Article 1: Examining Perceptions, Beliefs & Values - A White Paper
Article 2: Maslow's Hierarchy of Needs
Article 3: A New Lexicon for Industrial Rehabilitation
Article 4: Establishing Earning Power
Article 5: Critical Issues between Impairment & Disability (two-part)

Examining How the Perceptions, Beliefs & Values of Individual Professionals Serving Work-Injured Clients May Affect Their Ethical Behaviors: A White Paper

Foreword:

Rehabilitation professionals are charged with the responsibility of evaluating and assisting people with medical impairments to reach established psychosocial and occupational objectives.  Those processes – evaluating and assisting medically impaired people to become productive – require that rehabilitation professionals adhere to a comprehensive code of ethics as they carry out that work.  Most professionals providing services to others, including physicians, lawyers, and psychologists, are bound by codes of ethics.

A major question in adherence to ethical codes is: How does an individual professional’s perceptions, beliefs, and values determine ethical code compliance?

The Authors

This article evolved from a workshop entitled “Work Injury: How a Professional’s Perceptions, Beliefs & Values Guide Their Ethical Behavior,” which was sponsored and conducted by CEC Associates, Inc., of Valley Forge, Pennsylvania, on April 16, 2004.

The article was framed and drafted by Dr. Jasen Walker, CRC, CCM, President of CEC Associates, Inc.  Dr. Fred Heffner of CEC also contributed to the original draft.

In addition to the principals, the following participants of the workshop read, critiqued, and added content to the original draft:

Maria Babinetz

LRC Disability Management Consultants

Paoli, PA 19301

Francis X. Wickersham, Esquire

Marshall, Dennehey, Warner, Coleman & Goggin

Newtown Square, PA 19073

Alex Karras, Esquire

Danmar Associates

Frazer, PA 19355

Terence Walsh

Paoli Care Management Services

Malvern, PA 19355

Michael D. Schaff, Esquire

Naulty, Scaricamazza & McDevitt, Ltd.

Philadelphia, PA 19103

Stephen Fireoved, Esquire

Lowry Associates

Plymouth Meeting, PA 19462

Background

On Friday, April 16, 2004, CEC Associates hosted a workshop on the topic “Work Injury: How a Professional’s Perceptions, Beliefs & Values Guide Ethical Behavior.”  The workshop was designed to serve professionals, including rehabilitation counselors and attorneys, who work with clients who have been injured or suffered an illness that affects their work status. 

The purpose of the workshop was to develop a dialogue among the participants around the perceptions, beliefs, and values that professionals bring to an encounter with injured or ill claimants and to consider the significance of those concepts in the context of the Codes of Ethics that govern their professions.  The workshop drew approximately half of its participants from those who work in medical and vocational rehabilitation services and half from attorneys who either represent claimants or defend insurance carriers and/or employers.

One of the objectives of the workshop was to use its content as the basis for a “white paper” on the subject.  During the workshop, participants were asked to document their thoughts on specific issues in writing.  Opportunities to do so were provided after the speakers’ lectures, as well as during smaller, breakout sessions.  All of these documented thoughts and reactions were collected by the workshop organizers (CEC).  The preserved content of the participants’ thoughts have become the nucleus of this white paper/article.

Another feature of the workshop was a mock interview with an actor who role-played the part of an injured worker.  The injured worker represented an actual case with all of the identifying content changed to keep the client anonymous.  The mock interview was used as a start point for the discussions in the breakout groups.  This aspect of the workshop proved to be the most interesting to the participants, as indicated on workshop evaluation forms.

Finally, participants in the workshop were invited to volunteer to work toward the creation of a white paper by reading and editing content, as well as contributing original content.  Six individuals took up this task.  Of the six, four are lawyers and two are rehabilitation counselors.  Of the four lawyers, two are defense attorneys and two are plaintiff lawyers.  One of the lawyers also serves as a rehabilitation counselor.

To establish the direction of the workshop, three experienced and respected professionals were asked to address the issues of perceptions, beliefs, and values as these concepts impact the Code of Ethics by which they individually abide.  The speakers and facilitators included:

Speakers:

Andrew E. Greenberg, Esquire, a founding partner of the Chartwell Law Offices, LLP;

Halmon L. Banks, III, Esquire, a partner in the Philadelphia law firm of Martin, Banks, Pond, Lehocky & Wilson; and

Stephen N. Berk, Ph.D., ABPN, a Board Certified Neuropsychologist;

Facilitators:

Stephen Fireoved, Esquire, a partner of Lowry Associates; and

Jasen M. Walker, Ed.D., C.R.C., C.C.M., a vocational evaluator and forensic expert as well as president of CEC Associates, Inc.

Background Note

In March 2004, the Superior Court of Pennsylvania decided a workers’ compensation case that involved claims of vocational malpractice, breach of contract, and claimant emotional distress.  The Court decided that the case should be remanded for further proceedings and relinquished  jurisdiction, allowing the plaintiff to sue the defendants in civil court. (See Taylor v. Woods Rehabilitation Services, et al, 2004 PA Super 89; 2004 Pa. Super, Lexis 312).  This case may represent the beginning of a landslide of lawsuits coming from the Pennsylvania Workers’ Compensation system, which now holds Rehabilitation Counselors accountable to the Code of Professional Ethics for Rehabilitation Counselors.

What is also significant about this case is that the claimant’s arguments in the underlying workers’ compensation matter, Wayne Taylor (claimant) v. Bethlehem Area School District (defendant), relied in part on what we believe to be vocationally dysfunctional Pennsylvania case law that is antithetical to federal standards, such as the Americans with Disabilities Act of 1990.  Plaintiff (claimant) alleged that the defendants “caused negligent infliction of emotional distress because their failure to inform potential employers of plaintiff’s limitations led to the plaintiff’s embarrassment, humiliation, and emotional distress when he attended job interviews and had to discuss his limitations.”

There are significant precedents for Pennsylvania Workers’ Compensation Court decisions that would be based on whether the Rehabilitation Counselor disclosed medical information and descriptions of limitations to prospective employers, but again, those decisions would clearly stand in opposition to the basic tenets of federal statutes.  For example, in 1998, the Commonwealth Court decided Young v. WCAB (Weis Markets) Pa. 537, A.2d 393, in which the court held that the Vocational Counselor failed to reveal the claimant’s history of methadone addiction to prospective employers, thereby violating the prospective employers’ need to know about the claimant’s physical limitations.  In a post-ADA decision, Brown v. WCAB, 7 PAWCLR 212, A.2d. (Pa. Commonwealth, 1992), the appellate court reversed a referee’s finding that work was available within the physical limitations by ruling that the Vocational Counselor had not sufficiently described to the prospective employer the claimant’s restrictions and limitations in detail.

      Under Young and Brown, the employer-sponsored vocational rehabilitation counselor must specifically detail restrictions resulting from the claimant’s impairments and disability.  Otherwise, “job availability” criteria are not met and the employer has not met its burden of proof – even though such disclosure is inconsistent with Title I of the ADA.  It is antithetical to the vocational rehabilitation of medically impaired clients to disclose their medical histories to prospective employers.

      The ADA expressly prohibits employers from asking an applicant about the nature or extent of a disability.  Under the ADA, an employer may ask how an applicant will be able to perform specific job functions and whether a job accommodation will be needed.  Further, a job offer may be conditioned on the results of a medical examination only if it is required of all employees in the same job category and the results remain confidential.  The ruling in the Woods Rehabilitation case seems to be continuing the series of Pennsylvania court decisions in conflict with the ADA. 

Introduction

There is no human activity from which questions about values and ethical principles do not arise.  The objective of the workshop was to conduct a group discussion about professional perceptions, beliefs, and values that would conclude with specific ideas on how to improve the conversation among professionals working with clients who have been injured in the workplace and to enrich the outcomes of such discussions.  The goal in recording the outcomes of the workshop was to write a “white paper” that could be used to extend awareness of the ethical behaviors required of professionals to those unable to attend, to encourage professionals to think about the issues, and to widen the audience for the ideas that emerged.

Ethics is a human practice that involves:

·        deliberation,

·        give and take,

·        active listening,

·        questioning,

·        probing, and

·        creative problem-solving

among participants in a community of shared values.

            (Robert Haas, CEO, Levi Strauss and Company)

Defining and Understanding Perceptions, Beliefs &Values

Participants in the workshop were mailed background materials when they registered.  Among these materials were six basic definitions:

1.      Client/Claimant:

The term “client” should be considered variously depending on the professional reflecting on that term.  For example, rehabilitation professionals might consider the client as either the injured worker or the source of the referral (e.g., claims representative); for attorneys the client is the individual for whom they are providing legal representation.. Defense lawyers will consider the employer/insurance carrier to be their client, and lawyers representing injured workers will perceive their clients to be the injured worker whom they represent.  Unless one is an insurance adjuster, the term “claimant” is not considered appropriate since it does not clearly and specifically identify the source of the professional engagement.

2.      Perceptions:

Perceptions are the result of making observations and having an awareness of what is being observed.  Perceptions derive from the senses (what we see, hear, taste, smell, touch).  The essential aspect of a perception is the idea or concept that is gained by the perceiving: seeing, hearing, tasting, etc.  (There are also extrasensory perceptions, but they are not to be considered here.)

3.      Beliefs:

A belief is a state or habit of mind in which trust and confidence is placed in some person or thing or a tenet or body of tenets held.  Once you have a belief, it influences how you perceive all other relevant information.

A belief bias is the tendency for one’s preexisting beliefs to distort logical      reasoning, sometimes by making invalid conclusions seem valid, or valid conclusions seem invalid.  A belief perseverance is a clinging to one’s initial conceptions after the basis on which they were formed has been discredited.

4.      Values:

Values are based on feelings.  Values are the things we are for and the things we are against.  Values are:

·        freely chosen,

·        chosen from alternatives,

·        chosen after weighing the consequences of each alternative,

·        prized and cherished,

·        shared publicly and shown to others (when appropriate).

“People act on their values, and they do so repeatedly and consistently.”

Raths, Louis E., Sidnewt B. Simon, and Merrill Harmin, Values and Teaching.

        Columbus, OH: Charles Merrill Publishing Co., 1966

When our values are clear, consistent, and soundly chosen, we tend to live our lives in meaningful and satisfying ways.  If we lack values, or our values are confusing and conflicted, we tend to live our lives in troubled and frustrating ways.

            Values are distinguishable from beliefs.

5. Ethical Beliefs:

Ethical beliefs are the framework for moral direction and how one carries out specific conduct.

6. Ethical Values:

Ethical values are principles that constitute the sense of good versus evil, right versus wrong.  These are acquired from culture, life experience with parents and friends, and one’s own analysis of ethical issues (e.g., values clarification).

Nearly every workshop participant represented a group of professionals who are bound by predetermined ethical standards.  Ethical standards of rehabilitation counselors, psychologists, and lawyers were presented to the group for consideration.

The Client/Professional Relationship in Rehabilitation Cases (Identifying and Differentiating the Professionals)

A number of professionals and non-professionals participate in the process of returning injured workers to productivity.  The primary players include the worker’s immediate family, the employer, and the medical professionals in the treatment process.  Case management specialists coordinating the interests of both the employer and the medical providers are also principals.  Frequently, this set of players is extended to include attorneys and vocational rehabilitation specialists.  Two attorneys are involved in many cases: an attorney representing the employer or the employer’s insurance carrier, as well as the claimant’s attorney.

