It is safe to say that we do not know that which we do not know. However, intelligent people tend to recognize there are things they do not know, they just have not yet had the opportunity to learn what they have yet to know at some point. Or something like that.
Ok, it was a long holiday weekend and there has been a lot going on. You’ll have to be a little patient with me today.
In workers’ compensation, the phrase “I don’t know” carries a great deal of weight, and not in a positive sense. In a world full of uncertainties, it is not what people want, or need, to hear.
Will I completely recover? I don’t know.
Will my claim be paid? I don’t know.
Will I be able to return to work? I don’t know.
When will I be better? I don’t know.
How many times do I have to go through this procedure? I don’t know.
What do I do now? I don’t know.
In reality, the phrase, “I don’t know” often leaves a void in the information an injured worker might use to make informed and rational decisions. In that sense, “I don’t know” is just as impactful as the word “no.” I’ve often said that, in the absence of clear and concise information, cancerous thoughts will grow. “I don’t know” feeds that negativity and can skew the outcome of a workplace injury in a very negative way. In short, “I don’t know” is a litigation maker, right up there with “no,” “denied,” “buzz off,” and “I don’t care.”
A lesson I learned many years ago in customer service was to never leave an existing or potential customer in the dark when we encountered an issue for which I did not immediately know the answer. Rather than just leaving them with a highly unsatisfactory “I don’t know” (or its less refined cousin, “Beats me”), we should instead say, “I don’t know, but I’ll see what I can find out.” By being both honest while extending the offer of further assistance, a negative situation becomes potentially positive. We are honest with the fact that we lack adequate information to answer the question, but in offering further effort have shown an interest in trying to address the issue.
In this manner, “I don’t know” cannot be interpreted as “I don’t care.”
Workers’ compensation is an industry rife with unknowns and incomplete information. Variances in recovery times, responses to medical treatment and therapy, and reactions to the process itself, all make absolute answers difficult to define. Still, when dealing with people essentially lost in a system they often do not understand, making the extra effort to answer the unanswerable can make a difference in how they react and the actions they take. Being honest with an injured worker is critical. If they ask something for which you do not have an answer, it is highly probable that you might have to give them an “I don’t know” in response.
Just don’t leave it hanging at that simple phrase. Follow up with an offer to learn more, or with estimates based on previous experience. Anything is better than leaving them in absolute darkness.
The idea for this post came from the recent California Coalition on Workers’ Compensation Conference held in Anaheim, CA. A speaker was talking about trying to provide clear information to injured workers, and how troublesome the phrase “I don’t know” can be. I simply wrote down, “The danger of I don’t know” in my notes so that I would be prompted at some point in the future to write about the concept. Unfortunately for the speaker and the session they were in, my stellar note-taking skills are not as stellar as they should be. If you asked me who gave me the idea or what session it was in, I’d have to ironically tell you, “I don’t know.”
But I will certainly see if I can find that out for you.
In recognition that September is international Pain Awareness Month (“#MyPainPlan focuses on the vital importance of an individualized, multidisciplinary, multimodal approach to pain care”), I am republishing my August 3, 2017 LinkedIn blogpost entitled “Appropriate, Not Zero, Opioids.” It is as relevant and true on September 21, 2020 as it was when I originally wrote it. I hope it again re-centers our attention on the journey towards helping people live a full life in spite of their pain.
From the mid-1990’s to the mid-2010’s, there has obviously been a huge change in attitudes about the role of opioids in managing pain. Before the mid-1990’s, their use beyond pre/post-op and end-of-life care was limited. In the mid-1990’s, the assertion was made that opioids were helpful for anybody with any pain at any time. With the resulting opioid (and corresponding heroin, illicit fentanyl and benzodiazepine) epidemics, in the mid-2010’s the pendulum is swinging once again to limited use of opioids. But is the pendulum swinging too far?
Pardon my ensuing over-simplification …
Going back to pre-epidemic uses, appropriate use typically meant before / during / immediately after surgery, cancer and end-of-life care (i.e. during the acute and sub-acute phase of pain). The vast majority of people that use opioids under these circumstances do not become addicted or even dependent since they realize the drugs are merely a temporary tool to return to function.
The use of opioids outside of the above circumstances (i.e. chronic pain) comes down to simply:
Is there an evidence-based treatment plan, individualized for the patient?
Were all non-pharma / non-opioid-pharma alternatives tried but unsuccessful?
Has the doctor evaluated potential red flags (i.e. due diligence)?
Does the patient have improved levels of function and pain control with opioids?
In other words, opioids should not be the first choice for treatment of chronic pain. If the answer to the above questions are “yes” then opioid use is potentially supported. If any answers are “no” then their appropriateness starts to become questionable.
But answering those questions is not as simple as it may seem …
Some clinicians rely on their own education and experience rather than evidence based medicine or the latest clinical studies in order to make treatment choices, but it’s difficult for a patient to tell the difference.
Some physicians and patients don’t fully understand all of the non-opioid pharma and non-pharma alternatives available, so they haven’t “tried” everything.
