Indiana Worker's Compensation Institute

What is a TENS or an IF device?
TENS delivers an electrical stimulus through the skin and into the peripheral nervous system. A portable TENS device generates the low-level electrical current; lead wires carry the stimulus to conductive patches (electrodes) placed on the skin and the stimulus is carefully controlled. TENS devices are Class II medical devices that require FDA clearance and a physician’s prescription.

IF devices are similar to TENS, in that, an electrical stimulus is delivered into the peripheral nervous system but the difference lies in the intensity of the currents. IF devices deliver an increased current allowing deeper penetration into the affected areas. These devices are also Class II medical devices that require FDA clearance and a physician’s prescription.

How does a TENS and IF device work?
TENS overrides pain messages that are sent to the brain. To demonstrate this effect think of what happens when you have a burn on a finger and placing the injured finger in cold water relieves the perception of the pain. TENS also induces the nervous system to release endorphins, which are strong neurohormones that help to reduce pain perception.

IF devices increase localized blood flow, which can improve healing by reducing swelling and bringing nutrients necessary for healing to the injured area. The stimulation of local nerve cells can have a pain reducing effect due to blocking pain signals or by stimulating the release of pain reducing endorphins.

What are the indications for TENS and IF devices?
Indications for TENS include the symptomatic relief and management of chronic, intractable pain and as an adjunctive treatment for post surgical and post-trauma acute pain.

Indications for IF include pre and post-orthopedic surgery, joint injury syndrome, cumulative trauma disorders, increase circulation, relax muscle spasms, and pain control of various origins.

When should you use TENS and IF?
TENS and Interferential are effective when:

• Pain is ineffectively controlled due to diminished effectiveness of medications
• Pain is ineffectively  controlled with medications due to side effects (cardiovascular or gastrointestinal contraindications and potential addiction and/or tolerance to opiates)
• History of substance abuse
• Significant pain from postoperative or acute conditions limits the ability to perform exercise programs/physical therapy

What are the contraindications for TENS and IF?
TENS and IF should not be utilized until the proper diagnosis of pain has been determined. Patients who have pacemakers or defibrillators should consult with their physicians prior to use.

Are TENS and IF devices affordable?
TENS and IF devices are high value alternatives when you weigh the modest acquisition cost verses the overall efficacy when treating for long-term pain management. After the initial expense of the devices, the only additional costs are the electrodes. With the reduction of pain medications or other treatments, the price of the devices can be recouped within the first twelve months.

How long should the patient use their TENS or IF device?
Depending on the nature and severity of the patients’ pain, they may need to use the device minimally or on a constant basis. Over time, the condition of the patient should improve and the usage of the device should decrease. TENS and IF devices are non-addictive and have no known side effects other than possible skin irritation from the electrode, so continued use is not detrimental to the patient

How does a patient receive a TENS or IF device?
The patient can receive a TENS or IF device by visiting their physician or therapy clinic. During this visit, the clinician will properly assess the patient injury and give instruction on the usage of the device.

So why choose an Empi device?
Empi, a DJO company, has been the leading manufacturer and provider of non-invasive medical products for pain management and physical rehabilitation for over 30 years. Empi is committed to delivering positive patient outcomes and providing innovative products specifically designed to meet the needs of the patient and medical professionals.

Empi is a trusted brand amongst clinicians and the product line has been innovative in the discipline of electrotherapy. Some of the characteristics that differentiate Empi from their competitors are:

Lifetime warranty on TENS devices

• Dedicated sales staff for training patients and clinicians which leads to improved patient compliance
• Simple Modulated Pulse (SMP) mode, which is a patented waveform that assists in the reduction of pain by fluctuating from high to low frequency over a short duration
• Active TENS, the most innovative TENS device on the market with one touch activation
• Select TENS, One touch site specific buttons to launch preset programs for the knee, shoulder, low back/hip, hand/wrist and back also has compliance meter for patient usage
• IF 3WAVE, an interferential combination providing three distinct modalities in one powerful, portable device – IF, NMES, and PDC.

Physicians write more prescriptions for Empi devices than any other brand. Over one million patients have been treated with Empi devices allowing patients to achieve higher functional levels and ultimately greater satisfaction.

If you would like to learn more about our company or devices, please do not hesitate to visit our website at www.empi.com or phone us at (800) 328 2536.

