Understanding the drivers of serious injuries by industry Liberty Mutual Workplace Safety Index

Produced annually, the Liberty Mutual 2019 Workplace Safety Index identifies the leading causes of the most disabling non-fatal workplace injuries (resulting in more than five days of lost time) and ranks them by total Workers’ Compensation costs. While the findings have always provided insight into critical risk areas so businesses can better allocate safety resources, this year’s report delves deeper by reporting the causes and costs of the most serious workplace injuries by eight industries.

U.S. companies lose more than $1 billion per week due to workplace injuries, according to the report that is based on data from Liberty Mutual, the U.S. Bureau of Labor Statistics and the National Academy of Social Insurance. The top causes of the most serious workplace injuries have been stable over the past several years, with overexertion (lifting, pushing, pulling, holding, carrying) and falls from the same level topping the list. Here are the top ten causes and their costs:

  1. Overexertion involving outside sources. Cost: $13.1 billion
  2. Falls on the same floor level. Cost: $10.4 billion
  3. Struck by object or equipment including falling objects from above. Cost: $5.2 billion
  4. Falls to lower level from a ladder or platform. Cost: $4.9 billion
  5. Other exertions or bodily reactions from activities (crawling, reaching, bending, twisting, climbing, kneeling, or walking). Cost: $3.7 billion
  6. Roadway incidents involving motorized land vehicle. Cost: $2.7 billion
  7. Slip or trip without fall. Cost: $2.2 billion
  8. Caught in or compressed by equipment or object. Cost: $1.9 billion
  9. Repetitive motions involving microtasks, such as working on an assembly line. Cost: $1.63 billion
  10. Struck against object or equipment. Cost: $1.2 billion

Even when broken down by eight industry sectors, there was consistency with overexertion and falls on the same level in the top five causes for each of the sectors. Here are the industry results:

Construction – $9.87 billion in losses ($189.81 million a week)

  1. Falls to a lower level
  2. Struck by object or equipment
  3. Overexertion involving outside sources
  4. Falls on the same level
  5. Slip or trip without a fall

Professional and business services – $7.86 billion in losses ($151.15 million a week)

  1. Falls on the same level
  2. Overexertion involving outside sources
  3. Falls to a lower level
  4. Roadway incidents involving motorized land vehicle
  5. Struck by object or equipment

Manufacturing- $7.62 billion in losses ($146.54 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Struck by object or equipment
  4. Caught in or compressed by equipment or object
  5. Repetitive motions involving microtasks

Health care and social services – $5.17 billion in losses ($99.42 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Intentional injury by person
  4. Roadway incidents involving motorized land vehicle
  5. Other exertions or bodily reactions

Retail – $5.09 billion in losses ($97.88 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Struck by object or equipment
  4. Other exertions or bodily reactions
  5. Falls to a lower level

Transportation and warehousing – $4.37 billion in losses ($84.04 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Roadway incidents involving motorized land vehicle
  4. Other exertions or bodily reactions
  5. Falls to a lower level

Wholesale – $4.04 billion in losses ($77.69 million a week)

  1. Overexertion involving outside sources
  2. Struck by object or equipment
  3. Falls to a lower level
  4. Falls on the same level
  5. Other exertions or bodily reactions

Leisure and hospitality – $3.46 billion in losses ($66.54 million a week)

  1. Falls on the same level
  2. Overexertion involving outside sources
  3. Struck by object or equipment
  4. Struck against object or equipment
  5. Other exertions or bodily reactions

While James Merendino, Vice President and General Manager at Liberty Mutual Insurance, acknowledges that efforts to improve safety need to be based on a specific employer’s operations and employees, he says there are three techniques that have proven successful in improving safety in a variety of industries.

  • Establish a strategic safety plan. This involves identifying the top safety risks facing the company and how they will be mitigated and managed. This includes existing risks, as well as integration of new technologies or procedures.
  • Set expectations. The commitment of senior management must be unwavering, consistent, and visible. It must be an integral part of the business plan for the company’s success.
  • Directly involve front line employees in the strategic safety program. This is an on-going process that benefits both the employer and employees. These are the people who do the work, are closest to the hazards, and know the shortcuts that can be taken.

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

Legal Corner

Workers’ Compensation
ABC test applies only to wage order claims – California

Earlier this year, the Supreme Court issued a groundbreaking decision when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors. The Dynamax vs The Superior Court of Los Angeles County case was decided for the purposes of the state’s wage orders, but some speculated it might be applied more broadly.

Recently, in Garcia v. Border Transportation Group, a Court of Appeals held that the new test is limited to claims arising under the California Wage Orders, and that other claims continue to be governed by the prior (and more employer-friendly) standard known as the Borello test. It noted: “Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California’s labor protections…[The California Supreme Court] did not reject Borello, which articulated a multifactor test for determining employment status under the Worker’s Compensation Act.”

No coverage for injury that occurred before issuance of policy – Florida

An insurance broker scrambled to get a policy in place for an uninsured employer dated the same day of an employee injury without disclosing the incident to the insurance carrier. In Normandy Ins. Co. v. Sorto, an appellate court ruled that there could be no coverage because insurance laws preclude coverage for losses that have already taken place. The court noted agreement to assume a known loss is not insurance. Insurance is to provide protection against risk. One cannot insure against known losses; there is no risk.

Lunch break injury not compensable – Georgia

In Frett v. State Farm Employee Workers’ Comp., an insurance claims associate had a scheduled lunch break and walked to the break room to microwave her lunch, which she intended to eat outside. In the breakroom, she fell in a puddle of water and a manager instructed her to complete an incident report. While an administrative law judge granted benefits, the State Board of Workers’ Compensation reversed and a superior court judge affirmed the denial.

The board found the injury did not arise out of her employment because it occurred while she was on a regularly scheduled break and while she was leaving to attend to “a purely personal matter.” While there was precedent for compensability when a worker is entering or exiting the employer’s property, even during break times, the court said this was a mistake and disapproved of its prior decisions.

Injured employee has right to sue employer under retaliatory discharge statute – Massachusetts

In Bermudez v. Dielectrics, Inc., a worker was placed by a temporary employment agency in a manufacturing facility. She sustained work-related injuries when one of the manufacturer’s employees negligently operated a forklift and several large metal sheets fell on her foot. She received work comp benefits from the employment agency and returned to work at the manufacturer eight weeks later. A few months later, she was hired as a full-time employee at the plant.

Eighteen months later, she filed a third-party action for negligence against the manufacturer and the forklift operator. Two months later she was terminated and she sued.

