HR Tip: Workers’ Compensation Medicare Set-Aside (WCMSA) Re-Review process updated

 

The long-awaited update of the WCMSA Re-Review process by The Centers for Medicare and Medicaid Services (CMS) was issued in July. Section 12.4.3 provides the changes that have been made to the expanded Re-Review process.

Since CMS’ MSA review process has been in place, the Re-Review process has been somewhat limited. The update adds a third Re-Review option called an “Amended Review,” which reads, “You believe projected care has changed so much the new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.”

To be eligible for an Amended Review, the following criteria must be met:

  • The MSA must have been originally submitted between one and four years from the date the re-review is submitted and
  • The re-review request cannot have had a previous request for an Amended Review and
  • Must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

Only one Amended Review is permitted per case and another re-review cannot be requested if a request for an Amended Review is denied. As part of the review, generic drugs can be substituted for brand-named medicines but this cannot be the sole reason for the request. The request will consider medical and/or legal documentation that post-dates the CMS determination and medical circumstances that have changed.

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The quandary of legal pot and workers’ compensation deepens

Now that 28 states have legalized the medical and/or recreational use of marijuana, employers are struggling with zero tolerance policies, pre-employment drug testing, employee drug testing, discrimination suits, and general uncertainty. Laws about marijuana vary from state to state, making questions about how it affects workers’ comp and other employer policies even more confusing. Further, as states tighten up laws on the use of opioids to manage pain, some argue that cannabis is a viable alternative, raising concerns that workers will be impaired when they return to work.

The changing landscapes are challenging for employers and will lead to more litigation, new laws and regulations. Here are six recent actions and trends that employers should know about:

  1. Federal budget protects medical marijuanaAlthough Attorney General Jeff Sessions has been an outspoken critic of medical marijuana, the $1 trillion spending bill approved in May, which will fund the U.S. government until the end of September, includes language that protects state medical marijuana programs from federal enforcement. It provides no funding for any prosecution of cases involving medical marijuana where it has been made legal. Recreational users are not protected under this provision.
  2. Opioid crisis drives loosening of use of medical marijuana in comp casesAlthough medical marijuana remains illegal under federal law, the landscape of marijuana use in workers’ comp is changing. Some advocate its use as a way to stem the epidemic of addiction and opioid abuse, but others argue there is little validated research to determine its effectiveness and possible side effects. Others see it as an effective way to reduce the ongoing costs of legacy claims, particularly those involving workers who will not return to work.In states such as New Mexico and Louisiana, judges have ordered insurers to reimburse injured workers for medical marijuana, when deemed medically necessary by a treating physician. New Mexico also required carriers to start reporting marijuana reimbursements beginning Jan. 1, 2016. For 2016, 15 payers reported reimbursements for medical marijuana totaling $46,826 for 19 claims. The average reimbursement amount per claim was $2,465. On average, each injured worker was reimbursed for 205 grams of marijuana, or about 22% of the maximum 920 grams allowed per year.In May, the Maine Supreme Court agreed to hear a case in which an administrative law judge had ordered reimbursement under workers’ compensation for an injured worker’s medical marijuana. While the Maine law made clear that medical marijuana was not a drug that could be paid for by a private health insurer, the statutory language does not apply to other insurers, including workers’ comp. Insurers and employers are awaiting the outcome of Bourgoin vs. Twin Rivers Paper Company.

    Even when the law permits insurers to reimburse injured workers for medical marijuana, the claims are complex. The doctors prescribing cannabis typically may not be the same physicians treating injured workers for the medical cause of their workers’ comp claim. It needs to be determined whether marijuana is medically appropriate, why they recommend it, and whether it is really for the work-comp injury or some other condition.

  3. Employers rethinking drug testing policiesA key challenge to employers is measuring impairment, when an employee uses marijuana. At issue is how long marijuana stays in a person’s system and the lack of a reliable test to determine what level of THC (the chemical ingredient that causes the “high”) leads to certain impairment.Positive marijuana tests continue to climb in both federally mandated, safety sensitive workplaces and the general workforce, according to Quest Diagnostics, Inc. Colorado and Washington, where recreational marijuana has been legal for several years, saw some of the biggest leaps for workers in safety-sensitive jobs. However, the dilemma for employers is that a positive test does not always equate with impairment.Although courts have supported employers in pre-employment drug testing cases, fewer Colorado employers are doing it. A tight labor market may be a reason, but some believe employers have become more accepting and looking for other ways to manage the issue.

    Some experts suggest that employers have a separate policy for marijuana testing. In developing any policy, it’s important to consider what type of work employees are doing. Employers can have separate drug testing policies for those in safety-sensitive positions, machine operators, and still another for office and administrative workers.

    Others suggest the use of impairment or psychomotor testing, rather than the traditional urine, saliva, or hair testing, when legally possible. With traditional testing, it’s difficult to determine whether the employee is high and impaired or is testing positive with lingering traces from weekend use. They argue that the point of drug testing is to determine if workers can do their job safely and not endanger others, and that impairment testing that measures reaction time, decision-making, and pattern recognition against an employee’s baseline is more effective.

    The state of Maine recently offered state employers “impairment detection training,” noting employers can continue drug screening of employees until the recreational marijuana law goes into effect in February 2018. However, thereafter, if not amended, testing for marijuana use will violate the state’s regulations protecting those who wish to use marijuana recreationally outside of work.

    However, many employers and federally mandated testing still rely on traditional testing, believing it is the best way to control risk. For example, the Department of Transportation (DOT) determined that the urine tests would not change because of the new state laws legalizing marijuana.

    For a workers’ comp claim to be denied, some states require employers to prove that a worker’s intoxication caused the injury, which can be difficult when the only evidence is a positive marijuana drug test. Employers are encouraged to better train supervisors and employees to recognize impairment and take steps to control and document it.