Some prescribers don’t use – or even know about – tools like SOAPP-R or ORT or DIRE or PHQ-9 to perform the necessary due diligence before writing the first script.
The manifold negative potential side effects of opioid use (hyperalgesia, hypo-gonadism, over-sedation, nausea and constipation, dry mouth, miosis, increased anxiety and depression, hallucinations, confusion, respiratory depression and death … just to name a few) can overwhelm the benefits.
The term “function” is somewhat subjective, and “pain control” is definitely subjective, including the potentially unreasonable expectation of pain’s eradication.
In a perfect world, opioids are not needed for chronic pain and tools like walking, Yoga, mindfulness, cognitive behavioral therapy, an active lifestyle, proper nutrition and sleep are sufficient. I personally know a number of people for whom that is true. But there are some chronic pain patients for whom only opioids work. How many? Probably a smaller number than those for whom opioids create more issues than they resolve. But certainly not zero.
I had an interesting phone conversation yesterday with two people, Patti Young and David Cole, with chronic pain and opinions about opioids. They both have been actively engaged with my LinkedIn posts, and I wanted to engage their opinions beyond text on a website. Without disclosing their specific conditions and history, there were some things we discussed that offer helpful context:
Some doctors (prescribers), other clinicians, hospital staff, media and the general public don’t understand the difference between dependence and addiction — So they use “addict” to describe everybody (read my January 9 blogpost, “Using ‘Addiction’ Properly“)
Some of the stakeholders (clinicians, employers) don’t practice active listening with patients or spend the necessary time to fully understand what’s happening beyond what they physically can and cannot do in order to identify legitimate alternative pain management techniques and work options — Instead, they quickly draw generalized conclusions about “addicts” or “malingerers” or “catastrophizers” (read my February 8 blogpost, “Detox Tidbits“)
Some prescribers do not understand the opioid (polypharmacy) tapering process or even how to determine whether it is necessary — This can create “cold turkey” or “too fast” crises (a gap that prompted my co-authorship of “An Analysis of Drug Therapy Tapering Guidelines” with Kimberly Vernachio, PharmD RPh in April 2014)
Some patients don’t do their own research on pain management options and instead rely solely on what their doctor tells them — Not only does this foster passivity instead of engagement but the quality of advice depends upon the quality, experience and “bedside manner” of the adviser (watch this 7:32 video about “Placebo Effect“)
Some prescribers misunderstand the opioid MED thresholds (50, 90, 120) in various guidelines as mandates instead of targets and pursue them vigorously without fully understanding the repercussions of poor/too fast dose reduction — Here’s a direct quote from a CDC FAQthat does not say zero opioids – “Regularly assess whether opioids are improving pain and function without causing harm. If benefits do not outweigh harms, optimize other therapies and work with patients to taper opioids“
And, most importantly, everyone (the patient, their family and/or caregivers, their friends and co-workers, the clinicians, the payer, general society) is desperate to resolve the chronic pain — Which often creates an environment in which sub-optimal decisions are made that often lead to more problems
Note that I used “some” above instead of “many” or “most” or “few”. We don’t really know how many physicians, patients and payers do it well … and how many do not. All we know is that the opioid epidemic is causing death and destruction while creating a number of ethical dilemmas and unintended consequences that nobody in 1995 could have predicted.
With the overwhelming focus on addressing the opioid epidemic, some doctors no longer prescribe opioids. For anyone. In other words, zero. For additional context, read my June 15 blogpost “Are Opioid Restrictions Causing Harm?”
Some of that has to do with the ever tightening statutory restrictions by federal and state agencies along with updates to treatment guidelines in every facet of healthcare. Some of that has to do with the pursuit and prosecution of over-prescribers. Some of that has to do with news stories published on the Internet, on TV and in every city across the country about the unfolding human tragedy of the opioid epidemic. Some of that might even be the potential of violence (“A doctor was killed for refusing to prescribe opioids, authorities say“).
So it does appear that some doctors have been scared by all the talk about the opioid epidemic and are on defense. And it appears there are two options from which doctors can choose:
Stop prescribing opioids and/or dismiss all chronic pain patients that use them
Evaluate the appropriateness of opioids on an individual basis
While (1) may be pragmatic it will likely create harm. I think (2) is the more appropriate choice and will lead the doctor to either:
clearly document the objective clinical appropriateness in the medical records to leave no doubt that function and pain control have been maximized while best practices were followed, or
pursue a gradual, strategic and appropriate tapering process to the lowest possible (or no) dose while sharpening coping skills and equipping with non-pharma management tools that reduces risk and increases benefit.
In both cases, it’s the payer’s responsibility to reward best practices by paying for the necessary services, however atypical they might be. And to hold accountable those that don’t follow best practices.
The pendulum swung too far in the mid-1990’s and created incalculable harm. We can’t afford for the pendulum to swing too far in the other direction. It’s easy to say all or none. The right answer is always more nuanced. Appropriate, not zero, opioids should be the goal. For everyone.
This was originally published on 9/24/20 on a different platform.
