2000 Conference Proceedings

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Workers Compensation: A Guide to Assistive Technology under the California System ©

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:

  1. The provision of medical treatment

    California Labor Code section 4600: "Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including orthotic and prosthetic devices and service, that is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer."


  2. Relatively few constraints, e.g, no equipment lists

    As opposed to some of the other systems, there is no list of approved medical equipment or vendors. For example, MediCare requires use of specific models for certain types of durable medical equipment. That is not true in WC. The physician/therapist is free to recommend the most appropriate, medically justified equipment. The WC system also provides for related support services, such as training in the use of equipment, and maintenance & replacement thereof. For example, in a recent appellate opinion, the court held that the employer is even responsible for the mandatory insurance required to operate an adapted van. Such is not the case in almost any other system.


  3. No apportionment of medical costs

    "Neither section 4600 nor any of the succeeding sections in the article of the code dealing with medical and hospital treatment state or even suggest that the employer may pay part of the expenses. ... . The duty imposed by section 4600 upon an employer is joint and several, subject only to the right of contribution as between employers." Buhlert vs. WCAB (1988) 199 CA 3d. 1530


  4. In the Buhlert case, the injured worker had a pre-existing physical disability at the time of his industrial injury. Treatment of the industrial injury necessitated treatment of the pre-existing condition, and the employer/insurer contended that it was only responsible for the cost of treating the industrial injury. Such a result would have required the injured worker to pay for medical costs that, in the absence of the industrial injury, he wouldn't have incurred. Hence, the result in Buhlert, requiring the employer to pay all medical costs attendant to the industrial injury.

  5. Permanent Disability:

    Permanent disability represents the residuals of the injury as manifested by some permanent loss of a part, or a function of the body, or some limitation on the employee's ability to work. It causes impairment of earning capacity, or normal use of a member, or a handicap in the open labor market. The disability resulting from an injury is not permanent until the healing period is over and the disability is permanent and stationary. (CEB)


  6. Dispute Resolution

    The Workers Compensation System also provides for efficient dispute resolution mechanisms, especially as contrasted with some of the other systems. This includes informal meetings and hearings, trials, and appeals that can reach all the way to the California Supreme Court. Once a recommendation for AT has been properly made by the physician or therapist, the injured worker or his representative has the opportunity to have that recommendation implemented, even if opposed by the employer and/or insurance company. If the recommendation or prescription for AT is medically sound and is properly prepared, it should be meet with success in the courts. Thus, the physician and therapist must understand how to prepare and write their AT recommendations.


  7. Construction of the law

    California Labor Code section 3202: "This Division [4] and Division 5 (commencing with Section 6300) shall 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."


  8. Penalties

    Various Labor Code sections provide for the imposition of monetary penalties against an employer who unreasonable withholds or denies benefits, each case to be decided on its own merits. This means that an employer who fails to provide recommended AT may be subject to a financial penalty.


  9. Lifetime care/Future Care at time of P&S

    WC provides for medical care, including AT, as required for the lifetime of the injured worker, or continuing for as long as the injured employee has the effect of the injury. Consequently, the physician/ therapist must consider the person's potential needs over a lifetime. The concept of "future care" is discussed further below, but it is easy to see that the concept of lifetime care is unique among funding systems.


  10. Settlement

    In California, injured workers are permitted to "settle" their right to future medical care, either for a lump sum payment, or periodic payments over an agreed upon period of time. The settlement mechanism is called a "compromise and release," or "C and R." The C and R is a complex arrangement, but it includes a consideration for the value of the future medical care. Therefore, any information regarding the need for future medical care, including AT, is valuable for injured employees and their advocates. This should include costs of training, maintenance, and replacement.

OVERVIEW OF WC MEDICAL CONCEPTS

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:"

  1. The purpose of Workers Compensation law is rehabilitation. Rehabilitation is the process of treatment and education that leads the disabled individual to attainment of maximum function, a sense of well being, and a personally satisfying level of independence. The need for rehabilitation may be due to any disease that causes the person to be impaired, either mentally or physically. (Tabers Cyclopedic Medical Dictionary, Edition 15, 1985)
  2. Impairment is the loss or abnormality of mental, emotional, physiological, or anatomical structure or function, including pain. (Guidelines for the use of Assistive Technology, AMA, 1994)
  3. Functional limitation: A restriction or a lack of ability to perform and action or activity in the manner or within the range considered normal because of an impairment. (Guidelines for the use of Assistive Technology, AMA, 1994)
  4. As pain can cause impairment, and impairment can cause a physical limitation, pain and alleviation of pain are essential to rehabilitation. (Guidelines for the use of Assistive Technology, AMA, 1994) Whenever pain becomes so severe as to create an impairment, it can be addressed within the "relieve from the effects" language of section Labor Code section 4600. This allows the physician/therapist to recommend AT simply because it avoids or reduces pain associated with any ADL or IADL.

HYPOTHETICAL CASE STUDY

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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