  4. Non-hiring or firing for positive marijuana testing can lead to discrimination suitsA “watershed” decision in Massachusetts sheds light on the issues employers face in employment practices and zero tolerance drug policies. In Cristina Barbuto vs. Advantage Sales and Marketing L.L.C., a worker was authorized by her physician to use marijuana to stimulate her appetite and help with symptoms of Crohn’s disease and informed the company that she would test positive on drug screenings. A supervisor told her the medicinal use of marijuana “should not be a problem,” which he later confirmed after consulting with others at the company, according to court documents.On her first day of work, she submitted a urine sample for a mandatory drug test and began work. Later in the day, she was terminated by an HR rep for testing positive for marijuana and was told the company followed federal, not state, law. She filed discrimination charges, alleging six claims, including handicap discrimination, invasion of privacy and denial of the right to use marijuana lawfully as a registered patient to treat a debilitating medical condition.A trial court judge dismissed all claims except the invasion of privacy claim, but a six-judge panel of the Massachusetts Supreme Court reversed the lower court judge’s dismissal of her claim for handicap discrimination and related claims, but affirmed the motion to dismiss on counts claiming an implied private cause of action and wrongful termination in violation of public policy. Notably, the supreme judicial court became the first appellate court in any jurisdiction to hold that medical marijuana users may assert state law handicap or disability discrimination claims-regardless of whether the state’s medical marijuana statute provides explicit employment protections. (Massachusetts’s medical marijuana statute does not provide such employment protections.)

    “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation,” the court ruled. “The only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.” The case has been remanded to the Superior Court.

    Takeaways for employers:

    • Employers may find it harder to argue that an adverse employment action against a medical marijuana user is justifiable solely because marijuana is categorized as an illegal controlled substance under federal law
    • Courts may increasingly look upon “the use and possession of medically prescribed marijuana by a qualifying patient as lawful” as the use and possession of any other prescribed medication
    • State law handicap or disability discrimination claims may apply to medical marijuana users
    • Employers should engage in the “interactive process” with medical marijuana users to determine if they can perform essential job functions with a reasonable accommodation
  5. Comp coverage for medical marijuana dispensaries uncertainThe conflict between federal and state laws on marijuana means that individual insurers are using their business and legal judgment in deciding whether to provide services to the marijuana industry. Hawaii’s largest workers’ compensation insurer, Hawaii Employers’ Mutual Insurance Co. (HEMIC), recently announced that it is canceling insurance policies for seven medical marijuana dispensaries that were slated to open this summer. In its statement, it noted that legal opinions clearly acknowledge that HEMIC and its board of directors have potential exposure for criminal liability based on federal law applicable to marijuana businesses.While many major carriers have provided coverage in other states, there is more uncertainty under the new presidential administration. On the other hand, it is a $6.5 billion dollar business and legitimate employers can be an attractive market for insurers.
  6. New information is emergingThe federal government’s stance that marijuana is an illegal substance has stalled research on its effectiveness, side effects, dosage, and so on. The first large study to directly compare medical marijuana to an opioid drug is beginning at the University of Colorado, Denver. The grant for this study is part of $9 million awarded by the state for trial purposes, funded in part by tax money from marijuana sales.A recent study by the Highway Loss Data Institute (HLDI) showed a correlation between marijuana use and traffic accidents. Claims frequency in Colorado, Washington, and Oregon, the states to first legalize recreational marijuana, was 3% higher than the controlled states that had not legalized marijuana. The HLDI has also begun a large-scale study in Oregon to assess how legalized marijuana use may be changing the risk of crashes with injuries.

There’s no easy answer for employers trying to respond to the increase in marijuana use and be compliant with the law. While the use of medical marijuana is still in its infancy, it’s important to recognize that if a doctor concludes medical marijuana is the most effective treatment for an employee’s debilitating condition, an interactive process, including an exception to an employer’s drug policy, may be warranted. Staying informed, updating and monitoring drug policies, educating employees on how it can impair judgment and motor skills, developing policies based on the employee base, and consistent hiring and disciplinary treatment can help ensure that they have a safe and productive workforce.

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

Things you should know

Employer control over medical providers can lower costs for spinal injuries

A study by the Workers Compensation Research Institute (WCRI) found the greatest disparity in medical and indemnity costs between states that allow injured workers to choose their own providers and those that give employers more control is for spinal injuries. Researchers noted that there is more subjectivity in the nature of care for back and neck injuries, whether employees can go back to work, and the level of pain.
ISEA updates fall protection guide

In response to new regulations and standards, the International Safety Equipment Association (ISEA) has updated its Personal Fall Protection Equipment Use and Selection Guide. The 30-page document explains how to set up a fall protection program, details the major parts of fall protection systems, and advises on the selection of equipment based on industry. It also includes relevant OSHA regulations and U.S. and Canadian consensus standards.
New chronic pain guideline emphasizes physical activity

An “overwhelming theme” in treating patients for chronic pain is to keep them as physically active as possible, according to an American College of Occupational and Environmental Medicine treatment guideline recently released, which has not been released to the public. The therapy needs to move beyond simply stretching to strengthening, aerobic conditioning, and functional improvement and one key is to not prescribe activity “as tolerated” or “as needed.”
Study of severe injury data finds poultry and meat workers at high risk

Every day, 27 workers suffer on-the-job amputations or injuries that require hospitalization, according to a recent report from the National Employment Law Project. According to the data, employers reported 17,533 severe injuries between Jan. 2015 and Sept 2016.

