Tide TRACKER

Helping to Navigate the Troubled Waters of Workers Compensation Spring 2012 Table of Contents The Power of PGAP: Solving the Access Problem for Delayed Recovery Rehabilitation Services in the U.S.
by Darrell Bruga
is a buzz term these days. If you attend any major workers compensation or disability conferences, you are likely to hear a session or two on whole-person approaches to rehabilitation. Over the past several years, a significant body of research which focuses on the psychosocial risk factors and delayed recovery has become more widely known. That is because new strategies are emerging to tackle the workdisability problem which research shows can be attributed to psychosocial risk factors. Research over the past two decades conducted by Michael Sullivan, PhD and colleagues at the University Centre for Research on Pain and Disability, McGill University reveal that psychosocial variables can present significant obstacles to recovery following musculoskeletal injury.1 Modifiable risk factors such as fear-avoidance beliefs, catastrophic thinking, perceived disability, and perceived injustice have been identified as contributing to poor rehabilitation outcomes in individuals who have sustained musculoskeletal injuries.24 There has been increasing interest in the development of intervention approaches that would permit early detection and treatment of psychosocial risk factors for poor recovery from musculoskeletal The Power of PGAP .. pg. 1 Delayed Recovery-Early Intervention (DREI) pg. 1 Breaking News .. pg. 4 How Can You Measure the Success of Your Safety Program ..pg. 6 Defending Post-Termination Claims pg. 7 Litigation Avoidance ... pg. 8 Message From Our Captain pg.10

Delayed Recovery-Early Intervention (DREI)

by Linda Taylor
RiskSolutions

has been working diligently to identify those workers compensation claims that injury.2,5,6 Individuals with an provide the fuel for high reserves, elevated psychosocial risk profile maximizing temporary total seem to benefit less from disability, and high litigation rates. traditional approaches to medical As of this newsletter, RiskSolutions management, are less respon- is proud to announce that we are sive to physical therapy interrolling out DREI. DREI is designed ventions, and are less likely to to identify several factors that may return to work. cause the claim to go out of control. These factors include Dr. Sullivans research led to the development of an intervenRiskSolutions, Inc tion program that specifically Reducing the Cost of Doing Business

targets these modifiable psychosocial risk factors. The concept was that if psychosocial barriers could be effectively targeted in an intervention program, then it might be possible to reduce or even prevent chronic suffering and disability following injury. The Progressive Goal Attainment Program (PGAP) is an outgrowth of Dr. Sullivans published research and is considered the first disability prevention program specifically designed to target psychosocial risk factors for disability. It is an evidence-based rehabilitation program for reducing disability

psychosocial, fraudulent, secondary gain issues, somatization, and behavioral issues. The DREI Matrix will give the employer, broker, and insurance carrier a way to bring additional resources to the claim to prevent an expensive outcome. During the course of developing the matrix, RiskSolutions identified that medication.2,7,8,9 once a claim is marked as high-risk we need to have special handling in Despite its proven efficacy place. After interviewing several and wide use throughout the medical providers, RiskSolutions international workers compendeveloped a partnership with PGAP. sation community, PGAP is We have featured PGAP's article in considered cutting edge and this newsletter. We are excited to not yet widely known in the bring a new way of doing Worker's U.S. work comp market. For Compensation into such a complex over a decade, PGAP has arena as we all deal with day-tobeen successfully delivered in day. Canadas workers We actually had our first real life test of the DREI matrix this month. The matrix identified an employer satisfaction issue. Within two hours of doing the three-point contact through the DREI matrix we knew that this was not a medical issue of an injured elbow, but related to a bad performance review and behavioral issues arising from work dissatisfaction. In the future, we are looking to work closely with brokers, employers, and insurance carriers to provide the DREI matrix during the three-point contact of all new claims. It is important that we analyze the claim as close to the date of injury as possible. If the matrix identifies a high risk situation then we can institute a different associated with pain, depression, and other chronic health conditions. Publish peerreviewed research on PGAP has demonstrated how PGAP improves return to work outcomes as well as reduces treatment and pain

compensation and disability system, which is similar to the US system. More recently, PGAP became part of a National Strategy in New Zealand where hundreds of providers have been trained and the Accident Compensation Corporation (ACC) approves the service.

