Tide TRACKERHelping to Navigate the Troubled Waters of Workers Compensation

Spring 2012

RiskSolutions, IncReducing the Costof Doing Business

The Power of PGAP:Solving the AccessProblem for DelayedRecovery RehabilitationServices in the U.S.

by DarrellBruga

is abuzz termthese days.

If you attend any major workers’compensation or disabilityconferences, you are likely tohear a session or two onwhole-person approaches torehabilitation. Over the pastseveral years, a significant bodyof research which focuses onthe psychosocial risk factors anddelayed recovery has becomemore widely known. That isbecause new strategies areemerging to tackle the work-disability problem which researchshows can be attributed topsychosocial risk factors.

Research over the past twodecades conducted by Michael

Sullivan, PhD and colleagues atthe University Centre forResearch on Pain and Disability,McGill University reveal thatpsychosocial variables canpresent significant obstacles torecovery following musculoskeletal

injury.1 Modifiable risk factorssuch as fear-avoidance beliefs,catastrophic thinking, perceiveddisability, and perceived injusticehave been identified as contrib-uting to poor rehabilitationoutcomes in individuals whohave sustained musculoskeletal

injuries.2–4 There has beenincreasing interest in thedevelopment of interventionapproaches that would permitearly detection and treatment ofpsychosocial risk factors for poorrecovery from musculoskeletal

injury.2,5,6 Individuals with anelevated psychosocial risk profileseem to benefit less fromtraditional approaches to medicalmanagement, are less respon-sive to physical therapy inter-ventions, and are less likely toreturn to work.

Dr. Sullivan’s research led tothe development of an interven-tion program that specifically

Table of Contents� The Power of PGAP .………. pg. 1� Delayed Recovery-Early

Intervention (DREI) ………… pg. 1� Breaking News …………..… pg. 4� How Can You Measure the Success

of Your Safety Program… …..pg. 6� Defending Post-T ermination

Claims ……………………… pg. 7� Litigation Avoidance ………... pg. 8� Message From Our Captain …pg.10

Delayed Recovery-EarlyIntervention (DREI)by Linda TaylorRiskSolutionshas beenworkingdiligently toidentify thoseworkers’compensationclaims thatprovide the fuel for high reserves,maximizing temporary totaldisability, and high litigation rates.As of this newsletter, RiskSolutionsis proud to announce that we arerolling out DREI. DREI is designedto identify several factors that maycause the claim to go out ofcontrol. These factors include

targets these modifiablepsychosocial risk factors.The concept was that ifpsychosocial barriers could beeffectively targeted in anintervention program, then itmight be possible to reduceor even prevent chronicsuffering and disabilityfollowing injury. The Progres-sive Goal Attainment Program(PGAP™) is an outgrowth ofDr. Sullivan’s publishedresearch and is consideredthe first disability preventionprogram specifically designedto target psychosocial riskfactors for disability. It is anevidence-based rehabilitationprogram for reducing disability

associated with pain, depres-sion, and other chronic healthconditions. Publish peer-reviewed research on PGAP™has demonstrated howPGAP™ improves return towork outcomes as well asreduces treatment and pain

medication.2,7,8,9

Despite its proven efficacyand wide use throughout theinternational workers’ compen-sation community, PGAP™ isconsidered cutting edge andnot yet widely known in theU.S. work comp market. Forover a decade, PGAP™ hasbeen successfully delivered inCanada’s workers’

psychosocial, fraudulent, secondarygain issues, somatization, andbehavioral issues. The DREI Matrixwill give the employer, broker, andinsurance carrier a way to bringadditional resources to the claim toprevent an expensive outcome.During the course of developing thematrix, RiskSolutions identified thatonce a claim is marked as high-riskwe need to have special handling inplace. After interviewing severalmedical providers, RiskSolutionsdeveloped a partnership with PGAP.We have featured PGAP's article inthis newsletter. We are excited tobring a new way of doing Worker'sCompensation into such a complexarena as we all deal with day-to-day.We actually had our first real life testof the DREI matrix this month. Thematrix identified an employer satisfac-tion issue. Within two hours of doingthe three-point contact through theDREI matrix we knew that this wasnot a medical issue of an injuredelbow, but related to a bad perfor-mance review and behavioral issuesarising from work dissatisfaction.In the future, we are looking to workclosely with brokers, employers, andinsurance carriers to provide the DREImatrix during the three-point contactof all new claims. It is important thatwe analyze the claim as close to thedate of injury as possible. If thematrix identifies a high risk situationthen we can institute a different

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compensation and disabilitysystem, which is similar tothe US system. Morerecently, PGAP™ becamepart of a National Strategyin New Zealand wherehundreds of providers havebeen trained and theAccident CompensationCorporation (ACC)approves the service.

