Public Risk March 2018 by Moire Marketing Partners

PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION MARCH 2019

PREPARING FOR THE

DEPARTMENT

OF JUSTICE PAGE 6

ALSO IN THIS ISSUE

DEADLY SILENCE

PAGE 10

COMPASSIONATE WISDOM:

Recovering from Catastrophe Begins with a Prediction PAGE 15

MARCH 2019 | Volume 35, No. 3 | www.primacentral.org

CONTENTS

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

PRESIDENT Jani J. Jennings, ARM Risk Manager City of Bellevue Bellevue, NE PAST PRESIDENT Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN PRESIDENT-ELECT Scott J. Kramer, MBA, ARM County Administrator Autauga County Commission Prattville, AL DIRECTORS Brenda Cogdell, AIS, AIC, SPHR Risk & Safety Director County of Hillsborough Tampa, FL Forestine Carroll Risk Manager Memphis Housing Authority Memphis, TN

Preparing for the Department of Justice By Sarah Schmitz, Esq.

Sheri Swain Director of Enterprise Risk Management Maricopa County Community College District Tempe, AZ Donna Capria, CRM, CIC, AINS Risk & Insurance Coordinator WaterOne of Johnson County Lenexa, KS Michael S. Payne, ARM, HEM Risk Manager City of Fresno Fresno, CA Melissa R. Steger, MPA Asst. Director, Workers’ Compensation University of Texas System Austin, TX NON-VOTING DIRECTOR Marshall Davies, PhD Executive Director Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org ADVERTISING Jennifer Ackerman, CAE 703.253.1267 • jackerman@primacentral.org

Deadly Silence By Chuck Goodman

IN EVERY ISSUE

Public Risk is published 10 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org

Compassionate Wisdom:

Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year. Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine.

By Dana Barton

POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314.

RECOVERING FROM CATASTROPHE BEGINS WITH A PREDICTION

| 4 NEWS BRIEFS | 19 ADVERTISER INDEX

MARCH 2019 | PUBLIC RISK

THINK. SHARE. TRANSFORM. the leading event for public risk professionals

JUNE 9 â&#x20AC;&#x201C;12 2019

MESSAGE FROM PRIMA PRESIDENT JANI JENNINGS, ARM

esterday I had a meeting with four students from the University of Nebraska who were assigned to research and give a presentation on risk management. When I received a call from one of the students requesting a meeting with me, I was happy to oblige and immediately became excited to meet four young people interested in risk management! Or at least four young people who may become interested after their mandatory assignment was complete. They provided a list of questions to me but as I usually do, I just began talking, introducing them to what public risk management really is…not what a book teaches you. While I was offering information, I realized that a good risk manager evolves. Developing relationships with employees, elected officials and the people in the community is vital to effective risk management. Establishing trust in those relationships is a major factor in loss control. And it takes time and experience to develop. As I pondered over the question about my entity’s top risks, I realized our predominantly aging workforce will place us at a critical juncture when we all begin to retire at the same time. This risk appears to be prevalent in all government organizations and it is becoming increasingly important that we get serious about our succession planning. Smaller entities, such as mine, are particularly challenged since a natural successor is usually not already at arm’s length when an employee departs. It becomes a challenge to replace key personnel such as your human resource manager, your risk manager, or your public works director who handles the majority of responsibilities or who possess extensive specialized knowledge and experience.

“

Promoting people from within is good

for morale and encourages people to take on

“

WELCOME TO THE JUNGLE

responsibility, assume risk and grow through their achievements.

Promoting people from within is good for morale and encourages people to take on responsibility, assume risk and grow through their achievements. But if you don’t have the talent or interested individuals in-house, how do you attract and retain the next generation of employees? I found myself, during my meeting, recognizing my own attempt to recruit these bright, young students and felt I wasn’t going to let them out of the room until I felt sure they knew the benefits of working in the public sector! How do make it appear attractive? ➊ I was candid. I focused on the unique challenges public entities present. I gave them examples of a “day in the life of a risk manager” and explained how I resolved a challenging issue. ➋ I told them working in government provides a broad network of mentors and career opportunities, which can offer an opportunity to expand their resume and gain experience in many areas. ➌ I demonstrated passion. Millennials want to know their work has a purpose; they want to feel they have contributed to the world. As government employers, we can offer that intrinsic sense of purpose and passion. I

relayed to them how much I love my work and feel like what I do every day makes a difference in the lives of those I touch. Public entities cannot change who they are merely to attract a new generation of employees. Most of us can’t offer nap lounges or free beer but providing opportunities to encourage and support the passion and purpose behind public service can go a long way with younger generations. Begin today to look at the worth your entity has, what simple updates you can do to attract valuable employees and start implementing your succession plan now before your experienced workers are promoted to that final rank of retiree. Sincerely,

