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At a Glance

High Levels of Worker Stress Erode Workplace Safety

Stress

As the nature of work changes at break-neck speed, job stress poses a threat to workers and their employers, the National Institute for Occupational Safety and Health reports. “It is widely believed that job stress increases the risk for development of back and upper extremity musculoskeletal disorders.” And although additional research is necessary, NIOSH says there is growing concern that stressful work conditions interfere with safety practices and set the stage for accidents.

Meanwhile, the infographic above compiled by the American Psychological Assn. earlier this year shows that, on average, Americans’ stress levels are far higher than they believe is healthy.

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Undocumented Workers

Claimant Pleads the Fifth, Wins Benefits

Refusal to confirm immigration status is not enough to prove an injured worker illegal and stop benefits.
By: | July 29, 2014 • 4 min read
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In the case of Cruz vs. the Workers Compensation Appeals Board (Kennett Square Specialties), the Pennsylvania Supreme Court established that employers bear the burden of proof when it comes to arguing that an injured worker’s immigration status is the cause of loss of earning power, rather than his injury.

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In July 2008, David Cruz injured his lower back while working as a truck driver for Kennett Square Specialties, which operates a mushroom farm in Chester County, Pa. Cruz herniated a disc in his back while lifting 15- to 20-pound barrels into the truck and reported the injury immediately. Cruz’s physician, as designated by his employer, ordered that he lift no more than 15 pounds, barring him from returning to his pre-injury job.

Kennett Square informed Cruz that it had no positions available that suited his restrictions, and so paid him temporary workers’ comp benefits for roughly a month before ceasing payments altogether in September, 2008. Cruz subsequently filed a petition claiming that his ongoing, work-related injury rendered him totally unable to work, and thus entitled him to compensation for lost wages and medical expenses.

The real trouble arose during the hearing, when the employer’s attorney questioned Cruz about his immigration status. Cruz’s lawyer objected, citing his client’s Fifth Amendment right not to provide a self-incriminating answer.

Cruz was born in Ecuador and arrived in the U.S. approximately 10 years before the incident.

“In all of the cases that came before this, the injured worker admitted in the legal proceeding that they were undocumented. In most cases, the court used that as the basis for concluding that their benefits should be suspended,” said Matthew Wilson, attorney with workers’ comp firm Martin Law. “The Cruz case is interesting because it was the first time a lawyer got smart enough to say ‘we’re not answering that question.’”

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While evidence proved that Cruz’s injury did in fact disable him and prevent him from working, Kennett Square moved to discontinue all compensation on the grounds that Cruz’s illegal status disqualified him from receiving benefits. Initially, the judge partially concurred with this argument, ordering Kennett Square to cover medical expenses (as the injury was decidedly work-related), but stop disability compensation.

“The second a doctor finds an injured undocumented worker can still perform some type of work, the court can legally suspend their wage check, but not their medical, on the premise that if they went looking for a job, they couldn’t get one legally because they don’t have documentation,” Wilson said.

An appeal by Cruz turned that around in his favor.

The state Workers Compensation Appeals Board (WCAB) found that in order to cease all disability compensation payments, Kennett Square bore the burden of proof to show that Cruz’s loss of earning power really stemmed from his status as an undocumented worker, rather than from his injury. Adverse inference of Cruz’s choice not to answer questions regarding his status did not qualify as sufficient evidence, especially since it was Cruz’s lawyers who invoked the Fifth, and not Cruz himself.

“They’re looking at immigration status differently and telling employers they have to do more than just ask the question, ‘are you here illegally?’ and assume that a lack of response proves they are,” Wilson said.

The final ruling ordered Kennett Square to continue both medical and disability compensation. The company appealed the decision in 2011, but on July 23, a Pennsylvania Commonwealth Court upheld the ruling in Cruz’s favor.

However, some judges issued opinions clarifying their stance that “we should assume the legislature did not intend to reward those who violate federal law in obtaining employment by allowing them to participate in a social insurance scheme for Pennsylvania workers.”

Mr. Justice Saylor argued that inferences should be given greater weight as evidence, stating that “inferences do not exist in a vacuum, but stem from factual evidence. Where a witness affirmatively refuses to answer a question on grounds that the answer might incriminate him, I would not assign absolutely no evidentiary value to such refusal.”

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That being said, the judge still felt the employers should be held responsible for injuries incurred on the job, regardless of immigration status.

“I would be receptive,” he said, “to reconsidering the soundness of the determination that a worker’s immigration status alone can present a lack of earning power for purposes of an employer’s request to suspend benefits, so as to relieve the employer of the burden to demonstrate physical recovery from the injury.”

Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at ksiegel@lrp.com.
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Sponsored: Healthcare Solutions

Achieving More Fluid Case Management

Four tenured claims management professionals convene in a roundtable discussion.
By: | June 2, 2014 • 6 min read
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Risk management practitioners point to a number of factors that influence the outcome of workers’ compensation claims. But readily identifiable factors shouldn’t necessarily be managed in a box.

To identify and discuss the changing issues influencing workers’ compensation claim outcomes, Risk & Insurance®, in partnership with Duluth, Ga.-based Healthcare Solutions, convened an April roundtable discussion in Philadelphia.

The discussion, moderated by Dan Reynolds, editor-in-chief of Risk & Insurance®, featured participation from four tenured claims management professionals.

This roundtable was ruled by a pragmatic tone, characterized by declarations on solutions that are finding traction on many current workers’ compensation challenges.

The advantages of face-to-face case management visits with injured workers got some of the strongest support at the roundtable.

