Written by: Mitch Neuhaus, Senior Vice President of Claims at Safety National

Many studies show that there is a correlation between behavioral health and physical health, which is an issue that often carries over into workers’ compensation claims. There are several other factors that play into a patient’s pain and disability besides the underlying medical diagnosis, often referred to as psychosocial issues. This term refers to a patient’s psychological and social issues that affect their recovery from the physical or biological injury.

While many patients develop psychological problems as a result of their injury, others might have psychosocial issues from day one that interplay on their recovery. These factors must be closely monitored and addressed when identified, otherwise they could adversely affect recovery. It is important to identify them early and address the appropriate factors to help employees regain their quality of life, heal, and return to work when possible.

Identifying Psychosocial Factors
Psychosocial factors typically are not the exception to a workers’ compensation claim. They are prevalent in many cases, therefore it is important to screen for them in an attempt to identify the probability that injured employees might develop problems during their recovery process.

There are several screening tools and questionnaires that will help identify psychosocial factors like:

Diminishing Psychosocial Factors
Carefully listening to understand what the employee is experiencing can help determine which approach to take. This could include:

Treatment Options
Low- and moderate-risk individuals can usually be managed with proper education, but high-risk candidates might require additional resources to prevent them from becoming long-term chronic pain or disability patients.      

The intent of the process is to identify and manage the cognitive, behavioral and psychosocial factors that interfere with recovery from the employee’s physical impairment.

One treatment protocol option that has shown to be effective is Cognitive Behavioral Therapy (CBT). This treatment focuses on techniques to change thinking patterns that might adversely affect the patient’s response to pain, such as getting the injured worker to change their view of an injury from overwhelming to manageable. It might also teach behavioral skills like relaxation or biofeedback in an effort to assist them to self-regulate psychosocial stimulation as well as pain.

These tools can teach injured workers to monitor maladaptive thoughts and substitute them with positive thoughts. Most importantly, this therapy can be used to convince the employee that treatment is relevant to their problem, and that they need to be actively engaged in the process. If they do not buy into the treatment regimen, then the results can be poor, regardless of the appropriateness.

About Safety National:
Safety National has long known the unique risks and challenges that exist in the public sector. For years, they have partnered with local governments to help them with their workers’ compensation programs and have expanded their portfolio to include liability products geared toward governmental operations. Available coverage includes workers’ compensation, general liability, auto liability, law enforcement liability, public officials liability, and educators legal liability. Safety National is a member of the Tokio Marine Group and is rated A++ (Superior), FSC XV by A.M. Best. Learn more at www.safetynational.com.

Written by: Mitch Neuhaus, Senior Vice President of Claims at Safety National

Submitted by: Tracy Wall, Regional Sales Director, Carlisle Medical, Inc.

The 2022 CDC Clinical Practice Guideline for Prescribing Opioids for Pain has been updated and expanded from the 2016 Guidelines. The CDC Clinical Practice Guideline for Prescribing Opioids for Pain was created to help clinicians make informed decisions regarding pain. This Guideline is voluntary and was developed because the CDC recognized that primary care and outpatient clinicians needed current recommendations to improve pain management and patient safety when prescribing opioids for patients 18 years or older. There are 12 recommendations for the CDC Opioid Prescribing Guidelines (2022) which can be grouped into the four following areas:

Five Guiding Principles

The 2022 Guideline has five guiding principles for implementing recommendations which can be summarized below:

The Guideline also broadens the scope from primary care physicians to include those whose practice areas include the prescribing of opioids in outpatient settings (hospital, ER, dental, occupational, etc.). The Guideline describes an approach to implementing shared decision-making for treatment changes between the patient and the clinician. The recommendations do not apply to end-of-life care, palliative care, cancer-related pain treatment, or pain management related to sickle cell disease.

Access the full CDC Guideline at https://www.cdc.gov/mmwr/volumes/71/rr/rr7103a1.htm?s_cid=rr7103a1_w.

Submitted By:
Tracy Wall, Regional Sales Director, Carlisle Medical, Inc.
tracy.wall@carlislemedical.com  

Submitted by: Bill DiLemme, Director of Sales & Marketing, MC Innovations

What does transparent mean to you? Does it bring up images of crystal blue water gently lapping soft sand? Does it make you think of the water bottle you are probably drinking out of right now? What if you thought about transparency as the pricing model in your pharmacy benefit management? That’s right. A transparent pricing model in PBM!

For far too long, pharmacy costs have been based on Average Wholesale Price, or AWP. But have you ever stopped to think about who sets the wholesale price of pharmaceuticals? If you did, you would have a lot to think about. Let’s start the process with a much more familiar pricing model…a new car.

New car shopping is fun, right? The new car smell and knowing that you are sitting in a car that very few people have ever driven are quite a rush. But that is where the fun ends. To own that new car, you must go through the buying process. And most of us are sure we will be coming out on the losing side of the deal.

It is widely known that the car dealer that sells you a car is a middleman. He is the step between you, the buyer, and the manufacturer. And as middlemen, they are eager to get their share of the profit of the sale. In the car world, that means they buy cars from the manufacturer at a discounted price, raise the price to the consumer, then offer “specials” to make people believe that they are getting a deal, or saving money on the vehicle of their choice. By the end of the sale, the dealer has, if not more, doubled their money.

