State Compensation Insurance Fund 2007

Transcription

1 to Patient Care in the Workers Compensation System 2007 This Guide is based upon selected highlights of recent workers' compensation legislation and is current through November 15, This Guide is solely intended to assist physicians in navigating the workers compensation system. This Guide is not intended to be a complete list of regulatory or statutory requirements and is not intended to be a substitute for, or a legal interpretation of, any regulations or statutes. Because this is a general guide based on recent changes in the law, it does not contain all requirements and may be subject to revision upon future changes in the law. It is the responsibility of the reader to refer to all applicable regulations, statutes, and case law for detailed and exact information, specifications, requirements, and exceptions Readers are cautioned to obtain legal advice for complete and updated regulatory and statutory information.

2 Table of Contents CHAPTER 1: THE CALIFORNIA WORKERS COMPENSATION SYSTEM AT A GLANCE... 1 BENEFITS AVAILABLE TO THE INJURED EMPLOYEE... 1 Medical Benefits... 1 Temporary Disability (TD) Benefits... 1 Temporary Total Disability (TTD) Payments... 2 Temporary Partial Disability (TPD) Payments... 2 Permanent Disability (PD) Benefits... 2 Vocational Rehabilitation Benefits (Dates of Injury Prior to 1/1/04)... 2 Death Benefits... 2 CHAPTER 2: THE ROLE OF THE PRIMARY TREATING PHYSICIAN... 3 OVERVIEW... 3 DUTIES OF PRIMARY TREATING PHYSICIAN... 3 Initial Exam Report... 4 Primary Treating Physician Progress Reports... 4 Primary Treating Physician s Permanent and Stationary Report... 5 Causation and Apportionment... 5 ADDITIONAL DUTIES: MEDICAL PROVIDER NETWORK (MPN) DISPUTE RESOLUTION... 6 Second-and Third-Opinion Process... 6 Independent Medical Review (IMR) Process... 7 REIMBURSEMENT OF REPORTS... 7 Reports Not Separately Reimbursable... 8 Reports Separately Reimbursable... 8 CHAPTER 3: CLINICAL MANAGEMENT... 9 OVERVIEW... 9 TREATMENT GOALS RETURN TO WORK DELAYED RECOVERY THE MOTIVATION FACTOR SECONDARY GAIN COMMUNICATION IS THE KEY Communicating With the Injured Employee Communicating With the Employer Communicating With the Claims Administrator THE PROBLEM OF LITIGATION TOXIC EXPOSURE CASES CHAPTER 4: RETURN TO WORK OVERVIEW CORNERSTONES OF DISABILITY PREVENTION AND MANAGEMENT Consequences of Disability to the Individual Functional Recovery and Return to Work Employer s Role Clinician s Role... 18

3 FORMULATING AND COMMUNICATING A WORK PRESCRIPTION TO THE EMPLOYER/INSURER Employee s/patient s Role Payer s Role CHAPTER 5: MEDICAL UTILIZATION REVIEW OVERVIEW DEFINITIONS: UR PROCESS The Treatment Plan Treatment Authorization Requests UR Time Frames Expedited Review Denial Decisions UR Appeals UR Reconsiderations UR Dispute Process Second-and Third-Opinion Process Tips for Faster Processing of Your UR Request Hours of Availability Pharmacy Benefit Management Program Spinal Surgery and the Spinal Surgery Second-Opinion Process State Fund MPN Treatment Authorization Program (TAP) CHAPTER 6: AMA GUIDES THE EVALUATION OF PERMANENT IMPAIRMENT OVERVIEW DEFINITIONS GENERAL PRINCIPLES OF THE AMA GUIDES Whole Person Impairment (WPI) Rating SUBJECTIVE FACTORS PHYSICIAN S FINAL REPORT OF DISABILITY CALCULATING PERMANENT IMPAIRMENT The Spine The Upper Extremities The Lower Extremities MULTIPLE IMPAIRMENTS CHAPTER 7: PREVENTING FRAUD OVERVIEW PROVIDER FRAUD Billing Fraud Treatment Fraud APPENDIX A: SAMPLE FORMS APPENDIX B: RELEVANT LABOR CODE SECTIONS...46

