WORK HARDENING AND WORKERS’ COMPENSATION: THERAPY FOR INJURED WORKERS: WHAT YOU NEED TO KNOW

Workers’ Compensation Medical Treatment is special. Unlike Traditional Medicine, Industrial Medical Treatment has unique goals. Treatment for industrial injuries is of statutory construct. In other words, the Government has made special rules and regulations with respect to Injured Workers’ treatment.

California Workers’ Compensation Law, pursuant to Labor Code Section 4600(a), has the overall goal of industrial medical treatment to provide what is “reasonably required to cure or relieve the injured worker from the effects of the worker’s injury, ” This goal is further refined by statute and regulations.

Within this construct, there are other goals with respect to Injured Workers’ medical treatment. One of the most important goals of Industrial Medicine is to get the Injured Worker “back to work.”

The term “Back to Work” has many meanings. “Back to Work” can mean getting the Injured Worker back to the job they had when they got injured. “Back to Work” can mean that the Injured Worker can mean that there is a return to a modified position. “Back to Work” can mean that the Injured Worker is returned to an alternative position. “Back to Work” can mean that the Injured Worker is returned to a state upon which they are able to participate in a vocational rehabilitation program. In sum, “Back to Work” means returning an Individual back to the open labor market.

Work Hardening is a form of therapy that can assist with “Back to Work” issues.

This article will discuss the nature of “Work Hardening,” why Insurance Companies should encourage this treatment, and why Injured Workers should participate in such program programs.

What is Work Hardening?

Work Hardening is a form of “Occupational Therapy.”

“Work Hardening is an interdisciplinary, individualized, job specific program of activity with the goal of return to work. Work Hardening programs use real or simulated work tasks and progressively graded conditioning exercises that are based on the individual’s measured tolerances. Work hardening provides a transition between acute care and successful return to work and is designed to improve the biomechanical, neuromuscular, cardiovascular and psychosocial functioning of the worker.” Washington State Department of of Labor and Industries.

What Are the Goals of Work Hardening?

The Goals of Work Hardening include Improvement of Vocational Feasibility, Improvement of Employability, and Decrease in Vocational Handicap. Work Hardening: Occupational Therapy in Industrial Rehabilitation Leonard N. Matheson; Linda Dempster Ogden; Kris Violette; Karen Schultz American Journal of Occupational Therapy, May 1985, Vol. 39, 314-321. https://doi.org/10.5014/ajot.39.5.314

What Happens in a Work Hardening Program?

Work Hardening Programs work on the Injured Worker’s strength and endurance, they set goals, and they work on simulation of work tasks. Throughout the process, their progress is monitored to see if there is improvement.

Who Benefits from Work Hardening Programs?

“Experience shows that the clients who experience the greatest benefit from work hardening programs are those who are seriously deconditioned after an impairment caused by an injury or disease. In addition, people who have major discrepancies between their symptoms and objective findings and individuals whose impairment is limited to the dominant upper extremity substantially benefit from work hardening. “ Work Hardening: Occupational Therapy in Industrial Rehabilitation Leonard N. Matheson; Linda Dempster Ogden; Kris Violette; Karen Schultz American Journal of Occupational Therapy, May 1985, Vol. 39, 314-321. https://doi.org/10.5014/ajot.39.5.314

In sum, this observation means that individuals who have been off of work for a significant period of time benefit from work hardening. Deconditioning can occur when an individual has been off of work for a while. Also, there may be deconditioning from a severe injury which causes an immediate incapacity to perform physical activities. Delays and denials of medical treatment can further contribute to deconditioning.

Further, individuals with major discrepancies between symptoms and objective findings may have anxiety and emotional issues with respect to engaging in physical activities. Work Hardening can provide confidence to these workers with respect to their abilities to exert themselves without the fear of re-injury.

How Does an Injured Worker Get in a Work Hardening Program?

All medical treatment in the California Workers’ Compensation System requires that a Treating Physician issue a Request For Authorization(RFA) for a “work hardening” program. An RFA request is subject to Utilization Review (UR) If UR denies authorization, the denial can be appealed for an Independent Medical Review.

What Have Independent Medical ReviewI Decisions Said Concerning “Work Hardening”?