While a trial judge ruled in favor of the company, an appeals court found that the workers’ compensation law specifically says a worker can initiate a third-party action in addition to receiving benefits through the comp system and that a 1971 amendment eliminated the election of remedies concept (comp remedy or a civil claim). The worker had a right to file her third-party action and she could not be fired for doing so.

Worker on business trip who witnessed killings at a restaurant awarded benefits for PTSD – Michigan

In Dickey v. Delphi Automotive Systems LLC., an employee was at a restaurant in Mexico with clients and workers when he witnessed gunmen kill several people in the restaurant. When he returned to Detroit, he was diagnosed with PTSD. The Commission held it was logical to conclude that one who witnesses a horrific, stressful, and traumatizing event such as a multiple murder could possibly be afflicted with PTSD and that the award of benefits was reasonable. The employer’s examining doctor found that his symptoms were related to the side effects from the medicine he was taking, but the magistrate relied on the opinion of the treating doctors, who were actually increasing the worker’s medications.

Murder of worker by co-worker not work related – Michigan

In Williams v. Park Family Health Care PC, a worker was killed by a co-worker who she previously dated. She had broken off the relationship because he was married and not seeking a divorce. He let himself into the building, killed the worker, set the building on fire, and killed himself.

While the court found the death occurred in the course of employment, it did not arise out of her employment. The feud was personal and not connected to her employment.

Devastating stroke after reaching MMI does not affect permanent total disability benefits – Nebraska

In Krause v. Five Star Quality Care, a housekeeper fell and fractured her right femur. After her surgery she attempted to return to work, but experienced too much pain. About 2.5 years later, she filed a petition in Workers’ Compensation Court seeking temporary and permanent disability benefits. Approximately three weeks later, she suffered a massive stroke that left her incapacitated.

The compensation court, finding that the stroke was unrelated to the work injury or treatment, found she had reached maximum medical improvement prior to her stroke and awarded her permanent total disability benefits (PTD). The company argued that the stroke cut off her entitlement to PTD benefits. The court disagreed, noting that her work-related disability did not cease once she had the stroke.

Treatment guidelines apply to out-of-state providers – New York

In Matter of Gasparro v. Hospice of Dutchess County, a home health aide sustained work-related injuries to her lower back and buttocks while employed in New York and was given a nonscheduled permanent partial disability classification. Ten years later, she moved to Nevada.

Several years later, the workers’ compensation carrier objected to payment of various medical charges from a pain management specialist in Nevada. A workers’ compensation law judge ruled in favor of the medical provider, but the Workers’ Compensation Board reversed and the appellate court agreed.

Although the Board had departed from its prior decisions on the issue, the appellate court found it was rational to require medical treatment be in compliance with the guidelines.

Unreasonable deviation from employment nixes benefits – New York

In Matter of Button v. Button, a farmhand was seriously injured in a vehicular accident as he crossed a road on an employer-owned all-terrain vehicle (ATV) from his employer-provided residence to the farm itself. His residence was across the road from the farm and his girlfriend was moving in that day. He stopped at the house and grabbed a beer and the accident occurred on the way back to the farm.

His comp claim was denied by a judge because he was engaged in a prohibited activity at the time of the accident (drinking) and, therefore, his injuries did not arise out of and in the course of employment. The Board affirmed as did the appellate court, noting there was a verbal warning about drinking on the job and that other employees testified the consumption of alcohol at work was prohibited.

Workers’ Compensation Board must determine if worker is independent contractor – New York

In Findlater v Catering by Michael Schick, Inc., a state appellate court held that a trial court’s finding that a worker was an independent contractor, and not an employee, must be reversed. It found that employment issues must be decided by the Workers’ Compensation Board and the court erred by not holding the matter in abeyance pending a final resolution.

Volunteer can pursue personal injury suit in spite of liability waiver – New York

In Richardson v. Island Harvest, an unpaid volunteer worked as warehouse assistant and signed an agreement, which stipulated he was a volunteer and would not attempt to hold the organization liable for any bodily injuries he suffered in the course of his volunteer activities. He was struck by a forklift being operated by an employee and filed a personal injury suit. While a county Supreme Court Justice granted summary judgment to the organization, an Appellate Court reversed.

“New York courts have long found agreements between an employer and an employee attempting to exonerate the employer from liability for future negligence whether of itself or its employees or limiting its liability on account of such negligence void as against public policy,” the Appellate Division said.

Insurer cannot sue third-party without involvement of injured worker – Pennsylvania

An employee of Reliance Sourcing, Inc, which was insured by The Hartford, was standing in the parking lot of Thrifty Rental Car when she was struck by a rental vehicle. The Hartford paid over $59,000 in medical and wage benefits and sought to sue the responsible parties for damages. The employee did not join in the insurer’s action, did not assign her cause of action to the insurer, and did not seek to recover damages independently.

While the defendants argued The Hartford had no independent ability to commence a subrogation claim directly against them, The Hartford argued it had filed the suit “on behalf of” the employee. In a divided decision, the Supreme Court ruled that absent the injured employee’s assignment or voluntary participation as a plaintiff, the insurer may not enforce its right to subrogation by filing an action directly against the tortfeasor. – The Hartford Insurance Group on behalf of Chunli Chen v. Kafumba Kamara, Thrifty Car Rental and Rental Car Finance Group.

Widow denied benefits for husband’s pancreatic cancer – Tennessee

In Alcoa v. McCroskey, the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel ruled that a widow failed to prove her husband’s cancer was caused by his occupational exposure to coal tar pitch, affirming the decision of a trial judge. The judge found Alcoa’s expert to be more persuasive than the widow’s expert, who relied upon a single medical article, yet that article expressly noted its evidentiary deficiencies. The employer’s expert testified that the employee possessed recognized risk factors for the development of pancreatic cancer that were wholly unrelated to his work exposure to coal tar pitch.

Department-approved settlement not sufficient to compel treatment – Tennessee

In Hurst v. Claiborne County Hospital and Nursing Home, a paramedic was injured in an ambulance accident and also alleged a psychological injury from an October 2000 incident when she encountered a severely abused infant. The claim was settled, but the agreement only addressed her psychological injury. No reference was made to the ambulance accident.

After the settlement was finalized, she filed a new claim seeking benefits for the injuries incurred in the ambulance accident. She settled the claim in exchange for the payment of permanent partial disability benefits and the promise of payment for future medical directly related to her injuries. The Department of Labor and Workforce Development signed off on the settlement, not a judge. Seven years later, she filed a motion to compel payment for medical care which a trial judge granted.