The same concept holds true for workers’ compensation programs. Pharmacy Benefit Managers (PBMs) are third-party companies that function as the middleman between insurance providers and pharmaceutical manufacturers. PBMs create a list of approved prescription drugs under a benefit plan, negotiate prices with manufacturers, process claims, create pharmacy networks and conduct drug utilization reviews.

Beginning in the 1960s, insurance companies offered prescription drugs as a health plan benefit. As the demand for drug benefits on health plans grew, PBMs evolved to support workers’ compensation mail-order drug programs. By 1990, the service expanded to the retail pharmacy.

It was then that PBMs were created to help insurers contain drug spending. PBMs originally decided which drugs would be offered in formularies and administered drug claims. The 1970s saw some changes in the industry and PBMs began to adjudicate prescription drug claims. In the 1990s, drug manufacturers began acquiring PBMs, leading to concerns about conflicts of interest which led to federal orders for divestment from the Federal Trade Commission and sparking a trend of mergers and acquisitions within the PBM field.

As health care costs rise, the role of PBMs as prescription reviewers has come under fire. This is due to the cost of prescription drugs and the effects on consumers. The cost of insulin, for example, has become a hot topic news story as the price for this drug has increased over 600% in the past 20 years. This has many patients having to ration medicine when they are not able to afford rising copays.

At this point in the field, it became clear that one way many Pharmacy Benefit Managers earn their profit is through administrative fees charged for their services, through spread pricing – that is the difference between what is paid to pharmacies and the negotiated payment from health plans – and shared savings where the PBM keeps part of the rebates or discounts negotiated with drug manufacturers. This has caused concerns with PBM business practices, focusing on transparency to consumers regarding rebates and reimbursements.

A Transparent Pharmacy Pricing program allows clients to better understand both drug prices and the often-undisclosed associated TPA fees. When thinking in terms of buying a car, an example that parallels the PBM situation, we often don’t know what the dealership paid for a car, making it impossible to determine the quality of any deal struck. If you would like more information about Transparent Pharmacy Pricing, please contact MC Innovations. 

About MC Innovations
Since 1996, MC Innovations has helped clients deliver the best possible risk management programs at the lowest cost by employing industry best practices, early-warning detection and analysis, continuous improvement programs and transparency of results. As a minority-owned business, we can unlock new opportunities for industry providers such as third-party administrators and insurance brokers and can offer new and differentiated services to help them retain existing clients or win new business. Above all, we serve as advocates for our clients, when our clients are successful — we’re successful. For more information about MC Innovations’ risk management solutions, including Pharmacy Benefits Management, contact our Director of Sales & Marketing, Bill DiLemme at bdilemme@mcinnovations.com.

Submitted By:
Bill DiLemme, Director of Sales & Marketing, MC Innovations
bdilemme@mcinnovations.com   

Submitted by: Ariel Jenkins, ARM, CSP, ARM-E, ARM-P, Safety National

First responders encounter an unsurmountable level of stress. From the demanding job responsibilities to the trauma following an emergency, the distress is powerful and, oftentimes, insufferable. As the challenges pile up, so do the long-term risks. We have to act with purpose because if we do not get a handle on the way we condition and support emergency responders,  we can expect the effects of trauma and stress to lead to continued trends of staffing shortages with fewer trained responders to serve our communities.

Law enforcement officers, firefighters, and medical personnel are often exposed to critical, life-threatening situations and intense events. These experiences can leave a lasting imprint, typically leading to post-traumatic stress disorder (PTSD).

Roughly 80% of first responders face a traumatic experience at some point in their careers. The scenes they respond to can be gruesome and affect them mentally in ways that are not necessarily obvious. Traumatic experiences can trigger PTSD, spikes in depression, and a rise in suicide rates. With a stronger focus on resiliency, we can help shape the way first responders survive, adapt, and recover from trauma experienced on the job. We want them to be able to thrive despite the trauma they experienced.

What is Resiliency Education?

Resiliency education is training designed to help first responders, their peers, and leadership deal with trauma and chronic stress. These training programs help build a culture to destigmatize the mental health struggles that stick with the professionals who are constantly on the front lines. A dedicated tactic, resiliency training provides ongoing education to first responders, which offers strategies and resources focused on teaching healthy and effective coping mechanisms.

Why Organizations Should Invest in Resiliency Education

On average, a first responder is exposed to roughly 200 traumatic events over the span of their career. Whether a law enforcement officer has to act with force or an EMT has to provide immediate care at the scene of an accident, many factors affect the everyday mentality of first responders.

The more chronic stress remains unaddressed and kept under the surface, the more likely that stress is internalized in unhealthy ways. Once people find that mounting stress unbearable, they are likely to leave their roles early. Today, we are seeing an increasing amount of first responders retiring or leaving the profession prematurely, ultimately creating a void in law enforcement, firefighting, and emergency response. If this trend continues, those remaining in the workforce will have to assume more responsibilities, which can lead to more stress and greater exposure to the overall risk associated with that stress.  

