Seven reasons to stay strategic in a Insurance Soft Market

Some businesses are experiencing an unpleasant shock when renewing their commercial insurance. Market conditions for many commercial lines are changing from a “soft” to a “hard” market, where premiums increase and underwriting requirements tighten. Fortunately, workers’ compensation is a notable exception.

A “soft” insurance market can give a false sense of reality and some companies relax their focus on managing risk and losses. Yet, maintaining an accurate accounting of your performance is critical in both a soft and hard market. This ensures your company is less vulnerable to the inevitable cycles that occur in all lines of insurance.

Here are seven reasons to keep your eye on strategy:

  1. The company’s risk profile is key regardless of market conditions and has implications across all business categories. Given the availability of big data today, the workers’ compensation premium is based on more than payroll and the Experience Mod. What’s critical is the insurance’s company perception of your risk. Importantly, the totality of your risk is relevant. For example, how you select drivers and conduct fleet safety affects both auto insurance and workers’ comp.

    Many factors go into the assessment of risk. The insurance company expects your risk management to be an ongoing process. It’s important to know the granular details of claims and what was done post-incident, so an informed conversation can take place when questions arise. A strong partnership with a broker who understands your business is essential to long-term cost control.

    Your safety strategy should be an integral part of your business strategy, not a standalone that can be put on the back burner when working well. It’s not a set of tactics, it’s what the company does, a shared vision and the plan to achieve safety excellence. When leadership loses its focus, the Workers’ Compensation program is without a compass and ultimately will flounder.

  2. Insurance rates are cyclical. While there are many positive trends impacting workers’ comp, including controlling opioids prescriptions, safer workplaces, and benign medical inflation that may keep rates low, there are some hovering clouds. For only the second time since 2003, the rate of nonfatal workplace injuries did not decrease, but held steady in 2018 according to the BLS. With relaxing ACA participation requirements, the rate of medically uninsured ticked higher in 2018, which could impact workers’ comp. The implications of medical marijuana and recreational marijuana on incident rates are troubling, Medicare Set-Asides can be complicated and unpredictable, and medical advances and longer lives have dramatically driven up the costs of catastrophic claims.

    Further, if insurers need to make up for losses in other commercial lines, they can look to Workers’ Compensation.

  3. Some industries are more vulnerable than others, including temporary staffing organizations, transportation, and retail. The BLS report spotlighted injury trends for the retail industry, where the rate of nonfatal workplace injuries increased from 3.3 per 100 workers in 2017 to 3.5 per 100 last year. Cases with days away from work also increased in retail, from 1 to 1.1 per 100 workers from 2017 to 2018.
  4. Seemingly minor missteps, such as delays in reporting or treatment, can escalate costs or lead to litigation. According to a study by the Hartford Financial Service Group, claims reported 7-14 days after the injury cost 18 percent more than those filed within a week of the injury. Wait 15-28 days and the costs jump 30 percent. Delaying medical treatment by even one day increases OSHA recordability by 60 percent.
  5. A lack of vigilance leads to a failure to identify potential high-cost claims early. The more information an adjuster has, the more efficiently a claim can be managed. Information on job description, co-morbidities, recovery at work options, prior workers’ comp claims, workplace disputes, and so on, are critical for expediting the process. Ignoring an employee who has multiple small injuries is a lost time injury waiting to happen. And failure to settle legacy claims means less scrutiny of the costs that are driving the claim. All are red flags to insurance companies about risk exposure.
  6. Insurance companies make mistakes. Payroll errors, incorrect Experience Modifiers, classification errors, over or under reserving claims, and failure to report subrogation recovery are just some of the common mistakes that lead to overcharging.
  7. The gig economy and classification of independent contractors is a hot legislative issue. California’s AB5, which goes into effect Jan. 1, 2020, changes the criteria used to classify employees and independent contractors, making it more difficult to classify an employee as an independent contractor. While this is a state law, California is often considered the bellwether for workplace protection laws. Labor groups and lawmakers will be watching closely to see how this evolves. In fact, in New York, a similar bill was introduced in the Senate in November.

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

Workplace safety: an untapped tool to attract and retain skilled workers

It’s easy for employers to be complacent about Workers’ Compensation when rates are declining and workplaces are safer overall. There are more pressing business matters in today’s competitive market, such as attracting and retaining skilled and committed workers. But failure to relate the two is a lost opportunity and complacency is a slippery slope to higher costs.

A strong safety record reflects positively on the quality of management, supervision, and all employees. While there are individual and generational differences in what attracts workers to a company, there are common denominators. Trust, respect, involvement, clear goals and expectations, engaged management, collaborative working environment, and recognition are regulars on the lists of most desirable workplace characteristics. All of these are integral to a sustainable safety culture.

There is one value everyone can share: to go home without an injury. Use it to tell your story. While the message, “we value and care about our employees,” is often boasted, it’s met with skepticism. The opinion that production and profit trump safety is still pervasive among many employees.

To combat this attitude, safety must become everyone’s responsibility. Management must walk-the-talk and model the safety behavior they expect from employees, as well as empower employees to voice their concerns and take it upon themselves to improve safety. If an incident occurs, the focus is not on blame, but on the worker’s full recovery and a cooperative effort to improve processes to prevent future occurrences.

