Studies: Getting a handle on two comp cost drivers: motor vehicle accidents and claim denials

Limiting motor vehicle accident costs

In its 2018 Driver Safety Risk Report, Motus, a Boston-based vehicle management and reimbursement platform, estimates that about 40 percent of vehicle accidents are work-related, while 53 percent of vehicle crash injuries cause employees to miss work, costing employers $56.7 billion in 2017. The costs include medical care, property damage, legal expenses, lost wages, increased insurance, and lost productivity. When an employee has an on-the-job crash that results in an injury, the average cost is $74,000 to the employer.

While the figures are daunting, the company offers these solutions for reducing collision rates by as much as 35%:

  1. Expand driver risk management approach beyond basic Motor Vehicle Record (MVR) checksMVRs aren’t always a good indicator that a person is a safe and competent driver. If a person lives in a city and doesn’t drive much, the chances are they have a stellar driving record. Yet, their road experience is very limited. Employers need to drill down to evaluate the record.
  2. Mandate driver safety programs for all drivers, including those in mileage reimbursement programsOnly 42.6 percent of companies currently mandate driver safety programs for employees in company-owned vehicle programs. That number drops to just 19.5 percent for employees in mileage reimbursement programs. With mobility increasing, driver distraction at an all-time high, and new technology emerging in vehicles every day, training takes on increased importance and should be a top priority for your business.
  3. Consider a fixed and variable rate (FAVR) reimbursement programUnlike the one-size-fits-all car allowance or cents-per-mile reimbursement programs, fixed and variable rate (FAVR) programs reimburse employees for their individualized fixed and variable costs. Fixed costs are constant, but vary from employee to employee and include insurance premiums, license and registration fees, and taxes and depreciation. The variable costs are based on the number of business miles driven and include gas, oil, maintenance and tire wear.Such an approach ensures that the employer can verify that the driver is complying with the insurance coverage requirements and that they are limiting mileage to work-related trips only, “thereby mitigating exposure to costs associated with off-hour accidents.”

Managing claim denials for cost control

While a study by Lockton Cos. L.L.C. found that the number of claim denials for injured workers is increasing, rising from 5.8% in 2013 to 6.9% in 2017, 67% of those initial denials were paid within 12 months. What’s even more disconcerting is the increased cost of the denied claims that were eventually accepted. Based on an examination of 273,000 claims from 150 Lockton clients between 2013 and 2017, denied claims cost 55% more on average at the 60-month mark: $15,694 instead of $10,154 for an accepted claim.

This increased cost is understandable because a worker with a denied claim usually will seek medical care from the primary care physician and the costs will not be subject to a negotiated workers’ comp fee schedule. The authors are not suggesting that companies deny fewer claims but are urging companies to look closely at what is being denied and the process.

“Take a closer look at your company’s converted denial rate, and whether savings from indemnity and medical costs are enough to offset increased expense on denied claims that end up paying out,” note the authors. Look at the claims that were denied and overturned and see if there are common threads. Is it an internal decision or a decision on the part of the carrier? Are they concentrated in one division? Has there been an increase in denial rates and, if so, why? Pressure to reduce costs or increased focus on fraud?

The study revealed the top 10 reasons for claims denials: no medical evidence; no injury per statutory definition; reservation of rights; pre-existing condition; idiopathic condition; intoxication or drug-related violation; non-work-related stress; failure to report accident timely; doesn’t meet statutory definition of employee; and misrepresentation. The rate at which denial was converted to paid varied with the reason. For example, when “willful intent to injure oneself” was the reason for denial, 89% of the claims were converted to paid. For “pre-existing condition,” the conversion rate was 69%.

In every industry, converted denials cost more than non-denied claims, but some industries vary significantly from the overall averages. Healthcare experiences lower average differences, but Administrative and Support and Waste Management and Remediation Services, and Manufacturing incur higher claim costs than the national average.

There were variations by state also. California has a very high conversion rate compared to the national average, whereas Florida and Texas have lower rates. Litigation is also a major factor. According to the study, 70.6 percent of denied lost-time claims will be litigated, which is more than twice the 27.5 percent litigation rate for non-denied lost time claims.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Employee with mental illness can be terminated for inappropriate conduct

In Medina v. Berwyn South School District 100, N.D. Ill., a school district employer that terminated an administrative employee who recently returned from FMLA leave for major depression and generalized anxiety disorder did not violate the ADA or the FMLA, according to the U.S. District Court for the Northern District of Illinois. When she returned to work she shared an office with two other administrative assistants and when asked by the principal to translate a letter argued it was difficult to concentrate and she had too many other things to do.

When she met with the principal, she was told she was insubordinate and, feeling anxious, called her therapist who told her to call an ambulance. After hanging up on 911 twice, she placed the call and when leaving on the gurney she yelled at the principal and assistant principal in front of the students. Her doctor sent a note asking to place her on medical leave, but the district conducted an investigation and decided to terminate her due to misconduct.

She filed suit claiming she was discharged because of her disability, but the court found “when an employee engages in behavior that is unacceptable in the workplace… the fact that the behavior is precipitated by her mental illness does not present an issue under the Americans with Disabilities Act; the behavior itself disqualifies her from continued employment and justifies her discharge.”

Adverse action against an employee over the fear that the employee will develop a disability nixed by court

An applicant received a conditional offer of employment from Burlington Northern Santa Fe pending a medical evaluation, among other things. The company believes that hiring individuals for a safety sensitive position who have a body mass index of 40 or greater, pose a significant risk for diabetes, sleep apnea, and heart disease. While the applicant had none of these, his BMI was 47.5.

The company withdrew the offer and the applicant sued under the ADA. The company and the court agreed that the applicant was not disabled by his obesity, but the U.S. District Court, Northern District of Illinois found that there were triable issues as to whether the company treated him as if he were a “ticking time bomb” who at any time could be unexpectedly incapacitated by obesity-related conditions.

While the company pursued a business necessity defense, the court found it was impossible to determine whether it was truly necessary to exclude individuals with Class III obesity from safety-sensitive positions. Shell v. Burlington Northern Santa Fe Railway Co.

Workers’ Compensation
Supreme Court defines Independent Contractors – California

In a groundbreaking decision, Dynamax vs The Superior Court of Los Angeles County, the Supreme Court rejected “The Borello test,” a ten-point test which was used as a standard test for employment and applied the much narrower three factors of the ABC test: i.e., to show that a worker is free from its control, performing work outside the usual course of its business, and customarily engaged in independent work.

This case was decided for the purposes of the state’s wage orders, and not directly related to workers’ compensation, but many speculate it sets the stage for more workers being designated as employees.

