The Spine Journal
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Review Article
A primer for workers’ compensation Jesse E. Bible, MD*, Dan M. Spengler, MD, Hassan R. Mir, MD Department of Orthopaedics, Vanderbilt Orthopaedic Institute, Vanderbilt University School of Medicine, Medical Center East, South Tower, Suite 4200, Nashville, TN 37232-8774, USA Received 18 October 2013; accepted 17 January 2014
Abstract
BACKGROUND CONTEXT: A physician’s role within a workers’ compensation injury extends far beyond just evaluation and treatment with several socioeconomic and psychological factors at play compared with similar injuries occurring outside of the workplace. Although workers’ compensation statutes vary among states, all have several basic features with the overall goal of returning the injured worker to maximal function in the shortest time period, with the least residual disability and shortest time away from work. PURPOSE: To help physicians unfamiliar with the workers’ compensation process accomplish these goals. STUDY DESIGN: Review. METHODS: Educational review. RESULTS: The streamlined review addresses the topics of why is workers’ compensation necessary; what does workers’ compensation cover; progression after work injury; impairment and maximum medical improvement, including how to use the sixth edition of American Medical Association’s (AMA) Guides to the evaluation of permanent impairment (Guides); completion of work injury claim after impairment rating; independent medical evaluation; and causation. CONCLUSIONS: In the ‘‘no-fault’’ workers’ compensation system, physicians play a key role in progressing the claim along and, more importantly, getting the injured worker back to work as soon as safely possible. Physicians should remain familiar with the workers’ compensation process, along with how to properly use the AMA Guides. Ó 2014 Elsevier Inc. All rights reserved.
Keywords:
Workers’ compensation; Impairment; Review; Guides; Work injury
Introduction
Why is workers’ compensation necessary?
Occupational injuries or illnesses represent a substantial percentage of many orthopedic practices. A physician’s role within a workers’ compensation injury extends far beyond just evaluation and treatment with several socioeconomic and psychological factors at play compared with similar injuries occurring outside of the workplace. Although workers’ compensation statutes vary among states, all have several basic features with the overall goal of returning the injured worker to maximal function in the shortest time period, with the least residual disability and shortest time away from work.
Before the establishment of the current ‘‘no-fault’’ liability systems, both workers and employers were growing increasingly dissatisfied with the common law system. Workers were required to prove employer negligence to recover costs after injury, often requiring costly litigation. Workers generally did not win negligence suits as the common law contained three legal defenses strongly favoring the employers: doctrine of contributory negligence (did the employee contribute to the injury?), fellow-servant rule (did a fellow worker contribute to the injury?), and assumption of risk (was injury an inherent hazard of the job or one that the worker was aware of?) [1]. Employers were also dissatisfied with the common law system because of the potentially large and uncertain financial risk of litigation. Lawsuits were costly, and if by chance, a worker won a lawsuit, the employer would have to pay out a substantial cash award [1].
FDA device/drug status: Not applicable. Author disclosures: JEB: Nothing to disclose. DMS: Board of Directors: MTF (C, per year). HRM: Nothing to disclose. * Corresponding author. Department of Orthopaedics, Vanderbilt Orthopaedic Institute, Vanderbilt University School of Medicine, Medical Center East, South Tower, Suite 4200, Nashville, TN 37232-8774, USA. Tel.: (615) 936-0100. E-mail address: [email protected] (J.E. Bible) 1529-9430/$ - see front matter Ó 2014 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.spinee.2014.01.030
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In addition to this mutual dissatisfaction with the common law system on behalf of workers and employers, there was an increased societal awareness of the problems associated with industrial accidents and subsequent loss of wage-earning capacity and lack of medical care. This led to the passage of the first workers’ compensation laws in the United States in 1911. Given that the US Constitution preceded federal legislation for most private sectors during this time, individual states controlled workers’ compensation, allowing each state to have differences in compensation, reporting, payments, and administrative procedures. By providing compulsory, universal insurance coverage with both unhindered access to needed medical services and income protection, workers’ compensation has been described as the oldest form of social insurance in North America [1]. Under the no-fault system, employers are generally held responsible for work-related injuries or illnesses, even those felt to be unavoidable or not able to carry liability under tort law. Because fault is no longer an issue, injured workers receive more certain and more expeditious care. Similarly, given the tort immunity employers receive, administrative bodies attend to disputes over issues related to the injury claim opposed to courts.
What does workers’ compensation cover? Workers’ compensation pays for necessary medical care after work-related injuries or illnesses, temporary disability benefits, permanent partial and total disability for any permanent impairment from the injury, and vocational rehabilitation. It also pays benefits to survivors of workers who die because of work-related causes (Table 1). Workers qualify for compensation if the following three conditions are met: an injury or illness occurred, it arose ‘‘out of, or in the course of, employment,’’ and there are costs to pay. Medical benefits are provided with no requirement for deductibles or copayments. Furthermore, total compensation for medical care and rehabilitation is provided, as long as the employee follows the conditions of reporting and health-care provider selection. Income benefits are paid for temporary and permanent disability. Temporary disability comes in the form of lost wages because of time away from work, usually paid at a level of two-thirds of pre-accident wages and subject to maximum amounts. Permanent disability is based on a residual loss of a certain body part or function after medical Table 1 Coverage under workers’ compensation What does workers’ compensation cover after injury/illness Necessary medical care Temporary disability benefits (partial wage replacement) Permanent partial or total disability (impairment) Vocational rehabilitation Survivor benefits (if death because of work-related causes)
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treatment and rehabilitation (impairment) and can be compensated as a fixed amount in the form a lump sum or monthly payments in perpetuity. In exchange for the employer paying for the injured worker’s care regardless of the cause, the worker offers the employer exclusive tort immunity from legal suit in response to being injured. Under this no-fault system, workers with work-related injuries give up their right to sue employers at common law. Therefore, civil litigation remedies, such as actual wage, pain and suffering, and punitive damages, are not available. Exceptions exist in cases of deliberate intentional acts by workers or employers.
