Legal Corner

FMLA
ABA’s summary of 2019 FMLA decisions

Each year, 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 November 1, 2018 through October 31, 2019 in a user-friendly manner.

 

Workers’ Compensation
“Borrowed servant” provisions prevent temporary worker’s tort action against employee – Georgia

In Sprowson v. Villalobos, Waste Pro USA entered into a contract with Labor Ready for providing temporary employees to perform work under Waste Pro’s general or direct supervision. A temporary employee was working on a sanitation truck driven by a Waste Pro employee when he was pinned between the truck and a tree. He received comp benefits from Labor Ready and filed tort action against Waste Pro and the driver of the truck.

A judge dismissed the case against Waste Pro, noting it was barred by the exclusive remedy provisions, but allowed the case against the driver to proceed. The Court of Appeals found that the driver was “an employee of the same employer” and, thus, was protected by the exclusive remedy provisions. The court explained that even if the worker works for a different employer, when he is a “borrowed servant,” he is the co-employee of the borrowing employer’s regular employees, even though temporarily.

 

Case to watch: Worker who died from COVID-19 sues Walmart – Illinois

The family of a Walmart worker who died from complications of COVID-19 is suing the retailer in Estate of Wando Evans vs. Walmart, Inc. Four days after her death, another employee at the Chicago area store died of complications from COVID-19 and other employees exhibited symptoms. The case alleges that the retailer failed to cleanse and sterilize the store, failed to adhere to social distancing guidelines, failed to provide proper PPE, failed to notify employees of known cases, failed to follow OSHA and CDC guidelines, failed to provide employees with soap and wipes, failed to train personnel to minimize threat of COVID-19, failed to monitor employees for symptoms, and hired by phone without verifying they did not have the virus.

 

Additional evidence allowed to support claim of mental injury – Missouri

In Department of Transportation v. Labor and Industrial Relations Commission, a worker for the Department of Transportation (DOT) worked for more than 20 years responding to accident scenes. Her case went through several appeals and ultimately the Supreme Court vacated the finding of compensability, noting that the wrong standard was applied to determine if the work-related stress was “extraordinary and unusual.”

The case was remanded with the directive to review the case against the proper standard, “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.” In turn, the worker filed a motion to submit additional evidence and the DOT filed a request for writ relief, which was denied by the courts.

 

High court denies benefits for injury at doctor’s office – Missouri

In Schoen v. Mid-Missouri Mental Health Ctr., a charge nurse had a reaction to an insecticide that was sprayed around air conditioning units to control ants. The health center sent her to a physician for an evaluation. As she was being escorted by the doctor to a pulmonary function test, the doctor tried to divert a dog and accidentally tripped the nurse. She fell and allegedly sustained permanent injuries to her knees, lower back, hip, and neck, although the physician completed his exam and found she could return to regular duty.

The case made its way to the Supreme Court. Although the employee argued that her tripping injuries were the natural consequence of her cypermethrin exposure, the Court found that the risk of being tripped accidentally was a risk to which she was equally exposed outside of her employment.

 

Future wage replacement benefits denied because of misrepresentation – New York

In Matter of Teabout v. Albany County Sheriff’s Dept., an appellate court confirmed a WCLJ’s and WC Board’s ruling that an employee could not receive future wage replacement benefits because she had misrepresented her work activities and failed to disclose important information to the examining physician. The worker had sustained a foot injury and received a permanent total disability classification. However, while she denied working following the injury, she was running a photography business.

Further, she had denied any psychiatric history prior to her work accident, as well as any family psychiatric history. Based on those denials, the treating physician diagnosed adjustment disorder with a depressed mood that was causally related to her 1997 injuries. However, later the physician received medical records that revealed a strong history of psychiatric issues.

 

Traveling employee rules lead to benefits for traumatic brain injury – New York

In Matter of Wright v. Nelson Tree Serv., an appellate court affirmed a decision by the Workers’ Compensation Board that awarded benefits to a worker who suffered a traumatic brain injury in a motor vehicle accident. The tree service worker was assigned to various locations, sometimes over six hours from his home when he opted to stay at a local hotel for the workweek. He was paid a per diem for food and lodging.

