Mental Injuries: Workers’ Compensation and Disability Insurance Part 1

 “Every day we respond, and we attach ourselves to the worst day of somebody’s life.” [see Phil Melnychuk, “Online program gives firefighters some advance notice about the trauma and tragedy they’ll face”, Delta Optimist, March 20, 2024]

That’s the way Captain Ben Lewis recently described the nature of a firefighter’s job. Extracting a car crash victim, saving multiple lives at a fentanyl overdose scene, recovering the charred body of a child from a house fire. Attending the worst day of somebody’s life every day, day after day, can take its toll on firefighters and other first responders serving our communities.

The apparent rise in mental injuries

First responders are not the only workers at risk of mental or psychological injuries. Many workers’ compensation jurisdictions and work-disability insurers have noted increasing mental disorder (also called psychological injury, mental injury) claims over time. 

In this post, we survey some of the data reflecting this increase.  We will explore some of the reasons for the increase. In a later post, we will look more closely at the drivers behind current trends.  We will also discuss some of  the challenges in comparing data across jurisdictions and prevention strategies that might impact the trajectory of future trends.

Important note on Terminology

This is intended as a general discussion document and will use several different terms.  This requires a caution with respect to terminology.

Certain terms may carry negative connotations, confer a sense of blame, or infer a flaw in an individual. The terms used in this post are reflect the terms most often used in diagnostic, policy, coding, statistical and legislative data being discussed.

Psychological injury, mental disorder, mental illness, mental impairment, mental health injury, and other terms used here often have specific meaning or legal definitions that apply to in specific  jurisdictions.   There are also other terms that I have not used in this discussion but may be included in the categories discussed here. For example, operational stress injury and military sexual trauma are terms specific to certain armed forces. Legislation, policy, and coding standards use various terms to address this topic.  Similar terms in different jurisdictions may or may not carry the exact meaning or definition.

In the general context of work-related claims, my preferred terms are “psychological injury”  and “mental health injury” .  Mental health condition, mental health injury, psychological injury, mental health challenge, and similar terms are used in cited material.   Diagnosis or criteria in the DSM-5-TR,  ICD-11,  and equivalent classification systems are not always the same as those used in practice, policy, or legislation.  Certain mental health disorders including PTSD do appear in these references and generally have specific meanings that are consistent across jurisdictions but may not be consistently applied or reflected in statistical reports. This variation in terms makes interjurisdictional comparison more difficult.

Tracking mental injury statistics in Workers’ Comp and Disability Insurance

Workers’ compensation recognition of the relationship between work and psychological injury, particularly in the absence of physical trauma, has lagged the scientific acceptance.   Where short and long term disability (STD and LTD) insurance or social security disability  insurance plans (SSDI in the US) are available, they are often accessed before (or instead of) filing a  workers’ compensation claim. The threshold for STD, LTD and SSDI is “disability” from employment while workers’ compensation claims must first establish a work-related cause before considering the issue of disability. 

The Canadian data [from the Association of Workers’ Compensation Boards of Canada – National Work Injury Statistics Program] reflect a rising  trend in accepted work-related mental disorder claims (7,378 in 2022). While the overall trend in work-related time-loss injuries was declining (at least until the COVID-19 pandemic), time-loss claims involving mental disorders or syndromes have trended upward.

In Australia, mental health conditions accounted for 9% (11,700) of all serious workers' compensation claims, 7% of all work-related injuries and illnesses. [see Safe Work Australia, Data insights - Snapshot: Psychological health and safety in the workplace, February 2024]. While the index of all other serious injuries has remained flat, the index for serious claims involving mental health conditions has doubled.

The shape of the  index line for mental health conditions in the Australian data reminded me of a Munich Re study that looked at the relative increase in sick leave due to mental disease over a similar period, [See Munich Re, Mira Risk Review: Munich Re’s Mental Health Calculator, 2022 at https://www.munichre.com/content/dam/munichre/contentlounge/website-pieces/documents/MunichRe-MRRP-Menthal-Health-Calculator_en.pdf]  Munich Re notes:

  "Mental health conditions are an increasing challenge globally, but most noticeably in industrialized countries.

… the rise in incidence is reflected in higher numbers of life insurance applicants disclosing mental diseases as well as increased numbers of claims

…most mental health conditions are considered chronic or recurrent and have a high correlation with other health issues, despite good treatment.

…complexity in managing mental health conditions is the rule, rather than the exception.”

"

 

Sun Life Canada reports 24% of all new short-term disability (STD) claims and 32% of new long-term disability (LTD) claims are for mental illness.  The greater complexity and longer duration of these claims account for a disproportionate 45% of claim costs. (See SunLife, Changing Times: evolving the approach to disability management, 2021 at Changing times: evolving the approach to disability management | Sun Life). 