An article in the June 2020 edition of CLM Magazine entitled “Be Kind and Keep It Simple” piqued my interest in the success of an advocacy program at Fidelity National Financial in Jacksonville, FL. Specifically, the nationwide director of safety and claims management who was responsible for envisioning and implementing the advocacy program, Kimberly Simmons. So I arranged a phone interview with her to dive into even more details behind the impetus and results of her program.
Ultimately, Kimberly defined “advocacy” as a combination of transparency with and reassurance to the injured worker. In other words, the program was about process and interaction; what you do and what you say (including how and when you say it). It looked at the workers’ compensation system from the perspective of the person that was injured, and by switching that perspective it became more human(e) and cost effective. Her goal was to establish trust and faith within the injured worker that they can return-to-work (RTW) by letting them know they were cared for, educated them on what to expect, and established a clear escalation process.
What prompted the change in 2017? What was your inspiration?
Kimberly realized that injured workers were procuring representation (i.e. lawyers) because nobody was listening to them and it took a long time for claims adjusters to approve treatment, respond to phone calls and provide timely payments. In other words, the employer – colleagues of the injured worker – had created over time a perception of not being responsive or caring. Obviously that is a broad stroke statement that generalizes and over-simplifies uniquely individual circumstances (i.e. it did not happen in every claim), but that malaise had become the standard. This is not the first time I’ve heard that attorney involvement is a red flag. Bill Zachry, formerly the group vice president of risk management for the national grocery retailer Safeway, has said on multiple occasions that if an injured worker got a lawyer it represented a failure on his part, as the employer, to effectively serve the injured worker.
Kimberly’s response was to be the first stop for every First Report of Injury (FROI), calling the injured worker to let them know her job was to support them in their journey to recovery. Because of her tenured experience, she could perceive whether they were a malingerer (yes, not all injured workers want to get back to work – yes, it is a small percentage) and if they were she would aggressively address that counterproductive behavior. However, that initial personal contact – not an e-Mail, not a form letter, but an actual phone call – set the stage for the level of concern and engagement for the entirety of the claim process. Her goal was to establish the expectation of both the injured worker and her claims team that listening and responsiveness would be the hallmark of the experience.
Kimberly relayed an example that stuck with her and resonated with me. She got involved in a catastrophic claim that was not receiving appropriate ongoing treatment (the hospital had written him off and so everybody else did too). She had him transferred to a functional restoration program where he made great progress – she prayed for his recovery but was still surprised at his ability to RTW within six months. This unexpected outcome, a result of her personal engagement and over-communication directly with the injured worker’s doctors and family, was a confirmation of her then-evolving advocacy model.
Another example she remembered was a mediation that was likely going to result in a permanent disability decision. Her defense attorney advised her not to speak during the session but she did anyway, expressing regret on behalf of the employer for how the claim had devolved to this standoff. As it turned out, the injured worker wanted to “hurt them” because they had “hurt her,” but once an environment of empathy and respect was established the claim was quickly settled without going to court.
To accomplish that on a repeatable programmatic scale, she needed to change the relationship between her third-party administrator (TPA), their claims adjusters, immediate managers, and human resources team to establish an underlying expectation of empathy and compassion and to focus on providing – quickly – whatever the injured worker needed to proceed in their journey of recovery. This attitude change, which translated into policy change, created a dramatically reduced delay in decisions so appropriate care could be provided in a timely manner.
That is the human side. An advocacy model dramatically changed the financial side too.
Her total work comp costs decreased by 22 percent and future reserves decreased by 44 percent. Injured workers stopped getting attorneys because they now did not feel the need for them. Before her advocacy model started, 175 of the 225 open claims were litigated and each required on average of three days for a claim review. After full implementation of her advocacy model, eight of 225 claims (yes, a reduction of 74 percent) were litigated and claims reviews only required one day. The reduction in the time and costs affiliated with litigated cases (eight instead of 175) and claims reviews (one day instead of eight days) freed up even more time to invest up-front in expressing empathy and compassion to each injured worker. For a process change that required little investment, the return on investment (ROI) was undeniable.
As you can imagine, not every claims adjuster was onboard with this new model and those that did not embrace it were quickly dispatched. However, there was one claims adjuster that was cynical about the change in process for one full year before having an “aha moment” where the value – human and financial – became very clear. The initial cynicism came from the adjuster’s training – the “old way” that Kimberly replaced. What made her salvageable was her high level of competence. What made her different was when she stopped checking boxes and started focusing on the human element.
What does it take to make this kind of change happen?
The leader / visionary must be tenacious (persisting in existence; not easily dispelled). They cannot get frustrated. They must lead by example so those that need to see it first can indeed see it. They have to be consistent and upbeat in their message, fully invested in making the change happen. They must have staying power, even when everybody is saying “no” and there are no positive stories yet. They need to work closely with those above them in the organization to sell them on the idea and identify the upfront cost (from retraining to updating policies and procedures to new measurements). They also need to manage closely those in their own organization (as Jim Collins said in his seminal book “Good to Great,” an effective leader must get the right people on the bus and then make sure they are in the right seats). All of that needs to happen before there are any tangible results. For Kimberly, it literally took one year before her company could see the financial rewards of doing the right thing. The good news is they also saw the human rewards while doing the right thing.
