Work Outcomes

To gain a better understanding of the barriers to mental health evaluation and treatment — and to make it more affordable for employers — the National Institute of Mental Health sponsorsthe Work Outcomes Research and Cost Effectiveness Study at Harvard Medical School.

In the first phase, the study featured a randomized, controlled trial of telephone screening and depression care management for workers at 16 large companies. Mental health clinicians employed by an insurance company identified workers who might need treatment, provided information about how to access it, monitored adherence to treatment and provided telephone psychotherapy to workers who did not want to see a therapist in person. The 304 workers assigned to the intervention were compared to 300 individuals in a control group who were referred to clinicians for treatment but did not receive telephone support.

Workers assigned to the telephone intervention reported significantly improved mood and were more likely to keep their jobs when compared to those in the control group. They also improved their productivity, equivalent to about 2.6 hours of extra work per week, worth about $1,800 per year (based on average wages), while the intervention cost employers an estimated $100 to $400 per treated employee.

The outcome study team is now focusing on ways to improve access to mental health care in the workplace and further quantify costs and benefits for employers. In the long term, employers who invest in mental health care for employees who need it will see positive results in terms of a healthier workforce and a better bottom line, researchers said.

Understanding Prevalence, Types of Mental Illness Among Adults

The National Survey on Drug Use and Health: Mental Health Findings features results from a series of scientifically conducted annual surveys of approximately 67,500 people. It is considered a primary source of information on mental and behavioral health. Some survey highlights:

• 38 percent of adults with a mental illness in the past year received mental health services.
• 4.4 million adults with serious mental illness in the past year did not receive services.
• 24 percent of women and 16 percent of men experienced some form of mental illness.
• Adults who had past-year major depressive episodes (MDE) were more likely than those without past-year MDE to have used illicit drugs. A similar pattern was observed for specific types of drugs.
• An estimated 11 million of 13.5 million adults without mental illness in the past year took medication prescribed for a mental or emotional condition.

Source: http://oas.samhsa.gov/NSDUH

Mental health disorders often elude detection in the workplace, and even when a condition is recognized it is likely to go untreated.

Occupational health providers who work closely with employers can help minimize the impact of mental health conditions on employee well-being and work performance by educating them about symptoms and facilitating referrals to mental health professionals.

An employer may review the symptoms of common problems such as depression, bipolar disorder, attention deficit hyperactivity disorder and anxiety in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, American Psychiatric Association, 1994). However, but that may not shed enough light on the situation. Such conditions tend to take on added dimensions in the workplace, according to Harvard University researchers.

For example, although the DSM-IV lists low mood as the defining symptom of depression, in the workplace depression is more likely to manifest itself in behaviors such as nervousness, restlessness or irritability, and in physical complaints such as aches and pains. In addition, employees may become passive, withdrawn, aimless and unproductive.

In addition, mental health issues may be compounded at work by factors such as the stigma associated with having a psychiatric disorder, fear of employment repercussions if treatment is sought and managers who are not well versed on appropriate interventions, Harvard Mental Health newsletter reports.

Meanwhile, when symptoms are acknowledged, treatment costs can present a barrier to recovery. From 2005 to 2009, private health insurance was applied by only a third of individuals who received outpatient mental health services in the past year, according to newly released findings from the National Survey on Drug Use and Health. By comparison, “self or family member” was the main source of payment for 26 percent of adults receiving outpatient mental health services. Among adults who paid for all or part of their outpatient mental health treatment, 2.3 percent had out-of-pocket expenditures of at least $5,000.

“The goal of mental health services is to help individuals achieve recovery and improve the quality of their lives,” it says in the national survey summary prepared by the Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Behavioral Health Statistics and Quality. “However, many individuals remain uninsured because of financial barriers, and individuals who are covered by insurance may be undertreated” because their insurance caps visits.

Pamela S. Hyde, who directs SAMSHA, a public health agency within the Department of Health and Human Services, said opportunities to prevent and intervene early are being missed.

“The consequences for individuals, families and communities can be devastating,” she said. “If left untreated, mental illnesses can result in disability, substance abuse, suicides, lost productivity and family discord. Through health care reform and the Mental Health Parity and Addiction Equity Act we can help far more people get needed treatment for behavioral health problems.”