Social Insurance mental injury data

Social insurance generally covers a wider population than workers’ compensation but may reflect trends that are felt by workers’ compensation and disability insurance. The following table highlights aspects of the Australian Disability Support Pension (DSP), US Social Security Disability Insurance (SSDI), and Canada Pension Plan – Disability.

US Social Security provides benefits to workers for certain disabilities.  Looking only at the subset of Social Security Disability Insurance (SSDI) for workers who have filed for workers’ compensation or public disability benefits,  musculo-skeletal diagnosis dominate.  Note, however, that the diagnostic categories involving mental disorders are significant:

Changes in coding definitions make a time series using this subset of SSDI data difficult but it appears that the representation of mental disorders in this subset has fallen between 2010 and 2022.  Looking only at this medical category of SSDI claims, and using only table 34 in the Annual Statistical Report on the Social Security Disability Insurance Program for each year, the combination of “Depressive, bipolar, and related disorders”  or “Mood Disorders” with the “Other” category have fallen from about 14.1% (2010) to 9.3% (2022) of beneficiaries who have filed for workers' compensation or public disability benefits.

The Canada Pension Plan Disability (CPP-D)   system covers persons with contributions to the plan who suffer a “severe and prolonged” disability. Unlike  in the US SSDI, I could find no data isolating just those who had also filed workers’ compensation claims.   The following are based on December counts of benefit cases paid each year 2011(325,620 cases)-2023 (305,679 cases) and isolating mental disorders and all other classes of principle diagnosis : 

 

Australia Department of Social Services (DSS) provides data on the demographics of Disability Support Pension (DPS) recipients quarterly. I’ve selected December data reports and created an index by primary medical condition isolating the psychological/psychiatric  category and all others (excluding the psychological / psychiatric category):

About 37%  of the total 783,625 case were included in the Psychological/psychiatric category in 2023, up from about 33% in 2015.  

I could not find a study quantifying overlaps and possible substitution of sick leave, social insurance for workers’ compensation mental injuries. It is possible that workers’ compensation and other forms of disability compensation (including employer provided sick leave, short-term disability, and long-term disability) are experiencing similar patterns. 

These data suggest mental disorders are a significant issue for workplace participants, workers’ compensation, social insurance and disability insurance plans.   

Mental Injuries Are Not Always Associated with Physical Trauma

Most workers encounter a workers’ compensation claim because of work-related physical trauma. Mental injuries and disorders may well develop following physical injury, but that is not always the case. SafeWork Australia found that more than half of mental disorder serious injury claims arose from work-related harassment, bullying, and workplace pressure.

Safe Work Australia,  Data insights - Snapshot: Psychological health and safety in the workplace, February 2024

The Canadian data illustrate the distribution of claims by the nature of the disorder. Post-traumatic Stress Disorder (PTSD) tops the list but occurs in combination with other disorders and physical injuries. With PTSD, adjustment disorder, stress, and anxiety contribute to making up the majority.

 

While the range of descriptions noted is wide, recall that these data are for accepted time-loss claims.  That means the adjudicative authority has determined the work-relatedness of the loss.  Many cases of a similar nature may be denied for mental disorders or injuries.  More on  the standard and burden of proof in the next part of this series. 

Employees with employer provided  or employee group plans for short or long-term disability may seek coverage through those plans. As noted in earlier posts, many STD and LTD carriers will require claimants to file claims with workers’ compensation or social insurance plans as a condition of coverage under LTD or STD. 

Who suffers mental disorder injuries?

The following table lists the top 15 Canadian time-loss claims coded for mental disorders by occupation (Minor grouping level, first four digits of National Occupational Classification- Canada) by the number of accepted time-loss claims from 2020 to 2023: 

  

Please note that most of these occupations have something that might not be immediately obvious:  high levels of unionization. This may contribute to greater awareness of health and safety issues as well as better advocacy supports that contribute to greater success in claim filing.  The relatively lower numbers of accepted mental disorder claims among retail clerks may be more reflective of lower levels of unionization than lower exposure to harms. 

Australian workers’ compensation  data are grouped more by industrial sector but reflect a similar industrial distribution. The “Public administration and safety industry” includes police services, investigation and security services, fire protection, other emergency services, and correctional and detention services. The following figure appears in Safe Work Australia’s data report on “Psychological health and safety in the workplace”:

How Representative Are These Data?

Both the Canadian and Australian workers’ compensation data have gaps and inconsistencies that likely understate the extent of work-related mental disorders in the workplace.  Data for all jurisdictions in either country are not reported in all years.  There are no corrections or adjustments for changes in legislation that may occur over reported periods of time.  So, these data may not fully represent what is happening in either country’s workers’ compensation system.