Resiliency programs support the way individuals, peers, and leaders approach and manage residual trauma stemming from job-related activity. By upholding the values of a resilient culture, the more equipped your organization is to deal with the dangers of PTSD.

The Key Elements of a Resiliency Culture

The most effective strategies to build a resiliency culture typically contain a multi-pronged approach. For organizations building out plans, it is vital to focus on these critical action items:

Leverage the Advantages of Ongoing Resiliency

Trauma affects individuals in various ways, but the recovery process rarely comes easy. Resiliency does not happen organically, so we cannot assume that first responders have a natural ability to adapt to traumatic experiences. While many share an innate skill in dealing with urgent pressures while on the job, it is equally important to provide visible support.

Mixing a full-scale resiliency model into your workforce can make all the difference. A culture indicative of dedicated leadership, quality education, tools, and tactics will give your team the essential building blocks for staying ahead of stress, burnout, and trauma.

Ariel Jenkins is Assistant Vice President – Risk Services at Safety National, where he is responsible for managing the client services team, directing technical risk control content, and overseeing risk control resources associated with Safety National’s public entity practice and excess and surplus lines of business. Throughout his career, he has served as a safety and loss prevention consultant for several large organizations and is a member of the American Society of Safety Professionals.

Submitted by: 
Ariel Jenkins, ARM, CSP, ARM-E, ARM-P 
Assistant Vice President - Risk Services 
Safety National 
SafetyNational.com

Submitted by: Murray W. Huber, RM, CRP, Huber & Lamb Appraisal Group Inc.

Introduction:

Property insurance is an essential aspect of risk management for Insurance companies and Risk Pools. In order to determine appropriate coverage and premiums, insurance companies rely on accurate property valuations. Property valuations for insurance purposes involve assessing the value of a property, its contents, and potential risks. This article is intended to provide an overview of property valuations for insurance purposes, highlighting their importance and key considerations.

Importance of Property Valuations:

Accurate property valuations serve as the foundation for insurance coverage, ensuring that policyholders have appropriate protection against potential risks. There are several reasons why property valuations are crucial in the insurance industry:

Risk Assessment: Property valuations consider the specific location (Tennessee) and its vulnerability to climate related risks. By assessing the properties susceptibility to events like tornados, flooding, earthquakes, wildfires: insurers can determine appropriate coverage levels and premium pricing. Accurate valuations help align insurance costs with potential risks faced by policyholders. By considering the vulnerability of properties to climate related perils, valuations contribute to effective risk management.

Adequate Coverage: Insurance policies should provide coverage that accurately reflects the value of the property and/or its contents. An accurate valuation helps determine the appropriate coverage limits, ensuring that policyholders can adequately recover in the event of a loss.

Premium Calculation: Insurance premiums are typically based on the value of the insured property. An accurate valuation allows insurance companies/Risk Pools to determine the appropriate premium to charge, considering the risk associated with the property and/or its contents.

Claims Settlement: In the event of a loss or damage, property valuations serve as a reference point for claims settlement. An accurate valuation ensures fair compensation, helping policyholders to restore or replace their property without undue financial burden.

Key Considerations in Property Valuations:

When conducting property valuations for insurance purposes, several factors must be considered:

Property Characteristics: The physical attributes of the property, such as size, age, construction quality and unique features play a significant role in determining its value. The Replacement Cost new is typically utilized for supporting an insurable value. (Historic older structures can also be valued by using a Reproduction Cost method.)

Contents Evaluation: Property valuations can also encompass the assessment of contents within the property, including furniture, appliances, personal belongings, and other assets. It is important to evaluate the replacement cost of these items accurately.

Professional Expertise: Property valuations for insurance purposes are typically conducted by qualified professionals, such as appraisers. These experts possess the knowledge and experience to accurately assess property values.

Conclusion:

Property valuations for insurance purposes are an essential component of the insurance industry. Accurate valuations ensure that policyholders have adequate coverage, help in premium calculation, and facilitate fair claims settlement. By considering property characteristics, contents evaluation, risk assessment, and relying on professional expertise, insurance companies and Risk Pools can provide comprehensive coverage that aligns with the value and risk associated with insured properties. Effective property valuations contribute to the stability and reliability of the insurance industry, benefiting both policyholders and insurers. As the country and Tennessee faces the challenges of a changing climate, robust property valuations serve as an essential tool in protecting assets.

Submitted by:
Murray W. Huber, RM, CRP
Huber & Lamb Appraisal Group Inc.
Huberlamb.com

Submitted By: Terri Evans, Vice President, Employer Advisory Services

If you are like most Risk Management professionals, the thought of opening your own pharmacy brings up a slew of questions and concerns.  What are the laws, rules and regulations surrounding running a pharmacy?  What kind of insurance products would be needed, and what level of self-insurance could we afford?  Do I have the staff/time to research, license, build, stock, hire, etc. everything necessary to run a pharmacy?  Will the pharmacy save enough money to make it a worthwhile endeavor for my entity?  Even if you are not directly involved in your health benefits and/or workers’ compensation programs, any consideration of this type of new program will likely come across your desk for evaluation.

