Tag Archives: george

Perspectives From Injured Workers

Many stakeholders in the workers’ compensation industry have been engaged in conversations regarding opportunities to improve the workers’ compensation system. The perspective of injured workers has been lacking in these conversations. This perspective has been difficult to obtain because there really are no respected “injured worker” advocacy groups such as there are in the group health setting. Attorneys and unions are not the true voice of the injured worker – they have their own sets of priorities. The voice of the injured worker is an important one. It will help us gain a deeper understanding of the challenges in the workers’ compensation setting as well as give us greater empathy for what they are facing.

At the 2016 Comp Laude Gala, the Alliance of Women in Workers’ Compensation sponsored a session featuring injured workers talking about their struggles. It was an extremely powerful and moving experience that left few dry eyes in the packed room. In this article, we attempted to capture the essence of this session. Our goal is for this information to be used to help us better understand the obstacles faced by injured workers so that we can be better advocates for them and, ultimately, achieve better outcomes on claims.

The Participants

The participants included an injured worker in recovery from his dependency on opioids, regaining his life 14 years after his injury. Another, with two prosthetic legs, continues working and leaves a legacy for the workers’ comp community. A third participant was a woman with incomplete quadriplegia, who started a business helping others with chronic pain.

We’ve heard these stories before. The question is, however, what makes these cases different? How have these injured workers been able to get back to function and work despite debilitating conditions that leave others homebound and drug dependent forever?

All three of these injured workers have unique personalities that may have contributed to their successes. But the one thing they have in common that was a deciding factor for all was support, positivity and encouragement from people around them – especially those in the workers’ comp industry. The stories they shared should serve as lessons for the workers’ comp community to illustrate that what we say and do makes a difference. It sends a message that by taking responsibility for our actions, words and decisions, we can truly make a difference for injured workers and our companies.

The Stories

Kenny: “I had never hurt my back in my life, but I twisted it lifting something.” That was in 2000, before his 40th birthday. By 2014, Kenny had undergone two surgeries, multiple implants, epidurals, a myelography – which he described as “the worst thing in my life” – and was prescribed a cocktail of various opioids, including a fentanyl patch and oxycontin. He had been told by a medical professional in a Florida hospital that he would likely be dead in two years from all the medications he was taking.

“Your mind just goes,” he said. “You’re useless. Suicide – it’s right there.” Two case managers and several years later, things were no better. Though he wanted to work again, the back fusions on L4 and L5 left him unable to walk and the meds left him in a zombie-like condition.

“We were young. It was scary,” said Kenny’s wife, Karen. “I lost my husband, my boys lost their dad.”

See also: 3 Reasons to Talk With Injured Workers

Kenny and Karen’s story might have continued that way forever, if not for the arrival of their third caseworker 12 years after the initial injury. “It was like she flew in on angel wings,” Karen said. “She took the time to get to know him. Nobody else did.”

At the end of their very first conversation, the new caseworker promised she would get Kenny fishing again – one of his favorite pastimes, and said she would go with him. “That’s a really big deal,” Karen said.

But the road ahead was not to be an easy one. The caseworker’s plan to send Kenny to a Florida hospital for treatment didn’t sit well; at least, not with Kenny. It wasn’t until the following weekend during a family anniversary party that his sisters, wife and sons convinced him to go along with the treatment plan.

At the hospital, he received rehab, biofeedback and the care he truly needed to be able to function again. Six weeks later he was no longer taking the hydromorphine, or the fentanyl, or the oxycontin, or the percocets, or the duragesic patches.

Three years later he is still off the medications, including aspirin. He goes to the gym daily to walk, do light stretching and exercise.

“I’d tell anyone, ‘Get off the drugs; that’s 50 percent of your pain,’” he said. “Your body will help heal you.”

For Kenny, a single individual was able to change his life. A physician had previously told him he ‘was as good as he was going to get.’ The first case worker was “distasteful,” and the second never showed up. But the third caseworker had a different approach.

“It just really matters what you say — as a doctor, nurse or case manager. And that was the big difference for us,” Karen said. “She never said anything negative. She always said, ‘we’re going to do that,’ ‘we’re going to get you to that,’ ‘we’re going to go here, it’s going to be great,’ And we believed it.”

Becky: It’s been more than a decade since Becky was lying in a hospital bed with a broken neck, two collapsed lungs, all of her ribs on one side broken, and a broken clavicle. A work-related auto accident rendered her ‘an incomplete quadriplegic.’

“My spinal cord was not quite severed; damaged, but not severed,” she explained. “My left side has partial paralysis. My right side looks normal, but I can’t feel hot or cold, sharp or dull [sensations].”

Because her body no longer functioned the way it had before the accident, she had to learn how to walk again and to function with one hand — since the other does not work. Then, two years later, she developed burning nerve pain from the neck down.

“That was the darkest time for me,” she said. “They tried all kinds of medications. I was depressed, I wasn’t sleeping at night, I stopped exercising, I stopped having any kind of positivity. It was a really, really dark time.”

Becky was subsequently diagnosed with a syrinx — a fluid-filled cyst in her spinal cord. In her case, it is essentially inoperable. Becky reluctantly agreed to go to a functional restoration program in California, although she wondered how that could alleviate her pain.

“I discovered that pain is an experience, not a sensation. And I get to decide what it means,” she said. “And when the fear goes away, and the negativity goes away, the pain comes down. And when my activity goes up, eventually I’m less sore and I’m better. And life could still be good.”

Becky has an active life these days. She and her husband, Barry, have started a company to help people with long-term chronic pain. It is something in which she is intimately familiar.

“I still have the syrinx, I still have burning nerve pain from my neck down, it just doesn’t have me,” she said. “I don’t take any meds. I live a very good, a very functional life.”

