Key points

Introduction

Many physicians avoid treating injured workers (IWs) with complaints of acute or chronic pain. Various reasons are offered for such avoidance, ranging from concerns of excessive administrative burden, to patients not recovering as expected, to inadequate reimbursement. It is the authors’ view that an understanding of the practical and philosophic underpinnings of our nation’s workers’ compensation systems will assist physicians in dealing more efficiently with the agencies that provide workers’ compensation insurance. The authors also think that IWs’ safe and efficient return to health, function, and employment is central to the survival of the tens of thousands of small businesses that power much of the nation’s economy and the larger employers that to survive and continue to keep workers employed must compete on the national and international levels.

The present article uses an extended case history to illustrate challenges that physicians face when they manage painful conditions in IWs. The case history assumes that the reader regularly treats patients with musculoskeletal conditions. The comments accompanying the case history are written from 2 perspectives:

• •
  

  That of a physiatrist (JPR) who works in Washington State, where workers’ compensation benefits are available only through a monopolistic state fund and through self-insured employers that by law must adhere to the state fund’s regulations and policies

  
  
• •
  

  That of an associate medical director (LSG) of the same state’s department that provides workers’ compensation insurance and who regularly meets with the state’s IWs, physicians, attorneys, and employers

The author of the entries in the several comments sections is indicated.

Introduction

Many physicians avoid treating injured workers (IWs) with complaints of acute or chronic pain. Various reasons are offered for such avoidance, ranging from concerns of excessive administrative burden, to patients not recovering as expected, to inadequate reimbursement. It is the authors’ view that an understanding of the practical and philosophic underpinnings of our nation’s workers’ compensation systems will assist physicians in dealing more efficiently with the agencies that provide workers’ compensation insurance. The authors also think that IWs’ safe and efficient return to health, function, and employment is central to the survival of the tens of thousands of small businesses that power much of the nation’s economy and the larger employers that to survive and continue to keep workers employed must compete on the national and international levels.

The present article uses an extended case history to illustrate challenges that physicians face when they manage painful conditions in IWs. The case history assumes that the reader regularly treats patients with musculoskeletal conditions. The comments accompanying the case history are written from 2 perspectives:

• •
  

  That of a physiatrist (JPR) who works in Washington State, where workers’ compensation benefits are available only through a monopolistic state fund and through self-insured employers that by law must adhere to the state fund’s regulations and policies

  
  
• •
  

  That of an associate medical director (LSG) of the same state’s department that provides workers’ compensation insurance and who regularly meets with the state’s IWs, physicians, attorneys, and employers

The author of the entries in the several comments sections is indicated.

Societal background

There was a time before workers’ compensation, a time when there was not sufficient societal wealth to support a system that replaced the wages of those whose injuries prevented them from working. People were injured in the course of employment; but absent some voluntary contribution by their employers, IWs had to look to the courts for any money they might seek. The laws that governed the resolution of disputes among the colonials were largely derived from the laws of England, laws that had been developed by the church and state to preserve order in a societal structure in which some were masters and many were servants. Should a servant be injured in the course of employment, the servant would have to prove the master negligent. If the master showed the servant to be culpably negligent to even the slightest degree, then the servant would take nothing. Such was the concept of fairness before and during the industrial revolution.

The industrial revolution generated great wealth. Between the early 1800s and the early 1900s, the industrialization of the United States proceeded at a pace never before witnessed in history. Coal mines provided the energy to turn iron ore into steel. Steel became railroads that punched their way across a continent, providing the means for transporting raw materials to commercial centers and goods to far-flung communities. Steel became derricks that allowed the extraction of oil. Oil further fueled the economy, allowing the efficiency of production that came with mass production to accelerate at a geometric speed. Steel supported the construction of skyscrapers that became the highly visible, upward-pointing metaphor for progress and wealth.

For industrial growth, workers were needed. They came to these shores by the shipload. They came, sometimes prompted by famine and sometimes prompted by visions of wealth, to work. It was their labor—in factories, in the sweatshops of the garment industry, blasting rights of way for rails and crossties—that made the pace of industrialization possible. That labor was performed largely under the same rules that had governed the resolution of disputes in a distant time in a distant land, and the result was that those who were injured in the course of employment had no real ability to obtain either medical care or monetary compensation for their injuries.

The wealth created by the country’s industrialization was far greater than had ever been possible in the preceding agrarian economy. With the obvious concentration of much of that wealth—in families with names such as Carnegie, Rockefeller, and Mellon and in corporations and trusts—came clamors for change.

From approximately the last years of the nineteenth century to World War I, the country saw social change at a rate and in a scope that was unprecedented. Those years, the Progressive Era, as historians refer it to, saw change institutionalized in almost every aspect of life. Women got the right to vote. Alcohol was outlawed. Senators were directly elected. And nowhere was change more profound than in the arena of labor relations. Judges, in an era of ever-increasing wealth, were finding reasons to erode the traditional defenses asserted by industry when faced with claims for damages caused by on-the-job injures. For its part, industry was seeing more and more value in having a stable workforce and a quick and efficient means of resolving issues related to industrial injuries.

The ability of business and labor to find shared interests of a magnitude sufficient to form the basis for an agreement was nowhere more evident than in the legislation that created the country’s first workers’ compensation systems in 1911. However, nothing in the past 100 years has been sufficient to allow business and labor to consistently focus only on those shared interests. For a century, the laws governing workers’ compensation have as much reflected turmoil in the relations between business and labor as they may have reflected what is most helpful in returning IWs to health and function.

The fundamental compromise between business and labor that is reflected in all workers’ compensation systems in this country is labor giving up the right to sue in exchange for business providing no-fault payments for health care, time-loss payments, and vocational benefits when they are necessitated by industrial injuries. What makes today’s workers’ compensation systems fundamentally different from the forms of group medical insurance with which physicians routinely interact is the manner and extent to which business and labor, legally and by design, remain directly or indirectly involved in the health care of IWs.