Ankle instability is common and occurs approximately 20% of the time after one of the 27,000 daily ankle sprains.  It occurs secondary to torn lateral ankle ligaments and/or insufficient treatment of the initial sprain.  There are two types of instability:  Mechanical and Functional.  Mechanical instability is abnormal, excess motion of the ankle and/or subtalar joint.  Functional instability is the subjective complaint of the ankle giving way despite normal ligament stability.  This can be much more difficult to treat as the causes can be many:  synovitis, cartilage lesion, inadequate rehab with resultant tendon weakness or abnormal proprioception, and others.  The ligaments involved are the anterior talofibular ligament(ATFL), and the calcaneal fibular ligament(CFL) to varying degrees.

Patients will complain of pain over the anterior and lateral ankle joint and have intermittent recurrent sprains or give-way episodes.  Swelling can come and go, but is often present after prolonged standing or walking.  Patients will have positive ligamentous laxity on stress testing with anterior drawer and talar tilt tests.  X-rays are needed to rule out fractures.  Stress x-rays are of limited usefulness.  MRI is usually required to determine the extent of the ligament injury, assess for any intra-articular injuries(talar osteochondral defect), and to evaluate the peroneal tendons.

The key to minimizing the risk of ankle instability is proper initial treatment of the patient’s ankle sprain.  This includes the typical PRICE regimen: Protection(boot or ASO style brace), Rest(relative with occasional brief use of crutches), Ice, Compression(ACE bandage or sleeve), Elevation.  Formal physical therapy is mandatory and should start within one week of the injury.  This must include ROM, strength, and proprioception(balance) exercises.  Once the initial swelling and pain have subsided a careful stability exam must be performed and an MRI obtained if the exam reveals ligament instability.  Torn ligaments are a surgical indication especially for workers with physical job requirements.  Intact ligaments do not guarantee that surgery won’t be required.

Surgical intervention is associated with an overall 90+ % success.  Worker’s compensation patients as expected show somewhat lower success rates. The surgery should be performed by a fellowship trained orthopedic surgeon.  The surgery is performed as an outpatient with regional nerve block anesthesia.  This provides an average of 12-16 hours of pain relief post-operatively.  An ankle scope is done to address any intra-articular lesions.  The peroneal tendons should be checked even if intact on MRI as there can be split tears up to 25-30% of the time.  They should be repaired as needed.  The lateral ligaments are reattached to the fibula typically with some type of suture anchor(s).  Usually the ligament tissue is adequate, but other local tissue may be incorporated into the repair.

Post-operatively the ankle is immobilized with a partial cast, followed by a bootwalker.  Patient’s are non-weight bearing approximately 3 weeks and then can gradually progress to full weight-bearing in their boot.  The boot is replaced by an ASO style brace at 6 weeks and physical therapy is started.  Therapy will last 8-12 weeks and may include work conditioning.  Patients will have swelling for 4-6 months and take approximately 6-9 months to reach MMI.  Some degree of PPI is common and related to loss of side-to-side motion.

Patients can return to seated work only at 3 weeks post-op and gradual standing/walking at 6 weeks.  Gradual progression of time on feet and lifting occurs after 6 weeks and full duty will typically take 4-6 months for workers with physical jobs. Long term restrictions are rare and usually limited in scope.  This injury can be successfully treated by a fellowship trained orthopedic surgeon with early diagnosis and aggressive treatment.

Douglas A. Flory, MD
Board Certified Orthopedic Surgeon
Dual Fellowship trained in Sports Medicine(Knee/Shoulder) and Foot/Ankle

New Practice!

AthELITE ORTHOpedics and Sports Medicine
365 S. Park Ridge Road, Suite 102
Bloomington, IN 47401-8362
812-822-2675 // 812-822-2679 Fax
www.atheliteortho.com

FACTS:

• Signed into law September, 2008 and went into effect January 1, 2009.  (The ADA itself applies to all employers with 15 or more employees unless state law dictates otherwise).
• The ADAAA does include changes regarding company policy and procedures for individuals with physical or mental impairments.
•   Employers might be faced with:  Increased requests for accommodations for employees, increased litigation by individuals claiming to be disabled, or have impact on leave policies, especially FMLA.
• While it will always be a fact-specific issue, as a general rule:  Congress says that any condition lasting 180 days or more will likely fall under the protection of the ADAAA and requires the accommodation discussion.  There may be exceptions on either side of the 180-day line, but this is the general rule concerning the point at which a “condition” becomes a “disability.”