With a strong safety culture, employers have a credible way to demonstrate they value, trust, and care about their employees. Here’s how to use it to give yourself an edge:

For recruitment:

  • Communicate that safety is a core value by personalizing the message. Don’t just talk about metrics, but how employees are valued, respected, and engaged
  • Explain the role employees have in safety and how employees are trusted to do the right thing
  • Describe how orientation training truly reflects what happens in the field/plant, occurs before they even set foot on the job, and how training continues throughout the year
  • Share how employees are rewarded or recognized for making safe behaviors and reporting incidents or near misses
  • Tell how your recovery at work program reflects the company’s values with real stories

For retention:

  • Focus on successes and recognize and reward safe behavior
  • Continually encourage reporting incidents and near misses
  • Use safety to build teamwork and strive for excellence
  • Take an active role in an injured worker’s treatment and recovery. Let them know their recovery is a priority by your actions
  • Reinforce there are no acceptable trade-offs between safety and productivity and that both are everyone’s responsibility
  • Encourage workers to speak freely about hazards and make suggestions for controlling risk

It’s important to recognize that employer complacency will filter down to employees. This can lead not only to a lax attitude about safety and an increase in injuries, but also fewer referrals. Word-of-mouth, as well as social media, can make or break recruitment efforts.

Hiring and retaining the right workers for the right positions

It takes work to maintain a strong safety culture and it begins with the hiring process. While making safety part of the recruiting process enhances the possibility of safety-conscious applicants, employers must be sure that they hire employees who are physically and mentally able to perform the job they are being hired to do.

A compliant way for employers to find out whether an applicant can do the job safely is to implement the Conditional Offer of Employment and Post-Offer/Pre-Placement Medical Questionnaire. When you hire someone who is not capable of doing the job, it’s not a question of if, but rather a question of when they are going to suffer an injury. Employers are less able to bear the burden of employees losing time today than at any time in the recent past.

With Workers’ Comp on the priority backburner, it’s easy to forget about including it in onboarding new employees or training current employees. Yet, the vast majority of employees who suffer an injury at work will find themselves inside the workers’ comp system for the first time. Even a minor injury may seem like a major occurrence because it is unfamiliar and frightening. “What am I going to have to pay?”, “How am I going to feed my family?”, “What do my co-workers think?”, and more fill their mind. When you communicate to workers how the workers’ comp process works, you can alleviate doubts and build confidence.

Getting injured employees back to work is always near the top of the list for best claims practices. While it’s been proven that Recovery at Work programs have an economic benefit, the human element is equally important. By providing support, encouragement, and opportunity, the employer makes the employee feel valued, protected, and confident appropriate work will be available.

Culture has been at the top of safety and health issues for more than a decade. Rethinking recruitment and retention strategies around safety may be the solution to one of the most pressing business matters today.

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

Things you should know

Soap more effective than hand sanitizers in combatting flu

Researchers from the Kyoto Prefectural University of Medicine found that ethanol-based sanitizers can take up to four minutes to disinfect hands that carry the flu virus. The use of soap and water inactivated the virus in the infected mucus within 30 seconds.

The study was published online in mSphere, the journal of the American Society for Microbiology.

CMS Updates WCMSA Reference Guide

CMS has released an updated WCMSA Reference Guide version 3.0. Noteworthy changes are 1) the Amended Review period was extended from 4 to 6 years (Section 16.2), and 2) Effective April 1, 2020, the required language for the signed consent form to submit an MSA to CMS now must include a statement that the WCMSA arrangement need and process has been explained to the claimant and that the claimant approves of the contents of the submission (Section 10.2).

New drug tests in works for measuring medical marijuana impairment

New drug tests that could help employers measure marijuana impairment are expected to hit the market in 2020 and be similar to an alcohol breathalyzer. Researchers from the Swanson School of Engineering at the University of Pittsburgh in Pennsylvania and Hound Labs Inc., based in Oakland, California, are among those working on the testing.

NSC issues policy position on cannabis use while working in a safety sensitive position

The National Safety Council (NSC) released a policy position that it is unsafe to be under the influence of cannabis while working in a safety sensitive position due to the increased risk of injury or death to the operator and others. The NSC defines safety sensitive positions as those that impact the safety of the employee and the safety of others as a result of performing that job.

Opioids cost economy at least $631 billion from 2015 to 2018: Study

study by the Society of Actuaries finds the opioid epidemic cost the U.S. economy at least $631 billion from 2015 to 2018.The costs include healthcare, lost productivity, premature mortality, criminal justice activities, and child and family assistance and education programs. It’s projected that the costs in 2019 will be around $188 billion.

Construction workers most likely to use opioids, cocaine: Study

Construction workers are more likely to use opioids and cocaine than workers in any other profession and were the second most likely to use marijuana (service workers were first), concluded researchers from the Center for Drug Use and HIV/HCV Research at New York University’s College of Global Public Health. The problem creates a vicious cycle: substance abuse may lead to accidents and the associated injuries may lead to higher substance abuse.