Benefits for treatment from physician not approved by employer denied – Georgia

In Starwood Hotels & Resorts v. Lopez, the Court of Appeals overturned a judge’s order awarding an injured worker payment for treatment by the doctors she selected without the approval of her employer. The employee slipped and fell and initially went to one of the approved facilities and was diagnosed with an elbow fracture. When she returned to work, the hotel had changed management and she was assigned to a less physically demanding position, but stopped working because of continued pain and sought treatment from her own physicians. When she filed for reinstatement of her TTD benefits, Starwood requested a hearing to determine if it was liable for additional benefits.

An ALJ determined that Starwood’s hearing request had effectively been a challenge to her claim, which entitled her to choose her physician. After a series of appeals with different results, the Court of Appeals found Starwood’s hearing request was not the same thing as denying benefits, but the TTD award was appropriate.

Medical providers can’t charge interest on late workers’ comp claims – Illinois

In Medicos Pain & Surgical Specialists S.C. and Ambulatory Surgical Care Facility LLC. vs Blackhawk Steel Corp, the medical providers sought to recover $37,229 in interest under the Workers’ Compensation Act for long-awaited payments related to care for an employee who fell four stories off a truck in 2010. In overturning the trial court’s ruling, the appellate court found that even though the Workers’ Compensation Act provided for interest payments, the medical service providers are not members of the class for whose benefit the Act was enacted. It noted this type of dispute belongs with Illinois’ Workers’ Compensation Commission, and not in the courts.

 

Carrier’s subrogation rights upheld in spite of alleged misconduct – Illinois

In Estate of Rexroad v. Mid-West Truckers Risk Mgmt, the court ruled that a carrier’s right to reimbursement is “absolute,” and cannot be denied because of alleged wrongdoing. When there is a recovery available from third parties who are responsible for the injury, “fairness and justice require that the employer be reimbursed for the workers’ compensation benefits he has paid or will pay.”

Spider bite compensable – Illinois

In Jeffers v. State of Illinois/Tamms Correctional Center, an educator worked in a classroom at a correctional center that was not open to the public and was known to have pest problems in the past. She was bit and diagnosed with a brown recluse spider bite and treated with antibiotics, pain medication, and steroids.

While an arbitrator denied benefits, the Commission reversed, noting the educator was exposed to a greater risk of encountering insects and spiders at the prison than that of the general public.

Employee definition in Independent Contractor statute does not apply to workers’ compensation – Massachusetts

The Supreme Judicial Court ruled the state’s independent contractor statute does not determine employee status for workers’ compensation benefits. The reviewing board of the Department of Industrial Accidents noted that the law governing employment relations in the state is far from uniform.

The case involved a newspaper delivery service that pays delivery agents to distribute the newspapers to subscribers. The agent had signed several contracts, indicating she was an independent contractor, was allowed to subcontract her deliveries, supplied all her own materials, purchased and collected independent contractor work insurance, and filed her taxes as an independent contractor.

To determine whether a worker is entitled to wage and hour protections, minimum wage or overtime, a three-prong independent contractor test is applied, but whether a worker is entitled to workers’ compensation depends on an analysis of twelve factors.

Employer cannot be ordered to reimburse for medical marijuana – Michigan

In Newville v. Michigan Department of Corrections, the workers’ compensation magistrate found that a correction officer’s injuries were sustained as a result of altercations with inmates, and prescriptions for Oxycodone, Fentanyl, and medical marijuana for back pain were reasonable and necessary. However, pursuant to the workers’ compensation law and the Medical Marijuana Act, the magistrate cannot order the employer to reimburse for the cost of medical marijuana, even though the worker’s use of marijuana helps reduce his use of prescribed opioids.

Failure to adequately train employee trumps employee’s violation of safety practices – Missouri

In Elsworth v. Wayne Cty., an employer sought a reduction in comp benefits because an employee had failed to wear a seat belt or safety hat. An 18-year-old employee had been on the job less than a month when the dump truck he was driving overturned, leaving him in a vegetative state for the rest of his life. In making its decision, the Commission determined that the employer had not adopted any training program and had not monitored employee compliance with any rules.

Supreme Court upholds statutory benefits for Mesothelioma claims – Missouri

A constitutional challenge to a 2014 statutory amendment that allowed workers to collect a lump-sum payment of benefits if they develop occupationally caused mesothelioma was rejected by the Supreme Court in Accident Fund Insurance Company; E.J. Cody Company Inc. v. Robert Casey, Dolores Murphy. In Missouri, employers have the option of accepting liability for occupational diseases under Section 287.200.4 or taking the risk of defending against a civil suit. In this case, the employer accepted liability and insured the risk.

The Supreme Court ruled that the statute providing the enhanced benefits is not unconstitutionally retrospective. As such the widow and the eight adult children were entitled to benefits. Section 287.200 is unlike other workers’ compensation provisions in that it does not condition a child’s recovery upon dependency status.

Increase in impairment and level of disability necessary for a change in benefits – Nebraska

In Moss v. C&A Industries, a laborer employed by a temporary agency suffered serious injuries when a crane dumped a load of iron on him and he has not worked since. After there were complications from his first knee surgery, he was found to be permanently and totally disabled. Later, the court approved a right knee arthroplasty, noting the altered gait from the left knee surgery caused the injury.

When he sought a modification of benefits, the court found under Nebraska law a worker must show a change in impairment (physical condition) and disability (employability and earning capacity). Since there was no change in disability, the appellate court said the compensation court erred in modifying his award.

Withdrawal of partner does not nullify Workers’ Comp coverage – New York

In Matter of Smith v Park, a father and son operated a farm business as a partnership and subsequently, the father withdrew. A minor-aged boy was killed in an accident and his mother argued that there was no insurance in effect at the time. However, the appellate court ruled that a change in partners did not void the workers’ compensation insurance policy, nor the carrier’s acceptance of liability for the death of a teenage employee.

Injured employee cannot sue employer’s alter ego entity – New York

In Buchwald v. 1307 Porterville Road, an Appellate Court ruled that an employer’s immunity from civil suit is extended to the employer’s corporate alter egos. The employer had formed two single-member-owned LLCs on the same day for the purpose of running a horse farm. One entity owned the property and leased it to the other entity, which employed the injured worker. According to the court, an entity can establish itself as the alter ego of an employer by demonstrating that one of the entities controls the other, or that the two operate as a single integrated entity and, in this case, they integrated or comingled assets, had the same insurance policy, and were jointly operated. Since the real estate owner was the alter ego of the employer, it was also protected by exclusive remedy.

Fatal heart attack compensable in spite of health risk factors – New York

In Matter of Pickerd v. Paragon Envtl. Constr., Inc., a construction worker suffered a heart attack while assisting a coworker with the removal of an underground gasoline tank and died three days later. He was a smoker and had high cholesterol and there was conflicting testimony from physicians as to what caused the heart attack.

In awarding benefits, the appellate court noted the decedent’s work need not be the sole agent of death; it was sufficient if it was only a contributing factor.

Smoking break injury not compensable – North Carolina

A city employee, working on a utility crew, smoked his first e-cigarette during a lunch break in a city truck at a gas station and had a coughing fit. He stepped out of the truck, passed out, and injured his right hip, back, and head and could not return to his former position. He was diabetic and had not been taking his meds.

