Getting Healthy with Return-To-Work Programs

Getting Healthy with Return-to-Work Programs

By Michele R. Punturi, Esq. and Michelle M. Leighton Risk Managment November 1, 2016

A well-structured return-to-work program is committing to a strong safety protocol and one of the most effective ways to manage—and recognizing the proper resources necessary to even reduce—the costs associated with a implement an effective program are key workers compensation claim while efficiently elements during this early phase. improving an employee’s recovery after an injury. To create a positive return-to-work environment, it is critical to build support and All parties can benefit from a successful return- obtain commitment from senior leadership to-work program. Employees re-enter the within the company. Written policies and workforce in a meaningful job, earning wages procedures that provide a road map for and maintaining job status with the company. implementation of the program must be Employers reduce the amount of time that developed. Once it is firmly established, workers are absent and eliminate the costs of encouraging open communication between retraining other workers to fill the positions. employees, supervisors, managers and human Unions keep their members employable. Health resources personnel is critical for success. care providers have another tool at their disposal to aid in an injured worker’s recovery. By emphasizing a positive culture through a proper orientation program that includes A successful return-to-work program can be discussions about safety, proper chain of broken down into four phases that each help command and the performance review process, achieve a desirable outcome in the aftermath of employees should clearly understand their an employee injury. rights and what is expected of them by the employer. As part of this continuing education, 1. The Pre-Return-to-Work Phase the employer must maintain accurate physical- Taking a proactive approach in the workplace demand descriptions of all available jobs. This leads to successful outcomes in the event of an can be accomplished by retaining vocational injury. This begins by educating and training experts to update and develop changing job supervisors and managers to help prevent descriptions. injuries from happening in the first place, and also including them in the return-to-work To further establish a positive work policies and planning. The relationship between environment, an employer needs to be aware supervisors and managers is vital due to their of all wages, bonuses and incentives for close proximity to the employees as well as available jobs. It is also crucial to identify their first-hand knowledge and awareness of specific personnel most knowledgeable about the industry environment. Designating an job tasks and responsibilities. In addition, individual or a team to be responsible for recognizing ergonomics as a tool to increase coordinating the return-to-work program will productivity, decrease injury and discomfort, only enhance and strengthen communications and coincide with an employee’s ability will with an injured employee. Ultimately, better equip the employer to deal with injured workers.

Page 1 Take advantage of insurance carrier resources, provider to rely on in getting the employee to including people and technology, to develop be able to return to work. Consider an and maintain an effective network of approved independent medical examination to define the medical providers. Familiarize the approved nature and extent of injury, particularly when medical providers with business and job tasks the employee is not recovering as expected or while maintaining positive relationships with not complying with treatment. Next, determine them in order to control treatment and assess whether more than one independent medical an employee’s ability to return to work. Finally, expert may be necessary to perform, for keep a record of all workers compensation example, both a neurological exam and an injuries to control exposure and assess return- orthopedic exam on an employee who has an to-work potential, timeliness of treatment and injured back. Confirm that these experts are progression of the claim. provided with all medical records and diagnostic study films for review and analysis. A well-organized return-to-work program provides an employer with control over work The next step is to identify any and all releases activity and wages, and allows for daily to return to work by treating providers and to oversight of the employee. Keeping employer- secure a physical capacities form from the employee lines of communication open and treating physician and the independent medical promoting this positive relationship will expert that specifically outlines the exact nature ultimately decrease litigation costs. Studies of physical capacities and restrictions. Retain a have shown that, after employees are out of nurse case manager to secure immediate work for an extended period of time, they are feedback on medical treatment and restrictions. less likely to return to work on their own or in Rely upon this person to maintain a favorable good faith. Thus, it is imperative to get injured relationship with the injured employee and workers back to the job as quickly and work with them to understand and appreciate efficiently as possible, and to critically consider the employee’s activities, home life and physical the length of the return-to-work program (six restrictions. months to one year, one year or ongoing). If the employee remains out of work for an 2. The Return-to-Work Phase extended period of time, consider a functional While accident prevention is the first line of capacity evaluation as a good way to measure defense, not all accidents can be prevented. the validity of the employee’s complaints and When a worker is injured, an effective return- abilities, and to evaluate why the employee to-work program can manage costs and continues to be out of work. Prepare the proper improve worker recovery. After establishing a state forms in order to notify the employee and program and creating a positive culture within his or her attorney, if applicable, of the the company, you should be ready to employee’s capabilities of returning to work. implement the program once an employee is Finally, coordinate a claims review and strategy injured. meeting and communicate with key risk managers and safety personnel to discuss The first step to implementing a return-to-work return-to-work restrictions and job availability program is to identify the accepted injury via for the injured employee. the applicable forms provided through each state’s workers compensation system and then When making a job offer to the injured worker, carefully clarify any injuries accepted, but not the best approach is to put it in writing. The specifically identified, on the state forms. written offer should contain all of the requisite Determine if the panel doctor is an appropriate information, including but not limited to the employee’s change in medical condition. In