Doctors wary of taking opioid patients: Study

Eighty-one percent of primary care physicians surveyed recently said they are reluctant to take on patients who are currently on opioids, according to a new Health Trends™ report from Quest Diagnostics. 72% worry that chronic pain patients will turn to illicit drugs if they do not have access to prescription opioids,

Doctors trust patients, but test results show misuse

The same Health Trends report cited above notes nearly three in four physicians trust their patients to take controlled substances as prescribed, yet half of all patient test results show misuse of these drugs. Non-prescribed gabapentin use is accelerating, growing 40% in the past year, making it the most commonly detected non-prescribed controlled medication in tested patients.

Registration is open for FMCSA drug and alcohol clearinghouse

The Federal Motor Carrier Safety Administration (FMCSA) has opened registration for the long-awaited clearinghouse. The clearinghouse is a secure database that allows FMCSA and others to identify commercial drivers who have violated drug and alcohol testing program requirements in real time. Commercial driver’s license holders, fleets, medical review officers and substance abuse professionals can create an online account.

Two studies address preventing work-related asthma

The National Institute for Occupational Safety and Health (NIOSH) suggests in two studies that work-related asthma can be controlled by controlling exposure to hazardous substances. In the first study, NIOSH investigators focused on the link between cleaning and disinfecting products and various asthma symptoms among healthcare workers. In the second, they looked at the presence of chronic obstructive pulmonary disease (COPD) among people with work-related asthma and those with asthma from other causes.

Sleep deprivation a growing problem: Study

Researchers from Ball State University found that more than 1 out of 3 U.S. working adults aren’t getting enough sleep, and the prevalence of sleep deprivation has increased significantly since 2010. Women have experienced the largest increase. The study notes “Inadequate sleep is associated with mild to severe physical and mental health problems, injury, loss of productivity, and premature mortality.”

The study was published online in the Journal of Community Health.

MSHA reinstates final rule on pre-shift mine examinations

The Mine Safety and Health Administration has reinstated a 2017 rule that requires a competent person to inspect the workplace before a shift rather than when miners begin work, in accordance with an Aug. 23 mandate of the U.S. Court of Appeals for the District of Columbia Circuit. According to a notice in the Federal Register the measure vacates a 2018 amendment to the rule.

State News

California

  • The Governor has signed a bill adding post-traumatic stress disorder suffered on the job as a compensable injury for first responders.
  • Workers compensation inpatient hospital stays dropped by nearly one-third between 2010 and 2018, largely due to a decline in spinal fusions, according to a study by the Workers Compensation Institute (CWCI).
  • Workers’ Compensation Insurance Rating Bureau releases 2019 Policy Year Statistical Report.
  • 94.1% of medical services performed or requested for injured workers were either approved or approved with modifications, according to a CWCI report.

Florida

  • The insurance commissioner refused to accept the NCCI recommended 5.4% rate decrease in 2020 and has proposed a workers’ compensation rate decrease of 7.5% on new and renewal policies.

Massachusetts

  • The Department of Industrial Accidents has posted updates to maximum weekly benefits, cost-of-living adjustments and other payments, including a significant increase in attorneys’ fees.

New York

  • Indemnity, medical and disability claims have remained stable, and more workers are receiving their first indemnity payment within three weeks of an injury, according to a report by the Workers Compensation Research Institute.
  • Large, complex construction sites in New York City must immediately post at their exits multilingual notices about upcoming safety training requirements. Beginning Dec. 1, all workers at these construction sites must have at least 30 hours of site-safety training, while supervisors must have at least 62 hours. A 40-hour training requirement for workers at these sites will go into effect Sept. 1, 2020. More information.

Tennessee

  • The Department of Labor and Workforce Development has proposed rule changes to workers’ compensation appeals procedures, which appear to be extensive, but are intended to make the process easier to navigate. There will be a public hearing on the proposed appeals rules at 1 p.m. Dec. 12 in the Occupational Safety and Health Hearing Room, 220 French Landing Drive, 1-A, in Nashville.

Virginia

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

Legal Corner

ADA
Adverse employment action cannot be motivated by associational disability claim

The association provision of the ADA does not require employers to reasonably accommodate nondisabled employees so that they may care for disabled relatives or others. In Kelleher v. Fred A. Cook Inc., 2d Cir., a truck operator had a daughter who was born with Rett Syndrome, a severe neurological disorder. After he informed his company that he may have to rush home occasionally, he was given different job responsibilities with lower pay and his request to work 8-hour shifts, rather than 10-12 was denied. His supervisors told him, “his problems at home were not the company’s problems” and that he would not receive a raise.

After his daughter had a near-fatal seizure he told the company he could not work his next shift and he was demoted. A few weeks later, he was 10 -15 minutes late for work and ultimately was fired. While a district court dismissed his complaint under the ADA, the 2nd Circuit reversed. Although it acknowledged that he was not entitled to a reasonable accommodation as an employee associated with an individual with a disability under the ADA, the Court noted, “an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.”

The company did not have to accept his schedule request, but his termination could not be motivated by his daughter’s disability. The court found sufficient allegations that the employer thought his daughter’s disability was a distraction and terminated him as a result because he was told “his problems at home were not the company’s problems” and was demoted after missing a shift to care for his daughter.