Direct comparisons between countries are further complicated by differences in classification systems and coding practices.  At best, these data likely reflect broader trends.

That said, trends for individual jurisdictions over time are further complicated by changes in definitions, interpretation, diagnostic methods, adjudicative practice, mix of industries, and a host of other issues  within the jurisdiction.  Factors such as growing recognition of the reality of work-related mental injuries and declining stigmatization of mental disorders will likely impact reported claims but are difficult to assess.

To be clear, work-related mental injuries are real and despite the shortcomings in the available data, what we have available provides a good indication the reality of work-related mental injury is being somewhat (if not fully) recognized. 

Whether because of physical injury, a complication of treatment, or work-place conditions, workers are being harmed. That harm is significant and as life-altering for the bullied construction worker as it is for the burned-out air-traffic controller or the PTSD afflicted first responder.

Summary

Data from multiple sources show:

·       Mental disorders are a significant issue for workers’ compensation, disability insurers and social insurance entities

·       Increasing proportion of workers’ compensation claims in at least some jurisdictions

·       Increasing associated costs

 

Next time

These data on  of mental disorders demonstrate the significance of the issue.  They also illustrate some of the key challenges in comparing data across jurisdictions. 

In Part 2, we will explore some of the differences in the determination of claim acceptance in workers’ compensation programs and consider initiatives for prevention and treatment. 

 

 

What is Workers' Compensation Self-insurance?

Many students I encounter assume that workers’ compensation is simply another variant of traditional insurance. However, the traditional insurance model, which involves transferring financial risk for specific perils over a set period in exchange for a premium, may only encompass around half of the total workers’ compensation and benefits paid in the US.

To understand this conclusion, let's recap the public policy objective workers’ compensation is designed to achieve and how legislators have formulated the most common workers’ compensation arrangements in North America and Australia.

The Public Policy Objective

Most developed economies have systems of social protection that offer cash benefits in case of work-related injuries. While many countries have national programs to achieve this objective, in North America and Australia, the preferred approach is to provide coverage through “workers’ compensation,” primarily enacted at the state or provincial jurisdictional level. [For a concise summary of the evolution of workers’ compensation, see Guyton GP. A brief history of workers' compensation. Iowa Orthop J. 1999;19:106-10. PMID: 10847524; PMCID: PMC1888620 Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1888620/ ]

The public policy objective was not met in the free market.  Market failures including adverse selection issues, information asymmetries and externalization of social and other costs lead to government market interventions in most jurisdictions.  In North America and Australia, the intervention of choice was workers’ compensation.

Exclusive Remedy

Workers’ compensation is considered a form of “social insurance” and operates based on a social contract between management and labor. It stipulates that workers’ compensation serves as the “exclusive remedy” for occupational injuries and diseases. This means:

- Employers are shielded from legal suits for work-related injuries in exchange for funding the costs of statutory compensation and benefits specified by the relevant workers’ compensation statute.

- Workers are entitled to prescribed cash compensation for disability and the payment of medical and rehabilitation benefits for work-related injuries, regardless of fault.

- This system fulfills the public policy objective with less friction and provides greater certainty compared to the alternative model of litigating fault.

Legislation Determines the Mandate, Rules, and Arrangements

Legislation in the United States, Canada, and Australia defines the mandate of workers’ compensation at both the state/provincial and federal levels. This includes coverage extent, benefit definitions, dispute resolution rules, and more. Regulations and policies governing workers’ compensation in specific jurisdictions stem from these statutes.

Which employment is covered varies by jurisdiction although coverage percentages vary.  Workers’ compensation legislation mandates coverage for most, if not all, employers. Coverage calculation methods vary [note the denominators carefully]; according to the National Academy of Social Insurance (NASI) in the US, 91.7% of total employment and 87.3% of all jobs (2020 data) are covered by workers’ compensation. The International Labour Office (ILO) estimates about 72% of the working-age population has work-injury financial protection (2020-22 data) in Australia. The Association of Workers’ Compensation Boards of Canada (AWCBC) reports that 83.4% of the employed workforce is covered by workers’ compensation (2022), with coverage levels in the range of 91-98% in more than half of the jurisdictions.

Legislation also determines how the workers’ compensation will be provided.  While there are many variations, the two most prevalent arrangements are traditional insurance and self-insurance.

Traditional Insurance Arrangements for Workers’ Compensation

Most legislative frameworks primarily rely on a “traditional insurance” model, mandating and regulating the market for insurance buyers and sellers.  

