“It’s complicated” is one of the most repeated phrases heard in workers’ compensation. Whether it is in legislators, employers, judges, medical providers, administrators, or insurance companies, heads nod in agreement when someone says the basic problem is that “it’s complicated.”
It does not matter if the issue is about the definition of a compensable injury, definitions of injuries, the right basis for compensation of permanent disability we use the phrase “it’s complicated” to explain the failure to find consensus. It is the same with discussions about whether temporary total disability benefits should continue until maximum medical improvement or limited to a specific period, whether disability benefits should be based on lost wages or the degree of impairment. Even consensus about the appropriate goals of workers’ compensation can be elusive.
The road to passage of workers’ compensation statutes in the United States did not begin with debates about these issues, however. It was about how to provide a compromise between those pushing for no-fault compensation for injured employees and employers who wanted protection from liability lawsuits for injuries that occurred on the job. It was a new concept and took years for laws that passed constitutional challenges to go into effect.
People have dubbed this approach to providing programs for injured employees as both the Grand Compromise and the Grand Bargain. Whether it was a compromise or a bargain, it took until 1948 for all states to pass a workers’ compensation law. The first statutes were not generous, but they offered advantages for both employees and employers. While there were similarities among the states’ statutes, each was unique. The multiplicity of interests in our fifty states guaranteed complications, which only grew as each state dealt with emerging issues.
Some of these laws improved benefits especially in the period after World War II, but other laws did the opposite as the pendulum of political opinion swayed back and forth. In the 70s the National Commission on State Workmen’s Compensation published a report that criticized workers’ compensation laws as “inadequate and inequitable” and proposed nineteen essential recommendations that in they thought would bring state’ programs to more acceptable levels. Following the publication of the report some states amended their statutes to comply with the recommendations, but by the early nineties the cost of the workers’ compensation rose so that employers in several states successfully pushed for laws that would lower costs. These reforms brought praise from some segments of society while others castigated them as a “race to the bottom.”
So, there is no argument that much about workers’ compensation is complicated. However, there is more to workers’ compensation than the laws associated with these complications. Some of the most important determinants of the outcome of work-related injuries are not complicated and do not require a long legislative process. They are approaches to workers’ compensation that can improve outcomes for employers and their injured employees. That is not to say that these approaches are all easy to implement and maintain. Some are but others require time and effort. They are worth the effort in the final analysis.
To be successful most solutions depend on a strong relationship between employees and employers. If employers’ actions reflect the motto that many espouse, “our employees are our greatest asset,” employees and employers are more likely to work together successfully to minimize the consequences of injuries without unnecessary delays or contentious legal battles that delay recovery and poison the atmosphere in the workplace.
Building strong relationships with employees begins before they are employed by building a culture that shows the employer values its employees and treats them fairly. This message provides a durable foundation with employees and employers should communicate it on the first day of employment and reenforce the message periodically. Waiting until there is an injury to communicate employer support lessens the probability that it will convince employees the employer is really interested in their welfare.
Communications do not need to be fancy or expensive. They just need to be accurate, easy to understand, and without jargon or acronyms. They can be in the form of a written company policy, a welcome letter, newsletter, or some other method of communication. To be effective, however, the actions of management and especially immediate supervisors must be consistent with the messages communicated. The experiences of injured employees communicate the employer’s true attitude to a workforce more effectively than words. During an interview with an employer with an outstanding return to work program, I often heard employees talk about how senior officials had gone to the hospital, sent personal notes, or arranged to have yard work done for someone with a severe injury.
Standing by injured employees is not complicated but its importance is hard to over emphasize. When employees are injured, it can be stressful. They worry that their co-workers will resent having to cover for them while they are out, that they will not be able to do their job again, or that their job will not be there when they recover. WCRI conducted interviews several years ago with individuals who had workers’ compensation injuries and found that their biggest fear had been that they would lose their jobs if they filed a claim. Other studies hypothesized that a contributing factor in the decline in the frequency of injuries over the years resulted in part from employees not filing a claim for fear of losing their jobs. Alleviating these concerns makes a positive difference in employees’ attitudes which can make a significant difference in the ultimate outcome of their injuries.
Continuing communication after the initial recovery period supports the relationship with injured employees during their recovery which improves the likelihood of a good recovery. The damage caused by an employer’s silence toward injured employees who sit at home and imagine the worst about their future is significant. A good practice is to have someone on staff who is emphatic and knowledgeable to be a channel for communications between injured employees and the employer, insurance company, and/or third-party administrator. This person can be a source of information, encouragement about returning to work, and adept at being a problem solver if issues arise. If a company is large enough to have a person whose sole responsibility is to be such a person, it will be a worthwhile investment, but it is not necessary for all employers. The critical need is to stay connected with injured employees and actively encourage a good recovery, so someone who is in this role part time can still make a positive difference. It is not complicated.
In addition to communications, there are other ways that employers can improve the progress of recovery that are not overly complicated. One way is to make sure that the medical care injured employees receive is appropriate. If an employer has the legal right to select providers, they can make a significant difference in outcomes by the providers it selects. It makes a positive difference when physicians are: located within a reasonable distance of employees, are able to treat patients relatively quickly, willing to communicate with the employer or adjuster, trained to understand the psychosocial aspects of patient care, and are motivated to help employees participate effectively in their own recoveries. Today finding such doctors may be challenging and may require higher fees, but the benefits physicians with these attributes are well worth the effort. The outcomes will be better, and the overall cost can be lower.
One of the best ways to improve outcomes is for the employer to develop a return-to-work culture. This sends the message that the employer wants to help injured employees return to their preinjury life as soon as possible and to be able to come back at work. When injured employees return to work sooner, it reduces their wage loss, cuts workers’ compensation costs, and helps employees recover sooner and more completely. It may also provide a psychological boost to injured employees when they can get out of the house and back into their familiar work world. For those interested in return-to-work programs, the state of Tennessee has developed a toolkit for employees who are interested in developing a return-to-work program. It is available to the public; the link is https://www.tn.gov/workforce/injuries-at-work/employers/employers/bwc-reward-rtw-program/reward-employer-toolkit.html.
Of course, the best solution to workers’ compensation injuries is to prevent them from happening. Safety in the workplace is another area where success depends on a strong relationship between employees and employers. Safety begins with identifying the type of accidents that occur, how frequently they occur, and the underlying causes. With this information employers can develop training programs, but like communication success depends on a positive relationship between employer and employee. In my former life I tackled a high incidence of back injuries among employees whose jobs involved lifting and the use of heavy equipment. Our first step was to interview employees. They were critical of the training videos we used because they were about people who did not do what they did, and they did not use the equipment they used. With this insight we produced a video in cooperation with a physical therapy firm that featured our employees performing their job duties and using the equipment they used. Employees gave the new video high marks and it sparked conversations with the physical therapists about how they might avoid back injuries in the future. In the year following the new training approach, back injuries dropped 25%. It was not a complicated solution; the key was employee involvement in finding a solution.
These examples only scratch the surface of what an employer can accomplish in their workers’ compensation program within the laws of the state(s) they operate despite the complexity of those laws we so often criticize. The key to successful programs requires a strong connection between employers and employees and a willingness to build programs over time, rather than look for quick fixes to change the future for the better.
It’s not complicated.