Out of more than 14,000 companies reporting to the government, Tyson Foods ranked fourth, and JBS/Pilgrim’s Pride ranked sixth, in terms of the number of severe injury reports filed. Further, the poultry industry as a whole has the 12th highest number of severe injuries of all industries reporting-higher than the sawmill industry, auto, steel, and other high-hazard industries.
Large variation in worker attorney involvement by state: study

WCRI released a new FlashReport to help inform policymakers and stakeholders about worker attorney involvement in their state. According to the study, the percentage of claims with worker attorneys ranged from 13-14 percent in Wisconsin and Texas to 49-52 percent in New Jersey and Illinois. States included in this study are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.
Mine safety rule implementation delayed until Oct. 2

The U.S. Mine Safety and Health Administration (MSHA) has extended the effective date for its rule on workplace safety examinations for metal and nonmetal mines to Oct. 2. The rule addresses the timing of workplace safety examinations and strengthens notification requirements.
MSHA launches lone miner safety initiative

MSHA announced it will begin focusing inspections and mine visits on lone miner situations after five of eight miner fatalities this year have involved miners working alone.
State updates

California

  • Insurance Commissioner Dave Jones has issued a revised advisory pure premium rate, reducing rates by 16.5% to $2.02 per $100 of payroll effective July 1.
  • Occupational Safety and Health Standards Board approved a new regulation that serves to strengthen process safety management around the state’s oil refineries.
  • The start date for the planned drug formulary will be delayed by six months to January 1, 2018 to revise parts of the plan and receive public comments.

Florida

  • 14.5% increase in comp premiums upheld by appeals court.

Illinois

  • The average indemnity benefit per claim in Illinois was $21,275 in 2013, while the median state benefit per claim was $18,269 according to a WCRI study.
  • The Senate passed two pieces of workers compensation reform legislation that would reduce the cost of workers compensation insurance for employers and introduce market competition. The bills will be sent to the governor for signature.

Mississippi

  • The Workers’ Compensation Commission has adopted an amendment to its 2017 fee schedule, adding opioid guidelines.

 

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

Legal Corner

ADA
Part-time schedule not required when the essential duties of the job cannot be performed

In Green v. BakeMark USA LLC, 6th Cir., the manager had been granted several leaves for cancer surgery and subsequent complications and returned with hour restrictions for a limited time. Shortly after returning to full duty and working a 24-hr shift, he collapsed and his doctor again issued work restrictions. At the employee’s request, the company provided information on the hours he was expected to work to the treating physician. It also attempted to reach the employee by phone and email, but received no response, which led to mediation.

At mediation, the employee, in effect, requested an indefinite leave of absence. The company terminated the employee who filed several claims under the ADA. A federal district court granted summary judgment in favor of BakeMark and on appeal, the 6th U.S. Circuit Court of Appeals affirmed dismissal.

Based on witness testimony and the job description for the position, the appeals court noted anything less than full-time hours would fundamentally alter the position, which is not required by the ADA. While part-time or flextime schedules can be a reasonable accommodation, they are not required when the essential duties of the job cannot be performed within the restricted hours.

 

Workers’ Compensation
Supreme Court tightens rules on where injury lawsuits can be filed – United States

The U.S. Supreme Court tightened rules on where injury lawsuits may be filed, handing a victory to corporations in a case involving Texas-based BNSF Railway Co. In an 8-1 decision, the justices threw out a lower court decision in Montana allowing out-of-state residents to sue there over injuries that occurred anywhere in BNSF’s nationwide network. State courts cannot hear claims against companies when they are not based in the state or the alleged injuries did not occur there, the justices ruled. In effect this significantly limits the ability to bring claims in friendly courts.
Work Comp policy can be rescinded for misrepresentation – California

A Workers’ Compensation Appeals Court determined that an insurer has the right to retroactively rescind a workers’ compensation policy, even if a worker has already been injured. In this case, the employer’s application for coverage implied that its employees did not travel out of state, but an employee was injured out of state.

In Southern Insurance Co. vs. Workers’ Compensation Appeals Board (WCAB), EJ Distribution Corp. et al., EJ Distribution Corp.’s application indicated covered employees would not travel out of California or outside of a 200-miled radius. After the arbitrator found the policy could not be rescinded and the WCAB adopted the arbitrator’s report, Southern petitioned the court for a writ of review, which was granted.

“Contrary to the arbitrator’s ruling, a workers’ compensation insurance policy may be rescinded,” the court said in its ruling. “A recession is enforced by a civil action for relief based on recession or by asserting recession as a defense. Because the arbitrator and the appeals board did not address and determine whether rescission was a meritorious defense to the employee’s claim, we annul the appeals board’s decision and remand the case with directions to hear and determine whether the insurer was entitled to rescind, and did rescind, the policy.”
Court of Appeals allows apportionment to genetics – California

In City of Jackson v W.C.A.B., a police officer injured his neck and was diagnosed with cervical degenerative disc disease and cervical radiculopathy. A physician concluded that his injury was cumulative and caused by a combination of work and personal activities as well as a personal history of “heritability and genetics”, among other things.

After the neck surgery, the doctor changed the apportionment to 49 percent; saying that there was new evidence that showed genetics played a more significant role in cervical spine disability than previously thought, citing several studies. The WCAB did not agree, but the Court of Appeals noted employers are able to base apportionment on other factors such as a preexisting disability or the natural progression of a non-industrial condition. The Court determined that there was substantial medical evidence to justify the apportionment, since new medical studies showed that heritability had a role in about 75 percent of degenerative disc disease cases.
Injured employee gets lawn care but not home renovations for treatment – Florida

An employee was injured on the job, had a compensable spinal fusion surgery, after which she developed a dropped foot, and experienced balance issues and falls. She also suffered from depression. A Judge of Compensation Claims awarded her lawn care, home renovations, attendant care, a podiatrist, an AFO brace, and evaluation of the need for specialized shoes based on medical necessity.