Statutes in the US, Canada and Australia define two main alternative arrangements to provide workers’ compensation insurance :

• Competitive insurance (including mutual insurers, private insurers)
• State Fund or Provincial workers’ compensation insurers (exclusive or competitive)

Legislation typically mandates employers to obtain workers’ compensation insurance from a private insurer, mutual insurer, or a state/provincial fund (competitive or monopolistic entity). 

Besides the traditional insurance model, legislation or administrative arrangements may also prescribe another arrangement for workers’ compensation coverage: Self-insurance.

Differentiating Insurance and Self-insurance

Traditional insurance involves transferring financial risk in exchange for premiums paid to an arms-length entity, such as a private insurer or state fund, where the risks of multiple employers are pooled. However, not all workers’ compensation coverage aligns with this definition; certain forms of workers’ compensation constitute “self-insurance.”

In self-insurance, authorized or mandated by jurisdictional authority, a self-insured firm retains financial risk rather than transferring it to an arms-length insurer. The employer remains liable for the workers’ compensation and benefits prescribed by the governing workers’ compensation statute.

The retention of financial liability presents a risk to the self-insuring entity. Firms approved by the state for self-insurance have an incentive to develop robust health and safety, disability management, and return-to-work programs. This choice may make sense for firms believing that their robust loss prevention programs limit financial risk more effectively than the pooled alternative offered by traditional workers’ compensation insurance through premium payments.  Self-insured entities may also mitigate some risk through re-insurance arrangements.

While self-insured employers may contribute to oversight, regulation, dispute resolution, research, enforcement, and other system costs through assessments, the liability for their own workers’ compensation claims costs is retained. Generally, self-insured entities will have to post security or other financial undertakings as part of the approval process. 

Categories of Workers’ Compensation Self-insurance

Self-insurance in workers’ compensation does not fit one standard form.  The following categories account for most workers’ compensation self-insurance models. 

Self-insurance with Self-administration: Many large employers operating across multiple jurisdictions see advantages in consolidating their workers’ compensation administration in-house or with an external private third-party administrator (TPA). Subject to jurisdictional approval and oversight, this approach may streamline services, particularly in returning injured employees to work. 

Self-insured and self-administered employers may still have to pay assessments or contributions to state funds,  regulatory agencies (including health and safety inspectorates), appeal structures, fraud prevention,  research, and prevention programs.   

Group Self-insurance: Multiple employers, usually from the same industry, pool resources to provide workers’ compensation coverage for their employees, contributing to a fund used to pay claims.  Creation of such groups or associations must meet regulatory authority requirements that vary by jurisdiction.  New York State allows Self-Insurance Groups with provisions that include the following:

The group must include two or more employers that perform related activities in a given industry.

The employers must have been in business for an “acceptable”  period of time.

The group must meet and continue to meet the current legal provisions, including security deposit posting requirements.

[see Title 12 of the Official Compilation of Codes Rules and Regulations of the State of New York, Chapter V, Subchapter B, Part 317 available at https://www.wcb.ny.gov/content/main/SelfInsureds/Part317.jsp ]

Self-insurance through State/Provincial Funds: In certain jurisdictions, state governments self-insure workers’ compensation coverage costs but contract with a state or provincial fund as an adjusting agent to deliver workers’ compensation services, with the ultimate liability for payments remaining with the government.  North Dakota, Puerto Rico and California governments are examples of this form of self-insurance.

This model is not limited to government employers.  In British Columbia, WorkSafeBC covers a limited number of self-insured private employers (including Air Canada, BNSF Railway, Canadian Pacific Railway, Teck Resources) in addition to the provincial government and its corporate entities.

Unlike other employers who pay premiums based on assessable payroll and pool their risk with other similarly classified employers, these “deposit class” employers do not pay premiums.  Instead,  each of these employers reimburses the cost of all compensation and benefits associated with their workers’ claims plus a share of administration and other assessments (prevention, appeal structures, etc.)

Direct Self-Insured Governments: Entities like the US Federal Government self-insure workers’ compensation under specific legislation, with the government covering its own claims and expenses pursuant to the Federal Employees Compensation Act (FECA).  The  Office of Workers’ Compensation Programs (OWCP) provides adjusting and legal services for the federal government’s workers’ compensation claims and provides benefits and services to injured employees. The federal government reimburses the OWCP for the cost of these services.

Australia’s federal no-fault workers’ compensation scheme is created under the Safety Rehabilitation and Compensation Act 1988 (SRC).  ComCare handles the claims including payments, medical expenses, are related benefits.   

The Canadian Federal Government also self-insures workers’ compensation for its employees under the Government Employees Compensation Act (GECA) but contracts with the provincial workers’ compensation boards to administer the claims for workers in the respective jurisdictions where they reside.

Self-insurance through “Captive” Insurers and Related Alternatives: Large corporations may retain risk through wholly owned subsidiaries or captive insurers, while groups of entities can form captives, associations, or other entities to manage risk.