Jani Jennings, ARM PRIMA 2018–2019 President Risk Manager City of Bellevue, NE

MARCH 2019 | PUBLIC RISK

NEWS BRIEFS

NEWS Briefs

UTAH WILL SOON HAVE THE STRICTEST DUI LAW IN THE U.S.

Enactment of this law, the most conservative in the country, is not the first time Utah has been a trailblazer. In 1983, it became the first state to lower the BAC limit from 1.0 to 0.08. Over the next 20 years, every other state would follow suit. There’s little dispute that this was a good move—in that time, traffic deaths related to alcohol dropped by 10 percent, as NPR reports. There’s a chance, then, that Utah could be setting the U.S. standard yet again. Not everyone in Utah—where 60 percent of the population belongs to the Church of Latter Day Saints, whose members are directed to abstain from alcohol—is on board. The state has a long history of strict policies surrounding the sale and consumption of alcohol. Bar and restaurant owners say the new law will drive away customers and that tourists will be too worried to imbibe. A writer at the Salt Lake Tribune notes that, “Year after year, the data clearly shows the same thing: Crashes involving drivers in that range [with a BAC between 0.05 and 0.079] are exceptionally rare.” The American Beverage Institute has criticized the law, claiming that it penalizes moderate drinkers without affecting intoxicated drivers who would be over the legal limit anyway. Still, lawmakers in other states may still be inclined to push for similar laws.

PUBLIC RISK | MARCH 2019

“

Enactment of this law, the

“

A new Utah state law limits drivers’ blood alcohol content (BAC) to .05 grams of alcohol for every 100 milliliters of blood. That means that a 160-pound man who consumes two drinks in an hour, or a 100-pound woman who just has one, would reach that limit. The consequences for getting caught while driving under the influence (DUI) won’t change—drivers can have their licenses suspended, be slapped with fines of more than $1,000, or go to jail.

most conservative in the country, is not the first time Utah has been a trailblazer.

Alcohol-related traffic deaths are still a major problem—about 10,500 Americans died in 2016 incidents, according to the National Highway Traffic Safety Administration. The National Transportation Safety Board has been calling for this lower limit since 2013. New York and Delaware considered

similar changes this year, as did Hawaii and Washington the year before, according to Pew. They did not pass. Now that one has, state legislators everywhere may be more likely to implement restrictions along the Utah lines.

92% E-CIGARETTE TAX? VERMONT GOVERNOR BACKS THE IDEA Vermont Gov. Phil Scott threw his support behind a 92 percent wholesale tax on e-cigarettes, giving a boost to a proposal that has failed to get through the Legislature over the past few years. The levy would bring an estimated $1 million into state coffers. But proponents portray the move as a public health initiative as surveys show more young people trying and regularly using electronic nicotine-delivery devices. “Our kids must know the dangers of these behaviors, and we should stop it in its tracks,” Scott said in his fiscal year 2020 budget speech.

ANTICIPATING BUDGET SURPLUS, OKLAHOMA GOVERNOR PROPOSES $1,200 RAISE FOR TEACHERS Oklahoma’s new Republican governor told lawmakers that he wants to use a projected budget surplus to give classroom teachers a $1,200, across-the-board raise that would make the state the best in the region for educators’ pay and benefits.

His teacher pay plan would cost about $70 million annually and would be in addition to the average annual pay boost of $6,100 that teachers received last year before a statewide walkout over demands for more education spending.

