Tag Archives: baseline testing

Obesity as Disease: A Profound Change

The obesity rate in the U.S. has doubled in the past 15 years. More than 50% of the population is overweight, with a BMI (body mass index) between 25 and 30, and 30% have a BMI greater than 30 and are considered obese. Less than 20% of the population is at a healthy weight, with a BMI less than 25.

On June 16, 2013, the American Medical Association voted to declare obesity a disease rather than a comorbidity factor, a decision that will affect 78 million adults. The U.S. Department of Health and Human Services said the costs to U.S. businesses related to obesity exceed $13 billion each year. With the pending implementation of ICD (International Classification of Diseases) 10 codes, the reclassification of obesity is is fast becoming a reality and will dramatically affect workers’ compensation and cases related to the American Disability Act and amendments.

Before the AMA’s obesity reclassification, ICD-9 code 278 related to obesity-related medical complications rather than to obesity. The new ICD-10 coding system now identifies obesity as a disease, which needs to be addressed medically. Obesity can now become a secondary claim, and injured workers will be considered obese if they gain weight because of medications, cannot maintain a level of fitness because of a work-related injury or if their BMI exceeds 30. The conditions are all now considered work-related and must be treated as such.

The problem of obesity for employers is not confined to workers’ compensation. The Americans with Disability Act Amendment of 2008 allows for a broader scope of protection for disabilities. The classification of obesity as a disease now places an injured worker in a protected class pursuant to the ADA amendment. In fact, litigation in this area has already started. A federal district court ruled in April 2014 that obesity itself may be a disability and will be allowed to move forward under the ADA (Joseph Whittaker v. America’s Car-Mart, Eastern District of Missouri).

Obesity as an impairment

Severe obesity is a physical impairment. A sales manager of a used car dealership was terminated for requesting accommodation and won $128,000. He was considered disabled, and the essential function of the job was walking, so he was terminated without reasonable accommodation.

The judge ruled that obesity is an accepted disability and allowed him to pursue his claim against his employer. This could have substantial impact for employers as injured workers could more easily argue that their obesity is a permanent condition that impedes their ability to return to work, as opposed to a temporary life choice that can be reversed.

The Equal Employment Opportunities Commission (EEOC) has recently chimed in on obesity. According to the EEOC, severe [or morbid] obesity body weight, of more than 100% over the norm, qualifies as impairment under the ADA without proof of an underlying physiological disorder. In the last year, we have seen an increasing number of EEOC-driven obesity-related lawsuits. Federal district courts support the EEOC’s position that an employee does not have to prove an underlying condition, especially in cases where there is evidence that the employer perceived the employee’s obesity as a disability or otherwise expressed prejudice against the employee for being obese.

Workers’ compensation claims are automatically reported to CMS Medicare with a diagnosis. When the new ICD-10 codes take effect, an obesity diagnosis will be included in the claim and will require co-digital payments, future medical care or continued treatment by Medicare.

There is good news on the horizon. Reporting of a claim only happens if there is a change in condition not primarily for obesity. It is recommended that baseline testing for musculoskeletal conditions be conducted at the time of hiring and on the existing workforce. In the event of a work-related injury, if a second test is conducted that reveals no change in condition, it results in no reportable claim and no obesity issue. In the event of ADA issues, the baseline can serve to determine pre-injury condition or the need for accommodations.

What does this mean to employers?

Obesity is now considered a physical impairment that may affect an employees’ ability to perform their jobs and receive special accommodations pursuant to the ADA.

An increasingly unhealthy workforce will pose many challenges for employers in the next few years. Those that can effectively improve the health and well-being of their employee population will have a significant advantage in reducing work comp claim costs, health and welfare benefits and retaining skilled workers.

Recent studies

In a four-year study conducted by Johns Hopkins with an N value of 7,690, 85% of the injured workers studied were classified as obese. In a Duke University study involving 11,728 participants, researchers revealed that employees with a BMI greater than 40 had 11.65 claims per 100 workers, and the average claim costs were $51,010. Employees with a BMI less than 25 had 5.8 claims per 100 workers, with average claim costs of $7,503. This study found that disability costs associated with obesity are seven times higher than for those with a BMI less than 30.

A National Institute of Health study with 42,000 participants found that work-related injuries for employees with a BMI between 25 and 30 had a 15% increase in injuries, and those with a BMI higher than 30 had an increase in work-related injuries of 48%.

