed, the report is provided to all parties involved and the employer/insurance carrier may decide to file a Petition to Suspend or Modify the injured worker’s wage benefits based upon this projected earning capacity.  The purpose of this evidence is to demonstrate that there is work available to the injured worker and based upon their responsibility to find work within their restrictions, the employer/insurance carrier should be relieved of some or all of their ongoing wage benefits (depending on the amount the injured worker is deemed capable of performing).

Many employers are unaware of how their ability to offer modified duty impacts their claims.  If the earning capacity identified by the vocational counselor is less than what the injured worker previously earned (their average weekly wage for their WC claim), then the employer/carrier is responsible for 66 2/3% of the difference, which is called Temporary Partial Disability Benefits, or TPD.  In Pennsylvania, an injured worker is entitled to 500 weeks of TPD benefits.  If 2/3’s of the gap in earning capacity is equal to $150 x 500 weeks, the employer/carriers is still responsible for nearly $75,000 in wage benefits.

The intention of this post is not to make readers experts on any aspect of the Pennsylvania Workers’ compensation Act, nor is it to be construed or utilized as legal advice.  The intent of this post is to make employers aware of the potential avenues that they may have to travel, if they are unable to bring an injured worker back to their pre-injury earning capacity in Pennsylvania.  As with everything in insurance, each case is fact-specific and any decisions should be reviewed with an experience claim representative and/or legal counsel.

The Snowball Effect of Employee Satisfaction

If the words “employee satisfaction” incites eye rolls from your management staff, then share this post with them next time you discuss your workers’ compensation program. 

A 2011 prospective study of work-related low back injuries indicates that what employers do after a work injury can have a significant impact on the injured worker’s recovery level.

Loss reduction efforts that improve employee satisfaction may also improve the injured worker’s outcome.  This study found that injured workers who were both satisfied with their employer’s response to the injury and their doctor’s treatment experienced better scores on leg and back pain scales, tests of function, and quality of life scales.  It’s important to point out that it wasn’t because the doctor wrote them out of work or gave them a warm and fuzzy feeling – the study indicates that satisfaction regarding the effectiveness of treatment is what contributed to the reduction in symptoms and functional limitations. 

The effect of the employer’s treatment of the claim was just as important as the medical provider’s treatment of the injured worker at 6 months post-injury.  Even more interesting is that at 1 year post-injury, the importance of employer’s treatment of the injured worker continued to grow.

In practical terms, this makes sense.  Think about an injured worker who has been disabled from working for a period of 3 months as the result of a significant injury.  If an employer responds negatively, or fails to stay in contact with the injured worker, the relationship begins to deteriorate.  How would you feel if you were out of work for a significant duration and no one seemed to care?  An understanding employer who is willing to work with an injured worker will gain the reputation of an employer who cares about the well-being of their employees.  This reputation travels faster than the speed of light.  I’m sure you could name three places right now that you swear you’d never work – and not just because of the type of work, but because of how they reportedly treat their employees.  Fact or fiction, it doesn’t matter if potential, future job applicants hear this.

Using deductive reasoning, one could conclude that what is good for the injured worker’s recovery is also good for reduction of claim costs (and good for the company).  The authors report a 30 percent reduction in claim costs attributable to higher satisfaction with claim treatment and likely due to a reduction in lost time claims.

Reference:  Butler, R. J., & Johnson, W. G. (2011).  Loss reduction through worker satisfaction:  The Case of workers' compensation. Risk Management and Insurance Review, 14(1), 1-26.  doi: 10.1111/j.1540-6296.2010.01188.x

Did this topic interest you?  Check out our related posts:

RTW and Injured Workers -- Its all in their heads!
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Modified duty job offer letters communicate more than just RTW details

New Year, new approach to RTW

Hopefully you found the holidays to be enjoyable, now it’s back to work!  If you’re one of the many resolution-ers out there, you may want to read this before going public with your resolution.  According to a study cited in a Forbes.com article, about 40% of Americans make resolutions and only 8% of them keep them. 

Resolve to improve your company’s workers’ compensation program.  Why? Because unlike a short stint at the gym or week or two on the South Beach Diet, improving your workers’ compensation program doesn’t require any special diets or new clothing.  Nope, you simply need some groundwork and a good team of people to support you.

The process of setting your goals has a direct impact on the likelihood of successfully attaining them.  Some simple considerations can go a long way.  Goals should be simple, attainable and measurable.

Simple

Stick to one or two goals for your RTW program.  A simple starting point for employers without a RTW program could be to identify 10 modified duty tasks for each department in your organization.  Creating a modified duty job bank is an essential step in achieving successful RTW outcomes.  Review your loss history to decide where to start if it seems overwhelming.  Try not to reinvent the wheel – use existing job descriptions for ideas. 

