What employers should expect from an insurance agent

My fellow Institute of WorkComp Professionals educator wrote this article to summarize items that an employer should expect from their insurance agent when it comes to helping the employer to manage their workers compensation insurance program.

By Kevin Ring
Institute of Work Comp Professionals
Editor’s note: Kevin Ring, CWCA, CWCA, MWCA, is Lead Analyst at Institute of WorkComp Professionals, Asheville, NC of which we are a member. It trains and certifies independent insurance agents and their support staff to navigate the complicated workers’ compensation system and act as advocates operating between employers and their insurance companies.
Most workers’ compensation discussions focus on the roles of four active players: injured worker, physician, employer, and insurance company. But what about the insurance agent? Far too often, agents step into the background. There is something wrong with this picture. Workers’ compensation is one coverage area in which insurance agents can effectively demonstrate their value.

Here’s how we work to make a difference for the employers we serve:

Ensure the employee classifications are correct
With an average of 500 to 600 available job classifications, it’s easy for mistakes to occur. For example, a clerical employee (low workers’ comp rate) can be misclassified into one with a higher rate, which increases the cost. This is just one; many others can occur.

In fact, it’s even easier for mistakes to perpetuate themselves. An insurance agent calls on a prospect and asks to submit a quote and the owner agrees, thinking it’s a good idea to shop around. To get the necessary information, the agent asks to see the existing policy, copies the information, and goes back to the office to prepare the quote. If there are mistakes, they keep showing up.

Who is responsible for finding mistakes and correcting them so the employer only pays what is owed? Frankly, it’s the insurance agent who has the account. We’re trained how to find and correct mistakes so employers are not exposed and pay more than necessary.
Help employers develop a physician relationship
When it comes to reducing workers’ comp costs, particularly medical expenses, the importance of employers having a relationship with physicians with work-related injury and illnesses expertise cannot be overstated.

Too often, when an injury occurs, injured employees are sent to their personal doctor, an emergency room, or a nearby walk-in clinic. This can lead to higher costs, delayed return to work, and an increase in the experience mod, which lasts for three years.

If this is to change, it starts with having the right physician relationship. We can help an employer identify physicians with expertise in occupational medicine, go with the employer to interview doctors, develop options for alternate duty, help make sure the selected physician understands the business, the types of work performed, and any other employer expectations so that the physician is prepared when injuries occur.

 

Help an employer develop a process of what to do when employees are injured
What happens when an employee suffers an injury? Depending on the extent of the injury, in many cases employees are sent home and told to take it easy for the day, go to their own doctor, to the emergency room, or walk-in clinic. When you think about it, this is the only time employers give workers a blank check and tell them to go where they please without vetting the vendor.

It’s not good business because the employer has no control over the quality, cost, or outcome of the service. To change this, our task is to help the employer create a process that assures injured employees will receive proper care so they can return to the job as soon as appropriate.

Such a process may come as a surprise to employers who assume the insurance company is in charge. Actually, it’s more like opening the door and letting the fox in the hen house. Since employers are writing the check for their workers’ comp, they need to take charge of the process.
Analyze data to understand and foresee injuries
There’s a wealth of information in workers’ comp loss run reports, as well as OSHA reporting forms. Proactive agents work with employers to identify problem areas, which are often indicators that a larger, costly injury will occur, if changes are not made.
Serve as an effective conduit between the employer and the insurance company
When it comes to insurance, most employers are ill-equipped to have informed conversations with insurance companies. So, they reach out to their insurance agent when there’s a problem.

Today, insurance companies are all about reducing risks. It’s the agent’s role to position the employer in the best possible light with the insurance company to ensure competitive pricing and policy offerings.

Since the insurance agent knows both the employer and the carrier, it’s the agent who is best able to serve as the intermediary between the employer and the insurance company.
Help employers understand the technical nature of insurance language
Like the law, words have meaning in insurance. No one can feel comfortable with insurance unless they learn its language. Therefore, employers immediately file away insurance policies without even looking at them. They drag them out only when there’s a loss.

It doesn’t take a cynic to suggest that some insurance agents may like it this way. It gives them more control. But we recognize that a “secret language” is a barrier in the client relationship. It’s also an opportunity to help employers understand insurance by communicating its complexities simply and clearly. And, it’s worthwhile. No employer wants to be blindsided because they didn’t understand something, particularly when high costs are involved.
Help employers prepare for the workers’ comp premium audit so they pay only what they owe
Employers tend to view a workers’ comp audit as a minor inconvenience. The big question can be where to put the auditor. All of which suggests the annual audit is a low involvement event.

Now, compare this with an IRS audit, when all the stops are pulled out weeks in advance, and carefully choreographed by the accounting firm. No responsible business owner would go into an IRS audit the way most approach a workers’ comp audit that involves substantial sums of money.

It’s in an employer’s best interest to expect the insurance agent to help them prepare for a workers’ comp audit, particularly since auditors work for the insurance company. The agent understands the insurance language and knows the rules. During the weeks leading up to an audit, the agent can review the payroll records, check for incorrect job classifications, determine whether severance pay is excluded from comp, among others. If they find mistakes, they can correct them before the audit takes place.
Review information on employee injuries prior to the “magic moment”
This is the date the insurance company reports the employer’s information to the rating bureau for inclusion on the experience mod. It occurs 18 months from the inception of the account and every 12 months thereafter. Here’s what the report includes:

  • What has been paid thus far on employee injuries
  • What the insurance company has “reserved” (the estimated funds needed to ultimately resolve an employee injury.)

