Tag Archives: aoecoe

Is Baseline Testing Worth It? (Part 3)

This is the conclusion to the series of articles on whether baseline testing is worth the effort. The first two articles dealt with baseline testing from an employer’s point of view and from an injured worker’s point of view. We believe that those case studies were compelling. This final article will examine the statistics and, we believe, prove that baseline testing is truly worth the effort.

The concept of baseline testing for soft-tissue injuries began for us when requirements for set asides were established to protect Medicare from future medical expenses for workers’ compensation and general liability claims. ln 2011, the Centers for Medicare and Medicaid Services (CMS) mandated that all workers’ compensation  and general liability claims be reported in electronic format. This change enables CMS to look back and identify if it has ever made any work comp-related payments on a patient. Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 establishes Medicare’s status as a secondary payer under 42 U.S.C. 5 1395y (b), and this creates a right to reimbursement for any future claims related to a past workers’ compensation settlement. Therefore, this act has the potential to impose a possible risk of future liability against all parties indefinitely.

Soft-tissue injuries are the leading cause of claims and costs in this challenging system. They account for at least one third of all claims and are the primary reason for lost time at work. So, we  began baseline testing for soft-tissue injuries for the transportation industry in October 2011. Since that time, we have expanded our baseline testing  program to other industries: manufacturing, retail, warehouse and construction. Our initial testing  was in Georgia and quickly expanded to Texas. Now, our program is being conducted in California, Arizona, Utah, Florida, Oklahoma, Colorado and Indiana. Since the inception of the program, we have conducted more than 15,000 baseline tests.

Of those we tested, 27 have attempted to file a workers’ compensation soft-tissue claim. Only five of those 27 were found to have a change in condition. ln other words, only five had a pathology that arose out of the course and scope of employment (AOECOE). No claim was accepted for the remaining 22 cases. Of the five claims that were accepted, all resolved with the appropriate treatment. Of the cases where there was no change in condition and the claim was not accepted, three went on to litigation. These cases are summarized in the following vignettes.

Litigated case 1: A 54-year-old truck driver underwent the post-loss electrodiagnostic functional assessment (EFA) to compare with the baseline. She alleged incapacitating pathology to her neck, shoulder and back. But the comparison between the post-loss test and the baseline actually demonstrated improvement. It was found she had 25 prior workers’ compensation claims related to the same body part. Her case ultimately went to arbitration. This complicated case settled for less than $6,000. There was a full release with language to prevent future medical care from CMS, thereby protecting the employer from the unpredictable expenses of future claims to the same body part.

Litigated Case 2: A truck driver who was employed for less than a month experienced an unwitnessed fall from a truck and alleged injuries to his back, plus cumulative trauma. When the comparison tests were done, it was revealed that he had substantial pathology on the baseline that was unchanged in the EFA post-loss test.The claim remained denied based on the EFA-STM program, but he continued to receive treatment. No payments were made for the patient’s care, and he continued to pursue the issue through the legal process. The employer agreed to an independent medical exam (IME) appointment to review the status of the EFA comparisons and help establish AOECOE. The IME doctor, based on the EFA reports, found no work-related injury, leading to an uncomplicated resolution of this case.

Litigated Case 3 was detailed in Part 1 of this series. In summary, the results of the EFA-STM program demonstrated no change in condition, and the findings were affirmed in court.

In these three case examples, no unnecessary medical care was permitted; paid time off work was shortened; and litigation was resolved earlier in the process, reducing costs. Even though people will sometimes still litigate, the baseline testing gave objective medical evidence for AOECOE conditions and supported the defense of the case.

A review of the history of claims in businesses also shows that utilization of EFA –STM program significantly reduces the frequency of workers’ compensation injury claims.

In summary, the EFA program leads to more accurate diagnoses and ultimately better site-specific care to the injured worker. There are far fewer litigated cases, and even these cases are less costly because the objective evidence leads to more rapid, accurate and favorable results.

ls baseline testing worth the effort? Indubitably, yes!

Is Baseline Testing Worth the Effort?

We have written several articles on the topic of baseline testing and demonstrated some substantial results. Today, with more than three years of baseline data, we are still asked the question: Is baseline testing really worth the effort? That’s the question we address in this article.

