Workers' Compensation

Episode 26 - Workers' Compensation

[00:00:00] Dr. Chehab: Welcome to IBJI's OrthoInform, where we talk all things orthopedics that help you move better, live better. I'm your host Dr. Eric Chehab with OrthoInform. Our goal is to provide you with an in-depth resource about common orthopedic procedures that we perform every day. Today we are taking a bit of a departure from our standard format in which we typically talk about an orthopedic condition.

Today we're gonna be talking about insurance. And specifically workers' compensation. I'd like to thank Dr. Kevin Chen, who will be our guest today to discuss workers' compensation. As a brief introduction, Dr. Chen completed his undergraduate studies with Honors and biology in 2004, his medical studies in 2008, and his orthopedic surgery residency in 2013, all at the University of Illinois Chicago.

During his years at UIC, he was a member of the Honors College. Was recognized for his resident teaching with an AOA resident teaching award, and was recognized for his outstanding service on the hand surgery service in 2013. Dr. Chen then advance his training with a fellowship in hand and upper extremity surgery at the Medical College of Wisconsin and Milwaukee, a level one trauma center where he treated both common and complex fractures and injury conditions.

Upon his completion of his fellowship training in 2014, Dr. Chen returned to the Chicago area and joined Illinois born and joint. He is an orthopedic surgeon who specializes in hand, wrist, elbow, and shoulder surgery. He treats a host of upper extremity conditions ranging from the acute traumatic to the chronic arthritic conditions in the shoulder, elbow, wrist, and hand.

He is currently the director of hand Surgery at Advocate Illinois Masonic Hospital, a Level one Trauma Center. He is currently certified in the evaluation of disability and impairment rating by the International Academy of Independent Medical Evaluators. Dr. Chen prides himself on being fair and impartial and workman's compensation cases.

He sees patients from all backgrounds in the Chicagoland area, which include police officers, factory workers, workers in the trades office, workers and janitors. He works with all parties in the Workman's Compensation landscape, which includes adjusters attorneys and nurse case managers. He has committed to patient education and tries to explain everything to patients in an easy way to understand, which is why we have asked him to join OrthoInform today.

So Kevin, welcome to OrthoInform and thanks for being here. Thank you for having me here. So I, I have to, before starting, I just kind of wanted to review the history of workers' compensation insurance and I, I have to admit, I, I went to Chad GPT and asked Chad GPT to write a two-hundred-and-fifty-word summary of workers' compensation or the history of worker workers' compensation in the U.S.

I'm gonna just read it, if you don't mind. It's gonna take a minute or two and then we can start talking about. The patient experience with workers' compensation. So evidently the history of this is from chat GPT again, full disclosure. Um, the history of workers' compensation insurance is a tale of societal response to the changing nature of work and the recognition of the need to protect employees injured on the job.

The origins of this concept can be traced back to ancient times where some societies implemented rudimentary compensation systems for the injured workers. However, the modern area of workers' compensation began to take shape in the late 19th and early 20th centuries. The industrial Revolution spurred the creation of more formalized workers' compensation systems driven by the escalating number of workplace injuries.

Germany led the way in 18 eighty-four, with the implementation of the first comprehensive workers' compensation law under Chancellor Otto Van Bismarck. This model influenced other nations, including the us. Wisconsin became the first U.S state to enact a workers' compensation law in 1911, marking a turning point in how workplace injuries were addressed.

These early laws established a no-fault system, streamlining the process for injured workers to receive compensation without the need to prove employer negligence. Throughout the 20th century, workers' compensation laws evolved to encompass federal employees, extend coverage to occupational diseases, and introduce disability benefits.

The ongoing adaptations reflect a commitment to addressing the diverse challenges faced by workers across different industries. In recent decades, the focus has shifted towards enhancing the efficiency of claims processing and ensuring fair compensation. Workers' compensation insurance has become an integral part of the social contract between employers and employees.

It provides a safety net for workers injured during the course of their employment. And the history of workers' compensation is a story of continuous improvement, adapting to the evolving nature of work, and the well-being of the workforce. So again, that's Chachi BT, and I think that does a nice. Summary of, of this history that I was completely unaware of.

I don't know about you. Let's talk about work workers' compensation. You mentioned when we were talking before this, about the type of workers' compensation patients. I.

[00:05:01] Dr. Chen: Yeah, so warmest compensation is meant to help workers who are injured on the job, and, uh, I think the one that most people think about is having a work accident.

So let's say you are a worker on the job and you lift heavy objects. And you lift something too heavy and you suddenly have shoulder or elbow pain. You think you tore something and you go to your employer and you say, oh, you know, boss, I think I injured something. I can't work anymore. I need to go see a doctor.

