Legal Corner

Workers’ Compensation
Contractor cannot be sued for death of subcontractor’s employee – California

In Sherry Horne et al. v. Ahern Rentals, Inc., an employee of 24-Hour Tire Service Inc. was crushed to death while changing a tire on a forklift. His family received workers’ comp death benefits and sued Ahern Rentals, alleging that it had contributed to the collapse of the forklift by failing to provide a stable and level surface, allowing the tire change to proceed with the forklift’s boom raised, and failure to train employees.

However, an appeals court noted that to be liable the contractor had to actively direct the contractor or contractor’s employee to do the work in a particular way. It noted that “passively permitting an unsafe condition does not amount to actively contributing to how the job is done.”

85-year-old precedent upended by Supreme Court – Georgia

In Frett v. State Farm Employee Workers’ Compensation, an insurance claims associate slipped and fell in the break room while taking her mandatory lunch break. An appeals court had found that the injury was not compensable because it took place on her lunch break, and therefore, did not arise out of her employment, but out of a purely personal matter. This followed the reasoning of a 1935 decision regarding “off-the-clock” injuries.

However, the Supreme Court found that she was injured on the premises of her employer, in the middle of her workday, while preparing to eat lunch. This activity, being reasonably necessary to sustain her comfort at work was, “incidental to her employment and is not beyond the scope of compensability under the Act.” Acknowledging the similarity to the 1935 “Farr” case, the court said the reasoning of Farr was unsound, and it was “completely untethered from the analytical framework consistently employed by this Court in workers’ compensation cases for nearly a century.”

One time change of physician rule bumped to Supreme Court – Florida

The First District Court of Appeal, in City of Bartow v. Flores, ruled that under statute 440.13(2)(f), which allows for a one-time change of physician, it isn’t enough for an employer/carrier (E/C) to provide the name of the alternate physician within five days as specified in the statute. The court held, that it must supply access to the physician by setting up an appointment and inform the injured worker of that date.

In this case, the worker was not notified of an appointment for 56 days. Therefore, the court determined he could be treated by the physician of his choice.

Noting the importance of this decision, the appellate court certified to the Supreme Court the question of whether an E/C’s duty to furnish timely medical treatment under 440.13(2)(f) is fulfilled solely by timely authorizing an alternate physician for treatment, or whether the E/C must actually provide the injured worker an appointment date with the authorized alternate physician.

Judge rules on class-action lawsuit of McDonald’s employees related to COVID-19 – Illinois

In Massey v. McDonald’s Corp, Chicago-area McDonald’s workers sought to require the company and the franchises named in the complaint to comply with health guidance and provide proper protective equipment for workers. A judge found that two of the franchises named in the suit failed to comply with the Governor’s Executive Order on mask requirements and failed to properly train workers on social distancing.

Although the judge found the franchisees provided sufficient masks, gloves and sanitizer to workers and adequately monitored virus cases and symptoms among employees, she ordered the store owners to enforce all mask-wearing policies when employees are not six feet apart and to train workers on social distancing.

Out-of-state worker cannot file tort suit in Missouri – Missouri

In Hill v. Freedman, an employee of the University of Kansas School of Law was riding with her supervisor to a work-related event in Missouri. During the drive an argument ensued and the supervisor alleged slammed the vehicle into a concrete barrier when he parked the car. She received workers comp benefits for her injuries through the Kansas system.

A few years later she sued the supervisor in a Missouri state court. The court of appeals noted Missouri follows the law of the state where a worker has been compensated, so Kansas law governs all the issues related to her injury. Under Kansas law, a worker who recovers benefits for an on-the-job injury from an employer cannot maintain a civil action for damages against a fellow employee.

Attorney fee awards clarified – Nebraska

In Sellers v. Reefer Systems, Inc., the Supreme Court ruled that an appellate decision erred in denying attorney fees to an injured worker because the affidavit did not provide details of the fee agreement. State statute 48-125(4)(b) states that reasonable attorney fees will be allowed to the employee by the appellate court if the employer appeals a workers compensation award and fails to obtain a reduction in the awarded amount.

