Things you should know

Posted on by davidrleng

Opioid abuse rises with length of prescription

According to a study by the U.S. Centers for Disease Control and Prevention, the risk of opioid abuse rises with lengthy prescriptions. If received a one-day prescription, 6% were still on opioids a year later; when prescribed for 8 days or more, this rises to 13.5%; when prescribed for 31 days or more, it increases to 29.9%.

Blacklisting rule repealed

President Trump repealed the so-called “blacklisting rule” that required federal contractors to disclose labor violations. The executive order had required employers bidding for federal contracts worth at least $500,000 to disclose any of 14 violations of workplace protections during the previous three years.

FMCSA will not reinstate overnight rest regulations for commercial drivers

The Federal Motor Carrier Safety Administration’s (FMCSA) regulation that required CMV (Commercial Motor Vehicle) drivers to take breaks in the hopes of preventing driver fatigue has been suspended since 2014 so that further research could be done to understand the efficacy of the program. A study from the Department of Transportation found that stricter mandated breaks did not do much to reduce driver fatigue or improve safety. Thus, the rule will not come out of suspension.

Study reveals occupations with sleep deprived workers

If your industry is health care, food service, or transportation, your workers are probably not getting adequate sleep, according to a study published March 3 in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report. Workers who averaged fewer than seven hours of sleep per night were classified as having short sleep durations. Occupation groups that failed to average seven hours of sleep included:

  • Communications equipment operators: 58 percent
  • Rail transportation workers: 53 percent
  • Printing workers: 51 percent
  • Plant and system operators: 50 percent
  • Supervisors, food preparation and serving workers: 49 percent
  • Extraction workers: 45 percent
  • Nursing, psychiatric and home health aides: 43 %

The American Academy of Sleep Medicine and the Sleep Research Society recommend that adults 18 to 60 years old get at least seven hours of sleep every day. A lack of sleep can contribute to cardiovascular disease, obesity, diabetes, depression, and other health issues, as well as contribute to more injuries on the job.

NIOSH announces free health screenings for coal miners

A series of free, confidential health screenings will be available for coal miners as part of the NIOSH Coal Workers’ Health Surveillance Program. The first set of screenings will take place from March 26 to April 15 in coal mining regions throughout Alabama. The second set will occur from May 10 to May 31 throughout Indiana and Illinois. Finally, testing will take place from July 30 to Aug. 26 throughout Eastern Kentucky.

NIOSH updates mine hazard assessment software

Mine operators and workers now have access to updated hazard assessment software from NIOSH. According to the agency, EVADE 2.0 – short for Enhanced Video Analysis of Dust Exposures – offers a more comprehensive assessment of the hazards miners face by pulling together video footage and exposure data on dust, diesel and other gases, as well as sound levels.

Study: PT as effective as surgery for carpal tunnel

Physical therapy is as effective as surgery in treating carpal tunnel syndrome, according to a new study published in the Journal of Orthopaedic & Sports Physical Therapy. Researchers in Spain and the United States report that one year following treatment, patients with carpal tunnel syndrome who received physical therapy achieved results comparable to outcomes for patients who had surgery. Further, physical therapy patients saw faster improvements at the one-month mark than did patients treated surgically.

When hospital inspectors are watching, fewer patients die

A recent report in the New York Times cited a study in JAMA Internal Medicine which found death rates dropped when inspectors were onsite. In the non-inspection weeks, the average 30-day death rate was 7.21 percent. But during inspections, the rate fell to 7.03 percent. The difference was greater in teaching hospitals – 6.41 percent when the inspectors were absent, and 5.93 percent during survey weeks. While the difference may seem low, an absolute reduction of only 0.39 percent in the death rate would mean more than 3,500 fewer deaths per year.

Although the reasons for the effect are unclear, it was suggested when docs are being monitored, diligence ramps up.

