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.

RTW in the Health Care Setting - it can be done

Identifying modified duty options is incredibly important for those employers in the health care industry.  According to the Bureau of Labor Statistics, in 2012, employees in health care support occupations lost time from work due to a workplace injury or illness more than 2 times more often than all other occupations reported (U.S. Bureau of Labor Statistics, 2014).  

Barriers to RTW in hospitals and health care settings

While the incidence rate alone is a challenge, the usual 24/7 operations of hospitals can also be a barrier.  Employers are concerned about patient safety and cite this as a reason for not returning nurses with restrictions.  One of the most frequent obstacles is how hospital employers budget and account for wages paid while an injured worker is working on restricted or transitional duty.
 
Opportunities for RTW in hospitals and health care settings
Every industry has its unique challenges.  Generally speaking, there are always options for modified duty if one looks hard enough and thinks outside the box.  Recently, the Office of Disability Employment Policy (U.S. Department of Labor) funded a study to “identify promising practices and success stories related to RTW efforts and outcomes in the health care industry” (p. vi, 2015).  The following is a high level summary of some of their findings.  You are encouraged to read the full report here.

Health care employers and subject matter experts relayed several “best practices” that may benefit other employers:

·         Communication and training regarding RTW

o   Ensure that management and supervisors fully understand RTW, its benefits, and best practices 

·         Working with physicians  

o   Provide doctors with RTW plans or RTW options for the injured worker they are treating

·         Consider the utilization of occupational health providers and/or vocational rehabilitation  providers to assist with RTW

·         Identify outside sources for transitional work if no work can be found in-house

·         Support the case for RTW with financial figures

·         Create a system that pays for the transitional duty/modified duty work that ensures accountability for to motivate managers

o   Return injured workers to their department

o   Reduce injury rates

o   Employers may want to consider excluding injured workers on modified duty from productivity rates/counts

Some other highlights of the article include suggestions regarding a modified duty/transitional duty job bank.  We’ve always recommended employers maintain a list of tasks that need to be done in the event they have an injured worker on modified duty but these suggestions take it a step further.

Creating and maintaining a “living” job bank

The participants in the interview reported that they train supervisors and managers to find and share any modified duty positions prior to posting them.  These are often short-term jobs that need to be filled.  The respondents also reported that they contact the central staffing unit when looking for potential RTW opportunities within the hospital.  When long term or permanent restrictions are likely, the employers work with the injured worker, and sometimes a vocational counselor, to identify interests of the injured worker and their knowledge, skills and abilities.  If the injured worker would like to work in a different position that suits his/her restrictions, but requires training, the employer works to implement that training or provides unpaid volunteering in a particular department to train and trial the injured worker in that role.  The focus is upon retaining current employees.

 
Here is a link to the report for your own reading pleasure. The report also highlights seven very interesting and creative RTW success stories.

References:

 

U.S. Bureau of Labor Statistics. (2014) Number, incidence rate, and median days away from work for nonfatal occupational injuries and illnesses involving days away from work by summary occupational groups and ownership.  Available at:  http://www.bls.gov/new.release/osh2.t03.htm.  Accessed May 14, 2015.

 

Denne, J., Kettner, G., and Ben-Shalom, Y. (March, 2015).  Return to Work in the health care sector:  Promising practices and success stories.  Washington, D.C.:  Mathematica Policy Research.  Retrieved from Mathematica Policy Research  at http://www.mathematica-mpr.com/~/media/publications/pdfs/disability/rtw_health_care_sector.pdf

Word of the Day: Return

Merriam-Webster defines return as "to restore to a former or to a normal state."

That's the promise we make when we say we're going to return someone to work or return them to wellness.  It's a tall order.  Telling someone you're going to return them to a former state is almost like telling someone to get the wrinkles out of a piece of balled-up aluminum foil.  Even with extreme measures, the likelihood of getting a smooth Hershey Kiss wrapper out of a pea-sized wad is nearly impossible.  I am in no way saying injured workers are like balled up scraps of aluminum -- but we cannot promise everyone the health and ability they may have experienced pre-injury.  Even without an injury my body has aged 24 hours more than it was the same time yesterday.  In the past 24 hour hours deterioration has occurred, plates of the earth's lithosphere have shifted ever so slightly, and maybe an ice cap has melted ever so slightly more today than yesterday. It is very unlikely, if not improbable that we'd be able to easily eliminate the effects of aging, prevent the earth's plates from shifting or restore the polar ice caps. 

The workers' compensation laws are designed to indemnify an injured worker, or to "make them whole."

For a larger proportion of work injuries, that’s likely the case -- the cut finger that doesn't leave a scar, the bee sting, the ankle sprain that has resolved.  We can't make the same promise for many, more severe injuries that require surgery, produce scars, or leave injured workers with permanent restrictions.  The law tries to indemnify injured workers for their loss of income, medical treatment and sometimes permanent impairment.  But the injured worker will never be the same as they were pre-injury -- it's impossible for me to be the same as I was a week ago.  The point is -- we cannot stop change, nor can we go back and prevent the future from happening.  That is, unless of course you're Marty McFly.

