Tag Archives: electrodiagnostic functional assessment

Repetitive Stress Injury Has Become Cumulative Trauma for Employers

According to the medical dictionary, Repetitive Stress Injury (RSI) is defined as an injury that occurs as a result of over or improper use. According to the U.S. Bureau of Labor Statistics, nearly two-thirds of all occupational illnesses reported were caused by exposure to repeated trauma to workers’ upper body (the wrist, elbow or shoulder). While one common example of such an injury is carpal tunnel syndrome, in the workers’ compensation area RSI can also be claimed for shoulder, and back injuries. According to the Occupational Safety and Health Administration (OSHA), repetitive strain injuries are the nation’s most common and costly occupational health problem, affecting hundreds of thousands of American workers and costing more than $20 billion a year in workers’ compensation costs.

In the past, if an injury didn’t result from an accident, there was no workers’ compensation claim. Those days are gone and now it is understood that cumulative trauma injuries and occupational injuries that develop over time are eligible for workers’ compensation. Even if an injury cannot be tied to a single event, workers’ compensation benefits can be claimed.

According to the January 2012 joint publication by WCIR and IAIABC, every state allows workers’ compensation claims for cumulative trauma with the following limited exceptions:

Arkansas — limited to rapid repetitive motion for back or neck and hearing

Hawaii — not in the statue but handling like any other claim

Louisiana — only when considered an occupational disease

Tennessee — with limits to carpal tunnel only if it is arising out of the scope of employment

Virginia — only cumulative hearing loss and carpal tunnel are covered as “ordinary diseases of life” and subject to higher “clear and convincing” evidentiary standards as opposed to the “preponderance of the evidence.”

This widespread acceptance of RSI claims is becoming traumatic in in itself for employers, especially when one considers the requirements by CMS that were established to protect Medicare from future medical expenses for workers’ compensation and general liability claims. With these new mandatory requirements that all workers’ compensation and general liability claims be reported in electronic format, CMS has the mechanism to look back and identify workers’ compensation-related medical care payments made by Medicare. When CMS/Medicare learns (and they will) that it has been paying for workers’ compensation-related medical care it will seek repayment. The insured or employer could pay the future medical cost twice; once to the claimant at settlement and later when Medicare seeks reimbursement of the medical care they paid on behalf of the claimant, i.e. the cumulative effect.

Let’s focus on a key state, California, where this has become a pressing issue. Under California Labor Code Section 5412, the date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.

The wording of this statute is proving to be very problematic for employers, as there is no clear-cut timeframe to hold an injured worker accountable to report said injuries. Even more so since cumulative trauma disorders are difficult to diagnose and treat and causation plays an important factor in determining AOE/COE. The magic bullet would be to determine if the injury is AOE/COE or to be able to age the injury. One of the only tools that has been proven effective is the Electrodiagnostic Function Assessment. The EFA is the only FDA-registered device that can age and diagnose this type of injury and its definitive registration allows the monitoring of the necessary frequency response that characterizes a repetitive stress injury. Additionally, it is the only device of its kind that has changed the face of RSI litigation.*

* U.S. District Court, 980 F. Supp, 640, 64-48 (E.D.N.Y., 1997): Geressy v. Digital Equipment Corporation. The EFA changed the face of repetitive stress injury litigation when Judge Weinstein overturned what, at that time, was the largest product liability verdict ever for RSI because of the EFA.

Is Your OSHA Program Discriminatory?

Musculoskeletal Disorders (MSDs) represent 28% of all recordable OSHA injuries and account for 33% of the total cost of work-related injuries. Each recordable OSHA musculoskeletcal disorder involving lost time results in an average of 20 or more lost work days, compared to 9 lost work days for all other recordable injury types. Since the enactment of OSHA in 1970, the regulations have evolved to increasingly focus on the reduction of job hazards potentially leading to fatalities, amputations, and other serious injuries. Accordingly, a significant decline in the number of those types of injuries is evidenced in OSHA's records. However, muskuloskeletal disorders and other “soft tissue” injuries continue to plague workers and their employers with no indication of decline.

In fact, all indications point to an increase in muskuloskeletal disorders given that the percentage of workers ages 55-64 will increase by 36% during the next 5-year period while the percentage of workers under the age of 25 will decline. Obviously, older workers are more susceptible than younger workers to work-related muskuloskeletal disorders because of decreasing functional capacity due to degenerative conditions, pre-existing conditions and old injuries. Also troubling about this muskuloskeletal disorder injury forecast is the fact that older workers require longer recovery periods, inevitably driving up direct medical and disability costs. Indirect costs include overtime, training, and lost productivity related to injured workers' inability to perform their normal work. According to OSHA, for every $1 of medical-only claims, employers sustain $4.50 in indirect, uninsured costs.

Safety is an investment in future profitability for every employer and the well-being of every worker. However, an employer must exercise caution in its safety programs so as to avoid OSHA's anti-discrimination policies. Recently, Richard Fairfax, OSHA's Deputy Assistant Secretary, issued a memo addressing employers' safety incentive programs and suggesting that some such programs are merely a pretense to save workers' compensation costs and actually resulting in discriminatory disincentive policies and practices. Fairfax's memo emphasizes that a worker's reporting of a claim is a protected act, and identifies four approaches that potentially expose the employer to discriminatory practices:

  1. Taking disciplinary action against injured workers;
  2. Penalizing injured workers for failure to timely report an injury;
  3. Penalizing injured workers for violation of safety rules; and,
  4. Implementing certain performance incentive programs.

Under OSHA, Section 1904.4 (Recording Criteria) the employer must ascertain whether a work-related injury or illness has occurred, and if so, record the appropriate report with OSHA. If the employer is uncertain about whether an actual injury or illness has occurred, the employer may refer the worker to a physician or other health care professional for evaluation. The employer may then consider the health care professional's opinion in determining whether a recordable injury or illness exists.

One vehicle to objectively identify work-related injuries is the Electrodiagnostic Functional Assessment (EFA) Soft Tissue Management baseline program. The Electrodiagnostic Functional Assessment Soft Tissue Management baseline program is the proven non-discriminatory solution to OSHA compliance in the area of muskuloskeletal disorders. This program involves pre-injury soft tissue testing of workers that provides an objective baseline for later reported muskuloskeletal disorder injury claims. When the post-loss Electrodiagnostic Functional Assessment is compared to the baseline EFA, objective evidence is generated to determine if there is an acute injury arising out of the course and scope of employment. If no change is documented, there is no claim and thus, no reportable OSHA incident. Furthermore, no state or federal statues are triggered if evidence shows no sustained injury.

Conversely, if a change is documented, the employer is alerted to a recordable OSHA injury, and can reliably report the muskuloskeletal disorder in compliance with OSHA. More importantly, the Electrodiagnostic Functional Assessment further provides recommendations for site-specific and appropriate muskuloskeletal disorder treatment, resulting in quicker worker recovery, expeditious return-to-work, efficient compliance with OSHA's work readiness requirements, and, ultimately, limiting the employer's exposure and costs.

For more information about the Electrodiagnostic Functional Assessment Soft Tissue Management baseline program, contact the author at MReaston@emergedx.com or 702.234.1014.