Wearing eye protection can prevent 90 percent of work-related eye injuries, experts suggest

Ninety percent of on-the-job eye injuries could be avoided if workers wore eye protection, according to the American Academy of Ophthalmology (AAO). AAO offers the following tips for avoiding workplace eyestrain or injury:

  • Wear protective eyewear appropriate for the type of hazard you may encounter
  • Position your computer monitor 25 inches away
  • Follow the 20-20-20 rule: Every 20 minutes, take a break by looking at an object 20 feet away for 20 seconds
  • Reduce glare on your cell phone or digital device
  • Adjust environmental lighting near your workstation

 

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

Legal Corner

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Workers’ Compensation
Worker has right to obtain medical report from doctor of his choice – California

In Davis v. WCAB (City of Modesto), Davis filed two workers’ compensation claims stating his prostate cancer developed because of his exposure to carcinogens while working as a firefighter. A qualified medical examiner (QME) issued opinions that the cancer was not work-related and Davis then hired a doctor to review the reports, which were sent to the QME for review. The city protested that this violated the discovery process and the Workers’ Compensation Appeal Board (WCAB) rescinded a judge’s order that had allowed the review.

Upon appeal, however, the WCAB filed a letter brief to the Court of Appeals, asking for review to be granted and for its decision to be vacated, since the decision had not addressed Labor Code Section 4605. Section 4605 says there is no limitation on the right of a worker to obtain a medical report, at his own expense, from the doctor of his choice. While the report cannot be “the sole basis of an award of compensation,” Section 4605 specifically allows a QME to address the report and respond to its contents.

Traveling worker denied benefits for fall in motel parking lot – Georgia

In Avrett Plumbing Co. v. Castillo, an hourly employee lived in Atlanta, but his job required him to work in Augusta. The company paid a weekly rate to provide him a hotel room and allowed him to use it on weekends at no cost. On a Sunday evening when returning from grocery shopping he tripped and fell in the parking lot, breaking his ankle. When he filed for workers’ comp, the company argued that the accident had not occurred during the course of employment, since it happened outside of normal work hours and the employee was engaged in activities unrelated to his job.

An administrative law judge disagreed and found the injury compensable under the “continuous employment” doctrine, because the employee was “required by his employment to live away from home while working.” The case went through several more appeals, and benefits were ultimately denied with the court finding the employee was there “merely as a personal convenience” (lack of money and transportation prevented travel to Atlanta) and that the errand was for the sole benefit of the employee.

Willful misconduct may bar comp benefits – Georgia

An employee who disobeys an employer’s instructions and acts in a dangerous fashion may not be entitled to workers’ compensation benefits, the Supreme Court ruled. Chandler Telecom v. Burdette revolved around the question of willful misconduct. A cellphone tower employee sustained serious injuries attempting a “controlled descent” from a tower, even though a supervisor ordered him not to attempt the descent and to climb down and the crew’s lead tower repeatedly protested his actions.

The Board of Workers’ Compensation concluded the employee could not receive comp benefits because he engaged in willful misconduct by defying his supervisor’s instructions, a decision that was affirmed by a Superior Court. However, the Court of Appeals reversed, saying his actions did not constitute willful misconduct because his actions were not of a “quasi criminal nature…”

The Supreme Court found that the appellate court erred in its ruling, noting the proper interpretation of a 1993 decision defining willful misconduct is “an intentional and deliberate action done either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” The Supreme Court said it did not have enough information to make a determination about whether willful misconduct had occurred. It remanded the case to the Board of Workers’ Compensation for further fact-finding.

Worker killed by exploding shell can only claim comp – Illinois

An employee was killed by the explosion of a live mortar shell that had been transferred from the U.S. Army’s National Training Center at Fort Irwin, California to the Totall Metal Recycling’s (TMR) facility in Granite City. The lawsuit alleged the employer acted intentionally in transporting dangerous materials, but not that the company acted intentionally in injuring the employee. As such, the judge noted any allegation of TMR’s intent to injure the employee would fly in the face of the complaint, which alleges a claim of negligence. Thus, the exclusive remedy of workers’ comp barred the wrongful death claim. Muenstermann v. United States

Exclusive remedy bars negligence suit for borrowed worker – Illinois

An employee of a temporary staffing agency was assigned to work for Lindoo Installations Inc. and suffered a partial amputation of his right index finger when it was trapped between a bundle of shelving and a forklift. He filed for workers’ comp with the staffing agency and filed a negligence claim against Lindoo. While the trial court granted Lindoo’s motion for summary judgment under the exclusive remedy provision, the employee appealed arguing that the staffing agency’s branch manager periodically checked in.

