November 1, 2007
by Susan Gurevitz
In 2001, the Houston Independent School District had 150 employees with five or more previous claims under their belts and who were out of work collecting workers' compensation. One person had racked up 17 claims over the previous five years.
Tom Dolan, the claims manager, wanted to know whether these claims were legitimate and how he could break the cycle of these repeat claims.
He came up with an innovative idea for a back-to-work program to tackle this problem. After one month of that program, 17 people came back to work, and he cleared the books of the rest of these employees within a year.
Programs like that are one of the reasons the Houston Independent School District was chosen as the nonprofit winner of the 2007 Theodore Roosevelt Workers' Compensation and Disability Management Award.
After all, not every operation can reduce its lost-time claims to 34 days from 152 days in only four years.
The HISD is the largest urban school district in Texas, with 309 schools within 312 square miles and 31,500 employees. With an annual payroll of $1.1 billion, the district educates 235,000 students. It has a fleet of 1,000 buses that travel more than 70,000 miles per day.
It employs 13,000 teachers, 600 police officers (it has a certified police department that operates just like any other law enforcement office in the state), 1,000 drivers and mechanics, 2,100 employees in trades and a food service staff of 1,700.
To get a better handle on each employee's duties about five years ago Dolan contracted with BTE Technologies of Denver to create detailed job descriptions for each employee category.
The descriptions included physical-demand analyses of each job, such as bending, pushing and pulling. "Each report is 16 to 20 pages long," Dolan says. Three local BTE-certified facilities conduct what are called functional capacity evaluations that mimic the type of activity an employee does on a regular basis. "We wanted it to be objective and repeatable," says Dolan.
For example, bus drivers are required to check the lug nuts on each tire to make sure they're tight before they pull out of the bus barns to pick up the students. That means they have to be able to squat down at each tire. Also, each bus is equipped with a porthole on the roof that can be opened if children have to exit the bus in an emergency. That requires pushing up an overhead hood that weighs 51.6 pounds.
If a bus driver is injured on the job, and is home collecting workers' comp benefits, he must be able to accomplish those tasks before returning to work at full duty.
"The physical testing is based upon the physical description of the job. For heavy lifting, for example, an employee would have to lift something from their shoulders above them, so there's a bar they have to push up upon," Dolan says. An employee's heart and respiration are also monitored.
After the testing BTE specialists review the testing results to make sure the proper protocols were followed and the calibration was correct. Here's the kicker: A bus driver cannot return to work until he successfully completes the physical tests BTE has designed for a bus driver's particular duties, like squatting or lifting heavy equipment.
In some cases the employees return to work. But in other cases, says Dolan, "We've determined that they can't safely return to duty and can't do the job without hurting themselves. If we can't reasonably accommodate the bus driver to perform the essential functions, then they can't go back to work." Dolan makes every effort to reassign the employee.
"But there's no requirement in the district," he says, "so if the employee can't do the job anymore, we can't create a job for him." And the employee loses his job along with his supplemented health insurance and other school district benefits, "which are very rich," Dolan says.
In Texas, workers can receive temporary workers' comp benefits for up to two years, with a maximum of $670 a week. The workers receive 70 percent of their salaries. At the end of the two years, if employees are still at an impairment of 15 percent or greater, they can continue with benefits up to eight years. There are no limits on medical benefits, and employees could be treated for a lifetime. Still, some employees earn $1,000 a month, so living on $700 a month may not be so appealing.
Clearing "Frequent Flyers"
This is the same return-to-work system that Dolan used to clear up those 150 "frequent flyer" employees who were home collecting workers' comp benefits. If employees had been off work for 60 days or more, or if those with impairment injuries were at least 90 percent recovered or had three or more claims over the past five years, Dolan would not accept them back to work until they could safely return.
What reasonable accommodations did he have to make? That meant putting people on light duty who qualified until they were ready for full-duty release. They could not return to work until they successfully completed the physical tests BTE had designed for their particular jobs. But here's the catch: If they couldn't complete those tasks, they lost their jobs, as long as the action was approved by the Americans with Disabilities Act committee.
In the first year of this program, 21 people lost their jobs. Dolan says it wasn't a case of "gotcha."
"There's a level of activity that too often is missed," he says. "Do you really want people doing work for you that they really can't do. That is the message that's out there now."
After the first go-around with this program, the employees were shocked. For example, Dolan determined that a special-education teacher who had a physical analysis test done would need assistance accomplishing her duties. Her doctor said he didn't expect her to improve. She simply couldn't do her job.
"She said, 'I've never had to do this before,' " when she was tested, Dolan recalls. No one had. "The net result was rather sad, but it was not a matter of a witch hunt. It was really based on a safe environment."
Using the FMLA
Dolan has also implemented another inventive return-to-work program based upon the Family and Medical Leave Act, first passed by Congress in 1993. Dolan points out that it's an entitlement, not a benefit.
The law enables most full-time employees to take up to 12 weeks of unpaid, job-protected leave over a 12-month period for family issues such as the birth of a child, caring for a seriously ill relative, or recovery from a serious injury or illness.
After doing his own research, Dolan realized he could apply this act to his injured employees who weren't eager to return to work. "The (FMLA) law says (for those qualified for FMLA benefits), when an employee is injured, we're required to protect their job for 12 weeks with no pay," Dolan explains.
He employs the law in tandem with workers' comp and the employee's paid-time-off benefits. Injured employees receive their workers' comp benefits but are also required to use their existing accrued sick leave and vacation days at the same time.
But because they're under the FMLA jurisdiction, they receive periodic advisements informing them that they have a choice. They can continue to receive workers' comp benefits up to the limit, but if they don't return to work and have exhausted their accrued leave--at the end of the 12-week leave period--they lose their jobs and have to reapply to get them back.
"When (the FMLA program)'s run concurrently independent of the workers' comp program, it's amazing how people get better," Dolan says. In fact, his average loss-time statistics used to run 22.7 weeks before he instituted the FMLA program. The loss-time average is now down to five weeks.
Of course, there's always abuse of any workers' comp system--Dolan estimates it's at least 80 percent--and some doctors and lawyers will insist the worker needs more time off to recover. The FMLA system helps to mitigate that to some extent. At HISD, roughly 90 percent of the 500 or so employees who are off work are under the umbrella of FMLA.
The HISD workers' comp system is so large that its third-party administrator, Broadspire/Crawford, has a 12-member team on site. For four years Broadspire has handled the less than routine claims with coordination of the transitional-duty department and the FMLA process.
Rondy Spardella, client dedicated unit manager, says only twice has an employee been injured seriously enough, called catastrophic, that the employee didn't fall under the FMLA restrictions. But the FMLA system works for most employees.
"There's an ownership (among most employees)," Dolan says. "You can't provide safety, risk management and a successful workers' comp program without it."
SUSAN GUREVITZ lives in Philadelphia.
November 1, 2007
Copyright 2007© LRP Publications