receiving evidence-based biopsychosocial (BPS) rehabilitation in the U.S. This was highlighted in a recent issue of Back Letter, "Barriers to the Effective Prevention of Chronic Disabling Low Back

protocol that will positively influence the outcome of the claim. Obviously, the ultimate goal is to affect return to work and prevent litigation. The matrix will provide the insight into the claim that will help us attain the above goals. If you have any questions regarding the DREI matrix, please feel free to contact me.
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Pain."10 In this issue, there was discussion that the U.S. healthcare and insurance systems are not Here in the U.S., PGAP organized optimally to was selected in 2006 to provide timely, reimbursable be a part of a $40 million care for individuals with dollar trial within the Social risk factors for chronic Security Administration to disabling low back pain. determine if PGAP and other services can help get We know that 10%-20% of SSDI recipients off of individuals with work-related disability and re-integrated musculoskeletal injuries will to the workplace. PGAP progress toward chronic is the only proven early pain and disability. We and chronic intervention also know that this work disability program that relatively small subgroup has been delivered on consumes most of the such a wide scale. medical and financial Beyond the scientific robustness of PGAP the program and delivery model are also attractive because PGAP addresses the need for increased access to evidenced-based biopsychosocial (BPS) rehabilitation services. We have known that limited access has been a barrier to resources. Yet, we know that there is a void of targeted disability treatment services for these types of occupational related disabling health conditions. The article goes on to suggest that, "although cognitive behavioral therapy is an effective approach for several yellow flags, back

ltaylor@risksolutions-inc.com.

pain-oriented cognitive behavioral therapy is not widely available in U.S. healthcare systems. Nor are effective multidisciplinary rehabilitation programs for individuals with low back pain. ( "

provider network, LifeTEAM Health delivers a powerful tool to payors, TPAs, by Melissa Rehm employers and medical management companies with The California Supreme focus on the prevention and Court ruled Thursday reduction of delayed recovery April 13, 2012, that and needless work disability. employers are under no Because LifeTEAM Health is obligation to ensure that able to deliver services in workers take legally manlarge and small communities PGAPs community-based dated lunch breaks in a throughout the U.S., PGAP is delivery model is significant case that affects thousands of a cost-effective option in because it can be delivered businesses and millions of workers. comparison to higher cost within the immediate geoprograms which more graphic reach of the injured commonly serve larger urban workers place of residence. areas. Today, LifeTEAM Furthermore, PGAP is Healths outcome-based delivered by a continuum of provider network reaches rehabilitation professionals including OTs, PTs, vocational across 8 states. By the end counselors and psychologists. of 2012, LifeTEAMs PGAP network will cross 12-15 This allows for increased states. This is the largest access to PGAP through a and most focused known wide variety of specially trained providers. This model U.S. network of its kind. has been shown to be effective in both face-to-face For inquiries about LifeTEAM and PGAP please send and telephonic interactions emails to Dr. Bruga at when a PGAP provider is dbruga@lifeteamhealth.com or not available. visit www.lifeteamhealth.com. Darrell Bruga, DC, Michael PGAP has the ability to The unanimous opinion came after Sullivan, PhD and colleagues workers' attorneys argued that abuses meet the demand of these will be speaking about populations and LifeTEAM are routine and widespread when delayed recovery at the Health was developed to companies aren't required to issue direct upcoming 2012 AOHC deliver PGAP and other orders to take the breaks. They claimed (ACOEM) Conference in Los employers take advantage of workers delayed recovery services to the U.S. market. Through its Angeles on April 30th, 2012. who don't want to leave colleagues unique specialty outcome