The appeals court affirmed the decision, noting Lindoo met several factors that determine a borrowed employee relationship and qualified as a borrowing employer because it had the right to direct and control the employee’s work. TerranceFalge v. Lindoo Installations Inc.

Undocumented worker due benefits – Kansas

In Mera-Hernandez v. U.S.D. 233, the court found the injuries suffered by an undocumented school custodian were compensable even though she used a false name and submitted falsified documents to the school district when she was hired. The Supreme Court affirmed the Court of Appeals ruling that her immigration status does not dispute the work she performed for the school district and she fits the broad definition of employee under the law.

Clarifying Schoemehl window, court awards widow comp benefits – Missouri

For a very brief time, Missouri espoused a rule, known as the “Schoemehl doctrine,” that allowed for a permanently and totally disabled worker’s weekly benefits to be passed on to his dependents upon his death. The doctrine is limited to claims that were in existence as of January 2007, the date of the Supreme Court’s decision in Schoemehl v. Treasurer, and had not yet been fully resolved by June 2008, when the legislature then abrogated the doctrine.

In Ogden v. Conagra Foods, Ogden suffered serious injuries to his skull and spine in a 2001 motor vehicle accident and collected more than $2.4 million in benefits until his death in 2014. In 2009, the Ogden’s attorney filed a Form 21 Claim for Compensation for the employee and his wife. After Ogden died, his wife demanded payment on her claim for Schoemehl benefits.

The Industrial Commission determined she was entitled to payment, and Conagra appealed. The Court of Appeals approved benefits, explaining it didn’t matter that the wife’s claim for Schoemehl benefits wasn’t filed within the window of January 2007 to June 2008 because the claim was open and active during this time.

 

Credibility of doctors’ conflicting testimony weighed in appeal – Nebraska

In Hintz v. Farmers Cooperative Association, a worker was injured when a tire exploded, but he did not seek medical care and returned to work after a day-and-a-half absence. About three weeks after the accident, he tripped on the stairs at home and sought medical attention, which revealed a labral tear and other problems with his hip. His physician took him off work and performed surgery, and Farmers’ Cooperative terminated him after several months’ absence.

The worker filed a workers’ comp claim, and his physician testified although the worker had given inconsistent accounts about whether the hip injury was caused by the explosion at work or the trip down the stairs, when he performed surgery he observed a serious labral tear that seemed more likely to have been caused by the workplace explosion. An IME disagreed, testifying the injury was more likely caused by the fall down the stairs.

The Workers’ Compensation Court denied the claim, finding the IME’s testimony to be more reliable, but the Court of Appeals overturned, noting the treating physician had personally seen the extent of the injury during surgery.

Country club worker can proceed with lawsuit after general manager struck him in the groin with a golf club – New York

A country club employee whose left testicle was surgically removed after the club’s general manager struck him in the groin with a golf club is entitled to sue for damages beyond workers’ compensation benefits ruled an appellate court. The locker-room attendant was observing the assembly of golf clubs in the pro shop when the general manager entered and picked up a golf club shaft and struck him in the testicle, then left the room laughing.

The employee and his wife sued the general manager, who sought dismissal of the case based on workers’ comp exclusive remedy. The Court concluded that questions of fact existed as to whether the general manager acted in a ‘grossly negligent and/or reckless’ manner when he swung the golf club shaft and struck the employee and whether the country club condoned the action, thus the civil case can proceed. Montgomery v. Hackenburg.

Blackout caused by non-work conditions does not prohibit benefits – New York

In Nuclear Diagnostic Products, 116 NYWCLR 211, the New York Workers’ Compensation Board awarded benefits to a driver, who crashed his work vehicle after losing consciousness. The driver reported that he started coughing due to an asthmatic reaction to a new air freshener in his house and lost control of the car. The Board explained that since the driver’s accident occurred in the course of his employment he was entitled to a presumption that the accident arose out of his employment and that the driving of the employer’s vehicle was an added risk of employment.