The First District Court of Appeals upheld the award for lawn care because there was evidence that it would improve her depression and anxiety, both of which were compensable. The home care, podiatrist, AFO brace and specialized shoes were also upheld because the employer failed to contest their medical necessity in a timely manner. The home renovations proposed by a registered nurse, however, were denied. The court reasoned that while the orthopedic surgeon indicated that he agreed with some of the suggestions in a home assessment report completed by a registered nurse, the physician never identified which ones should be provided and the registered nurse was not qualified to establish the medical necessity.
Worker can request change in doctor even after discharge from medical treatment – Florida

In Dominguez v. Compass Group, the1st District Court of Appeals ruled that a worker was entitled to exercise her statutory right to a one-time change in physicians, even though her doctor had discharged her from care.
School employee due benefits for fall when senior prank day necessitates different parking location – Illinois

In Field v. Pinckneyville Community H.S. Dist. 101, a teacher was walking from her car to the building where she worked when she fell and fractured her lower leg. She was walking a much further distance than usual because vehicles blocked the entrances to the school parking lot as part of a senior prank day. The Workers’ Compensation Commission awarded the teacher permanent partial disability benefits based on 35 percent loss of use of the left leg and medical expenses of $80,791 for injuries. It noted the prank day is implicitly approved by the school administrators, and the blocking of the teachers from parking in their customary parking spaces is a known activity, therefore, the teacher was within the scope of her employment.
Chicago Bears pay over $12.5 million to settle comp claims – Illinois

According to an article in the Chicago Sun-Times, over the past 20 years the football team has spent nearly $12.5 million to settle worker compensation claims filed by 141 players. And the team it still grappling with 144 additional claims from 55 other players. The Chicago sports teams have been arguing that the state’s laws regarding wage differential payments create a financial burden.
Highest court restricts admissibility about immigration status – Indiana

The Supreme Court ruled that an injured worker could pursue a damage claim for his lost future earnings in the U.S. job market, even though his immigration status did “not allow him to be legally employed.” It also restricted the admissibility of evidence about his immigration status to the jury unless the preponderance of the evidence establishes that he is likely to be deported and that his future lost earnings would therefore be limited to what he could earn in his native Mexico. Escamilla v. Shiel Sexton Co.
EMT suspended for criminal charges due benefits – Massachusetts

In Brian Benoit v. City of Boston, an EMT suffered an ankle injury and one year later was indicted on charges relating to misuse of controlled substances intended for his emergency patients. The city refused to pay benefits citing a 1972 state law banning public-sector workers facing criminal charges from receiving compensation from a government agency. However, the court ruled unanimously that the benefits are not salary, but an insurance agreement between the injured worker and the insurer and benefits were due.

Request for work with a different employer in rehabilitation plan nixes termination of TTD benefits – Minnesota

In Gilbertson v. Williams Dingmann, LLC, an employee who had given her notice, was injured prior to her departure date. The employee’s rehabilitation plan stated that her vocational goal was to return to work, but with a different employer. Although her employer offered her the same position at the same pre-injury wage, with reasonable accommodations for her physical restrictions, it was not completely consistent with the rehab plan as required by law. The employer’s offer could not, under any circumstances, be consistent with that plan.
Teacher cannot sue school district for injuries incurred during student fight – Minnesota

There are three exceptions to Minnesota’s workers’ comp exclusive remedy provision, including an assault exception, an intentional act exception and a co-employee liability exception. In John Ekblad vs. Independent School District, a high school teacher also served as lunchroom supervisor for additional compensation. While his duties included intervening to break up fights if he could do so safely, he was not required to do so. He received workers’ comp benefits when he intervened in a fight and was injured.

He sued the school district, alleging negligence and negligent supervision. The assault exception covers injuries inflicted for personal reasons and he argued the students made references to his race, but the court found that racial animosity is insufficient to establish a personal connection. The court also ruled the intentional act exception did not apply because even if the district’s policies were substandard or ineffective, that did not establish a conscious and deliberate intent to inflict injury. Further, the co-employee liability exception did not apply because the duty to provide a safe workplace is a non-delegable duty held by the employer as part of workers’ comp law.
Employee’s death does not negate settlement agreement not yet approved by Commission – Mississippi

In Taylor v. Reliance Well Service, the Court of Appeals ruled that an employer must honor a $71,659.43 settlement for a comp case even though the worker died before the Workers’ Compensation Commission approved of the deal. The agreement was submitted to the commission for review on May 13, 2016, the employee was killed on May 16, and the Commission approved the settlement on May 18, assuming the employee was still alive. The company filed a motion to have the approval order vacated, which was initially granted.

Upon appeal, the court reversed noting Workers’ Compensation Law specifically provides that settlement agreements “shall not be made except when determined to be in the best interest of the injured worker” and therefore, the sole statutory basis for disapproval of a settlement is a finding that the settlement would not be in the best interest of the worker. The employee’s death wouldn’t affect the commission’s determination of this issue.
Eastern District refuses to approve post-award settlement, in direct conflict with the Western District – Missouri

In the Western District, cases have determined that the Labor and Industrial Relations Commission must sign off on a joint proposal to commute an award so long as it was not made as a result of undue influence or fraud, the employee understood his rights and benefits, and he voluntarily agreed to accept the terms of the agreement. In Andrew Dickemann v Costco Wholesale Corporation, the Eastern District says these criteria, derived from Missouri Revised Statutes Section 287.390.1, apply only when there is an unresolved claim for benefits.

If the worker has established his entitlement to an award, the Eastern District said the applicable Section is 287.530, which says that commutations are to be granted only in “unusual circumstances,” and it requires that the value of the commutation be equal to the present value of the future installments due to the employee. In this case, there was no evidence of “unusual circumstances” and the terms of the agreement did not provide a payment equal to the present value of the future benefits, therefore, the Labor and Industrial Relations Commission properly refused to authorize the deal. The Eastern District panel said it believed the case setting precedent in the Western District had been wrongly decided.

Liability for asbestos-related condition can not be apportioned – New York

In Matter of Manocchio v ABB Combustion Eng’g, the Workers’ Compensation Board appropriately refused to apportion liability for an employee’s asbestos-related disease despite some evidence that he had been exposed to asbestos at multiple employers over a long period of time. While a medical expert indicated that apportionment was appropriate in terms of exposure, the expert admitted that determining the exposure to asbestos at each employer was impossible. Therefore, the appellate court concluded there was no objective way to prove that the employee contracted pleural plaque while working for another employer, and could not be apportioned.
Employer stops negligence suit on labor law technicality – New York

In Robinson v. National Grid Energy Mgt. LLC, an electrical foreman’s negligence suit was thrown out after his employer argued that Labor Law § 240(1) did not require it to protect workers from electrical shock. The employee was installing wires for a company hired by T-Mobile, when he fell 12-15 feet to the ground from a faulty aerial bucket. Noting that the bucket was not equipped with the proper electrical protection and that the lift function on the truck was malfunctioning, he decided to climb down, but his foot became stuck in the part of the bucket typically covered by the electrical protection, and he slipped and fell.