On appeal, the hospital argued that the judge lacked jurisdiction since there was no court order awarding her a right to medical treatment for her physical injuries. The Supreme Court of Tennessee’s Special Workers’ Compensation Appeals Panel found the version of the Workers’ Compensation Law applicable to the 2001 car accident did not provide any mechanism for the enforcement of a department-approved agreement that had not been approved by a judge.

Worker loses benefits for failure to attend FCE sessions – Virginia

On three occasions over a four-month period of time, an employee cancelled a scheduled (and rescheduled) functional capacity evaluation (FCE) session. The employer filed a request to terminate benefits. Although the worker did appear for a FCE one week after the hearing, the worker took no action in the nearly seven-month period between the time the employer filed the request and the date of the hearing. In DeVaughn v. Fairfax County Public Schools, the Court of Appeals upheld the decision of the Workers’ Compensation Commission that there were no mitigating circumstances excusing her lack of effort and no basis for a finding of good faith.

Drivers failure to chock wheel nixes benefits – Virginia

In Callahan v. Rappahannock Goodwill, an appellate court affirmed a finding by the state’s Workers’ Compensation Commission that a truck driver willfully violated safety rules when he failed to chock the wheel on the employer’s truck during a stop and, hence, could not receive benefits for the injuries he sustained. The record supported that the safety rules were communicated through several methods to the driver and the physical evidence supported the finding that the wheels were not chocked.

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

The possibilities of telemedicine in workers’ comp

While more and more insurers are offering telehealth as part of their health plans, the highly regulated workers’ comp industry is just getting its feet wet. Telemedicine is the use of electronic communication technologies to provide medical services to injured workers without an in-person visit. This fast-paced, instant ability to connect with a medical professional can help a claim to start out right and stay on track. It can be utilized for a range of physician-led services, including initial injury treatment, specialty consultations and follow-up care.

There are several advantages:

  • Immediate attention to minor injuries
  • Fewer emergency room visits
  • More physician and specialist availability
  • Ideal for rural and remote areas
  • Removes transportation obstacles
  • Fewer missed appointments
  • “Stay-at-work” visits improve early return-to-work
  • Aid in management of chronic conditions
  • Initial assessment and evaluation for injuries when access to immediate medical care is limited, such as overnight shifts and remote travel
  • Lower costs

Yet, there are a number of barriers:

  • Employee uneasiness with receiving remote care from an unfamiliar provider
  • Physical examination limited
  • Jurisdictional and regulatory issues
  • Lack of physician fee schedules for telemedicine
  • Start-up technology costs
  • Cybersecurity threats
  • Lack of regulations and policies for licensing and privacy
  • Misdiagnosis

Telemedicine is designed to supplement, not replace, in-person care. For some injured workers, it may be a viable option. As this continues to take hold in workers’ comp, strategies to address the barriers are developing. The types of telemedicine services covered, provider requirements, and reimbursements vary across states and continue to evolve.

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

Important studies – Top three practices for closing a claim

While workers’ comp is a data-rich industry, it is only beginning to use the data to make better and smarter decisions. Rising Medical Solutions recently released a white paper that condenses the study’s multi-year benchmarking data into the top three practices ‘high performing’ claims organizations use to excel. Performance ratings were based on claims closure ratio, a comparison of opened claims versus closed claims. A claims ratio of 100% means the organization is closing as many claims as they are opening.

Here are the top three practices:

  • Focus on and measure medical management, disability / return-to-work (RTW) management, and compensability investigations While other competencies such as claims reserving and litigation management are important, these three are most critical to claims outcome. An employee’s return to the same or better pre-injury functional capabilities was the number one classification of a “good claims outcome.”

    However, just focusing on these factors is not enough. Higher performing claims organizations are five times more likely to measure their performance in core competencies, six times more likely to measure claim outcomes based on evidence-based treatment guidelines, and 10 times more likely to measure claim outcomes based on evidence-based disability duration guidelines.

  • Invest more in people and claims advocacyAs expected, the high performers cultivate talent by providing more training and career-long learning opportunities, raising performance expectations, fostering communication and critical thinking skills, and making available decision support tools known to improve claims outcome. “At a claim’s outset, the adjuster is uniquely appointed to visualize and predict how the claim will resolve, and then adapt her or his strategy as new information emerges.”

    Particularly important is embracing the historic shift from reactive, compliance-focused models of injured worker interaction to an employee-centric approach, known as claims advocacy. The importance of understanding and engaging the injured worker in the recovery process is a clear competitive advantage.

  • Invest more in advanced tools and technology, including predictive analytics High performers focus on outcome management, rather than process management. They measure medical provider performance and use predictive analytics eight times more than others. While sometimes this has been a much-contested topic, predictive modeling warehouses data on injured workers, uses outcome-based data to improve treatment, and measures success.

    It can reduce claims costs by identifying potential complicating factors and creating a more proactive approach to the ongoing treatment plans. It identifies “routine” claims that have the potential to become complex. The same data and insights can be applied to a return-to-work plan to reduce the risk of re-injury.

 

On-the-job crashes up

Motor vehicle accidents are a troubling trend for the workers’ compensation sector, according to data released recently by the National Council on Compensation Insurance (NCCI). Frequency for on-the-clock car accidents increased 5 percent, in contrast to an overall decline of 17.6 percent for all claims in comp from 2011 to 2016. Alarmingly, over 40% of workers’ compensation fatalities involved a motor vehicle accident.

Other findings included:

  • Motor vehicle claims cost 80% to 100% more than the average claim because they involve severe injuries, such as head, neck and multiple body-part injuries.
  • The rapid expansion of smartphone ownership since 2011 may have been a factor in the rise in accidents.
  • Most accidents are the result of driving as opposed to being hit by a car. From 2000 to 2016, the split of “occupant vs. struck by” claims has remained “very consistent” at about 85% to 15%.
  • Of the top 30 motor-vehicle classes reviewed, including that of trucking, the largest increase in frequency occurred in the “taxicab company” class, with a dramatic rise in frequency more than doubling from 2011 to 2015.

 

Opioids deaths linked to occupations

The opioid-related death rate for those employed in construction and extraction occupations was six times the average rate for all Massachusetts workers, according to a report by the Massachusetts Department of Public Health. The report speculates that the higher rate of work injuries in these fields, as well as low job security, and a lack of paid sick leave could be contributing factors.