The case went through several appeals and, in each case, the court determined he was not eligible for benefits. His fall was due to underlying medical conditions and his personal decision to smoke. It was neither work-related nor dictated by his employer.


For new employee unexpected weight of box makes lifting injury compensable – North Carolina

In Doran v. The Fresh Market, Inc., et al.,a cheese specialist had worked in his position for nine weeks, and he described his job as routinely involving lifting boxes up to 25 pounds. He injured his shoulder and arm when he lifted a box that had no weight displayed and was heavier (40 lbs) than he thought. While the company argued against benefits, noting that a new worker would “basically have no regular routine,” the court observed that new conditions of employment don’t become part of a worker’s regular course of procedure until he “has gained proficiency performing in the new employment and become accustomed to the conditions it entails.”

Coming and going rule nixes foreman’s benefits – Pennsylvania

In Kush v. WCAB (Power Contracting Co.), The Commonwealth Court ruled that an electrical foreman was not entitled to workers’ compensation benefits for his injuries from a car accident that happened while traveling to a job site. He worked for two employers and managed multiple jobs during the day. Typically, he drove directly from his home to his assigned job site.

While managing nine jobs, he suffered injuries in a car accident driving to a job site where he had worked almost exclusively the week leading up to the accident. Compensation was denied based on the “coming and going rule” and upon appeal, the foreman argued he had no fixed place of employment and his employment contract covered travel time, exceptions recognized under the rule. However, the Commonwealth Court upheld the denial, noting he had a fixed place of employment because he was reporting to the same location each day until the project was complete and he was not paid for travel time.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

US Supreme Court upholds use of class action waivers in arbitration agreements

In a 5-4 decision, the Supreme Court ruled that employers can force workers to use individual arbitration instead of class-action lawsuits to press legal claims.


Study: ACA resulted in lower soft-tissue workplace injuries in California

According to a study by the Workers’ Compensation Insurance Rating Bureau of California, the share of claims with soft-tissue injuries decreased by 12% in industries with lower levels of health coverage with the implementation of the Affordable Care Act from 2013 to 2015.


Safety training falls short for immigrant workers at small construction companies: study

Immigrant construction workers employed by small companies do not receive the same amount of safety and health training as their counterparts at larger companies and encounter a greater language barrier problem, according to a recent study from NIOSH and the American Society of Safety Engineers. The study was published in the March issue of the journal, Safety Science.

20 percent of workers are obese, inactive or sleep-deprived: NIOSH

More than 20 percent of workers are obese, don’t get enough physical activity or are short on sleep, according to a recent study from NIOSH. Using 2013 and 2014 data from the Behavioral Risk Factor Surveillance System, researchers looked at workers from 29 states and 22 occupational groups.

They found that approximately 16 percent to 36 percent of workers had a body mass index of 30 or higher, and 1 in 5 workers said they had not engaged in any leisure-time physical activity in the past month. In addition, about 31 percent to 43 percent of respondents averaged less than seven hours of sleep a night.

Transportation and material moving workers had significantly higher prevalence of all three risk factors when compared to all workers. Three occupational groups had a higher prevalence of shortened sleep time compared with other workers: production, health care support, and health care and technical services.

The study was published in December in the Journal of Occupational and Environmental Medicine.

Proper equipment, training can reduce falls overboard in commercial fishing industry: report

Falls overboard are the second leading cause of death in commercial fishing operations, according to a recent study from NIOSH.

From 2000 to 2016, 204 commercial fishing crew members died after unintentionally falling overboard and records show none of the victims was wearing a personal flotation device at the time of the fall. Other findings help identify preventive steps that would reduce the risk of falls overboard.

State News

California

  • Supreme Court adopted a new legal misclassification test that will make it much more difficult for businesses to classify workers as independent contractors (see Legal Corner – Supreme Court defines Independent Contractors).
  • The Workers Compensation Insurance Rating Bureau is proposing a 7.2% midyear pure premium rate reduction for businesses and the insurance commissioner wants further cuts.

Florida

  • The Florida Office of Insurance Regulation has approved a 1.8% rate decrease for workers compensation insurance related to U.S. corporate tax reform.
  • The Workers’ Compensation Research Institute (WCRI) announced that the total cost per workers’ compensation claim experienced moderate increases from three to five percent between 2011 and 2016.

Indiana

  • The Workers’ Compensation Board has released new guidelines for nurse case managers and will soon unveil new protocols for disputed claim settlement documents.

Michigan

  • The Workers’ Compensation Agency issued a reminder bulletin, noting that Explanation of Benefits (EOB) must go to the provider and worker, not third-party payers and networks.

Minnesota

New York

  • Employers will have to provide an interactive forum to satisfy the new law requiring yearly training to prevent sexual harassment. The law takes effect on October 9.

North Carolina

  • The Industrial Commission has finalized a companion guide to help providers navigate new restrictions on opioid prescribing for injured workers. Nine new rules are now in effect.

Pennsylvania

  • Pennsylvania Governor Tom Wolf vetoed a bill that would have created a formulary in the state for workers’ compensation prescriptions.
  • The frequency and cost share of physician-dispensed drugs decreased considerably following the implementation of legislative reforms, but the cost savings were offset by a rise in pharmacy dispensing of expensive compound drugs, according to a new WCRI study.
  • Philadelphia employers can ask job candidates to disclose their salary histories, but can’t use that information to determine their pay, a federal judge ruled April 30. To play it safe, employers might want to eliminate salary history questions from their hiring processes, experts say.

Tennessee

  • Tennessee’s Bureau of Workers’ Compensation announced new claims-handling standards and rules that will take effect Aug. 2, including a rule that ends the requirement that carriers have a claims office in the state.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Long-awaited proposed rules to clarify crane operator requirements issued

A proposed rule was published in the May 21 Federal Register. The rule drops the requirement (which never went into effect) that operators be certified for lifting capacity. It also reinstates an employer’s duty to ensure a crane operator is qualified to control the machinery safely.

Comments are due by June 20.
Spring regulatory agenda has some surprises

Several potential standards that were moved off the Trump administration’s main regulatory agenda and placed on a long-term actions list in July 2017 are now back on to the regulatory agenda under the prerule stage, meaning the agency is considering taking action. These include standards to prevent workplace violence in the health care sector, improve emergency response and preparedness, an Update to the Hazard Communication Standard, and a tree care standard.

