The New Worker
The nation's oldest, quarterly newsletter
published for professionals concerned
with human factors and disability management in the workplace.
Index of Articles for the Spring 2007:
• How Successful Lawyers Prevail as Defendants in Workers’ Compensation Cases• Is the Impairment a Disability?
• A New Addition at CEC!
• Preliminary Notes on Teaching Resilience
• What Do the Norwegians Know that Would Benefit All of Us?
• Quality Career Development and Counseling Make a Difference
How Successful Lawyers Prevail as Defendants in
Workers’ Compensation Cases
by Jasen M. Walker, Ed.D., C.R.C., C.C.M.
Introduction
All Workers’ Compensation plans are no-fault. They are designed to reduce civil litigation and protect the claimant. However, being a defendant employer in a Workers’ Compensation case does not mean that a contested claim cannot be won. In fact, employers who have effective Human Resource (HR) practices and Disability Management (DM) strategies in place are in a better position to win more of these cases than they lose.
What are the most effective DM strategies and HR practices and how can they serve the defendant employer in a Workers’ Compensation matter? The best practices include:
§ Good Hiring Policies and Procedures
§ Safety Programs
§ Health and Wellness Initiatives
§ Employee Assistance Programs (EAPs)
§ Case Management Programs
§ Return-to-Work Programs
Examining each of these “best practices” can be instructive. Defense lawyers would benefit from representing employers who employ these programs.
Good Hiring Policies and Procedures
Good hiring practices need to be planned and documented in terms of specific procedures. Hiring procedures should be developed by the Human Resources staff and revisited and updated periodically to ensure that they are current. The documentation on which the employment is based provides prima facie evidence in critical litigations.
The first step in developing hiring procedures is to identify the requirements and skills needed for specific jobs. The skills required for a specific job are the basis of the Job Description. There are two prerequisites for the Job Description:
1. The description must derive from a job analysis. Most Job Descriptions in the world today are based on someone’s narrative description. This creative process is not adequate. The Human Resources personnel need to understand how to formulate an objective and thorough Job Description from a competent job analysis.
2. The Job Description needs to be constructed to conform to the “essential functions” requirement of the Americans with Disabilities Act.
The critical issue in the hiring process is that the employer and the candidate are clear about the expectations of the job. The specifics of the hiring contract must be documented, discussed, and agreed on by both the employer and the employee at the time of the hire as protection against a future grievance claim by the employee. The point of hire begins a “social contract,” that, if breached for any reason, causes conflict, resentment, a sense of real or imagined betrayal, and potentially costly litigation.
Assessment tools that predict whether a candidate is motivated by the factors associated with a given job and/or the company’s values and ways of doing business are also significant and may be employed during the hiring process. Assessment instruments used in pre-employment testing are readily available, and Human Resources personnel should become aware of who is qualified to use them in the hiring process.
Employers also need to be aware of federal legislation in respect to hiring. There are several federal laws that are relevant, particularly:
§ Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin.
§ the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
§ the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, and privileges of employment.
§ Titles I and V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector and in state and local governments.
§ Sections 501, 504, and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government or for any employers or organizations that receive federal funding.
§ the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
Are the basic requirements of good hiring as outlined here a burden for employers? The answer is no. There is ample evidence that work organizations with effective hiring systems outperform those without such systems, and, of course, the possibility of litigation in cases of noncompliance makes these requirements of good hiring even more essential.
Good hiring practices prevent the selection of individuals who may be at risk for injury or illness, and good hiring practices prime both Human Resources personnel and front-line supervisors to deal appropriately with injury and/or illness should it occur. Risk management begins with competent employee selection.
Finally, the most important concept to keep in mind is that hiring should be driven by both the “essential functions” of the job and the company philosophy. If an individual can perform the essential functions of employment and otherwise meets the company’s qualifications, then he/she is a candidate for hire. Good hiring practices are the company’s commitment to its prosperity as well as those employees to whom the company has previously extended employment.
Safety Programs
Safety programs are so effective that Pennsylvania employers have a right to a five percent reduction in Workers’ Compensation insurance premiums if they establish and maintain a certified workplace safety committee as per Article X of the Pennsylvania Workers’ Compensation Act. Safety programs have value in all jurisdictions. Employers who are not availing themselves of these discounts should, at least, recognize that discounts exist and that they exist for good reason.