It’s important to review this data carefully. For example, if the reserves are higher than they should be, the employer’s experience mod will go up, which increases the company’s workers’ comp expense. Higher mods can render a business less competitive or, in the case of construction firms, ineligible to bid on certain jobs. The goal is also to make sure cases are not opened that should be closed, and that the reserves are relatively accurate.
Help the employer build a “recovery-at-work” program, so injured employees can be at work, rather than sitting at home
This is also known as “light duty,” “transitional duty,” or “return-to-work.” However, the term recovery-at-work more accurately describes what should happen and lets the injured worker know what to expect.

The recovery-at-work model sends injured employees the message that they are both valued and they can still be productive. Aided by transitional duty job descriptions, the physician can determine if the employee can return to work, along with job restrictions.

If the injured worker is back to work before lost time wage benefits begin, there is less negative impact on the experience mod. This can be a significant cost savings since the average lost time claim in 2016 was $53,000. But it’s also true that injured employees recover faster if they are at work.

Some managers still say, “Give me a whole man or no man.” But, happily more recognize the value of recovery-at-work. The insurance agent can help employers make it work best by identifying appropriate work activities based on physician restrictions, if any.

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

EEOC ordered to reconsider wellness rules

The Equal Employment Opportunity Commission’s (EEOC’s) rules about the fees employers can assess workers who do not participate in wellness programs were ruled arbitrary by the U.S. District Court for the District of Columbia on Aug. 22. Rather than vacate the rules, the court sent them back to the agency for redrafting. The court’s decision does not vacate the EEOC rules and employers are obligated to comply with existing rules, but should be alert to future changes.


Work conditions ‘unpleasant, potentially hazardous’ for more than half of Americans: study

Nearly 55 percent of American workers claim they encounter “unpleasant and potentially hazardous” conditions on the job, according to a study from nonprofit research institute RAND Corp., Harvard Medical School, and the University of California, Los Angeles. Nearly 1 in 5 workers reported exposure to a “hostile or threatening social environment at work” and 1 in 4 said they do not have enough time to complete job tasks.


National survey on fatigue indicates it is a hidden, but potentially deadly workplace epidemic

Some 43 percent of Americans say they do not get enough sleep to mitigate critical risks that can jeopardize safety at work and on the roads, including the ability to think clearly, make informed decisions, and be productive, according to a new National Safety Council survey-based report, Fatigue in the Workplace: Causes & Consequences of Employee Fatigue. An estimated 13 percent of workplace injuries could be attributed to fatigue.


CDC launches website on worker wellness programs

To help employers start or expand employee health promotion programs, the Centers for Disease Control and Prevention has created the Workplace Health Resource Center website.


New app from NIOSH: Lifting Equation Calculator

In an effort to prevent work-related musculoskeletal disorders, NIOSH has released a mobile app based on the Revised NIOSH Lifting Equation, an internationally recognized standard for safe manual lifting.


Updated ergo guide from NIOSH offers strategies for preventing MSDs

The NIOSH Musculoskeletal Disorders Research Program has updated its guidance document on the formation and function of ergonomics programs. Intended for both workers and employers, it provides strategies for identifying and correcting ergonomic hazards, as well as references, forms and questionnaires.


Guide offers best practices for safely using bleach to clean and sanitize

A new safety guide published by the Michigan State University College of Human Medicine, Occupational and Environmental Medicine Division offers best practices for workers exposed to bleach, including janitors, housekeepers, environmental engineers, and hospital, restaurant, maintenance and agricultural workers.


FMCSA, FRA withdraw rulemaking on sleep apnea

The Federal Motor Carrier Safety Administration and the Federal Railroad Administration have withdrawn an advance notice of proposed rulemaking on obstructive sleep apnea. “The agencies … believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” FMCSA and FRA stated in a notice published in the Aug. 4 Federal Register.


Operation Safe Driver Week set for mid-October

Law enforcement officers are expected to keep a particularly sharp eye on the roads Oct. 15-21 during the Commercial Vehicle Safety Alliance’s Operation Safe Driver Week. Officers will be looking for commercial motor vehicle and passenger vehicle drivers engaging in dangerous behaviors such as speeding, texting, following too closely and not wearing seat belts.


Opioids updates

  • One in 12 US physicians received a payment involving an opioid during a 29-month study of pharmaceutical industry influences on opioid prescribing, according to researchers who will publish their findings in September’s American Journal of Public Health. During the study, 375,266 non-research opioid-related payments were made to 68,177 physicians, totaling $46,158,388.
  • A study from the Worker’s Compensation Research Institute examines the prevalence and trends of longer-term dispensing of opioids in 26 state workers’ compensation systems. It also documents how often the services (i.e., drug testing, psychological evaluation, and treatment, etc.) recommended by treatment guidelines were used for managing chronic opioid therapy.

Study casts doubts on effectiveness of marijuana in combatting chronic pain

Research funded by the U.S. Department of Veterans Affairs was published on the Annals of Internal Medicine website. Limited evidence suggests that cannabis may alleviate neuropathic pain in some patients, but insufficient evidence exists for other types of chronic pain. There was also sufficient evidence to conclude that cannabis use among the general population probably increased the risk of car accidents, psychotic symptoms, and short-term cognitive impairment. It was noted more research is needed.

CSB releases animated video on Louisiana refinery fire

The Chemical Safety Board has released an animated video that examines the cause of last year’s ExxonMobil refinery fire, which severely burned four workers in Baton Rouge, LA.