Bottom line is that in order to make change happen, a leader has to be driven by an internal motivation and desire. To borrow a phrase from sports, they must have a “motor” that never stops.
Are you a closet visionary? Read Kimberly’s story. Listen to your own muse. Make something happen. Today.
You’ve probably used the term “mañana” even if you don’t speak Spanish. While many think it means tomorrow, Merriam-Webster defines it as “an indefinite time in the future.” With either understanding, it definitely means deferral.
What did you not do yesterday by deferring it until mañana? Even though you had the same 86,400 seconds yesterday that you had the day before and that you have today, was there at least one thing you didn’t do that you should have?
“Lost time is never found again” — Benjamin Franklin
Was it because you had an unexpected emergency? Was it because you over-scheduled your calendar? Was it because you were reliant on an external person that didn’t come through or an action that didn’t occur? Was it an unpleasant task that you didn’t want to address? Did you lack motivation? Was there a legitimate reason or have you practiced until you’ve perfected procrastination?
“Procrastination is the thief of time” — Edward Young
Was it a fear of failure? Or a fear of admitting failure?
“The beginning of wisdom is to do away with fear” — Yohannes Gebregeorgis
COVID-19 should have taught us all there are no guarantees. We should plan as if there is a tomorrow but live as though there won’t be. It is arrogant of us – of me – to assume anything, especially that we can do tomorrow what we should do today. While we think we have control over our lives, in many ways we don’t. However, we do control our values, which lead to choices, which results in behavior. You will do what is important to you.
“Not failure, but low aim, is the crime” — Bruce Lee
So what do you need to do to get it done? Reprioritize. Attitude adjustment. Mind over matter. Confront fears. Develop resilience. Be honest with yourself and others. Find a sustainable work / life balance. Stop making excuses or blaming others. Discover how to say “no.” Make a decision and move forward. Simply “just do it.”
“An ounce of performance is worth pounds of promises” — Mae West
You don’t want to have the same conversation with yourself tomorrow that you’re having today.
“To every thing there is a season, and a time to every purpose under the heaven” — King Solomon and The Byrds
Everyone agrees that workers’ compensation is too complicated. But one aspect of it rises above others on the complicated scale – permanent partial disability benefits.
The difficulty of finding the right balance for permanent partial disability benefits is at the heart of the differences among approaches, and it started with the grand bargain itself.
The grand bargain means that benefits for workers’ compensation claims aren’t determined like claims based on the negligence of another party. Workers’ compensation entitles workers to benefits if their injury happened in the course and scope of their employment, even if the injury didn’t result from anyone’s negligence. It’s a tradeoff: benefits are available for all work-related injuries, but they’re not as large as they would be if the employer’s negligence had caused the injury. The question for which no universal answer exists is, what’s a fair trade-off for injured workers between what they gave up and what they gained?
If you looked for answers in state statutes, you’d find overwhelming the permutations in permanent partial benefits. My state studied the differences in 2011 for only eleven states, and the report was thirty-two pages long. This year, the table on permanent partial disability in the joint publication of WCRI and the IAIABC on workers’ compensation laws was only six pages, but the print was very small.
Among the differences among states were:
Basis of Benefits. Many states base certain permanent partial disability benefits on the injured worker’s impairment. Most of them use the AMA Guides to the Evaluation of Permanent Impairment to measure the impairment. However, six hardbound editions are published, and beginning in 2021, the first of what will be annual virtual updates became available. Currently, states only use the third, fourth, fifth, sixth, sixth 2021, and sixth 2022. Impairment ratings for the same condition are different in each edition, which brings up the question of, which is the right one to use?
The impact of the choice of edition is significant enough that a Kansas Court of Appeals opined in Howard Johnson v. U.S. Food Service (Kansas Court of Appeals No. 117,725; August 3, 2018) that Kansas’s move from the fourth edition of the guides to the sixth edition was unconstitutional. The opinion stated, “(T)he gradual erosion of the fair exchange between rights under the Act and common-law rights to tort recovery have, for the injured worker, amounted to death by a thousand paper cuts. What is the last slice that tips the balance from a fair exchange of rights and remedies to one that is unconstitutionally inadequate from the injured worker’s point of view?”
The Supreme Court of Kansas later overturned. But the question of what constitutes the appropriate quid pro quo lingers. It’s interesting to note that the correctness of the editions wasn’t a prime consideration in the appeals court’s analysis, but the disparate impact of the two editions on the amount of compensation an injured worker would receive was. If the goal is a fair exchange between a no-fault system and a tort system, shouldn’t a correct assessment of the impairment or disability of the injured worker be pertinent?
Increased benefits. Basing benefits on impairment doesn’t end the options. Some states provide benefits if the injured worker doesn’t lose income and has returned to work; others don’t. Others start the calculation of benefits with the impairment rating and increase it based on factors such as age, education, and lack of transferable skills, when injured workers are unable to return to meaningful employment.
