Tag Archives: ssdi

Don’t Miss the Crossover Issues in WC

March Madness may be the ideal time to remember workers’ compensation crossover issues. Crossover issues are not strictly workers’ compensation issues — which is why they are sometimes overlooked. That omission can cost a party money or even lead to a professional malpractice suit.

Third-Party Claims

Product liability, medical malpractice and negligent roadway design are examples of third-party claims usually unaffected by the exclusive remedy rule. Collisions may give rise to the most common third-party claim.

See also: How Should Workers’ Compensation Evolve?  

SSDI

Whether and when to apply for Social Security Disability Income (SSDI) are not simple decisions. Federal law is written to make sure a disabled person does not earn more when not working than the person did on the job. The “80% rule” limits the combined total of SSDI and indemnity payments to an injured worker. This rule principally affects lower-wage earners.

Medicare/Medi-Cal

Virtually all workers’ compensation professionals recognize the need for a Medicare Set-Aside in appropriate cases. Correct self-administration remains a challenge. Additionally, practitioners should be aware that two forms of Medi-Cal currently exist: traditional and expanded. Savvy negotiators can often use these programs to create a safety net to cover the injured worker’s medical expenses as part of a Compromise & Release completely closing the claim. C&Rs drafted without considering Medi-Cal issues could imperil medical care for the injured worker and the injured worker’s entire family.

Immigration

Undocumented injured workers are eligible for workers’ compensation benefits in California. Some undocumented workers have been in their jobs for decades. They remain under the legal radar until a workplace injury occurs. At that point, a false or stolen identity may come to light, creating issues for the injured worker and the employer. The Patriot Act’s provisions about identification required to open a bank account or to send money out of the country can interfere with an injured worker’s decision to choose a Compromise & Release.

Tax

The tax code provides that money received on account of a physical injury is not taxable. Usually all payments made on a workers’ compensation claim arise from a physical injury. However, a number of circumstances could trigger taxation. Also, once an injured worker receives a buy-out, earnings on invested or banked sums are taxable.

See also: Five Workers’ Compensation Myths  

Get Help

Workers’ compensation professionals should recognize crossover issues, and counsel should alert clients when these issues appear. The next step could be to bring in an expert in that area, provide one or more referrals or advise clients to seek professional advice on their own.

It’s Time to Act on SSDI Trust Fund

The new Congress and the Trump administration need to act soon if they want to address the projected 2023 exhaustion of the Social Security Disability Insurance (SSDI) trust fund and protect hard-working Americans. Every year, millions of Americans lose their jobs due to injuries or illnesses, but policymakers can take concrete steps to maintain these workers’ incomes and reduce spending for their SSDI, Medicare and other public benefits.

The first and most critical step is to empower states and the private sector to test promising approaches for helping ill or injured workers stay in the labor force. Otherwise, policymakers will be faced with either cutting disability benefits for workers who need them or diverting revenue from the trust fund that is intended to pay for the same workers’ retirement benefits. Policymakers chose the latter course in 2015, when the SSDI trust fund was projected to dry up within a year. But that option will be even less attractive in 2023 because the retirement trust fund is on a trajectory for exhaustion in 2035.

The nature of the opportunity

Research shows that a large but unknown portion of the more than two million workers who leave their jobs each year for medical reasons could continue to work if they received timely, evidence-based support. Yet many workers with work-threatening conditions fall through the cracks in a fragmented support system and enter SSDI instead.

See also: What Trump Means for Health System  

The private sector already has the tools to help more of these workers stay in the labor force, but the tools aren’t targeted to those most likely to enter SSDI—those in relatively low-skill jobs with limited education. Many employers of skilled workers provide job retention services along with short-term disability and health insurance. Workers’ compensation is available to most workers if their injury or illness is due to work, but the degree to which they receive job-retention services varies. Some states’ vocational rehabilitation agencies also provide job retention services, but their size and scope is very limited.

The fact that some job-retention services are already available reflects the substantial benefits of these services to workers, employers and state governments. It is clear, however, that the provision of services is suboptimal because of misaligned financial incentives and institutional constraints. Most notably, financial incentives created by federal programs work against job retention rather than for it: Federal support for ill or injured workers is almost entirely reserved for those who leave the labor force and enter SSDI. After a further 24 months, SSDI entrants also enter Medicare, and many with sufficiently low incomes receive Supplemental Security Income, Medicaid and various in-kind benefits. Furthermore, there is a sharp drop in the federal taxes collected from workers who stop working and enter SSDI.

