Understanding phenomena associated with good outcomes
There is a substantial literature linking good outcomes and early intervention or quick return to work.[i] The reasons are easy to see in this context. Early interventions maintain the connection to the workplace that is crucial to preservation of the identity as a worker. They cut down on the amount of time available for repetition by cutting down both time away from a normal routine and beneficially impacting the anxiety that helps create the occasion for repetition of negative self-talk. The instance of negative specific messages is cut down, because people who are being attended to feel less need to subject themselves to lawyers and others who may inadvertently provide such messages.[ii]
Similarly, return to work impacts directly on the loss of work identity. It also appears to have beneficial impact on psychosocial factors, economic concerns. The resumption of routine creates a comforting sense of normalcy and emotional reactions to the sense of loss of control are also diminished.
The author has yet to encounter reliable data associating identified phenomena with good or bad outcomes in workers' compensation systems that is not easily and reasonably explained by the conceptual model outlined above. Occam's Razor therefore suggests this model's utility in understanding the impact of compensation systems, and therefore in making systemic alterations that are predicted to have beneficial impact.
Using the model to design better legislative and regulatory systems
As discussed above, repetition and negative self-talk are the primary mechanisms by which harm created through participation in compensation systems occurs. Can we design our regulatory and legislative systems better to cut down on the unnecessary harm and associated secondary psychological injury and disability? Obviously, the answer is at least a qualified "yes".
Early intervention and return to work are obvious targets for legislative/regulatory intervention. The question is not whether they should be encouraged, but how the interventions should be handled.
Timing is everything. There is a substantial research literature demonstrating that if a worker does not return to work within 12 -16 weeks, the probability of eventual return I reduced to 50% or less.[iii]
Early intervention means early, not after the claims management team has had the chance to determine causal connection between the alleged injurious accident/exposure and the alleged injury. Of necessity that limits choices to system designs that allow for limited provision of treatment and services without determination of liability, or provision of treatment and services without consideration of fault. While the latter appears to replicate the conceptual design of the New Zealand Accident Compensation Commission, it is not necessarily so limited. Provision of services by the employer to support the injured or ill worker do not require expenditures of a magnitude to require the wholesale revision of the system. Such services, whether provided directly or through a service provider should be aimed at maintaining the connection between the worker and the work place Periodic contact, starting at the earliest reasonable opportunity and designed to reinforce the employer's perception that the worker is valued may be enough. A sincere expression of the desire to have the worker return and the willingness to assist in the process add additional benefit.
Such interventions should be paired with comprehensive information, presented in terms understandable to the average worker about their rights and obligations. Such information should be a core task for the regulator. In the absence of this information, the natural tendency is to look for an external authority to provide such information. The legal profession is not shy in raising their collective hand for the role. Unfortunately, the legal profession has a long tradition of substituting the proxy of a monetary payout for the real needs of people in stress or dispute.[iv]
Return to Work
The most common legislative standard for "return to work" emphasizes that return to the same employer at the same wages as the primary goal. In most cases that describes exactly what happens, such that the mandate seems superficially reasonable. The utility of the goal becomes questionable when the circumstances of the injury are considered.
Where the is continuing impairment of physical ability is present, insistence on return to the same work carries with it the fear of re-injury, concerns about the reaction of supervisors and co-workers, and the capacity to resume the job at the level of performance necessary for personal satisfaction and/or employer expectations. While each of these fears can be addressed, absent skilled intervention currently rarely available they can become the unspoken causes of resistance.