And that is when your boss directly files a workman's compensation claim so that you can get the help that you need.

[00:05:35] Dr. Chehab: And then what other type of patients? Typically we'll be filing a workers' compensation

[00:05:39] Dr. Chen: claim. So there are other patients who have potentially repetitive motion, uh, injury. So let's say every day, all day you are taking something off the line, a five, five pound object.

And because you're doing so much, you eventually develop tendonitis in your elbow, in your hand, and it just builds and builds and builds. And maybe because you're getting older, you're. Body isn't getting as strong and you have no other triggers for this problem, then that would also potentially qualify for a ruins compensation

[00:06:07] Dr. Chehab: claim.

Okay, so we have the acute traumatic injury of lifting something, , injuring something right then and there attributable to an accident work. And then there may be more the repetitive overuse type injuries that may occur, , as sort of a chronic. More conditioned, and those are the typical type of workers' compensation patients, who would file a claim and then eventually see one of us.

So let's walk through that, that let's just take the hypothetical patient with an acute injury. They file a claim and, and sort of what's next.

[00:06:41] Dr. Chen: Yeah, so first of all, I think a lot of injured workers get confused about the process. Um, and certainly, , when somebody's been at a company for a long time and they have work injury, they don't know what to do, right?

They don't know what the process is. And so that's just even the first step is very important. Find the claim. And so I have some injured workers who tell their boss by injury, but no claim is actually filed because their boss says, oh, it's okay. Why don't you go to go put an ice pack on and just go back to work?

And the injured workers' oil, I told my boss, I assumed the boss is gonna file a claim, but sometimes they don't. So I think when you are injured at work as first incumbent on you to make sure that the claim is filed and you ask your boss, Hey, can I see the injury report? And um, a lot of times when I explain to my patient what women's compensation is, I explain to 'em, it's just like any other insurance claim.

So we all need to understand car accidents a little bit better. So let's say you get a car accident and you need to file a claim with your insurance company, you're not gonna assume that somebody's gonna file it for you. You're gonna file it, you're gonna make sure that goes through. So I think an injured worker should also make sure the claim gets

[00:07:44] Dr. Chehab: filed.

Yeah. Okay. And then what does that claim entitle them to?

[00:07:48] Dr. Chen: So the claim entails them to evaluation by a medical doctor. Sometimes some injuries are more urgent and so some patients have to go to the emergency room right away to Stabilize 'em, make sure you know, a fracture or an injury is splinted or treated appropriately.

Yeah. And then they potentially are, uh, sent to see other physicians for the injury.

[00:08:08] Dr. Chehab: Okay. So they go see the doctor, presumably just like everybody else. , but what's special about, um, in the setting of workers' compensation about that physician visit? I.

[00:08:20] Dr. Chen: So the first physician visit is also very important.

So the worker has, uh, filed a claim, you know, saying that injuries through body part, and now they're going up to see a physician. The physician at that appointment needs to document. The injury and the physical examination so that we know what is it actually injured. So again, going back to the same analogy about a car accident.

So you tell the insurance company I got in a car accident, you take it to a mechanic. Now the mechanic lists out the items that are wrong with you so that they can submit to the insurance company, for. Authorization for treatment. Yeah. If you don't submit the correct list of items, let's say you injured your shoulder and you thought, ah, my hand hurts a little bit, but it doesn't bother me that much, and you don't mention it to your physician on the first visit and you decide to talk about six months later, just like a car accident, you don't talk about something wrong with the car six months later.

It's hard for that portion of the claim to go through.

[00:09:13] Dr. Chehab: Yeah. Okay. And, and, and so then let's say a physician needs to. Get studies, MRIs or X-rays or CT scans or things that might happen subsequent to that initial visit, um, I assume workers' compensation has to approve that.

[00:09:29] Dr. Chen: Correct. So the difference between workman's compensation, , and a private insurance is, , an added layer of causality.

So usually when you see a doctor on your private insurance, all the insurance Inc. Insurance company cares about is that the test is medically appropriate Yeah. For that treatment. When you see, uh, a doctor under workman's compensation, the workman's compensation wants to determine that only is it medically necessary.

But they also wanna make sure that the reason why you're getting the test is related to the accident so that the test is under additional scrutiny. And so there is theoretically and, uh, slightly higher chance it can get rejected because if the insurance company doesn't think it is related to the work injury, they're not going to approve it.