4 APPENDIX C: RESOURCES...67 LIST OF STATE FUND OFFICES AND LOCATIONS GLOSSARY...73

5 Chapter 1: The California Workers Compensation System at a Glance Overview Every year California s assembly lines, farms, manufacturing facilities, offices, and other places of employment produce some sobering results: Thousands of employees become ill, are injured, or are killed in the course of their employment. Under California law, employers are liable for bearing the cost of any occupational illness or injury. The California Workers Compensation System is a legislatively mandated expression of social policy. Under California law, California s employers must provide employees with, among other things, compensation for workrelated injury, illness, or death regardless of the fault of any party. In California the law requires employers to provide workers compensation insurance that serves two functions: 1. To ensure that injured employees receive prompt and complete medical treatment and wage-replacement benefits for work-related injuries and illness; and 2. To enable the employer to assume a known and limited liability rather than risk the unknown--and possibly disastrous--liability from civil lawsuits. The majority of California workers compensation law is codified in the California Insurance Code, California Labor Code (LC), and the Rules of Practice and Procedure of the Workers Compensation Appeals Board (WCAB), which appear in Title 8 of the California Code of Regulations (CCR). Appropriate citations from these sources appear throughout the text. Benefits Available to the Injured Employee The following types of financial benefits provided to an injured employee depend on the severity of the injury or illness: Medical Benefits All injured employees are entitled to medical treatment for work-incurred injury or illness that includes professional services, hospital charges, nursing care, medications, and medical and surgical supplies that are reasonably required to cure or relieve the injured worker from the effects of his or her injury (LC 4600). The services of a qualified interpreter may be authorized in some situations. Temporary Disability (TD) Benefits TD indemnity is a tax-free benefit paid to compensate an industrially injured or ill employee for the period in which he or she is undergoing medical treatment and is unable to work. TD payments are based on a seven-day week. Financial incentives or disincentives may influence motivation for return to work. 1

6 Temporary Total Disability (TTD) Payments Temporary total disability payments are calculated using a formula based on two-thirds of the injured employee s average weekly earnings at the time of the injury (LC 4653). TTD payments are subject to maximum and minimum amounts. For 2007 the maximum is $ a week; the minimum is $ a week. Both rates are scheduled to increase in The 2008 maximum will be $ a week; the minimum will be $ a week. Temporary Partial Disability (TPD) Payments When an injured employee has been released for modified duty that is available only at a reduced wage or reduced hours the injured employee may be eligible for TPD benefits during the recovery period. The TPD payment is based on two-thirds of the actual weekly wage loss and is subject to the statutory maximum and minimum amounts (LC 4657). Permanent Disability (PD) Benefits Under the California workers compensation system, permanent disability is expressed in terms of a rating that is a percentage of total disability, the latter being considered as 100 percent. In rating PD, consideration is given to the nature of the injury or disfigurement, occupation of the injured employee, and his or her age at the time of injury, with consideration given to an employee s diminished future earning capacity. The nature of the physical injury or disfigurement must incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, 5 th Edition (LC 4660). The amount of PD compensation can be determined after the employee has reached maximum medical improvement (permanent and stationary), meaning the employee s condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment. Vocational Rehabilitation Benefits (Dates of Injury Prior to 1/1/04) When an injured employee is unable to return to his or her usual and customary occupational duties as a result of permanent impairment, the injured employee may receive vocational rehabilitative services that are reasonably necessary to restore the individual to suitable gainful employment For an injured employee to receive vocational rehabilitation benefits, he or she must be found to be a Qualified Injured Worker (QIW). Under California law, a qualified injured worker is defined as an employee who is both medically eligible and vocationally feasible. Death Benefits When a work-related injury/illness causes the death of that injured employee, the employer is liable--in addition to any other benefits--for the following death-related benefits (LC ): 1. Reasonable burial expenses for the employee, not exceeding $5,000 for injuries occurring on or after January 1, 1991; 2. A statutory death benefit to be paid to the dependents of the deceased employee; and 3. In the event the deceased leaves no surviving persons who were financially dependent upon him or her at the time of death, the commuted value of the death benefit is payable to the Department of Industrial Relations. 2

7 Chapter 2: The Role of the Primary Treating Physician Overview Labor Code of the workers compensation laws of California defines a physician as including physicians and surgeons holding an M.D. or D.O. degree, psychologists, acupuncturists, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California State law and within the scope of their practice as defined by California state law. However, an acupuncturist cannot determine disability (LC (e). In addition to the definition in LC , physicians located and licensed to practice in another state may provide treatment in accordance with LC A primary treating physician is the physician who is primarily responsible for managing the care of an injured employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter. The primary treating physician can be an employer-designated physician or employee-selected physician as outlined in the Section 9785, Title 8, of the California Code of Regulations. (See Appendix B) Only one primary treating physician is allowed at a time. If the primary treating physician releases the injured employee from care with no need for continuing or future medical treatment, and a dispute arises over the need for further medical care, no other primary treating physician can be selected until the dispute is resolved. (Resolution requires the procedures described in LC ) A secondary physician is any physician other than the primary treating physician, who examines or provides treatment to the injured employee, but is not primarily responsible for continuing management of the employee s care. The secondary physician shall report to the primary treating physician in the manner required by the primary treating physician. A physician s assistant or nurse practitioner may provide medical treatment for a work-related injury within the scope of their respective license and under the supervision of the treating physician. The primary treating physician shall make any determination of temporary disability and shall sign the report (LC ). All care given the injured employee is ultimately the responsibility of the supervising physician. Duties of Primary Treating Physician REPORTING When to report What to report How to report Whom to report Why to report The primary treating physician should work closely with the claims adjuster to coordinate the injured employee s recovery. 8 CCR 9785 specifies the primary treating physician shall make reports to the claims administrator rendering opinions on all medical issues necessary to determine the injured employee s eligibility for compensation. Issues include diagnosis of the work injury or illness, a timetable for recovery, and determination of when the injured employee is medically able to return to transitionally modified or alternate work. These reports may be transmitted via fax, U.S. postal mail, or by any other means satisfactory to the claims administrator. 3