He and his coworkers would drive from the hotel to the same parking lot to pick up a bucket truck and proceed to the designated work site. En route to the parking lot, he was seriously injured. While a WCLJ found the injury was not compensable, the Board reversed and the Appellate Court agreed. It applied the traveling employee exception, where injuries may be compensable even if the employee at the time of the accident was not engaged in the duties of his or her employment, provided that the employee was engaged in a reasonable activity.

 

Traveling employee’s fall in hotel laundry room not compensable – North Carolina

In McSwain v. Industrial Commercial Sales & Serv., LLC, a worker was part of a crew working on a project in California. They finished a day early, but the company opted not to change their flight due to the high cost. On the day off, one worker started a load of laundry then joined his coworkers on the patio for some drinks. When he returned to retrieve his laundry he slipped on a wet spot and fell in the hotel lobby and filed a WC claim.

The Court of Appeals upheld the denial of the claim. While the court noted that when employees are required to stay overnight away from home, they are treated as being within the course of their employment for the duration of the trip “except when a distinct departure on a personal errand” is shown. Doing the laundry was not considered a personal need, such as eating a meal.

 

Court overturns worker’s reinstatement petition – Pennsylvania

In Communication Test Design v. WCAB (Simpson), the Commonwealth Court held that a WCJ erred in granting a worker’s reinstatement petition and awarding unreasonable contest fees. The employer accepted liability for medical bills for an eye laceration. Soon after the company began paying disability benefits, it stopped and denied that the employee suffered a work injury.

The worker argued the company failed to issue a notice that it was stopping its payment of benefits within five days after the last payment of temporary compensation. However, the court found that there was no evidence to prove this and the act provides no remedy for non-compliance. Moreover, the worker had never established disability prior to the filing of the Reinstatement Petition and it was his burden to establish his right to reinstatement. The court noted, the employer not only contested the Reinstatement Petition, but it also proved that the worker did not suffer a disability. Accordingly, the WCJ erred by awarding unreasonable contest fees.

 

Injuries not compensable caused by “Act of God” – Virginia

In Sylvia Martin v. Virginia Beach Schools and Corvel Corp., a school security guard fell when a gust of wind suddenly caused a metal gate, through which she had just passed, to close behind and strike her. The guard, who was on work restrictions from an earlier fall, filed a claim more than four months after the second incident, asserting that she had landed on her left side, injuring her left leg, left hip, ribs, back, neck, left hand, and right hand.

The Workers’ Compensation Commission denied the claim and the appeals court affirmed. Applying the “risk test,” the Commission noted that she did not face a risk that was any greater than the public at large. The fall was caused by a natural wind force which, standing alone, had to be considered an “act of God.”

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

NSC report addresses how existing technologies can save lives and reduce serious injuries

Although workplace injuries are trending down, workplace fatalities are rising. While a fatality may seem like an impossibility at your workplace, 5,250 workers died on the job in 2018 – on average, more than 100 a week or more than 14 deaths every day. The worst part is that most of these deaths were preventable. Not only is a fatality a tragedy, but it also can have a long-lasting effect on the emotional health, productivity, and attitude of the workforce.

In its first Work to Zero research report, Safety Technology 2020: Mapping Technology Solutions for Reducing Serious Injuries and Fatalities in the Workplace, the National Safety Council (NSC) looks at 18 different non-roadway, hazardous situations in which workers are most likely to die and provides anywhere from five to eight potential technology solutions for each situation.

