Watch out for 20 costly workers’ comp mistakes in 2020: Part Two (11-20)

Part 2

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not updating job descriptionsJob descriptions are critical in the recruitment and hiring process, promote greater accountability, enable medical providers and employers to work together in recovery at work, and provide protection in litigation complaints under a host of laws, including the ADA and FMLA. Don’t underestimate the importance of reviewing job descriptions as an integral part of work processes.
  2. Not adapting training to the generational span in the workforceToday, organizations face the challenge of motivating, training, and engaging individuals that span from Gen Z (born after 1997) to Baby Boomers (born after 1945). Companies must recognize the different skill gaps, communication styles, and expectations and find creative ways to reach all generations. While much is written about adapting the workplace to the declining physical abilities of an aging workforce, Gen Z, which is expected to represent 20% of the workforce in 2020, has only recently gotten attention.

    Gen Z grew up immersed in technology and constant interaction, multitasks across five screens on average, freely expresses themselves online, is visually oriented, and has a very short attention span. Many do not have hands-on industrial and mechanical experience, making concepts such as lock-out tagout hard to grasp. Expect the trend of personalized and microlearning to continue in 2020.

  3. Failing to foster mental health resilienceMuch of the legislative activity for presumptive laws is focused on public safety personnel, but there is movement to extend it to other employees such as nurses, teachers, private company EMTs or others on the front lines in crises. There has also been an uptick in workers’ compensation claims for post-traumatic stress disorder following shootings and other violent incidents along with claims for extreme stress. These are complicated and the state laws for coverage vary greatly, although most are limited. Even when the injuries are not deemed compensable, mental health issues can adversely affect recovery.

    These factors, coupled with an increase in workplace suicides, mean that employers cannot ignore the mental health of their employees.

  4. Having cybersecurity myopiaWhile most people think of data and information when they think of cybersecurity, it also can involve safety risks. As operations become more digital and connectivity increases, IoT networks become more vulnerable. Cyber invasions and infections can be used to create havoc or cripple essential equipment for financial gain. Hackers may be insiders or outsiders or the issue may be worker errors.
  5. Overlooking heat stress hazardsWith rising ambient temperatures, 18 of the last 19 years have been the hottest on record according to NASA. The problem is not limited to the Sun Belt states. OSHA recently fined a utility-pole service provider in Nebraska for a heat-related death. Heat stress poses a serious health hazard to workers and also increases safety risks.
  6. Not evaluating telemedicineThe use of telemedicine has been slow to take hold in workers’ comp, but some employers have used it successfully to speed access to care, improve patient compliance, and reduce costs. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow up care.
  7. Having a claims denial mindsetDenied claims often lead to higher medical costs and litigation, as studies show about 67% of initial denials are approved. When the claim is legitimate and the claim is denied, it leads to bad feelings and low morale. If you suspect fraud, strongly present the case to the adjuster. But denying claims to lower costs is going to backfire.
  8. Hiring undocumented workersThe national debate on immigration has left undocumented workers in the precarious position of deciding whether to pursue medical care and benefits at the risk of arrest and deportation. While employing undocumented workers is illegal, they represent a good percentage of the workforce in construction, agriculture, and hospitality. In some cases, they are knowingly hired and in others, they have presented false documentation. The statutes vary by state, but many states cover workers compensation for undocumented workers.

    It makes good business sense to validate legal status through E-Verify at the start of employment.

  9. Not staying abreast of legislative and regulatory changesIn addition to the items identified above, drug formularies, medical treatment guidelines, opioids, and Medicare Set Asides regulations will significantly impact workers’ comp. Challenges to the constitutionality of the ACA and single-payer healthcare also bear watching.
  10. Not planning for the changing nature of workThe year 2020 begins a new decade destined to see humans and machines working as integrated teams, with the Fourth Industrial revolution bringing technologies that blur the lines between the physical, digital and biological spheres across all sectors. Retail had more injuries than manufacturing in 2018. Hazards from employee interactions with motorized equipment like autonomous forklifts and robots, high-stress holiday hours, slips and falls, and overexertion have all contributed to the increase.

    Companies are struggling to implement safety protocols that match the pace of automation and protect employee privacy. Drones, wearables, and apps continue to gain traction in workplace safety, but cost, privacy, understanding the proper use and how to analyze the data remain barriers, particularly for smaller employers.

    Further, this tectonic shift has implications for training and education as workers need new skills to adapt to their changing roles and responsibilities. Lifelong learning will become a primary driver for employee success and employees will seek employers that provide such opportunities. It’s got to be all about positioning for the future.

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

Watch out for 20 costly workers’ comp mistakes in 2020: Part One (1 – 10)

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not taking a holistic view of injured employeesRegardless of the size or type of claim, there’s been an overarching shift in treating injured employees as consumers, rather than claimants. This means not only advocating for them and giving them support and a voice in handling claims, but also recognizing the social and economic factors that affect recovery, and the psychology of pain. Taking the time to understand the needs of the individual employee both improves claim outcomes and bolsters employee morale.
  2. Relaxing claims monitoringWhen claims are down, it’s easy to divert attention elsewhere and leave the claim to the adjuster. Yet, three to five percent of claims drive 50 to 60 percent of the cost and it doesn’t take a catastrophic injury to create a complex, costly claim. Delayed recovery, which can be caused by co-morbidities, psychological or family problems, employment issues, attorney involvement, or prescription abuse increases the duration and cost of a claim. Early identification of these potential high-cost claims reduces costs.

