Important takeaways from recent studies and reports

Strategies to reduce costs and risks of musculoskeletal disorders

A report by the Northeast Business Group on Health (NEBGH) urges employers to look at their own experiences with claims, disability, workers’ compensation and health risk assessment data to best prioritize program selection and implementation to better manage MSDs. It addresses several strategies to mitigate cost and health issues and suggests using onsite ergonomics training, online courses on the subject and workplace redesigns. It also suggests new approaches to treatment, such as online pain education, direct access to physical therapy by bypassing physician referrals, and directing employees away from “unnecessary diagnostic imaging and expensive visits to specialists.” Finally, the report examined ways to ensure that if surgery is needed, that the care is performed in an efficient and cost-effective way.

Obesity and worker productivity by occupational class

The Journal of Occupational and Environmental Medicine has published a new study, “Impact of Obesity on Work Productivity in Different US Occupations: Analysis of the National Health and Wellness Survey 2014-2015”, which examines the impacts of obesity by different occupational classes on work productivity and indirect costs of missed work time.

BMI results were as follows:

  • Protective Services: 38% overweight, 39% obese
  • Transportation: 38% overweight, 36% obese
  • Manufacturing: 35% overweight, 30% obese
  • Education: 31% overweight, 30% obese
  • Healthcare: 31% overweight, 30% obese
  • Construction: 38% overweight, 29% obese
  • Hospitality: 32% overweight, 27% obese
  • Arts: 34% overweight, 26% obese
  • Finance: 36% overweight, 25% obese
  • Computer: 36% overweight, 25% obese
  • Legal: 38% overweight, 24% obese
  • Science: 37% overweight, 21% obese

The researchers concluded that there was a positive association between work productivity impairment and increases in BMI class that varied across occupations. Obesity had the greatest impact on work productivity in construction, followed by arts and hospitality, and health care occupations. Work impairment was least impacted by increases in BMI in Finance, Protective Services, Computers, Science, and Legal. It was estimated that the indirect costs associated with the highest BMI group in construction was $12,000 compared to $7,000 for those with normal BMI.

Would your floors pass the slip and fall test? 50% fail

Half of the floors tested for a slip-and-fall study failed to meet safety criteria, suggesting that many fall-prevention programs may overlook the effects of flooring selection and ongoing maintenance on slip resistance, according to a study by CNA Financial Corp.

Given the high frequency of slips and falls, these findings underscore the need for attention to floor safety and regular surface resistance testing to avoid fall accidents and related injuries.

Fatigue costs employers big bucks

Key findings from a recent study on fatigue by the National Safety Council (NSC) include:

  • More than 43 percent of all workers are sleep-deprived, and those most at risk work the night shift, long shifts or irregular shifts. As employees become tired, their safety performance decreases and their risk of accidental injury increases.
  • Missing out on sleep makes it three times as likely to be involved in an accident while driving. Also, missing as little as two hours of sleep is the equivalent of having three beers.
  • Employers can see lost productivity costs of between $1,200 to $3,100 per employee per year.
  • The construction industry has the highest number of on-the-job deaths annually. In a 1,000-employee national construction company, more than 250 are likely to have a sleep disorder, which increases the risk of being killed or hurt on the job.
  • A single employee with obstructive sleep apnea can cost an employer more than $3,000 in excess healthcare costs each year.
  • An employee with untreated insomnia is present but not productive for more than 10 full days of work annually, and accounts for at least $2,000 in excess healthcare costs each year.

Experts say employers can help combat fatigue by offering breaks, scheduling work when employees are most alert, and promoting the importance of sleep.

Workers welcome employers’ help in dealing with stress

Workers want their employers to offer assistance in coping with work-related stress, according to a new report from the American Heart Association’s CEO Roundtable.

The report also concludes that employees think more highly of employers offering resiliency programs. Valued programs include methods for dealing with difficult people, improving physical health, remaining calm under pressure, coping with work-related stress and accurately identifying the causes of work-related problems. It also includes actionable strategies for effective workplace resilience programs.

Supportive communication and work accommodation help older workers return to work

While early supportive contact with injured workers and offers of work accommodation are important to all injured workers, a recent webinar hosted by the Disability Management Employer Coalition (DMEC) and presented by Dr. Glenn Pransky, founder of the highly acclaimed, but now-defunct Center for Disability Research within the Liberty Mutual Research Institute for Safety, noted that these two strategies are particularly effective with older workers.

His research involved workers’ comp cases in New Hampshire related to low back and upper extremity problems. Negative responses, including lack of support, anger, disbelief, blaming the worker, or discouraging the worker from filing a claim resulted in significantly longer disability, and the effect was especially strong among older workers.

Click to hear the DMEC webinar

Loss control rep visits cut lost-time injuries in construction

Visits by insurance loss prevention representatives to construction job sites can lead to fewer workplace injuries, according to a study by a Center for Construction Research and Training supported research team at the University of Minnesota. One contact was associated with a 27% reduction of risk of lost-time injury, two contacts with a 41% reduction of risk, and three or more contacts with a 28% reduction of risk, according to the study. The study also found that these visits are often low cost and that the reduction in lost-time injuries reduced workers’ comp costs.