Keeping these workers on the job and out of SSDI could save the federal government billions. The potential gains of investing in job retention far exceed the costs—which is why policymakers now have the chance to help hard-working Americans as well as reduce the size of the federal deficit.

The need for immediate action

To build on what we’ve learned thus far, federal policymakers must provide states and the private sector with opportunities to test various ways to help Americans whose livelihoods are threatened by medical conditions. Implementing a new policy based on our current limited knowledge could harm, rather than help, many workers, or it could result in new costs to federal and state governments that exceed the savings to public programs. For instance, policies that excessively push workers to pursue work when they are in dire need of SSDI and Medicare would harm their well-being. Likewise, policies that spend significant resources on services and supports that do not at least pay for themselves through reductions in program expenditures will increase government spending.

Instead, policymakers should plan to scale up, replicate and improve test systems that work and stop supporting those that do not. Over the past few years, we and others have identified many opportunities to test such systems. For example, the three states with public short-term disability insurance programs—California, New Jersey and Rhode Island—could pilot-test case coordination and behavioral interventions to help their claimants stay at work. Other states could test similar approaches for their own employees, and accountable care organizations could test the use of job retention as a quality metric. (On Feb. 23, Mathematica Policy Research’s Center for Studying Disability Policy is hosting a live webinar, “The Promise of State Initiatives to Prevent Long-Term Disability,” to discuss these and other state-level initiatives that can help workers keep their economic independence and save billions of taxpayer dollars.)

See also: A Closer Look at the Future of Insurance

Such tests are not likely to occur, however, unless federal policymakers lead the way. They could do that by (1) making the testing of promising systems a national priority, (2) establishing an interagency office to lead the effort, (3) providing modest funding to gain the participation of states and the private sector and (4) supporting learning via rigorous evaluation.

Rarely do policymakers have an opportunity to both help American workers and reduce entitlement expenditures. Such an opportunity presents itself today, but the window is closing on our chance to address these issues and preserve the SSDI trust fund.

How the Feds Want to Change Work Comp

The Department of Labor has issued a stinging report that, in effect, calls for a new federal commission to review how the state-based workers’ compensation system fails. The department throws down the gauntlet, challenging defenders of the current system to show how state oversight has not deteriorated in the past 25 years in the ways that matter to it —mainly, preventing financial distress to injured workers.

The report’s title, “Does the Workers’ Compensation System Fulfill its Obligations to Injured Workers?”, signals that the department is interested only in increasing worker benefits. It doesn’t want to take over managing the system.

The body of the 43-page report barely mentions employers and insurers. The department portrays itself as a vital stakeholder, in two ways. First, it cites a team of researchers with 70 years’ experience in workers’ comp who estimated that Social Security Disability Insurance spends $23 billion annually for benefits to beneficiaries injured at work. The SSDI enrollment rate for injured workers is double that of workers not disabled by work.

See also: Time to Focus on Injured Workers

Second, not large in the text but strikingly so in the press conference, speakers suggested that the nation’s entire economic safety net is out of kilter because of poor performance of the only part of the safety net run by the states.

There should be no doubt that ProPublica’s series of articles, which commenced in March 2015 with its initial broadside, “The Demolition of Workers’ Comp,” makes it easier for DOL to pitch its views. But DOL doesn’t have much problem finding evidence, some of which is sound, some speculative and some questionable.

The report’s power of persuasion is greatly enhanced by the fact that neither states nor private sector participants in workers’ comp seriously attempt to demonstrate that injured workers fare well, or even just no worse than in the past. The industry does not try to demonstrate that its immense investment in doing business, such as medical management, improves the lot of these workers.

The executive summary says, “Working people are at great risk of falling into poverty as a result of workplace injuries and the failure of state workers’ compensation systems to provide them with adequate benefits.”

The force of this sentence warns that if state regulators and private parties want to respond, it will take quite an effort. The risk of financial distress is rarely addressed, as WorkCompCentral did in The Uncompensated Worker report of January 2016.

