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
Article 2: What Employers Need to Know in Identifying, Selecting, and Managing Providers for Disability Management // General Issues in Creating a Code of Ethics
Article 3: Injured Worker Helplessness & Workers' Compensation
Article 4: Workers' Compensation Reform Through Employer Involvement
Article 5: The Difference Between Disability & Impairment

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

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.

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.

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.

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.

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.

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. 

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.
      Fred Heffner, Ed.D.

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:

   CRC Credentials
Commission on Rehabilitation Counselor Certification
1835 Rohlwing Road, Suite E
Rolling Meadows, IL  60008
(847) 394-2104
www.crccertification.org

    CCM Credentials
       Commission for Case Manager Certification
       1835 Rohlwing Road, Suite D
       Rolling Meadows, IL  60008
       (847) 818-0292
       www.ccmcertification.org

                ABVE Credentials
                   American Board of Vocational Experts
                   783 Rio Del Mar Boulevard, Suite 61
                   Aptos, CA  95003
                   (831) 662-8518
                   www.abve.org

                 CDMS Credentials
                   Certification of Disability Management Specialists Commission
                   1835 Rohlwing Road, Suite E
                   Rolling Meadows, IL  60008
                   (847) 394-2106
                   www.cdms.org

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:

1. For more information on CRC certification, visit the web site www.crccertification.org, and for information on the Pennsylvania licensure law contact the Pennsylvania Counseling Association at www.academic.uofs.edu (organization/pca).

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:

1. Vocational Counseling and Employer Consultation Services

2. Medical and Psychosocial Aspects of Disability

3. Individual and Group Counseling

4. Program Evaluation and Research

5. Case Management and Services Coordination

6. Family, Gender, and Multicultural Issues

7. Foundations of Rehabilitation

8. Workers’ Compensation

9. Environmental and Attitudinal Barriers

10. Assessment

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.

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.

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.

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 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 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.

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’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.

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.

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.

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.

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 representative), risk manager or safety director, and the injured worker. The entire team has the goal of ending the disability process in such a way as to ensure team interests prevail. This teamwork with other critical players, such as family members, attorneys, and insurance representatives, is necessary to ensure that no weak link impedes recovery. The team should provide the injured worker with clear messages about his or her options and serve as a forum for injured-worker empowerment. A DMP must belong to the people who need it most. Thus, the final awareness that each employee could one day become disabled is the common denominator that will add to the empowerment equation.

Properly administered DMPs can ease the rehabilitation process for both the injured worker and the employee. However, the overall workers’ compensation system must also be examined and changed. It would be wise to review the value of providing injured workers with non-contingent reward while limiting their control over events through a social form of insurance so many have called a necessity. However the system is changed, it should be done with careful attention paid to the helplessness it may engender in those for whom the system was built.

Workers’ Compensation Reform Through Employer Involvement

Commonwealth of Pennsylvania employers view their workers’ compensation problem with a new sense of hope and relief. Senate Bill 801, Act 57, signed into law on June 24, 1996, offers business and industry sweeping reform and cost-cutting promises. Employers anticipate that the legislative change in the Pennsylvania Workers’ Compensation Act (PWCA) will solve many of the problems that they believe resulted from prior legislation and judicial law governing work injuries and illnesses. Employers finally sense reform.

True workers’ compensation reform, however, has eluded most work organizations in which employers expect state legislative changes alone to solve their problems. If one were to consider the "best practices" of companies that must manage workers’ compensation and other disability costs across the jurisdictions of different states, one can see that the well-managed company does not await legislative solutions to controlling disability costs, but instead proactively and organizationally manages workers’ compensation and lost time. No one set of state laws governs the manner in which multiple jurisdictional organizations approach their workers’ compensation claims. Well-managed organizations that conduct business in various jurisdictions, such as Texas, Pennsylvania, Maryland, West Virginia, and California, must establish their own workers’ compensation protocols to effectively control workers’ compensation and other disability costs.

This article sets forth the argument that employers should not wait for legislative changes or case law mandates to mitigate workers’ compensation losses. Instead, employers must assume a proactive management approach to reducing both workers’ compensation and other disability-related expenditures. Workers’ compensation reform must take place within each individual company. Return to work is the key to reducing workers’ compensation costs. Employers must realize the power of delegating, but not abdicating, responsibility for vocational rehabilitation and the return to work of injured employees. Employers would do well to realize that the Americans with Disabilities Act (ADA) provides them with a return-to-work model for keeping employees, with or without disabilities, productive.