Breaking News

current state of scientific evidence. J Behav Med. 2007;30:7794. doi:10.1007/ s10865-006-9085-0 4. Lotters F, Franche RL, HoggJohnson S, Burdorf A, Pole JD. The prognostic value of depressive symptoms, fear-avoidance, and self- efficacy for duration of lost-time benefits in workers with musculos- keletal disorders. Occup Environ Med. 2006;63:794801. doi:10.1136/ oem.2005.020420 5. Boersma K, Linton S. Screening to identify patients at risk: profiles for psychosocial risk factors for early intervention. Clin J Pain. 2005;21:3843. 6. Linton SJ. New avenues for the prevention of chronic musculoskeletal pain and disability. Amsterdam: Elsevier; 2002. doi:10.1016/ S0899-3467(07)60096-2 7. Sullivan, M.J.L., Adams, H. Psychosocial treatment techniques to augment the impact of physiotherapy interventions for low back pain. Physiother Can. 2010; 62:180 189. 8. Sullivan, M., Adams, H., Rhodenizer, T., & Stanish, W. (2006). A psychosocial risk factor targeted intervention for the prevention of chronic pain and References: 1. Sullivan MJL. Emerging trends in disability following whiplash injury. Physical Therapy, 86, 818. secondary prevention of pain9. Sullivan, M., Ward, L., Tripp, related disability. Clin J Pain. D., French, D., Adams, H., & 2003;19:779. Stanish, W. (2005) Secondary 2. Sullivan M, Feuerstein M, Gatchel RJ, Linton SJ, Pransky G. prevention of work disability: Community-based psychosocial Integrating psychological and intervention for musculoskeletal behavioral interventions to achieve disorders. Journal of Occupational optimal rehabilitation outcomes. J Rehabilitation, 15, 377392. Occup Rehabil. 2005;15:47589. 3. Leeuw M, Goossens ME, Linton 10. The BackLetter. Vol. 25, No. 8, August 2010. SJ, Crombez G, Boersma K, Vlaeyen JW. The fear-avoidance model of musculoskeletal pain:

during busy times. The case was initially filed nine years ago against Dallas-based Brinker International, the parent company of Chili's and other eateries, by restaurant workers complaining of missed breaks in violation of California labor law. But the high court sided with businesses when it ruled that requiring companies to order breaks is unmanageable and that those decisions should be left to workers. The decision provided clarity that businesses had sought regarding the law. The opinion written by Associate Justice Kathryn Werdegar explained that while state law requires employers to free workers of job duties for a 30-minute meal break, the employee is at liberty to use the time as they choose even if it's to work. "The employer is not obligated to police meal breaks and ensure no work thereafter is performed," Werdegar wrote. Tracee Lorens, lead attorney for the plaintiffs, said that she was pleased the court did allow a separate claim regarding the plaintiffs' receiving proper rest breaks to proceed as a classaction suit. Adam Hohnbaum, a former Chili's bartender and server in Encinitas, Calif., said he hoped the attention paid to the issue would improve working conditions for current employees. "Most of the time you didn't get a break or a rest period at all- it just wasn't a part of the daily operation," Hohnbaum said.

How Can You Measure the Success of Your Safety Program?

By Joe Stevens

How do you measure the success of your safety program? After you compare the number of injuries, first aids and nearmisses to previous years, how do you know if your overall approach to safety is effective? The answer has more to do with attitude than policy. Ill never forget a conversation I had with the owner of a successful foundry, who wrapped up our meeting by asserting that his company had a very strong safety program, as confirmed by a recent OSHA inspection that found no significant violations. He acknowledged that his XMod had been over 125 for the previous few years, and that his injury ratio was higher than hed like, but those werent a reflection on his safety program, because that was very strong. My response to him was a simple question: If I asked your The measurements I use to employees if they had a very determine the success of a safety strong safety program, what would program are these: they say? The silence was

deafening, as the light in his head slowly went on. His next words were: I get it. How do we change that? What he got was this: the only opinion that matters is that of the people who are doing the work, and are at the greatest risk. If they dont think the company or organization has a strong commitment to safety, they wont have one, either. If they dont think you have a strong safety program, you dont, because their attitude about safety mirrors what they perceive your attitude to be about their safety. Its not your highest priority? Then it wont be their highest priority. Compliance matters, and training matters, and safe conditions absolutely matter, but they are the foundation to a safety program, not a program by themselves. The vast majority of injuries are the result of behavior careless, unsafe, or dishonestnot conditions, so the focus for an effective safety program needs to go beyond the basics of compliance and training, and engage workers in safe practices. It needs to encourage teamwork, and it needs to acknowledge achievements with recognition, and even rewards, when appropriate.