There is common language which is used repeatedly within IMR Decisions with respect to the authorization of such treatment.

The IMR Decisions state as justification that “[t]here is a known etiology to the chronic pain syndrome or specific clinical condition which includes physical injury or disease. Other appropriate medical and/or invasive care has been attempted and proved to be inadequate to restore functional status. The patient has appropriate rehabilitation potential (i.e., he or she is judged to be able to substantially benefit from the program). The patient is not responding to less costly interventions including quality physical therapy programs; The patient has at least some behavioral or psychosocial issues affecting their recovery. For workers without behaviorally related issues and merely a physical gap between the current capabilities and future job requirements, work conditioning/work hardening programs are usually both more appropriate and cost effective.
The patient has substantial gaps between current physical capabilities and actual or projected occupational demands. There are no known contraindications to the treatment program, e.g., certain unstable medical conditions, primary substance abuse disorder or cognitive limitation which would prevent appropriate learning. The patient is committed to recovery.” 85 Cal. Comp. Cases 451 CM19-0133693, 85 Cal. Comp. Cases 446 CM19-0130002; 84 Cal. Comp. Cases 470, CM19-0021422 [emphasis added]

In sum, IMR Decisions provide several hurdles before such a program will be authorized. Therefore, it is important that the Injured Worker participate in traditional physical therapy programs prior to attempting to get authorization for a Work Hardening Program.

Why Should an Injured Worker Participate in “Work Hardening”?

There are many reasons why an Injured Worker should participate in a Work Hardening Program. First, the Work Hardening Programs can assist the Injured Person back to workplace. Second, Work Hardening Programs have been found to cut down on absenteeism post return to work. Schonstein E, Kenny DT, Keating JL, Koes BW. Work conditioning, work hardening and functional restoration for workers with back and neck pain. Cochrane Database of Systematic Reviews 2003, Issue 3. Art. No.: CD001822. DOI: 10.1002/14651858.CD001822. Third, the participation in a Work Hardening Program with failed results may be considered as credible evidence of inability to compete in the open labor market. Fourth, failure to participate in a Work Hardening Program may be viewed negatively as to the Injured Worker’s intentions and abilities.

What if I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

THE COUNTY OF LOS ANGELES (COLA) SALARY CONTINUATION PLAN AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Some Employees of the County of Los Angeles(COLA) have special provisions per the Los Angeles County Code.   The County Code has provisions that allow for salary continuation benefits in the event of an industrial injury.

This article will discuss the County of Los Angeles Code Section 6.20.070, with respect to Civilian Employees, and how this Section applies to Injured Workers.

Who Is Eligible for Salary Continuation Benefits?

Essentially, individuals who have passed either a physical or probation and are not entitled to Labor Code Section 4850 benefits are eligible for salary continuation benefits.

This provision is eligible for County Workers who “(1) [a]ll county employees who have either satisfactorily passed the physical examination as required by the Civil Service Rules, or who have successfully completed their initial probationary period shall be eligible and (2) The eligibility of certain classes of employees designated in Section 4850 of the Labor Code shall be in accordance with the provisions of that section.”

What Benefits Are They Entitled To Receive?

The Salary Continuation Law allows Eligible Injured Workers to “receive the difference between 70.0 percent of his base salary and the sum of the benefits prescribed by the worker’s compensation laws of the state of California and earnings from other employment, when such earnings are less than 70.0 percent of his base salary”

Note: Workers’ Compensation benefits pay 2/3rd of one’s average weekly wage upon to a scheduled maximum rate.   In essence, this payment of 66.66 percent of one’s salary.

Therefore, essentially 3.33 percent in additional funds if the Injured Worker’s earnings are lower than or at the maximum workers’ compensation total temporary disability rate.   For Individuals who earn substantially more than the maximum workers’ compensation total temporary disability rate, the additional funds can be much greater and are dependent upon the amount of wage.

How Long Are They Eligible to Receive Benefits?

Essentially, the Salary Continuation Law pays for the period of one year from the date of injury.  There are exceptions which will be discussed below.

Note: It is important to note that Salary Continuation is not paid for a period of one year.   It is only paid during the period from one year from the date of injury.  If that period is one year, then it will be paid.   If the period claimed goes beyond one year from the date of injury, then the Injured Worker will not be eligible for the period beyond the year.   This is the case even though the Injured Worker may not have used up all of the Salary Continuation time within the period of the year from the date of the injury.