What did it change?  Definition of disability remains the same – “A physical or mental impairment that substantially limits a major life activity”.  Temporary conditions do not apply, such as a broken leg with full recovery expected.  Recurrent permanent disability does, such as diabetes.  Broadens the umbrella of coverage under which individuals can be deemed disabled by ADA.  Overturned several prior Supreme Court Decisions:

• Sutton v. United Airlines (1999) [Dealing with eye wear]
• Murphy v. United Parcel Service, Inc. (1999) [dealing with diabetes/insulin]
• Toyota Motor Manufacturing v. Williams (2002) [dealing with carpal tunnel syndrome and the need to be restricted in multiple life aspects]

(Note, while language from Sutton regarding mitigating measures was overturned, the specific condition in question (myopia) that can be corrected with glasses is NOT considered a disability to the extent the glasses correct the problem).

Called for revision of EEOC regulation regarding the phrase, “substantially limits”.  Now defined by the ADA as requiring only:

• “Significant restriction” of a major life activity.
• Permanent or long term condition may apply.
• More closely approximates the definition used for Workers Compensation, even a slight level of impairment.
• Employers should be prepared for possible claims of disability discrimination and must be proactive in communicating with employees.
• Avoid use of the terminology “disabled” and use terms, “medical condition” or “health condition” in speaking of needs.  Instruct supervisors in which terms to utilize.
• If someone comes in stating they have a problem, do not challenge it or ask for details.  Focus on whether they can perform the job they are either currently holding or for which they are being considered.
• Legally, in court, employers who at least have had the necessary conversation or tried to accommodate will be viewed more favorably even if their efforts aren’t successful.  Make an effort to discuss reasonable potential accommodations.
• Have one designated person, who has been trained to field same, handling requests for leave and accommodation.  Require that person to document/obtain documentation on all collaborative discussions with persons consulted with for potential accommodations (i.e. facility engineer, health and safety manager, facility nurse, physical/occupational therapist treating employee, treating physician, etc.).
• Document all phone calls, meetings and communications with individuals regarding disability, requests for accommodations, medical restrictions and job duties.
• Have a witness (who will maintain confidentiality) taking notes in “Interactive Process” meetings.  Use terms “temporary”, “modify” and “adapt” in these conversations.
• It is more important than ever to have on hand current functional job descriptions.  If these are not pre-existing, it will be too late if litigated to obtain same.
• Examples of Accommodation:  job restructuring, part time or modified work schedule, unpaid leave, assignment to a vacant position, or unpaid leave.

Employers have the right to choose the accommodation, but:

• Accommodation must be effective, i.e., address the employee’s disability.
• It does not have to be what the employee requests.
• Employers do not have to change the essential functions of the employee’s job.
• Employers do not have to create a new job.
• Examples:
• Mandatory overtime as an essential function of the job: This is still permitted, provided you can show why working in excess of 40 hours in a week is necessary (i.e. show business reason).  If it can be accommodated, however (i.e. work six 8-hour days instead of five 10-hour days (or whatever to make the number of hours equal), then the employer has the obligation to do so absent an undue hardship.
• Concerning shift schedules and bumping in a unionized environment: there is nothing in the revised law that changes the standing principle that an employer is not required to create a job where one does not already exist as an accommodation.  Nor is an employer required to violate the terms of a CBA in order to accommodate a disabled employee. These are considered either unreasonable or unduly burdensome.
• As for whether accommodations that change production flow are required, it depends on whether such a change will create an undue hardship on the business.  For example, if your company has to create 6,000 widgets to keep up with customer demand and it has traditionally made 4,000 Monday- Wednesday and 2,000 Thursday and Friday, it may or may not be an undue hardship for the company to now produce 3,000 Monday-Wednesday and 3,000 Thursday and Friday (say, for example, if the disabled employee needs time off Monday to go to a doctor for chemo treatments).  It will depend on a number of factors, including whether there is a business necessity to front-load production.  Ultimately, it will be a fact-specific inquiry.
• Employers Should:
• Identify the employee’s functional limitations.
• Identify the essential functions of their job.  (Having formal functional job descriptions in advance is ideal.)  Job functions should be reassessed and updated annually with copies of the prior ones dated and maintained indefinitely, going forward.
• Identify any potential reasonable accommodation.
• Closely monitor Restricted Duty programs including:  a)      Periods of workplace absences (either work related or non-work related) for opportunity to temporarily accommodate.  Do formal RTW consultation at the 60 day absence period. b)      Conduct formal monitoring of Restricted Duty assignments at least monthly with formal RTW consultation at 150 days of Restricted Duty.

