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This Series consists of five (5) separate articles and is worth ten (10) Credit Hours, (4 Ethics Credits for CRCC). Each article has corresponding questions that can be found be clicking on the "Questions" link. Article 1: Ethical Considerations in Forensic
Occupational Disability Evaluations // In the Blink of an Eye
By Jasen M. Walker, Ed.D., C.R.C, C.C.M. Introduction The occupational evaluations of plaintiffs in personal injury lawsuits challenge the vocational rehabilitation professional, in the role of vocational expert, to perform not only her or his very best, but perhaps most of all, to be ethical. Vocational disability evaluations in legal matters serve the justice system. Even though many of us voice concerns regarding the justice system and mumble skepticism regarding expert witnesses employed within that system, no professional assignment deserves more respect and careful consideration than the task of the court expert to provide judges and juries with critical information from which they can render decisions regarding damages associated with personal injury. To meet the challenge of vocational/disability evaluation and associated court testimony, rehabilitation professionals need to carry out a number of essential steps in formulating their expert opinions. Many of these steps are not only central to the process of arriving at professionally certain opinions, but are by their very nature, ethical considerations for conducting occupational disability evaluations. Gathering sufficient data, knowing the subject of the evaluation, remaining within one’s discipline, and protecting one’s written opinions from the potential influence of others are not only critical concepts in forensic occupational disability evaluation, but ethical standards that require the highest level of regard. Possessing All Available Information Whenever the disability evaluator is challenged with the assignment of assessing a person’s occupational potentials and how those potentials may have changed secondary to health issues, the evaluator must push the referral source to discover and yield as much information as possible. Typically, when evaluating an adult who has claims of vocational disability, the evaluator will want documentation regarding not only the evaluee’s medical history, but his or her educational background, including academic records. Often, occupational success is a function of educational achievement, not only in terms of grades and standardized test scores, but school attendance and behavior, the information found in school records. Vocational histories taken during the time of examination are subjective to the extent that they are stories provided by the examinee. No doubt, the skilled evaluator can and does create questions that glean information regarding vocational skills demonstrated, materials and methods used, types of employment held, and the length of time in each job performed, but again, the source of that information can always be questioned. Job applications, resumes, performance reviews, attendance records, and earnings/tax statements are potentially vital documents in a thorough, and therefore ethical, evaluation of an injured worker. Of course, discovery of documentation requires time and money, and this is frequently the key to the ethical dilemma. That is, does the referral source want to spend the time and money to secure the necessary background information that would allow the expert to be thorough? It is the contention here that experts have an obligation to make sure that the referral source knows that certain information may be critical to facilitating an opinion that can be reached with a reasonable degree of certitude. Examining the Injured Person Whenever Possible Whenever possible, the vocational/disability evaluator must endeavor to conduct a face-to-face examination of the injured party in order to fairly and reliably assess the person’s capacities to work. There are exceptions to this rule. For example, when a youngster who cannot communicate very effectively is being assessed, other sources of information may be substituted for a personal history. Likewise, an individual may be so catastrophically impaired that it is self-evident that they will never work following injury or illness, and in such cases, pre-injury employability may be assessed from documentation alone. Further, in some instances the plaintiff will refuse to attend the examination. In those cases, it is fair to say that the vocational expert is released from his or her ethical obligations in attempting to assess the plaintiff’s employability and earning power. However, when the claimant to be evaluated refuses to attend an examination, the evaluator and referral source must endeavor jointly to develop reliable information from alternative sources (e.g., employment and military records, school documents, etc.). Vocational examination nearly always requires more than interview observations and data collection. Whenever possible and appropriate, standardized testing with measures that the examiner/expert is trained and familiar to employ should be utilized during vocational/disability evaluation. One must keep in mind that the forensic evaluation generally has time limitations. The evaluation, particularly in the defense-requested evaluation, is generally “one shot,” and follow-up with the examinee is seldom afforded. Therefore, the vocational examiner’s diagnostic assessment must endeavor to gather as much information as possible in the brief time allotted. Most vocational examinations include both interviewing and testing whenever appropriate. Standardized testing, of course, also has limitations, but the more potentially reliable information gathered the better when the expert endeavors to reach conclusions after one opportunity to assess either a physically and/or mentally impaired person. Recognizing and Validating the Difference Between Impairment and Disability Unfortunately, for years members of the legal system, perhaps because they found it to their advantage, have failed to distinguish between impairment and disability. Too often, adjudications regarding occupational disability rested on whether the physician stated that an injured person could or could not work. Frequently, physicians are asked a question, “Can Mr. or Mrs. X return to work?” or, “Is Mrs. or Mr. X totally disabled?” Physicians do not have the training of vocational rehabilitation professionals and, therefore, seldom have the expertise to render vocational conclusions with professional certitude. The American