States need to consider the extent to which the state system is responsible, such as by barring or erecting hurdles to claims for disease and post-traumatic stress disorder. Certain workers’ compensation benefits, such as for atomic weapons workers, have already been federalized because of failed efforts deliver benefits. (Some financial distress is beyond the scope of a workers’ compensation system, such as lower incomes years after a worker sustains a temporary medical-only claim.)

See also: States of Confusion: Workers Comp Extraterritorial Issues 

DOL’s report argues extensively that benefits have worsened since the 1980s. That’s when state reaction to 1972’s so-called Burton Commission (named after its chair, John F. Burton Jr.) began to falter. States made improvements primarily out of fear of federal take-over. Since, then, according to the report, it’s been only downhill. The report even questions how evidence-based medicine guidelines have helped workers.

This worsening of benefits is a complex argument, arising from Burton himself, still in the game. For some 40 years, frequency of work injuries (the number per 100 workers) has steadily declined. This seems a spectacular gain for workers and employers.  Indemnity benefits per $100 payroll also declined by a lot. In 2010, Burton asserted that benefit payments fell far more because of restricting access to benefits than from fewer injuries.

Much in the report can be picked apart by informed critics. Does anyone want to do it? The report does not end with a crisp list of action items to critique, other than a bland one for more research. But the obvious aim is another federal commission. Those who want to drown this surfacing proposal might consider what allies they have in Washington. Will either of the presidential candidates be opposed to a commission? Would congressional Republicans want to come to the defense of a state system not ready for this battle?

The Department of Labor and others in Washington want, it appears, to federalize enough to increase benefits but not to be in charge of every wheel spinning every weekday at 9 a.m. To achieve change, one has to propose something that most stakeholders will see as better or no worse. And you first have to destroy the reputation of those guarding the status quo. That’s the 50 states, and that’s the goal of this report.

This article first appeared at WorkCompCentral.

Waiting for Your Disability Benefits?

If you are suffering from an injury or illness that is preventing you from working, it’s likely you have lost a livable income, and you may be facing the threat of economic hardship. Many people, who are unable to work due to a serious illness or injury, are able to receive Social Security benefits as compensation. But, according to John C. Shea, a disability lawyer in Richmond, VA, applying for Social Security benefits is often a long and arduous process, whether because you are gathering all of your medical documents, making sure you ask all the right questions or patiently waiting to hear if you qualify,.

The Waiting Period and Financial Help

Once you have applied and are waiting for a response as to whether you qualify for benefits, the Social Security Administration (SSA) reports that the decision process can take anywhere from three to five months (keep in mind that the process can take even longer if you’re initially denied and file an appeal). Waiting nearly half a year is not “financially doable” for most individuals. Here are some helpful tips for getting financial help while waiting for SSA’s answer:

  • Are You Able to Work?: In some cases, individuals seeking SSDI benefits may be able to work, but there limitations on how much you can earn. Chances are, your illness or injury may limit your ability/length of time to work, anyway. If you’re interested in working, even very part-time while applying for SSDI benefits, it’s a good idea to talk to SSA; to avoid any extra issues or confusion, consult with a disability lawyer.
  • Apply for Supplemental Programs: If your life is put on hold due to a life-changing illness or injury, unfortunately, your needs and expenses won’t take a break. Groceries and other utilities are life essentials but are often big financial expenses. If you’re running into financial problems, rather than skipping bills and risking having your heat or electricity shut off, consider applying for energy assistance and take a look at programs like SNAP for food assistance.
  • Creating a Budget and Cutting Expenses: Downsizing on your monthly budget may be one of the easiest ways to save you some money while waiting for SSDI benefits. Although you may not want to give up certain “luxuries” like cable television or your costly cell phone plan, making some budget cuts here and there may save you hundreds of dollars a month. It’s also a good idea, while planning out your budget, to look ahead as much as a year. While SSA’s decision may take a few months, you may encounter some discrepancies that lengthen the process.

Accept Assistance

Asking for and accepting help can be difficult, especially if you’re struggling to come to terms with a lengthy illness or injury. If a friend or family offers to help you, strongly consider accepting the offer. Whether you insist on treating the help as a loan or a gift, the offer can help keep you financially afloat while you wait for your benefits.