In most private health insurance models, a funding source (often but not always an employer) enters into a contract with an insurer. The contract specifies the beneficiaries of the policy and the scope of the policy’s benefits. If a dispute arises, it is virtually always between the beneficiary and the insurer; the funding source is only rarely involved. In workers’ compensation, however, the funding source and/or the employer in most states are by law parties in the beneficiary’s workers’ compensation claim. Therefore, the employer and/or the insurer may intercede as a party in any such proceeding. In this manner, the business interests of an employer can become entangled in the health care of an IW. Although such involvement may actually be in the best interests of a worker (for example, when an employer correctly asserts that a proposed surgery carries far more risk of harm than of benefit), it is generally perceived as being adverse to the interests of the IW.

A full understanding of the diagnosis and treatment of pain in a workers’ compensation case is benefited by an understanding that a physician’s health care services are to be provided to a specific individual but within a complex system that, ultimately, has a role that goes far beyond the provision of health care to a specific IW. A principal goal of workers’ compensation as a system remains what it was in 1911: a means of helping to ensure the economic well-being of the economic backbone of the state through the delivery of affordable, necessary health care services to IWs. It should, therefore, come as no surprise to a physician treating the pain complaints of an IW that his or her health care decisions may be called into question when, if the same patient’s care was funded by a group medical insurer, no such issue would, or could, be raised.

Viewed from the aforementioned perspective, it can be seen that the physician treating the pain complaints of an IW has responsibilities that may not be intuitively obvious to the worker. The right to treat an IW carries with it, in virtually all workers’ compensation systems, the responsibility of responding to queries that go far beyond the specific health care services that have been or may be provided. For example, a physician may be asked whether an event was a proximate cause of a condition, which is a question that raises both medical and legal issues. A physician may be asked to apportion the responsibility for a condition among multiple employers, which is an exercise requiring skills that are likely not a part of the curriculum of any accredited medical school. For better or for worse, society has a need for such questions to be answered; treating an IW may lay that responsibility on the shoulders of the treating physician.

Many IWs, and many physicians, do not intuitively grasp the layered responsibilities of health care providers who offer services to IWs. When those responsibilities require that a physician voice an opinion that is at odds with the way in which an IW perceives his or her best interests, conflicts can arise. Central to the successful treatment of IWs, especially those in pain, is the setting of clear understandings and expectations as to the role of the physician in providing health care services.

In summary, the physician treating an IW is doing so as a participant in a much larger system. That system imposes responsibilities on physicians that would not be present in other health care funding models. Understanding by both the IW and the physician of the needs of the workers’ compensation system for information is critical. The failure of the workers’ compensation system to obtain needed information in a timely fashion generally results in an inefficiency that is costly both in terms of time and dollars. Such inefficiency harms workers, employers, health care providers, and society as a whole.

Case history

June 1, 2012: Mr Smith, a 40-year-old auto mechanic, calls your office. He seeks an urgent evaluation because he sustained a low back injury yesterday in the course of his work. He was bent over the hood of a car and was lifting out a battery when he felt a pop in his low back and abrupt onset of severe low back pain. He denies pain, sensory loss, or motor loss in the lower extremities. He reports that he has not noticed any problems with bowel or bladder control.

Past medical history is noteworthy in that the patient filed a workers’ compensation claim a year ago because of a low back injury that he sustained at work. He underwent an L5-S1 discectomy and was out of work for 6 months. He was eventually able to return to work as a mechanic, and his claim was closed. Although his low back pain never fully resolved after the injury a year ago, he is very definite that his symptoms during the past 24 hours have been much worse than any he has had since the day of his injury a year ago. His employer now is different from the one he had when he was injured a year ago. The rest of his past medical history is unremarkable.

Social history indicates that the patient is a high school graduate. All of his work experience has been in the area of automobile repair. He is married and has 2 children aged 10 and 7 years.

Physical examination is noteworthy in that he stands leaning forward, with complete flattening of the lumbar lordotic curve. He walks very slowly. Palpation reveals diffuse spasms in the lumbar paraspinal muscles, along with significant soft tissue tenderness. The patient demonstrates virtually zero range of motion of the lumbar spine in all planes. Straight leg raising is limited by back pain rather than radicular symptoms. The neurologic examination reveals diffuse, bilateral lower extremity weakness that seems to reflect pain inhibition. The only focal sign is a diminished right ankle jerk, which the patient says has been present since his original back injury. He is positive on 3 of the 5 Waddell signs.

He says he is in too much pain to work.

The patient asks you to fill out an industrial insurance accident form ( Fig. 1 ). You indicate the following:

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  No. 41: Diagnosis: lumbosacral strain (847.2)

  
  
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  No. 45: Objective findings: muscle spasms, severely restricted lumbar range of motion in all planes, diminished right ankle jerk

  
  
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  No. 47: Was the diagnosed condition caused by this injury or exposure? Probably

  
  
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  No. 48: Will the condition cause the patient to miss work? YES, 10 days

  
  
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  No. 49: Is there any preexisting impairment of the injured area? YES

  
  
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  No. 50: Has patient ever been treated for the same or similar condition? YES

Example of a portion of a report of industrial injury or occupational disease: selected questions.

From Washington State Department of Labor and Injuries, Olympia, WA.

You agree to become the attending physician for Mr Smith’s claim, and you outline a conservative treatment plan for him. It consists of a referral to physical therapy and prescription of diclofenac 75 mg twice a day.

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  Comments

  
  
• 1.
  

  JPR: The patient’s presentation is a typical one: acute onset of nonradicular low back pain.

  
  
• 2.
  

  JPR: In filling out the required accident report, you are forced to make several judgments about impairment and disability:

  
  
  
  
  • a.
    

    You must decide whether to conceptualize the patient’s problem as a new injury or as an aggravation of the lumbar spine problem he developed a year earlier. If the problem is conceptualized as a new injury, claim opening is fairly easy. If it is conceptualized as an aggravation, the question will be whether his claim from a year ago should be reopened. To determine the answer to this, workers’ compensation claim managers will probably ask you to review past records on the patient and indicate whether there is objective evidence that his condition has worsened.

    
    
    
    
    • i.
      