The top four hazardous situations and corresponding technologies identified in the report include:

  • Work at height: This includes deaths resulting from falling to a lower level, falling objects, and injury from the sudden arrest of a lifeline. Contributing to these risks are worker behavioral failures, leadership failure, and scaffolding/platform failure. Top technology solutions include mobile anchor points, aerial lifts and platforms, and self-retracting lines.
  • Workplace violence: This includes deaths resulting from intentional physical violence to a colleague, weapon violence, and violence due to robbery. Contributing to these risks are lack of workplace awareness, lack of training or supervision, and lack of security measures. Top technology solutions include real-time response management mobile apps, video cameras, and wearable or mobile-app based panic buttons.
  • Repair and maintenance: This includes deaths resulting from machine energization, being struck by machinery, or being entangled in machinery. Contributing to these risks are lack of training or supervision, fatigue, and machinery malfunction. Top technology solutions include machinery cutoff light curtains, power management systems, and permit to work technologies.
  • Construction and Installation: This includes falls to a lower level, control of energy, and electrocution. Contributing to these risks are leadership failure, lack of training, and lack of workplace awareness. Top technology solutions are VR and digital training, proximity sensors, and fall protection kits.

Other hazardous situations addressed in the report are logging equipment operation, tending a retail establishment, electrical work, emergency response, vehicle-pedestrian interactions, process safety operations, cleaning, loading and unloading, confined space entry, inspections, heavy equipment operation, excavation, machinery operation, and hot work.

Download report.

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

Legal Corner

ADA

Construction company pays $100K for firing worker with epilepsy

A Bellingham, Washington company, formerly doing business as Diamond B Constructors, Inc. and its successor, Harris Companies, will pay $100,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). A pipefitter, who also holds a rigger’s certification, was dispatched by her union to work on a project. When she told her supervisor that she has epilepsy, he and other supervisors determined she could not work safely at heights and terminated her. She had not requested accommodations, had no medical restrictions, and her epilepsy was well controlled by medicine.

The law requires employers to make a case-by-case assessment of an employee’s ability to perform the job when safety concerns exist. EEOC Seattle Field Director Nancy Sienko said, “Epilepsy reportedly affects 2.2 million Americans and affects each person differently. It is critical that employers not base job decisions on stereotypes, but instead carefully consider each individual’s abilities.”

FMLA

FMLA doesn’t provide protection for employees to evaluate family member’s medical condition

In Schaar v. U.S. Steel Corp., a manager in the customer quality engineering department, who lived in Michigan, was aware of problems with a top customer in Mississippi. When the matter became urgent, he was onsite in Tennessee and was ordered to travel to Mississippi to handle the problem himself. He refused because his wife had a heart condition and wasn’t feeling well and he had to return to Michigan to assess the situation. When he arrived home, he determined his wife did not require medical attention.

Returning to work the next day in Michigan, he was fired for insubordination. The manager sued under the FMLA for both interference and retaliation. The U.S. District Court for the Eastern District of Michigan ruled in favor of U.S. Steel on its motion for summary judgment on both claims. The manager never requested FMLA leave or a reduced work schedule to care for his wife.

Distinguishing between providing care to a family member and evaluating a family member’s condition, the court determined he was not providing care and was not entitled to FMLA leave.

Workers’ Compensation

Comp settlement bars claim for disability discrimination – California

In an unpublished decision, Kennedy v. MUFG Union Bank, a bank employee claimed she worked in a hostile work environment and took a medical leave for stress, anxiety, and depression. While she was out, the bank restructured and eliminated her position. Unlike others, she did not receive a severance package.

Her request to return on a reduced work schedule was denied because the position was eliminated, so she filed a comp claim. When it was settled, she resigned voluntarily. She then filed suit based on disability and her race. The court argued there could be no wrongful termination because she was not terminated and that the record demonstrated a legitimate, nondiscriminatory reason for the increased supervision.

Employer not liable for fatal accident caused by injured employee – California

While commuting to work, an employee of the City of Los Angeles struck and killed a pedestrian. A chemist who worked in the lab, the employee did not use his car for employment. He did have a neurological condition and had fallen at work, suffering a back sprain. After some time off, he was allowed to return to work with restrictions. About three weeks later he was driving to work and struck and killed a pedestrian. Initially his license was suspended, but it was reinstated and he was not charged.

Two brothers of the deceased argued the city should be held responsible because it knew of his condition and allowed him to return to work prematurely, so the “work-spawned risk endangering the public” exception to the going and coming rule applied. The court disagreed and found the chemist was on his commute to work and the accident was unrelated to his employment.