This rule applies, “except that any person employed on a daily recurrent basis as an Ocean Lifeguard (Item No. 2923E) or on an hourly recurrent basis as a Lake Lifeguard (Item No. 2953H) shall be entitled to receive the benefits set forth in this subsection C for a period not to exceed one year from the date of injury or a period equal to the employee’s cumulative active service performed on or after July 1, 1985, whichever is less. Effective beginning on and after April 1, 2010, or such later date as may be determined by the Chief Administrative Officer when the human resources management system reflecting this provision is implemented, 70.0 percent of base salary as described in this section shall be calculated at the Calendar-Day Hourly Rate”.

How Do These Rules Apply if the Claim Is Denied?

If a claim is denied at the onset an Injured Worker may have used their previously earned vacation, sick, nonelective annual leave, holiday time, or overtime during their period of disability.  The County Code provision provides that “In the event an employee is absent due to an injury incurred on or after January 1, 1981, and the absence is charged to any previously earned vacation, sick leave, non-elective annual leave, accumulated holiday time or accumulated overtime, and subsequently the injury is determined to be compensable by the director of personnel or the worker’s compensation appeals board, 70.0 percent of such vacation, sick leave, non-elective annual leave, holiday time, or overtime shall be restored to the employee. The remaining 30.0 percent shall be lost. Restorable time shall be calculated to the nearest 15-minute increment, and such restoration shall be deemed full recovery of any overpayment resulting from the operation of this paragraph.”

It should be noted that “[o]nce the injury is determined to be compensable, no employee may use any previously earned vacation, sick leave, nonelective annual leave, accumulated holiday time, or overtime to supplement the compensation provided in this section except as provided in subsections D1 and D2”

Subsections D1 and D2 provide that an exception to claiming accrued time after the year after the date of injury. “D1. To receive only those benefits provided under the worker’s compensation laws of the state of California; and D2 To use any full-pay or part-pay sick leave to which he would be entitled pursuant to Sections 6.20.010 through 6.20.060 if his injuries had not arisen out of or in the course of his employment in order to receive the difference between his sick-leave pay and the sum of his worker’s compensation benefits and earnings from other employment, when such sum is less than said sick-leave pay. When sick leave has been exhausted, the employee may elect to receive the alternative set forth in paragraphs 1 or 3 of this subsection D;”

In sum, when there is a delayed claim or denied claim that eventually becomes accepted as industrial, the Injured Worker is entitled to have their time restored up to 70 percent.   Likewise, there is a mechanism to claim use of accrued time post-one year from the date of injury.

Are There Any Limits When One Is Receives These Benefits?

Yes. There are some limitations.  Individuals who are absent “under provisions of subsection D1 of this section shall not earn any vacation, sick leave, nonelective annual leave or holiday for the duration of such absence.”

In sum, benefits are not accrued when an Injured Worker is collecting state rate workers’ compensation during their second year of being disabled.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

 

The Disability Evaluation Unit (DEU), DEU Raters, Permanent Disability Ratings & Your Workers’ Compensation Case: What You Need To Know

In Workers’ Compensation, Permanent Disability Ratings are a part of the compensation benefits received by Injured Workers. As an Injured Worker goes through their workers’ compensation claim, they receive medical reporting from Treating Doctors, Qualified Medical Evaluators, Agreed Medical Evaluators or Regular Physicians which provide for Permanent Disability Impairments.

The Permanent Disability Impairment Reports must be taken and placed into a Permanent Disability Rating Formula to determine the Permanent Disability Percentage. This formula provides for adjustments for age and occupation. The Department of Industrial Relations has a special unit which assists the parties in analyzing the medical reports and providing the permanent disability percentage. This article will discuss this special unit, the Disability Evaluation Unit. Continue reading

Disabilities & Workers’ Compensation: What You Need To Know

Disabilities & Workers’ Compensation

In California Workers’ Compensation Law, the term “disability” carries with it many different meanings. Many times, as an Injured Worker, you are frequently asked questions by family, friends, and co-workers, such as “what is your disability?” or “how much is your disability?”