Passage of Act 57 was a key element of the Ridge administration’s strategy to make Pennsylvania more job-friendly and economically competitive. Governor Ridge has called Act 57 "one of the most important pieces of job legislation ever to come out of the General Assembly." Act 57 changes the Pennsylvania Workers’ Compensation Act (PWCA) for the second time in three years. It is more complex than its predecessor, Act 44, and it covers a wider range of issues.

Act 57 offers employers opportunities to reduce workers’ compensation costs in a dozen ways when compared to the 1993 revisions under Act 44. Pre-Act 57 law placed no statutory cap on total disability. Under Act 57, total disability will last only 104 weeks (two years) unless the employee’s impairment rating per the American Medical Association (AMA) guidelines is 50 percent or greater. Modification or termination of indemnity benefits can also be established by evidence presented by vocational experts, rather than through the detestable process that had become known as "job availability" under prior workers’ compensation law.

Historically, if an employer could not return an injured employee to the organization where the injury occurred, alternative work had to be found in the open-labor market by employer-sponsored rehabilitation counselors. These so-called "Kachinski guidelines" made the process of work availability not only detestable, but very expensive.

Act 57 changes this, but apparently does not relieve the defendant employer from having to "prove" temporary total disability and, in some instances, accommodate an injured worker with a job vacancy. The statement of policy regulating Act 57, specifically Section 306(B)(2), reads:

If there exists a specific job vacancy with the liable employer that the employee is capable of performing, the employer must offer the job to the employee prior to seeking a modification of benefits based on earning power. This is considered a threshold requirement for seeking a modification based on earning power. This threshold requirement is satisfied when the employer avers (offers proof) on the Petition for Modification that: (1) the employee was notified of a job vacancy and failed to respond; (2) a specific job vacancy was offered to the employee, which the employee refused; or (3) no job exists.

This language beckons the employer to have some method of demonstrating that it has searched within the organization for available alternative work and has either offered this work to the employee or in fact has determined that work is not available within the liable employer organization. Some believe that this language is a clear mandate for employers to establish proactive return-to-work programs.

Across jurisdictions throughout this country, including the laws that govern Pennsylvania employers, the best practices of companies that actively seek to reduce their Workers’ Compensation costs include proactive return-to-work programs. Return-to-work programs save 30 to 40 percent of workers’ compensation indemnity payments when those programs are housed within larger disability-management systems. The questions become:

To repeat, it appears that true workers’ compensation reform must take place within companies by virtue of employer involvement in, and greater commitment to, proactive return to work and other "best practices," including team disability management, active safety leadership, use of job descriptions and ergonomic solutions to facilitate return to work, aggressive case management to facilitate injured worker recovery so that the best possible vocational rehabilitation can take place, and integration of disability management and claims administration. This no doubt involves more effective utilization of vocational rehabilitation personnel than the methods adopted by Pennsylvania employers in the past.

The utilization of vocational-rehabilitation personnel to "outplace" injured workers was a decreasingly viable alternative as a means of reducing lost-wage benefits within Act 44 and the "job availability" guidelines of case law. However, under Act 57, vocational-rehabilitation professionals will continue to serve an important role as consultants to employers.

Consider a scenario in which a very high-wage earner receives an impairment rating of 50 percent or greater, and is, therefore, continued as being totally disabled. If the employer truly cannot accommodate this individual with a return to work, then the employer may find it cost-effective to have vocational evaluators and case managers assist that injured worker with suitable retraining and job placement. Likewise, high-wage earners who, post-injury, are deemed to have low "earning power," may be retrainable at a reasonable cost. For example, a truck driver who is deemed capable of earning only $6 per hour may be retrainable as a dispatcher, capable of earning $11 per hour.

Again reflecting on the vague but nonetheless existing language of Act 57, "If the employer has a specific job vacancy the employee is capable of performing, the employer shall offer such job to the employee," vocational personnel can assist in determining how jobs might be modified to return individuals to work. Such practices would appear to be consistent with the mandates of the Americans with Disabilities Act of 1990.

Therefore, qualified vocational rehabilitation personnel will be seen as "earning power" experts, as well as service providers in situations that call for retraining or job modification and return to work. However, the most successful companies have learned that they should not abdicate responsibility for injury management. Employers may have to delegate the responsibility for return to work to outside consultants after all internal mechanisms and job accommodations have failed, but employers must never abdicate the responsibility for re-employment of injured employees when that is feasible.