Exclusive remedy defense in civil suit allowed in spite of comp denial – Florida

In McNair v. Dorsey, an appellate ruled that the employer’s denial of liability for a comp claim did not prevent it from using the exclusive remedy defense in a civil case. The employee worked for James Armstrong’s tree service company and was working with a coworker, Dorsey, when he alleged he suffered injuries. The insurance company found that there was no compensable claim. He then voluntarily dismissed the comp claim and alleged negligence on the part of both Armstrong and Dorsey, arguing the exclusive remedy defense did not apply since his claim had been denied.

While a trial court found in favor of the employer, the appellate court noted an employer can be barred from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim “by asserting that the injury did not occur in the course and scope of his or her employment.” However, the court noted that the employer is not always foreclosed from claiming immunity to a lawsuit simply because it denied compensability in an earlier proceeding.The factfinder needs to determine if the accident occurred in the course and scope of employment and would have been covered by workers’ comp and protected by exclusive remedy.

Worker who filed comp claim after being fired can bring retaliatory discharge suit – Florida

In Salus v. Island Hospitality Florida Management Inc. a worker reported an injury and later told the employer he was having difficulty getting follow-up treatment. Two weeks later he was fired, allegedly for threatening physical harm to a co-worker, which he denied. He filed suit for retaliatory discharge. The trial court found that reporting an injury was not the same as filing a claim and granted summary judgment to the employer.

The appellate court disagreed. It noted it would not make sense to limit the statute to retaliatory acts that occurred after filing the claim because an employer could easily avoid liability by firing the employee right away. Further the employee’s actions were consistent with a workers’ comp claim that is protected. Since there was a genuine issue of material fact as to the reason for termination, summary judgement was inappropriate.

Health care providers can’t go after comp settlement – Illinois

After an injured employee filed for bankruptcy protection for minimal assets and her pending workers comp claim ($31,000), the state Supreme Court ruled that the proceeds of a workers comp settlement are exempt from claims made by medical providers who treated the injury or illness in re Hernandez. She owed a combined $138,000 to the three medical practices.

Section 21 of the statute provides that any payment, award or decision under the Workers’ Compensation Act is unequivocally free from claims to satisfy debt; however, the health care providers argued that amendments in 2005 provide an exception to the exemption. The court disagreed, noting there was “no ambiguity whatsoever in this provision.”

Employer does not have to pay for rehab after injury is resolved – Minnesota

In Ewing v. Print Craft Inc., an employee sprained his ankle and there was medical disagreement as to whether he developed complex regional pain syndrome (CRPS). His primary care provider and podiatrist found he had, but doctors at the Mayo Clinic disagreed and said the injury was resolved. He met with a rehabilitation consultant who prepared a rehabilitation plan and submitted it to the Department of Labor and Industry and also provided medical management services to address Ewing’s reported symptoms.

Although the insurance company notified her that they were requiring an IME and would not pay for any further services, the consultant continued to provide services. The IME found that the employee had suffered an ankle sprain and did not have CRPS. A compensation judge held the injury was resolved on the date provided by the Mayo Clinic. The consultant appealed and the WC Court of Appeals overturned, noting the print company needed to provide notice and show good cause to terminate the rehabilitation plan.

The Supreme Court reversed, noting an employer’s liability ends when the worker is no longer disabled.

Worker who intentionally shot self with nail gun denied comp – Nebraska

In Eddy v. Builders Supply Co. Inc., an employee said a nail gun misfired and caused a three-quarter-inch nail to become embedded in her right temple. There were no witnesses. While co-workers testified that guns had misfired in the past, the company presented evidence regarding her personal life and a possible suicide note. The compensation court found that the employee shot herself intentionally and the Supreme Court agreed.

Misrepresentations about job search nix benefits – New York

In Matter of Calabrese v. Fortini Inc., an appellate court upheld a finding that a worker had made misrepresentations about his efforts to find a new job, thereby forfeiting his entitlement to benefits. The employer’s investigator contacted several of the employers identified by the worker and found he had not submitted an application, applied for a job that did not exist, or the contact did not exist.