Dwight: Despite losing both legs from two separate work-related incidents, Dwight became a force within the workers’ comp community. He was tired of people looking at his prosthetic legs and decided to give them something special to see. He started creating outlandishly colored hand-painted sneakers – first for himself, then for others. These gained notice in the workers’ compensation community when they were worn by the late David DePaolo, founder of WorkCompCentral, at numerous industry events.

Tragically, Dwight passed away in March of this year from heart-related issues, but his positivity and energy are not forgotten.

Dwight’s story began seven years ago, when he picked up a staph infection while working in Hong Kong. By the time he returned to Los Angeles, his left leg was dead and had to be amputated.

He returned to work with the one prosthetic leg, inspecting some of the world’s tallest buildings. “I loved what I was doing,” he related.

Three and a half years later, Dwight suffered another industrial accident, leading to the loss of his other leg. Before his passing, Dwight said his recovery was going, “Pretty good. I started playing golf again.”

Having grown up in the Del Mar, California area beach community, he was an avid surfer. “I surfed every day,” he said. “So I got water [prosthetic] legs to surf.” He also had special legs made for running and was doing stained glass artwork for restaurants in the San Diego area.

In addition to his hobbies, the father of seven opened Soule Innovations, a business that creates brightly-colored sneakers for people. He and his wife Debbie also donated the shoes to other amputees and war veterans.

The Lessons

The stories are different. But the messages from these and other injured workers are the same: positivity, peer support, and advocacy are imperative to recovery.

Attitude: “After an injury the person dealing with us has to be positive,” Dwight explained. “We’re trying our best, but on the other hand, on the other end of the line, tell me everything’s going to work; tell me you care. It’s so important.”

The attitudes of those involved with an injured worker are vital in determining the outcome. Karen tells the story of seeing a medical provider who walked into the exam room, looked at his information and told Kenny “you’re as good as you’re going to get.” On the way home from the appointment, Kenny was crying in the car and asking, “This is it?” Those and other negative conversations kept Kenny in a disability mindset until his third caseworker arrived on the scene.

See also: A Better Reality for Injured Workers  

Becky related her experience when she was first in the hospital. “As soon as they took the ventilator tube out of me I asked, ‘What’s the prognosis?’ [The doctor] just looked at me and said, ‘You’ll never be normal.’ It was true. I cried after that. Couldn’t move, couldn’t scratch my nose but I didn’t like that answer,” she said. “I asked another doctor the next day. He smiled and said ‘you’re going to walk again.’”

The positive reframing of the message made a difference in Becky’s attitude and ultimately, her outcome. Much of Becky’s and Barry’s work with chronic pain patients involves reframing the message.

When someone asked what she focuses on while feeling burning nerve pain from the neck down, she responded “You focus on the neck up. There’s always something we can focus on that is ok,” she said. “If everybody’s on the same page – the provider, case manager, adjuster – even if it’s just one person that will speak some kind of positive into your experience, it makes a huge difference.”

Nevertheless, the message must be truthful in addition to being positive. “One thing that used to really get to me is if someone said, ‘we’re going to bring you back to normal,’” Dwight said. “If I’m going to be normal, we’re going to cut everybody’s legs off and then we’ll be normal. Normal for me would be impossible. It has to be positive. We all have to work on ourselves.”

Advocacy: Peer advocacy is also crucial to a positive outcome. Often the injured worker’s only support is his family, and that can be volatile.

“It’s a powerful journey to be a spouse of an injured worker,” explained Barry. Fear creeps in, he said, which can impede recovery. “One of the things that I experienced is that it is really easy to find yourself defaulting to that workers’ comp check that’s coming in the mail. It’s almost a feeling like, ‘you’ve got to stay injured, you’ve got to stay dependent.”

For injured workers and their families, showing support and caring can make the difference between an injured worker staying dependent on the system or recovering.

“It begins with positivity, looking at what you have rather than what you’ve lost. You have to celebrate what you have, not dwell on what you lost,” Barry said. “I coach family members of people going through pain and that’s what I tell them all the time. We spend a lot of time talking about grieving that loss. At the same time, grief is also acceptance of what you’ve lost and then celebrating what you have. We spend a lot of time on that.”

Becky empathizes with her clients who are going through the pain. “We specialize in working with the difficult cases,” she said. “We want to give them hope and support and all they need to be self-managers instead of passive patients.”

Hearing and believing what the injured worker says is a crucial part of advocacy. In Becky’s case, her diagnosis of ‘incomplete quadriplegia’ may have expedited the care she received. But a case like Kenny’s, with a questionable diagnosis, is more vague and complex. There can be a stigma attached that can leave the injured worker feeling alone and forgotten.

“If somebody’s on drugs for two or three years and nothing is happening, you’ve got to stop it then,” he said. “Thirteen or 14 years is terrible. You go to these doctors and say ‘yes, my back’s killing me.’ They write you a prescription and that’s it. It’s hard.”

Kenny spoke of the family-like support he received at the rehab facility as being key in his recovery. For the 12 years before that program, he had only his wife.

“If somebody is alone and disabled, I don’t even know how they cope,” Karen said. “Because he was in such a stuporish state that, if I wasn’t there or later on, when [the case worker] came into our lives, if she wasn’t there, he’d probably be dead right now.”

Dwight likewise found good support from his provider.

“My doctor gave me two options: ‘put you in a wheelchair and give you enough drugs, or get up off your ass and do something.’” He chose the latter.

Impact on Mental Health in Work Comp

According to the World Health Organization, mental health is described as: “a state of well-being in which every individual realizes his or her own potential, can cope with the normal stress of life, can work productively and fruitfully and is able to make a contribution to his or her community.” But the World Health Organization’s definition applies only to part of the population.

At any given time, one in five American adults suffers with a mental health condition that affects their daily lives. Stress, anxiety and depression are among the most prevalent for injured workers. Left untreated, they can render a seemingly straightforward claim nearly unmanageable, resulting in poor outcomes and exorbitant costs.