1. Do the workers take responsibility for being safe? 2. Do they take pride in the safety record of their department and their company? When workers believe that the company they work for places a higher value on their safety because they care about them as individuals, not just because they want to save money on workers compensation, a safety culture is possible. What can a company do to create that attitude? Thats the topic of our next article.

Defending Post Termination Claims

by James Carey
Filing a workers compensation claim after an employee is terminated is generally met with an immediate denial under LC 3600(a)(10). However, these cases are often unraveled relatively quickly depending on an adjuster/attorneys experience and/or willingness to fight a particular case. A clear understanding of what constitutes a good case versus one that should be settled ASAP is the key to controlling excessive litigation costs and maintaining relative control over a file. The key to defending these claims is to set up a strategy from the outset to defend the key points within the Labor Code as well as initiating a prompt investigation. To set up a good defense, one must ensure that there was an actual notice of termination, usually a letter written to the employee. Next, it must be an actual termination. That the employee quit their job voluntarily does affect the use of this defense,

It is unclear how the opinion will as the law was written to affect future class-action lawsuits on prevent retaliatory workers the issue. Generally, employer-side compensation claims. attorneys were confident that Thursday's ruling would reduce When it comes to the future class-action lawsuits suractual notice of injury, the rounding the meal break issue in employee will have to California, which has cost companies demonstrate that they had millions of dollars in legal costs. notified their employer of an injury. This could be telling a "The courts are making it clear that supervisor, filling out a claim you have to create a system and a form or receiving some form of procedure that fully allows medical treatment. Having a employees an opportunity to take thorough investigation up front breaks and meal periods, and if gives the adjuster and defense they do that, they do not have to attorney a relatively clear picture be 'Big Brother' and individually of what happened. Irrespective monitor each employee to ensure of how many witnesses each that they've taken every bit of their side has, it is the overall quality breaks," said Steve Hirschfeld, and credibility of testimony that founder and CEO of the Employwill ultimately decide the case. ment Law Alliance, an employerThis is referred to as a side legal trade group. preponderance of evidence, and is the standard of proof in workers compensation cases. Also, medical treatment is a key part of the equation and the law. If the employee has had any treatment whatsoever to the claimed body part, then the claim has a high likelihood of being accepted and found compensable by the judge at the Workers Compensation Appeals Board. However, it is the employees burden to prove that there was medical treatment. Adjusters and attorneys

generally tend to subpoena medical records that are identified during the discovery process to ensure that the post-termination defense has merit. That said, the old adage of the best defense is a good offense applies to the post-termination defense. The moment that claim comes through the door, gather up witness statements from supervisors, co-workers, the office manager or anyone else who would have had contact with the employee and ask about whether they were ever injured on the job or complained of pain as a result of their job duties. Sometimes, the results can be surprising and help establish a very strong defense. Once the claim has been denied, dont wait to move it through the system. Getting a decision from a judge based on the facts avoids significant costs down the road. Remember, it is the quality of your evidence that matters, not the quantity. The sooner a case is brought before the Appeals Board, the sooner you will know if it will be considered a compensable injury. A denied case can quickly rack up $75,000 in medical liens alone, not to mention the costs of litigation (up to $40,000),

medical-legal ($2,000-$8,000) costs.

evaluations and other

Litigation Avoidance
by Lisa Sanchez
Although there are no definite ways to prevent an injured worker from retaining an attorney, there are measures that both an employer and an adjuster can take to reduce the chances of a claim becoming litigated. When a claim becomes litigated, the cost of the claim increases substantially. You can expect the cost of the claim to increase at a minimum of $10,000 when the injured worker retains an attorney. In addition to the increased costs, the life of the claim is extended from anywhere between nine