Nonscheduled or scheduled. Some states use the impairment on nonscheduled injuries (“body as a whole”) and not on scheduled injuries, which could be a lengthy list of injuries such as “one arm and the other hand” or “one eye and a foot.” Other states treat all injuries as nonscheduled injuries.
Earning capacity. Still other states base permanent partial disability benefit on loss of earning capacity. This requires a forecast of the future or loss of actual wages, which can lead to litigation, as the parties may disagree on the true loss.
Truly, a 1,000-piece jigsaw puzzle might be easier to put together than a coherent picture of permanent partial benefits in this country under workers’ compensation.
It’s hardly surprising that questions have arisen about whether permanent partial disability benefits have veered away from the initial goal: offering just, timely compensation for injuries that occur in the course and scope of employment and enabling employees to return to their jobs and normal lives, uninterrupted by contentious litigation.
What would it take to determine a simple but fair method of determining benefits in keeping with the grand bargain?
Have you ever thought about whether you could live on your state’s temporary total disability (TTD) benefits if you had a workers’ compensation injury? It’s a scary thought.
The benefits in most states have formulas that begin with an injured worker’s average weekly wage based on the prior 52 weeks’ wages and multiply it by 66 2/3%. Then the resulting amount cannot exceed the maximum weekly wage for TTD benefits in that state.
The Workers Compensation Research Institute (WCRI) reported in its Workers’ Compensation Laws as of January 1, 2022, that the maximum weekly benefit for injured workers had “nearly doubled” from 2000 to 2022 to a median of $1,074. Remembering your school days math class, the “median” means that half of the benefit amounts were over $1,074 and half were less.
State maximums may cover 66 2/3% of the full salary of many occupations, according to a BLS Report as of May 2021. For example:
Job Classification
Average weekly wage
66 2/3%
Grounds maintenance worker
$691.54
$460.98
Carpenter
$1,061.35
$707.50
Cement mason
$980.77
$653.78
But they won’t cover the 66 2/3% of employees’ salaries who have higher salaries:
Job Classification
Average weekly wage
66 2/3%
Elevator Repairer
$1,756.31
$1,170.55
Petroleum Engineer
$2,802.31
$1,868.02
Judges
$2,301.73
$1,532.33
Most states set the maximum benefit to 100% of the state average weekly wage. Seventeen in the WCRI report listed a multiple greater than 100%; eleven states set the maximum lower.
Pundits offer two reasons for why temporary total benefits are less than 100% of pre-injury wages.
(1) Taxes generally are not paid on TTD benefits, which is supposed to bring the amount closer to a worker’s take home pay. However, the taxes paid on injured workers’ wages are usually far less than 33 1/3%, so the TTD benefit is not likely to compare favorably to a worker’s take home pay.
(2) Total wage replacement would provide a moral hazard for the injured worker if the worker could earn just as much on injured pay as when working full time. It’s reasonable to avoid providing an incentive to stay at off work. But the double reduction from first the benefit percentage and the limitation on a weekly benefit may result in an inability to survive financially while unable to work.
One of the central objectives of the 1972 National Commission on Workmen’s Compensation Laws was to protect injured workers from substantial loss of income. They recommended that this protection include a maximum weekly benefit of 100% of the state’s average weekly wage in 1975 and that the maximum increase until it was 200% of the average weekly wage by 1981. Today the highest percentage in the states is 150%.
Workers’ compensation has been described as a fragile balance. What is the optimal balance for temporary total disability benefits?
A 2021 Harvard Business School newsletter encouraged business leaders to take the long -term view rather than concentrating on quick returns. This is sound advice for several aspects of the medical component of workers’ compensation, three of which are discussed below.
First. Medical care is a major component of the total cost of workers’ compensation. Policymakers have accepted that medical fee schedules help reduce medical costs in workers’ compensation and are necessary to be good stewards of workers’ compensation dollars. Fee schedules usually include language that limits the liability of the employer to the maximum allowable fee in the state’s medical fee schedule. They may also allow an employer to pay less than the maximum allowable amount if they are able to negotiate lower fees, typically through PPOs and silent PPOs. But it is the rare state that allows for payments greater than the maximum allowable fee.
For most claims, medical fee schedule maximums do not impair access to quality medical care. But for injured workers who need medical care in certain specialties such as neurology, pulmonology, or psychiatry, the maximum fee can pose a hurdle to the care they need. Lack of access to an appropriate specialist can result in longer recoveries, increased impairment and permanent benefits, longer periods of temporary total disability, and higher legal fees when the injured worker goes to court to obtain the appropriate medical care.
The long view would provide some type of mechanism, such as a waiver to the state fee schedule. This could ensure that patients can access physicians who can help them attain recovery as quickly and successfully as possible, offsetting the increased cost of the higher physician fees.
Second. Every state in the continental United States shares at least one boundary with another state. Maine only shares one border, and at the other extreme Tennessee shares a border with eight states. Most states require physicians who provide medical care to workers’ compensation claimants to be licensed to practice medicine in their state.
