“10 Signs Your Workers’ Comp Ergo Eval Won’t Hold Up in Court!”

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July 2016: Chair Assessment System

Workers’ compensation ergonomic worksite analysis (EWA) involves a professional onsite analysis of the injured worker and a comprehensive medical-legal report of findings and recommendations. The report is intended to be evidenced- based, objective and defensible in a court of law as it is part of the medical management of the claim. As such, the document represents the professional ergonomist’s expertise in what the work injury causation is and how to mitigate the exposures causing the injury. The ergonomic analysis is a “recipe” for worksite changes to minimize or eliminate to the extent feasible the risk factors so the injured worker can stay at work or return to work safely.




But what happens if the claim goes sideways and your employee decides to sue you? Will the ergonomic analysis help or hurt you in court?

Common Flaws in Ergonomics Reporting

As an expert in performing medical-legal workers’ compensation reports over the last 2 decades, I am sometimes asked to review other ergonomic analysis reports. In doing so, I’ve found the following patterns in what is supposed to be expert reporting:

Lack of descriptive word choice in describing claimant’s condition and other relevant factors
Lack of objective, scientific evidence in identifying ergonomic risk factors leading to root cause of injury
Limited recommendations to fully resolve the exposures
Lack of proper professional ergonomics credentials

Recognizing these flaws in workers’ compensation analysis is cause for concern because many workers’ compensation claimants sue their employers. As a result, all medical records pertaining to the case including the ergonomic analysis can be presented and scrutinized in a court of law. Consequently, the competency and professionalism of the evaluator and the report can be called into question. This can create a problem for the employer if implementation did not occur, if the report is unclear or misleading and if the evidence is not scientifically- based and aligned with the employee’s condition. A poor report raises an issue of credibility of the evaluator making it considerably more difficult to overcome. It is possible the employer and insurer could be seen as negligent because due diligence in selecting a qualified ergonomist was not taken.


Top Ten List10

Just like David Letterman’s “Top Ten List”, here are ten signs your workers’ compensation ergonomic analysis may not hold up in court:

1. The evaluator’s name, signature and professional credentials are not on the report.
2. The employee’s job purpose and essential functions are not clearly stated.
3. The employee’s symptoms are not effectively described, lacking in frequency, intensity, location, pain patterns as it relates to tasks performed and tools used.
4. Workstation equipment and tool characteristics are not properly described or identified by name, type or manufacturer.
5. The evaluator used a generic or outdated checklist not validated by a reputable organization.
6. There are no employee anthropometric measures or force measurements taken relative to the work performed and work environment.
7. There were no tips, adjustments or changes made onsite to immediately improve the employee’s condition during the visit.
8. The report lacks an explanation or discussion of what the key findings and objective measures means relevant to the injury diagnosis and causation.
9. The evaluator fails to document specific recommendations of facility actions, specialty products or engineering changes, administrative or other suggestions to assist the employer in proper mitigation of the identified risk factors.
10. Photos of the employee at the worksite are poor quality and fail to identify, “what is wrong with this picture” or show comparison of before and after changes whenever feasible.

Professional Criteria to Assure Success

When a EWA has been medically prescribed for your claimant’s case, make sure the ergonomics professional selected is:

. Experienced in writing evidence based, objective medical- legal reports
. Has performed medical only and indemnity ergonomic evaluations in the past
. Follows a valid methodology with scientific basis to back the expert opinion provided
. Understands the workers’ compensation system
. Has the professional credentials necessary to defend themselves and their report in court, if necessary
Look for these professional ergonomic credentials, “CPE, CIE or CAE” including a degree in Human Factors and Ergonomics and/or healthcare license as a PT, OT, RN or DC.
. Has a legitimate business license and website
. Has worked with insurers on similar cases
. Is prepared to serve as an expert witness should the need arise

Ergonomic worksite analysis is a critical part of workers’ compensation medical management, especially for musculoskeletal work injuries. The EWA is like the “QME” of onsite information. Selecting an experienced, board certified ergonomics professional (with a healthcare degree) is recommended for medical only and indemnity claims to help assure the employer and employee the best outcome possible for claim resolution and staying out of the courthouse.

Who is Responsible?

Employers are ultimately responsible for the care of their injured employee to return them to their former non-injured self as best as possible. Many insurers don’t have a ready list of qualified ergonomists that meet the recommended professional criteria. They may (unknowingly) select a provider who is less expensive and inexperienced. Make sure you advise your insurance provider on your preference to use a certified professional ergonomist for your medical only and indemnity workers’ compensation cases.

Need More Help?

For more information about workers’ compensation ergonomic worksite analysis, see our February 2015 blog, “Is Ergonomic Worksite Analysis Medically Necessary and Appropriate for Workers’ Compensation Claims?”. If you would like to refer us to your WC insurer or have a workers’ compensation claim that would benefit from ergonomic analysis, please request it here.

Reference:

Zuccarello, Vic, “The use of ergonomic analysis in medical causation cases: an aide to support or debunk claims of compensability for musculoskeletal disorders”, June 2011.
Mark Gorney, MD, FACS, “The Defensible Medical Record”, The Doctor’s Company


Comments

Your Comments


Steve Morrissey

You forgot to add that the employer changed the worksite before the inspection and that a “checklist from a reputable organization” is sort of loose, on a good day

Alison Heller

In reply to steve Morrissey.
Hi Steve, Thank you for your reading our WIN NEWS blog and for your thoughts regarding my article, “10 Signs Your WC Ergo Eval Won’t Hold Up in Court”. There are many other areas that could be problematic as you note. As for the checklist, describing further might make a good blog…. Alison



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