Working Well: Fall 2004

Standardizing the Practive of Workers' Compensation Medicine		Workplace Perspectives
Evidence-Based Medicine Reduces Workers' Compensation Costs		News from OSHA
10 Steps to Preparing an Effective Workers' Compensation Legal Defense

Standardizing the Practice of Workers’ Compensation Medicine:
California Becomes First in the Nation to Adopt ACOEM Guidelines
Many believe that a greater degree of medical practice standardization is needed to help bring a sense of order to complex workers’ compensation systems in which employers, payers, providers and workers often seem to work at cross-purposes. However, some fear that the “art” of medicine may be lost in the process.

In California, where a major workers’ compensation reform effort is under way, the state legislature is the first in the nation to specifically adopt medical practice guidelines published by the American College of Occupational and Environmental Medicine (ACOEM). Officials said they view the ACOEM guidelines as the most comprehensive available, and therefore worthy of integration into the state’s medico-legal system.

“Something great could come out of this for California,” said Lee S. Glass, M.D., J.D., chairman of ACOEM’s practice guidelines committee and lead editor of the   Occupational Medicine Practice Guidelines: Evaluation and Management of Common Health Problems and Functional Recovery in Workers, 2nd Edition. “It would really be great if everybody involved – doctors, insurers, employers, organized labor, plaintiffs’ attorneys and administrators of the system - all came to realize that if they focused on the interests they share in common, they could make mutually beneficial decisions. If they did, the cost of care would go down and the quality of care would go up.”

Given that California is trying to reduce a $29 billion dollar annual workers’ compensation bill without reducing the quality of care that workers receive, the ACOEM believes it is likely that other states will pay close attention to developments there as they unfold.

Guideline Benefits
The ACOEM guidelines are recommendations based on a thorough analysis of evidence. They are intended to provide medical and workers’ compensation information to providers. They also serve as an occupational medicine practice reference guide for employers, adjusters, attorneys, judges and administrators.  According to the ACOEM specific benefits associated with the use of guidelines include:

• Improved Outcomes: When possible, recommendations are based on high-quality, peer-reviewed studies. While medicine has elements that combine art and science, medical literature provides an accepted reference point for discussion about treatment options. In the absence of high-quality studies, guidelines are based on broad stakeholder consensus.
• Decision-Making: The processes are evidence-based, reflective of best practice, easy to document, comprehensive in scope for common work-related conditions and a reliable source of patient care information that can be used for quality improvement purposes.
• History-Taking: Thorough history-taking is considered key to effective decision-making. Under the guidelines, history includes: the personal and work context of the present complaint, similar past episodes, and exposures to physical, chemical or biological factors.
• Early, Safe Return to Work: The underlying principle is to help workers regain function and a return to normal activities as soon as it is safe.
• Utilization Review: External case managers and utilization reviewers can use guidelines to better manage care. The guidelines contain references to duration and limitations, with the caveat that durations and limitations should never be applied without consideration of workplace factors, concurrent disease or other social or medical factors that can affect recovery.

In addition, the use of guidelines enables performance and outcome measurement against established standards. Cost, duration of care, absence and limitation, economic loss, functional status and satisfaction are among factors that can be monitored and measured.
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According to the IBI report, the wrong medical treatment may produce medical results that are wasteful, excessive or ineffective, while too little in diagnostic testing and treatment or the wrong medical treatment may result in unnecessary and avoidable absence and disability.  The IBI study compares full-cost results when physicians provided medical treatment that complied with treatment guidelines to full-cost results when they didn’t apply guidelines.  Evidence-based medical guidelines typically are used to manage the timing and extent of treatment and case monitoring to maximize health and minimize costs.