 

 

Woman wins lawsuit against university for not extending leave for postpartum depression

In Alves v. Trustees of Boston University, a woman who suffered from postpartum depression recently won a disability discrimination case against Boston University, her former employer, after her request for a second medical leave was rejected following the birth of her son about three years ago. Her leave was extended once under the FMLA, but her request for a second extension was denied and she was fired.

A jury awarded her $144,000 in compensatory damages for lost wages and emotional distress since the University did not follow the interactive process to reach a reasonable accommodation.

Jury awards Walmart employee $5.2 million

A Walmart cart pusher, who has a developmental disability and is deaf and visually impaired, had worked at a Beloit, Wisconsin, Walmart for 16 years. After a new manager started at the store, the employee was suspended and later forced to resubmit medical paperwork to keep his reasonable accommodations at his job. Walmart indicated safety concerns triggered the request. Before his suspension, the employee had performed his job with accommodation including assistance of a job coach.The paperwork requested the coach’s continued assistance. At that point, the employee was terminated.

Walmart’s position was that the employee could not perform the essential parts of his job with or without reasonable accommodations and that the EEOC demands were unreasonable. The company is weighing its options.

Workers’ Compensation

Safety citation for failure to require appropriate footwear upheld – California

In Home Depot USA Inc. v. California Occupational Safety and Health Appeals Board, the Court of Appeals in Riverside unanimously affirmed an administrative law judge’s safety citation of $12,375 against Home Depot for failing to require its employees to wear appropriate footwear and ensure workers complied with industrial truck operation standards at its Mira Loma distribution warehouse. Two Home Depot warehouse workers had an accident while driving electric pallet jacks and one caught her foot between two jacks, sustaining an injury.

A Cal/OSHA inspection revealed that the employees were not wearing steel-toed footwear or work boots, but most wore sneakers. The investigator cited Home Depot for failing to require employees to wear appropriate foot protection and ensuring employees comply with safe operation standards for industrial trucks.

Home Depot’s policy required only that workers wear “closed-toed and closed-heeled shoes” and specifically did not allow “flip-Flops, sandals, open-toed shoes, or open heeled shoes.” The company argued that steel-toed boots or similar footwear can cause ergonomic problems, tripping hazards, and fatigue, and they can be “cumbersome,” “uncomfortable” and “bulky.”

Amicus curiae, Retail Litigation Center, Inc. and National Federation of Independent Business, who supported Home Depot, objected that the Board’s opinion articulates an “uncertain standard [that] will have far-reaching consequences…” The appeals court noted that a violation of the safety order is not based on previous history of accidents or injuries resulting from the exposure but rather on the existence of the danger which may cause injury. However, the court did “agree the language in the Board’s opinion can be read to sweep too broadly, so we emphasize our holding is limited to the facts and evidence of the case.”

Ruling on enforceability of unsigned document published – California

The 2nd District Court of Appeal’s decision in Travelers Property Casualty Co. of America v. WCAB (CIGA) established that an insurance policy’s limiting endorsement for special employees could not be invalidated just because the employer had not signed it. It originally was released as an unpublished decision, which is not binding precedent.

Unexercised right to subrogation does not bar removal of civil suit to federal court – California

In Gutierrez v. McNeilus Truck & Mfg, a worker was seriously injured when he fell from the roof of a garbage truck and sued the company that designed and manufactured the truck. When the case was removed to federal court on diversity grounds, the company filed a motion to remand because generally a civil action arising under the workers’ compensation laws of a state may not be removed.

However, the court denied the motion because the company contended that the claim arose under the workers’ compensation law because the injured worker’s employer and insurer had the right of subrogation, but neither the employer nor the insurer had asserted a subrogation claim. Therefore, they were not parties to the action. If the employer or insurer had intervened before the removal, there could have been a different outcome.

IME opinion that smoking and not worksite caused respiratory condition nixes claim – Florida

In Ernesto Blanco v. Creative Management Services LLC/Technology Insurance Co., an appeals court upheld the opinion of a judge that the major contributing cause of an employee’s respiratory condition was his 17-year history of cigarette smoking, not his 11 days on the job at an events management firm, handling materials that produced sawdust and debris in the air. On appeal, one of the worker’s challenges was the qualifications of the employer’s independent medical examiner (IME), who was not a pulmonologist. The court disagreed noting the IME was a board-certified occupational medicine specialist with extensive experience in exposure cases leading to pulmonary problems and qualified to give an opinion.

Jury awards over $3 million to injured worker in retaliation case – Illinois

In Jankowski v. Dean Foods, a worker who was injured at Dean Food’s Huntley milk processing facility, collected workers’ compensation, but refused work that exceeded his medical restrictions, was not offered any other light duty positions, and was fired. The jury found that Dean Foods discriminated against Jankowski in violation of the ADA by failing to accommodate his disability for one of the several open positions which he was able to perform and awarded $3,316,443 for lost wages and benefits and emotional distress.

Court erred in approving lump sum PPD award – Illinois

In Annoni v. City of Chicago, an appellate court said the employer could not be ordered to pay the worker a lump sum benefit unless the worker had sought such a lump sum pursuant to special statute, 820 ILCS 305/9. Workers’ compensation benefits are to provide a substitute for an injured worker’s lost wages, and as such, the Legislature has indicated a strong preference for period payments.

