Challenging Assumptions about Pain? It all Comes Down to Trust

Article 6 – The Attorney 

Your organization thinks it has a leadership issue.

Sales have been lagging for the past two quarters.

The latest marketing promotion has fizzled without the dramatic impact that was expected.

What’s the common denominator? 

Trust. WSJ bestselling author David Horsager believes that lack of trust is the biggest expense of any organization.

The only reason people follow a leader is trust. The only reason people buy is trust. The only way to amplify a marketing message is to increase trust in that message. After meeting David, reading two of his books, and taking his Trust Edge course through a leadership group I'm in, I must agree.

This series of articles asserts that achieving a successful outcome following workplace low back injury depends on open dialogue and communication to surface bias, challenge assumptions, and address misconceptions or knowledge gaps. Following a workplace injury, the injured worker, provider(s), payer, and employer must collaborate throughout the duration of the claim to ensure its successful resolution. For some claims, a fifth party - the attorney – is introduced. Is loss of trust a factor? The final article in this series will examine the assumptions, miscommunications, and judgments that often arise in litigated claims.

Seeds of Misinformation

Even before a low back injury occurs, seeds influencing bias and judgment may be planted. It’s become second nature for individuals to conduct quick internet searches to gather information and anticipate potential diagnoses based on their symptoms. Ironically, this search for answers can yield a great deal of misinformation. Employers and payers in workers’ compensation are aware that Search Engine Optimization (SEO), the practice that helps a website achieve a higher search priority, allow local applicant attorneys to prioritize their website on a search of typical workplace injuries such as ‘low back pain.’

Narrative on these websites is frequently written in such a way to suggest who is likely to blame for an injury. It may appeal to emotions without any factual basis. Marketing messages may play to an injured worker’s frustration or preconceptions. If this influence doesn’t occur prior to a workplace injury, it may play out after an injury. Tom Slattery, CSP, ARM, Corporate Director of Safety for Norfolk Iron & Metal, points out that an injured worker who is home from work watching daytime TV will see commercials from attorneys. Frequently, these commercials plant doubt or fear, which can contribute to mistrust of the employer.

"If that happens, we didn’t do our job" Mr. Slattery says.

Adding One More to the Mix

Despite the potential complexities of workplace low back injury, many claims are resolved satisfactorily by the injured worker, employer, and payer. Under what circumstances does this fifth party become involved? The fifth party – an attorney – may be added if the back injury is significant or the claims process is particularly complex. Family and next of kin may hire an attorney for a workplace low back injury with a fatal outcome to handle all communication and negotiation with the insurance company, for example. Many litigated claims, however, don’t fall into these categories.

Research by the Workers Compensation Research Institute (WCRI) indicates that employees who fear losing their job or don’t understand the claims process following workplace injury are far more likely to seek legal representation.¹ Julio E. Martinez, Esq. is an accomplished defense attorney, managing partner with Gilson Daub in the San Clemente, CA office, and Board Member of Hispanic Insurance & Risk Management Association. Based on his experience, Mr. Martinez observes that a breakdown with any of the three parties supporting an injured worker often leads the employee to seek legal representation: 

• The employer (boss or supervisor)
• The provider (referring physician, surgeon, or physical therapist)
• The payer (claims adjuster with an insurance company or third-party administrator)

Mr. Martinez has seen typical scenarios emerge from his professional experiences.

The Employer

Mr. Martinez says the most common assumption or misconception made by a boss or supervisor is that the injured worker isn’t telling the truth.

"When an employee reports an injury to a supervisor, they will many times make a judgment that the injured worker is malingering or exaggerating. I’ve heard it multiple times. The boss or supervisor will tell me, ‘That person was a horrible worker anyway.’ But the injury was witnessed, I’ll counter. What does the person’s job performance have to do with it? How is that judgment relevant?" Mr. Martinez says.

Mr. Martinez recognizes the power of judgment and its enormous potential impact.

"Empathy is necessary at the onset. It's hard, I realize. Humans instinctively want to question. But empathy is much more powerful. We’d have much less litigation if employers could recognize this," he says.

If a boss or supervisor doesn’t recognize these internal judgments and assumptions, the claim is on a rocky course before it’s even formally filed. 

Another misstep Mr. Martinez sees is an employer who doesn’t follow lifting restrictions or activity limitations from the provider.

"A doctor’s professional judgment shouldn’t be overlooked," according to Mr. Martinez. "Asking an injured worker to perform job tasks that exceed the doctor’s advice is an easy target for litigation."

Amy Garrett, PT, DPT, physical therapist at Nebraska Spine & Pain and recognized expert in spinal workplace injuries, shares this same observation, "Being asked to work at a level higher than their work restriction is a common trigger for hiring an attorney. In fact, I see it a lot."