Under the equity act, deductibles, co-payments and treatment limitations that apply to mental health benefits must be no more restrictive than the predominant financial requirements or treatment limitations that apply to medical/surgical benefits. Similar rules apply to substance use disorder benefits.

After you have completed your investigation and you have consulted with counsel and you are confident you have what is needed, there are four issues to decide upon:

1. Cut off the claim and fight when you are sure of WC Fraud–You need to ascertain you have enough evidence in your quiver to cut off WC benefits at all levels and fight. Assume most non-represented claimants are going to immediately “lawyer-up.” If they do, be prepared to let the claimant attorney know you have lots and lots of investigation and claimant is a bad person. Many times claimant attorneys may drop a difficult and fully disputed claim if you have the documentation needed to point them toward honest clients. Please also understand if you keep paying benefits, you are buying into the fraud and most Arbitrators are going to point that out in any hearing. Please also remember the Arbitrators cannot give you a refund of benefits paid following clear evidence of fraud because they don’t have the legal ability to do so; you have to sue claimant in Circuit Court for replevin or fraud to get your money back.
2. Termination is the next major issue–You need to analyze whether it is enough information to terminate claimant and fight to make the termination stick. In a union environment, you may get a labor grievance from the terminated worker and their union. In such a setting, we recommend you meet with the union reps and let them know what you have and tell them they may not want to aggressively represent a miscreant. In non-union settings, please simply terminate and prepare for a possible retaliatory discharge action. For all of our readers who are concerned about the unusual ruling in Interstate Scaffolding, please remember claimant in that ruling lost his job and didn’t get it back. In that setting, the battle may not be about reinstatement, it is going to be over TTD. Again, if you don’t pull the trigger and terminate TTD, you are in a contradictory legal position.
3. Start the criminal investigation and prosecution process–Next, have a veteran defense attorney, like the troops at Keefe, Campbell & Associates prepare a letter and forward documentation to the Illinois Department of Financial and Professional Regulation seeking a workers’ comp fraud investigation. You can directly contact Francis “Buzz” Walsh or his staff at the Illinois Department of Insurance by calling 312/636-9457 or toll-free 877/923-8648. If you give him enough evidence, he will start and finish his review and make a decision to
   • Drop the investigation;
   • Seek additional documentation or
   • Refer the matter to the local county state’s attorney for criminal prosecution.

   Convictions resulting from their hard work are outlined on the web at: http://www.insurance.illinois.gov/wcfu/condata.asp. Please remember such a criminal action is like any other—it is done by state and county officials at no further cost to you, other than your time. The prosecutors can decide how much or little time and effort they want to put into the criminal charges and prosecution. They can also settle or drop the charges for a variety of reasons.

4. Last but not least, Sue!!!–Finally, you can sue claimant in a civil action for common law fraud and/or insurance fraud. If you bring a civil action, the costs and fees are like any other litigation—you need to get a budget and plan to manage what you are doing. You may also be countersued by claimant for retaliatory discharge. You control the claim—it can’t be dropped or settled without your agreement like the criminal action above. We have seen some judges “stay” civil actions requiring a ruling from the Workers’ Compensation Commission denying the underlying WC claim—we completely disagree with that approach but you have to remember this is Illinois and judges sometimes do odd things.

All in all, we feel these are your options in countering clear evidence of WC fraud by a worker. One other thought, please note if you are represented by captive or “house” counsel in handling your WC claim, there is almost no chance they will take any of the actions above other than to try to deny and win the WC claim at the IWCC—they work for the insurance carrier and we are certain insurance carriers aren’t going to let their attorneys take active roles in fraud-busting.

We hope this covers your concerns on this complex topic. We look forward to your further thoughts and comments. Please do not hesitate to post them on our award-winning blog.


Filed under: Case Studies ]]> http://shermanoccupationalhealth.wordpress.com/2011/04/15/on-wc-fraud-part-2-four-paths-to-handling-wc-fraud-by-a-worker/feed/ 0 Sherman Health http://shermanoccupationalhealth.wordpress.com/2011/04/15/the-ax-man-cometh-on-wc-fraud-part-1/ http://shermanoccupationalhealth.wordpress.com/2011/04/15/the-ax-man-cometh-on-wc-fraud-part-1/#comments Fri, 15 Apr 2011 20:41:20 +0000 Sherman Health http://shermanoccupationalhealth.wordpress.com/?p=166 ]]> This story is reprinted with permission from Keefe, Campbell & Associates.