Other forms of self-insurance in this category include risk retention groups, risk purchasing groups, trusts,  and captives sponsored by intermediaries.

“Carve-outs” as a Form of Self-insurance: Labor-management agreements meeting specific requirements set and approved by the state, may seek to state approval to exclude themselves from standard workers’ compensation insurance mandates, provided they offer benefits equal to or better than those mandated by the workers’ compensation system. Carve-outs generally provide workers’ compensation benefits and dispute resolution under a collective agreement. California has several carve-out plans in the construction sector.  [see Department of Industrial Relations, Labor-management (carve-out) agreements available at https://www.dir.ca.gov/dwc/carveout.html ]

Self-insurance through Deductibles: Many US states permit policies with employer deductibles, where the employer reimburses the workers’ compensation insurer for cash compensation and benefits paid up to a specified deductible amount on a case or overall policy basis.  Employers are essentially self-insured for the deductible portion of their policy.  In the US, these policies are generally called “Large Deductible” workers’ compensation policies.  In Australia, employers may pay a claim-based “employer excess” as a deductible.  The specifics vary but generally employers are financially responsible for the first five or ten days of work-related losses and related medical expenses. [see SafeWork Australia, Comparison of Workers’ Compensation Arrangements in Australia and New Zealand 2021 (28th Edition), Table 3.9 available at https://www.safeworkaustralia.gov.au/book/comparison-workers-compensation-arrangements-australia-and-new-zealand-2021-28th-edition/chapter-3-schemes-glance/table-39-employer-excess ]

Self-insurance represents a significant aspect of workers’ compensation coverage, accounting for the following proportions of workers’ compensation benefits paid in the US in 2020 [see Workers’ Compensation: Benefits, Costs, and Coverage (2020 data), Table 7 available at https://www.nasi.org/research/workers-compensation/workers-compensation-benefits-costs-and-coverage/ ]:

• Employer-paid deductibles (a form of self-insurance):  17.5%
• Self Insured : 24.7%
• Federal (government self-insurance): 5.5%

These three categories  of self-insurance alone account for nearly half the workers’ compensation benefits paid in the US.

The prevalence of the self-insurance model has seemingly increased over recent decades, although its impact on worker outcomes remains unclear.  That’s a topic for another day.

How do I get started using AI in Disability Management?

 

“Ai won’t replace people… People who use AI will replace people who don’t.”  [* IBM, “Augmented work for an automated, AI-driven world”, https://www.ibm.com/thought-leadership/institute-business-value/en-us/report/augmented-workforce  accessed Oct 5, 2023]

IBM’s assessment applies to Disability Management professionals, Rehabilitation Consultants and Personal Injury Advisors as well as clinicians, administrators, and even CEOs; those who use artificial intelligence (AI) will replace those who don’t. 

When that realization sinks in, students and participants in my workers’ compensation courses and disability management seminars often ask, “How do I start using AI?” 

Here’s what I tell them.

Step 1:  Get access to an AI chat application.

While ChatGPT is the highest profile, other popular AI chat applications like Bard, Bing’s Chat and Perplexity are available for free access in most countries (or through VPN access) subject to registration.  Subscription-based and more specialized AI applications are also available.  If your organization already subscribes to one, you may want to get started with that.

Step 2:  Create a prompt.

Chatbots respond to you.  Unlike an internet search engine, AI chat applications apply Large Language Models to what you “prompt” (the question you write or speak as an input to initiate a chat session.  One person described their first experiences with AI chats this way: “It’s like texting a detailed question to a really knowledgeable expert and getting a really complete response… but with no time lag.”

Step 3:  Interact with the application.

In an internet query, you typically ask one question then investigate by following supplied links from the response.  With AI, you can carry on a conversation; most chat applications allow you multiple (five to thirty or so) follow-up prompts, questions, or comments to which the AI chat will respond  Subsequent prompts may ask for more detail or a justification of a particular response.  You can probe, disagree, or ask for a response to be put another way.  The AI chat applications are pretty good at following the chain of conversation without restatement information already appearing in the session.

Step 4:  Review responses critically and with caution

If you are already knowledgeable about something, start with a prompt that will allow you to evaluate the responses.  AI chat applications are not authorities; they just present information in a way that sounds definitive.  In their present state of development, they make errors, hallucinate, and miss key points while emphasizing sometimes trivial matters.  What you bring to the interaction is your knowledge and judgement.  The experience of detecting and exploring errors, omissions, and overstatements will help you evaluate responses when you are not expert.