State News

California

  • New regulations aimed at preventing incidents such as the 2012 Chevron Corp. fire at oil refineries will take effect Oct. 1.
  • Ratings bureau proposes small workers’ comp premium increase for 2018.
  • Workers’ comp bill safeguarding pregnant women put on hold.

Florida

  • NCCI recommends comp premium decrease of 9.6% effective Jan. 1, 2018.

Illinois

  • The National Council on Compensation Insurance (NCCI) recommends a 10.9% workers’ compensation premium rate decrease for Illinois.
  • Governor vetoes state-funded comp insurance plan.

Minnesota

  • Effective August 1, patients with post-traumatic stress disorder can purchase medical marijuana.
  • Department of Labor and Industry adopted the final rule from the federal Occupational Safety and Health Administration about walking-working surfaces and personal fall-protection systems.

New York

  • Employers should prepare to comply with the Paid Family Leave that goes into effect Jan. 1, 2018.

Pennsylvania

  • The Compensation Rating Bureau filed an emergency 6.06% loss cost increase in the wake of a state Supreme Court decision that blocks impairment rating evaluations.

 

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

PPE: Eleven common mistakes made by employers

One of the top safety issues for most employers is the purchase of personal protection equipment (PPE). The market for PPE has grown significantly and the options can be daunting. While a common goal is to keep workers safe by finding the most appropriate PPE for the demands of the tasks and the hazards faced, costs, sustainability, comfort, and employee acceptance also influence the decision.

Here are eleven common mistakes made by employers:

  1. Relying on what’s worked well in the pastWork processes change, the compliance environment is more demanding, and PPE improves. While employers generally rely on their PPE suppliers to stay ahead of the curve, it’s not enough for suppliers to offer a full range of effective, cost effective equipment and innovative technologies. Suppliers should be strategic partners – understanding your unique processes and hazards and how your employees work in your facility. They should also be helpful resources in navigating new standards and regulations such as the fall protection standards from OSHA and new equipment guidelines from ANSI.In addition to working with you to identify the most appropriate PPE, their services should include testing the equipment in your workplace, training for managers and employees, and evaluating the effectiveness of the choices. PPE should perform well over time, be used properly by employees, and improve business performance and safety.
  2. Seeking the “one product” solutionWhether it’s trying to simplify the purchasing process or provide the highest level of protection, well-intended PPE choices can produce unintended results. Cut-resistance gloves are a good example. When there is an increase in cuts and lacerations on the job, the tendency is to go to a glove that addresses the greatest cut hazard in your operation, with the thought that a higher cut rated glove will also protect less significant hazards. However, the PPE must match the task and risk and a higher ANSI cut level may not provide the necessary dexterity and create too much hand fatigue to do the task at hand. Rather than focusing on the glove, the entire process for hand safety needs to be examined.
  3. Failing to consider PPE part of an overall strategyA processing plant was experiencing a high number of slip and fall injuries. The company took an exhaustive look at flooring conditions, floor mats, and housekeeping behaviors as well as testing various footwear types. Protective footwear is designed to reduce hazards and improve safety, but it can’t provide total worker protection. PPE should be viewed as a supplement to engineering or job controls that can eliminate or minimize hazards and to workplace practices and procedures aimed at enhancing safety.
  4. Lacking a plan for everyoneWhile most employers have moved beyond the “one size fits all” approach to PPE, there are still areas that warrant improvement. Most PPE has been designed based on average male body measurements and offer limited options for women. But the workforce has changed and savvy suppliers are addressing the issue. This was recognized in the new ANSI standard 107-2015 that addresses some of the long overlooked issues with Hi-Vis apparel and accessories, including size and fit. The updated standard became less design-restrictive allowing for smaller sizes to accommodate smaller body frames without compromising protection, a welcome change for women.
  5. Failing to consider comorbidities, including obesityThe obesity epidemic has affected most industries, yet many are still using PPE and ergonomic tools that were designed for workplace populations that were more fit. Falls from height are common in construction. Much of the fall equipment is typically rated to only 310 pound, although there is equipment available that exceed this limit. The sobering fact is the percentage of workers on the job whose total weight (body weight, tools, and PPE) exceeds the design specifications of some fall protection equipment.
  6. Not involving employees in the selection processWhen selecting PPE, there are many factors to consider – regulatory compliance, contractual agreements, type of exposure, cost, durability, and appropriateness. But if your employees won’t wear it when it is needed, day in and day out, all your effort is for naught. Top reasons employees do not wear PPE are discomfort, poor fit, unattractive, feel it is unnecessary for the task, or don’t have time. This is why it’s important to involve employees in the testing and selection of equipment.
  7. Getting caught off guard by fashion trends or cultural eventsFrom full-on beards to trimmed moustaches, facial fringe continues to be a top trend in 2017. This trend plus popular cultural events such as “Movember” or “No-Shave November” – the male health counterpart to the popular Susan G. Komen pink ribbon campaign – pose safety concerns for employees who use respiratory protection. Even if an employee can pass a quantitative fit test using a PortaCount, the NIOSH requirement states that you may not have facial hair that interfers with the seal of a facepiece. Employers need to be aware of trends and make sure their written program includes relevant policies and that employees are trained, monitored, and understand the requirements for worker safety.
  8. Failing to maintain and replace PPEA supervisor may try to look good and save money by telling workers to use chemical protective gloves for a week, rather than the specified one day limit, a worker is protected from falling debris by his hard hat and deems it his “lucky” hat and wears it every day, workers keep reusing earplugs inside their hard hats, harnesses are not cleaned nor stored properly, and so on. These workers have failed to maintain and replace PPE as needed and have put themselves at risk. Employers need to know when to replace PPE and when to purchase PPE versus having it tested for repeated use. And test tools need to be up to date. Establishing a regular schedule of testing and replacement helps ensure PPE is not used past its prime.
  9. Don’t enforce useLack of enforcement is one of the main reasons why employees don’t use PPE. PPE compliance does not happen in a vacuum; it’s dependent on work practice control and manager buy-in. When a hazard cannot be engineered out, companies rely on safe working practices and PPE. Failure to enforce use is widespread across many industries. One example is healthcare. Despite an increase in sharps injuries and exposure to blood and bodily fluids, many health care workers are not wearing appropriate personal protective equipment, according to the International Safety Center. It found that fewer than seven percent of workers exposed to blood and bodily fluid splashes reported using eye protection, although about two-thirds of the workers’ eyes were splashed. Collecting data on use can be a wake up call for many companies.
  10. Using technologies for surveillance under the veil of enhancing safetyWearable technology, which involves gathering data via smart sensors, is growing in prevalence in PPE and can help managers understand where workers are and when they are in an unsafe condition or place. The possibilities seem endless – from helping ergonomists to engineer risk out of tasks to a smart construction helmet that increases user efficiency through connectivity with the control room. But, it can raise privacy challenges, particularly when used for surveillance or other sensitive issues. Employers need to be upfront about what data is being collected and how it will be used, and have a written policy.
  11. Inadequate trainingTraining is not one and done and, in some cases, there seems to be the expectation that employees already know PPE protocols, afterall much of it is common sense. There are many points that need to be covered in training and reinforced in implementation from donning to doffing PPE:
    • When employees have to use
    • Limitations of protection
    • How to inspect
    • How to put on and adjust
    • How and when to remove safely
    • How to care for and store
    • Useful life
    • How to replace worn or damaged PPE
    • Where to dispose of PPE that might be contaminated by hazardous substances