Severe disability from Legionnaires’ Disease compensable – Pennsylvania

An employee of Nestle’s New Jersey office did most of his work in Pennsylvania performing maintenance on beverage machines. He fell ill, was hospitalized, lapsed into a coma, and was diagnosed with Legionnaires’ Disease. The illness left him wheelchair-bound, affected his speech, and the treatment he received may have caused brain damage. Nestle denied the allegations that he contracted the disease while working on fountain and soda drink machines that contained contaminated water, and argued the disease was not a result of work-related exposure. After testimony from a number of personal witnesses and medical experts, a workers’ comp judge determined that the employee was temporarily totally disabled and entitled to workers’ comp benefits. The Workers’ Compensation Appeal Board and the Commonwealth Court affirmed. Nestle USA Inc./Vitality vs. Workers’ Compensation Appeal Board

Seasonal worker difficult to prove – Pennsylvania

Two recent decisions of the Commonwealth Court illustrate how difficult it is for an employer to establish that a worker is a seasonal employee. While there is a specific formula for calculating the average wage when a worker is engaged in an “exclusively seasonal” occupation, the law does not provide a definition for the term. The controlling standard comes from a 1927 Supreme Court case which declared seasonal occupations are “those vocations which cannot, from their very nature, be continuous or carried on throughout the year, but only during fixed portions of it.”

In Toigo Orchards v. WCAB (Gaffney), a tractor driver who was hired for a single apple harvest doesn’t fall within the “exclusively seasonal” category. The argument was that the injured employee was “itinerant agricultural labor,” a tractor driver, and that short-term employment is not synonymous with seasonal work. Had he been treated as a seasonal employee his weekly benefits would have been only $31.99, compared to $315.90 weekly, which he was awarded.

In Lidey v. WCAB (Tropical Amusements), a carnival ride fabricator wasn’t an “exclusively seasonal” employee, even though his employer did business only during the summer months. He was awarded $917 per week, based on his weekly wage of $2,000.

Philadelphia Eagles must pay workers’ comp and a penalty for failing to report player’s injury – Pennsylvania

A defensive end for the Philadelphia Eagles ruptured his right Achilles tendon during the team’s training camp and underwent surgery and PT until he became a free agent. The team paid for his treatment and surgery and paid his regular salary until his contract expired, but failed to file workers’ comp documents. As a free agent, he rehabilitated at a private facility, which the team paid for, and ruptured his left Achilles tendon and the team paid for the surgery, but he paid for the rehabilitation. He filed for disability benefits and the team argued it should not be responsible for the second injury because it was not work related.

A workers’ compensation judge, and on appeal the Workers’ Compensation Appeals Board, ruled that the Eagles violated regulations by failing to report his first injury and awarded the claim petition as well as a 50 percent penalty to be paid by his employer on past-due compensation. The Eagles argued it was “not practically possible” to report every injury that occurs as a workers’ compensation claim as they see between 800 to 1,000 injuries during the season and practice. They file workers’ compensation claims only when players need treatment beyond what can be treated in the training facility, and they file NCPs on request.

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

Legal Corner

Posted on by davidrleng

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

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

HR Tip: ABA’s summary of 2016 FMLA cases

Posted on by davidrleng

Every February, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from 2016 in a user-friendly manner.

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

Seven in ten employers impacted by employee prescription drug use

Posted on by davidrleng

Seventy-one percent of U.S. employers say drug use among employees has impacted their business, but only 19% of them have comprehensive workplace drug policies in place, according to a survey by the National Safety Council (NSC). While 57% test their employees for drugs, only 41% screen for synthetic opioids – the kind of prescriptions usually found in medicines cabinets and increasingly available on the black market.

The types of incidents experienced in the workplace as the result of prescription drug use are: 39% absenteeism; 39% workers have been caught taking drugs while on the clock; 32% a positive drug test indicated use; 29% a worker had been found to be impaired or showed decreased work output; 29% a family member complained; 22% another employee complained to human resources; 15% an injury or near-miss occurred; and 14% an employee was caught selling drugs in the workplace.

“Employers must understand that the most dangerously misused drug today may be sitting in employees’ medicine cabinets,” Deborah A.P. Hersman, president and CEO of the NSC, said in a statement. “Even when they are taken as prescribed, prescription drugs and opioids can impair workers and create hazards on the job.” Cognitive impairments and physical pain masked by prescription drugs can make employees engage in riskier behaviors and reduce response time.