Increasingly, many in our industry are recognizing the need to do all we can to address this critical issue. We must openly discuss and gain a deep understanding of a subject that, until now, has been taboo.

Four prominent workers’ compensation experts helped us advance the conversation on mental health in the workers’ compensation system during a recent webinar. They were:

  • Bryon Bass, Senior Vice President for Disability, Absence and Compliance at Sedgwick
  • Denise Zoe Algire, Director of Managed Care and Disability for Albertsons Companies
  • Maggie Alvarez-Miller, Director of Business and Product Development at Aptus Risk Solutions
  • Brian Downs, Vice President of Quality and Provider Relations at the Workers’ Compensation Trust

Why It Matters

Mental health conditions are the most expensive health challenges in the nation, behind cancer and heart disease. They are the leading cause of disabilities in high-income countries, accounting for one third of new disability claims in Western countries. These claims are growing 10% annually.

In addition to the direct costs to employers are indirect expenses, such as lost productivity, absenteeism and presenteeism. Combined with substance abuse, mental health disorders cost employers between $80 billion and $100 billion in these indirect costs.

In the workers’ compensation system, mental health conditions have a significant impact on claim duration. As we heard from our speakers, these workers typically have poor coping skills and rely on treating physicians to help them find the pain generator, leading to overuse of treatments and medications.

See also: Top 10 Ways to Nurture Mental Health 

More than 50% of injured workers experience clinically related depressive symptoms at some point, especially during the first month after the injury. In addition to the injured worker himself, family members are three times more likely to be hospitalized three months after the person’s injury. Many speculate that the distraction of a family member leads the injured worker to engage in unsafe behaviors.

Mental health problems can affect any employee at any time, and the reasons they develop are varied. Genetics, adverse childhood experiences and environmental stimuli may be the cause.

The stress of having an occupational injury can be a trigger for anxiety or depression. These issues can develop unexpectedly and typically result in a creeping catastrophic claim.

One of our speakers relayed the story of a claim that seemed on track for an easy resolution, only to go off the rails a year after the injury. The injured worker in this case was a counselor who had lost an eye after being stabbed with a pen by a client. Despite his physical recovery, the injured worker began to struggle emotionally when he finally realized that for the rest of his life he would be blind in one eye. Because his mental health concerns were raised one year after the injury, there were some questions about whether he might be trying to game the system.

Such stories are more commonplace than many realize. They point out the importance of staying in constant contact with the injured worker to detect risk factors for mental health challenges.


Mental health conditions — also called biopsychosocial or behavioral health — often surprise the person himself. Depression can develop over time, and the person is not clued in until he finds himself struggling. As one speaker explained, the once clear and distinct lines of coping, confidence and perspective start to become blurred.

In a workers’ compensation claim, it can become the elephant in the room that nobody wants to touch, talk about or address. Organizations willing to look at and address these issues can see quicker recoveries. But there are several obstacles to be overcome.

Stigma is one of the biggest challenges. People who realize they have a problem are often hesitant to come forward, fearing negative reactions from their co-workers and others.

Depictions of people suffering from behavioral health issues in mass media are often negative, but are believed by the general public. Many people incorrectly think mental health conditions render a person incompetent and dangerous; that all such conditions are alike and severe; and that treatment causes more harm than good.

As we learned in the webinar, treatment does work, and many people with mental health conditions do recover and lead healthy, productive lives. Avoiding the use of negative words or actions can help erase the stigma.

Cultural differences also affect the ability to identify and address mental health challenges. The perception of pain varies among cultures, for example. In the Hispanic community, the culture mandates being stoic and often avoiding medications that could help.

Perceptions of medical providers or employers as authority figures can deter recovery. Family dynamics can play a role, as some cultures rely on all family members to participate when an injured worker is recovering. Claims professionals and nurses need training to understand the cultural issues that may be at play in a claim, so they do not miss the opportunity to help the injured worker.

Another hurdle to addressing psychosocial issues in the workers’ compensation system is the focus on compliance, regulations and legal management. We are concerned about timelines and documentation, sometimes to the extent that we don’t think about potential mental health challenges, even when there is clearly a non-medical problem.

Claims professionals are taught to get each claim to resolution as quickly and easily as possible. Medical providers — especially specialists — are accustomed to working from tests and images within their own worlds, not on feelings and emotional well-being. Mental health issues, when they are present, do not jump off the page. It takes understanding and processes, which have not been the norm in the industry.

Another challenge is that the number of behavioral health specialists in the country is low, especially in the workers’ compensation system. Projections suggest that the demand will exceed the supply of such providers in the next decade. Our speakers explained that, with time and commitment, organizations can persuade these specialists to become involved.

Jurisdictions vary in terms of how or whether they allow mental health-related claims to be covered by workers’ compensation. Some states allow for physical/mental claims, where the injury is said to cause a mental health condition — such as depression.

Less common are mental/physical claims, where a mental stimulus leads to an injury. An example is workplace stress related to a heart attack.

See also: New Approach to Mental Health  

“Mental/mental claims” mean a mental stimulus causes a mental injury. Even among states that allow for these claims, there is wide variation. The decision typically hinges on whether an “unusual and extraordinary” incident occurred that resulted in a mental disability. A number of states have or are considering coverage for post-traumatic stress among first responders. The issue is controversial, as some argue that the nature of the job is, itself, unusual and extraordinary and that these workers should not be given benefits. Others say extreme situations, such as a school shooting, are unusual enough to warrant coverage.

What Can Employers Do

Despite the challenges, there are actions employers and payers are successfully taking to identify and address psychosocial conditions.

For example, Albertsons has a pilot program to identify and intervene with injured workers at risk of mental health issues that is showing promise. The workers are told about a voluntary, confidential pain screening questionnaire. Those who score high (i.e., are more at risk for delayed recoveries) are asked to participate in a cognitive behavioral health coaching program.