In the past, Pennsylvania Workers’ Compensation cases have been heavily litigated. Act 57 offers no relief from litigation. To eliminate the continuing frustration and expense inherent in what will continue to be an adversarial system, Commonwealth employers must consider internal organizational reform. The Americans with Disabilities Act offers employers a return-to-work model that can assist them in complying with both state and federal laws while reducing disability-related expenditures.

The quagmire of confusion, which will no doubt continue around Act 57, can be circumvented by proactive return-to-work programming. By fully complying with the Americans with Disabilities Act of 1990, Pennsylvania work organizations neutralize the negative effects of workers’ compensation legislation and future Commonwealth Court decisions that only muddy the waters of employer return-to-work responsibility. The ADA has become an injury manager’s lifeboat and a disability-management tool. The best practices of proactive and innovative companies have proven that full compliance with the Americans with Disabilities Act can reduce workers’ compensation indemnity payments.

The ADA and workers’ compensation coverage converge when an injured worker meets the definition of a person with a disability, as defined by the ADA. Under the ADA, a person has a disability if he or she has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment, as well as those who are regarded as having an impairment, whether they have one or not. How the AMA guidelines of impairment rating will ultimately be interpreted as meeting the definition of a disabled person under the ADA remains to be seen. However, a lawyer representing a claimant would appear obligated to inform his or her client of the ADA once the client is, in fact, rated. If the employee wants to return to work and the employer does not consider accommodation, is there an ADA exposure? Certainly claimant’s counsel will consider this question. Because Act 57 mandates injured employee consideration for vacancies within the employer organization, the employer’s understanding of the ADA, as it relates to job accommodation and return to work, seems vitally important.

Employers who recognize injured workers as meeting any part of the ADA’s definition of disability can effect "reasonable accommodation" and return to work. Well-managed companies with Disability-Management Programs (DMPs) in place no longer practice "light duty" employment. Instead, these employers work with a process called "transitional" employment. In transitional employment, the employer and the employee agree on a scheduled program with incremental steps (duration per day/week, production speed, lift capacities, and other appropriate aspects of the job) that are designed to encourage the full productivity of returning employees to various tolerance levels.

Essential-job-function descriptions are used as blueprints to modify re-employment. Light duty has been too frequently viewed as "make work," demeaning and generally unacceptable by both the employee and the employer. "Transitional employment," on the other hand, is predicated on the premise that the employee wants to return to full productivity, the employer wants the same thing, and both parties can cooperate in a return-to-work process. Distinguishing between light duty and transitional duty is not merely a semantic nuance; the processes are very different and generate very different outcomes.

By having a framework for return-to-work procedures and well-established policies, companies use rehabilitation counselors and vocational personnel as consultants and team members to their programs. When job modification cannot be realized, outplacement remains a last-resort option. Private-sector rehabilitation specialists can save employers money when they are involved in the return-to-work process soon after injury. Research indicates that most companies experience a 25 to 30 percent reduction in disability costs in the first year after implementing a disability-management system that includes a formalized, proactive return-to-work program. Rehabilitation counselors can serve as effective team members in the planned processes of injury management and return to work.

A number of companies have developed and implemented exemplary Disability-Management Programs (DMPs). The reasons for DMPs are to do what is required to assist valued employees in any way possible and to control the significant costs of workplace absences. State-of-the-art Disability Management integrates and combines disability management efforts with claims administration for all injuries and illnesses, whether they are occupational or non-occupational. Integration also combines both short- and long-term disabilities. This process further brings into the mix related issues such as safety and wellness programs, group medical coverage, and even comprehensive attendance management.

In conclusion, workers’ compensation reform through Act 57 will not necessarily reduce costs associated with workplace injuries, unless employers dedicate themselves to internal reform. New laws will not change the problems inherent in workers’ compensation systems. The best practices of multi-jurisdictional companies throughout this country have demonstrated this fact. Those best practices include proactive policies and procedures through disability management which include ADA compliance, a return-to-work commitment, and a transitional-employment methodology.

We know that workers’ compensation reform must take place internally. Large organizations that employ people in various states, for example, have learned that proactively managing workers’ compensation in the same manner across jurisdictions leads to the realization that workers’ compensation is a human resource management problem and not an insurance or legislative problem. Employers must learn to delegate, but never abdicate, the responsibility for this important human resource and management challenge. True workers’ compensation reform takes place within organizations and waits for neither legislative change nor the evolution of favorable case law. Return to work is the goal, and well-managed companies, both large and small, can target and achieve this goal.

