Tag Archives: mary rose reaston

An Unprecedented Work Comp Ruling

The March 2016 opinion  in Negron v. Progressive Casualty Insurance by a federal district court was an unprecedented ruling against Progressive for filing a false or fraudulent claim under the Medicare Secondary Payor Act (MSP) and causing a governmental agency (Medicare) to wrongfully pay for benefits. The decision raises a broad issue for workers’ compensation.

Before MSP, Medicare and other federal programs paid for medical services even if the beneficiary was covered by another program. With increased longevity and escalating medical costs, though, the federal government could not continue to pay for medical costs that were already covered by other plans. Therefore, in 1980, Congress enacted MSP to bar Medicare payments where payment has been made or is reasonably expected to be made promptly by a primary plan. MSP also requires that certain claims-specific information be reported by liability insurance (including self-insurance), no-fault insurance and workers’ compensation insurance.

The connection to workers’ compensation comes because it allows an injured worker to potentially be  entitled to receive future medical benefits. Settlement of workers’ compensation claims is either by stipulation (future medical treatment is typically left open) or by compromise and release (where future medical issues are paid out). But if Medicare pays for a work-related condition covered by future medical payments that have been settled through workers’ comp, this could constitute fraudulently inducing a Medicare payment and be subject to the False Claims Act, a federal law that imposes liability on persons and companies that defraud governmental programs.

See also: Whistleblower Suits: Emerging Risk on MSP

Under the False Claims Act, private individuals may bring a lawsuit on behalf of the government in exchange for the right to retain a portion of any resulting damages award. Therefore an injured employee who is a Medicare recipient may bring an action against the responsible party if there was payment by Medicare for a work-related injury, and the worker would receive part of the recovery. This may seem far-fetched, but it could happen, so employers need to be prepared.

See also: The Search For True Healthcare Transparency

It would reduce potential overlap and complications if an employer needs pays only for conditions and treatment  that arise out of the course and scope of employment. The best approach to this is to have objective information as to what the employee’s physical condition was before an injury so he can be returned to pre-injury status.

An EFA-STM program can provide that baseline for musculoskeletal disorder (MSD) claims, a leading cost driver in worker’s compensation. MSD claims are often difficult to diagnose and treat, and oftentimes the individual does not receive appropriate care. The EFA-STM program evaluates either new or existing employees with a customized evaluation that is consistent with  the job. The baseline evaluation is not read until there is reason to think a work-related MSD might have happened. At that time, a second test is conducted to not only determine if there is a change in condition but to ensure that the employee receives the appropriate care for any work-related injury.

baseline

Baseline Testing Provides a Win

According to the Bureau of Labor Statistics (BLS), the incidence of musculoskeletal injuries (MSD) cases for heavy and tractor-trailer truck drivers increased to 355.4 cases per 10,000 full-time workers in 2014, up from 322.8 in 2013. This is more than three times greater than the rate for all private sector workers.

Companies are faced with increasing exposure from MSD claims, not only from state regulations but from compliance with federal mandates that increase potential exposure for these types of injuries. (The Centers for Disease Control and Prevention (CDC) defines MSD as injuries or disorders of the muscles, nerves, tendons, joints and cartilage as well as disorders of the nerves, tendons, muscles and supporting structures – the upper and lower limbs, neck and lower back – that are caused, precipitated or exacerbated by sudden exertion or prolonged exposure to physical factors.)

Safety will always play a role in mitigating risks, but, no matter how safe an environment, an employer will always have MSD claims. In the transportation industry, the higher rates of injury can be attributed, in part, to several factors.

The nature of the work is one. Many drivers maintain a poor diet, rarely get enough sleep and are sedentary. As a result, they find themselves more susceptible to heart attacks and diabetes, as well as a myriad of strains, sprains and other musculoskeletal disorders.

Additionally, the percentage of older workers is higher in transportation than in most industries, with the Transportation Research Board estimating as many as 25% of truck drivers will be older than 65 by 2025; that translates into more severe musculoskeletal disorder claims.

So, how can a transportation company turn this around and provide a win for all parties? Let’s explore through a case study:

Marten Transport is a multi-faceted provider of transportation services offering over the road (OTR), regional, intermodal and temperature-controlled truckload services. The company has 15 operational centers and more than 3,670 employees and contractors. It needed to provide better care for MSD injuries while not accepting liability for injuries occurred outside the scope of work. Marten decided to institute the EFA Soft Tissue Management (EFA-STM) program in February 2015 to determine which injuries were work-related and which were not, as well as to provide better care.

According to Deborah Konkel, the work comp claims manager for Marten, the company uses the EFA-STM “as a fact-finding tool to help us, our employees and their medical providers better understand the nature of their injury and determine the best course of action going forward.” Under the EFA-STM program, workers are given a baseline test that is unread; after a reported injury, a second test is conducted. That data is compared with the baseline test to identify the new acute condition, distinct from any pre-existing chronic conditions.