First, some background on baseline testing:

Often called a bookend solution, it is a non-discriminatory way for an employer to ascertain if a work-related injury arises out of the course and scope of employment (AOECEO). For a baseline test to be valid for musculoskeletal disorders (soft-tissue injuries), it has to assess the specific function of the nerves and muscles of  the spine or other body part in question. In the case of soft-tissue injuries, the test should include electromyography (EMG), range of motion and functional assessment for some of the essential functions of the job. The test should be noninvasive.

The baseline test data is stored unread until there is a work-related injury and then compared with a post-incident test to determine a change in condition or AOECOE status.

A baseline test is not designed to see if somebody can perform the essential functions of their job and therefore differs from the post-offer, preplacement evaluation (POET). Another major difference between a POET and a baseline test is that baseline testing can be done on the existing workforce. According to the ADA, post-employment medical inquiries and exams can only be done when they are job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A).  Two recent cases from the Sixth Circuit (Bates v. DuraAuto Systems and Kroll v. White Lake Ambulance Authority) can assist employers with questions. It is our opinion, consistent with Bates, that a medical exam is not prohibited as long as it does not identify or single out a disability. Therefore, baseline testing is permissible, because the data is never evaluated unless a post-loss event occurs and at that time becomes subject to workers’ compensation requirements. At no point does the baseline testing determine or identify disability or an individual’s inability to perform their job functions.

According to Kroll, an employer that requires medical examination of an employee has to have a reasonable belief, based on objective evidence, that the test will satisfy  a vital function of the business. The keys are objective evidence and vital business function. Accepting AOECOE claims, and getting the employee the best care for the work-related injury, will fulfill this obligation.

With recent case law, and a basic understanding of the differences between POET and baseline testing, let’s evaluate a case study:

A national concrete manufacturer and supplier conducted POETs on all new hires. The employees use heavy equipment, and POET had proven to be a valuable tool to ensure that people could handle the equipment and to increase safety in the workplace. However, in the event of an injury, the POET test could not determine if there was an AOECOE condition and could not assist in identifying better treatment for the condition. To better help employees in the event of a work-related injury, the company decided to do baseline testing for existing employees and new hires.

Mr. Smith, a 48-year-old driver who was an existing employee, felt a sharp pain in his back after lifting at work. When he reported the incident, he stated that he  was injured before his EFA baseline evaluation and that even no change from the baseline still meant he had a work-related injury. As part of the  EFA-STM program, he was referred for evaluation and sent for post-injury assessment. Based on the EFA comparisons, chronic unrelated pathology and no acute pathology were noted on both evaluations. Furthermore, no change of condition was noted, and the comparison testing revealed that he was improved on the post-loss test. He subsequently pursued a surgical opinion on his own, without authorization  from the workers’ compensation carrier. The surgeon who evaluated him recommended a lumbar surgery, and this was performed, again without authorization. After the surgery, the court commissioner found the injury to Mr. Smith’s back not to be work-related, based on the EFA-STM results. Therefore, surgery was not compensable. Furthermore, the post-incident EFA testing found surgery wouldn’t have been indicated even if there were a change in condition. Mr. Smith has still not been able to return to work following his back surgery.

This case demonstrates that the EFA-STM program enables determination of AOECOE conditions. In Mr. Smith’s case, the baseline testing program was not only instrumental in determining there was no AOECOE, nothing OSHA-recordable and no mandatory reporting but, most importantly, was able to determine that Mr. Smith was not a surgical candidate. Thousands of dollars for unnecessary medical care was avoided by the company for an injury that was not work-related, according to an objective determination by the EFA testing.

Is baseline testing worth the effort? You be the judge.

Better Way to Handle Soft-Tissue Injuries

The most costly problem facing employers today is work-related, soft-tissue injuries, more commonly known as work-related musculoskeletal disorders (WRMSD). According to OSHA, WRMSD account for 34% of lost work days in the U.S., as well as a third of the dollars spent in workers’ compensation and of all work-related injury cases.

Not surprisingly, soft tissue injuries — to the ligaments, tendons and fibers of the body that connect the bones — are difficult to diagnose. Standard diagnostic tests such as X-rays or imaging are frequently unable to document the presence of pain and loss of function. As a result, diagnoses are often subjective, leading to poor treatment (including unnecessary surgery and overuse of narcotics), extra lost work time, precariously high medical costs and, at times, fraudulent claims.