Progression after work injury The first and most important step after a work-related injury is for the worker to obtain prompt quality medical care (Fig. 1). In many states, workers are restricted to choose within a preset panel of doctors, at least for the initial evaluation and treatment. After this point, a workers’ compensation claim adjustor contacts the injured worker. This individual acts as a director for the claim process, communicating with the key parties involved, the injured worker, worker’s supervisor, and health-care providers. The adjustor also coordinates when the employee may be able to return to work and whether the employer will have a job for the injured worker after the recovery process is completed. If the injured worker remains out of work after a brief specified waiting period of 3 to 7 days, he or she starts receiving temporary disability benefits. This partial wage replacement offers the worker 50% to 70% of pre-injury wages, which offer support but does serve as an incentive to return to work. The worker continues to receive such payments until they either return to work (with or without restrictions) or reach maximum medical improvement (MMI). Return to work Getting an employee back to work as soon as safely possible should be the main goal for both the worker and the employer. During recovery (ie, before MMI), treatment recommendations translate into work restrictions. If the employer can accommodate the work restrictions written by the treating physician, the employee may be able to return to work on light or modified duty. However, if no such position is available or able to be created, return to work is postponed until work restrictions can be further modified, during which time the employee continues to receive temporary partial disability payments. Employers can significantly lower their cost of indemnity payments and future premiums and increase productivity by providing temporary light-duty positions. In addition, employees who return to work in light duty commonly have a faster recovery [2–4].
J.E. Bible et al. / The Spine Journal
Work restrictions versus limitations When a physician is completing a return-to-work or work-status form, two main terms that come under consideration are restrictions and limitations. Work restrictions are based on the treating physician’s assessment and balance between minimizing risk to the worker and general public with allowing the worker to return to work as soon as possible. Given that there is little published evidence for what physical restrictions should be made for certain injuries/medical conditions, the work-status forms are commonly completed using the physician’s clinical judgment. By and large, physicians cannot be found negligent if a worker is reinjured while on work restrictions unless a physician made false statements in the work-status report or comments were made recklessly [5]. As opposed to work restrictions, which are based on the physician’s judgment to minimize risk of harm, work limitations are based on a worker’s ability to perform a certain task(s), also known as capacity. Put more simply, a work restriction is something that a worker is recommended not to do even if they can, whereas a work limitation is something a worker cannot physically do. A worker’s capacity is measured in terms of their strength, flexibility, and endurance. Capacity is typically measured for job activities to which the worker is already maximally trained and fully acclimated. A worker’s ‘‘current ability’’ can increase with exercise and activity or decrease with inactivity (deconditioning). Many times when a physician is asked to certify whether a patient has the current ability to perform certain tasks, the answer is evident. However, in cases when the effect of the medical condition on the worker or their ability to perform a certain task is less obvious, a functional capacity evaluation (FCE) can be of value. Work conditioning and work hardening Either of these additional therapy regimens can be prescribed for those workers who have failed to return to work after initial treatment and routine physical/occupational therapy. Work conditioning is a daily job task simulation program, lasting 2 to 4 hours daily for 3 to 5 days per week. The therapist tailors activities so that the worker develops the ability to tolerate specific tasks that will be expected on return to work. Work hardening has a similar goal, but is a more intense program lasting up to 8 hours daily for 5 days per week. Work hardening is usually a multidisciplinary approach, and it may occur on the job site, allowing the proposed work environment to be evaluated. Functional capacity evaluation An FCE is a quantified physical ability test that may be ordered by a physician to evaluate how much a worker can perform in a day with regard to strength, flexibility, and endurance. The results of an FCE are then used to set work limitations. In a highly cooperative worker, an FCE can be very useful. However, in patients with minimal motivation, an FCE may not be helpful to set limitations, as it
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measures a worker’s tolerance as opposed to their true current ability in these circumstances. Tolerance is affected by motivation, and it may be the basis on which a worker decides if the rewards of their job justify the effort needed to return to employment. Although not always the case, a worker’s tolerance may be less than their current abilities. The FCE helps to assess tolerance by giving data that quantify patient effort during the testing.