Dr. Doug Burton, MD, a nationally recognized spine surgeon and Professor & Chair of Orthopedic Surgery at the University of Kansas Medical Center, commented, "Usually by the time they see the attorney, the trust between the injured worker and employer is gone. This lessens the chance for a good medical outcome. After an injured worker has been out of work for 1 year, less than 1% will go back to work. Only 5% will go back to work if given support."

Dr. Garrett has encountered patients who've hired an attorney due to failings they’ve perceived in how their boss/employer is handling the claim.

"I think the biggest frustration is lack of communication," says Dr. Garrett. "It seems that sometimes the patient becomes a case manager, carrying information between the medical staff and their employer."

The Provider 

Successfully managing the medical aspects of a workplace low back injury – making a diagnosis, ordering diagnostic tests, performing surgery, and coordinating treatment – isn’t the only task for a provider. Equally important is taking the time to explain, educate, and listen.

"This is someone’s job. Their livelihood. They’re counting on the doctor to offer an explanation," Mr. Martinez says.

Given that everyone’s case is unique, a healthcare provider has a unique responsibility to interpret the mechanism of injury, signs and symptoms, imaging results, or other medical findings for an injured worker.

"Take time to answer questions," Mr. Martinez urges. 

Another issue Mr. Martinez has observed occurs when multiple body parts are injured. He recently handled an admitted claim that should have been rather straightforward.

"It was a witnessed fall that included a video of the incident. The main injury was to the back, but the wrist was also injured. I took a deposition for an injured worker who was visibly upset. This man was seen for a Qualified Medical Examination (QME). The doctor hadn’t included the wrist as an authorized body part. The report only mentioned injuries to the back. After this employee read the QME report, he hired an attorney. Didn’t the QME physician realize what would happen?" Mr. Martinez laments. "It’s not uncommon that other body parts are injured with a low back injury. Your reporting needs to be accurate."

Mr. Martinez says wistfully, "One of my goals – in addition to my daily work – is to share what I’ve learned with doctors. See your patient from the perspective of a claim. No one else has your medical expertise. Consider how important your role is. Your reporting needs to be accurate. It’s worthless otherwise. If you read that two body parts are accepted, but another body part is legitimately injured, put that in your report."

He recalls an injured worker sharing with him, "That body part was overlooked, so I hired an attorney." Even if the complaints are minimal and there’s no permanent disability, report your findings.

"Be complete," implores Mr. Martinez. 

The Payer

There are several potential lapses in judgment or misunderstandings by a payer that may prompt an injured worker to hire an attorney.

"An easy one: lack of communication from the claims adjuster," Mr. Martinez says.

A close second?

"A denial from UR (utilization review). If an injured worker receives a formal letter indicating a UR denial, many times it’s assumed by the injured worker that medical care has ended or there’s no option for reconsideration," Mr. Martinez advises.

An injured worker is likely to make assumptions or draw inaccurate conclusions if there isn’t immediate communication from a claims adjuster or nurse case manager to explain next steps or alternatives. 

Mr. Martinez identified several UR decisions that resulted in litigation based on his review of medical records.

"For one case, an MRI took 4 months to get approved. Why?" Mr. Martinez asks.

Are criteria for medical necessity of imaging written to leave no room for interpretation?

"If an AME or QME will ultimately approve that MRI, why introduce a four-month delay to medical treatment or add additional expense to the claim?" Mr. Martinez says.

Mr. Martinez shared an example of a claim handled well. He reviewed a California claim: a pro per settlement. The unrepresented injured worker had sustained an injury to the neck, and the claims adjuster asked the primary treating physician (PTP) to leave future medical care open. Surgery was discussed, but it wasn’t medically indicated at the present time, and it wasn’t prudent to add surgical expenses to the claim settlement. By leaving medical care open, the injured worker would have the option for a physical therapy session or two, if needed, or re-evaluation by the physician.

"Little things add up," Martinez says. "This recommendation from the claims adjuster put the claim on course to be settled in a timely manner without adding extra expense and resulted in a very satisfied employee."

Summary 

Achieving a successful outcome following workplace low back injury depends on open dialogue and communication to surface biases, challenge assumptions, and address misconceptions or knowledge gaps. This series of articles has examined the perspective of each of the parties involved – the injured worker, the provider(s), the employer, the payer - and, for some claims, the attorney. When trust is broken or communication is ineffective or absent between the injured worker and the provider, employer, or payer, this fifth party is introduced. By addressing judgment, assumptions, and seeds of mistrust, the provider(s), employer, and payer can navigate potential roadblocks for a favorable result. 

References 

1. Workers Compensation Research Institute. Avoiding Litigation: What Can Employers, Insurers, and State Workers’ Compensation Agencies Do? WCRI Report WC-10-18. July 2010. 

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