Attainable

Sure, every organization would like to eliminate all injuries or all lost time days, but that might not be very realistic.  You can’t prevent everything, so make sure you have a plan to deal with an accident when it occurs.  Review your past loss histories to identify trends and to set reasonable goals.  You can also look to the Bureau of Labor Statistics (BLS) for comparison data.  Periodically re-assess the goals to determine where you are and if they need to be adjusted.

Measurable

As the old adage goes, you manage what you measure.  Once you’ve determined your simple, attainable goal, you must be able to measure it.  Some examples include:  reducing lost time days by 20%, reducing the number of lost time claims by 80%, getting every injured worker who has restrictions back to work within 7 days of their release to return to work.  If part of your goal focuses on providing training for supervisory and management staff on the importance and benefits of modified duty, consider setting a goal to require each staff member to attend training.  You could go the extra step and require them to score a 95% or higher on a post-training quiz.

Other considerations

Announce your goal to the organization.  Divulge your plans and then demonstrate the progress you make toward those goals.   Make it extremely clear how each employee contributes to this goal as well as how your workers’ compensation premiums impact the financial results of the company.  If your company has quarterly meetings, add this to the agenda.  Regularly post your progress in a visible area such as your mandatory postings board or break room.  If you don’t reach your goal, determine an objective reason why.  Use this information to realign your goals for the following year. 

We’re here to help you successfully implement a return to wellness program.  Check out our resources on www.eains.com/ecovery or contact us directly.

Best of luck in whatever resolution you take on this year, and if you’re one of the nearly 60% of Americans who don’t make New Year’s resolutions, we still wish you all the best for 2014.

Complimentary Webinar: Using Not-for-Profit Organizations as a RTW option

Are you or your clients interested in learning about a new and innovative RTW solution?  Sign up for a complimentary webinar being offered by Eastern Alliance Insurance Group's Return to Wellness Specialist, Sarah Tayts. 

WHO:     This presentation is open to all EAIG agency partners and EAIG clients.  Please feel free to forward this post via email to anyone you believe would benefit from attending this presentation.  You can do this by clicking on the envelope icon located at the bottom of this post, or simply copy/paste the URL to this post into a separate email.


WHAT:     The presentation will highlight how to strategically use NFPs to solve even your most challenging RTW situations, as well as address the most common questions regarding the process. 

WHEN:     Wednesday, December 4, 2013 @ 10 am EST

HOW:     Register for the webinar by clicking here and completing a basic registration form.  For more information on how to get the most out of the GoTo Webinar session, you can click here to view a brief PowerPoint tutorial.               

In the past, this presentation has been very well attended, so be sure to register now to reserve your spot!

Guest post! Physical Therapy may assist in recovery from a musculoskeletal injury, and depression, in the injured worker by Dr. Joseph Brence, DPT

As you know, we’re always interested in hearing others’ perspectives regarding the rehabilitation of an injured worker. We’re excited to share this guest post written by Joseph Brence, DPT, COMT, DAC.  Dr. Joseph Brence is a physical therapist practicing in Pittsburgh, Pennsylvania.  When he is not busy treating patients, he is involved in several, large clinical research projects.  He has a large interest in the brain's involvement in the pain experience as well as the neurophysiological effects of manual therapy techniques. You can read more from Dr. Brence at www.forwardthinkingpt.com

Physical Therapy may assist in recovery from a musculoskeletal injury, and depression, in the injured worker
Joseph Brence, DPT, COMT, DAC

Work-related injuries affect almost 500,000 individuals annually in the United States.  Over half of these cases are related to sprains, strains and other musculoskeletal pathology.  In addition, musculoskeletal injuries are the leading cause for work-related disability and lost productivity, and estimated direct and indirect costs range from 45 – 215 billion dollars.

Work-related injuries can lead to the development of chronic pain as well as changes in societal status and psychological variables such as depression. Research has suggested that one out of every three individuals who suffer from chronic pain also suffer from depression.  Research has also suggested that elevated levels of depression are associated with an increased risk for a poor response to Physical Therapy and are associated with elevated levels of pain and disability.  A recently published article examined the effects of Physical Therapy on depressive symptoms in individuals with work-related musculoskeletal injuries.