    A trained supervisor or manager should verify that PPE is being utilized according to protocol.

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

Things you should know

Return to work more likely with less-invasive back surgery

A recent study of 364 Ohio workers diagnosed with degenerative spinal stenosis who underwent back surgery found that those who underwent primary decompression, a surgical procedure to alleviate pain caused by pinched nerves, had higher return to work rates than those who had the more-invasive, more-expensive fusion surgery. The study was published in July’s Spine medical journal.


Ohio adopts rule requiring initial conservative back treatment

The Ohio Bureau of Workers Compensation’s new spinal fusion rule requires workers to first undergo at least 60 days of comprehensive conservative care, such as physical therapy, chiropractic care and rest, anti-inflammatories, ice and other non-surgical treatments before lumbar surgery. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule.

DOL will again issue opinion letters on FMLA, FLSA and other laws

The U.S. Department of Labor will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. The DOL has established a new webpage to submit requests for opinion letters and to review old opinion letters.

New I-9s must be used beginning Sept. 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. Changes to the form are considered minor.

Free safe driving kit from National Safety Council

The Safe Driving Kit, sponsored by Wheels, Inc., aims to create safer roads and protect employees through multi-media resources and engaging materials. The kit addresses the key contributors to car crashes, including distraction, alcohol, other drugs, fatigue and seatbelt use. It also brings attention to lifesaving technology that helps prevent crashes.

Workers’ comp making more progress in reducing opioid prescriptions

According to research released by the Centers for Disease Control and Prevention (CDC), the average days’ supply per opioid prescription increased from 13 days in 2006 to almost 18 days in 2015. Meanwhile, nearly half of the states included in a study of opioid prescribing in workers’ compensation cases have seen reductions in the frequency and strength of opioids given to injured workers, according to a study released in June by the Cambridge, Massachusetts-based Workers Compensation Research Institute.

More than 1,000 unsafe CMVs pulled from service during ‘Operation Airbrake’

Brake violations prompted the removal of 1,146 commercial motor vehicles from service as part of a recent unannounced, single-day inspection blitz across the United States and Canada on May 3. According to the Commercial Vehicle Safety Alliance (CVSA), 12 percent of CMVs inspected were taken out of service for brake violations, and 21 percent were removed for other violations.

More than half of workers aren’t trained on first aid, CPR: survey

About 10,000 cardiac arrest situations occur in the workplace each year, yet only 45 percent of U.S. employees have been trained in first aid – and only 50 percent of workers know where to find an automated external defibrillator – according to the results of a survey recently conducted by the American Heart Association.

‘Sleeping in’ on weekends may be bad for your health: study

Going to bed later and waking up later on weekends than during the week – also known as social jet lag – may be linked to poor health and higher levels of sleepiness and fatigue, according to the preliminary results of a study conducted by researchers at the University of Arizona. Results showed each hour of social jet lag was linked to an 11.1 percent increase in the chances of developing heart disease. In addition, participants who experienced social jet lag were 28.3 percent more likely to report their health as “fair/poor.” The study abstract was published in an online supplement to the journal Sleep.

Safety measures lacking on plastic injection molding machines, peripheral equipment: study

Factories with plastic injection molding machines that interact with peripheral equipment – such as robots or conveyors – could do more to improve safety, Canadian scientific research organization IRSST concluded in a recent study. The study was published in May along with a technical guide.

