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WORK COMP 101 - What They Should Have Told You....

WORK COMP 101
(What They Should've Told You When You Bought Your First Business License)
Author: Lawrence S. Pohl, M.D., M.P.H.
Author: David D. Smith, M.D., F.A.A.O.S.
Dated: October 12, 2007
Word Count: 1820

Workers Compensation 101

The topic of worker's compensation has different connotations to the employer, the injured employee, and the doctor. Many doctors attribute a negative feeling toward this discipline, and this is often due to misunderstanding and stereotypes that are perceived.

Early workers compensation laws were a trade-off between employer and employee. The laws provided benefit to the injured workers, regardless of fault, in exchange for the employer's limited liability. The employer could no longer use traditional defenses, while the worker gave up his right to sue for potentially large pain and suffering damages. Providing worker's compensation benefits by the employer has become mandatory and is a significant cost and responsibility of conducting business in California. Employers may purchase workers' compensation insurance through a private insurance company or elect to be self-insured if they meet certain qualifications. The employee does not contribute to the cost. The Division of Worker' Compensation, within the California Department of Industrial Relations, regulates the California Worker's Compensation System. The California Workers' Compensation Appeals Board (WCAB) is the judicial body that makes rulings for disputed issues within the system.

Treating patients with work-related injuries can be challenging, given the various rules within the system, but can be very rewarding as we see injured worker return to his usual and customary duties. Work-related injuries can be specific, or acute, such as a lumbosacral strain, or could be cumulative, such as tendonitis or Carpal Tunnel Syndrome. There also may be a work related illnesses, such as a hypersensitivity pneumonitis from inhalation of dust particles, Tuberculosis, from work exposure to active TB, or diseases such as asbestosis or pleural mesothelioma, which often can have a latent period of 30 or more years.

When the injured worker presents to the physician, the first priority is to determine if the particular injury is work-related. For an injury to be considered work-related and thus fall under the jurisdiction of the California workers' compensation laws, the injury must arise out-of and in-the-course-of-employment (legal abbreviation is AOE/COE). There must be a causal relationship between the employment and the injury sustained. There also must be a relationship of time and place between the injury and employment, that is, while the employee was performing an activity related to his job.

Sometimes, the injury is straightforward, and clearly work related, such as a patient bending over at work, and in the process of lifting a heavy item, straining his back. Other instances are not as clear, as a mechanic who lifts, bends and stoops at work on a regular basis, but can not remember a specific incident leading to this injury. Another example is, if a worker suffers a myocardial infarction while at work, he or she has suffered an injury in the time and place of employment, but for there to be compensation, the heart attack would have to be caused by the work. In our state, in firefighters, and police officers, there is a presumption within the law that the heart attack is work related. This is not the case in most other occupations, and causation must be proven.

When the doctor determines that the injury or illness is work-related, he must fill out a Doctor's First Report of Injury Form. In this form, the doctor must describe the injury, present the subjective and objective findings, the impression, whether he feels it is work related, and if there are other factors that would inhibit healing or if there were prior similar injuries that have not resolved at this time. The doctor also must document a treatment plan, estimate when the patient would be cured of his injury/illness, and make a determination if the patient may return to his regular duties, be on modified duty, with specific restrictions, or be off work, on what is called in the workers' compensation system, Total Temporary Disability (TTD). It is to the benefit of the employer and the employee that the patient be returned to modified and then regular duty as soon as feasible. This can be accomplished in the vast majority of cases, and ensures efficient resolution of the case, and avoids the development of the "disability mentality" and becoming deconditioned.

The modalities available for treatment are not different than treating other patients with private insurance plans, and include medication, physical therapy, chiropractic, acupuncture, diagnostic studies, injection therapy, surgery and many others.

From a physician's standpoint, one has to walk the fine line between the needs of the patient, the employer, and the insurance company. The key to facilitate efficient resolution of work-related injuries is prompt treatment, and communication between the injured worker, the employer representative and the insurance adjuster.

There are some differences in the workers' compensation system from the private arena. These include the concepts of apportionment,TTD (total temporary disability) payments, firm guidelines for utilization review, the ACOEM (American College of Occupational and Environmental Medicine) guidelines, Qualified Medical Evaluations (QME), and use of the AMA Guides to Impairment, when a patient has reached a period of maximal medical improvement (MMI), also called Permanent and Stationary (P and S).