The connection between obesity and on the job injuries is clear and extremely costly for employers. Many employers have struggled with justifying the cost of instituting wellness programs just on the basic ROI calculations. They were limiting the potential return on investment solely to the reduction in health insurance costs rather than including the costs on the workers’ comp side of the equation and the potential for lost business opportunities because of injury rates that do not meet customer performance expectations. Another key point is that many wellness programs do not include a focus on treating chronic disease that may cause workers to be more likely to be injured and prolong the recovery period.

Customer-driven safety expectations

There are many potential customers (governments, military, energy, construction) who require that their service providers, contractors and business partners meet specific safety performance requirements as measured by OSHA statistics (recordable incident rates) and National Council on Compensation Insurance (NCCI) rating (experience modifiers) and, in some cases, a full review by 3rd party organizations such as ISNet World.

Working for the best customers often requires that your company’s safety record be in the top 25th percentile to even qualify to bid. To be a world-class company with a world-class safety record requires an integrated approach to accident and injury prevention.

Challenges of an aging workforce

The Bureau of Labor Statistics projects that the labor force will increase by 12.8 million by 2020. The number of workers between ages 16 and 24 will decline 14%, and the number of workers ages 25 to 54 will increase by only 1.9%. The overall share of the labor force for 25- to 54-year-olds will decline from 68% to 65%. The number of workers 55 and older is projected to grow by 28%, or 5.5 times the rate of growth in the overall labor force.

Employers must recognize the challenge that an aging workforce will bring and begin to prepare their workforce for longer careers. A healthy and physically fit 55-year-old worker is more capable and less likely to be injured than a 35-year-old worker who is considered obese.

Treating chronic disease

Employers who want a healthy work force must recognize and treat chronic disease. Many companies have biometric testing programs (health risk assessments) and track healthcare expenditures through their various providers (brokers and insurance carriers).

The results are quite disappointing. On average, only 39% of employees participate in biometric screenings even when they are provided free of charge. For those employees who do participate and who are identified with high biometric risk (blood pressure, glucose, BMI, cholesterol), fewer than 20% treat or even manage these diseases.

This makes these employees much more susceptible to injury and significantly lengthens the disability period. The resulting financial impact on employers can be devastating.

Conclusion

Best-in-class safety results will require a combined approach to reduce injuries and to accommodate new classes of disability such as obesity. It is important that employers focus on improving the health and well-being of their workforce while creating well-developed job descriptions, identifying the essential functions, assessing physical assessments and designing job demands to fall within the declining capabilities of the American workers. It is important for an employer to only accept claims that arise out of the course and scope of employment. This is especially true with the reclassification of obesity as a disease. Baseline testing will play an essential role in separating work-related injuries from pre-existing conditions in this changing environment.

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 It? (Part 2)

In our first article on this subject, we gave an overview of baseline testing, compared it with a post-offer physical exam, updated recent legal decisions under the Americans With Disabilities Act (ADA) that allow baseline testing and concluded with a legal case highlighting the benefits of a baseline program. While all stakeholders won in the case we cited, we all need to remember that the focus in workers’ comp needs to be the injured worker.

That isn’t always the case, as recent court rulings have shown. Last week, a Pottawatomie County judge in Oklahoma issued a ruling that may erode the exclusive remedy provision for workers’ compensation (Duck vs Morgan Tire). This ruling comes after Miami-Dade District Judge Jorge Cueto ruled in August that the exclusive-remedy provision of the state’s comp statute was unconstitutional. Both cases make a strong case that the rights of injured workers have been deteriorating and that workers no longer have enough protection. (The cases are under appeal.)

The workers’ compensation system is overburdened with red tape: In some states, there are onerous mandates for doctors, delays in legal proceedings, disputes over acceptance of cases…and on and on. An injured person is caught in the middle. Frequently, necessary care is delayed — which often results in even greater damage and costs. Carriers and employers are frustrated, too. With increasing federal mandates complicating this already tangled system, they feel they are being asked to accept claims that “aren’t ours.” They worry about liability and uncontrolled costs, even while knowing that delaying appropriate care can lead to prolonged disability, inefficient medical care and higher costs.

So the question remains: How do we do the best for the injured worker while protecting ourselves?

This article focuses on the heart of the matter: Better diagnosis leads to better patient care. Peel away the layers of comp laws and reforms, and this is what the industry should be about.

Baseline testing helps identify a change in condition, so the person can get the best care possible for work-related injuries. Does this actually happen? Does baseline testing work with soft-tissue injuries, specifically those that appear to be based on subjective complaints, with typically little or no objective findings? (Soft-tissue injuries, although often unsupported by clear and convincing evidence, are the leading drivers of cost in the system.)

