Deeper Dive Into Opt-Out, Violence, and Functional Restoration
The 24th annual National Workers’ Compensation and Disability Conference® & Expo takes place Nov. 11-13 at the Mandalay Bay Resort and Casino in Las Vegas. The conference is produced by LRP Publications, which publishes Risk & Insurance®. Visit the website for more information.
Here’s an in-depth look at what several of this year’s NWCDC sessions have to offer attendees.
Opt-Out Alternatives Explored As Well As Legal Issues
Love it or hate it, opt out is an issue that’s likely not going away anytime soon. With Texas’ non-subscriber plan firmly ensconced, and proponents battling to keep Oklahoma’s opt-out plan moving ahead, practitioners from other states are watching and waiting to see if and when they might seek an alternative to the traditional workers’ comp system.
Two sessions will be devoted to the notion of different workers’ comp plans. One will present competing views on the subject while another presents some of the pressing legal issues involved.
“The goal is for attendees to understand what kind of policy they should adopt for an effective program, whether they are considering opt out or have already chosen to go that route,” said Stuart Colburn, a shareholder with Downs Stanford in Texas. “I define an effective program as one that provides excellent medical care to the injured worker as quickly as possible to allow that worker to get back to work as quickly as possible.”
Colburn, who will moderate the legal session, says those considering alternative options must understand how to best accommodate injured employees. “Providing benefits to injured workers means you have to choose health care providers that understand occupational medicine,” he said. “They need to make sure treatment is delivered quickly and that the treatment is designed to get the injured worker back to work.”
Employers choosing to opt out of the traditional workers’ comp system must understand another important component in order for the program to be successful. “It also must provide effective mitigating measures since they no longer have the protection of the grand bargain, the exclusive remedy provision,” Colburn explained.
The non-subscriber plans in Texas basically allow an injured worker to sue his employer for negligence. Therefore, employers under this type of plan must have protections in place right from the start.
“The first protection is you’ve really got to care about safety,” Colburn said. “You have to really have an effective loss control and safety program that prevents as many injuries as possible. Responsible non-subscribers train their employees when they are hired and on a daily and weekly basis thereafter. An employer that does not invite safety into their culture will suffer huge costs.”
For injuries that do occur, certain measures must be in place to prevent needless legal suits against the employer. Typically, that involves structuring the program through the Employee Retirement Income Security Act of 1977.
“Proponents of non-subscription say ERISA’s been around for 40 years and truly protects employers and employees, striking a balance between the benefits an employer chooses to provide and the employees, if they feel the employer is not providing the benefits under that plan,” Colburn said. “From the employer’s perspective the ERISA program means state regulation and state lawsuits can be avoided. Therefore, you have a more uniform response to what your plan benefits are going to be, especially if you are a national employer.”
Employers can suffer large financial consequences if sued for negligence by their injured workers, but there are ways to mitigate those costs.
“First, there are several insurance plans available to help transfer some of the risk,” Colburn explained. “Second, there are avenues for an exchange of benefits for the agreement not to sue — as long as the agreement is made post-injury. Third, the employer can chose alternative dispute resolution. Employers feel that having ADR is simpler, it is cheaper, and it is not subject to some of the geographic idiosyncrasies of our great state.”
During the session, the attorney panelists will explore various options for opt-out programs, identify the true expectations for each plan, and discuss the benefits and pitfalls of ERISA-regulated medical insurance for injured workers. States that are considering alternative workers’ comp plans are advised to look carefully at the various plans available and see which works best within a state’s culture and existing laws.
“The one caveat I have is that I want responsible non-sub programs to be adopted because if the pendulum goes too far in favor of one side or the other there will be a backlash,” Colburn said. “As we’re introducing new ways to protect employees and employers from injuries that occur, if it isn’t done in a fair and just manner other states will likely not want to dive into it. But if it’s done in a fair manner, I think other states will see the benefit of a reasonable program.”
- LR1: Opt-out Alternatives to Workers’ Comp — Two Views on Texas, Oklahoma and Beyond. Wednesday, Nov. 11, 11:00 a.m.-12:15 p.m.
- LR5: Opt-Out Lessons From Real Lone Star State Business Cases. Thursday, Nov. 12, 2:00 – 3:15 p.m.
Detox Increasingly Needed for Functional Restoration
With medical costs continuing to escalate in the workers’ comp system, many payers are looking to functional restoration programs for help. Done appropriately, they can help reduce costs, treat chronic pain, and close legacy claims.
But all such programs are not the same. Practitioners should understand the differences and how to select cases that are appropriate for functional restoration.
“If you take the right approach, you get both a good medical outcome and a good claim outcome,” said Dr. Steven Moskowitz, senior medical director of Paradigm Outcomes. “That’s an important point for claims adjusters and nurse case managers.”
Moskowitz and Dr. Fernando Branco, medical director of Midwest Employers Casualty Company, will present a session on getting the best outcome using a functional restoration strategy.
The idea of “functional restoration” has been around for years. Sometimes called “work conditioning” or “work hardening,” it basically involves restoring function for an injured worker.
“A lot of providers say they do it. It’s become a buzzword — again,” Moskowitz explained. “Physical functional restoration programs restore function, decreasing dependence on medications and surgeries; so they are functional recovery programs.”
Reducing dependence on prescribed medications is an aspect of functional restoration that is being seen more often. Many medications can cause problems for injured workers.
