Three ways detailed job descriptions protect employers and save costs

Clear, accurate, and detailed job descriptions can help employers avoid hiring the wrong person for the job, facilitate the return to work of injured workers, and reduce legal challenges. At the Workers’ Compensation Institute’s annual educational conference in Orlando, Jaime Sigurdsson, an exercise physiologist and director of workers’ compensation at CORA Physical Therapy in Longwood, Florida, explained that the job description should include essential job functions, knowledge and critical skills, physical demands, environmental factors, and any other explanatory information that may help clarify the job. The more specific, the better.

Some companies omit the necessary specifics. As an example, she explained that a requirement for a worker to lift 50 pounds doesn’t explain if it’s once or several times a day. It also does not separate method from function; instead of ‘lifting,’ ‘relocate’ may be more accurate.

A recent winner of the National Underwriter’s Excellence in Workers’ Compensation Risk Management Award, Kansas City-based Cosentino’s Food Store revamped its workers’ comp program in 2012 and has seen a 49 percent reduction of overall program cost on a per-employee, per-month basis. A key element of the program is a thorough job analysis.

In the grocery industry, most injuries are musculoskeletal, often related to lifting. Others include lacerations from box cutters or knives and the usual slips, trips and falls. In a recent propertycasualty360.com article, Aaron J. Greer, director of human resources for Cosentino’s Food Stores, noted the process starts with a thorough job analysis and post-offer testing, which means the workers hired are better able to handle the jobs with less risk of injury.

He recommends spending time in each department to better understand the risks employees face and then drafting the most detailed job analysis possible. To actually experience the job is eye-opening; it uncovers risks and can shed light on alternative methods of performing essential jobs.

In addition to the hiring process, a detailed job description can facilitate an injured worker’s recovery process. During recovery, workers can do a modified version of their job or a slightly different job and gradually progress to full recovery. To make this happen, the treating physician must have essential information about workplace policies, job demands and the availability of transitional work. Greer shares his job descriptions with the company’s medical providers and invites them to the stores to see firsthand how employees do their jobs, matching actions to job descriptions.

When an employer can select their physicians, it’s important to choose doctors who are experienced and understand the nuances of occupational health. A thorough job description will help ensure that workers can get back to work and function quickly – but not so quickly that they reinjure themselves. Employers who can’t influence physician selection should look to case managers or nurse triage providers who are closely aligned with the company’s recovery-at-work philosophy.

Since the Cosentino stores are open long hours, they established an open-to-close program with a dedicated phone line that connects employees to a nurse assigned to them. Well-versed in the stores’ processes, the nurse understands the detailed job requirements, and directs injured employees to the correct provider immediately. The early intervention reduces the likelihood that the claim will escalate.

When done properly, job descriptions can also protect employers from lawsuits related to the Americans with Disabilities Act (ADA) and other laws that protect workers from discrimination. While the law does require accommodations in most cases, case law has generally supported employers when an employee cannot perform the “essential job functions.” Inadequate or inaccurate job descriptions can complicate a claim and lead to bad outcomes for both the employer and the employee.

Equally problematic is overstating the job requirements. Weight loads get many employers into trouble, as demonstrated by a recent case in the 9th U.S. Circuit Court of Appeals in San Francisco, Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C. While the job description asserted that lifting 75 to 100 pounds was an essential job function, in reality, the most that was lifted on a regular basis was about 40 pounds. The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.”

Detailed job descriptions are a critical component of a successful Workers’ Comp program. With a robust program, the employee feels valued, protected, and knows appropriate work will be available if they are injured. It’s not a restriction; it’s a way to help them stay on the job and maintain a healthy and productive life.

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

Things you should know

Opioid spending down but topical medications up

A report by Coventry Workers Comp compared its 2017 data on managed claims, representing 77.6% of total comp prescriptions, and unmanaged claims. Overall drug utilization in comp was down in 2017 – especially in opioids and compounds medication, an overall industry trend – with 5.9% drops in managed claims and 7.4% in unmanaged claims.

However, topical medications prescribed in the unmanaged category of claims jumped 9.8%, compared with a 6.5% drop in the managed category. This was driven by “high-dollar, private-label topical analgesics marketed directly to physicians’ offices… contributing to the significant rise in unmanaged topical utilization per claim – demonstrating the need for continued focus on moving these transactions.”

Safety standard for wind turbine workers

The American Society of Safety Professionals has published the first U.S. industry consensus standard written specifically for the construction and demolition of wind turbines.

White paper suggests Medicare Set Asides greatly inflate costs

A new white paper produced by Care Bridge International, suggests that conventional Set Aside practices greatly inflate costs to claims payers, by as much as doubling the cost. The company is a data analytics firm, that uses a massive claims database to estimate the true exposure of future medical treatment and costs in Medicare Set Asides for workers’ compensation claims.

Health care workers, PPE and infection control: Study finds failures to follow protocol

Health care workers may be contaminating themselves and their work environments by neglecting to use personal protective equipment and follow preventive protocols, according to a study from researchers at the University of Michigan and the University of Utah. The study was published online June 11 in JAMA Internal Medicine.

CPWR offers skin cancer prevention tips for outdoor workers

Workers who spend all or part of their days outdoors have an increased risk of developing skin cancer, the Center for Construction Research and Training (CPWR) cautions in a recently released hazard alert.

Highly repetitive work in cannabis industry increases risk for musculoskeletal disorders

Employers in the marijuana industry should provide safeguards to protect workers from repetitive stress injuries, NIOSH states in a recently released Health Hazard Evaluation Program report.

European Commission adopts new rules on pilot mental health requiring airlines

Three years after the Germanwings crash in which a pilot deliberately flew a jet into a mountainside, the European Commission has adopted new rules on pilot mental health requiring airlines for the first time to carry out a psychological assessment of pilots before they hire them.

States bolster whistleblower protection

An analysis by watchdog group Public Employees for Environmental Responsibility (PEER) found that most states have expanded their whistleblower protection laws over the past 12 years, including 10 states that have done so in their most recent legislative sessions. The PEER analysis includes a report card detailing where all the states rank in different categories.

State News

California

  • Cal OSHA stronger enforcement has led to more citations and higher fines. In 2016, it inspected 813 businesses, finding 93% of them out of compliance, issuing 2,736 citations, 15% of them serious, all totaling $2.5 million in fines – nearly double the amount for the same number of citations from two years earlier.
  • Although workers’ compensation insurance rates have dropped 22% since 2014, the state still has the highest rates in the country, representing one-fifth of the premium collected nationwide with only 11% of the national workforce, according to a report released recently by the Workers’ Compensation Insurance Rating Bureau.

Indiana

  • A new procedure for submitting settlement documents to the Workers’ Compensation Board took effect Aug. 1 and will become mandatory Sept. 1. All settlement agreements and proposed orders, as well as supporting documentation, should be submitted to WCB electronically in a PDF format. WCB has provided a checklist of elements that should be included, or not included, in settlement documents.

Pennsylvania

  • The Governor introduced opioid prescription guidelines in a booklet to “help health care providers determine when opioids are appropriate for treatment of someone injured on the job.” It is one of 11 guideline booklets on the subject.