The focus of this workshop was on the attorneys and the vocational rehabilitation professionals providing direct services to their clients.  It is important to note that while the primary role of the defense attorney is different from the role of the plaintiff attorney, both attorneys are covered by the same professional Code of Ethics. 

The Relationship Between Attorneys and Vocational Professionals in Rehabilitation Cases

Rehabilitation counselors are generally brought into a case by employers or insurance carriers directly or through their legal advisors.  Some companies have in-house Disability Management Programs that employ either case management specialists or rehabilitation counselors, or engage third-party providers for the service. 

Depending on the laws governing injured worker rehabilitation, case management professionals and rehabilitation counselors may or may not be welcome by injured worker legal representatives.  In some jurisdictions, rehabilitation counselors or, for that matter, case managers can be perceived as adversaries, representing only the interests of the insurance carrier or employer.  Almost immediately, interested parties defer to their perceptions, beliefs, and values in determining which parties will participate in the delivery and coordination of rehabilitation services to the injured worker, and, moreover, which of the parties will participate in good faith.

Rehabilitation counselors must clearly define their roles not only according to jurisdictional rules, but within the context of the ethical constructs of their professions.  For example, the relationship that a counselor will have with an injured worker from a jurisdiction that “mandates” vocational rehabilitation (e.g., California) may be much different than the counselor’s relationship with an injured worker in a state (e.g., Pennsylvania) that does not recognize vocational rehabilitation as a method of restoring injured worker productivity.  In each case, it is the rehabilitation counselor’s responsibility to clearly define the relationship and parameters according to not only ethical standards but certain realities dictated by the jurisdiction in which services are being provided to the injured worker. Immediately, however, perceptions, whether it be the injured worker’s perceptions, the lawyer’s perceptions, or the employer’s perceptions play a crucial role in the response to rehabilitation counselor intervention.

The Application of Perceptions in Practice

Perception has been used throughout psychology to describe and understand the forming of ideas.  Perception generally forms the basis of cognition, which is the foundation for belief.  Perception may be thought of as “an event in the person or organism primarily controlled by the excitation of sensory receptors,” according to H.B. English’s definition found in A Comprehensive Dictionary of Psychological and Psychoanalytical Terms (1958).  It may be considered a postulate that all behavior, without exception, is completely determined by the perceptual field of the behaving organism, and change in behavior occurs with a differentiation in one’s field of perception.

Perception is also a function of experience.  One should keep in mind that a visually impaired individual may have completely different perceptions of the same event than an individual with unimpaired sight.  Furthermore, when considering perception as a fundamental producer of behavior, it is important to recognize that science has shown that what one perceives is not what exists, but what one believes exists, and what is perceived is what we have learned to perceive as a result of our past opportunities or experiences.  Perception and experience are inextricably linked.

Among critical issues associated with the phenomenon of perception is what the professional brings to the case.  For example, a professional who thinks the client does not want to work based on pre-interview information is applying a perception, perhaps stimulated by prior experience or belief, that may or may not be valid.  Another issue in terms of perception is what specific perceptions may be based on the documentation that accompanies the client rather than direct observation. For example, what have medical providers said in reports about the patient’s motivation? The pre-interview information in the form of documentation may not be reliable. 

Some pre-interview information comes from the treating physician.  The questions here include the quality of the medical history and the comprehensiveness of the history.  The most serious aspect of a medical history is whether the physician understands the difference between a medical judgment and an occupational judgment – between an impairment and a disability. Another source of pre-interview information may be the personnel records from the employer.  Documented records can be useful, but they can also lead to pre-formed perceptions, which may not be valid.  The question becomes one of data validation.

The ethical aspects of perception derive from the validity of the perception.  A perception that the client does not want to work and is more invested in litigation may lead the professional to be less than fully engaged and helpful, and may even result in giving up on the client. 

When do perceptions become beliefs?  Perceptions are more visceral and fundamental than beliefs. One important concept (belief) in assisting a client to return to work is the idea that “everyone can work.”  That is, given job accommodation and job redesign assistance, essentially everyone can be useful and productive (even the paralyzed, through “human implantable ID technology”).  Perception and perceptions, whether valid or invalid, lay the foundation for beliefs and biases that influence behavior.  The professional’s beliefs regarding the value of work alone can dramatically affect the delivery of rehabilitation services to the injured worker.

The Application of Beliefs in Practice

The beliefs about work that a professional (whether rehabilitation service provider or legal advocate) brings to a case are significant.  Beliefs about the role of the individual in the community, politics, socially acceptable behavior, etc., that the rehabilitation specialist or attorney brings to an initial interview are crucial to the ultimate effectiveness of the professional-client endeavor.  So professionals need to be aware of their belief systems, endeavor to understand the belief systems of the people they service, and consider how they go about relating effectively to clients with different beliefs.  Both rehabilitation professionals and lawyers would be wise to be conscious of the beliefs they hold when attempting to bridge critical differences with the closely held beliefs of their clients.  What behaviors should the plaintiff attorney manifest when his or her injured-worker client wants to return to work?  What behaviors does the rehabilitation counselor chose and carry out when the injured worker declares that he does not want to work and would rather pursue total disability insurance of some type?

Another decisive issue is whether professionals have the right to espouse the adoption by their clients of new beliefs.  Are professionals being ethical when they attempt to reshape what are perceived to be non-productive beliefs?   

As a professional Code of Ethics is written and adopted, what is the basis for the belief system underlying the Code?  Generally, codes are composites of the best efforts of the professionals nurturing the profession at the time.  But do they accommodate all circumstances?  When Codes of Ethics do not address all issues, what is the professional’s responsibility to the larger group when he or she encounters a situation that is not perceived to be governed by the Code?

Finally, trying to find data to support a belief is not an uncommon practice, and that practice can be highly unethical.  As the old story goes, Is the drunk leaning on the lamppost more for support or illumination?  Are the data supported or illuminated by beliefs?  A healthy culture (or nation, profession, person) is based on strongly held beliefs.  These beliefs are the foundation for effective action.  But are we open to change our beliefs in the light of new, valid data?  Dogmatism, whether on the right or the left of the political spectrum, is still closed-mindedness.

The Application of Values in Practice

One of the most important issues of “values” is whether a relationship with an injured worker will be more effective if it is carried out as strictly an arms-length, professional relationship, or if the relationship is humanized and personalized.  What, if anything, does the relevant Code of Ethics say in respect to this issue?  Since such issues as sexual harassment or ethical bias can derive from a “personalized” approach (a too personalized approach), how is adherence to the Code of Ethics balanced with one’s personal values in terms of outcome effectiveness?

The challenge for the professional is to create a meaningful basis for cooperation.  In almost every instance, an effective professional-client relationship will depend on the existence of shared values.  Successful relationships derive from, and are based on, an acceptance of the reality that agreement on all issues with the client is not likely, and may not even be desirable.  In the final analysis, values are subject to change, and if a too firmly held value (or belief) is proving not to be productive in a professional’s relationship with a client (or indeed in his or her life), it should be abandoned or the relationship should be terminated.

Another issue that impacts the values a professional brings to a relationship with a client is the recent endeavor to infuse “character education” into the national curriculum.  Character education is an effort to focus on shared values, at least those that hold across cultures, religions, and politics: the values that are universally accepted; minimal, basic values.  The drive for character education is a response to what many individuals feel is the eroded, value-neutral curriculum of the immediate past.  The objective is to instill civic virtues and to create and maintain a responsible society.  So the advocacy of either a “value-neutral” or a “character education” focus is also relevant to the approach professionals take with their clients.

The “Halo Effect”

An important concept from psychology comes into play in terms of pre-formed perceptions, and that is the “Halo Effect.”  The Halo Effect (which is related to the idea of a “self-fulfilling prophesy”) occurs when a teacher, for example, is told that a certain student, or even a whole class, has superior intelligence and then the individual (or class) does, in fact, do extremely well at the end of the year.  Or the converse.  The same applies to a professional providing rehabilitation services to a client. When the professional holds the perception that the client really will not do well in the return-to-work process, the client will not do well.  The issue of “labels” is also related to this concept, and, in the final analysis, whether the professional can indeed bring a “clean slate” to the case is also germane.

The Relevant Standards of Practice and Codes of Ethics for the Respective Professionals (Attorneys and Vocational Counselors)

Professionals providing rehabilitation services, that is, vocational counselors and attorneys, have a responsibility to know the specific Codes of Ethics that pertain to their profession.  The most relevant Codes for vocational counselors are:

·        Code of Professional Ethics for Commission for Case Manager Certification (CCMC)

·        Code of Professional Ethics for Certification of Disability Management Specialists Commission (CDMSC)

·        Code of Professional Ethics for Certified Vocational Evaluators (CVEs)

·        Code of Professional Ethics for the American Board of Vocational Experts (ABVE)

·        Code of Professional Ethics for the Commission on Rehabilitation Counselor Certification (CCRC)

The Code of Ethics for Pennsylvania attorneys is called Rules of Professional Conduct.  The Rules are available on the Pennsylvania Bar Association web site under: Legal Links, Pennsylvania Legal Info, The Disciplinary Board of the Supreme Court, Rules, The Rules of Professional Conduct.

How and Why the Behavior of Rehabilitation Professionals Working with Clients Can Become Unethical

The services of rehabilitation professionals are frequently obtained by an insurance carrier (or self-insured company) to work with and assist injured workers in their recovery following a work-related incident. Often the reason for this type of referral is to reduce the company’s financial exposure to that client’s (claimant’s) injury. Ideally, the rehabilitation professional attempts to facilitate an awareness of mutual interests and encourages the rehabilitation effort and process toward mutually agreed upon and shared objectives with the client.  The rehabilitation professional at times faces a balancing act between being beholden to the needs, desires, and interests of the referral company, and at the same time upholding a moral and ethical responsibility to the injured worker.  These interests may not necessarily be mutually inclusive.  Rehabilitation professionals will at times practice, perhaps unknowingly, unethical behavior when these two responsibilities are in conflict with one another or to some extent challenged by the interests of the referral source.  If and when the rehabilitation professional allows the interests and needs of the referral source to supersede the needs of the injured party, his or her ability to provide a comprehensive and objective rehabilitation service to the injured party may be compromised.

Therefore, it is critical to establish the role of the rehabilitation professional as he/she relates to the client.  When a rehabilitation professional is contracted to provide forensic testimony in an “earning power assessment,” the rehabilitation professional must remain totally objective and neutral. The professional must make an independent and objective analysis based upon an interview, testing, and other evaluative techniques related to the claimant’s background and physical capabilities.

A rehabilitation professional also may be retained to provide assistance to an injured worker in an attempt to locate necessary and effective medical services that will assist the injured party in recuperation and recovery.  This recovery may then be instrumental in decreased physical limitations that lead to better vocational productivity and earning power.  In this case, the rehabilitation professional has a legal, ethical, and moral obligation to both the referral source and the injured worker to establish a professional relationship with the objective to provide valid information to the injured party that will assist in expediting recovery.  As such, the rehabilitation professional has an obligation to maintain the best interests of the injured worker even when those interests conflict with those of the referral source.  Any attempt to intentionally abridge the obligation of providing proper medical information or resources to the injured party would be, in this case, a violation of the rehabilitation code of ethics.

Whether the service is vocationally or medically oriented, the rehabilitation professional has an obligation to make every effort to provide the most objective and comprehensive services possible.