Impairment and MMI Impairment is an abnormality in anatomic or physiological structure or function at the end-organ level [6]. It is often confused with disability, which is an inability to perform an activity because of an abnormality of the person as a whole (ie, other nonmedical factors 6 impairment). Disability may vary between individuals with the same impairment and is based on impairment, demands of the occupation, and the individual’s situation. Another related but commonly confused term is handicap, which is an environmentally defined disadvantage experienced by an individual trying to fulfill a role. When recovery of an injury or condition has reached a plateau, the physician is asked to provide a rating for the residual permanent impairment from the injury or condition. In general, a 12-month time period from the date of injury before impairment is considered permanent for many surgically treated orthopedic conditions. However, a physician individually assesses how long each injured worker should remain on this therapeutic plateau before considering them at MMI. Besides representing the end of treatment, MMI may also represent the end of temporary disability payments. If the worker had already returned back to work at an earlier point, the temporary disability payments would have already stopped at that time. At MMI, some injured workers may have recovered completely without any residual impairment, whereas others are left with some permanent impairment. To help establish a standardized method to classify impairment, the American Medical Association (AMA) developed the Guides to the evaluation of permanent impairment (Guides), which rates impairments for each organ system in the body [7]. The most recent sixth edition of the Guides came out in 2008 and has evolved to a diagnosis-based model [7]. The physician should check to see which edition is required for their state, as some states still require that the previous fifth edition be used to determine an impairment percentage [8]. The impairment percentage, or rating, is used by many jurisdictions to determine a financial award for the worker’s injury. Frequently, this number is translated into an objective disability. It should be remembered that a physician uses the Guides to rate impairment (defined by anatomic, structural, functional, and diagnostic criteria), whereas the
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Table 2 Generic template for impairment classification grids (reprinted with permission from AMA’s Guides to the evaluation of permanent impairment, sixth ed.) 0
Impairment rating (%) Severity grade (%) History of clinical presentation
0
Minimal A, B, C, D, E Symptoms controlled with No current symptoms and/or intermittent symptoms that do continuous treatment or not require treatment intermittent, mild symptoms despite continuous treatment
PE or physical findings
No current signs of disease
CS or objective test results
Testing currently normal
The following is used as a grade modifier in the musculoskeletal chapter FH Asymptomatic
3
4
Physical findings not present with continuous treatment or intermittent, mild physical findings Consistently normal with continuous treatment or intermittent, mild abnormalities
Moderate A, B, C, D, E Constant mild symptoms despite continuous treatment or intermittent, moderate symptoms despite continuous treatment Constant mild physical findings despite continuous treatment or intermittent, moderate findings Persistent mild abnormalities despite continuous treatment or intermittent, moderate abnormalities
Severe A, B, C, D, E Constant moderate symptoms despite continuous treatment or intermittent, severe symptoms despite continuous treatment Constant moderate physical findings despite continuous treatment or intermittent, severe findings Persistent moderate abnormalities despite continuous treatment or intermittent, severe abnormalities
Very severe A, B, C, D, E Constant severe symptoms despite continuous treatment or intermittent, extreme symptoms despite continuous treatment Constant severe physical findings despite continuous treatment or intermittent, extreme findings Persistent severe abnormalities despite continuous treatment or intermittent, extreme abnormalities
Pain/symptoms with strenuous/ vigorous activity; able to perform self-care activities independently
Pain/symptoms with normal Pain/symptoms with less than Pain/symptoms at rest; unable to activity; able to perform selfnormal activity (minimal); perform self-care activities care activities with requires assistance to perform modification but unassisted self-care activities
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The following will be added in selected chapters when compliance with treatment minimizes objective evidence of organ dysfunction but results in a significant compromise in ADLs BOTC None
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Class
Will be based on factors such as number and route of medications taken or the need to regularly undergo diagnostic tests or invasive procedures if not already considered in the preliminary rating
AMA, American Medical Association; BOTC, burden of treatment compliance; CS, clinical studies; FH, functional history; PE, physical examination.
J.E. Bible et al. / The Spine Journal Table 3 Calculation used to determine the net adjustment and modification of the default grade within the class chosen by the key factor Net adjustment for severity grade CDX GMFH GMPE GMCS Net adjustment5(GMFH–CDX)þ(GMPE–CDX)þ(GMCS–CDX) CDX, class of diagnosis; GMCS, grade modifier clinical studies; GMFH, grade modifier functional history; GMPE, grade modifier physical examination.
judicial system determines disability. Furthermore, the relationship between impairment and disability is very complex and difficult for the physician to predict given that the latter relates to the worker’s personal sphere. How to use the sixth edition AMA guide The Guides uses the basic framework of disablement (anatomic, diagnostic, and functional) as set forth by the International Classification of Functioning, Disability, and Health [9]. Diagnosis-based impairment grids are provided for each organ system and musculoskeletal regions (cardiovascular, spine, etc.). Based on the established diagnosis, a physician references the corresponding grid in the Guides to determine the appropriate impairment class (0 [no objective problem] to 4 [very severe problem]) and severity grade (A–E). A generic template for impairment classifications grids is shown in Table 2. A simplified overview of the process for determining an impairment rating is discussed subsequently, along with a case example shown in Table 4. The reader is directed to Chapters 1 and 2 of the Guides for an in-depth discussion regarding the methodology and specific details in assigning the most accurate impairment rating, along with the subsequent organ-system–specific chapters containing the appropriate diagnosis-based impairment grids:
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1. Determine the correct diagnosis and select the corresponding impairment grid in the Guides. 2. Determine the impairment class (0–4) according to specific criteria or the ‘‘key factor.’’ The key factor that should be used as the primary determinant of impairment class is clearly stated for each organ system impairment grid. The key factor will be based on the history of clinical presentation, physical examination/ physical findings, or clinical studies/objective test results. 3. Default to the middle severity grade (impairment percentage) for that impairment class. Each impairment class has a range of impairment ratings (most commonly three or five impairment grades) that differ between organ systems and disease processes. 4. Adjust severity grade based on the remaining (nonkey) factors: functional history, physical examination, and clinical studies. Each of these factors, or grade modifiers, is only used if considered reliable and associated with the diagnosis. For each remaining factor, an adjustment grid is used to determine the most appropriate impairment class position and record the number difference in the key factor’s impairment class. Calculate the net adjustment by summating the impairment class column differences and add or subtract the final number from the default identified in Step 1 to determine the final impairment for the diagnosis (Table 3). If this adjustment would move the rating to a higher or lower impairment class, the physician should stop at the highest or lowest severity grade in the impairment class initially determined by the key factor. 5. Determine if an assessment of the Burden of Treatment Compliance (BOTC) is warranted. BOTC uses a point system assigned on the basis of medication usage, dietary modifications, routine procedure frequency, and history of previous operative procedures/therapy for
Table 4 Impairment case example Example
Lumbar disc herniation
History
Forty-two-year-old man had an onset of back and right leg pain after repetitively lifting tires at work. He was initially treated with physical therapy and epidural steroid injection. After failing conservative treatment, he had a single-level discectomy Resolution of back pain but continues to have right leg pain with normal activity PDQ580 (moderate disability) Decreased lumbar range of motion and slight weakness of hip abduction and great toe dorsiflexion on the right, with no other evidence of significant radiculopathy Preoperative MRI showed a right-sided disc herniation at L4/L5 Status post-herniated disc and subsequent single-level discectomy Grid: lumbar (region) and intervertebral disc herniation (diagnosis); class51 Functional history (GMFH)52 (both functional symptoms/PDQ) PE (GMPE)51 (based on motor strength) CS (GMCS)52 (based on MRI findings) (GMFH–CDX)þ(GMPE–CDX)þ(GMCS–CDX)5(21)þ(11)þ(21)52 Class 1, Grade E59% impairment
Current symptoms Functional assessment PE CS Diagnosis Impairment class Grade modifiers
Net adjustment Impairment rating
CS, clinical studies; GMCS, grade modifier clinical studies; GMFH, grade modifier functional history; GMPE, grade modifier physical examination; MRI, magnetic resonance imaging; PE, physical examination; PDQ, Pain Disability Questionnaire.
