"Adversariality in Workers’ Compensation: A Tale of Two Systems"

1. "Adversariality inWorkers’ Compensation:A Tale of Two Systems" John Frank MD,CCFP, MSc, FRCP(C) Scientific Director, CIHR - Institute of Population and Public Health; Professor, Public Health Sciences, University of Toronto; Senior Scientist, Institute for Work and Health, Toronto

2. WORK-READY PROJECTReturn-To-Work Approaches For People with Soft-Tissue Injuries Introduction • Multidisciplinary, applied research project in three provinces, led by occupational health researchers • Synthesis of current knowledge and practice on the management of work-related soft-tissue disorders, particularly the facilitation of prompt recovery and safe return-to-work (Frank J.W. et al. Preventing Disability from Occupational Low Back Pain: Getting All the Players Onside. Can Med Assoc J 1998;158(12): 1625-1631) 1

3. Work-Ready Project Methods • Qualitative studies to explore differing vantage-points and experiences of various stakeholders on the return-to-work process • Common approach and “script” for interviewers: • What have you found to be the challenges/barriers to facilitating worker recovery and return-to-work after soft tissue injury? • What solutions have you tried/observed that work? 2

4. Work-Ready Project Methods and Results • Analysis for common themes across the provinces, including factors that prolong disability • Emergent themes, together with literature review, provided the basis for nine case studies • Workshops developed to provide an environment in which a variety of stakeholders can use the case studies to improve multidisciplinary communication and return-to-work strategies 3

5. Stakeholder Perspectives on RTW Economic, Social, Legislative Systems Physician reimbursement, WSIB legislation, Workplace restructuring Health Services System Communication Teamwork Delays Trust Need for education Insurer System Communication Teamwork Delays Trust Need for education Worker Workplace Labour Relations Workplace milieu RTW program & policies Teamwork and communication Organizational structure 4

6. Work-Ready Workshop • Small groups discuss case studies and Work-Ready evidence, then report back to larger group • Group members include cross-section of different “RTW roles” (labour, management, medical, claims) • Total of nine case studies covered (e.g. “supervisors and modified work;” “worker issues in RTW;” “the family doctor: advocate or obstacle?”) -- available at www.iwh.on.ca 5

7. Work-Ready Project Impact and Knowledge • Participants knowledgeable about effect of psychosocial and workplace issues • Room for improvement on clinical testing and treatment issues • Statistically significant gains in knowledge base immediately after workshop • This gain maintained at follow-up (2-3 months post-workshop) 6

8. Work-Ready WorkshopMost valuable aspect of the workshop by participants • The interaction and discussion with other participants • Hearing other perspectives and opinions • The case studies • Reporting back to the whole group • Confirmation and validation of my current practice • New knowledge of recent research • The food and facilities for the day • Networking 61% 28% 15% 4% 4% 4% 4% 2% 7

9. And then…. A Similar Project in California! • California Commission on Health and Safety and Workers’ Compensation – bipartite/government support and liaison • Committed to improving Return to Work (RTW) – 1999 discussions about research • Solicited a qualitative in-depth assessment of how various CA stakeholders see barriers to RTW, and what solutions they suggest • Report “Listening to Stakeholders’ Voices” received by CHSWC August, 2001 8

10. California Project – “Listening to Stakeholders’ Voices” • Five discussion groups held over 2000 –01: injured workers, unions, management, insurers, and health care professionals • Focused discussion on RTW barriers and solutions – all transcribed and themes abstracted, as described in project report • All participants very committed to process and appreciative of chance to ventilate --tremendous frustration with “the system” but very impressive people 9

11. California Project – “Listening to Stakeholders’ Voices” FINDINGS • Very little consensus across groups, much “finger pointing” – an “inherently adversarial system”– claimants, defendants, H/C providers and attorneys -- with financial incentives for quasi-tort litigation, leading to delays, duels and disputes • 41% of all WC claimants receive permanent disability awards! Lawyer (and dueling MDs) involvement, on both sides, “almost the norm” -- all a symptom, not a cause 10

12. Proportion of Lost-time Claims that Become Permanent Disability Claims Riville, Boden, and Biddle. 2002. A Comparison of Labour Market Earning Outcomes of Disabled Injured Workers in Five U.S. States. Toronto, Canada: Institute for Work & health Plenary Series. Tompa, Mustard, Sinclair, Vidmar, Trevithick. 2003. Permanent Impairment, Post-accident Earnings and Benefits Adequacy and Equity. Toronto, Canada: Institute for Work & Health Plenary Series. 11

13. Labour-market Earnings of Claimants Relative to Comparison Workers in U.S. Jurisdictions 1.2 1 0.8 0.6 0.4 0.2 0 -11 -7 -3 1 5 9 13 proportion time period in quarters Riville, Boden, and Biddle. 2002. A Comparison of Labour Market Earning Outcomes of Disabled Injured Workers in Five U.S. States. Toronto, Canada: Institute for Work & health Plenary Series. 12

14. California Project – “Listening to Stakeholders’ Voices” DIAGNOSIS: SUBVERSION OF ORIGINAL INTENT OF ALL WC SYSTEMS! • Substitution of pre-WC tort system with PD award as “object of suit,” reinforcing adversariality: 1) IW internalizes bad prognosis, under repeated “cross-examination” by dueling IMEs leading to late/suboptimal recovery and RTW(cf. whiplash studies); 2) substantial WC resources hijacked to other pockets; • So many fingers in the pie that no one can afford to change it! [All costs are someone’s income!] • WHAT TO DO NOW? 13

15. Possible Solutions • Education – where is the stakeholder incentive to change behavior? Whose income will be cut? • More of the usual “regulation” – is this not the history of California’s WC system? Has it worked? • Total system redesign, with clear economic and other incentives for “non-litigating,” and early, fair settlements ISSUE: WHO WILL CHAMPION CHANGE? 14

16. Conclusions • Non-adversarial WC Systems have many advantages: better worker outcomes at lower costs; more of the total payouts end up in injured workers’ pockets; integrity, with a retained sense of public service, and fulfilled obligation to provide for the injured/ill and powerless, and protect employers from tort • Only if stakeholders overcome adversariality, and develop basic trust in each others’ motives, can the joint application and use of research evidence occur: “You can’t talk science in a bar-room brawl.” 15

17. References • Frank, J.W., et al. “Preventing Disability from Work-Related Low-Back Pain. New Evidence Gives New Hope – If We Can Just Get All the Players Onside.” Canadian Medical Association Journal158 (1998): 1625-31. • Frank, J.W., et al. “Disability Resulting from Occupational Low Back Pain, Part II: What Do We Know about Secondary Prevention? A Review of the Scientific Evidence on Prevention after Disability Begins.” Spine21 (1996): 2918-29. • Sinclair, S.J. et al. “A Framework for Examining Return to Work in Workers’ Compensation: A View from One North American Jurisdiction.” Ed. Yates, E.H., and J.F. Burton, Jr. Inter-national Examination of Medical-Legal Aspects of Work Injuries. Lanham, Md., and London: Scarecrow Press, 1998. 263-300. • Cassidy JD, Carroll L, Côté P, Lemstra M, Berglund A, Nygren Å. Effects of eliminating compensation for pain and suffering on the incidence and prognosis of whiplash claims.  New England Journal of Medicine. 2000;342:1179-1186. 16