North Carolina

  • After three years of litigation, the new ambulatory surgery center fee schedule became effective June 1. The new rules.

Tennessee

  • Strict new claims-handling standards took effect Aug. 2, the first revision to the standards since they were enacted almost 20 years ago. The new rules will require greater attention to detail, better communication with injured workers, and low error rates on electronic data submissions.

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

Legal Corner

ADA
Lawsuit over lifting restrictions reinstated

In Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C, the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court and reinstated a lawsuit filed by a dialysis technical specialist.The court found that the former employee’s and another technician’s statement that the most he lifted on a regular basis was about 40 pounds, conflicted with his former employer’s assertion that lifting 75 to 100 pounds is an essential job function.

The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.” Alternatively, said the ruling, “if the lifting requirement was an essential function, he may have been entitled to an accommodation that the employer waive the formal lifting condition.”

Supermarket chain pays over $800,000 to resolve ADA charges

A Salt Lake City-based supermarket chain, Associated Fresh Market, will pay $832,500 to settle an EEOC charge that it denied reasonable accommodations to disabled individuals. It also has agreed to change its ADA policies and procedures and conduct training for its human resources team, store directors, assistant store directors and employees.

FMLA and ADA
When job functions can be fulfilled, part-time work is a reasonable accommodation

The 6th U.S. Circuit Court of Appeals in Cincinnati in Heidi Hostetler v. The College of Wooster, overturned a lower court ruling and reinstated disability discrimination charges filed by a college worker terminated because her post-pregnancy disability required her to work only part time. Noting that there were genuine disputes that full time work was an essential function of the job, the court stated although it may have been more efficient and easier for the college if the employee worked full-time, but could fulfill her job duties on a part-time basis, “those are not the concerns of the ADA”.

Workers’ Comp
Exclusive remedy bars suing company for asbestos exposure – California

In Allen Rudolph et al.,vs. Rudolph and Sletten, Inc., the 1st District Court of Appeals ruled that a person who was sickened by asbestos could not sue the company allegedly responsible for his exposure, even though the Supreme Court has ruled that employers have a duty to protect workers’ families from exposure through contact with fibers that come home on the employees’ skin, hair and clothing. The worker was exposed to asbestos as a child at home as well as a worker at the father’s construction company.

Tort claims by employees for injuries that are collateral to, or derivative of, a compensable workplace injury are barred by the exclusive remedy. A substantial contributing cause of his illness was his job exposure to asbestos and the exposure at home did not create a separate injury outside workers’ compensation coverage.

Out-of-state football player could not pursue a cumulative trauma claim – California

In Larry C. Tripplett v. Workers’ Compensation Appeals Board, Indianapolis Colts et. Al, the 4th District Court of Appeal ordered publication of its ruling finding that an out-of-state football player, who was a resident of the state, could not pursue a cumulative trauma workers’compensation claim in the state because there’s no proof he signed his National Football League contract there and he only played two games there.

At issue is jurisdiction, according to the court record. Since he was not “hired” (there was no evidence the contract was executed in the state) and the cumulative injury occurred at his retirement, rather than during any particular game, he was not entitled to workers’ compensation benefits.

Court finds financial need for advance to pay for litigation costs should be considered – Florida

In Anderson v. Broward County Sheriff’s Office, the 1st District Court of Appeal overturned a judge of compensation claims and ruled a worker’s financial need for an advance payment should be considered even when the purpose is to pay for expenses related to establishing compensability. An injured worker who had returned to full duty after nine months on light duty was seeking an advance to pay for an independent medical exam in support of a pending claim for continued medical treatment.

The court saw “no reason why the claimant’s financial need (or lack thereof) should not be considered when the purpose of an advance is to pay for litigation costs rather than other expenses such as rent or utility bills.”

Jimmy John’s not a joint employer – Illinois

The U.S. District Court in Chicago granted sandwich shop franchiser Jimmy John’s L.L.C, summary judgment in Re: Jimmy John’s Overtime Litigation. The court noted, “Jimmy John’s has established that it does not: (1) have the power to hire or fire franchise employees; (2) supervise and/or control employee work schedules or conditions of payments; (3) determine the rate and method of payment or (4) maintain employment records for franchise employees.”

Misclassification statute does not apply when employee sues employer – Michigan

In McQueer v. Perfect Fence Co., a laborer who worked intermittently for a fence company and had been directed to stop using a Bobcat as a hammer, but did not stop a fellow worker from doing so, was injured. He claimed the employer told him not to report his injuries as work-related because he was “not on the books” and there were no workers’ compensation benefits. However, he did receive benefits.

The Supreme Court reversed a finding of the state’s Court of Appeals noting a provision that prohibits the misclassification of certain employees in order to avoid workers’ compensation liability, did not apply to an injured employee who sued his employer, alleging an intentional tort. The statute provides a civil remedy to an employee of a contractor engaged by a principal, which was not the case here, thus the employee misclassification provision did not apply to him.

Squabbling employers must pay attorney fees – Minnesota

In Hufnagel v. Deer River Health Care Center, a nursing assistant aggravated an earlier back injury. A few years after she returned to work from the first injury, the company was sold and the workers’ comp insurer changed. When she experienced back pain, the new company denied liability, noting the need for medical treatment was a continuation of the prior work injury, which is under a different insurer. After nearly two years of legal proceedings that included six medical examinations, a Workers’ Compensation Court of Appeals judge overturned a lower ruling and ruled that the current employer was liable for the aggravated injuries.

In upholding the decision, the Supreme Court noted, “the efforts by each employer to shift responsibility to the other employer greatly increased the burden on counsel to provide effective representation… We therefore hold that (Ms.) Hufnagel was entitled to receive reasonable attorney fees.”

Auto insurer must pay work-related chiropractic treatment – Minnesota

In Jennifer Rodriguez v. State Farm Mutual Automobile Insurance Co., the Court of Appeals ruled that State Farm Mutual Automobile Insurance Co had to pay for an insured’s chiropractic treatment after the workers’ compensation insurance carrier stopped paying because they exceeded the 12 weeks specified under the work comp treatment guidelines. The employee was a bus driver who was injured when a person driving a stolen vehicle crashed into her bus. According to the court, it is up to the no-fault automobile insurer to seek payment from the workers compensation insurer, if applicable, and the court did not express an opinion whether treatment was considered excessive under workers’ comp regulations.

Overtime must be included in calculation of AWW – Mississippi

In Nixon v. Howard Industries, an assembler injured his back and the company stipulated that his average weekly wage was $645.40, which included overtime. A vocational rehab counselor determined that he could still work, but at a much-reduced wage. An administrative judge found that the injury had caused a loss of wage-earning capacity, but based the pre-injury weekly wage by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. After several appeals, the Court of Appeals noted the average weekly wage is to be calculated by taking the actual earnings over a period of 52 weeks and dividing the sum by 52. Permanent partial disability is determined by two-thirds of the difference of the average weekly wage before the injury and earning capacity post-injury.