Page 2 addition, the job offer needs to take into vocational expert to perform an earning-power account whether the employee is capable of assessment and rely on labor market surveys to returning to the workforce. It must also identify strengthen the evidence and defenses to the the occupational category to which the claim being litigated. Securing the personnel file employee is released (sedentary, light, medium is imperative in order to analyze and strategize or heavy-duty work) and include a specific and any and all potential employment-related accurate description of the duties of the job issues. being made available with an attached formal job analysis. Counsel should identify fact witnesses from the employer who can testify, and then arrange The job offer must outline the specific meetings with these witnesses to discuss facts, wages/salary and hours available for the documentation and prepare for testimony. position, as well as the name and telephone With regard to expert witnesses, careful number of the person to contact to get started. consideration of whom to retain and associated The offer needs to identify the start date and costs is paramount to efficiently litigate the should be sent to the worker via regular and case. Included in these costs is the amount of certified mail, along with a copy to the known time needed to review all medical records and attorney, to prevent the worker from claiming diagnostic testing; review the pre-injury job that he or she never received it. description and alternative job description with physical demands; examine the injured worker; Once the job offer has been communicated to prepare a comprehensive report; and then, the employee, verify that the employee has ultimately, testify at deposition. returned to work and then file the appropriate form consistent with each state’s workers In addition to fact and expert testimony, there compensation laws and regulations. Confirm are many other effective litigation tools and that any light-duty employee is subject to the strategies. The use of audio and video same disciplinary policies as the other surveillance is often persuasive evidence with employees. Continue to maintain contact with the court, as the judge can personally see the employee during this return-to-work phase whether the employee is suffering from the and address any complaints verbally, then injuries he or she is claiming. In addition, using follow-up with written documentation. video of actual job tasks helps the judge appreciate what the employee needs to do to 3. The Litigation Phase perform the job and can often counter contrary Unfortunately, even with an effective return-to- allegations from the employee. Social media is a work program and a positive and supportive powerful source of information and is often work environment, many workers helpful in discrediting the testimony of the compensation claims still need to be litigated claimant. On the medical front, it is helpful to for a variety of reasons. Communicating with identify any additional treating providers to counsel is important during the litigation phase unearth contrary facts and potential support for in order to make sure that all information is a return to work. being processed correctly by the different individuals. Many costs can be limited or Although the theoretical goal of litigation is to avoided altogether through consistent, win every case, the practical goal is to resolve proactive and aggressive litigation. the case in the most cost-effective way possible. This can be accomplished through mandatory or After a claim has entered the litigation phase, voluntary mediation. The best way to enter into the employer can consider engaging a mediation is after you have secured testimony and evidence that could win the case for you.

Page 3 After arranging a strategy meeting with key • Performance metrics to evaluate managers to discuss facts, exposure and effective communication within the settlement authority, counsel must persuasively organization and with outside vendors articulate why the defenses to the claim are more believable than the claimant’s allegations. Another way to ensure proper handling of a A successful mediation occurs when both sides claim is to create a mentoring program for leave the meeting feeling like they have employees. This mentoring program ensures received the better deal. that new employees are conducting their job responsibilities properly and safely, thus 4. The Aftermath Phase minimizing the risk of potential injuries. Once the claim has been resolved either Assessing medical provider outcomes is another through litigation (decision, settlement or avenue to explore in trying to more effectively mediation) or by the fact that the employee has handle claims. Items that should be considered completely healed and returned to work full- are reliance on the approved medical provider time, a little bit of “Monday morning versus independent medical examination, quarterbacking” is needed to assess how well proper expertise and record review, and the claim was handled from start to finish. This detailed physical capacities and job analysis evaluation and analysis is important in order for review. Finally, retaining an ergonomics expert all parties involved to determine how they to identify and modify job tasks, address aging could improve for the next claim. workforce issues and assess low-cost accommodations could be helpful in limiting An analysis to determine if there could have potential new claims and exposure to existing been cost savings and greater efficiency will claims. address: • Proper orientation and safety training, Truly effective workers compensation risk including establishing a zero-injury management should include implementation of culture, conducting ongoing training, an effective return-to-work program. Employers and communicating responsibilities and who follow this four-phase process will reap the expectations benefits by getting their injured workers • Initial contact-gathering information healthy and back on the job more efficiently • Communication to ease concerns and while avoiding or eliminating costly litigation. empower employees  • Taking time to talk to employees to ______reduce the chance of litigation and reinforce care and desire to achieve the Michele R. Punturi, Esq., is a shareholder in the best result workers compensation department at Marshall • Setting expectations for benefit Dennehey Warner Coleman & Goggin. delivery, return to work and medical care Michelle M. Leighton, AIC, is a vice president and senior claim consultant for Conner Strong & Buckelew.

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