Although the appellate court acknowledged that this evidence was hearsay, it was sufficiently reliable and provided substantial evidence to support the Workers’ Compensation Board finding that the worker had made false representations to obtain benefits.

Award of benefits for unwitnessed and unexplained fall upheld – New York

In Matter of Docking v. Lapp Insulators LLC, a truckdriver was loading a cart when he apparently fell and was found unconscious and bleeding by co-workers. When he regained consciousness, he had no memory of what happened. Under state law, there is a presumption of compensability for accidents occurring during the course of employment, which are unwitnessed or unexplained, and he was awarded benefits by a compensation law judge.

Upon appeal, a state appellate court noted to rebut the presumption, it is the employer’s burden “to provide substantial evidence that the accident was not work-related.” While the employer presented medical testimony that the fall and resulting brain injury were caused by a preexisting cardiovascular condition, the Emergency Room doctor testified that there were no signs of heart damage or atrial fibrillation. The possibility of a preexisting, idiopathic condition was not enough to overturn the decision.

Assaulted bus driver not fully disabled by PTSD and morbid obesity – New York

In Matter of the Claim of Robert Rapaglia v. New York City Transit Authority, the Supreme Court Appellate Division affirmed a Workers Compensation Board decision that the driver had a 60% loss of earning capacity but was not fully disabled. The bus driver argued that the board failed to consider his obesity and limited education and work experience in calculating his percentage of lost wage-earning capacity.

The court noted that in rating the severity of a medical impairment due to PTSD or other causally-related psychiatric conditions, “the evaluation should include the impact of the psychiatric impairment on functional ability, including activities of daily living.” While there was conflicting medical testimony, the court found the Board had not erred in finding that he could not drive a bus, but was capable of other work, nor could it conclude that his obesity was causally related to the workplace injury.

Employer may have to pay for expensive compound cream – Pennsylvania

In Workers’ First Pharmacy Services LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Gallagher Bassett Services), the Commonwealth Court ruled that a pharmacy did not prematurely file a fee review petition to challenge an employer’s refusal to pay for a compound cream that had been prescribed to an injured employee. The employee had injured her shoulder and the comp claim was accepted. Her physician prescribed a compound cream, which the pharmacy dispensed and billed the employer $4,870.

The employer refused to pay, and the pharmacy filed a fee review application, which the employer argued was premature because it had not been established that the cream was related to the work injury. However, the pharmacy argued that company waived its right to challenge the cream as unrelated because it did not seek a Utilization Review (UR).

After several appeals, the Commonwealth Court ruled that employers or insurers must make payments to providers for treatment within 30 days unless there is a dispute as to the reasonableness or necessity of the treatment, in which case the payer may seek a UR. The court vacated the decision and remanded for a fee review determination.

Widow and children to receive death benefits for fatal workplace stabbing – Pennsylvania

In JBS Holdings USA Inc. v. Workers’ Compensation Appeal Board, a worker was stabbed to death by a co-worker. While the company argued that the murder was related to a “personal animus” and not work-related, the court ruled there was no evidence of personal animosity. The ruling was upheld upon appeal.

Temporary worker who experienced horrific injuries fails to win tort lawsuit – Tennessee

In Henry v. CMBB LLC, the 6th U.S. Circuit Court of Appeals held in a 2-1 decision that the employee’s intentional tort lawsuit was barred by the exclusive remedy provision of the Tennessee Workers Compensation Act. The temporary worker was assigned to work at a manufacturing facility and operated a 200-ton metal press, which contains a light curtain that prevents it from cycling when it detects a worker nearby. An operator had reported that the curtain was not working properly and one was on order, but the press remained in service.

The temp worker was operating the press when the machine cycled, crushing her arms, both of which were amputated below the elbow. She and her husband filed a lawsuit arguing the company intended to injure her because it was well aware of the danger but continued to operate the machine. The courts, however, noted that even if the employer was aware of the potential for injury, it does not mean the employer intended to injure the worker. Precedent has held that even egregious safety violations fail to show actual intent to injure and the exclusive remedy provision prevails. In Tennessee, the intentional tort exception is quite narrow.