Medical Association, in its publication Guidelines for the Evaluation of Permanent Impairment, distinguishes between medical impairment and occupational disability and underscores the importance of qualified vocational assessment in personal injury litigation. For example, a surgeon loses a hand in a lawnmower accident and files a product liability action against the lawnmower manufacturer. The plaintiff-surgeon claims that he is totally disabled from his accident and has the support of medical experts also declaring that the surgeon is “totally disabled.” However, the vocational expert interviews and tests the surgeon and concludes that the surgeon has the aptitudes, the temperament, and other worker characteristics sufficient to be a successful chief of staff or HMO administrator. The vocational expert finds the plaintiff able to function in an administrative or, perhaps, executive role, and the surgeon’s claims of total disability are potentially mitigated or defeated entirely. A change in one’s health status may lead to permanent medical impairment, but medical impairment alone does not translate into occupational disability. Vocational experts understand the physical and mental demands of jobs and work in general. Only when medical impairment leads to a diminution in one’s abilities to meet occupational demands can vocational disability be defined, and when a person may be disabled from one or more aspects of a particular job, it does not follow that they are totally disabled occupationally. For decades, vocational professionals have endeavored to find job accommodations for people with physical and mental challenges. In and of themselves, job accommodations have the potential to lessen or eliminate vocational disability. It requires a vocational expert to determine whether a personal injury equates to a vocational loss. Economic Assessment vs. Earnings Loss Evaluation People who are impaired as the consequence of illness or injury are not necessarily disabled occupationally. Vocational disability evaluations require particular training, knowledge, skills, and expertise. Likewise, economic projections regarding the impact of personal injury require economic training that most vocational professionals do not possess. Although the vocational expert may be able to speak to hourly, weekly, and/or annual earning power, both before and after the onset of disabling disease, economic projections require the expertise of an economist or actuary. Some vocational experts hold themselves out as vocational economists. However, there are ethical questions to that practice. Economists are trained to understand the present and future value of money, market conditions that affect monetary value, life expectancies, and worklife expectancies. They are also trained to apply these statistical factors to carefully individualized valuations. Protecting One’s Expertise from Outside Influences and Editorializing Too often, through language manipulation, legal referral sources want to influence or even write the expert’s report. Presumably carried out with good intentions, the lawyer(s) executing the referral want to make sure, for example, that the expert is not discredited on cross-examination. Referral sources want to review a draft report or edit the expert’s report during telephone conversation with the expert. However, this is a slippery slope that should be avoided at all costs. Vocational experts, or for that matter all forensic/legal experts, should not make their reports, and certainly not their opinions, available to be modified in even the most benign ways. Anytime the expert exposes him/herself to the influences of an outside party involved in the litigation, the expert is potentially compromised. Experts, however, must communicate with those that employ them, and the expert must give careful ethical consideration to what is open for discussion and must have very strong and dogmatic standards regarding what will be discussed prior to testimony. The written opinion itself should be honored and maintained unless new information becomes available prior to the expert’s testimony. In all other situations, so-called “preparation” before trial should be strictly controlled by the expert. Allowing referral sources to edit reports or in any way influence the opinions of the expert should be avoided at all costs. Testimony That being said, it should also be stated that the vocational expert has an obligation to help the trial lawyer prepare for taking vocational testimony. The expert’s testimony is in some ways an art form designed to deliver a scientific, or at least a quasi-scientific, set of conclusions. Most lawyers do not know how to examine vocational experts, and many more do not know how to redirect the expert following cross-examination. This is not said to criticize lawyers. It is simply to say that it is the expert’s obligation to understand that his or her expertise remains more or less esoteric, even to the lawyer who has retained the expert. The education of the lawyer on the process of vocational/disability evaluation, the meaning of the data gathered, and how one arrives at professional conclusions is an ethical consideration for the expert. This may be, in fact, an ethical obligation. To tell the judge or jury what a person can or cannot do occupationally and/or how medically defined impairment can or cannot be accommodated in the workplace is the vocational disability evaluator’s challenge. The story to be told is done through a narrator, the direct examining lawyer. Frequently, on cross-examination the story can become confused, and redirect examination may be successful only if the narrator knows what to listen for and how to formulate clarifying questions for the expert. All and all, this is no simple task, and the more the retaining lawyer understands about the application of vocational science to the particular matter at hand, the better the story can be told. Preparation time with counsel anticipating what might be asked on cross-examination so those questions might be fully answered is generally time well spent. Summary The occupational/disability evaluation of plaintiffs in personal injury lawsuits challenges the vocational rehabilitation expert in a number of ways, and all have serious ethical implications. These include how the expert goes about:
Protecting the expert’s findings and opinions from outside influences and communicating those opinions so that members of the court can fully appreciate the rationale and foundation for those opinions are ethical requirements that vocational/disability experts must endeavor to meet.