Knee injury aggravated at home compensable – Mississippi

In Prairie Farms Dairy v. Graham, an employee injured his knee while making a delivery of milk and underwent surgery, but continued to have problems with his knee. A little less than a year later, he fell at home because his knee gave way and he experienced back pain. Several years earlier he had had back pain and the nurse case manager told him an appointment with the physician would not be allowed because it was a pre-existing condition. He saw his personal health physician, but filed a petition demanding benefits for his knee injury and a subsequent injury to his back.

The company contested the compensability of the back condition, but the Workers’ Compensation Commission and the Court of Appeals approved it. The court noted that industrial loss is not synonymous with functional loss and means that a loss of wage-earning capacity has occurred. There was no dispute that the employee was not able to return to his position and that his earning capacity had greatly decreased. Further, the court said “every natural consequence” that flowed from the knee injury was compensable under law.

Legislative change to lump settlements process applies to pending cases – Nebraska

In Dragon v. Cheesecake Factory., the Supreme Court ruled that a legislative change to the process for finalizing lump-sum settlements applies to cases that were still pending when the statutory amendments took effect. The legislative change provides that a verified release becomes effective once payment is made and the Workers’ Compensation Court enters an order of dismissal with prejudice. According to the court, this was a procedural, not substantive, change and, therefore, applicable to pending cases.

The court also ruled that the existence of a legitimate question over the enforceability of liens against the settlement does not excuse an employer from making timely payment of the settlement amount.

Worker cannot raise “increased risk” argument on appeal – Nebraska

In Maroulakos v. Wal-Mart Associate, a worker who complained of not feeling well, fell and had a seizure. He sustained a facial laceration, sinus fractures and possibly a traumatic brain injury causing neurocognitive impairment. While he argued he tripped over a pallet, video surveillance and witness accounts did not support this. A compensation court judge determined that the fall resulted from an idiopathic seizure and syncope event that was personal to him and not compensable under workers’ comp and the appeal was heard by the Supreme Court.

The Court noted that the injured employee had not raised the issue of falling into a shelfing unit nor the ‘increased danger rule’, which recognizes that when an employment hazard causes or increases the severity of an injury sustained from an idiopathic accident, the injury becomes compensable. Since he had not raised this at trial, he could not raise on appeal.

Claim of injury isn’t sufficient for benefit award – New York

In Matter of Elias-Gomez v. Balsam View Dairy Farm, a farmhand claimed that he injured his right shoulder on a specific date, approximately one year earlier, while assisting in a “particularly difficult” birth of a calf. However, the farm representative testified that no calves were born on that date and there was no report of injury.

State comp law provides that, absent substantial evidence to the contrary, there is a presumption that an accident that occurs in the course of employment also arises out of such employment. However, this cannot be used to establish that an accident occurred nor relieve the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment.

Benefits can be terminated even though worker still experiences pain – Pennsylvania

In Hernandez v. WCAB (F&P Holding Co.), the Commonwealth Court ruled that an employer could terminate benefits to an injured worker, although a judge accepted the employee’s testimony about lingering pain. A worker who was on light duty, injured his back and received workers’ compensation. However, when his doctor imposed further restrictions, the company could not accommodate and fired him.

When the employee filed a petition seeking compensation for the decrease in earning power, the company argued that the new restrictions were not related to the injury and filed a petition to terminate its payment of benefits, arguing the worker had fully recovered. A workers’ comp judge and the Commonwealth Court agreed. While the judge accepted the employee’s testimony of his continued pain, the court noted, a worker could forever preclude the termination of benefits by merely complaining of continuing pain.

Pennsylvania case law shows an employer can terminate benefits, even if a worker credibly testifies about the existence of ongoing pain, so long as the employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the worker is fully recovered, can return to work without restrictions and that there are no objective medical findings that either substantiate the claims of pain or connect them to the work injury.

Hearing loss compensable despite long filing delay – Tennessee

In Westby v. Goodyear Tire & Rubber Co., the Supreme Court’s Special Workers’ Compensation Appeals Panel upheld an award of benefits to a worker for his hearing loss, even though he did not file his claim until years after he told his doctor he was aware he was losing his hearing. For much of his career with Goodyear, the worker was not required to wear hearing protection, but the company made it mandatory in the last few years of his employment. He told a doctor in 2002 that he knew he had hearing loss and that he had known for at least 10 to 15 years, but he did not file a comp claim until 2012.

The company contested his claim, contending he had failed to give timely notice of injury; however, the court noted case law has established that the statute of limitations for filing a workers’ compensation claim involving gradually occurring injuries does not begin to run until the date the employee is unable to work due to his injury. This is known as the “last-day-worked rule”. It also noted that the worker’s hearing tests demonstrated a continued loss of hearing and the test results were the actual notice of injury.

Hearing loss work related – Wisconsin

In Harley-Davidson Motor Co. Group L.L.C. v. the Labor and Industry Review Commission, an appeals court upheld a labor review commission’s ruling that a former employee of Harley-Davidson Motor Co. Group L.L.C. and Transportation Insurance Co. suffered an 84.67% hearing loss as a result of his employment. In this case, the medical opinions of the company-designated physician disagreed with that of the treating physician. An independent medical exam determined work-related hearing loss, but his calculation method was contrary to the state’s administrative code, which requires the calculation to be based on pure tone testing. Although the independent medical examiner found the pure tone test unreliable, the review commission and circuit court found them reliable and awarded an 84.67% binaural hearing loss.

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

OSHA watch

Proposed changes to recordkeeping rule

According to a Notice of Proposed Rulemaking (NPRM), the proposed changes would rescind “the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries.” The change is proposed to protect sensitive worker information from potential disclosure under the Freedom of Information Act and to protect the privacy of employees injured on the job. Three organizations filed a suit against the U.S. Department of Labor, the Secretary of Labor and OSHA over the proposed changes.

Increase in worker fatalities gets attention in Missouri, Kansas, and Nebraska

Thirty-four worker deaths in Kansas, Missouri and Nebraska with the increase linked to falls, struck by objects and vehicles, machine hazards, grain bin engulfment, and burns have led to an educational campaign about the resources available. These include free compliance assistance for small- and medium-sized businesses, as well as each state’s free On-Site Consultation Program for employers. Also available is the agency’s Recommended Practices for Safety and Health Programs.

Consider screening workers for heat stress when index hits 85 degree

A threshold for moderate occupational heat risks starts at a heat index of 91° F, but that “might not be sufficiently protective,” according to an analysis, which suggests that when wet globe bulb temperature is unavailable, a heat index of 85° F could be used to screen for hazardous workplace environmental heat.

Free stickers on trenching safety offered

A new sticker intended to raise awareness of trenching safety reminds workers to “slope it, shore it, shield it.” The free stickers are available in English and Spanish.

Proposed rule exempting certain railroad work, machines from parts of crane standard

A proposed rule that would grant exemptions to its Cranes and Derricks in Construction Standard for work on or along railroad tracks was published in the July 19 Federal Register and comments will be accepted until September 1st.

New publications

Updated webpage on avian influenza

The updated Avian Influenza page provides information on protecting workers in egg and poultry production, veterinary facilities, pet shops, and food servicing who may be exposed to infectious birds or poultry products.