The safety factors in a given business or industry need to be customized. Safety professionals and many Risk Management professionals are trained to determine and document safety issues, but it is incumbent on the employer to mandate the program and keep it updated so as not to let employees become disinterested in safety and accident prevention.
Generally, safety in the workplace is construed to mean how an individual worker behaves in terms of the machinery used or the environment in which he/she works. But there are less tangible but equally critical factors as well. These factors include:
§ anger
§ depression
§ substance abuse
§ injured worker helplessness
§ workplace conflict
§ disability proneness
Employees who have a problem with any of the above are acute or chronic risks for workplace injuries, and employers need to incorporate the same awareness, prevention, and early intervention initiatives and policies for these issues into the safety program as they do for the physical risk factors. Teaching front-line supervisors human relations skills, including effective interpersonal communication, can reduce the potential effects of these less tangible dynamics.
Health and Wellness Initiatives
One reality of the workplace is that many employees are seemingly resistant to the maintenance of their own physical and mental health. And, as with safety education, the employer will be rewarded by persistently promoting good health practices. One basic factor involved in this process includes a company-wide risk assessment to establish a baseline of the health of all individuals in the company.
Employers are well-served in terms of continuing productivity by aggressively promoting health and wellness, fitness, and disease prevention for their employees. The health and fitness of an individual employee can be more than a casual contributor to workplace injury, disease, or lost time and can potentially lead to Workers’ Compensation claims. For example, substance abuse, obesity, and depression have been shown to have positive correlation to Workers’ Compensation claims.
Employers on the cutting edge of Disability Management programs have also begun to incorporate aspects of Positive Psychology into their methodologies. Positive Psychology is a new approach to psychology that refocuses the emphasis from personal or family dysfunction to prevention. Employers who are operating health and wellness programs will want to familiarize themselves with the preventive and restorative values espoused by Positive Psychology. Employers have long recognized that employees who become ill or are injured at work take on what is known as “injured worker helplessness.” Now Positive Psychology, incorporating concepts such as emotional intelligence, resilience, and optimism, offers a highly effective approach to dealing with disability proneness and injured worker helplessness.
Employee Assistance Programs (EAPs)
Most large companies create and operate EAPs. These programs are designed to identify the resources needed to assist employees with specific problems. In the case of larger organizations, EAPs are staffed by full- or part-time employees who are called on to assist in specific cases. In smaller companies, the EAP is the identification of resources, either in-house or external, that can be tapped for the expertise needed in a given situation. Most communities have specialized resources that employers can utilize. What is needed is to identify and document the resources for immediate application as required and to make these resources available to employees at risk.
Employers large enough to have in-house EAPs may also call on external expertise when needed. For example, anger management programs, mental health interventions, and substance abuse treatment may be more cost-effective when community-based resources are involved and when knowledgeable company personnel carefully screen and select public entities that may be of assistance to employees.
Still another issue that employers need to address is conflict resolution. There are “managerial mediation” methods that can be taught to key in-house personnel, but short of training staff in these methods, employers can find community-based resources to address this problem. In virtually all cases, mediating and resolving interpersonal conflicts are far preferable in terms of maintaining employee productivity and reducing company costs than dismissal, or worse yet, allowing the unresolved conflict to manifest in a compensable injury.
Case Management Programs
Every insured has the right to expect that an injured worker will receive top quality medicine and healthcare intervention following injury and/or lost time. Although EAPs may be a luxury for many employers, every insured should insist upon timely and effective Case Management. The value of professional case managers is that they are experienced in working with treatment providers and interacting effectively with the insured.
There are several important issues in terms of Case Management that apply in any case. They are:
1. A workplace injury requires immediate and sustained attention by someone representing the employer. This representative is generally the employee’s immediate supervisor.
2. The attention includes communicating with the family as well as the injured worker.
3. The designated case manager must make contact with and communicate with the treatment source, preferably in person rather than by telephone. The attention must be sustained until the employee is returned to work.
4. The perception, opinions, and needs of the injured worker must be sought, understood, and considered in respect to the case. Case Management should not be done for the employer only.
5. Hands-on Case Management is preferred to telephone management. Effective Case Management by telephone is a contradiction in terms.