PART II: In a Blink of an Eye: What Business Leaders Still Do Not Understand About the ADA By:
Jasen M. Walker, Ed.D., C.R.C., C.C.M. Initial Perspective There are those of us who are visually impaired, and there are those who cannot see, even with perfect vision. Who is to say who has the greater social handicap? Corporate
America still does not get it. Corporate
America does not understand the real power of the Americans with Disabilities
Act. The obliviousness of business
leaders to the ADA may be the result of limited experience with individuals who
have disabilities. Without
requisite experience with individuals who are physically or mentally challenged,
corporate decision-makers (usually able-bodied white males) will not understand. They cannot understand. They
will be unable to see the true value of the Americans with Disabilities Act. We
recall vividly an event that we think illustrates the point. We can visualize the moment as if it were yesterday. In fact, it occurred in September of 1991: a beautiful summer
evening in Orlando, Florida. We
were there to deliver an ADA presentation to a group of risk managers. They had gathered, as they do annually, to discuss how their
organizations might control workers’ compensation and other insurance-related
costs. Just after the customary business meeting but before our presentation, the president of this association introduced one of its members who had requested special time to address his colleagues. Harry’s request took us by surprise, and we still remember our agitation spurred by our nervous internal rehearsal and the delay that this member’s request brought to our sense of self-importance. After all, we were there as the invited guest speakers. We bit our tongues and we waited. Harry, a risk manager for over 30 years and a member of this particular association for 20 years, stood up to say good-bye to the group. He announced that he had carcinoma and his colon cancer was now invading other organs as well. The cancer was, in fact, killing Harry. But he wanted his associates to know that he loved his work. He shared his warm regard for them and conveyed that if “by chance” he did not make it back to Orlando for the next year, he would truly miss them. In a selfless moment, Harry genuinely encouraged everyone, particularly the older men in the group, to have annual colorectal examinations. He lamented that he had not. But
Harry ended his shocking disclosure and tearful goodbye with reporting that his employer had proposed separating him from work; putting him out “on
disability,” as was the organization’s policy. He most regretted this, he said, because he truly wanted to work. He knew he had the strength to do so. Harry feared the thought of being removed from work only to go home and
wait for death. Harry quietly dismissed himself. The room was stone silent. As Harry left the room, we realized we were scheduled to speak next. Torn
between the tragedy of Harry’s message and our egocentric desire to take
advantage of the “teaching moment,” we proceeded to the lectern.
In the Blink of an Eye To
this day, we are not sure if anyone really heard our message at that meeting. It was hardly anytime for the people in the room to use their
cerebrums: our hearts still went out to Harry. But Harry’s message was our message too. In the blink of an eye, the importance of the ADA had hit
home to a risk manager; had hit home to a man who for 30 years had been making
decisions about the re-employment of injured and ill workers. In the blink of an eye, the real power of the ADA also hit home for us,
the so-called “experts” invited to teach. The
“blink of an eye,” a unit of time measured roughly as .06 seconds, has both
spiritual significance and practical implication. Theologians tell us that in this brief period of time, conception takes
place, and a new generation begins. Supposedly,
the spirit can leave the dead body in the blink of an eye. Those who recount “near death” experiences lend credibility to this
“blink” notion. In the blink of
an eye, we lost John F. Kennedy. And
the world changed. In the blink of
an eye, Jim Brady’s life was changed. In
the blink of an eye …. With suddenness that mocks the blink of an eye, biomechanical forces can crush the cervical vertebrae of an auto accident victim and cause a driver or passenger permanent paralysis. A blood vessel in your head can burst in the blink of an eye and leave you hemiplegic, unable to use your dominant hand ever again. In the blink of an eye, a normal cell can become malignant. None of us are immune to events that can permanently change our individual worlds in ways that we cannot imagine or see, all in the blink of an eye. It took the American public over 17 years (the time it takes to blink one’s eye billions of times) to bring portions of the Rehabilitation Act into the private sector. From all appearances, it will take many years more to change organizational behavior so that the ADA and its concepts are fully embraced and practically implemented. We
have heard business leaders give many reasons for why their companies have not
yet embraced either the spirit or the practical aspects of the Americans with
Disabilities Act. Some executives
tell us that the law is too vague. Others
suggest that they will wait for court decisions to refine the ambiguities in the
Act, and some even imply they plan not to
change until some action is brought against them. Some business leaders have relegated ADA policy-making to
their human resources departments, ignoring the potential that the ADA has to
significantly impact comprehensive risk and medical costs for the company. Unfortunately, nearly all business executives and managers with whom we
have consulted rely heavily on the input of lawyers to shape their response to
the whole issue of employing individuals with disabilities. Rather than making a top-level decision to be pro-active in reaching out
to the pool of qualified applicants and/or workers with disabilities for their
companies, they rely on the advice of counsel for ways to protect themselves
against possible exposure to such individuals. Business leaders who fit this mold cannot see the forest for the trees. But, in the blink of an eye, anyone empowered to make ADA compliant company policy must fully realize that they themselves are but a blink of an eye away from needing the protection that the ADA affords everyone. It is important to remember that virtually every American, regardless of race, ethnic background, educational level, income, or power to make corporate policy, has, or will have, some direct connection to people with disabilities. Therefore, all of us have a personal interest in assuring equal employment opportunities for Americans with disabilities. As we age, we have a twenty-five percent chance of becoming physically or mentally challenged. People are only temporarily able-bodied. Should we, during our work lives, experience an alteration in our functional capacities, we would want ADA protection. Speaking
to participants in a 1987 seminar co-sponsored by the Smithsonian
Institution’s Woodrow Wilson Center and the National Office on Disabilities,
syndicated columnist George Will emphasized the universal importance of ensuring
equal opportunities for disabled persons: The most striking fact about the [disabled population] … is that it is the most inclusive. There is a sense in which we live in the antechamber of the handicapped community. I will never be black and I will never be a woman. I could be handicapped on the drive home tonight. Although
his language may not be politically correct, it is obvious that George Will
realizes what we want most business executives to understand – that they too