If the injury is psychological the desire to return the worker to the same job may invoke the emotional reactions associated with the loss of control. The worker may anticipate being thrown back into the situation that originally cause the harm or may fear retaliation. Catastrophic thinking, perceived injustice, anger, frustration and grief may be invoked, causing negative reactions from the workplace, further entrenching the belief that they cannot return to that workplace.[v]
It may be better to structure the recovery of the worker around a discussion about what he or she wishes to recover to. Few people will look at an injury as the end of their productive life at the early stages of recovery. Most can be assisted in making rational and informed choices about what their future work life might look like.[vi] In the presence of such a goal, the worker feels a return of the sense of control, and evidence from medicine[vii] strongly suggests that better outcomes can be anticipated. Development of "recovery plans" that are intended to share some control of the rehabilitation process is being considered by the Department of Veteran's Affairs (where return to the same job is ipso facto not possible)and high performing private claims organisations. Such plans are contractual in nature, and provide for mutual commitments toward the achievement of a goal for rehabilitation agreed to by the relevant parties.
Dispute resolution is a fruitful ground for rethinking scheme design. As noted above, the involvement of the legal profession in a claim is a strong predictor for a poor outcome. Lawyers may inadvertently or intentionally provide specific negative messages and work in a system that is inherently technical and obscure, requiring transference of personal control from the injured person to their representative. There are three possible mechanisms for avoiding this result without denying vulnerable people their right to recover under the law.
First, where the law is seen as complex, it is possible to simplify it to make the rights and obligations of all parties clear to all but the most vulnerable or compromised workers. Most legislative systems grow without a plan resulting in legislation that is complex, that requires reference to multiple acts and amendments, or that is couched in legal terminology that is not understandable without translation into common usage.[viii] One possible reaction to this complexity is to assume that lawyers are necessary in the system[ix]. Another possibility is the conscious reform of the system to improve the usability by the average citizen without additional help (or to provide that assistance as a publically funded benefit)[x]. The benefit of this approach is that many "disputes" that are caused primarily by misunderstanding or misinformation can be avoided or resolved informally.[xi]
Second, it is possible to make the process of dispute resolution simpler and more responsive to the real needs of the disputants. The genuine need of people to pay their bills whilst recovering often becomes secondary to the desire to "get justice" through an economic award. This secondary motivation can be addressed meaningfully in ways that diminish the motivation for disputation. Most people need an opportunity to be heard, to be acknowledged personally and compassionately and to get a fair resolution that they understand. Apology, when sincerely offered is often valued.[xii] That's what we wanted when we were injured on the playground, and our needs have not changed substantially except for the additional of the need for support whilst we recover. Monetary awards beyond wage replacement whilst healing are a proxy for these real human needs, and one that directs injured people into a system that delays their recovery, allowing for further entrenchment of the disability behaviour that they must demonstrate to receive the award.
Alternative dispute resolution has seen high levels of success in the US as a mechanism for reducing the complexity and increasing access to justice. The State of New Mexico routinely experiences a pre-trial resolution rate of over 90% with a mandatory mediation system that is a gatekeeper to formal litigation.[xiii] The Navajo Nation (the largest indigenous tribal grouping in the US) utilises a multi-level alternative dispute resolution mechanism that has an astoundingly high rate of resolution, has virtually eliminated formal litigation and has resulted in premium surpluses whilst achieving higher levels of return to work and more generous medical treatment and rehabilitation benefits than the majority of other systems in the US.[xiv] The key to these sorts of success is taking the desire to reduce complexity and the involvement of lawyers in the process seriously. Western Australia has also had excellent experience with informal dispute resolution.
Finally, it is possible to provide assistance to the vulnerable without subjecting them to the economic incentives created by the traditional legal system. Where remuneration for the attorney is linked to the outcome of the case, then bad things can happen. Benefits may be channelled from their intended recipients; an economic incentive for pursuit of dubious claims for their settlement value may be created; and workers with meritorious claims that have limited monetary value but substantial value to the claimant (i.e. medical treatment) may have trouble finding representation. The legislative creation of free legal assistance in such cases allows salaried specialist lawyers to develop expertise and apply it to large and small cases without impacting the benefits awarded to the claimant has been successful in addressing the needs of vulnerable people, although resourcing for the function has not always been optimal.[xv]
The unintended consequences of using economic incentives to channel worker behaviour
Most current Australian systems utilise economic incentives of various kinds to encourage desired behaviour. Given the understanding of the development of disability behaviour, there is reason to question this approach. Studies by Rand Corporation[xvi] and others demonstrate that the lifetime financial condition of a worker is never fully compensated under workers compensation. If people were rational economic creatures that reliably respond to such incentives, then the mere knowledge that they will always come out better by returning to productivity should control behaviour. Since it does not, there must be something else happening.