The Responsibility of Experienced Rehabilitation Professionals to Train New Hires to Understand the Significance of Perceptions, Beliefs & Values in Their Work with Work-Injured Clients

Contemporary issues concerning the ethical treatment of prisoners in the American war on terror hold urgent reminders of the need to conform to Standards of Practice and Codes of Ethics.  Not least significant in this issue is where the responsibility for the conduction of the Standard lies.  Are those at the bottom of the professional hierarchy, those delivering direct client/claimant services, responsible, or are the supervisors responsible?  What is clear is that organizations/administrations hold the ultimate responsibility for the practices of their staff members.

That means that managers/administrators are responsible for making the issue a priority and for providing the specific training needed to ensure compliance.  Administrators must either adopt a Code of Ethics and expose staff to its strictures, or better, sponsor the creating of an in-house, company-specific, customized Code of Ethics.  Staff members should be involved in researching comparable codes, discussing the formulation of the code, and writing the code.  Where a relevant code is used as a model for the customized code, employees should have an opportunity to address both those aspects of the model that will be included and those that will not.

Administrators are also responsible for scheduling periodic in-service reviews of the Code of Ethics to serve as a renewed exposure and a chance to determine whether the Code is still relevant and up to date.  Administrators are also responsible for instructing new hires in the content of the Code.

Training Resources

·        The Pennsylvania Chamber of Business and Industry: www.pachamber.org.

·        CEC Associates, Inc.: www.cecassoc.com.

·        National Rehabilitation Association: www.nationalrehab.org.

·        The Rehabilitation Accreditation  Commission: www.carf.org.

·        Center for the Study of Ethics in the Professions: www.iit.edu.

·        A Commentary on the Activity of Writing Codes of Ethics: www.mediation-matter.com.

·        Ethics Resources Center Resources: www.ethics.org.

Compliance/Evaluation Resources

·        American Board of Vocational Experts (ABVE): www.abve.net

·        Commission for Case Management Certification (CCMC): www.ccmcertification.org

·        Commission on Rehabilitation Counselor Certification: www.ccrcertification.org

Conclusions

All professionals who provide rehabilitation services are obligated to abide by the codes of ethics prescribed by their certifying organizations.  Embedded in these codes are the nuances attending an individual’s perceptions, beliefs, and values.  The purpose of the workshop was to focus on these tenets as the basis of a cross-profession (counselors/case managers and attorneys) discussion about the significance of these tenets. 

The most salient outcome of the workshop was that professionals and professional organizations have a responsibility to examine their practices for adherence to their codes of ethics, to revisit compliance with the codes on a regular basis, to update codes as appropriate, and, especially, to assist/train new hires in their professions to be aware of the controlling codes.  

As workshop participants, we offer our collective perception and belief that professionals must continually be aware of their underlying perceptions, beliefs, and values as they no doubt influence behaviors and compliance with ethical conduct.  Although considered expendable by some, beliefs and values are the foundation for behavior that can either construct or destroy, reward or punish, and safeguard or betray. 

References:

1.      Walker, Jasen. The ADA and the PA Workers’ Compensation Act:  Not Friends in Pennsylvania. The Legal Intelligencer, vol. P. 1484, March 9, 1993.

2.      Taylor v. Woods Rehabilitation Service, 2004 Pa. Super., LEXIS 191 (Pa. Super. Ct., Feb. 23, 2004.

3.      Howard, Robert. Values Make the Company: An Interview with Robert Haas, Harvard Business Review, September 1, 1990.

4.      Raths, Louis E., Sidnewt B. Simon, and Merrill Harmin.  Values and Teaching, Charles Merrill Publishing Co., Columbus, OH, 1966.

5.      H.B. English.  A Comprehensive Dictionary of Psychological and Psychoanalytical Terms (1958).

I.            Assessing Return-to-Work Motivation: A Rationale

Injured worker motivation is one of the key issues of vocational disability evaluation and occupational rehabilitation.  Rehabilitation Counselors and Case Managers are frequently disappointed by injured workers’ responses to return-to-work opportunities following periods of lost time.  Rehabilitation professionals, however, are not the only members of the industrial accident/injury system who are either frustrated by or at least concerned with, injured worker motivation.

Employers generally believe that once an injured employee begins to receive wage replacement benefits, they will likely take advantage of the compensation system and ultimately be responsible for increasing the employer’s insurance costs.  Lawyers representing employers regard dubiously any workers’ compensation claimant’s declared reasons for not working, while claimant’s legal representatives self-righteously defend and protect their clients from what are too often characterized as illegitimate return-to-work offers.  Treating physicians try to ameliorate the patient’s musculoskeletal and/or neurological complaints.  However, the complaints are frequently (perhaps inevitably) complicated by, if not the result of, patient stress.

Injured worker (or patient) stress, of course, is often caused partly by the insidious medical/legal/vocational quagmire and/or the internal conflicts known as the workers’ compensation lost time system.  That system is often more adversarial than it need be.  Notwithstanding the complicated framework of the injury-management system in which various stakeholders participate, injured worker motivation is prejudged variously by those who have perceptions, beliefs, values, and needs potentially different than those of the injured worker.

An injured worker’s motivation to return to work is a function of his or her perceptions, beliefs, values, and needs, not those of other stakeholders in the accident/injury management system.  It matters little what stimulates others within the lost time system, all of whom have their own unique perceptions, beliefs, needs, and motivations.  What does matter is what role work plays in the injured employee’s life and his or her desire/need to return to work.  As with most people, injured employees cannot always freely articulate their motivations, and if they could, they would probably be reluctant to disclose their beliefs and attitudes about a return to work following a period of lost time.

Over the years, through thousands of interviews, we have been privileged to hear injured employees’ reasons for remaining out of work.  Those reasons are, of course, quite varied.  Besides the injured workers’ claims that they cannot work physically or mentally, they often share their individual resentments, fears, concerns, desires, and attitudes associated with their accidents and injuries, as well as their relationships with their employers before and after being displaced from the workforce.  Much can be learned from injured employees when they are questioned effectively. 

An injured worker’s return-to-work motivation requires a model of motivation from which appropriate and effective questions can be generated.  But first we must have some appreciation of what work generally means to the culture in which the employee has grown and functioned over the many years preceding the injury.  The notion of motivation can be amorphous, and injured worker motivation in particular is difficult to define and measure.  History informs us that work motivation has its roots in western culture.  The compulsion to work was “created” in the Protestant Reformation, which emphasized that work was a religious calling.  Much has been written about the role of Protestant preachers in the rise of the work ethic. 

The earliest textbooks published in America promoted work values as part of good character and as the formula to success.  Benjamin Franklin was one of the best-known advocates of the value of work.  Poor Richard’s Almanac was translated into many languages and millions of copies were sold in America and abroad.  In his writings, Franklin urged thrift, industry, pursuit of money, and hard work.  “A penny saved is a penny earned,” was Franklin’s way of extolling the virtues of labor and surplus. 

Horatio Alger (1832-1899), a divinity school graduate, was one of the most prolific American authors.  He wrote some 130 books that taught work values to young boys.  Twenty million copies of Alger’s books were sold.  His works include such titles as Strive and Succeed, Arisen from the Ranks, and Bound to Rise, and they typically tell stories of poor boys who became self-made men through their own efforts and perseverance. 

American children in schools from the late 1800s to the 1920s learned to read and write from standard English textbooks such as McGuffey’s Eclectic Readers, the first of which was published in 1836.  The Readers became perhaps the most widely read children’s books in the 19^th century, with 122 million copies of the six readers sold to an estimated four-fifths of U.S. school children.  Among other things, McGuffey’s taught middle-class children the importance of the work ethic: “Work, work, my boy, be not afraid; look labor boldly in the face.”  Public school children were inculcated with the value of work and the notion “you are what you do.”

In the 1960s, as youth in America and much of Western Europe questioned the status quo, psychology and education, too, experienced revolutions, clearly moving away from puritanical and behaviorist frameworks of explaining behavior and toward humanistic/ self-actualization models.  This framework paved the way to an understanding that self-fulfillment and psychological health in general were achievable and generally within the reach of the individual.  That is, mental health, (or, for that matter, neurotic illness) was not controlled by instincts, urges, environmental stimuli, or forces external to, and beyond the control of, the individual, but, instead, a developmental process influenced by society and the individual himself.

Two behaviorists, the forefathers of humanistic psychology, John Dewey (1859-1952) and Edward Thorndike (1874-1949), stressed one important aspect of motivation that had been completely neglected by psychoanalysis and earlier behaviorism, namely, “possibility.”  In psychological theory, it is the concept of possibility that returned responsibility to the individual.

No less influenced by this movement of humanism was the world of work.  Douglas MacGregor (1906-1964) summarized two possible views of management and worker motivation.  MacGregor’s Theory X and Theory Y popularized the notions that management views workers as disliking work and trying to avoid it (Theory X) and/or work is natural and can be a source of satisfaction, and when it is, the worker can be highly committed and motivated (Theory Y).

In the evolution of theory regarding work motivation, Frederick Hertzberg explored specifically the issue of employee motivation.  Hertzberg found that there are two distinct categories of work motivation: “hygiene” and “motivation” factors.  Hertzberg said (Motivation to Work, 1959) that “hygiene” factors do not provide positive motivation, but the absence of these motivators causes dissatisfaction.  The “motivation” factors, on the other hand, address directly peoples’ higher needs and do produce positive satisfaction.  These motivation factors are the ones management must address to achieve employee well-being.

A new term, the “third force,” came into being in the 1960s to refocus increasing productivity away from technology to the role of human beings in achieving increases in productivity.  The pivotal idea was spearheaded by Abraham Maslow.  Maslow conceived of human motivation as developmental.  He classified motivation into five levels and conceived a hierarchy of human needs (see diagram Attachment 1).  Maslow’s Hierarchy of Needs - Physiological, Safety, Belongingness/Love, Esteem, and Self-Actualization - provides the basis for understanding the meaning of work to individuals in general, and the role that employment plays for any particular employee, including the injured worker who happens to be the focus of our attention.

Maslow points out that the hierarchy is dynamic, and the dominant “need” is always shifting.  For example, a musician may be lost in the self-actualization of playing music, but eventually becomes tired and hungry so he or she has to stop.  A machine operator may go to work every day in a factory where he is ignored and treated with indifference only to generate enough money to support his much beloved hobby of antique car restoration, an activity that has brought him esteem and notoriety.  Moreover, any single behavior may combine several levels.  For example, eating dinner with friends or family is both physiological and social.  Indeed, maintaining gainful activity provides money for food and shelter (physiological) and potentially an opportunity for some to achieve a measure of self-satisfaction (esteem).

Maslow also explains that satisfaction is relative.  The hierarchy does not exist by itself, but is affected by the situation and the general culture.  In a work setting, for example, rewards from management or the organizational “culture” can fulfill/increase a worker’s esteem, or in some cases, self-actualization.  Self-Actualization is defined as “the desire to become more and more of what one is; to become everything that one is capable of becoming.”  In other settings, workers may be so threatened by management or the culture that the work itself tends to fulfill the employee’s safety needs (i.e., obeying rules to prevent being fired), but no higher needs.  Unions began in America because they appealed to the physiological and safety needs of workers.

Needs are “pre-potent.”  A pre-potent need is one that has the greatest influence or power over our action.  Everyone has pre-potent needs, but the needs will vary among individuals.  A drug addict will need to satisfy his cravings (physiological) in order to function in society and will not worry about being accepted by others.  A teenager may use drugs because of peer pressure - to feel that he or she is indeed part of a group (a love need).  According to Maslow, “At once other (and higher) needs emerge, and these, rather than physiological hungers, dominate the organism.  When these needs are satisfied, new (and still higher) needs emerge, and so on.  As one desire is satisfied, another pops up to take its place.”  Maslow described the human being as a “wanting animal,” that “rarely reaches a state of complete satisfaction except for a short time.”