Here in the U.S., PGAP™was selected in 2006 tobe a part of a $40 milliondollar trial within the SocialSecurity Administration todetermine if PGAP™ andother services can help getSSDI recipients off ofdisability and re-integratedto the workplace. PGAP™is the only proven earlyand chronic interventionwork disability program thathas been delivered onsuch a wide scale.

Beyond the scientificrobustness of PGAP™ theprogram and delivery modelare also attractive becausePGAP addresses the needfor increased access toevidenced-based biopsy-chosocial (BPS) rehabili-tation services. We haveknown that limited accesshas been a barrier to

receiving evidence-basedbiopsychosocial (BPS)rehabilitation in the U.S.This was highlighted in arecent issue of Back Letter,"Barriers to the EffectivePrevention of ChronicDisabling Low Back

Pain."10• In this issue, therewas discussion that theU.S. healthcare andinsurance systems are notorganized optimally toprovide timely, reimbursablecare for individuals withrisk factors for chronicdisabling low back pain.

We know that 10%-20% ofindividuals with work-relatedmusculoskeletal injuries willprogress toward chronicpain and disability. Wealso know that thisrelatively small subgroupconsumes most of themedical and financialresources. Yet, we knowthat there is a void oftargeted disability treatmentservices for these types ofoccupational relateddisabling health conditions.The article goes on tosuggest that, "althoughcognitive behavioral therapyis an effective approach forseveral ‘yellow flags’, back

protocol that will positively influence theoutcome of the claim. Obviously, theultimate goal is to affect return to work andprevent litigation. The matrix will provide theinsight into the claim that will help us attainthe above goals. If you have any questionsregarding the DREI matrix, please feel freeto contact me.

ltaylor@risksolutions-inc.com.

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L

pain-oriented cognitivebehavioral therapy is notwidely available in U.S.healthcare systems.• Nor areeffective multidisciplinaryrehabilitation programs forindividuals with low backpain.• (

"

PGAP’s community-baseddelivery model is significantbecause it can be deliveredwithin the immediate geo-graphic reach of the injuredworker’s place of residence.Furthermore, PGAP isdelivered by a continuum ofrehabilitation professionalsincluding OTs, PTs, vocationalcounselors and psychologists.This allows for increasedaccess to PGAP™ through awide variety of speciallytrained providers. This modelhas been shown to beeffective in both face-to-faceand telephonic interactionswhen a PGAP™ provider isnot available.

PGAP™ has the ability tomeet the demand of thesepopulations and LifeTEAM™Health was developed todeliver PGAP™ and otherdelayed recovery services tothe U.S. market. Through itsunique specialty outcome

provider network, LifeTEAM™Health delivers a powerfultool to payors, TPAs,employers and medicalmanagement companies withfocus on the prevention andreduction of delayed recoveryand needless work disability.Because LifeTEAM™ Health isable to deliver services inlarge and small communitiesthroughout the U.S., PGAP isa cost-effective option incomparison to higher costprograms which morecommonly serve larger urbanareas. Today, LifeTEAM™Health’s outcome-basedprovider network reachesacross 8 states. By the endof 2012, LifeTEAM’s PGAPnetwork will cross 12-15states. This is the largest –and most focused – knownU.S. network of its kind.

For inquiries about LifeTEAM™and PGAP™ please sendemails to Dr. Bruga atdbruga@lifeteamhealth.com orvisit www.lifeteamhealth.com.Darrell Bruga, DC, MichaelSullivan, PhD and colleagueswill be speaking aboutdelayed recovery at theupcoming 2012 AOHC(ACOEM) Conference in Los

Angeles on April 30th, 2012.

Breaking Newsby Melissa Rehm

The California SupremeCourt ruled Thursday

April 13, 2012, that

employers are under noobligation to ensure thatworkers take legally man-dated lunch breaks in a

case that affects thousands of

businesses and millions of workers.