Step 5:  Verify

Most chat applications will now provide sources to support their responses either directly or if prompted.  This is important for any work you do at least at this stage in AI development. Check the references provided very carefully.  Read the papers cited to see if they actually support the statements made in the AI response. 

Practice with AI applications will help you develop your prompts to be more effective.  Here are some examples of how AI can inform and assist disability management professionals, stakeholder and advocates in their practice.

Use AI to understand appeal case decisions.

The Appeal Commission for Alberta Workers’ Compensation publishes “Significant Decisions”  on commonly appealed issues in workers’ compensation [see https://www.appealscommission.ab.ca/resources/significant-decisions] .  The selected cases are particularly clear in their organization, analysis and application of principles.  The decisions are listed by topic but not summarized or annotated.  For example, the Appeal Commission’s website lists two decisions by number under the heading “Claim Acceptance” [see Decision No. 2014-1090 , Decision No. 2014-0657].

In this example, I took the text of the two listed decisions and uploaded them to ChatGPT with the following result: 

Prompt: 

Based on the two exhibits, prepare a short summary of about 250 words for each case then provide several paragraphs outlining the principles, analysis and approach that advocates can use to inform their submissions on the acceptance of workers' compensation claims.

ChatGPT response:

Case Summary 1: Left Shoulder Labral Tear

 

In this case, a worker filed a compensation claim for a left shoulder labral tear. After examination, the first medical consultant indicated that the worker's job duties, which included frequent work in an "impingement position," likely contributed to the injury. The third orthopaedic surgeon, however, deemed the examination invalid and could not correlate the symptoms with the described injury mechanisms. The Appeals Commission ultimately sided with the first medical consultant, citing his detailed review of the worker's job demands and physical analyses, which the third orthopaedic surgeon failed to do. They also noted that the third surgeon's opinion lacked a clear rationale.

 

The Commission emphasized the absence of evidence supporting an alternate cause for the diagnosed labral tear, ruling out other potential factors. Consequently, the worker's left shoulder labral tear was deemed compensable due to the consistent medical evidence and job-related factors.

 

Case Summary 2: Left Medial Epicondylitis

 

The worker in this case was diagnosed with left medial epicondylitis. Although medical evidence confirmed the condition, it did not sufficiently establish a causal relationship with the employment hazard. The medical consultant suggested that the worker's significant exposure to force, repetition, and abnormal postures in forearm-related activities could reasonably relate to his job activities. However, the Commission found this insufficient to establish causation, as the consultant also noted that the worker reported elbow symptoms after ceasing work.

 

Additionally, the third orthopedic surgeon's examination did not support a causal connection between the worker's duties and the medial epicondylitis. The Commission emphasized that absence of evidence for an alternate cause did not automatically establish a causal link. Therefore, the claim for left medial epicondylitis was not accepted.

Principles, Analysis, and Approach for Advocates

Detailed Job Analysis: Advocates should emphasize the importance of conducting a comprehensive review of job demands and physical analyses when assessing the causal relationship between a worker's duties and their injury.

 

Clear Rationale for Opinions: Medical consultants and experts should provide a clear and detailed rationale for their opinions, ensuring that they explain the basis for their conclusions.

 

Consideration of Timing: Advocates should be aware of the temporal relationship between the reported injury and the cessation of work. This can be a critical factor in establishing causation.

 

Evaluation of Alternate Causes: While absence of evidence for an alternate cause is relevant, it alone is not sufficient to establish a causal link. Advocates should focus on gathering evidence that directly links the injury to the employment hazard.

 

Specialized Expertise: Advocates should consider the qualifications and expertise of medical consultants, especially in comparison to other examining professionals, to determine the weight given to their opinions.

 

These principles, rooted in the Appeals Commission's decisions, can guide advocates in constructing strong submissions for workers' compensation claims, ensuring they are well-supported and likely to be accepted.

 

Note that the result is highly dependent on the prompt and the AI model used.  Even replicating the above example in the same AI application will likely result in a similar but not identical response.  Changing or omitting the word count will also change the detail in the response.  If you have a decision letter on a similar claim, you can test if the principles identified in the first response are properly applied in a subsequent case.

 

Develop a job modifications and adaptations to accommodate a return-to-work  objective

In the following example, the prompt includes the instruction to assume a particular role in developing a GRTW plan.  This is a hypothetical example and for confidentiality and privacy reasons, actual names and circumstances should be avoided as you experiment with AI.

In this example, note that the prompt prescribes a point of view, an assumption of a professional position.  Note also the details contained in the prompt.