Gov. Kevin Stitt delivered his plan for spending about $8.2 billion and outlined his proposals in his first State of the State address to lawmakers to begin the 2019 legislative session. Among his ideas are putting more money into reserves, conducting performance audits of the largest state agencies and putting more cash into a fund the governor could use to close deals that would bring more jobs to the state.

Stitt says his vision for public education includes higher standards and more classroom money, “but we must first continue our investment in the teacher, because it’s not programs, curriculum or resources that a student will remember,” he said in prepared remarks. “The magic happens between the student and teacher in the classroom.”

Health advocates praised the idea. But the proposal was immediately panned by the American Vaping Association, an advocacy group that argues e-cigarettes are an effective stop-smoking option for adults.

“

…We must first continue our investment

in the teacher, because it’s not programs,

“

curriculum or resources that a student will

remember…the magic happens between the student and teacher in the classroom.

MARCH 2019 | PUBLIC RISK

PUBLIC RISK | MARCH 2019

Preparing for the DEPARTMENT OF JUSTICE

BY SARAH SCHMITZ, ESQ. CITY ATTORNEY RECEIVES A LETTER THAT READS— This letter is to inform you of the results of our investigation to determine whether your city is engaged in a pattern or practice of discrimination… Based on the information gathered in our investigation, we have determined that the city is engaged in a pattern or practice of discrimination against… Sincerely, The Department of Justice Not the note verbatim, but certainly the type of letter every city attorney dreads.

According to the 2017 U.S. Attorneys’ Annual Statistical Report, the Department of Justice (DOJ) filed more than 53,000 criminal cases that year. The majority of these filings are immigration, drug offense or violent crime cases, but there are a percentage of cases related to civil rights violations and discrimination, as alluded to in the hypothetical letter above. It begs the question of all public administrators, is your entity prepared should the DOJ file an investigation against your community? If the answer is no, it’s time to consider that such an event could occur in the future, and to properly prepare for that risk.

PREPARING FOR THE DOJ

Hopefully, your entity will never receive a letter from the DOJ, but don’t leave it to fate. Begin by implementing policies and procedures for

handling inquiries or requests from any government agency, the DOJ as well as others, such as the EEOC (Equal Employment Opportunity Council). Form a committee to address potential inquiries that include key personnel such as: risk manager, human resources manager, police and/or fire chief and, perhaps, your insurance broker and insurance carrier. Included in your policy and procedure should be clear instructions on where to forward requests from the DOJ or EEOC—and that they are given high priority, and not left on the desk of someone who is on leave or vacation. If a letter is received, the committee should meet to determine if there are any additional key personnel that need to be ad-hoc members, discuss the situation and develop a strategy for gathering data. It will be a team effort.

MARCH 2019 | PUBLIC RISK

PREPARING FOR THE DEPARTMENT OF JUSTICE

be mindful of city/county documentation requirements, properly disposing of the records once the timeframe for storage has passed. Retain and store the following documents:

Although you may never receive a letter of complaint from the Department of Justice, it still essential your public entity is prepared with the policies, practices, and community of experts it will need to protect the organization and resolve any investigation as quickly and as favorably as possible.

THE ROLE OF INSURANCE AND LEGAL

Including your insurance broker and carrier(s) in early discussions can be useful—and sometimes required under your insurance policy. It is likely your carrier is more familiar with the situation from past experience and may provide valuable insight into ensuring the process goes smoothly. If you are a small- to mid-size public entity, and/ or have no attorney on retainer, your insurance carrier can likely put you in touch with a reputable legal counsel experienced in government investigations—if local firms are not—as well as provide a discounted fee structure that can ultimately benefit your bottom line. A DOJ investigation is not the same as defending an EEOC charge, so it is essential to work with counsel who has specific DOJ experience.

THE DOJ PROCESS

The first sign of the DOJ’s interest is a request for information, typically in letter form through the U.S. mail. To make life easier when this letter arrives, a proper document retention system should be in place to ensure the requested information is readily accessible, contributing to a quick and favorable resolution. Train your staff on policy and procedures and

PUBLIC RISK | MARCH 2019

Law enforcement documentation including jail reports, videos and body camera footage, medical records from medical providers, use of force reports and police reports, reports from investigating agencies, grievances filed by inmates, and demand letters. Employment documentation including employment files, demand letters, EEOC charges and employment testing data. Based on the documentation you are able to provide, the DOJ will decide whether to file formal suit against your public entity. If a suit is filed, you will be invited to participate in settlement negotiations, avoiding the burden of contested litigation. Ultimately, the DOJ is likely seeking a consent decree which will incorporate measures to achieve compliance in your community.

