Article 1: Employers, Advocacy Groups, and the ADA
Article 2: Workplace Disability Definitions
Article 3: Disability Management & The Disability Prone Employee
Article 4: 10 Tips for Disability Management
Article 5: The Different Responsibilities of National & Community-Based Advocacy Groups

Employers, Advocacy Groups, and the ADA

By Jasen M. Walker, Ed.D., C.R.C., C.C.M.

The Employer’s Perspective

Local agencies advocating for clients with disabilities have much to offer employers, and employers would do well to embrace the assistance.

The greatest value representatives of local advocacy agencies would bring to employers is expert advice on the formulation of ADA compliance programs, specifically, the creation and operation of Disability Management Programs (DMPs). Once employers have come to realize that managing their comprehensive disability programs— from safety/wellness programs through managed care for employees who have been injured—is both cost-effective and manageable, they will also realize that the expertise they need to accomplish this is available simply by invitation.

Many—if not most—well-managed companies already have DMPs in place and operating effectively. A Disability Management Program is a commitment by management to control costs and to develop and operate a system within the company that demonstrates concern for the well-being of all employees.

DMPs generally start with carefully structured safety and wellness programs, but also include immediate and extended concern and support for employees who have been disabled, manage care provided by professionals (generally nurses and counselors) trained in such activities as utilization reviews and vocational rehabilitation. DMPs are highly effective in terms of cost containment of actual medical treatment and return to work, and if they were not, well-managed companies would not be so fervent about their importance to the management system.

The minimum an employer needs to do is to assess the workplace for accessibility and to perform the generally inexpensive modifications needed to make it safe and viable for individuals with a disability. In most cases this is retro-fitting, but the ADA also has guidelines for the construction of new facilities that need to be considered.

In terms of measuring accessibility, there are no more qualified, experienced individuals than the professionals who operate disability-support agencies. Clients of these agencies, that is, individuals with disabilities, can be made available to employers by the agency to suggest corrective solutions.

It is important to note that the Code of Professional Ethics for Rehabilitation Counselors speaks to working with other agencies.  In the Code of Professional Ethics for Rehabilitation Counselors, Section E.2.a.: Consultation addresses the issue of working with other, appropriate professionals:

Rehabilitation counselors may choose to consult with professionally competent persons about the clients.  In choosing consultants, rehabilitation counselors will avoid placing the consultant in a conflict of interest situation that will preclude the consultant from being a proper party to the counselor’s efforts to help the client. If rehabilitation counselors are engaged in a work setting that compromises this consultation standard, they will consult with other professionals whenever possible to consider justifiable alternatives.

Section E.3.d. of the Code further states:

Rehabilitation counselors will attempt to secure from other specialists appropriate reports and evaluations, when such reports are essential for rehabilitation planning and/or service delivery.

Further, making adjustments to the physical facilities (in those cases where they are to serve specific individuals with a disability) can be funded in part or in whole by state agencies such as the Office of Vocational Rehabilitation, and professionals in the local agencies are likely to know about these supplemental funding sources and how to approach them for an effective outcome.

In addition to assisting employers to make accessibility surveys, local professionals can advise employers on the creation and operation of a DMP. Once an employer has made a commitment to develop a program designed to prevent and manage disability, the first step is to form a team charged with the responsibility to review current policies and to organize the new policies and procedures that will serve as the company’s position on the matter. This team should be made up of at least one staff member representing the company’s human resources department, at least one member representing immediate supervision of line-level employees, and at least one community-based disability expert.

The charge of the development team should be to:

The single most important outcome of a well-planned and effectively operating DMP (and its Advisory Team) will be the significant and constructive curtailment of the high medical costs associated with an injury or illness for which the company’s insurance provides coverage. In this respect, advocates trained in disability support can offer companies an invaluable source of expertise.

Local agencies also need to recognize that they too have a responsibility to reach out to local employers to assist them in developing quality disability-prevention and management systems. Agency professionals cannot be content to wait until they are approached for assistance. They need to:

As American business and industry move inexorably toward a serious shortage of qualified employees, it will be absolutely essential that these two entities – employers and local-advocacy groups – find each other and begin to share their common concern for full productivity. Until they do, both employers and individuals with disabilities will be working at cross purposes.