There is a need for accurate, timely and evidence-based diagnosis and treatment to curtail escalating costs and improve clinical outcomes, as these case studies show:

Case 1

A 44-year-old gentleman had undergone a baseline EFA. (The Electrodiagnostic Functional Assessment, or EFA, combines mutltichannel wireless electromyography (EMG) with range-of-motion testing and integrates that with a functional output). He is employed as an unloader in the shipping department. He alleged a work-related injury in October 2014, five weeks into his employment. He stated that he injured his shoulders when he put his hands out to block a fall. He complained of bilateral shoulder pain, radiating to the right upper extremity. He rated the pain as an eight on a scale of one to 10. But an EFA found no change from the baseline test.

Outcome: Because there was no change from his baseline, he was released from treatment and advised to see his primary care physician for any further medical needs.

Case 2

A 37-year-old gentleman was employed as a loader. He alleged a work injury in October 2014; when he bent to lift some ice, he felt a pain in his lower back. He complained of radiating lower back pain, into the left lower extremity, rated as a 6/10. He was referred by his occupational medicine doctor, as there were no objective findings, and his subjective complaints seemed out of proportion. An EFA revealed normal EMG activity, with chronic, unrelated pathology.

Outcome: When he returned for his follow-up evaluation after the EFA, he still had the same subjective complaints. After his doctor reviewed the EFA findings, he stated that he felt much better and asked for a release to return to  full duty at work.

Case 3

A 34-year-old gentleman was employed as a mix/truck driver. He had undergone a baseline EFA in June 2014 and had a work-related motor vehicle accident in September 2014. His head struck the roof of his truck, and he was not wearing a hard hat. He complained of neck, shoulder and head pain. When an EFA was compared with the baseline, chronic, unrelated pathology was noted. However, the comparison also revealed a change in the paracervical region. This change was consistent with the date and mechanism of injury and with his subjective complaints.

Outcome: The EFA comparison was able to identify and redirect care, away from the chiropractic care that he was receiving. After imaging studies were performed and the results found to be consistent with the EFA findings, he received site-specific, conservative care for his work-related injury, and his symptoms improved.

It is our opinion that the EFA-STM provides a book end solution, comparing a pre-injury test to a post-injury assessment to objectively and accurately determine AOECOE (arising out of employment/course of employment) status. One must base a medical evaluation on facts, not subjective complaints. When that is accomplished, proper diagnosis and treatment are rendered, and outcomes improved.

The authors invite you to join them at the NexGen Workers’ Compensation Summit 2015, to be held Jan. 13 in Carlsbad, CA. The conference, hosted by Emerge Diagnostics, is dedicated to past lessons from, the current status of and the future for workers’ compensation. The conference is an opportunity for companies to network and learn, as well as contribute personal experience to the general knowledge base for workers’ compensation. Six CEU credits are offered. For more information, click here.

Two Looks at the ‘Going/Coming’ Rule

Now, your humble blogger knows what beloved subscribers, Twitter followers and random Google search visitors (who keeps Googling, “humble logger”?) are collectively thinking: “I am so desperately craving a blog post on the going and coming rule – that’s my favorite rule of all! Don’t disappoint me, Greg.”

In fact, I’ll give you two.

The First Incident

For those not in the know, the going and coming rule basically sets a giant wall between coming to (or from) work and work itself. Like all good rules, this one is riddled with giant exceptions through which elephants can comfortably march in rows of four, but in certain instances the rule kicks in to shield the employer from liability. And, it’s not just workers’ compensation liability; the rule can also shield employers from liability to third parties caused by the negligence of employees.

So, I bring to your attention the recently writ-denied case of Aguilar v. BHS Corrugated North America. Therein, a worker gingerly hopped into a car rented by his employer to go off-site for an unpaid half-hour lunch break. A co-worker was at the wheel. As you can imagine, on the way back, the worker sustained an injury and filed a claim for workers’ compensation benefits.

The matter proceeded to an AOE/COE trial, and the judge was persuaded by the applicant’s position – that the employer benefited by having the driver/co-worker have a car available for personal and business reasons.