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

Things you should know

Opioid abuse rises with length of prescription

According to a study by the U.S. Centers for Disease Control and Prevention, the risk of opioid abuse rises with lengthy prescriptions. If received a one-day prescription, 6% were still on opioids a year later; when prescribed for 8 days or more, this rises to 13.5%; when prescribed for 31 days or more, it increases to 29.9%.

Blacklisting rule repealed

President Trump repealed the so-called “blacklisting rule” that required federal contractors to disclose labor violations. The executive order had required employers bidding for federal contracts worth at least $500,000 to disclose any of 14 violations of workplace protections during the previous three years.

FMCSA will not reinstate overnight rest regulations for commercial drivers

The Federal Motor Carrier Safety Administration’s (FMCSA) regulation that required CMV (Commercial Motor Vehicle) drivers to take breaks in the hopes of preventing driver fatigue has been suspended since 2014 so that further research could be done to understand the efficacy of the program. A study from the Department of Transportation found that stricter mandated breaks did not do much to reduce driver fatigue or improve safety. Thus, the rule will not come out of suspension.

Study reveals occupations with sleep deprived workers

If your industry is health care, food service, or transportation, your workers are probably not getting adequate sleep, according to a study published March 3 in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report. Workers who averaged fewer than seven hours of sleep per night were classified as having short sleep durations. Occupation groups that failed to average seven hours of sleep included:

  • Communications equipment operators: 58 percent
  • Rail transportation workers: 53 percent
  • Printing workers: 51 percent
  • Plant and system operators: 50 percent
  • Supervisors, food preparation and serving workers: 49 percent
  • Extraction workers: 45 percent
  • Nursing, psychiatric and home health aides: 43 %

The American Academy of Sleep Medicine and the Sleep Research Society recommend that adults 18 to 60 years old get at least seven hours of sleep every day. A lack of sleep can contribute to cardiovascular disease, obesity, diabetes, depression, and other health issues, as well as contribute to more injuries on the job.

NIOSH announces free health screenings for coal miners

A series of free, confidential health screenings will be available for coal miners as part of the NIOSH Coal Workers’ Health Surveillance Program. The first set of screenings will take place from March 26 to April 15 in coal mining regions throughout Alabama. The second set will occur from May 10 to May 31 throughout Indiana and Illinois. Finally, testing will take place from July 30 to Aug. 26 throughout Eastern Kentucky.

NIOSH updates mine hazard assessment software

Mine operators and workers now have access to updated hazard assessment software from NIOSH. According to the agency, EVADE 2.0 – short for Enhanced Video Analysis of Dust Exposures – offers a more comprehensive assessment of the hazards miners face by pulling together video footage and exposure data on dust, diesel and other gases, as well as sound levels.

Study: PT as effective as surgery for carpal tunnel

Physical therapy is as effective as surgery in treating carpal tunnel syndrome, according to a new study published in the Journal of Orthopaedic & Sports Physical Therapy. Researchers in Spain and the United States report that one year following treatment, patients with carpal tunnel syndrome who received physical therapy achieved results comparable to outcomes for patients who had surgery. Further, physical therapy patients saw faster improvements at the one-month mark than did patients treated surgically.

When hospital inspectors are watching, fewer patients die

A recent report in the New York Times cited a study in JAMA Internal Medicine which found death rates dropped when inspectors were onsite. In the non-inspection weeks, the average 30-day death rate was 7.21 percent. But during inspections, the rate fell to 7.03 percent. The difference was greater in teaching hospitals – 6.41 percent when the inspectors were absent, and 5.93 percent during survey weeks. While the difference may seem low, an absolute reduction of only 0.39 percent in the death rate would mean more than 3,500 fewer deaths per year.

Although the reasons for the effect are unclear, it was suggested when docs are being monitored, diligence ramps up.

Wearing eye protection can prevent 90 percent of work-related eye injuries, experts suggest

Ninety percent of on-the-job eye injuries could be avoided if workers wore eye protection, according to the American Academy of Ophthalmology (AAO). AAO offers the following tips for avoiding workplace eyestrain or injury:

  • Wear protective eyewear appropriate for the type of hazard you may encounter
  • Position your computer monitor 25 inches away
  • Follow the 20-20-20 rule: Every 20 minutes, take a break by looking at an object 20 feet away for 20 seconds
  • Reduce glare on your cell phone or digital device
  • Adjust environmental lighting near your workstation

 

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

Legal Corner

Workers’ Compensation
Worker has right to obtain medical report from doctor of his choice – California

In Davis v. WCAB (City of Modesto), Davis filed two workers’ compensation claims stating his prostate cancer developed because of his exposure to carcinogens while working as a firefighter. A qualified medical examiner (QME) issued opinions that the cancer was not work-related and Davis then hired a doctor to review the reports, which were sent to the QME for review. The city protested that this violated the discovery process and the Workers’ Compensation Appeal Board (WCAB) rescinded a judge’s order that had allowed the review.