Apportionment is the legal concept that the causation of an injury may be apportioned, percentage-wise to several different etiologies. For example, let us take the case of a 60 year old male with a history of significant degenerative arthritis of his lumbar spine, who has had several previous back surgeries, from which he has never fully recovered, but has been able to work as a mechanic. Suppose, he has an acute injury to his lower back, when he slips and falls at work, sustaining a lumbosacral strain. At the point that he reaches a point of MMI, the treating physician must make a determination about apportionment, that is, what portion of the back condition was pre-existing to the acute injury, and what portion was attributed to the recent fall. This determination has legal and financial ramifications.

In the workers' compensation system, not only are all medical costs paid for the injured worker, with no deductible or co-pay, but the injured worker is also entitled to total or partial temporary disability payments, if he or she is not able to work, or there is no appropriate modified duty available from the employer. The worker, while on TTD, receives up to 2/3 of his income, up to approximately $700 per week. This differs from the private arena, where, if the patient cannot work he may be entitled to State Disability Insurance (SDI), but this amount is much less. Parenthetically, the injured worker may also apply for SDI, in addition to his workers' compensation payments.

Several years ago, workers' compensation costs were rising at an alarming rate, and were costing employers more and more money, and forcing some out of business or out of the state. Part of these runaway costs was due to over utilization of services, such as physical therapy and chiropractic. In 2004, due to the efforts of Governor Schwarzenegger and the legislature, in an effort to stem these rising costs, and loss of companies to other states, a sweeping legislation was passed: SB-899. One of the most important aspects of this legislation was the institution of stringent utilization review requirements. Each workers' compensation insurance company was required to have a utilization review program, with physicians doing a large portion of the reviews, covering topics such as PT, chiropractic, MRI's, surgery, epidural steroid injections, facet injections and the like. A cap was instituted for chiropractic and physical therapy of 24 per year, at the most.

Along with these changes, there was the adoption of the American College of Environmental and Occupational Medicine Guidelines (ACOEM) to be presumed correct, from a legal standpoint. Generally, the ACOEM Guidelines stress functional restoration as indicative of reasons for approving further treatment, such as PT, or chiropractic; there needs to be shown subjective and/ or objective improvement from a treatment modality if further treatment was to be recommended. Physicians all over the state are making peer-to-peer telephone calls to determine and understand their colleague's rationale for a particular treatment plan.

When a patient has reached a period of maximal medical improvement (MMI), physicians or other providers are required to do a permanent and stationary report, and determine factors such as apportionment (see above), appropriate future medical care, and most recently Impairment rating; this rating must be done using the AMA Guides to Impairment Rating, Fifth Addition. Depending on the body part, there are various measurements of ROM, presence of spasm, objective findings of radiculopathy or neuropathy, that translate into first, a local impairment rating, for example the hand, and then converted into a whole body impairment rating. This rating is used by the State of California Disability Rating system, and takes into consideration factors, such as future earning capacity, type of occupation, and age, to convert to a disability rating. This disability rating translates into a monetary payment, if impairment and therefore disability is found, for the injured employee.

Qualified Medical Examiners (QME's) are certified by the state to give a second opinion if either the injured worker (or his attorney, if he is represented) or the employer disputes any aspect of the permanent and stationary determination.

How does this look from a physician's standpoint? The physician who is willing to treat injured employees can build a close relationship with both the injured employees and groups of employers. As the injured worker moves through the system and observes that you have treated him efficiently and in a caring manner, he may choose to refer friends or relatives to you. As employers have watched you treat their employees appropriately, they may choose to send other employees to you, both workers' compensation and private patients.

How does the system work from an injured workers' standpoint? The injured employee is treated appropriately for his injury, and is kept working, albeit with certain specific restrictions. He is paid for all his medical care, and does not have to worry about high deductibles, co-pays, and high hospital bills. In over 95 per cent of cases, the injured worker is able to return to his livelihood of gainful employment. If he is one of the unfortunate employees who must be off work for a period of time, he is reimbursed to some extent for his time off work. If he cannot return to his usual and customary duties, employers are given incentives to create a permanent modified duty position for the employee. If the injured worker is determined unable to return to full duty or a modified duty position, he usually receives a lump sum payment, sometimes payment for vocational rehabilitation costs and continued payment of his medical costs.
No, it is not a perfect system, but with the cooperation of the main players, the doctors, therapists, insurance companies, nurse case managers, employers and the patients, a fair shake is possible for all involved.