 

What employers can do

Develop a drug-free workplace policy, including prescription drugs

Most employers have a drug-free workplace policy directed at illegal drugs and an alcohol abuse policy, but most don’t have a prescription drug policy. Since prescription drugs are legal, it’s been difficult to craft a policy, but many addictions begin with legal prescriptions. Even when taken as prescribed, they can impair workers and create hazards on the job.

The NSC provides a free Prescription Drug Employer Kit to help employers create prescription drug policies and manage opioid use at work. The kit recommends actions including:

  • Define the employee’s role in making the workplace safe. A drug-free workplace program (DFWP) should state what employees must do if they are prescribed medications that carry a warning label or may cause impairment. The employer can create a plan around not operating vehicles or machinery while the prescription is in use. The DFWP should also spell out the steps an employer will take if it suspects a worker is using certain medications without a prescription, in larger doses than prescribed, or more frequently than prescribed.
  • Add prescription drug testing to illicit drug testing. Working with legal counsel, the employer should decide if additional testing is warranted for pre-employment screening, or for pre-duty, periodic, at random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.
  • List the procedures or corrective actions the employer will follow when an employee is suspected of misusing prescription drugs or for an employee with confirmed prescription drug abuse.
  • Obtain legal advice. An attorney experienced in DFWP issues should review the policy before it’s finalized.
  • Train supervisory staff and educate employees. Educate managers and supervisors about prescription drug abuse and what to do if they suspect an employee has a problem. Training also is an underused tool that companies can use to make employees aware of the risks and signs of prescription drug misuse, along with company policies.
  • Review service coverage for behavioral health and/or employee assistance program (EAP) needs. Evaluate the behavioral health portions of health insurance policies and EAP contracts to ensure employees are covered for abuse of prescription drugs.

 

Work with insurers to cover alternative approaches

Hersman advised employers to work with their insurers to cover alternative therapies so that employees can avoid taking opioids or other addictive medications for chronic pain. Alternative therapies include acupuncture, guided imagery, chiropractic treatment, yoga, hypnosis, biofeedback, and others.

While 88 percent of survey respondents were interested in their health insurer covering alternative pain treatments, only 30 percent indicated they would not act on that interest by negotiating expanded coverage with insurers.

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

Five ways employers derail claims with poor medical choices

Posted on by davidrleng

“An injured employee treated by the wrong medical provider is like a stripped down “to save money” fire policy with more exclusions than inclusions. Right doctor. Right time. Right treatment. Always.” – Preston Diamond, Institute of WorkComp Professionals

A poor choice in medical care can break a worker’s compensation case and result in significant higher premiums for several years. While the rules vary, in many states employers have the ability to direct injured employees to a doctor of the employer’s choice. Even if this is not possible, having a relationship with a competent occupational physician who understands your business and can develop confident relationships with employees will help insure your injured employees get the proper care.

Yet, many employers find the process of choosing physicians outside their expertise and defer the choice to insurers or employees. Here are five ways this leads to unnecessary higher claims costs:

  1. Apathetic commitment to Recovery-at-WorkWhile medical treatment guidelines have gained traction in many states, they are only mandatory in a few states and often permit discretion for the treating physician. As a result, there is significant variability in quality of care and outcomes among physicians. Moreover, today many doctors seek to treat workers’ comp injuries because it is more lucrative than healthcare.

    Given the option, employees will choose to go to their primary care doctor who, most likely, will grant their request. Want a few days off for work to rest? Why not grant it when it keeps the patient happy? Yet, those few days can cost the employer big bucks.

    When there is a strong Recovery-at-Work commitment and the injured worker returns to work before becoming eligible for wage benefits, claims are known as medical-only claims. In 39 states (ERA states), medical-only claims are reduced by 70% on the experience modification worksheet, and usually have minimal effect on the final Mod. On the other hand, claims that also include indemnity payments are known as lost-time claims and often have a significant impact on the Mod.

    This hypothetical example gives an idea of the impact on costs. A small claim ($2,791) that included indemnity had a .0360 impact on the Mod and increased the annual premium by $1,771. Since this increase affects the premium for three years, the employer will pay a total of $5,265! A second small claim ($3,230) was medical only and impacted the Mod by .0125, raising the annual premium by $615 and increasing the premium $1,845 over three years.