Michigan OSHA clarifies requirements for eyewashes and safety showers

MIOSHA released a new Fact Sheet, Eyewashes and Safety Showers.

Cal/OSHA publishes information on the hotel housekeeping musculoskeletal injury program

A fact sheet and poster is now available.

Enforcement notes

California (Cal OSHA)

  • Marine cargo handler, SSA Pacific Inc, was issued $205,235 in fines for six willful and serious safety violations following the investigation of a fatal forklift accident at the Port of San Diego.
  • Commerce-based Pixior, LLC, faces 11 citations and $97,430 in penalties after a worker was struck by a forklift.

Florida

  • North Florida Shipyards Inc., a shipbuilding and repair company, faces $271,061 in proposed penalties for multiple violations after an employee suffered fatal injuries at its Commodores Point facility in Jacksonville.
  • Bakery Management Corp., doing business as Bakery Corp., was cited for exposing employees to caught-in, fall, and electrical hazards. The Miami-based commercial bakery faces proposed penalties of $67,261.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Bluewater Construction Solutions Inc. was cited for exposing employees to dangerous falls at two south Florida worksites. The Melbourne-based residential framing contractor faces proposed penalties of $48,778.
  • BC Direct Corp., doing business as Robotray, a Miami-based manufacturer of bakery rack loaders, was cited for exposing employees to struck-by, electrical shock, fire, and explosion hazards and faces $42,682 in proposed penalties.

Georgia

  • Dupont Yard Inc. was cited after an employee suffered a partial hand amputation and other injuries while working on unguarded machinery in Homerville. The wooden post manufacturer faces $109,548 in proposed penalties.

Illinois

  • Cleary Pallet Sales Inc., a Genoa-based pallet manufacturer, faces proposed penalties of $216,253 after 10 employees required emergency medical treatment for carbon monoxide exposure, which was nearly 10 times the permissible exposure limit and other violations.

Michigan (Michigan OSHA)

  • Five citations and $77,600 in penalties were issued to Woods Carpentry, Inc., for exposing workers to fall hazards.

Missouri

  • Karrenbrock Excavating LLC was cited for allowing two employees to work in an unprotected trench while installing sewers. Proposed penalties are $189,221.

New York

  • Timberline Hardwood Floors LLC was cited for willful and serious violations of multiple workplace safety and health standards. The Fulton custom hardwood-flooring manufacturer faces proposed penalties totaling $182,917.

North Carolina

  • Belhaven Shipyard and Marina Inc., doing business as TowBoatUS River Forest, faces $11,640 in proposed penalties after an employee drowned when a towboat capsized while operating in a winter storm.

Wisconsin

  • Carlos Ketz, who operates as Ketz Roofing, was cited for the sixth time in the past five years for exposing employees to falls. Proposed penalties total $48,777.

For more information.

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

HR Tip: SHRM benefit survey on popular perks30

aAccording to the Society for Human Resource Management’s (SHRM’s) 2018 Employee Benefits Survey the current low level of unemployment is driving employers to beef up their benefits to retain and recruit employees. More than two-thirds of the employers in the survey raised their benefit levels in the past 12 months. There were expanded offerings in:

  • Health-related benefits (up among 51 percent of respondents)
  • Wellness (44 percent)
  • Employee programs and services (39 percent) such as retirement savings and advice
  • Professional and career development benefits (32 percent)
  • Leave, family-friendly and flexible working benefits (each 28 percent)

The report details the types of increased benefit offerings in each category as well as trends that have stabilized or reversed. For example, under Wellness, it notes that substantial increases were seen in:

  • Company-organized fitness competitions/challenges (38 percent, up from 28 percent last year).
  • CPR/first aid training (54 percent, up from 47 percent).
  • Standing desks (53 percent, up from 44 percent).

“One sign that employers are targeting their benefit spending for maximum effectiveness: Since 2014, the share of organizations offering offsite fitness center memberships fell to 29 percent from 34 percent, while those that provide a subsidy/reimbursement for offsite fitness classes rose to 16 percent from 12 percent. Too often, people will join a gym but rarely go, employers found, while those who sign up for classes are likely to use them.”

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

The forgotten question in PPE training

Even employers who have carefully researched the options, involved employees in the selection of PPE, and ensured that it is comfortable, attractive, and fits properly, still struggle to get workers to use it. Training often focuses on how to properly wear PPE, when it should be worn, the limitations, how to care for it, and how to determine if it is damaged.

Missing or generalized is the question, “Why?” A common reason PPE is not used is the employees do not think about it because they are rushed or tired or they believe it is not necessary for the task. Employees may have performed the same task for many years and have never been injured. In their mind, there is no compelling reason to use it.

Many people don’t like reading big chunks of text or listening to boring PowerPoint presentations, so you might want to rethink your training program. In this digital age, there are countless resources for case studies, visuals, and videos relating to PPE. Personal accounts from people who have suffered injuries or illness when not wearing PPE are most effective when they are relevant, concise, and compelling.

Be selective… don’t focus on fear mongering or cheesy humor that can trivialize the importance of PPE. Humor can be effective, when it fits the situation. Sending employees a periodic email or text with a visual or video is a good way to supplement regular toolbox talks on PPE and keep it top if mind.

The message should not be one of compliance but why employees shouldn’t let their guard down – how quickly accidents can happen, how wearing PPE can protect against other people’s mistakes, and how it isn’t just about them – it’s about their future, family, co-workers, friends, and even pets, etc. Make it urgent and appeal to them with compelling stories. It can also be helpful to have a bulletin board in the staff room or where workers store their PPE. Encourage people to pin pictures of family, friends, pets, or whatever motivates them to stay safe every day.

It’s important to stay focused on changing the desired behavior. If someone is not wearing PPE, they should be asked “Why?” and a dialogue begun. Ultimately, the goal is to transform PPE use into an unconscious habit.

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

How employers get tripped up by the complexities of Workers’ Comp, ADA, and FMLA regulations

While Workers’ Comp (WC), ADA, and FMLA laws have been in place for many years, the overlap between the three is a constant challenge.The laws have different time frames, duration, and rules around eligibility and use the same terminology with different meanings. Several states, notably California and New York, have adopted their own leave of absence laws that are more expansive than the federal laws, and case law is constantly evolving and varies by region.

Here are common issues that get employers into trouble:

Length of leave

FMLA requires employers to provide up to 12 weeks of unpaid leave for a serious health condition and/or birth/adoption of a child. For eligible employees, the leave cannot exceed 12 weeks under law, but additional leave can be granted under the ADA. Leave can also be intermittent.

Under the ADA, employers must consider providing unpaid leave as a reasonable accommodation for employees with a disability, which is defined as a physical or mental impairment that substantially limits a major life activity. Leave can be intermittent. The EEOC notes that leave qualifies as a reasonable accommodation “when it enables an employee to return to work following the period of leave.”

While the maximum length of leave is undefined, the EEOC and several federal appellate courts have said that leave of “indefinite duration” can be considered an undue burden on the employer. Some courts have gone so far as to say that individuals seeking excessively long or undetermined leaves need not be accommodated because they are not “otherwise qualified” for their jobs under the ADA. The ADA protects individuals with disabilities who are otherwise qualified, with or without accommodation, to perform the essential functions of their jobs.

