Ethics of the Workplace Injury

While gathering material to write this article I found a wealth of information about workplace injuries documented over the last two or three hundred years. I concluded that, if it were possible to find a history of the world and trace the concept of “workplace” as far back in history as possible, we might find workplace injuries were being sustained in our cave man era. The day the organizer of the hunt had one of his hunter’s shoot himself in the foot with an arrow I’m sure we could label that as a workplace injury.

But since recorded history doesn’t actually go back that far I would like to start the discussion of the ethics of workplace injuries about the turn of the 20^th century. If historical documents can be believed it would appear that in America, we went from an agricultural based society to an industrial one at the end of the 1800’s and the beginning of the 1900’s.

This basic economic change magnified the workplace injury concept one thousand fold. Prior to this time workplace injuries occurred one at a time in diverse locations which made counting them statistically difficult, if not impossible. With the advent of a factory setting where hundreds of people were gathered to work together under one roof, workplace injuries became very apparent and the ethical considerations on both the employee and the employer became a critical factor.

In the dictionary I used to look up the word “ethics,” Webster has four (4) basic definitions. First, ethics, a principal of right or good behavior; Second, ethics, a system of moral principals or values; Third, ethics, the study of the general nature of morals and the specific moral choices an individual makes in relating to others; forth, ethics, the rules or standards of conduct governing the members of a profession. These four (4) definitions used singly and incorporated together give us a framework by which to judge the ethical behavior of a number of entities involved in the workplace injury scenario.

Who are these entities that must react ethically to one another? I’m sure employer and employee are two of the first to come to mind. What about the state legislatures? How about the third party administrators and adjusters? How about all of the vendors including doctors, lawyers, investigators, case managers, and vocational rehabilitation professionals?

I would proffer that every entity interacting with a workplace injury and/or the injured worker has an ethical responsibility to the process called “returning the injured worker to gainful employment.” The statement that “workers’ compensation is all about return to work” would seem to be particularly apropos when discussing workplace injury ethics.

We all are aware of the various ways cases are closed. However, the true measure of all closed files is whether or not an injured worker was returned to gainful employment. Lump sum settlements not withstanding, it would appear the entire focus of the workplace injury process is to return the employee to gainful employment with the current employer or an alternative employer, near the injured worker’s place of residence.

The workers’ compensation system in America was designed in the early 1900’s with the express purpose of codifying a standard of ethical behavior between employers and employees, specifically to address the issues of workplace injuries. The workers’ compensation system was designed to redress the quantifiable, ethical abuses perpetrated on the employee by the employer, using the judicial system. The workers’ compensation system was designed to eliminate the need for lawsuits and lawyers.

One only has to open any state statistical date base to receive first hand proof that this element of the workers’ compensation decision certainly is a failure. In many jurisdictions as high as 90% of disputed workers’ compensation claims are being handled by the legal community.

Because of the high incidence of workers ‘ compensation litigation, it would appear that in some measure either the employee or the employer feel the code of ethics surrounding the workers’ compensation laws in their jurisdictions are being compromised or violated. Is this then not the responsibility of the state legislature to define more clearly the code of ethics of both employer and employee when they design the laws that govern the workers’ compensation system?

There is a sad fact that politics runs ramped through the workers’ compensation process and the politics starts in the legislature. A review of legislative decisions, in most jurisdictions, over a long period of time will readily show that, on a cyclical basis, parochial interests are being fostered on either the employer or employee side of the workers’ compensation equation. It is extremely difficult to codify a system of ethical behavior between employer and employee when this behavior is being redefined, on a routine basis, by every State Legislature. It would be nice to blame the legislatures of the various states for all of the workers’ compensation problems however, that is certainly not the intent of this paper. The intent of this paper is to show that the ethical concerns of all participants in the workers’ compensation drama are parochial in the extreme. Use of parochial, in this context, means, “what’s in it for me.”

Having served the workers’ compensation community for the last 35 years, as an expert of both the field of investigations and re-employment, I can testify personally to the prevalence of the “what’s in it for me” attitude displayed by the various entities serving the injured worker. The following statistics gathered form the US Department of Labor, NCCI, Peridime Corporation and Compensa as well as others may shed a little light on the cost of the “what’s in it for me” ethical behavior pattern.