Prompt:

Assume you are a vocational rehabilitation consultant assisting a 40-year-old bank employee return to work. The employee was pursuing a hobby involving woodworking. Having removed the guard on the table saw to make a close cut, the employee amputated the ring and middle fingers on both hands below the medial pharyngeal joint. The employee is recovering well enough (after three months away) to return to work. The job duties involve a lot of sedentary work with extensive keyboarding using a standard desktop computer, keyboard, and mouse. Phone calls are made and received through a standard desktop phone with a headset. The employee has full use of thumbs, third and little finger on both hands. What modifications, devices, and adaptations to the workstation would you recommend to accommodate this employee's

ChatGPT Response:

Given the employee's condition, I would recommend the following modifications and accommodations:

 

Ergonomic Workspace: Ensure that the workstation is ergonomically designed to reduce strain on the remaining fingers and thumbs. This includes proper chair height, monitor placement, and keyboard/mouse positioning.

 

Specialized Keyboard and Mouse: Consider providing a keyboard and mouse designed for individuals with limited dexterity. There are options available with larger keys or alternative input methods like touchpads.

 

Voice Recognition Software: Implement voice recognition software to reduce reliance on extensive keyboarding. This would allow the employee to dictate text and commands.

 

Keyboard Shortcuts and Macros: Set up customized keyboard shortcuts and macros to streamline tasks and minimize the need for complex typing.

 

Adjustable Desk: Provide a desk with adjustable height to accommodate any specific needs related to the employee's comfort and posture.

 

Phone with Speaker Functionality: Use a desktop phone with speaker functionality to allow the employee to use it without needing to hold the receiver.

 

Headset with One-Sided Earpiece: Opt for a headset with a one-sided earpiece to allow the employee to use the phone while still having a free hand for typing.

 

Document Holder: Provide a document holder to keep necessary documents at eye level and reduce strain when referencing them while typing.

 

Wrist Rests and Palm Supports: Include wrist rests and palm supports to provide additional comfort and stability during keyboarding tasks.

 

Monitor Mounts: Use adjustable monitor mounts to position screens at an optimal viewing angle for the employee.

 

Training and Support: Offer training on any new assistive technologies or workstation adaptations to ensure the employee is comfortable and proficient in their use.

 

Regular Check-Ins: Schedule regular follow-ups to assess the effectiveness of the accommodations and make any necessary adjustments.

 

Remember to consult with the employee throughout this process to understand their specific needs and preferences. Additionally, consider involving an occupational therapist to provide specialized guidance if needed.

 

This is a detailed outline but a bit short on details.  Follow-up questions can ask for additional information.  You could, for example, expand on the alternative keyboards items.  In my follow up, the idea of a hand-held keyboard about the size of a smartphone allowing for typing with the thumbs similar to texting was suggested. 

 

Draft a return-to-work plan

For this example, I gave the employee in the hypothetical case a name and relationships and asked the AI chat to prepare a return-to-work plan with the following prompt. 

Prompt:

Assume the employee, Arlene W., is cleared to gradually return to work in two weeks.  The employer has agreed to the points above.  Develop a formal return-to-work plan outlining what happens each week for up to 8 weeks with the employee back at full duties at the end of the plan.  The plan will be overseen by the employee’s supervisor, Jay Q., and the RTW coordinator, Peter L.  Any adjustments to the plan will be agreed upon by all three parties.  The plan should be formatted as an agreement using the calendar weeks and dates that would apply.

I’ve posted the ChatGPT response as an image and a PDF (some formatting added). 

The product is well organized but sparse in detail.  That is understandable given the brevity of the prompt.  Adding more details could result in a more detailed. In practice, the output could be used as a starting point.

As an additional exercise, paste an anonymized version of on of our own RTW plans into an AI chat with a prompt as follows:  Review the following return to work plan commenting on its completeness, pointing out any deficiencies and make recommendations for amendments, deletions, or other changes. 

This exercise is framed as a self-check, something you might do in your own practice, but that is too narrow a perspective.  You can be certain that many of those receiving your RTW plan proposal will run a similar exercise as part of their own due diligence before signing off on your proposal.

Recommendations

I’ve stressed the need to be knowledgeable about AI but to be cautious in its implementation.  The only way you can develop your understanding of AI is by using it! 

And, keep in mind these  four recommendations, one hint, and a final caution:

•  Start interacting with AI tools now to become familiar with their evolving utility.
• Be sure to adhere to all ethical, confidential, privacy and academic integrity guidelines.
•  Practice being critical of AI responses. (Hint:  Practice by creating AI prompts that will generate responses in your area of expertise and examine the response for errors, omissions, and misinterpretations or outdated perspectives).
• Verify information before using AI information (AI is NOT an authority even if its responses are framed as authoritative assertions).

 

Remember, AI chat applications are known to hallucinate, make up quotes, and attribute them to articles that may not exist.  If you catch AI making an error or flawed reasoning, follow up with the AI application.  It is very common for AI chatbots to apologize, acknowledge their errors, and amend their responses—but only if you pursue the point. 