There are no limits on the length of leave under WC, although some states use evidence-based medicine guidelines to control WC costs. While workers’ comp provides for income replacement and health care, it does not, necessarily, provide job protection. This varies by state law.

Common issues:

  • For WC claims, FMLA leave should run concurrent with the WC leave. A workplace injury that requires time away from work and meets the criteria for a ‘serious health condition’ under FMLA should trigger an assessment of the worker’s eligibility for FMLA and, for those eligible, initiation of the paperwork process. If the employer properly notifies the employee in writing that the time off work receiving WC benefits will be counted as FMLA leave, it is counted against the employee’s applicable 12-week entitlement. Periodic treatment or therapy can count as intermittent FMLA leave.
  • The ADA and WC define disability quite differently. The ADA is not intended to cover temporary medical conditions. Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Moreover, a WC determination of permanent total disability doesn’t necessarily affect an individual’s ability to return to work under the ADA, although it may provide relevant evidence regarding an employee’s ability to perform the essential functions of the position or to return to work without posing a direct threat to themselves or others.
  • Staff is not adequately trained in what constitutes a ‘serious health condition’ under FMLA. Some experts define it as incapacity of more than three consecutive calendar days and/or continuing treatment. For example, if a worker is being treated for chronic back pain but has not been incapacitated for three days, it still might be covered. Migraines could be covered, but not headaches. Typically, routine care such as eye or dental exams, the flu, colds, and conditions where the treatment is limited to OTC medications are NOT serious health conditions.
  • Managers may fail to recognize that FMLA has been requested. The employee does not have to use the term ‘FMLA’ to request leave; rather, the employee must only give notice of the need for leave that is protected by the FMLA.
  • Once an employee exhausts the protected leave of 12 weeks under the FMLA, the employer must consider whether the employee is eligible for additional leave under the ADA. The ADA requires employers to “reasonably accommodate” employees with disabilities and such accommodation can include granting additional leave. In some cases, the ‘serious health condition’ can qualify as an ADA disability. ADA’s broad definition of “disability” can include mental afflictions such as depression and anxiety. An employee need not mention the ADA or ask for a “reasonable accommodation” to put the employer on notice of a possible need for accommodation. In some cases, a serious workplace injury should trigger the interactive process, sooner, rather than later.
  • Recordkeeping is lax, particularly involving intermittent FMLA leave. Documentation of the interactive process for ADA must be rigorous.

Benefits and reinstatement

Both the FMLA and ADA have reinstatement and benefit maintenance requirements, although the ADA allows an exception for ‘undue hardship.’ The ADA requires employers to reinstate employee to their previous position unless it causes undue hardship and maintain benefits the same as similarly situated employees on leave. Under the FMLA, health benefits must be maintained, others are based on policy. It protects the employee’s job during the leave period, and at the end of the leave an employer must return the employee to his or her original job or its equivalent.

While WC provides for income replacement and health care, it does not, necessarily, provide job protection. This varies by state law. However, employers are typically prohibited from terminating or otherwise taking adverse action against an employee in retaliation for the employee’s filing of a WC claim.

Common issues:

  • When an employee is covered by both ADA and FMLA, the reinstatement policy must allow return to the same job, not just an equivalent.
  • Employees incurring a compensable workers’ comp injury may be eligible for leave under ADA and FMLA. If so, the maintenance of benefits and reinstatement of employees to the same or an equivalent position as required by the laws is applicable.
  • Employees on workers’ compensation leave cannot be subjected to retaliation for filing an injury claim or collecting benefits, but they could be disciplined or terminated for legitimate reasons, including a refusal to report for work when expected or required, even if the expectation is to perform light-duty work.

Light duty assignments

Under the FMLA, employers can’t require employees to work during leave. Contact with employees to obtain information, such as passwords, needs to be brief and concise. Employees can reject a light duty assignment and can choose to stay home until they can return to the former position (or to an equivalent position), or until the available FMLA leave is exhausted.

Under WC, if an employee has been medically cleared for a light duty assignment, in many cases, the employer can terminate WC benefits if the employee refuses the assignment.

Under the ADA, light duty is a permissible accommodation. The employer is not required to provide the employee’s preferred accommodation. However, the law does not require employers to agree to a permanent light duty assignment as a form of reasonable accommodation.

Common issues:

  • An employee cannot be disciplined or terminated for refusing light-duty work when the absence is protected under the FMLA. If the employee is receiving WC benefits, the employer can terminate or modify the benefits.
  • Often in WC cases, the issue of whether an injured employee can return to work is decided by the claims adjuster in consultation with the employer, based on the work restrictions issued by the treating physician. Under the ADA, employers are typically not required to create even temporary light duty positions as an accommodation, but courts have differed on an employers’ obligations to open WC light duty programs to all disabled employees. When employers do, under the “interactive process” of the ADA, a more flexible approach that involves an open dialogue between the injured employee and the employer is required.
  • It is common for employers dealing with injured employees to impose a fixed limit, for example, a 90-day limit, on the length of light-duty transitional work. While such a fixed limit might not violate the requirements of the ADA, when the fixed light-duty period ends, just as when an employee’s leave is exhausted, the employer and employee would be required to reengage in the interactive process.
  • Under the ADA, while an employer cannot require an employee to do something that is inconsistent with restrictions listed by the employee’s doctor, an employer can require an employee to return to work if the employee can perform the work required with or without a reasonable accommodation. The interactive process is fluid and accommodations must constantly be adjusted as the restrictions and the job changes.
  • Under WC, light duty work must be consistent with medical restrictions set by the treating doctor. If an employee chooses not to take a light duty job that accommodates the medical restrictions, the employer can terminate or modify the benefits.
  • Managers and supervisors must be properly trained in implementing stay-at-work and return-to-work programs.

Medical inquiry/documentation

Under the ADA, medical inquiries must be job-related and necessary to assess ability to perform the essential functions of the job. Under the FMLA, employers can request certification of serious health conditions from healthcare providers and must give employees 15 days to provide certification. In WC, the discovery allowed can be broad and include pre-existing conditions. HIPAA’s privacy rule allows WC insurers, third-party administrators and some employers to obtain the necessary medical information to manage their WC claims. Disclosure of medical information can vary from state to state.

Common issues:

  • Under the ADA, medical examinations should be limited to determining an employee’s ability to perform the job and whether an accommodation is needed and would be effective.
  • Under the FMLA, a medical certification should demonstrate the need for leave but not exceed what is requested by the Department of Labor’s medical certification form.
  • Employers need to understand the state laws governing medical privacy and workers’ comp claims.

Complying with the array of laws and regulations governing work-related injuries is complicated for employers and their counsel. Employers must examine the requirements of each individual statute, and how they interrelate. Throughout the process, encourage open communication with the employee, rely on sufficient medical documentation, maintain consistency in decision-making, document the process, and monitor the leave.

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

Determining the risks of delayed recovery

One of the most perplexing problems in workers’ comp is delayed recovery, or relatively minor claims that become long-term, costly claims. Often the claims go unnoticed until significant dollars are spent on procedures, surgeries, and medications for an injury that should have healed long ago. While these claims may only represent 6 – 10% of all claims, they can consume 80 percent or more of medical and indemnity resources, according to Integrated Medical Case Solutions.