The unanimous opinion came afterworkers' attorneys argued that abusesare routine and widespread whencompanies aren't required to issue directorders to take the breaks. They claimedemployers take advantage of workerswho don't want to leave colleagues

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References:1. Sullivan MJL. Emerging trends insecondary prevention of pain-related disability. Clin J Pain.2003;19:77–9.2. Sullivan M, Feuerstein M,Gatchel RJ, Linton SJ, Pransky G.Integrating psychological andbehavioral interventions to achieveoptimal rehabilitation outcomes. JOccup Rehabil. 2005;15:475–89.3. Leeuw M, Goossens ME, LintonSJ, Crombez G, Boersma K,Vlaeyen JW. The fear-avoidancemodel of musculoskeletal pain:

current state of scientific evidence.J Behav Med. 2007;30:77–94.doi:10.1007/ s10865-006-9085-04. Lotters F, Franche RL, Hogg-Johnson S, Burdorf A, Pole JD.The prognostic value of depressivesymptoms, fear-avoidance, andself- efficacy for duration oflost-time benefits in workers withmusculos- keletal disorders. OccupEnviron Med. 2006;63:794–801.doi:10.1136/ oem.2005.0204205. Boersma K, Linton S. Screeningto identify patients at risk: profilesfor psychosocial risk factors forearly intervention. Clin J Pain.2005;21:38–43.6. Linton SJ. New avenues for theprevention of chronic musculoskele-tal pain and disability. Amsterdam:Elsevier; 2002. doi:10.1016/S0899-3467(07)60096-27. Sullivan, M.J.L., Adams, H.Psychosocial treatment techniques toaugment the impact of physiotherapyinterventions for low back pain.Physiother Can. 2010; 62:180 -189.8. Sullivan, M., Adams, H.,Rhodenizer, T., & Stanish, W.(2006). A psychosocial risk factortargeted intervention for theprevention of chronic pain anddisability following whiplash injury.Physical Therapy, 86, 8–18.9. Sullivan, M., Ward, L., Tripp,D., French, D., Adams, H., &Stanish, W. (2005) Secondaryprevention of work disability:Community-based psychosocialintervention for musculoskeletaldisorders. Journal of OccupationalRehabilitation, 15, 377–392.10. The BackLetter. Vol. 25, No.8, August 2010.

during busy times. The case wasinitially filed nine years ago againstDallas-based Brinker International, theparent company of Chili's and othereateries, by restaurant workers com-plaining of missed breaks in violation ofCalifornia labor law.

But the high court sided with businesseswhen it ruled that requiring companiesto order breaks is unmanageable andthat those decisions should be left toworkers. The decision provided claritythat businesses had sought regardingthe law.

The opinion written by Associate JusticeKathryn Werdegar explained that whilestate law requires employers to freeworkers of job duties for a 30-minutemeal break, the employee is at libertyto use the time as they choose even ifit's to work. "The employer is notobligated to police meal breaks andensure no work thereafter is performed,"Werdegar wrote.

Tracee Lorens, lead attorney for theplaintiffs, said that she was pleased thecourt did allow a separate claimregarding the plaintiffs' receiving properrest breaks to proceed as a class-action suit.

Adam Hohnbaum, a former Chili'sbartender and server in Encinitas, Calif.,said he hoped the attention paid to theissue would improve working conditionsfor current employees. "Most of thetime you didn't get a break or a restperiod at all- it just wasn't a part ofthe daily operation," Hohnbaum said.

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How Can You Measurethe Success of YourSafety Program?By JoeStevens

How do youmeasure thesuccess ofyour safetyprogram?After you compare the number ofinjuries, first aids and near-misses to previous years, how doyou know if your overall approachto safety is effective?The answer has more to do withattitude than policy. I’ll neverforget a conversation I had withthe owner of a successfulfoundry, who wrapped up ourmeeting by asserting that hiscompany had a very strong safetyprogram, as confirmed by arecent OSHA inspection that foundno significant violations. Heacknowledged that his XMod hadbeen over 125 for the previousfew years, and that his injuryratio was higher than he’d like,but those weren’t a reflection onhis safety program, because thatwas “very strong.”My response to him was asimple question: “If I asked youremployees if they had a verystrong safety program, what wouldthey say?” The silence was

deafening, as the light in hishead slowly went on. His nextwords were: “I get it. How dowe change that?”What he got was this: the onlyopinion that matters is that of thepeople who are doing the work,and are at the greatest risk. Ifthey don’t think the company ororganization has a strongcommitment to safety, they won’thave one, either. If they don’tthink you have a strong safetyprogram, you don’t, because theirattitude about safety mirrors whatthey perceive your attitude to beabout their safety. It’s not yourhighest priority? Then it won’t betheir highest priority.Compliance matters, and trainingmatters, and safe conditionsabsolutely matter, but they arethe foundation to a safetyprogram, not a program bythemselves. The vast majority ofinjuries are the result of behavior–careless, unsafe, or dishonest-not conditions, so the focus foran effective safety program needsto go beyond the basics ofcompliance and training, andengage workers in safe practices.It needs to encourage teamwork,and it needs to acknowledgeachievements with recognition, andeven rewards, when appropriate.