At first blush, running a pharmacy for your employees and dependents seems like a crazy idea.  But, fifteen years ago, running a doctor’s office for your employees and dependents was daunting as well, and now over 33% of employers with 5,000 or more employees have an on-or-near-site clinic.  16% of those with 500-4,999 have one.¹  Pharmacies are the next step.  And, just like an on-or-near-site health center, there are management companies that are contracted to own and operate the pharmacy for you.

It is not uncommon for prescription medications to make up over 40% of health plans’ expenditures.  In addition, skyrocketing prescription costs are a huge expense in workers’ compensation claims.  We consistently hear that the US pays more for healthcare in general, and prescriptions in particular, than any other country in the world. 

Many specialty medications have rebates on purchase or coupon assistance for patients – as we hear on prescription commercials!  Self-funded health plans are used to seeing rebates come back to them when specialty drugs are purchased.  But how much of that rebate is retained by the Pharmacy Benefit Manager (PBM)? How much by the wholesaler or pharmacy?  How much by the group administering the health plan or workers’ comp program? What we pay for prescription medication is the end result of many layers of business entities, all needing to make a profit.  These businesses include the manufacturer, the wholesaler, the PBM, and the pharmacy itself. One way to lower the cost is to remove some of the layers.

There are organizations who are wholesalers or direct purchasers of prescription medications, some of which have direct contracts with pharmaceutical companies to obtain preferred pricing for specialty medications.  It is this type of organization that can manage and administer a pharmacy for you. 

Savings to the plan come from the direct purchasing arrangement of the pharmacy management company.  These medications are purchased from manufacturers or wholesalers and distributed to member pharmacies. Prescription costs are billed to member entities with a small dispensing fee, and home delivered medication costs include the cost of delivery.  The pharmacy automatically applies any eligible coupons to the medication, allowing savings to the plan and the employee.  Any eligible rebates are shared with the plan, with the pharmacy keeping a much lower percentage of the rebates than PBMs and health plan administrators.   The administrative costs of operating the pharmacy by the management company are covered by the dispensing fees and percentage of rebates.

When you institute your own pharmacy or join an established pharmacy organization, it is “closed.”  This means that only employees and dependents insured on the member health plan can use the pharmacy.  Often, many groups join together to form the membership to help offset the overhead and administrative costs.  A management company owns the pharmacy operations (and the resultant insurance, licensing, and liability exposures), so the entity has a contract to use the pharmacy.  Often, one or more anchor members start the pharmacy, own the fixtures, furniture, and stocked items, and sometimes lease or build the facility, with the pharmacy management company billing the cost of prescriptions back to the member health plan or workers’ comp plan. If the anchor members allow others to join the pharmacy, they can charge back the overhead and cost of prescriptions to the new members based on utilization.   Prescription claims data is sent to the health plan administrator – and the workers’ comp administrator if plans are self-funded – for stop loss/self-insured-retention reporting.  The pharmacy accepts e-scripts from any licensed physician or mid-level practitioner.  If you are large enough or have enough groups who work together, you can open a brick-and-mortar pharmacy conveniently located to your work location.  Otherwise, medications can be provided to your employees via mail order from another location.  Urgent, one-time medications would still be available to be filled at a local pharmacy. 

This closed pharmacy concept focuses on communicating with physicians in your area that prescribe the most and/or highest cost drugs and keeping patients compliant with their medication regimen.  The pharmacist evaluates all prescriptions for each patient for effective medication synchronization and patient compliance.  The pharmacist can manage both patient flow and community interaction by utilizing pre-packaged medications in commonly prescribed amounts, including 90 days’ supply.  The pharmacist becomes a partner with the physician, the health plan, the workers’ comp administrator and the patient to evaluate each patient’s individual circumstances and help manage their conditions.  This team approach, along with the convenience of home mailing of medications, leads to greater patient understanding and adherence to treatment.

This pharmacy generally does not carry peripheral items like beauty products, chips, soft drinks, and milk.  It will often carry first aid and diabetic supplies.  Since you, the employer, are partnering with the pharmacy management company, you can help direct what is available for your employees. 

The savings to the health plan are often great enough that the pharmacy can offer prescriptions to employees at reduced or no co-pays, encouraging your employees to use the facility.  The overhead of constructing and outfitting a brick-and-mortar pharmacy is generally recouped within two years of savings.  As with any new program, the cost/benefit analysis of your particular group needs to be evaluated.  The pharmacy management company can take your specific claims data and determine what the savings would have been had those drugs been filled through the closed pharmacy.

Each state has specific pharmacy regulations that would apply to employers in that state.  Your pharmacy management company would be responsible for compliance with any local, state, or federal regulations.  As an example, in Tennessee, a health plan cannot exclude any pharmacy or incentivize utilization to a preferred pharmacy through plan design such as lower co-pays to a particular pharmacy.  However, a pharmacy can charge whatever co-pay it chooses and is not required to charge the plan co-pay.  Therefore, the pharmacy could advertise to your employees that they will not charge a co-pay for certain medications, thereby saving your employees money.

As we see the cost of prescriptions continuing to rise, we need to find alternatives to manage our budgets and provide effective benefits for our employees.  This is one key way that pharmacy costs can be managed for both your entity and your employees.