Yet, if identified early, proper intervention prevents the delayed recovery. Research suggests that psychosocial factors play a large role in these “creeping catastrophic claims.”

Pioneers of diagnosing and treating injured workers with psychosocial risk factors, Michael Coupland, the CEO and Network Medical Director of Integrated Medical Case Solutions, and Steven Litton developed a simple pain screening questionnaire (PSQ). Though widely used in Canada and several other countries, it is just starting to catch on with the U.S. workers’ compensation system, according to an article in Property Casualty 360°.

It includes ten questions or statements related to the injured worker’s pain attitudes, beliefs and perceptions, which the injured worker rates on a scale of 1 to 10. The article notes that one of Coupland’s favorite questions is ‘I should not do my normal work with this amount of pain,’ which gives insight into work attitudes, catastrophic thinking, and fear-avoidance behavior.

Physicians focus on the pain and physical diagnosis and prescribe MRIs, tests, surgeries, and even opioids. Costs escalate with little relief of pain. The underlying psychosocial factors go untreated and include:

  • Catastrophic thinking – or OMG! Thoughts. Despite the injury or illness, people believe they are beyond the ability to recover.
  • Fear avoidance. Workers are so concerned about further injuries, they avoid doing anything that might exacerbate the pain.
  • Anger and perceived injustice. Regardless of how long someone has worked at their company, they feel a disservice has been done to them.
  • External focus of control. Workers rely on their medical providers and others to fix them, rather than taking any responsibility for their own recovery.

Since 2013, Albertsons Safeway has used the test to determine the risk level of delayed recovery, giving it to all injured workers with indemnity claims two weeks post injury. According to a blog post by the IMCS Group, the average amount paid per claim rose exponentially with risk level. Looking at data from the 2013 – 2015:

Risk Level # of Injured Workers Average Amount Paid
Low 1,031 $2,059
Low-Moderate 307 $10,759
Moderate 145 $21,783
High 192 $26,212
Very High 148 $39,967

The injured workers who scored high or very high were given the opportunity to undergo cognitive behavioral therapy (CBT). About half agreed to do so. Unlike traditional psychotherapy, CBT is brief. The goal is for injured workers to cope with their pain, rather than be cured of it.

The blog post, Early CBT Intervention Changes Lives, Saves Money for WC Payers, explains the company created three groups of injured workers that had scored as high-risk on the PSQ to test the effectiveness of the CBT intervention. One group that participated in the CBT program; a second group that chose not to participate; and a third group of injured workers that had not been offered CBT.

Here are the results:

Group Average Total Paid
Participated in CBT $36,629
Did not participate $44,356
Were not referred to CBT $73,488

Those who engaged in CBT returned to work much sooner than those in either of the other two groups. According to an Albertsons Safeway representative, the program resulted in an estimated 30 percent reduction in total claims cost.

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

Things you should know

Utility sector workers at higher risk of serious injuries: Study

Employees in the utility sector are at higher risk for serious injuries and fatalities than workers in other industries such as construction, manufacturing and mining, according to a study conducted by workplace safety consultancy DEKRA North America Inc. Water utilities have the highest SIF exposure rate at 42%, followed by electric utilities at 32%, and gas utilities at 29%. Overall the utilities sector has a 32% SIF exposure rate, which is seven points higher than the all-industry SIF rate of 25%. Motor vehicle incidents were responsible for most hazards at 30%, followed by line of fire or struck by incidents at 28%.

Older construction workers at increased risk for hearing loss: study

More than half of former construction workers have experienced hearing loss, and smoking, noise, and solvents can exacerbate the condition, according to a recent study by the Center for Construction Research and Training (CPWR).The researchers found that 58 percent of the former construction workers had some form of hearing loss and those who worked for more than 30 years were nearly four times more likely to experience hearing loss than workers with fewer than 10 years on the job.

The researchers recommend that prevention efforts center on reducing worker exposure to noise, solvents and smoking. The study was published Feb. 28 in the American Journal of Industrial Medicine.

Treatment costs for injured workers vary widely by state: Study

Prices paid for a similar set of medical services varied significantly across states, ranging from 26% below the 35-state median in Florida to 158% above the 35-state median in Wisconsin in 2017, according to a study released by the Workers Compensation Research Institute (WCRI). The study compares medical prices paid in 35 states and tracks price changes in most states over a 10-year span from 2008 to 2017.

States without fee schedules for these services had higher prices paid compared to states with fee schedules (39 to 168 percent higher than the median of states studied with fee schedules in 2017).They also found changes in prices paid for professional services varied across states, from a 17 percent decrease in Illinois to a 39 percent increase in Wisconsin.

Guide intended to help workers deal – or help others deal – with depression

The Canadian Institute for Work and Health has published a guide intended to assist workers who experience depression or support those coping with it. IWH states that the guide is applicable “to the entire workplace regardless of sector or role,” including individuals with depression, managers, co-workers, human resources staff, union representatives and worker representatives.

New CSB fact sheet outlines safe practices for hot work

The Chemical Safety Board recently released a fact sheet that offers several best practices for staying safe when performing hot work.

American Chemistry Council creates PPE infographic for auto refinishers

In partnership with OSHA, the American Chemistry Council has published an infographic to encourage workers in the automotive refinishing industry to wear the correct personal protective equipment.

NTSB releases tip card on fatigued driving in commercial bus industry

The National Transportation Safety Board has released a safety tip card aimed at reducing fatigue among commercial bus drivers. The card – designed to be stored above a driver’s visor – highlights issues of fatigue in transportation and its effects, as well as lessons learned from crash investigations. It offers tips for both drivers and bus company operators.

State News

California

  • State Compensation Insurance Fund has reduced the number of opioid prescriptions for injured workers by 60% to 23.7 million since launching its opioid-reduction program in 2014.
  • Cal/OSHA reminded employers to closely observe their employees for signs and symptoms of heat illness and instruct workers to take preventative cool-down breaks in the shade as temperatures rise.
  • Workers’ Compensation Institute said there was little change in the number of independent medical review determination letters and decisions issued in the first three months of 2018 compared to the first quarter of 2017.
  • The maximum temporary total disability benefit will increase nearly 3%, to $1,251.38 per week from $1,215.27 effective Jan. 1, 2019, per the California Division of Workers’ Compensation.

Georgia

  • Starting this month, the Board of Workers’ Compensation will begin phase two of its integrated claims management system, which utilizes new electronic data interchange standards. The board will soon grant access to insurers, self-insured employers, group funds, and claims adjusters to learn how to use the system. Watch the website for details.

Indiana

  • The workers’ compensation board has released new application forms and guidelines for self-insurers, and the agency is urging employers to make sure they complete the form in full or they will not be approved.
  • Workers’ Compensation Board put practitioners on notice that it expects to adopt a new protocol for submitting settlement agreements in the next 30 to 45 days. In the meantime, it asked that practitioners start using its new checklist to prepare settlements for submission for board approval.