Synopsis: The “Ax Man” cometh and now may be going to jail–our readers keep asking, so here is our recommended legal path(s) in dealing with or “axing” WC fraud by an Illinois worker.

Editor’s comment: We were recently saddened by the national news media who reported Jimmy Smith, one of the principals on the TV reality show Ax Men was busted and may be going to jail for workers’ comp fraud. Take a look at this report at: http://www.joepaduda.com/archives/002028.html. You keep asking about WC fraud by a worker and we have now had at least four different conference calls on the issue so we thought we would lay it out for your future reference.

First, let’s try to define it – what is WC fraud by a worker?

Before you can deal with it, it makes some sense to define it. Please understand you will hear lots of misinformation and misdirection about the topic on the web and at the Commission. The claimant bar considers the concept of workers’ compensation fraud by workers to be very, very bad for their business. We feel this may be due to the fact they quietly see or learn of more WC fraud than risk managers and the defense bar. Please also understand they tread a fine ethical line when a claimant discloses WC fraud—the attorney cannot ethically disclose it but they also cannot suborn perjury; they cannot put a witness on to provide sworn testimony which the attorney knows is a lie. But the problem is when is a claimant clearly lying to receive benefits. Please remember the main workers’ comp benefits are three-fold, medical treatment, compensation for lost time and permanency or “the settlement.”

More to the point, we define workers’ comp fraud by a worker to be the worker receiving workers’ compensation benefits via fraud or deceit. The main two paths to receive workers’ comp benefits by fraud or deceit are to intentionally mislead doctors and/or adjusters and claims managers about their accident, physical status, medical needs or ability to work. We feel there are two clear situations in which an employer can and should be able to “counterattack” when you have evidence a claimant is committing WC fraud. The first is the “phony accident.” The second is when you have evidence claimant is working or very active while claiming to be totally disabled and receiving TTD.

Fight a phony accident with investigation and documentation

Getting your arms around a phony accident claim starts with detailed and thorough accident investigation. Our advice to clients is to have claimant relate what happened or more simply tell the story time and time again—the more red flags you have in your investigation, the more you should keep asking for the story both orally and in writing. If you need our accident investigation form or webcam questions, send a reply.

What are obvious red flags? We feel they include but are not limited to:

• Late reporting;
• Lack of first aid, emergency or other medical attention on the date of an acute injury;
• Inconsistent reporting—telling you the event occurred on a day they weren’t present at work;
• More inconsistent reporting—telling one story to the supervisor and another story to the adjuster in three-point contact;
• Hiding the event—accidents being reported after a layoff or termination for cause.

Our vote when you start to smell limburger cheese during an accident investigation is to get webcam statements from everyone involved; claimant, co-workers, supervisors, onlookers. Try to first authenticate and second, if you cannot authenticate, prove the lie. Please always remember the employer has a difficult standard to meet in defending a phony accident—you have to prove something didn’t happen. If the matter is controverted and has to be tried, you can be sure you will face a claimant who will try to make the lie fit into a package acceptable to the arbitrator.

A much tougher WC fraud issue – what if claimant with an accepted claim is hiding his abilities and recovery?

The other and much more difficult analysis is dealing with a claimant who has recovered from the accepted injury but whom you later “catch” either working or physically active in a fashion which indicates to you they are misleading you and their treating physicians. Please memorize one concept—you cannot normally rely on “one good day” of surveillance or a single report claimant is active and outwardly normal. Be assured you will almost always face the assertion claimant was using lots of drugs and toughed out the one time you catch him/her. We do feel you have a much stronger chance of cutting off a claim and taking the fraud-busting steps we outline below if you can show a pattern of regular physical activity—someone who is working every day or attending a regularly scheduled physical activity which would lead the finder of fact to believe it is a regular occurrence. We urge you to spend the money in a major claim and use a solid surveillance operative to get quality videotape documenting the activity.