In revisiting Maslow’s breakthrough work on motivation, we at CEC Associates, Inc., came to realize that the generalized Hierarchy of Needs model can be applied to the specific efforts of Vocational Rehabilitation professionals in returning injured workers to productivity.  When we began to use the Needs model as a touchstone for return-to-work counseling, we felt that by considering the level of need at which the client was functioning and addressing how that need could be ameliorated, we could experience significantly improved outcomes.  The objective is to move the client up the Hierarchy.

A primary function of Vocational Rehabilitation (VR) professionals is to get injured workers back to work.  In many cases, the employee desires a return to work and the role of the VR professional is to work with the medical professionals and the employer to facilitate the return.  This function is generally called Case Management.  When all of the medical conditions are sufficiently remediated, the client is released to return to work.  There are attendant issues, of course, such as job accommodation and the availability of suitable employment, but largely, when the client is willing to return to work, the vocational rehabilitation process is straightforward.

When the injured employee does not want to return to work, the function of the VR professional must, of necessity, take a different course.  In this situation, the primary focus of the VR professional is to determine the cause of the reluctance and to find solutions to overcome it.  Frequently, the cause of the reluctance is related to the client’s motivation to return to work.  In this case, if an approach to getting the reluctant client to return to work is to be productive, it must focus on his/her motivation to do so.

The hypothesis of this paper is that when Rehabilitation Counselors (RCs) are addressing the client’s motivation, the Maslow Hierarchy of Needs model can be an instructive and useful paradigm for resolving the motivation issue.  Of course, before a VR professional can apply the “hypothesis,” he or she must have an understanding of Maslow’s original work and how it can apply to vocational rehabilitation.  To assist VR professionals to use Maslow’s Hierarchy constructively, this paper provides RC-focused materials that can be used to accomplish that objective.  The hybrid process is called the CEC/Maslow construct.

III.  Maslow’s Hierarchy of Needs Applied to Vocational Evaluation and        Rehabilitation:  The CEC/Maslow Construct

Abraham Maslow (1908-1970) published Motivation and Personality in 1943.  Originally, Maslow’s concept was seen as a general explanation of human behavior, but it quickly became the prevailing theory of workplace motivation.  Prior to Maslow, work motivation was seen as a task-based approach to managing people at work typified by Frederick Taylor’s precise study of men doing specific tasks.  With Maslow, the approach to managing employees turned to the humanistic, and employees have increasingly come to be seen as the key to motivation and productivity increases.

Maslow’s work centered on his interest in human motivation.  He posited a hierarchy of human needs based on two general groupings:

Maslow defined four “deficiency needs” that have to be met/satisfied before one can move to the next highest level.  These deficiency needs, starting with the lowest and moving to the highest, are:

The “growth needs” are grouped into the composite term “Self-Actualization.”  The sub-groups of Self-Actualization are:

The primary purpose of Vocational Rehabilitation is to return injured workers to productivity.  The basic problem is that those resisting a return to work are frequently stuck at some level of the “deficiency needs,” and it is the responsibility of the RC to determine which level that is and to recommend interventions to move the individual to the next highest level.

The critical information for an RC working with a client is knowing how important work is for that individual.  In the present system, an injured worker has his or her basic “deficiency” needs taken care of by replacement wages.  Generally, the replaced wages satisfy the Physiological and Safety needs of the client.  If work never met the client’s higher level needs (e.g., self-esteem) in some fashion and gainful employment was never more than a mechanism by which to satisfy the Physiological or Safety needs, then wage replacement may be a substantial inhibitor to the client’s motivation to return to work.  On the other hand, when wages are interrupted or critical health care discontinued, the deficiency needs are no longer met, and the requisite foundation to attain higher level need satisfaction can be threatened.  What is required is a recognition that potentially both deficiency and growth needs can be satisfied through work, gainful purposeful activity.

To determine the client’s need level for work and for the purpose of designing appropriate interventions, the VR professional will need to ask the client questions.  This article provides a set of questions shaped from Maslow’s “deficiency needs” that the counselor can use to identify where the client is on the hierarchy.  Knowing that level then serves as the basis for recommending specific interventions that should be taken to move the client to again work.  That is, Maslow’s Hierarchy can serve as the theoretical underpinning on which a VR plan is formulated. 

It is important to recognize that the objective is not to make all reluctant clients “self-actualized,” but to determine what the deficiency needs are so that appropriate interventions can be devised.

This paper is an introduction to the CEC/Maslow construct.  (The CEC/Maslow construct is the application of the Hierarchy of Needs to the Vocational Evaluation and Rehabilitation processes.)  The construct is, at this point in time, only theoretical.  It continues to be tested at CEC Associates on an a priori basis through self-evident propositions and direct observation.  What is needed is structured research by other Rehabilitation professionals with access to clients, or perhaps a study undertaken in some relevant college or university program, or, ideally, both.

Starting with the most basic/important need and moving to higher levels, the deficiency needs are:

·        Physiological Needs: hunger, thirst, bodily comfort, etc.

·        Safety/Security: out of danger

·        Belongingness and Love: affiliating with others, being accepted

·        Esteem: achieving, being competent, gaining approval and recognition

Norwood (1999) proposed descriptions of the kinds of information individuals seek at the   specific deficiency-needs levels.  They are:

·        Physiological Needs:                                                 coping information

·        Safety Needs:                                                             helping information

·        Belongingness and Love Needs:                         enlightening information

·        Esteem Needs:                                                 empowering information

To determine where the client is on the Hierarchy of Needs, the Counselor will ask questions that have been correlated with the Hierarchy (i.e., Need-Specific questions).  As indicated above, clients who have either Physiological or Safety needs will have to have these needs addressed and ameliorated.  Until these needs are corrected, no resolution can be achieved.

If the answers to questions asked of a client indicate that he or she is likely to identify with either of the next two (higher) Needs, the Belongingness and Love Needs or the Esteem Needs, then that knowledge can guide the Counselor to a strategy that may address, and hopefully overcome, that specific deficiency.

If/when the Physiological and Safety needs are gratified, the Love and Belongingness needs emerge.  The Love Need involves giving and receiving affection.  Unmet Love needs will leave a person wanting a friend, a mate, children, or, at minimum, an affiliation with a family or group.  Attaining some attachment becomes a primary desire, and the search for ways to overcome loneliness, friendlessness, rejection, and even ostracism are consuming needs.  (Maslow points out that “love” as used in the Hierarchy is not synonymous with sex.)

Maslow wrote of this Need:

   … we know in a general way the destructive effects on children moving too often; of disorientation; of the general overmobility that is forced by industrialization; of being without roots, or of despising of one’s roots, one’s origins, one’s group; of being torn from one’s home and family, friends ,and neighbors: of being a transient or a newcomer rather than a native.  We still underplay the deep importance of the neighbourhood, of one’s territory, of one’s clan, of one’s own “kind,” one’s class, one’s gang, one’s familiar working    colleagues.  And, we have largely forgotten our deep animal tendencies to herd, to flock, to join, to belong.

Once the VR Counselor recognizes this condition, strategies to address the need can be devised.  They could include:

·        Working with the employer to evaluate the client employee’s supervisor in terms of awareness and sensitivity.  Options here would include assigning the client to a new supervisor on returning to work, and/or staff training for the supervisory.

·        Providing an Employee Assistant (EA) as an advocate/trainer for the client.  The EA could be someone internally (from the Human Resources Department) or someone from an external source.

·        If the friction causing the feeling of non-acceptance is related to a dispute between the employee and the supervisor, consider Managerial Mediation.  Provide Managerial Mediation training as needed.

·        Searching for and engaging external supports.  The supports could be individuals or groups.  Groups might include local social entities (clubs, other membership groups), church outreach resources, and governmental social services.

All people have a need for a “stable, firmly based, usually high evaluation of themselves.”  Maslow classifies these Esteem Needs into two subsets:  The desire:

1. for strength, achievement, adequacy, mastery and competence, confidence in the face of the world, and independence and freedom; and

2. for reputation or prestige, status, fame and glory, dominance, recognition, attention, importance, dignity, or appreciation.

“Satisfaction of the self-esteem need leads to feelings of self-confidence, worth, strength, capability, and adequacy, of being useful and necessary in the world.”

When the questions asked by the VR Counselor indicate that the lower Needs (Physiological, Safety, and Belongingness/Love) have been gratified, and that the client is likely to require attention to his or her need for Esteem, a new set of strategies can be applied.  In general, the approach is a series of self-analysis and confidence building applications.

With the lower needs (Psychological, Safety, and Belongingness/Love), the role of the VR Counselor is a combination of finding resources to assist the client to overcome the deficit and one-on-one counseling.  With the Esteem Needs, the effective approach shifts to a preponderance of personal counseling. 

Steps that may be used in this process include the following:

·        getting the client to recognize his or her low esteem status may be the primary objective.  This can generally be achieved through dialogue with the client using standard counseling techniques.  This activity is preamble to other             activities and is not an essential requirement.

·        Eliciting a personal appearance inventory and using the results as the basis for a confidence building discussion of the issue.

·        Listing past experiences (work and non-work) while persisting in getting a comprehensive accounting of the experiences.

·        Discussing ways to view past experiences that may have sabotaged confidence.

·        Eliciting personal strengths.

·        Eliciting perceived personal weaknesses.

·        Discussing and evaluating strengths and weaknesses. 

·        Discussing the concept that weaknesses need not be a barrier to positive self-esteem.

·        Discussing different interpretations of self-confidence.

·        Introducing and discussing techniques for achieving positive self-esteem, including as appropriate:

·        controlling nervous energy

·        recognizing and adopting body language and nonverbal skills to gain control

·        mastering breathing and relaxation techniques

·        improving communication styles and listening skills

·        documenting what things the client does well

In review, the hypothesis here is that a renewed knowledge of Maslow’s Hierarchy of Needs can be a highly effective way to motivate clients who are averse to returning to work after recovery from a workplace injury.  The CEC/Maslow approach is not offered as a replacement of other, traditional methods of working with reluctant, unmotivated clients.  Rather, the methodology is offered as a fresh approach to the motivation of recalcitrant clients.

1.            Where are you living?

2.            Does your apartment/house have electricity?

3.            Does you apartment/house have running water?

4.            Does your apartment/house have heat during the winter months?

5.            Does the toilet in your apartment/house work?

6.            Do you have a working shower or bathtub?

7.            Are you having trouble breathing?  If yes, are you using anything to assist your breathing?

8.            Are you presently experiencing pain or discomfort?  If yes, describe the pain.  What do you think would alleviate that pain/discomfort?

9.            Where do you generally eat?  Do you generally eat breakfast?  Lunch?  Supper?

10.        Do you feel you are easily confused?

11.        When you were working, were you earning enough money to provide for your food and shelter?

12.        Do you have family members who depend on you for their food and shelter?

The counselor will have to choose/fashion appropriate questions and persist in deriving full disclosure to determine the client’s present needs.