Summary of Findings 

• In 29 percent of 37,000 non-occupational cases involving lowest-severity, low-back conditions, the treatment did not comply with evidence-based guidelines issued by the federal Agency for Healthcare Research and Quality (AHRQ). 
• 57 percent of employees with diabetes weren’t afforded compliant monitoring services, despite the existence of health coverage for all employees and the severe risk of serious deterioration (e.g., blindness/kidney failure) if their condition isn’t controlled.
• For those with major depression, basic compliant treatment (having a psychiatric medical visit and medication available) was achieved for 88 percent of those diagnosed with the illness, resulting in an 8 percent full-cost savings.
• Analysis of coronary artery disease produced results similar to the prevention effects associated with diabetes. Episodes where treatment was compliant produced higher medical treatment costs. Certain treatments were associated with higher short-term disability incidence, and in some cases, higher absence rates.
• Ear, nose and throat conditions were not found to be amenable to an analysis in the employment setting. ENT conditions are not medically expensive, nor do they result in prolonged disability.

Steps to Ensure Appropriate Treatment

1. Educate employees to ensure that their expectations of appropriate treatment are consistent with the reality that less treatment is more for certain diagnoses.
2. Work with health plans and providers to establish and enforce conservative treatment guidelines for certain types of cases.
3. Track results using the individual as the unit of analysis, rather than developing and tracking episode-related information by diagnoses and having the individual drop out of the category if their diagnosis changes.
4. Ensure depression is diagnosed and work to develop employment practices and preventive treatment measures.
5. Provide web-based employee decision support tools directly to employees to ensure that they are asking their physicians for the right treatment for certain conditions.

Like saving for a rainy day, it’s advisable for employers to have an organized approach to workers’ compensation claims management in preparation for an effective legal defense should the need for one arise.

The optimal solution is to emphasize safety initiatives and the prevention of work-related injuries and illnesses. However, there are steps that can be taken to diffuse a potentially costly lawsuit when a workers’ compensation claim is filed. The following 10 steps are recommended:

1)      Identify and work with an established occupational health provider in your community. Make sure the provider understands the nature of your business, its work rules and activities, and modified alternative duty policies.

2)      Synchronize your medical release protocols with the occupational health clinic. Be certain the provider understands your company has a Health Insurance Portability and Accountability Act (HIPAA) release signed by the patient that allows their medical information to be disclosed to you. The occupational health provider should also keep a copy of the HIPAA release for their records. This release should allow the employers’ representative to talk to the physician or other health care provider. While many employers feel the workers’ compensation “exception” in HIPAA removes the need for a signed release, applicability of the “minimum necessary” rule in the law remains unclear. Such “gray areas” in the law are likely to be clarified in federal court – and no employer wants to be part of a test case. In addition, in some circumstances the employer has to obtain a signed release in order to access other medical records that may be required to conduct an effective defense. If an employee refuses to sign the document, no records may be obtained.

3)      Keep a record of all paperwork exchanged with any health care provider. Have all medical treatment updates faxed or emailed, where possible, directly to your company’s medical manager or claims coordinator. Consider facilitating the process by having the provider send medical treatment records with bills.

4)      Advise the provider that your company uses a “triangle approach” to workers’ compensation claims management in which it: 1) conducts a complete accident investigation as soon as possible. 2) obtains a signed HIPAA authorization form from the claimant. 3) has a designated medical manager/claims coordinator contact the treating physician to confirm:

To ensure consistent application of the workers’ compensation “triangle,” periodic re-evaluation of the treatment plan is recommended in case new medical information emerges. It is also helpful to re-project the return-to-work plan in accordance with a schedule that matches the company’s payroll periods. Any surgery or physical therapy should be scheduled to minimize lost work time. If it appears warranted, the employer should consider obtaining an independent medical examination.

5)      When an injury occurs, act quickly and decisively:

6)      On a preliminary basis, decide whether the company would be best served by having the employee’s condition covered by workers’ compensation or some other benefit structure. Telling an employee their workers’ compensation claim is likely to be “denied” can be interpreted as a threat and can incite the worker to retain an attorney. While your organization should follow applicable state law in confirming handling, it’s possible to minimize the negative concept of “denial” by focusing on the positive aspect of moving a claim into the appropriate avenue of benefits, whether it is workers’ compensation or group health and Short Term Disability (STD)/Long Term Disability (LTD) plans.