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Fig. 1. Outline of the general progression after work injury/condition.
the organ system of interest. Points are then converted into a percentage that is added onto the final impairment rating. 6. Combine ratings from different organ systems to come up with a final impairment rating using conversion and combined value charts.
Completion of work injury claim after impairment rating After MMI has been reached, there are three general outcomes for an injured worker. The most ideal outcome
is that the worker is able to return to work with or without work limitations at the same job with the same employer. However, if the worker has limitations that their employer cannot accommodate, then a new job must be found that allows the worker to perform activities that they are capable of doing, either with the same employer or with a new one. For example, it is not uncommon for a worker to suffer an injury (eg, calcaneus fracture) that prevents them from continuing in their initial field of occupation (eg, construction), thus requiring them to receive additional training in a new field (eg, a sedentary job). This process of vocational rehabilitation can be costly and time consuming.
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The last and least ideal path is permanent total disability. This means that the worker has been deemed to have disability to the extent that they will not be able to work again in the open labor market. Most states compensate these individuals with two-thirds of the previously earned average wages, within the bounds of set maximum and minimum limits. Whereas some states limit the duration of payments, others provide lifetime compensation for injured workers.
Independent medical evaluation An independent medical evaluation (IME) is an examination and review by a physician who is not involved in the treatment of the individual being examined. The requesting party, most commonly insurance companies and employers, pays the physician’s fee for the IME. A physician conducting an IME is in a role that does not involve assuming care of the patient. Instead, the role involves determining a diagnosis along with severity of the injury/condition; causality; if all necessary tests have been ordered, and if not, which additional tests are needed for an accurate evaluation; if MMI has been reached; an impairment rating; apportionment (degree to which each of several injuries/exposures contributed to a specific impairment); and what restrictions should be in place.
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Along with making a causation determination, a physician commonly must make an estimate of the degree to which each of various occupational and nonoccupational factors may have caused or contributed to the current impairment (apportionment). Furthermore, aggravation of a preexisting medical condition that occurred because of various work-related activities or exposures also can play a significant part of a causation determination. When discussing impairment, apportionment, or aggravation, the word ‘‘probability’’ should be used to imply a likelihood of more than 50%, opposed to ‘‘possibility’’ that implies a likelihood of less than 50%.
Summary As the number of work-related injuries continues to rise, so will the accompanying socioeconomic and psychological factors that go beyond just the initial evaluation and treatment. In this no-fault system, physicians play a key role is progressing the claim along and, more importantly, getting the injured worker back to work as soon as safely possible. To efficiently accomplish these, physicians should remain familiar with the workers’ compensation process, along with how to properly use the AMA Guides. References
Causation Causation is frequently debated as it can be the determinant for treatment and financial responsibility. According to the Guides, medical causation requires a determination of each of following: a causal event/agent took place, the patient experiencing the event has the condition (impairment), the event could cause the condition, and the event caused or materially contributed to the condition ‘‘within probability’’ [10]. This differs from the legal question of causality, which asks whether or not the event did cause the condition. A major hurdle that makes causation decisions difficult is the lack of scientific data to help guide physicians to make evidence-based decisions. Physicians commonly rely on previous experience or consensus among the public or scientific community when making causation determinations. For example, how is a physician able to consistently state that a certain event caused 40% versus 60% of a patient’s lumbar disc degeneration? This distinction becomes important, as some states require a 50% threshold for causation, whereas others are as low as 1%.
[1] Kiselica D, Sibson B, Greenmckenzie J. Workers’ compensation: a historical review and description of a legal and social insurance system. Clin Occup Environ Med 2004;4:237–47. [2] Viikari-Juntura E, Kausto J, Shiri R, et al. Return to work after early part-time sick leave due to musculoskeletal disorders: a randomized controlled trial. Scand J Work Environ Health 2012;38:134–43. [3] Shiri R, Kausto J, Martimo KP, et al. Health-related effects of early part-time sick leave due to musculoskeletal disorders: a randomized controlled trial. Scand J Work Environ Health 2013;39:37–45. [4] van Duijn M, Burdorf A. Influence of modified work on recurrence of sick leave due to musculoskeletal complaints. J Rehabil Med 2008;40:576–81. [5] Katz RT. Impairment and disability rating in low back pain. Clin Occup Environ Med 2006;5:719–40. viii. [6] Rondinelli RD, Katz RT. Impairment rating and disability evaluation. Philadelphia, PA: W.B. Saunders, 2000. [7] Rondinelli RD, Genovese E, Brigham CR, American Medical Association. Guides to the evaluation of permanent impairment. 6th ed. Chicago, IL: American Medical Association, 2008. [8] Cocchiarella L, Andersson G, American Medical Association. Guides to the evaluation of permanent impairment. 5th ed. Chicago, IL: American Medical Association, 2001. [9] WHO. . In: International Classification of Functioning, Disability and Health: ICF. Geneva, Switzerland: World Health Organization, 2001. [10] Melhorn JM, Ackerman WE, Talmage JB, et al. Guides to the evaluation of disease and injury causation. 2nd ed. Chicago, IL: American Medical Association, 2013.
