Nursing The Wound: The Law and Ethics of Disability Management in Workers Compensation

Episode Notes

Transcript

Workers Comp Matters

Nursing The Wound: The Law and Ethics of Disability Management in Workers Compensation

10/30/2018

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Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers comp matters.

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Alan S. Pierce: Welcome to the Legal Talk Network and Workers Comp Matters. This is Alan Pierce, with Pierce, Pierce & Napolitano, a workers’ comp law firm in Salem. Today we are going to be discussing an interesting topic, ‘Nursing The Wound: The Law and Ethics of Disability Management in Workers Compensation’.

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We have never done a show here on Workers Comp Matters on the role of case managers and more specifically nurse case managers and what better person to have on the show than a return visit from Justin Beck.

Justin is an Associate in the law firm of Thomas, Thomas & Hafer in Pittsburgh, Pennsylvania. He concentrates his practice in the area of defense of workers’ compensation claims. Justin is a graduate of the University of Pittsburgh Law School. He was a student of Judge David Torrey, who is a well-known commentator, writer, scholar, and judge in the Commonwealth of Pennsylvania and is a professor of workers’ comp law at PittLaw.

Justin, since passing the Bar, now serves as co-editor of the Pennsylvania Bar Association’s Workers’ Compensation Newsletter. His previous work experience includes working for the Pennsylvania Department of Labor & Industry, Workers’ Compensation Office of Adjudication. And he has started his career not only by practicing in this area, but writing on various topics. The most recent article that he wrote was published in the Pennsylvania Bar Association Workers’ Compensation Newsletter and was picked up by WILG, the Workers’ Injury Law and Advocacy Group for its publication Workers’ First Watch.

So Justin, welcome back to Workers Comp Matters.

Justin Beck: Thanks so much Alan, it’s good to be back.

Alan S. Pierce: Nurse case managers in particular are somewhat controversial in the area of workers’ comp insofar as my colleagues are concerned; those of us who represent injured workers. Some of my colleagues take a view that when an insurer asks or seeks to assign a nurse case manager to a case that their answer is always a no.

I, on the other hand, I think hopefully have the majority view that nurse case managers can be extremely helpful and effective in the management of an ongoing workers’ compensation claim.

So in your paper I see that you sort of give a good balance to the pros and cons. Let’s kind of start off with the role of the case manager and who they answer to, what are their professional and ethical obligations and standards being hired by an insurance company to provide a service for that insurance company, but at the same time try to help an injured worker?

Justin Beck: Sure. Well, I think the first piece of that is you talk about the mistrust out there, potentially from injured workers’ lawyers and everybody is going to have their independent case-by-case experience in this arena. So really the only way we can talk about it is by generalizing and that doesn’t apply to everybody’s situation or scenario, but in general when we take a survey of what’s going on out there, I think we find that there is cooperation to be had and the starting point, as you said, is looking at the education out there and the credentialing that goes on.

The first part of that is the Commission for Case Management Certification. This is the actual accreditation organization that exists out there for disability managers. In 1993, there was an examination developed and case managers could then obtain the CCM, the Certified Case Manager credential, and it’s more popular than ever these days. That organization has been granted accreditation by the National Commission for Certifying Agencies and today there is over 42,000 individuals that hold the CCM certification. It’s kind of the gold standard in disability management certification.

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Now, under that certification not all of them are nurses. In the workers’ compensation realm we often talk about nurse case managers. About 89% of those with the CCM certification, they are registered nurses. The second highest are social workers, at 7%. So obviously the overwhelming majority are nurses.

But that’s really where I think the conversation has to start and maybe can change some perceptions is knowing that these individuals are certified, they are educated and they have codes of professional conduct.

Alan S. Pierce: So what can they do ethically and what can they not do ethically if they are engaged to provide disability management services? First of all, these services can be telephonic or in-person, correct? Is there a majority view as to whether most of these disability managers are assigned so that they personally meet with the injured worker or do it through some other means?

