Tag Archives: National Institute for Occupational Safety and Health

Return to Work Remains a Problem

According to one published report, (WorkCompCentral, March 4, 2016, “$100 Million in Workers Benefits Sits Unused”), only 3,955 checks have been issued to injured workers from the Return to Work (RTW) Fund established in Senate Bill 863. The checks total slightly less than $20 million, leaving an additional $100 million untapped by injured workers. According to regulations of the Department of Industrial Relations (DIR) that administers the fund, workers receive a $5,000 allowance if they have been issued a Supplemental Job Displacement Benefit (SJDB – commonly referred to as a “voucher”). The voucher is issued if the employer at injury fails to make a qualifying offer of employment to the worker.

While the provenance of the RTW Fund has been criticized – largely by those not in the room to witness its birth – there are more fundamental issues with the fund and its administration. First, the RTW Fund really has nothing to do with return to work.

It can be fairly assumed that the use of that particular section of the Labor Code – Section 139.48 – was a legal accommodation because there was existing statutory reference to the RTW Fund in Labor Code Section 62.5 – specifically Sec. 62.5(a)(1)(B). Section 62.5 is the Workers’ Compensation Administration Revolving Fund statute. That reference, in turn, was to the RTW Program that was originally created more than 15 years ago in Assembly Bill 749 as a mechanism to partially subsidize certain employers who brought injured workers back to work. The employer subsidy as originally enacted was for wages and worksite modifications. Later, Senate Bill 899 further revised the RTW Program to limit the reimbursement to worksite modifications and to expend funds on an “as available” basis. The RTW Program sunset on January 1, 2010, but while Labor Code Sec. 139.48 was taken out of the code, the reference to the RTW Fund in Sec. 62.5 remained.

See Also: A Physician’s View of ‘Return to Work’

Once one gets past the title of “Return-to-Work Program,” however, there is no evidence to suggest that Sec. 139.48 has anything to do with returning a worker to employment with the employer at injury – or anyone else for that matter:

“139.48. (a) There is in the department a return-to- work program administered by the director, funded by one hundred twenty million dollars ($120,000,000) annually derived from non-General Funds of the Workers’ Compensation Administration Revolving Fund, for the purpose of making supplemental payments to workers whose permanent disability benefits are disproportionately low in comparison to their earnings loss. Moneys shall remain available for use by the return-to-work program without respect to the fiscal year.

“(b) Eligibility for payments and the amount of payments shall be determined by regulations adopted by the director, based on findings from studies conducted by the director in consultation with the Commission on Health and Safety and Workers’ Compensation. Determinations of the director shall be subject to review at the trial level of the appeals board upon the same grounds as prescribed for petitions for reconsideration.

“(c) This section shall apply only to injuries sustained on or after January 1, 2013.”

The history of Labor Code Sec. 139.48 is also influenced by the Commission on Health & Safety & Workers’ Compensation (CHSWC) publication, “Report on the Return-To-Work Program Established in Labor Code Section 139.48” (2009). The most telling aspect of that report was the “alternative” recommendation to the Legislature: “California may wish to consider eliminating the program. California may wish to consider a program that more directly assists injured workers who are unable to return to their previous jobs.” (p.7) Given that the program sunsetted roughly eight months later, the commission’s recommendation is almost prophetic.

Three years later, as required by SB 863, the DIR conducted an independent study to determine how best to structure the RTW Fund in the new and improved Labor Code Sec. 139.48. That responsibility fell upon the ubiquitous RAND Corporation, whose 2014 report, “Identifying Permanently Disabled Workers with Disproportionate Earnings Losses for Supplemental Payments” is the foundation for the current RTW program. Among its recommendations were to make eligibility for the program dependent on receiving a voucher. According to RAND, approximately 20% of injured workers receiving permanent disability benefits receive a voucher. (p. 12) Under RAND’s scenarios, and anticipating utilization of the RTW fund at the same approximate levels as the vocational rehabilitation program repealed in 2004 by Assembly Bill 227 rather than their observed voucher utilization figures, RAND estimated roughly 24,000 injured workers would access the RTW Fund, thus resulting in about $5,000 per recipient to exhaust the $120 million annual assessment.

So while that explains where we are today, it also raises questions about whether the current RTW program suffers from the same lack of awareness that caused its statutory predecessors to go quietly away. But that also raises the bigger issue: What has happened to re- employment as an objective of the system over the past 20 years?