When an employee is injured at work and begins losing time, the employer usually expects the injured worker to get well, come back to work, and cease using workers’ compensation lost-wage benefits. In Pennsylvania, until recently, an injured employee’s disability was defined in terms of his or her capacity to earn wages. Unless an injured worker earned money, or the employer demonstrated so-called "job availability," the injured worker continued to receive total disability benefits indefinitely. Now, with the establishment of Act 57, "temporary" total disability payments are capped at 104 weeks unless severe impairment continues. The severity of impairment is to be defined according to AMA guidelines and can be established at any time during a period of 104 weeks (two years).

Reportedly, framers of Act 57 thought that two years of temporary total disability for most workers would provide a disincentive for them to remain home. That is, with the prospect of collecting total disability for only 104 weeks, as opposed to indefinitely, claimants would be more motivated to return to work.

Unfortunately, this rationale neglects to recognize well-known and often-cited empirical evidence that only 50 percent of injured workers remaining out of work for six months on workers’ compensation ever return to any form of gainful activity. That is, only one half of injured workers who remain out of work for six months ever return to work. After being on total disability for nine months, only 20 percent of all injured workers ever return to gainful employment. Thus, time, not money, is the critical factor in predicting an injured employee’s return to work.

Moreover, the rationale that limiting total disability payments to 104 weeks will motivate injured employees to consider returning to work contains two underlying assumptions. First, there is the assumption that the injured individual has "experienced" both systems and has made a comparative analysis of total disability payments under each system and has concluded that there is less incentive to stay home within the new system. Second, Act 57 assumes that an individual who is injured at work will actually have a job at the end of his or her period of temporary total disability. This may be the same reasoning that has caused so much controversy in the recent federal welfare reform. The question becomes, "After two years of receiving benefits, will individuals receiving compensation (welfare) have a job to which they will be able to (will) return?" With this stake in the ground at 104 weeks, some employees will be motivated to return to work, assuming that the employer provides them with the opportunity to do so. In other cases, injured workers will not get well quickly, and employers may not have work available for them. With time, those workers will learn both helplessness and laziness in a system that perpetuates both.

With regard to return to work, Act 57 (Senate Bill 801) contains provocative language that will no doubt be litigated, but certainly places some burden on the employer to prove that an injured worker is capable of gainful activity or to accommodate that individual with alternative work, not unlike the Americans with Disabilities Act of 1990. In Act 57, Section 306 contains interesting language regarding the proof of the injured employee’s "earning power." Section 306 of Act 57 states that "earning power" is determinable by expert opinion from a vocational expert. That section of the Act also reads, "If the employer has a specific job vacancy the employee is capable of performing, the employer shall offer such job to the employee." This language alone appears to compel employers to return employees to work under particular circumstances.

Historically, alternative work has been found in the open-labor market by employer-sponsored rehabilitation counselors under case law requirements, the most notable being the so-called "Kachinski Guidelines." Senate Bill 801, Act 57 changes this, but apparently does not relieve the defendant employer from having to "prove" temporary total disability and, in some instances, accommodate an injured worker with a job vacancy. All of this, of course, constitutes vague language in Senate Bill 801 and will no doubt require case-by-case reviews by the Commonwealth Court. However, the language of Act 57 presumes that injured employees will be less inclined to malinger and employers more willing to provide return to work. Framers of Senate Bill 801 have assumed that limits on total disability payments will have a positive effect on injured worker motivation, and yet further assume that employers will be ready, willing, and able to accommodate claimants with return to work.

In reality, the best practices of companies that operate in multiple jurisdictions have found that return-to-work programs save 30 to 40 percent of workers’ compensation indemnity payments when return-to-work protocols are housed within DMPs. The question becomes, "Are Pennsylvania employers ready to provide their employees with such return-to-work programs?" The second question is, "Will unions allow for light duty?" and, thirdly, "How will the vague but nonetheless existing language of Act 57 interact with the ADA?" Again, it appears that true workers’ compensation reform must take place within companies by virtue of more employer involvement in, and greater commitment to, proactive return-to-work programs and other "best practices." Employers cannot afford to not provide employment to injured workers who can be accommodated.

The Difference Between Disability and Impairment:  A Distinction Worth Making

This article speaks to the clear and important difference between the terms "impairment" and "disability." American employers pay far too much for disability in the workplace because key decision-makers either do not comprehend this difference or do not act on this distinction. This article outlines that significant difference and addresses practical applications for work organizations as employers differentiate between disability and impairment.