      The diagnosis of lumbosacral strain embodies the concept that you are conceptualizing the patient’s problem as a new injury.

    
    
    
    
  • b.
    

    LSG: Administrative agencies often require that a physician buttress his or her conclusions with objective findings. This requirement may serve as a source of conflict: On the one hand, the physician may think that there is no uniformly accepted definition of objective findings ; on the other hand, the insurer and employer may be unwilling to pay significant sums of money in response to a claim that lacks objective findings of injury. In this example

    
    
    
    
    • i.
      

      JPR: Most physicians would accept the objectivity of a depressed ankle jerk reflex. In this patient, it is quite likely that the depressed right ankle jerk reflex stems from the back injury a year ago. But if an insurer insists on the identification of objective findings, you should strongly consider listing the abnormal reflex in answer to item No. 45.

      
      
    • ii.
      

      JPR: The status of muscle spasms and restricted lumbar range of motion is less clear. They are not completely objective because patients have some control over the tightness of muscles in their backs and over how much they move when a physician assesses active range of motion.

      
      
    • iii.
      

      LSG: What is clear is that an answer to item No. 45 is needed in some way. As a practical matter, the claims managers who review accident reports are likely to have only the medical information on the report and perhaps that which appears in a contemporaneously prepared clinic note. For that reason, and because the information in the report will serve as the medical foundation on which the remainder of the claim will be built, it is important that it be as accurate as possible. Most states, through regulation, judicial determination, or general practice, expect that claim managers will, in the absence of a clear reason to do otherwise, accept the information on the accident report form and make claim allowance determinations accordingly.

    
    
    
    
  • c.
    

    JPR: When a physician gives a diagnosis (No. 41), states objective findings that support the diagnosis (No. 45), and reports that the diagnosed condition was probably caused by the patients’ work (No. 47), he or she is in effect urging the insurer to accept the patients’ condition as work related. This step is necessary on the way to medical or disability benefits, that is, a worker must have a valid workers’ compensation claim before he or she can get workers’ compensation benefits.

    
    
  • d.
    

    JPR: The indication that Mr Smith’s condition will cause him to lose 10 days of work (No. 48) supports the contention that he is work disabled and, therefore, entitled to disability benefits (ie, cash payments to substitute for his inability to work). In the language of workers’ compensation law, Mr Smith deserves benefits if he is judged to be temporarily, totally disabled from work.

    
    
  • e.
    

    LSG: Items No. 49 and No. 50 address the issue of previous problems that Mr Smith has had with his lumbar spine. As noted earlier, his new symptoms can be construed as either an aggravation of an old lumbar spine condition or as a new injury. The issue aggravation of an old injury vs. occurrence of a new injury can have significant economic consequences for an employer; as a result, the issue of employer liability is often the source of litigation.

    
    
  • f.
    

    LSG: In a general way, it is important to note that in filling out the required accident report, you have made important judgments regarding Mr Smith. There are now contentions that he has a musculoskeletal injury, that the injury was likely caused by his employment, and that he is disabled by virtue of his injury. Such judgments are typically made primarily by what patients say; it is rare to have completely objective indices of the severity of patients’ incapacitation from low back pain; often physicians do not have independent confirmation that patients became symptomatic because of their work.

    
    
  • g.
    

    LSG: Unless a physician has caused an insurer to doubt the veracity of his or her documentation, the workers’ compensation system tends to be permissive when it processes accident reports in that the accuracy of the reporting physician’s statements is rarely questioned.

  
  
  
  
• 3.
  

  LSG: A decision to become attending physician for Mr Smith’s claim carries with it significant responsibilities. In part, it means that you will be required to not only orchestrate his treatment but also to address a multitude of administrative issues that may come up regarding the claim.

  
  
  
  
  • a.
    

    The attending physician’s treatment plan should reflect his or her multiple responsibilities and, to the extent possible, take into consideration the needs of all the participants in a workers’ compensation claim. For example, a claim manager will react positively to a time-limited, goal-oriented, global treatment plan that incorporates a branching algorithm of treatment possibilities, all of which end with the worker at maximum medical improvement. Claim manager agreement with such an approach will likely be heightened if the plan includes the following elements:

    
    
    
    
    • i.
      

      The overall duration of the plan is specified. In a case such as the one here, it might be reasonable to conclude early on that all likely approaches to this patient’s low back pain, including surgery, if that was to become an option, could be concluded in 1 year. The maximum length of such a plan, therefore, might be 1 year.

      
      
    • ii.
      

      The goals of the treatment plan should be clearly articulated. A physician might phrase such a goal as follows: return to work in employment that does not require lifting more than 15 pounds or frequent bending

      
      
    • iii.
      

      The frequency at which progress toward the plan goals will be measured should be included. This frequency may vary depending on the specifics of the plan at any one time. Monthly measurements of progress might be appropriate at some points, and every 2 weeks might be more appropriate at others.

      
      
    • iv.
      

      The objective criteria by which the physician will determine whether progress toward the plan’s goals is being made should be included. The statement, patient has less pain today , may be accurate but it will not likely meet the needs of an insurer that reads such comments daily in the claim files of workers who are not progressing in any meaningful health care direction.

      
      
    • v.
      

      The agreement of the IW and, if appropriate, the IW’s spouse or significant other that the plan is one to which the worker will give his or her best efforts to help it succeed should be included.

    
    

  
  

August 1, 2012: Mr Smith seems to have improved modestly from his conservative treatment program but continues to complain of persistent, localized low back pain that is severe enough to prevent him from returning to his auto mechanic job. His employer contacts you and requests a conference to discuss Mr Smith’s ongoing symptoms and prospects for returning to work.