Here is a case that shows that it’s possible to use baseline testing to avoid over-treating or under-treating and to do the right thing:

Mr. Jones works for the same employer as was mentioned in Part 1 of this article. He is 34 years old and is employed as truck driver. He underwent a baseline test in June 2014 and was injured at work in September 2014. He was driving his truck when he hit a bump. He was wearing a seat belt but hit his head. He continued to work. He later felt diffuse neck pain and reported the incident.

The following day, he saw a doctor, who couldn’t issue a diagnosis. Mr. Jones had a history of chronic neck pain, so the doctor couldn’t tell if anything was “new.” He thought the pain would go away, but it persisted.

Because Mr. Jones had undergone a baseline evaluation, he was sent for the post-incident, electrodiagnostic functional assessment (EFA). The comparison of the two evaluations revealed a change in condition. The testing indicated he could have an industrially related left cervical radiculopathy. Treatment was redirected to this area, and he received the appropriate care on an expedited basis.

This is a person who had diffuse pathology and a substantial pre-existing condition. As a result, his workman’s comp carrier delayed care, and he pursued treatment by his chiropractor on a non-industrial basis. He was off work, not receiving benefits, while waiting for the causation of his injury to be determined. He potentially could have gotten lost in the system with unresolved treatment and escalating bills while without benefits and out of work.

The employer truly wants the best care for its injured workers and, as soon as the comparison demonstrated a change, ensured that he received all the appropriate care and benefits for his work-related injury.

We truly believe that everyone in this workers’ compensation system wants to do the “right thing” but that is hard to do without objective evidence. Accurate diagnoses lead to better patient care, which is the very basis of workers’ compensation. So is baseline testing really worth the effort? You bet it is!

Navigating EEOC and Labor Department

Trends in 2013 suggest that the Equal Employment Opportunity Commission is stepping up litigation, potentially involving large dollars.

Recoveries by the EEOC were $39 million in 2013, slightly down from the $44 million recovered in 2012, but 2013 featured some high-profile cases. In 2014, the focus is likely to be on the Americans with Disabilities Act (ADA) and on the Genetic Information Nondiscrimination Act (GINA).

Even though GINA has been in effect since 2009, it wasn’t until 2013 that the EEOC filed its first lawsuit alleging genetic discrimination. The suit, against Tulsa-based Fabricut (Civil Case No: 13-CV-248-CVE-PJC), alleged the company violated the ADA by refusing to hire a woman because it regarded her as having carpal tunnel syndrome and violated GINA when it asked for her family medical history in a post-offer medical examination. Employers need to be very aware that GINA prohibits requesting family medical history, even with a contract medical provider during a post-offer examination. In May 2013, Fabricut agreed to settle the suit for $50,000 and to take specific actions to prevent future discrimination.

Just nine days into 2014, the EEOC settled its first systemic lawsuit alleging GINA violations, for $370,000. According to the complaint (EEOC v Founders Pavilion Inc. No 13- CV-06250), Founders Pavilion conducted post-offer, pre-employment medical exams and asked applicants to provide information about their family medical history. The suit also alleged that Founders Pavilion: fired an employee after refusing to provide her with an accommodation, a violation of the ADA; refused to hire two women because of a perceived disability; and either refused to hire or fired three women because they were pregnant.

It appears that there will be a major focus in 2014 on ADA and GINA violations –- which go hand in hand. Note that the trend in EEOC litigation regarding ADA claims has shifted from disability to a focus on an employer’s obligation to provide reasonable accommodations.

For federal contractors, the key question in 2014 is: “Are you disabled?” The Labor Department issued new rules that will require federal contractors with 50 or more employees or with more than $50,000 in government work to pose that question to workers, in an effort to reduce the ever-increasing jobless rate of people with disabilities. Employees aren’t required to answer the question, but federal contractors will have to show that at least 7% of their workforce has disabilities or will face fines and potential loss of contracts.

Although the ADA does not allow employers to inquire about disability, the EEOC has made an exception so employers can comply with the Labor mandate. But lots of issues will arise. Do employees want their bosses to perceive them as disabled? Will more employees qualify as disabled with the broader definition of disability enacted with the 2008 amendment to the ADA? What will happen to reasonable accommodations, given that the exception that allows employers to ask about disabilities doesn’t appear to then allow a disabled individual to ask for a reasonable accommodation? 2014 will certainly be interesting!

While we wait to see what shakes out, there are some practices and employer can follow.

