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.

Returning Starfish to Wellness

“Once upon a time, there was a wise man who used to go to the ocean to do his writing. He had a habit of walking on the beach before he began his work.

One day, as he was walking along the shore, he looked down the beach and saw a human figure moving like a dancer. He smiled to himself at the thought of someone who would dance to the day, and so, he walked faster to catch up.

As he got closer, he noticed that the figure was that of a young man, and that what he was doing was not dancing at all. The young man was reaching down to the shore, picking up small objects, and throwing them into the ocean.

He came closer still and called out, "Good morning! May I ask what it is that you are doing?"

The young man paused, looked up, and replied, "Throwing starfish into the ocean."

"I must ask, then, why are you throwing starfish into the ocean?" asked the somewhat startled wise man.

To this, the young man replied, "The sun is up and the tide is going out. If I don't throw them in, they'll die."

Upon hearing this, the wise man commented, "But, young man, do you not realize that there are miles and miles of beach and there are starfish all along every mile? You can't possibly make a difference!"

At this, the young man bent down, picked up yet another starfish, and threw it into the ocean. As it met the water, he said, "It made a difference for that one.”
― Loren Eiseley


In an industry riddled with challenges, competing interests and seemingly endless uphill battles, we should always remember "the starfish story."  As insurance professionals, we are given the opportunity to apply our expertise and experience to  positively influence the lives of others-- to help an employer retain an employee despite their work restrictions, to help an injured worker return to wellness through productive, meaningful work, to prevent injuries from occurring.  We have the knowledge and skills to help guide our insured employers and their injured workers through the workers' compensation system.  A system that is rife with black holes -- one in which an injured worker can, far too easily, slip through the cracks.  We can't convince every employer to offer modified duty work, nor can we convince every injured worker to take the steps to get off of their narcotic pain medications, nor prevent every injury from happening, but we can help in this case...and the next one...and the next one...

It may not always feel like it, but everyday we are presented with a unique opportunity to make a difference in our employers' worlds, our injured workers' worlds, and our own.  What we do on a day to day basis may prevent us from seeing the impact we can have on the lives of thousands of injured workers and employers each year.  Within the confines of our system, we can have a positive impact and successfully fulfill our promise to deliver a better outcome. 

There will always be another starfish to toss back into the water, and with each one we have the responsibility to help them get back into the ocean.

Injured Workers asking to RTW likely as a Blue Moon?

When an injured worker is out of work for a period of time, more often than not the reason is inaccurately attributed to the injured worker's motives.  They don't want to work.  It's easier to sit at home and "collect a check."  They could work, but they're not.  Please realize this is not always the case.  I've seen injured workers' calls to discuss return to work go unanswered by their employers.  The injured worker may call to update them on the work abilities, or just touch base with them regarding their recovery.

So, what happens when an injured worker doesn't get a call back?

It's no mystery...think about how you would feel.  You'd probably ask yourself some or all of these questions:  Do I have a job to return to?  Did I do something wrong?  Don't they believe that my injury is real?  What happens if I lose my job?  How am I going to pay my bills?  Why won't they even talk to me?

Do these questions sound familiar?

They should, thanks to the ubiquitous attorney commercials.  They promise to answer these questions (along with getting the injured worker the money THEY deserve, which may or may not include atypical financial results). 

This post isn't about how to prevent injured workers from getting attorneys...it's about helping employers understand that returning an injured worker's call (particularly one who is asking to return to work) is extremely important.  Do it not to avoid attorney involvement, but because it's the right thing to do.  Even if you don't have work available, having a discussion with the injured worker about their restrictions and what they think they can do could result in you identifying some options. 

Employers have reputations to maintain that directly impacts the quality and quantity of people who want to work for them.  I'm sure you could name a few places in town that don't treat their employees the greatest and you may have even silently sworn to never work there. 

When someone wants to return to work, the very least you can do is return the call.  You never know how much it may pay off in the end.