THE DOJ VS. THE EEOC

The EEOC is triggered when there is a charge filed by an individual. This entity is in charge of investigations for employment claims in both the public and private sectors. The EEOC typically deals with single discrimination and more disparate treatment claims. In contrast, the DOJ will become involved if there is a referral from the EEOC or if there is enough evidence to justify its own investigation. The DOJ usually deals with class-type claims of disparate impact. A recent focus of the DOJ has been on the validity of written and physical testing exams for police officers. If your entity is using any of these types of exams to screen for potential law enforcement officers, make sure that the tests are validated for you specific entity, not just generally validated. It is worthwhile to have an expert review any testing on a rolling basis so that tests are up to date and can be justified for each specific entity’s need. If your insurance broker or carrier provides risk control benefits, they may be able to refer you to dependable vendors that provide test validity services.

STAYING OFF THE DOJ RADAR Ultimately, the goal is to remain off the DOJ’s radar entirely, and a little research can go a long way toward lowering the likelihood of an investigation. Monitor the DOJ’s website regularly for recent cases or statements made on its blog or in speeches. Recent DOJ investigations have focused on:

• Police, fire departments, jails, and correctional institutions. Investigations into the physical and written examinations for applicants, complaints of sex discrimination and USERRA complaints. • Police interactions and use of force. Utilizing body camera technology and providing training on de-escalation techniques may be beneficial. Review high- profile situations to confirm the appropriate action and to remedy any issues that may arise. • USSERA violations. The Uniformed Services Employment and Reemployment Act of 1994 entitle service members to return to their civilian employment upon completion of military service. It also prohibits discrimination based on past, present or future military service. Utilize the USSERA Employers Compliance Guide to ensure you’re following all procedures and laws. Consider posting signs in breakrooms or your employee handbook, so all employees are made aware of the rules and procedures. Lastly, stay active and connected to local and regional groups to keep abreast of activity in nearby cities and counties. Lean on your fellow PRIMA members and talk openly about investigations or policies and procedures other public entities have been through or implemented. Although you may never receive a letter of complaint from the Department of Justice, it still essential your public entity is prepared with the policies, practices, and community of experts it will need to protect the organization and resolve any investigation as quickly and as favorably as possible. Sarah Schmitz, Esq., is a claims manager with OneBeacon Government Risks.

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NOT IF, BUT HOW

BY CHUCK GOODMAN

PUBLIC RISK | MARCH 2019

HERE’S AN OLD ADAGE THAT STATES, “SILENCE IS GOLDEN.” But in today’s workplace, the reality is that “Silence is Deadly.” Hazards in the workplace become starkly obvious after someone gets hurt, and it’s easy and somewhat comforting if we assume that the hazard that injured or killed our employee was unknown by all. Unfortunately, that’s seldom true. Many times, the risk or hazard that led to the injury was known by someone. Before we get deep into this subject, some background is useful. Most accidents happen because of unsafe acts.

In 1931, W. H. Heinrich published Industrial Accident Prevention, where he postulated that 88 percent of accidents are caused by unsafe acts, only 10 percent occur from unsafe conditions (for those that automatically do the math, the other 2 percent were attributed to Acts of God). Although his research was poorly sourced, highly subjective, and affected by apparent biases, subsequent studies have consistently agreed that the vast majority of workplace injuries are caused by unsafe acts (studies range from 80 to 96 percent). Many current programs, such as Behavior-Based Safety (BBS) rely on the premise that behavior is the primary cause of accidents. Unsafe conditions involve the work environment and includes: lack of guard or safety devices, hazardous atmospheric conditions and poor housekeeping standards. Unsafe acts are those activities performed which can include using the wrong tools, taking shortcuts, or failing to wear proscribed personal protective equipment. Those unsafe conditions stem from management policies, procedures or facilities, while the unsafe acts rise from the behavior of employees.