These provisions are understandable from one perspective, but they can impede rapid access to quality medical care. The long view would allow for greater flexibility, if significant numbers of their citizens are closer to medical care in another state, and they experience access problems if the right medical provider is across the state line and no close medical providers are available in their own state.
Third. Another aspect of this issue has emerged in the wake of COVID-19. Telemedicine has grown exponentially in the past two years. Telemedicine not only made medical care available without exposure to the virus, but it also made experts in medical care available to patients without consideration of borders, unless the state requires the telemedicine provider to be licensed in the state. Again, the long view would look to use telemedicine more often in appropriate cases and with adequate safeguards.
Looking Ahead. These are but three “little things” that could improve the care of workers’ compensation patients and reduce costs through more complete recoveries and shorter periods of incapacity.
They are not the only changes that could be made without a major reform. Among the other possibilities are:
Return-to-work coaches/coordinators
Drug formularies
Increased use physician extenders such as physician assistants and nurse practitioners
Increased involvement of the patient in the selection of physicians
Use of alternative treatment such as acupuncture, yoga, or massage therapy.
Let’s get the conversation going on improving medical care outcomes and the workers’ compensation system. What changes would you recommend to improve medical care?
Comments from last week illustrated the substantial difference that the choices about physicians can make in workers’ compensation.
This point was also made in a presentation at the recent IAIABC Forum. Dr. James Talmage, a well-known authority on medical care for workers’ compensation injuries, spoke about “Working with Physicians to Achieve Return to Work.” His talk included some of the complexities of medical care that plague workers’ compensation. He also called for careful selection and relationship-building with physicians who provide care to injured employees.
A surprising point Dr. Talmage made was that diagnosis errors can result from physicians’ overreliance on an MRI, a favorite target of utilization reviewers. Without considering that aging causes deterioration in a body without symptoms, pain complaints can be misinterpreted as being caused by a new injury instead of changes due to normal aging.
This point was made in a study done on a group of 294 employees who worked for an “opt-out” employer in Texas who filed claims for injuries either to their shoulder or knee. In the study, MRI scans were performed on both employees’ shoulders or knees, depending on their complaints of pain. More than half of employees had more physical abnormalities on the asymptomatic side than on the symptomatic side. The study is available here.
Dr. Talmage commented that this dependence on MRI scans is understandable. When physicians were medical students, they equated the objective findings of an MRI with evidence of an injury. That reasoning would be logical in cases where a person has a persistent cough, and the CT scan shows lung cancer. The medical student could safely conclude that the cough was caused by the cancer.
So, if an MRI scan on the symptomatic knee or shoulder showed an abnormality, it would be logical for the physician to suspect a pathology of the knee unless they did an MRI of both knees or shoulders and found the symptomatic knee or shoulder had less abnormality than the asymptomatic knee. In these cases, the physician would have to consider whether the problem was aging rather than a specific incident.
This demonstrates the importance of selecting physicians who understand the possible sources of the symptoms, so they can provide the correct medical treatment.
In selecting physicians, a critical decision is to choose a doctor who approaches a workers’ compensation patient differently than a group health patient. Doctors are accustomed to using the biomedical model that only considers anatomy and physiology ? but outcomes can be improved by using a biopsychosocial model that includes an understanding of a patient’s co-morbidities, job satisfaction, quality of family life, history of opioid use, childhood adverse events, and the patient’s understanding or misunderstanding of workers’ compensation. Consideration of all these factors will help the physician to focus the patient on recovering and returning to a normal life and work in their unique circumstances.
The importance cannot be overstated of a focus on recovery from the first encounter with a patient until they have successfully and safely returned to work. As Dr. Mark Melhorn, Editor of the AMA Guides to Disease and Injury Causation said, “Physicians should practice effective, empathic communication strategies to help injured workers understand the benefit of early return to work.”
These are two of the many examples of why it matters which physician is selected to treat injured employees. Employers can make a difference in workers’ compensation systems by using physicians who understand the unique considerations of work comp patients.
To help employers find the right physician for their workers’ compensation programs, the State of Tennessee has developed a toolkit that includes information on how to select and establish effective relationships with physicians. In the toolkit are sections on how to pick the right panel physician, including:
Information the employer should provide to the treating physician,
Tips to facilitate an effective flow of information between the employer and physician,
A list of transitional jobs available for recovering employees,
Sample job descriptions/analyses written to provide the specific information needed by a physician, and
Templates for transitional work letters that can be used when the employee is able to come back to work within restrictions.
The toolkit is just what one state has done, but there are 49 other states and countless employers who’ve been proactive about providing the medical care that offers injured employees the best chance for recovery.
This blog is here to provide a forum where forward-thinking ideas can be shared. Will you share yours?
The first edition of the It’s Complicated blog began an exchange of ideas about what workers’ compensation is and what it could be. The dialogue started with four questions. The responses to the questions were thought-provoking and raised even more questions. The responses are summarized below.