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  Comment

  
  
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  LSG: Many experts in workers’ compensation emphasize that treating physicians who communicate with employers regarding return-to-work issues can be highly effective in minimizing disability by, for example, helping an employer see the benefits of a return to restricted employment during the recovery phase of an injury. Ironically, patients may perceive their doctors’ communication with an employer as a suspicious activity, whereas an employer may conclude that a doctor whose knowledge of the work site comes solely from an injured employee is not getting accurate job-related information. Such problems can be minimized if the treating physician on the first visit sets his or her patients’ expectations, one of which should be that the doctor will be taking all appropriate steps to having patients back to a wage-earning position as quickly as possible. Communication regarding the return-to-work job requirements should be accurately understood by all concerned. This understanding can generally be arrived at most efficiently through an in-person or teleconference that involves the physician, the worker, and an employer representative.

October 1, 2012: You receive a letter from the workers’ compensation insurer. It asks whether Mr Smith has reached maximal medical improvement and whether he continues to have impairments that prevent him from working. It requests that you present the objective findings on which your conclusions are based. You respond that Mr Smith’s functional capacities as measured by his physical therapist continue to increase, so that he is not yet at maximal medical improvement. Also, you express the view that he needs further evaluation, specifically, a lumbar MRI scan and surgical consultation. You offer your opinion that he is not currently able to return to his job as an auto mechanic. You cite his limited lumbar range of motion and his diminished right ankle jerk reflex as objective findings buttressing your conclusion.

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  Comments

  
  
• 1.
  

  JPR, LSG: The issue of maximal medical improvement is closely linked to disability issues for an individual with a workers’ compensation claim. Specifically, compensation law generally requires that some decision be made about a worker’s employment capabilities when he or she is judged to have achieved maximal medical improvement. Typically, compensation systems are more willing to accept at face value the opinions of treating physicians during the first few weeks after an injury, principally because such opinions relate mostly to purely medical issues. But later in the course of a claim, when an opinion may more directly relate to the continuation of time loss or other payments, claims managers may be more likely to challenge the opinions of the attending physician, for example, by commissioning an independent medical examination. The issue of maximum medical improvement embodies substantial monetary issues and is a frequent source of litigation in workers’ compensation cases.

  
  
• 2.
  

  LSG: At its roots, the need for objective findings is economic, not medical. Somebody has to pay the bills generated by workplace injuries. In workers’ compensation cases, that somebody is generally the employer or its insurer (which will spend the employer’s premium dollars). To assure that the workers’ compensation system comes as close as possible to providing needed benefits to IWs without burdening employers with payments to people who could be gainfully employed, workers’ compensation systems seek objective evidence on which to base their payment decisions.

  
  
• 3.
  

  JPR: In this case, your conclusion that Mr Smith cannot work as an auto mechanic is based largely on the following considerations: (1) He has a complex lumbar spine problem that can produce intolerance of physically demanding work. (2) He has repeatedly stated that he cannot handle the physical demands of work as an auto mechanic. (3) Having treated him for 6 months, you have formed the clinical judgment that his reports regarding his physical capacities are credible. The following is an example of the fundamental dilemma of assessing disability based on pain: The patient reports severe activity restrictions because of his pain; but there is nothing you can do in your office to confirm or disconfirm his statements about his activity restrictions. To a large extent, your decision about whether to support his assertions rests on whether you find the assertions credible. The compensation system, however, seeks objective evidence to verify your subjective opinions. As suggested in the case history, probably the best way to address this mismatch is simply to state the patient’s physical findings, regardless of whether they lead inevitably to a conclusion about the patient’s work capacity.

November 15, 2012: Mr Smith has now undergone an MRI scan and has had a surgical consultation. The MRI showed severe degenerative disk changes at L5-S1, with loss of disk height and Modic changes. But there is no evidence of compromise of neural elements. The surgeon whom Mr Smith saw concluded that lumbar spine surgery was unlikely to be helpful.

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  Comment

  
  
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  JPR: As a general rule, lumbar spine surgery is much more likely to be helpful when treating symptoms of radiculopathy rather than when treating mechanical low back pain. Some spine surgeons think that patients who have low back pain but no evidence of radiculopathy can benefit from spinal fusions. However, at least among IWs, spinal fusions for low back pain have produced very disappointing results. Thus, the assessment of the surgeon seems to be appropriate.

12/1/12: You refer Mr Smith to a pain specialist for opinions regarding therapeutic options to facilitate his recovery. She concludes that Mr Smith might benefit from a modest dose of opioids and prescribes oxycodone/acetaminophen (Percocet) (5/325) tablets for him, with instructions that he can take up to 4 tablets per day. By the time you see Mr Smith 4 weeks later, he is taking Percocet and is emphatic that it permits him to function better. His physical therapist corroborates Mr Smith’s assessment; she indicates that his performance in physical therapy has improved substantially since he started Percocet. Because there is credible evidence that initiation of Percocet therapy has allowed Mr Smith to function better, you elect to keep him on the medication and take over prescribing it.

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  Comment

  
  
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  JPR: In this case history, there is credible evidence from the IW and from his physical therapist that he has been able to function better after starting Percocet. But this positive outcome from an opioid is by no means guaranteed. In fact, the efficacy of opioid therapy in the context of work injuries is questionable. Although short-term randomized controlled trials on patients who are not IWs provide reasonably persuasive evidence that opioids may reduce pain, evidence for functional improvement from opioid therapy is much less impressive. Evidence from workers’ compensation agencies should also give the clinician pause about the efficacy of opioids for IWs. Several recent studies have shown that IWs who receive opioids are likely to remain disabled for longer time periods than ones who do not receive opioids. Thus, in these studies, opioid therapy could be viewed as a risk factor for prolonged disability. It should be noted that research based on large workers’ compensation databases can be misleading. In particular, one could argue that IWs with more severe problems may be more likely to receive opioids than those with less severe injuries. Thus, severity of injury could be the driving force behind both use of opioids and delayed recovery. For example, Gross and colleagues state: “As expected, claimants with more severe injuries were more likely to receive opioids. An association was observed between early opioid prescription and delayed recovery, however, this is likely explained by pain severity or other unmeasured confounders.” ^(p525) In summary, though the findings from some workers’ compensation database studies are not conclusive, at a minimum they certainly challenge the hypothesis that opioids have a role in facilitating functional recovery for IWs with noncancer pain.