MARCH 2019 | PUBLIC RISK

DEADLY SILENCE It’s important to note that unsafe acts do not automatically equate to employee misconduct. It’s easy (and sloppy) for an organization to adopt a blame-the-worker mentality. There has been some pushback against establishing a BBS program because of the perception by some that the program is designed to play “gotcha” with employees. What’s remarkable is while many organizations readily agree that most accidents are from unsafe acts, their safety program has a different focus. In my experience, many organization’s safety program fall into one of the following three areas: Regulatory. These organizations are all about OSHA and other regulations. The vast majority of their safety resources goes towards compliance. The problems with this approach is twofold; first, if you carefully read the OSHA standards, directives and opinions, you quickly find that their focus is much more based on unsafe conditions, not unsafe acts. There are a few performance standards, but very few. Secondly, the OSHA standards, directives and

opinions identify the minimum acceptable standards. It’s what an organization has to do to stay out of trouble. You can comply with every single word of the OSHA regulations and still have serious accidents. Many safety professionals consider the OSHA regulations to be a legal standard, and not a safety standard.

and what they need to change to keep it from happening again. By the way, having an effective accident investigation that determines causal factors and take corrective action is a good thing. It just can’t be the only thing. But if our focus is looking backwards, it’s hard to go forward.

Inspections. Some entities try to inspect their way to a safe workplace. Using forms, and checklists, they swarm the work floor, searching for the elusive stray guard, loose wire or unlabeled spray bottle. I am not anti-inspection, as a matter of fact, that is one of the most interesting parts of my job. But it can’t be the only thing, because most of what is uncovered are unsafe conditions. If you spend 80 percent of your time and talent trying to uncover 10 percent of your potential causes, you will never have a successful accident prevention program.

Once we accept that the majority of the risks to our employees come from unsafe acts, the next step is to determine who has knowledge about these risks.

Historical. Some organizations spend their resources on constantly chasing the last accident. When a loss occurs, they immediately focus all their attention to how it happened,

THE ICEBERG OF IGNORANCE

In 1989, a researcher named Sidney Yoshida published the findings of a large study he had done where he looked at how aware various people were of the problems in an organization. He found that the front-line employees were the only group that knew about all the problems (collectively). It makes sense that the people who do the work are most familiar with the work. Yoshida also found that front-line supervisors were aware of 74 percent of the problems, middle managers—9 percent, and the executive suite—4 percent. The specific numbers in your

In 1989, a researcher named Sidney

Yoshida published the findings of a large

study he had done where he looked at how

aware various people were of the problems

in an organization… Some concluded from

this study that upper management was

being derelict in not knowing everything

about everything, but that wasn’t the point.

After all, there are plenty of issues that

management deal with every day that remains

unknown to the rank and file. But we want to

acknowledge that, as management, we don’t

have all of the answers. As I like to remind

supervisors when I conduct training, “Every one

of your employees know something about the

job that you don’t know.” 12

PUBLIC RISK | MARCH 2019

organization may differ considerably based on size, structure and leadership. The organization that Yoshida studied has a significant hierarchical leadership model, which is a traditional, top-down approach. I speculate that more collaborative workplaces would have quite different numbers, but it is reasonable to assume that this issue will exist to a significant degree in any organization. Some concluded from this study that upper management was being derelict in not knowing everything about everything, but that wasn’t the point. After all, there are plenty of issues that management deal with every day that remains unknown to the rank and file. But we want to acknowledge that, as management, we don’t have all of the answers. As I like to remind supervisors when I conduct training, “Every one of your employees know something about the job that you don’t know.” The main point is that most accidents happen because of unsafe acts, and only the front-line employees know all of the unsafe acts that they and their co-workers do every day. Which brings us to our third main point:

EMPLOYEES AREN’T TALKING

There have been numerous studies conducted that support the premise that there are often times when an employee knows that there is something wrong, but remains silent. Some of you may have had experiences that support this. If you have ever conducted an accident investigation where a witness says, “Well, it was bound to happen sooner or later” or, “It was only a matter of time”, then you know that they knew their behavior was risky. If you have an accident in your workplace and no one is surprised, then it was a known risk that hurt your employee. One study found that 51 percent of respondents said that they generally felt comfortable speaking up in their current organization, but 85 percent of the same group said that, at least on one occasion, they felt unable to raise an issue even though they thought it was important. Fifteen percent said that they have never been able to speak up. That’s three out of 20!