Justin Beck: These days I think it’s a general mix. I don’t think from my experience in talking with nurse case managers there is any widespread rule or trend nationwide, but I have certainly heard that you have different experiences with the actual field nursing that goes on when they are out there with the patients and just over the phone.

And maybe it’s a combination at times. You have the nurse case manager meeting with the injured worker and really having a face-to-face meeting to begin with and then as the claim continues they can touch base through the phone and even email I see often as a modern trend. But as far as a majority rule, I think it comes down to the particular culture in the state or jurisdiction that you are looking at.

Alan S. Pierce: Okay. In your paper you described the Commission for Case Manager Certification or CCMC, established I think in 1991, and you indicated that that organization publishes a Code of Professional Conduct for Case Managers. Is that code available? Is there somewhere that somebody can find that?

Justin Beck: Absolutely. That code was actually originally adopted in 1996, and what it does is it establishes the behavior, ethics, competency, and legal compliance standards of disability managers. It is available, it’s available to the public, you just have to go on to the website to obtain it from CCMC.

And it’s interesting to read because they set forth a number of principles that disability managers have to conduct themselves by, and these principles are pretty accepting from all viewpoints. Things such as placing the public interest above your own at all times, respecting the rights and inherent dignity of clients, maintaining objectivity in your relationship with the clients. And by clients we mean in our context the injured workers and as well these disability managers have to maintain their competency levels. That includes continuing education.

And one really interesting fact I discovered by interviewing nurse case managers and those that run disability management companies is that I can’t speak for every jurisdiction, but there are certainly examples I have seen where disability managers are having to complete greater number of continuing education credits annually than attorneys. And I think that the facts like that can again change the perception that these are kind of narrowly focused advocates for just the carriers and the employer and it reminds us that these are competent independent professionals in many ways.

Alan S. Pierce: So what reason would an insurance workers’ comp claims department or claims representative or adjuster, what reason would they have to engage the services of a case manager? What benefit do they find by doing that?

Justin Beck: I think from the perspective of the carrier, you can’t avoid the truth that there is cost containment involved with it. The studies show that it does reduce costs.

Having said that, carriers are not assigning nurse case managers to every single claim, because the cost cutting does not work on every single claim, it is not as effective when you apply it to every single claim.

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The more prevailing theory out there and the statistics show that nurse case managers are often assigned to cases where red flags are already present. So if a claim comes through and there are suspicions of such things as malingering or any number of concerns that come up in your handling of claims, nurse case managers are then assigned to those particular cases.

And I think this kind of feeds that theory that when a nurse case manager becomes involved from the perspective of an injured worker’s attorney that it just complicates things and it adds tension and it makes it more difficult than it has to be.

But if we think about it in its context, if the nurse case managers are generally only assigned to those claims that are complicated and have a number of concerning factors, then it would make sense. You always see nurse case managers show up in complicated claims. It’s not the nurse case manager causing the complication; it’s the fact that the case itself is complicated. So you have got cost-saving mechanisms.

Also a big part of it, it’s from the carrier’s perspective because in the end it helps them, but it’s more — it more plays into the way the nurse case manager sees themselves. It’s education. It’s educating the injured worker on the complexity of the healthcare system and the various players that exist within.

Nurse case managers have told me that they don’t see themselves as advocates simply for the employer or the carrier, in the same way that we may conceptualize defense counsel. Instead, they are there to educate both the injured worker and the adjuster and this is where the benefit comes back to the carrier and why they might want to have a nurse case manager on the claim.

Oftentimes from what I am told by nurse case managers, by interacting with the adjuster the disability manager is greasing the wheels to obtain diagnostic studies, to locate reputable specialists. In a case where it’s warranted, educating the adjuster as to the actual severity of the injury and explaining why the return to work is not being accomplished maybe as quickly as they had hoped. So everybody in that sense would benefit in a complicated claim from a nurse case manager.