State news

New rule requires preauthorization of all compounds, regardless of price – Florida

  • To clear up a “misunderstanding” among stakeholders, the Florida Division of Workers’ Compensation has clarified that all compounded drugs, regardless of cost, are now subject to preauthorization.

Legislators pass budget without workers’ comp reform – Illinois

  • While the state faces one of the highest workers’ compensation insurance rates in the country, legislators were unable to reach a consensus on reforms.

Prescription drug monitoring program implemented – Missouri

  • Missouri was the only state that lacked a prescription drug-monitoring program prior to last month when the governor signed an executive order directing the Department of Health and Senior Services to create a prescription drug-monitoring program.

Workers’ comp rules tightened – Missouri

  • The new legislation redefines “maximum medical improvement (MMI)” as the point when the condition of an injured employee can no longer improve, and bans any claims for benefits beyond that time period. It also puts more emphasis on the employee proving an employer discriminated against them after they filed a workers’ compensation case.

4.5% decrease in workers’ comp for businesses – New York

  • The New York Department of Financial Services has approved the 4.5% workers compensation premium rate decrease recommended by the New York Compensation Insurance Rating Board effective Oct. 1.

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

Legal Corner

FMLA
Appeals court overturns jury verdict in favor of employer

In Cassandra Woods, Tina Hinton v. START Treatment & Recovery Centers Inc., Addiction Research and Treatment Corp, the 2nd U.S. Circuit Court of Appeals in New York reversed a jury verdict in favor of the employer in a Family Medical Leave Act (FMLA) case. According to the court the judge had wrongfully instructed the jury to apply the “but for” cause of her termination, that she would not have been terminated if she had not taken FMLA leave.

On appeal, Ms. Woods argued that she only had to establish the FMLA leave was a motivating factor in her termination, which is a lower standard. The court agreed, citing a U.S. Department of Labor rule that interpreted the statute in this way. The case was remanded for further proceedings.

Workers’ Compensation
Employer must pay $3.64 million in additional premiums based on audit classifications – federal

Aviation ground services company Servisair L.L.C., which is now a subsidiary of Cheshire, England-based Swissport S.A. L.L.C., contracted with Liberty Mutual Insurance Co. for a guaranteed cost insurance policy in which the final premium would be determined based on an audit of Servisair’s payroll classifications at the end of the policy period. The estimated premium was based on payroll information submitted by the company, which, according to Liberty Mutual, was knowingly over allocated to the inexpensive clerical classification.

The company refused to pay and argued that the policy was a product of a mutual mistake about the premium calculations and that the policy’s premium calculation provisions were ambiguous. The US District Court in Houston and the 5th U.S. Circuit Court of Appeals in New Orleans disagreed.

Exclusive remedy nixes remaining claims in NFL painkiller lawsuit – federal

A federal judge in California dismissed three remaining claims from a wide-reaching lawsuit filed by players alleging mistreatment with medications because the players had previously sought relief through workers’ compensation. The lawsuit argued that the underlying claims should be exceptions to workers’ compensation exclusivity because they were triggered by intentional acts by the teams, team doctors and trainers.

Second appellate court rules that untimely IMRs are valid – California

Recently, the 3rd District Court of Appeal (DCA) issued an unpublished decision in Baker v. WCAB (Sierra Pacific Fleet Services), agreeing with the decision of the 2nd DCA in California Highway Patrol v. WCAB (Margaris). “The interpretation of Section 4610.6, subdivision (d), as directory rather than mandatory is consistent with case law and implements the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges,” the 3rd DCA said.

Decision overturning total disability benefits limits to 104 weeks applies to case pending at the time – Florida

In June 2016, the Supreme Court (Westphal decision) ruled that terminating disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement is unconstitutional. In Ft. Walton Beach Medical Center/Broadspire v. Young, the question is raised whether the ruling applies to a case that was appealed the month before the ruling was issued. The 1st DCA noted the claims were filed in 2014 and 2015 while the Westphal decision was pending in the appellate court. The Supreme Court accepted jurisdiction of Westphal in December 2013, so its ruling applies to this case.

Ex-farm employee’s agricultural work precludes workers’ comp benefits – Indiana

In Charles O’Keefe v. Top Notch Farms, an employee drove a semi-truck and tanker and did a variety of other jobs on a farm. He was injured when he was picking up liquid fertilizer and the tanker overflowed. The injured worker argued that he should be considered a truck driver, not an agricultural employee exempt from the Workers’ Compensation Act. However, the Workers’ Compensation Board and the Court of Appeals disagreed, noting it must exam the “whole character” of the work to determine if it is agricultural in nature, so maintenance work is not categorically non-agricultural. His work as truck driver, granary sweeper, painter and truck washer, collectively, was agricultural in nature.

Undocumented worker placed on unpaid leave after filing workers’ comp claim may have a retaliatory case – Minnesota

In Sanchez v. Dahlke Trailer Sales, a divided Supreme Court held that an injured undocumented worker had raised a genuine issue of material fact as to whether an employer had discharged him because he sought workers’ compensation benefits. The employer argued it was not a discharge – the worker was placed on unpaid leave until the worker could show that his return to employment would not violate federal immigration law. However, the worker argued the company had long known and accepted his undocumented status. The Court also found that federal immigration law does not preempt an undocumented worker’s claim for retaliatory discharge under Minn. Stat. § 176.82, subd. 1 (2016).