¹https://www.nawhc.org/What-is-an-Onsite-or-Near-site-Clinic

Submitted By:
Terri Evans, Vice President, Employer Advisory Services
tevans@employeradvisoryservices.com   
(423) 276-7475

Written By: Dr. Regina Natera, PT, DPT, OCS, CLT

According to recent research: Excessive Sitting Time is a Global Problem

High amounts of sitting time at 8 hours or more per day were associated with increased risk of all-cause mortality and cardiovascular disease (CVD) in economically diverse settings, especially in low-income and lower-middle-income countries. Reducing sedentary time along with increasing physical activity might be an important strategy for easing the global burden of premature deaths and CVD.

How can Physical Therapy (PT) at CORA Help?

Physical therapists play a unique role in their communities such as prevention, wellness, fitness, health promotion, management of disease and disability by serving as a dynamic bridge between health and health services delivery for individuals and populations.

Your PT at CORA Can Help:

Physical Therapists can play a unique role in society, serving as a dynamic bridge between the community and health-related services. A physical therapist scope of practice can include:

Research Review | Study: Excessive Sitting Time Is a Global Problem | APTA

PTs' Role in Prevention, Wellness, and Health Promotion | APTA

Written By:
Dr. Regina Natera, PT, DPT, OCS, CLT

Submitted By: Public Entity Partners, www.pepartners.org

Municipalities within the State of Tennessee provide vital services to their citizens. City employees are faced with tough decisions every day about what services to provide, how to provide those services, and how to best manage taxpayer dollars.

Liability exposures arise from these day-to-day operations. The Tennessee Governmental Tort Liability Act (TGTLA) embodies the balancing act between managing taxpayer dollars and protecting citizens’ rights (to recovery for injuries or damages caused by negligence of a governmental entity).

Generally speaking, a Tort is a civil wrong causing injury or damage to persons or property. Prior to the passage of TGTLA in 1973, local governments were totally immune from liability for torts done in their governmental capacity, but they could be liable for torts done in a proprietary capacity. The State Supreme Court indicated it would abolish this “sovereign immunity” for governmental acts if the legislature did not act. As a result, the TGTLA was passed.

The concept of sovereign immunity comes from the English Common Law that the “king can do no wrong” and the idea that you cannot bring into court the creator of the court. Prior to the TGTLA, police, fire and general administration were the types of governmental functions that enjoyed total immunity from tort liability. However, proprietary functions, such as water and sewer services, electrical services and mass transit, had total liability for their actions.

The TGTLA was passed in an attempt to balance the needs of individuals seeking recovery for injury or damage negligently caused by a governmental entity with the necessity of offering financial protection for governmental entities so they can continue to provide public services for their citizens.

Tort Liabilities

Tort liabilities are the responsibilities for wrongful actions or inactions, as imposed by law. The Tort Act left the sovereign immunity intact and then created statutory exceptions to this immunity, based on the governmental entity’s negligence.

Negligence is the failure to use the same degree of care that a prudent person would ordinarily use under the same or similar circumstances.

Negligence must be proven based on the following four elements:

Governmental entities receive sovereign immunity from many lawsuits, but the TGTLA removes immunity from governmental entities when injuries arise or result from:

Actual notice is defined as notice expressly and actually given. Constructive notice is information or knowledge of a fact.

A municipal employee acting within the scope of his/her employment has the same immunity from liability as the governmental entity, and if the employee is found liable, his/her liability is limited to the same amounts established for the government itself.

Monetary Limits of Liability

Perhaps the greatest financial protection for both local governments and taxpayers is the monetary limits of liability set by TCA Section 29-20-403(b) (2) A. These limits apply to any claim occurring within the State of Tennessee and other claims to which Tennessee law is applicable.

As of July 1, 2007, these limits are as follows:

Non-State and Non-Tort Liabilities

Not all the exposures of governmental entities fall under the protection of the TGTLA. Claims arising outside the State of Tennessee are not subject to the TGTLA due to the fact that Tennessee state law does not have jurisdiction across state lines. The key point to remember is claims that arise outside the State of Tennessee and federal actions do not have the same monetary tort limits. This means your exposure for these out-of-state and/or federal cases is much larger than claims that fall under the TGTLA. In addition, many other states have their own version of the Tort Act, with different monetary limits.

Why Does This Matter to You?

The Governmental Tort Liability Act governs many civil suits that affect you. Local governments work every day to serve their citizens and constituents with limited resources. Having a basic understanding of what makes your entity negligent, and what your entity can be sued for, helps policymakers, administrators and staff members as they carry out their duties.

Do you have questions about why the Tennessee Governmental Tort Liability Act was created or how it impacts you? Our member services team can provide more information or discuss it with you. 

West Tennessee
Debbie Yeager
dyeager@pepartners.org
731-599-4011

Middle Tennessee
Callie Westerfield
cwesterfield@pepartners.org
615-371-6022

East Tennessee
Wayne Anderson
wanderson@pepartners.org
265-500-5596

This information is a summary of the Governmental Tort Liability Act and is not to be construed as the actual wording of the law nor an interpretation of the law itself.