    Also, when legacy claims linger on autopilot, by default, the employer commits to costly ongoing medical care that often involves opioids. While the industry has done a good job of controlling opioid prescribing for new claims, regular intervention is necessary for older claims to accelerate settlements and improve pain management.

  3. Not recognizing marijuana is here to stayThe continuing trend of states legalizing marijuana for both medical and recreational use in spite of the federal ban has made it one of the top challenges in maintaining a safe workplace. Staying abreast of evolving laws and cases, as well as a clearly defined policy on how marijuana will be addressed in the workplace, are necessary to ensure the safety of all workers and decrease the likelihood of adverse employment actions. Shifting cultural acceptance of marijuana as well as its legalization in many states means that employers need to thoughtfully evaluate their drug testing policies.

    Case law in 2019 moved toward protecting the medical use of marijuana in the workplace. Sixteen states provide workplace protections for legalized medical marijuana use either through their statutes or through case law, including Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia, and Massachusetts.

    Experts postulate that there will be more law suits from employees or job applicants who were terminated or not hired because they failed a drug test and take medical marijuana. Further, the question of marijuana as treatment in workers’ comp claims will continue to be a hot issue in 2020.

  4. Failing to understand what’s happening at OSHAWhile many observers expected a decline in the number of OSHA workplace inspections, they increased to 33,401 in FY2019, higher than in any year since 2015. There’s been a record number of $100,000+ citations, higher penalties, more willful and repeat citations, as well as worker safety criminal prosecutions.

    On October 1, OSHA implemented major changes to how it prioritizes inspections and other compliance activities. Factors now considered in inspection weighting include:

    • Agency enforcement priorities
    • Impact of inspections on improving workplace safety
    • Hazards inspected and abated
    • Site-Specific Targeting (SST) program objective

    Further, the agency announced that it is moving away from its long focus on “OSHA recordables” as a way to measure the safety of a workforce and will focus its enforcement efforts on leading indicators, which are proactive.

  5. Failing to properly classify employeesWhile the contractor vs. employee status debate has existed for many years, it ramped up in 2019 and is expected to be a hot issue in 2020. Some estimate that over 30% of the workforce is part of the gig economy. With the passage of AB5 in California and a growing number of court cases, expect to see more legislation and court cases.
  6. Developing a false sense of security from distracted driving policiesOver the past five years, motor vehicle accident claims accounted for 28% of workers’ comp claims over $500,000. They now account for more worker fatalities than any other cause and savvy employers know they have to go beyond state laws to develop best practices. Employers are being held liable for employee crashes, even when employees use hand-free devices. The National Safety Council considers hands-free devices to be just as distracting as hand-held devices while driving.

    A distracted driving policy is only the beginning. It must be implemented, updated, and consequences for non-compliance enforced. There are growing options for discovering violations – locking devices, GPS monitoring, in-vehicle cameras, and so on.

  7. Being unprepared for workplace violenceWith more high-profile workplace shootings, fear of workplace violence is on the rise. According to the Society for Human Resource Management (SHRM), one in seven workers do not feel safe at work. Unfortunately, incidents and attitudes that lead to workplace violence are a reality at all workplaces. Workers feel safer and more valued when investment is made in security and preparation.
  8. Not reassessing your PPEWhen NASA was forced to cancel the first-ever spacewalk by two women because it did not have two appropriate space suits, social media erupted with stories from women in all industries about ill-fitting or no PPE. Through continued advancement and technological changes, “smart” PPE with sensors that monitor, collect, and record biometric, location, and movement data is on the rise. In addition, employees’ personal preferences and increased comfort have driven new innovations.

    Providing the right PPE is another way companies can recruit and retain more talent.

  9. Ignoring changes in workplace ergonomicsMusculoskeletal disorders (MSDs) develop over time, but are highly preventable at a reasonable cost. Yet, they account for close to one-third of all occupational injuries and illnesses and have a median of nine days away from work.

    New technologies and devices, an aging workforce, temporary workers, more employees working remotely, the dramatic shift to e-commerce, coupled with massive changes in warehousing and office designs have introduced new ergonomic challenges. Moreover, employees want to work in a comfortable environment and embrace employers that take a holistic approach to ergonomics. A 2019 study by Future Workplace and View found that air quality and natural light were most important to employees, topping fitness facilities.

    Addressing new potential ergonomic risks now will prevent costly injuries in the future, improve productivity, and retain talent.

  10. Failing to stay in touch with your medical provider networkPerhaps you’ve had a few good years with no lost-time injuries. No real need to stay in touch with your medical network. But networks and providers change as do work processes. An ongoing face-to-face relationship ensures your workers get appropriate and priority treatment as well as leads to better outcomes for injured employees.