The study reviewed death certificates from 2011-2015. Other industries with higher than average rates of opioid-related deaths include farming, fishing, healthcare support occupations, food preparation, and the restaurant industry. The industries with the highest rates also varied by gender: for men, the highest rate was in construction. For women, serving-related jobs, food prep, and healthcare support had the highest rates.

The Department plans a larger study to see if there is a link between workers compensation and overdoses.

 

Opioids still present in polypharmacy claims

Even though efforts in the state to curb opioid prescriptions have had some success, opioids alone are the most prevalent type of drug found in polypharmacy claims that involve five or more concurrent prescriptions, according to a study by the California Workers’ Compensation Institute.

Polypharmacy is the use of multiple drugs at the same time to treat one or more medical conditions in a patient. Oftentimes, they are used to alleviate risks and side effects caused by other drugs, but they can interact poorly and increase the risk of overdosing.

While only 4% of the claims analyzed were considered polypharmacy claims, 91.5% of them involved indemnity payments, 21.5% were at least ten years old, and they more commonly involve older workers. The top diagnostic category for polypharmacy claims (21.3 percent of claims) was back conditions without spinal cord involvement, including back sprains and strains.

 

Employees believe they get fat on the job

A recent survey conducted by Harris Poll on behalf of CareerBuilder found that more than half of U.S. workers consider themselves overweight, and many believe their current job has played a role.

The survey included a representative sample of 1,117 full-time workers from multiple industries and different-sized companies. 45 percent said they gained weight while at their current job, with twenty-six percent gaining more than 10 pounds and 11 percent more than 20 pounds.

Among the reasons cited:

  • Sitting at a desk most of the day (53 percent).
  • Too tired after work to exercise (49 percent).
  • Stress eating (41 percent).
  • No time to exercise before or after work (34 percent).
  • Workplace celebrations (13 percent).
  • Skipping meals because of time constraints (12 percent)

The survey also found that 63 percent of workers eat lunch at their workstation, and 72 percent snack on the job.

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

Determining the risks of delayed recovery

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

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

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

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

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

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

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

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

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

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

Here are the results:

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

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

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

Things you should know

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

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

35% of workers’ compensation bills audited contained billing errors

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

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

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

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

NIOSH answers FAQs on respirator user seal checks

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

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

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

New tool allows employers to calculate cost of motor vehicle crashes

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

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

Watchdog group releases list of Dirty Dozen employers

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

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

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

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

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

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

IRS FAQs on tax credit for paid leave under FMLA

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

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

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

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

State News

California

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

Florida

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

Georgia

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

Illinois

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

Massachusetts

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

Michigan

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

Minnesota

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

North Carolina

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

Tennessee

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

Wisconsin

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

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Legal Corner

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

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

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

Telecommuting a reasonable accommodation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Uber limousine drivers are independent contractors – Pennsylvania

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

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

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

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

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Legal Corner

ADA
Employer takes proper steps to win approval of terminating employee taking opioids

In Sloan v. Repacorp, Inc. (S.D. Ohio February 27, 2018), an employee who worked 10% – 20% of his time on heavy machinery was taking both prescription morphine and non-prescription opioids. The company’s handbook requires all employees to notify management if they are taking nonprescription or prescription medications and testing positive for these could result in termination. However, the employee did not inform his supervisors.

After his company learned of his drug use, the employee voluntarily submitted to a drug test and tested positive for hydrocodone, the opiate found in Vicodin. When he was terminated less than two weeks later, he filed suit on charges including disability discrimination and retaliation under the ADA. He alleged he was disabled because of degenerative disc disease and arthritis in his neck and back and fired because of his disability.

The company, however, had made a good faith effort to involve him in the interactive process. It asked him to consult with his doctor to see if there were alternative medications or treatments for his pain that did not include opiates, but he refused. The court noted that he was not fired because he was a direct threat to himself or others, but because he failed to participate in the interactive process. Thus, he impeded the company’s ability to investigate the extent of his disability and determine whether a non-opiate medication could reasonably accommodate his disability.

This decision serves as a reminder that individualized assessments should always be made and an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.


Workers’ Compensation
Statute of limitations for temporary disability awards clarified – California

In County of San Diego v. Workers’ Compensation Appeals Board and Kyle Pike, a deputy sheriff suffered an injury to his right shoulder on July 31, 2010, and received benefits for five years up to July 31, 2015. He sought to reopen the petition and receive temporary disability benefits and a WCJ awarded the benefits and the Board agreed.

However, a dissenting panel member argued that the statute does not permit an award of temporary disability more than five years after the date of the injury. The Court of Appeal, 4th Appellate District, agreed, noting the language of the statute clearly indicates that temporary disability payments cannot be awarded for periods of disability occurring more than five years after the date of the underlying injury.

Interactive process and accommodation required after injury – California

In Bolanos v. Priority Business Services, an injured worker returned to work with restrictions and suffered a hernia while he was working in the office. He settled a workers’ comp claim for the hernia, but the company told him they could no longer accommodate him. He filed suit alleging disability discrimination and retaliation and a jury awarded him almost $40,000 and attorney fees of $231,470.50, plus $10,697.08 in costs.

The company argued that it could not show it engaged in the interactive process and reasonably accommodated the employee because a trial judge disallowed evidence of the workers’ compensation claim and settlement from consideration by the jury. However, the Court of Appeals found the company was not prejudiced by the trial judge’s ruling.

Implanted surgical hardware does not qualify as continued remedial care – Florida

Under Florida statutes, workers have two years from date of injury to file a worker’s compensation claim, but the time can be extended to one year after the date that the employer last paid indemnity benefits or furnished remedial care. In Ring Power Corp. v. Murphy, an employee who injured his back underwent spinal surgery and doctors used rods and screws to stabilize his spine while the bone grew back together.

A judge determined that a petition for benefits seeking additional medical treatment was not time barred because the company was continuously furnishing remedial treatment as long as the rods and screws remained within the worker’s body. The 1st District Court of Appeal disagreed noting that the pins and screws no longer served a purpose.

Worker’s suspected intoxication not factor when insurer fails to meet 120-day deadline to deny compensability – Florida

In Edward Paradise v. Neptune Fish Market/RetailFirst Insurance Co., an employee fell and fractured his hip while emptying the garbage. The employer was informed of the injury but did not report it to the insurer. The injury was complicated by infections and, ultimately, five surgeries were required. Ten months after the accident, the worker filed the first notice of the injury and the insurer elected to pay and investigate under Florida’s 120-day rule. The insurer did not file a notice denying compensability of the workplace injuries because of intoxication until almost 16 months after the injury. The court noted the failure to meet the 120-day deadline to deny the compensability of an injury claim waived the insurer’s intoxicated-worker rights.