A team approach is used, with the claims examiner, nurse, treating physician and treating psychologist involved. The focus is on recovery and skill acquisition. A letter and packet of information is given to the treating physician by a nurse who educates the physician about the program. The physician is then asked to refer the injured worker to the program, to reduce suspicion and demonstrate the physician’s support.

Training and educating claims professionals is a tactic some organizations are taking to better address psychosocial issues among injured workers. The Connecticut-based Workers’ Compensation Trust also holds educational sessions for its staff with nationally known experts as speakers. Articles and newsletters are sent to members to solicit their help in identifying at-risk injured workers.

Continuing communication injured workers is vital. Asking how they are doing, whether they have spoken to their employer, when they see themselves returning to work reveal underlying psychosocial issues. Nurse case managers can also be a great source of information and intervention with at-risk injured workers.

Changing the workplace culture is something many employers and other organizations can do. Our environments highly influence our mental health. With the increased stress to be more productive and do more with less, it is important for employers to make their workplaces as stress free as possible.

Providing the resources to allow employees to do their jobs and feel valued within the organization helps create a sense of control, empowerment and belonging. Helping workers balance their work loads and lives also creates a more supportive environment, as does providing a safe and appealing work space. And being willing to openly discuss and provide support for those with mental health conditions can ensure workers get the treatment they need as soon as possible.

As one speaker said, “By offering support from the employer, we can reduce the duration and severity of mental health issues and enhance recovery. Realize employees with good mental health will perform better.”

To listen to the full webinar on this topic, click here.

Opportunities for Treatment Guidelines

Medical treatment guidelines can be a great benefit to any workers’ compensation system. They can prevent unnecessary medical procedures and the prescribing of potentially harmful medications. However, they are not all the same, nor are they without challenges. Understanding a jurisdiction’s strengths and shortcomings, taking a strategic approach to developing treatment guidelines and following some common-sense tips can lead to better outcomes for injured workers — and, ultimately, lower costs for payers.

That’s the view of workers’ compensation experts who spoke during our Out Front Ideas webinar on the subject. The panel included representatives from the regulatory, medical, pharmacy benefit management and third-party administrator communities. They were:

  • Amy Lee – special advisor, Texas Department of Insurance, Division of Workers Compensation
  • Dr. Douglas Benner, MD – chief medical officer from EK Health and national medical director of Macy’s Inc, Claims Services
  • Mark Pew – senior vice president, PRIUM
  • Darrell Brown – executive vice president, chief claims officer – Sedgwick.

Dr. Benner brought a unique and important viewpoint to the panel. As a practicing physician for over 30 years, he has firsthand experience practicing medicine under guidelines. He has also been involved in the development of treatment guidelines for both the Official Disability Guidelines (ODG) and the American College of Occupational and Environmental Medicine (ACOEM).

A majority of states now have some type of medical treatment or return-to-work guidelines in their workers’ compensation systems, and nearly half either have or are considering drug formularies. But there is some confusion about how they work within various jurisdictions and how effective they are. The speakers gave us great insights to better understand how to develop and implement successful treatment guidelines and how to get the most out of them.

Texas’ Example

Many in our industry look to Texas as a state with highly effective treatment guidelines. Texas had some of the highest workers’ compensation costs in the nation, along with some of the poorest return-to-work and patient satisfaction outcomes. After implementing treatment guidelines and a drug formulary, the state now boasts some of the best workers’ compensation outcomes in the nation, as well as lower costs.

But the Texas story is not quite as simple or transferrable as you may think. As our panel explained, it took a multi-year, painstaking effort by representatives in all facets of the system to develop and implement the model now in place. The change also required a deep understanding of the workers’ compensation system as it existed in Texas for the treatment guidelines to get to the point they did.

The changes in Texas began with legislative reforms in 2005. It would be two more years before the treatment guidelines were implemented and three years after that for the drug formulary to begin being phased in — first with new claims, then with legacy claims. One of the keys to Texas’ success was a change to include evidence-based medicine in the guidelines.

See also: Texas Work Comp: Rising Above Critics  


Evidence-based medicine (EBM) is a term we hear often these days, but there’s disagreement about what it truly means. Texas sought to clarify the issue by including a statutory definition in the treatment guidelines, so it defined EBM as follows:

“Evidence-based medicine means the use of current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts, and treatment and practice guidelines in making decisions about the care of individual patients.”

Texas switched to basing the guidelines on EBM to reform the previous consensus-based model, which was perceived as allowing for too much unnecessary medical care. EBM was chosen as the standard for selecting treatment guidelines, return-to-work guidelines and adjudicating claim level disputes on medical care. It is also the standard expected from healthcare providers, payers and others.

The idea of EBM is to provide a systematic approach to treating injured workers based on the best available science. Ideally, medical providers should base their treatment regimens on EBM, although it is also important to consider the specific needs of each individual patient.

Unfortunately, some of the most pervasive medical conditions among injured workers have not been as heavily researched as other ailments, such as heart disease or hypertension. This means EBM is not the basis for every single medical condition. The developers of EBM for workers’ compensation consider all available research, ‘weigh it’ in terms of quality then fill in the ‘gaps’ with a consensus of expert panels. That does not mean those particular guidelines are not scientific. For example, there is little research indicating someone with chest pains should undergo an electrocardiogram (EKG), but medical common sense dictates that is the appropriate action to take.


Ensuring injured workers are given the most appropriate medications for their conditions is, or should be, the goal of drug formularies in workers’ compensation, according to the panelists. Not all drug formularies are the same, and it is helpful to understand their differences.

As we learned in the webinar, drug formularies started in the group health area and were primarily a way to reduce costs, because out-of-pocket expenses are involved. There are different tiers to guide the best drug for the patients with the aim of finding the one that is the least expensive.