8 Duties of the primary treating physician include: Determine medical causation, specifically, the work relatedness of a condition. Provide diagnosis and treatment. Communicating the patient s functional status to the claims administrator. Providing timely, accurate reports (DLSR 5021, PR-2, PR-3, PR-4). Determining work restrictions, and releasing the injured employee to return to work. Managing and coordinating the care of the injured employee. Obtaining all the reports of secondary physicians, and incorporating or commenting upon the findings and opinions. Writing and/or consolidating reports. Determining when the condition of the injured employee is permanent and stationary. Providing copies of reports to the claims administrator. Initial Exam Report Within 5 working days of an initial exam, the primary treating physician shall submit a Doctor s First Report (DFR) of Occupation Injury or Illness (Form DLSR 5021; see Appendix A). On Line 24 of the DFR, or continuing onto the reverse side if necessary, the primary treating physician shall establish a treatment plan listing all methods, frequencies, and durations of the medical treatment. Additionally the type, frequency, and duration of planned physical medicine services (for example: physical therapy, manipulation, acupuncture) must be specified. When appropriate, the primary treating physician must specify recommendations for consultations and referrals to specialists, as well as the need for surgery or hospitalization. The primary treating physician is responsible for overseeing the medical care of the injured employee and ensuring that all reasonable and necessary medical treatment is provided. Secondary physicians, physical therapists, and other health care providers to whom the employee is referred shall report to the primary treating physician. The primary treating physician is responsible for obtaining all of the reports of the secondary physicians and other health-care providers and shall incorporate or comment upon the findings and opinions of the other physicians in the primary treating physician s report, which is due no later than 20 days after receipt of this information. Primary Treating Physician Progress Reports Additionally, the primary treating physician shall report to the claims adjuster within 20 days when any of the following events occur: 1. The employee s condition undergoes a previously unexpected significant change. 2. There is any significant change in the treatment plan reported, including, but not limited to, (A) an extension of duration or frequency of treatment; (B) a new need for hospitalization or surgery; (C) a new need for referral to or consultation by another physician; (D) a change in methods of treatment or in required physical medicine services; or (E) a need for rental or purchase of durable medical equipment or orthotic devices. 3. The employee's condition permits return to modified or regular work. 4. The employee's condition requires him or her to leave work, or requires changes in work restrictions or modifications. 5. The employee is released from care. ( Released from care means a determination by the primary treating physician that the employee s condition has reached a permanent and stationary status, with no need for continuing or future medical treatment.) 4

9 6. The primary treating physician concludes that the employee's permanent disability precludes, or is likely to preclude, the employee from engaging in the employee's usual occupation or the occupation in which the employee was engaged at the time of the injury, as required pursuant to LC 4636(b). 7. The claims administrator reasonably requests appropriate additional information that is necessary to administer the claim. Necessary information is that which directly affects the provision of compensation benefits as defined in LC When continuing medical treatment is provided, a progress report shall be made no later than 45 days from the last report of any type under this section, even if no event described in paragraphs (1) to (7) has occurred. If an examination has occurred, the report shall be signed and transmitted within 20 days of the examination. Except for a response to a request for information made in paragraph 7 above, reports shall be submitted on the Primary Treating Physician's Progress Report form (DWC Form PR-2) contained in 8 CCR (as shown in Appendix A), or in the form of a narrative report. If a narrative report is used, it must be entitled Primary Treating Physician's Progress Report in boldfaced type, must indicate clearly the reason the report is being submitted, and must contain the same information, using the same subject headings in the same order as DWC Form PR-2. A response to a request for information made in paragraph 7 may be made in letter format. A narrative report and a letter format response to a request for information must contain the same declaration under penalty of perjury that is set forth in DWC Form PR-2: I declare under penalty of perjury that this report is true and correct to the best of my knowledge and that I have not violated Labor Code Primary Treating Physician s Permanent and Stationary Report When the primary treating physician determines that the employee's condition has reached permanent and stationary (P&S) status the physician shall submit a P&S report within 20 days from the date of examination. The P&S report shall include any findings concerning the existence and extent of permanent impairment and limitations (permanent disability) and, in addition, shall specify any need for continuing and/or future medical care resulting from the injury. The P&S report may be submitted on the Primary Treating Physician's Permanent and Stationary Report form (DWC Form PR-3, for injuries with a finding of permanent and stationary status prior to , or DWC Form PR-4, for injuries reaching a permanent and stationary status after ) contained in section CCR or section 8 CCR (as shown in Appendix A), or in such other manner which provides all the information required by CCR (see Appendix B). Qualified Medical Evaluators and Agreed Medical Evaluators may not use DWC Form PR-3 or DWC Form PR-4 to report medical-legal evaluations. For permanent disability, evaluations performed according to the permanent disability evaluation schedule adopted on or after January 1, 2005, the primary treating physician's reports concerning the existence and extent of permanent impairment shall describe the impairment in accordance with the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition (DWC Form PR-4). Causation and Apportionment Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall, in that report, address the issue of causation of the permanent disability. In order for a physician's report to be considered complete on the issue of permanent disability, it must include an apportionment determination. Apportionment of permanent disability shall be determined on the basis of causation. A physician shall make an apportionment determination by finding the approximate percentage of permanent disability caused by the direct result of: 1. The current industrial injury. 2. Other factors both before and after the industrial injury including, but not limited to, prior industrial injuries. 5