At the time of this writing, there are approximately 5.9 million accidents in the workplace each year for a total cost of $59.6 billion, averaging $10,105 per claim. Three point nine (3.9) million claims are med only, 1.62 million claims are loss time with less than $3,000 paid and 770,000 claims are loss time with greater than $3,000 paid of which 26,000 claims are catastrophic or chronic in nature.

What is particularly interesting in these statistics is that of the 770,000 new lost time claims per year the average cost is over $60,000. These cases represent 13% of all the claims in America today and cost us 80% of the dollars paid. That is, 80% of $59.6 billion are spent on 13% of our workplace injuries. The ethical question is does the “what’s in it for me” attitude make a critical difference in the cost and, if so, how can this be changed and not just changed but measurable change.

As stated at the outset of this discourse, if employers and employees were perceived by on another to be acting in an ethical fashion then all other concerns would be moot. The injured worker would get well as quickly as possible, the employer would accommodate the injured worker in any way possible to facilitate a return to gainful employment, injured worker and defense attorney’s would have to find another line of work because their expertise in this matter would no longer be necessary.

Physicians would focus on the earliest return to work date because that’s what everyone wanted and they could no longer prolong the injury status. Nurse case managers would work around the clock to make sure that the injured worker got the type of treatment needed, as quickly and as economically as possible. The vocational rehabilitation community would focus on return to work at the exclusion of all other aspects of their perceived job duties and the adjuster handling the file could count a case as successful only if the case resolved in an expeditious fashion. And then we would all live “happily ever after.”

The fact that workers’ compensation in America today has become an adversarial process precludes the “live happily ever after” scenario. Employees do malinger, employers do use injuries for their own purposes, physicians don’t return injured workers back to the workplace as quickly as possible and in some cases perform unnecessary procedures. Nurse case managers are not incented, in most instances, to close a case as quickly as possible and our rehabilitation professionals certainly do not focus on reemployment issues to the exclusion of every other way they are able to make money in this process.

All the aforementioned individuals and many more operate in a system that has become know as disability management and, if our statistics are correct, disability management even at it’s “what’s in it for me” worst works effectively 87% of the time. The true abuse of the disability management concept happens monetarily within the 700,000 loss time cases comprising 13% of all case and spend 80% of the workers’ compensation dollar.

Why doesn’t it work, or if it does work, why does it cost so much? What is going on inside the disability management system? Where is its focus and what are its procedures for implementation? These are not only logical questions but they are ethical questions because they focus on how professionals do their job. If it is indeed the professionals function to return the injured worker to gainful employment or to resolve an injury status as quickly as possible, and then they set up a method of payment that, in its very nature, begs for abuse then they are guilty of unethical behavior.

The new millennium must bring with it new methods of operation and new belief systems that reinforce ethical behavior between one another. I submit to you that the new millennium needs a new watchword. In 100 years, we should have grown through the concept of disability management to one with greater insight, one that offers the ability to measure individual entities’ compliance with current ethical standards. This concept is disability intervention. It is no longer possible for us just to manage a file; we now must intervene and bring it to a conclusion.

Disability intervention companies, in the new millennium, will subscribe to a new philosophy and a new code of ethics as related to workplace injuries. Disability intervention entities will place the emphasis on resolution of workplace injuries by subscribing to two basic philosophies. . . flat fee pricing and risk sharing. As we begin to review the practices of our disability management professionals over the next few months and years, society as a whole and the insurance workers’ compensation industry specifically must begin to regard entities that are willing to flat fee price guarantee and risk share with the injured worker, the worker’s representatives, the employer and their representatives as being the only viable source of workplace injury care.

In conclusion, workers’ compensation injury management ethics revolve around three concepts — time, money, and risk. Utilizing new millennium companies that can be measured on how they handle these three criteria will substantially lower workers’ compensation costs. They will also have an enormous impact on the lives of the injured worker’s and their families as they are encouraged and aided in the process of returning to gainful employment. “Workers’ compensation IS all about return to work.”

Author: Gordon R. Butler, BA, MA, CWCP is a national authority/consultant on employability & wage capacity in workers’ comp, liability, PIP and LTD Claims. He can be reached at 321-377-1164 (cell) or email [email protected] or www.gbutlerconsult.com

WC Books: http://www.reduceyourworkerscomp.com/workers-comp-books-manuals.php
TD Calculator: www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php
WC Calculator: http://www.reduceyourworkerscomp.com/calculator.php

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.

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