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The modern workers’ compensation system evolved in the late 19th century as a no-fault and exclusive remedy. Regardless of how an employee was injured, if the accident occurred in the course of his or her employment, both medical care and an indemnity payment would be provided. In exchange, the worker forfeited the right to sue the employer as a result of the accident.

AAOS Now

Published 1/1/2014
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Mary Ann Porucznik

Workers’ Compensation System Under Attack

Do treatment guidelines threaten the patient-physician relationship?

“What happens when workers’ compensation guidelines become law?” asked Ian Crabb, MD, during the 2013 AAOS Fall Meeting of the Board of Councilors (BOC)/Board of Specialty Societies. Dr. Crabb, a BOC representative from Nebraska, was specifically addressing treatment and “return-to-work” guidelines for state workers’ compensation systems.

“Workers’ compensation has been around since the beginning of recorded history,” noted Dr. Crabb, explaining that workers in ancient Sumaria who were injured received compensation according to laws spelled out more than 4,000 years ago.

Ian Crabb, MD

 

In the United States, the American Medical Association’s Guides to the Evaluation of Permanent Impairment is used to measure the extent of impairment as related to normal functional capacity. Until recently, medical treatment was based on the standard of care, “meaning that the physician determined what medical treatment was necessary,” said Dr. Crabb.

In 2003, however, California passed a bill requiring the use of evidence-based guidelines in the treatment of workers’ compensation injuries. Since then, a national effort has been underway to implement mandated “evidence-based” workers’ compensation treatment guidelines. Currently 28 states have adopted some form of treatment guidelines for workers’ compensation.

Who writes the guidelines?
In some cases, states write their own treatment guidelines; other states have adopted the use of either the Official Disability Guidelines (ODG), prepared by the Work Loss Data Institute, a private organization funded by the insurance industry, or the ACOEM Practice Guidelines, written by the American College of Occupational and Environmental Medicine.

“There is nothing ‘official’ about the Official Disability Guidelines,” said Dr. Crabb. “This is just the name that a private, for-profit company has adopted for its product.”

The ODG include a treatment index, a procedure summary with abbreviated interpretations of the literature, a utilization review tool based on claims data, and a drug formulary. As a data-driven product, it relies heavily on the use of computers to link to databases and summaries. But, as Dr. Crabb noted, “the shift to using programmed algorithms means that only the programmer knows the algorithm, and it can change at any time.”

The ACOEM Practice Guidelines are more text-based and focused on treatment. They are not prescriptive, but do require the physician to justify his or her decision, using objective evidence to confirm clinical impressions and employing conservative treatments before undertaking any invasive or costly treatments.

“The fact that these guidelines exist is not necessarily bad,” said Dr. Crabb. “It just depends on how they are implemented—and we have little control over that.”

The burden of proof
Virtually all workers’ compensation insurers in the country use these guidelines, noted Dr. Crabb, but when their use is mandated by law, the burden of proof switches and significantly changes the relationship.

“No longer does the doctor have the presumption of being correct and the insurance company has to prove otherwise,” he said. “Now the guidelines are assumed to be correct and the doctor has to prove it otherwise.”

Dr. Crabb stressed that the call for evidence-based guidelines is strong and valid. Guidelines, he noted, have the following advantages:

  • They can reduce excessive utilization of medical services (and corresponding medical costs).
  • They can identify and target ineffective and harmful procedures, thus reducing risk on
    injured workers.
  • They can reduce delayed recovery rates and indemnity costs with the concurrent management of treatment and time away from work.
  • They can improve clinical practice/utilization management by indexing procedures adjacent to a summary of their effectiveness based on supporting evidence.
  • They can automate approval for universally effective treatment methods.
  • They can open the lines of communication among all parties in the return-to-work process by providing a common framework based on existing and emerging medical evidence.

Although the AAOS has a transparent process for developing evidence-based clinical practice guidelines, he noted, this is not the case with either of the major workers’ compensation “guideline” companies. And, he asked, “Once the guidelines are embedded in a complex computer program, how will the underlying algorithms be adjusted with new data?”

Outlining alternatives
Dr. Crabb outlined several actions that the AAOS could take in this area, including the following:

  • Do nothing and hope the ODG is a benevolent dictator.
  • Develop an AAOS workers’ compensation guideline product, with or without a partner.
  • Fight the legislation on a state-by-state basis.
  • Develop an AAOS position on the product and hope it is used.

Robert H. Haralson III, MD, MBA, former medical director for the AAOS, reviewed the results of a previous attempt by the AAOS to work with the ACOEM on guidelines. He noted that the discussions were not evidence-based and that the process did not meet the standards set by the AAOS. As a result, the AAOS elected not to continue the effort.

“There are no data on return to work,” said Dr. Haralson, “so any product will not be as evidence-based as the AAOS would prefer.” He expressed his opinion that a guideline product produced by the AAOS would be revenue-generating, and suggested that the AAOS cooperate with other societies and take a leadership role in developing one.

Richard E. Strain Jr, MD, a member of the AAOS project team on the development of workers’ compensation guidelines, agreed. Dr. Strain noted that the AAOS has multiple education products—particularly in the area of patient education—that could be made available. “The current workers’ compensation treatment guidelines are rigid,” he concluded, “and developed by people who aren’t in the trenches. Let’s make the world better and make some money for the AAOS by getting into this arena.”

Disclosure information: Dr. Crabb—Nebraska Orthopaedic Hospital; Dr. Haralson—AllMeds; Dr. Strain—EASI; Ethicon; Pfizer; Takeda; Bristol Myers; Meda; Sanofi-Aventis; Astellas

Mary Ann Porucznik is managing editor of AAOS Now. She can be reached at porucznik@aaos.org