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

Legal Corner

ADA
Adverse employment action cannot be motivated by associational disability claim

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

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

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

 

 

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

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

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

Jury awards Walmart employee $5.2 million

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

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

Workers’ Compensation

Safety citation for failure to require appropriate footwear upheld – California

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

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

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

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

Ruling on enforceability of unsigned document published – California

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

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

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

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

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

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

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

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

Court erred in approving lump sum PPD award – Illinois

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

Parking lot injury not compensable – Illinois

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

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

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

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

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

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

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

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

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

Volunteer not entitled to benefits – New York

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

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

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

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

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

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

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

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

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

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

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

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

Immigration status irrelevant to comp benefits – Pennsylvania

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

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

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

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

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

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

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

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

24/7 home health care not warranted – Virginia

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

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

Appellate court overturns Commission and denies care by spouse – Virginia

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

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

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

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

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

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

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

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

Here’s how:

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

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

Early workplace injuries predictor of frequent filers

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

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

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

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

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

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

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

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

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

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

Things you should know

NSC offers free toolkit to fight opioid abuse

The National Safety Council (NSC) is offering a free toolkit to help employers address the opioid crisis. The Opioids at Work Employer Toolkit addresses warning signs of opioid misuse, identifying employee impairment, strategies to help employers educate workers on opioid use risks, drug-related human resources policies, and how to support employees struggling with opioid misuse.

Workplaces most common site of mass shootings: Secret Service report

In its second Mass Attacks in Public Spaces report, the Secret Service examined 27 incidents in 18 states that involved harming three or more people. Most occurred in workplaces (20) and were “motivated by a personal grievance related to a workplace, domestic or other issue.”

Worker participation key to preventing safety accidents: CSB

The U.S. Chemical Safety Board (CSB) published a new safety digest discussing the importance of worker participation to avoid chemical mishaps. The report outlines how the shortage of worker engagement was a factor in various incidents examined by the CSB.

2018 guidelines more effective in preventing carpal tunnel: NIOSH

Previous studies showed that the 2001 American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Value (TLV) for Hand Activity was not sufficiently protective for workers at risk of carpal tunnel syndrome (CTS) and led to a revision of the TLV and Action Limit in 2018. A new study compares the effectiveness of the 2018 and 2001 guidelines, concluding that the 2018 revision of the TLV better protects workers from CTS.

NIOSH notes that many workers are exposed to forceful repetitive hand activity above the guidelines and urges compliance with the updated guidelines.

First aid provisions in workers’ compensation statutes and regulations: NCCI

The National Council on Compensation Insurance, Inc. (NCCI) has compiled state statutes and regulations related to First Aid in Workers’ Comp. The document does not include review or analysis of the statute or regulation, of relevant caselaw, or other guidance and is subject to change.

Mandatory treatment guidelines may lead to fewer back surgeries

States with mandatory use of medical treatment guidelines in utilization review, reimbursement and dispute resolution may lead to lower rates of lumbar decompression surgery among workers with low back pain, according to a new report by the Workers Compensation Research Institute.

The 27 states in the study include Arkansas, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.

Engineered-stone fabrication workers at risk of severe lung disease

Exposure to silica dust from cutting and grinding engineered stone countertops has caused severe lung disease in workers in California and three other states. The CDC released information on cases in Washington, California, Colorado and Texas in an article published in the agency’s Morbidity and Mortality Weekly Report. According to the article, 18 cases of silicosis were identified in the four states from 2017 – 2019. Two of those workers died from the illness.

Campbell Institute offers a guide on how to get started with leading indicators

An Implementation Guide to Leading Indicators is intended to help employers initiate the process when implementing leading indicators for the first time.

Annual wind energy safety campaign focuses on hands

The American Wind Energy Association will offer several free resources in October as part of its annual month-long safety awareness campaign aimed at helping protect renewable energy workers from on-the-job injuries. The theme of the 2019 campaign is Take a Hand in Safety: Protect These Tools.

NIOSH releases international travel planner for small businesses

The 36-page travel planner is a new resource intended to help small-business owners ensure the health and safety of employees who travel internationally.

State News

California

  • Governor Newsom has signed two bills relating to workers’ comp. A.B. 1804 will require the immediate reporting of serious occupational injury, illness, or death to the Department of Industrial Relations’ Division of Occupational Safety and Health. A.B. 1805, modifies the definition of “serious injury or illness” by removing the 24-hour minimum time requirement for qualifying hospitalizations, excluding those for medical observation or diagnostic testing, and explicitly including the loss of an eye as a qualifying injury for the new reporting requirements. Both bills will take effect Jan. 1, 2020.
  • Legislators approved a landmark bill that requires companies like Uber and Lyft to treat contract workers as employees. The Governor is expected to sign it after it goes through the State Assembly. Uber, Lyft, and DoorDash have vowed to fight it.
  • Insurance Commissioner Ricardo Lara approved the Workers’ Compensation Insurance Rating Bureau’s annual regulatory filing that will, among other things, lower the threshold for experience rating.
  • The Division of Workers’ Compensation (DWC) announced that the temporary total disability rate will increase 3.8% next year, not more than 6% as the agency previously announced.
  • The DWC has issued an order modifying its evidence-based treatment guidelines for work-related hip and groin disorders. Effective October 7, 2019, the changes involved two addendums to the workers’ compensation medical treatment utilization schedule and incorporate the American College of Occupational and Environmental Medicine’s most recent hip and groin disorders guidelines.
  • The DWC launched an updated free online education course for physicians treating patients in the workers’ compensation system.

