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Richard W. Dier, M.C., M.F.C.C, C.D.M.S.
Terry D. Long, Esq.
This workshop will present an overview of the legal and medical concepts uniquely relevant to the provision of Assistive Technology under the Workers Compensation System. All information will be very practically oriented, and thus user friendly to anyone interested in tapping the resources available under the System, including therapists, vendors, injured workers & their advocates, and physicians.OVERVIEW OF WORKERS COMPENSATION
California's Workers Compensation law provides a compulsory and exclusive scheme of employer liability without fault, based on insurance concepts. The purpose of the law is rehabilitation, not indemnification for damages." (CEB Workers Compensation Practice, Third Edition) The Labor Code section governing the provision of medical treatment, and some others, are to be "liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment."
Most discussions of Workers Compensation (WC) as a funding source for AT simply characterize it as another form of medical insurance. That is not entirely correct. WC has a number of unique features which, in combination, result in a broader scope of available medical benefits than any other medical benefit system. The physician/therapist who doesn't understand these features may fail to recommend AT to a deserving patient. An understanding of these features will allow the AT practitioner to make recommendations that are appropriate and effective, but which might not be allowed in the more widely understood medical funding systems, such as MediCare. The physician/therapist whose patient is insured by WC must understand enough of the law to know what are appropriate AT recommendations.
Among the features which distinguish WC from most other systems are:
WC certainly offers state of the art treatment for any industrial injury or disease, including such standard AT as wheelchairs, respirators, crutches, and braces. When the physician/therapist recommends AT beyond that required for treatment or cure, it must be related to "relief from the effects of the injury," and must be supported by a letter of medical necessity.
The letter of medical necessity should include the diagnosis, a statement of how the diagnosis is related to the injury, a description of functional loss in the area of ADL/Instrumental ADL, sensory impairment, communication impairment, or cognitive impairment. It should also include a statement of the goal and the benefit to the patient, e.g., how the AT will enhance function, thereby relieving from the effect. If possible, it should outline the duration of expected use. Any information regarding training, maintenance, repair, and replacement should be included, as well as any assessment of a therapist, such as OT, PT, and RPT. The letter should be accompanied by, or include, a statement of further rationales for the proposed AT, such as safety, cost effectiveness, independence, and past experience.A T in the context of "pain:"
Following is a rather complex set of facts, the application of which to the foregoing concepts illustrates how Assistive Technology is available through the California Workers Compensation System.The Injury & Case Facts
Injured Employee (IE) is a polio paraplegic who, in addition to his lower extremity paralysis, has polio-related respiratory dysfunction. Prior to his employment after rehabilitation from the effects of his polio, IE's paralysis necessitated the use of a wheelchair for mobility. Nevertheless, IE was able, without assistance, to engage in all activities of daily living, including driving his own vehicle.
After being employed for several years in an environment that was adapted to meet IE's employment needs, he sustained on-the-job fractures of his dominant wrist and two lumbar vertebra. As a paraplegic, he was immediately rendered incapable of engaging in those activities of daily living which required use of his left arm and hand, such as transferring from his wheelchair. In addition, his back injury requires frequent bed rest, which resulted in exacerbation of his respiratory condition. IE lives alone in a house near a freeway, and has no family.Treatment
During IE's lengthy hospitalization, all medical treatment was paid for by his employer/employer's insurer.
During that period, IE's physician assembled an AT team, including an occupational therapist, a physical therapist, a respiratory therapist, a psychologist, and a case manager. Their subsequent analysis of IE's physical and emotional conditions, and his overall circumstances resulted in the following recommendations for Assistive Technology solutions.
Because of IE's inability to transfer himself from his wheelchair to the toilet, shower, and bed, attendant care was immediately essential to his activities of daily living. (A human being can be considered an assistive technology, as can an animal assistant.)
The team determined that the dominant wrist injury precluded further use of IE's old manual wheelchair. That, in addition to the need to relieve IE's low back pain, necessitated use of a power wheelchair. Then, in order to transport IE and his new chair, the team recommended an adapted van. In addition to helping IE with his other ADLs, the assistant drove the van to take IE to medical appointments, he also made meals, and did housekeeping.
A computer was also recommended by the AT team, to be used for communication, as IE was no longer able to write with his injured wrist/hand. The computer was also used to FAX notes to the pharmacy, and to e-mail the attendant care agency.
In addition, the computer was used to manage the climate controls of the air conditioning unit that was also recommended by the AT team. The AC was necessary because IE was required to spend many hours a day in bed, which exacerbated his respiratory condition. The resulting sneezing and coughing also caused additional low back pain.
Home modifications, including widening door jams, were made to accommodate the new power chair. Carpeting was replaced with hardwood flooring, the master bathroom was expanded to accept the power chair, and wider, sturdier ramps were recommended to replace those that previously accommodated the manual chair.
Pursuant to the AT team's recommendations, IE was also provided with an electric toothbrush and many other tools necessary to perform one-handed tasks. The team recommended heating pads for the relief of pain, and a reclining chair to be used as frequently as possible, rather than reclining in bed.Dispute Resolution
As might be imagined, the WC insurer of IE's employer balked at providing virtually all of the recommended AT resources, even though requests for them were presented with proper letters of medical necessity. The insurer reasoned that it was only responsible for the care required to cure and relieve from the injuries to IE's wrist and lumbar spine, inasmuch as those were the only two areas of IE's body that were injured in the work-related incident.
IE's attorney, being confident of IE's legal rights, corresponded with the insurer on numerous occasions, each time informing them of their liability, all to no avail. Counsel ultimately sought relief from the Workers' Compensation Appeals Board, and s/he also requested - and was awarded - penalties for the insurer's unreasonable refusal to provide the medically necessary AT resources in conformance with the principles outlined above.
In addition to providing the AT resources and paying the penalties, the insurer was thereafter responsible for the reasonable costs of maintenance, repair, and replacement of the mechanical AT devices. It was also responsible for the cost of insurance on the van.Settlement
A few years later, IE decided he no longer wanted the insurer to be involved in every decision regarding his medical treatment. His attorney then arranged to have a life care plan prepared, specifying all anticipated medical treatment IE could reasonably expect to need during the remainder of his life. The projected cost of that care was then arrived at, and the plan was submitted to the insurer, accompanied by a letter containing an offer to settle IE's claim for a stated amount.
Although employers/insurers are not required by law to settle claims governed by the workers compensation system settle claims, they will do so under appropriate circumstances. The Compromise & Release procedure is the vehicle for doing so, and all proposed settlements must be approved by a workers compensation judge.
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