The use of economic incentives creates perceived economic pressure and worry, disrupts the familial unit resulting in psychosocial stress and exacerbates the perceived loss of control. Such incentives probably work best on those who are driven to desperation by the removal or threat of removal of benefits, but that same desperation may overwhelm the resistance to negative messages necessary to prevent secondary harm or the adoption of the identity of a disabled person. Moreover, the arbitrariness of such incentives (which are not generally designed to discriminate on the basis of the seriousness of the underlying injury) stimulates emotional reactions related to the loss of control, such as perceived injustice and anger.
Better approaches to incentives have been trialled successfully. Return to work "signing bonus" provisions are features that create an incentive for the worker, remove some of the economic pressure of bills that may have accumulated during recovery and act as a partial payout of the claim, reducing subsequent administration costs. Return to work "accommodation grants" for employers help overcome resistance to reemployment based upon the costs of accommodation. Similarly, subsequent injury funds have been used to protect the employer from the fear that the worker may be re-injured upon return to the workplace. Both are used to overcome employer resistance to cooperation with the return to work process.
Perhaps most exciting incentives are the "recovery plans" in use to a greater or lesser degree in some North American and Australian jurisdictions. They are designed to create a mutual commitment between the worker, the authority responsible for compensation/rehabilitation and the treating doctor. The quid pro quo nature of such agreements means that pursuit (or re-negotiation, where necessary) of them acts as an incentive for pursuit of the agreed outcome. They also increase the sense of reliance on self that is the keystone to maintenance of a healthy sense of internal control.
The benefit of incentives is increased predictability in underwriting and claims reserving. The unintended negative impact on the injured has to be weighed against the economic and societal costs of increasing the complexity of those tasks.
Legislative treatment of rehabilitation does not suggest a role that impacts positively on the injured person. Setting of expectations has proven to be a strong predictor of future outcomes[xvii]. Expectations guide self-talk and self-talk is the primary mechanism for the repetition necessary to develop facilitated neural networks supporting return to work or the opposite. At the same time, legislative and regulatory restrictions in many states prohibit rehabilitation professionals from engaging in meaningful activities such as counselling the injured person and negotiating recovery plans.[xviii]
The purpose of rehabilitation is to help the injured person "change their story". As noted above, the constant rote repetition of the details of the claim creates a script that is repeated until the underlying neural network is facilitated. After a time the story becomes the claimant's reality. The purpose of rehabilitation is to open up the possibilities of a different outcome than that which fits the script. Rehabilitation professionals that work with the Department of Veteran's Affairs are not as closely regulated, and are expected to discuss future life paths with people for whom further military service is not possible due to injury.[xix] This model may serve the needs of a compensation system that sees increasing instance of secondary psychological overlay by addressing the root causes of failure to recover as anticipated.
There is little room to doubt the health benefits of healthy work[xx] and the negative health impact of worklessness. Few workers and surprisingly few General Practitioners are aware of these concerns and it seems likely that either or both groups would respond well to public education. Despite the fact that the information has been available for several years, health benefits of work public education lags, with most regulators "developing" information for public distribution, or expecting the public to come to their website and look for it. Even where efforts are being made[xxi] the fact that worklessness is associated with significant co-morbidities including the diminution of life expectancy is not frontally addressed, as it is with smoking and other acknowledged health concerns.