When he sued, T-Mobile petitioned to dismiss the complaint, arguing the bucket was faulty because it did not provide adequate protection from electrical shock, not because it provided inadequate fall protection and that the Labor Law did not guarantee a protection from electrical shock. While a lower court dismissed the complaint on the grounds that the decision to exit the bucket had caused his fall, the Supreme Court of the State of New York’s 2nd Judicial Department Appellate Division disagreed, but dismissed the case based on T-Mobile’s reasoning regarding the Labor Law.
Protz decision does not automatically nullify IRE rating – Pennsylvania

In William Gillespie vs. Workers’ Compensation Appeal Board (WCAB) (Aker Philadelphia Shipyard), the Commonwealth Court affirmed the decision of the WCAB, reversing the decision of the Workers’ Compensation Judge (WCJ), who upheld the employee’s constitutional challenge to his impairment rating evaluation (IRE). The Commonwealth Court ruled that its 2015 decision in Protz v. WCAB (Derry Area School District) does not automatically allow injured workers who had their disability status converted through the impairment rating evaluation process to undo this change.

While the court’s decision in Protz declared the IRE rating standard unconstitutional, the court said workers who have already gone through the IRE process have 500 weeks to appeal the conversion of their disability status, and they need evidence of a full-body impairment above 50% to support their claim, which the employee did not provide. The court said it had already rejected the idea that the Protz decision invalidated all IREs performed using the fifth edition of the guides late last year, in the case Riley v. WCAB.
Lay testimony sufficient to prove exposure – Pennsylvania

In Kimberly Clark Corporation v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician who was diagnosed with metastatic bladder cancer in the summer of 2005, and died a year later. His widow filed a Fatal Claim Petition and relied upon the testimony of two co-workers who detailed the various chemicals and substances known to cause cancer that her husband worked with, as well as an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens. This testimony was considered more credible than that presented by the “environmental manager” for the Employer’s plant and the insurance company’s expert physician. The Fatal Claim Petition was granted by the WCJ and upon appeal, affirmed by the Commonwealth Court.

One issue addressed by the Court was whether the death took place within 300 weeks of the “injury.” When viewed as a repetitive or cumulative trauma case, the date of the “injury” is the date of the last exposure to the harmful source; thus, the death did take place within that period.
Co-employee immunity protects unpaid volunteer – Wisconsin

In Fitzgerald v. Capezza, an employee of a catering company suffered injuries in a car accident while en route to a work site as a passenger in a truck driven by a volunteer for the catering company. The employee filed a workers’ compensation claim, which she eventually settled. About a year later, she filed a personal injury action against the volunteer and her automobile liability insurance carrier. The case went through several appeals, but all concurred that the unpaid volunteer for the catering company was still a co-employee. As long as she received something of value in exchange for her work, and she received food, lodging and free admission into events, the court said she would be a “paid” worker for purposes of Wisconsin comp law.

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

OSHA watch

Legislative updates (see first article for details)

  • Electronic record-keeping rule delayed, but anti-retaliation provisions remain
  • Walkaround rule rescinded
  • Enforcement of silica standard for construction delayed until Sept. 23

No major budget changes for FY 2018, but shifting priorities

The proposed FY 2018 budget includes $543 million with $130 million for “federal and state compliance assistance activities to enhance employer outreach and training.” The budget for fiscal year 2017, which ends Sept. 30, was $552.8 million. While adding money to compliance assistance, the proposed budget slashes funding for the standards and statistics programs. Enforcement remains intact and there are no new riders that would prohibit the agency from enforcing any standards or other parts of the law.

Meanwhile, the Mine Safety and Health Administration would see relatively small changes in funding for fiscal year 2018, but NIOSH might experience a sizable reduction in its budget, and the Chemical Safety Board still is scheduled for elimination.

New videos and infographics provide facts on falls

Falls are the leading cause of death for construction workers, accounting for 367 of the 985 construction fatalities recorded in 2015. Two videos have been posted on the Stand-Down homepage and a series of infographics can be downloaded.

Enforcement notes

Illinois

Demolition company faces $152,000 in fines following death of worker

Omega Demolition Corp. was working on the demolition of an I-90 bridge when a falling beam injured several workers and killed one. An investigation found that the company overstressed the beam, resulting in the beam’s failure and $152,000 in fines was levied. A commission has been set up to review the findings and determine whether the fines and citations will stand and what additional measures the Illinois Tollway will take.

Massachusetts, Maine

Railroad company violated whistleblower’s right and ordered to pay $260,000

A federal appeals court has affirmed that Pan Am Railways, Inc. must pay $260,000 in punitive and compensatory damages and take corrective action on behalf of an employee who was subjected to retaliation for filing a Federal Railroad Safety Act whistleblower complaint. The court found the North Billerica-based commercial railroad retaliated against the employee, who works in a rail yard in Waterville, Maine, when it charged him with dishonesty in connection with his FRSA complaint. The employee had tried to report an injury.

Michigan

Landscaping company hit with $222,000 in safety fines, stop-work order

Failure to abate safety hazards, including not using traffic control devices when employees were working near the road, not training workers on tree-trimming operations and safeguards, and not using a chipping machine in a safe manner led to a cease-operation order against Sunset Tree Service & Landscaping LLC. The company has a history of violations.

Auto insulation manufacturer faces fines of $569,463

An Ohio-based employee of Michigan, Farmington Hills-based Autoneum North America suffered an amputation of his right hand, wrist and part of his forearm when his arm got caught in a shredding machine at the auto insulation manufacturer plant in Oregon, Ohio. The company faces $569,463 in proposed penalties for failure to equip the machine with adequate safety guards.

Ohio

Automotive steel manufacturer faces $279,578 in penalties

Canton-based Republic Steel, an automotive steel manufacturer, is facing $279,578 in proposed penalties after investigators found workers at its plant exposed to machine hazards and lead.