1.            Do you believe you need to be on the defensive or people will take advantage of you?

2.            Do you think you live in a pretty safe neighborhood?  If not, explain.

3.            Do you get along with your family?

4.            Do you get along with your neighbors?

5.            Is there anyone who is threatening you?  Do you feel threatened?

6.            Do you frequently feel nervous or edgy?

7.            Have you been arrested for something?

8.            Do you believe the police in your area would help you if you needed help? 

9.            Do you have good locks on your doors and windows?

10.        Has your apartment/house ever been broken in to?

11.        Have you been mugged on the streets?

12.        Are there active gangs in your neighborhood?  If yes, do you sometimes feel threatened by gang members?

13.        Do you know anyone that was killed?

14.        Has your neighborhood experienced drive-by shootings?

15.        Do you feel you are too often alone?

16.        Are there any members of your family who are being threatened by someone?

The counselor will have to choose/fashion appropriate questions and persist in deriving full disclosure to determine the client’s present needs.

1.            Are you in regular contact with family members?  If so, who?

2.            Do you have neighbors or friends that you are particularly fond of?

3.            How frequently do you get to see members of your family?

4.            Do friends come by to see you or do you go to see your friends fairly regularly?

5.            Do you belong to any clubs? 

6.            Are you presently playing on any local sports teams?

7.            Have you ever volunteered to assist some local agency (the fire company, meals-on-wheels, or something like that) on a regular basis?

8.            Are there people who you think are rejecting your friendship?

9.            Do you feel you are being accepted by most people in your neighborhood?

10.        Is there someone you really love? 

11.        Do you believe there is someone that really loves you?

12.        Roughly how many people that you know would you call good friends?

13.        When you were working, did you like your job?

14.        When you were working, did you feel your supervisor was fair to you and respected your work?

15.        Did you generally get along with your fellow workers?

16.        Do you think your supervisor on your last job was a good supervisor?  If not, why not?

The counselor will have to choose/fashion appropriate questions and persist in deriving full disclosure to determine the client’s present needs.

1.            Have you ever thought about your strengths and weaknesses?

2.            What would you say are your most important strengths?

3.            What would you say are your most important weaknesses?

4.            Do you think your strengths outweigh your weaknesses or vice versa?

5.            Do you think most people respect you?

6.            Sometimes employers advertise for a “self-starter.”  Do you consider yourself a self-starter?

7.            Would you describe your general motivation as being high, medium, or low?

8.            What kind of people do you respect?  What about some people leads you to have respect for them?

9.            Would you like to be considered by people who know you to have some level of prestige or status?  Do you think you have prestige?

10.        Would you say you are generally confident about yourself or that you generally lack self-confidence?

11.        Is there any particular thing you’d like to do before you retire?

12.        Do you think most people who know you would call you self-confident?

13.        When you did work, do you think you were good at your job?

14.        Do you think you are respected (liked) by most people?

15.        Do you feel bored by your life?

The counselor will have to choose/fashion appropriate questions and persist in deriving full disclosure to determine the client’s present needs.

Rehabilitation Counselors assisting clients in returning to work should find the CEC/Maslow Construct a valuable framework from which to understand client motivation.  Clients who have been medically cleared to function at levels commensurate with gainful activity may not be motivated to work.  The challenge for the RC is to understand return-to-work resistance and to find a motivating strategy that will succeed.

Current thinking in terms of employment motivation is worker-centered as opposed to the old task-centered approach.  What are the implications of the CEC/Maslow Construct for better appreciating injured worker motivation?  One tactic to stimulating motivation is to understand where the client is in terms of Maslow’s Hierarchy.  Maslow’s theory says it is necessary to generally satisfy one’s basic needs before one can turn to meeting needs higher in the hierarchy.  But once a person has taken care of the needs at levels 1 and 2 (physiological and safety), then one is free, in fact motivated, to search for love, then self-esteem, and finally self-actualization.  The CEC/Maslow Construct encourages the RC to question the injured worker to help determine the level of need work previously satisfied for the client, and if the client’s post-injury lifestyle includes higher level need satisfaction through work.  Moreover, discovering unsatisfied needs can facilitate specific rehabilitation interventions to assist moving the client beyond the present level to higher levels of need satisfaction, hopefully involving work as a method of meeting those needs.

Tactics that may be employed to encourage injured worker motivation would seem to have greater potential for success when they truly meet the client’s needs.  This paper suggests that one way to better understand the injured worker’s needs is to apply the CEC/Maslow Construct.  It is hoped that creative application of the Construct and other vocational counseling methodologies will further contribute to validation of vocational rehabilitation as a means to self-fulfillment.

Attachments:

1.      The Hierarchy of Needs Diagram

2.      Sample Questions That May Be Asked of the Client to Determine Deficiency      Needs Level

3.      The Recommendation Set

4.      The Walker Vocational Examination Worksheet (Based on Maslow’s      Hierarchy)

5.      Recommendations Based on the Walker Vocational Examination

6.      A Guide to the Application of Maslow’s Hierarchy as Applied to Vocational Examinations

Attachment 1:

Are you interested in returning to work?

Are you presently experiencing pain or discomfort?

            If yes, what do you think would alleviate that pain/discomfort?

Do you feel bored by your life?

Do you believe you need to be on the defensive or people will take advantage of you?

Do you mind being alone?

Are you a member of any club or similar group?

Roughly how many people that you know would you call good friends?

Do you think people are prejudice against you for any reason (religion, race, social, etc.)?

What do you think you need to make your life better?

Do you generally have enough food?

Do you think you are easily confused?

Do you feel threatened by anyone or anything?

When you were working, were you earning enough money to provide for your food and shelter?

When you were working, did you like your job?

Did you generally get along with your fellow workers? 

Do you think the supervisor on your last job was a good supervisor?

If you could pick your own job, what kind of job would you want?

Do you have family members or others who depend on you for their needs?

When you did work, did you feel you were treated fairly by your supervisor?

Do you think you are respected (liked) by most people you know?

When you did work, do you think you were good at your job?

Client:             ______________________________________

Counselor:            ______________________________________

·        This individual is motivated to return to work.  We make the following recommendations to facilitate the return.

·        This individual is not presently ready to return to work.  The following specific interventions are required.

Client:             __________________________________________

Counselor:            __________________________________________

 The Deficiency Need                                           Anecdote/Observations

Attachment 5:

Client:             ________________________________________

Counselor:      ________________________________________

_____     Is motivated to want to return to work

_____     Is not motivated to want to return to work

Recommended Interventions:

_____   Social services to provide specific physiological needs as noted.  (May require medical referral.)

                                          ______________________________________________

                                          ______________________________________________

_____   Social or municipal services to provide safety needs as noted.  (May require psychological/psychiatric referral.)

            ______________________________________________

                        ______________________________________________

_____   Social services to establish affiliations.  (May require family counseling referral. )

                        ______________________________________________

                        ______________________________________________

_____   Psychological services to foster self-confidence.

                        ______________________________________________

                        ______________________________________________

Note: All recommendations are required to fully identify specific services!

Attachment 6:

A Guide to the Application of Maslow’s Hierarchy as Applied to Vocational Examinations:

Moving vertically from one deficiency need to the next highest is, for the Vocational Counselor, a subjective decision.  The hierarchy is general and cannot be quantified.  (Maslow suggested an 85 percent satisfaction at the Physiological Need level to move up, but that is totally a subjective determination.)  As further guidance to each of the deficiency needs, the following notes are provided:

Physiological Needs:  Anything needed by the body to survive.  These are life or death issues: food, water, and oxygen.  It is impossible to create a definitive list of these needs, but basic counseling techniques can identify the imminent and critical.  If the client has a deficiency at this level, nothing can be gained until the deficiency is addressed, and the need is relatively well gratified.

Safety Needs: When physiological needs are satisfied, a new set of needs must be considered.  These “safety” needs can be defined as personal (or family) security, stability, dependency, protection, freedom from fear, amelioration of anxiety and chaos, provisions for structure, order, law abiding, and recognition, and respect for limits.

Belongingness and Love Needs: Basic to this need is the giving and receiving of affection.  The absence of either or both of these needs will lead the client to long for a mate, friends, children, and others of significance.  The need can only be gratified through meaningful relationships, by a significant place in the family or another relevant group.  The manifestation of the need for love and/or inclusion is reflected as loneliness, ostracism, rejection, friendlessness, and rootlessness.

Esteem Needs: Generally, everyone experiences a need for a consistently high self-evaluation that contains a healthy self-esteem and respect and esteem for others.  Self-esteem is a prerequisite for self-respect and respect for others.  Self-esteem may be further divided into two focuses: internal and external.  The internal focus includes the desire for achievement, adequacy, competence, mastery, independence, and freedom.  The external focus is on achieving a desirable reputation, having prestige, status, being recognized, feeling important, and having fame and even glory.  Self-esteem is essential for self-confidence and feeling wanted.

Boydston, Jo Ann, Ed. (1967-1991).  The Collected Works of John Dewey.  Carbondale, IL: Southern Illinois University Press.

Hertzberg, Frederick. Work and the nature of man. (1966). Thomas Y. Crowell Co, New York.

Maslow, Abraham (1943). A theory of human motivation.  Psychological Review, 50, 370-396.

MacGregor, Douglas (1960).  The Human Side of Enterprise.  McGraw-Hill, New York.

Thorndike, Edward Lee (1943).  One Man and His Works, Harvard University Press, Cambridge, MA.

Employers and Rehabilitation Professionals often fail to facilitate returning injured workers to productivity because of the antiquated ways in which organizational representatives conceive of occupational disability and return to work.  This program focuses on the notion that rehabilitation professionals and organizations construct interventions based on obsolete language and associated broken paradigms.  These models of return-to-work intervention generally fail because of the language used as a basis to describe the behaviors of the injured worker, the rehabilitation professional, and the organization interested in seeing the employee back to work.  A new lexicon will be presented, and related rehabilitation interventions and organizational methods of return to work will be set forth and discussed in a more effective working model for industrial rehabilitation.

Simply applying semantic nuances to the terminology that presently guides vocational rehabilitation would be unproductive.  The “new” terms offered here are based on significant changes in the way industrial rehabilitation is conducted in many, if not most, contemporary vocational rehabilitation and disability management programs.  In some instances, the terms may appear not to be new, but the intervention that derives from the term will be significantly different from the common practice.  The “new” terms include the following:

1. Impairment v. Disability

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

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

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

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

Iatrogenic disability need not be the result only of surgical intervention.  Physician induction of disability can often result from mere suggestion.  The susceptible, or all-too-vulnerable patient can hear, or think he heard, the physician say that he was “unable to work.”  Physicians unknowingly underestimate, or consciously abuse, the power invested in them by the generally naïve health care recipient. 

Disability induction through iatrogenic means is sometimes a function of the employer not insisting that its health care providers stay within their disciplines and avoid making vocational decisions.  Employers and employees make vocational decisions; physicians diagnose and treat disease.

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

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

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

Psychogenic: Suggests the inability to work because of symptoms caused or produced by mental or psychological factors rather than organic problems.  Depression, substance abuse, personality disorders, and psychosis can lead to psychogenic disability.  Such “disability” is, unfortunately, often assessed by health care professionals who legitimize symptoms manifested following the diagnosis of a disease or disorder that is not necessarily disabling. 

According to Lowman[v], work dysfunction refers to those psychological conditions in which there is a significant impairment in the capacity to work caused either by characteristics of the person or by interaction between personal characteristics and working conditions.  Psychological characteristics or diseases of the worker (e.g., bipolar disorder) that cause impairment in work functions or interactions with others in the workplace are work dysfunctions.  Obviously,not all psychological dysfunctions become work dysfunctions, but when the employee’s psychological structure interferes with occupational performance, work dysfunction may be present.  Work dysfunction can be the prodrome (precursor)  of occupational disability.