The environment in which the injured person exists is full of lawyer advertising and subtle cultural suggestions encouraging disability. Knowledge is power and supports a strong sense of personal identity and control. The positive impact of well-funded and well-conceived public information programs on outcomes in injury compensation including the health benefits of work, clear information on the rights and obligations of the parties to the system and other resources that return the power of information to the injured person has not been fully tapped.
Using the model to organise more effective claims management
The impact of language used by claims managers
The same model of how people learn to be needlessly disabled informs the manner in which we can practice enlightened claims management. Most of the repetition that causes changes in the way that neurons connect occurs in the form of self-talk. Self-talk comes partly from our upbringing and childhood experiences but there is still a strong influence arising from what is happening and what is said to us during the experience of recovery. With language, one can set positive expectations (as in the use of the phrase experience of recovery "in the last sentence) or focus a person on the bleakness of his or her prospects. We can talk about "when the worker is ready to resume his or her life" instead of "if the worker returns to work".
Language can affect the perception of pain.[xxii] Language can communicate distrust, unimportance, lack of care or messages of respect and hope. Language can become a label that helps establish the identity of the person before us as a "worker ", an "injured worker", a "claimant", a "patient", a "client", a "recovering person" or something else.
Perhaps nowhere else is language so important than in talking about the medical condition of the person in the compensation system. The diagnosis becomes a label to the doctor ("the low back sprain in Room 3") the claims manager or even the worker.[xxiii] While an accurate diagnosis is treated as a necessity for many purposes in compensation systems, the danger with the words we say is that they may become an unchanging label. The patient's diagnosis should change quite quickly with the application of efficacious treatment and the failure of the diagnosis to change over time should be taken as an occasion to trigger a review of the intervention. Yet we often treat the worker's diagnosis as fixed at the moment of announcement. This message is communicated by our language and can become a positive expectation or a blocker to change. A current diagnosis has benefit - an historical diagnosis may be a life sentence.
Is light touch the right touch?
A current trend in claims management is to assess the "risk" associated with the claim and allocate claims management resources accordingly. The observation is that most claims resolve unremarkably, so that lower skilled and experienced claims managers can be utilised on "low risk" (often medical only) claims and more experienced staff with much smaller claims portfolios can be used for "high risk" and more complex claims.
There are several problems with this approach, notwithstanding the efficiencies that it promises to claims organisations.
First, the problem with assessing and labelling people as to the level of risk associated with their claim may create a "self-fulfilling prophesy". This textbook psychological phenomenon[xxiv] works by altering the perceptions of the person that hears the label. If a person is labelled "high risk" then the observer interprets the behaviour of the person accordingly and acts in subtle ways to reinforce that expectation. Since this will impact the messages perceived by the labelled person, his or her experience is changed accordingly, and the common result is for the labelled person to perform to expectations even if that was unlikely to happen otherwise.[xxv] It is entirely possible that "high risk" claimants will fulfil the expectations concerning the difficulty of their claims.
With "low risk" claimants the opposite problem occurs. In the absence of sophisticated, event-based triggers for escalation of the claims it is entirely too easy to ignore the onset of significant problems until they are sufficiently entrenched to be nearly intractable. The "low risk" patient that is overwhelmed by the experience surrounding the injury and develops secondary psychological overlay is likely to be missed until the new condition has been recognised and diagnosed as an additional issue. In some cases, the worker simply fails to thrive, and stays on the books, inexplicably failing to heal as expected.
Some will say that they have deal with that concern is dealt with by periodic file reviews. The approach lacks sufficient applicability and precisions to be helpful. A review at 26 weeks will be too late to disclose problems in the healing of a simple fracture that has a physiological healing time of 7-8 weeks. It will be too soon for recovery from many invasive surgeries. More concerning is that the repetition to facilitate a neural network takes about 12 weeks, which is also the period of time necessary to reduce the likelihood of return to work to less than 50-50. Inherently, periodic reviews are blunt instruments that presume regularities in claimant behaviour that are not based in evidence.