Also on the prerule list are potential regulations related to communication tower safety and potential revisions to the Table 1 compliance methods in the silica standard for the construction industry. The infectious disease potential rule and a standard to update regulations for process safety management and prevention of major chemical accidents remain on the long-term actions list.
Use of General Duty Clause for heat related violations under review

Use of the general duty clause to issue citations against employers for heat-related hazards prompted an uncommon invitation from the Occupational Safety and Health Review Commission to file briefs by May 14. Then the review commission scheduled rare oral arguments in two cases involving the use of the clause for June 7 – the heat stress case and one against a health care facility for a fatal workplace violence incident.
Enforcement notes

California

  • Four citations and $71,435 in penalties were issued for inadequate lighting and traffic controls to Consolidated Disposal Services LLC, after a security guard at the company’s dumpster yard in Gardena was fatally struck by a truck.
  • UMC Acquisition Corp. in Downey faces $86,615 in penalties for 11 citations after unguarded moving belts and pulleys resulted in the amputation of a worker’s fingers.

Florida

  • Premier Behavioral Health Solutions of Florida Inc. and UHS of Delaware Inc. were cited for failing to protect employees at their Bradenton facility from workplace violence. Proposed penalties are $71,137.
  • Desouza Framing Inc. was cited for exposing employees to dangerous falls at two worksites. The Jacksonville-based residential framing contractor faces penalties of $199,178 for two willful citations of failing to provide fall protection.
  • P&S Paving Inc., a Daytona Beach underground utility construction company, faces $138,927 in proposed penalties for allowing employees to work in a trench without cave-in protection, failing to train employees on trench hazards, and provide a safe means to enter and exit the trench.
  • Orlando-based SIMCOM Training Centers was ordered to reinstate a flight instructor who was terminated after he raised concerns about potential violations of Federal Aviation Administration safety regulations. The company must pay $201,882 in back wages and interest, $100,000 in compensatory damages, and reasonable attorney fees.
  • Douglas N. Higgins Inc., a South Florida utility company, was cited after an employee suffered fatal injuries when a steel plate fell on him as he installed sewer lines at a Naples Park worksite. The company faces $162,596 in proposed penalties, the maximum allowed.

Georgia

  • Oldcastle Lawn & Garden Inc. of Shadydale, a manufacturer of mulch, was cited for exposing workers to amputation, struck-by, caught-in, combustible dust, electrical, fall, fire, and noise hazards. Proposed penalties for the 36 violations are $251,108. The inspection was part of the National Emphasis Program on Amputations.

Kansas

  • Wichita roofing contractor Jose Barrientos was cited for exposing employees to falls and other safety hazards when inspectors observed roofers working without appropriate fall protection at a residential site. Proposed penalties total $191,071 for two willful and six serious violations.

New York

  • A Buffalo U-Haul facility faces $108,095 in fines after a renovation exposed their workers to asbestos and silica hazards.
  • Following a fatal fire, New Windsor-based Verla International LTD, faces proposed fines of $281,220 for failing to protect its employees from dangerous chemicals, and other hazards.

Pennsylvania

  • In response to a complaint of imminent danger, Hua Da Construction in Philadelphia was cited for exposing employees to dangerous workplace safety hazards and faces proposed penalties of $222,152 for multiple violations related to electrical, fall, and struck-by hazards.
  • In a follow-up inspection, Luzerne County employer, Midvale Paper Box Co. faces penalties of $201,212 for exposing workers to safety hazards, including lockout tagout violations, electrical hazards, and forklift training.
  • Strong Contractors Inc., based in Bensalem, faces $110,971 in penalties for exposing employees to falls and failing to provide appropriate eye protection while working at Trinity Baptist Church. The company has been cited 14 times since March 2017.

Tennessee (Tennessee OSHA)

  • Vorteq Coil Finishers LLC in Jackson was issued 12 citations and $57,750 in penalties after an unguarded pinch point resulted in the amputation of a worker’s fingers. Inspectors found that the employer failed to provide machine guarding, train workers on the control of hazardous energy and confined space hazards, and inspect cranes.

Wisconsin

  • For the second time, a Milwaukee battery manufacturer, C & D Technologies Inc., was cited for exposing employees to lead and failing to implement an effective lead management program. The company faces proposed penalties of $147,822 for two repeated and six serious violations.

For more information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Study: Engaged employees have fewer accidents and lower absenteeism

The 2017 Gallup Report, State of the American Workplace, corroborates past studies that engaged employees are measurably more productive and profitable, safer, healthier, more loyal, and less likely to leave their employer. Organizations in the top quartile of engagement had:

  • 70% fewer safety incidents
  • 24% lower turnover in high-turnover organizations
  • 59% lower turnover in low-turnover organizations
  • 41% lower absenteeism
  • 40% fewer quality incidents
  • 21% higher profitability

While this seems intuitive, many employers fail at engagement – only 33% of US employees are engaged at work, according to the report. The survey is based on 12 questions that measure the most important aspects of employee engagement. Common threads are relationships and trust. When employees feel good about what they are doing, that their job is important, their opinions matter, and they are treated with respect, they will bond in motivational ways.

Here are the 12 questions:

  1. Do you know what is expected of you at work?
  2. Do you have the materials and equipment to do your work right?
  3. At work, do you have the opportunity to do what you do best every day?
  4. In the last seven days, have you received recognition or praise for doing good work?
  5. Does your supervisor, or someone at work, seem to care about you as a person?
  6. Is there someone at work who encourages your development?
  7. At work, do your opinions seem to count?
  8. Does the mission/purpose of your company make you feel your job is important?
  9. Are your associates (fellow employees) committed to doing quality work?
  10. Do you have a best friend at work?
  11. In the last six months, has someone at work talked to you about your progress?
  12. In the last year, have you had opportunities to learn and grow?

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

 

Top reasons for serious workplace injuries and large workers’ comp losses

Liberty Mutual Workplace Safety Index

Produced annually, the Liberty Mutual Workplace Safety Index identifies the leading causes of the most disabling non-fatal workplace injuries (resulting in six or more days of lost time) and ranks them by total Workers’ Compensation costs. The top five causes that accounted for 68.9% of the total injuries occurring in 2015 (most recent data available) were: 1) overexertion involving outside source, 2) falls to lower level, 3) falls to same level, 4) struck by object or equipment, and 5) other exertions or bodily reactions.

For the fourth consecutive year, overexertion involving outside sources topped the list, accounting for almost a quarter of the losses, at $13.7 billion per year. This event category includes injuries related to lifting, pushing, pulling, holding, carrying, or throwing objects. Rounding out the top ten are: roadway incidents involving motorized land vehicle, slip or trip without a fall, caught in or compressed by equipment or object, struck against equipment or object, and repetitive motions involving micro-tasks.

These top ten accounted for $52 billion a year in medical and lost wage costs for businesses. While the number of injuries decreased 1.5 percent, the costs increased 2.9 percent. The total cost of all disabling injuries and illnesses was nearly $60 billion per year.

Combined with your company’s worker injury data, the information can help prioritize preventive measures and training needs.