AI is here to stay, being integrated into existing technologies,  and continuing to evolve.  Use it to make a difference in your profession.

AI and Workers' Comp - Summary of ARPA presentation

The recent Australian Association of Rehabilitation Providers (ARPA) Roundtable meeting in Perth provided an opportunity to speak on how AI is and will impact workers’ compensation.  

In my presentation, I noted that AI has been applied in research and proprietary settings for years but that the advent of low or no-barrier access to Large Language Models such as ChatGPT, Bard, Bing’s chat, Perplexity,  and others have quickened the pace of AI application and adoption. 

AI will not change the functions of any disability insurance or workers’ compensation systems.  Using Henry Mintzberg’s approach, I illustrated how AI can be applied to functions in the technostructure, support, and strategic apex of organizations, as well as through the operating core.  The impact at the interface between the organization and those it serves (stakeholders, injured workers, employers, advocates, etc.) is dynamic and bi-directional.  AI enables organizational functions and changes how others outside the structure use, analyze and react to information and decisions.    

AON, one of the world’s largest reinsurers, [see https://insights-north-america.aon.com/total-cost-of-risk/how-artificial-intelligence-is-changing-workers-compensation ]  and  Clara Analytics [see https://claraanalytics.com/blog/six-ways-to-reduce-workers-comp-costs-using-ai/ ].have reported current application of AI in the insurance and workers’ compensation sector.  Applications that include:

• Analyzing workers’ compensation wealth of structured and unstructured data
• Sorting out the impact of events like COVID-19
• Loss control benefits for employers
• Detect anomalies in procedures and drug costs
• Evaluate, decide, and pay 60-70% of straightforward claims
• Identifying high risk and complex cases early and direct to specialist staff
• Enable early intervention.

I demonstrated how a complex 43-page appeal-level decision could be uploaded to a chatbot with a prompt to produce a 500 word, plain-language summary along with the strengths and weaknesses of the decision.  The near instantaneous output matched the quality of my own summary and analysis that took more than half a day to prepare. 

In another example, I showed how AI had been trained to analyze and code a few thousand workers’ compensation cases, apply that learning to a dataset of 1.2 million cases and produce actionable analytics for prevention of injuries in specific sectors. 

A recent IBM report [see https://www.ibm.com/thought-leadership/institute-business-value/en-us/report/augmented-workforce noted “AI will not replace people – but people who use AI will replace people who don’t.”  Putting a finer point on this, I noted:

• AI won’t replace clinicians but clinicians who use AI will replace clinicians who don’t.
• AI won’t replace rehabilitation and return to work specialists but rehabilitation specialists  who use AI will replace rehab professionals who don’t.
• AI won’t replace CEOs but CEOs who use AI will replace CEOs who don’t.

My final points reiterated that AI is here, it is not going away, and it is going to increase in power.  Ignoring and fearing it are not really options.  Understanding AI, how to use it, and its limitations is essential.

Workers’ compensation or disability insurance are not islands.  As clients, injured workers, regulators, advocates, and stakeholders adopt AI and experience how sectors and services using this technology to improve quality and timeliness, they will demand improvements in these sectors as well.   Even if you are meeting or exceeding your service, timeliness, and quality standards now, by the measure of the AI-enabled world, you are falling behind.  Your reputation and social capital will suffer as a result. 

The discussion following the presentation included insightful questions and observations.  One key insight was the importance of crafting the prompts used with large language models.  The richness and accuracy of the prompts will be somewhat determinant of the product of an AI interaction. 

Also covered in the discussion was the importance of the professionalism, knowledge, and experience users bring to AI interactions.  At this point in AI implementation, those human insights and judgements are essential.  In one of the presentation examples, the AI chatbot was prompted to read a case study from the ARPA website and develop a specific multi-faceted rehabilitation plan for a complex case.  The output accurately reflected what the current body of disability management and rehabilitation management knowledge would ideally recommend.  The realities and constraints of implementing the plan, adapting the ideal to the specific context, and “doing” the work required professional human judgement to achiever the real-world objective of a safe, durable return-to-work outcome.

Another comment built on the cautions raised in the presentation regarding privacy, confidentiality, and regulatory issues. While all the examples used in my presentation were from publicly available sources, professional judgement and rigorous compliance with regulatory and professional standards will complicate implementation of AI in organizations.

The call to action for this presentation was engagement.  It is time to educate subject matter experts in all functional areas of your organization about AI and begin the process of improving and safeguarding functions across the organization. 

AI will improve workers’ compensation, disability management, personal injury insurance, and prevention. Developing your AI strategy is not just something to put on your to do list, it is a current imperative.