Defendant sought reconsideration (as defendants often must). In a split panel, the WCAB granted reconsideration, reasoning that the “lunch rule” would lead to a take-nothing order — in other words, that even if the applicant won he would not be entitled to damages. Of special interest here is that the WCAB majority rejected the argument that the fact the employer rented the car for the co-worker-driver makes this incident compensable: “[T]he applicant’s personal decision to travel off premises in that rental car as a passenger during an unpaid lunch break did not render service to the employer and, therefore, did not grow out of or was incidental to employment.”

Had this been a split decision that favored the applicant, I would, of course, say you should read the dissent. Being a hopelessly biased defense hack, I have no need to say such a thing. I will note that the dissenting opinion pointed out some fairly relevant facts: The lunch was at the insistence of co-workers whom applicant considered his supervisors; the lunch was spent discussing work matters; and the lunch was paid for on a company card. In short, it is a reasonable interpretation that the employer was receiving benefit from the employee’s presence in the car and attendance at the lunch.

Now, a panel decision makes for weak authority before a workers’ compensation judge, and a split panel makes for even weaker one, but it is interesting to get this peek at the surgical distinction the going and coming rule often calls for, and the continued evolution of this law.

The Second

This case for you to hold and cherish comes from the Court of Appeal: Lantz v. WCAB/SCIF.

Applicant Lantz was a correctional officer who was, tragically, killed after a car crash on the drive home from work. Now, this would not be a blog post if we could simply say “going and coming rule – take nothing!” The facts in this case complicate the matter to the point where the Court of Appeal felt an opinion was warranted.

Applicant was not just driving home from work on any day – he was required to work an extra shift after his regular shift. So, while he would normally be commuting home, he was working, and when he would normally be home and not working, he was driving home.

The question is whether requiring an employee to work an additional shift at the same location constitutes a “special mission” that defeats the going and coming rule.

The Court of Appeal recognized the special mission exception but also noted that the special mission exception requires: (1) extraordinary activity, as opposed to routine duties; (2) AOE/COE; and (3) activity that was undertaken at the express or implied request of the employer and for the employer’s benefit.

Using this standard, the COA readily conceded that prongs 2 and 3 were satisfied – working an additional shift is, no doubt, within the course of the duties of the employee, and the activity was required by the employer for its benefit.

On the other hand, the first prong is not so easily satisfied. Is working another shift truly extraordinary? The test is whether the location, nature or hours of the work deviates from the norm. In this case, the COA deferred to the WCAB’s determination that the extra supervisory duties did not rise to the level of extraordinary.

Of interest here is the ready recognition by the Court of Appeal that it is possible that a sudden change in work hours would be extraordinary duty. The image comes to mind of a deputy suddenly yanked from dispatch to work intake and processing, or a maître d’ asked to help unload a truck.

One other nugget to consider here: The Court of Appeal addresses the argument oft cited by lien claimants, applicants’ attorneys and crazies roaming the streets of San Francisco: “Liberal Construction!” No, no, dear readers, this isn’t in reference to a bunch of long-haired college hippies building houses out of recycled milk bottles but, instead, a quote from Labor Code section 3202: “This division and Division 5 … shall be liberally construed by the courts with the purpose of extending their benefits for the protections of persons injured in the course of their employment.”

Okay, calm down. I know you’re pounding your keyboard and thinking, “Why is Greg wasting my time with this? I’m not running a prison; why is this case relevant?”

Well, here it is, the nugget you can take to every case in the workers’ comp system that is set for an AOE/COE trial: “The policy of liberality is predicated upon there being a person who is ‘injured in the course of [his or her] employment’ and therefore, when given its plain meaning, does not aid in deciding the threshold question of whether the employee was injured in the course of his or her employment.”

So, the next time there is a question of whether the injury is compensable at an AOE/COE trial, if there is any effort to use the liberal construction language of 3202 to lower the standard of proof the applicant must otherwise meet, Lantz should be at the ready to negate the argument, as a citeable, binding, published decision.

Workers' Compensation No Longer the Exclusive Remedy: RICO on the Radar, Part 2

Understandably, Part 1 of this article series has been met with some controversy and skepticism. The article is not designed to scare employers, as might have been suggested. Its intention is to educate employers about the many issues facing them when an employee becomes injured, that transcend the State Workers’ Compensation System and a workable solution to overcoming the challenges. Employers can no longer afford to bury their heads and rely on the exclusive remedy position. Yes, it may be here to stay, but it is becoming a bit frayed around the edges.