In applying these data to individual IWs, it is crucial that a physician who prescribes an opioid makes sure that the worker receiving the medication demonstrates improved function. Mr Smith did in fact demonstrate such improvement, so it was reasonable for him to be continued on a modest dose of opioids.

February 1, 2013: Mr Smith has now been assigned a vocational rehabilitation counselor by the insurer. The vocational rehabilitation counselor has filled out a job analysis for the position that Mr Smith held at the time of his injury. You review the job analysis with Mr Smith at his next scheduled visit. He complains that it is grossly inaccurate. For example, although the job analysis says that his job requires no lifting more than 35 pounds, Mr Smith insists that before his injury he frequently had to lift objects weighing up to 80 pounds. He also asserts that he is unable to spend long periods of time bent over the hood of a car. You request a formal physical capacities evaluation to determine his lifting capacity and his ability to work in the postures required by his auto mechanic job. Based on Mr Smith’s statements, your physical examination findings, and the results of the physical capacities evaluation, you indicate that in your opinion Mr Smith is not able to do the work described in the job analysis.

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  Comments

  
  
• 1.
  

  JPR: It is common for IWs to complain that job analyses provide a distorted picture of what their work actually requires. It is important for you to discuss a job analysis with an IW so that you learn whether there is a significant difference between the job as described in the job analysis and the worker’s perception of what the job requires. If there is a significant gap between the employer’s description of the job and the perception offered by the worker, the differences need to be resolved without unnecessary delay. A physician seeking to remain objective in his or her assessment of job requirements might choose to request that the employer allow the physician a tour of the workplace with an emphasis on the patient’s work station and duties.

  
  
• 2.
  

  LSG: It should be noted that physicians often place themselves into positions of conflict that could easily have been avoided. The communication of the conclusion that Mr Smith is not able to do the work that is described in the job analysis will likely cause unnecessary conflict: One party takes one position and the other the opposite, and the physician is in the hot seat. The way for the physician to avoid such conflict is not to become a party to it. As a neutral in such disputes, the physician can offer a statement to the following effect: If the job is as described by the employer, my patient can safely return to that work. If, however, the job is as described by my patient, he cannot. I will leave it to others to come to a decision as to the requirements that the job entails.

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  Apart from the potential for introducing otherwise avoidable conflict, a physician’s statement that an IW cannot perform a particular job may not turn out to be in the best interests of the patient. It is likely that the statement to the employer will result in litigation, which will delay the patient’s progress through the workers’ compensation system. Another possibility is that it will result in the worker losing a job that was being held for him. At some point in the future, the patient will likely be seeking employment; a potential employer, although never admitting the real reason, may be disinclined to hire somebody whose prior employment ended in a workers’ compensation claim. In the long run, the patient may be better served by a prompt return to safe employment; both the employer and the insurer may be open to discussions that have such a focus.

  
  
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  Patients, employers, and insurers can become equally invested emotionally in disparate beliefs regarding any given issue in a workers’ compensation case. In the end, patients, employers, and insures will all benefit from a process that leads to an accurate assessment of, and planned response to, an issue that generates such conflict. By virtue of their knowledge and training, attending physicians can facilitate the analysis and resolution of such issues. Physicians can facilitate the effectiveness of the workers’ compensation process by establishing at the outset that the role of the physician in a workers’ compensation case is to assist the worker in safely returning to employment at the earliest reasonable date. They can also help workers understand that although the role of lawyers is to get their clients what their clients want, the role of doctors is to get their patients what the patients need to return to health and function as safely and as efficiently as possible.

• 3.
  

  LSG: Should there remain unresolved differences between the stated demands of the job and the demands perceived by a patient, the physician should explain via a letter to the employer what the patients’ working restrictions are and notify the employer that the patients is not being released to work that is beyond those restrictions.

  
  
• 4.
  

  JPR: It is often difficult for a physician to determine how restricted an IW is in work activities from office examinations. In this setting, functional capacities evaluations (typically performed by physical therapists) can provide objective data about what an IW actually does in a test situation (eg, how much he or she lifts, how long he or she sits continuously, and so forth). A functional capacities evaluation is by no means a foolproof solution to the problem of determining activity limitations in patients with a chronic pain problem or the ability of patients to do various kinds of work. But at least it provides some performance data, which is more than a physician can glean simply by doing an office examination on a patient.

March 1, 2013: Mr Smith brings 2 forms to his scheduled office visit. The first is from a company that has financed the purchase of the car he owns. When he arranged financing, he purchased an insurance option; it stipulates that his car payments will be deferred if his treating physician asserts that he is totally disabled from any kind of work and that the disability is likely to continue for more than a year. You agree to support his request for deferment. The second form is from the Department of Motor Vehicles. It is an application for a disabled parking sticker. The patient says he needs to have a disabled parking sticker because his back pain becomes intolerable if he has to walk more than 200 yards. You tell him that you will not support his application for a disabled parking sticker.

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  Comments

  
  
• 1.
  

  JPR, LSG: These 2 requests have no inherent relation to Mr Smith’s workers’ compensation claim. But they give a flavor of the types of disability decisions a treating physician is called on to make. These extraneous disability requests can create stress for the treating physician and may well have an impact on patients’ perceptions regarding their work disability. Also, they may undercut the physician’s message that return to work in the near future is an achievable and desirable goal. Although a physician’s acquiescence to a request that he or she knows is not in the patients’ best interests may provide short-term relief of the physician’s stress from the encounter, it will not really help patients and in the long run and it will not help the physician either. If the physician thinks that what is being requested is not in the patients’ best interests, the most helpful approach the physician can offer patients is a caring encounter that is focused on a return to an able-bodied life.

  
  
• 2.
  

  LSG: The auto financing insurance form creates a potential legal problem for the physician because to be effective it requires the physician to characterize Mr Smith has having long-term, total disability when the physician presumably knows that such is not inevitably the case. Chronic low back pain is not necessarily disabling; if it is, the disability is not necessary lengthy. Wounded soldiers have returned from battlefields with far worse conditions and have returned to gainful employment. If the message to the auto financer is incongruent with messages regarding disability that are being given to Mr Smith in relation to his workers’ compensation claim, the question of fraud may be raised by the insurer.