Appellate court misconstrued “arising out of employment” requirement – Georgia

In Cartersville City Schools v. Johnson, a school teacher was denied benefits by the State Board of Workers’ Compensation’s Appellate Division for a fall incurred while she was teaching a fifth-grade class because the act of turning and walking was not a risk unique to her work. Upon appeal, the Court of Appeals noted, “For an accidental injury to arise out of the employment there must be some causal connection between the conditions under which the employee worked and the injury which (s)he received.”

It said the Appellate Division overlooked the proximate cause requirement and focused on the concept of equal exposure – that the teacher could have fallen outside of work while walking and turning, as she did while she was at work. Therefore, it erroneously concluded her injury resulted from an idiopathic fall and was not compensable. Although an employee could theoretically be exposed to a hazard outside of work that mirrors a risk faced while at work, it does not mean an injury resulting from the workplace hazard is non-compensable.

No death benefits for family in asbestos claim – Georgia

In Davis v. Louisiana-Pacific Corp., an employee, who worked at a Louisiana-Pacific facility in Alabama, moved to Georgia after leaving his position. Several years later, he was diagnosed with mesothelioma and died. His family filed a claim for death benefits arguing that, although he was last exposed to asbestos in Alabama, his diagnosis and death occurred in Georgia.

While the court acknowledged that there was not a work-related “injury” until he was diagnosed with mesothelioma, the “accident” that resulted in his condition was his exposure to asbestos while he was employed in Alabama. Had the worker’s contract been executed in Georgia he would have been eligible for benefits, but it was made in Alabama and, therefore, the state did not have jurisdiction over the claim.

Children can sue over birth defects related to father’s on-the-job exposure – Illinois

The exclusive remedy afforded by worker’s comp does not apply to two teenagers who suffered birth defects as a result of their fathers’ workplace exposure to toxins because they were seeking damages for their own injuries, not their fathers’ noted the 1st District Court in reversing the Circuit Court of Cook County. The fathers’ employer, Motorola, had argued successfully to the Circuit Court that the birth defects were derivative of a work-related injury to their fathers’ reproductive systems. However, upon appeal, the 1st District Court noted the children weren’t employees of Motorola, and they were suing over their own injuries, not their fathers’.

Failure of company to get out-of-state coverage nixes death claim – Illinois

In Hartford Underwriters Insurance Co. v. Worldwide Transportation Shipping Co., the Iowa-based shipping company hired an Illinois truck driver who only worked in Illinois. After he died from a work-related injury, his widow filed an Application for Adjustment of Claim against Worldwide under the Illinois Workers’ Compensation Act. Since the company only had workers’ comp coverage in Iowa at the time of the fatal accident and none of the insurer’s conduct suggested that coverage extended to out-of-state drivers, the insurer was not liable for death benefits.

Dismissal of tort claims against co-workers upheld – Missouri

Four cases that occurred during the period (2005 – 2012) when the comp law did not extend an employer’s immunity to co-workers were recently considered by the Supreme Court and the dismissal of the tort claims upheld. “For purposes of determining whether a co-employee can be liable for an employee’s injury between 2005 and 2012, the co-employee’s negligence is assumed,” the court said. The focus needs to be on whether the breached duty was part of the employer’s duty to protect employees from foreseeable risks in the workplace.

In Conner vs. Ogletree and Kidwell, Conner suffered an electrical shock when he came in contact with a live power line. The Supreme Court said the failure of his co-workers to ensure that the line was de-energized was a breach of the employer’s duty to provide a safe workplace. In Evans vs. Wilson and Barrett, the court said that a worker’s negligent operation of a forklift was also a breach of his employer’s duty to provide a safe workplace.

In McComb v. Nofus, the court said the decision of two supervisory employees to send a courier out into a dangerous winter storm was not a breach of any personal duty owed to McComb. In Fogerty v. Armstrong, the court said a worker’s misuse of a front loader was a breach of the employer’s duty of care.

Average weekly wage includes compensation, value of meals and lodging for former pro athlete – Nebraska

Nebraska’s statute states that wages do not include “board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring.” In Foster-Rettig v. Indoor Football Operating, a professional indoor football player received $225 for each game he played in, plus an additional $25 per game if the team won or played well. The team also paid for him stay at a particular hotel in Omaha seven days a week during the football season and he got 21 meal vouchers for local restaurants.

His career was ended by a back injury and he filed a comp claim. At trial, he provided expert evidence about the value of the hotel room and meals. The Court of Appeals agreed with the compensation court that benefits should be based on an average weekly wage of $903.25, including an average salary of $231.25 per week from playing in games, plus an average of $350 per week for lodging and $320 per week for his meals.

Landlord liable for labor law claim even if tenant contracted for work without their knowledge – New York

In Gonzalez v. 1225 Ogden Deli Grocery Corp. a deli leased retail space, hired a painter to add a decoration to its sign, and set up the A-frame ladder. The painter fell from the ladder and filed a Labor Law action against the landlord for his injuries. Under Section 240(1), property owners have absolute liability for failure to protect workers from elevation-related risk and Section 241(6) imposes a non-delegable duty on owners to comply with the safety regulations of the code. Even if the deli contracted with the painter without the knowledge of the landlord, the landlord was liable, according to the Appellate Court. The landlord only presented unsworn statements from the deli owner and a deli worker and hearsay statements cannot defeat summary judgment if they are the only evidence.

Tort claim against co-employee can proceed – New York

In Siegel v. Garibaldi, an employee who was walking to the campus safety office to clock out was struck by a car driven by a co-worker, who was heading home. The injured worker received comp benefits and filed a tort action against his co-worker. While the appellate court noted that the law ordinarily limits a worker to a recovery of workers’ compensation benefits if he is injured by a co-worker, in this case, the driver was no longer acting within the scope of his employment. The road was open to the public and the risk of being struck in a crosswalk is a common risk shared by general members of the public.

Expert medical evidence is required to establish occupational disease claim – North Carolina

In Briggs v. Debbie’s Staffing, an employee operated a large mixing machine at a refractory manufacturer. Employees were required to wear respiratory protection masks because the process produced a lot of dust. After the employee was fired for attendance-related issues, he filed a workers’ compensation claim, asserting chronic obstructive pulmonary disease and asthma. While a physician initially opined that the asthma was likely caused by the working conditions, he did not know the worker was a smoker and had worn a respirator mask and testified this might affect his opinion on causation.