The EFA-STM program is a paradigm shift in workers’ compensation because it provides benefits for all stakeholders by accurately separating work-related injuries from those that are not work-related and by providing objective information and, thus, better care for the work-related condition. The key question is what the physical condition of the employee was before the incident and what needs to be done to return him to pre-injury status. EFA-STM provides the required data.

To determine the benefit of the EFA-STM program, Marten’s workers’ compensation claims data from 2010-2014 was compared with claims data from 2015. The average rate of MSD injuries per 100 hires from 2010-14 was compared with the 2015 rate. The result was a 60% drop in the rate of MSD injuries per 100 hires in 2015. This translated into almost 40 fewer MSD claims in 2015. Using the 2010-14 average cost per MSD claim, the EFA-STM program yielded a direct ROI of 3.7: 1.

“Based on these results, we believe that the EFA-STM program has been a win for all parties involved and a must for companies, especially in the transportation industry” Konkel said.

Obamacare Expands Into Workers’ Comp

The Affordable Care Act (ACA) was created to expand healthcare coverage. Unfortunately, the act has overstepped its bounds and will dip into the workers’ compensation coffers by requiring mandatory reporting for Medicaid beneficiaries.

Medicaid originated in 1965 to cover low-income people with children who had disabilities. State and federal governments fund Medicaid, with the state being the primary administrator. Each state receives direction for the program from the federal government, but eligibility for the program is based on income and assets.

Now the new twist. As of Oct. 1, 2016, state Medicaid programs will be able to recover all of the proceeds from a settlement that were expended on a beneficiary’s behalf. Medicaid will be able to attach a beneficiary’s third-party liability settlement (including workers’ compensation) for the entire amount of the beneficiary’s award – not just the amount allocated to medical expenses. This means funds intended to compensate beneficiaries for pain and suffering, lost wages or any damages other than medical expenses could be subject to the reach of state Medicaid agencies seeking recovery.

This will affect many employers because adoption of ACA has afforded broader coverage under state Medicaid programs, which now include individuals within 133% of the federal poverty level (roughly $32,252.50 for a family of four in 2015) and under the age of 65 years. Medicaid now covers a greater percentage of the workforce.

Since the inception of the Secondary Payer Act (MSP), the primary focus for Centers for Medicare and Medicaid Services (CMS) has been on Medicare reimbursement, primarily because there was a lack of federal direction to the states to recognize Medicaid’s rights and because, before ACA, the majority of Medicaid recipients were unemployed. The lack of recovery process has placed a tremendous burden on state Medicaid programs, because many of them are paying for treatment for individuals who are now covered by workers’ compensation. Medicaid needs to be reimbursed for these expenditures, because voluntary reimbursement has not been successful, resulting in many state programs experiencing insolvency.

The federal laws regarding the rights and responsibilities of recovery from parties in injury cases such as workers’ compensation had to change. These changes translate into digging deeper into an employer’s pockets and taking away more control from the employer.

The National Conference of Insurance Legislators (NCOIL) is developing a model for legislation to assist in recovery efforts. If adopted, this legislation would apply to all workers’ compensation and personal injury claims for medical payments coverage and third party payments for bodily injury from insurers and self-funded primary plans. Rhode Island, West Virginia, Vermont and Kentucky are already exploring “intercept” programs to help comply with the mandatory reporting requirements. Employers that operate in many jurisdictions may have to navigate many different programs as each has distinct reporting and repayment provisions.

Workers’ compensation was never intended to be part of Medicaid. It is only because of the expanded benefit rights from ACA that more employed individuals are Medicaid recipients. Now, not only do employers have to be concerned with MSP rights for Medicare, but they also have to be concerned with Medicaid. While Medicare is a standard set of federal rules, Medicaid will vary from state to state, so compliance is not consistent.

Employees and carriers alike have to be concerned that any settlement arising out of a work-related injury could be subject to “interception” on behalf of the state Medicaid program. No winners here.

While there is no escaping the law, employers can minimize problems by ensuring that they only accept claims that arise out of the course and scope of employment (AOECOE). If an injury did not occur at work or if work did not exacerbate a condition, then it is not a work-related injury and is outside the scope of the Medicare and Medicaid Secondary Payer Acts.

The EFA-STM Program, a book-end solution for the diagnosis and management of soft tissue injuries, has proven effective in helping all stakeholders – employers, physicians and employees – by helping deliver better care for the work-related injury and identifying whether there is a change in condition; i.e. is it work related or not? The program not only is of benefit for the reduction of workers’ compensation claims, it is instrumental in helping all stakeholders navigate the Secondary Payer Acts.

Please join us for the Emerging Trends in Workers’ Compensation Summit in Carlsbad, CA, on Jan. 28, 2016. To get the special ITL rate of $175, use this promotional code: EMERGE2016.

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.

 

Obesity as Disease: A Profound Change

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

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

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

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

Obesity as an impairment

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

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

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

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

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

What does this mean to employers?

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

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

Recent studies

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

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

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

Customer-driven safety expectations

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

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

Challenges of an aging workforce

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

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

Treating chronic disease

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

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

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

Conclusion

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