Parking lot injury not compensable – Illinois

In Walker Brothers v. IWCC (Ramsey), a restaurant posted a notice in the employee break room stating they could park in the Ace lot, which was near the restaurant. After meeting another employee who had a key to the restaurant, an employee slipped and fell as he walked to work. An arbitrator found that he failed to prove that he was in an accident that arose out of and in the course of his employment, but the Workers’ Compensation Commission reversed, and a circuit court judge affirmed.

On appeal, while the appellate court acknowledged employer “provided” parking lots are exceptions to the rule that injuries are not compensable when an employee slips and falls while traveling to or from work, the restaurant did not own or control the lot, nor did it pay for maintenance, and employees were not required to park there. Thus, the injury was not compensable.

Pre-existing fragile mental state exacerbated by workplace injury leads to permanent total disability – Missouri

An employee who endured “significant psychological trauma as a victim of physical and sexual abuse after her daughter’s rape and murder,” suffered head and neck injuries in an assembly line accident. When she returned to work where the plant was noisy, she suffered headaches and lapses of concentration and was unable to keep up with work demands. She was fired after working light duty for one week.

She filed a disability claim, which her employer eventually settled for $30,000, deeming her partially disabled. Later, a judge and the full state Workers Compensation Commission denied her claim for permanent disability, finding she did not “meet her burden of proving the nature and extent of any alleged preexisting psychological disability by a reasonable degree of certainty.” The appellate court disagreed and found the state fund liable for the woman’s permanent total disability, stating that she “met her burden” under state law “establishing that her preexisting permanent disabilities were serious enough to constitute a hindrance or obstacle to her employment or reemployment,” among other reasons.

Additional compensation denied to worker whose pain was not credible – Nebraska

In Oneyda Jordan v. Tyson Fresh Meats Inc., a chicken processing plant worker who underwent surgery to both hands for a compensable work injury sought additional compensation for her continued pain. An appeals court affirmed the denial by the workers compensation court, noting medical evidence proved she had reached maximum improvement and could work unrestricted. Further, based on testimony from co-workers and surveillance video that contradicted her testimony of extreme pain, the court rejected her argument that her pain supported a loss of earning capacity.

Subchapter S business owner benefits based on wages, not share of profits – Nebraska

In Bortolotti v. Universal Terrazzo & Tile Co., the sole stockholder and the president of a Subchapter S corporation, suffered a compensable injury. The IRS Schedule E showed self-employment wages of $3,950 and “qualified production activities income” of $186,873, and the owner testified that he took a weekly draw of $3,625. The case made its way to the Supreme Court that said wages are compensation for activities as a corporate employee and do not include net profit for an employee of an S corporation. It was the employee’s burden to provide evidence differentiating his wages as a corporate employee from his profits as a corporate shareholder, which he did not do. Based on an annual wage of $3.950, he was entitled to $49 per week in benefits, the minimum income benefit.

Volunteer not entitled to benefits – New York

In Matter of Mauro v. American Red Cross, a volunteer received her full salary from her employer while participating in events for the Red Cross during employment hours. She was hit in the nose by a hand cart while she loaded materials into her cart and filed a workers’ comp claim against the Red Cross. The appellate court affirmed the denial of benefits because there was no employment relationship between the volunteer and the charity.

First appellate decision to deal with medical marijuana and workers’ comp – New York

In Matter of the Claim of James Kluge, v. Town of Tonawanda et al., Workers Compensation Board, a police officer sustained a permanent partial disability and suffered from chronic pain. He was prescribed medical marijuana in 2017, which was denied by the comp insurer. He sought review of the denial of the variance request with a worker’s compensation law judge who overturned the denial. However, the Workers Compensation Board reversed finding that “it could not approve a variance for treatment already rendered.”

On appeal, the Court acknowledged that the Board had properly denied the variance request, but indicated it should have considered the merits of the request for prospective marijuana treatment, since the officer has a chronic pain condition necessitating ongoing treatment. The case was remanded for further proceedings.

Disability cannot be apportioned between traumatic brain injury and pre-existing MS – New York

In Matter of Whitney v. Pregis Corp, a maintenance worker slipped on a patch of ice and suffered injuries to his back, hip, head and brain. He also was diagnosed with Multiple Sclerosis (MS) and filed a motion for compensability, arguing that the MS was either directly induced or exacerbated by the fall. A workers’ compensation law judge found that MS was a pre-existing condition unrelated to the fall and the Board affirmed and apportioned 60 percent of the disability to his non-disabling and undiagnosed multiple sclerosis.

An appellate court overturned, noting there was no evidence the MS had affected his abilities to perform the duties of his employment prior to the accident and that the condition had not even been diagnosed until after the accident. Thus, apportionment, as a matter of law, was inappropriate in the case.

Sole remedy for deceased worker’s family is workers’ comp – North Carolina

In State Farm Mut. Auto. Ins. Co. v. Don’s Trash Co., an appellate court held that the auto liability insurer of a corporation that had temporarily borrowed an employee of a separate, but related corporate entity to drive one of its vehicles, need not defend a wrongful death action filed against the corporation. The “borrowed” employee was driving at the time of the fatal crash; therefore, he was the co-employee of the employee who was killed in the vehicular crash and the sole remedy of the deceased’s estate was under workers’ compensation.