potentially can require the protection of the Americans with Disabilities Act. As individuals committed to enhancing the general public’s awareness of
issues related to people with disabilities, particularly full employment, we
must constantly remind corporate decision makers of Mr. Will’s awareness. Our
On-Going Mission (and Vision)
Back
in 1991, when we were the recipients of the risk manager’s profound lesson to
all of us, there was much ado about the ADA. Politicians, lawyers, rehabilitation professionals, and members of the
news media were attempting to educate both the general public and business
leaders on various aspects of the
ADA. Workshops and lectures were
everywhere. Soon the fuss subsided. Business leaders eventually stopped attending seminars, and
unfortunately, they ceased considering implementing change in their
organizations. Managers
are now waiting for law suits and court decisions to force their hands. Unfortunately, we have never been successful in this country
in either legislating or litigating morality. Effective change will not come
through the courts. In the face of
this resistance, we must continue our efforts to educate and influence with a
sense of vision. We
would do well – we would do best – to know that corporations will respond
when we show them the considerable cost
benefits to employers who comply with the ADA. Organizations can save enormous sums of money by hiring qualified
people who want to work. Companies can reduce the total cost of workplace disability by
returning people to gainful activity with “reasonable accommodation.” Companies must forego the so-called “light duty” mentality, the
insidious welfare equivalent of “making work for others,” and provide job
modifications of essential functions based on an individual’s residual
capabilities and strengths rather than focusing solely on weaknesses. Risk
managers and human resources people can be encouraged to cooperate and
vocationally rehabilitate employees with impairments, regardless of the source
of those impairments (i.e., work-related or not). But, until corporate board members and top-level executives understand
what George Will and Harry, the risk manager, understood, we will have made
little progress in actualizing Title I of the Americans with Disabilities Act. Our ongoing mission is to help those business leaders see – in
the blink of an eye. Note: The
George Will quote and the paragraph above it come from Opportunity
2000. We borrowed the “blink
of an eye” concept from A Small Voice.
PART
I: What
Employers Need to Know in Identifying, Selecting, and Managing Providers
for Disability Management by Jasen
M. Walker, Ed.D., C.R.C., C.C.M. Introduction Many
employers take control of their loss prevention and work injury programs by
contracting with outside providers for assistance with their Disability
Management Programs (DMPs). The
question of how a work organization employs rehabilitation providers is a
critical issue. The
three critical aspects of the rehabilitation provider contracting process are:
This article will address how employers, especially self-insurers, can take control of the identification, selection, and management of their rehabilitation service professionals. This article is especially focused on the concepts Vocational Counselors can use to advise and assist employers in managing their rehabilitation provider contracts.
Identifying Certified Case Management and Vocational Rehabilitation Service Providers The specific competencies and skills of professional rehabilitation providers are validated by organizations that were created to set standards, to test individuals on those standards, and to issue certification to those individuals who pass the certifying examination. The most relevant national credentialing organizations are:
Original certification is based on a successful outcome to an examination. For example, to be certified as a Case Manager, one has to pass a 300-question, multiple-choice examination. The objective of the examination is to measure basic knowledge of case management. Once certified, Case Managers can be assigned the responsibility of coordinating the existing and future health care of an individual who has been injured or is ill so that a client can receive the most cost-effective and goal-directed acute care and rehabilitation services available. The rationale for minimum competencies is spelled out by the accrediting agencies in what are called Standards of Practice. The Standards of Practice are available from the above accrediting agencies on their respective web sites. Why are the Standards of Practice essential? The Standards set forth a rationale for the entire profession and provide a reference to why the Standards are established (e.g., to serve the client). They further identify the various groups having an interest in successful outcomes in this profession. In the case of Rehabilitation Counselors, the Commission on Rehabilitation Counselor Certification has identified the following shareholders:
Traditionally, professions (as opposed to occupations or jobs) require a high level of expertise in a specific field. For Rehabilitation Counselors, for example, the original minimum knowledge required of its practitioners also becomes the published standards by which the quality of their ongoing in-service performance can be monitored. In this way, clients who use the services of Rehabilitation Counselors can clearly identify the type of services and the quality of expertise they should rightfully expect. Additionally, other professionals, state and federal regulators or lawmakers, and those parties who purchase rehabilitation services can be made aware of what services qualified counselors can appropriately render, and how those services relate to the total plan of rehabilitation for the person with a disability. Finally, the profession itself recognizes its responsibility to protect the client by establishing and enforcing standards of ethical practice for its members. Standards of Practice for all professions have grown increasingly complex over the last several decades. In general, the term “Standards of Practice” simply means those criteria that indicate acceptable professional performance. In the case of rehabilitation counseling, the profession’s Standards of Practice are contained in two key documents: the Scope of Practice for Rehabilitation Counseling and the Code of Professional Ethics for Rehabilitation Counselors. Taken together, these documents constitute the Standards of Practice for Rehabilitation Counselors. After an individual has received the original certification, he or she is required to maintain competencies by accumulating CEU credits, which are also certified by the various Commissions listed above. CEU credits can be earned by attending approved workshops, and the like, or by reading approved articles and answering questions based on each article. The purpose of this section has been to:
Some states have addressed the licensure issue through legislation. Pennsylvania, for example, has recently passed a licensure law that will grandfather the CRC designation as controlling in the licensing process.1 At least one other state, Michigan, has licensed counselors, and there is evidence that the trend toward licensing counselors is increasing. In summary, the first concern for employers who contract for service from Vocational Rehabilitation Counselors and/or Case Managers is to determine which providers in the service area are certified in their specialties. Employers who contract with third-party providers who are not certified, or who have non-certified employees working on the service contract, may not be receiving full value on the contract.