    It takes more than lip service for physicians to partner with employers effectively in a Recovery-At-Work program. Look for physicians who:

    • Know the state’s Workers’ Comp rules
    • Come and tour your facility to understand the requirements of the job
    • Develop a good understanding of your Recovery-at-Work program and recognize the value of work in the healing process as well as factors that can keep injured employees out of work longer, such as anxiety, family issues, financial issues, and so on
    • Follow best practice guidelines for each type of injury (typically Occupational Medicine doctors)
    • Have strong communication skills with all parties – employer, injured workers, and claims examiner
    • Engage the injured worker in thinking about recovery and what they can do, not what they can’t do
    • Have objective standards to measure outcomes, such as claims duration, total costs, percentage return to full duty within disability guidelines, litigation, recidivism, and patient satisfaction
    • Have strong capabilities, both in-house and referral network, so that wait times are minimized
    • Do not dispense drugs
    • Have a clear policy regarding opioids
  2. Limited or no focus on outcomesWhile there is a growing focus on developing outcome-based networks for workers’ compensation, fee schedules are the norm for controlling costs. When insurers point out “savings” below fee schedules, this can divert employers from focusing on the real issue – how much they are paying. Physicians and hospitals squeezed by the health care system look to maximize revenues from other sources and workers’ comp is one of the most vulnerable.

    The answer is to direct care to providers who have measures of quality and outcome and deliver the best value, by delivering consistently excellent outcomes and competitive pricing. Insurance adjusters often handle upwards of 250 claims at one time; it’s unlikely they are going to have the time to identify the best provider for each of their clients.

  3. Not a good fit for the employer or workforceWhile Occupational Medicine doctors are a good starting point, it makes sense to drill down further. From past claims employers know where their exposures are the greatest and should identify physicians with specific proficiencies needed for the injuries and hazards in their work setting. In addition, if the employer is in a regulated or hazardous industry, the physician must be familiar with regulatory compliance issues.

    There are other considerations as well. If you have a bilingual workforce, the provider staff, including medical staff, should be bilingual. Equally important, the provider must be able to balance patient advocacy with employer concerns. Injured workers will respond positively to a physician if they have trust and believe the physician is their advocate, thus accelerating the return to worker and reducing the likelihood of litigation.

  4. Poor representation in disputed casesContesting cases when it is suspected the injury is not work-related is never easy, particularly when it involves a cumulative trauma injury, pre-existing conditions, or stress. Failing to challenge cases when the injury cause is not work-related leads to paying unwarranted benefits and emboldens others to file similar claims. On the other hand, wrongly challenging injured workers needlessly drives litigation costs up and leads to morale and trust issues among the workforce.

    Doctors are trained to treat injuries; causation is a secondary concern. While many states do not require that medical opinions be expressed with absolute medical certainty, it is expected that opinions be more than mere speculation and there is a probability as to the cause that can be supported.

    A good medical expert will not only be well qualified, but must be able to write a good report that clearly explains their opinions. Understanding how a physician handles disputed cases is key to avoiding unnecessary litigation costs.

  5. Unnecessary use of emergency room servicesWhen injured workers use emergency room services, they are likely to be told to take time off and medical costs are likely to be much higher. The only time an injured employee should go to the emergency room is when there is a 911 emergency or when there are no other available treatment options. Emergency rooms are busy places and their primary task is to make sure people are not in imminent danger. There’s no time to consider Recovery-at-Work possibilities.

    Furthermore, there’s a higher possibility of an inaccurate diagnosis. More than one-third of reports from consulting physicians for orthopedic injuries in emergency rooms were inaccurate, including 30% of open fractures that were described as closed, according to findings detailed in AAOS Now , a publication of the American Academy of Orthopedic Surgeons. According to the author, musculoskeletal conditions, a common workers’ comp injury, are the most commonly missed injuries in emergency departments.

    Emergency departments rarely communicate with the employer, don’t usually set up follow-up visits or provide ongoing care, and common treatment plans often include rest and no work activity for days or weeks following an injury. All of which means delays, lost time, and added cost to the employer.