Expect to See Increased Accommodations/Litigation regarding:

• Mental impairments such as depression, anxiety, bipolar disorder require accommodations such as a less stressful shift scheduling or unpaid leave of absence.  (Example:  At least one court has already ruled that terminating an employee with violent outbursts in the workplace, due to bipolar disorder, was tantamount to termination due to the disability).
• Illnesses requiring medication control such as diabetes, epilepsy, and Crohn’s disease.
• Allergies or sensitivities to certain irritants such as perfumes can require accommodation by banning same from the workplace.
• Sources:  EEOC web site – www.eoc.gov/policy, www.jan.wvu.edu/bulletins,

Matthew S. Effland of Ogletree Deakins Law Firm:  Matthew.Effland@ogletreedeakins.com

For assistance with formulating Functional Job Analyses and Functional Job Descriptions, please contact Doug Young,  VP of Sales and Marketing for  MedInsights at:  615-686-7536 or, e-mail:  youngrd@MedInsights.com,

This is intended for general informational purposes only and is not meant to replace legal counsel.  We urge you to consult an attorney for any issue regarding applicability or interpretation of any provision contained herein.  This is not intended to be a complete summary of the law.

Susan and Dennis Isernhagen have developed a new comprehensive work injury management and prevention program in their corporation DSI Work Solutions, Inc.  Progressive Physical Therapy, PC is a certified DSI Provider, offering Job Function Matching, Functional Capacity Assessments, and Work Solutions Consultation for work injury management and prevention.

A significant source of cost for business and industry is the expenses of the injured worker.  Expenses to the company include the expenses of lost days compensation to the injured worker, medical care and management, lost production, and increased administrative costs, among others.  It is estimated that the indirect costs of a work-related injury are 4 to 5 times the direct costs of compensation to the worker.  This translates not only to significant costs to business and industry, but also to the economy and society as a whole.

Job Function Matching is a proactive solution to helping to decrease the cost and expense of work injuries through evaluation of the exact physical demands of the job, definition of specific tasks within the job, identification of risk areas, and initiation of preventative measures to injury.

Job Function Matching is the matching of a worker to the functional demands of the job.  Use of a valid job matching method provides OBJECTIVE INFORMATION on the tasks involved in performing a specific job and OBJECTIVELY measures the worker’s physical ability to perform the specific tasks identified in the job.

The first step of job matching is developing a validated Job Function Description of a specific job.  Upon having an accurate Job Function Description based on the actual objective physical demands of the job, a Job Function Test for that job can be developed.  The Job Function Test is used to objectively measure the physical abilities of the worker.

The objective information obtained in a Job Function Test may be used for preventative measures in post-offer testing, for early return to work testing and intervention, for reporting objective information to the treating physician and to the case manager, and as a basis for Functional Capacity Assessment.

Job Function Matching provides solutions for the employer with an injured worker by objectively identifying those specific tasks of a job that the worker can and cannot perform.  This allows for safe early return to work with appropriate and accurate restrictions or return to the same job with temporary modifications.  Productivity can be maintained and lost days limited.  Weekly Job Function Testing on those tasks with which the worker has difficulty allows the employer to see the progress of the worker and provides early identification of the worker’s ability to return to full duty and out of the “light duty transitional work” abyss.  This process also reduces the chance for re-injury of the worker.

Job Function Matching also provides solutions for the treating physician and for the case manager.  The Job Function Test gives the physician and case manager objective information on the person against the job.  The release to return to work can be specific and objective to the job.  By updating the Job Function Test weekly, the physician and case manager can have this information in an earlier manner, allowing earlier return to work release.  Specific job goals and progress toward those goals can be monitored on a regular basis.

The worker also benefits with Job Function Matching as he or she is tested against the actual physical requirements of the job.  Early return to work is beneficial for the worker physically, psychologically, socially, and financially.  With regular testing, the worker can also see the progress being made toward return to work without restrictions or with temporary modifications.

Job Function Matching is a proven method for successful work injury management and prevention.  With accurate Job Function Matching, all stakeholders involved with work injuries benefit significantly by having objective information regarding the worker and the ability to safely do the job.  Costs can be reduced for all involved.  Job Function Matching is a concept that works and provides solutions that last.

Background The efficacy of arthroscopic surgery for the treatment of osteoarthritis of the knee is unknown.