Because workers’ compensation does not typically include co-pays, the goal for many jurisdictions is clinical efficacy — finding the medication that will result in the best outcome for the injured worker and get him or her back to function and, ultimately, work.

See also: States of Confusion: Workers Comp Extraterritorial Issues

States such as Texas have a “closed” drug formulary, although compared to closed formularies in group health, it is not the same. Whereas in the group health context, some medications will be disallowed in terms of reimbursement, formularies in workers’ compensation instead require pre-authorization for certain medications. The term “preferred drug list” is more appropriate for workers’ compensation.

Texas uses the Official Disability Guidelines for its list of “Y” and “N” drugs. All FDA-approved drugs are included, but those on the “N” list are not automatically paid for through the workers’ compensation system.

Almost immediately after Texas implemented its drug formulary, prescribing patterns changed. Physicians began prescribing more medications on the “Y” list, rather than justifying the use of those on the “N” list. That was among the main goals of the drug formulary — to get prescribers to avoid prescribing opioids and other potentially dangerous drugs right from the start.

The formularies in workers’ compensation systems in other states differ. However, the goal is the same: to encourage providers and others to prescribe medications that are the best for the injured worker, considering his or her injury and any comorbid conditions. Patient safety, rather than lower costs, should be the goal.

Many in the industry are closely watching California as it faces a summer deadline to finalize its drug formulary. There are estimates that the state could see about 25% of its currently-prescribed medications put on the fast track for approval and thus avoid delays from utilization review once the formulary is implemented.


Having heard about the many potential benefits of treatment guidelines, we then turned to the panelists to discuss some of the obstacles and how to overcome them. Educating all stakeholders was among the most important strategies they mentioned.

For example, a claims examiner may not see a recommended treatment in the guidelines for a particular jurisdiction and issue a denial for a requested procedure. But, upon further investigation, the treatment requested by the provider may be the best for all considered.

In a California case, a claim was halted for several years — with indemnity expenses continuing to be paid — as the parties awaited the outcome of a dispute over an MRI scan. The case points to the need for those involved in a claim to be flexible. While following the guidelines should be the general rule of thumb, it’s also important that those overseeing a claim take a holistic approach and see what really makes sense for the injured worker.

It is also vital to educate physicians on what to do to gain approval for treatments that stray from treatment guidelines. Often, little or no explanation is provided as to why a particular patient needs a certain procedure or medication. Without complete information, the rate of denials increases. Texas took the unique step of implementing Appendix B to provide guidance to physicians on how to document exceptions to its guidelines.

The consistency (or lack thereof) of guidelines can be frustrating, especially for organizations that operate in multiple jurisdictions. Again, those involved in the claim need to be informed about the guidelines used in each.

It is important that everyone involved in reviewing treatment recommendations — including claims examiners, nurses, physicians and even administrative judges — understand the treatment guidelines and their limits for the jurisdictions in which they operate. The decisions each person makes must be consistent for the guidelines to be most effective.

Keeping the guidelines current is another challenge for some jurisdictions. With medical science changing rapidly, it’s best if jurisdictions find a way to get updated information published as soon as possible and make it easily accessible.

The Future

While a majority of states have medical treatment guidelines in their workers’ compensation systems, 21 did not at the time of the webinar. About 20 states either have or are considering drug formularies.

There are additional efforts underway on the state level to address medical care for injured workers. Several Northeastern states, for example, have placed limits on the number of days for which opioids can be prescribed. Some have limited it to seven days, while New Jersey is imposing a five-day limit. That trend is expected to continue.

See also: 25 Axioms Of Medical Care In The Workers Compensation System  

Other states are looking at helping wean injured workers off opioids. New York recently rolled out a new hearing process to address claims that involve problematic drug taking.

Progress is being made to improve injured workers’ outcomes and treatment guidelines, and drug formularies are a big part of these efforts. The goals of better safety and clinical outcomes, quicker return-to-work, shorter treatment periods and better overall outcomes should drive the conversations going forward.

To listen to the complete Out Front Ideas with Kimberly and Mark webinar on this subject, please visit Out Front.

2017 Issues to Watch in Workers’ Comp

The first Out Front Ideas with Kimberly and Mark webinar of 2017 provided our thoughts on the 20 Workers’ Compensation Issues to Watch in 2017. What follows is a summary of the issues discussed:

1. Election Impact

The Department of Labor under President Obama had made it clear that they felt state workers’ compensation systems needed reform and they were prepared to recommend minimum benefit standards to the states. Trump’s recommendation for Secretary of Labor has been a vocal opponent of many federal labor regulations. For now, any talk of the Federal Government getting involved in state workers’ compensation issues seems to be on hold.

However, one issue that could involve the federal government is related to potential costs being shifted from workers’ compensation to social security disability. Efforts to preserve the solvency of social security could result in action intended to limit this cost shifting.

2. Healthcare Reform

Regardless of which side of the aisle we find ourselves, surveys have shown that most Americans believe the Affordable Care Act is not working as it was originally intended or as well as they would like.

A few things are clear, access to health insurance does not dictate better health. If care remains unaffordable, people will not access care for themselves or their family. Healthcare is increasingly complex and accessing the right care at the right time remains a struggle for the general public. We are challenged to advance the approach of well care when, in fact, we remain largely a sick-care system.

While we wait to see how the GOP evolves health reform, we are hopeful that efforts underway to shift from fee-for-service to value-based and outcomes-focused care will continue to advance. We hope healthcare suppliers will continue to advance population health wellness as much as they focus on chronic disease. Kimberly George views this as the single most important issue to watch in 2017.