Upon appeal, however, the WCAB filed a letter brief to the Court of Appeals, asking for review to be granted and for its decision to be vacated, since the decision had not addressed Labor Code Section 4605. Section 4605 says there is no limitation on the right of a worker to obtain a medical report, at his own expense, from the doctor of his choice. While the report cannot be “the sole basis of an award of compensation,” Section 4605 specifically allows a QME to address the report and respond to its contents.

Traveling worker denied benefits for fall in motel parking lot – Georgia

In Avrett Plumbing Co. v. Castillo, an hourly employee lived in Atlanta, but his job required him to work in Augusta. The company paid a weekly rate to provide him a hotel room and allowed him to use it on weekends at no cost. On a Sunday evening when returning from grocery shopping he tripped and fell in the parking lot, breaking his ankle. When he filed for workers’ comp, the company argued that the accident had not occurred during the course of employment, since it happened outside of normal work hours and the employee was engaged in activities unrelated to his job.

An administrative law judge disagreed and found the injury compensable under the “continuous employment” doctrine, because the employee was “required by his employment to live away from home while working.” The case went through several more appeals, and benefits were ultimately denied with the court finding the employee was there “merely as a personal convenience” (lack of money and transportation prevented travel to Atlanta) and that the errand was for the sole benefit of the employee.

Willful misconduct may bar comp benefits – Georgia

An employee who disobeys an employer’s instructions and acts in a dangerous fashion may not be entitled to workers’ compensation benefits, the Supreme Court ruled. Chandler Telecom v. Burdette revolved around the question of willful misconduct. A cellphone tower employee sustained serious injuries attempting a “controlled descent” from a tower, even though a supervisor ordered him not to attempt the descent and to climb down and the crew’s lead tower repeatedly protested his actions.

The Board of Workers’ Compensation concluded the employee could not receive comp benefits because he engaged in willful misconduct by defying his supervisor’s instructions, a decision that was affirmed by a Superior Court. However, the Court of Appeals reversed, saying his actions did not constitute willful misconduct because his actions were not of a “quasi criminal nature…”

The Supreme Court found that the appellate court erred in its ruling, noting the proper interpretation of a 1993 decision defining willful misconduct is “an intentional and deliberate action done either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” The Supreme Court said it did not have enough information to make a determination about whether willful misconduct had occurred. It remanded the case to the Board of Workers’ Compensation for further fact-finding.

Worker killed by exploding shell can only claim comp – Illinois

An employee was killed by the explosion of a live mortar shell that had been transferred from the U.S. Army’s National Training Center at Fort Irwin, California to the Totall Metal Recycling’s (TMR) facility in Granite City. The lawsuit alleged the employer acted intentionally in transporting dangerous materials, but not that the company acted intentionally in injuring the employee. As such, the judge noted any allegation of TMR’s intent to injure the employee would fly in the face of the complaint, which alleges a claim of negligence. Thus, the exclusive remedy of workers’ comp barred the wrongful death claim. Muenstermann v. United States

Exclusive remedy bars negligence suit for borrowed worker – Illinois

An employee of a temporary staffing agency was assigned to work for Lindoo Installations Inc. and suffered a partial amputation of his right index finger when it was trapped between a bundle of shelving and a forklift. He filed for workers’ comp with the staffing agency and filed a negligence claim against Lindoo. While the trial court granted Lindoo’s motion for summary judgment under the exclusive remedy provision, the employee appealed arguing that the staffing agency’s branch manager periodically checked in.

The appeals court affirmed the decision, noting Lindoo met several factors that determine a borrowed employee relationship and qualified as a borrowing employer because it had the right to direct and control the employee’s work. TerranceFalge v. Lindoo Installations Inc.

Undocumented worker due benefits – Kansas

In Mera-Hernandez v. U.S.D. 233, the court found the injuries suffered by an undocumented school custodian were compensable even though she used a false name and submitted falsified documents to the school district when she was hired. The Supreme Court affirmed the Court of Appeals ruling that her immigration status does not dispute the work she performed for the school district and she fits the broad definition of employee under the law.

Clarifying Schoemehl window, court awards widow comp benefits – Missouri

For a very brief time, Missouri espoused a rule, known as the “Schoemehl doctrine,” that allowed for a permanently and totally disabled worker’s weekly benefits to be passed on to his dependents upon his death. The doctrine is limited to claims that were in existence as of January 2007, the date of the Supreme Court’s decision in Schoemehl v. Treasurer, and had not yet been fully resolved by June 2008, when the legislature then abrogated the doctrine.

In Ogden v. Conagra Foods, Ogden suffered serious injuries to his skull and spine in a 2001 motor vehicle accident and collected more than $2.4 million in benefits until his death in 2014. In 2009, the Ogden’s attorney filed a Form 21 Claim for Compensation for the employee and his wife. After Ogden died, his wife demanded payment on her claim for Schoemehl benefits.

The Industrial Commission determined she was entitled to payment, and Conagra appealed. The Court of Appeals approved benefits, explaining it didn’t matter that the wife’s claim for Schoemehl benefits wasn’t filed within the window of January 2007 to June 2008 because the claim was open and active during this time.