Methods We conducted a single-center, randomized, controlled trial of arthroscopic surgery in patients with moderate-to-severe osteoarthritis of the knee. Patients were randomly assigned to surgical lavage and arthroscopic débridement together with optimized physical and medical therapy or to treatment with physical and medical therapy alone. The primary outcome was the total Western Ontario and McMaster Universities Osteoarthritis Index (WOMAC) score (range, 0 to 2400; higher scores indicate more severe symptoms) at 2 years of follow-up. Secondary outcomes included the Short Form-36 (SF-36) Physical Component Summary score (range, 0 to 100; higher scores indicate better quality of life).

Results Of the 92 patients assigned to surgery, 6 did not undergo surgery. Of the 86 patients assigned to control treatment, all received only physical and medical therapy. After 2 years, the mean (±SD) WOMAC score for the surgery group was 874±624, as compared with 897±583 for the control group (absolute difference [surgery-group score minus control-group score], –23±605; 95% confidence interval [CI], –208 to 161; P=0.22 after adjustment for baseline score and grade of severity). The SF-36 Physical Component Summary scores were 37.0±11.4 and 37.2±10.6, respectively (absolute difference, –0.2±11.1; 95% CI, –3.6 to 3.2; P=0.93). Analyses of WOMAC scores at interim visits and other secondary outcomes also failed to show superiority of surgery.

Conclusions Arthroscopic surgery for osteoarthritis of the knee provides no additional benefit to optimized physical and medical therapy. (ClinicalTrials.gov number, NCT00158431 [ClinicalTrials.gov] .)

Source Information

From the Fowler Kennedy Sport Medicine Clinic (A.K., T.B.B., R.B.L., J.R.G., K.R.W., S.H.G., L.M.D., P.J.F.); the Faculty of Health Sciences (T.B.B.); Robarts Clinical Trials, Robarts Research Institute (C.J.W., B.G.F., A.D.); and the Departments of Surgery (A.K., R.B.L., J.R.G., K.R.W., P.J.F.), Medicine (B.G.F., J.E.P.), and Epidemiology and Biostatistics (B.G.F., A.D.) — all at the University of Western Ontario; and St. Joseph’s Health Care (J.E.P.) — in London, ON, Canada.

Address reprint requests to Dr. Litchfield at the Fowler Kennedy Sport Medicine Clinic, 3M Centre, University of Western Ontario, London, ON N6A 3K7, Canada, or at rlitchf@uwo.ca ; or to Dr. Feagan at Robarts Clinical Trials, Robarts Research Institute, University of Western Ontario, 100 Perth Dr., London, ON N6A 5K8, Canada, or at bfeagan@robarts.ca .

Full Text of this Article

This article has been cited by other articles:

Birrell, F., Felson, D. (2009). The age of osteoarthritis. Age Ageing 38: 2-3 [Full Text]
(2008). Arthroscopic Surgery for Knee Osteoarthritis — No Benefit. JWatch General 2008: 3-3 [Full Text]
(2008). All you need to read in the other general journals. BMJ 337: a1661-a1661 [Full Text]
Marx, R. G. (2008). Arthroscopic Surgery for Osteoarthritis of the Knee?. NEJM 359: 1169-1170 [Full Text]

The Indiana Court of Appeals has issued a favorable opinion for employers and entered into a welcomed discussion on the burden of proof in cases involving an apparent idiopathic, or unexplained, fall at work. In Pavese v. Cleaning Solutions, (894 N.E.2d 570, Ind.App., 2008) the Court upheld the Worker’s Compensation Board’s finding that Plaintiff had failed to sustain her burden of proving an accidental injury in the course and scope of her employment and that the Plaintiff experienced a wholly personal event which, while unexplained, would not make the Defendant liable under the Indiana Worker’s Compensation Act.

We all recall that after the Indiana Supreme Court’s ruling in Milledge v. Oaks, (784 N.E.2d 926, Ind. 2003), in cases involving neutral risk, placed the burden of proof on employers to prove that the injury was caused by a personal medical condition of the employee left the employer in a predicament. In 2006, the Indiana General Assembly then amended Indiana Code 22-3-22(a) by adding two sentences placing the burden of proof on the employee, as well as stating that the “…proof by the employee of an element of a claim does not create a presumption in favor of the employee with regard to another element of a claim.”