Coincidently, when Part 1 of this article was published, The National Football League (NFL) announced that it had reached a 765 million dollar settlement with players and their families for the settlement and consolidation of approximately 4,500 concussion claims. The players alleged that the NFL hid or ignored the facts that concussions caused brain injuries. Under the settlement, the NFL will pay 675 million dollars to retired players who demonstrate medical evidence of brain injury. Payouts of up to 5 million dollars each could go to players found to have Alzheimer's or Parkinson's diseases or other concussion-related conditions, or to their families. The settlement came just prior to the start of football season and will put an end to the mounting litigation that threatened the multi-billion dollar league.

United States District Presiding Judge Anita B. Brody appointed Judge Phillips to oversee the negotiations. Judge Philips said, “This is a historic agreement, one that will make sure that former NFL players who need and deserve compensation will receive it, and that will promote safety for players at all levels of football.”

 “This agreement lets us help those who need it most and continue our work to make the game safer for current and future players. Commissioner Goodell and every owner gave the legal team the same direction: do the right thing for the game and for the men who played it,” said NFL Executive Vice President Jeffrey Pash. “We thought it was critical to get more help to players and families who deserve it, rather than spend many years and millions of dollars on litigation. This is an important step that builds on the significant changes we’ve made in recent years to make the game safer, and we will continue our work to better the long-term health and well-being of NFL players.”

Once final documentation is completed, the settlement will be filed with Judge Brody, who will then schedule a hearing to consider whether or not to grant preliminary approval to the agreement. The retired players will then have the ability to file objections to the settlement.

One may ask what this has to do with Part 1 of this article.  An important component of this settlement is baseline testing. According to the settlement, baseline medical exams will be provided, the cost of which will be capped at $75 million. This will be a key element in ascertaining the conditions of current and retired players, gauging  the progression of any injuries they may have and having documentation of the medical status. This key component is the subject of Part 1 of this article. Baseline testing is not simply a self-promotion for the EFA-STM, but is a major part of helping injured workers, no matter what their occupations may be.

These cases are just the beginning, and it appears that the exclusive remedy provision for workers' compensation will no longer serve to prevent costly civil litigation as evidenced by the NFL settlement. An employer, insurance carrier/TPA and physician can take several steps to protect themselves. First, evidence-based medicine should always prevail. Objective medical evidence can help protect against claims for fraudulent denials of work-related injuries. Also, employers should accept only claims that arise out of the course and scope of employment (AOECOE). If an employer can objectively document AOECOE issues, fraudulent claims and fraudulent denials can be avoided and most importantly, correct treatment can be prevail.

A good approach to determining AOECOE claims is baseline testing, as it can identify injuries that arise out of the course and scope of employment. When a work-related claim is not AOECOE, as proved by objective medical evidence, such as pre and post assessments, then not only is there no workers’ compensation claim, there is no OSHA recordable claim, and no mandatory reporting issue. Conversely, if there is an injury, the injured worker can get the best site specific treatment and prevent inappropriate treatment and unnecessary progression of the underlying conditions.

The NFL recognized the importance of baseline testing with its recent settlement, and it is only the beginning. MSD for NFL players is also a significant problem. Why not baseline all football players, or, for that matter, all professional athletes, to address any injuries that may occur while playing and return them to the field sooner? This would promote better health and performance and might extend their careers. Professional athletes tend to play through their injuries, potentially causing more harm. An objective baseline test can assist all parties by providing objective medical evidence of an injury and outlining appropriate care. This truly is a win-win situation.

A proven example of a baseline test for musculoskeletal disorders (MSD) cases is the EFA-STM program. EFA-STM program begins by providing baseline injury testing for existing employees and new hires. The data is interpreted only when and if there is a soft tissue claim.  After a claim, the injured worker is required to undergo the post-loss testing. The subsequent comparison objectively demonstrates whether or not an acute injury exists. If there is a change from the baseline, site specific treatment recommendations are made for the AOECOE condition, giving the doctors more information and helping to ensure the injured worker receives the best care possible.

The case of the NFL settlement may not be a RICO claim, but, certainly, it tries the boundaries of the exclusive remedy provision of workers compensation. Baseline tests like the EFA-STM are a proven way to providing better work-related care. It is time for change and to think outside of the box to provide the answers so that we can become proactive, not reactive.