Relative to GINA, it is important for employers to know that the new regulations provide a quasi-safe harbor to employers who have inadvertently received genetic information when that information was not sought. The EEOC suggests that the employer use the following language on any requests for medical information:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

Relative to reasonable accommodations, employers are being urged by the EEOC to accept a doctor’s work release even if it has restrictions. Employers are also being urged to document entering into the interactive process if the reasonable accommodation is not straightforward or if the employer cannot meet the physician’s restrictions.

Although an employer may not ask disability-related questions or conduct a medical exam of an applicant until after making a conditional offer of employment, an employer may condition employment on the results of a medical examination or inquiries so long as all employees in a classification are subject to the same testing and or inquires and so long as the testing does not infringe on GINA. In addition, post-offer examinations may not be used to discriminate against individuals with disabilities. The testing must also be job-related and consistent with business necessity and evaluate some of the essential functions of the job. Furthermore, these tests cannot discriminate against a certain class. For example, they cannot be unduly difficult for a woman.

According to the ADA, the term “discriminate” includes an employer’s failure to make reasonable accommodations. The applicant should be provided the criteria for passing the test, based on the job description. It is very important for the employer to enter into the interactive process if performance of the essential job functions cannot be met.

Baseline testing — a tool that can assist employers in managing employees’ injuries by establishing if the injury arose out of the course and scope of employment — must follow the same guidelines as a post-offer test. Baseline testing must be conducted for all individuals in a classification, must be consistent with business necessity, cannot discriminate against a certain class and must evaluate some of the essential functions of the job. Baseline testing differs from post-offer testing in that it is usually not read until a work-related incident occurs.

2014 might be a trying time for employers, but the best defense for an employer is to be prepared.

Better Management of Soft-Tissue Injuries: A Case Study

The Gatesway Foundation, a nonprofit organization in Tulsa, OK, had seen an increase in its work-related musculoskeletal (MSD) cases, which the U.S. Department of Labor and Occupational Safety and Health Administration (OSHA) define as injuries of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. These types of disorders, commonly referred to as soft tissue injuries as well as sprains and strains, most often present as injury or pain of the back, neck, shoulder or knee and are a major source of disability. According to the 2010 report by the Bureau of Labor Statistics, the disorders account for 29% of total cases.

The Gatesway Foundation was experiencing both an increased frequency of claims and a rise in the cost of treatments, so, in 2012, the foundation began employing the EFA’s soft-tissue management program to compare pre- and post-loss data to accurately distinguish if there is acute pathology after a work-related injury. The program determines if pathology arises out of the course and scope of employment. A baseline test is conducted at the time of hire and compared with post-incident tests. State workers’ compensation laws may have many differences but have one thing in common: The employer is only responsible for returning the individual to pre-injury status. 

In the past, determination of pre-injury status, especially for soft tissue injuries, was often guess work.  Having objective findings can prevent costly misdiagnosis, unnecessary or inappropriate surgery, prolonged treatment periods and fraudulent claims. Employees also receive better treatment for compensable conditions.

The Gatesway Foundation began its program in April 2013 and had no MSD claims or OSHA recordables until Sept. 17, when a 52-year-old health care provider reported that a patient had fallen on her.  Initially, her complaints included her arm and shoulder. By the time she saw a doctor, her pain included her back.  The physician ordered a post-loss test for comparison with the baseline test.  The comparison showed a minimal increase in lumbar muscle spasms that decreased with stretching.  Two sessions of physical therapy were prescribed, and the employee has returned to work.

In the adjuster’s words, “This could have involved a great deal more expense and possible lost time without this information” from the baseline test. The program enabled the physician to have objective information and allowed the injured worker to receive appropriate care.

The program has drastically reduced the Gatesway Foundation’s soft-tissue-related workers' compensation claims.  The year prior to initiating the program, the foundation’s developed losses were $1 million. In the first six months of the policy year, before starting the program, the developed losses were $500,000. With the implementation of the program, the developed losses in the last six months of the policy year were $30,000.

A detailed analysis of the data revealed a dramatic decrease in the cost per claim when a baseline test was conducted.

Average Cost of Sprain Strain Claim Since Sept 2011
Without Baseline $18,794
With Baseline $2,241
% Reduction With Baseline 88%

This resulted in a dramatic return on investment (ROI)

Reduction in Claims Cost $316,544
Total Program Cost $9,200
ROI (Impact to Claims) 3,441%

The utilization of this book-end strategy allows for unprecedented access to information and allows for better treatment.