I. Workers' Compensation
A. Burden of proof
1. The injured worker does not have to prove the employer was at fault.
2. The injured worker must prove that work at least partially caused the injury/illness.
3. Causation must be proved to attribute work-related factor(s) to a particular condition.
a. Results of the history and physical examination should identify the diagnosis and determine causation.
b. A thorough review of the injured worker's records is also needed to support conclusions.
c. A detailed history of the injury may reveal important facts to support an opinion on causation.
B. Assessment of the injured worker
1. The patient history should accomplish the following:
a. Specific information regarding the how, when, where, and why of an accident or injurious exposure should be elicited.
b. The areas of the body that were involved should be identified.
c. The extent and onset of symptoms following the accident or injurious exposure should be identified.
d. The treatment history should be reviewed in detail, specifically methods and effectiveness. Failure to respond at all to multiple, usually reliable treatments of common diagnoses suggests a nonorganic component.
e. The worker's perception of events compared with those depicted in the medical records should be analyzed to assess credibility.
2. Current symptoms should be discussed to document answers to the following questions:
a. What hurts now?
b. What can the patient do? What can't the patient do?
c. How does the injury impact the patient's ability to work, perform activities of daily living, and play?
3. The past medical history and review of systems should focus on other possible causes or contributors:
a. Prior injuries to the same or related body regions
b. Prior surgeries
c. Prior industrial accidents of any type
d. A family history of similar problems
e. Diseases and habits that impact the neuromusculoskeletal system
i. Diabetes mellitus
ii. Rheumatoid arthritis
v. Alcohol abuse
vi. High-impact hobbies/sports activities
4. A detailed work history is essential. Knowledge of the patient's work activities and environment can determine possible causative factors and the feasibility of modified work activities. The work history should include:
How long the patient has worked at the job
Prior work experience
Concurrent employment at a second or third job
Recent job changes such as increased workload resulting from layoffs
Table 1. Waddell Nonorganic Physical Signs in Low Back Pain]
Conflicts with a supervisor or associates
A high demand-low control (stressful) work environment
5. Musculoskeletal examination of the injured area
a. Examine the injured body part(s).
b. Investigate other, less obvious explanations.
i. Cervical disk disease as a cause of shoulder pain
ii. Hip arthritis as a cause of back or knee pain
c. Remember that the physical findings may form a major portion of the basis for administrative and financial decisions that will significantly impact the patient.
d. Comments on the reliability of the patient's physical findings and on whether the findings support the injured employee's degree of subjective complaints should be included.
i. For patients with low back pain, assess Waddell signs (Table 1)
ii. Three of five signs must be present to be considered a nonorganic source of pain.
II. Workplace Safety and OSHA
1. Science that studies ways to make the workplace more congenial to human capabilities
2. Considers the realities of human anatomy and the physiology of human muscle strength and fatigue
3. Involves machine and workstation design to improve workplace safety
B. US Department of Labor's Occupational Safety and Health Administration (OSHA)
1. Developed guidelines and programs to improve worker health and safety
2. Workplace safety measures have resulted in a sharp decrease in the incidence of distinct workplace injuries in the late 20th century.
3. The decline of these specific injuries revealed a host of other conditions that may develop in the workplace and can increase in severity over time.
a. Controversy exists about what to call these conditions and if they are indeed work related. Many call them cumulative trauma disorders (CTDs). This term is frequently cited in both the medical and legal literature.
i. The term is problematic because some argue that CTD implies a specific etiology that generally has not been clearly and scientifically substantiated; the cause is multifactorial.
ii. Not all CTDs become chronic problems; in fact, many disappear as workers become conditioned to specific work activities. But if rest is not provided or if activities exceed physiologic limits, then no amount of conditioning will prevent tissue damage.
b. OSHA calls these musculoskeletal disorders (MSDs).
i. An MSD is an injury of the musculoskeletal and/or nervous system that may be associated with or caused by repetitive tasks, forceful exertions, vibrations, mechanical compression (pressing against hard surfaces), or sustained or awkward positions.
ii. Examples include low back pain, sciatica, bursitis, epicondylitis, and carpal tunnel syndrome.
c. Conditions such as MSDs caused by more extended exposure to employment are termed occupational illnesses, whereas an occupational injury is one arising from a distinct event.
d. The American Academy of Orthopaedic Surgeons adopted a position statement in 2004 regarding the use of these terms. It is available at www.aaos.org/about/papers/position/1165.asp.
III. Legal Issues in Occupational Orthopaedics
A. Advantages of workers' compensation
1. For injured workers—it obligates employers to
a. Compensate the injured worker for high-quality, timely treatment needed to cure or relieve the worker of the effects of the work injury(ies).
b. Repay lost wages, to a maximum that varies from state to state.
c. Pay a final disability settlement (analogous to the "damages" awarded in civil cases).
2. For employers
a. The employer is shielded from being sued for negligence, except in particularly egregious circumstances.
b. Workers' compensation is usually the "exclusive remedy," precluding claims against employers for pain and suffering, emotional distress, punitive damages, and bad faith.
c. The system is no-fault.
d. The employer is required to pay benefits only when work is the cause—at least partially—of the worker's problem(s).
B. Components of the claim
1. Determining causation
2. The need for treatment and, if needed, type and duration
3. The extent of present disability
4. The ultimate disability settlement
C. Allocating or apportioning causation
1. Some causes may be work related, and some may be preexisting.
2. Legal apportionment varies by state.
a. Many states require employers to "take their workers as they find them," which makes apportioning to preexisting (but asymptomatic) conditions such as gout, diabetes mellitus, and obesity difficult or illegal.
b. Other states seemingly allow apportionment to factors beyond the employer's control such as those listed above. Factors such as sex, race, smoking, and obesity may not survive constitutional challenge.