10 The physician s opinion on apportionment must be based on reasonable medical probability and must include a detailed discussion explaining how and why the physician came to his or her conclusion on apportionment. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons for not being able to determine the effect of that prior or subsequent condition on the permanent disability arising from the injury. To make the final determination, the physician shall then consult with other physicians, or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation, in accordance with Division 4 of the Labor Code. An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments. If the employee has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof. The physician must explain how the disabilities between the injuries overlap. The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee's lifetime, unless the employee's injury or illness is conclusively presumed to be total in character. For example, the loss of both eyes or sight, loss of both hands or their use, an injury resulting in practically total paralysis, or an injury to the brain resulting in incurable imbecility or insanity. As used in this section, the regions of the body are the following: (A) Hearing. (B) Vision. (C) Mental and behavioral disorders. (D) The spine. (E) The upper extremities, including the shoulders. (F) The lower extremities, including the hip joints. (G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive. Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident, when added together, from exceeding 100 percent. The employer shall be liable only for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. Additional Duties: Medical Provider Network (MPN) Dispute Resolution Second-and Third-Opinion Process If the injured employee is subject to the Medical Provider Network (MPN), and he or she disputes the diagnosis or treatment of the primary treating physician, the dispute will be resolved in accordance with Labor Code This resolution is also known as the second- and third-opinion process, where the employee may seek a second opinion of another physician in the MPN. If the injured employee disputes that diagnosis or treatment prescribed by the second-opinion physician, the employee may seek an opinion of a third physician in the MPN. Additionally, selection of a subsequent physician by the employee shall be based on the physician s specialty or recognized expertise in treating the particular injury or condition in question. 6

11 Independent Medical Review (IMR) Process If the injured employee is still disputing the treatment or diagnostic service after the third physician renders his or her opinion, the injured employee may request an independent medical review (IMR) regarding the dispute. An application for an IMR must be completed and signed by the injured employee or the person authorized by law to act on behalf of the injured employee, and submitted to the Administrative Director (AD). Upon receipt of the application, the AD or the IMR organization shall assign the independent medical reviewer. Following appointment of the independent medical reviewer, the insurer or employer shall provide all relevant material or documentation considered in relation to the disputed treatment or diagnostic service, including both of the following items: 1. A copy of all correspondence from, and received by, any treating physician who provided a treatment or diagnostic service to the injured employee in connection with the injury. 2. A complete and legible copy of all medical records and other information used by the physicians in making a decision regarding the disputed treatment or diagnostic service. Upon receipt of information and documents related to the disputed treatment or diagnostic service, the independent medical reviewer shall conduct a physical examination of the injured employee at the employee's discretion. The reviewer may order any diagnostic tests necessary to make his or her determination regarding medical treatment. To make the determination the reviewer shall use the medical treatment utilization schedule established pursuant to LC , or the American College of Occupational and Environmental Medicine's (ACOEM) Occupational Medicine Practice Guidelines, as appropriate, and take into account any reports and information provided. The reviewer shall determine whether the disputed health-care service was consistent with LC or ACOEM Occupational Medicine Practice Guidelines based on the specific medical needs of the injured employee. Within 30 days of the exam, or less as prescribed by the AD, the reviewer shall render a written report (in layperson s terms as much as practicable) to the AD containing his or her analysis and determination whether the disputed health-care services were consistent with the medical-treatment utilization schedule established pursuant to LC or the ACOEM guidelines. The AD shall immediately adopt the determination of the reviewer and shall promptly issue a written decision to all parties. (LC ) If the IMR finds that the disputed treatment or diagnostic services were consistent with the medical treatment utilization schedule or the ACOEM guidelines, the injured employee may seek the services of a physician of his or her choice inside or outside the MPN to provide those services. Such treatment shall be provided in accordance with ACOEM Occupational Medicine Practice Guidelines. The employer shall be liable for the cost of any approved medical treatment in accordance with LC or Reimbursement of Reports OMFS has been adopted by the Administrative Director as the basis for the billing and payment of medical services provided injured employees under the workers compensation laws of the state of California. Claims administrators shall reimburse primary treating physicians for their reports submitted in accordance with 8 CCR 9785, as required by the Official Medical Fee Schedule (OMFS). The same reimbursement levels apply to both the employee-selected and employer-selected primary treating physicians unless there is a written contract. Some treatment reports are separately reimbursable, others are not. Always provide the supporting documentation to support the level or service or service code for which you are billing, especially if using the higher Evaluation and Management codes. 7