South Dakota

Sioux Falls-based Hultgren Construction L.L.C. faces two willful citations and a proposed penalty of $101,400 for failing to properly train and instruct employees, for exposing employees to struck-by and crushing hazards, and not performing an engineering survey prior to beginning demolition. The company was renovating a historic building in downtown Sioux Falls when the building collapsed, killing one of its employees.

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

Highlights of the 2017 NCCI Symposium

Each year, the National Council on Compensation Insurance (NCCI), which gathers data, analyzes industry trends and legislation, and prepares insurance rate and loss cost recommendations, holds an Issues Symposium. The theme for 2017 was “Adapting”. Bill Donnell, president and CEO, noted the industry must remain open to new ideas and processes to stay relevant in an atmosphere of rapid change, largely driven by technology.

Highlights and findings include:

  • NCCI’s chief actuary, Kathy Antonello, noted in a presentation of NCCI’s State of the Line report that the workers’ compensation combined ratio for private workers compensation insurers during calendar year 2016 was 94%, driven by a decline in frequency paired with increases in indemnity and medical severity. On an accident year basis, the industry-reported 2016 workers compensation combined ratio was 98%.
  • Average lost-time claim frequency across NCCI states declined by 4% in 2016, on a preliminary basis.
  • In NCCI states, the preliminary Accident Year 2016 average indemnity claim severity increased by 3% relative to the corresponding 2015 value. For medical, the preliminary average lost-time claim severity increased by 5% relative to that observed in 2015.
  • Overall average cost of Lost Time claims in NCCI states now is $53,000.
  • Post recession, workers’ comp medical spend on indemnity claims have increased LESS than Personal Health Care spending per capita.
  • Only about 9% of managers can be replaced by automation, but 78% of workers in predictable physical work.
  • Generic drugs now represent the majority of costs for scripts in workers’ comp. Shift largely because of patent expirations on popular meds.
  • Payroll growth largest driver of increase in direct written premium.

Understanding the drivers of medical costs

NCCI’s project leader and senior actuary, Barry Lipton, presented a detailed analysis of the trends and drivers of medical costs. Average medical costs per claim have been increasing each year at low single-digit rates since 2009, and decreased in 2015. This mild growth in medical severity follows more than a decade of year-over-year increases that ranged from 5% to more than 13%.

Noting that it’s been quite a turnaround for comp, Lipton ruled out fee schedules and the ACA as drivers of the modest increase in medical severity. He concluded increased use of networks is a key driver in moderating medical costs.Average costs are a product of the cost of medical services and how often they are used. It appears that “networks not only deliver a price saving, but a utilization saving as well.” Average payments to network physicians are lower than average payments to non-network physicians and network doctors provide fewer treatments and services. NCCI is doing further research to quantify the savings.

While this is an encouraging trend, medical costs remain high. The average medical cost per lost-time claim is hovering around $30,000. One way to measure physician costs across the states is to compare work comp payments to the Medicare reimbursement rate. Prices paid relative to Medicare vary widely, from about 100% (Florida – 101%) to over 250%. Countrywide the average is 150%.

In 2015, physician costs were 38% of total medical costs, combined inpatient and outpatient hospital costs were approximately 31%, and prescription drug costs were about 11%. Of particular note is the rising cost of hospital inpatient care. In 2012, Hospital Inpatient Paid per Stay amounted to $19,514, in 2013, it rose to $22,944 (18% increase), in 2014, it was $24,558, or a 7% increase, and in 2015, it was $25,320, a 3% increase over the previous year.

For more information.

 

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Legislative update

OSHA delays electronic record-keeping rule, but anti-retaliation provisions remain

OSHA announced on its website on May 17 that it “is not accepting electronic submissions at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.” There was no word on when, or whether, a new deadline would be set for data submission.

Although there were indications that OSHA had beta tested a secure portal with the help of a few national employers and employment organizations, the suspension did not come as a surprise. At the time the rule was published, it was noted that the portal would be live on February 1, 2017, but, after the election, there were no updates from OSHA about how precisely the database would function or when it would go live.

It’s uncertain what will happen going forward. According to the Washington Post, an OSHA spokeswoman said that the agency delayed the rule to give the agency time to address employers’ “concerns about meeting their reporting obligations.”

There are several possibilities. The Administration may formally rollback the new rule through notice and comment rulemaking to rescind all or at least this portion of the rule. Another possibility is that the rule stands or stands without the public viewing aspects. There are two ongoing lawsuits challenging the rule, which are in the early stages of litigation. It’s possible the agency will wait for the outcome of the cases. Also, the new Secretary of Labor Alexander Acosta has only recently assumed his position, so action may be delayed until Secretary Acosta’s new team at OSHA is in place. The rule is not dead… it’s wait and see.

Anti-retaliation provisions remain

The electronic filing delay does not affect the anti-retaliation provisions of the rule that went into effect in December 2016. Employers must inform workers of their right to report work-related injuries and illnesses, and they can’t retaliate against employees for doing so.

According to OSHA guidance on the anti-retaliation provisions, employers must establish reasonable procedures for reporting injuries. The guidance recommends limitations on safety incentive programs and drug-testing policies that might deter workers from reporting accidents.

Business groups have also challenged this provision in court, arguing that OSHA exceeded its authority. A court denied a preliminary injunction that would have blocked the provisions; however, it is still possible the court could find it illegal.

While it is unknown how aggressive enforcement efforts will be, the rule is in effect and employers need to comply. Employers should have reviewed drug testing policies and safety incentive programs in light of OSHA’s guidance. Also, they should document informing employees of the right to report injuries without retaliation and how to report, as well as post the latest version of OSHA’s Rights poster.

OSHA rescinds walkaround rule

OSHA has changed its policy on allowing employees at non-union workplaces to choose a union-affiliated representative for “walkaround” inspections, according to an April 25 memo sent to regional administrators.

The policy began in 2013 but was being challenged in court by the National Federation of Independent Business, with help from the Pacific Legal Foundation. Following the memo, the lawsuit was withdrawn on April 27.