In Pavese, the employee had clocked in and began her shift as usual. She dust-mopped the floor and put the mop away. Empty-handed, she walked to retrieve the floor scrubbing machine. A few minutes later co-workers found her unconscious on the floor. Plaintiff remembered waking in an ambulance, but did not remember anything leading up to the fall. Plaintiff was treated in the emergency room for laceration to the back of her scalp, concussion and retrograde amnesia. The treating physician attempted to rule out any pre-existing conditions that may have caused her fall and noted no history of fainting, dizziness or light headed spells, no seizures, normal EKG in ER, normal CT of brain, negative drug test and discharged her with a diagnosis of “syncopal episode, etiology uncertain” with an impression that the sudden onset without warning suggested the possibility of cardiac rhythm disturbance which needs to be evaluated.”

Plaintiff’s application for adjustment was filed when the carrier denied payment of medical bills and the matter was heard at the single hearing and, later, full board levels. Plaintiff testified at hearing that the floor was clean and nothing on it caused the fall. The hearing judge found that Plaintiff failed to sustain her burden of proving an accidental work related injury and held that Plaintiff appeared to have sustained a wholly personal event which, while unexplained, would not make the Defendant liable under the Act. The findings were affirmed by the Full Board 5 to 2.

The Court of Appeals discussed the positional risk doctrine and held that Plaintiff failed to meet her burden of proof and that two possibilities for her fall were presented: 1) a syncopal episode not covered by worker’s compensation and 2) slipping on the floor which is a neutral risk generally covered by worker’s compensation. The evidence supported an unexplained, syncopal episode, or personal event, not compensable, thus illustrating the importance of developing medical evidence addressing each factual detail in support of your defense.

I was digging through my files the other day and came across an old note given to me as a reminder to call Betty Croshaw about upcoming November IWCI meeting.  The message was dated June 1, 1994.  There are no words that adequately describe what Betty Croshaw meant to me and so many of us.  I think of so many moments with her that illustrate her various interests and passions.  I have pictures in my mind of the moments with her that best describe who she is to me and, I suspect, to many others.  Beyond her active participation with IWCI and similar functions, she was a vital part of those things that were most important to her.  She looked forward to gathering people in her home for tea and discussion at the beginning of each new year.  She was eager to show off her garden or some new project Don was working on around the house.  Although she was comfortable in her native rural surroundings, she could just as easily get you caught up in her latest adventure to England or New Mexico to see her friends.  As important as work and the insurance industry was to her, she was just as eager to talk about her latest photos and pictures she had gotten accepted into the State Fair that year.  She also shared her love for her family, lives of her children, and her dear cats.

Betty acknowledged the importance of hard work but made a point to recognize “good” work.  She valued people, particularly those affected by injuries and misfortune.  Although people and relationships were important to her, she was especially drawn to people who “really cared” about those in need.  She valued education and learning and created opportunities for people to learn.  Her desire to cultivate these organizations that offered opportunities for learning is part of her legacy with the Indiana Worker’s Compensation Institute.  Her creativity and desire to try new things were often unrecognized in her professional life.  However, her past work is a reminder to look beyond ourselves and consider ways to make each other better.  As is often the case, we are often better people because of those who have gone before us.

Perhaps Betty’s greatest impact on so many of us was her desire to mentor and to make sure we really understood how to take care of others who were injured in the course of their work.  In Homer’s classic the Odyssey, we first learn of Mentor and what it means to care for and teach others.  Betty was truly a mentor.  She cared enough to teach us, to share her life with us, and to make sure we will continue to be better.  She was a classic.  I will forever be grateful for Betty Croshaw’s mentoring and care.

Attending: Linda Hamilton, Chairman; Mary Taivalkoski, Executive Secretary,

Ron Cooper, Michael Schoening, Karen Salwowski, Jen Meyer, Rhonda Moran, Neil Gath, Marty Woods, Robert Fanning, Doug Meagher, Richard Swanson, Georgia Hartman and Ann Stewart.

Chairman Hamilton made announcements regarding:

Starting the first of the year she will conduct quarterly meetings with insurance adjusters.

Form revisions are being made to the Report of Claim Status (SF 38911) and a new separate form is being developed for notification of denials.

Proposed legislation for the 2009 Session of the General Assembly will include implementation of fees for mediations conducted by the Board and the possibility of a medical fee schedule on charges for services provided to injured workers. Discussion involved what is being done in other states, the possible certification of data bases and network arrangements between providers and carriers and employers.

Issues raised by attendees and discussed :

Undocumented workers.
While each case is different, if the claim is compensable the employee should be provided with directed medical care and impairment until the Legislature or the courts say otherwise.

Legal filing requirements.
Each judge has different preferences as to what and when they want exhibits, etc. filed with them making it difficult for attorneys to know what is expected of them. For example, some judges want proposed orders, some don’t. To address this problem the Board is going to place on its website each individual judge’s requirements along with their bios.