The employee argued that his own testimony about the working conditions were sufficient to establish a claim, but the appellate court noted only an expert is competent to opine as to the cause of the injury and present medical evidence that the employment conditions placed the employee at a greater risk than members of the general public.

Slip and fall on shuttle bus compensable – Pennsylvania

In US Airways Inc. v. Workers’ Compensation Appeal Board, a flight attendant was trying to place her luggage on the racks in a shuttle bus that was taking her from the airport to an employee parking lot, when she slipped on water on the floor and injured her foot. The airline argued that the incident did not take place on the airline’s property and that the shuttlebus was part of her commute to work, since it did not own the shuttlebus and did not require its employees to park in the parking lot. The Commonwealth Court ruled that her commute ended at the parking lot and work began on the shuttle, thus, her injury was compensable.

Worker was not permanently and totally disabled – Tennessee

For almost twenty years, the employee worked in a factory of General Motors. He suffered several on-the-job injuries and his last injury required surgery on his right shoulder. When he was cleared to return to work with restrictions, GM could not accommodate him and he never returned to work, nor sought other work. He filed a request for permanent total disability benefits, asserting that he had no vocational opportunities.

Two qualifying experts expressed conflicting opinions as to his vocational abilities and the employee said he did not consider himself unable to work, although not in the type of positions he had held in the past. The Supreme Court’s Special Workers’ Compensation Appeals Panel ruled against the benefits, noting it’s the trial court’s discretion to accept the testimony of one expert over another and to consider an injured employee’s testimony concerning his abilities and limitations.

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Legal Corner

FMLA
Adverse actions shortly after medical leave spell trouble for employer

In Schram v. Dow Corning Corp., E.D. Mich., while traveling for business a long-term employee was accidentally struck on the head by another passenger’s luggage, causing a detached retina that required immediate surgery. She had recently changed positions within the company and her new manager asked her to postpone surgery, but she refused and was off work for approximately three weeks. Although no paperwork was filed for FMLA leave, Dow allowed the time off.

When she returned to work, she alleged the manager excluded her for meetings and began questioning her work, moved her office, refused accommodations for ongoing retina issues, and ridiculed her for vision problems in a meeting. Shortly thereafter, she was told her position was eliminated and she found another temporary position in the company for one year and then was terminated. Meanwhile, her former position was filled by a younger male employee with less marketing experience at a salary $40,000 higher than her old salary.

After leaving Dow, she sued alleging retaliation under the FMLA and Michigan workers’ compensation law, as well as disability and gender discrimination under Michigan law. The district court found in her favor, noting the timing of her injury, leave of absence, and her “position elimination” was sufficient to place her retaliation claims before a jury. The judge also found that the assignment of her identical role and job duties to a younger male with significantly less marketing experience could provide sufficient basis for a jury to find in favor on her discrimination claims.
Leave not available for insomnia following death of pet

In Buck v. Mercury Marine Corp., E.D. Wis., a machinist asked for, and was granted, a day off because he was upset that he had had to put his dog of 13 years to sleep. The next day, he called his supervisor and explained he had not been able to sleep since putting his dog to sleep and asked for the day off and was documented for an unexcused absence. The same day, he sought treatment and was diagnosed with “situational insomnia” and the doctor wrote him a note that he was in the clinic for evaluation of situational insomnia. Despite the note, the absence remained unexcused. Over the next three months, the employee accumulated several other unexcused absences that resulted in his termination and he filed suit under the FMLA.

While the court held that inability to sleep caused by the passing of a pet could arguably constitute a “serious health condition,” it noted the employee failed to show that his condition qualified under the act. Other than the one visit to the clinic, there was no treatment, no prescriptions, and the doctor’s note did not say he was unable to perform the functions of his job. Although the company did not provide the employee directly with information about his FMLA rights or provide him a copy of its FMLA policy, it did not mean the company had violated the act, since the act requires employers to provide an employee with notice only “when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.”
Other
Supreme Court ruling may mean employees have more time to file state-law claims

While employees can file a single lawsuit in federal court for both federal and state-law claims against an employer, when judges dismiss the federal claims, they can also decline to hear the state claims. The employee can refile the claims in state court, but lower courts have disagreed about how much time employees have to do so.

Federal law provides that state-law claims will be “tolled” or paused while the claims are pending in federal court and for a period of 30 days after they are dismissed-unless state law provides for a longer tolling period. In Artis v. District of Columbia, the relevant state law limitations period had already passed when the employee’s claims were dismissed by the federal judge. The employer, therefore, argued that the worker only had a 30-day grace period to file her claims in state court.

However, the employee argued the tolling period began when the claim was first filed in federal court. In a 5-4 ruling, the U.S. Supreme Court agreed and held that the employee had 30 days plus whatever time had remained under the state statute of limitations when the federal lawsuit was initially filed.
Workers’ Compensation
Landmark decision means employers can face civil penalties for safety violations – California

In Solus Industrial Innovations, LLC v. Superior Court of Orange County, the Supreme Court has upheld the right of prosecutors to seek civil penalties under unfair competition statutes against employers violating work-safety statutes. While the company argued that the state plan for occupational safety and health should govern how employers with work-safety violations are treated, the court sided with prosecutors who argued they were targeting unfair business practices that arose from work-safety violations, not for the work-safety violations themselves. Although the decision is considered a landmark, it essentially validated an avenue that prosecutors have been using to go after unsafe corporate employers for decades.

Grubhub driver ruled independent contractor; judge urges change in gig economy laws – California

When a delivery driver was fired by Grubhub for failure to make deliveries while on the app, he sued for back wages, overtime and expense reimbursement. While he received a fee for each delivery, the company also paid him a minimum hourly rate and, therefore, he argued he was an employee. Grubhub claimed that they are primarily a software development company, not a food delivery service, so delivery drivers are not key to their business and they did not have enough control over their drivers to classify them as employees. Noting the need to update the laws relating to the gig economy, the judge said overall Grubhub did not have control over his work and under current laws he is an independent contractor.

Treatment must be by authorized doctor – Florida

In Hernandez v. Hialeah Solid Waste Department, the treating physician prescribed facet joint injections and the claims adjuster approved, but with a different physician. The 1st District Court of Appeal said the statutes allow an employer to transfer the care of a worker from an attending provider only if the worker is not making appropriate progress in recuperation and the refusal to allow the treating physician to do the injections was “a de facto deauthorization of the doctor” and improper.