Illinois

  • Beginning July 1, 2020, hotels and casinos will be required to have anti-sexual harassment policies that include, for certain workers, access to a safety button or notification device that alerts security staff under the newly created Hotel and Casino Employee Safety Act.
  • Gov. J.B. Pritzker signed legislation requiring freight trains operating in the state to have at least two crew members, challenging the Federal Railroad Administration’s recent effort to prevent states from regulating train crew sizes. Scheduled to go into effect January 1, 2020, S.B.24 is to be known as Public Act 101-0294.

Minnesota

  • Department of Labor and Industry has posted new workers’ compensation medical fee schedules that took effect Oct. 1. The schedules update reimbursement for ambulatory surgery centers, hospital inpatient, and outpatient services, and provide new resource-based relative values for providers.
  • The workplace fatality rate in Minnesota grew to 3.5 per 100,000 full-time workers in 2017, the highest rate in at least a decade, according to new data from the Safety Council. Almost one in three fatal workplace injuries involved driving a vehicle.

North Carolina

  • The Industrial Commission announced that the maximum for temporary and permanent total disability will go from its current level of $1,028 to $1,066, starting Jan. 1.

Pennsylvania

Tennessee

  • New rules for medical payments went into effect September 10, 2019. Not only are reimbursement rates increasing for providers and hospitals, but the conversion factor may now “float” or follow Medicare’s changes, rather than being fixed.
  • The NCCI is recommending a 9.5% decrease in loss costs for the voluntary market in 2020, a figure that’s half of what the rating organization recommended for this year.

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

Things you should know

Studies and reports:

The Relationship of the Amount of Physical Therapy to Time Lost From Work and Costs in the Workers’ Compensation System – Journal of Occupational Medicine

Finding: Injured workers who take time off work to recover, and whose treatment includes more than 15 sessions of physical therapy, are out of the workforce longer and are six times more likely to cost more.

Suicide and drug-related mortality following occupational injury – American Journal of Industrial Medicine

Finding: Workplace injury significantly raises a person’s risk of suicide or overdose death.

Fatal occupational injuries to independent workers – BLS

Finding: Fatalities among independent workers accounted for about 12% of all workplace deaths in 2016-2017, and independent workers have a disproportionately higher share of fatalities due to falls, slips and trips.

Interstate Variations in Dispensing of Opioids, 5th Edition – Workers Compensation Research Institute (WCRI)

Finding: In 27 states, fewer injured workers received opioids recently as compared with previous years. But, injured workers continue to be treated for pain, as non-opioid pain medications (e.g., NSAIDs) increased to a lesser degree and non-pharmacologic treatments (e.g., physical therapy) without pain medication were more frequently provided.

The effects of sleep on workplace cognitive failure and safety (Construction) – Oregon Healthy Workforce Center

Finding: Among construction workers, there is a connection between poor quality sleep and the risk of workplace incidents and injuries.

Calories Purchased by Hospital Employees After Implementation of a Cafeteria Traffic Light-Labeling and Choice Architecture Program – Massachusetts General Hospital

Finding: Implementation of a traffic light-labeling and choice architecture program was associated with a 6.2% decrease in calories per transaction over 2 years, including a 23.0% decrease in calories from the least healthy food.

Drug trends: Evaluating Opioids – Coventry

Finding: The prescribing of drugs meant to treat opioid use disorder increased 5.4% in 2018 among workers compensation claims and 1.8% of claims with high doses of opioids received naloxone – an anti-overdose medication – at almost double the amount from 2017.

2019 RIMS Benchmark Survey – Business Insurance

Finding: The average total cost of risk for businesses rose by 2.1% in 2018, reversing four years of declines.

Workplace Secondhand Tobacco Smoke Exposure Among U.S. Nonsmoking Workers, 2015 – CDC

Finding: Nearly 1 out of 5 workers are exposed to secondhand smoke on the job. Results identify industries most at risk.

Commercial motor vehicle brake inspection event set for Sept. 15 – 21

Commercial motor vehicle inspectors throughout North America will perform brake system examinations Sept. 15-21 during the Commercial Vehicle Safety Alliance’s annual Brake Safety Week. While special emphasis will be placed on brake hoses and tubing, inspectors also will be looking for other critical non-brake-related violations.

State News

California

  • The Workers Compensation Insurance Rating Bureau (WCIRB) proposed that the Jan. 1, 2020 rates be about 5.4% lower than the current advisory pure premium rates, or $1.58 per $100 of payroll.
  • WCRIB’s X-Mod estimator is now available for 2020 at https://www.wcirb.com/estimator.

Florida

  • National Council on Compensation Insurance (NCCI) filed a proposed 5.4% rate decrease with the Florida Office of Insurance Regulation, effective January 1, 2020.

Minnesota

  • The Department of Labor and Industry has adopted an expedited rulemaking process, and has published new rules governing treatment and compensation for post-traumatic stress disorder in first responders.

