RTW – Not the first Thing to Discuss with Injured Workers, Panelists Say

Nancy Grover

Sarasota, FL (WorkersCompensation.com) – Injured workers do not want to hear about their employer’s return-to-work expectations right out of the gate. In fact, bringing up the subject too soon can send some employees right to an attorney, according to experts. Discussing RTW early and often can be effective — if it’s done appropriately.

“If the injured worker doesn’t feel they are being heard or cared for, they are already going to be defensive and if you then immediately talk about RTW, they don’t want to hear it,” said Les Kertay, a licensed, board certified psychologist, industry consultant in absence management and medical director for a large private disability carrier. “They first want to know they are going to be OK.”

Setting realistic expectations for the injured worker from the very beginning is critical. The focus needs to first be on recovery.

“They don’t have reasonable expectations,” said Jon Gelman, a workers’ compensation plaintiff’s attorney and noted blogger. “If they hear ‘RTW,’ the first thing they do is look for a lawyer to give them an explanation because they don’t feel they can return to work. They don’t know the concept of partial recovery.”

Kertay and Gelman participated in a panel discussion on ways the industry can better manage expectations of recovery. Joining them on the WorkersCompensation.com’s Hot Seat Webinar were:

  • Desiree Tolbert-Render, Assistant Vice President, National Claims Technical Compliance for workers’ compensation at Sedgwick
  • Judge David Langham, Deputy Chief Judge of the Florida Offices of Judges of Compensation Claims
  • Robert Wilson, President & CEO of WorkersCompensation.com

“For the vast majority of injured workers the system works well. Most claims are medical only. The injured worker doesn’t lose any time from work. They receive the appropriate medical treatment and there’s actually full recovery, it’s actually realized,” Tolbert-Render said. “When you talk about the expectations of full recovery you’re talking about maybe 20 percent of workers who are injured. It’s important that the system works, as Jon said, flawlessly and without the need for litigation.”

Setting reasonable and realistic expectations for the injured worker should be the responsibility of all stakeholders involved, the panelists agreed.

“It’s critical when a client comes into our office or contacts the insurance company, that they really be told what the reasonable expectations of the system are because they have none,” Gelman said. “Otherwise, they call a friend with a catastrophic injury, or somebody who hurt their toenail and they get all sorts of information that is not applicable to their situation. So as soon as they are injured, they need to know. We are all players, we get it. They don’t get it.”

One of the problems in setting expectations is that no two injured workers is alike. Each has unique issues.

“You can have 10 meniscus tears, and the expectation of each individual, how their claim will evolve, it is individual,” Tolbert-Render said. “You have to approach each person where they are.”

Educating Employers
Along with understanding the individual needs of the injured worker, employers themselves also need to have reasonable expectations. Many, especially smaller employers, don’t understand the system.

“I can’t tell you how many times I hear from employers [they are not interested in RTW] until the injured worker is 100 percent,” Langham said. “A lot of days I’m not 100 percent.”

But educating employers can be problematic, especially since most people work for small employers who often know nothing about workers’ compensation.

“They have to buy it, they don’t appreciate it and what it can do,” Wilson said.
“Insurance companies have to figure out a method to touch base and educate employers that ‘this is how workers’ compensation works and you may have to take the injured worker back at light duty, and maybe for half a day,” Gelman said, “so they understand it benefits themselves overall — including their bottom line.”

It’s not only the workers compensation system that some employers might not understand. There are other laws that may be in effect.

“The education has to be constant and because of the Family Medical Leave Act and the Americans with Disabilities Act and how that overlaps with workers’ compensation, the education for employers has to be broad,” Tolbert-Render said. “You can be OK under workers’ compensation not bringing them back or not accommodating their restrictions, but you can get in trouble in another area. So the education, the management of disability is much more complicated in today’s marketplace. Constant education and recommendations are important for the employer.”

Psychosocial Factors
There are a bevy of reasons that some injured workers get stuck and don’t return to work. Often, it has to do with psychosocial issues.

“In studies that predict how long somebody will be away from work, number one is the extent of injury. But a really close second is attitude,” Kertay said. “Stakeholders need to find the best way to foster the proper incentives/attitudes for everyone; then make it happen.”

Helping injured workers deal with psychosocial issues does not necessarily mean ‘buying a psyche claim,’ as some stakeholders have feared. In fact, many stakeholders misunderstand what psychosocial issues entail.

“One mistake we make is we conflate psychosocial with psychological. Not everybody needs treatment, it’s a subset,” Kertay said. “Psychosocial is much bigger than that. The claims examiner has a much bigger role than the physician or psychologist. Helping people deal with their life problems doesn’t necessarily require psychotherapy.”

Identifying those who may need psychosocial interventions immediately upon injury is imperative. The panelists offered several suggestions to do that.
“Safeway, under Bill Zachry, did it by instituting early intervention surveys,” Wilson said. “It was just questions about the injured worker that could trigger red flags and trigger interventions. He dropped their workers’ compensation costs by $105 million.

“When [Zachry] started, adjusters thought their job was to deny claims,” Wilson added. “He changed that. That was an attitude change.”

The use of artificial intelligence to help evaluate claims “must be integrated into the programs so they can target people more needy of support,” Gelman said.
Injured workers who are likely to be among the 15 to 20 percent with claims that go off the rails need the support of all stakeholders involved. Everyone needs to first address the idea that the injured worker will be OK and will recover. Stakeholders need to communicate and provide honest information.

“The other thing that’s important to recognize is that people hate ambiguity more than they hate anything,” Kertay said. “So they will latch on to an answer, even if it’s not the best thing for them. If the answer is ‘I’m going to sue,’ they will go there because it’s better than not knowing.

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