I'd be remiss if somehow I didn't tie this post to the New Year.  Make 2015 a year to implement the Golden Rule -- at the very least, when you have an injured worker who wants to return -- after all, lore has it that this only happens once in a blue moon.  (If you read this, you'll learn that blue moons, too, aren't all that rare).

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 







Industrial athletes: Dip your toe in the pool before diving in to RTW

In his blog post, Dr. James Butler of Orthopedic Associates of Evansville, Indiana, writes: 

“30 years ago, as a young physician I was taught, as many of our parents were, that if you have an injury you must have complete rest.  We have discovered over the years that that is a fallacy and leads to other problems.  I often joke with patients that as a young doc we used to hospitalize patients with back pain and put them in bed for a week or two at a time, and many of them are still there.  The sports medicine specialists were in the forefront of changing that idea.  They began treating their athletes by resting only the injured part while continuing to actively use the rest of the body.  They found that people healed quicker, and were back in the game sooner.  Well, we have finally realized that workers are just a different type of athlete, an “Industrial Athlete” and they also need to be kept with their team while healing so they can get back up to bat again sooner.” 

Work must be a component of any injured worker’s recovery. 

Maybe you are an employer who wants a healthy, productive employee back to work or you're the spouse of an injured worker who wants things at home to return to the way things used to be. Maybe you’re a physician who wants to help your patient recover and achieve the best possible outcome.  Graded work exposure may help you attain these goals by making work a part of the recovery process.

What is graded work exposure?

It’s a predetermined plan agreed upon by an injured worker’s occupational therapist and the injured worker’s supervisor that returns injured workers to job duties in which the hours and duties are gradually increased until the injured worker can return to their pre-injury duties. 

An example is when an injured worker returns to work four hours per day, five days per week for two weeks.  After two weeks, the injured worker’s hours are increased to 6 hours per day for two weeks, and then eventually eight hours per day.  Graded work exposure may involve the injured worker only performing certain aspects of their job that are more physically challenging for just a portion of their day.  Graded work exposure can be particularly helpful for injured workers who question their ability to return to their pre-injury job, or are fearful of getting injured again.  Making progress toward goals through graded work exposure can help both employers and injured workers restore their confidence in the injured worker’s physical abilities. 

In a 2000 study conducted on therapeutic return to work (TRTW), researchers found that work rehabilitation programs that linked graded work exposure with traditional physical therapy for chronic low back pain resulted in 93% of participants working at two-year follow up.  More telling of the success of this program is that none of the participants reported back pain recurrence from working during the period of the study (p. 59, 2000). Of those participants who underwent traditional functional restorative therapy, 73% of participants were working at two-year follow up.  Participants in the TRTW group also indicated lower average disability scores, lower average pain intensity scores, and lower scores on fear avoidance beliefs measures (p. 60, 2000).

Speaking of industrial athletes…

Do you remember the first time you jumped off the diving board?  Your thoughts preceding that jump probably focused on every time you nearly drowned before that.  You’re teetering at the edge of the fiberglass board hoping that you won’t sink like a rock, hoping that someone will come to your aid if you suddenly swallow half the contents of the pool, and hoping that it will all be worth it.  The people on the side of the pool are telling you to just do it already, to trust them -- they’ve done it a hundred times before and it will be great.  Something tells you to linger on the board just a little longer, inch a little closer to the edge, and that you’ll decide when you’re ready.

Returning injured workers to modified duty requires trust.  Employers and injured workers are concerned about re-injury.  There may be doubts in either party’s minds about whether or not the return to work will, well, work.  These feelings of anxiety, uncertainty and doubt are also experienced by employers and injured workers who are contemplating a return to work after a work injury.  No matter how many times a doctor tells an injured worker or an employer they can do x, y and z, they haven’t seen it done yet and they aren’t really sure of the outcome. Without an attempt no one will ever know. 