Unnecessary Surgery: When Will It End?

Unnecessary surgery: When is it going to end? Not any time soon, unless a documented and proven approach is used by health benefit plan sponsors.

I began my healthcare career 35 years ago when, as a graduate student at Columbia University School of Public Health, I was awarded a full scholarship as a public health intern at Cornell Medical College in New York City. Dr. Eugene McCarthy at Cornell was the medical director of a Taft-Hartley joint union/management health benefits self-administered fund at the time and my mentor. I worked on the Building Service 32 B-J Health Fund, which was the focus of an eight-year study sponsored by the then-Department of Health, Education and Welfare (now Health and Human Services, or HHS) and which was the first study on second surgical opinions.

The study (1972-1980) followed union members and their families who were told they needed elective surgery and documented that roughly 30% of recommended surgeries turned out to be medically unnecessary. The study found 12 surgeries that generated the most second opinions that didn’t confirm the original diagnosis. This list comprises: back surgery, bone surgery and bunions of the foot, cataract removal, cholecystectomy, coronary bypass, hysterectomy, knee surgery, mastectomy, prostatectomy, hip surgery, repair of deviated septum and tonsillectomy.

What has changed on this list 35 years later? Very little, if anything.

USA Today on March 12, 2013, reported on a study that found that; “tens of thousands of times each year patients undergo surgery they don’t need.” After the release of this study, a former surgeon and professor at the Harvard School of Public Health stated that: “It is a very serious issue, and there really hasn’t been much movement to address it.”

A CNN special on March 10, 2013, reported that the U.S. spent $2.7 trillion on healthcare per year and that 30%, or roughly $800 billion, was wasted on care that did not improve outcomes. Sound familiar? The Cornell study said the same thing 31 years earlier.

Public and private employers, health, disability and workers’ comp insurers and state and federal programs such as Medicare and Medicaid are doing very little, if anything, to effectively address this problem. The solution to preventing unnecessary care and surgery is not in raising co-pays and deductibles and other out of pocket costs unless they are tied to consumer education and well-designed second-opinion programs.

In response to the USA Today article, a leading medical expert said, “You can shop for a toaster better than prostate surgery, because we don’t give patients enough information.” Another leading surgeon stated; “Far too many patients are having surgeries they don’t need, with associated major and severe complications such as long-term disability and even death.” Furthermore, “I see patients with neck and back problems, and at least 1/3 are scheduled for operations they don’t need, with no clinical findings except pain.”

What is the principal focus of today’s multibillion-dollar managed care industry, especially in workers’ compensation? Provider discounts, that’s what. But how is it a savings if the patient receives a discount on an operation he doesn’t need?

Most often, when I ask that question I am met with blank stares.

The New England Journal of Medicine in 2009 stated that a common knee surgery for osteoarthritis “isn’t effective in treating patients with moderate to severe forms of the disease.” Yet, according to federal researchers, 985,000 Americans have arthroscopic knee surgery each year, and 33% (more than 300,000) are for osteoarthritis “despite overwhelming medical evidence that arthroscopic surgery is not effective therapy for advanced osteoarthritis of the knee.”

According to the chairman of cardiovascular medicine at the world-renowned Cleveland Clinic, the U.S. health system is “doing a lot of heart procedures that people don’t need.” For example, angioplasty stent surgery in heart patients will likely relieve pain but “will not help a person live longer and will not protect against having another heart attack… What’s worse is that many of these surgeries will lead to bad outcomes.” He said, “This procedure should be performed for patients having a heart attack, but 95% of patients who have angioplasty surgery are not the result of a heart attack.”

The estimate on the direct medical costs to American businesses for low back pain is $90 billion a year; this doesn’t include workers’ compensation indemnity and litigation costs, disability costs, sick days and indirect costs such as lost productivity. As reported in my previous article, The Truth about Treating Low Back Pain, the Journal of the American Medical Association (JAMA) estimated that 40% of initial back surgeries, which amounts to more than 80,000 patients per year, have “failed back surgeries.” These unsuccessful back surgeries most often lead to a lifetime of debilitating back pain and billions more in long-term disability and Social Security Disability Insurance (SSDI) costs. These patients — four out of every 10 — all wish they had received a second opinion now. Yet when I recommended a second-opinion program to a union health fund in New Jersey, the manager said: “I am not going to tell my union members they need to get a second opinion.” True story.