“The big focus is on opioids, but there are a lot of non-opioid medications people are on that are not helping and [injured workers] can become dependent on and abuse them,” Moskowitz said. There are “stimulants, for example, because people are tired from the opioids. Even the nerve pain medications such as Neurontin and Lyrica, anti-convulsives, have abuse potential — and street value.”
Benzodiazepines and sedatives such as valium and Xanax also have abuse potential and are often taken in high doses. “There are a lot of medications people get prescribed yet are not helping,” Moskowitz explained. “The point of functional recovery is to get people physically better so they don’t think they need all these medications. But not all functional restoration programs offer that.”
There are different types of functional restoration programs, Moskowitz said. A program that is right for one injured worker may not be effective for another.
“The type of program needed depends on the specifics of their case; not only the diagnosis they’ve been given but also what their restoration and detox needs are and how much structure they need to accomplish those goals, how much programmatic structure,” Moskowitz said. “You can’t assume [the injured worker] will show up and say ‘OK, I’m here.’ It depends on how well they can handle it.”
In fact, not all injured workers are ready for functional restoration. There are various ways to determine when and for whom a program is appropriate.
“Evidence-based medical guidelines are available, but a lot are very general and [you] don’t know how predictive they are,” Moskowitz said. “You really do need to understand the injured worker. You really need to understand what the factors are in their medical situation as well as their psychosocial situation.”
Some injured workers may need to be readied for a functional restoration program. The speakers will discuss ways to work with injured workers so they are open to participating in the treatment.
Another factor they will address is how to manage potential adversarial dynamics between the injured worker and his functional restoration providers. “Part of a successful functional restoration program is getting the treating provider to bless this strategy, to promote this strategy,” Moskowitz said.
The physicians will closely examine a situation involving a particular injured worker and how functional restoration might be a benefit.
“We’ll be using a specific case example to demonstrate the six steps to a successful functional restoration outcome,” Moskowitz said. “It’s a case Dr. Branco worked on that exemplifies each step. And it had challenges and a good outcome.”
- DM5: Resolve Disability Claims and Eliminate Costs With the Right Functional-Restoration Strategy. Thursday, Nov. 12, 2:00 – 3:15 p.m.
Address Workplace Violence to Prevent WC Claims
Keeping employees safe may involve more than basic safety precautions and wellness programs. Protecting workers from violence is increasingly becoming a vital component of risk mitigation strategies.
A senior loss control consultant and an attorney will explore the causes and effects of and prevention efforts for violence in the workplace. Violence, they say, is not limited just to the horrific incidents that generate widespread news coverage.
“It probably happens more so than people realize,” said attorney Albert B. Randall Jr., principal with Franklin & Prokopik PC. “Certainly you hear about active shooter cases and those that get all sorts of public attention, but looking at the broader context of workplace violence, you’ve got things as simple as a couple of guys working in a warehouse that get into a pushing/shoving match. It’s more minimal than [what you hear in] typical news reports, but there are issues that need to be prevented to the extent they can and be addressed appropriately, and can result in workers’ comp claims.”
Randall will be joined in the session by Lori A. Severson, vice president and senior consultant for Lockton Companies.
As Randall explained, smaller tiffs can occur fairly often in the workplace. Employers need to consider less obvious aspects of such incidents to avoid needless claims.
“We think [the violence] is upon employees,” Randall said. “But also, some employees witness violence. First responders, police, paramedics, EMTs, trauma nurses — a lot of folks have to deal with that; people who see the effects of workplace violence can get workers’ comp.”
Increasingly, state legislatures are looking into whether and to what extent witnesses and rescue workers should be compensated. As part of the legal focus of the session, Randall will examine some of the types of doctrines states employ.
“There are two types of real claims: people that are victims of violence by a one-time act, a criminal act that results in injury, or somebody witnessing [the act],” Randall said. “You also have the effects that are cumulative over time such as police or EMTs that see or are exposed to this type of violence. So the differences between accidental injuries and cumulative injuries.”
Randall will explore five different doctrines in effect in various states to see what causes workers’ comp claims. Also, he will discuss state differences in compensating victims of violence in a workplace.
“For example, some states say that if a person is working as a store clerk and gets attacked randomly it is usually compensable,” Randall said. “But if the person comes in and attacks [the clerk] for a private motive (he knows the store clerk and uses work time to carry out some revenge or vendetta), some states say that is compensable while some say not work-related.”
The session will also deal with policies to prevent and address violence. Employers, they point out, can be cited and face significant penalties for failing to have such programs. The speakers will outline the core elements of a successful program and provide additional resources.
Especially for day-to-day incidents such as fights at work. Randall said an effective workplace violence policy can prevent them by making sure employees understand the consequences of any sort of violence.
“Having a drug and alcohol policy is another component,” Randall said. “When people come to work on drugs or alcohol, the likelihood of violence is significantly higher.”
Finally, Randall will discuss some of the legal pitfalls involved in identifying potentially violent workers.
“The problem is if you identify and profile certain individuals, the employer runs into a risk. If you’re wrong, there’s an opportunity for a discrimination claim,” Randall said. “Even more prevalent are instances where there might be a mental condition and if an employer takes too many steps and is wrong, it can run into potential issues of the Americans with Disabilities Act by effectively profiling their own workforce. So you’re kind of damned if you do and damned if you don’t.”
- LR2: Extreme Violence in the Workplace: Causation, Mental Trauma and Prevention. Wednesday, Nov. 11, 2:30 – 3:45 p.m.