Illinois

  • Beginning July 2, all parties in workers’ compensation claims cases will receive notice through electronic means and the Workers’ Compensation Commission is urging injured workers, attorneys, and employers to submit email addresses. Attorneys and injured workers representing themselves can submit email addresses with a form available at the commission’s website. Even if a party already has an address on file with the agency, the commission is building its database anew and asks that email addresses be submitted again.

Michigan

  • The application form, Form WC-104C for mediation and hearing requests was revised to make it easier to list additional parties involved in the case.

New York

  • Workers’ Compensation Board is proposing a medical fee schedule that would increase payments by 5% overall, which would affect medical, podiatry, chiropractic, and psychological treatment. This would be the first increase in fees since 1996.
  • The New York Assembly passed a bill that would let acupuncturists be reimbursed for treating injured workers.

Tennessee

  • The average total cost per workers’ compensation claim decreased 6 percent in 2015, reflecting in part the impact of reforms enacted in 2013, according to a WCRI study.

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

Legal Corner

ADA
Disqualifying applicants based on preemployment nerve conduction tests leads to $4.4 million settlement

Chicago-based Amsted Rail Co., a steel casting manufacturer, has agreed to pay $4.4 million to settle a U.S. Equal Employment Opportunity Commission class disability discrimination lawsuit for allegedly disqualifying job applicants based on the result of a nerve conduction test for carpal tunnel syndrome rather than conducting an individualized assessment of each applicant’s ability to do the job safely. The court found that the test was unlawful and had little or no value in predicting the likelihood of future injury.

In the settlement, Amsted Rail agreed to discontinue the process and compensate affected applicants for lost wages as well as conduct training and allow the EEOC to monitor hiring to assure compliance with the ADA.
Workers’ Compensation
Signing a preprinted compromise and release (C&R) form to settle a workers’ compensation claim doesn’t relieve liability for claims outside workers’ comp – California

In Camacho v. Target Corp., an appellate court found a state trial court erred when it granted summary judgment to an employer in an employment discrimination case filed by a former employee. The trial court’s decision was based on language in a preprinted Compromise & Release form, which purported to release the employer from liability for “any and all potential claims.” The appellate court noted the purported general waiver was displayed in fine print and it made no reference to any claims beyond the scope of the workers’ compensation claims.

Ruling on five-year statutory cap on the duration of temporary disability benefits stands – California

The state Supreme Court denied review of a 4th DCA decision regarding a statutory cap on the duration of temporary disability benefits. The decision noted that Labor Code Section 4656 simultaneously authorizes a maximum award of 104 weeks of temporary disability payments to a worker who suffers an injury on or after Jan. 1, 2008, and limits payments to a period of disability occurring within five years of the injury.

Housekeeper who tested positive for marijuana denied benefits – Florida

In Brinson v. Hospital Housekeeping Services, a housekeeper fell at work and dislocated her shoulder. Her supervisor drove her to a clinic, where she provided a urine sample pursuant to her employer’s post-accident drug-testing policy.

When she filed a worker’s comp claim, the company contested it. While Florida law provides a rebuttable presumption that the injury was caused by drug use, when a worker fails a post-injury drug test, it also allows a worker to rebut by presenting clear and convincing evidence that the “influence of the drug did not contribute to the injury.”

In a split decision, the court found that the evidence submitted to rebut the presumption of causation was not sufficient to award benefits. Experts testified that drug tests only detect the presence of drug metabolites, but do not conclusively indicate that drugs are active in the bloodstream or have caused impairment.

Co-employee does not have immunity for civil claim related to worker’s death – Florida

In Ramsey v. DeWitt Excavating, an appellate court ruled that the family of a construction worker could not proceed with a tort claim against his employer for a fatal accident, but the family’s claim against a co-employee could proceed. The 20-year-old construction worker was inside a cement-mixing pug mill when a co-worker turned it on.

While the 5th District Court of Appeal noted that employers generally are immune from tort liability for work-related injuries and this immunity usually extends to co-employees, there are exceptions. If the incident is caused by an employer’s intentional tort or if co-employees act with willful and wanton disregard for the well-being of the injured worker, or if they act with gross negligence, the law allows for a civil remedy.

The court found that the risk of injury was apparent; thus, the employer was entitled to summary judgment. However, it concluded evidence suggested the co-employee directed the deceased employee into the pug mill for cleaning and later activated it without checking to see if he was still inside and a jury could find this was gross negligence.

“Similar” specialty not the same as “same” specialty when authorizing a change in doctors – Florida

Under Florida law, an employee can make a one-time request to change treating physicians. In Myers v. Pasco County School Board, a worker who was being treated by an orthopedic surgeon requested a change in providers. The school board made an appointment for her to see a neurosurgeon who also treats spinal conditions, but she did not attend the appointment.

While a judge found in favor of the school board, the 1st District Court of Appeal disagreed.

“A physician who provides similar services in a different specialty does not qualify as a doctor in the ‘same specialty’ because – quite simply – ‘same’ is different than ‘similar,'” the court said.

Evidence chain issues negate intoxication defense – Georgia

A module feeder at a cotton gin was seriously injured when a truck ran into him at a loading dock. In Lingo v. Early County Gin, the company denied benefits based on a post-injury drug test finding of marijuana. When the lab technician who went to the hospital to obtain the urine sample, the injured worker was in surgery and a nurse later returned a sample to the technician.

The technician had no firsthand knowledge of who collected the sample or what protocols were followed.

The case went through a series of appeals. Noting the statutory procedures for specimen collection and testing when an employer attempts to involve the presumption of intoxication, the Court of Appeals ruled against the employer. A sample must be obtained by a physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner or a certified paramedic and while it was reasonable to assume that the sample was taken by a nurse in the operating room, “assumptions based on speculation are not evidence.”

Work comp lien from third party and the limited liability under Kotecki cap are separate – Illinois

In Cooley v. Power Construction Co. (Reflection Window Co.), an employee of a sub-subcontractor (Reflection) suffered injuries on a project. He collected workers’ comp from his employer and filed a negligence action against the general contractor (GC). When the GC filed a claim for contribution against Reflection, it asserted the “Kotecki cap” as an affirmative defense. This refers to an earlier Supreme Court decision that an employer’s liability for an employee’s injury is capped at an amount not greater than the employer’s workers’ compensation liability.

The GC argued that Reflection had waived the defense under either the master agreement, the subcontract agreement or both and a judge included a statement that Reflection’s workers’ compensation lien had also been waived. The appellate court ruled that “the lien and the limited liability under Kotecki are separate concepts.” A waiver of the Kotecki cap defense does not mean there was a waiver of the workers’ compensation lien. If the GC were found responsible for the injuries, then Reflections could recover the workers’ comp payment.

Employee killed by uninsured driver not covered under his company’s uninsured motorist coverage – Indiana

Overturning trial and state appeals court rulings, the state Supreme Court ruled that an employee killed by an uninsured driver under the influence of methamphetamine while mowing his lawn is not covered under his company’s uninsured motorist coverage. The employee was a scheduled driver under the policy who could use a company truck as his primary vehicle for personal and business transportation.