 

Safety National review of high cost claims

When one thinks about high cost workers’ comp claims, it’s natural to focus on catastrophic claims. These claims include severe burns, brain injuries, spinal cord injuries and significant amputations, which are devastating for all involved. According to Safety National’s claims data, five accident causes accounted for 86% of our catastrophic injury claims:

  • 24% – Motor Vehicle Accident
  • 24% – Fall
  • 20% – Struck By
  • 10% – Act of Crime
  • 8% – Burn

Yet, the recent review of Safety National’s large loss claims by Mark Walls, Vice President of Communications & Strategic Analysis, and Stephen Peacock, Assistant Vice President – Claims, found there were significantly more “developmental” claims that crossed the $1 million threshold, used to define “large loss.” Developmental claims are routine claims that continue to develop over time, including back, shoulder and knee injuries. In this review, they represented about two-thirds of all large-loss claims. In many cases, there were opportunities to resolve the claims before they morphed into large losses, yet failure to recognize the loss potential and intervene earlier opened a Pandora’s Box.

Multiple failed surgeries was the most-common reason for escalating costs in these claims, followed by prescription opioid medications. Both catastrophic and developmental claims have extremely long tails and can remain open for 30 years or longer. The data clearly shows that every claim warrants attention and a comprehensive claims management program is critical to preventing routine claims from morphing to large losses.

 

NCCI Annual Issues Symposium – Mega Loss in Work Comp: How Medical and Treatment Advances Affect Life Expectancy

At the recent NCCI Annual Issues Symposium, presenters lauded the incredible medical advances that have enabled seriously injured workers to survive and survive longer and addressed how to improve outcomes related to these so-called work comp megaloss claims. Dr. Michael Choo and Scott Goll from Paradigm Outcomes discussed trends in mega losses (defined as claims with total incurred greater than $1 million) that average $3.2 million an incident in medical costs alone but can have costs up toward $20 million.

An analysis of Paradigm data showed that 51 to 60-year-olds represented the highest percentage of these claims and males surpassed females for accident rates. The leading causes included vehicle accidents, being struck by an object, and fall-slip-trip injuries. Burns and infections were among the most common medical afflictions.

While some of the cost drivers reflect medical advances, such as more frequent replacement of prosthetics with more high-tech components, innovative laser treatment for scars, and long-term care programs for brain and spinal cord injuries, up-charging for certain medical treatments, adverse events following treatment such as hospital infections, and co-morbidities also drive costs.

According to Dr. Choo these factors can best be mitigated with:

  • Expertise: It takes a team to have the knowledge and skills to ensure a high-quality outcome.
  • Experience: People with experience can tell you what works and what doesn’t.
  • Embracing Outcomes: Help providers focus on outcomes rather than optimizing revenues.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Workplace injuries peak in the summertime – Eight summer workplace risks

According to the Bureau of Labor Statistics (BLS), more injuries occur during the summer months than at other times of the year. There are several possible explanations for the spike, including severe heat, rising traffic congestion and roadwork, increased construction activity, more inexperienced workers, and insect-borne illnesses. There are also other risks, such as employer-sponsored teams and events and summer interns, that can lead to costly claims.

The safety scenario changes during the summer months and it’s prudent to review the risks with employees and take steps to minimize or eliminate them. Keeping everyone safe will make for a more productive and engaged workforce and lower the costs of claims.

Here are eight risks that occur the most during the summer months:

  1. Heat illnessSteamy summer weather combined with intense physical labor can be a recipe for disaster. Minor heat illness symptoms can quickly progress to heat exhaustion and stroke.

    Employers can reduce the risks by training supervisors and employees about heat illness prevention, providing an adequate water supply and reminding workers to stay hydrated, ready access to shade, periodic rest breaks, acclimatizing workers, adjusting work operations for the level of heat, providing first aid, avoid employees working alone, and monitoring workers.

    Also, a risk profile of the individual workers including age, fitness, experience, weight, medications, heart disease, and high blood pressure can help identify those at greater risk.

    There are many online resources, including OSHA’s Heat Safety Tool and NIOSH’s web pages.

  2. Skin cancerWhile most skin cancers can be prevented, the number of cases continue to increase. According to the CDC, skin cancer costs businesses more than $100 million in lost productivity because of restricted activity or absence from work. In some states, skin cancer is compensable under Workers’ Comp as an occupational illness because of sun exposure on the job.

    To prevent skin cancer and serious sun burns, train employees to wear protective clothing, sunglasses, and a hat that shades the face, ears, and back of neck as well as sun block on exposed skin. Training workers to use the UV Index and modify work schedules to adjust when the index is “high” or “extreme,” increasing the amount of shade with tents, cooling stations, and shelters, offering sunscreen, and providing frequent breaks are integral parts of an effective sun safety program.

  3. Motor vehicle accidentsIncreased travel, inexperienced drivers, road construction, and building activity all contribute to the spike in motor vehicle accidents over the summer. It’s a good time to reinforce the company’s safe driving program, review MVRs to ensure that drivers maintain good driving records, and ensure that the vehicle maintenance and inspection program is working as it should be. Also, be sure new drivers and temporary drivers are properly trained. Daily reminders to drivers to put down distracting devices like cell phones, follow traffic laws, and wear safety belts puts safety at the forefront.
  4. Insect-borne illnessesIn May, the CDC issued a warning about the steep increase in insect-borne illnesses. Illnesses from mosquito, tick, and flea bites have tripled in the U.S., with more than 640,000 cases reported during the 13 years from 2004 through 2016. Nine new germs spread by mosquitoes and ticks were discovered or introduced into the United States during this time. Symptoms of insect-borne disease include body, muscle and joint pain, fever, rash, headaches, stiff neck, fatigue, and paralysis.

    The CDC offers tips to prevent insect stings and bites. Among them:

    • Wear clean, light-colored clothing that covers as much of the body as possible.
    • Bathe daily while avoiding cologne, perfume and perfumed soaps, shampoos and deodorants.
    • Maintain clean work areas.
    • Remain calm around flying insects, as swatting may prompt them to sting.
    • Perform daily skin and clothing checks for ticks, which tend to populate worksites near woods, bushes, high grass or leaf litter.
    • Use insect repellent with 20 percent to 50 percent DEET on exposed skin and clothing, reapplying as necessary.
  5. FallsWhile falls are a workplace danger throughout the year, they increase during the summer months as a result of increased construction activity, more outdoor work, and intense summer storms. Proper footwear and fall protection PPE are good defenses and hazard assessments and regular, site-specific training are paramount. Developing written policies and plans to make safe options readily available, regularly inspecting equipment and repair/replace as needed, and daily safety meetings should be routine.

    Focusing on education and involvement, rather than policing will foster accountability.

  6. Inexperienced workersIn 2013, nearly one-third of the nonfatal occupational injuries or illnesses involving time away from work were suffered by workers with less than one year of service, according to the BLS. Protecting inexperienced workers begins with a risk assessment that goes beyond the identification of hazards and proper guarding of equipment. It should identify the tasks inexperienced workers must NOT do, clearly identifying prohibitions on the use of specific equipment and specified work processes, restricted areas, and activities that can only be done under supervision.