Distrust and positive expectations
A reasonable interpretation of the regulatory prescriptiveness often found in Australian workers' compensation systems (and the single minded focus on cost control in American workers' compensation generally) is that the systems are designed around a perceived need to control claimants and service providers. To that extent, it seems fair to say that our compensation systems are based in distrust. This message is communicated to claimants in a variety of subtle and unsubtle ways. The normal human condition is to respond to distrust in kind, and the cycle of distrust is amplified as the behaviour of claimants verifies the assumptions of claims managers. Reciprocated distrust establishes an "us against them" internal dialogue in injured people creating perceptual filters that reinforce the distrust, cause emotional reactions to the loss of control and creates an atmosphere where the claimant's very fabric of reality is challenged.[xxvi]
The opposite of distrust in claims situations is respect. If the claims organisation respects the individual, who is going through a very challenging period of their life, then the respect is also likely to be reciprocated. The assumption that an injured person is capable of making decisions about the course of this or her recovery, if they are provided with the appropriate information, is likely to verified either through the surprising competence of most people to manage their lives or at least through self-fulfilling prophesy. Setting positive expectations establishes the claims manager as a helpful person in the recovery process rather than impediment to be out-manoeuvred. The feeling of being reasonably in control of the recovery is a tonic of significant value in preventing secondary psychological overlay.
Dealing with those whose sense of control is already compromised – long-tail claims
Long tail claims are the least likely to have a positive or satisfying resolution. Once a facilitated neural network is established then it is reinforced both by claimant behaviour that reinforces the way others perceive and deal with the person and by the perceptual filters utilised by the person to judge the actions of the rest of the world.
These facilitated neural networks are as hard to break as any other well-established habit. The best intentions of someone committed to breaking the pattern are sometimes ineffective and the awareness that there is a maladaptive pattern at work is often lacking.
The breaking of established patterns requires exposure of critical connections between thoughts, emotions, beliefs and sometimes physical sensations. As in the breaking of habits, the process of breaking the old neural network must be accompanied by something to replace it. A new paradigm must be introduced and reinforced sufficiently to recycle the old neural connections into the new pattern. Techniques that have been shown effective include cognitive behavioural therapy[xxvii]and hypnosis[xxviii] . It is significantly easier to prevent the harm before it becomes entrenched in a facilitated neural network.
The opposite of needless disability
"Resilience" is a word for the opposite of disability. It has been characterised as the ability to avoid the effects of the experiences of injury in a way that allows the injured person to "bounce back". The trouble is that the word has not been well-defined and no operational mechanism for resilience or the behavioural differences between resilient people[xxix] has been identified.
Although it goes beyond the scope of this paper, the author has elsewhere suggested that the mechanism for resilience is the ability to change, modulate or quiet self-talk that would otherwise cause repetition leading to the formation of an adverse facilitated neural network. [xxx]The various "styles" of resilience correspond to the different observed behaviour patterns and describe discreet skill sets. It is possible to quantify an individual's resilience skills, identify the primary or preferred style and build up skills supporting other styles for utilisation when the primary style is overwhelmed. In that manner, a neuroplastic theory of disability not only subsumes the available research on predictors of good and bad outcomes, but also yields a new understanding of human behaviour allowing meaningful intervention.
We have a choice. We can continue to run compensation systems on a set of assumptions that does not account for observed behaviour, or we can shift to a new paradigm. The old view has failed to account for, or deal effectively with, psychological injury, unexplained failure to recover as expected, secondary psychological injury or the unnecessary adoption of the persona of a disabled person.
The new view, based upon how we learn and process information, subsumes the available research on outcome prediction, offers practical guidance to legislative, regulatory and injury management strategies and offers an entirely new and more useful way of understanding an important observed human behaviour.
The toll on injured people, some of whom are unnecessarily thrown onto the scrapheap of life, demands that we consider our choice carefully.