Is there a phenomenon that we might call “disability proneness?”  Do some employees have a predisposition toward disabling disease or injury?  If disability proneness exists, what can work organizations do about it?  More fundamentally, if disability proneness exists in a work population, should an employer attempt to do anything about it?

These and similar questions have intrigued Corporate Education and Consultation (CEC) Associates, Inc., for over two decades.  After evaluating nearly 4,000 injured workers, we have more than ample evidence that certain individuals, under the right conditions, manifest a proneness to disabling injury or disease, and some of those individuals find their injuries or diseases vehicles upon which they can leave the workplace and still survive.  We have confirmed severally the existence of what R.C. Behan and A.H. Hirschfeld[vi], nearly 40 years ago, termed the “accident process.”

Doctors Behan and Hirschfeld, occupational medicine physicians treating injured workers from Detroit’s automotive factories, concluded that certain worker personality difficulties, coupled with troubled life situations, equated to “unacceptable disability.”  Unacceptable disability was associated with poor self-esteem and poor work performance, and once an accident or explanatory event took place, unacceptable disability could be converted into acceptable disability.  Behan and Hirschfeld offered the following model to illustrate their observations:

            Personality                    +          Troubled life                 =          Unacceptable

            difficulties                                   situation                                      disability

            Unacceptable               +          Accidents,                    =          Acceptable

              disability                                 illnesses,                                       disability

                                                            alcoholism, etc.

Those wise and insightful physicians found that the successful treatment of physical diseases did not necessarily resolve disability.  They concluded that particular employees, under certain conditions, could manifest disability without disease.

In one case study conducted by CEC, a retrospective cost analysis found that with wage replacement, medical, legal, and administrative claims costs, the claimant’s “accident” cost the employer’s insurance carrier more than $675,000 before they reached an $85,000 commutation of her benefits.  Notably, this was only a portion of the total costs that were precipitated by a crack in the factory floor, which caused a fall[vii].

Unfortunately, most employers do not appreciate how much they actually spend in workplace disability costs.  One of the nation’s foremost disability insurers, UNUM Life Insurance Company of America[viii], has studied workplace disability for decades.  Findings from UNUM’s ongoing research into the “Full Cost of Workplace Disability” reveal that the average company spends 8.6% of payroll on workplace disability.  The average company spends $2,860 per year for each employee on payroll just to cover the company’s disability expenditures.

Federal Express reviewed its workers’ compensation losses several years ago and found that 19% of the company’s workers’ compensation claims drove 79% of its workers’ compensation costs, indicating that a relatively small percentage of claims were responsible for the vast majority of monies spent.  Were some of these claims brought about by employees who were disability prone, perhaps not unlike the CEC case cited above.

Notwithstanding the efficacy of the disability proneness concept, proactive organizations can take steps to keep employees as healthy as possible and reduce disability expenditures, absenteeism, and work dysfunction by instituting comprehensive Disability Management Programs.  Review of the best practices of organizations that have reduced disability costs reveals that workers’ compensation and non-occupational disability expenditures can be mitigated with the following strategies and outcomes: 

Work organizations have found that they can reduce all disability costs between 25% and 30% during the first full year of disability management implementation.

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

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

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

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

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

The American Psychiatric Association, in its Diagnostic and Statistical Manual of Mental Disorders[x], defines malingering as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.  Under some circumstances, malingering may represent adaptive behavior, for example, feigning illness while a captive of the enemy during wartime.  In the workplace, malingering is too often a ‘cooperative process’ in which two or more parties are involved.” In that case, the appropriate descriptive term should be “co-malingering.”  [The concept of “co-malingering” was introduced by Dr. Ken Mitchell, a nationally recognized authority on Disability Management programming. Since learning of Mitchell’s description of the reality of what frequently happens in disability management, CEC Associates, Inc., has worked to incorporate the concept into the practice of disability management and expert testimony in forensic cases.]

Whereas malingering is the intentional production of false or grossly exaggerated symptoms by an individual, co-malingering is the process and perhaps the result of collaboration in keeping the injured party out of work; the injured person has found a partner, or partners, in her efforts to remain disabled.  Surprisingly, employers are often partners in the dance of co-malingering.  Injured workers are frequently viewed as troublemakers, and supervisors are all too willing to assist in the lost-time process by refusing to return the injured employee to work, with or without some type of accommodation.  Perceived as taking advantage of the compensation system, the injured employee is given messages that she is unwanted, and if the injured or ill employee is returned to “light duty,” those work assignments are often so demeaning that the employee quickly learns that there is little or no reason to remain at work.  An injured worker can find one or more other partners, including a physician, a lawyer, a spouse, or any significant other who assists the injured employee in exhausting her disability alternatives and compensation options by remaining out of work after the onset of an injury or illness.

The Maslow Hierarchy[xi] is a well-known, and frequently applied, standard of workplace motivation.  Maslow classified motivation into five levels by conceiving a hierarchy (pyramid) of needs:

Injured worker motivation is one of the essential issues of vocational/disability evaluation and occupational rehabilitation.  Rehabilitation Counselors and Case Managers are frequently disappointed by injured workers’ responses to return-to-work opportunities following periods of lost time.  Moreover, rehabilitation professionals are not the only members of the system who are either frustrated by, or at least concerned with, injured worker motivation.

Over the years, through thousands of interviews, the Rehabilitation Counselors of CEC Associates, Inc., have heard injured employees’ reasons for remaining out of work.  Besides the injured workers’ claims that they cannot work physically or mentally, they often share their individual resentments, fears, concerns, desires, and attitudes associated with their accidents and injuries, as well as their relationships with their employers before and after being displaced from the workforce.  Much can be learned from injured employees when they are questioned effectively. 

However, adequate questioning is only the start. An injured worker’s return-to-work motivation requires a model of motivation from which appropriate and effective questions can be generated.

A new approach to motivation came into being in the 1960s that refocused productivity away from technology to the role of human beings in the process. The pivotal idea was spearheaded by Abraham Maslow, who conceived of human motivation as developmental.  Maslow’s Hierarchy provides the basis for understanding how to motivate individuals to return to work.

Maslow points out that the hierarchy is dynamic, and the dominant “need” is always shifting.  For example, a musician may be lost in the self-actualization of playing music, but eventually becomes tired and hungry so she has to stop.  A machine operator may go to work every day in a factory where he is ignored and treated with indifference only to generate enough money to support his much beloved hobby of antique car restoration, an activity that has brought him esteem and notoriety.  Moreover, any single behavior may combine several levels.  For example, eating dinner with friends or family is both physiological and social.  Indeed, maintaining gainful activity provides money for food and shelter (physiological) and potentially an opportunity for some to achieve a measure of self-satisfaction (esteem).

Maslow also explains that satisfaction is relative.  The hierarchy does not exist by itself, but is affected by the situation and the general culture.  In a work setting, for example, rewards from management, or the organizational “culture,” can fulfill/increase a worker’s esteem, or in some cases, self-actualization.  Self-actualization is defined as “the desire to become more and more of what one is; to become everything that one is capable of becoming.”  In other settings, workers may be so threatened by management or the culture that the work itself tends to fulfill the employee’s safety needs (i.e., obeying rules to prevent being fired), but no higher needs.  Unions began in America because they appealed to the physiological and safety needs of workers.

Needs are “pre-potent.”  A pre-potent need is one that has the greatest influence or power over actions.  Everyone has pre-potent needs, but the needs will vary among individuals.  A drug addict will need to satisfy his cravings (physiological) in order to function in society and will not worry about being accepted by others.  A teenager may use drugs because of peer pressure – to feel that she is indeed part of a group (a love need).  According to Maslow, “At once other (and higher) needs emerge, and these, rather than physiological hungers, dominate the organism.  When these needs are satisfied, new (and still higher) needs emerge, and so on.  As one desire is satisfied, another pops up to take its place.”  Maslow described the human being as a “wanting animal,” that “rarely reaches a state of complete satisfaction except for a short time.”

In revisiting Maslow’s breakthrough work on motivation, the professionals at CEC Associates, Inc., came to realize that the generalized “Hierarchy of Needs” model can be applied to the specific efforts of Vocational Rehabilitation Counselors to return injured workers to productivity[xii].  When we began to use the model as a touchstone for return-to-work counseling, we felt that by considering the level of need at which the client was functioning and addressing how that need could be ameliorated, we could achieve significantly improved outcomes.  The objective is to move the client up the Hierarchy.

Mediation is the single most effective method available to resolve disputes between individuals.  Originally it was developed as a pre-trial process that could be used to cut down the number of disputes that would become court cases.  If the disputants could agree, the case need not go further, thereby expediting the outcome and reducing the cost.  Divorce disputes, for example, can frequently be resolved through mediation.

Dr. Dan Dana[xiii], founder of the Mediation Training Institute International, and an experienced mediator, recognized the need for mediation in the workplace and tailored basic mediation methods for this specific application.  Dana’s methods are called Managerial Mediation.

Managerial Mediation has been proved to be highly successful in the workplace. Mediation works, it can readily and quickly be taught to managers, and it is an inexpensive cost factor.  Unresolved conflicts are extremely costly to employers.  Many workplace injuries begin as a dispute between one or more employees.

To address this reality, well-managed companies train their managers to mediate disputes.  When they are trained and there is an active mediation process in place, the costly consequences of many conflicts are avoided.  Costs to the organization of interpersonal conflicts can be measured by designing and operationalizing a data collection process.

There are several different types of conflict in the workplace.  These include boss-employee, employee-boss, and employee-employee.  The training in Managerial Mediation describes the detailed situations when mediation will work as well as the situation or conditions when it will not work.

The training also includes methods on how the mediation is set up, how the context of the dispute is addressed, the tasks of the manager/mediator in conducting the mediation, how agreements are “contracted,” and how agreements are followed-up.

10. Primary and Secondary Gain

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

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

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

Over the years, CEC Associates, Inc., has evaluated hundreds of injured workers who have become resigned to their status of “totally disabled” following a process that has included several stages.  The stages and process were well defined years ago in a 1978 article written by M.R. Weinstein[xiv] who, recognizing the contributions of Behan and Hirschfeld, described the Disability Process.

Weinstein noted that certain individuals who had personality dysfunctions and troubled lives had the disposition to experience a crisis buildup during which the personality problems worsened from pressures at home and/or work.  This led to what the Detroit physicians had earlier described as “unacceptable disability.”  The troubled worker’s vulnerable character plus increased job tension (from promotion, demotion, failure, reduced seniority or status, or other changes) and/or family tension led to increased somatic complaints, increased physician contacts, increased absenteeism and lateness, and decreased productivity.  The worker would manifest irritability, blamefulness, and depression.  Disability, in its unacceptable phase, manifested itself before an accident or event and was, indeed, a process.  Retrospectively, the antecedents of disability are evident. (As they were in the case mentioned above.)  Disability only needed to formalize itself by beginning with an accident or explanatory event.  Once the event took place, the disability could be said to have a cause.

The formulations of Behan, Hirschfeld, and Weinstein continue as truisms in protracted disability claims.  Some, perhaps many, employees who have difficulty returning to work following an accident (explanatory event) were at risk prior to the accident (or illness).  The accident simply becomes the identifiable reason for lost time.  When the consequences of that event (or illness) become greater and last longer than expected, we are puzzled.  Followed by further puzzling diagnostic findings and failed treatment methods, including the confusion between impairment and disability, the absent worker’s changed status and the “disability lifestyle” eventually stabilize.  Disability becomes crystallized and almost desirable.  With further sanctions and labeling from the high priests of our society, mainly physicians and judges, disability becomes a way of life for too many individuals who were simply troubled psychologically and socially before they found a way to escape a perceived toxic work situation.  In essence, we have learned that some workers’ compensation claims are actually toxic torts!