OSHA delays enforcement of silica standard for construction

Enforcement of the silica standard for construction was set to begin June 23, but has been delayed to Sept. 23. The delay is necessary for OSHA “to conduct additional outreach and provide educational materials and guidance for employers,” according to the agency.

Despite the delay, OSHA said it expects employers in the construction industry to take steps toward implementing the standard’s requirements.

Feds won’t tackle medical marijuana

Given Attorney General Jeff Sessions’ negative position, there was much speculation if there would be efforts to resolve the conflict between federal and state laws on medical marijuana, which is still considered a Schedule I drug by the U.S. Drug Enforcement Administration, but is now legal in 29 states. President Trump signed House Resolution 244, a $1.1 trillion appropriations plan that includes language that will prevent the federal government from spending money to fight medical marijuana.

According to a press statement from the White House, a section of the bill “provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various states and territories.”

DOL withdraws guidance on employee definitions

On June 6, the U.S. Department of Labor withdrew Obama administration guidance on joint employment and independent contractors that expanded the definition of employees. The statement withdrawing the guidance noted: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.” It is expected, however, that employers, who can now rely on the law rather than administrative interpretations, will laud the news.

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

Four troubling trends threaten worker safety

Despite the remarkable strides that employers have made in reducing workplace injuries, there are several persistent issues that threaten worker safety. Here are four of them:

  1. Disconnect between employer and employee perception of value of productivity over workplace safetyIn a recent survey, Employee Perceptions in Workplace Safety, by the National Safety Council (NSC), over one-third of the employees surveyed claimed that workplace safety is secondary to performing tasks. This perception was even much higher in certain industries: 68% in agriculture, forestry, fishing and hunting; 58% in construction; and 45% in manufacturing or industrial facilities.

    The report also found that 32% of respondents agreed that employees “are afraid to report safety issues,” and 30% agreed “employees are resistant to working safely.” Of those surveyed, 39% agreed that management does only the “minimum required by law” when it comes to employee safety. 32% feel management ignores an employee’s safety performance when determining promotions.

    On the other hand, 71% stated that safety training is part of orientation, and 68% of those surveyed agreed that employees are well trained in emergency practices. 62% say everyone is involved in solving job safety issues. 63% of employees feel they work in areas or at stations that are ergonomically correct.

    Takeaway: Even in companies that have a safety strategy aligned with their organizational goals, there can be a safety-vs.-production dichotomy. This can come from unrealistic deadlines, poor supervision, inadequate communication, lack of accountability, workers’ perception that personal productivity solely drives raises, or a high tolerance for risk among some employees. Find out how your employees view safety and productivity. Are there conflicts, if so, what are they and how do they resolve them? Many successful companies have demonstrated that high value on safety and productivity can co-exist and help achieve long-term profitability.

  2. Motor vehicle crashes are leading cause of workplace fatalities and roadways are getting more dangerousIt’s not falls, fires, explosions, or chemical exposure that kills workers the most on the job; it’s motor vehicle crashes. According to the Bureau of Labor Statistics, Census of Fatal Occupational Injuries Summary, 2015 (latest data available), roadway incident fatalities were up 9 percent from 2014 totals, accounting for over one-quarter of the fatal occupational injuries in 2015.

    Drivers are often lulled into a false sense of security with hands-free and in-vehicle technology. An NSC survey found that 47% of motorists are comfortable texting while driving. There’s also a false sense that summer is a safer time to drive with better weather and road conditions. However more auto accidents occur during the summer time than any other time of the year.

    According to the NSC, the increased serious injuries and fatalities from motor vehicle crashes continue a troubling multiyear surge that experts believe is being fueled, in part, by more people driving while distracted by cellphones, infotainment screens, and other devices. Other factors include an improving economy, lower gas prices, and younger, more inexperienced drivers.

    And then there are the challenges that face the trucking industry. Heavy and tractor-trailer truck drivers incurred 745 fatal work injuries in 2015, the most of any occupation.Truck drivers also had more nonfatal injuries than workers in any other occupation. Half of the nonfatal injuries were serious sprains and strains; this may be attributed to the fact that many truck drivers must unload the goods they transport. A driver shortage, a rapidly aging driver population, as well as issues with driver fatigue, obesity, and other co-morbidities challenge the industry. And in many delivery zones, there has been an increase in pedestrian strikes, not caused by drivers but by distracted pedestrians.

    Takeaway: Any company utilizing vehicles for business purposes – even if those vehicles are employees’ personal cars – can feel the impact of rising accidents. The average work-related motor vehicle injury claim costs $72,540, which is twice as much as other work-related injuries. Those who have not instituted policies to minimize distracted driving need to do so. Random checks on compliance with the policy and discipline for non-compliance are key. Employers can also strengthen hiring practices and use fleet telematics, when appropriate.

    These policies should be regularly communicated to help reinforce the message. There are good public awareness campaigns, including an informative website, distraction.gov, in which employers can download forms to use in obtaining a pledge to not engage in distracting activities while driving. Recently, the NSC created a webinar offering recommendations not only on eliminating distractions in vehicles, but also on how to be alert and react to the actions of other distracted drivers on the road.

  3. Fatalities in construction outpace employment growthThe number of fatalities among construction workers climbed to 985 in 2015 after dipping to 781 in 2011, an increase of 26% compared to employment growth of 16%. Fall-related fatalities increased at a faster pace – rising 36% to 367 in 2015, according to the report by the Center for Construction Research and Training (CPWR).

    Data presented in the report comes from the Bureau of Labor Statistics. Other findings:

    • 55 percent of fatal falls came from heights of 20 feet or less.
    • 33 percent of fatal falls involved falls from roofs, 24 percent involved ladders, and scaffolds and staging accounted for 15 percent.
    • Fatal falls in residential construction rose to 61 in 2015 from 26 in 2011.
    • Roofers continue to experience the highest rate of fatal falls to a lower level: 31.5 per 100,000 full-time workers, although this represents a decrease from 39.9 in 2014.
    • Workers at an increased risk of fatal falls include Hispanic workers, foreign-born workers, and workers 55 years and older.