12 Reports Not Separately Reimbursable The following reports are not separately reimbursable, but they are included in the appropriate Evaluation and Management code: Doctor s First Report of Occupational Injury or Illness (DLSR Form 5021) or other report of the primary care provider with similar information. Initial treatment report and plan. Treating Physician s Report of Disability Status (DWC Form RU90) when the physician has not been able to form an opinion regarding the employee s ability to return to the pre-injury occupation. Report by a secondary physician to the primary treating physician. Reports Separately Reimbursable When an office visit is included, the report charge is payable in addition to the underlying Evaluation and Management service for an office visit. The following reports are separately reimbursable: Primary Treating Physician s Progress Reports (DWC Form PR-2 or its equivalent). Progress reports are separately reimbursable even if the change in the patient s condition or treatment warranting a progress report occurs during the surgical global follow-up period. Use CPT code Final Treating Physician s Report of Disability Status (DWC Form RU90). The physician uses this report when rendering an opinion concluding that the employee is released to return to the pre-injury occupation, or concluding that the employee s injury is likely to permanently preclude the employee from returning to the pre-injury occupation. Use CPT code Primary treating physician s final discharge report. The primary treating physician provides this report when determining that no further medical treatment is needed for this injury, the patient has no permanent disability, and the employee is able to return to work with no restriction or diminished capacity related to this injury. The final discharge report must be submitted using DWC Form PR-2 or its equivalent. Use CPT code Primary Treating Physician s Permanent and Stationary Report (DWC form PR-3 or PR-4). When the physician determines that the employee s condition is permanent and stationary, the physician shall report any findings concerning the existence and extent of permanent impairment and limitations and include an assessment of causation and apportionment, and any need for continuing medical care resulting from the injury. These findings must be reported using DWC PR-3 for injuries with a finding of permanent and stationary status prior to or DWC PR-4 for injuries reaching a permanent and stationary status after Use CPT code Consultation reports. These reports are used when consultation is requested on one or more medical issues by the treating physician, including a second medical opinion on the necessity or appropriateness of previously recommended medical treatment or a surgical procedure. The consulting physician may also charge a confirmatory consultation. Use code

13 Chapter 3: Clinical Management Overview The clinician needs understanding and sensitivity on a few key issues to achieve the best possible outcomes for patients with workers compensation claims: 1. Treatment goals must focus on functional restoration and return to work. 2. Recovery is often dependent on patient trust of the doctor and motivation to participate in the treatment plan. 3. A team approach produces the most successful management of industrial disability. The players include the patient s employer, various ancillary providers, and the claims administrator. 4. Timely and effective communication between all parties is essential. 5. The clinician should be involved with injury prevention. When a clinician ignores these factors, rehabilitation of work-related injury/illness often becomes problematic. The clinician, patient, and employer may all become frustrated when symptoms persist, delaying a return to work despite state-of-the-art diagnostic and treatment methods. The goal of this chapter is to provide a clinical approach and philosophy that will help minimize disability and optimize rehabilitation outcome. As for any patient, the first order of business is to establish a diagnosis. This matter is often straightforward, clearcut, and completed at the first visit. In other cases it may involve observation over time and monitoring response to therapy (for example, establishing a diagnosis of nonspecific mechanical low-back pain or upper-extremity repetitive-strain injury). After establishing a working diagnosis, the physician usually can make a reasoned judgment regarding workrelatedness. This judgment is essential, since it determines who will be the payer. The workers compensation system demands a Yes or a No determination, even when there is medical uncertainty. This requirement can be a source of frustration for the inexperienced clinician who is accustomed to the scientific basis for clinical decision-making. In the workers compensation system, a determination that a condition is probably ( more likely than not ) related to the alleged mechanism of injury or illness is sufficient to establish causation. Statements indicating that a condition is possibly related or that a condition may be related are inadequate to establish compensability and will generally result in further inquiries by the claims administrator. It should be noted that there is nothing wrong with the physician changing an opinion after more information becomes available, (such as more complete history, results of diagnostic testing). If the physician determines workrelatedness immediately but eventually determines causation to be nonindustrial, the cost for the initial evaluation is generally considered compensable under workers compensation. Further medical care, however, will not be the employer s responsibility. 9