The measurements I use todetermine the success of a safetyprogram are these:

1. Do the workers takeresponsibility for beingsafe?

2. Do they take pride in thesafety record of theirdepartment and theircompany?

When workers believe that thecompany they work for places ahigher value on their safetybecause they care about them asindividuals, not just because theywant to save money on workers’compensation, a safety culture ispossible. What can a companydo to create that attitude? That’sthe topic of our next article.

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It is unclear how the opinion willaffect future class-action lawsuits onthe issue. Generally, employer-sideattorneys were confident thatThursday's ruling would reducefuture class-action lawsuits sur-rounding the meal break issue inCalifornia, which has cost companiesmillions of dollars in legal costs.

"The courts are making it clear thatyou have to create a system and aprocedure that fully allows

employees an opportunity to takebreaks and meal periods, and ifthey do that, they do not have tobe 'Big Brother' and individuallymonitor each employee to ensurethat they've taken every bit of theirbreaks," said Steve Hirschfeld,founder and CEO of the Employ-ment Law Alliance, an employer-side legal trade group.

Defending PostTerminationClaimsby James Carey

Filing a workers’compensation claim after anemployee is terminated isgenerally met with an immediatedenial under LC3600(a)(10). However, thesecases are often unraveledrelatively quickly depending onan adjuster/attorney’s experi-ence and/or willingness to fighta particular case. A clearunderstanding of what consti-tutes a “good” case versus onethat should be settled ASAP isthe key to controlling excessivelitigation costs and maintainingrelative control over a file.

The key to defending theseclaims is to set up a strategyfrom the outset to defend thekey points within the LaborCode as well as initiating aprompt investigation. To set upa good defense, one mustensure that there was an actualnotice of termination, usually aletter written to the employee.Next, it must be an actualtermination. That the employeequit their job voluntarily doesaffect the use of this defense,

as the law was written toprevent retaliatory workers’compensation claims.

When it comes to theactual notice of injury, theemployee will have todemonstrate that they had

notified their employer of aninjury. This could be telling asupervisor, filling out a claimform or receiving some form ofmedical treatment. Having athorough investigation up frontgives the adjuster and defenseattorney a relatively clear pictureof what happened. Irrespectiveof how many witnesses eachside has, it is the overall qualityand credibility of testimony thatwill ultimately decide the case.This is referred to as a“preponderance of evidence,”and is the standard of proof inworkers’ compensation cases.

Also, medical treatment is a keypart of the equation and thelaw. If the employee has hadany treatment whatsoever to theclaimed body part, then theclaim has a high likelihood ofbeing accepted and foundcompensable by the judge atthe Workers’ CompensationAppeals Board. However, it isthe employee’s burden to provethat there was medical treat-ment. Adjusters and attorneys

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generally tend to subpoenamedical records that are identifiedduring the discovery process toensure that the “post-termination”defense has merit.

That said, the old adage of “thebest defense is a good offense”applies to the post-terminationdefense. The moment that claimcomes through the door, gatherup witness statements fromsupervisors, co-workers, the officemanager or anyone else whowould have had contact with theemployee and ask about whetherthey were ever injured on the jobor complained of pain as a resultof their job duties. Sometimes,the results can be surprising andhelp establish a very strongdefense.

Once the claim has been denied,don’t wait to move it through thesystem. Getting a decision froma judge based on the facts avoidssignificant costs down the road.Remember, it is the quality ofyour evidence that matters, notthe quantity. The sooner a caseis brought before the AppealsBoard, the sooner you will knowif it will be considered acompensable injury. A deniedcase can quickly rack up$75,000 in medical liens alone,not to mention the costs oflitigation (up to $40,000),

medical-legal evaluations($2,000-$8,000) and othercosts.

Finally, don’t be afraid to settlethe case. The facts may bethere, but that does not meanthe case is a slam dunk.Witnesses don’t always show upto testify or any other problemcan arise when it’s time to movethe case forward. A settlementwill reduce the overall valuationof the claim and have less of animpact on your XMOD. With that,a word of advice: Documenteverything. This will improve thequality of evidence and make thatTake Nothing (and “Non-Com-pensable” XMOD revision) all themore attainable.