Case Management must include a careful transition from healthcare coordination to occupational rehabilitation. In terms of return-to-work, the most important issue is to apply contemporary “Transition-to-Work” methods. Good Case Management likely involves vocational evaluation as an injured worker approaches maximum medical improvement. Unfortunately, vocational evaluation has been relegated to “job availability” as a foundation for Compromise and Release, what one Workers’ Compensation judge has called, “cash and carry.” Effective legal representation is based on a quality vocational evaluation.
Return-to-Work Programs
A Return-to-Work Program is a commitment by the employer made to the employee at the time of hire. If an organization does not think that it would rehire a job applicant after an unfortunate injury or illness, the employer should not hire that particular applicant in the first place. Employers have come to understand that it is to their advantage, cost-wise and job retraining-wise, to return injured workers to productivity. When top management has made a commitment to return injured employees to work and that idea has become an essential part of the company’s “culture,” both the employer and the employee benefit. Historically, employers applied what they called a “Light Duty” approach. Light Duty has long been deemed inadequate. Employers need to become aware of and practice Transition-to-Work methods. The key to Transition-to-Work is the application of incremental steps that, in the final analysis, lead to a much earlier Return-to-Work than the traditional Light Duty approach.
Although vocational evaluation in a Workers’ Compensation case is all but exclusively employed as a means to a Compromise and Release, it is best employed as a measure to determine Return-to-Work, preferably within the defendant employer’s organization. Vocational evaluation should take place before a decision is made to separate the injured employee. The ideal scenario would be to return a recovering injured worker to modified employment or “transitional duty” while also having that individual undergo thorough vocational evaluation, including standardized testing, to determine what permanent jobs the individual might perform within the defendant employer’s organization.
Conclusion
Workers’ Compensation insurance is a no-fault policy that is not only designed to reduce litigation, but to protect injured workers. As a result, Workers’ Compensation judges are likely to perceive the claimant as a potential victim in a Workers’ Compensation dispute. Protecting the claimant’s rights may be the singular issue in the eyes of a Workers’ Compensation judge. To overcome this bias, defendants who are perceived as doing the right things for the employee (from the point of hire to the point of Return-to-Work) will have a substantially better chance of prevailing than those who do not have such programs in place.
It is easy for good drivers to keep their cars in good condition, practice safe or defensive driving techniques, wear their seatbelts, report accidents in a timely fashion, and take responsibility for having the automobile repaired by a reputable auto body mechanic. A safe driving record is obviously a function of multiple “best practices.” Most Workers’ Compensation judges feel the same way about employers and their “best practices” in disputed Workers’ Compensation matters.
The ideal defendant in a Workers’ Compensation case will be the one that the judge trusts not only by how it responds to a particular claim, but how it generally handles its operations and human capital strategies prior to an occurrence. Being a role model in terms of good hiring practices, health and safety issues, and Return-to-Work initiatives will make a company an ideal, and significantly more defensible, defendant.
The ultimate questions become: Will lawyers practicing Workers’ Compensation defense be willing to advocate these good practices? Will defense lawyers encourage employers and their insurance carriers to develop and maintain these Human Resource and Disability Management strategies, or will defense counsel perceive “best practices” as a threat to their business volume of defending claims?
Is the Impairment a Disability?
CEC Associates, Inc., has been a long-time advocate for recognizing the significant difference between an impairment and a disability. There are dramatic instances of individuals who have overcome an impairment by functioning adequately, and in some cases, more than adequately, in both everyday life and work performance.
To illustrate the point, we offer the case of 18-year-old
Oscar Pistorius, a double amputee from South Africa who competes as a
world-class sprinter.
Pistorius, who runs on carbon fiber blades, has posted
times in the 400-meter race that would have won him the gold medal in the 1928
Olympics. His aim is to compete in the 2008 Paralympics in Beijing and,
eventually, the Olympics themselves. To see a table of Pistorius’ times in
comparison to the Olympic records in the 400m, 200m, and 100m, see “Oscar
Pistorius” on Wikipedia.
While Pistorius has overcome his impairment in the world of athletics, similar strides are being made every day in the world of return-to-work. Given the advancements in prostheses and ergonomics, there are now many fewer instances where individuals injured at work cannot return to productivity, especially if provided with reasonable accommodations.
The original source of this information was a piece published by BBC News.