The Definition of “Injury”
The first question was basic ? what is a workers’ compensation injury? ? and it had four possible answers. The “something else” option received the largest share of the votes (31.82%), which supports this blog’s title. An injury that occurs when an employee would not have had the injury “but for” the job received 27.21% of the votes. An injury that occurs primarily because of the job received 22.73%, and an injury that occurs solely because of the job received 13.64%.
Over half of the respondents commented on this question, which was the purpose of all the questions. Many said that a compensable injury must arise out of and in the course and scope of employment, which is the definition of injury in many states. In other words, the employee was engaged in an activity that was related to the employer’s business, and the injury occurred during the time that the employee was “on duty.” One responder commented, “If an injury happens at work, it should be covered, period, end of story.”
But this approach doesn’t give us all the answers. Does the definition include occupational diseases? It does in some states, but not in others. Also, now that hybrid working arrangements are more common in the wake of COVID-19, how do we determine whether a virtual worker’s injury at home arises out of and in the course and scope of employment? If an employee is working on a project at 8:00 p.m. and trips over their dog in the kitchen when they go to get a cup of coffee, is the injury covered?
When the grand bargain is discussed, it is described as a no-fault system for employees in exchange for workers’ compensation becoming the exclusive remedy for work-related injuries. But is it a no-fault system if coverage is denied to a worker who violates a safety rule or a drug/alcohol policy? If exceptions exist to the no-fault basis of workers’ comp, should exceptions to exclusive remedy face a lower bar than an intentional tort or gross negligence?
What effect should pre-existing conditions have on whether a claim is compensable? One respondent wrote that “we cannot exclude injuries that would otherwise not have occurred due to the job – even if there was an underlying condition.” Responses to this seemingly simple question raised more questions.
One of the respondents made a valid point in any conversation about what workers’ compensation should be. “Workers’ compensation is not so much a grand bargain as it is a fragile balance of the interests of injured workers, employers, and society. If benefits swing too much one way or the other, fractures will occur in that balance.”
Compensation for Permanency
The second question was about benefit adequacy: what is the most appropriate method to compensate an employee for losses due to a permanent injury? The largest number of respondents (45%) chose the method based on loss of an injured worker’s earning capacity.
Benefit adequacy was one of the major issues addressed in the 1972 report of the National Commission on State Workmen’s Compensation. The Commission’s report stated that injured workers should have protection against interruption of their income and that benefits should be tied to loss of income. Surprisingly, the report went into detail about temporary total disability (TTD), permanent total disability (PTD), and death benefits but did not address permanent partial disability similarly. Perhaps it was because TTD, PTD, and death benefits are easier to define in a formula.
One responder, who chose the option to base benefits on a loss of earning capacity, commented that “lost wages alone do not accommodate actual financial loss.” Another said, “A person’s capacity to earn wages can be diminished long-term by an injury. When that happens, they need compensation based upon the difference between their ‘pre’ and ‘post’ injury capacity to earn wages.”
Some of the responders, who did not choose a benefit based on loss of earning capacity, spoke to the complexity of a fair balance among options. One wrote, “Impairment is the closest thing we have to an objective determination, and it is a problematic tool at best. Lost wages and earning capacity are highly subjective and result in huge variations from tribunal to tribunal even within jurisdictions.” Another wrote, “Physical impairment is not the same thing as economic impairment. There are cases where the physical impairment is huge, and the lost wages are minimal or none at all.”
Also, recognize that physical impairment may not be “huge” but could end the worker’s career, as in the oft- cited case of the pianist. Another said, “Both the amount of impairment and lost wages need to be included in the equation. But to include earning capacity is far too subjective and would bog down administrative systems in litigation.” Another wrote, “I support one (method) that is based on lost wages with a requirement that the injured worker makes a good faith effort to find alternate employment that would provide a salary of 80% or more of their pre-injury wage.” This approach would answer employers’ concerns about fairness in the benefit for a permanent impairment.
And the response that wins the It’s COMPlicated award for getting to the point was, “There is no answer that appropriately applies to any and all instances. There will be unfairness in any model in some situation. The evidentiary challenges with wage loss and capacity are onerous. The impairment model compensates with amazingly inappropriate outcome in each direction.”
Covered Employees
The third question ? who should be covered by workers’ compensation? ? had the fewest comments and the most agreement. But they didn’t go as far as the National Commission report, which stated that states’ workers’ compensation laws should be compulsory for all employees. Ironically, the Commission’s report remarked that, while the trend to cover more classifications had been improving in the years going up to 1972, progress was slow, and it would probably be fifty years before all occupations were covered! Today those fifty years have passed, and compulsory coverage for all employees has not occurred.
Many responders thought all three categories of employees in the question (domestic workers, agriculture, and workers in the gig economy) should be covered, although domestic workers received a smaller number of votes (51.35%), compared to agricultural workers (75.69%), and workers in the gig economy (62.16%). On the other side of opinions, almost a quarter of responders voted that none of the classifications should be covered.
So, the question is whether the grand compromise is only for employers of a certain size and certain occupations. If that is the case, what responsibility does society have to aid those who do not have the means to pay for medical care, or rent, or other living expenses when they are injured in the course and scope of their employment? These are the workers who have the fewest resources to deal with injuries.