Selecting
a “Best Fit” Certified Case Management and/or Vocational Rehabilitation
Service Provider After identifying a list of potential providers who are duly certified as CRCs and/or CCMs, employers should evaluate two additional criteria: experience and skill level. (It is axiomatic that the lowest bidder is not, in all instances, the best possible match or even, in the final analysis, the most cost effective. High bids also need to be examined closely to evaluate whether the proposed “added values” are relevant and essential.) Rehabilitation providers should have significant experience in delivering case management, vocational evaluation, and rehabilitation services. To evaluate experience, employers need to look at the total years of experience, as well as each of the following that are appropriate. The provider should have experience working with:
Employers should require that vendors provide documented experiences in private rehabilitation, including the names of companies they have worked for, contacts within those companies, and telephone numbers. Further, self-insurers should attempt to verify the customer’s experiences when engaging the rehabilitation provider. Evaluating the relevant experiences of a prospective provider requires close attention. Both self-insured and third-party administration personnel should be part of the selection team. The company should ask specific questions, such as:
Experience is evaluated on the basis of answers to these and other very specific questions. Employers also need to evaluate the professional skills individual providers assigned to the contract bring to the task. The basic measurement for core skills should derive from the Standards of Practice developed and published by the appropriate certifying agencies. In addition to meeting the Standards of Practice, individuals assigned to the contract should have had training in:
(The employer should be able to supplement the core skills list with additional skills deemed of value to the work organization.) Other criteria that companies may want to consider in selecting a provider include:
Effective Disability Management is always based on face-to-face planning between the self-insured employer and the rehabilitation service representative. If there is a Third-Party Administrator (TPA), the planning becomes, of necessity, a tripartite session. Any case involving 90 days of lost time becomes, at that moment, a rationale for planning an approach to the case. And, finally, self-insured companies using a TPA need to insist that all lost-time cases receive regular staffing with the rehabilitation provider and employer. The ultimate success of a contractual relationship with a third-party provider will depend on the details that have been attended to in the selection process. Finally, as will be emphasized in the next section, self-insurers should adopt the policy: Delegate, do not abdicate, responsibility for Disability Management.
Managing
a Certified Case Manager and/or Vocational Rehabilitation Service Provider Once a third-party rehabilitation provider has been identified and the service contract (whether formal or informal) implemented, the responsibility shifts to active management of the contract or service agreement. The single most important concept to consider in the management phase is that rehabilitation of injured workers is a delegation of responsibility and not an abdication of responsibility. Further, assigning responsibility means specifically identifying one individual within the company and one individual from the third-party contractor to assume full responsibility for keeping the employee focused on a return to productivity. The contract or service agreement should be thought of, and operated as, a partnering endeavor. Abdicating full accountability to the rehabilitation vendor could prove to be risky in terms of extended services and unnecessary costs. Rehabilitation services that evolve over months without accountability can mutate into game plans without goals, self-serving agendas, secondary gains, and a breakdown in trust. A rehabilitation service agreement should be more or less replicable. That is, a company should know what to expect from a rehabilitation provider at the beginning of an assignment, and that expectation should be one that could be replicated in future assignments. To make the contract more manageable, it should be looked at as having discreet units. These units include:
To assess the quality of services delivered, the self-insurer needs to have worked out and documented outcome standards that they expect of service providers. Without documented outcome standards, the quality of services delivered cannot be measured. Most companies have baseline outcome records for their case management and/or vocational rehabilitation efforts to be used to assess and judge provider services. If such records do not already exist, determining and documenting outcomes for future reference should be a concomitant operating procedure with the contracted rehabilitation provider. Perhaps most importantly, communications are vital within contracted agreements. The company needs to establish a milestone-event document to ensure that they are receiving essential contract information. The milestone document must identify, at minimum, specific dates for:
The formative reports are prospective while the summative report is retrospective. The formative reports provide ongoing, continuous feedback concerning each rehabilitation assignment. These reports are used to analyze the strengths and weaknesses in the rehabilitation service of each case. A summative report is an annual summary of the results of the services and/or strategies used in all of the cases assigned. The summative report is the evidence of the relative success or failure of the services provided. In addition to receiving regular reports on each assignment as a condition of the contract, the self-insured company needs to establish the standards and determine the quality of communication among all concerned parties. Ideally, to maintain above-board communication and to prevent co-malingering, the self-insured company should have a disability management team in place led by the internal person responsible for the contract and overseeing the third-party contractor. That person is often a Risk Manager. In addition to the Risk Manager, the team should have the following members:
The rehabilitation team should have responsibility for staffing each lost time case and making sure that there is a consensus as to the rehabilitation plan to be implemented and pursued. Other concerns for the Disability Management team would include contract issues, such as:
One final issue should be the Code of Ethics that applies. Two aspects of this issue are significant. First, if the company has a Code of Ethics in place, it needs to make the third-party vendor aware of the code and its responsibilities to adhere to it (in a way that will maintain the company’s desire to uphold the code). It should not, secondly, be unreasonable to expect that the vendor should also have a Code of Ethics, and if the vendor does not, it should be something that the company would encourage the service provider to develop in parallel to fulfilling the terms of the contract. Notations:
part
II: General Issues in Creating