Missouri

  • Department of Labor and Industrial Relations has adopted several new rule changes regarding administrative law judges, review applications and more.

Nebraska

  • Hospitals, insurers, self-insured employers, risk-management pools and third-party administrators can now make reports electronically. FAQ’s are on the website.

Virginia

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

OSHA watch

Comments sought on possible revision to silica standard

request for information was published August 15 in the Federal Register for input on potential revisions to Table 1 of the respirable crystalline silica standard for construction. Table 1 includes the task or equipment, engineering / work practice control methods, and required respiratory protection / minimum assigned protection factors for all shifts. The deadline to comment is Oct. 15.

New webpage on leading indicators

A new webpage is aimed at helping employers use leading indicators to improve their health and safety programs.

Employers reminded to submit Form 300A data

media release reminds employers who have not already done so to submit their 2018 Summary of Work-Related Injuries and Illnesses (Form300A). The deadline was March 2.

Access FREE electronic OSHA 300 Recordkeeping Software that creates the OSHA required data transmission file for online reporting here.

New way to track OIG recommendations

The Department of Labor Office of Inspector General has launched a Recommendation Dashboard website showing the status of its 235 recommendations for 12 agencies, including OSHA and the Mine Safety and Health Administration.

Recent fines and awards

California

  • Garden Films Productions LLC, based in Culver City, was cited for failing to protect employees from hazards while filming a movie in Norcross, Georgia and faces penalties of $9,472.

Florida

  • L N Framing Inc. was cited for exposing employees to fall hazards at a Jacksonville worksite and faces $58,343 in penalties.
  • Point Blank Enterprises Inc., operating as The Protective Group in Miami Lakes, was cited for exposing employees to amputation and other safety hazards and faces $92,820 in penalties.
  • Brad McDonald Roofing & Construction Inc. was cited for exposing employees to fall and other safety hazards at two construction sites in Lutz and Palmetto. The residential and commercial roofing work company faces $274,215 in penalties.

Georgia

  • Atlanta Kitchen LLC was cited for exposing employees to amputation, silica, and other safety and health hazards at its Decatur manufacturing facility. The countertop manufacturer faces $132,604 in penalties.

New York

  • Arbre Group Holding, doing business as Holli-Pac Inc., was cited for willful and serious violations of workplace safety and health standards at its Holley facility. The company, which packages frozen fruits and vegetables for retailers, faces a total of $200,791 in penalties.

Indiana

  • Five Star Roofing Systems Inc., based in Hartford City, was cited for repeatedly exposing employees to fall hazards while performing roofing work at a commercial building site in Lake Barrington, Illinois. The company faces $220,249 in penalties.

Missouri

  • H. Berra Construction Co., based in St. Louis, was cited for exposing employees to excavation and trenching hazards at a residential construction site in Saint Charles, and faces penalties of $143,206.
  • Missouri Cooperage Company LLC, a subsidiary of Independent Stave Company, was cited for exposing employees to amputation, noise, and other safety and health hazards at the spirits and wine barrel-making facility in Lebanon, and faces $413,370 in penalties.

Pennsylvania

  • A federal judge in the U.S. District Court has awarded $1,047,399 in lost wages and punitive damages to two former employees of a Montgomeryville-based manufacturer, Lloyd Industries, after a jury found the company and its owner fired them in retaliation for their participation in a federal safety investigation.
  • New Finish Construction, LLC, based in Fairchance, must pay $25,000 in fines for safety violations that led lead to the death of a worker. An ALJ of OSHRC affirmed two citations relating to working near energized sources, but vacated three citations and their accompanying penalties.

Tennessee

  • The Tennessee Valley Authority (TVA) was ordered to reinstate a former employee who was placed on paid administrative leave, and then later terminated in retaliation for raising nuclear safety concerns and pay $123,460 in back wages and interest, and $33,835 in compensatory damages, as well as attorney fees.

Wisconsin

  • Choice Products USA LLC was cited for continually exposing employees to machine safety hazards at the cookie dough manufacturing facility in Eau Claire. The company faces $782,526 in penalties, and was placed in the Severe Violator Enforcement Program.

For additional information.

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

Things you should know

Rating agency reports fifth year of comp profits but forewarns profits are not sustainable

According to Fitch Ratings Inc, the workers’ compensation market is on track for a fifth consecutive year of underwriting profits in 2019, despite recent weakening in market fundamentals. The industry’s statutory combined ratio fell to 86% in 2018, and has averaged 93% annually since 2015, according to the report. However, the report notes several factors that could result in a sudden deterioration in performance including an increase in claims frequency or severity, and new regulatory developments in key states, according to the statement.

NIOSH issues new banding guide for chemicals in the workplace

NIOSH has published a technical report intended to help control chemical exposures in the workplace. The NIOSH Occupational Exposure Banding Process for Chemical Risk Management details a strategy for managing the many chemical substances that don’t have an authoritative occupational exposure limit. Occupational exposure banding is a process that assigns each chemical to a category based on its toxicity and any negative health outcomes associated with exposure to it.

FMCSA seeks to delay two provisions in final rule on CMV driver minimum training

The Federal Motor Carrier Safety Administration is requesting delaying compliance of two provision, which were scheduled to go into effect Feb. 7, 2020. These include requiring training providers to upload certification information into FMCSA’s Training Provider Registry and a provision for state driver licensing agencies to “receive driver-specific [entry-level driver training] information.”