Okay. So

[00:10:12] Dr. Chehab: that, that, that does add an, add a layer of complexity. Of getting. Evaluated with the idea that it has to be tied to the injury that occurred at work. Correct. And there's pretty specific and, , oversight by the insurance company, workers' compensation insurance to make sure that not only is it medically appropriate, but that it is also accident or condition related.

Correct. Okay. So, the test is done. The, this hypothetical patient, , receives a diagnosis and, let's say that patient has limitations as a result of their injury. What is the patient? . Expected in terms of their return to work. What, what, what, how, what's the role of the physician and what's the expectation for the patient for returning to work with an injury or maybe they don't return to work?

[00:10:59] Dr. Chen: Yeah, so that is somewhat complex and, uh, the way I explain to my patients is, you know, when you have an injury at work, everybody tries to work as a team to make you better. And so both sides try to put good faith into it. And so the good faith from the insurance company is during going to authorize treatment for your injury.

The way that you show good faith is that you try to do what you can at work. And so as a patient, as a patient, as a patient, yep. As a patient. Right. And so let's say you injured your hand. And, um, maybe you can't lift more than five pounds with your right hand, but if your job says, Hey, you know, I understand your hand is injured, you can't lift more than five pounds, or only, let's say you have to lift 20, but we have this really easy job for you.

Can you just answer the phones for us? That's still useful for us, that in good faith it is expected that you go back to work and try and do that. Now, if you go back to work and your job tries to make you do too much. They don't follow those restrictions or even within those restrictions, you have a large problem, then it is reasonable to take you off work again.

But the good faith is that the patient tries to work.

[00:11:56] Dr. Chehab: Right. So, so, so these restrictions are being set assumed by the physician and that's the work status. Correct? Correct. So a patient could expect to leave a workers' compensation. Once they have the diagnosis and evaluation with a certain set of restrictions, , due to the injury.

Correct. And , like you mentioned, , they may be able to, , return to work with, Restricted activity and if the employer is able to accommodate that, then then back to work, they go and collecting a full salary presumably. But suppose they can't. Go back. Suppose they can't, meet the duties or demands of the job or even the modified job.

What protection does the worker have in that the injured worker have in that case?

[00:12:42] Dr. Chen: So usually, uh, what I hear from the workers and , the parties involved in this is they get two-thirds of their normal paycheck. So they don't get their full pay, but they get enough pay. So they're, they can solve, roughly support their

[00:12:53] Dr. Chehab: life.

Okay. So that, that two-thirds of their normal salary is obviously. A pretty important safety net. , again, with this history of workers' compensation being involved, , if they cannot go back to work, , either in full capacity or in a modified capacity, then they will be able to still be financially supported with two-thirds of their paycheck.

That's my understanding. Yes. Okay. Yeah, mine too. So now, As someone progresses through treatment, let's take the patient who just does well. So they, they get treatment, whether it's through physical therapy or surgery or, or whatever means necessary. That's what we typically do as orthopedists. What are some of the ways that, workers can be evaluated and employers can be informed that yes, this patient is ready to return to work.

[00:13:41] Dr. Chen: Yeah, so the easiest way is just the worker tells you, Hey, I, I'm ready. I feel good. You know? Yeah, let's try and go back to work. And what I usually do is I'm like, great, you feel great. Why you go back to work? But we're gonna keep, keep your case open for a month. 'cause sometimes you don't remember everything you do at work.

We haven't tried it yet. Right? And so by having them work a month, making sure they do everything they need to do at work, if they're fine, they have no issues, then we close out the case. 'cause. They're healed. They're from some, yeah, I'm Soft. Now there are other instances where, you know, maybe they tried to go back to work, they're unable to do everything at their job, and maybe we can't do it much more medically for them to help them heal and they need potentially permanent restrictions.

Then, uh, a lot of times we send them to, for a test called a functional Capacity

[00:14:25] Dr. Chehab: Valuations. So, explain that. What, what is a functional capacity evaluation? Yeah.

[00:14:29] Dr. Chen: So when you see a physician in the office, you tell the physician, Hey, I don't think I can lift more than 10 pounds. But that's just based on, you know, what you think talking about it.

It's just like if you, you know, you see some somebody out of a gym and you say, I think I can bench 130 pounds, and the guy's like, great. I'm not sure you can, I don't, I haven't seen it, but I'll take your word for it. Uh, the difference about function of passive evaluation is you go see a physical therapist, you go into their gym and they have boxes and objects, and they just watch you over the course of many hours and see what your actual physical capabilities are.

So we call that an objective indicator of what your capabilities are rather than subjective, which is what you tell us.