a Code of Ethics by Fred Heffner, Ed.D. Introduction Why do work organizations, including those that are involved in the delivery of Disability Management services, need a Code of Ethics? The answer to that question is that the client, employer, and employee expectations are all increasingly demanding that such organizations function on an ethical basis. And, these demands are not without justification. The results of a study conducted by the Ethics Office Association and the American Society of Chartered Life Underwriters & Chartered Financial Consultants that was released in April 2001 found that 48 percent of American workers admitted to doing “something unethical or illegal on the job” during the past year due to some workplace pressures. More than half of those surveyed (56 percent) said that they had considered doing something that would be unethical or even illegal. Dr. Richard DeGeorge, Co-Director of the International Center for Ethics in Business, reduces the issue to the essentials: Business
ethics has a technical meaning, as well as a less technical meaning—that you
should be moral in your business activities.
There’s nothing new about that. For
instance, people should tell the truth, and they shouldn’t steal.
Companies should treat employees with respect and respect their rights,
and they shouldn’t rip customers off. The ethics of a company, particularly a small one, must emanate from the top. The top executive of a company must of necessity be the source of the demand that the company create and abide by a Code of Ethics. Passive acceptance of this requirement is not sufficient; the top executive must take an aggressive lead in the development of this critical aspect of the organization. In larger corporations, the Board of Directors may take the lead in developing a Code of Ethics, or of revisiting and re-evaluating an existing Code of Ethics. Creating a Code of Ethics in an organization must be the effort of more than one individual. Generally, a Code of Ethics is created by a committee or a team that has been appointed by the governing body, if one exists, or by the highest-ranking official if one does not. This primary source should take the lead in initiating the process. Why does a company need a Code of Ethics? To start with, a formal Code of Ethics will serve to promote the Standards of Practice that the company expects of all of its employees. Codifying and documenting these Standards assists employees to understand what are acceptable and what are not acceptable behaviors. The documentation of and circulation among employees of a Code of Ethics take away any opportunity for individual employees to claim that they were unaware of the company’s position on a given issue. A published Code of Ethics should also serve as a basis for self-evaluation for each employee. The Code further serves as a professional benchmark for quality and integrity. Individual employees should be able to say, “These are the standards that we believe in, that we strive to uphold, and that form the basis of our pride in our profession and our company.” As the appointed group sets about researching and developing the Code of Ethics, some of the principles to consider as intrinsic to it include:
Issues that will arise, and which must be addressed in the Code of Ethics, include how to deal with such commonplace factors as:
Some of these issues are ambiguous. For example, a Code of Ethics need not necessarily proscribe an employee from receiving a gift or other emolument from a client or other interested party. Rather, the Code of Ethics needs to address issues within acceptable standards. For example, should gifts be limited to a specific amount? Should trips or outings sponsored by vendors be limited to one a year, two a year, or none? What are the general guidelines governing expense accounts? What expenses will be allowed or disallowed? What kind of assistance will the company provide to employees facing personal problems and how does the Code of Ethics address this issue? What language should be used to be supportive of a troubled individual while at the same time protecting the integrity of the group? What are company practices for personal use of the Internet on company time? Should the company have the right to read employee emails? The issues involved in creating a Code of Ethics are complex. Still, the very activity of researching and writing a Code of Ethics is, in and of itself, a highly worthwhile exercise for all groups to undertake. The process will force members creating the Code to think through the mission of the group, and to assume their obligations, individually and collectively, to both their clients and society. The Responsibility of Rehabilitation
Professionals to Prepare for the Skills Required in Conforming to a Code Of
Ethics for the Practice of Vocational Rehabilitation Every Code of Ethics addresses the issue of the professional practitioner providing the best quality of service possible to the client. The practice of Vocational Rehabilitation is no exception to that aspect of ethics. That is, to be ethical and to practice ethical counseling, the Vocational Rehabilitation Professional must understand and be proficient in the skills of the profession. The Commission on Rehabilitation Counselor Certification (CRCC) calls this basic, minimum list of skills the “knowledge domain” of Professional Rehabilitation Counselors. The core types of knowledge as set forth by the CRCC are:
Vocational Counselors with degrees from accredited Vocational Rehabilitation colleges should have been exposed to all of these domains in significant depth and should be capable of demonstrating competency in each of them. Programs that are large enough to have ancillary training components should base their in-service work on some manifestation of this core structure. Smaller programs should seek out training opportunities to focus on specific competencies until all have been covered. Where there is a serious deficiency in any of these specific domains, there is also a failure to conform to a Code of Ethics for the profession. Practitioners who are unprepared in the domains are, by definition, unprepared to conform to a basic Code of Ethics. nother way to measure proficiency in the vocational rehabilitation field is to match individual skills and knowledge against the courses offered by accredited colleges and universities in Vocational Counseling. The courses offered by the Graduate School of Education of the State University of New York (SUNY) at Buffalo are typical of the specific skills that make up the core structure:
The skills listed above are not defined in any priority rank, and they are not all-inclusive. However, they do represent the basic tools that all Vocational Counselors need to practice their profession to the full advantage of the client. Vocational Counselors who cannot demonstrate mastery of the core skills need to be carefully supervised by professionals who have mastered the skills. In addition to the basic skills as itemized in the SUNY Buffalo courses above, other skills include understanding the concepts of disability management, such as the:
Vocational Counselors who are not proficient in the basic skills of the profession cannot possibly meet the standards of practice as specified in a Code of Ethics.