IV. Assignment of Impairment and Disability
A. Importance of terms and definitions of terms in workers' compensation
1. Different jurisdictions assign somewhat different meanings to the same words.
2. The same word or terms can mean different things in different contexts.
3. Check the meaning of important terms in your state.
4. Commonly accepted words and definitions (not universal)
a. Impairment—A deviation or loss of body structure or of physiologic or psychologic function.
b. Disease—A pathologic condition of a body part.
c. Illness—Total effect of an injury or disease on the entire person.
d. Disability—Any restriction or lack of ability to perform an activity in the manner or within the range considered normal for an individual.
5. Impairment and disease are purely biologic issues that usually have an objectively measurable effect on the anatomy and/or physiology of the injured organ. An injury leads to an impairment that leads to a disease that may lead to a disability and an illness.
6. Illness and disability are the final complete functional manifestations of impairment and disease, including the social, physiologic, and economic (work) consequences of the employee's injury.
B. Assessment of level of impairment
1. Only physicians can evaluate for and assign level of impairment.
2. The assessment must be based on medical probability, also known as medical certainty, which implies that a statement or opinion is correct with >50% certainty.
3. In most states, providing a medically probable opinion about an injured worker's impairment generally requires use of the American Medical Association's Guides to the Evaluation of Permanent Impairment.
a. This reference provides tables and other standardized methods (depending on the body part or parts involved) for determining impairment.
b. It also supplies rules for combining the regional impairments into a "whole person" impairment.
4. Impairments are translated into disability ratings by state workers' compensation boards and other jurisdictions.
V. Malingering, Somatization, and Depression
A. Special considerations—Unlike most medical problems, with workers' compensation, the patient often thinks she or he knows what is wrong; there is reason to be skeptical when insurance issues are on the line.
1. Malingering is an act, not a disease. Calling someone a malingerer is an accusation, not a diagnosis.
2. Malingering is at the far edge of a spectrum of explanations about a problem with many names, including
a. Nonorganic findings
b. Symptom magnification
d. Submaximal, insincere, or low effort
e. Selling oneself short
f. Inappropriate pain or illness behavior
C. Somatization (formerly called hysteria or Briquet's syndrome)
1. Somatization is an extreme form of body language.
2. Patients who cannot (or whose cultures will not allow them to) express psychological problems may communicate such problems through sometimes powerful physical manifestations.
3. Somatization may be an attempt by patients to strive for psychological homeostasis.
D. Nonorganic findings
1. Most patients with nonorganic findings may look like malingerers but really have somatization.
2. Patients with nonorganic findings may be adult survivors of childhood physical and/or sexual abuse.
E. Factitious disorder
1. Another form of somatization that resembles malingering
2. A psychological disorder in which patients have an unconscious need to assume an ill role by producing their disease (eg, people who fear heights but don't know why); the most well known factitious disorder is Munchausen's syndrome.
1. May affect assignment of disability because depressed patients often have a heightened perception of disability.
2. Depression can be a vicious cycle, arising from a protracted injury and then creating at least the perception of more physical illness.
VI. Issues Relating to Return to Work
1. About 10% of injured employees who are off work have significant problems returning to their jobs within usual timeframes.
2. Some studies cite the percentage of workers who return to full duty at only 50% after having been out of work for 6 months.
3. Other studies report the same percentage but after only 3 months on disability.
B. Early return to work
1. Disability itself can be pathogenic and even fatal; early return to duty usually is the best approach for all concerned in the workers' compensation system, especially the injured employee. Early return
a. Minimizes the sense of illness
b. Lessens the loss of camaraderie and teamwork with associates
c. Improves self-respect and positive feedback that comes from knowing one is valued by society
d. Lessens the effect of deconditioning
2. Exceptions to early return to work include lack of appropriate light duty and posttraumatic stress after severe injuries such as amputations and burns.
3. Job satisfaction and early return to work
a. Leading factor in early return to work
b. Workers with high levels of discretion are twice as likely to be working than those with less autonomy.
c. An unpleasant, stressful work environment greatly reduces the chances that an injured employee will return to work.
4. Employer factors and early return to work
a. The employer should show support for injured workers.
b. Employer hostility intensifies worker stress.
c. Some employers use disability as a way to dismiss workers.
C. Worker factors and return to work
1. Some use time off and benefits to resolve home and family problems.
2. Workers on disability tend to recover more slowly and have poorer outcomes than those with the same injuries covered by group health and other forms of insurance.
D. Other factors and return to work
1. Union rules sometimes do not allow injured workers to be assigned to lighter jobs because other workers have more seniority.
2. Work hardening can be helpful as an intermediate step in transitioning patients from physical therapy to full duty.
Top Testing Facts
1. A workers' compensation claim is valid when a patient's diagnosis is related to work exposure.
2. It is crucial that the history, review of medical records, and physical examination findings support the diagnosis and its causation analysis.
3. Workplace safety programs and OSHA activities have greatly reduced major industrial accidents.
4. Cumulative trauma/musculoskeletal disorders have become more obvious with the decline of major work injuries.
5. It is important to know the precise meanings of the terms often used in workers' compensation matters, including impairment, disease, illness, and disability.
6. Key factors in a workers' compensation case include medical decisions about causation, treatment, light work status, and residual impairments.
7. Calling someone a malingerer is an accusation, not a diagnosis.
8. Somatization is far more common than malingering.
9. Depressed patients often have a heightened sense of impairment.
10. Early return to work is an important key to obtaining a successful outcome after a work injury.
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