    Other steps include: special training and orientation, adequate, consistent supervision, regular reinforcement of safety procedures, encouragement of incident reporting, and the establishment and enforcement of a drug-free workplace. Similar steps should be taken for temporary and summer workers.

  7. Employer-sponsored sports and eventsWhile most employers sponsor sports teams or activities and family events to build morale, some unwittingly expose themselves to claims that impact workers’ compensation. Whether or not an injury or accident is compensable in workers’ compensation often comes down to a two-part examination of whether the accident was in the “course and scope” of employment, and whether the injury “arose out of” that work.

    Although no one rule fits all and each case will be decided on its merits, emphasizing that the social or recreational activity is strictly voluntary and no compensation is provided for participation will help reduce exposure. Before planning an event, it’s best to discuss your exposure with your insurance broker.

  8. Unpaid internsWhen it comes to unpaid interns, knowing the federal and state laws is key. While some observers are predicting that unpaid internships will increase now that the Department of Labor (DOL) has relaxed its intern compensation standards, there are still standards to be met under the “primary beneficiary test”.

    Also, some state laws are more stringent than the federal law. Recently, a Boston private equity firm agreed to pay more than half a million dollars in penalties and wages in a settlement with the AG’s Office over the employer’s improper classification of employees as interns and its failure to pay those employees minimum wage and to keep proper employment records.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

Workplace deaths rise and workplace violence is now the second-leading cause

According to Bureau of Labor Statistics data cited in the AFL-CIO’s 2018 edition of Death on the Job: The Toll of Neglect, 5,190 workers were killed on the job in 2016, an increase from the 4,836 deaths the previous year, while the job fatality rate rose to 3.6 from 3.4 per 100,000 workers. Workplace violence is now the second-leading cause of workplace death, rising to 866 worker deaths from 703, and was responsible for more than 27,000 lost-time injuries, according to data featured in the report.

35% of workers’ compensation bills audited contained billing errors

Out of hundreds of thousands of audited workers’ compensation bills, about 35% contained some type of billing error, according to a quarterly trends report from Mitchell International.

The top cause was inappropriate coding, which produced 24% of the mistakes and unbundling of multiple procedures that should have been covered by one comprehensive code accounted for 19% of billing mistakes.

Only 13 states adequately responding to opioid crisis – National Safety Council

The National Safety Council (NSC) released research that shows just 13 states and Washington, D.C., have programs and actions in place to adequately respond to the opioid crisis going on across the country. The states receiving the highest marks of “improving” from the Council are Arizona, Connecticut, Delaware, Washington, D.C., Georgia, Michigan, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Rhode Island, Virginia and West Virginia. Eight states received a “failing” assessment including Arkansas, Iowa, Kansas, Missouri, Montana, North Dakota, Oregon and Wyoming.

NIOSH answers FAQs on respirator user seal checks

Seal checks should be conducted every time respiratory protection is used on the job, and employers and workers should ensure the equipment is worn properly so an adequate seal is achieved, NIOSH states in a recently published list of frequently asked questions.

NIOSH publishes fact sheet on fatigued driving in oil and gas industry

According to a new NIOSH fact sheet, fatigue caused by a combination of long work hours and lengthy commutes contributes to motor vehicle crashes, the leading cause of death in the oil and gas industry.

New tool allows employers to calculate cost of motor vehicle crashes

Motor vehicle crashes cost U.S. employers up to $47.4 billion annually in direct expenses, according to the Network of Employers for Traffic Safety, which has developed a calculator to help organizations determine their own costs.

It has separate calculators for tabulating on- and off-the-job crashes, as well as one for determining return on investment for employee driving safety programs.

Watchdog group releases list of Dirty Dozen employers

The National Council for Occupational Safety and Health (National COSH) announced their list of the most dangerous employers, called “The Dirty Dozen.” Among those listed: Seattle-based Amazon.com Inc., Mooresville, North Carolina-based Lowes Cos. and Glendale, California-based Dine Brands Global Inc., which owns Applebee’s and International House of Pancakes locations.

CMS finalizes policy changes for Medicare Part D Drug Benefits in 2019 with focus on managing opioid abuse

The policy change addresses the Implementation of the Comprehensive Addiction and Recovery Act of 2016 (CARA), which requires CMS’ regulations to establish a framework that allows Part D Medicare prescription plans to implement drug management programs. Part D plans can limit access to coverage for frequently abused drugs, beginning with the 2019 plan year and CMS will designate opioids and benzodiazepines as frequently abused drugs.

Stakeholders hope that CMS will apply similar thinking to Workers’ Compensation Medicare Set-Aside (WCMSA) approvals in which the beneficiary is treating with high-dosage opioids.

Study: workers exposed to loud noise more likely to have high blood pressure and high cholesterol

A study from the Centers for Disease Control (CDC) was published in this month’s American Journal of Industrial Medicine that indicates workers who are exposed to loud noises at work are more likely to have high blood pressure and high cholesterol.

IRS FAQs on tax credit for paid leave under FMLA

The IRS has issued FAQs, which provide guidance on the new tax credit, available under section 45S of the Internal Revenue Code, for paid leave an employee takes pursuant to the FMLA.

US Supreme Court rules car dealership service advisers exempt from being paid overtime under the Fair Labor Standards Act

The FLSA exempts salesmen from its overtime-pay requirement and “A service adviser is obviously a ‘salesman,'” said the majority opinion in the 5-4 decision in Encino Motorcars L.L.C. v. Navarro et al. This reversed a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that held the advisers were not exempt from being paid overtime.

Legal experts note that this expands the FLSA’s interpretation more broadly and could have implications for other businesses.

State News

California

  • The Workers Compensation Insurance Rating Bureau (WCIRB) quarterly report for year-end 2017 projects an ultimate accident year combined loss and expense ratio of 92%, which is 5 points higher than that for 2016 as premium levels have lowered while average claim severities increased moderately. More findings.
  • Cal/OSHA reminds employers to protect outdoor workers from heat. The most frequent heat-related violation cited during enforcement inspections is failure to have an effective written heat illness prevention plan specific to the worksite. Additional information about heat illness prevention, including details on upcoming training sessions throughout the state are posted on Cal/OSHA’s Heat Illness Prevention page.
  • The Department of Justice certified that the state’s prescription drug monitoring program is ready for statewide use. Doctors will have to start consulting the program before prescribing controlled substances starting Oct. 2.
  • According to a recent report by the Workers’ Compensation Research Institute (WCRI), the state ranked fourth-highest in terms of average claim costs among 18 states examined and a major contributing factor is the relatively high percentage of claims with more than seven days of lost time.

Florida

  • A new law, HB 21, takes effect July 1 and puts a three-day limit on most prescriptions for acute pain and toughens the drug control monitoring program. The bill also provides for additional treatment opportunities, recovery support services, outreach programs and resources to help law enforcement and first responders to stay safe.

