Tag Archives: mary reaston

Better Approach to Soft Tissue Injury

Musculoskeletal diseases, defined as injuries to the soft tissues, currently affect more than one out of every two persons in the U.S. age 18 and older, and nearly three out of four over the age of 65. Low back pain affects at least 80% of adults at some point, with an estimated annual cost of more than $100 billion. Trauma, back pain and arthritis — the three most common musculoskeletal conditions — are the most common reason for patient visits to physicians’ offices, emergency departments and hospitals every year. With the aging U.S. population, musculoskeletal diseases are becoming a greater burden every year.

A determination must be made if the pain generator is muscular or structural, and incorrect diagnoses can lead to inappropriate treatments and, in the worst case, unnecessary surgeries.

About 80% of healthcare and social costs related to low back pain are attributed to just 10% of patients with chronic pain and disability. This statistic suggests that improved interventions to reduce the recurrence of low back pain can underpin significant cost savings and improvement in patient outcomes.

The standard approach to managing soft tissue injuries is to obtain a medical history and perform a physical examination. Imaging or testing usually is not needed in the early phases of treatment. In most cases, the natural history of a soft tissue injury resolves without intervention.

There are excellent tools to diagnose structural abnormalities or nerve injuries. These include imaging studies, nerve condition tests and disograms. X-rays can be used to assess the possibility of fracture or dislocation. Nerve conduction studies may be used to localize nerve dysfunction.

But they are not adequate for soft tissue injury or functional assessments. MRI and CT scans, while excellent tests to evaluate structure, are generally static and not designed to assess muscle function dynamically. In addition, these standard tests all carry a high rate of false positives.

There is no magic bullet or one test that does everything. While many tests are good for what they are designed to evaluate, they are not appropriate to diagnose a soft tissue injury.

Enter electrodiagnostic functional assessment — EFA testing. The EFA is a diagnostic tool that combines and enhances five medically accepted tests: electromyography, range of motion, functional capacity evaluation, pinch and grip strength. The EFA is non-invasive and non-loading. The advantage the EFA presents over performing these tests individually is that it performs all tests simultaneously and in a dynamic fashion.

This equipment has a 510 (k) registration with the Food and Drug Administration as a Class II diagnostic device. Furthermore, the FDA has recognized in the intended use section that the technology can distinguish between acute and chronic pathology, is able to look at referred pain patterns and is useful with treatment recommendations and baseline testing.

Physicians encounter patients daily with complaints of injuries to the soft tissues, particularly the paraspinal muscles. In many cases, objective findings are obvious, but many patients may have injuries that are subtle but continue to cause symptoms. In other cases, the injuries may be less recent, and the physical findings may not be apparent. Direct palpation of soft tissues can, in some cases, reveal the nature or type of injury, but this manner of diagnosis relies on static testing. For some individuals, problems may only be encountered during activity. Measuring muscle activity during range-of-motion testing is difficult at best. The extent to which a patient exerts herself also presents a subjective bias with soft tissue injury.

Better outcomes will be demonstrated by using the correct tools to evaluate the underlying pathology. In Adam Seidner’s paper “Assessing disease and wellness in the occupational setting: Electrodiagnostic Functional Assessment from wired to wireless,” he demonstrated that, when the EFA was implemented as a case management tool, it enhanced the level of discussion among treating providers, injured workers and claim professionals. The study demonstrated that medical and lost wage payments to injured workers and their healthcare providers were 25% lower in the EFA group, for an average savings of $10,000 per claim versus the control group. Most importantly, the average return to work was 213 days in the EFA group versus 275 for the control group, or an average of 62 days sooner. The EFA was able to provide better diagnostic information on soft tissue injuries and return the individual back to activities of daily living sooner. Better patient care leads to better outcomes.

The EFA results are further demonstrated in the paper “Musculoskeletal disorders early diagnosis: A retrospective study in the occupational medicine setting.” The study found EFA test results affected the course of treatment, improved clinical and functional outcomes, increased patient satisfaction and decreased dispute litigation. In fact, 98 of the 100 cases resulted in return to maximum medical improvement with no rateable impairment and full release to active duty. Only 2% of the cases were challenged, and 98% of those in the EFA control group returned to their pre-injury jobs. These cases were tracked over a three-year period.

The EFA-STM baseline program is just another example of better diagnostics providing better patient care. This book-end solution allows for the best care possible for the work-related injury. If a condition is not deemed to be work-related, the individual can still receive the best care and a quicker resolution.

The EFA does not replace the other, well-established diagnostic tests; it is simply a better diagnostic alternative for soft tissue injuries. All the tests can complement one another.

At the end of the day, when it comes workers’ compensation, the issue is providing better patient care. It’s a win-win for all parties.

 

Is Baseline Testing Worth the Effort?

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

First, some background on baseline testing:

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

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

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

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

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

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

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

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

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

Better 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.

Myths About Obamacare and Workers’ Comp

The Obama administration has said that the Patient Protection and Affordable Care Act, enacted into law in 2010 and scheduled to take effect on Jan. 1, will reduce workers’ comp claims because so many additional people will be covered under personal insurance policies. But there is reason to think otherwise.

The first issue is that so many companies are reducing the insurance they offer employees or are cutting employees’ hours so much that they fall below the law’s threshold, so employees don’t have to be covered at all. Employees who aren’t covered under corporate policies or who are underinsured are more likely to make workers’ comp claims.

Here are just a few examples from National Review Online:

SeaWorld used to let part-time employees work as many as 32 hours per week, but the company is dropping the limit to 28 hours to keep them under the 30-hour threshold at which it would be required to provide health insurance under Obamacare. More than 80 percent of the company’s thousands of employees are part-time or seasonal.

Carnegie Museum in Pennsylvania scaled back the hours of 48 of its 600 part-time employees to less than 30 hours a week to sidestep the mandate to provide health-care coverage

Virginia Gov. Bob McDonnell decided to limit the state’s part-time employees to 29 hours per week.

Brevard County, Florida told a local television station that the county’s 300-plus part-time employees will be “capped at something less than 30” hours to save the county about $10,000 per employee in health insurance.

Fatburger  announced that franchises had begun making efforts to keep employees under the 30-hour threshold, including some franchises’ engaging in “job sharing.”

As more companies shift to shorter work weeks, you can expect claims under workers’ comp to keep climbing.

Proponents of Obamare still say it will decrease workers’ compensation costs in several ways, including through the elimination of lifetime caps on medical insurance coverage. The argument is that these caps on employees’ private policies pushed them to file workers’ compensation claims. Really? Many of the leading cost drivers for work-related injuries are Musculoskeletal Disorders (MSD), better known as soft tissue injuries.  According to the Bureau of Labor Statistics (BLS), soft tissue injuries (sprains and strains) accounted for 40% of all work-related injuries that resulted in lost days of work. I do not believe that these types of injuries would affect the lifetime maximum for health insurance, which is typically $1 million.

Proponents also note that a healthcare insurer can no longer refuse to provide coverage because of preexisting conditions, conditions they claim were often not covered by private healthcare and thus encouraged employees to seek coverage under workers’ compensation. While this is a good point, the National Review’s examples show that many people are losing healthcare coverage or will see it reduced, meaning that there will be a greater likelihood of workers’ compensation claims. Yes, there are penalties for not securing healthcare coverage, but they are modest, especially in the early years of Obamacare, and there is no real mechanism for enforcement. The IRS has the responsibility for collecting penalties but has no true powers to do so.

How are people supposed to afford care if their hours have been cut?  You guessed it: workers’ compensation.

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

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

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

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

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

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

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

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

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

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

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

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