So what are the reasons for employee silence? The biggest two reasons can be summed up as Fears and Beliefs. Fear interferes with the effective management of an organization, and many thought leaders have addressed it. One of Edward Deming’s Eight Principles is “Drive out Fear.” Peter Drucker wrote, “Great fear coerces, lesser fears destroy motivation.” Tom Peters, in his seminal book, In Search of Excellence, said “Don’t fear failure.” In a study by Frances Milliken and Elizabeth Morrison, the authors found the greatest fear was of being labeled or viewed negatively, followed by fear of damaging a relationship. Most people do not want to be seen as a troublemaker or a tattle-tail, and many think that their work relationships (trust, respect, acceptance and support) are important. Fear of retaliation or punishment is also a major reason employees don’t speak up. Sometimes employees don’t speak up because they feel it will not make a difference. Why should they put themselves at risk if nothing will get done? Unfortunately, I have found many times where this belief was realistic. Beyond fears and beliefs, a person might not speak up because of lack of experience or tenure. Or they may sense that the culture is not supportive. Or they could already have a strained relationship with their supervisor. So to sum up everything we have discussed to this point; • Most accident will happen because of unsafe acts • Employees are the only ones who know all of these unsafe acts • And they’re not talking

CHANGING THINGS

How can an organization get employees to speak up when they see something that can hurt themselves or others? The first step is to acknowledge that employees, for whatever reason, feel it is risky to speak up. If you want employees to speak up, you and all levels of supervision have to convince them that you sincerely want to hear about problem, issues and hazards.

It’s important to note that the employee may not be the only one that is reticent about reporting bad news upward. There is a tendency in hierarchies to impede the upward transfer of information when the news is bad. So this impediment can occur at any level. We have to make sure that all levels know (and believe) that knowledge is welcome. What’s the prevailing attitude in your workplace? Are whistleblowers considered heroes or troublemakers? Organizations might consider systems that bypass the traditional hierarchy. Having a way for employees to maintain confidentiality, or providing an impartial ombudsman that is outside of the organizational hierarchy can help. As a commercial insurance loss control consultant, I sometimes act as a conduit from employees to management. The most effective way to get employees to open up and tell us what’s wrong is to drive out fear. Most people want to be good employees, but sometimes the message that they receive is that a good employee remains silent, doesn’t rock the boat. Sometimes we need to get specific and define our definition of a good employee as one who confronts and communicates problems. When I was a safety manager for a manufacturing company, I would conduct new employee orientation. As part of the orientation, I would tell them that because they are new employees, it is our expectation that they do not know everything. I would emphasize to them that a “good employee” is one that asks questions when they don’t understand something, and tells someone when things don’t seem right. Employee silence can be deadly. If we assume that silence means that there are no problems, employees will keep getting hurt or killed by readily identifiable hazards that we have a duty to know about and act on. Chuck Goodman is a senior loss control services consultant with Arthur J. Gallagher and Co.

MARCH 2019 | PUBLIC RISK

Further your public sector risk management education without leaving the office! This Webinar series features top presenters delivering risk knowledge to your desktop!

PRIMA’S 2019 RISK MANAGEMENT

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Compassionate Wisdom: RECOVERING FROM CATASTROPHE BEGINS WITH A PREDICTION BY STEVEN MOSKOWITZ, MD

ATASTROPHIC INJURIES ARE LIFE-THREATENING, COSTLY AND LIKELY TO CREATE PERMANENT IMPAIRMENT AND

LONG-TERM MEDICAL NEEDS. SuchÂ complex cases often fall

into the cracks in our fractured healthcare system. Understandably, injured

workers and their families may fear that their quality of life is gone forever.

MARCH 2019 | PUBLIC RISK

COMPASSIONATE WISDOM: RECOVERING FROM CATASTROPHE BEGINS WITH A PREDICTION

n these cases of spinal cord injury, brain injury, multiple trauma

and major burns, early systematic claims management is crucial. The injured worker needs help to navigate immediate medical

and non-medical challenges.