 

Credibility of doctors’ conflicting testimony weighed in appeal – Nebraska

In Hintz v. Farmers Cooperative Association, a worker was injured when a tire exploded, but he did not seek medical care and returned to work after a day-and-a-half absence. About three weeks after the accident, he tripped on the stairs at home and sought medical attention, which revealed a labral tear and other problems with his hip. His physician took him off work and performed surgery, and Farmers’ Cooperative terminated him after several months’ absence.

The worker filed a workers’ comp claim, and his physician testified although the worker had given inconsistent accounts about whether the hip injury was caused by the explosion at work or the trip down the stairs, when he performed surgery he observed a serious labral tear that seemed more likely to have been caused by the workplace explosion. An IME disagreed, testifying the injury was more likely caused by the fall down the stairs.

The Workers’ Compensation Court denied the claim, finding the IME’s testimony to be more reliable, but the Court of Appeals overturned, noting the treating physician had personally seen the extent of the injury during surgery.

Country club worker can proceed with lawsuit after general manager struck him in the groin with a golf club – New York

A country club employee whose left testicle was surgically removed after the club’s general manager struck him in the groin with a golf club is entitled to sue for damages beyond workers’ compensation benefits ruled an appellate court. The locker-room attendant was observing the assembly of golf clubs in the pro shop when the general manager entered and picked up a golf club shaft and struck him in the testicle, then left the room laughing.

The employee and his wife sued the general manager, who sought dismissal of the case based on workers’ comp exclusive remedy. The Court concluded that questions of fact existed as to whether the general manager acted in a ‘grossly negligent and/or reckless’ manner when he swung the golf club shaft and struck the employee and whether the country club condoned the action, thus the civil case can proceed. Montgomery v. Hackenburg.

Blackout caused by non-work conditions does not prohibit benefits – New York

In Nuclear Diagnostic Products, 116 NYWCLR 211, the New York Workers’ Compensation Board awarded benefits to a driver, who crashed his work vehicle after losing consciousness. The driver reported that he started coughing due to an asthmatic reaction to a new air freshener in his house and lost control of the car. The Board explained that since the driver’s accident occurred in the course of his employment he was entitled to a presumption that the accident arose out of his employment and that the driving of the employer’s vehicle was an added risk of employment.

Severe disability from Legionnaires’ Disease compensable – Pennsylvania

An employee of Nestle’s New Jersey office did most of his work in Pennsylvania performing maintenance on beverage machines. He fell ill, was hospitalized, lapsed into a coma, and was diagnosed with Legionnaires’ Disease. The illness left him wheelchair-bound, affected his speech, and the treatment he received may have caused brain damage. Nestle denied the allegations that he contracted the disease while working on fountain and soda drink machines that contained contaminated water, and argued the disease was not a result of work-related exposure. After testimony from a number of personal witnesses and medical experts, a workers’ comp judge determined that the employee was temporarily totally disabled and entitled to workers’ comp benefits. The Workers’ Compensation Appeal Board and the Commonwealth Court affirmed. Nestle USA Inc./Vitality vs. Workers’ Compensation Appeal Board

Seasonal worker difficult to prove – Pennsylvania

Two recent decisions of the Commonwealth Court illustrate how difficult it is for an employer to establish that a worker is a seasonal employee. While there is a specific formula for calculating the average wage when a worker is engaged in an “exclusively seasonal” occupation, the law does not provide a definition for the term. The controlling standard comes from a 1927 Supreme Court case which declared seasonal occupations are “those vocations which cannot, from their very nature, be continuous or carried on throughout the year, but only during fixed portions of it.”

In Toigo Orchards v. WCAB (Gaffney), a tractor driver who was hired for a single apple harvest doesn’t fall within the “exclusively seasonal” category. The argument was that the injured employee was “itinerant agricultural labor,” a tractor driver, and that short-term employment is not synonymous with seasonal work. Had he been treated as a seasonal employee his weekly benefits would have been only $31.99, compared to $315.90 weekly, which he was awarded.

In Lidey v. WCAB (Tropical Amusements), a carnival ride fabricator wasn’t an “exclusively seasonal” employee, even though his employer did business only during the summer months. He was awarded $917 per week, based on his weekly wage of $2,000.

Philadelphia Eagles must pay workers’ comp and a penalty for failing to report player’s injury – Pennsylvania

A defensive end for the Philadelphia Eagles ruptured his right Achilles tendon during the team’s training camp and underwent surgery and PT until he became a free agent. The team paid for his treatment and surgery and paid his regular salary until his contract expired, but failed to file workers’ comp documents. As a free agent, he rehabilitated at a private facility, which the team paid for, and ruptured his left Achilles tendon and the team paid for the surgery, but he paid for the rehabilitation. He filed for disability benefits and the team argued it should not be responsible for the second injury because it was not work related.

A workers’ compensation judge, and on appeal the Workers’ Compensation Appeals Board, ruled that the Eagles violated regulations by failing to report his first injury and awarded the claim petition as well as a 50 percent penalty to be paid by his employer on past-due compensation. The Eagles argued it was “not practically possible” to report every injury that occurs as a workers’ compensation claim as they see between 800 to 1,000 injuries during the season and practice. They file workers’ compensation claims only when players need treatment beyond what can be treated in the training facility, and they file NCPs on request.