Although we were scheduled to have an informal lunch meeting, after I recommended the fund consider a second-opinion program the “lunch” part of the meeting disappeared, even though I had driven two hours to get there. Maybe that is where the expression there is “no such thing as a free lunch” comes from? The health fund manager was downright indignant about my suggestion even though the first-second opinion program was conducted on behalf of a union health fund and was overwhelmingly successful.

He did describe, however, how upset he was about the fund’s rising healthcare costs. I guess he just wanted to be able to complain about it instead of actually doing something about it on behalf of his members. (The president of the union confided in me afterward that he had failed back surgery many years ago and wished he had gone for a second opinion.)

A colleague of my mine who is a senior vice president of product development for a leading third-party administrator (TPA) confided that insurance companies and TPAs will not implement programs that I could design and implement for their clients because they would never admit it was a good idea, given that they didn’t invent it.

I also hear all the time from so-called experts that second surgical opinions don’t work and don’t save money.

But large self-insured employers and health, disability and workers’ comp insurers should follow the lead of the top sports teams who send their top athletes for second opinions all the time to places like the Hospital for Special Surgery (HHS) and New York-Presbyterian Hospital/Columbia Medical Center in Manhattan or UCLA Medical Center in Los Angeles.

When I send client employees or friends and neighbors for second opinions, they often tell me that their appointment was with the same doctor Tiger Woods or Derek Jeter went to. My response is, “exactly.” Very often, conservative treatment is recommended and produces great patient outcomes, especially for back injuries and diagnoses for conditions like carpal tunnel syndrome. (See Carpal Tunnel Syndrome: It’s Time to Explode the Myth.)

Most, if not all, top surgeons I have met welcome second opinions for their patients because, when surgery is recommended, they want their patients to be assured that another expert also believes it is in their best interests.

I interned at the first second-surgical opinion in the country. I wrote my master’s thesis at Columbia on what I learned and how to improve upon the design and administration of the very successful Cornell program. Although the phrase, “I want a second opinion,” is now common terminology in America from auto repair to surgery, it has not reduced the overall amount of unnecessary surgery. If your program is not successful or not saving money it is because there is a serious flaw in the design and administration.

What I have documented since I designed or administered the first corporate second-opinion benefit programs back in the early 1980s are several key components of a successful program. First, it must be mandatory for the plan member to receive a second opinion for selected elective surgeries. Remember, elective surgery, by definition, means scheduled in advance, not for life-threatening conditions. Second, the second-opinion physician must not be associated with the physician recommending surgery. The physician must truly be an independent board-certified expert. Third, the second-opinion physician cannot perform the surgery; this provision removes any conflict of interest.

In addition, although a plan member should be required to receive a second opinion to receive full benefits under the health plan, the decision on whether to have surgery is entirely up to the patient. The whole idea is to educate the patient on the pros and cons of proposed surgery and the potential benefits for non-surgical treatment or different type of surgery (lumpectomy vs total mastectomy, for example). (I also developed a process of administrative deferrals for instances when it would be impractical to obtain a second opinion or when the conditions were so overwhelming that the need for a second opinion could be waived.)

It is only by helping to make patients truly informed consumers of healthcare and educating them on the benefits of alternative surgical treatments that a program can be successful. Voluntary programs simply don’t work. Rarely do patients seek second opinions on their own, and most often do not know where to obtain and arrange for a top-notch second opinion. In addition, they often feel uncomfortable and do not want to tell their physician they are seeking a second opinion. That is why I found that a program only really works when patients can state that their “health plan requires that I get a second opinion.” The mandatory approach reduces unnecessary surgery dramatically and saves the plan sponsor money with at least 10:1 return on investment.

The most amazing reduction of unnecessary surgery and resulting savings to the plan sponsor comes simply by implementing and communicating the benefits and requirements of the program design that I outlined above. The reason is known as the “Sentinel Effect.” What the original Cornell study and others have documented is at least a 10% reduction in the amount of recommended elective surgery simply from announcing the program is now in effect. No need for an actual second opinion; merely require one!

Now that is cost-effective!