Workplace Disability Definitions: A Brief Lexicon for the Human Resources and Risk Management Professional

By Jasen M. Walker, Ed.D., C.R.C., C.C.M.

The American Medical Association’s Guide to the Evaluation of Permanent Impairment defines an impairment as "any loss or abnormality of psychological, physiological, or anatomical structure or function." Simply stated, an impairment is an alteration in an individual’s health status (i.e., injury or illness) that is assessed by medical means. An "impaired" individual is not necessarily "disabled." The difference between impairment and disability, in our opinion, is crucial.

The definition of disability proposed by the World Health Organization is "any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being, particularly in social or occupational settings." Disability in general may be thought of as the gap between what a person can do and what a person needs or wants to do. Occupational disability is the difference between what a person can do as the result of an impairment and what a particular job demands.

Impairment is the result of injury, illness, or disease that must be diagnosed or treated by a physician. In contrast, vocational disability must be determined by occupational professionals or in an occupational setting. Vocational disability can be induced or created. There are at least four ways in which vocational disability can be created.

Iatrogenic:

This term means originated with, or induced by, medical treatment. Many medical specialists involved in injured worker healthcare believe that occupational injuries must be treated conservatively, that is, with time and non-invasive modalities.

Iatrogenic disability occurs more frequently than the casual observer might suppose. Low-back surgery, for example, is well known to resolve less often in the injured-worker population. Indeed, for many years, the most renowned neurosurgeon in Philadelphia would not treat compensable back injuries surgically because of the dramatically different "success" rates in the occupationally injured versus non-occupationally impaired populations.

Iatrogenic disability need not be the result only of surgical intervention. Physician induction of disability can often result from mere suggestion. The susceptible, or all-too-vulnerable patient can hear, or think he heard, the physician say that he was "unable to work." Physicians unknowingly underestimate or consciously abuse the power invested in them by the generally naive health-care recipient. Disability induction through iatrogenic means is sometimes a function of the employer not insisting that its health-care providers stay within their disciplines and avoid making vocational decisions. Employers and employees make vocational decisions; physicians diagnose and treat disease.

Work disability is often caused by the bureaucracy that surrounds occupational injury and non-occupational disease. Organizational policies and personnel decisions often ignore the consequences of shortsighted and antiquated return-to-work practices. From "you cannot return to work until you are 100 percent" to "light duty for workers’ compensation recipients only," return-to-work programs seldom serve both employee and employer. Although the rising costs of workplace disability and the Americans with Disabilities Act led to some reevaluation of these return-to-work standards in the 1990s, the bureaugenic induction of disability remains a significant problem for most work organizations and our country at large.

Some self-insurers of both workers’ compensation and long-term disability have failed to realize that, as work organizations, they create disincentives for employees to return to work following the onset of injury or illness. With employees able to receive 75 percent of their income in wage-replacement benefits, the employer has introduced secondary gain (defined below) as a factor that the injured or ill worker would find difficult to overcome despite a strong work ethic. The Social Security Administration has recognized that most recipients of SSDI are of working age, yet few take advantage of the trial work period available to them. The widespread use of managed-care organizations in the treatment and rehabilitation of injured workers raises a legitimate question regarding the possibility that managed care adds a layer of bureaucracy to the already complex social and political system that induces disability in the workplace. Bureaucracies can foster disincentives for the employee to get well and return to work.

Representing injured or ill employees (or people pursuing economic damages through personal-injury litigation), legal advocates hope to demonstrate that their clients have lost potentials to work and earn "a living." Such an argument ensures representation that the plaintiff is disabled. To argue otherwise is a contradiction. Thus, lawyers, in their advocacy of injured employees, pursue economic recovery in personal injury, workers’ compensation, Social Security Disability, and long-term disability claims. These litigations almost always induce or encourage an argument of disability. Even the most ethical lawyers know that their clients have more to gain if they can prove economic damage secondary to vocational disability.

