Making Workers’ Comp Work Conference – March 2010 – San Francisco, CA

Frank J. Lucchetti, Ed.D.

RETURNING HUMANITY TO THE CALIFORNIA WORKERS’ COMPENSATION SYSTEM

           An injury is one in which a person gets a physical trauma, or even psychological trauma.  After some rehabilitation and medical treatment, the person is recovered. After recovery an employee is able to fully function as he was prior to the injury.  If the injury is such that the person does not recover, an example is loss of limbs, or an injury which requires a medical procedure such as fusion or replacement, then the individual is going to have a permanent disability which requires a certain percentage of whole person impairment and a award based on an arbitrary scale which has been used almost a century. The ultimate question is, “is this employee going to be able to continue to function in the job which he was hired.”

           If we look at disability as being permanent then we have to begin to discuss what effect this disability has for an individual.  It is my belief that we all have disabilities.  The reality is that some of us understand that we are not the best golfers, fisherman, skydivers, or even maybe the best public speakers.  We have an acknowledgment of where our weaknesses are.  When a person has an industrial injury, they have an accumulation of new disabilities.  Some individuals are able to make an adjustment and are able to incorporate the new disability with their pre-existing limitations.  If they are able to do that well then the person becomes better functioning.  Many individuals after a new disability, decompensate to the point of where they are not functioning at any level and are highly dysfunctional.  These are the individuals that we are all most concerned with.  This is why we are at this conference.  These individuals are the ones who are the drain on the system, as well as in our society, because they are dysfunctional. 

           A disability or injury can either make a person stronger or in fact weaker.  In most cases, the ones that we are most involved with are individuals whose  self-esteem crumbles as a result of a new physical or emotional disability.  Their lowered self-esteem then affects their role in all parts of their life.  When an individual has an injury the effect on how it interplays with all the other members of one’s life is important.  If the individual can be a positive effect on the others then we have a functional recovery, but in most cases it is not functional, but rather dysfunctional.  The role of a disabled injured worker has a negative effect on all. 

           When a person becomes injured they have a change in their personal identity.  The life of a policeman or a fireman, who for twenty five or thirty years has been involved in his craft and has personal friends as well as familiar friends, once an individual is not able to perform as a fireman or policeman, then that individual’s identity is negatively impacted.  That individual must interact with the people in a different way.  Many individuals who are severely disabled have difficulty finding employment or re-employment.  Many employers, once an employee is severely disabled can no longer maintain the employment status.  The individual must find alternative or new employment in order to function and be happy.  The monetary reimbursement for their work is no longer the same as it was before they became physically injured.  What happens to people in our society now, whether it is due to a disability or as part of down-sizing restructuring, has become a standard in employment today.  When an individual loses their job either, through disability or reduction in force, they must become entrepreneurial and as part of their entrepreneurial spirit learn to be self-employed, or employed in the manner that they provide services in a limited and manageable manner.  A person must have some form of self-fulfillment in a hobby or interest, or skills that they are good at that can be turned into a marketable productive services which others find necessary and are willing to compensate them.

           Recovery from disability involves a team approach.  Most beneficial recovery and quickest form of recovery is one which has a supportive environment which includes the injured worker, the treating doctors, the insurance company, the lawyers and representatives from insurance companies as well as re-employment agencies.  If a team approach can be established and all of the individuals are supportive in meeting the goals of re-employment for the injured worker, then a return to active and productive status is highly effective and immediate.  This is where my topic of “Returning Humanity to the Worker’s Compensation System” is important.  We agree that a healthy individual who feels that he is in control of his destiny and his life, will help return the Worker’s Compensation system as a functional system.  If a system supports dysfunctional individuals then the system is dysfunctional.  In all cases where a person becomes significantly disabled a mental health person with the understanding of the psychological factors as well as the medical/legal factors that are involved in this system is an important and integral part in the successful rehabilitation of an injured worker. 