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Legal Corner

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

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HR Tip: ABA’s summary of 2016 FMLA cases

Every February, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from 2016 in a user-friendly manner.

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

Legal Corner

ADA

Case to watch: Do employers have to offer disabled employees reassignment to another job if there are more qualified candidates?

In December, the 11th U.S. Circuit Court of Appeals (covering Florida, Georgia, and Alabama) ruled in EEOC v. St. Joseph’s Hospital Inc. that the ADA “does not automatically mandate reassignment without competition.” The ruling conflicts with other appellate court decisions, and legal experts speculate that it is an issue likely to be heard by the U.S. Supreme Court.

St. Elizabeth’s Hospital had a best-qualified applicant policy in place and the court found the ADA only requires that an employer allow the disabled employee to compete equally for a vacant position. The EEOC argued that the hospital violated the ADA by requiring the nurse to compete for a vacant position she was qualified to perform. The court stated, “[p]assing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficient or good performance.” Further “‘the ADA was never intended to turn nondiscrimination into discrimination’ against the non-disabled.”

The conflicting appellate court rulings on the issue means employers’ obligations will vary depending on the circuit in which they operate.

Broken arm can be considered disability

A U.S. District Court refused to dismiss a discrimination charge filed by a worker who was terminated after she continued to need accommodations for her broken arm, a work-related injury. She worked for Kingsport, Tennessee-based Eastman Chemical and tripped and fell and broke her arm, requiring two surgeries. The company put her on light-duty assignment but eventually terminated her arguing it could not accommodate her temporary activity restrictions on an ongoing basis because there were several essential job duties she could not perform. The worker filed suit under the ADA.

The court refused to dismiss her case noting, “pertinent inquiry is not whether plaintiff’s restrictions were labeled ‘temporary’ or ‘permanent’ or the precise length of time she was under restrictions, but whether she was essentially limited in a major life activity.”

 

FMLA

Failure to provide a fragrance-free work environment does not equate to a failure to provide a reasonable accommodation

In Alanis v. Metra, an employee began suffering from a variety of fragrance-sensitivity symptoms such as difficulty breathing and speaking after ten years on the job. She was seen by her employer’s medical provider who concluded that she could return to work but gave her 30 days to obtain a psychological clearance exam. A week later, she again experienced symptoms and claimed that she was unable to speak and could only communicate through text messages, in writing or by whispering and was determined to be “medically disqualified” from working.

She took FMLA leave and a few months later her treating physician released her to work. However, she had not had the psychological clearance exam and when she did she was diagnosed as having a fragrance sensitivity, but was allowed to return to work a few months later.

The company made every effort to accommodate her requests for accommodation, which included flexible work hours, a modified dress code, limitation on extended talking, periodic rest breaks, self-paced work-load, and efforts to create a fragrance-free workplace. But she was not satisfied and filed suit, alleging discrimination based on the fact that she was Hispanic and retaliated against because of her disability.

The District Court for the Northern District of Illinois found that there was no evidence of discrimination or retaliation because no adverse employment action was taken. Furthermore, the Court found that the company had gone above and beyond to grant her requests for accommodation, specifically noting the changes made to reduce the existence of odors in the workplace.

Workers’ Compensation

Court supports DWC action suspending providers linked to fraudulent activities from workers’ comp system – California

Chiropractor Michael Barri, his company, Tri-Star Medical Group, and a newly formed nonprofit called the Coalition for Sensible Workers’ Compensation Reforms, filed a constitutional challenge seeking a peremptory or alternative writ of mandate blocking the state from suspending providers from the workers’ comp system and staying their medical liens when the providers are linked to fraudulent activities. Barri pled guilty to receiving illegal kickbacks to refer patients to Pacific Hospital during the spinal surgery kickback scheme.

The First District Court of Appeal took only two days in rejecting the request. The Division of Workers’ Compensation is moving to suspend providers and stay liens under new authority granted to it by the passage last year of SB 1160 and AB 1244.

EMA’s opinion that goes beyond the scope of the issues should be considered – Florida

In Hillsborough County School Board v. Kubik, the 1st District Court of Appeal ruled that a Judge of Compensation Claims erred in refusing to consider the opinion of an expert medical advisor (EMA) as to the cause of a worker’s need for medical treatment, and in denying the worker temporary total disability benefits. While the EMA had not been asked to evaluate the major contribution cause of the need for ongoing treatment, the court noted an EMA’s opinion that goes beyond the scope of the issues is admissible but not afforded a presumption of correctness.

Former Congressman collecting $100,000 annually in workers’ comp for bipolar disorder – Illinois

According to the Chicago Tribune, former U.S. Rep. Jesse Jackson Jr., who was convicted of looting thousands of dollars from his campaign fund, is receiving a little more than $100,000 in worker’s compensation payments. Quoting Chicago attorney Barry Schatz, who is representing Jackson in a divorce proceeding, the article notes that the benefits are temporary total disability for bipolar disorder and depression.