  
  
• 3.
  

  JPR: A disabled parking sticker raises similar issues, though likely of a lesser nature. At a minimum, the physician’s assistance in the acquisition of the sticker may also affect Mr Smith’s perception of himself as a permanently disabled person. Although there is no logical incompatibility between Mr Smith’s having a disabled parking sticker and his returning to work, there may well be a psychological inconsistency.

April 1, 2013: Mr Smith indicates that his workers’ compensation claims manager has strongly urged him to apply for Social Security Disability Insurance (SSDI). He indicates that he has started the SSDI application process and has been told that disability adjudicators for the Social Security Administration (SSA) will soon be asking you to provide information about his medical condition. You urge him to delay the SSDI application process until he has gotten definitive information about whether his workers’ compensation insurance carrier will provide vocational rehabilitation services for him.

• 
  

  Comments

  
  
• 1.
  

  LSG: Although nominally the interests of the IW, his or her employer, and the workers’ compensation insurance carrier would seem to be aligned around a single, common interest, the safe and efficient return of the worker to health, function, and employment, in reality their interests may be quite divergent. Communication with the various participants in a workers’ compensation claim will likely be most efficient if it is interest focused.

• 
  

  In this case, the insurer’s effort to transfer the burden of disability costs to SSDI is contrary to the purpose of workers’ compensation insurance and it is contrary to the purpose of the SSDI program. In all likelihood, the claims manager is well aware that what is being requested is not in keeping with the purpose of either form of insurance.

  
  
• 
  

  One possible explanation for the claims manager’s reaction is that it is a response to the push by the IW and his doctor for permanent total disability status as the result of an industrial injury that created symptoms that are experienced on a regular basis by a significant percentage of the working population and does not require surgery. The claims manager’s interest may be to limit the insurer’s liability for a permanent, total disability claim that does not, to the insurer, seem valid.

• 2.
  

  LSG: At this point, the employer’s interest in the outcome of the workers’ compensation claim is unknown. If an IW has been a good employee, many employers will do what they can to help the worker return to his or her job. Still the bottom line for private sector employers is that they must either make a profit or go out of business, and that reality may force an otherwise willing employer to cut its losses by permanently replacing the IW and seeking to minimize the costs of the existing claim.

• 
  

  Thus, for 2, possibly 3, of the parties to the worker’s claim, the SSDI application is not in their best interests. This undesirable turn of events is likely frustrating for all concerned. It does, however, offer the engaged physician the opportunity to engage in communication that may better align the direction of the claim with the parties’ respective interests.

• 3.
  

  JPR: In terms of perceptions of disability by an IW, an SSDI application represents a kiss of death. An individual can obtain an SSDI award only if he or she can convince adjudicators that he or she is totally and permanently disabled. Long-term studies show that only about 12% of individuals who are awarded SSDI benefits ever return to the work force on a sustained basis. Although it is theoretically possible for a person to continue to seek employment while he or she is applying for SSDI, informal observation and the limited data available strongly suggest that an individual’s probability of vocational rehabilitation is low once he or she starts the SSDI application process.

  
  
• 4.
  

  JPR: The treating physician is often in an uncomfortable position when an individual on workers’ compensation starts an SSDI application. On the one hand, the physician will appropriately anticipate that the worker will be more refractory to vocational rehabilitation once he or she starts the SSDI application process. On the other hand, he or she may well be concerned about timelines and backup plans for the worker. One issue is that individuals who apply for SSDI because of painful conditions like low back pain often have their initial claims denied. Their claims may be accepted on appeal, but the process of going through multiple levels of the SSA appeals process can easily take more than a year. In the mean time, the worker faces the risk of having his or her time-loss benefits abruptly terminated by his workers’ compensation carrier. From this perspective, an early application for SSDI might be viewed as an insurance policy for a worker who is having difficulty returning to work, even if he or she has not totally given up the goal of returning to work. In an ideal world, workers’ compensation agencies would work cooperatively with other agencies to make sure that IWs do not get caught in the middle between different benefit programs. In fact, this kind of cooperation rarely occurs.

May 1, 2013: Mr Smith’s claims manager schedules him for an independent medical examination. The examination is performed by an orthopedist, a physiatrist, and a psychiatrist. The orthopedist and physiatrist collaborate to generate a medical/surgical report; the psychiatrist submits a separate report. The medical/surgical report states that the patient has reached maximal medical improvement from his lumbar strain of June 1, 2012. He is thought to have no permanent partial impairment over and above the 10% impairment that was awarded when his earlier lumbar spine claim was closed. The report states that are no objective findings that would prevent Mr Smith from working on a full time basis in a job with medium physical requirements.” The psychiatrist diagnoses pain disorder associated with psychological factors and a general medical condition ( Diagnostic and Statistical Manual of Mental Disorders [Fourth Edition] 307.89). Both the medical/surgical and the psychiatric reports indicate that Mr Smith’s claim is ready for closure. A copy of the independent medical examination report is sent to you, and you are asked: (1) to indicate your agreement or disagreement with it and (2) if you disagree with the report, to state the objective findings on which your opinions are based. You respond that Mr Smith probably has reached maximal medical improvement but that you do not think that he can work on a full-time basis as an auto mechanic. You note that he has shown consistent activity limitations and that his reported activity limitations are credible. You indicate that he needs a careful vocational assessment and identification of specific job options before his claim is closed.

• 
  

  Comments

  
  
• 1.
  

  LSG: There are 2 principal means of resolving medical issues in workers’ compensation cases: consultations and independent medical examinations. The attending physician typically seeks consultations. When they occur with the agreement of the insurer, they usually promptly provide either resolution of a medical issue or a recommendation for further exploration of the issue. Independent medical examinations are typically sought by insurers to resolve medical or medical-legal issues. They usually occur without the agreement of the attending physician, and they often polarize rather than resolve matters of concern. Rightly or wrongly, such evaluations are a source of considerable stress for many IWs; they often do more to impair collaborative discussion among the parties than further such conversations.