Comments are due Aug. 19.

Another court decision favors MAO right to sue under private cause of action provision

Medicare Advantage Organizations (MAOs) received a favorable ruling on a motion to dismiss the case, MSP Recovery Series, LLC v. Plymouth Rock, in Federal Court in Boston. Since 2012 no court has concluded that MAOs do not have at least some rights under the private cause of action provision.

Study finds adherence to evidenced-based medicine guidelines for lower back pain lowers comp costs

recent study in the Journal of Occupational and Environmental Medicine concluded there is a statistically significant trend in the relationship between adherence to ACOEM guidelines for the initial management of work-related lower back pain and decreasing claim costs. Medical and total costs trended lower by an average $352.90 and $586.20 per unit of compliance score respectively. No outlier cost claims were in the best guidelines compliance groups.

CMS proposed decision to cover acupuncture

The Centers for Medicare & Medicaid Services (CMS) issued a proposed decision to cover acupuncture for Medicare patients with chronic low back pain (cLBP) who are enrolled participants either in clinical trials sponsored by the National Institutes of Health (NIH) or in CMS-approved studies. Currently, acupuncture is not covered by Medicare. The goal of the proposed decision is to provide Medicare patients who suffer from cLBP with access to a nonpharmacologic treatment option and to determine the effectiveness.

NAHB offers resources on managing opioid misuse in residential construction

In response to the particularly heavy impact the opioid crisis is having on the construction industry, the National Association of Home Builders has introduced several free resources intended to help residential construction organizations combat the issue.

These include:

  • An executive training package, including a webinar and other downloadable materials, outlining why industry action is needed
  • Supervisor training packages on workplace interventions and preventing opioid misuse in the industry
  • Fact sheets on the risks associated with taking opioids, and identifying medical and nonmedical opioid
  • Resources on non-opioid alternatives to pain management
  • A state-by-state guide of locally available resources

Study identifies what professions have worst drivers

study of 1.6 million car insurance applications by Cambridge, Massachusetts-based Insurify Insurance Co., an auto insurance comparison website, found that bartenders, ticket sales representatives, and journalists had the most moving violations. The cause? These professions tend to work 55-60 hours per week and sometimes work weekends. In contrast, postmasters and music composers are the best.

Helping employees get more sleep improves productivity: review of research

Basic employer interventions such as educating workers about the importance of sleep and sharing strategies to improve it may result in better sleep habits, increased productivity, and reduced absenteeism, a recent review of research concludes. The studywas published in the April 15 issue of the Journal of Clinical Sleep Medicine.

New video for tower workers explores safe installation, maintenance of small cell antennas

new two-and-a-half-minute video from the National Association of Tower Erectors stresses hazard awareness for technicians who work with small cellular antenna towers on new or existing structures.

State News

California

  • The Workers’ Compensation Insurance Rating Bureau (WCIRB) released its 2019 State of the System report highlighting key metrics of the state’s workers’ compensation system.
  • The Division of Workers’ Compensation posted an order updating the Medical Treatment Utilization Schedule. Treating providers, qualified medical evaluators and agreed medical evaluators, and utilization review and independent medical review physicians can access the MTUS guidelines at no cost by registering for an account here.

Florida

  • The Division of Workers’ Compensation has finalized a rule that defines which injuries “shock the conscience,” as required by legislation passed more than a year ago. The eight injuries deemed to be shocking to the conscience are:
    • Decapitation (full or partial).
    • Degloving.
    • Enucleation.
    • Evisceration.
    • Exposure of the brain, heart, intestines, kidneys, liver or lungs.
    • Impalement.
    • Severance (full or partial).
    • Third-degree burn on 9% or more of the body.

    The Legislature will now be required to give final ratification because the rule is likely to cost municipalities more than $200,000.

Missouri

  • The maximum weekly benefit for temporary total disability, permanent total disability and death benefits rose to $981.65, effective July 1. Permanent partial disability rose to $514.20.

New York

  • Mandated comp coverage for farm laborers under the Farm Laborers Fair Labor Practices Act, which requires farm employers to provide workers compensation for laborers, institutes injury reporting requirements and offers laborers additional protections, takes effect Jan. 1, 2020.

Virginia

  • The Workers’ Compensation Commission released its 2018 Annual Report, which provides a summary of key initiatives, trends, and outcomes.

Wisconsin

  • Commissioner of Insurance approved an overall 8.8% rate decrease for businesses starting Oct. 1, the fourth consecutive year of decreases.


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

Legal Corner

ADA 

Employee unable to wear safety shoes can be terminated

In Holmes v. General Dynamics Mission Systems Inc., a U.S. District Judge in Virginia dismissed an employee’s claims alleging violations of the ADA after she was terminated for being unable to perform the essential functions of her job, specifically, wear required safety shoes. She worked at the manufacturing facility for 18 years and was given an exemption in 2003, based on a note from her doctor.