Court rejects constitutional challenge to “Protz-fix” – Pennsylvania

In Pennsylvania AFL-CIO v. Commonwealth, the Commonwealth Court rejected a constitutional challenge to the General Assembly’s revised impairment rating evaluation process, which mandates a physician’s use of the American Medical Association “Guides to the Evaluation of Permanent Impairment,” 6th edition (second printing April 2009) for determining impairment in workers’ compensation cases. The Pennsylvania AFL-CIO asserted that the new law also contained an impermissible delegation of authority to the AMA.

However, the Court noted the General Assembly can adopt as its own “a particular set of standards which already are in existence at the time of adoption.”

Immigration status irrelevant to comp benefits – Pennsylvania

In Bryn Mawr Landscaping Co. v. WCAB (Cruz-Tenorio), a worker was injured when he was struck in the head by a large branch. A neurologist diagnosed him with post-concussive syndrome and other issues and he received treatment from an orthopedic surgeon. Both submitted disability notes to the company. The claims adjuster acknowledged that he had a valid work visa.

The company issued a notice of temporary compensation payable for medical benefits only and began an investigation. Their neurologist and an orthopedic surgeon found that the issues had been resolved.

The employee filed a workers’ compensation claim, and a penalty petition, asserting that Bryn Mawr had violated the law by failing to issue a notice of compensation payable, had not paid him indemnity benefits, and interfered with his ability to obtain medical treatment. In turn,the company filed a termination petition alleging the employee was fully recovered and a suspension petition requesting a change in status from totally disabled to partially disabled because he could not lawfully work.

The case made its way to the Commonwealth Court that found the injured employee was not an undocumented worker nor was his loss of earning power caused by his immigration status instead of work injuries. Further, a judge had determined that the company’s medical experts lacked credibility and the court was bound by that decision. The injured worker was awarded benefits and attorney fees.

High court reverses trial court dismissal of mold exposure claim – Tennessee

In Williams v. SWS LLC, an employee began experiencing respiratory issues when her company moved to a new building. She missed time from work when she had two surgeries in January and July 2011, which included removing a portion of her lingual tonsil and later received a note from her doctor that said she had “clinical evidence of toxic mold exposure” in September 2011. She quit her job in April 2012.

Later she filed a workers’ compensation complaint alleging she had suffered injuries because of her workplace exposure to mold. The case revolved around whether this was a gradually occurring injury or occupational disease and whether the claim had been timely filed. Under the law, the worker has to provide her employer with notice of claim and a request for a benefit review conference within one year of injury. The company argued that since she had lost time from work for surgery to treat her allegedly compensable injuries, her last day worked before her surgery constitutes the date of injury. But the employee argued that the last day was the day she quit.

The Supreme Court’s Special Workers’ Compensation Appeals Panel revived the claim finding there was a triable question as to whether it ought to be barred by the statute of limitations and whether this was a gradually occurring injury or occupational disease.

24/7 home health care not warranted – Virginia

In Dawson v. County of Henrico, a man who became disabled with a brain injury in a work-related vehicle accident failed to convince the Court of Appeals that he required 24-hour a day, seven days a week home health care provided by his fiancée or at her direction. His treating psychiatrist said he suffered from depression, fatigue, headaches, memory impairment, aggression, difficulty regulating emotions and cognitive difficulties and that he failed to “understand what he needs to do to take care of himself.” He recommended the home health care, but later noted he probably did not need care “every hour.”

An appellate court supported the commission’s conclusion that 24-hour home health care was not medically necessary, and affirmed the denial of the care.

Appellate court overturns Commission and denies care by spouse – Virginia

In Cumberland Hosp. & Ace Am. Ins. Co. v. Ross, a registered nurse sustained severe injuries, including traumatic brain injury and was awarded several benefits, including 24-hour home health care, which was provided through an agency. After a little over a year, the nurse filed a claim with the Commission requesting that the home health care be provided by her spouse. The agency hired the spouse, but fired him after three weeks for not properly providing activity notes.

The Commission found that the medical care was necessary and, therefore, did not apply the four requirements set forth in Warren Trucking Co. v. Chandler for care by a spouse. An appellate court said the issue here was not only if home health care was medically necessary, but rather whether the services provided by the spouse constituted such care; therefore, it was necessary to analyze the four requirements of Chandler. Specifically, did the services performed by this spouse in attending to the needs of the disabled nurse qualify as ‘other necessary medical attention’ within the meaning of Code § 65.2-603.

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

HR Tip: Gifts employees hate

A new survey of more than 1,000 employees by Snappy, the New York City-based employee engagement company, found that more than eight in ten U.S. employees have received a workplace gift-mostly from managers-that they didn’t want.

Here are some of their findings:

  • Think again if you plan to give a gift card. They’re considered transactional and impersonal and put a price tag on the employee’s value. It’s even worse if it’s to a store they don’t frequent.
  • Three in four workers would prefer to get a gift without their company logo on it. The gift is more about the company than the employee and they resent being walking billboards.
  • Pins and plaques are definitely a no-no.
  • Nine in ten workers who get a gift they don’t like will tell you they like it.
  • Some of the “best” gifts employers gave them included an espresso machine, a trip to Paris, an iPad and a television.
  • The gifts people are hoping to receive the most this year are a tech gadget (34%), a cool experience (28%), food/drink (25%), and apparel (13%).