Psychogenic disability is the inability to work because of symptoms caused or produced by mental or psychological factors rather than organic problems. Depression, substance abuse, personality disorders, and psychosis can lead to psychogenic disability. Such "disability" is, unfortunately, often assessed by health-care professionals who legitimize symptoms manifested following the diagnosis of a disease or disorder, which is not necessarily disabling. Psychogenic disability can arise when workers report symptoms secondary to stress that they attach to a particular cause external to them, rather than taking responsibility for reducing the stress. Psychogenic disability is often precipitated by work dysfunction.

For an excellent text on psychogenic disability and its causes, see Psychiatric Disability: Clinical, Legal and Administrative Dimensions, published by the American Psychiatric Press, Inc. (1987).

When a human being is thwarted in his or her natural growth, emotional conflict and anxiety generally develop. The relief from emotional conflict and the freedom from anxiety achieved by an individual’s defense mechanisms are known as "primary gain." The primary gain of all neurotic illness is the subduing of anxiety and emotional conflict, or internal gain. Primary gain is seldom recognized as often as "secondary gain," but if we, as observers, accept the premise that organisms naturally move forward, or grow, then we can also find logic in the construct that when human beings are thwarted in their development (generally early in life), tension and anxiety naturally arise. Psychogenic illness can often result from primary gain dynamics.

Family medical practitioners know this fact best. Ulcers, skin disorders, asthma, myalgias, chronic pain, and reflex sympathetic dystrophy are primarily somatization disorders, illnesses in which the body takes over in order to relieve emotional conflict or reduce anxiety. Traditional methods of treating such illnesses nearly always fail. Surgical interventions generally make these "illnesses" worse. Unless good practitioners of occupational medicine recognize the role of primary gain in sustaining illness, treatment errors will occur, lost time will continue, and the search for medical remedies will become inordinately expensive.

Although the primary gain of neurotic illness is an internal process, "secondary gain" refers, according to the American Psychiatric Association, to external gain derived from an illness, such as personal attention and service, monetary gains, disability benefits, and release from unpleasant responsibilities. Secondary gainers are individuals who generally make no pretense about their desire to return to work. They usually go through the motions because they are required to do so to receive continued disability-related benefits. Unlike the ambivalent employee, secondary gainers are not even willing to try to find new work opportunities. They maximize the extent of work limitations resulting from a chronic condition, although many of these limitations are self-imposed or litogenically, psychogenically, and/or iatrogenically induced. Many individuals can have both primary and secondary gain features to their presentation of symptoms and claims of disability. Some of those individuals are malingering.

The American Psychiatric Association, in its Diagnostic and Statistical Manual of Mental Disorders, defines malingering as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. Under some circumstances, malingering may represent adaptive behavior, for example, feigning illness while a captive of the enemy during wartime. In the workplace, malingering is too often a ‘cooperative process’ in which two or more parties are involved." In that case, the appropriate descriptive term should be "co-malingering" (see below).

Whereas malingering is the intentional production of false or grossly exaggerated symptoms by an individual, co-malingering is the result of collaboration in keeping the injured party out of work; the injured person has found a partner, or partners, in his or her efforts to remain disabled. Surprisingly, employers are often partners in the dance of co-malingering.

Injured workers are frequently viewed as troublemakers, and supervisors are all too willing to assist in the lost-time process by refusing to return the injured employee to work, with or without some type of accommodation. Perceived as taking advantage of the compensation system, the injured employee is given messages that he or she is unwanted, and if the injured or ill employee is returned to "light duty," those work assignments are often so demeaning that the employee quickly learns that there is little or no reason to remain at work. An injured worker can find one or more other partners, including a physician, a lawyer, a spouse, or any significant other who assists the injured employee in exhausting his or her disability alternatives and compensation options by remaining out of work after the onset of an injury or illness.

With malingering and co-malingering, it is accepted that an injury or illness has occurred, and the process of staying out of work with the production of false or grossly exaggerated symptoms does not negate the fact that an injury (or illness) has occurred. In contrast, fraud is wholesale deceit of the compensation system.