Written By: Mary Moffatt, Wimberly Lawson Wright Daves & Jones, PLL

I. RESOURCES

On August 3, 2022, the Department of Health and Human Services (HHS) released the 80+ page “National Research Action Plan on Long COVID” (“Action Plan”), written in response to President Biden’s “Memorandum on Addressing the Long-Term Effects of COVID-19” (published April 5, 2022).The President directed the Secretary of HHS to coordinate a government-wide response to the long-term effects of COVID-19, in conjunction with public- and private-sector partners, and to publish a report within 120 days of the Memorandum… and thus, the Action Plan.  

“Long COVID” is generally recognized as a multi-faceted condition that can impact one or more body systems, and can manifest in a variety of ways such as general fatigue, malaise, heart disease, diabetes, as well as mental and neurologic conditions, such as “brain fog,” depression, or overall weakness. There is no specific test for “long COVID,” but it is generally a variety of symptoms, making it difficult to isolate as a single diagnosis and thus difficult for employers to address in the workplace. 

In the Action Plan, the HHS states long COVID is “broadly defined as signs, symptoms and conditions that continue or develop after initial COVID-19 or SARS-CoV-2 infection (and which) are present four or more weeks after the initial phase of infection; may be multisystemic; and may present with a relapsing-remitting pattern and progression or worsening over time, with the possibility of severe and life-threatening events even months or years after infection.” Unfortunately, such a definition does not generally help employers in determining the appropriate circumstances under which long COVID (or long COVID symptoms) may constitute a disability and, thus, require workplace accommodations. 

According to the Action Plan, the Department of Labor (DOL) is in the process of “conducting internal synthesized literature reviews of existing research on COVID-19 and long COVID and developing resources for employers on interventions to meet the needs of persons with long COVID including a forthcoming guide for employers to support individuals with long COVID.” There is no target date stated for the publication of a ‘guide’ so stay tuned.  

On July 12, 2022, the DOL, CDC and Surgeon General announced the “National Online Dialogue on Long COVID’s Workplace Challenges,” which allows participants to submit ideas, questions, and comments regarding long COVID’s workplace challenges, with the goal being to address the workplace challenges and financial impacts of the condition.(www.dol.gov/newsroom/releases/odep/odep20220712).  

Employers are also likely aware of the DOJ/HHS “Joint Guidance on Long COVID as a Disability under the ADA, Section 504 and Section 1557” (Joint Guidance) (www.ada.gov/long_covid_joint_guidance.pdf) as well as the EEOC’s recognition that long COVID may be a disability under the Americans with Disabilities Act (ADA).

The federal government’s commitment of resources to addressing the impact of long COVID should serve to emphasize the continued significance of the condition, and also encourage employers to consider carefully workplace issues related to long COVID including accommodation requests with respect to the condition.  

II. LONG COVID UNDER THE ADA  

“Disability” is defined in the ADA as: (a) a physical or mental impairment that substantially limits one or more major life activities, (b) a record of such an impairment, or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Long COVID and/or the symptoms of long COVID may constitute a disability under the ADA or similar disability-related laws, and thus, may require a workplace accommodation.  

An employer’s response to an accommodation request must include an individualized assessment regarding the employee’s condition and how the condition impacts the employee’s ability to perform the essential job duties. Where an accommodation is needed or requested for the employee to perform those duties, or where an accommodation is obviously necessary, the employer must engage in the interactive process, the extent of which will depend on case circumstances. For example, where the requested accommodation is obviously needed, reasonable and does not create undue hardship, there is not much to the interactive process; in other cases, the process may be more extensive. In either case, the process should be documented. An essential component of the interactive process is to actually discuss the accommodation request and limitations with the employee.

It is essential to train managers and supervisors regarding what triggers the interactive process and how supervisors should best handle accommodation requests, engaging HR promptly. It is critical to train managers and supervisors to avoid stray comments, emails, etc. of a negative nature made in response to accommodation requests. Off-hand comments, even if made without action or in jest, may only fuel the plaintiff’s later claims of discrimination and retaliation. Russo v. Johnson, 2022 LEXIS 97574 (M.D.Tenn. 2022) (Motion to Dismiss denied as to ADA claims based on failure to accommodate plaintiff’s “situational anxiety” over COVID and her remote work request).

Typical accommodations for long COVID or its symptoms include flexible work hours, remote work, or leaves of absence but due to the nature of long COVID, employers may need to be creative when developing accommodations in order to address the unique nature of long COVID and its symptoms.

III. RECENT COURT DECISIONS

As noted in Baum v. Dunmire Prop. Mgmt, “Federal courts around the country are grappling with whether COVID-19 constitutes a disability under the ADA.” Baum, 2022 LEXIS 54555 (Dist. Colorado, March 25, 2022), p.4, citing, Champion v. Mannington Mills, Inc., 538 F.Supp.3d 1344 (M.D. Ga. 2021) (explaining that to find millions of Americans "disabled" under the ADA would lead to absurd results); Matias v. Terrapin House, Inc., 21-cv-02288, 2021 LEXIS 176094 (E.D. Pa. Sept. 16, 2021) (citing agency guidance to conclude that COVID-19 may be an ADA disability); Booth v. GTE Fed. Credit Union, 2021 LEXIS 224333 (M.D. Fla. Nov. 20, 2021)(analyzing lack of consensus regarding COVID-19 as a disability under the ADA). By logical extension, courts will grapple with whether “long COVID” constitutes a disability.