Please also remember this is a delicate and demanding state in which to counterattack WC fraud. We consider Illinois arbitrators to be liberal but honest and decent folks—they do not want to be made fools of by a phony, like the Ax Man outlined above. We urge you to consult with outside defense counsel early and often when you smell a rat in your claim pile. With respect to risk managers and claims adjusters, you need the perspective of a veteran trial lawyer to provide you a sense of how evidence will be presented at either the IWCC or in a Circuit Court hearing.


Filed under: Case Studies ]]> http://shermanoccupationalhealth.wordpress.com/2011/04/15/the-ax-man-cometh-on-wc-fraud-part-1/feed/ 0 Sherman Health http://shermanoccupationalhealth.wordpress.com/2011/02/01/rules-clarify-handling-of-genetic-information-part-2/ http://shermanoccupationalhealth.wordpress.com/2011/02/01/rules-clarify-handling-of-genetic-information-part-2/#comments Tue, 01 Feb 2011 21:13:17 +0000 Sherman Health http://shermanoccupationalhealth.wordpress.com/?p=157 ]]> Click here to read Part 1

Overview: New rules governing the handling of genetic information affect communication practices among employees, employers, medical providers and other parties.

Workplace Monitoring

The regulations permit employers to acquire genetic information to monitor the effects of toxic substances in the workplace when:

• Testing is required by law and conducted in compliance with federal regulations.
• The employer provides written notice of testing.
• The employee provides prior, knowing, voluntary, and written consent to the testing.
• The employer receives aggregate, not individual, test results.

Confidentiality

Similar to medical information, genetic information should be stored separately from the employee’s personnel file. Employers who receive genetic information may only disclose the information under the following limited circumstances:

• To an employee or his or her family member upon request.
• To an occupational or other health researcher investigating compliance with federal regulations.
• To public health agencies if related to a contagious disease that presents an imminent hazard of death or life-threatening illness, upon prior notification to the employee or family member.
• To officials investigating GINA compliance.
• In connection with the employee’s compliance with leave certification requirements.
• In response to a court order upon prior notification to the employee or family member.

Disclosures

An employer does not violate GINA by unexpectedly obtaining genetic about an employee by overhearing an employee’s conversations or during a “casual” conversation. To avoid liability, the employer must not have solicited the information.

A casual conversation may include a response to an ordinary expression of concern, such as asking a subordinate who has cancer, “How are you?” or “Did they catch it early?”

However, the regulations caution that an employer risks liability if a supervisor follows up with more probing questions, such as asking if the employee has been tested for a certain condition.

Social Media

Inadvertently obtaining genetic information about employees through social media platforms will not violate GINA if the employee granted the employer permission to access the employee’s profile. Similarly, employers who unintentionally acquire genetic information from commercially and publicly available sources such as the internet, newspapers, magazines, and books do not violate GINA. This exception does not apply to searches of medical databases, court records, restricted research databases, and similar sources.

Summary

Although the new regulations are helpful in providing employers with some guidance on how to comply with GINA’s requirements, attorneys say gray areas remain. They say employers need to take affirmative steps to reduce the risk of inadvertently obtaining genetic information about employees. Such steps include:

1. Training managers and supervisors about what constitutes protected genetic information and how to avoid asking for this information.
2. Revising medical certification forms to include language suggested by the EEOC.
3. Communicating in writing to any health care practitioner conducting medical examinations on behalf of the company that genetic information should not be disclosed.
4. Adding safe harbor language to Family & Medical Leave Act certification forms and/or accompanying paperwork (particularly documents related to the employee’s health condition) and paperwork used to administer disability benefits.

Resources
1. Regulations Under the Genetic Information Nondiscrimination Act of 2008, Nov. 9, 2010; www.federalregister.gov.
2. New EEOC Regulations Clarify Employers’ Obligations; Bingham labor, employment, and benefits law firm; www.bingham.com.
3. Final GINA Regulations Will Require Modifications to Requests for Medical Information or Examinations; Ice Miller Labor and Employment Law Group; www.icemiller.com.

Occupational Medicine Clinical Care Update is published 22 times a year by the National Association of Occupational Health Professionals, 226 E. Canon Street, Suite M, Santa Barbara, CA 93101. Karen O’Hara, Editor. Reprinted by Sherman Occupational Health with permission. For information on distribution and subscriptions: 800-666-7926, ext. 14; kohara@naohp.com; www.naohp.com


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