Another potential impact of the election results is the direction OSHA may take in 2017 and beyond. In recent years, employers have complained that OSHA was more focused on enforcement than education and training. In fact, OSHA did shift resources out of education into enforcement. Recent OSHA policies such as the publicly-accessible online database and restrictions on post-injury drug testing were met with significant resistance from the employer community. OSHA falls under the Department of Labor and, as mentioned before, the expectation is that the Department of Labor will have a new direction under the Trump administration.


During the Obama administration, we saw an increase in enforcement actions and also broadening of regulations that placed more burdens on the employer. Leave-of-absence regulations have become increasingly more complex over the past eight years.

ADA accommodation requests were initially related to ergonomics and transitional work accommodations following an illness or injury. Today, they have become more complex, including everything from bringing service animals into the workplace, allergies and noise accommodations to establishing work-from-home accommodations. The list goes on and on. What constitutes a “covered” disability has evolved and employers are tasked with ensuring compliance. Under the Trump administration, the Feds are less likely to pursue actions that would expand existing boundaries of the law.

5. Rates and Premiums

One of the interesting things about workers’ compensation market cycles is that they are generally driven by changes in competition more than changes in exposures. If you look at claims costs over the last 20 years, they have steadily increased, yet premiums during this same period have gone up and down.

During the January 1 renewal cycle, rates trended flat or slightly down compared to expiring premiums. There are some problem states that saw higher rates, including California, New York, Illinois and Florida. The declining rates compared to increasing claims costs have caused A.M. Best, Fitch and others to issue a negative outlook on workers’ compensation. It is expected that this hyper-competitive market cycle is going to end soon as the new entrants into the marketplace start to see the long-tail losses from their business hitting the books.

See also: 25 Axioms Of Medical Care In The Workers Compensation System  

6. Long-Tail Exposures

One of the things that make workers’ compensation such a challenge for employers and carriers is the long-tail nature of the claims. “Long tail” means that premiums collected today must cover losses for years to come. The claims tail is an issue to watch because of the impact it has on both carriers and employers in terms of cost of insurance today and future reserves.

The biggest driver of increasing claims-tail costs are advances in medical science. Better medicine means life expectancies are getting longer. This increases the exposures for lifetime indemnity and medical benefits. In addition, new drugs and treatments almost always cost more than what they are replacing, especially when you consider the cost difference between brand name drugs and generic medication. Prosthetics are so much more advanced today than they were 10 years ago, but they also cost significantly more.

7. State Legislative Agendas

We expect to see new workers’ compensation legislation established in at least four states during 2017:

Last year, the Florida Supreme Court tossed out multiple elements of their workers’ compensation statutes as unconstitutional, which caused a significant increase in claims costs and premium rates. There will be bills introduced to address these issues.

Last year, and again this year, Illinois Governor Rauner has made workers’ compensation reform a key element in his job-growth agenda. He is calling for medical fee schedule reductions, higher causation standards for conditions to be found compensable, and legislation to reverse court decisions that have expanded benefits.

New York
New York is another state where reform efforts stalled last year. Employers are pushing for limits on the time for an employee to reach maximum medical improvement, which triggers the 10-year cap on indemnity benefits.

Every year the legislature passes bills to reverse recent reforms, and with few exceptions the Governor has vetoed those bills. There will inevitably be more reform bills introduced in 2017, so we will see what those bills address and whether the Governor will approve any of them.

Options to Workers’ Compensation
In 2016, we saw efforts to push for options to workers’ compensation stall. Legislation in Tennessee and South Carolina did not move forward, and the Oklahoma Option was found unconstitutional by the State Supreme Court.

There is talk of a Texas-style opt-out bill being introduced in Florida in 2017. This bill would make workers’ compensation optional. There are also rumors about an option bill being reintroduced in Tennessee. It remains to be seen if there is enough momentum in either state to move this legislation forward.

8. Treatment Guidelines

Workers’ compensation stakeholders have become very familiar with medical treatment and return-to-work guidelines, along with evidence-based medicine. Payers and managed-care suppliers work diligently to embed guidelines in their systems for nurses and claims adjusters to improve efficiency with access to the guides and workflow for their colleagues. States have implemented a variety of guideline solutions, which include creating unique formularies and treatment guides, and also adopting industry-available workers’ compensation guidelines. The lack of guideline consensus across stakeholders including physicians, regulators, payers, and suppliers is an ongoing challenge to the system.

9. Constitutional Challenges

In 2016, elements of the workers’ compensation statutes in five states were found to be unconstitutional by such states’ respective Supreme Court. Among the issues found unconstitutional in 2016 were:

  • Caps on temporary total disability benefits
  • Exclusion of coverage for certain farm workers
  • Caps on attorney fees
  • Time limits for filing cumulative trauma clams
  • Use of current edition of AMA guidelines for impairment ratings

When an aspect of the law is found unconstitutional, that change goes back to when the law was enacted. In Florida, the rulings changed the laws governing years of existing claims, significantly increasing the exposure on such claims retroactively. This created unanticipated liabilities for carriers and self-insured employers.

The success of attorneys in challenging these statutes provides a road map for attorneys in other states to pursue similar challenges.

10. Mental Health

The notion that workers are not impacted by mental illness when a work injury occurs or that mental health is always separate from workers’ compensation is an increasing challenge for the industry. Mental health is among the top 3-5 reasons for short term disability absences across white and blue collar workers, mental health crosses industry verticals. More than ever employers understand that lack of mental health care impacts productivity, regardless of how an injury or illness occurred. Ways in which employers are addressing mental health and workers’ compensation include promoting EAP and behavioral health programs for employees regardless of how an injury or illness develops.

One challenging aspect of this issue is the fact that many states significantly limit or completely prohibit workers’ compensation benefits for mental injuries without any physical cause. There will be more discussions in the future about the need to revisit laws around the country dealing with mental injuries.

11. Impaired Workforce

After the November elections, eight states and DC allow for recreational use of marijuana. This means around one in five people live in a state where recreational marijuana is now legal.