Under the ADA, (and in very general terms), a plaintiff must be able to show that: (1) they are disabled within the meaning of the ADA; (2) they are otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) they have suffered an adverse employment action as the result of discrimination. For claims based on the employee being “regarded as” disabled, an employer may assert the defense that “transitory and minor” impairments do not constitute a disability.42 U.S.C. § 12102(3)(b).

In the Matias case (mentioned above), one of the first cases to address specifically a symptom of long-COVID (i.e., loss of smell and taste), the Court held that certain forms of COVID-19 that carry longer-term impairments can qualify as a disability. In denying the employer’s Motion to Dismiss, the Court found plaintiff had stated a “regarded as” claim, that she suffered an adverse employment action and that the employer failed to establish that the impairment was both transitory and minor. Matias v. Terrapin House, Inc., 2021 U.S. Dist. LEXIS 176094. Compare, Payne v. Woods Services, Inc., 520 F. Supp.3d 670 (E.D. Pa. 2021) (Motion to Dismiss granted, where plaintiff failed to allege facts sufficient to establish the severity or length of his symptoms).  

Courts will likely also be faced with claims of failure to accommodate long COVID under the ADA. For example, in Burbach v. Arconic Corp., the District Court denied the employer’s Motion to Dismiss as to plaintiff’s claims under FMLA (interference/retaliation) and the ADA (failure to accommodate/retaliation). The plaintiff, an Asst. General Counsel for the employer, recovered sufficiently from COVID but continued to experience and be treated for COVID-related symptoms. Upon medical advice, the plaintiff requested to work remotely from Slovenia where his spouse had a family home. The employer at first agreed to the request but later denied it, arguing plaintiff needed to be located in the United States rather than Europe. Shortly thereafter, the plaintiff was terminated. 

While the Court reserved many of the issues for determination after discovery, it held that at this early stage in the case, plaintiff had stated enough facts to support his claims, and that it was “reasonable to infer that plaintiff’s impairment in treating and recovering from COVID could have lasted longer than six months.” On the accommodation claim, while noting some of the employer’s concerns regarding the request to work in Slovenia were “well-taken,” the Court ultimately decided “this requires an analysis of the facts surrounding plaintiff's request and defendant’s reasonable efforts to assist the employee and to communicate with the employee in good faith.” Burbach v. Arconic Corp., 561 F. Supp. 3d 508, 521 (W.D. Pa. 2021).  

IV. CONCLUSION

Employers are advised to integrate long COVID concepts into supervisory training and to be diligent when handling long COVID and its various symptoms in the workplace. As noted in the Action Plan, “Long COVID demands a comprehensive…approach, (using) collaborative efforts across the U.S. government coupled with strong public and private partnership.”  

The challenges of long COVID may well be with us for a long time. 

Written By:
Mary Moffatt
Wimberly Lawson Wright Daves & Jones, PLLC
mmoffatt@wimberlylawson.com

Submitted By: Christopher Scoma PT, DPT, OCS, COMT, CEAS, CDNT

INTRODUCTION

For stakeholders in the workers’ compensation system, it is well known that patients receiving care for a work-related injury generally take longer to return to work and return to their preinjury levels of employment at an overall lower rate, when compared to other patient populations.¹ A common, inaccurate assumption is that secondary gain issues such as monetary awards are the primary driver for these poorer results. While this can be a factor in a minority of cases, there are many other factors that can contribute to poorer functional outcomes. These additional factors must be understood by all stakeholders, so that effective strategies can be implemented to improve outcomes.

In the paragraphs ahead, we’ll discuss how two often overlooked factors – stress and anxiety – contribute to employee health, and what employers and healthcare providers can do to prevent this mental strain from hindering a rehab process and delaying return-to-work.

STRESS AND THE BODY

When a person experiences prolonged mental stress or anxiety, a variety of systems are activated within the body. This includes our fight/flight system, and a series of other hormone response systems. The result is a body that heals slower, responds poorly to physical stress, and encourages the development of depression and despair.²

When it comes to rehabilitating an injured worker, the negative consequences listed above delay return-to-work, extend case duration, and contribute to poor long-term outcomes. So, what can be done by workers’ compensation stakeholders to reduce factors that contribute to injured workers’ anxiety?

FIRST LINE OF DEFENSE – EMPLOYER EMPATHY

Step one is to demonstrate empathy. Employers that prioritize their employees’ health and wellbeing, ultimately gain trust and confidence from them. This results in greater employee engagement and motivation, and has been shown to decrease overall costs associated with a workplace injury.³ Timeliness is also crucial. Engaging the injured worker early boosts resilience and trust, and has been shown to help improve recovery while also reducing costs.⁴

By demonstrating empathy and coordinating care early, employers learn about the unique concerns of each individual injured worker. Employers can address misconceptions, provide guidance on next steps, ensure the employee has a point of contact for questions, and set expectations as the injured worker moves through the workers’ compensation system. 

For a moment, put yourself in the shoes of the injured worker. You’ve had an injury, you’re uncertain whom to contact, your pain is persisting, you’re unable to work, and you’re uncertain about the next steps. Sounds stressful doesn’t it? For many workers, a work-related injury and the associated process is completely foreign to them. The system and rules can be complex, and without a proper resource to manage the injured worker’s needs, stress and its negative consequences, will result. 