When planning the return of an injured worker, focus on setting it up for success and consider graded work exposure as an option. 

References:

Durand, M. J., & Loisel, P. (2001). Therapeutic return to work:  Rehabilitation in the workplace. Work, (17), 57-63.

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.

Why you should care about RTW for direct-care workers

According to US News and World Report, it is estimated that in 2013, roughly 3.3 million Americans called a nursing home their place of residence.  For these millions of residents, there must also be millions of people to care for them. 

Productive modified duty for nursing staff

Nursing homes are rated on various aspects of their operations by Medicare.  Nursing homes are rated on health inspections, staffing, and other quality measures.  One element of staffing criteria that is measured is the number of staffing hours per resident.  A facility reports the number of hours of care on average provided to each resident, each day, by its nursing staff.  It is important that RNs and LPNs, for example, are providing care to residents as opposed to “non-care” hours.  This is important when considering modified duty opportunities for long and short term care facilities.

When considering modified duty options for health care staff, a great place to start is their job descriptions.  What aspects of their jobs fit, or can be modified to fit, within their work abilities?  Consider other areas or departments for opportunities.  While there may be some initial resistance, some of the duties that other health care employees perform may also yield modified duty opportunities.  An example of this would include having an RN perform duties that an LPN could do.  Another great source of modified duty suggestions is to ask the injured worker what they believe they could do.  This will provide suggestions, but also foster support of the return to work process.

Keeping injured workers at work doesn’t just help your workers’ compensation insurance costs

When an employee is injured, the repercussions are felt throughout an organization and the community.  Maintaining a staff of qualified and skilled employees is a challenge in any industry, but is particular evident in the health care field.  According to one study, the cost of turnover in the direct-care industry was found to be 25% of an employee’s total annual compensation.¹ The Bureau of Labor Statistics estimates in 2003 that costs associated with turnover in this industry ranged between $4,200-5,200.

            Direct costs:

·          separation

·         vacancy, replacement, training and injuries

Indirect costs:

·         lost productivity

·         reduced service quality

·         lost clients revenues due to lost existing and potential clients

·         impact on the culture, morale, facility reputation and service quality

Service delivery level costs:

·         Consumers/Clients

o   quality of care

o   quality of life

o   care hours not provided

·         Employees

o   increased work injuries (doing more with less)

o   increased physical and emotional stress

o   reduced working conditions may lead to higher turnover

Suggested resources

There are many resources available to employers who wish to offer modified duty to one of their injured workers.  The Job Accommodation Network (JAN) is a great resource for ideas and modification suggestions.  We previously wrote about it in this post.   Our website also has a variety of tools to help, in addition to lists of suggestions for health care employees who are given restrictions as the result of a work injury.

You can also check out the studies and resources referenced in this post by clicking here.

1.  Seavey, D. (Oct., 2004).  The cost of frontline turnover in long-term care. Washington, D.C.:  Better Jobs Better Care.

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.

Modified duty job offer letters communicate more than just RTW details

Return to work date, restrictions, hours, wages…

These are important elements of a modified duty job offer letter.  A modified duty job offer represents much more than a letter – it sends long lasting messages about an employer’s relationship with their employees, particularly in a time of stress or uncertainty.

If I get hurt, my employer will work with me to bring me back to work.

When employers offer modified duty, it demonstrates that they are willing to make some accommodations for someone who wants to work.  Involving the injured worker in the return to work (RTW) conversation is an important step – after all, they are the ones who are doing the work.  Listen to the injured worker’s complaints.  Consider altering their assignments or scaling back their hours if indicated.  Not every RTW will be a success the first time around.  Instead of throwing in the towel, talk to the claim representative, nurse case manager, and ask them to address this with the treating physician. 

My employer offers modified duty, so getting injured at work does not equate to sitting at home.