Court explains interest rate on benefits when employers unsuccessfully challenge awards – Illinois

In Dobbs Tire & Auto v. IWCC, two employers unsuccessfully contested the award of benefits to two injured workers. The employers paid the awards plus interest, one at 0.11% and the other at 0.13%. The employees contested the rates in different county courts, and one court dismissed the complaint, while the other found the interest rate should be 9%. The cases were consolidated upon appeal.

While the Appellate Court explained that the Code of Civil Procedure Section 2-1303 provides that judgments recovered in any court will draw interest at a rate of 9% per year until satisfied, it only applies “if and when the arbitrator’s award or commission’s decision becomes an enforceable judgment,” because the employer has failed to pay. An employer that makes payment of an award, accrued installments, and Section 19(n) interest before the injured worker files a motion to enforce is not subject to the 9% interest. Section 19(n) provides for interest at a rate equal to the yield on indebtedness issued by the United States government with a 26-week maturity next previously auctioned on the day on which the decision is filed.

After firing an adjuster following a comp claim, insurance company faces ADA and retaliatory termination case – Illinois

In Buhe v. Amica Mutual Insurance Co., a federal judge ruled against an insurance company’s summary judgment in a suit filed by a former adjuster fired after an 11-month, unresolved workers’ comp claim. The adjuster fell off a roof while investigating a homeowner’s claim and suffered injuries to his lower limbs and shoulder, requiring several surgeries and rehabilitation.

The insurance company knew that the adjuster ran a mortgage company on the side.

While he said someone else oversaw the office activities of his mortgage firm when he was injured, an adjuster said surveillance revealed he was working for his own company while collecting workers’ compensation. He filed for bankruptcy but did not include his comp payments, claiming ignorance. He then filed the suit against Amica, asserting claims of discrimination under the ADA when the company allegedly failed to accommodate him, and retaliatory discharge and promissory estoppel, related to his bankruptcy filing. Amica followed with a summary judgment against his claims.

A judge ruled in part against the summary judgment, finding merit in both claims related to the ADA and retaliatory termination: “…A disability leave of absence that an employee seeks as a reasonable accommodation ‘is a factual issue well suited to a jury determination,'” his ruling stated. He also found that “a reasonable jury could conclude that the real reason for the termination was not the violation of company policy but the workers’ compensation claim.”

“Unusual strain” from daily work routine is compensable – Missouri

In Clark v. Dairy Farmers of America, a woman worker who was the shortest worker in the plant broke her rib and doctors discovered she had a lesion near the fracture. Further tests revealed that the lesion was Langerhans cell histiocytosis, a rare malignancy which can weaken a bone to the point where it can fail under a force that is less than normal. While an administrative law judge denied the claim for comp, the Labor and Industrial Relations Commission reversed and the Court of Appeals agreed.

A worker is entitled to benefits if there is “personal injury” that was caused by an “accident.” Although the worker was injured performing her normal job duties, this time was unusual because she felt and heard a pop in her chest and she could not raise her right arm.

Treating physician’s opinion does not have to be given greater weight than others – Missouri

In Blackwell v. Howard Industries, the Court of Appeals ruled that a worker who suffered an elbow injury and who refused to participate in physical therapy (PT) sessions was not entitled to permanent total disability benefits. The Court of Appeals noted the worker received varying levels of treatment, evaluation and medical records reviews from at least 15 different physicians.

All of the doctors, except for the treating doctor, concluded that the best form of treatment was PT. While a treating physician’s opinion is “of great import,” the court said, “the commission is not required to abide by it or required to give it any greater weight than other physicians’ opinions.”

Employer does not have to pay for “unfamiliar and undocumented” treatments – Nebraska

In Escobar v. JBS USA, the Court of Appeals ruled that a worker was entitled to temporary total disability benefits for a back injury but said the compensation court had erred in determining which medical bills the employer had to pay. A tenderloin puller, the worker allegedly injured his back and received treatment from an onsite nurse but continued to complain of pain and saw several doctors, with one stating that the subjective back pain was out of proportion to the physical examination.

The compensation court determined that he suffered a compensable back injury and that he was entitled to temporary total disability benefits. However, the Court found that the compensation court ordered payment for “unfamiliar and undocumented” treatments that were not clearly related to the work injury.

State has jurisdiction for resident injured while working for out of state employer – New York

In Galster v. Keen Transport, an appellate court ruled that the state workers’ compensation system had jurisdiction over a resident’s claim for an out-of-state accident while working for an out-of-state employer. A trucker who resided in New York worked for a Pennsylvania company, making deliveries of highway construction equipment all over the U.S. He injured his shoulder while shifting equipment in his trailer in Illinois.

After his injury, the company secured medical care for him in New York, as well as a light-duty job. The trucker filed a comp claim in New York, while the company filed one in Pennsylvania and contested the New York claim. The Appellate Division’s 3rd Department affirmed lower court decisions, noting New York has jurisdiction over a claim for an injury occurring outside the state where there are “sufficient significant contacts” between the employment and New York.

Compensation for exacerbation of pre-existing fibromyalgia denied – New York

In Park v. Corizon Health Inc., a worker was exposed to pepper spray while working in a prison when a guard discharged a canister to subdue an inmate. She sought medical care for her symptoms, returned briefly to work, and then took off almost one year. She filed a claim, asserting that her exposure to pepper spray had exacerbated her pre-existing fibromyalgia.

The Workers’ Compensation Board overturned the award by a workers’ compensation law judge, finding there was no causal connection. The Appellate Division’s 3rd Department said the board determines the factual issue of whether a causal relationship exists, and its determination will not change when supported by substantial evidence. The court noted there was conflicting medical testimony, there is no known medical cause of fibromyalgia, and that its symptoms are fleeting and vary considerably among individuals. Therefore, the Board’s decision to credit the opinion of the IME rheumatologist over that of the other physicians was entirely reasonable.

Construction worker receives comp for repetitive lifting injury – New York

In Garcia v. MCI Interiors, an employee worked as a plasterer in the construction industry for over 30 years. He filed a comp claim asserting he had suffered injuries to his neck and back from his repetitive heavy lifting. A neurosurgeon and the treating physician found that his chronic back pain was caused by “repetitive use at work.”

The Appellate Division’s 3rd Department said that a worker can establish an occupational disease by demonstrating a recognizable link between the medical condition and a distinctive feature of employment and with no contradictory medical evidence, the worker had succeeded in doing so.