The problem of disability in America and its cost to our economy is a growing concern for both American business and government. The Americans with Disabilities Act (ADA) of 1990 is as much economic legislation as it is an extension of equal rights to all citizens of this country. The 101st Congress heard considerable testimony regarding the economic impact of disability on American society. In particular, Title I of the ADA was promulgated as a result of a high rate of unemployment of Americans with disabilities.

Many economic data are cited to support the importance of full employment of Americans with disabilities. For example, by the year 2015, the public will spend over $1 trillion annually to maintain Social Security Disability Insurance recipients of working age. The full cost of disability in the workplace was studied in 1989 in a project funded by the UNUM Corporation. Findings from this project reveal that the total cost of workplace disability absorbs an average of 8 percent of payroll expenditures.¹ Thus, both public and private-sector economies are hard pressed by disability and the associated loss of revenues.

To understand the problem of workplace disability in America, one will benefit by evaluating how disability occurs and how organizations tend to perpetuate the myth of disability. Basic to this understanding is an appreciation of the difference between impairment and disability.

The American Medical Association (AMA), in its document Guides to the Evaluation of Permanent Impairment, distinguishes clearly between impairment and disability. Impairment is a medical concept involving a change in one’s health status. Impairment results from illness or disease. Disability, on the other hand, is a non-medical phenomenon, essentially the difference between an impaired individual’s capacities and the social or occupational demands of a particular situation. Disability is a vocational concept.

If we are to reduce the cost of workplace disability and achieve the goal of the ADA by putting qualified individuals with disabilities to work, employers and their insurance carriers must recognize the distinction between disability and impairment. Indeed, employers and their disability-claims representatives should cease asking physicians, "Can Mr. Smith work?" or "Is Mr. Smith totally disabled?" The employer and Mr. Smith are in the best positions to answer these questions once medically determined capabilities (not disabilities) are defined. Physicians are generally not trained to answer questions of disability. Yet employers ask physicians these questions all the time, and they are disappointed by the response, "Mr. Smith cannot work; he is totally disabled."

In reality, the same impairment can result in different degrees of disability depending upon the specific work situation. For example, a complete amputation of a finger can leave a concert pianist totally disabled. But the same amputation may have little or no effect on an intra-city bus driver. The impairment is the same; the work is different and, therefore, so is the disability different.

Understanding the critical difference between impairment and disability has been liberating for many company human-resource and risk-management personnel. Charged with the responsibility of returning permanently impaired employees to work, risk managers now modify work or work settings to accommodate a worker’s impairments and associated limitations, thereby reducing or totally eliminating disability. Disability is, therefore, manageable. When work changes or modifications are acceptable to both employee and employer, disability management can be a win-win human resource outcome.

Workplace modifications have been researched and described for nearly two decades by the Job Accommodation Network (JAN). JAN has found that most work accommodations are practical in nature and less expensive than most employers assume: 61 percent of all job accommodations cost less than $750. Moreover, rehabilitation counselors and the employee are critical, essential resources for further understanding of how an individual with a particular impairment might become, or might continue to remain, productive. Most job incumbents know how their work tasks could be modified for efficiency’s sake.

With the groundbreaking work of national agencies such as JAN, it is now apparent that we can actually manage disability in the workplace. It is like managing the objectives of a project or a program; taking charge of and managing workplace disability can be accomplished with imagination, clear objectives, and teamwork.

Employers can anticipate relief from occupational-disability costs when they realize that workplace reform supersedes any legislative reform, including the numerous proposals to overhaul dozens of state workers’ compensation laws. As with most changes, some companies show leadership, and their programs serve as bellwethers for realistic and achievable disability management. Other companies, because they are less well-informed on the issues, continue to resist change.

The Weyerhaeuser Company, listed among the 100 Best Companies to Work For in America, is a forest products company headquartered in Tacoma, Washington. The company has 45,000 employees working at 250 facilities in 36 states. These facilities include sawmills, logging stations, home-building sites, and other high-injury-risk operations. Twelve unions represent approximately 30,000 non-salaried personnel. Weyerhaeuser became a self-insured company in the late 1950s. In the early 1980s, the company was averaging more than 7,000 injuries a year. Workers’ compensation costs had increased 750 percent, from $3 million paid out in 1971 to over $25 million in 1982. In addition, fewer and fewer employees were returning to work after on-the-job injuries.

In 1982, Weyerhaeuser changed its policy and began to administer its own workers’ compensation program. The following disability-management objectives were established:

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