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Review Article
A primer for workers’ compensation Jesse E. Bible, MD*, Dan M. Spengler, MD, Hassan R. Mir, MD Department of Orthopaedics, Vanderbilt Orthopaedic Institute, Vanderbilt University School of Medicine, Medical Center East, South Tower, Suite 4200, Nashville, TN 37232-8774, USA Received 18 October 2013; accepted 17 January 2014
Abstract
BACKGROUND CONTEXT: A physician’s role within a workers’ compensation injury extends far beyond just evaluation and treatment with several socioeconomic and psychological factors at play compared with similar injuries occurring outside of the workplace. Although workers’ compensation statutes vary among states, all have several basic features with the overall goal of returning the injured worker to maximal function in the shortest time period, with the least residual disability and shortest time away from work. PURPOSE: To help physicians unfamiliar with the workers’ compensation process accomplish these goals. STUDY DESIGN: Review. METHODS: Educational review. RESULTS: The streamlined review addresses the topics of why is workers’ compensation necessary; what does workers’ compensation cover; progression after work injury; impairment and maximum medical improvement, including how to use the sixth edition of American Medical Association’s (AMA) Guides to the evaluation of permanent impairment (Guides); completion of work injury claim after impairment rating; independent medical evaluation; and causation. CONCLUSIONS: In the ‘‘no-fault’’ workers’ compensation system, physicians play a key role in progressing the claim along and, more importantly, getting the injured worker back to work as soon as safely possible. Physicians should remain familiar with the workers’ compensation process, along with how to properly use the AMA Guides. Ó 2014 Elsevier Inc. All rights reserved.
Keywords:
Workers’ compensation; Impairment; Review; Guides; Work injury
Introduction
Why is workers’ compensation necessary?
Occupational injuries or illnesses represent a substantial percentage of many orthopedic practices. A physician’s role within a workers’ compensation injury extends far beyond just evaluation and treatment with several socioeconomic and psychological factors at play compared with similar injuries occurring outside of the workplace. Although workers’ compensation statutes vary among states, all have several basic features with the overall goal of returning the injured worker to maximal function in the shortest time period, with the least residual disability and shortest time away from work.
Before the establishment of the current ‘‘no-fault’’ liability systems, both workers and employers were growing increasingly dissatisfied with the common law system. Workers were required to prove employer negligence to recover costs after injury, often requiring costly litigation. Workers generally did not win negligence suits as the common law contained three legal defenses strongly favoring the employers: doctrine of contributory negligence (did the employee contribute to the injury?), fellow-servant rule (did a fellow worker contribute to the injury?), and assumption of risk (was injury an inherent hazard of the job or one that the worker was aware of?) [1]. Employers were also dissatisfied with the common law system because of the potentially large and uncertain financial risk of litigation. Lawsuits were costly, and if by chance, a worker won a lawsuit, the employer would have to pay out a substantial cash award [1].
FDA device/drug status: Not applicable. Author disclosures: JEB: Nothing to disclose. DMS: Board of Directors: MTF (C, per year). HRM: Nothing to disclose. * Corresponding author. Department of Orthopaedics, Vanderbilt Orthopaedic Institute, Vanderbilt University School of Medicine, Medical Center East, South Tower, Suite 4200, Nashville, TN 37232-8774, USA. Tel.: (615) 936-0100. E-mail address: [email protected] (J.E. Bible) 1529-9430/$ - see front matter Ó 2014 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.spinee.2014.01.030
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In addition to this mutual dissatisfaction with the common law system on behalf of workers and employers, there was an increased societal awareness of the problems associated with industrial accidents and subsequent loss of wage-earning capacity and lack of medical care. This led to the passage of the first workers’ compensation laws in the United States in 1911. Given that the US Constitution preceded federal legislation for most private sectors during this time, individual states controlled workers’ compensation, allowing each state to have differences in compensation, reporting, payments, and administrative procedures. By providing compulsory, universal insurance coverage with both unhindered access to needed medical services and income protection, workers’ compensation has been described as the oldest form of social insurance in North America [1]. Under the no-fault system, employers are generally held responsible for work-related injuries or illnesses, even those felt to be unavoidable or not able to carry liability under tort law. Because fault is no longer an issue, injured workers receive more certain and more expeditious care. Similarly, given the tort immunity employers receive, administrative bodies attend to disputes over issues related to the injury claim opposed to courts.
What does workers’ compensation cover? Workers’ compensation pays for necessary medical care after work-related injuries or illnesses, temporary disability benefits, permanent partial and total disability for any permanent impairment from the injury, and vocational rehabilitation. It also pays benefits to survivors of workers who die because of work-related causes (Table 1). Workers qualify for compensation if the following three conditions are met: an injury or illness occurred, it arose ‘‘out of, or in the course of, employment,’’ and there are costs to pay. Medical benefits are provided with no requirement for deductibles or copayments. Furthermore, total compensation for medical care and rehabilitation is provided, as long as the employee follows the conditions of reporting and health-care provider selection. Income benefits are paid for temporary and permanent disability. Temporary disability comes in the form of lost wages because of time away from work, usually paid at a level of two-thirds of pre-accident wages and subject to maximum amounts. Permanent disability is based on a residual loss of a certain body part or function after medical Table 1 Coverage under workers’ compensation What does workers’ compensation cover after injury/illness Necessary medical care Temporary disability benefits (partial wage replacement) Permanent partial or total disability (impairment) Vocational rehabilitation Survivor benefits (if death because of work-related causes)
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treatment and rehabilitation (impairment) and can be compensated as a fixed amount in the form a lump sum or monthly payments in perpetuity. In exchange for the employer paying for the injured worker’s care regardless of the cause, the worker offers the employer exclusive tort immunity from legal suit in response to being injured. Under this no-fault system, workers with work-related injuries give up their right to sue employers at common law. Therefore, civil litigation remedies, such as actual wage, pain and suffering, and punitive damages, are not available. Exceptions exist in cases of deliberate intentional acts by workers or employers.