Litigation Avoidanceby Lisa Sanchez

Although thereare no definiteways toprevent aninjured workerfrom retainingan attorney,there are

measures that both an employerand an adjuster can take toreduce the chances of a claimbecoming litigated. When a claimbecomes litigated, the cost ofthe claim increases substantially.You can expect the cost of theclaim to increase at a minimumof $10,000 when the injuredworker retains an attorney. Inaddition to the increased costs,the life of the claim is extendedfrom anywhere between nine

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months to five years. Based on studies thathave been conducted to determine why injuredworkers seek the services of an attorney, lack ofcommunication and the fear of the unknown werethe top reasons.

The following are ways for employers and claimsadjusters to practice litigation avoidance:1. Keep the lines of communication open withthe injured worker and develop a rapport.� Listen to the injured worker and answerhis or her questions� Provide honest answers� Always be respectful when speaking to theinjured worker� If further research is needed to answer aninjured worker’s question, return their callwithin a reasonable timeframe (24-48hours)� Know their case and prior concerns� Provide all benefits owed (applies to theClaims Adjuster)

2. Provide effective medical treatment� Utilize good quality physicians� Money should be invested in effectivetreatment that will help get the injuredworker well and back to work.

3. Keep it simple� Explain benefits in layman terms� Assist in walking the injured workerthrough the Workers Compensation system� Allow for and encourage questions

4. Dealing with the family� Allow the injured worker’s family to askquestions� Obtain injured worker’s permission tospeak with family

5. Pay all medical bills in a timely mannerand per fee schedule.

6. Provide modified/alternative job duties7. Maintain contact with the injured worker

Staying in Compliance with Medical Provider Net-

work Regulations

In response to California’s widely-acknowledged

Workers’ Compensation costs, the California

Legislature passed Senate Bill 899 in April

2004. This bill included several provisions

designated to control Workers’ Compensation

costs. Among the provisions, Labor Code 4616

provides for the implementation of medical

provider networks (MPNs).

An MPN is an entity or group of health careproviders set up by an insurer or self-insuredemployer and approved by Division of Workers’Compensation’s (DWC) Administrative Director totreat workers injured on the job. The goal ofan MPN is to help ensure that injuredemployees receive high quality, appropriatemedical care that focuses on returning theindividual to a productive lifestyle as quickly asmedically appropriate.

It is very important that an MPN is set upproperly. If the Network fails to meet any one ofthe regulations, it would open the door for anapplicant to justify treating outside of the MPN.

An MPN must include the following:1. Approval by the Administrative Director2. Proper notices given at time of hire and

when transferring into the MPN� Make sure all letters, posters andnotices include the mandatory information� Provide Spanish notices to Spanish-speaking employees

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3. Poster at work site placed in aconspicuous location frequented byemployees during the hours of the workday and in close proximity to the “StateWorkers’ Compensation Posting Notice”(DWC-7).

4. Notice of Rights at time of injury

5. The option of 2nd/3rd in-network opinions6. Independent Medical Reviewer7. Continuity of Care options8. Transfer of Care options9. Adequate Coverage10. Must Meet Access Standards

A Message From Our CaptainBy Ed Taylor

As we discuss thetotal impact indollars to anemployer forworkers’compensation, it'sthe employer whoneeds to take control of the process. Shoppinginsurance year-to-year and looking •for the bestdeal may save a few percentage points, but thereal savings come from managing the workplaceenvironment and putting in place a three to fiveyear program to ultimately change the cultureand to put in place tools that will manage aninjury to the lowest possible cost and bestoutcome for the injured worker and theEmployer.

Most employers know what their present Xmodis, but few know how low it can possibly be.Approaching the lowest possible XMod can savethousands of dollars in workers’ compensationinsurance costs, which translates to a healthierbottom line

In this newsletter, we have discussed some of the programs that are available today in claims management andemployer leadership that directly address the main XMod drivers, frequency & severity. The key variable in thisequation is the injured worker. Getting the injured worker motivated to return to work is paramount inrecovery and return to work efforts, and can help lower your XMod drastically.

We hope that you have found this newsletter informative and that it has sparked some thought.

reducing the costs ofdoing business

P .O. Box 18017602 17th St.T ustin, CA 92780

(951) 943-6775 xt 151Fax: (951) 943-5221etaylor@risksolutions-Inc.com

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