Georgia

  • The State Board of Workers’ Compensation’s latest fee schedule update, which became effective April 1, includes the first-ever dental fee schedule and reimbursement rates for air ambulance services as well as other amendments.

Illinois

  • According to a recent report by WCRI, the average claim cost of $16,625 was the highest among 18 states examined and the percentage of claims with more than seven days of lost time ranked third.

Massachusetts

  • Deaths on the job reached an 11-year high in 2017, an increase attributable to the state’s many construction projects, as well as an increased prevalence of opioid addiction, according to a newly released report.

Michigan

  • Work-related injuries requiring hospitalization increased for the third straight year recent data from Michigan State University shows.

Minnesota

  • The Department of Labor plans to adopt what it calls “cost neutral” changes to workers’ compensation vocational rehabilitation fees and other rules without a public hearing, unless one is requested by at least 25 people, in keeping with state law. Comments can be made until May 31.
  • Paid claims and premiums have dropped significantly in the last 20 years (54 percent relative to the number of full-time-equivalent (FTE) employees from 1996 to 2016), while benefits have risen slightly, according to the Minnesota Workers’ Compensation System Report for 2016.

North Carolina

  • The Supreme Court denied review of an appeal by medical providers who argued that the Industrial Commission violated the state’s Administrative Procedure Act when it adopted an ambulatory surgery fee schedule. The fee schedule that became effective on April 1, 2015, remains in effect.

Tennessee

  • According to a recent report by WCRI, the average total cost per workers’ compensation claim decreased by 6% in 2015, driven by a 24% reduction in permanent partial disability and lump-sum benefit payments.

Wisconsin

  • In an effort to combat the misclassification of workers, the state has netted $1.4 million in unpaid unemployment insurance taxes, interest and associated penalties, according to the state Department of Workforce Development.
  • According to a recent report by WCRI, medical costs in workers’ comp increased five percent per year rising in 2014 with experience through 2017.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Update: July 1 deadline for OSHA 300-A electronic data submission

Employers can now begin to electronically report their Calendar Year (CY) 2017 Form 300A data to OSHA. All covered establishments must submit the information by July 1, 2018. Remember, not all establishments are covered by this requirement. To review which establishments need to provide their 2017 data, click here.

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. Employers can view their submitted CY 2016 Form 300A summary information, but they cannot edit or submit additional 2016 data on this website. According to the OSHA website, the agency is currently drafting a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule.

State Plans that have not adopted the rule

While most states have adopted the federal requirements, there are six states that have not or are delaying enforcement: California, Maryland, South Carolina, Utah, Washington, and Wyoming. On April 30, 2018 OSHA issued a press release instructing employers to submit 300A data even if they are in a state that has not adopted the rule. There has been a mixed reaction from the states, but it is generally agreed that Fed OSHA does not have any authority over State Plan employers (only State Plans) and that the remedy for delinquent State Plans is rescinding the approved state plan status, which few expect to happen.

Here is a summary of the responses:

  • California: advised employers to submit 300A data on fed OSHA’s ITA portal
  • Maryland: not requiring employers to submit
  • Minnesota: adopted regulations became effective on May 21, 2018
  • South Carolina: Legislature formally adopted Federal regulation effective May 25, 2018, but are giving employers 6 months to comply (effective date will be November 25, 2018)
  • Utah: instructed employers they may submit 300A data but are not required
  • Wyoming: issued statement confirming rule does not apply to WY employers
  • Washington: issued statement that employers are “still not required to electronically submit data”

Employers in these states may want to adopt a wait and see approach to see what course of action the state in which they operate adopts or how Fed OSHA proceeds on enforcement.

Anti-retaliation provisions

The anti-retaliation provisions of the rule, which became effective December 1, 2016, remain in effect. Essentially, this prohibits employers from discouraging workers from reporting an injury or illness. Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the OSHA workplace poster. An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting, and the regulation specifically addresses internal injury reporting policies, post-injury drug testing, and safety incentive and compensation programs.

What employers should do

  • Assess whether your establishment meets the reporting criteria
  • Provide refresher training on the requirements
  • Before submitting, audit injury and illness recordkeeping forms
  • Be sure the latest version of the OSHA Rights poster is posted
  • Evaluate injury reporting policies, drug testing policies, and safety incentive and management compensation plans to ensure they do not discourage reporting of injuries
  • If in a state where the rule has not been adopted, stay abreast of both state and federal actions

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Multi-month leave not required in 7th Circuit states – Illinois, Indiana, and Wisconsin

The U.S. Supreme Court has declined to review a 7th Circuit decision that the ADA doesn’t require employers to allow workers with disabilities to be off the job for two months or more. In Raymond Severson v. Heartland Woodcraft Inc, the 7th Circuit ruling that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA does not comply with the U.S. Equal Employment Opportunity’s position and disagrees with other courts.

The Severson decision allows employers in the 7th Circuit to, without violating the ADA, terminate the employment of workers who make months-long leave requests, but employers should be cautious about denying leaves of less than two months and obtain written confirmation of the requested time off. Under Wisconsin law, there is a more lenient interpretation of reasonable accommodation than under the ADA, so it important to consider the state statute as well.

Telecommuting a reasonable accommodation

The 6th U.S. Circuit Court of Appeals affirmed a $92,000 verdict and $18,184.32 for back pay and lost benefits award for a city utility attorney who was denied her request to telecommute during her 10-week bed rest for pregnancy complications. The utility had reversed its policy on telecommuting in 2011, requiring all lawyers to work onsite, but she had been allowed to work from home when she recovered from neck surgery, shortly after the policy change.

In her 23rd week of pregnancy, her doctors placed her on modified bed rest for approximately 10 weeks. She made an official accommodation request with supporting documentation, which was denied based on the argument that physical presence was an essential function of the job, and telecommuting created concerns about maintaining confidentiality.

She filed a lawsuit for pregnancy discrimination, failure to accommodate and retaliation under the ADA and was awarded $92,000 in compensatory damages and $18,184.32 for back pay and lost benefits by a jury. Upon appeal, the attorney testified that in her eight years of employment, she had never tried cases in court or taken depositions of witnesses, even though those duties were listed in her position description. The court found that she was adequately performing her duties telecommuting, as her job duties were not tied to her presence in the office. Mosby-Meachem v. Memphis Light, Gas & Water Division, 6th Cir., No. 17-5483 (Feb. 21, 2018).

Workers’ Compensation
Worker entitled to attorney’s fees although benefits were less than he sought – Florida

In Portu v. City of Coral Gables, a fire fighter developed hypertension, but his impairment rating was based on those of a female patient and were adjusted from 35% to 4%. State statute provides that a worker will be entitled to a fee award if the claim is successfully prosecuted after being denied by his employer. Also, a fee award will not attach to a claim until 30 days after the date the claim petition was provided to the employer or carrier.