14 Treatment Goals The management of work-related injuries must emphasize restoration of function and return to the workplace as the primary objective rather than the alleviation of symptoms. If not, the treatment of workers compensation patients will be fraught with problems. There are at least three reasons for this outcome: 1. The longer an employee is away from the work site, the less likely the chance for a successful return to work. 2. Brief periods of rest may be necessary to initiate healing, but prolonged rest will cause deconditioning, which impedes further healing and may predispose the employee to chronic symptoms. 3. When there is a delay in the return to work, psychological factors interfere with recovery. Once functional restoration and return to work are the primary treatment objectives, the injured employee can become an active participant in the rehabilitation process. For example, the clinician can de-emphasize passive modalities that alleviate symptoms but do nothing to improve strength and flexibility, while introducing exercise therapy and transitional work as essential elements of the treatment plan as early as possible. Discussion and reinforcement of the treatment goals should occur at every visit to avoid misunderstanding and dependency, and to establish the patient as a partner in the rehabilitation process. A clear understanding of the treatment goals facilitates successful outcomes and minimizes the frustrations of delayed recovery. Return to Work (See Chapter 4: Return to Work for a complete discussion of a return to work.) Returning the injured employee to gainful employment as expeditiously as possible is a major goal of the workers compensation system, and the reasoned opinion of the treating physician is essential in this regard. When evaluating an injured employee s functional capacity, the treating physician must understand the essential functions of the job in order to assess the patient s readiness to return. During the period of recovery, the treating physician must work with the employer to identify possible transitional work tasks that would facilitate the employee s rehabilitation. The physician should consider work alternatives, job accommodation, or reassignment to another job. Delayed Recovery Another essential component of successfully managing workers compensation cases is early identification of those patients at risk for delayed recovery. A review of the literature relating to work-related disability reveals a number of demographic and psycho-social variables that appear to be risk factors for prolonged disability. Although severity of injury is obviously a determinant of duration of disability, it is not relevant to a discussion of delayed recovery. Delayed recovery implies failure to regain functional capacity within the expected time period, given the nature of the injury or illness. The type of injury is significant. For example, so-called soft tissue injuries are more likely to be problematic than fractures, dislocations, burns, or lacerations. This aspect is particularly true of spine related conditions (nonspecific mechanical back and neck pain) because subjective complaints often occur without objective findings, there is no opportunity for a right-left comparison, and the source of pain is often obscure--even after a comprehensive diagnostic work-up by experts in spine medicine. Significant factors associated with delayed recovery include age, lack of education, and poor general health. 10

15 Job-related variables of importance include low wages, low seniority, heavy work, low job satisfaction, and poor relationship with supervisor. There has been significant research in this area, but there are no adequately-validated, predictive tools available to date. The Motivation Factor Most risk factors for delayed recovery are associated with the level of motivation to return to work. Experienced vocational rehabilitation professionals usually can recall at least one example of phenomenal recovery of function following severe trauma. These individuals have the will to recover and refuse to accept disability, despite extensive injury. At the opposite end of the spectrum are those individuals who persistently complain of pain and other subjective symptoms, with little or no objective findings (that is, they are functionally disabled without evidence of physiologic impairment). The importance of motivation cannot be overstated. The physician must consciously assess patient motivation and attempt specific psychotherapeutic interventions when appropriate. The earlier the physician can identify patients at increased risk for delayed recovery and chronic disability, the greater the potential to arrest the process and return the patient to a productive lifestyle. Secondary Gain The assumption has been that disability behavior is learned, because the same impairment produces very different behavior in different individuals. There are a number of psychological influences that reinforce the disabled role and counteract the desire to recover. The term secondary gain has been used to describe the factors that contribute to the maintenance of symptoms and inhibition of work performance. In essence, they create an advantage to persistent disability behavior. Secondary gain is distinct from malingering in that it involves unconscious phenomena that go beyond monetary support. The three identified types of secondary gain are: Sympathy, attention and support. Being excused from responsibility, obligation or challenge. Influence over important people by virtue of their acceptance that the individual is sick. Additionally, the feeling of victimization (that, of having suffered an injustice, of society owing something) is often a factor in secondary gain for workers compensation patients. The current workers compensation system may foster illness behavior in a number of ways: Providing tax-free income, although usually less than full wages, may not constitute a financial hardship on employees earning near the minimum wage. Current laws provide compensation for being disabled, which may make a full effort toward rehabilitation difficult. Disputed cases typically last more than a year. During this time the individual avoids work because he or she feels it would adversely affect the claim. In addition, litigation can prolong symptoms by creating unrealistic expectations of a large financial reward. Patients may recover quickly when their claim is settled. Often multiple physicians evaluate individuals and subject them to extensive diagnostic testing. This extensive treatment reinforces the perception that the patient may have a serious medical condition. 11