    Takeaway: The findings in this report emphasize the need to reduce falls and the importance of ongoing vigilance. CPWR, OSHA and NIOSH have a variety of resources available and the Campaign to Prevent falls in construction website includes Eleven Ways to keep your fall prevention program alive all year long.

  4. Impaired workforce: drug use at 12-year highCocaine, marijuana and methamphetamine use continues to climb among workers, though opioid use is down, according to a May 2017 study by New Jersey-based Quest Diagnostics Inc. Cocaine positivity increased 12 percent in 2016, reaching a seven-year high of 0.28 percent, compared to 0.25 percent in 2015, and seven percent among federally-mandated, safety-sensitive workers to 0.28 percent, compared to 0.26 percent in 2015. Marijuana positivity increased dramatically over the last three years with increases in Colorado and Washington double the national average. In oral fluid testing, which detects recent drug use, marijuana positivity increased nearly 75 percent, from 5.1 percent in 2013 to 8.9 percent in 2016.

    Amphetamines (which includes amphetamine and methamphetamine) positivity continued its year-over-year upward trend, increasing more than eight percent in urine testing compared to 2015. Throughout the last decade, this rise has been driven primarily by amphetamine use, which includes certain prescription drugs such as Adderall.

    On a positive note, heroin detection remained flat, while prescription opiate detection declined.

    Takeaway: The efforts to control opiate prescribing in workers’ comp have produced promising results. However, the answer to the problem of drugs in the workplace remains elusive. The regulations governing drug testing are more restrictive, there is no established standard of what constitutes impairment when it comes to marijuana, alternatives to chronic pain treatment are still emerging, and employees often do not understand the perils of some prescription medications. In addition to a carefully crafted drug-free workplace policy, training supervisory staff to identify and know what to do if they suspect an employee has a problem and educating employees on their role in keeping the workplace safe are key.

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

 

Things you should know

Attention motor carriers: “Roadcheck” annual event – June 6 – 8

Nearly three times more roadside inspections take place during the 72 hours on June 6 – 8 than on any other time of the year. Sponsored by the Commercial Vehicle Safety Alliance (CVSA), the intensive annual “Roadcheck” is a good opportunity for those in the motor carrier industry to improve their Compliance, Safety, Accountability (CSA) scores. In 2016, 62,796 truck and bus inspections were completed throughout the United States, Canada, and Mexico.

Top construction risks: geopolitical instability, workforce management issues

In a survey of executives in the construction sector, Willis Towers Watson P.L.C. found geopolitical instability and workforce management issues as the biggest challenges facing the industry. Geopolitical issues included uncertainty of government support and financing, postponement and delays, changes in strategy, and commitment to project pipelines. Workforce management issues include increasing need for digital skills, a global employee network, disparate labor laws, difficulty to attract talent, and an aging population. The Construction Risk Index report can be downloaded here.

New pamphlet spotlights Hypothenar Hammer Syndrome

Scientific research organization IRSST has released a pamphlet intended to help workers recognize Hypothenar Hammer Syndrome. Aimed at workers who use vibrating tools or frequently strike, press or twist objects with the palms of their hands, the free pamphlet outlines syndrome warning signs and prevention methods.

Mayo Clinic study: second opinion leads to new or refined diagnosis for 88% of patients

Many patients come to Mayo Clinic for a second opinion or diagnosis confirmation before treatment for a complex condition. In a new study, Mayo Clinic reports that as many as 88 percent of those patients go home with a new or refined diagnosis – changing their care plan and potentially their lives. Conversely, only 12 percent receive confirmation that the original diagnosis was complete and correct.

These findings were published online in the Journal of Evaluation in Clinical Practice.

Study links participation in weight-loss programs to reduced absenteeism

Obese workers who took part in a structured weight-loss program reported fewer hours missed on the job after six months, a recent University of Michigan study shows.

Researchers surveyed 92 people who had an average body mass index of 40 and worked in various occupations. Before entering the program, participants stated in a self-evaluation that they worked an average of 5.2 fewer hours a month than their employers expected. After six months and an average of 41 pounds shed, participants reported working 6.4 more hours a month than expected.

WCRI’s CompScope™ Benchmark 2017

The 17th edition of CompScope™ Benchmarks Report is available from the Workers’ Compensation Research Institute (WCRI). The report looks at the impact of state workers’ compensation reforms on things like claim costs, rate of litigation, and disability duration and included 18 states: California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia and Wisconsin. In California and North Carolina, the total costs per claim have been steady between 2010 and 2013. Illinois saw total costs per claim decrease by 6.4 percent since 2010, which researchers attribute to a 30 percent reduction in fee schedule rates for their medical services. Indiana’s total costs per claim decreased by 4 percent from 2014 to 2015, a product of a 10 percent decrease in medical payments, but a 5 percent increase in indemnity benefits per claim. In Florida, total costs per claim increased between 2010 and 2015, but there were decisions last year from the Florida Supreme Court that may slow or stop those increases in costs.

Rising pedestrian death toll

The latest report on U.S. pedestrian deaths, from the Governors Highway Safety Association, estimates that last year’s total rose 11.6 percent to nearly 6,000, or more than 16 fatalities a day. If that projection proves accurate – it is based on fatality records from only the first half of 2016 – it would mark the sharpest yearlong increase since records have been kept.

Analysts are putting much of the blame on drivers and walkers who are looking at their smartphones instead of watching where they are going. Tipsy walking also is part of the problem, with one in three victims legally drunk when they were struck and killed.

Workplace death rate hits a 10-year high in Massachusetts

Seventy Massachusetts workers lost their lives last year, marking a 10-year high in the rate of workplace-related fatalities, according to the Massachusetts Coalition for Occupational Safety and Health, known as MassCOSH. Sixty-two of those workers were killed on the job, many in construction; the rest were firefighters who died from occupational illnesses, such as lung cancer and heart disease.

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

Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

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