Two years apart, injuries can stem from same accident – Virginia

In Merck & Co. v. Vincent, a worker injured his neck and arm in 2009. In 2011, he became dizzy and fell as a result of pain medication, seriously injuring his knee. The Court of Appeals upheld the Workers’ Compensation Commission ruling that the injuries arose from “the same accident” for purposes of determining whether he was permanently and totally disabled. The Virginia statute provides for an award of permanent total disability benefits to a worker who has suffered the functional loss of two limbs “in the same accident.”

The court noted the “compensable consequence” doctrine, which says that if an injury arises out of and in the course of employment, “every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.”

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

 

OSHA watch

Citation penalties increase for inflation

Effective January 15, the DOL increased civil penalty amounts for violations to adjust for inflation by 1.01764%. Here are the new maximum penalties:

Type of Violation Penalty Minimum Penalty Maximum
Serious $964 per violation $13,494 per violation
Other-than-Serious $0 per violation $13,494 per violation
Willful or Repeated $9,639 per violation $134,937 per violation
Posting Requirements $0 per violation $13,494 per violation
Failure to Abate N/A $13,494 per day unabated beyond the abatement date (generally limited to 30 days)

Coronavirus resource

An online resource on a new coronavirus outbreak that includes a link to the Centers for Disease Control and Prevention interim guidance, quick facts about the outbreak, and information on preventing exposures is available.

Letter of interpretation addresses headphones in workplace

Although there is no specific regulation that prohibits the use of headphones on a construction site or any other workplace, there are permissible noise exposure limits under the Hearing Protection standard and employers must protect employees subject to sound levels exceeding these limits. While the letter acknowledges that some manufacturers promote their products as “OSHA-approved” or “OSHA-compliant,” these are misleading as the agency does not register, certify, approve, or otherwise endorse commercial or private sector entities, products, or services. It further cautions that the use of headphones may produce a safety hazard by masking environmental sounds that need to be heard and it is the employer’s responsibility to protect workers from such hazards.

Earthquake safety resource

A new Earthquake Hazard Alert focuses on keeping emergency response workers safe.

Recent fines and awards

California

  • In Nolte Sheet Metal Inc. v. Occupational Safety and Health Appeals Board, the Court of Appeals, 5th District in Fresno unanimously affirmed citations for four serious violations, although the file prepared by the Cal/OSHA office on the day of the inspection was later taken during a car burglary. The company had argued it did not consent to an inspection, the lack of the original inspection file amounted to spoliation and denied the company due process, and the violations were improperly classified as serious.

Georgia

  • In Packers Sanitation Services Inc. v. Occupational Safety and Health Review Commission, the 11th U.S. Circuit Court of Appeals in Atlanta unanimously upheld an administrative law judge’s finding that the company failed to protect its employees from dangerous machinery.

Florida

  • The U.S. Court of Appeals for the 11th Circuit has found a Jacksonville-based roofing contractor, Travis Slaughter owner of Great White Construction Inc. and Florida Roofing Experts Inc, in contempt for failing to pay $2,202,049 in penalties. The court ordered the companies and Slaughter to pay the outstanding penalties of $2,202,049 plus interest and fees, and required them to certify that they had corrected the violations within 10 days of the court’s order. If the companies and Slaughter fail to comply, they face coercive sanctions, including incarceration and other relief the court deems proper.
  • In addition to the above, Florida Roofing Experts Inc. was cited for failing to protect workers from falls at two work sites in Fleming Island and one in Middleburg. Roofing Experts Inc. faces penalties totaling $1,007,717.
  • Inspected under the Regional Emphasis Program for Falls in Construction, CJM Roofing Inc., based in West Palm, was cited for exposing employees to fall and other hazards at three residential worksites in Royal Palm Beach and Port St. Lucie. The contractor faces penalties totaling $291,724.
  • An employee of Shooting Gallery Range Inc. in Orlando will receive $30,000 in back pay and compensatory damages under a whistleblower settlement. The employee alleged he was fired for reporting safety concerns relating to lead exposure.