  
  
• 2.
  

  JPR: Independent medical examinations routinely perpetuate the assumption that physicians can objectively measure impairments and associated work restrictions. The statement that “There are no objective findings that would prevent Mr Smith from working on a full-time basis in a job with medium physical requirements” could be made about virtually every patient with low back pain. But the reality is that back pain is one of the most common causes of disability in working-aged people. To paraphrase Osterweis and colleagues, back pain disables people not because their backs fail mechanically but because back problems can create unbearable sensations that limit activities. Treating physicians need to avoid falling into the conceptual trap of concluding that disability can be supported only if there are objective findings that make the disability inevitable.

  
  
• 3.
  

  JPR: Nonpsychiatric physicians may well feel intimidated by psychiatric evaluations that purport to say what is really underlying an IW’s pain complaints. It is important to realize that, although psychiatric disorders may well be major factors underlying the pain complaints of some patients, this is by no means universal. Even if patients with chronic low back pain have a psychiatric condition, the role that this plays in their ongoing pain complaints is often uncertain. Also, although diagnostic criteria for some psychiatric disorders, such as major depressive disorder, are well established, the diagnoses given to many patients with chronic pain are much less well validated. In particular, you should look with some skepticism on a diagnosis of pain disorder.

  
  
• 4.
  

  LSG: An attending physician might well feel overwhelmed by a strongly worded independent medical examination report signed by 3 physicians. Regardless, the attending physician will best serve the interests of his or her patients if he or she responds articulately and unemotionally to whatever opinions the independent medical examiners may have offered. The attending physician should understand that the workers’ compensation process has well-defined rules for giving weight to the evidence with which it is presented. Medical issues are generally resolved by lawyers or judges who have no training in medicine by applying rules that may be equally distant from a medical nexus. The process and its rules are reflective of the system’s shared ownership by business and labor. In this system, medicine plays a supporting, not a leading, role in the resolution of workers’ compensation disputes.

July 1, 2013: The workers’s compensation insurer’s claims manager indicates that the insurer has accepted your assessment that Mr Smith is not able to return to the job of auto mechanic and that his claim is not ready for closure. She retains a new vocational rehabilitation counselor to do an employability assessment on Mr Smith (ie, to see whether Mr Smith’s physical capabilities and past work history permit him to work in any field other than auto repair). The vocational rehabilitation counselor notes that, at 18 years of age, Mr Smith worked for 3 months as a dishwasher and asks you to sign a job analysis for this kind of work. You meet with Mr Smith to discuss the job analysis. He protests that dishwashing requires more bending, lifting, and standing than he can do. He also notes that he and his family will be impoverished if he is left with no choice other than doing entry-level work. You refuse to sign the job analysis on the ground that the physical demands of dishwashing exceed Mr Smith’s capabilities.

• 
  

  Comments

  
  
• 1.
  

  LSG: Vocational rehabilitation services in the various states’ workers’ compensation systems reflect the differing degrees to which legislatures have been willing to fund, or mandate funding, to retrain IWs. The deliberations of legislators, and the compromises they make, usually occur far from the offices of the physicians who will be involved in workers’ rehabilitation processes. Although such a process may be a formula for disappointment, it generally establishes a fairly clear process for the assessment and resolution of vocational rehabilitation issues.

• 
  

  In most states’ systems, through compromise and release, an IW may settle a workers’ compensation claim through an agreement with the insurer. In many states, such settlements may resolve all vocational rehabilitation issues as well as other issues, such as medical care, time-loss payments, and the like. Some states, however, are far more restrictive; such settlements are either not allowed at all or are allowed only in very narrowly defined circumstances.

  
  
• 
  

  In the example case, the claim manager may or may not be acting within the scope of a governing law or administrative regulation in seeking a declaration that Mr Smith is employable as a dishwasher. Regardless, the vocational issue raises a medical issue: disregarding for a moment Mr Smith’s statements regarding his level of pain, does he have the physical ability to engage in the occupation of dishwasher? The attending physician might find it productive to request that the insurer fund another physical capacities assessment by a person or entity that is agreeable to both the physician and the insurer. Such evaluations can add a degree of objectivity that otherwise would be absent in a discussion of vocational rehabilitation issues.

  
  
• 
  

  Ultimately, it will be the responsibility of the workers’ compensation system to determine whether the IW is capable of successfully returning to some form of gainful employment. The discussions that occur in this regard rarely address a fundamental irony that is an inherent part of the system: the cross-purposes at which the workers’ compensation systems and the Americans with Disabilities Act work.

  
  
• 
  

  Most vocational rehabilitation disputes place the attending physician in the position of the physician in the example case: The physician must state whether a patient can or cannot return to some specified form of employment. Physicians generally think that they face a difficult choice: They can agree that patients can safely return to work in the specified form of employment and thereby risk alienating the patients or they can offer the opposite opinion and in the process alienate the insurer with all of the potential administrative complications that such alienation could cause.

  
  
• 
  

  There is a different way to approach resolution of such disputes, and it is one that places the resolution more in alignment with all (not just some) of our laws: Rather than ask whether the worker can return to work in the named job, the question can be framed as follows: If the worker seeks employment in the named job, could I, as a physician, in good faith support the worker’s efforts? Phrased in that manner, both the interests of the workers’ compensation system and the Americans with Disabilities Act are advanced.

  
  
• 
  

  In our country, if an IW was refused a job because of an actual or perceived disability, if the worker could perform the essential functions of the job with or without a reasonable accommodation, the refusal of employment would be illegal. Phrasing the issue as just suggested changes the focus from the results of a physical capacity assessment with which the worker might disagree to what the workers’ compensation system really needs to know: If the worker wanted to, could he or she succeed in the job? A second benefit from framing the issue as just suggested is that by being phrased hypothetically, it is less likely to directly conflict with the position of a worker who does not want to return to employment as a dishwasher.

• 2.
  