Finally, dont be afraid to settle the case. The facts may be there, but that does not mean the case is a slam dunk. Witnesses dont always show up to testify or any other problem can arise when its time to move the case forward. A settlement will reduce the overall valuation of the claim and have less of an impact on your XMOD. With that, a word of advice: Document everything. This will improve the quality of evidence and make that Take Nothing (and Non-Compensable XMOD revision) all the more attainable.

months to five years. Based on studies that have been conducted to determine why injured workers seek the services of an attorney, lack of communication and the fear of the unknown were the top reasons. The following are ways for employers and claims adjusters to practice litigation avoidance: 1. Keep the lines of communication open with the injured worker and develop a rapport. Listen to the injured worker and answer his or her questions Provide honest answers Always be respectful when speaking to the injured worker If further research is needed to answer an injured workers question, return their call within a reasonable timeframe (24-48 hours) Know their case and prior concerns Provide all benefits owed (applies to the Claims Adjuster) 2. Provide effective medical treatment Utilize good quality physicians Money should be invested in effective treatment that will help get the injured worker well and back to work. 3. Keep it simple Explain benefits in layman terms Assist in walking the injured worker through the Workers Compensation system Allow for and encourage questions 4. Dealing with the family Allow the injured workers family to ask questions Obtain injured workers permission to speak with family 5. Pay all medical bills in a timely manner and per fee schedule.

6. Provide modified/alternative job duties 7. Maintain contact with the injured worker Staying in Compliance with Medical Provider Network Regulations In response to Californias widely-acknowledged Workers Compensation costs, the California Legislature passed Senate Bill 899 in April 2004. This bill included several provisions designated to control Workers Compensation costs. Among the provisions, Labor Code 4616 provides for the implementation of medical provider networks (MPNs). An MPN is an entity or group of health care providers set up by an insurer or self-insured employer and approved by Division of Workers Compensations (DWC) Administrative Director to treat workers injured on the job. The goal of an MPN is to help ensure that injured employees receive high quality, appropriate medical care that focuses on returning the individual to a productive lifestyle as quickly as medically appropriate. It is very important that an MPN is set up properly. If the Network fails to meet any one of the regulations, it would open the door for an applicant to justify treating outside of the MPN. An MPN must include the following: 1. Approval by the Administrative Director 2. Proper notices given at time of hire and when transferring into the MPN Make sure all letters, posters and notices include the mandatory information Provide Spanish notices to Spanishspeaking employees

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A Message From Our Captain By Ed Taylor

As we discuss the total impact in dollars to an employer for workers compensation, it's the employer who needs to take control of the process. Shopping insurance year-to-year and looking the best for deal may save a few percentage points, but the real savings come from managing the workplace environment and putting in place a three to five year program to ultimately change the culture and to put in place tools that will manage an injury to the lowest possible cost and best outcome for the injured worker and the Employer. Most employers know what their present Xmod is, but few know how low it can possibly be. Approaching the lowest possible XMod can save thousands of dollars in workers compensation insurance costs, which translates to a healthier bottom line

3. Poster at work site placed in a conspicuous location frequented by employees during the hours of the work day and in close proximity to the State Workers Compensation Posting Notice (DWC-7). 4. Notice of Rights at time of injury 5. The option of 2nd/3rd in-network opinions 6. Independent Medical Reviewer 7. Continuity of Care options 8. Transfer of Care options 9. Adequate Coverage 10. Must Meet Access Standards

In this newsletter, we have discussed some of the programs that are available today in claims management and employer leadership that directly address the main XMod drivers, frequency & severity. The key variable in this equation is the injured worker. Getting the injured worker motivated to return to work is paramount in recovery and return to work efforts, and can help lower your XMod drastically. We hope that you have found this newsletter informative and that it has sparked some thought.

reducing the costs of doing business

P.O. Box 180 17602 17th St. Tustin, CA 92780

(951) 943-6775 xt 151 Fax: (951) 943-5221 etaylor@risksolutions-Inc.com