However, the company stopped exempting her in 2013 because an outside auditor found violations of the protective footwear policy and stated that future violations could jeopardize the company’s certifications. The company did research and present alternative footwear to her and when none were acceptable, she was placed on an excused absence and encouraged her to seek custom-made safety shoes, which the company would reimburse.

After more than two years of absence and no evidence that she pursued the custom-made shoes, she was terminated.

Employer’s failure to raise “regarded as” defense results in jury award to employee

In Robinson v. First State Community Action Agency, a manager told an employee she either had dyslexia or didn’t know what she was doing and placed her on a performance plan. She sought a medical opinion about dyslexia, which was not conclusive, and gave it to her manager who gave it to HR. The HR Director told her the evaluation did not have any impact on her ability to perform essential job functions, and she was to follow the performance improvement plan and she then sought a reasonable accommodation. A few weeks later she was fired.

She sued, alleging the employer regarded her as disabled and failed to provide a reasonable accommodation and a jury agreed. The employer appealed, arguing that the jury instructions didn’t reflect changes that the ADA Amendments Act in 2008. While the 3rd Circuit agreed that the jury instruction was made in error, and “after the 2008 amendments went into effect, an individual who demonstrates that she is ‘regarded as’ disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation,” the employer had waived the right to contest it because it had not opposed the use of the argument earlier.

The case is a harsh reminder of the importance of raising all possible defenses early in the litigation to preserve the rights on appeal.

Workers’ Compensation 

No liability for Six Flags in workers’ electrocution – California

In Ingram v. Six Flags Entertainment Corp., an appellate court declined to overturn a jury trial verdict that declared Six Flags was not negligent for the injuries suffered by two workers who were electrocuted while repairing a ride. Although one of the electricians thought he had deenergized the equipment at Magic Mountain, there was an arc flash explosion, which caused serious burns.

They sued the parent company, Six Flags, arguing it failed to provide appropriate personal protective equipment and made changes to its safety program after the incident. However, Six Flags has a policy that forbids working on energized electrical equipment, provides training on how to shut off power, and successfully argued to exclude its post-incident safety program changes from the trial.

Failure to return to light duty work nixes award of TPD – Florida

In MJM Electric Inc. v. Spencer, an appellate court reversed a judge of compensation claims’ decision in favor of an injured worker because the employer had offered suitable light duty work. The electrician was injured at work and saw an authorized physician, but never returned to work in spite of multiple messages from his employer that light-duty work that fell within his work restrictions was available.

After two weeks of no response, the company fired him for job abandonment. He argued he did not recognize the number and had no voice mails. The judge of compensation claims found he was not entitled to temporary partial disability benefits for the first two weeks after his accident, but he could receive disability benefits after his termination because the company failed to meet its burden of showing suitable employment opportunities. The appeals court reversed and remanded the case.

Tort suit against subcontractor can proceed – Florida

In Heredia v. John Beach & Associates, an appellate court ruled that a man working for a subcontractor can sue another subcontractor and an employee. The injured employee was working for QGS, a subcontractor doing roadwork for Lennar Homes LLC and was accidentally struck by a truck owned by another subcontractor, John Beach & Associates, that was doing surveying work.

Under the law, when a contractor sublets work to subcontractors, all employees of the contractor and subcontractors are considered employed in one and the same business and are protected by the exclusive remedy provision. However, the court found in this case, Lennar was not performing any work, was not subletting work, and therefore, was not a contractor. The case can proceed.

Average weekly wage should be based on actual earnings not pro-ration wage – Georgia

A school custodian worked a school year schedule, but had his wage spread out over a 12-month period. In Ware County Board of Education v. Taft, an appellate court ruled that his wages should be based on his contractual rate, not the lesser actual pro-rated amount he earned during the 13-weeks preceding his injury.

Supreme Court provides guidance on PTSD provisions – Minnesota

In Smith v. Carver County, the state Supreme Court reversed a decision by the state’s Workers’ Compensation Court of Appeals (“WCCA”), finding the 2013 PTSD statute does not require a compensation judge to conduct an independent assessment to verify that the diagnosis was in conformity with the Diagnostic and Statistical Manual of Mental Disorders (DSM) before accepting the expert’s diagnosis.

The case involved a deputy sheriff who resigned after 10 years and was diagnosed with PTSD by a licensed psychologist. However, an independent psychological evaluator opined that he did not have PTSD, although he had adjustment disorder with anxiety. A WCJ found this opinion more persuasive and denied the claim. The WCCA overturned, finding this opinion did not address the PTSD criteria in the latest version of the DSM.

Nonetheless, the Supreme Court reversed noting the compensation judge’s legalistic analysis of the DSM-5 was not to become a substitute for the professional judgment of psychiatrists and psychologists and the judge did not err in finding the independent evaluation more persuasive.

High court rules no fault auto insurer must pay for injured driver’s excess chiropractic charges – Minnesota

In Rodriguez v. State Farm Mut. Auto. Ins. Co., an injured bus driver received 12 weeks of chiropractic treatments, the maximum allowed under the state’s workers’ comp law. She then sought treatment from another chiropractor and payment from her personal automobile insurance policy, which denied payment based on the workers comp payments.

The case made its way to the Supreme Court, which ruled the additional care fell outside of the comp statute because it was with a separate provider whose services had never been characterized as excessive.