           A mental health provider can help an injured worker regain a positive affirmation about themselves and who they are, and set some goals for themselves and their future.  Most workers who have an injury and go through the Workers’ Compensation System come out feeling like a victim.  That is an individual who doesn’t feel empowered and who feels that no matter what he does they won’t be successful.  Having an individual be a victim is not good for anyone. 

           A mental health person can help control and manage pain.  Obviously, without a brain you don’t have pain.  A fundamental concept is that if an individual’s way of thinking and reacting to discomfort can be improved or helped, then the individual will have less requirements for opiates, muscle relaxants, anti-depressants, anti-anxiety medications, and sleep medications.  All of these medications makes it difficult to be at your best as a human being. 

           The other strategy is that a mental health person can help with understanding the need for medical treatment and the various medical sub-specialties.  Most people do not understand the different medical specialties.  Examples are neurologists, orthopedists, internists, cardiologists, psychiatrists – all of these titles are confusing to an individual who doesn’t have the medical sophistication and understanding of the different specialties.  In addition, when doctors discuss medical treatment and or medication, they often do that in a very quick and abrupt manner.  As we realize surgeons do not have the best communication skills.  That’s not what we pay them to do, communicate, we pay them to do surgery.  They are highly paid and effective technicians.  As far as helping an injured worker feel comfortable and understanding of what any procedure is going to do for them, or what the medication is going to accomplish is difficult.  Most often the patient just goes along, often feeling like a victim and not understanding what the course of treatment will be. 

           A mental health provider can help an injured worker remain functional and deal with the stresses of everyday life, such as financial issues, inter-relationships, daily routines and activities.  All of which are highly impacted by an injury, especially a disabling one, especially when a person is in recovery either from surgery or from a crippling injury.  Helping an individual to manage life stresses which naturally occur and are part of living in a society such as ours is an important role for a mental health professional.

           Helping an individual regain ego strength and having a better self-esteem is necessary.  Ego is having to deal with self and one’s opinion of self.  For an individual to one day become disabled, not be able to provide for themselves, and their families, their sense of worth is diminished as well as their sense of purpose in life.  There is no reasons for an individual to live and to prosper if they don’t believe they are going to improve or do better in life.  Such is the case for all humans and definitely an important factor for an injured worker.  When a person becomes disabled or injured their relationships suffer, both personal relationships and business relationships.  There must be changes in the types of activities as well as the adjustments in how a disabled injured worker participates in such activities.  It is important for all of us to understand that humans have a hard time with change.  We all are creatures of habit.  When we are asked to change or do things we are not accustomed to doing we become stressed and anxious.  This is a normal part of human change.  When you combine that with a disability as well as post-surgical conditions, you can understand why many injured workers have difficulties in making the necessary adjustments and changes to become productive.

           From a psychologist’s point of view, we need to manage pain. We have two known ways to manage pain.  One is to medicate and use pharmaceuticals.  The other is lifestyle changes which can minimize the level of pain.  It is common to see medical doctors who are trained anesthesiologists use a cornucopia of medications from narcotics, to muscle relaxants, to sleep medications, to anti-depressants, to high blood pressure medication, all of which are intended to help stabilize an individual’s mental and physical conditioning.  Every action has a reaction, which is a law of science.  When an individual takes a medication there are side effects.  Many medications which are necessary to lower pain are strong medications and have a great effect on mental acuity and functioning.  Not only do they effect the cerebral frontal cortex which involves judgment and memory, but they also effect the limbic part of the brain, which has to do with emotion.  As such, individuals who are in pain have emotional flare-ups which are caused not just by the pain, but also from side effects of the pharmaceuticals.  Additionally, pain can be minimized by medical procedures, such as fusion, such as arthroscopic surgeries, and of course injections.  These are common medical accepted standards for relieving the most critical and crippling forms of pain. 