To make gift giving effective, Snappy’s advice is:

  • Make it personal.
  • Make it meaningful.
  • Have fun and be creative. Don’t do the same boring thing year in and year out.

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

OSHA watch

New video explains inspection process

new video explains the OSHA inspection process.

New fact sheet on taxi driver safety

A new fact sheet focuses on keeping taxi drivers safe.

Input sought on safety training

Public input on how to improve access to online classes through the Outreach Training Program can be given here.

Recent fines and awards

Florida

  • Westwind Contracting Inc. was cited for exposing employees to excavation and confined spaces hazards after a worker drowned when water and mud-filled a catch basin in which the employee was working at a Pembroke Pines worksite. The contractor faces $185,239 in penalties.
  • Two commercial and residential roofing companies, Cruz Enterprises & Construction LLC based in Dover and Intex Builders LLC based in Tampa, were cited for exposing employees to struck-by and fall hazards at a Greenacres worksite. Inspected under the Regional Emphasis Program on Falls in Construction, the companies face a combined $83,348 in penalties.

Georgia

  • Discount retailer Dollar Tree Stores Inc. was cited for exposing employees to safety hazards, at its store on Atlanta Highway in Athens. The company faces $125,026 in proposed penalties for exposing employees to struck-by, trip and fall hazards by failing to keep passageways and walking surfaces in a clean, orderly and sanitary condition and for not maintaining access to portable fire extinguishers.

Illinois

  • AB Specialty Silicones LLC was cited for 12 willful federal safety violations after four employees suffered fatal injuries in an explosion and fire at the company’s Waukegan plant. The company faces $1,591,176 in penalties and was placed in the Severe Violator Enforcement Program. Citations included failure to ensure that electrical equipment and installations in the production area of the plant complied with electrical standards and were approved for hazardous locations. The company also used forklifts powered by liquid propane to transport volatile flammable liquids and operated these forklifts in areas where employees handled and processed volatile flammable liquids and gases, creating the potential for ignition.

Massachusetts

  • A petition to the U.S. Court of Appeals for the First Circuit asks that The Roof Kings LLC and its owner, Craig Galligan, be held in civil contempt for not fulfilling the terms of an order issued by the court in 2018. It also asks that The Roof Kings LLC provide written certification that they have abated the 32 cited violations affirmed in the settlement agreement, and pay overdue penalties of $206,090 plus interest, within 20 days.

Missouri

  • A food flavoring company, Kerry Inc., was cited for failing to provide fall protection to employees working in the company’s facility in Greenville after an employee fatally fell while trying to extinguish a fire at the plant. The company faces $223,525 in penalties for one willful and eight serious safety violations and was placed in the Severe Violator Enforcement Program.

Nebraska

  • Smith Mountain Investments LLC of Anson, Maine was cited for two serious safety and health violations for failing to protect workers from hazards associated with heavy physical activity in extreme heat conditions after a heat-related fatality at a jobsite in Inman. The utility pole inspection company faces $18,564 in penalties.

New York

  • The Dollar Tree Stores Inc. was cited for unsafe storage of material, obstructed exit routes and blocked electrical panels at the discount retailer’s Elmira location. The company has been cited several times at other locations and the citations, totaling $208,368, include three repeat violations.
  • Citations against Countryside Tree Service arising from a fatality where an employee was pulled into a wood chipper on his first day on the job at a Schenectady worksite were affirmed by an administrative law judge. Penalties are $66,986.

For additional information.

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

HR Tip: Managers are key to culture issues – how to avoid a toxic workplace

In today’s competitive marketplace, it’s distressing to hear that one in two workers have seriously thought about leaving their current job. A recent report by the Society for Human Resource Management (SHRM), The High Cost of a Toxic Workplace Culture: How Culture Impacts the Workforce-and the Bottom Line, notes that many workers consider culture and managers to be closely connected, holding managers responsible for creating a toxic workplace. In fact, 76% of employees say their manager sets the culture of their workplace and 58 percent of employees who quit a job due to workplace culture say that their managers are the main reason they ultimately left.

More findings:

  • 1 in 3 say manager does not know how to lead them
  • 3 in 10 say manager does not encourage a culture of open and transparent communication
  • 1 in 4 dread going to work, don’t feel comfortable expressing their opinions, and don’t feel respected or valued
  • A breakdown in communication is perhaps the most common sign of a toxic atmosphere at work

The report notes that even if the culture is not toxic, but “average,” it’s not enough. Employees still think about leaving and aren’t likely to recommend the organization to a friend. Managers can build strong and positive workplaces by listening to employees, holding workers and leaders accountable for their actions, setting expectations, and clarifying information.

Workplace culture is a critical business asset and employees see the company through their immediate boss. Is the culture you have the culture you want? How well does the individual manager’s behavior reflect the organization’s core values? What steps are needed to keep values and actions aligned?