Continue reading

Activities of Daily Living (ADLs) & Workers’ Compensation: What You Need to Know

California Workers’ Compensation Law provides for the assessment of Permanent Disability based upon the American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition. When determining Whole Person Impairment, the AMA Guides employs an analysis of the injury’s impact on Activities of Daily Living.

Whole Person Impairment assignment is important for determining Permanent Disability. The purpose of the AMA Guides, within the California framework, is to provide a Whole Person Impairment for each injured body part. This Whole Person Impairment is then placed into a formula to calculate the Injured Worker’s Permanent Disability Percentage. It is that percentage which translates into monetary compensation.

This article is meant to explain what are the Activities of Daily Living, how they are analyzed, and how they can impact the assessment of the Injured Worker’s Whole Person Impairment.

Impairment Ratings and Activities of Daily Living, What is the Relationship?

Per the AMA Guides, “Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living (ADL), excluding work.

Impairment ratings were designed to reflect functional limitations and not a disability. The whole person impairment percentages listed in the Guides estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work, as listed in Table 1-2. “Guides to the Evaluation of Permanent Impairment” at Page 4.

The fact that the AMA Guides excludes consideration of work activities provides some irony to the fact that the Guides are used to compensate Injured Workers on their Workers’ Compensation cases by considering the injury’s impact on Activities of Daily Living. In handling California Workers’ Compensation cases, these cases, there is always the concern that an Injured Worker may not be adequately compensated for their inability to perform their occupation, trade or job.

Impairment Ratings and Activities of Daily Living are related. In certain assessments of Whole Person Impairment, there are ranges of Whole Person Impairment within the tables for particular medical conditions. The impact of the injury on ADLs can impact the assessment of the Whole Person Impairment by the evaluating physician. In certain tables, the ranges are not very large. On other tables, the ranges are quite large. If the impact of the medical condition is significant to Activities of Daily Living, it is likely that the Examining Physician will provide a Whole Person Impairment number that is within the high range of either/or the class or table that is applicable.

What are the Activities of Daily Living?

Per the AMA Guides, Activities of Daily Living “include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, and sleep. “

How are the Activities of Daily Living broken down?

Per the AMA Guides 5th Edition, Table 1-2, See Page 599, the following are the definitions of each ADL.

Self Care:
  • Urinating
  • Defecating
  • Brushing Teeth
  • Personal Hygiene
  • Combing Hair
  • Bathing
  • Dressing Oneself
  • Eating
Communication:
  • Writing
  • Typing
  • Seeing
  • Hearing
  • Speaking
Physical Activities:
  • Standing
  • Sitting
  • Reclining
  • Walking
  • Climbing stairs
  • Hearing
  • Seeing
  • Tactile Feeling
  • Tasting
  • Smelling
Sensory function:
  • Nonspecialized Grasping
  • Lifting
  • Tactile
  • Hand Activities
  • Discrimination
Travel:
  • Riding
  • Driving
  • Flying
Sexual function:
  • Orgasm
  • Ejaculation
  • Lubrication
  • Erection
Sleep:
  • Restful
  • Nocturnal sleep pattern

How is Impairment of Activities of Daily Living evaluated?

Limitations are to be judged by the medical disorders and not by other factors. Factors such as lack of money or transportation are not to be considered when addressing ADLs. See AMA Guides.

How is the impact of Activities of Daily Living assessed?

“In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction.” See AMA Guides at P. 361.

Who makes the Assessment on the impact of Activities of Daily Living and How?

In California Workers’ Compensation Law, the evaluating physician, either the Agreed Medical Examiner, Qualified Medical Evaluator, or Treating Physician, will make the assessment of the impact of activities of daily living.

In many Qualified Medical Evaluations and Agreed Medical Evaluations, the evaluating doctors will either directly ask the injured worker about their ADLs or provide the Injured Worker a written questionnaire to make such an assessment. Per the AMA Guides, “[t]he examiner must assess not simply the number of activities that are restricted but the overall degree of restriction or combination of restrictions.

For example, a person who is able to cook and clean might be considered to have marked restriction of daily activities if he or she were too fearful to leave home to shop or go to the physician’s office.” AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, Page 361.

Where Can I Get Legal Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.

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