  JPR: When an IW is judged not to be able to return to the job he or she had at the time of injury, at least some workers’ compensation systems ask a vocational rehabilitation counselor to review his or her entire work history and to determine whether, based on his or her skills and physical capabilities, the worker can perform any kind of work. Most workers who go through this kind of vocational assessment are placed in one of 3 categories:

  
  
  
  
  • a.
    

    They are judged to be employable based on work they have done at some earlier time in their lives. (Workers in this category typically have their time-loss benefits terminated.)

    
    
  • b.
    

    They are judged to need vocational retraining in order to be employable. (Workers in this category are typically authorized for vocational rehabilitation services.)

    
    
  • c.
    

    They are judged to be unemployable under any circumstances. (Workers in this category typically receive a pension.)

  
  

IWs and treating physicians often look at category No. 1 with some skepticism. One issue is that workers may be judged employable by the entry-level work that they did when they first entered the labor force. Even if a worker is physically able to do such entry-level work (eg, a job at a fast food restaurant), the remuneration from the work is often very low. Also, some of the jobs that are proposed by vocational rehabilitation counselors seem contrived. For example, a person with a severe lumbar spine condition might be judged to be employable as a telephone solicitor.

September 1, 2013: Mr Smith is accepted for vocational rehabilitation services. He and his vocational rehabilitation counselor develop a plan for him to work in an auto parts store. It is determined that Mr Smith will need 6 months of training in order to have the skills needed for this kind of work. The workers’ compensation insurer requests that you review the physical requirements of a salesman in an auto parts store. You review the appropriate job analysis with Mr Smith and sign it. Mr Smith goes through the 6-month training program.

• 
  

  Comments

  
  
• 1.
  

  JPR: A formal vocational rehabilitation plan represents the last step in most insurers’ procedures for assisting IWs in their return to the work force. A vocational rehabilitation counselor assigned by the insurer typically first works with an IW to develop a vocational rehabilitation plan. Most insurers provide only modest funding for retraining and generally insist that the attending physician indicate that the job for which patients will be trained is within their physical capacities.

May 15, 2014: Mr Smith has finished his vocational training and has applied for jobs in several auto parts stores. All of his applications have been rejected. He expresses the view that employers are discriminating against him because he continues to use Percocet.

• 
  

  Comments

  
  
• 1.
  

  JPR: Even if an IW on opioid therapy reports pain relief, improves functionally, and seems to be ready to return to work, continued opioid therapy may act as a barrier to his or her successful return to work. Issues related to the ability of IWs on opioids to return to work divide into 2 groups: impairment in work activities secondary to opioid use and unwillingness of employers to hire IWs on opioids. It is beyond the scope of this article to review the voluminous research that has been done on cognitive impairment from opioids that might adversely affect the ability of an individual to work.

  
  
• 2.
  

  JPR: The authors are unaware of systematic data on the frequency with which employers reject job applicants because of their use of prescription opioids. Clearly, though, efforts by IWs on opioids to return to work may run afoul of programs established by private industry and governments at the federal and state level to create drug-free workplaces. For example, the Drug Free Workplace Act of 1988 required organizations that contract with the federal government to establish programs to reduce drug abuse by employees. As one component of programs to reduce inappropriate use of illicit drugs and alcohol, many companies have required employees to undergo urine drug tests.

• 
  

  Discussions about drug-free workplaces are routinely framed in terms of the need to prevent workers from using illicit substances, psychoactive substances that have not been prescribed for them, or excessive alcohol. The status of prescription opioids is ambiguous. For example, in a recent publication entitled “What Employees Need to Know About [Department of Transportation] DOT Drug and Alcohol Testing,” the DOT stated: “Prescription medicine and [over-the-counter] OTC drugs may be allowed.” ^(p3) The document then listed requirements that must be met in order for patients on prescription medications to engage in safety-sensitive work for the DOT. One requirement is that prescribing physicians indicate that the medication “is consistent with the safe performance of your duties.” But the DOT makes clear that meeting the stated requirements may not be sufficient because subsidiary organizations within the DOT might establish different standards regarding opioids. As an example of this, the Federal Aviation Administration, a subsidiary of the DOT, does not permit pilots to use any prescription opioid.

• 3.
  

  JPR: Given the multiple policies used by governmental organizations and private companies, it is difficult to know how likely it is that patients’ job applications will be compromised by their use of prescription opioids. To make matters more complicated, cases regarding the rights of opioid users in the workplace are currently being litigated. The balance between an employer’s right to maintain a safe, drug-free work environment and an employee’s privacy rights and right to work while using medications sanctioned by a physician has not been determined.

• 
  

  In theory, at least according to the Equal Employment Opportunity Administration, applicants for jobs do not need to provide information about their prescription medications. But the practicality of this protection of privacy is vitiated by the fact that employers have the right to demand urine drug testing before an applicant is accepted for a job. Thus, prospective employers can learn that a job candidate is using opioids. Although urine drug testing is supposed to be deferred until after an applicant has been assured of a job, this safeguard can easily be circumvented.

  
  
• 
  

  In summary, although the implications of prescription opioids for reintegration into the workforce are not entirely clear, physicians need to be aware that when they treat IWs with long-term opioids, they may well be prejudicing the chances of the IWs to reenter the work force. In the present case example, Mr Smith was rejected by many employers for unknown reasons. His use of Percocet may have prejudiced employers against him, but there is no way to be certain of this.

August 1, 2014: Mr Smith is finally hired for a full-time position as a salesman in an auto parts store. Although he continues to complain of back pain, he is able to carry out his job responsibilities consistently, with no time lost from work because of back pain. His workers’ compensation claim is closed 4 months after his successful return to work.

• 
  

  Comment

  
  
• 
  

  JPR: This case history has a happy ending. Mr Smith makes a successful reentry into the work force, and his claim is closed. In real-life situations, the likelihood of the outcome described in the example is low for a person who has been disabled for the past 2 years. Moreover, an outcome that is successful from the standpoint of an individual claim may not be successful from the standpoint of the person with a chronic low back problem. Long-term follow-up data indicate that an individual like Mr Smith is at high risk to have still another back injury and file another compensation claim before the time when he reaches retirement age.