Progression after work injury The first and most important step after a work-related injury is for the worker to obtain prompt quality medical care (Fig. 1). In many states, workers are restricted to choose within a preset panel of doctors, at least for the initial evaluation and treatment. After this point, a workers’ compensation claim adjustor contacts the injured worker. This individual acts as a director for the claim process, communicating with the key parties involved, the injured worker, worker’s supervisor, and health-care providers. The adjustor also coordinates when the employee may be able to return to work and whether the employer will have a job for the injured worker after the recovery process is completed. If the injured worker remains out of work after a brief specified waiting period of 3 to 7 days, he or she starts receiving temporary disability benefits. This partial wage replacement offers the worker 50% to 70% of pre-injury wages, which offer support but does serve as an incentive to return to work. The worker continues to receive such payments until they either return to work (with or without restrictions) or reach maximum medical improvement (MMI). Return to work Getting an employee back to work as soon as safely possible should be the main goal for both the worker and the employer. During recovery (ie, before MMI), treatment recommendations translate into work restrictions. If the employer can accommodate the work restrictions written by the treating physician, the employee may be able to return to work on light or modified duty. However, if no such position is available or able to be created, return to work is postponed until work restrictions can be further modified, during which time the employee continues to receive temporary partial disability payments. Employers can significantly lower their cost of indemnity payments and future premiums and increase productivity by providing temporary light-duty positions. In addition, employees who return to work in light duty commonly have a faster recovery [2–4].
J.E. Bible et al. / The Spine Journal
Work restrictions versus limitations When a physician is completing a return-to-work or work-status form, two main terms that come under consideration are restrictions and limitations. Work restrictions are based on the treating physician’s assessment and balance between minimizing risk to the worker and general public with allowing the worker to return to work as soon as possible. Given that there is little published evidence for what physical restrictions should be made for certain injuries/medical conditions, the work-status forms are commonly completed using the physician’s clinical judgment. By and large, physicians cannot be found negligent if a worker is reinjured while on work restrictions unless a physician made false statements in the work-status report or comments were made recklessly [5]. As opposed to work restrictions, which are based on the physician’s judgment to minimize risk of harm, work limitations are based on a worker’s ability to perform a certain task(s), also known as capacity. Put more simply, a work restriction is something that a worker is recommended not to do even if they can, whereas a work limitation is something a worker cannot physically do. A worker’s capacity is measured in terms of their strength, flexibility, and endurance. Capacity is typically measured for job activities to which the worker is already maximally trained and fully acclimated. A worker’s ‘‘current ability’’ can increase with exercise and activity or decrease with inactivity (deconditioning). Many times when a physician is asked to certify whether a patient has the current ability to perform certain tasks, the answer is evident. However, in cases when the effect of the medical condition on the worker or their ability to perform a certain task is less obvious, a functional capacity evaluation (FCE) can be of value. Work conditioning and work hardening Either of these additional therapy regimens can be prescribed for those workers who have failed to return to work after initial treatment and routine physical/occupational therapy. Work conditioning is a daily job task simulation program, lasting 2 to 4 hours daily for 3 to 5 days per week. The therapist tailors activities so that the worker develops the ability to tolerate specific tasks that will be expected on return to work. Work hardening has a similar goal, but is a more intense program lasting up to 8 hours daily for 5 days per week. Work hardening is usually a multidisciplinary approach, and it may occur on the job site, allowing the proposed work environment to be evaluated. Functional capacity evaluation An FCE is a quantified physical ability test that may be ordered by a physician to evaluate how much a worker can perform in a day with regard to strength, flexibility, and endurance. The results of an FCE are then used to set work limitations. In a highly cooperative worker, an FCE can be very useful. However, in patients with minimal motivation, an FCE may not be helpful to set limitations, as it
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measures a worker’s tolerance as opposed to their true current ability in these circumstances. Tolerance is affected by motivation, and it may be the basis on which a worker decides if the rewards of their job justify the effort needed to return to employment. Although not always the case, a worker’s tolerance may be less than their current abilities. The FCE helps to assess tolerance by giving data that quantify patient effort during the testing.