Illinois

  • Goose Lake Construction Inc. was cited after an employee suffered serious injuries when an unprotected trench collapsed, burying him up to his waist at a Glencoe, worksite. Proposed penalties are $233,377.

Massachusetts

  • National retailer, Target Corp., was cited for emergency exit access hazards at stores in Danvers and Framingham and faces a total of $227,304 in penalties.

Pennsylvania

  • Webb Contractor Corp. was cited for exposing employees to fall hazards at three separate worksites in the Lehigh Valley area. Inspected after a compliance officer observed employees performing residential roofing work without protection, the roofing contractor, based in Bala Cynwyd, faces $605,371 in penalties.
  • Metarko Excavating LLC was cited for exposing employees to trenching hazards at a Cranberry Township worksite. The company faces $59,311 in penalties.
  • Philadelphia Energy Solutions was cited for serious violations of safety and health hazards related to process safety management (PSM) following a fire and subsequent explosions at the company’s Girard Point Refinery Complex in Philadelphia. The company faces $132,600 in penalties.

Wisconsin

  • Milwaukee Valve Company Inc., based in Prairie du Sac, was cited for exposing employees to lead and copper dust at rates higher than the permissible exposure levels. Proposed penalties are $171,628.

For additional information.

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

Understanding and combating medical provider fraud in Workers’ Compensation

While many employers have good antennae to identify employee claim fraud, medical provider fraud can be more difficult to detect, but packs a stronger financial punch. A recent article in the Insurance Journal, “Medical Provider Fraud: The Most Common Schemes to Watch For” reports that according to California’s Department of Industrial Relations, which has been at the forefront of fighting medical provider fraud in recent years, the most common schemes include:

Fraudulent Billing and Billing Codes. The medical provider bills for visits or services that never occurred, billing both the workers’ comp payor and the employee’s health insurance for the same services, double-billing, billing separately for claims that are normally covered by a single fee, or using an incorrect billing code to charge more.

Unnecessary Treatments. The medical provider performs unnecessary treatments, examinations or procedures to profit from them.

Illegal Kickbacks. Working with other providers and receiving undisclosed payments or other benefits for making a referral.

Soliciting. Working with runners, cappers or steerers to solicit or obtain injured workers for the medical provider.

Pharmaceuticals and Medical Equipment. Pharmacies providing generic drugs and billing for brand-name prescriptions, billing for medical equipment that was never dispensed, or selling used medical equipment as new to upcharge.”

The unethical providers can be part of a “claims mill” when marketers, doctors, lawyers, and medical providers work together to maximize their income. One of the most famous, Operation Spinal Cap, involved a scheme that stretched over 15 years and originated in Southern California. The scheme billed workers’ compensation insurers hundreds of millions of dollars for spinal surgeries on patients who had been referred by doctors and others who typically got illegal kickbacks of $15,000 per patient. In addition to the monetary cost, over 160 patients have filed lawsuits, many of them experiencing excruciating pain as a result of the surgery.

Lone providers can also be offenders. In some cases, billing patterns of upcoding therapeutic procedures and exercise can be subtle, but when extrapolated over hundreds of claims, can drive incremental revenue.

The good news is that many insurance companies have adopted data technologies that cut the time needed to recognize fraud. But employers still have an important role to play. The best ways to help combat medical provider fraud, as well as ensure the best outcome for your injured worker, are:

  • Partner with occupational medical providers who can diagnose and treat workers’ injuries effectively and familiarize themselves with the specific conditions of your workplace to create a practical, effective treatment plan that returns an injured employee to work quickly and safely. Educate employees on the value of working with such providers.
  • Stay focused on your Recovery-at-Work program.
  • Communicate with your injured employees to determine if they have concerns about their treatment. Encourage second opinions by qualified physicians if surgery is recommended.
  • Recognize delayed recovery problems, unusual treatments, increase in frequency of appointments, excessive billing early and report to the claims adjuster.
  • Be aware of trends. It’s a red flag if the same medical providers and law teams are working on problematic claims.
  • Report any suspicions of medical provider fraud.

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 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.

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