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

Six reasons you can’t ignore mental health in workers’ comp

Compensability of mental injuries in workers’ compensation is complex and varies widely by state. Some states allow compensability for physical-mental injuries, where a workplace injury leads to a mental condition, such as depression. Less common are allowances for mental-physical claims, where a psychological condition arising out of the worker’s employment causes a physical illness, such as stress leading to a heart attack.

Mental-mental injuries involve a psychological occurrence at work, which leads to a psychological injury or condition, such as post-traumatic stress disorder (PTSD). They’re controversial, limited, and have gotten a lot of attention lately as states have considered new laws, especially for first responders.

Similar to physical injuries, in order to be compensable, the mental injury or condition must arise out of and occur during the course of employment. Given the subjective nature of mental health claims, pre-existing conditions, and the time it takes for conditions to manifest, they can be contentious and difficult to prove under this standard.

However, the issue is not just compensability. Whether or not these injuries are compensable, they can greatly impact the cost of the claim, productivity, and morale.

Here’s how:

  1. They can have a significant impact on the duration of a claim. An expert commentary on IRMI notes that more than 50 percent of injured workers experience clinically-related depressive symptoms at some point, especially during the first month after the injury. Unresolved chronic pain, lack of coping skills, fear of job loss, are just some of the factors that lead to “disability syndrome” – the failure to return to work when it is medically possible, with claim costs spirally out of control. When physical treatments aren’t making progress, it’s time to start thinking about psychological factors.
  2. Mental health conditions are some of the costliest health issues to treat and result in harder-to-quantify costs such as lost productivity and absenteeism. Untreated, employees have the potential to become an unsafe worker, which can affect other employees.
  3. While mental workers’ compensation claims represent a small percentage of all claims, many experts note they are growing. Greater awareness of these injuries by all stakeholders, efforts to reduce the stigma associated with mental health, attorneys advertising on TV, poor work-life balance, the modern 24/7 workplace, successful court cases, all contribute to rising frequency.
  4. According to a recent article in Business Insurance, Reviews of psych claims in comp increase, “requests for independent medical examinations for workers compensation claims with a psychological condition are rising, in part due to greater awareness of post-traumatic stress disorder and an increase in workers seeking treatment for depression and anxiety in conjunction with a physical injury.” Psych IMEs often are costlier than physical exams, driving comp costs higher.
  5. PTSD is increasingly a common condition in claims, but often it’s added later. This makes it difficult to determine if the claim is legitimate or malingering, an attempt to prolong the claim.
  6. Although mental health remains a taboo subject in many workplaces, changing workplace demographics reflect a generational shift in awareness. More and more employees feel a company’s culture should support mental health. According to the American Psychiatric Association, 62% of Millennials say they’re comfortable discussing their mental health issues, compared to 32% of Baby Boomers. Providing employees with the support they need improves not only engagement but also recruitment and retention.

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

Early workplace injuries predictor of frequent filers

Workers injured in the first six months of their employment are more than twice as likely to have three or more lost-time injuries during their duration of employment than other workers, according to a recent study published in the American College of Occupational and Environmental Medicine. For each year employed before the first lost-time injury, the probability of having three or more lost-time injuries decreased by 13%, according to the study.

The study included 7,609 lost-time claims at Johns Hopkins Health System and University from 1994 through 2017. The injuries occurred among 5,906 workers; 84% were health care workers, and the remainder were academic employees. Although only 49 workers (0.83%) had five or more claims, they accounted for 3.5% of claim costs, or $4.8 million. The workers in the study had an average length of employment of 15.7 years.

Other studies have shown that new employee risk of injury is higher than other workers. Earlier research from the Toronto-based Institute for Work & Health (IWH) found that employees in their first month on the job have more than three times the risk for a lost-time injury than workers who have been at their job for more than a year.

Neither study delved into the issue of “why.” Common speculation is that training and mentorship were inadequate or that hiring practices are the root of the problem. It makes sense because newness is the common thread. Workers performing unfamiliar tasks in a new work environment with less knowledge and awareness are at a more significant risk regardless of their age, according to the IWH.

Yet, assumptions should not be made and each company must analyze their own data. Begin by looking at the data on the injuries incurred in the first six months of employment. Was the hiring process rushed or inadequate in anyway? Was there a post-offer physical exam?

Assess the effectiveness of training and acclimation to the job. Were new workers given real-life practice, a clear message about safety, site-specific information, allowed to start in low-risk situations and advance to higher-risk work? While people learn differently, the more they can perform the work, the better they become.

Review the incident investigations to look for commonalities – location, department, job function/procedure, equipment and so on. How effective was the return-to-work experience?

How you intervene depends on what you learn. It may be that you need to shore up your training program, implement a mentorship approach, or alert the supervisor to provide additional oversight so the employee works more safely. If there are “red flags” such as the injured worker immediately hiring a lawyer, conflict with supervisor or other workers, insufficient detail about injury/accident, no witnesses, failure to keep medical appointments, and so on, you should consult your attorney. In most cases, the injuries of new employees are legitimate, but new employees with fraud “red flags” require special attention.

The message to employers is that there is an association between early employment injuries and risks for multiple injuries. Repeat claims are costly. A thorough analysis is an opportunity to develop preventive measures or cut loose a potential serial offender.

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