The Federal Employees’ Compensation Act gives workers’ compensation benefits for disability “due to personal injury or disease sustained while in the performance of duty,” the Labor Department said. An employment lawyer speculated that Congressman Jackson’s attorneys convinced the government that his bipolar disorder was created by the rigors of being a member of Congress,

Inadequate urine sample did not constitute drug test refusal – Kansas

An employee who was struck in the left arm by an object while grinding a piece of metal was treated at an emergency room and returned to his employer to submit a post-injury urine sample. However, he did not provide enough urine to complete the test and the test administrator threw it away.

Lower courts found that the employee forfeited his benefits by failing to complete the drug test, however the appeals court disagreed. Kansas workers’ comp law says that “refusal to submit to a chemical test at the request of the employer shall result in the forfeiture of” workers’ comp benefits if the employer “had sufficient cause to suspect the use of alcohol or drugs by the claimant or if the employer’s policy clearly authorizes post-injury testing.” The court found no evidence that the employee had been under the influence of alcohol or drugs at the time of the accident and had volunteered to take a drug test while he was at the hospital. Kelley v. Aldine Indep. Sch. Dist., 2017 Tex. App. LEXIS 829 (Jan. 31, 2017)

Psychologist’s testimony valid in workers’ comp denial – Minnesota

In Gianotti v. I.S.D. 152, A16-0629, the Minnesota Supreme Court overturned a decision of the Workers’ Compensation Court of Appeals (WCCA) that the opinion of a psychologist was inadequate to support the denial of a worker’s claim for mental conditions allegedly caused by a concussion and post-concussive syndrome. The employee worked as a school bus monitor and fell and hit her head when the bus stopped short unexpectedly. Medical tests did not reveal a concussion, but she continued to complain of headaches, confusion, and memory problems and eventually sought psychiatric treatment.

While a judge denied the claim for a variety of emotional and psychological conditions, the WCCA questioned the competence of the psychologist as an expert witness, an issue that was not raised on appeal, and awarded benefits. The Supreme Court overturned this ruling noting the scope of the jurisdiction of the WCCA is limited to the issues raised by parties in their notices of appeal and that the psychologist’s opinion had as solid a factual foundation as any other expert in this case.

 

Failure to find work does not mean unemployable – Mississippi

The employee was a grinder and injured his right hand. Following an operation, he was released to work with restrictions, which did not allow him to work as a grinder. He performed largely janitorial and maintenance duties, but at one point was asked to operate a forklift. This irritated the hand and his physician advised him not to do so. When he was asked again, he refused to do so, and was placed on leave and given three days to obtain a written work restriction.

When he did not produce the work restriction, he was fired for insubordination. He filed a petition seeking a higher permanent medical impairment and eventually received a 50% loss rating, which he argued was too low given his permanent work restrictions. However, the Court of Appeals found that he was able to do other substantial job duties and had worked for almost a year after he was declared to have reached maximum medical improvement. Although he had been unsuccessful in finding another job after he was let go, this did not mean that he was unemployable. Harold Hathorn v. ESCO Corporation

Worker fired for failing to report medical only claim can collect unemployment – Mississippi

Although most states protect workers once they are hired from being fired if they file a comp claim, Mississippi does not. In Bedford Care Center of Marion v. Nicholson, the question for the Court of Appeals was whether unemployment benefits are available to a worker who was fired for having misrepresented her claims history. In a previous job, the worker received medical care for her injury in the hospital emergency room, but no indemnity benefits and she argued she did not realize medical benefits were workers’ comp.

While lower courts found she was fired for misconduct and not entitled to unemployment benefits, the Court of Appeals concluded that her inaccurate answers did not rise to the level of “willful and wanton” misconduct necessary to forfeit her entitlement to unemployment benefits.

Employee may sue colleague for work accident – Missouri

A restaurant worker climbed an A-frame ladder into a lofted space at the restaurant and while she was working there, a coworker removed the ladder. The coworker returned the ladder, but did not fully open and lock it. The ladder collapsed and the worker fell and injured her hand, elbow, and shoulder.

While the St. Louis County Circuit Court dismissed a negligence lawsuit, a three-judge panel of the appellate court disagreed, noting that a 2005 amendment to Missouri’s workers comp law “only gives employers immunity against tort claims for work-related injuries and does not afford such immunity to co-employees.”

Suicide bars survivor benefits – Nebraska

A woman who overdosed on drugs prescribed in connection with a workplace injury is not eligible for workers’ compensation survivor benefits, a state appeals court ruled. For five years, she was taking the opioids oxycodone and methadone, along with the sedative Xanax. Shortly before her death, she was told she would lose custody of her daughter and she no longer could live with relatives. She was overheard saying, “I just as well end it all.”