[00:15:09] Dr. Chehab: And these are pretty standardized. Tests, , and tasks that patients are asked to do under the watchful eye of a trained physical therapist to produce this functional capacity evaluation, correct?

Correct. Okay. And, , suppose a patient, , is capable, , at a level that meets the demands of their job. Presumably that patient can return to work and not have too many issues. Yes. And what if they can't? So if their job demands are greater than what they're functionally capable of doing, what are, what are some of the, possible avenues after

[00:15:43] Dr. Chen: that?

Yeah. So, so we're talking about is a scenario where their job description of their job exceeds what the functional capacity evaluation shows. Is that correct? Yes. Yeah. Yeah. And so, um, there are. Options for that patient at that time. One is they, uh. Work with permanent restrictions where, , maybe the job finds 'em a different position that is acceptable to both parties and they just work in that position directly for the rest of their life as long as they're employed with the company.

The other option is to get something called vocational retraining. , and so, you know, maybe the company doesn't have a great job, or maybe they do have a different job, but the patient is not qualified to do that because of their occupational background. They were never trained to do that job. Then workman's compensation can potentially pay for training so that the patient can qualify for that job in the future.

Okay.

[00:16:32] Dr. Chehab: , I'll be perfectly honest, that's not a part of workers' compensation I was aware of, so that's really good to know. And then, if, if someone is, is. Progressing toward, recovery, not quite there has been doing physical therapy. , what's the notion of work conditioning? What is, can you explain work conditioning?

Yeah. So

[00:16:49] Dr. Chen: work conditioning is, um, basically a work simulation. And so, , the job gets, so the physical therapist gets a description from your job about what you do, and they try to simulate in a gym and it's not a perfect environment. And so, , there's. Sometimes a disconnect between your job description, what a worker actually does.

Yeah. Sometimes do more. Sometimes do less. Yeah. And it doesn't necessarily realistically estimate the frequency of it. Yeah. You know, so some workers when they, , do a heavy manual labor job, maybe they'll have to lift something super heavy like once an hour. Uh, and work conditioning sometimes makes you do it constantly.

But usually what happens at work conditioning is you go to work conditioning with a physical therapist for four hours a day, five days a week. You are working out in a gym. Yeah. And so it's meant to make you stronger, make meant to have a basically supervised work to make sure you don't injure yourself to make sure you're getting stronger.

Yeah.

[00:17:44] Dr. Chehab: I will sometimes. Tell patients you might be working harder and work conditioning than you work at

[00:17:49] Dr. Chen: work. Correct. And that, that's why I tell a lot of my patients I'm, I was like, I always tell people, you know, I would rather have you try and go back and do your normal job rather than do work conditioning.

'cause Yeah, like you said, work conditioning is sometimes harder than your job. Yeah. Yeah.

[00:18:03] Dr. Chehab: Right. But, but it, it is a useful form of therapy that is applicable to some patients who may be on the cusp of meeting the demands of their job and aren't quite there, and it might sort of put them over the top to be able to return 'em to work.

Correct. Okay. , and then something also very specific to the world of, of workers' compensation is the idea of an IME or an independent medical evaluation. So what's the utility of an independent medical evaluation? , just explain that, that process.

[00:18:34] Dr. Chen: Sure. So the independent medical evaluation is most often ordered by the insurance company, and so they order because they ask specific questions about a case.

And so the insurance company side is usually run by a person called an adjuster who looks at your claim, the adjuster. Usually it doesn't have a strong medical background. They don't have the credentials to change their medical treatment and, but they have some questions about their case. Maybe they're not happy with the surgery that's recommended.

Maybe they're not sure it's related to the injury. Maybe they're not happy with the time you've been off and not a therapy you've received, but because they're not a trained medical professional, they can't tell the you or they can't tell the doctor not to do those things. So. They send you to see another doctor who, , examines you, listens to your history.

They send the other doctor all of your medical records, and then they have a list of questions that they want the doctor to answer. A lot of the questions are about the causality of the case, the importance of the treatment, whether surgery should be done, and then what the current work restrictions should be.

And with that document, then the insurance company can potentially make different recommendations about your care.

[00:19:36] Dr. Chehab: Okay, so, so the independent medical evaluation is a tool that's used. For by the insurer to evaluate the appropriateness of care up to that point and maybe make recommendations that may be perfectly in line with the treating physician up to that point or may, may diverge from the recommendations of the treating physician up to that point.

Correct. Okay. So. When all goes well, for a workers' compensation patient, they have their injury at work. They have their treatment, their care is covered. If they're out of work, their income is insured at two-thirds. They recover completely from their injury and they return to work. Correct. Yeah. But what about that, that patient who, , is injured, has the care and despite all the appropriate care, , as evaluated by both sides, just doesn't, has an injury that's significant enough that can't return them to their work and they don't have any other vocational paths.