This is an incredibly important message.  Employees learn from what they see happen with other injured workers.  While the overwhelming majority of claims are legitimate, there are a sometimes people who wish to file an illegitimate claim or “build” their legitimate claim.  Having a strong RTW program that consistently gets injured workers back to work can help eliminate the motivation for filing illegitimate claims or exaggeration of existing claims.  Modified duty job offers shorten the time and injured worker will be out of work.

A RTW Case Study: How a $500 wage loss claim cost this employer thousands

Five hundred dollars if $500, right?  Not for this Indiana employer. 

Using actual claim figures and premium calculations, this post will demonstrate how $500 in indemnity (wage) payments resulted in a premium increase of more than $4,000.

Each year, an employer’s experience modification factor is calculated based on prior years’ losses. 

In some states, such as Indiana in this example, medical-only claims are reduced by 70%.  Medical-only claims are claims in which only medical costs were paid, and no indemnity (wage) payments were made under the claim.  So, for explanatory purposes, if an employer has a $1,000 medical-only claim, it is reduced (for the sake of calculating their experience modification factor) by 70%, to $300.  The claim still cost $1,000, but only $300 of that will be considered in their “mod” calculation.

So, how does $509 end up costing the employer $4,000?

If the employer would have brought the injured worker back to modified duty without incurring any wage payments under their policy, it would have reduced the costs of their indemnity claims dollars paid to $0.  They would have also counted as medical-only claims.  However, because these claims in their loss history were not kept as medical-only, the employer loses the benefit of the 70% reduction in claims.

Think of keeping claims as medical-only like a discount coupon at the grocery store.  You must return all injured workers to modified duty to get 70% off your [medical] claim costs.

So, how does $509 end up costing the employer $4,000?

What happens after RTW?

If you’ve been following this blog, you’ll realize many of our posts focus on the process of identifying modified duty, the benefits of RTW, and developing RTW programs.  Getting someone back to work is important, but it doesn’t stop at the RTW date.  It’s a phase of the return to wellness process that must be managed.

What happens after an injured worker returns to work?
I’m sure one could find bits and pieces of answers to this question in books, and there are plenty of scholarly journal articles on this topic, trust me.  Personal experience will teach employers the most in this regard.  Not the answer you were looking for?  What follows is an attempt to summarize the most frequently learned lessons.

Communicate the return to work date to your claim representative immediately!
There simply aren’t enough font embellishments with which one can emphasize this point!  Prompt communication of the injured worker’s return to work will prevent plenty a problem:  over payments, taking credits against future benefits, getting the appropriate forms filed with the state’s workers’ compensation authority…  It’s also a great feeling for the claim representative to know that we’re returning someone to modified duty.  So it not for any other reason, notify your claim representative to provide them with the good news.

Medical treatment
Just because an injured worker returns to modified duty, doesn’t mean that they are no longer entitled to medical benefits.  This is a concern of injured workers when they contemplate RTW.  Returning to modified duty is part of an injured worker’s recovery.  As one person put it, you don’t get better and go back to work, you go back to work to get better.  It is common for an injured worker to continue physical therapy or use of prescription medications after RTW.

Employers should encourage injured workers to schedule their physical therapy and doctor’s appointments outside of the work day.  Check with your claim representative, as it depends on the state and the type of appointment (IME, etc.).  It may also be a good idea to locate a physical therapy location that is on the injured worker’s way home.

Wages
What happens if the injured worker receives less in wages than they previously earned?  As with all answers to WC claim questions…it depends.  In most states, there are temporary partial disability benefits.  These are paid as a percentage of the difference, or gap, in post-injury wages compared to pre-injury wages (calculated as the average weekly wage – AWW).  These percentages range from 50% to 90%. 

Employers process their payroll as usual and if the injured worker’s weekly earnings are less than the pre-injury average weekly wage, they should submit the payroll records to their claim representative who will review and process any TPD benefits due to the injured worker.  So, the injured worker will receive a paycheck for hours worked, and a TPD check for a percentage of the gap. 

What if the injured worker is disruptive or violates company policies?