It sounds as if this goes against all that we promise -- Return to Wellness?

The Return to Wellness promise is alive and well.  I can't tell you that we can return everyone.  These cases demand a frank and honest discussion about what the injured worker's future looks like.  When there are likely permanent restrictions or impairment, how do we manage that going forward?  I'm not talking about mitigating losses, I'm talking about reconciling who you were before an injury occurred and who you are going to be in the future.  For that logger who is not going back into the woods, it can be devastating.  For the mason who has always taken great pride in their skilled work, it's like losing part of your identity. 

As soon as we recognize that this may be the outcome, the sooner we must discuss what the future looks like for that injured worker.  Yes, it may not involve chopping down trees or building stone walls, but it has to mean something else.   This is reality, albeit sometimes a harsh one.  Life goes on after the work injury and it goes on after the claims settlement.  Medical providers can only take an injured worker so far and they can't, unfortunately and in most cases, return you to where they were before the injury occurred.  All the more reason to work to get an injured worker the best possible outcome -- this is going to be their life and their future long after the claim closes.  We may be stepping out of the realm of statutory benefits, but we can never lose sight of the fact that these are peoples' lives that are impacted by work injuries.  We must do all that we can to minimize that impact.

 

References:

Return. (n.d.). Retrieved November 21, 2014, from http://www.merriam-webster.com/dictionary/return

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.

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 







Meet JAN, your new best friend

Who is JAN?

The Job Accommodation Network (JAN) is the leading source of free, expert, and confidential guidance on workplace accommodations and disability employment issues.  Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.

JAN’s Workplace Accommodations:  Low Cost, High Impact  reports  the results of a recent survey of 723 employers who utilized JAN’s services.  We’ve provided some of the most relevant findings below.

An astounding 57% of accommodations didn’t cost anything.  Zilch.  They were free.  The average cost of a one-time expenditure was $500 for employers.   Do the accommodations work?  76% of employers reported they found the accommodations to be “very effective” or “extremely effective.”

What benefits have employers utilizing JAN received?

Direct Benefits
 

39% reported a savings on workers’ compensation or other insurance costs

90% reported the retention of a valued employee

71% reported increased the employee’s productivity

60% reported the elimination of costs associated with training a new employee.

Indirect Benefits

66% of employers reported improved interactions with coworkers

61% cited an increased overall company morale level

45% reported increased workplace safety

57% reported increased overall company productivity

99% of employers stated they would use JAN again.

There’s a Searchable Online Accommodation Resource (SOAR) database which provides information, suggestions, examples and resources for employers interested in implementing a job accommodation.  These suggestions are sorted by impairment or by industry.

 

References:

Job Accommodation Network (Original 2005, Updated 2007, Updated 2009, Updated 2010, Updated 2011, Updated 2012). Workplace accommodations: Low cost, high impact. Retrieved August 12, 2013, from http://AskJAN.org/media/lowcosthighimpact.html

 

What does an injured worker have to do with the US economy?

In an article written by the American College of Occupational and Environmental Medicine (ACOEM) entitled "Healthy Workforce/Healthy Economy:  The Role of Health, Productivity, and Disability Management in Addressing the Nation's Health Care Crisis" the authors highlight the importance of a healthy workforce, and more importantly, the role that RTW can have on the economy, federal programs and the United States' workforce.

Between an aging workforce, increased chronic illnesses among all age groups and people relying on federal programs like Social Security and Medicaid at earlier ages, the future of federal entitlement programs are at a severe risk of bankruptcy.  These programs rely heavily upon the workforce that is contributing to the programs and maintaining what the authors refer to as "a critical balance of net contributors versus net dependents." 

What does an injured worker have to do with the US economy?

Well, if we're doing the right things such as getting the injured worker the appropriate medical treatment, assisting them in their recovery through modified duty work, and returning them to a state of wellness, we are moving in the right direction.  As a result of these efforts, we are returning an otherwise disabled person as a productive, wage-earning, tax-paying contributor to the economy.

Integrating preventative wellness programs, providing modified duty to utilize work as therapy, and assisting employees who are precluded from returning to their pre-injury jobs with alternative employment options or vocational counseling serves an incredibly important role in making sure that our economy continues to grow and that otherwise capable individuals are not becoming dependents.

This is a (very) big-picture approach, but it highlights the importance of modified duty in an injured worker's recovery, as well as the impact it has on society and the economy.

Vocational Rehabilitation, RTW and WC: What every employer should know

What is vocational rehabilitation (VR)?

According to IRMI:

"One aspect of the overall rehabilitation process that focuses on restoring an injured person's physical and mental capacity to perform work in a safe and productive manner. This process is normally geared to individuals whose disabilities permanently prevent them from returning to their prior positions without job modification and is normally overseen by a vocational counselor or therapist. For instances involving work-related injuries, the state workers compensation act establishes the type and range of services that must be provided the injured employee."