Impairment and MMI Impairment is an abnormality in anatomic or physiological structure or function at the end-organ level [6]. It is often confused with disability, which is an inability to perform an activity because of an abnormality of the person as a whole (ie, other nonmedical factors 6 impairment). Disability may vary between individuals with the same impairment and is based on impairment, demands of the occupation, and the individual’s situation. Another related but commonly confused term is handicap, which is an environmentally defined disadvantage experienced by an individual trying to fulfill a role. When recovery of an injury or condition has reached a plateau, the physician is asked to provide a rating for the residual permanent impairment from the injury or condition. In general, a 12-month time period from the date of injury before impairment is considered permanent for many surgically treated orthopedic conditions. However, a physician individually assesses how long each injured worker should remain on this therapeutic plateau before considering them at MMI. Besides representing the end of treatment, MMI may also represent the end of temporary disability payments. If the worker had already returned back to work at an earlier point, the temporary disability payments would have already stopped at that time. At MMI, some injured workers may have recovered completely without any residual impairment, whereas others are left with some permanent impairment. To help establish a standardized method to classify impairment, the American Medical Association (AMA) developed the Guides to the evaluation of permanent impairment (Guides), which rates impairments for each organ system in the body [7]. The most recent sixth edition of the Guides came out in 2008 and has evolved to a diagnosis-based model [7]. The physician should check to see which edition is required for their state, as some states still require that the previous fifth edition be used to determine an impairment percentage [8]. The impairment percentage, or rating, is used by many jurisdictions to determine a financial award for the worker’s injury. Frequently, this number is translated into an objective disability. It should be remembered that a physician uses the Guides to rate impairment (defined by anatomic, structural, functional, and diagnostic criteria), whereas the
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Table 2 Generic template for impairment classification grids (reprinted with permission from AMA’s Guides to the evaluation of permanent impairment, sixth ed.) 0
Impairment rating (%) Severity grade (%) History of clinical presentation
0
Minimal A, B, C, D, E Symptoms controlled with No current symptoms and/or intermittent symptoms that do continuous treatment or not require treatment intermittent, mild symptoms despite continuous treatment
PE or physical findings
No current signs of disease
CS or objective test results
Testing currently normal
The following is used as a grade modifier in the musculoskeletal chapter FH Asymptomatic
3
4
Physical findings not present with continuous treatment or intermittent, mild physical findings Consistently normal with continuous treatment or intermittent, mild abnormalities
Moderate A, B, C, D, E Constant mild symptoms despite continuous treatment or intermittent, moderate symptoms despite continuous treatment Constant mild physical findings despite continuous treatment or intermittent, moderate findings Persistent mild abnormalities despite continuous treatment or intermittent, moderate abnormalities
Severe A, B, C, D, E Constant moderate symptoms despite continuous treatment or intermittent, severe symptoms despite continuous treatment Constant moderate physical findings despite continuous treatment or intermittent, severe findings Persistent moderate abnormalities despite continuous treatment or intermittent, severe abnormalities
Very severe A, B, C, D, E Constant severe symptoms despite continuous treatment or intermittent, extreme symptoms despite continuous treatment Constant severe physical findings despite continuous treatment or intermittent, extreme findings Persistent severe abnormalities despite continuous treatment or intermittent, extreme abnormalities
Pain/symptoms with strenuous/ vigorous activity; able to perform self-care activities independently
Pain/symptoms with normal Pain/symptoms with less than Pain/symptoms at rest; unable to activity; able to perform selfnormal activity (minimal); perform self-care activities care activities with requires assistance to perform modification but unassisted self-care activities
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The following will be added in selected chapters when compliance with treatment minimizes objective evidence of organ dysfunction but results in a significant compromise in ADLs BOTC None
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Class
Will be based on factors such as number and route of medications taken or the need to regularly undergo diagnostic tests or invasive procedures if not already considered in the preliminary rating
AMA, American Medical Association; BOTC, burden of treatment compliance; CS, clinical studies; FH, functional history; PE, physical examination.
J.E. Bible et al. / The Spine Journal Table 3 Calculation used to determine the net adjustment and modification of the default grade within the class chosen by the key factor Net adjustment for severity grade CDX GMFH GMPE GMCS Net adjustment5(GMFH–CDX)þ(GMPE–CDX)þ(GMCS–CDX) CDX, class of diagnosis; GMCS, grade modifier clinical studies; GMFH, grade modifier functional history; GMPE, grade modifier physical examination.
judicial system determines disability. Furthermore, the relationship between impairment and disability is very complex and difficult for the physician to predict given that the latter relates to the worker’s personal sphere. How to use the sixth edition AMA guide The Guides uses the basic framework of disablement (anatomic, diagnostic, and functional) as set forth by the International Classification of Functioning, Disability, and Health [9]. Diagnosis-based impairment grids are provided for each organ system and musculoskeletal regions (cardiovascular, spine, etc.). Based on the established diagnosis, a physician references the corresponding grid in the Guides to determine the appropriate impairment class (0 [no objective problem] to 4 [very severe problem]) and severity grade (A–E). A generic template for impairment classifications grids is shown in Table 2. A simplified overview of the process for determining an impairment rating is discussed subsequently, along with a case example shown in Table 4. The reader is directed to Chapters 1 and 2 of the Guides for an in-depth discussion regarding the methodology and specific details in assigning the most accurate impairment rating, along with the subsequent organ-system–specific chapters containing the appropriate diagnosis-based impairment grids:
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1. Determine the correct diagnosis and select the corresponding impairment grid in the Guides. 2. Determine the impairment class (0–4) according to specific criteria or the ‘‘key factor.’’ The key factor that should be used as the primary determinant of impairment class is clearly stated for each organ system impairment grid. The key factor will be based on the history of clinical presentation, physical examination/ physical findings, or clinical studies/objective test results. 3. Default to the middle severity grade (impairment percentage) for that impairment class. Each impairment class has a range of impairment ratings (most commonly three or five impairment grades) that differ between organ systems and disease processes. 4. Adjust severity grade based on the remaining (nonkey) factors: functional history, physical examination, and clinical studies. Each of these factors, or grade modifiers, is only used if considered reliable and associated with the diagnosis. For each remaining factor, an adjustment grid is used to determine the most appropriate impairment class position and record the number difference in the key factor’s impairment class. Calculate the net adjustment by summating the impairment class column differences and add or subtract the final number from the default identified in Step 1 to determine the final impairment for the diagnosis (Table 3). If this adjustment would move the rating to a higher or lower impairment class, the physician should stop at the highest or lowest severity grade in the impairment class initially determined by the key factor. 5. Determine if an assessment of the Burden of Treatment Compliance (BOTC) is warranted. BOTC uses a point system assigned on the basis of medication usage, dietary modifications, routine procedure frequency, and history of previous operative procedures/therapy for
Table 4 Impairment case example Example
Lumbar disc herniation
History
Forty-two-year-old man had an onset of back and right leg pain after repetitively lifting tires at work. He was initially treated with physical therapy and epidural steroid injection. After failing conservative treatment, he had a single-level discectomy Resolution of back pain but continues to have right leg pain with normal activity PDQ580 (moderate disability) Decreased lumbar range of motion and slight weakness of hip abduction and great toe dorsiflexion on the right, with no other evidence of significant radiculopathy Preoperative MRI showed a right-sided disc herniation at L4/L5 Status post-herniated disc and subsequent single-level discectomy Grid: lumbar (region) and intervertebral disc herniation (diagnosis); class51 Functional history (GMFH)52 (both functional symptoms/PDQ) PE (GMPE)51 (based on motor strength) CS (GMCS)52 (based on MRI findings) (GMFH–CDX)þ(GMPE–CDX)þ(GMCS–CDX)5(21)þ(11)þ(21)52 Class 1, Grade E59% impairment
Current symptoms Functional assessment PE CS Diagnosis Impairment class Grade modifiers
Net adjustment Impairment rating
CS, clinical studies; GMCS, grade modifier clinical studies; GMFH, grade modifier functional history; GMPE, grade modifier physical examination; MRI, magnetic resonance imaging; PE, physical examination; PDQ, Pain Disability Questionnaire.