Injured
Worker Helplessness and Workers’ Compensation
By Jasen M. Walker, Ed.D., C.R.C., C.C.M. To explain why some injured workers fail to return to work, we need to
understand the motivational and behavioral deficits that are present.
Rehabilitation professionals and risk managers often point to poor medical
intervention, attorney involvement, lack of meaningful work, and high wage
replacement. These may be valid reasons, but there are other explanations that
deserve some consideration, and these are addressed in this article. The Learned Helplessness Paradigm Nearly 20 years ago, Dr. Martin Seligman developed the theory of "learned helplessness," defining 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 experiments, they failed to escape the noise, solve problems, or see patterns in puzzles. Seligman theorized that uncontrollable events led to perceptual errors, behavioral deficits, and decreased motivation to act. Concurrent investigations led researchers to formulate the concept of "learned laziness." Specifically, researchers found that non-contingent reward has debilitating effects on the competitiveness of research subjects. During a variety of experiments in which both human and animal subjects were rewarded regardless of their response to problems, the subjects withdrew from cooperative and competitive situations. Theoretically, those subjects had learned laziness. Thus, research has shown that uncontrollable reward inhibits responding for reward. Motivation is lost when a person has learned that outcomes do not directly depend on his or her response. Perception of control and personal power are diminished and helplessness is learned. Learned laziness, sometimes referred to as the "welfare-pigeon" syndrome, is an outcome of rewarding people with no regard to performance. In uncontrollable situations, or in situations that are perceived as uncontrollable, people eventually give up. The Workers’ Compensation System Most workers’ compensation systems are fertile ground for the growth of learned helplessness and learned laziness. Although specific regulations vary from state to state, workers’ compensation is essentially a wage-replacement system of disability insurance, which pays medical expenses associated with occupational injury or disease and weekly compensation benefits. Compensation begins if the worker cannot return to his or her customary employment and continues until the employer demonstrates a change in the claim of employability. Additionally, claimants are beset by a complex system of medical, legal, financial, and work dynamics that frequently create a sense of uncontrollability. The employer must prove work is available for the claimant, but in most situations the injured worker is not encouraged to seek work independently. When the claimant is compelled to perform a job search, the fact that it is compulsory only adds to his or her sense of uncontrollability. In essence, the injured worker is rewarded for taking little or no action. It is highly likely that this uncontrollable system of non-contingent reward will produce helplessness and laziness in claimants because, no matter what their actions, they continue to receive total disability benefits. Thus, the workers’ compensation system too often captures injured workers in a system beyond their control, while the same system seduces them with non-continent reward. Critical Relationships Generally, the workers’ compensation scenario has several players who are in critical relationships to the injured person, such as the treating physician, insurance adjuster, attorney, private rehabilitation counselor, family members/spouse, and employer. The individual and collective responses of these parties to the situational dynamics in a workers’ compensation claim can foster or combat the injured worker’s tendency to learn helplessness. The Employer-Injured Worker Relationship The difficulty, however, often begins where the injury does: on the job. The newly injured worker is likely to be challenged by his employer in claiming work-related injury or disability. Lacking knowledge of the workers’ compensation system and being unwilling or unable to seek out information makes the injured worker apprehensive and fearful. This sense of loss of control, fear, and frustration may be further compounded when, after a period of medical treatment, the injured worker is deemed capable of performing "light duty" and the employer is unwilling to re-employ the recovering worker. Continuing disability will result even though the employee can perform some forms of gainful activity. Already the employee begins to feel denied and trapped by the rejection messages of the workers’ compensation system.The Physician-Patient Relationship The system can also break down with physicians and other health-care providers to whom the injured worker turns for help in recovery. Physicians, particularly specialists, often neglect to provide the worker with specifics regarding diagnosis and prognosis, relying on the attending physician to explain possible outcomes. Consequently, the worker does not receive communication or is misinformed regarding the nature of his or her medical problem. In brief, the physician-patient relationship can often leave the injured worker confused, anxious, and more troubled than before the medical investigations began. Without comprehending the full scope of medical problems, the injured worker will perceive little or no control over his or her health care or recovery process. The seeds of helplessness are again fertilized. The Claimant-Insurance Carrier Relationship It is about this time that representatives from the insurance industry jump into the fray. Insurance adjusters, who want to see positive change in the claimant’s status, are required to investigate the claim and to control costs. Many adjusters have learned, if only through experience, not to trust claimants. Consequently, injured workers are suspect, particularly as the period of compensable unemployment lengthens and adjusters further challenge the claim’s validity. The claimant usually responds with fear and anger, believing that the insurance carrier controls his or her fate. As the adversarial relationship develops, a claims adjuster