Alan S. Pierce: Yeah. And you have just introduced us to the other side of the equation, but as we get there, let’s try to get there this way. There were two things at the beginning of your answer that as a claimant attorney stuck out more than anything. One was cost containment, and when I hear cost containment I think of saving money at the expense of what my client is seeking, either in terms of medical treatment or indemnity benefits.

And the second thing you mentioned was red flag of some type of specific activity in the claim that is concerning to the insurer.

So from a claimant attorney’s perspective neither one of those rationales for a nurse case management would lead me to give permission. So let’s ask this question, in what jurisdictions, if any, is permission required or is the utilization of a nurse case manager not voluntary or is required of the injured worker? And secondly, flush out for us the advantages from the injured worker and/or his attorney for the use of a nurse case manager?

Justin Beck: Sure. Let me take your second question first, the advantages from the perspective of the injured worker. When we have an informed, educated, professionally independent advocate on the claim, then the injured worker can only be benefited.

I like to look at it this way. I think a general theme emerges when you speak with nurse case managers directly, and it’s that there is a return to work mentality that’s required by all parties involved. So if the goal is to return to work, then the management may appear more aggressive than we are used to otherwise seeing if it’s not there. If the injured worker is just going along with whatever the doctors are saying, and we have all seen it getting bounced around between different specialists and not really getting answers, well, that’s not effective and it’s not efficient.

So an aggressive return to work mentality is not inherently a bad thing. There is a difference between aggressive rehabilitation and simply rushing an injured worker into inappropriate treatment and return to work before they are ready for it. Those are two different concepts.

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So I think the benefit is the injured worker and through him or her, their counsel have a better idea of what the treatment regimen looks like, where it’s headed, who’s providing the treatment, and there’s a synergy then that occurs between the carrier of the injured worker and the providers.

Your first question that you posed is jurisdiction-wise where do you have the role of a nurse case manager and where don’t you? So, we’re kind of shifting from the professionalization and the role of a nurse case manager to the actual legal side of it. The funny thing is when you look at and you survey the country, this is a highly undeveloped area of the law.

Now having said that, I’ll give you two examples, South Carolina passed a statute in 2012 that does establish that employees seeking treatment for a disease or injury which workers’ compensation benefits are sought, they do consent to the release of medical records and that they must be released to the insurance carrier and certified rehabilitation professionals.

So right there, you have a case where in that jurisdiction the nurse case manager would be entitled to access to the information of the injured worker, and thereby cooperating with them.

Conversely, in Pennsylvania we don’t have anything quite as explicit. We do have a piece of our statute that says that the carrier may coordinate with a third-party contractor and that has been interpreted not in the courts but kind of by customer practice as including the inclusion of disability management. But there’s nothing affirmative saying that the injured worker has to cooperate with them and questions are now being posed and we’ll probably eventually work their way through the courts as to, well, if as an injured worker or their counsel, I don’t want to cooperate with the nurse case manager, am I infringing upon the contractual rights of the carrier?

So that’s just kind of a flavor of what you’re going to see in different jurisdictions as some statutes are developed or as they continue to have a void and there are no statutes and the questions that inevitably arise when you have nurse case managers assigned to a significant number of claims in every jurisdiction.

Alan S. Pierce: All right, at this point I think we will take a brief break, and we will get back to Justin Beck and talking about the law and ethics of disability management. We’ll be right back.

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Alan S. Pierce: Now welcome back to Workers’ Comp Matters and our guest Justin Beck, we are talking about the role of nurse case managers.

Justin, I want to change tone a little bit. I’m a claimant attorney, I will routinely allow a carrier to assign a nurse case manager to my case but I make that decision on a case by case basis, I do find value especially in a complicated case where the nurse case manager can do a job that I cannot do such as getting a Utilization Review denial overridden, getting treatment guidelines that might limit a particular modality of treatment to be overridden or extended. And they also can also provide a service by, as you said, locating and getting authority for diagnostic studies or referral to specialists that I as a lawyer can advocate for but I find claims representatives will listen to their nurse case manager more than they’ll listen to me. And my recourse is to go into litigation, which is timely cost-ineffective, et cetera.