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

Takeaways from WCRI Annual Issues and Research Conference: worker outcomes, attorney involvement

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Keys to improving worker outcomes

Worker outcome surveys are a key component of The Workers’ Compensation Research Institute’s (WCRI) work. An independent, not-for-profit research organization, it provides data and analysis aimed at improving workers’ compensation systems. Measuring workers’ access to care, satisfaction with care, return to functionality, recovery at work, and earning history, the surveys are designed to give injured workers a voice in the discussion of how workers’ compensation can be improved, as well as assess how they fare in the system.

Reading through the observations, it’s easy to think that’s obvious and simple; yet, similar issues have existed for several decades, indicating implementation is not as simple as it seems. According to Safety National Conference Chronicles, the observations include:

  • Among workers who had worst claim outcomes, 48% had a strong fear of being fired after a workplace injury. There may be real justification for concern or a more general lack of trust in the employer.
  • Those concerned about being fired from the workplace retain attorneys.
  • Back in the mid 1990s, a study of back injury cases in New Hampshire showed a strong correlation between prolonged disability and the injured worker feeling their supervisor was negative and unsupportive.
  • Some of the words used by claims adjusters and employers can have very negative impacts on the message. Words such as claimant, adjudication, pending investigation, etc., focus on conflict and the process, ignoring the person who actually had the claim.
  • Another study found that when the claims handler expressed empathy, engaged in active listening skills and took the time to explain benefits claim outcomes improved.
  • Simply asking the worker “do you feel you will be able to return to your regular job without restrictions in 4 weeks” is an excellent predictor of disability duration. If the injured worker says “no” they are usually correct.
  • If you do not have company policy and practices aligned with messaging, you will not get positive messaging from supervisors. Company culture starts at the top.
  • The medical providers and case managers also can have a significant impact on the claims outcomes.

Takeaway: Most employers understand that the initial response to an injury, continual and effective communication, and workplace satisfaction are critically important for positive claims outcomes. Yet, injured employees’ perception of their work environment and lack of communication with injured employees remain major drivers of “permanent disability.” If they feel their needs aren’t being taken into account or they are being treated unfairly, they are less likely to return to work and more likely to retain an attorney. It requires constant vigilance to be effective.

Attorney involvement

Injured workers in Illinois are more likely to lawyer up than any of 18 states studied by the WCRI, while only a small fraction of injured workers in Wisconsin and Texas had legal representation. Attorneys represented workers in 52% of Illinois claims with more than seven days of lost work time. New Jersey was a close second at 49%, with Georgia following at 41%, then California at 40% and North Carolina fifth at 38%.

Explaining the high rate of attorney involvement in Illinois, the researchers noted that the state bases permanent partial disability benefits on several factors in addition to physical impairment. It also may be more difficult in Illinois to terminate temporary disability benefits than in other states. Also, the difference between maximum permanent partial disability and temporary total disability benefits is much wider in Illinois than in other states. The maximum TD rate in Illinois is $1,362, while the maximum PPD rate is $775, providing an incentive for injured workers to keep their cases open.

On the other hand, workers had low legal representation in Wisconsin (13%),Texas (14%), Michigan (17%), and Indiana (18%). In Wisconsin, the lower attorney involvement is likely due to limits on lump sum settlements, and an administrative process for resolving disputes. In Texas, caps on attorney fees for both plaintiff and defense attorneys, the prohibition of lump sum settlements of claims, which is the main driver for attorney representation, and an efficient dispute resolution process that does not necessitate attorney involvement all contribute to reduced attorney involvement. The researchers concluded that a more self-executing system limiting settlements significantly reduces attorney involvement.

More insights to attorney involvement can be found in a 2010 study by WCRI, Avoiding Litigation: What Can Employers, Insurers, and State Workers’ Compensation Agencies Do?

The study found that workplace trust issues, fear of claim denial and injury severity are the main reasons for attorney representation in workers’ compensation claims. It’s important to point out that a simple delay in paying a medical bill or an erroneous interpretation of a communication is enough to stoke the worker’s fear that the claim was going to be denied, thus leading to attorney involvement. The most effective way to counteract this fear is through reassurance and the building of trust.

Takeaway: Treating injured employees with respect, clearly explaining the process, and making them feel confident that they will get the treatment they need and that their job is secure will help reduce uncertainty and fear.

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