General contractors must provide workers’ comp for all subcontractors – Mississippi

In Builders and Contractors Association v. Laser Line Construction Co., the Supreme Court ruled that Mississippi Section 71-3-7 requires general contractors to purchase workers’ compensation coverage for the employees of subcontractors, even if the subcontractors are exempt from a requirement to hold workers’ compensation coverage themselves.

Appeals court narrows compensability of horseplay – Missouri

In Hedrick v. Big O Tires, the Court of Appeals upheld the denial of benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday. It noted that the worker’s ignition of the glue was not an accident and that it is the accident, and not the injury, that must be the prevailing factor in causing both the resulting medical condition and disability. Even if the extent of the injuries from the “non-accident” is more serious than expected, it does not warrant coverage.

Pre-existing asthma condition insufficient for relief from Special Disability Fund – New York

In Matter of Murphy v. Newburgh Enlarged City Sch. Dist., the court found that the employer had failed to demonstrate that a preexisting asthma condition hindered, or was likely to hinder, an injured worker’s employability. The court ruling was consistent with earlier decisions, which had held that preexisting conditions that are controlled by medication generally do not constitute a hindrance to employability.

Home health care services must be paid to injured worker, not spouse – New York

In Matter of Buckner v. Buckner & Kourofsky, LLP, the court found it was an error for the Workers’ Compensation Board to directly pay the wife, who was authorized to provide some home health services to her hemiplegic and wheelchair bound husband. Citing multiple earlier decisions, the appellate court held the award must be paid to the worker.

Construction worker independent contractor, not employee – North Carolina

In Bentley v. Jonathan Piner Construction, a construction worker printed business cards in the name of Bentley Construction and Maintenance, placed a decal on his truck with the company name, started a website to advertise the business, hired his own crew, set their hours, and used many of his own tools when working on various jobs. He and some of his crew were hired by a subcontractor to do framing work. The subcontractor offered to pay the business for the work, but was asked to issue a separate check for each man on the crew.

The owner of Bentley Construction and Maintenance sustained an eye injury and filed for workers’ comp, which was denied by the carrier. Applying the eight-factor test set forth in the North Carolina Supreme Court’s 1944 ruling in Hayes v. Elon College, an appellate court determined he was an independent contractor and not entitled to benefits.

Worker who jumped off roof entitled to benefits – Pennsylvania

In Wilgro Services, Inc. v. Workers’ Compensation Appeal Board (Mentusky), a HVAC mechanic, working on the roof of a building, had used a ladder roofers had been using to get up and down from the roof. One day he was the last one on the job, and there was no ladder available. He chose to jump from the lowest part of the roof, perhaps 16 to 20 feet from the ground and ended up with multiple fractures. The carrier denied the claim but the Workers’ Compensation Judge (WCJ) granted benefits, noting although the jump was ill advised, the worker did not intentionally injure himself.

On appeal, the case made its way to the Commonwealth Court, which agreed that the worker was in the scope and course of his employment and entitled to benefits.


Employer’s denial of benefits does not preclude right to subrogation – Pennsylvania

In Kalmanowicz v. WCAB, a divided Commonwealth Court ruled that an employer’s denial of a workers’ compensation claim does not forfeit its ability to partake in any recovery from a subrogated claim. In Pennsylvania, an employer’s subrogation right is often described in terms of being “absolute” and there are only “very narrow circumstances” in which that right can be waived.

In this case, the employer was contesting a claim for PTSD that arose from a fatal automobile accident where an oncoming vehicle swerved into the employee’s lane with the driver pressing his head against the windshield and staring at the employee. The employee argued that employer could not recover a subrogation lien because it had not accepted liability for the PTSD. Since the employer had not acted in bad faith nor failed to exercise due diligence in enforcing its subrogation rights, the court said the employer had not waived its right to subrogation.

Pension offset for workers’ comp based on maximum amount, not what was actually received – Pennsylvania

In Harrison v. WCAB, a divided Commonwealth Court ruled that an employer was entitled to an offset against an injured worker’s pension benefits based on the maximum monthly amount of pension benefits he could receive, even though he was receiving a lower monthly rate that provides a survivor benefit for his spouse. The court argued even though he received a reduced payment, his employer needed to provide funding to the pension plan to pay the survivor benefits to his wife and, therefore, both pensions would be “actuarially equivalent.”

Worker cannot sue co-worker for injuries in auto accident – Tennessee

In Williams v. Buraczynski, the Court of Appeals of Tennessee at Knoxville found that an injured worker could not sue his co-worker who was driving at the time of the accident for negligence. It noted the exclusive remedy was workers’ compensation and that case law provided the rights under the system. One of those rights is to “not be subject to a tort suit by another employee for actions taken in furtherance of the employer’s business.”

Claim for surgery treating pre-existing condition, not injury, disallowed – Wisconsin

In Flug v. Labor and Industry Review Commission, a divided Supreme Court ruled that a worker was not entitled to benefits for her surgery to treat her degenerative disc disease, even though she had a good-faith belief that the surgery was reasonable and necessary treatment for her work-related back and shoulder injuries.

A Wal-Mart supervisor suffered an injury to her shoulder and received conflicting opinions from three physicians regarding treatment. Following the recommendations of a neurosurgeon, she underwent surgery for an anterior cervical discectomy. However, the carrier only provided coverage for a muscle sprain based on the opinion of the doctor hired by Wal-Mart to perform an independent medical evaluation who concluded she suffered a cervical and shoulder strain that was resolved long before the surgery and that she had pre-existing degenerative disc disease.