The authors in this prospective cohort study recruited patients who were between the ages of 18 and 65; had sustained a work-related, musculoskeletal neck or back injury (3-12 weeks since onset); were not currently working; and were receiving benefits from Worker’s Compensation.   The participants also had to have clinically relevant levels of depression (measured on a Beck Depression Inventory of 14 or higher) and had to state that they were not being treated for depression throughout their course of Physical Therapy (often the case in Workers Compensation).  The participants completed a course of seven weeks of Physical Therapy treatment interventions.

The outcomes of this study demonstrated that depressive symptoms resolved in 40% of patients who entered into a Physical Therapy program, following a work-related accident. This outcome is not unusual because of the neurological and hormonal changes that we know to occur with exercise.  The authors further reported that a reduction in depressive symptoms was related to a decrease in pain and disability at the one-year follow-up, which improved the likelihood for return to work.   For those who did not get better, it appears that combined elevated levels of depression and pain catastrophizing thoughts (ex. The pain is killing me) pre-treatment, predicted persistence of depressive symptoms post-treatment.  

So what does this mean?

These findings indicate that Physical Therapy can have a profound effect in decreasing depressive symptoms in a subgroup of individuals.  The authors go as far as suggesting that in certain instances, we may want to include a reduction in depression as a realistic and important goal of treatment.  Psychosocial variables, such as this, have been correlated to long-term disability and can often restrict an individuals ability to recover from a musculoskeletal injury (thus decreasing the likelihood for return to work).  Despite the notion that many in Workers Compensation field want to steer away from the assessment of these variables, I suspect they are important prognostic indicators for recovery and we should encourage early screening, detection and intervention.  In the end, we interact with the complex "human" and acknowledging the influence of biological, psychological and social variables, will only better enhance recovery and return to work. 
 

Dunning KK, Davis KG, et al. Costs by industry and diagnosis among musculoskeletal claims in state workers compensation system: 1999-2004. Am J of Indust Med. 2010: 53; 276-284.

Wideman TH, Scott W, et al. Recovery from depressive symptoms over the course of physical therapy: a prospective cohort study of individuals with work-related orthopaedic injuries and symptoms of depression. JOSPT 2012: 42; 957-968.

Kroenke K, Spitzer RL, et al. The Patient Health Questionnaire-2: Validity of a 2 item depression screener. Medical Care. 2003: 41; 1284-1294.

The "rules" of WC aren't a secret -- really anyone can find them...

Workers’ compensation has existed in the United States for over 100 years.  Unarguably, things have changed since 1911.  One acronym says it all:  EDI.  Don’t worry, this isn’t a post about EDI at all – we’re trying to gain a following here, not see how quickly people “x” out of their browsers.

Every year we hear of a few states who are taking a crack at this reform or that amendment.  These changes are typically a fusion of neighboring states’ systems, but with a twist!  Each state’s laws address workers’ compensation it a bit differently but whether you’re in Texas or PA, there are some similarities that, amazingly, people still don’t know about. So, here are a few common things about WC that I wish more people knew.

Medical providers:  If you want to get paid you need to submit your bill with medical records.

Would you pay a bill if you had no idea what it was for?  Despite they average person's usual philanthropic tendencies, I’d bet not.  Why would you expect an insurance carrier to pay for something when they don’t know what they’re paying for? 

Here’s what happens.  The carrier gets a medical bill or invoice without records.  The carrier denies it and requests that it be resubmitted with medical records.  Maybe the billing company is a separate entity and can’t just print out the records.  The billing company then has to request the records from the provider, who then sends them to the billing company who sends them, hopefully, with the appropriate bill, back to the carrier.  This could take a few weeks.  Suppose that in the interim, the provider identifies this as an account with a balance on it and they send a second notice to the injured worker, causing all sorts of outrage and frustration, when all the while letters and requests are crossing in the mail. 

An avoidable mess is the most frustrating mess!

Modified duty reduces claim costs

It’s as if this is a big secret!?  I’ve always said that for every attorney billboard along the major highways that we see, I wish there was one explaining why modified duty makes sense – if done properly.  I bet if you asked people what happens to their rates when they file a homeowner’s or auto damage claim the overwhelming majority of people would say, “My rates go up.”  It’s so prevalent NBC’s Today Show website has an article on this topic from just 6 days ago! The more a claim costs, the more it impacts your policy (in most cases).  WC coverage is no different.  Modified duty is one of the most effective ways to reduce indemnity (wage) loss costs on your policy.  Carriers don’t make this stuff up!

The “rules” of WC aren’t a secret – really anyone can find them.

Why do some claims go sour?

No matter how you’re connected to a workers’ compensation claim, you probably share the same goal as everyone else:  to get an injured worker prompt, appropriate medical care and return them to work.  You want to get on with business and life as usual. 