One responder commented that “if there is an employer-employee relationship, there should be workers’ comp coverage.” But is it that simple? If workers’ compensation were compulsory for all employees, would there be unintended consequences? Would a significant number of jobs at the lower end of the pay scale disappear, and the means of earning a living with it? It is COMPlicated.
Controlling Medical Care
The last question was about the most expensive component of workers’ comp, medical care ? how much control should an employer have over medical care? The comments were thoughtful and expressed the concerns about the issue that are often heard today. One person said it well: “The whole aim is to return a person to as near as possible to pre-injury health and at the same time keep the workplace family unit in place, so that the employer and the injured worker both understand that return to work is the only acceptable outcome.”
The option that received the most votes was a panel provided by the employer from which an employee could choose his/her doctor. However, many of the comments discussed the advantages of having some type of hybrid process to determine the treating physician. “Employer choice does not lead to employee satisfaction. When an injured worker chooses the medical provider, he/she does not get the best result, but the employee reports higher satisfaction. Perhaps employee choice with employer approval would work well. I know of no system that uses that model. We have to keep in mind that in some parts of the country there are not a lot of opportunities to have choices.” Another responder wrote, “I have seen too many abuses when the absolute right to control medical rests in one party or the other.” Another wrote, “Coming from a state that provides for employer control of medical through a panel of physicians, my answer may be surprising, but I have seen too many abuses when the absolute right to control medical rests in one party or the other…A hybrid choice with input and agreement from both employer and employee might be a nice alternative.” One responder commented, “Being a believer in checks and balances, I would choose a system that allows the employee to select the physician with the approval of the employer.” And finally, someone said it succinctly: “I think in order to create trust and a good claims process, both parties should play a role in the health care provider.”
Respondents were almost evenly split between those who favored the employer making the decision about the physician and the employee making the decision. Interestingly, both opinions supported their view with references to research that supported their opinions. So much for relying solely on statistics!
Others brought up real problems with medical care, whether the employee or the employer controls medical care. Among the problems mentioned were the difficulties in finding appropriate specialists who would accept workers’ compensation patients. Another mentioned the importance of using providers “who understand the need for recovery and return to work goals to improve the condition of the worker.” As Bob Wilson says, it is all about recovery.
Conclusion: Looking Forward
Comments like those in response to this blog’s first questionnaire are important during this year commemorating the fiftieth anniversary of the report of the National Commission on State Workmen’s Compensation Laws. It’s also significant, considering the United States Department of Labor’s report during the Obama administration, “Does the Workers’ Compensation System Fulfill Its Obligations to Injured Workers?” That report said the states were moving further from the recommendations in the Commission’s report and were not addressing the issues that have arisen since then.
As written in this blog last month, just because the “right” workers’ compensation system has been discussed for fifty years without a clear answer, doesn’t mean it can’t be done. The answer could start with a simple blog.
Thanks to all who contributed so far to a robust dialogue. Let’s keep the conversation going.
A day rarely goes by when emails, social media, blogs, and news articles don’t discuss workers’ compensation – what’s wrong with it, or what can “fix” some part of it. But there is no universal agreement on what “it” should be.
Equally troubling, no consistent platform has existed from which the workers’ compensation community can have a dialogue about issues the industry faces. The purpose of this blog is to encourage that discussion from a broader range of participants. This includes you. Your feedback and participation will largely determine which direction the blog goes, and what it discusses.
In 1972, the National Commission on State Workmen’s Compensation issued a report that contained recommendations rather than edicts. Its charge was to “undertake a comprehensive study and evaluation of State workmen’s compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation.” The resulting report was largely critical of states’ workers’ compensation programs, but the commission didn’t have the authority to declare what workers’ compensation had to be.
We could assume that the commission’s recommendations constituted what workers’ compensation should be, but the ideas were not voted on by Congress, nor were they incorporated as amendments to the Constitution. While many states made changes based on the commission’s recommendations, no state adopted all the recommendations in the commission’s report.
Fifty years have now passed since that groundbreaking study was published, and we’re still discussing and debating the scope of workers’ compensation in both Congress and within state legislatures. The passage of fifty years makes this year an appropriate time to have an extended exchange of ideas about what the ideal system includes. This exchange may influence regulators, academics, legislators, insurers, employers, and employees when opportunities present themselves to make changes.
A useful place to start is this blog. You may view it as “a virtual town hall,” where differing points of view are welcomed and considered, and only civil discourse is allowed. The goal of these discussions is to create consensus for changes that can build a better future for worker’s compensation in the United States.
The first step of such a conversation is deciding where to start. We’ve developed a brief questionnaire with four possible topics for the discussion. Your input is both requested and greatly appreciated. Click the link below to answer questions about topics to discuss.
We look forward to a free-flowing, constructive dialogue. Just because there have been discussions about what’s the “right” workers’ compensation system for fifty years without clear answers, doesn’t mean it can’t be done. The answer could start with a simple blog.