Fraudulent claims are those in which an injury or illness has not occurred, or has occurred out of context—for example, a worker claims a low-back impairment at work on Monday morning in order to collect Workers’ Compensation, when in reality that injury occurred at home during the weekend. Unlike malingering or co-malingering, it is believed that fraud occurs in relatively few cases, but it certainly exists and must be handled aggressively with legal intervention.

Nearly 20 years ago, Dr. Martin Seligman developed the theory of "learned helplessness" and defined it as the motivational and behavioral deficits displayed by humans when exposed to uncontrollable circumstances. Dr. Seligman found that when non-depressed subjects were exposed to unavoidable noise or other uncontrollable circumstances in laboratory experiments, they failed to escape the noise, solve problems, or see patterns in puzzles. Seligman theorized that uncontrollable events lead to perceptual errors, behavioral deficits, and decreased motivation to move forward.

Motivation is lost when a person has learned that outcomes do not directly depend on his or her responses. Perception of control and personal power are diminished, and helplessness is eventually learned. Most workers’ compensation systems are fertile ground for the growth of injured worker helplessness. When a workers’ compensation claimant is compelled to perform a job search, when compensation checks do not always arrive on time, when health-care providers do not take time to explain their findings, medical diagnoses, and the reason for particular treatments, workers’ compensation patients begin to feel insecure and believe they have little control over the healthcare necessary to get them well. After a period of time, numerous social dynamics tend to block the claimant from regaining control of decisions critical for his or her well-being. Injured worker helplessness is a hidden, but nonetheless critical, issue in the motivation behind many workers’ compensation claims.

As technology continues to advance, job accommodation for people with disabilities becomes increasingly feasible. However, employers’ attitudes toward assisting individuals with or without accommodations, is critical in successful job accommodation. Job accommodation constitutes any action or series of actions that make it possible for a person with an impairment to attain employment, advance, train, or participate in employer activities. Job accommodations may include work-site modifications, special aids or devices, modifications of job tasks, or a change in working hours or schedules, but all accommodations involve employer willingness to interact with any employee or new hire to remove barriers to employment and full participation and concomitantly take advantage of the employee’s strengths.

The single most important thing an employer can do to control both the circumstances and the costs of a workplace injury is to implement a transition-to-work (TTW) program. A TTW program is a totally different approach to disability management than the methods used by most employers in the past. Historically, employers would either "outsource" the injured or ill employee (i.e., find him or her employment outside the organization) or provide a "light duty" situation for the employee. Unfortunately, neither of these approaches has worked.

What most well-managed companies now use in place of these failed methods is a process that "transitions" the employee from injury or illness to productivity. The reasons they do so is to reduce lost-time indemnities (by 20 to 40 percent) and to avoid having to train new hires. Returning employees to work through a TTW process provides the employee an opportunity to be productive while he or she is recovering, accelerates reintegration into the work force, helps employees feel positive about their lives, and precludes employers from becoming "disability hostages."

TTW methods are structured to be applied early in the disability duration; to involve essential staff members, specialists, and the employee working as a team to achieve an efficient return to work; and to be progressively staged events leading to full productivity.

We believe the brief lexicon above can facilitate new thinking in human-resource professionals serving as risk managers who have the power to create and install proactive DMPs. Disability cost-control is achieved in the work environments of well-managed companies through the design, implementation, and evaluation of disability management.

A DMP is an implemented commitment by the employer to not only prevent injuries and illnesses from happening, but to facilitate a return to productivity of any employee who has suffered an occupationally significant impairment, regardless of where the injury or illness occurred. The disability management program, therefore, is a planned effort by an employer to consciously create a management structure that will deal with the specifics of both preventing disabilities and managing them, when they occur, to the benefit of the employee and the employer.

Integrated Disability Management (IDM) is a process designed to improve productivity, profitability, and the health status of employees. The purpose of IDM is to combine disability management and claims administration for all injuries and illnesses, whether occupational or non-occupational in nature, and for either short- or long-term disability. For larger employers, IDM can also include the integration of the organization’s group medical issues, safety and wellness programs, and comprehensive attendance management.