Anecdotally speaking, the overwhelming majority of claims follow a fairly smooth path.  An injury occurs, it gets reported, and the injured worker seeks medical treatment.  After a few weeks of treatment, the injured worker is released to return to work without restrictions.  Any required state forms are signed and returned.  After paying any outstanding medical bills that may drift in, the adjuster reviews the file and determines it is appropriate for closure.  

I’d venture to say that this scenario is not what typically comes to mind when discussing workers’ compensation claims.  Maybe it’s the attorney commercials, maybe it’s the horror stories from your neighbor or distant relative, or maybe it’s because something simply went wrong in the course of a claim that resulted in a negative impression of the system. 

What causes some claims to go sour while others resolve without issue?

Information asymmetry due to weak communication.

Communication, by definition, is an exchange of information between people. 

In a workers’ compensation claim, there are a lot of people, all with asymmetrical quantities of knowledge, experience, and information.  Workers’ compensation is a system that has been historically filled with distrust.  Not to mention, a workers’ compensation claim impacts people on a very personal level.  When you combine the number of people involved with the emotional impact a work injury can have, it’s almost like a keg of gun powder and it must be handled with care and respect. 

Throughout the claim process, there are numerous potential “breaking points.”   I’d be willing to bet most of them revolve around communication.  Appropriate communication can quell the symptoms of information asymmetry and has great potential to prevent claims from going sour.

Some of these breaking points are provided below, with a simplified version of a solution, focused on communication and empathy.

Problem:  The injured worker receives a collection agency notice because of an unpaid bill.  I put this one at the top of the list, as it is one of the simplest problems to prevent.

Solution:  Injured workers should not ignore a bill or invoice.  If an injured worker receives a bill it does NOT always mean the insurance carrier denied it.  It may be that they didn’t have the correct billing information, it got submitted to personal health insurance, or to the wrong insurance carrier.  A simple fix is to call the billing number on the invoice, and update them with the correct insurance information.  Waiting until a collection notice is received makes it more difficult for the workers’ compensation carrier to get an appropriate bill and medical records to make sure it is related to the accepted injury to review it for payment.

Problem:  The injured worker doesn’t receive their wage replacement check on time.

Solution:  Someone can contact the injured worker to let them know it will be late.

Problem:  The injured worker hasn’t heard from their employer for weeks.  They’re starting to wonder if they still have a job.

RTW: It takes a village

Recently, someone brought up an excellent point about human behavior and accountability.  It’s easy to point the finger at the person who’s not in the room.  Who’s ultimately responsible for returning an injured worker to modified duty?  The injured worker’s physician?  The employer?  The claim representative?  Based upon the contextual clue in the title of this post, you’ve more than likely determined that it isn’t just one person’s responsibility.    

Employers have a responsibility to provide a safe work environment for your employees, report claims, and stay in contact with injured workers.  Too many times the claim starts out and the injured worker is a “great employee” and then 6 months later when they are still recovering from their work injury, they’re now referred to as someone who is “milking the system.”  How does that happen?  Think about a relationship that has dwindled to the point of “acquaintance” as opposed to close friend.  If you haven’t talked to someone in a few months, it’s easy to draw conclusions about the reason for the lack of communication.  I’d be willing to bet you aren’t looking introspectively or taking accountability for losing contact.  It’s only human to attribute a negative outcome to the actions or someone else. 

Injured workers have a responsibility to report injuries to their employers participate in their recovery, follow the advice and restrictions of their physicians, and to keep their employer and claim representative apprised of any changes in their work and treatment status.  Injured workers should participate in the RTW process.  How?  Injured workers can make suggestions about what parts of their job they think they can do. 

Claim Representatives can make or break the outcome of the majority of claims.  Yes, it is true that at the end of the day people will do what they feel they need to do, but we need to take a few steps back and think about what led up to the current situation.  Did the injured worker have unanswered questions?  Did they receive another collection notice for an unpaid bill (because the biller simply didn’t have the WC claim information)?  Did they hear rumors that their job was in jeopardy?  While we can’t prevent every outcome, we can lay the foundation for open communication, education, and understanding.  We should never lose sight of the fact that we’re providing a benefit to an injured worker on behalf of their employer.  The goal is to provide appropriate medical treatment to rehabilitate the injured worker to their pre-injury state, or as close as possible.

It truly does take a village.  We didn’t even mention the roles of the medical providers, case managers, or attorneys...  

I’m not saying that at the end of the day we’re all going to be “friends” on Facebook, or that we’ll go to happy hour together after work.  My point is, the sooner we all realize that we have a responsibility and an interest in getting an injured worker back to work, the sooner we will see RTW challenges resolve.