“What you can assess from somebody’s home environment, their motivation, their attitude, their desire to get well or not get well is easy to do when you are looking at somebody and sitting in their home,” participant Barb Ritz said, a workers’ compensation manager in the office of risk services at the Temple University Health System in Philadelphia.

Telephonic case management gradually replaced face-to-face visits in many organizations, but participants said the pendulum has swung back and face-to-face visits are again more widely valued.

In person visits are beneficial not only in assessing the claimant’s condition and attitude, but also in providing an objective ear to annotate the dialogue between doctors and patients.

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“Oftentimes, injured workers who go to physician appointments only retain about 20 percent of what the doctor is telling them,” said Jean Chambers, a Lakeland, Fla.-based vice president of clinical services for Bunch CareSolutions. “When you have a nurse accompanying the claimant, the nurse can help educate the injured worker following the appointment and also provide an objective update to the employer on the injured worker’s condition related to the claim.”

“The relationship that the nurse develops with the claimant is very important,” added Christine Curtis, a manager of medical services in the workers’ compensation division of New Cumberland, Pa.-based School Claims Services.

“It’s also great for fraud detection. During a visit the nurse can see symptoms that don’t necessarily match actions, and oftentimes claimants will tell nurses things they shouldn’t if they want their claim to be accepted,” Curtis said.

For these reasons and others, Curtis said that she uses onsite nursing.

Roundtable participant Susan LaBar, a Yardley, Pa.-based risk manager for transportation company Coach USA, said when she first started her job there, she insisted that nurses be placed on all lost-time cases. But that didn’t happen until she convinced management that it would work.

“We did it and the indemnity dollars went down and it more than paid for the nurses,” she said. “That became our model. You have to prove that it works and that takes time, but it does come out at the end of the day,” she said.

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The ultimate outcome

Reducing costs is reason enough for implementing nurse case management, but many say safe return-to-work is the ultimate measure of a good outcome. An aging, heavier worker population plagued by diabetes, hypertension, and orthopedic problems and, in many cases, painkiller abuse is changing the very definition of safe return-to-work.

Roundtable members were unanimous in their belief that offering even the most undemanding forms of modified duty is preferable to having workers at home for extended periods of time.

“Return-to-work is the only way to control the workers’ comp cost. It’s the only way,” said Coach USA’s Susan LaBar.

Unhealthy households, family cultures in which workers’ compensation fraud can be a way of life and physical and mental atrophy are just some of the pitfalls that modified duty and return-to-work in general can help stave off.

“I take employees back in any capacity. So long as they can stand or sit or do something,” Ritz said. “The longer you’re sitting at home, the longer you’re disconnected. The next thing you know you’re isolated and angry with your employer.”

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“Return-to-work is the only way to control the workers’ comp cost. It’s the only way,” said Coach USA’s Susan LaBar.

Whose story is it?

Managing return-to-work and nurse supervision of workers’ compensation cases also play important roles in controlling communication around the case. Return-to-work and modified duty can more quickly break that negative communication chain, roundtable participants said.

There was some disagreement among participants in the area of fraud. Some felt that workers’ compensation fraud is not as prevalent as commonly believed.

On the other hand, Coach USA’s Susan LaBar said that many cases start out with a legitimate injury but become fraudulent through extension.

“I’m talking about a process where claimants drag out the claim, treatment continues and they never come back to work,” she said.

 

Social media, as in all aspects of insurance fraud, is also playing an important role. Roundtable participants said Facebook is the first place they visit when they get a claim. Unbridled posts of personal information have become a rich library for case managers looking for indications of fraud.

“What you can assess from somebody’s home environment, their motivation, their attitude, their desire to get well or not get well is easy to do when you are looking at somebody and sitting in their home,” said participant Barb Ritz.

As daunting as co-morbidities have become, roundtable participants said that data has become a useful tool. Information about tobacco use, weight, diabetes and other complicating factors is now being used by physicians and managed care vendors to educate patients and better manage treatment.

“Education is important after an injury occurs,” said Rich Leonardo, chief sales officer for Healthcare Solutions, who also sat in on the roundtable. “The nurse is not always delivering news the patient wants to hear, so providing education on how the process is going to work is helpful.”

“We’re trying to get people to ‘Know your number’, such as to know what your blood pressure and glucose levels are,” said SCS’s Christine Curtis. “If you have somebody who’s diabetic, hypertensive and overweight, that nurse can talk directly to the injured worker and say, ‘Look, I know this is a sensitive issue, but we want you to get better and we’ll work with you because improving your overall health is important to helping you recover.”

The costs of co-morbidities are pushing case managers to be more frank in patient dialogue. Information about smoking cessation programs and weight loss approaches is now more freely offered.

Managing constant change

Anyone responsible for workers’ compensation knows that medical costs have been rising for years. But medical cost is not the only factor in the case management equation that is in motion.

The pendulum swing between technology and the human touch in treating injured workers is ever in flux. Even within a single program, the decision on when it is best to apply nurse case management varies.

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“It used to be that every claim went to a nurse and now the industry is more selective,” said Bunch CareSolutions’ Jean Chambers. “However, you have to be careful because sometimes it’s the ones that seem to be a simple injury that can end up being a million dollar claim.”

“Predictive analytics can be used to help organizations flag claims for case management, but the human element will never be replaced,” Leonardo concluded.

This article was produced by Healthcare Solutions and not the Risk & Insurance® editorial team.


Healthcare Solutions serves as a health services company delivering integrated solutions to the property and casualty markets, specializing in workers’ compensation and auto liability/PIP.
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