Luckily, employers can intervene. By being involved and attentive to the needs of their employees, employers can develop a positive culture in the workplace. This been shown to be good for business (improved retention, productivity, and overall job satisfaction3 ). Making all workers feel like they are assets to the employer has a positive impact on outcomes, should an injury occur.⁵

SECOND LINE OF DEFENSE – PAYER EMPATY

This “employee first” approach is not only crucial for employers, but for insurance adjusters as well. If employers fail to find insurance carriers that share their values and prioritize employee health, negative outcomes can result regardless of the steps taken by the employer. In fact, evidence suggests that involvement in the workers’ compensation system contributes to poorer outcomes, and that the interactions between insurers and injured workers are often “pathogenic” and contribute to secondary complications rather than facilitating recovery.⁶ Think about that; involvement with the system designed to help the injured worker has resulted in the opposite. 

So, what can be done? Payers, like employers, must learn to demonstrate empathy to all injured workers, and commit to communication early and frequently throughout the claims process. By doing so, payers can facilitate a positive environment for the injured worker to heal. This “positive claims experience” has been shown in the research to be strongly associated with earlier return to work after a work-related injury.⁷

FIRST LINE OF OFFENSE – HEALTHCARE PROVIDERS AND A BIOPYSCHOSOCIAL APPROACH

Regardless of how engaged and proactive an employer is in developing a safe working environment, accidents may still occur. How those injuries are managed contributes greatly to the outcome. As mentioned in the paragraphs above, empathy and engagement from the employer and payer are important. While empathy contributes to positive outcomes, it fails to address the actual injury.

This is where healthcare providers, and often physical therapists (PTs), become important for recovery. PTs, by nature of the time spent with the injured worker (often several hours/week during treatment), are in a prime position to educate, listen, coach, and manage the ups and downs of an injured worker as they progress through rehabilitation. In short, PTs are able to implement a biopsychosocial approach to care (a model of care that promotes that a medical injury is more than just biological factors, but also psychological and social). 

Why is this important? Because by being actively involved and collaborating with the injured worker regularly, the physical therapist demonstrates empathy and provides a support system, thereby reducing stress. PTs can also provide education to the injured workers that can reduce their worries and anxieties. For example, the soreness that an injured worker may feel after therapy isn’t a new injury, but just part of the healing process. Therapists can also advise injured workers on stress-mitigating techniques (like meditation) to manage pain and improve function. While exercise, hands-on therapy, and other modalities are certainly implemented as part of the treatment program, PTs and their ability to emphasize a biopsychosocial approach to care serves the injured worker well by also treating the injured worker as a whole, not just their injury.

SUMMARY

Employers, payers, and healthcare providers can improve functional outcomes and facilitate faster return-to-work by being conscious of the role stress plays in delaying return-to-work. By demonstrating empathy, listening to the specific needs of the injured worker, and providing education and support, the injured worker can return to work at a faster rate and at a reduced cost.^3,8 It’s a win-win.

REFERENCES

1. Gruson KI, Huang K, Wanich T, Depalma AA. Workers' compensation and outcomes of upper extremity surgery. J Am Acad Orthop Surg. 2013; 21(2):67-77. doi: 10.5435/JAAOS-21-02-67
2. Butler D, Moseley L. Explain Pain. 2nd ed, NOIgroup Publications; 2013
3. Texas Mutual Workers’ Compensation Insurance. The secret to improving worker’s compensation outcomes and how to get started. Accessed April 27, 2022. https://www.texasmutual.com/blog/posts/2018/11/the-secret-to-improving-workerscompensation-outcomes-and-how-to-get-started 
4. Grant GM, O'Donnell ML, Spittal MJ, Creamer M, Studdert DM. Relationship between stressfulness of claiming for injury compensation and long-term recovery: a prospective cohort study. JAMA Psychiatry. 2014;71(4):446-453. doi:10.1001/jamapsychiatry.2013.4023
5. Hallden J. The original intent of workers' compensation: a team approach. Work. 2014;48(3):435-439. doi:10.3233/WOR-141909 
6. Kilgour E, Kosny A, McKenzie D, Collie A. Interactions between injured workers and insurers in workers' compensation systems: a systematic review of qualitative research literature. J Occup Rehabil. 2015;25(1):160-181. doi:10.1007/s10926-014-9513-x 
7. Collie A, Sheehan L, Lane TJ, Gray S, Grant G. Injured worker experiences of insurance claim processes and return to work: a national, cross-sectional study. BMC Public Health. 2019;19(1):927. doi:10.1186/s12889-019-7251-x 
8. Netterstrøm B, Friebel L, Ladegaard Y. Effects of a multidisciplinary stress treatment programme on patient return to work rate and symptom reduction: results from a randomised, wait-list controlled trial. Psychother Psychosom. 2013;82(3):177-186. doi:10.1159/000346369

Submitted By:
Christopher Scoma PT, DPT, OCS, COMT, CEAS, CDNT
Director of Workers' Compensation Quality and Education
Upstream Rehabilitation
https://urpt.com/outpatient-services/