It was sent to us by our Boston-based correspondent, Ross Popoff.
A New Addition at CEC!
Over the years, technology has made it easier for people all over the world to exchange information, ideas, and opinions. Ideas can be added to or improved upon much more effectively with a larger number of people involved. People like the idea of their voice being heard and believing that their words have helped contribute to some kind of improvement.
One such tool for this purpose is the blog. Blogs can range from business tools to new commentaries to personal diaries. Many news reporters have their own blogs to allow their readers to share their opinions on certain issues. Blog search engine Technorati currently tracks over 57 million blogs.
It is for these reasons that we at CEC have incorporated a blog into our website. All the articles featured here in The New Worker (as well as other articles) are available on our website so that you can state your own opinions or feedback on our blog, Human Factors in the Workplace.
CEC’s blog: http://cecassoc.blogspot.com
Preliminary Notes on Teaching Resilience
In general, people ultimately overcome all adversity. However, people react to short-term adversity in markedly different ways. Some individuals are more resilient than others and find ways to overcome the difficulty and move on. We say these people are more resilient, and resiliency is a valuable, even essential, human capacity.
The question is whether the tendency to be resilient can be measured, or at least anecdotally recognized and whether coping skills to be more resilient can be taught efficiently.
Factors that can bolster resiliency include:
§ having at least one supportive relationship available
§ trusting someone enough to accept their provided support
§ being capable of initiating a process to seek support
§ being able to identify a role model
Characteristics of low resiliency include the inability to:
§ make realistic plans
§ take steps to carry out plans provided by supportive others
§ have positive thoughts about one’s ability to move forward
§ be confident in one’s ability to move forward
§ communicate effectively
§ solve personal problems
§ control/manage strong negative feelings or impulses
The first step in assisting someone in achieving resilience is to help them to appreciate and accept the idea that change is possible. If this essential first step to break down the resistance to personal change is not achieved, the effort has little chance of succeeding.
Each of the steps given as “characteristics” above can be induced if the one doing the inducing is patient and if the circumstances surrounding the effort are conducive to affecting change.
Many injured workers are deeply skeptical, have low self-esteem, and have a healthy, finely-honed resistance to wanting to return to work. This exercise is offered as a basic consideration to whether improved resilience can be induced in a reluctant injured worker and whether it can be cost-effective. Resilience is, in this context, a parallel construct to “learned optimism.”
What Do the Norwegians Know that Would Benefit All of Us?
A study of 54,000 Norwegians by a researcher at the Norwegian University of Science and Technology found that adults with a sense of humor outlive those who don’t find life funny. The subjects of the study were cancer patients.
In a subgroup of 2,015 who had a cancer diagnosis at the start, a great sense of humor cut someone’s chances of death by “about 70% compared with adults with a poor sense of humor.” The humorist Art Buchwald could be the poster boy for the findings.
These findings reflect the significance of embracing and applying the basic tenets of Positive Psychology.
If you would like to learn more about the application of Positive Psychology to the workplace, simply arrange to have CEC do an in-house seminar for your colleagues. Call Dina at (800) 246-9767.
Quality Career Development and Counseling Make a Difference
The foremost researcher in the matter of integrating quality career counseling concepts in the education of our people is Dr. Richard Lapan of the University of Missouri-Columbia.
Lapan’s theories in brief:
Young people should develop an approach to the present and the future that is:
§ proactive
§ resilient
§ functionally adaptive
This approach requires them to be able to:
§ interact with a clear sense of purpose and direction
§ orient themselves to valued opportunities and choices
§ act in agentic and self-empowering ways
§ exhibit a mature commitment to a self-defined direction
§ be hopeful, motivated, and optimistic about their present and future
§ persevere and overcome obstacles
§ be creative and curious
§ balance an ability to be entrepreneurial with the need to care for others and the environment
Six primary constructs that promote growth in a personally-valued future career include:
§ positive expectations, including self-efficacy beliefs and attributions
§ identity development through the interrelated processes of career exploration and goal formation
§ an enhanced understanding of oneself, the world of work, and how to best fit or match this self-understanding to occupational possibilities
§ the pursuit of one’s intrinsic interests and preferences
§ the ability to achieve academically and become a self-regulated, lifelong learner, as well as the use of one’s everyday interactions with others with a range of complex social skills and work-readiness behaviors