The history of vocational rehabilitation in California’s workers’ compensation is a long one – culminating in the repeal of the mandatory vocational rehabilitation program in AB 227 and the repeal of vocational rehabilitation as a compensable benefit with the amendment to Labor Code Sec. 3207 in SB 899. Legislative efforts trying to suggest that return to work is still important in the workers’ compensation system have largely been limited to the voucher, an at-best-meager program that is intended to try to put the injured worker on the path toward gaining skills to find new employment. In no way, however, is it as robust as the former vocational rehabilitation program. It is, regrettably, a $6,000 check, with some restrictions, that is intended to finalize the severing of the tie between an injured worker and the employer at injury.

See also: Return to Work Decisions on a Worker’s Comp Claim  

To paraphrase Will Turner in Pirates of the Caribbean, “That’s not good enough!”

As we move forward and discuss a whole host of issues in the workers’ compensation system, such as utilization review, the use and abuse of opioids, prescription drug formularies, independent medical review and permanent disability ratings, perhaps someone, somewhere, likely in either Oakland or Sacramento, should talk about re-employment of disabled workers.

Not some resurrection of vocational rehabilitation and what became its abuses but, rather, simply how to help workers unemployed due to a disabling injury at work to have the same access to re-employment assistance as disabled or otherwise unemployed workers whose access to re-employment assistance is defined by multiple state and federal programs and not by extracting some form of payment from the employer at injury.

There is no shortage of programs that could provide such assistance. And perceived unintended consequences that expanding the scope of re- employment assistance beyond the employer at injury would increase the number of workers unemployed after a workplace injury are unlikely given the protections of the Fair Employment and Housing Act (FEHA), the Americans with Disability Act (ADA) and Labor Code Sec. 132a.

According to the Workers Compensation Insurance Rating Bureau (WCIRB), in calendar year 2014 roughly $29 million was spent on vouchers. Labor Code Sec. 139.48 assesses $120 million annually. One should ask whether that money would be better spent providing access and coordination to the host of re-employment programs offered by the Department of Rehabilitation, the Employment Development Department (CalJOBS), non-profit private companies, such as Goodwill Industries, that offer re-employment assistance, and a host of federal programs, including those offered from the U.S. Department of Labor, Office of Disability Employment Policy and the Social Security Administration’s Plan To Achieve Self-Support (PASS).

In today’s complex world we simply cannot expect the employer at injury – especially the small to medium-sized employer – to provide all the resources necessary to facilitate meaningful re-employment for injured workers who are permanently disabled. Expanding the concept of re-employment and coordinating programs designed to create jobs for the disabled is a logical step forward to address this problem. No amount of vouchers or RTW fund disbursements will ever be a viable substitute for a job.

The sooner we realize this and look to Sacramento and Washington to break down the barriers created by the workers’ compensation system to full access to re- employment resources for disabled workers, the better.

 

healthcare

Future of Work Comp Healthcare Delivery

Reform is changing healthcare delivery models, but there is a large gap between the healthcare related to workers’ compensation and the group health approach.

As a result of healthcare reform, the industry has experienced significant consolidation of health systems and medical practices, with an added emphasis on patients as consumers of healthcare, all as providers continue to evolve. As employers, though, our message is confused.

We tell employees that we have a great healthcare system for them, encourage them to choose the best physician to meet their needs and remind them to get regular checkups. However, if an employee gets injured, we have a separate system with a separate set of doctors and a separate set of rules.

If employers can find better doctors to treat workers, they can improve the quality of the workers’ compensation system. Employers are not going to get better doctors just by paying more; but, if they can identify which doctors are doing a better job and reward them, results improve.

California’s model has been experimenting with the concept of rewarding doctors for providing superior care, which has resulted in significant cost reduction. Great doctors are actually reducing the amount of medical attention required and, overall, workers’ compensation claims costs. As a result of better care and employee satisfaction, litigation costs have also dropped. Quality matters.

With advancements in technology, reimbursement models, a focus on quality and the movement of connected care, health systems across the U.S. are offering accountable care organizations (ACOs) for employer benefit solutions. Many think mergers and consolidation are a bad thing, however, in this consolidated world where health systems have changed, mergers and consolidation are changing “well care” to “sick care.” By taking a holistic approach, you are able to take a patient from wellness to injury care. Workers’ compensation needs to be part of this discussion. If not, we cause an even greater divide.