 

When is VR utilized?

The use of VR is typically triggered by an employer's inability or unwillingness to accommodate the IW's permanent restrictions.   

As with everything in WC, it is jurisdictionally specific.  Some states, like Minnesota, have regulations that require a vocational rehabilitation consultation if there's a reasonable expectation an IW will be totally disabled for more than 13 weeks.  Other states don't require vocational rehabilitation benefits but allow for them if an injured worker meets specified criteria, such as permanent disability.  

VR is sometimes used to rebut an opinion that an injured worker is permanently, totally disabled.  In other words, a VR specialist would identify jobs that the IW is capable of performing within his/her physical abilities and vocational skill set to disprove an opinion that the IW is incapable of earning any wages as a result of their injury.  The type of disability benefits an IW is receiving, as well as the duration for which they can receive them (total # of weeks) is governed by the state's WC law.  In some cases, converting an IW's benefits to a different status (temporary total to temporary partial) triggers a statutory cap, thereby limiting the amount/duration of benefits an IW is entitled to.

Hold your fire!

Things to consider before you terminate an injured worker who is receiving workers' compensation benefits.

Please note, we are not employment/labor law specialists, nor do I play one on tv -- this post should not be construed or used as legal advice on how to handle employee terminations, it is simply an attempt to make employers aware of the impact a termination may have on their workers' compensation program.  Now we've got that covered...

Don't terminate an injured worker simply because you [think you] can't accommodate their restrictions

Often times an injured worker is given challenging restrictions that an employer believes they cannot accommodate.  The employer sees no possible way of bringing the injured worker back to work, but somehow temporary restrictions result in a long-term action.  The injured worker served a key role in their operations, and they need to replace him. 

I see two problems with this line of thinking.  Problem #1:  The employer has assumed that the injured worker can do nothing.  That is contradicted by their release to return to work -- the doctor is stating that they can do something, albeit not their pre-injury job.  I implore employers to take 45 minutes (not even an hour) to sit in a room and come up with 5 examples of modified duty work the injured employee could perform.  Act as if your livelihood depended on it, because in some cases it does.

Example:  The employer values the employee's contributions, but needs someone to help pick up the slack.  So, while you have Joe working to make up for Maria's work, can't you have Maria help out with some of Joe's duties?  Or, perhaps you need to bring in a temporary worker -- there is a learning curve which equates to lost production, increased hours, increased error rates or declining piece rates -- use Maria's skills and knowledge to help train her temporary replacement. 

Permanent Restrictions - the ultimate challenge

Cartoon Source:  Safety.BLR.com

SCENARIO:  As an employer, you've been cooperating with providing modified duty within the injured employee's work restrictions.  Despite the challenges, you've made it work.  And then you receive notice that the injured employee's work restrictions are permanent.  What is a mason who cannot lift cinder blocks all day going to do?  What could a dietary aide worker do who cannot feed patients possibly do?  How about the delivery truck driver who has never done anything but deliver auto parts?

Consider the following ideas as options to resolving your most challenging RTW opportunities:

Why offer RTW in a "Permanency" state?

A permanency state is a jurisdiction (state) that awards monetary compensation which reflects a functional loss of a particular body part (or parts).  Each state has a pre-determined method for calculating the amount (typically in weeks) of which a particular body part is valued.  In most instances, permanency evaluation is based on a percentage, or a number of degrees, of impairment.  Permanency is not valued until an injured worker is at maximum medical improvement (MMI). This is determined by a physician, who opines that the injured worker (IW) will no longer improve with additional medical intervention.

In permanency states, it is often assumed that the goal is to get the injured worker to MMI, get their rating, and get it resolved.  This is not always the best way to go.

The benefits of offering work as a therapeutic tool are illustrated by the following scenario:

IW sustains a shoulder injury requiring surgery.  MMI is projected 3-6 months from the surgery date.  The employer wants to hurry the claim along and get the IW's rating to close the claim.  The claim representative realizes that the IW's rating after 12 weeks post-op will be significantly impacted by the IW's inability to lift more than 25 lbs. overhead. The employer states they cannot permanently accommodate these restrictions. The claim representative has a discussion with the employer about bringing the IW back to work modified duty.  The IW returns to modified duty and receives the benefits of being physically active at work (within the prescribed restrictions).  As the IW continues to work, their restrictions become less stringent.

After working for another 3 months, the IW is deemed at MMI and receives their permanency rating, which is now based on the IW's ability to lift 50 lbs. overhead.  The increased lifting ability significantly reduces the amount of the IW's permanency rating.  This also reduces the Employer's claim costs, provides a productive employee, and increases morale around the workplace.  The IW improves physically, returns to earning their pre-injury wages, is motivated by their increased physical abilities and feels like a valued member of the workplace.

How is this not a win-win for everyone involved? 

Need to start a Return to Wellness program in your workplace?  Visit Eastern Alliance Insurance Group's website to download a RTW program or a guide to build your own.