For employers, this means the reality that a percentage of your workforce is likely impaired. Years ago many employers stopped doing pre-employment drug testing because they could not get enough applicants to pass to fill their jobs. New OSHA regulations from 2016 seek to significantly limit the use of post-injury drug testing, which further inhibits employers looking to maintain a drug-free workplace policy.

The answers to this issue is very challenging. Drug testing for marijuana always focused on whether the drug was present in the system because it was illegal. It can be detected in the system 30 days after use, but showing presence of the drug does not show impairment. This is an area where the science needs to catch up with social reality. We need an established standard for what constitutes impairment when it comes to marijuana.

See also: How Should Workers’ Compensation Evolve?  

12. Alternatives to Opioids for Chronic Pain

For a number of years, there has been significant focus on reducing prescription opioid use in workers’ compensation. With President Obama supporting awareness of the opioid epidemic in 2016, the management of opioids and opioid-related deaths became a household topic across America. In 2017, we believe there will be greater emphasis on the options outside of opioids for both acute and chronic pain. Admitting patients into functional restoration programs and multi-disciplinary integrated pain management programs have proven successful ways to eliminate opioid use. Meditation, exercise, mindfulness, yoga, and cognitive behavioral therapy have also shown success.

In the quest to offer non-opioid treatment options in workers’ compensation, one of the challenges is coverage. Insurers have been quick to pay for opioids and hesitant to pay for alternative treatments. One-size-fits-all approaches to care will not work for these patients. Treatment is outside of guidelines and requires coordination and care, rather than simply approving or denying treatment. 2017 should be our year to improve functionality for patients currently on opioids and alternative treatments must be considered.

13. Occupational Disease

We know that exposure to certain substances in the workplace can lead to diseases such as cancer. It can take years after the exposure for these diseases to manifest themselves. Yet most statutes only cover certain defined diseases and, in many states, the statute of limitations for reporting a claim is less than the manifestation period for the disease. This creates a hole in the coverage for these diseases.

This is an issue we are going to see in more courts around the nation, as these diseases continue to manifest themselves over time. Medical science is becoming more precise in identifying the sources of these diseases, and, as this happens, workers’ compensation statutes will need to be amended to provide better coverage for those workers who contract such diseases.

The opposite end of the spectrum when it comes to occupational disease coverage are the presumption laws that impact police, firefighters and other first responders. There are currently 34 states with various presumption laws covering a variety of cancers, diseases of the heart and lungs, and certain blood-borne diseases. Opponents of these bills argue that the science does not support an increased risk for disease due to the occupation alone and that these claims should be subject to the same causation standards as other occupational disease claims.

14. Transparency with Workers

How many times have you heard an injured worker say they didn’t understand the information that was provided to them? Often times injured workers retain attorneys simply because they are confused and do not feel like anyone is there to help them. Many of us in the industry believe the pendulum has swung too far towards the process of workers’ compensation instead of taking care of the injured worker.

There was great industry momentum in 2016 with advocacy-based claims models. In 2017, look for ways in which the advocacy discussion evolves into transparency discussions. Transparency is helping the injured worker be a good consumer within the workers’ compensation arena, helping them understand the process, and providing them the best available information to make proper decisions.

15. Insurance Talent Gap

We know that a significant percentage of the workforce in the insurance industry is expected to retire in the next 10 years. The pipeline of workers to replace these retiring employees is insufficient. To address this, we need a multi-faceted approach that includes working with colleges in developing risk management education and a focus on talent attraction and recruitment. Training programs need to continue to be refined so that the knowledge of retiring employees can be passed on. Finally, employee retention is also a concern. Employers need to be more flexible with working arrangements to compete with other occupations that allow for flexible hours and work-from-home options.

16. Workers’ Compensation’s Public Image

There is growing effort underway to promote the good in our industry. Everyday our companies and our colleagues are making the right decisions and helping people in their time of need. Yet, we also have such a long way to go in the area of public relations. We need to talk more about the good we do in helping injured workers regain their quality of life. This will not only help with the stakeholders in the system, but will go a long way with recruiting the next generation into our field. Workers’ compensation is about taking care of people and it is very meaningful work. Let’s all focus on improving workers’ compensation’s reputation this year.

17. The Evolution of Workers’ Compensation

In the last year, several industry groups have had discussions on how workers’ compensation should evolve to better meet the needs of today’s workforce. The threat of federal intervention was the driving force behind much of these discussions. With that threat on hold for now, it is important that the industry take this opportunity to continue these discussions while we can control the agenda. If change is needed, then we want to be the ones working with legislators and regulators to draft those changes.

18. Machine Learning and Artificial Intelligence

Predictive analytics have been around for over 10 years. Claims professionals began using predictive analytics to identify the claims that had a propensity for adverse development. Other models evolved to address litigation, sports medicine care opportunities and return-to-work goals. It is safe to say that nearly all payers have predictive models today and probably just as likely that there is little published data on the outcomes associated with these models.

In 2017, we believe the conversation will shift to machine learning. What payers have evolved or are building new claims systems to address artificial intelligence and machine learning? Should all claims be handled by a claims adjuster? Do interventions on every claims impact the ultimate exposure or are we at a point in the industry where processing a claim should be as easy as a warranty or auto claim? There is tremendous untapped potential in this area.

See also: Healthcare Reform’s Effects on Workers’ Compensation  

19. External Disruptors

Looking to the future, there are many areas where external disruptors could have a significant impact on workers’ compensation. Mark Walls feels this is the biggest issue for the industry to watch in 2017.

Many large employers have been looking at the merits of a 24-hour healthcare model. With medical making up close to 60% of workers’ compensation costs, what happens if that element is removed from the system?

Changing retail buying habits are also having an impact on workers’ compensation. Retailers are closing stores and going out of business. With more Americans doing their shopping online, what is the future for the retail industry?