Perceived bias at the Board.
There are concerns that the Board has become too employee oriented, specifically that some judges unfairly favor employees in their decisions. Specific concerns raised include:

Not giving each side equal time at hearing.
If the employer/carrier provides medical treatment and then finds the claim not compensable they are automatically made liable for that claim.

In a specific case, Anderson v. Belden Corporation, C-167715, the Board awarded the plaintiff attorney fees on medical treatment that had been provided by the employer’s group health plan before the dispute arose.

Instead of having their cases heard when the parties arrive for scheduled hearings with witnesses, they are being pushed to settle cases. If the involved litigants want to go to hearing that they should able to do so. Settlement has been attempted and failed and the parties want to be heard and have the case resolved by order of the Board.

Hearing members are stating in Awards that cases are not ripe for appeal, potentially delaying the disposition of cases and making it difficult to have those cases set for Full Board review. The Chairman suggested the possibility of expedited FB hearings on these cases, without a transcript. In such a case, would the parties agree to abide by the decision of the FB ?

Whether the Board is appropriately having bifurcated hearings, or hearings on specific , limited issues.

Concerns about the Board’s practice of not approving stipulated settlements without addressing provider fee claims and/or lacking the signature of the medical provider. Also, how this would be handled if the claim is on a balance due, as opposed to the full unpaid charge. It was clarified that a settlement between the worker and the employer could be approved without settling the provider claim, which can be separately set for hearing. The provider claim must be acknowledged and the provider must be provided with a copy of the settlement document. The provider claim must also be put on the docket. Balance bills need not be attached to a “C” claim, and as such, don’t come into play because responsibility for the bill is not in question.

The group agreed to meet again in January. Notice will be forthcoming as to the specific date and time.

Behold the Report of Claim Status/Request for Independent Medical Examination, State Form 38911.  Depending upon who you talk to and when you talk with them, this is either the best government form ever conceived or the worst.  The form is an efficient claims administration tool; however, it is often confusing to those who use it and especially to injured workers who receive it.

In recent years there has been some discussion of creating a separate state form for the independent medical examination (IME) process.  Such action may eventually be appropriate.  In the interim, however, confusion about the IME process and use of the form in general may be alleviated by printing instructions on the reverse side of the form.

The State Form 38911 was developed after the 1991 changes to the Worker’s Compensation Act.  These changes included creation of claims determination timeframes and the IME process thereby creating additional procedural mechanism for the worker’s compensation administrative agency.  Rather than create a new form for each procedure, a previous state form entitled Memorandum of Compensation Payments (commonly referred to as Form 6) was revamped and expanded.  This particular form was chosen for redesign because it was primarily used to report the totals of compensation payments made, specifically temporary total disability (TTD) benefits.

Other than possibly reporting TTD benefit termination prematurely, it is seldom, if ever, a mistake to use the State Form 38911.  It is a multi-purpose document and, as with all forms used within the Indiana worker’s compensation system, intended to report claims activity to the Board and appropriate parties.

The State Form 38911 is divided into five sections, all of which may be used by claims administrators.  The last two sections are of particular importance to injured workers.

Section 1:  Claim identification information should always be listed in the first section of the form.  This is the basic information that the Board staff will use to match the State Form 38911 with all other claim filings.

Section 2:  The second section is used to identify the claim action that is being effectuated by service of the form.  Under the provisions of Indiana Code §22-3-3-7 a claims determination must be made within 29 days of the employer’s knowledge of the injury.  Accordingly, if a claim is being denied, the box marked “Claim deemed not compensable” should be checked in this section of the form in order to meet the statutory requirement.

The second section of the form is also used to notify injured employees of TTD benefit termination, which initiates the IME process. Under the provisions of Indiana Code §22-3-3-7, the employer/carrier/administrator must give notice of TTD benefit termination.  The boxes labeled “Returned to work” and “Benefit termination” are used to report benefits termination. Although there is some controversy as to the distinctions between those two terms, the action most applicable to the case should be indicated.

In the second section of the form it is also possible to report a benefit suspension for refusal to accept medical treatment, services or supplies under Indiana Code §22-3-3-4, to report a refusal to accept light duty employment under Indiana Code §22-3-3-11, and to report refusal to allow an autopsy under Indiana Code §22-3-3-6.  There is also the box marked “other” allowing for reporting of other claim actions that are not otherwise provided for on the form.