Time and time again, the histories of injured employees tell us, in one way or another, that they were troubled at work and/or in their personal lives before an explanatory event, or so-called “work-related accident.” Although it is not suggested that accidents do not happen, we must appreciate the ideas and contributions of insightful occupational medicine specialists like Behan and Hirschfeld, who many years ago recognized the process of disability without disease.  Whether there are disability-prone employees in our organizations is a rather moot and perhaps only an empirical question.  All of us can become troubled at some point in our lives, and, under the right conditions, those troubles can manifest in unacceptable disability.  What we can only hope for is that responsible individuals around us will take the correct steps and intervene helpfully and appropriately.

These steps and interventions need not be altruistic or outside the realm of good human-resource management.  Employers who cynically believe that proactive disability management is an apology for malingerers, exaggerators, and frauds in the workplace will never understand the message.  The worker’s advocate may misinterpret the proposals provided here as methods only to manipulate people back to work.  In fact, the proactive strategies and outcomes provided above are good for both employer and employee.

As the worker population ages, more and more valued employees will be susceptible to musculoskeletal wear-and-tear disorders, as well as non-exertional stressors that seem to be associated with aging.  Disability proneness, if it truly exists, is probably not a character flaw, but it could be very expensive for both employee and employer.  How labor and management address the problems of disability in the workplace remains a significant issue even 30 years after Behan and Hirschfeld began finding disability without disease.  We submit that a “new” lexicon and a new paradigm must be adopted to help employers proactively manage workplace disability.

The General Assembly of Pennsylvania, House Bill No. 88, Session of 2003, Printer No. 3082, 12/10/03.

2004 Pennsylvania Workers’ Compensation Guide, Pennsylvania Chamber of Business and Industry, 2003. 

Pennsylvania Bulletin, Volume 27, Number 14, Fry Communications, Inc., Mechanicsburg, PA, 4/5/97.

Patrick Dunn, Ph.D., CRC, and Hal M. Cain, Ph.D., CRC, Comparisons of Pre-Injury Characteristics of Injured Workers Across Levels of Post-Injury Occupational Congruence: Potential Applications for Transferable Skills Analysis, The Journal of Forensic Vocational Analysis, Volume 4, Number 1, December 2001. 

Office of Hearings and Appeals, Social Security Administration, Vocational Expert Handbook, February 1990. 

Commission on Rehabilitation Counselor Certification, Code of Professional Ethics for Rehabilitation Counselors, adopted 6/01.  (http://www.crccertification.com/code.html)

Beth McLaughlin and Jasen Walker, Ed.D., The Function of Testing in the Vocational Evaluation Process. (http://www.cecassoc.com/CEU/articles/Series%2005.htm#two)

Jasen Walker, Ed.D., Understanding Vocational Testing (in the Forensic Vocational/Disability Evaluation Process). (http://www.cecassoc.com/CEU/articles/Series%2005.htm#two)

 Sec.
122.201.  Purpose.
122.202.  Qualifications.
§ 122.201. Purpose.

This subchapter interprets the provisions of the act which require the Department to approve experts who will conduct earning power assessment interviews under section 306(b)(2) of the act (77 P.S. §512(b)(2)), as well as sections 314 and 449 of the act (77 P. S. §§ 651 and 1000.5). The experts contemplated by this subchapter are vocational evaluators.

§ 122.202. Qualifications.

In order to be an expert approved by the Department for the purposes of conducting earning power assessment interviews, the individual shall possess a minimum of one of the following:

(1) Both of the following:
(i)  Certification by one of the following Nationally recognized professional organizations:

(A)  The American Board of Vocational Evaluators.

(B)  The National Board of Certified Counselors.

(C)  The Commission on Rehabilitation Counselor Certification.

(ii) One year experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include but are not limited to the following:

(A)  Job seeking skills.

(B)  Job development.

(C)  Job analysis.

(D)  Career exploration.

    (E)   Placement of individuals with disabilities.

(2) Certification by a Nationally recognized professional organization under the direct supervision of an individual possessing the criteria in paragraph (1).

(3) Experience testifying as a vocational evaluator in the social security system.

(4) Possession of a Bachelor’s degree or a valid license issued by the Department of State’s Bureau of Professional and Occupational Affairs, so long as the individual is under the direct supervision of an individual possessing the criteria in paragraph (1).

(5)   At least 5 years experience in the Pennsylvania Workers’ Compensation system prior to August 23, 1996, as a vocational evaluator, with experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include but are not limited to the following:

(i)    Job seeking skills.

    (ii)   Job development.

    (iii) Job analysis.

    (iv) Career exploration.

    (v)   Placement of individuals with disabilities.

April 5, 2002

MR JASEN M WALKER

1220 VALLEY FORGE RD UNIT 9

P0 BOX 987

VALLEY FORGE PA 19482-0911

Dear MR WALKER:

The Department of Labor and Industry received your verification form in which you indicated that you meet one or more of the qualifications set forth in 34 Pa. Code § 123.202 to qualify as an expert to conduct interviews to assess earning power under the Workers’ Compensation Act.

Based on your verification, you meet the qualifications of 34 Pa. Code § 123.202. Accordingly, the Department considers you approved to conduct interviews to assess earning power under the Workers’ Compensation Act.

This approval is being provided solely on an interim basis pending the outcome of any appeal of the Commonwealth Court holding in the matters of Caso v. Workers’ Compensation Appeal Board (Philadelphia School District) and Walker v. Workers’ Compensation Appeal Board (Temple University Hospital). The Department may revise its procedures relating to vocational experts as future developments warrant.

Sec.

123.201.  Purpose.

123.202.  Qualifications.

123.203.  Credibility determinations.

§ 123.201. Purpose.

This subchapter interprets provisions of the act which require the Department to approve experts who will conduct earning power assessment interviews under sections 306(b)(2) and 449 of the act (77 P. S. §§ 512(b)(2) and 1000.5). The experts contemplated by this subchapter are vocational evaluators.

§ 123.202. Qualifications.

To be an expert approved by the Department for the purpose of conducting earning power assessment interviews, the individual shall possess a minimum of one of the following:

(1) Both of the following:

(i) Certification by one of the following Nationally recognized professional organizations:

(A) The American Board of Vocational Experts.

(B) The Commission on Rehabilitation Counselor Certification.

(C) The Commission on Disability Management Specialists Certification.

(D) The National Board of Certified Counselors.

(E) Other Nationally recognized professional organizations approved by the Department.

(ii) One year experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include the following:

(A) Job seeking skills.

(B) Job development.

(C) Job analysis.

(D) Career exploration.

(E) Placement of individuals with disabilities.

(F) Vocational testing and assessment.

(2) Certification by a Nationally recognized professional organization specified in paragraph (1) (i) under the direct supervision of an individual possessing the criteria in paragraph (1).

(3) Possession of a Bachelor’s degree or a valid license issued by the Department of State’s Bureau of Professional and Occupational Affairs, as long as the individual is under the direct supervision of an individual possessing the criteria in paragraph (1).

(4) At least 5 years experience primarily in the workers’ compensation field prior to August 23, 1996, as a vocational evaluator, with experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include, but are not limited to, the following:

(i) Job seeking skills.

(ii) Job development.

(iii) Job analysis.

(iv) Career exploration.

(v) Placement of individuals with disabilities.

(vi) Vocational testing and assessment.

§ 123.203. Credibility determinations.

Credibility determinations relating to the experts contemplated by this subchapter are within the province of the workers’ compensation judge.

PART I: Critical Issues Stemming from the Difference Between Impairment and Disability

Litigation in personal-injury cases is generally focused on damages.  The question is, “What economic impact does the injury and resultant unemployment have on the plaintiff?”  The assessment of damages is a tripartite process that requires each of the following:

1.      Medical expertise to assess impairment (mental and/or physical).

2.      Vocational opinion to evaluate the occupational effect of the medical impairment.

3.      Economic analysis, an effort to quantify monetary losses over the plaintiff’s worklife expectancy.

The absence of any one of these inputs can invalidate the damage assessment.

Frequently there is confusion in litigation of personal injury regarding the difference among medical, vocational, and economic disciplines, particularly with regard to the distinction between medical impairment and vocational disability.  This distinction is critical in facilitating a jury’s or judge’s understanding of how a particular individual is, or is not, vocationally disabled.

Occupational disability arises out of the discrepancy between what a person with an impairment, or history of impairment, can do and what a particular job demands of that person.  Therefore, although the loss of a leg above the knee would totally disable an NFL wide receiver, at least in terms of playing professional football, the very same medical impairment, an above the knee amputation, would not necessarily cause disability for a trial lawyer.  (This particular scenario could be modified to include psychiatric – or mental – impairment resulting from traumatic loss of the limb and a resultant anxiety and depression that interferes with the lawyer’s cognitive status.  If judged severe enough and permanent, the lawyer’s diminution in pre-accident cognitive abilities could cause disability for practicing law effectively.)

The frequently encountered confusion between medical impairment and vocational disability obfuscates the certain findings and professional opinions sought by both members of the bar and the adjudicator assigned the responsibility of determining personal-injury damages.  Specifically, physicians are generally not trained to evaluate occupational disability just as vocational experts are not generally trained to diagnose and treat the sources of medical impairment.

Key to this aspect of the role of the physician in the impairment-disability distinction is the precise language of the Guides to the Evaluation of Permanent Impairment, 5^th Edition, 2000, a publication of the American Medical Association (AMA).  The following definitions, stated at the outset of the AMA Guides (page 3) are critical to the understanding of the difference between impairment and disability:

            Impairment:            A loss, a loss of use, or derangement of any body part, organ, system, or organ function

            Disability:                An alteration of an individual’s capacity to meet personal, social, or occupational demands because of an impairment.

            Physician’s Role:     Determine impairment, provide medical information to assist in disability determination.

            Comments:             An impaired individual may or may not have a disability.

These definitions, stated for the use of medical practitioners by the AMA, clearly insist that the responsibility of the physician is with the impairment, and the responsibility for determining disability lies elsewhere. 

While the duty and responsibility of the physician to determine “impairment” is spelled out by the AMA, there is no comparable authoritative documentation to insist on who is prepared, by professional credentials and experience, to determine “disability.”

Because there is no source comparable to the AMA Guides to determine vocational disability, litigation cases frequently turn on the refusal of the justice system to conclude that when a physician decrees that a patient is “disabled,” the physician is not competent to do so.  Parenthetically, there may be rare instances in which the physician is also trained as a vocational expert or the physician has access to a relevant job description that the competency argument may not apply. 

The Guides to the Evaluation of Permanent Impairment is designed to provide physicians with a “tool for the quantification of impairment for legal purposes.”  There is no comparable guide to quantify disability.  Instead, the quantification is done by professionals trained in the application of tools such as the vocational evaluation, psychometric assessment methods and materials, labor market analysis, job analysis, ergonomic resources, job accommodation, etc.  (In addition to the occupational specialist, a Labor Market Analysis specialist may also play a key role in bringing specificity to the pertinent reimbursement issues.)