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Fig. 1. Outline of the general progression after work injury/condition.
the organ system of interest. Points are then converted into a percentage that is added onto the final impairment rating. 6. Combine ratings from different organ systems to come up with a final impairment rating using conversion and combined value charts.
Completion of work injury claim after impairment rating After MMI has been reached, there are three general outcomes for an injured worker. The most ideal outcome
is that the worker is able to return to work with or without work limitations at the same job with the same employer. However, if the worker has limitations that their employer cannot accommodate, then a new job must be found that allows the worker to perform activities that they are capable of doing, either with the same employer or with a new one. For example, it is not uncommon for a worker to suffer an injury (eg, calcaneus fracture) that prevents them from continuing in their initial field of occupation (eg, construction), thus requiring them to receive additional training in a new field (eg, a sedentary job). This process of vocational rehabilitation can be costly and time consuming.
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The last and least ideal path is permanent total disability. This means that the worker has been deemed to have disability to the extent that they will not be able to work again in the open labor market. Most states compensate these individuals with two-thirds of the previously earned average wages, within the bounds of set maximum and minimum limits. Whereas some states limit the duration of payments, others provide lifetime compensation for injured workers.
Independent medical evaluation An independent medical evaluation (IME) is an examination and review by a physician who is not involved in the treatment of the individual being examined. The requesting party, most commonly insurance companies and employers, pays the physician’s fee for the IME. A physician conducting an IME is in a role that does not involve assuming care of the patient. Instead, the role involves determining a diagnosis along with severity of the injury/condition; causality; if all necessary tests have been ordered, and if not, which additional tests are needed for an accurate evaluation; if MMI has been reached; an impairment rating; apportionment (degree to which each of several injuries/exposures contributed to a specific impairment); and what restrictions should be in place.
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Along with making a causation determination, a physician commonly must make an estimate of the degree to which each of various occupational and nonoccupational factors may have caused or contributed to the current impairment (apportionment). Furthermore, aggravation of a preexisting medical condition that occurred because of various work-related activities or exposures also can play a significant part of a causation determination. When discussing impairment, apportionment, or aggravation, the word ‘‘probability’’ should be used to imply a likelihood of more than 50%, opposed to ‘‘possibility’’ that implies a likelihood of less than 50%.
Summary As the number of work-related injuries continues to rise, so will the accompanying socioeconomic and psychological factors that go beyond just the initial evaluation and treatment. In this no-fault system, physicians play a key role is progressing the claim along and, more importantly, getting the injured worker back to work as soon as safely possible. To efficiently accomplish these, physicians should remain familiar with the workers’ compensation process, along with how to properly use the AMA Guides. References
Causation Causation is frequently debated as it can be the determinant for treatment and financial responsibility. According to the Guides, medical causation requires a determination of each of following: a causal event/agent took place, the patient experiencing the event has the condition (impairment), the event could cause the condition, and the event caused or materially contributed to the condition ‘‘within probability’’ [10]. This differs from the legal question of causality, which asks whether or not the event did cause the condition. A major hurdle that makes causation decisions difficult is the lack of scientific data to help guide physicians to make evidence-based decisions. Physicians commonly rely on previous experience or consensus among the public or scientific community when making causation determinations. For example, how is a physician able to consistently state that a certain event caused 40% versus 60% of a patient’s lumbar disc degeneration? This distinction becomes important, as some states require a 50% threshold for causation, whereas others are as low as 1%.
[1] Kiselica D, Sibson B, Greenmckenzie J. Workers’ compensation: a historical review and description of a legal and social insurance system. Clin Occup Environ Med 2004;4:237–47. [2] Viikari-Juntura E, Kausto J, Shiri R, et al. Return to work after early part-time sick leave due to musculoskeletal disorders: a randomized controlled trial. Scand J Work Environ Health 2012;38:134–43. [3] Shiri R, Kausto J, Martimo KP, et al. Health-related effects of early part-time sick leave due to musculoskeletal disorders: a randomized controlled trial. Scand J Work Environ Health 2013;39:37–45. [4] van Duijn M, Burdorf A. Influence of modified work on recurrence of sick leave due to musculoskeletal complaints. J Rehabil Med 2008;40:576–81. [5] Katz RT. Impairment and disability rating in low back pain. Clin Occup Environ Med 2006;5:719–40. viii. [6] Rondinelli RD, Katz RT. Impairment rating and disability evaluation. Philadelphia, PA: W.B. Saunders, 2000. [7] Rondinelli RD, Genovese E, Brigham CR, American Medical Association. Guides to the evaluation of permanent impairment. 6th ed. Chicago, IL: American Medical Association, 2008. [8] Cocchiarella L, Andersson G, American Medical Association. Guides to the evaluation of permanent impairment. 5th ed. Chicago, IL: American Medical Association, 2001. [9] WHO. . In: International Classification of Functioning, Disability and Health: ICF. Geneva, Switzerland: World Health Organization, 2001. [10] Melhorn JM, Ackerman WE, Talmage JB, et al. Guides to the evaluation of disease and injury causation. 2nd ed. Chicago, IL: American Medical Association, 2013.