16 The treating physician can play a key role in the prevention of delayed recovery. When the disabled employee has persistent symptoms, the temptation is for the physician to respond by providing additional rest and time off from work. This common therapeutic approach actually creates a vicious cycle that prolongs recovery and perpetuates the sick role. Transitional work is the most effective approach for the prevention of chronic disability. It should be a consideration at the first visit and an integral part of the treatment plan. (See Chapter 4.) Communication Is the Key One of the unique features of occupational medicine is the need for the treating physician to function as part of a team. The players on this team include the injured employee, the employer, the physician, and the claims administrator. Depending on the specifics of the case, other parties may be involved, including an occupational health nurse, a physical therapist, a vocational rehabilitation counselor, or the patient s family physician. Communicating With the Injured Employee Experienced clinicians are aware of the importance of trust in the doctor-patient relationship. For the occupational injury patient, the establishment of this trust may be particularly challenging and can require special attention. This need is especially true if the employer has referred the patient. In this situation, the patient may view the treating physician as the stereotypical company doctor whose allegiance is primarily to the employer. This view should never be the case, either ethically or as a matter of law. It is important to remember that professional ethical codes and civil court rulings require that the physician s primary allegiance be to the patient. Ethical and legal obligations notwithstanding, the injured employee often may assume that the employer-designated physician is unable to make objective, unbiased decisions relating to such issues as return to work, and that cost containment considerations are compromising the quality of medical care. For the physician, effective communication and an appropriate bedside manner require an awareness of this potential mistrust. Open and frank discussions concerning the patient s attitude and feelings about work are essential. It is often appropriate to discuss return-to-work goals before establishing the diagnosis and treatment plan. It should be noted that making the decision regarding return to work status can be fraught with pitfalls, especially for the soft tissue injuries that are so common in the industrial setting. These conditions often involve pain syndromes with minimal or no objective findings. It is important to listen carefully to the patient and correlate the subjective complaints with clinical findings and diagnostic studies. Decisions regarding functional status and work restrictions, however, must be the physician s. The physician must make the decision on sound medical judgment and should not be inappropriately swayed by the employer, the claims administrator, the attorney, or the patient s wishes. The challenge for the clinician managing work injuries is to maintain a focus on the patient s problems and to involve him or her as an active participant in the rehabilitation process. It is important to emphasize that the physician, the patient, the employer, and the claims administrator all share a common goal: effective rehabilitation and prevention of further injury. When communicating with the injured employee: Listen. Sit down. Explain. Perform a hands-on exam. 12

17 Communicating With the Employer Communication with the employer is essential in every case for a number of reasons, including: 1. The employer is either directly (self-insured) or indirectly (via a workers compensation carrier) paying for the medical care and disability benefits. 2. The employer has information regarding the work process and physical demands of the job that is essential in making decisions regarding the ability to accommodate functional restrictions. Since the physician does not always have the opportunity to visit the work site, obtaining information from the employer as well as the patient may alert the physician to ongoing issues that need attention (such as personnel problems or lack of adequate health and safety training) or the existence of specific hazards that could be eliminated through workplace redesign. 3. The employer must be informed about the prognosis for recovery in order to plan effectively for modified duty assignments, temporary coverage, or permanent replacement for the injured employee. Optimally, the employer should be consulted as soon as possible after an injury regarding the potential for transitional work so that the injured employee can return to the work site without unnecessary delay. Communicating With the Claims Administrator As the variety of health insurance systems has expanded in recent years, communication between providers and payers has become increasingly complex. It is not uncommon for a primary care physician to belong to dozens of Preferred Provider Organizations (PPOs) and HMOs, each with unique authorization and reporting protocols. The typical medical office has at least one staff person to keep abreast of the resultant paperwork. There are fundamental differences, however, between group health plans and workers compensation in relation to the provision of medical-care benefits. These differences affect the nature and frequency of the physician s communication with the payer. Group health is a contractual arrangement that may include arbitrary limits on the extent of treatment covered. Workers compensation medical care, on the other hand, is a statutory benefit with no arbitrary limits on the frequency, duration, or extent of services. A group health claims administrator simply determines whether a given bill for medical services falls within the contractual limits of the policy. Workers compensation personnel, however, must determine that the medical services rendered are reasonable and necessary to cure and relieve from the effects of an occupational injury, and whether they are likely to produce the efficient recovery of function and return to work. In the workers compensation arena, claims administrators need more frequent contact with physicians because information regarding possible transitional work, job modification, return to work, and prognosis for permanent impairment is critical to the fair and efficient provision of disability payments. This contact with the claims administrator can have real advantages for the physician by providing direct access to the person paying the bills and allowing authorization for the reimbursement of treatment without misunderstanding and resultant delays. It is important to remember that claims administrators have an incentive to assure prompt and effective medical treatment so that claims are resolved as quickly as possible, but there must be clear documentation from the physician about treatment goals and progress toward those goals. When the treatment plan involves unusual procedures or more extensive treatment than is expected for the average patient, the treating physician should provide specific justification. (For a more complete discussion of this process, see Chapter 5: Utilization Review.) 13

18 The Problem of Litigation A significant decline in the litigation rate can be expected when the physician is oriented to the workers compensation system, maintains effective relationships with injured employees, and has learned how to manage common occupational injuries. If the treating physician fails to recognize and address the psycho-social aspects of the recovery process, the injured employee is apt to feel neglected. The doctor then often becomes frustrated because the injured employee is not responding as anticipated. In the workers compensation system, this cycle is what often leads to litigation, which, in turn, tends to perpetuate disability behavior. An injured employee will litigate his or her claim for many reasons. Regardless of the issues in dispute, the litigation process may greatly reduce the chance of successful rehabilitation and the return of functional capacity. Litigation provides incentives to stay away from work, since the system provides permanent disability awards that are related, in part, to duration of disability. Since attorneys receive reimbursement based on the basis of a percentage of the permanent disability award, the goals shift away from functional restoration and focus instead on the financial award or settlement. Toxic Exposure Cases In situations where work disability has resulted from exposure to toxic chemicals, it is important to take care in communicating with the patient. These individuals typically have many questions regarding the type of exposure and potential health effects, but significant data gaps often exist in the exposure and effect information. Particular care is necessary so that the patients receive reassurance when appropriate, without misleading them or withholding information. 14