This holistic approach is not a new concept. In the 1990s, there were three 24-hour care pilot programs that tried this approach and resulted in lowered cost and improved medical control. At the same time, 10 states also mandated 24-hour pilot studies. Employers generally liked the pilot programs, which resulted in benefits such as increased medical control and reduced costs. On the national front today, the National Institute for Occupational Safety and Health (NIOSH) has a total worker health program that considers the total person and the factors that affect the individual’s health. The workers’ compensation system could borrow and apply successful elements from these programs.

When you send an injured worker to the best and brightest, you make the workers and their families feel like you are treating them well. This gets the patient to do what the doctor wants and stops the unfortunate spiral of delays in care. Technology is going to refine this approach even further. Technology will enable patients to get in touch with doctors immediately and will make the worker feel like he was properly cared for. This has the potential to be extremely effective and efficient for the system.

When a connected care system is not in place, the gaps in care are leading to needless disability and extended absence. Technology and telemedicine are essential components of this connected care. Gathering and analyzing health data is also important to drive positive behavior and improve overall quality of care.

The patient base is also more complicated, and that is where finding the great doctor comes into play. Today, if you have a patient with a broken arm, you may, in fact, have a patient with a broken arm and diabetes, which is much more difficult to treat. We need to find these great doctors and find systems for them to work with that operate far more efficiently. Technology is a very big part of that.

The current workers’ compensation system is not set up to reimburse for payments under this new model, including the use of nurse practitioners and physician’s assistants. The system needs to move in this direction. There are simply not enough physicians to see everyone. These healthcare professionals are essential elements of the group system, and the workers’ compensation system could be improved significantly by recognizing the need for these important providers.

Workers’ compensation currently works in silos, and that is an obstacle. The health system ACO model is communicating directly to the employers. As this model becomes adopted, the board room is not seeing the financial benefits just yet. However, when employers decide they want change, change happens. It is just a matter of getting their attention.

Employers are paying attention to the data they receive on the types of health systems. If the data around what is working in group health becomes available to employers, they will evolve.

Holistic care is certainly a trend that is largely becoming a reality. Workers with sedentary lifestyles who become injured on the job bring complicated connections between injury and pre-existing conditions that are hard to separate. It makes sense to treat people as they are—as a whole person. It is very important to try to get all of the systems to work together to treat the employee as one person.

We need a network that drives total employee health, and we can only have that if group health and workers’ compensation can talk to each other. Data is going to drive this evolution. The best-case scenario is if all this wonderful science and data can be put to use to help patients and merge what currently are parallel systems.

These issues were discussed in more details during an Out Front Ideas with Kimberly and Mark webinar, which was broadcast on Sept. 30, 2015. The archived webinar can be viewed here.

The Need to Protect Healthcare Workers

The National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) just released their Hospital Respiratory Protection Toolkit. This toolkit provides a much-needed comprehensive resource for healthcare employers to use to protect their staff from respiratory hazards like airborne infectious diseases, chemicals and certain drugs that, when inhaled, cause illness, infection or other physical harm to healthcare workers.

We know that national public health preparedness has increased because of the Ebola virus cases in Dallas last year, but the nation may not know that federal agencies like NIOSH and OSHA are always working to prepare healthcare and other workplaces from exposures to dangerous organisms and chemicals that cause infection, illness and other harm. This new toolkit is evidence of that effort. According to the International Safety Center and its EPINet data, current compliance with the use of personal protective equipment (PPE) like respirators, and even lesser protection like surgical masks, is so low (less than 20%!) that this effort can only help to improve compliance.

The OSHA Respiratory Protection Standard has long required that healthcare employers have a respiratory protection program to protect workers exposed to respiratory hazards, but the standard is as complex as are the hazards and the circumstances surrounding patient care in hospitals. This toolkit helps healthcare and program administrators sort through the standard, overcome what they may see as daunting tasks and tackle their respiratory protection programs one step at a time.

The toolkit is long — 96 pages long — but fear not. It provides great pull-out, grab-and-go tools like the “Respiratory Protection Program evaluation checklist” and a “Respiratory Protection Program template” that can be used in healthcare facilities to create, adapt or modernize programs. Not all respiratory protection program administrators are seasoned at putting programs in place that are effective, and this resource will surely assist even the novice pull together a safe program.

Hats off to NIOSH and OSHA! You remind us that keeping our patients as safe as possible is only possible when we keep our workers as safe as possible.

Your comments about the utility of this resource would be appreciated by NIOSH, as it will help inform the development of future companion resources. You can kindly email your feedback directly to Debra Novak’s email: ian5@cdc.gov.