A catastrophic claims management program can be designed to predict expected results and coordinate compassionate personalized care to reach them.

THE NATURE OF CATASTROPHIC INJURIES

Catastrophic injury claims defy everyone’s desire for quick, dramatic and permanent resolution. Expert emergent clinical care is vital to save lives and mitigate secondary damage from the initial injury. Beyond that, these cases frequently exhibit delayed medical stability and functional recovery, avoidable medical complications and repetitive diagnostics. Other difficulties include poor care planning, inadequate communication, an over-reliance on medication and technology and a trial and error approach to complex problems. Overwhelmed and lacking clinical guidance from a specialist who will educate them on evidence-based medicine and practical risks and benefits, vulnerable patients often simply follow provider’s recommendations.

SEVEN STEPS TO A SUCCESSFUL RECOVERY

You can strengthen your workers’ compensation case management program with a systematic approach from Day 1. A methodical and proactive system promotes the desired results through an individualized care plan. To illustrate these recommendations, we’ll consider Mr. G, a 27-year-old laborer. His recent work injury has left him with a fracture in his upper back, a spinal cord injury causing paraplegia (paralysis of his legs) and multiple rib fractures.

PUBLIC RISK | MARCH 2019

1. CLARIFY THE MAJOR AND MINOR DIAGNOSES. It is well known that minor, but significant, injury-related comorbidities can be missed during the initial lifesaving treatment. For this reason, trauma centers perform a tertiary examination once the case is stabilized. Additionally, an individual’s specific injuries combine to create unique recovery challenges. Mr. G’s early care was dominated by respiratory complications from his severe rib fractures. Equally important are psychosocial factors that often do not become known until later in the recovery process. Having a clinician with expertise in these diagnoses review the records and discuss the findings with the treating physician is invaluable. A proper assessment ensures you are aware of the factors that will promote an optimal recovery short- and long-term. 2. DETERMINE SEVERITY OF THE INJURY AND THE IMPAIRMENT. Recovery expectations (long-term outcome) and predicted speed of recovery are based on injury severity. Standardized measures of severity, such as the ASIA/ISCOS classification system for spinal cord injury and the Glasgow Coma Scale and the Coma Recovery Scale-Revised for acquired brain injury, can help measure an individual’s status along a recovery continuum. Other diagnoses have corresponding scales. Many of these scales, though not perfect, can predict the injured worker’s long-term outcome.

This can guide what resources should be made available (versus those that are not medically indicated). Note that interpretation of the measurements requires some expertise and the results must be taken in the context of other concurrent diagnoses. Mr. G was classified as having T4 paraplegia, ASIA B. This means he is paralyzed from the mid-chest down and has all the impairment that comes with that. However, the ASIA B designation means there is potential for some recovery, even a small chance to walk again. This predicts a longer rehabilitation course. At the same time, Mr. G’s rib injuries pointed to possible nerve injury under his left arm and a loss of arm function, which could significantly limit his overall recovery and independence. 3. PREDICT COMPLICATIONS AND DETERMINE A MITIGATION STRATEGY FOR EACH. Each diagnostic group—major burns, SCI, ABI, multiple trauma—has many risks of numerous acute and long-term complications. These may include wound infection, chronic wounds, hardware non-union, skin or wound contracture, depression, non-compliance and chronic pain. These complications can be a rabbit hole from which a case may emerge forever changed and unlikely to get back on track. Chronic pain alone can add tens of thousands to hundreds of thousands of dollars to the reserve on a case. Osteomyelitis can lead to multiple operations

and even amputation, at a similar cost. Confront these risks proactively by remaining on the lookout for early signs of these complications. Then, act to prevent and/or mitigate the problem and expense. Mr. G did indeed have an injury to the nerves in his left arm and pain limiting his use of the arm. He also had a cyst in his spinal cord that could be contributing to pain and threatened his future arm function. Treatment interventions, including surgery, were considered and pursued. 4. PREDICT LONG-TERM OUTCOMES AND DETERMINE THE MOST DIRECT TREATMENT STRATEGY TO THOSE RESULTS. This is the big picture approach. It is also a way to get a more accurate understanding of the long-term costs. Ask: • Where will this case end up? • What are realistic expectations? • How do we help the injured worker get there efficiently? • What will it cost? Most treating physicians are not trained to predict long-term treatment outcomes or