The decease’s estate claimed it qualified for coverage under the policy term, “others we protect”. Contrary to the estate’s claims, neither the declarations pages, nor the policy, nor the (uninsured motorist) endorsement expressly list the deceased as a ‘named insured,’ ‘additional insured,’ or even a protected or covered driver,” said the ruling.

Expert testimony key in cumulative injury cases – Missouri

In Ackman v. Union Pacific Railroad Co., an appellate court denied benefits under the Federal Employers Liability Act, noting the railway worker’s failure to secure expert medical witness testimony linking his alleged cumulative injuries to his job duties. The employee worked as a machine operator and argued he had suffered cumulative injuries from the repeated stress of riding on Union Pacific’s backhoes.

When the employee did not depose medical experts in response to a trial judge’s scheduling order, the company was awarded summary judgment, shifting the burden of proof to the employee. On appeal, the court noted that expert testimony is generally not required when a layperson could understand what caused an injury; but with cumulative injury cases, expert testimony is usually required to establish causation.

Non-injury related medical procedure compensable when reasonable and necessary to treat a work-related injury – Nebraska

In Carr v. Ganz, the Court of Appeals overturned a compensation court’s denial of a worker’s coronary bypass procedure to prepare him for the implantation of a penile prosthesis. The worker fell off of a horse at work, sustaining symphysis pubis and sacral fractures, and a hernia and developed urinary incontinence and erectile dysfunction. He argued he needed a penile prosthesis and could not undergo the surgery until he underwent a heart catheterization.

Ultimately, the company agreed to pay for the heart catheterization, but the employee underwent a coronary artery bypass procedure also, which the employer refused to pay for. The compensation court agreed, but the Court of Appeals ruled that the compensation court applied the “reasonable relationship” standard when it should have used the “medically reasonable and necessary analysis.”

If a medical treatment is medically reasonable and necessary to treat a work-related injury, the treatment is “required by the nature of the injury” and is compensable, even if it is unrelated to the injury.

“Going and coming rule” nixes benefits for train conductor assaulted before her shift – New York

In Rosemary Rodriquez v. New York City Transit Authority, Workers’ Compensation Board, a train conductor was on her way to work and waiting for a train when she was assaulted by a commuter who was upset by her refusal to open the station gate to let him in (without paying). She sustained multiple injuries to her face, head, neck and back.

Based on the “going and coming rule,” the Compensation Board denied the claim and the appellate court concurred, noting that the assault occurred approximately one hour prior to the beginning of her shift and the employer did not require her to utilize public transit to get to her job.

Cannot have both Nonscheduled PPD and Scheduled Loss of Use awards for same accident – New York

In Matter of Tobin v Finger Lakes DDSO, it was ruled that an injured worker may not receive both a scheduled loss of use award and a nonscheduled permanent partial disability award for injuries arising out of the same work-related accident. The worker suffered reflex sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS) and ptosis of the right eyelid entitling him to a nonscheduled permanent partial disability classification, according to the Workers’ Compensation Board, Therefore, it was appropriate to reverse a WCJ’s finding that the vision loss from a work-related injury was amenable to a 100% scheduled loss of use.

Company receives credit for disability benefits paid – North Carolina

In Haulcy v. The Goodyear Tire and Rubber Co., an employee who injured her back did not file a comp claim nor receive treatment. About a year later she experienced pain while working and was diagnosed with a disc herniation and facet arthropathy in her lumbar spine. The Commission concluded the injury was a material aggravation to a pre-existing low back condition. She filed a claim, and worked modified duty for 90 days, which was the maximum allowed by the company. She was off for about four months before she could return to work at full duty. The commission found and the Court of Appeals agreed that she was entitled to benefits for this period, but the company was entitled to a credit against the benefits of $15,521.90 for payments made under its accident-and-sickness disability plan.

Supreme Court clarifies employee classification coverage under the Construction Worker Misclassification Act (CWMA) – Pennsylvania

In Department of Labor and Industry, Uninsured Employers Guaranty Fund vs. Workers’ Compensation Appeal Board (Lin and Eastern Taste), the Supreme Court ruled that the phrase “construction industry” used in the CWMA limits its applicability to workers engaged in work for a business entity that performs construction services. As such, a worker who was injured while remodeling his sister-in-law’s restaurant was not eligible to receive workers’ compensation benefits for his injuries.

While he was doing construction work at the time of his injuries, and the serious injuries rendered him a paraplegic, the Commonwealth Court said his work at the restaurant did not bring him within the class of potential workers who could be deemed “employees” eligible for workers’ compensation benefits under the Act. He was an independent contractor, since no one oversaw the manner and means in which he did his work, and the restaurant was not a construction business.

Supreme Court clarifies and denies use of proceeds from third-party recovery for future medical benefits – Pennsylvania

In Whitmoyer v. WCAB (Mountain Country Meats), the Supreme Court noted that the workers’ comp statute provides that any subrogation recovery the employee collects from a third-party tortfeasor in excess of the benefits already paid by the employer “shall be treated as an advance payment by the employer on account of any future installments of compensation.” Although compensation can refer to both disability benefits and medical expenses, the statue specifically says compensation that is paid in installments.

The Workers’ Compensation Act requires that disability benefits be paid in periodic installments, but not medical expenses and, as such, the recovery cannot be used as a credit for future medical expenses.

Reinstatement of permanent benefits for “Pre-Protz” injured worker – Pennsylvania

In Whitfield v. Workers’ Comp. Appeal B, the Commonwealth Court opened the door to injured workers whose disability ratings were lowered through an independent medical exam (IRE) to petition for reinstatement of benefits. Last summer, the Supreme Court declared the entire IRE process void, in light of the earlier Protz decision, which struck down a statutory requirement that doctors use the “most recent” edition of the AMA’s Guides to the Evaluation of Permanent Impairment in performing IREs.

During the two years between the rulings, injured workers filed petitions seeking to have their status changed from partial disability to total disability because their status had been changed from total disability to partial disability through the IRE process. Whitfield was one such case. While the WCAB and a WCJ denied the change in status, the Commonwealth Court vacated the board’s decision.

The court instead determined that a worker whose status was modified because of an invalid IRE can get total disability status reinstated if he/she credibly testifies that the work-related injury continues and the WCJ credits that testimony over any evidence that an employer presents to the contrary. Medical expert testimony is not required. The worker must file the petition within three years of the last receipt of benefits.

Employer cannot recoup payments for disputed treatment, but doesn’t have to pay fees – Tennessee

In Young v. Sugar Hollow Properties, a workers’ comp settlement required the employer to provide future reasonable and necessary medical treatment related to the injuries. The worker’s doctors requested a treatment that the utilization reviewer did not find reasonable and necessary because the recommendation did not comply with the Official Disability Guidelines and the Department of Labor and Workforce Development agreed.

However, a trial court ordered the employer to provide the treatments and to pay legal fees. When the company appealed, the Supreme Court Special Workers’ Compensation Appeals Panel said the issue of whether the employer was required to provide the treatments was moot because the employer had paid for them. However, the award of associated fees was denied since the worker offered no evidence to establish that the recommended treatments were causally related to her compensable injuries.

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