A study by Watson Wyatt/WGBH found that two thirds of companies that do not integrate disability programs reported incurring annual direct disability costs of 5.4 percent of payroll, while those that did integrate reported direct costs of only 2.7 percent of payroll. In addition to covering workers’ compensation, STD, LTD, and other absence-management programs, IDM calls for a coordinated team approach for all loss-prevention programs and DMPs. Key features of IDM are that there should be a single-source, injury-reporting and claims-administration process in place, open communications with all employees on the goal of the program, a comprehensive data collection and tracking process, and a focus on returning injured or ill employees to work in the shortest appropriate time.

Caveat:

While the core competency of rehabilitation counseling is essential, so too is the requirement to abide by the standards of practice for counselors as set forth in the Code of Professional Ethics for Rehabilitation Counselors, adopted by the Commission on Rehabilitation Counselor Certification (CRCC) for its Certified Rehabilitation Counselors.  Section K of the Code deals with “resolving ethical issues,” and states:

Rehabilitation counselors are responsible for learning the Code and should seek clarification of any standard that is not understood.  Lack of knowledge or misunderstanding of an ethical responsibility will not be used as a defense against a charge of unethical conduct.

 

NOTE: CEC Associates acknowledges the creativity and work of Dr. Ken Mitchell of Acordia Workers’ Compensation Services, who introduced us to several of these concepts, including the term "co-malingering," which we credit him fully for coining. The concept of co-malingering has been truly instrumental in assisting risk managers and corporate decision-makers in better understanding how to resolve workplace disability problems.

Philosophical foundations for effective disability management must begin with language refinement that allows company policy makers to conceive of and operationalize organizational interventions for controlling lost time.

Disability Management and the Disability-Prone Employee

	awareness by senior management that prevention, health promotion, wellness, and disability management are important aspects of employee health and productivity;
	the formulation and utilization of an interdisciplinary management team;
	the identification of a leader, or "champion," who makes disability management achievable;
	great enthusiasm shown by team members for the mission of reducing disability costs;
	the integration of Employee Assistance Programs (EAPs) into overall Disability Management;
	training for management and supervisors;
	training for the company’s health-care providers;
	adoption of return-to-work programs for all employees with lost time, regardless of its cause;
	disability management as an integrated part of the work organization so that cost reduction is a natural consequence;
	data collection and evaluation as critical processes to the ongoing monitoring and tracking of savings; and
	the organization as a bellwether for other companies that wish to reduce absenteeism and improve worker productivity.

By Jasen M. Walker, Gordon Heile, and Fred Heffner

Corporate risk managers can improve the casualty insurance experience of their organizations by coordinating existing corporate strategies to focus on comprehensive disability management. According to a study by UNUM and Thomas L. Jacobs & Associates from 1992, the average company spends 8 percent of payroll on disability costs. Companies can reduce these costs by inducing interaction and collaboration between human resources, health-care benefits, employee assistance, safety, and injury treatment activities.

Several factors have helped contribute to increases in workers’ compensation claims. For example, a study conducted by the National Institute on Drug Abuse found that 30 percent of all workers’ compensation claims are associated with workplace substance abuse. And according to a 1992 report by the U.S. General Accounting Office, the average workers’ compensation claim costs $26,600. Considering these factors, the potential benefits of integrating employee-assistance programs (EAPs) and injury-management efforts become obvious.

There are ten indicators that signal the need for a comprehensive Disability Management Program (DMP). However, each company must develop specific recommendations for change in light of its unique workplace circumstances. Even though there are often operational differences between companies, most organizations are likely to benefit from DMP implementation.

There are more indicators of the need for DMPs than those listed below, but the following ten are the most important.

Therefore, those in the organization who are more in touch with the effectiveness of these programs must keep the top-level decision-makers informed about their benefits. Ideally, every organization should have someone on board who is a strong advocate of these programs, and he or she must be encouraged to develop programs that will work.

When an organization has attained a certain readiness, it can integrate existing services into a comprehensive disability-prevention/management program. A report from the Leadership Forum on Disability Management from October 1992 shows that such initiatives can result in a 30 percent reduction in disability expenditures.