Section 3:  Indiana Code §22-3-3-7 also requires the reporting of compensation payments made; which was the original purpose of the old Form 6.  Accordingly, the third section of the form provides for reporting of compensation payments and may be used at any time during the pendancy of the claim to report payments made for any period of time.  It is particularly important to report this information for calculation of the statute of limitations and to support a TTD benefit termination that may result in an IME request.

Section 4:  The fourth section of the form allows for timely request of an IME appointment under the provisions of Indiana Code §22-3-3-7.   It is this section of the form that most often causes confusion because claimants will often request an IME appointment although such appointment is only feasible in a TTD benefit termination situation.  This is probably the most important use of the form.  Recent caselaw has emphasized the necessity of serving the State Form 38911 in advance of a benefit termination.

Section 5:  The last section of the form certifies service of the form by the employer representative, reports the action being taken, and provides for verification of a timely IME appointment request.

Questions about the proper use and service of the form will always arise and this article isn’t intended to address all questions about the IME process.  After nearly 17 years of use, perhaps printed instructions to the insurance/claims administration industry are unnecessary.  However, brief, clear instructions to injured workers, printed on the reverse side of the form or in Section 4, may obviate the cost and time needed for creation and implementation of another state form.

Time to play the popular HR Blunders game, “Comp or No Comp.” Here are three recent court cases in which employees sought comp for unusual accidents. Did the workers get comp? Read each case, then check to see whether you guessed right at the end of this post.

1. Does the company pay workers’ comp if an employee, returning from an unpaid break, injures his foot while rocking a vending machine to shake loose a stuck candy bar?

Here’s what happened in this case from Oregon: Maintenance worker Kaleiokalani Barela injured his foot at work. While returning from an unpaid lunch break, he tried to help a co-worker dislodge a purchased candy bar from a vending machine in the company’s lunchroom.

Barela attempted to rock the machine when he heard a sound from below.

It wasn’t the sound of the candy bar dropping in the machine. It was Barela’s Achilles tendon rupturing.

Barela sought workers’ comp. His duties did not include maintaining the candy machine, which was done by an outside contractor. Did Barela’s employer have to pay?

2. In another case, a car salesman, Clifton Roberts, was bored one day so he decided to take a ride on a co-worker’s motorcycle in his employer’s lot.

The salesman didn’t have any current customers. He took the little spin on the motorcycle while waiting for the next customer to arrive. Other employees, including the car dealer’s general manager, took rides on the bike earlier in the day.

While the salesman was riding the cycle, another employee backed a company pickup truck into him, causing the salesman serious injuries. Comp or no comp?

3. In another case, one of Hr Blunders’ favorites in the world of workers’ comp, a worker, Dwight Nichols, broke a tooth while chewing on a candy at work.

The candy was provided for employees by the company. In fact, Nichols was the employee who was often in charge with picking up the candy and making sure it was available to employees while they were working. (And if you’re interested, the snack was a Hot Tamale, a chewy, cinnamon candy.)

The worker was on duty when he broke a filling and cracked his tooth. Is dental work compensable under workers’ comp in this situation?

Answers

1. The Workers’ Comp Board ruled Barela’s foot injury was compensable because he wans’t participating in a recreational or social activity. But his employer’s insurance company, Washington Group International, appealed.

The Court of Appeals of Oregon reversed the comp board’s decision and sent the case back for further consideration.

So, while the employer and insurance company have won this battle, the employee may yet win the war by somehow proving his injury is compensable.

2. Roberts didn’t get comp.

Why? The court said the injury happened while the salesman was engaging in a recreational or social activity primariliy for his own personal pleasure.

It said since there was no work-related reason for riding the motorcycle, the salesman wouldn’t collect comp.

3. In the case of Nichols, the candy-chewer, the employer rejected the claim on the grounds the injury happened due to an activity that was recreational or social.

But the Workers’ Comp Board, and later, a state court, approved the claim! Both said the injury arose out of and in the course of employment.

The comp board said in this case, eating candy was never touted as being recreational or social. It viewed chewing the Hot Tamale as being an ordinary part of an average work day such as taking a drink of water or sitting at a desk.

What’s the take-home from all this? HRB wishes there was a definitive formula or test to tell HR pros whether it’s worth it to contest questionable workers’ comp claims. As these cases show, it’s not black and white at all; it’s just about as gray as you can get. And to make matters worse, these rulings also vary from state to state.

Here’s one question to ask those making the decision about whether to contest: Will it be worth it to spend the money on legal, administrative and other resources to fight the claim?