The trial court ruled that the overdose constituted “willful negligence and thus barred any recovery of benefits,” and the Court of Appeals affirmed. Michael B. v. Northfield Retirement Communities

Medical marijuana reimbursement required for comp claim – New Jersey

In Watson v. 84 Lumber, a New Jersey administrative law judge ordered Beaumont, California-based 84 Lumber Co. to reimburse one of its injured workers for medical marijuana prescribed for neuropathic pain in his left hand after an injury suffered while using a power saw at a lumber plant. The medical marijuana was being used to help wean the worker off of opioids. This is a division level case, so this decision is not binding on other New Jersey courts.

Other states that have allowed comp payments for medical marijuana include New Mexico, Maine, Connecticut and Minnesota. In most of these cases, physicians only recommended marijuana after other treatment regimens for chronic pain were attempted without success.

Cautious language of medical expert dooms claim for stress-related stroke – New York

In Matter of Qualls v Bronx Dist. Attorney’s Office, 2017 N.Y. App. Div. LEXIS 409, a state appellate court affirmed the Workers’ Compensation Board’s determination that a worker did not sustain a causally related disability resulting from his stroke because his physician repeatedly used cautious and indeterminate language, such as stress “may have been” or “could’ve been a contributory factor.” While the court acknowledged that the law did not require that medical opinions be expressed with absolute or reasonable medical certainty, the expert must signify a probability as to the cause and his or her opinion must be supported by a rational basis.

“Last act” in employment contract key in determining workers’ comp jurisdiction – North Carolina

An Oklahoma-based union hall of a welder who lived in North Carolina sent her a notification to report to an assignment in Texas, where she was to undergo a drug test and complete forms when she arrived. The North Carolina Industrial Commission ruled it did not have jurisdiction to hear her injury claim since her injury occurred outside North Carolina and under North Carolina’s “last act” test, her employment contract was made in Texas, and not in North Carolina. Submission to the drug test was more than an administrative formality, had she not passed, she would not have been hired. Holmes v. Associated Pipe Line Contrs., 2017 N.C. App. LEXIS 52

Off-duty convenience store clerk due comp benefits – Pennsylvania

The Commonwealth Court panel has ruled that a convenience store clerk who is permanently disabled is eligible for workers’ compensation after being shot several times while sitting in his supervisor’s parked car outside of the store after the pair had just closed up shop. Earlier in the week, he had called the police on a shoplifter, whose relatives threatened retaliation, so his supervisor had been driving him home.

The Commonwealth Court panel upheld the decision of the workers’ compensation judge, saying that the shooting was retaliation-related. The court also said that the spot he was parked in constituted the employer’s property, at a location that was a reasonable means of access and egress to employer’s store, and he was within the course and scope of employment while he was in the car.

Exception to going and coming rule applies for sick employee – Pennsylvania

In Lutheran Senior Services Management Company v. Workers’ Compensation Appeal Board (Miller), the Director of Maintenance for a nursing home had a serious motor vehicle accident while going into work. At times he was called in for emergencies and received “comp time.” On this particular day, he was sick and planned to call in, but his employer called that a security camera had malfunctioned and needed to be fixed and no one else was available to do so.

While the carrier denied the claim arguing that he was commuting, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, noting “Claimant was sick on March 13, 2014, and except for the special need of the Employer to assure [that the] surveillance cameras became operative . . . Claimant would not have gone to work.” This would represent an exception to the “coming and going rule.” Upon appeal the Workers’ Compensation Appeal Board (WCAB), affirmed the decision of the WCJ but felt the facts represented more “special circumstances” than a “special mission,” but, still met an exception to the “coming and going rule.” The Commonwealth Court affirmed.

Third party recovery limited to injuries caused by negligence – Pennsylvania

In Serrao v. WCAB (Ametek Inc.), the Commonwealth Court ruled that an employer is not entitled to recovery of the full amount of its comp lien from a worker’s settlement unless the employer can prove the third party was responsible for all of the worker’s compensable injuries. An employee, wearing protective overalls, suffered burns when a can of powder ignited and caused a flash fire. The employee filed a third party suit against the manufacturer of the coveralls and received a $2.7 million settlement, and the employer asserted a lien against the recovery for all of its costs related to the injury.

There was a dispute if the costs related to burns to his hands and head caused by the melting of his gloves, face shield and hood should be included. The case made its way to the Commonwealth Court that concluded an employer has the burden of proving its obligation to pay comp benefits was caused by the negligence of the third-party tortfeasor and that the tortfeasor’s payment of damages are for the same injuries for which the employer paid benefits.

How a carrier can exercise its subrogation rights – Pennsylvania

In The Hartford Insurance Group on behalf of Chunli Chen vs. Kafumba Kamara, Thrifty Car Rental, and Rental Car Finance Group, the court considered how a carrier could go after a culpable third party. A carrier wanting to exercise its subrogation rights cannot force the issue by bringing a third party action on its own. Chen was waiting to rent a car in the Thrifty Car rental parking lot when Kamara accidentally hit her with one of Thrifty’s rental vehicles. Through her employer’s workers’ comp, Hartford paid almost $60,000 in medical and wage benefits. The Hartford filed a tort action against Kamara and Thrifty, asserting their negligence was responsible for Chen’s injuries, but Chen had not assigned her cause of action to Hartford and was not a party to the lawsuit.