While the Court of Appeals found that she was entitled to disability benefits for her surgery as long as she had a good-faith belief that it was necessary treatment for her industrial injury, the majority of the Supreme Court held “if the disability-causing treatment was directed at treating something other than the employee’s compensable injury” it is not compensable.

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

OSHA watch

Temporary enforcement policy on monorail hoists in construction

Employers whose monorail hoists fail to comply with requirements in the Crane and Derricks in Construction Standard will not be issued citations as long as they adhere to other regulations, according to a recent memorandum.

The temporary enforcement policy notes stakeholders identified gaps in the standard regarding monorail hoists, which typically are mounted on scaffolding systems, trucks or trailers. They are used to lift items such as mechanical equipment, precast concrete components and oil/propane storage tanks. Employers still need to comply with the overhead hoist and general training standards. General industry requirements for monorail hoists remain in effect.

New guide will help small businesses comply with silica rule for general industry and maritime

A Small Entity Compliance Guide for General Industry and Maritime to help small business employers comply with the Final Rule to Protect Workers from Exposure to Respirable Crystalline Silica describes the steps that employers are required to take to protect employees in general industry and maritime from the hazards associated with silica exposure.

Window cleaning association creates safety guide for workers

Through its alliance with OSHA, the International Window Cleaning Association has developed a guide for protecting the safety and health of window cleaners. The mobile-friendly guide offers best practices on identifying and avoiding fall, chemical, electrical and other hazards workers face on the job.

Fact sheet explains requirements to protect residential construction workers from confined space hazards

A new fact sheet explains how the Confined Spaces in Construction standard affects common spaces in residential construction, such as attics, basements, and crawl spaces. The fact sheet, developed after consultation with the National Association of Home Builders, and a detailed Frequently Asked Questions document, clarify some of the standard’s provisions and their application to residential construction work.

Construction organization publishes new heat hazard alert

A new heat hazard alert published by CPWR-The Center for Construction Research and Training, reviews heat hazards and the steps to prevent heat illness while working in hot weather. Extreme heat causes more deaths than any other weather-related hazard.

Publication on preventing injuries in the electric power industry now available

The electric power industry has released a case study to show the integral part safety and health programs play in keeping electrical workers safe on the job.

New webpage for HAZWOPER

Intended to help workers and employers involved with the Hazardous Waste Operations and Emergency Response Standard (1910.120) for construction and general industry, the webpage includes links to background information on HAZWOPER and corresponding standards, as well as resources for general businesses, worker preparedness, and training.

Enforcement notes

California

Chevron Corp. has settled workplace safety and health citations issued in relation to a 2012 refinery fire for more than $1 million. The negotiated settlement requires Chevron to institute measures, estimated over $20 million, to ensure process safety at the Richmond refinery, to develop and implement criteria and procedures to monitor equipment to alert operators when equipment should be replaced, and to provide specialized hands-on training on incident command situational awareness and hazard recognition for all Chevron Fire Department personnel.

Oakland-based Attic Pros Inc. was ordered to pay $2,109,480 in wages, liquidated damages and waiting time penalties for 119 workers who were misclassified as independent contractors, and $1,481,600 for civil penalties according to the state Labor Commissioner’s Office.

Florida

Ann Arbor-based Douglas N. Higgins Inc. and its related contracting company, Florida-based McKenna Contracting L.L.C. were issued 10 serious violations with total proposed penalties of $119,507 after three employees died from exposure to toxic gases in a manhole at a Florida worksite. Among others, the citations included failing to purge or ventilate a confined space before entry, exposing workers to an asphyxiation hazard and not providing necessary rescue and emergency equipment for employees overcome inside a permit-required confined space.

Georgia

An administrative law judge of the U.S. Occupational Safety and Health Review Commission upheld citations and a total of $6,013 in penalties assessed against Atlanta-based Empire Roofing Company of Georgia Inc. whose employees were not wearing fall protection. The company had appealed the citations and proposed fines, contending that the employees’ failure to tie off was the result of unpreventable employee misconduct and that all employees were appropriately trained. But the judge ruled that the employer did not meet the burden to use the defense, which requires “more rigorous” proof of employee misconduct since supervisors have a duty to protect their employees.

After several appeals, a safety citation against Smyrna-based Action Electric Co., for failure to affix a personal lockout or tagout device while servicing a client’s equipment that resulted in a fatality was upheld by a federal appeals court. The company contested the citation arguing that the lockout/tagout standard did not apply because the equipment that caused the fatality was not the equipment that its employees were servicing, and that its employees were only looking at the fans, not working on them, at the time of the incident. The Department of Labor responded that the cooling bed constituted one discrete mechanical system for the purposes of lockout/tagout rules, which would require employees to control the energy of the entire cooling bed before conducting work on it that could expose them to danger. The federal 11th Court of Appeals reinstated the citation noting employers are capable of determining the appropriate scope of their LOTO protocols and that it did not matter whether the employees were working on equipment or merely observing it.

Michigan

Following two reports of finger amputations on machines and an employee complaint alleging numerous safety hazards, the MIOSHA issued citations with penalties totaling $263,000 to AJM Packaging in Taylor.

Minnesota

Rahr Malting Co. in Shakopee faces $52,800 in penalties for safety violations identified after a worker was fatally injured in January. Inspectors issued four serious citations after determining that it failed to control potentially hazardous energy and provide point-of-operation machine guarding.