Jury verdict of $74.1 million upheld in worker’s death – Missouri

The Ford Motor Co. must pay the widow of a truck driver who was struck by machinery while making a delivery at the Kansas City Assembly Plant ruled an appellate court in Ford v. Ford Motor Co. The driver, who had worked for the trucking company for less than two weeks, was delivering vehicle seats, which were removed by an L-shaped pair of conveyor lines. He entered the area between the conveyor belts to manually clear a jam during seat removal and stepped into a “pinch point” between the tables and was crushed.

The company appealed a jury verdict that assigned the company 95% comparative fault for his death and awarded his widow and son $38 million in compensatory damages, and $38 million for aggravating circumstances. The appeals court disagreed and upheld the award. The company plans to appeal to the state Supreme Court.

Right to cross-examine employer’s expert wrongfully denied – New York

In Matter of Ferguson v. Eallonardo Construction, an appellate court ruled that a worker was wrongfully denied the opportunity to cross-examine the insurance carrier’s medical consultant on how the permanent impairment rating of 40% was reached. While the counsel for the injured worker did not file a competing report, the court ruled that the right to cross-examine the carrier’s consultant was not predicated upon the filing of a competing report. The only requirement is that a request be made at a hearing, prior to the judge’s ruling on the merits.

Failure to complete application sufficient for denial – New York

In Matter of Jones v. Human Resources Administration, an appellate court ruled that an attorney’s failure to fill out every section of an application for administrative review was a proper basis for the Workers’ Compensation Board to deny it. While the worker received benefits for an work-related injury, she was later denied the request to add additional consequential injuries to her claim. There was a no information in the box for question 13 of the RB-89 form, which requested hearing dates, transcripts, etc.

Heart injury hours after accident compensable – North Carolina

In Holland v. Parrish Tire Co., a three-judge panel of the Court of Appeals reversed the Industrial Commission’s decision that a worker’s heart injury that occurred hours after he was hit in the chest with a tire was not compensable. While unloading tires for a delivery, he was hit in the chest by a tire that weighed between 100 and 200 pounds. The owner transported him to an urgent care center because he had turned gray and was uncharacteristically slow, where he was sent to an emergency room. There he was diagnosed with an aortic dissection and a collapsed lung and admitted to the intensive care unit.

He underwent surgery and was told he would have a work restriction of being unable to lift more than 40 pounds indefinitely, and was diagnosed with major neurocognitive disorder due to the open-heart surgery, adjustment disorder, and depression. Later, he was rated permanently disabled and unable to work by a treating physician and filed for workers’ comp, which was denied.

The appellate court found that the commission had not adequately considered physicians’ testimony that aortic dissections could be caused by trauma.

No comp for traveling salesman for car accident after celebration with coworkers – Pennsylvania

In Peters v. Workers Compensation Appeals Board (WCAB), a traveling salesperson drove past his house on his way to a happy hour with colleagues and was injured in a car accident when returning home. Although he argued that he was traveling home from a work-sponsored event in a work van, and that as a traveling employee, his accident should be compensable, a judge, the WCAB, and the Commonwealth Court disagreed. It found that the gathering was not furthering the interest of the employer, but rather was a social gathering. Further, while a traveling employee is presumed to be within the course and scope of employment when he is driving to or from work, he had abandoned his employment by driving past his house on his way to the happy hour with colleagues.

Failure to use an automated external defibrillator not breach of duty – Pennsylvania

In Desher v. Southeastern Pennsylvania Transportation Authority, an appellate court judge affirmed a trial court ruling denying the guardian of a worker, who suffered a cardiac arrest and a subsequent brain injury at work, damages under the Federal Employers Liability Act (FELA). The guardian claimed the former employer was liable for the incident for not administering an automated external defibrillator (AED).

While the company had an AED within 100 yards of the incident, it did not use it and paramedics arrived within two minutes and used one. There was no evidence suggesting a heightened risk of cardiac events for employees or that it provide assistance in the form of an AED.

Continuing denial of opioids affirmed – Pennsylvania

In Jason Golembesky v. Workers’ Compensation Appeal Board (Worth & Co. Inc.), a manufacturing worker had been on high doses of opioid oxycodone since his injury in 2010. In 2016, the employer filed a utilization review petition, and the reviewing doctor opined that the opioid prescription was excessive. The worker filed a petition for review of the findings, arguing he had tried alternative methods of controlling the pain, which had not worked. The employer also presented evidence from an independent review doctor who noted the worker was taking massive dosages, essentially three times what is considered a high dose of morphine equivalent.

A WCJ and the WCAB found the opinions of the independent reviewers more credible than those of the worker’s providers.

More than ten years after injury, worker awarded benefits for right knee condition – Virginia

In Nanochemonics Holdings, LLC v. McKinney, a worker sustained a work-related left knee injury. More than ten years later, he filed a claim for a right knee condition. Stressing that the employer is responsible for all sequelae that flow from the primary work-related injury, an appellate court affirmed the award benefits, noting that the problem was caused, at least in part, by an altered gait brought about by his earlier left knee injury. While it acknowledged that the worker was morbidly obese, this did not amount to a sufficient break in causation.

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