Finally, automation is a reality that has potential to be a significant disruptor. The manufacturing and distribution industry has seen significant job loss due to automation. Think of all the jobs in the trucking, shipping and transportation industry that could be lost to self-driving vehicles. Automation could be the ultimate disruptor for the workers’ compensation industry.

20. Innovation in Action

While the insurance industry is traditionally not known for innovation, we are certainly hearing more about innovative solutions. Digital health, insurtech, med tech, machine learning, and automation are all terms we are becoming familiar with and each brings its own value to workers’ compensation. As the innovations come to fruition in the marketplace, we will be focused on understanding the value of the innovation. Is the innovation going to improve the experience of the user or is it designed for internal processes and workflow? Will the solution drive efficiency and speed to decision or process improvements? How will quality, compliance and outcomes be impacted and measured?

To listen to the complete webinar, click on this link.

How Bureaucracy Drives WC Costs

Workers’ compensation is one of the most highly regulated lines of insurance. Every form filed and every payment transaction is an opportunity for a penalty. Claims can stay open for 30 years or longer, leading to thousands of transactions on a single claim. Each state presents different sets of compliance rules for payers to follow. This bureaucracy is adding significant cost to the workers’ compensation system, but is it improving the delivery of benefits to injured workers?

Lack of Uniformity

Workers’ compensation is regulated at the state level, which means every state has its own set of laws and rules governing the delivery of indemnity and medical benefits to injured workers. This state-by-state variation also exists in the behind-the-scenes reporting of data. Most states now require some level of electronic data interchange (EDI) from the payers (carriers or self-insured employers). There is no common template between the states; therefore carriers must set up separate data feeds for each state. This is made even more complex when you factor in the multiple sources from which payers must gather this data for their EDI reporting. Data sources include employers, bill review and utilization review vendors. The data from all these vendors must be combined into a single data feed to the states. If states change the data reporting fields, each of the vendors in the chain must also make changes to their feeds.

Variation also exists in the forms that must be filed and notices that must be posted in the workplaces. This means that payers must constantly monitor and update the various state requirements to ensure they stay in full compliance with the regulations.

Unnecessary Burden

Much of the workers’ compensation compliance efforts focus on the collection of data, which is ultimately transmitted to the states. The states want this information to monitor the system and ensure it is operating correctly, but is all this data necessary? Some states provide significant analytical reports on their workers’ compensation systems, but many do little with the data that they collect. In a world concerned about cyber risk, collecting and transmitting claims data creates a significant risk of a breach. If the data is not being used by the states, the risk associated with collecting and transmitting it seems unnecessary.

Another complication is that there are multiple regulators involved in the system for oversight in each jurisdiction. Too often, this means payers have to provide the same information to multiple parties because information sent to the state Department of Insurance is not shared with the state Division of Workers’ Compensation and vice versa.

Some regulation is also outdated based on current technology. Certain states require the physical claims files to be handled within that state. However, with many payers now going paperless, there are no physical claims files to provide. Other states require checks to be issued from a bank within those states. Electronic banking makes this requirement obsolete.

How Is This Driving Costs?

All payers have a significant amount of staffing and other resources devoted to compliance efforts. From designing systems to gathering and entering data, this is a very labor-intensive process. There have not been any studies on the actual costs to the system from these compliance efforts, but they easily equate to millions of dollars each year.

States also impose penalties for a variety of things, including late filing of forms and late and improper payment of benefits. The EDI process makes it possible for these penalties to be automated, but that issue raises the question of the purpose of the penalties altogether. These penalties are issued on a strict liability basis. In other words, either the form was filed in a timely manner or it was not. A payer could be 99% compliant on one million records, but they would be automatically penalized for the 1% of records that were incorrect. In this scenario, are the penalties encouraging compliance, or are they simply a source of revenue for the state? A fairer system would acknowledge where compliance efforts are being made. Rather than penalize every payer for every error, use the penalties for those that fall below certain compliance thresholds (say, 80% or 90% compliance).

The laws themselves can be vague and open to interpretation, which leads to unnecessary litigation expenses. Terms such as “reasonable” and “usual and customary” are intentionally vague, and often states will not provide further definition of these terms.

How Can We Improve?

One of the goals of workers’ compensation regulations is to ensure that injured workers are paid benefits in a timely manner at the correct rate and that they have access to appropriate medical treatment. There was a time when payers had offices located in most states, with adjusters handling only that state. Now, with most payers utilizing multi-state adjusters, payers must be constantly training and educating their adjusters to ensure that they understand all of the nuisances of the different states that they handle.

The ability to give input to regulators is also invaluable, and payers should seek opportunities to engage with organizations to create positive change. Groups such as the International Association of Industrial Accident Boards and Commissions (IAIABC) and the Southern Association of Workers’ Compensation Administrators (SAWCA) provide the opportunity for workers’ compensation stakeholders to interact with regulators on important issues and also provides the opportunity to seek uniformity where it makes sense (EDI, for example).

There needs to be better transparency and communication between all parties in the rule-making process so that regulators have a better understanding of the impact these rules have on payers and the effort required to achieve compliance.

Developing standards in technology would be helpful for both the payers and the states. If your systems cannot effectively communicate with the other systems, you cannot be efficient. Upgrading technology across the industry, particularly on the regulatory side, has to become a priority.

Finally, we need to give any statutory reforms time to make an impact before changing them again because the constant change adds to confusion and drives costs. In the last 10 years, there have been more than 9,000 bills introduced in various jurisdictions related to workers’ compensation. Of those, about 1,000 have actually been turned into law. People expect that these reforms will produce the desired results immediately, when in reality these things often take time to reach their full impact.

These issues were discussed in depth during an “Out Front Ideas With Kimberly and Mark” webinar on Feb. 9, 2016. View the archived webinar at http://www.outfrontideas.com/archives/.