About The Author
Robert Aurbach spent 15 years as the chief legal counsel and policy development officer for the New Mexico Workers' Compensation Administration. During the last 10 years, he has assisted ten governmental entities in North America and Australia in reviewing and revising their workers' compensation systems. Rob has published more than 50 articles and book chapters and speaks internationally on rehabilitation, injury management and personal injury system design. His current focus is on understanding the development and prevention of secondary psychological overlay and other factors that prevent some people from recovering from physical and psychological injury as expected, and the practical application of those principles to compensation system design and claims management.
Footnotes and References
[i] See, e.g. Iles RA, et. al. (2012)
[ii] See, e.g. Cotti, T. et. al. (2004).
[iii] Benyahya,R. et al (2004);Bouter, LM., et al (2006); Bruns, D & Disorbrio, JM (2009); Hay,E et al (2008); Kinicki,AJ et al (2005); Main, CJ et al (2007); Stewart, JM, (2001)
[iv] R. Aurbach (2013), supra.
[v] In either case, there is a marked tendency of General Practitioners siding with a fearful worker in anticipating difficulties and extending time out of work through medical certificates.
[vi] Of the possible candidates for this role, rehabilitation professionals are not often authorised to conduct this sort of "counselling" work and case managers seldom have sufficient control over claim portfolio size to take the time. Legislative or regulatory changes in this regard might be considered.
[vii] There is a strong literature on the beneficial outcome of having an informed patient participate in decisions about their health care. See, e.g. WS Suh and CK Lee, ( 2010).
[viii] See, e.g. P. Hanks, (2012).
[ix] Public discussion suggests that his is to be the direction taken in NSW with regard to proposed reforms to the 2012 benefit legislation.
[x]See, eg, The Cain Review of Comcare Cases, Senate Estimates Briefing 24-27 May 2014.
[xi]Several U.S jurisdictions have services that are designed to resolve disputes before litigation is begun. New Mexico and Texas are examples. In such systems, resolution rates of over 60% have been routinely achieved, by recognising that the bulk of disputes are the result of correctable miscommunication or misinformation. The WorkCover Independent Review Office in NSW provides a similar service, with similar results.
[xiii] New Mexico Workers' Compensation Administration 2014 Annual Report, p 45.
[xiv] Testimony before the Navajo Tribal Council, January 2013.
[xv] Examples include the State of Nevada and WorkCover Independent Review Office
[xvi] See, e.g. R. Reville, et al(2001).
[xvii] See, e.g. R Iles, et al(2009).
[xviii] The Australian Department of Veteran's Affairs Psychosocial Rehabilitation program is a notable exception.
[xix] Workshop discussions occurring on 29-30 May, 2015, Brisbane.
[xx] Australasian Faculty of Occupational and Environmental Medicine, Realising the Health Benefits of Work, October 2011, http://www.maic.qld.gov.au/forms-publications-stats/pdfs/realising-the-health-benefits-of-work-position-statement.pdf
[xxi] For instance, the Victorian WorkCover Authority has occasional advertisements encouraging return to work.
[xxii] A Khousla, et al, (2010)
[xxiii] I once had the confronting experience of introducing myself to a worker who responded by giving me his diagnosis instead of a name.
[xxiv] Tauber R, (1997)
[xxv] In a classic experiment, a teacher was told that some of his equal performing students were gifted while others were challenged. By the end of the term, the students performed to their labels despite (or perhaps because of) the teacher's desire to give them what they needed by way of help.
[xxvi] McKenzie-Ferguson, supra.
[xxvii] M Copeland( 2009), supra.
[xxviii] M Ellner and Aurbach, R (2009)
[xxix] The entrepreneur who can always make another fortune doesn't look like the single mum studying whilst holding down two jobs. Neither looks like the eternal optimist or the Zen master.
[xxx] R. Aurbach, (2015b).
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