Commission must review its denial of benefits to worker in light of recent Supreme Court ruling – North Carolina

In Neckles v. Harris Teeter, a meat cutter injured his hip, back, and arm at work and a functional capacity evaluation revealed that he would not be able to return to his job. A vocational rehabilitation specialist reported it would be “difficult” for him to secure a job in an open job market because of his limited work history, transferrable skills and age.

A few years later the company filed a motion asserting that the worker was no longer disabled. The Court of Appeals reversed the ruling of the Industrial Commission, which said the worker had not met his burden of proving that it would be futile for him to look for work. When appealed to the Supreme Court, it ordered the matter remanded to the Court of Appeals for reconsideration in light of the 2017 decision in Wilkes v. City of Greenville. In Wilkes, the Supreme Court ruled that a worker who can demonstrate a total incapacity for employment because of physical and vocational limitations does not also need to show that a job search would be futile. The Court of Appeals noted the case has to go back to the commission to make specific findings addressing the worker’s wage-earning capacity in light of his pre-existing and coexisting conditions.

Commonwealth Court ruling denying benefits for mental injury is published – Pennsylvania

The ruling in Frankiewicz v. WCAB (Kinder Morgan) denied benefits to a chemical operator for a psychiatric injury from exposure to a diesel fuel leak. Under state law, a claim must involve a combination of physical and mental injuries in order for mental injuries to be compensable, unless the mental injury was the result of exposure to “abnormal working conditions.” In this case, it was found that the worker only experienced transient symptoms that did not constitute a physical injury. These included headache, nausea, violent vomiting, choking, a runny nose and watery eyes after he was exposed to a discharge of diesel fuel from a plant a mile away. Following the incident, he began to suffer from panic attacks, anxiety and depression and doctors agreed the exposure had caused a mental injury.

The courts determined that he did not prove that he had been exposed to an abnormal working condition and the “transient” physical symptoms were insufficient to support an application of the physical-mental standard.

Failure to undergo surgery does not warrant shift in liability from employer to the Second Injury Fund – Tennessee

In Tankersley v. Batesville Casket Co., a long-term employee injured his arm and shoulder and surgery was recommended. However, the worker had congestive heart failure and decided not to undergo surgery. He returned to work with restrictions but eventually was laid off because the company had no work within his restrictions. A vocational counselor determined he had no transferrable skills and was 100% vocationally disabled because of the restrictions.

When a judge apportioned 90% of the liability for the award to the company and 10% to the state’s Second Injury Fund, the company appealed arguing the disability was caused in large part by pre-existing medical conditions. The court found that the ruling was based solely on the arm and shoulder injuries and the vocational counselor’s findings were based on the restrictions, thus the evidence did not preponderate against the trial judge’s apportionment decision.

Temp workers can choose to sue or apply for workers’ comp – Wisconsin

In Ehr v. West Bend Mut. Ins. Co. (In re Estate of Rivera), the Court of Appeals issued a decision that temporary workers have the right to file a suit against their temporary employer if they do not make a workers’ compensation claim. The case involved Carlos Rivera, a temporary employee of Alex Drywell, who was killed on the job in a one-car accident. Assigned to work for Alpine Insulation, Rivera was in an Alpine-owned vehicle, driven by an Alpine employee when the car crashed. The Alpine employee was later found to be at fault in the accident.

His estate filed a wrongful death suit against Alpine and the insurance company rather than claim death benefits under workers’ comp. The appeals court overturned a lower court and said that the exclusive remedy portion of the Workers’ Compensation Act doesn’t bar a temporary employee from bringing a claim against their temporary employer, if they had not made a claim for compensation, even if they were a “loaned employee.” The court determined that his estate could not bring a suit against Alex Drywall but was free to bring a suit against Alpine since Alpine was not technically his employer.

It’s expected that the case will be appealed to the Supreme Court.

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

Things you should know

Cell phone users twice as likely to be involved in a crash – study

The AAA Foundation for Traffic Safety compared drivers’ odds of crash involvement when using a cell phone relative to driving without performing any observable secondary tasks. The study found that “visual-manual interaction with cell phones while driving, particularly but not exclusively relative to text messaging, was associated with approximately double the incidence of crash involvement relative to driving without performing any observable secondary tasks.”
Health care environment named top concern in comp – survey

The National Council on Compensation Insurance (NCCI) surveys senior carrier executives in its annual Carrier Executive Pulse. The top challenges that executives identified for 2018 are:

  1. Rising costs, advances, and uncertainty in healthcare
  2. Political, regulatory, legislative, and legal environment
  3. Maintaining profitability both today and tomorrow
  4. The changing workplace and workforce
  5. The future of the workers’ compensation industry
  6. Opioid abuse and medical marijuana

Impact of worker obesity can be managed with prevention, treatment programs: ACOEM

Wellness programs and insurance coverage that includes bariatric surgery can help manage worker obesity and alleviate its economic costs to employers, according to a released guidance statement from the American College of Occupational and Environmental Medicine (ACOEM).
First Edition of NCCI’s court case update

The first edition of NCCI’s Court Case Update provides a look at some of the cases and decisions being monitored by NCCI’s Legal Division, that may impact and shape the future of workers’ compensation.
New guidelines intended to reduce fatigue among EMS workers

The University of Pittsburgh Medical Center and the National Association of State EMS Officials have partnered on a set of guidelines aimed at reducing work-related fatigue among emergency medical services workers.
State News

California

  • Cal/OSHA adopted a new rule to help reduce injuries for hotel housekeepers. The rule will require employers to establish, implement, and maintain an effective written musculoskeletal injury prevention program that addresses hazards specific to housekeeping.
  • The Division of Occupational Safety and Health is moving to create a new safety standard to prevent and handle workplace violence for general industries.
  • The state is drafting workplace safety rules for the burgeoning marijuana industry.

New York

  • State Workers’ Compensation Board is inviting public comment on a proposed Pharmacy Formulary. The comment period expires on February 26, 2018.

North Carolina

  • Industrial Commission recently announced an update in the rules for the workers’ compensation system addressing the opioid crisis. Published January 16, 2018, in Volume 32 Issue 14 of the North Carolina Register, the rules are for the utilization of opioids, related prescriptions, and pain management treatment. A public hearing is scheduled for March 2, 2018 at 2:30 p.m., and the Commission will accept written comments until March 19, 2018.

Pennsylvania

  • The Governor signed a statewide disaster declaration related to the opioid crisis to enhance state response, increase access to treatment, and save lives. It will utilize a command center at the Pennsylvania Emergency Management Agency to track progress and enhance coordination of health and public safety agencies.

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