A judge denied the claim for attorney fees because the city paid benefits within 30 days of the revised impairment rating assessment, and it couldn’t have paid benefits earlier because it had no way of calculating the correct amount. An appellate court, however, found he was entitled to attorney’s fees because the carrier had denied the claim, the employee had successfully prosecuted the claim, and 30 days had elapsed from “the date the carrier … receives the petition.” It did not matter that the claim petition had sought benefits based on a higher impairment rating.

Police officer entitled to duty disability pension for injuries in training session – Illinois

In Gilliam v. Board of Trustees of the City of Pontiac Police Pension Fund, a police officer was injured during a voluntary bicycle patrol training session and was denied a line-of-duty pension because her disability had not been caused by an “act of duty.” An act of duty is defined as an act “inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman.”

The decision went through a series of appeals and the courts determined that there are “special risks associated with bicycle patrol” and what mattered was whether she was injured while attempting a bicycle maneuver that involved a special risk.

No additional payment for provider who accepted partial payment from Medicaid – Minnesota

In Gist v. Atlas Staffing, a worker for a temporary employment agency was assigned to a position that involved working with silica-sand tanks. About two years later he stopped working and shortly after was diagnosed with end-stage renal disease. He received treatment in Minnesota and Michigan, which was partially paid for by Medicaid and Medicare.

He then filed a workers’ comp claim, asserting the exposure to silica had caused the kidney failure and the treating medical center intervened seeking payment for the portion that Medicaid and Medicare had not paid. A workers’ compensation judge found in favor of benefits but noted the medical center should be paid “in accordance with all other state and federal laws.”

The case made its way to the state Supreme Court, which noted that while a treatment provider is entitled to a payment for medical services provided to an employee, to the extent allowed under the workers’ compensation medical fee schedule, even if the provider has already received partial payment from a private, non-employer insurer, in this case payment was received from Medicaid. A federal regulation requires providers who participate in Medicaid programs to accept a Medicaid payment as “payment in full.”

Award of schedule benefits overturned because summary judgment is not a way to resolve factual disputes – Nebraska

In Wynne v. Menard, a retail worker injured her knee and in a later accident injured her shoulder. The court awarded her temporary total disability benefits and ordered that the benefits continue until she reached maximum medical improvement, at which time she underwent a functional assessment evaluation. While the evaluator imposed no restrictions on her ability to sit, her treating physician said she could not sit for more than 10 minutes at a time, and a court-appointed vocational expert questioned this finding.

The state Supreme Court said there was a triable issue of fact as to the extent of her disability and the Workers’ Compensation Court erred by weighing the relative merits of the evidence and awarding her schedule benefits for her knee and shoulder since summary judgment is not a way to resolve factual disputes. The case was reversed and remanded.

Board can reject medical decision but not misread records – New York

In Matter of Gullo v. Wireless Northeast, the Workers’ Compensation Board rejected the opinion of the worker’s doctor because he had testified that he could not offer an opinion on causation since he was not familiar with the employee’s work duties. However, when he was advised of her work duties, he confirmed his opinion. The appellate court found that the Board overlooked this fact when it held that the doctor could not offer an opinion on causation. Thus, the denial of benefits was reversed.

Employer’s lien against subrogation recovery determined when settlement is made – New York

In Matter of Adebiyi v. New York City Housing Authority, an employee was injured when an ultra-high-pressure washer malfunctioned. He filed tort suits against the manufacturer and lessor of the pressure washer and received settlements of $1.6 million and $800,000. When he received judicial approval of the settlement with the lessor, the Housing Authority was granted a lien of over $222,000. At the time, the Workers’ Compensation Board was deciding whether to reclassify him as permanently and totally disabled and the employee argued the lien should not be determined until the decision was made. While a trial judge ruled in his favor, the appellate court noted the lien was appropriately determined at the time of the settlement without consideration for reclassification.

Failure of employer to timely contest claim doesn’t guarantee benefits – New York

In Matter of Nock v. New York City Department of Education, a lunch helper alleged she suffered a work-related back injury. A judge found that the department did not file a timely contest and awarded benefits. The Workers’ Compensation Board reversed and Appellate Division’s 3rd Department agreed, explaining that an employer’s failure to file a timely notice will bar it from raising certain defenses, but it does not relieve a worker of the burden to prove that the medical condition was caused by work.

Medical claim for non-FDA approved compound cream upheld – North Carolina

In Davis v. Craven County ABC Bd, an employee injured his ankle and after four years of treatment was diagnosed with reflex sympathetic dystrophy and prescribed a compound cream. The carrier refused to pay for the cream, which was not approved by the FDA, or any further treatment from the prescribing physician. A new physician prescribed a similar, non-FDA-approved cream and the carrier again refused payment.

The North Carolina Industrial Commission affirmed a deputy’s order for the carrier to pay for the cream. The appellate court noted that the law did not limit the types of drugs that might reasonably be required solely to those that are FDA-approved. Reasonable treatment is a question that must be individually assessed in each case. “If requiring workers’ compensation providers to compensate injured workers for non-FDA-approved drugs is bad policy, it is for our General Assembly to change that law,” added the court.

No benefits for teacher’s stroke suffered while receiving unfavorable review – North Carolina

In Cohen v. Franklin County Schools, a high school principal received complaints about a math teacher and prepared a professional development plan. When he met with the teacher and the director of secondary education, he presented the plan, but she refused to sign it. After the meeting, which lasted about 15 minutes, the teacher experienced head pain and sought medical treatment three days later. It was determined she had had a stroke and she sought comp benefits.

The Industrial Commission denied the benefits and the Court of Appeals upheld the denial, noting that the meeting was neither unexpected nor inappropriate. “At most, Cohen received critical feedback that was unwelcome to her – an occurrence that is not unusual for an employee at any job.”

Uber limousine drivers are independent contractors – Pennsylvania

In what is believed to be the first ruling on the classification of Uber drivers under federal law, a U.S. District judge ruled that drivers for Uber’s limousine service, UberBlack, are independent contractors and not the company’s employees under federal law. The judge found that the drivers work when they want to and are free to nap, run personal errands or smoke cigarettes in between rides and, thus, the company does not exert enough control over the drivers for them to be considered employees. Razak v. Uber Technologies Inc.

Chiropractor cannot collect fee for office visits and same day treatments – Pennsylvania

In Sedgwick Claims Management Services v. Bureau of Workers’ Compensation Fee Review Hearing Office, an employer was obligated to pay reasonable and necessary medical expenses for an employee’s shoulder injury under a Compromise and Release Agreement. The employee saw a chiropractor as many as three times each week, who billed the TPA $78.00 per visit for office visits on dates on which he provided chiropractic treatment.

The TPA denied the office visit charges but paid for the other treatments. The state code permits payment for office visits “only when the office visit represents a significant and separately identifiable service performed in addition to the other procedure.” Thus, the Commonwealth Court overturned a hearing officer’s decision finding that a chiropractor was entitled to payment of the office visit fee, noting that payment for same day examinations was the exception, not the rule.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com