New Jersey

Delair-based Aluminum Shapes LLC, an aluminum manufacturing company with a long history of noncompliance has been cited for 51 safety and health violations and proposed penalties of $1,922,895. Willful violations included: provide appropriate personal protective equipment, conduct air monitoring prior to permit-required confined space entry, have an attendant during permit-required confined space entry, complete a required confined space entry permit to identify, evaluate and control hazards in the space, provide confined space training, utilize proper Lockout/Tagout (Control of Hazardous Energy) Procedures and training.

Ohio

Amsted Rail Company Inc., a manufacturer of cast steel freight components, faces $610,034 in proposed penalties for six repeat, 19 serious and five other-than-serious safety and health violations after investigators found workers at its Groveport plant exposed to machine hazards and silica. The company has been placed in the Severe Violator Enforcement Program.

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

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.

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

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

Two costly medical actions to avoid: physician dispensing and emergency rooms

Physician dispensing

While many states have enacted laws governing physician dispensing, it is still common in post-reform states, with California, Florida, Illinois, Maryland, and Pennsylvania still seeing a large portion – 54% to 64% – of pharmaceutical costs coming from doctors who dispense drugs. According to a study by the Workers’ Compensation Research Institute (WCRI) drug companies have introduced newer versions outside of those addressed in the reforms to circumvent the laws. The WCRI study found that “when dispensing these new drug products, some physician-dispensers were paid much higher prices than they were paid when dispensing existing-strength drug products.”

 

Emergency room treatment

Treatment at an emergency room is not only one of the most expensive places to get medical care, but also likely to derail a rapid return to work. While often used for convenience, it should be a last resort and used for critical, emergency situations only.

According to a recent study published in JAMA Internal Medicine, there are exorbitant markups in emergency medical care and emergency departments charged an average markup of 340 percent on Medicare allowable amounts. Further, facing physician shortages, some hospitals have been outsourcing the staffing and operation of emergency rooms. According to a recent article in the New York Times, this has led to higher charges for more costly procedures, out-or-network rates, and surprise bills.

If the costs alone are not a sufficient deterrent, understanding the process should be convincing. An emergency physician is trained to triage and stabilize an injury. There isn’t time or expertise to focus on short-term work restrictions or long-term recovery. In most cases, the injured worker will be told to rest and take days or even weeks off from work. It’s also usual to refer the injured worker to a specialist, which could mean further delays in treatment. And a disability mindset begins to build in the worker.

On the other hand, if treatment begins with an occupational medicine provider or clinic, they will prescribe treatment plans that are going to return your employee to work as soon as possible. They can also help manage the workers’ compensation process so that employees understand the value of recovery at work.

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

OSHA update: Electronic record keeping, regulatory agenda, combustible dust, noise in construction

OSHA’s Injury Tracking Application is now available allowing employers to electronically enter their required 2016 injury and illness data from Form 300A. The Improve Track of Workplace Injuries and Illnesses final rule went into effect Jan. 1 with an initial compliance deadline of July 1. But OSHA has proposed delaying that deadline until Dec. 1, in an effort to allow employers to become familiar with the new web-based reporting platform, as well as provide time for the Trump administration to review the requirements before enacting them.

The requirements are to be phased in over two years. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by December 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by December 1, 2017, and their 2017 Form 300A by July 1, 2018.

The agency’s data submission process has four steps including:

  • creating an establishment
  • adding 300A summary data
  • submitting data to OSHA and
  • reviewing the confirmation email

There are three options for data submission. The first enables users to manually enter data. The second allows employers to upload a CSV file to process single or multiple establishments at the same time. Lastly, an application programming interface will allow users to sync automated recordkeeping systems directly to the platform.

In addition, OSHA says it plans to issue a separate proposed rule to reconsider, revise, or remove other provisions of the Improve Tracking of Workplace Injuries and Illnesses final rule. The Agency will seek comment on those provisions in the separate proposal.

What should employers do now?

The future of the rule is uncertain and OSHA has proposed delaying the deadline for compliance until Dec. 1. Presently, the decision-making positions within the agency are thinly staffed. The assistant secretary (the head honcho) position is vacant. The chief of staff and senior advisor positions are vacant. One of two deputy assistant secretaries is vacant. While most pundits think the Trump administration will remove or significantly revise the provisions to publish the data online, it’s unknown what will be done with these historically private records once they are submitted electronically. For that reason a wait and see approach might be best, particularly for those with questionable performance.

 

Notable drops on regulatory agenda: combustible dust and noise in construction

The administration recently published its Unified Agenda, which reports on regulatory and deregulatory activities under development for the coming year. As expected the potential regulatory actions have been cut more than in half. The agenda lists 14 standards in either the pre-rule, proposed rule or final rule stages compared to the 30 listed on the Fall 2016 agenda by the Obama administration.

The combustible dust standard intended to prevent combustible dust explosions is the most notable drop as it was added to the agenda following a catastrophic sugar dust explosion in Georgia in 2008. Also, the noise in construction initiative has been dropped. OSHA has a hearing conservation standard for general industry workers, but nothing equivalent for construction workers. These initiatives have been classified as “completed actions” and for each initiative OSHA states, “OSHA is withdrawing this entry from the agenda at this time due to resource constraints and other priorities.”

Other pre-rule and proposed rule items moved off the main regulatory agenda and placed on a long-term actions list include prevention of workplace violence in health care and social assistance, emergency response and preparedness, infectious disease rule, and tree care standards.

Long-term actions are items under development, but for which the agency does not expect to have a regulatory action within the 12 months after publication of the current edition of the Unified Agenda.

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