           Surgeons perform procedures which are necessary to allow the person to function.  These can include prosthesis, replacement of arthritic, or destroyed bones, muscles and tissues.  Surgeries can replace parts which are no longer functioning such as hearts, kidneys, and even faces.  We have not yet perfected a brain transplant, but possibly in the future that is going to happen as well.  These are all ways that Western medical science has used to help improve the human condition.  We have what is considered alternative medicine – those include things such as acupuncture, physical therapy, massage, hydrotherapy, chiropractic care, meditation, and hypnosis.  These when appropriately used can provide significant lifestyle improvements and changes which allows an individual to be productive.  If we use a scale of 0 – 10, where 0 is no pain and 10 is the most intense pain that one can imagine, human beings can survive and be able to function with pain levels and 1 – 3.  Between 3 and 7 it is difficult to concentrate, to not have emotional distress and physical energy.  When an individual’s pain is an 8 or a 9 functioning at any level is impossible. 

           One factor that is important to understand in managing pain is that a lifestyle change is often required.  If pain is an everyday factor for an individual then doing different activities, limiting activities or pacing the type of activities that one does can be significantly helpful in improving the level of pain that one suffers. When all of these factors are used in combination then the individual can thrive and be a happy and productive person. 

          What happened in 2009 regarding accommodation and return to work was that in the area of disability discrimination the ADA, Federal Test was strict, and the FEHA State test was broad.   The ADA was directed not to discriminate, that there be reasonable accommodations made, and that there be no retaliation.  Likewise for FEHA, with the additional requirements to prevent discrimination, and to engage in good faith interactive processes.

 Questions that need to be asked are:

Is there a disability and how is it measured (Injury AOE COE/Medical certification)

When does the good faith interactive process start?  (Effect of termination or other adverse action under L.C. sec. 132a)

What is a reasonable accommodation?  (Effect on PD, failure to process claim timely, potential 132a)

 2009 Developments in the area of ADA amended, GINA, FMLA Regs amended regarding medical certification, notice, comparison at Http://www.fehc.ca.gov/pdf/FMLA-CFRARegsTable-2.pdf

 ADA AMENDED (ADAAA) includes ignored disabilities and disability in remission, expanded definition of major life activities, deletes mitigating measures other than ordinary eyeglasses/contacts, and required EEOC to revise definition of “substantially” limits

http://www.fehc.ca.gov/pdf/ADA-ADAAA-FEHA_Table-2.pdf

When a medical certification issue is involved in an injured employee’s return to work the amended FMLA Regulations allow the employer to contact the medical provider (not supervisor), the employer can designate what info is needed from the doctor, and may ask the doctor to review the job description.  The employee must follow employer’s regular notice procedures.

 Can an employer reject the treating physician’s opinion?  What is the difference between work comp and disability discrimination? Under comp law, there is no discrimination as long as all disabled individuals get evaluated under the same circumstances. Under ADA, separate evaluation may be medical examination and must be narrowly tailored to job duties – consistent with business necessity

 There is no discrimination under 132a for rejecting treating physician’s opinion as long as the Risk Manager followed up with the treating doctor who admitted, there is an evaluation by AME, and an ok to return to work.  Standard under Lauher – must have different treatment based on the industrial nature of his injury, not some negative consequence as a result of an industrial injury. Gelson’s Markets, Inc., v. WCAB (2009) 179 Cal.App. 4th 201

Possible discrimination under ADA for employer required evaluation.  If Medical Examination post hire, court will carefully scrutinize and must be job related and consistent with business necessity.  Physical agility tests are not considered medical examination – just merely observations.

 Medical exam means: invasive tests, use of medical equipment, in medical setting, administered and performed by professional, whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task and finally, test could reveal impairments of physical or mental health (inquiry into history/family history).

 What is a reasonable accommodation? One must consider an employer’s failure to consider mean and possible increase in payment in Work Comp liability in court case.

Employer’s obligation to accommodate is continuing.   Once the final accommodation is determined, the employee does not have to continue to engage in a good faith interactive process.  A one time inadvertent failure to accommodate will result in liability even if the employer has a record of past accommodation.

 

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