complications. Traditional medicine is more of a “see how it goes” endeavor. Studies repeatedly reveal the challenge in getting many treating physicians to use objective tools. Among other reasons, physicians say they believe their experience is sufficient. It’s important to identify a clinician who can synthesize the medical information and the severity scales, then make functional and medical outcome predictions using that information to develop the care plan. Ideally this specialist is well versed in the clinical topic and insurance concerns. A plan was made for how Mr. G would function whether his arm recovered and if it did not. Specialized testing was arranged in an effort to prognosticate the nerve injury. A monitoring plan was set for his arm function. Likely outcomes of the spinal cord injuries were established as part of discharge planning. 5. UNDERSTAND EARLY THAT THESE CONDITIONS ARE BIOPSYCHOSOCIAL— NOT JUST MEDICAL. Even the most stoic person can struggle to accept and recover from an injury and a disability. This is where compassion and empathy become important in the case predic-

tion and management approach. Emotion, health literacy, family issues, depression, anxiety, avocational activities and more affect how people report symptoms, cope with recovery, comply with treatment and accept residual disability. These factors can dramatically affect speed and extend of functional recovery. Being creative and mindful of the individual’s personal needs, culture and coping style will help you to incorporate the right resources and providers. A psychosocial assessment in your case conceptualization allows you to monitor psychosocial issues and intervene appropriately. It is critical to be aware of and to address any condition that may delay or limit medical and functional outcomes. Mr. G focused on his physical discomforts initially, managing nausea and severe pain. It is expected that as the nature of his disability becomes apparent, he will need help coping. Though his ASIA B classification provides hope, there is the risk of false hope of recovery as well. 6. HAVE A PROCESS TO NAVIGATE AND STEER A CASE WHEN IT GOES OFF TRACK. Even the best plan may need to change when

Equally important are psychosocial factors that often do not become known until later in the recovery process. Having a clinician with expertise in these diagnoses review the records and discuss the findings with the treating physician is invaluable. A proper assessment ensures you are aware of the factors that will promote an optimal recovery short- and long-term.

MARCH 2019 | PUBLIC RISK

COMPASSIONATE WISDOM: RECOVERING FROM CATASTROPHE BEGINS WITH A PREDICTION

the unexpected occurs. The care plan roadmap may have made sense initially, but you also need GPS to recalculate. This requires processes that systematically conduct close monitoring, ensure ongoing communication among all parties, including the injured worker and regularly involve your clinical expert. For Mr. G, tracking neurological progress will be vital to differentiate true from perceived functional improvements. It will be important to help him manage his pain while avoiding the pitfalls of pain medication and other interventions. 7. INVEST IN THE OUTCOME. It is tempting to try to carve out hospital days and apply necessary utilization measures. These are appropriate actions. But it is important to temper the short-term approach with a reality check on the longer term issues. Is potentially

saving a week in rehabilitation, for example, going to facilitate the recovery plan, or might it lead to unintended consequences such as development of a pressure wound at home? Carefully weigh the consequences of short-term decisions. Mr. G was referred to a spinal cord injury center of excellence where his complex condition is appropriately managed. When he was admitted to this program, specialists identified that his back fusion was not adequate and additional surgery was quickly performed. Mr. G has a comprehensive rehabilitative care plan that provides a baseline from which to launch his long recovery process.

can gain better foresight into the recovery of a catastrophically injured person. A process that begins with a careful case assessment and focusses on reaching a predictable outcome will likely conclude with greatly restored quality of life and a better medical recovery at a lower overall cost. Dr. Steven Moskowitz is a specialist in physical medicine and rehabilitation with clinical expertise in complex musculoskeletal and neurologic rehabilitation including spinal cord injury, multiple sclerosis and chronic pain. He is the senior medical director with Paradigm.

COMPASSIONATE, PERSONALIZED CARE

Mr. G’s ongoing case is a real life example of how workers’ compensation claims managers

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MARCH 2019 | PUBLIC RISK

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