can add to the perception of loss of control by being non-responsive to the claimant’s needs, such as delaying checks or not returning telephone calls. Private investigators assigned to the case to provide adjusters with more information only serve to make the claimant feel like a criminal. The Injured Worker and the Family The injured worker’s family can also impede the recovery process. When a family member is suddenly injured and out of work, issues of control and power often surface and shift. When injured, the "breadwinner" and familial authority often loses that authority, adding to a sense of helplessness. In addition, the injured person may receive attention from the family that he or she did not receive when well, creating a reluctance to give up this newfound nurturance. The Injured Worker-Rehabilitation Specialists Relationship Next comes the private rehabilitation specialist, a case manager assigned by the insurance carrier who is supposed to serve as a catalyst, one who "makes things happen." He or she steers the injured worker through the rehabilitation process and wears many hats, according to the claimant’s needs. Only if rehabilitation interventions are conducted carefully can the rehabilitation specialist avoid adding to the injured worker’s growing perception of a lack of control. An injured worker should be kept fully informed as to the scope of his or her medical treatment and be held responsible for participating in that treatment, if possible. Treating an injured person like a child and not requiring any accountability for keeping up with medical treatments or looking for work promote helplessness. On the other hand, coercing the injured worker into treatment programs or insisting on a return to employment in less-than-vital work causes the injured worker to resent the process, and his or her sense of power decreases. The Injured Worker-Attorney Relationship Finally, the legal system and attorneys are key players in the learned helplessness game. There is usually much at stake when an occupational accident results in some degree of disability. Out of confusion, mistrust, and even abuse of the system, an injured party retains an attorney to protect his or her interests, often including weekly indemnity benefits. In the claimant-attorney relationship, efforts are focused on proving the worker is disabled. In order to build a case, an attorney may usurp control dictating strategies, including recommending physicians and treatment programs. Winning the case and receiving financial reward become paramount. It is easy for the injured person to relinquish control to the attorney for short-term financial gain as opposed to long-term rehabilitation goals. Conclusions Thus, the complexity of the workers’ compensation system, the conflicting and confusing roles of those critical relationships, and the claimant’s frustration over traumatic change-of-life circumstances can contribute to a sense of loss of control and learned helplessness. Non-contingent reward and the perception of ongoing gain through litigation increase chances of an injured worker learning helplessness/laziness. Together, uncontrollable circumstances and non-contingent reward make learned helplessness and laziness high-risk outcomes in nearly any workers’ compensation matter. All those involved in critical relationships with an injured worker must be aware of the negative impact their seemingly helpful actions can cause. The disability manager and/or case manager is in the best position to assist the injured worker in maintaining control and a sense self-direction over the injury. The use of counseling, which includes clear communication, case manager assertiveness rather than aggressiveness, family education, and cognitive restructuring, enhances the injured worker’s investment in the rehabilitation process and reduces the likelihood of learned helplessness. The rehabilitation-case manager must create opportunities for the injured worker to take control of his or her recovery and must resist other attempts to minimize the injured worker’s involvement in the program. But the rehabilitationist’s efforts must be fully supported by the employee’s work organization. On a larger scale, employers, health-care providers, and insurance carriers can reduce the antecedents and consequences of injured worker helplessness by establishing, and fully supporting, disability management and return-to-work programs. With the realization that injured-worker control is critical to recovery, risk managers, claims professionals, heath-care providers, and others directly and indirectly involved in the private-sector disability system can approach the process with new awareness. This alone may very well facilitate and encourage worker empowerment and control over recovery; however, employers hold the key. An employer-sponsored and employee-supported Disability-Management Program (DMP) with a strong return-to-work component can maximize the injured worker’s rehabilitation. Employer Commitment Employers can protect against a system that fosters helplessness and laziness through DMPs. Disability-management practitioners find that their client organizations experience a reduction in disability costs of between 25 and 30 percent in the first year after implementation. DMPs are an employer’s statement that total disability is neither an acceptable nor a reasonable means through which workers and the employer can meet mutual goals for growth and prosperity. To be optimally successful, DMPs must receive committed support from everyone within an organization and its outside resources. It is essential to involve as many employees as possible from different areas of an organization in the design and implementation of a DMP. Through this process, employees learn that they will have control over their rehabilitation should an injury occur and that a job will be available when return to work is possible. Most importantly, they learn they are valued members of an organization and will be well cared for in the event of an injury.The ideal disability-management team will include people in critical relationships with the injured worker, such as the case manager, physician, union steward (or applicable employee represen |