19 Chapter 4: Return to Work Overview Working in conjunction with our Utilization Review (UR) Program, State Fund s Return to Work (RTW) Program promotes early intervention and injury/illness management to expedite the opportunity for injured employees to return to work. The consequences of disability to the individual are profound and multidimensional in scope, yet many injured employees and their families are unaware of the harm that may result from an unnecessary absence from work. We believe these programs will improve the overall quality of care and reduce unnecessary costs. Early events are key, and the primary treating physician s (PTP s) involvement early in a case can be some of the most valuable work he or she does. During those critical first few days, the PTP sets the tone by providing extra support to make sure anxious or reluctant employees return to full function as soon as possible. This type of care helps avoid inadvertently rewarding evasion behavior or phobic-like reactions to return to work. It is important to stay attuned to the issue of time away from work. An absence of over four weeks should be considered in the danger zone. By one month, many patients begin to develop a disability rather than an ability mindset. The PTP who treats work-related injuries and illnesses plays a vital role in the appropriate management of the return to work process by managing disability and time lost from work as well as medical care. The PTP should be asking the following questions after the initial examination and all follow-up examinations: 1. Can the employee perform his or her regular work duties? 2. If not, what kinds of temporary restriction must the employer consider to determine if a transitional modified or alternative job is available? 3. Is a reduction in daily work hours a practical solution? The emphasis is on keeping life as normal as possible for ill and injured employees, keeping them at work, or safely returning them to appropriate work as soon as possible. The PTPs must step beyond their usual medical treatment approach and actively facilitate the patient s return to work. It is paramount that the clinician should understand the importance of communication with the injured employee on a return to full function as early as possible in a participatory management approach. PTPs can assume patients will work during the medical workup and treatment. Treatment plans can always include staying at or returning to 15

20 work (with modifications as necessary to keep the patient safe and as comfortable as possible), unless bed or home confinement is specifically medically indicated. The following excerpts are reprinted with permission from ACOEM s Occupational Medicine Practice Guidelines, Second Edition, Chapter 5. Cornerstones of Disability Prevention and Management This chapter emphasizes the importance of keeping life as normal as possible for ill and injured workers, keeping them at work, or safely returning them to appropriate work as soon as possible. In addition, the chapter examines tools and techniques that have proven effective in assisting workers to remain engaged in society at all levels. It also examines the role of each of the participants in the stay-at-work/return-to-work (SAW/RTW) process (the employee, provider, insurer, and employer). Most workers who report a work related health concern can return to regular, temporary, or modified duty immediately or within a short time. Occupational physicians and other health professionals who treat work-related injuries and illness can make an important contribution to the appropriate management of work-related symptoms, illnesses, or injuries by managing disability and time lost from work as well as medical care. Prompt return to work in a capacity suitable for the worker s current capabilities and needs for rest, treatment, and social support prevents de-conditioning and disabling inactivity, reinforces self-esteem, reduces disability, and improves the therapeutic outcome in most individual cases and on an aggregate basis. Ill or injured workers can be temporarily placed in different jobs from their usual jobs (temporary duty), or their usual jobs can be temporarily modified to accommodate their limitations and remaining abilities (modified or temporary transitional work). Accommodation, with progressively fewer restrictions as healing occurs, generally has a greater chance of success; the highest success rates are achieved when workers return to a modification of their pre-injury job. Disability management conveys respect for injured or ill employees and provides social support that hastens recovery. Consequences of Disability to the Individual The consequences of disability to the individual are profound and multidimensional in scope, yet many workers and their families are unaware of the harm that may result from unnecessary absence from work. Most adults derive a good deal of their self-image from their work role. The inability to do one s job removes a pillar of his or her self-esteem and sense of well-being, and leads to a profound change in identity. Inactivity leads rather quickly to muscle and joint aches, pain, and stiffness that may become a vicious cycle of inactivity and worsening musculoskeletal complaints. Within a matter of days, muscle mass, tendon strength, and bone mass begin to decline. Reversing these changes often takes much longer than the inactivity that caused them, particularly in older patients. Even limited activity, which often is easier to accomplish at the worksite, can prevent or mitigate these changes. For this and other reasons, patients with no absences from work have the best chance of recovery. Preferential consideration should be given to plans that involve (in descending order) light or modified work, flexible schedules, and reduced hours. Injured workers often experience a decrease in health due to the injury and pain medications. In many cases, depression occurs due to a sharp decrease in an injured worker s quality of life, including a loss of independence. The consequences of disability can affect an entire family, across generations, and often change and reverse traditional societal roles. Individuals may be unable to fulfill their normal roles as spouse or parent, and other members of the family may be forced to assume new duties. The new role may be a barrier to functional recovery. 16