7)      Never let an injured employee “get away.” Show ongoing interest in their welfare. Express the company’s strong desire for the employee to stay in touch if a work absence is necessary. Ask the injured employee if their bills are being paid promptly, if they are receiving their disability checks and how they are progressing along the expected medical recovery path. Encourage senior management to become involved with long-term absences for “top-down” concern about return-to-work progress.

8)      When a claim is disputed, there is a tendency to want to avoid the employee. Do the opposite. Stay in weekly contact. Consistent with applicable state law, have the employee or their family pick up disability checks at the workplace. Again, to the extent your state provides for it, if the employee doesn’t follow company protocol, hold the check until they do.

9)      If you suspect a claim is false, bring in surveillance. Don’t spend thousands of dollars on benefits before spending hundreds of dollars for an investigation. Successful surveillance can be the strongest possible tool in fighting workers’ compensation claims in states providing liberal administration.

10)  Never trust in the workers’ compensation system to work in your company’s best interest when a claim is disputed. Develop your own protocols and information packets to have the employees focus on you as the best source of research on this complex subject.

       In summary, the goal is to close workers’ compensation claims and avoid litigation. This can be accomplished when the employer consistently applies the workers’ compensation triangle and its related principles until an injured or ill employee comes back to work.

California Receives an “F” in Work Loss Data Institute Report Card
A new study based on data from OSHA Form 300 and 200, which cover all OSHA-recordable injuries and illnesses, provides a basis for rating state-by-state workers’ compensation performance. The study, 2004 State Report Cards for Workers’ Comp, was prepared by the Work Loss Data Institute (WLDI).

The report provides three years of trending data in six categories: 1) incidence rates, 2) cases missing work, 3) median disability durations, 4) delayed recovery rate, 5) key conditions: low back strain, and 6) key conditions: carpal tunnel syndrome. The study methodology applies an ICD-9 diagnostic code format.

California, the largest state, received a flunking grade for all three years.  Performance was not good on all measures, but is close to the bottom when it comes to getting workers back on the job and preventing outliers, especially for carpal tunnel syndrome.

Workplace Violence on the Rise
The number of workplace shootings in the U.S. virtually doubled in 2003 from the previous year, as did the number of shooting victims, according to a new report by Handgun-Free America. Sixty-nine people were killed and 46 wounded last year in workplace shootings. Among other findings:

• About half of those who commit workplace shootings experienced a "negative change in employment," such as firing, demotion, suspension or involvement in disputes.
• Nearly a third of the workplace shootings occurred in white-collar job settings.
• More than 90 percent of the shooters in these incidents are male.

13,000 Employers Put on Notice:OSHA sent letters to 13,000 employers to notify them that their injury and illness rates are significantly higher than the national average. In the letter, the agency encourages – but does not require - the targeted employers to take steps to address safety and health hazards in the workplace. OSHA identifies establishments with the nation's highest workplace injury and illness rates based on data reported by 80,000 employers surveyed by the agency last year. Workplaces receiving the alert letters had seven or more injuries or illnesses resulting in days away from work, restricted work activity or job transfers (DART) for every 100 full-time workers. Nationwide, the average U.S. workplace had fewer than three DART instances for every 100 workers. The 13,000 sites are listed on OSHA's website at www.osha.gov.

Hazard Communication: OHSA has introduceda new initiative to focus attention on hazard communication in the workplace. The program, which features compliance assistance and enforcement components, is aimed at helping employers improve compliance with the Hazard Communication Standard, which covers some 650,000 hazardous chemical products and more than 30 million American workers.

Complaint Process: OSHA should take steps to ensure more accurate information is collected from individuals who file complaints about workplace hazards, according to a recent report by the General Accounting Office (GAO), an investigative arm of Congress. The GAO report said that OSHA found serious hazards in only half of the workplaces it inspected following a complaint alleging a serious hazard. The report said some of the inspections were prompted by complaints that contained erroneous or incomplete information from individuals with various motives and levels of expertise.  The report said that a lack of accurate information in complaints could be diverting OSHA's resources away from other inspections. It concluded that more accurate information would benefit employers, workers and OSHA.
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