Although a judge dismissed Hartford’s complaint, the Superior Court ruled that the case could proceed. The court noted that the Hartford was not pursuing a subrogation claim on its own behalf – it was seeking to establish the defendants’ liability to Chen. Because the carrier also was not limiting its requested recovery to the value of its subrogation claim, the court reasoned that it was not impermissibly “splitting” the cause of action Chen would have had. It’s important for carriers to use the right language in the complaint to make it clear that it is bringing the employee’s suit.

In this case, Chen is cooperating with Hartford’s effort to obtain recovery, but did not want to pursue the claim on her own. Such action could be more difficult in cases where a recalcitrant employee does not want to cooperate.

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Things you should know

ACP latest medical guideline to discourage opioids for treatment of low back pain

A new low-back pain treatment guideline from the American College of Physicians (ACP) is the latest to discourage the use of opioids, instead encouraging the use of such treatments as exercise, acupuncture, massage, or biofeedback. When low-back pain becomes chronic, defined as lasting longer than 12 weeks, ACP recommends that patients start with non-drug therapy, which might include exercise, acupuncture, biofeedback, cognitive behavioral therapy or spinal manipulation. The guideline applies to cases of nonradicular low-back pain, where pain is not radiating into the patient’s legs.

If patients wish to take medication, they should use nonsteroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen, or skeletal muscle relaxants prescribed by a doctor. Acetaminophen and steroids are not recommended for low back pain, according to the guideline.

Guide offers advice on choosing the right slip-resistant footwear

Intended for workers, purchasers, and safety and health committees, a Montreal scientific research organization offers a free pamphlet detailing the procedures for choosing footwear with proper grip and protection against hazards. It also lists necessary steps, including creating a selection committee, considering risk factors, selecting the proper sole and verifying the selection before purchase.

ISHN annual update on hand protection

The Industrial Safety and Hygiene News February edition features its annual update on hand protection.

FMCSA delays effective date for CMV driver minimum training standards

The Federal Motor Carrier Safety Administration (FMCSA) rule establishing national minimum training requirements for entry-level commercial motor vehicle drivers has been pushed back until at least March 21 based on the executive order to temporarily postpone certain regulations that have yet to take effect. The agency could delay the minimum training rule beyond March 21, if necessary.

NIOSH publishes workbook on Total Worker Health

NIOSH has released a workbook it calls “a practical starting point for employers, workers, labor representatives, and other professionals interested in implementing workplace safety and health programs aligned with the approach.” The Total Worker Health concept emphasizes a work environment that is free of hazards and uses “a modern prevention approach” that acknowledges that occupational factors can affect the well being of employees, their families and their communities.

New Jersey’s toughens opioid laws

The New Jersey law limits doctors’ ability to issue first-time opioid prescriptions for more than five days, mandates doctors to create a pain-management treatment plan regarding the use of opioids and review prescriptions every three months, and requires doctors to obtain a written record that the risks of taking opioids were discussed with the patient. The law also mandates state-regulated health insurers to cover the first 4 weeks of inpatient or outpatient substance abuse treatment without the need for authorization. Insurers must provide additional coverage for up to 6 months of treatment, including medication-assisted treatments, if deemed medically necessary.

The prescription drug limit would not apply to patients with cancer and for end-of-life hospice care.

IRS will accept tax returns from individual filers without health care status but employer requirements remain the same

The IRS announcement that it will not reject taxpayers’ 2016 income tax returns that are missing health coverage information applies to personal income tax returns. Employers still must distribute 1095 forms to employees and report employee health coverage to IRS. Also, it is not a repeal of the individual mandate; penalty provisions are still in place and are currently being enforced.

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

New report weighs in on marijuana’s health benefits – nearly 100 conclusions

A new report from the National Academies of Sciences, Engineering, and Medicine offers a rigorous review of scientific research published since 1999 about the health impacts of cannabis and cannabis-derived products – such as marijuana. It lays out substantial evidence that associates the use of cannabis with the development of psychoses and schizophrenia, but also provides studies that show its potential benefits, such as relief of chronic pain and chemotherapy-induced nausea. Other benefits include: improvement of multiple sclerosis spasticity, improvement of short-term sleep in patients with obstructive sleep apnea, fibromyalgia, chronic pain, and multiple sclerosis, potential improvement of anxiety symptoms, and increasing appetite and decreasing weight loss in patients with HIV and AIDS.

But it also points out potential risks: worsening of respiratory symptoms and more frequent bronchitis with long-term smoking, increase in motor vehicle accidents, low birth weight in offspring of maternal smoker, and higher risk of cannabis overdose in children in states where cannabis is legal.

The report also acknowledges that it has been difficult for researchers to do rigorous research on marijuana, partly because of the federal classification of it as a Schedule 1 substance.

Employer takeaway: This report demonstrates how much more needs to be done – many health questions remain to be answered by better research. The increased legal availability of cannabis products in many states and the uncertain legal landscape has complicated workplace policies. It’s prudent for employers to establish a clear policy and communicate it effectively to employees as well as stay abreast of all legal decisions and regulations in the states where they do business.

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