What is needed is a way to bridge the gap between medical impairment and the extent of vocational disability.  The key players in this transition are the attorneys, both plaintiff and defendant, who work with work-injury cases.  It is these attorneys who are responsible for educating the justice system in the fundamental and crucial difference between impairment and disability, and the equally clear responsibility of physicians and vocational specialists in the resolution of instances in which these different realities are essential to the case.

The problem of disability in America and its cost to our economy is a growing concern for both American business and for government.  The Americans with Disability Act (ADA) of 1990 is as much economic legislation as it is an extension of equal rights to all citizens.  As it held hearing on the ADA, 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, and unemployment in the year 2004 among Americans generally thought not to be disabled, has exacerbated the problem.

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 one trillion dollars 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 cost of workplace disability absorbed an average of 8% of payroll expenditures.  Thus, both public and private sector economies are hard pressed by disability and the associated loss of revenue.

If we are to reduce the cost of workplace disability, employers and their disability claims representatives must come to understand that in many, if not most, cases employees who have been injured can be returned to productivity.  That is, when they are evaluated by certified vocational counselors, they are frequently found to be suitable for some aspect of productive work, in many instances something other than the job they did before injury.  In reality, the same impairment can result in different degrees of disability depending upon the specific work situation.  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.

Understanding the critical difference between impairment and disability has been significant for many human resources and risk management personnel.  Charged with the responsibility of decreasing employment costs, they have learned to solve the problem by returning permanently impaired employees to work.  Through this process, risk managers have learned to modify work or work settings to accommodate a workers’ impairment and associated limitations. 

Work changes and modifications are increasingly more acceptable to both employees and employers, and the reality of this workplace acceptance now needs to be broadened to those professionals in the larger work injury system, especially the attorneys representing injured workers.  Disability Management Programs are more-and-more the norm, especially in well-managed companies.  Attorneys need to recognize the success of these programs and support their clients, either individual employees or employers, by working for comparable acceptance in the litigation process.

Both attorneys and rehabilitation counselors are bound by Codes of Ethics and Standards of Practices for their professions.  The ethics that pertain to rehabilitation Counselors include:

“When providing forensic evaluations, the primary obligation of rehabilitation counselors will be to produce objective finding that can be substantially based on information and techniques appropriate to the evaluation, which may include examination of an individual with a disability and/or review of records.  Rehabilitation counselors will define the limits of their reports or testimony, especially when an examination of the individual with a disability has not been conducted.”  (Section F.12, forensic Evaluation of the Code of Professional Ethics for Rehabilitation Counselors, The Commission on Rehabilitation Counselor Certification.)

In the same way, when representing employees in forensic cases, attorneys are responsible, at minimum:

1.      To understand the significance of vocational disability as being different from medical impairment.

2.      To understand that physicians are generally not competent to define the level of, or to quantify, disability.

3.      That many, if not most injured workers, can return to productivity after treatment for a workplace injury. 

Part II: Commentary on Act 53 and Rehabilitation Counselors’ Dilemmas

The following is commentary that CEC Associates, Inc., a disability management consultancy, recently offered to the Pennsylvania Bureau of Workers’ Compensation and the Commission on Rehabilitation Counselor Certification regarding Act 53, which in December 2003 amended Act 57.  This commentary references other documentation that is available from CEC Associates, Inc., in Valley Forge, Pennsylvania, upon request.

The Pennsylvania Workers’ Compensation Act (PWCA) has never contained a provision for vocational rehabilitation.  Historically, employers have had to demonstrate “job availability” in order to modify or terminate an employee’s wage replacement benefits.  Beginning sometime in the 1970s, it became a common practice to hire rehabilitation counselors to evaluate injured employees and survey the labor market for employment that the injured employee was thought to be capable of performing.  Much more often than not, the rehabilitation counselor-client (injured worker) relationship was adversarial in nature both because the PWCA had no provisions for vocational rehabilitation and because few employers offered work within their own organization to the injured employee. 

Vocational evaluations almost always began an effort to “outplace” the injured worker (claimant).  This outplacement process was sometimes successful for a variety of reasons, but, more often than not, it was unsuccessful for another variety of reasons.  Sometimes they were unsuccessful because the injured worker was represented by a lawyer who was not in favor of a return to work that would result in a potential reduction or cessation of the worker’s wage replacement benefits.  (In Pennsylvania, claimant’s counsel has the right to 20% of the represented claimant’s wage replacement benefits indefinitely.)

Without law governing an injured worker’s behavior and responsibility in the job placement process, so-called “job availability” became increasingly adversarial, and most disputes over available employment were settled in court.  Injured workers would be evaluated; Rehabilitation Counselors would survey the labor market and present job opportunities to the injured worker who was sometimes resistant to vocational rehabilitation and job placement.  Actual job placements became less frequent than “job availability” testimony offered by Rehabilitation Counselors.  Defendants (employers) hoped that Rehabilitation Counselor testimony would be sufficient to petition the court for modification of the claimant’s benefits.  As expected, this only increased the litigious nature of the “job availability” process.

When many of the “job availability” court decisions began to be challenged, case law addressed the ambiguities.  The Pennsylvania workers’ compensation court system essentially answered questions that the legislative law had not been prepared to address, including the question of what constituted proof of “job availability.” 

A number of decisions following a particular case known as Kachinski became particularly controversial, and, again, for a variety of reasons.  The court system made decisions that were basically antithetical to the rehabilitation process as it was known.  This series of decisions was sometimes referred to as the “Kachinski Doctrine.”  (In this commentary, we will not go into those particular court decisions in detail, but we have listed as references Pennsylvania legal newspaper articles that might be helpful in understanding the evolution of this particular quagmire.)

However, two court cases following Kachinski, namely Brown and Young, led to defendant employers requesting Rehabilitation Counselors not only to disclose all aspects of the claimant’s medical history, but also to be present during job selection interviews.  If Rehabilitation Counselors were found not to be present during the job interview, the potential job offer testimony could be considered hearsay.  All of this nonsense made an already difficult situation for Rehabilitation Counselors not only more unmanageable, but generally unethical as well.  Moreover, the PWCA case law and its demands of defendant employers helped to make the demonstration of job availability very expensive to the entire system.  Because of escalating workers’ compensation costs in general, the Pennsylvania legislation enacted a new law, Act 57, in 1996.

Pennsylvania Workers’ Compensation Act 57 was a wholesale revision of PWCA, and among the revisions was an attempt by legislature to bury the “Kachinski Doctrine.”  Among the new provisions of Act 57 was the definition of “earning power,” the mechanism by which employers could establish the claimant’s “partial disability” and associated reduction in benefits.  According to Act 57, “In order to accurately assess the earning power of the employee, the insurer (employer or insurance carrier) may require the employee to submit to an interview by an expert approved by the department.”  (For a more comprehensive look at establishing earning power under Act 57, please request a recent article, “Establishing Earning Power Under Act 57,” listed in the references.)

There were some bureaucratic complications associated with “experts” as “approved” by the Department, meaning the Bureau of Workers’ Compensation, and we will not discuss them here because they are largely irrelevant.  However, resolution of those complications in fact required a Pennsylvania Supreme Court Decision, Caso, and further legislation in the form of Act 53, signed into law in December 2003.

Importantly, Pennsylvania Act 53 states:

“In order to accurately assess the earning power of the employee, the insurer may require the employee to submit to an interview by a vocational expert [approved by the Department and] who is selected by the insurer and who meets the minimum qualifications established by the Department through regulation.  The vocational expert shall comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses (emphasis added).”

Here is where we believe Rehabilitation Counselors seek guidance.  CRCs generally seem unsure of whether they are required to approach the injured worker (evaluee) as a client to whom they might ultimately be asked to provide rehabilitation and job placement services or as an examinee that they are seeing for forensic purposes only.  In fact, Act 57 was intended to reformulate the rehabilitation counselor-injured worker relationship to “earning power assessment” only, not to facilitate or imply vocational-rehabilitation services.

When the framers of the Workers’ Compensation Act reformulated the notion of “partial disability,” they considered the Social Security model of expert testimony, but, significantly, unlike Social Security Vocational Expert services, allowed for an “expert” interview.  Thus, as they are written, PWCA 57 and Act 53 themselves would call for ethical behavior “pertaining to the conduct of expert witnesses” only.  The problem arises when Rehabilitation Counselors agree to carry out “job availability” measures that reflect the “Kachinski Doctrine” perhaps because workers’ compensation insurance carriers, defense attorneys, and employers believe that the Workers’ Compensation judges remain adamant that “earning power” assessment alone is insufficient and that “job availability” testimony will still be necessary for the employer/defendant to meet its burden of proof.  Apparently, case law is not nullified by legislative restructuring of the workers’ compensation act.

When the Rehabilitation Counselor agrees to pursue job placement-like steps to show “job availability” as opposed to simply formulating an opinion regarding “earning power,” the rehabilitation counselor-claimant relationship arguably changes and potentially involves ethical behaviors beyond those “pertaining to the conduct of expert witnesses.”  Rehabilitation Counselors fear that claimant’s lawyers will argue in civil suits that the CRC has not adhered to the Code of Ethics and has committed “vocational malpractice.”  (A recent workers’ compensation case, Taylor v. Woods Rehab Services, 2004 PA Superior, March 30, 2004, relinquishes jurisdiction and essentially allows the plaintiff to bring the suit to a civil court.)

CRCs fear that they will be sued for “vocational malpractice” if they agree (or acquiesce) to carry out both earning power assessments and/or “job availability” measures in order to satisfy a skeptical judge or to more fully provide the adjudicator with sufficient evidence that an injured worker can earn money.  Keep in mind that while these dynamics are at play, lawyers representing injured employees want to force the defendant to present “job availability” evidence, and claimants’ lawyers argue for as much because job availability as opposed to earning power is a much more complex type of proof and a more difficult burden for the employer/defendant.  In the Taylor case, the rehabilitation counselor, apparently not a CRC but an NCC, was caught in the dilemma of the “Kachinski Doctrine.”

CRCs anxious for referrals may be agreeing to practices that are both antiquated and questionably ethical at their core.  For years, we have argued that discussing an injured worker’s complete medical history with prospective employers is highly inconsistent with the tenets of the Americans with Disabilities Act.  However, Rehabilitation Counselors may still be attempting to show “job availability” in order to meet “legal” standards of proof, even though those standards have been ostensibly eliminated by Act 57.

Therefore, it is our belief that CRCs seek guidance around these issues and specifically the questions:

3.      “What portions of the Code of Professional Ethics must they adhere to when the injured worker is simply an examinee for ‘earning power assessment’?”

4.      “What codes become relevant when the Rehabilitation Counselor agrees to demonstrate job availability?”  Essentially, does the latter make the injured worker a “client”?

1. Walker, Jasen. Double Jeopardy:  Workers’ Comp Act 57 and ADA, published in The Legal Intelligencer, June 4, 1997, Vol. p. 3905.

2. Walker, Jasen. “No Work” Job Offers Can Run Afoul of the ADA, published in Pennsylvania Law Weekly, June 13, 1994, p. 17, PLW 385.

3. Walker, Jasen. The ADA and The Pa Workers’ Compensation Act: Not Friends in Pennsylvania, published in The Legal Intelligencer, March 9, 1993, Vol. p. 1484.

4. Walker, Jasen. Establishing Earning Power Under Act 57, presented at the PESI 17^th Annual Pennsylvania Workers’ Compensation Law seminar in April 2004. 

5. Taylor v. Woods Rehabilitation Service, Superior Court of Pennsylvania, decision of March 30, 2004.