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So, with all of that what virtues do you find that claimant attorneys do see in having a nurse case manager and what are their concerns in having one assigned to their client’s case?

Justin Beck: Well, I think the concerns are pretty clear that there’s a suspicion that this nurse case manager, the disability manager is an extension of the carrier and when you throw out words like “cost containment” like you said earlier, a concern arises that this nurse case manager is simply trying to find ways in which we can stop benefits as quickly as possible, provided little treatment as possible, and that would be to the detriment of the injured worker.

So that’s the suspicion and when you talk about meeting with the nurse case manager whether that’s in the claimant’s home or the doctor’s office there may even be suspicion of a surveillance that this nurse case manager is not just reporting the medical information but they may well be reporting characteristics of how the claimant is acting, what they’re doing, activities they’re engaged in.

So that’s the clear suspicion and I wouldn’t even say that’s irrational when you have as the injured worker’s attorney, when you have a representative from the carrier they are with the claimant and you’re not present, you’re concerned about what’s going on, that’s in some ways natural.

Alan S. Pierce: Exactly. In fact, anecdotally I’ve seen reports or I’ve heard that nurse case managers observed one of my clients has been out of work for prolonged period of time is having calloused and grimy hands or has observed renovations being ongoing at the home, and the next thing I know there was a surveillance assigned which obviously burnt that bridge with me, because a service that I thought was going to be beneficial to my client was turned around to be an extension of the private investigation.

I think that’s the minority situation but I think that is probably one of the biggest reasons why my colleagues routinely will say we don’t want nurse case management.

Justin Beck: Exactly, and I think you hit the nail on the head though when you said it’s a minority situation. There will be horror stories and there will be bad apples in any industry, any profession, any circumstance.

So what you have to do then is look at it from a larger scale and say, okay, when we look at this entire industry, when we look at these studies and the statistics what does it show us and what the prevailing wisdom when you actually talk to those engaged in this every day and know what they’re talking about, and I think that the conclusions you can draw from that is while we will have situations that we have to remedy in individuals that we have to maybe remedy, overall we are seeing benefits from disability management, because left unattended and left advise of one party or just two conflicted parties we know that inefficiency can occur.

So what we’re trying to do with the concept of the nurse case manager is bring in an independently certified professional who is bound by codes of ethics and bound by the law as anyone else and local regulation, not just remember in the disability management context but in their own professional context. And what I mean by that is, if you are a nurse case manager you are not only bound by disability management standards and codes of ethics, but also registered nurses and what they are bound to by state regulation, state law, and their own professional codes of conduct in that arena.

So, you’ve got somebody who is constantly thinking — or should be at least — if they’re doing their job correctly thinking about the ramifications of their actions. When we go back to the principles espoused by the organizations we talked about, the dignity of the client. When you recall that all of these factors are being considered by the competent disability manager then I’m not going to say your suspicions as a claimant attorney is gone, but maybe they’re alleviated a bit and you’re open to having, if nothing else, a little more dialogue with this community. And, if a nurse case manager comes up on a claim in the future, you may be willing to take their call rather than sending it to voicemail.

Alan S. Pierce: You had earlier mentioned about — well, first of all, you just mentioned about the ethics that they subscribe to and I’m going to ask you a question, I don’t know if you know the answer to it or not, so you can answer it both in terms of your knowledge of what their ethical standards are and your role as a defense attorney.