 Are there. Settlements. Are there, ways to sort of make that patient

[00:20:37] Dr. Chen: whole? Yeah. So we, as a physician, I do hear about settlements. , I'm never really involved heavily in that process. Right. , but that's a negotiation between the insurance company and the patient. Sometimes the patient gets an attorney to help negotiate that, but there are potential settlements at the end.

[00:20:53] Dr. Chehab: Okay. And, and we as the physician play our role in workers' compensation. Claims and, and, and helping workers who've been injured. Who are some of the other players? You mentioned the adjuster, you mentioned the possibility of, of a lawyer, but, um, who are the typical players outside of physicians who would help patients with a worker's compensation injury?

[00:21:17] Dr. Chen: Yeah, so another part of that we have not mentioned is a nurse case manager. So a nurse case manager, uh, is sometimes confused by the patient as being employed by an insurance company, and that's not completely true. The nurse case manager is basically somebody who helps grease the wheels of the case.

And so in my experience, a lot of times it's very difficult to communicate with the adjuster. They're very busy people. They deal with a lot of claims, and the adjuster also doesn't really know the physician that well. The nurse case manager is at intermediary, the bridge between those two parties. , and usually, , the nurse case manager has a relationship.

The adjuster or the adjuster trusts the nurse case manager, so nurse case managers can tell the adjuster, Hey, listen, I went to this appointment with this patient. I saw the doctor. The doctor's a good guy. The recommendation seem to be solid. I recommend that you approve treatment quickly so that the case does not stall, and so I always encourage my patients to work with a nurse case manager.

They can really help you. They can really expedite your treatment and your case and make things work. Is every

[00:22:14] Dr. Chehab: patient assigned a case manager? No. Okay, so what circumstances Is there a case manager? Are you,

[00:22:21] Dr. Chen: you know, I'm not as aware of which cases get assigned or case manager or not. I know sometimes I think it's dependent on the adjuster, the insurance company.

Mm-Hmm. I think sometimes if the adjuster has some questions about the case where they're not quite right for an IME yet, but they have some questions about the case, then they send a nurse case manager to kind of sit in on the visit, make sure that a good physical examination is being done, a good conversation with the patient is being done.

To kind of verify the quality of the care. Okay.

[00:22:48] Dr. Chehab: So, again, the purpose of this is just to help the injured worker. Have an idea of what's ahead with workers' compensation insurance, and we've covered the notion that it is a medical insurance, with an added layer of not only medical appropriateness, but making sure that the testing or any care that's being paid for by the insurance company is connected to the accident at work.

And then we've talked about. Some of the, , safeguards for patients in terms of their income with the two-thirds, , salary. And, , we've also talked about, , patients who do well, who may get a functional capacity evaluation, or patients do well, it just simply might go back to work. Or other patients who, if there's a question about whether or not they can meet the demands of their work, can have a functional capacity evaluation to assess that, which is an objective test.

We've talked about work conditioning being a means of. Perhaps helping patients cross the finish line with pretty intensive work-simulated physical therapy. And then we also talked about the role of an independent, independent medical evaluation, which is something that the insurers may request if they have any questions about the care, the timeline of recovery, , and the ability of the patient to return to work and then some of the other.

Adjuvant players outside of the patient and the physician, which might be the nurse, case manager, the adjuster, and , you know, even a lawyer if necessary to try and settle this, on behalf of both the employer, the insurance, and the patient obviously. , are there any other topics that you would like to touch on?

, while we're talking about this very complex set of issues, again, we're trying to help the patient, , understand what they have ahead of them.

[00:24:29] Dr. Chen: So the one last topic that we can talk about is a more sensitive topic in this realm, which is when an injured worker has a workman's compensation claim, but the claim has been completely denied.

However, the worker or the patient truly believes that this is due to the injury or to do the, to do the job. To the job. Yeah. And so we call that a deny claim. And frequently, patients in this clinical scenario, , employ the use of an attorney and, . By that time, , the patient usually doesn't have any more approved treatment.

They're no longer gaining their paycheck, but again, they may feel like they have a very good case. And this is, , a very frustrating scenario for the patient because, , just like anything in our society, when things go to litigation or the attorney, things tend to drag on quite a

[00:25:14] Dr. Chehab: bit. Yeah, yeah. Okay. So, , Kevin, thank you so much for being here.

My guest today is Dr. Kevin Chen. , again, thank you for being here on Ortho form. Thank you.