This list consists of some primary indicators that signal the need for designing and implementing a proactive system to manage the antecedents and consequences of workplace disability. With the average company spending about 8 percent of its payroll on disability and associated costs, a disability-prevention/management program can be a worthwhile investment.

The Different Responsibilities of National- and Community-Based Advocacy Groups

A Commitment to Deal with the Disability Issue

Small companies need to understand that not having a Disability-Management Program (DMP)—or at the very least a strategy—is a cost factor too important to ignore. Small companies are as liable for Workers’ Compensation and medical-benefit costs as are their larger counter-part companies, and they are far less able to absorb these (continually rising) costs.

Most smaller companies need to be assisted to make a commitment to disability management. And they also need to be helped to understand the nature of the commitment. At minimum, the commitment is to:

Planning Disability-Management Programs

The role of community-based advocacy groups is to reach all employers in the area to make certain they understand the cost of not including individuals with disabilities in the company. The objectives are to identify the individuals with authority in a company and to get them committed to the process. The commitment is manifested through direct action, and community-based agencies can play an important role in the action by providing planning expertise and development of resources.

The question is, "Who in the company can obligate to the decision? And, if the person who is authorized to do so does not, what responsibility do others have?"

After the commitment, companies need to undertake the following:

Safety and Wellness Programs

Obviously, safety programs are more effective in some businesses than others. In some smaller companies, safety programs may not be needed. But where the business does warrant a safety program, disability professionals in community-based agencies can serve employers as expert consultants. Wellness programs, on the other hand, are applicable to all companies regardless of size. Wellness programs are prevention strategies designed to contain absenteeism and more extended time-loss costs due to illness/injury. Some basic issues here are quitting smoking, maintaining a general fitness level, strengthening muscles (especially back), and controlling obesity. Another serious concern for smaller companies (whether it should be classified as safety or wellness) is assisting employees to avoid situations that could lead to repetitive motion syndrome.

Presumably, community-based advocates are experts on preventive measures, as well as after-the-fact measures and, as such, should be willing to support area employers as they attempt to develop safety and wellness programs.

The return-to-work commitment includes: professionally managed care using preferred providers, utilization reviews, peer reviews, work hardening/therapy, vocational rehabilitation as appropriate, and transition duty, which is a more useful concept than "light duty".

The heart of any DMP in which cost containment is the goal, must embrace an aggressive return-to-work program. Employers need to understand this critical concept and to create the programming that, in fact, will achieve that goal. A community-based advocacy group, perhaps more so than any other entity, can help to instruct employers on this approach. A company not embracing a return-to-work program will not be doing all it can to contain disability costs.

Finding Individuals with Disabilities as New Hires

In all companies, regardless of size or the nature of the business, people create the margin of success. Well-managed companies learned a long time ago that a diverse, heterogeneous workforce will produce better ideas than one that is not. Well-managed companies seek to attract, to challenge, and to reward the best people and to develop them for the future.

To ascribe to this hypothesis without considering the talents and skills of individuals with disabilities is to limit severely the talent pool available for employment. Community-based agencies need to work with employers to apprise them of the talent/skill pool in an area and to help employers to locate and hire these individuals.

For their part, rehabilitation counselors are responsible for knowing what additional resources, especially community-based resources, are available to benefit their clients.  The Code of Professional Ethics for Rehabilitation Counselors speaks to the issue by stating in Section A.9.d. that: 

Rehabilitation counselors will be knowledgeable about referral resources and suggest appropriate alternatives.  

The Code is so positive about the application of other resources, that it states:
 

If clients decline the suggested referral, rehabilitation counselors have the right to discontinue the relationship.

The Mission of Community-Based Advocacy Groups?

The professionals who staff community-based advocacy groups certainly have enough to accomplish without additional responsibilities. Still, the important work of making the Americans with Disabilities Act (ADA) effective across the nation requires that such agencies take up the concomitant obligation of partnering with local businesses to achieve the opportunities their client’s need in the marketplace.

1 Result reported in Louis Harris survey conducted for the International Center for the Disabled.