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But let’s assume for the moment that a nurse case manager with the permission of the claimant’s attorney is working with my client and is having conversations outside of my being there or being privy to, and my client says something or tells the nurse case manager or responds to a question by stating something that is extremely against his or her legal interests in terms of ability to work or perhaps doing some side work while the person is collecting benefits, what is the obligation or prohibition against that nurse case manager taking a communication from a represented client and divulging that to either a claims adjuster for the insurer and/or testifying before an industrial board as to the conversation which otherwise I would never have allowed had I’ve been present when I was having my client interact with a representative of the insurer?

Justin Beck: Yeah, that’s a great question because I think that you’re probably seeing that happen more frequently than you would like.

Alan S. Pierce: All I needed to do is see it happen once and I think it only happened once, but I don’t know if it happens frequently, I would guess it doesn’t, but if it happens once, that is going to chill any lawyer’s ability to recommend that it happened again.

So, I agree that it probably doesn’t happen often, but when it does happen, what are the ramifications of something like that ethically?

Justin Beck: Well, ethically I think what we’re doing again is revealing the gray area in which nurse case managers exist right now, because of the lack of regulation, because of the lack of law in this area. I don’t know the answer to that question and I think that not a lot of people do because there isn’t an answer right now to that question and that’s kind of the whole point of the research going on right now in this area. We don’t know the ramifications. Of course, it’s jurisdiction by jurisdiction and some have fleshed this out a little more than others, but I was speaking generally, there is not a prevailing rule on this or conclusion.

Now, one thing we do know is that in some jurisdictions the nurse case manager is permitted to speak with the physician without your permission as the injured worker or their counsel, so therein you have the nurse case manager potentially receiving information you would wish them not to and they can do it without any ramification because we have certain laws including HIPAA in place that permit things like that.

Now what you’re talking about is the client themselves divulging information you wish they wouldn’t. In some respects it probably would come down to ethically whether they have been put under in some kind of corner where they are made to say something that was against their interest versus a freely voluntary statement made to the nurse case manager, in terms of ethics which is not bound by statute or even case law in this situation they talk about in this paper.

Ethically that would probably be a relevant factor. Legally right now there just isn’t enough authority for us to know definitively what the ramifications or the liabilities are.

Alan S. Pierce: Yeah, and I agree with you because I haven’t had the situation yet and hopefully we’ll never have one where something my client and I — by the way, I mean I do have my clients work with nurse case managers all the time because I find benefit from that for my client, most of the time almost all of the time. I’ve not run into a situation where there has been information that these case managers gleaned of really a non-medical but a legal or a disability nature that has somehow surfaced, but I try to make my decision of allowing or not allowing a case manager on a case by case basis.

I think you and I have chatted before. The field of workers’ compensation broadly and even very narrowly in this context is one of balance. There are horror stories or anecdotal situations on both sides or on all sides of the case and I think any blanket rule never to engage a nurse case manager to always allow permission doesn’t serve anybody. But I think if you are looking out for the best result for your client the nurse case manager is oftentimes very helpful professional to get from point A to point B representing your client.

Any closing comments you care to make, Justin, and perhaps if somebody wants access to your paper, give them maybe a reference site or your email address.

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Justin Beck: Yeah, for a closing comment I would just add that we’ve talked a lot about ethics but of course, there’s the whole side of the law in this. And one of the, I think future focuses in this area, is going to be the liability, the legal liabilities of nurse case managers when there is some sort of negligence or an intentional act alleged in tort.

And there’s a mix among the states right now as to whether the nurse case manager is protected by the exclusive remedy of workers’ compensation or in some states, if their behavior, their act is separate and distinct enough from the work injury, then they may be open to liability. They may be susceptible to liability for their acts and the workers’ compensation act in that state would not protect them.

So, if anybody is interested in reading a little more about this and garnering some more specifics, the paper is available at Judge Dave Torrey’s website, and that is www.davetorrey.info.

Alan S. Pierce: All right. Justin, once again thank you so much for being a guest on Workers’ Comp Matters. This is Alan Pierce, thanking those of you for listening. Stay tuned to our next edition of Workers’ Compensation Matters and go out and make it a day that matters.

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