The court determined that reasonable attorney fees do not depend on the terms of the fee agreement, but on the extent and value of the services provided. In this case, the affidavit contained sufficient justification to make a meaningful determination of the reasonable attorney fees to which the employee was entitled.

Son’s death does not meet exception of workers compensation – New York

In Smith v. Park, a 14-year-old boy who was working illegally died while operating a skid steer. The farm accepted the injury claim and was directed by the workers compensation board to pay increased death benefits as a result of the illegal employment. The mother filed a lawsuit against the farm claiming the owner engaged in criminal conduct that was related to her son’s death. The court found that although the owner may have been negligent in his supervision, there was no evidence that he acted out of “a willful intent to harm.”

Reckless driving not enough to nix claim – New York

In McGee v. Johnson Equip. Sales & Serv., a truck driver was injured in a rollover crash as she exited the highway at a speed of 67 mph in a 35-mph speed limit zone. The carrier and employer contented that she willfully intended to injure herself. It also contended that there was cocaine in her system, but there was no evidence of the level of cocaine or when it was ingested.

While the court noted that benefits will not be awarded for deliberate injuries, there is a presumption that a worker is entitled to benefits. It can be overcome by substantial evidence, but the employer did not meet the burden of proof.

Decision to be stay-at-home Dad nixes benefits – Pennsylvania

In Respironics v. Workers’ Comp. Appeal Bd.(Mika), the Commonwealth Court upheld a WCJ ruling that had been reversed by the WCAB suspending the employee’s wage loss benefits when he decided to stay at home and care for his children. He resigned from his modified duty position and the employer argued he voluntarily left the workforce.

The worker needed to show that his loss of earning power was due to his injury and not his personal decision to remain out of work. However, he acknowledged that his decision was in part a financial one – his wife had greater earning power and child care expenses could be avoided. The court found that his testimony was enough to establish he had left the job market and benefits had to be suspended after that date.

Irritable bowel syndrome compensable – Virginia

In an unpublished opinion, Farrish of Fairfax and VADA Group Self-Insurance Association v. Faszcza, the Court of Appeals unanimously affirmed a Workers Compensation Commission decision granting workers compensation benefits to a worker who contended he developed Crohn’s colitis, a type of inflammatory bowel disease (“IBD”), as a result of taking medications prescribed for a work-related foot infection. He suffered from diabetic neuropathy and, at the time of his injury, did not realize he had stepped on an automotive fastener and injured his foot.

His injury became infected and required prolonged antibiotic use, which according to a physician, contributed to his IBD. An appellate court affirmed the Commission’s decision of compensability, noting that there was credible evidence supporting the assertion that the IBD was a result of the puncture wound.

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

Controlling workers comp costs: insights from five studies

Study: 2020 workplace safety index – Liberty Mutual Holding Co. Inc.

Findings: Each year this study researches the top 10 causes of the most serious workplace injuries, those that cause employees to miss work for more than five days, and ranks the causes by their direct cost to employers, based on medical and lost-wage expense. Further, it drills down this data for eight specific industries: construction, health care and social assistance, manufacturing, professional services, retail, transportation and warehousing, hospitality and leisure, and wholesale.

Overexertion from handling objects accounted for nearly a quarter of all workplace injuries and cost employers $13.98 billion, according to the index. Falls on the same level accounted for 18% of injuries at a cost of $10.84 billion, and struck-by injuries from objects or equipment made up 10% of injuries, costing $6.12 billion.

Takeaway: This helps employers understand the top risks in the workplace to better allocate safety resources.

 

Study: Top 10 Most Dangerous Jobs of 2020 – EHS Today

Findings: This list of the top ten most dangerous jobs is based on the fatal work injury rate, which is calculated per 100,000 full-time equivalent workers. Loggers were the number one most dangerous profession followed by fishers and related fishing workers.

Takeaway: Rather than looking at the total number of workplace deaths, this study offers a closer look at exactly how often a worker dies while employed in a specific industry. It enables employers to know when the chances of a fatality are high.

 

Study: Motor Vehicle Accidents in Workers Compensation – National Council on Compensation Insurance (NCCI)

Findings: From 2011 to 2016, the frequency of all workers compensation claims decreased by 20.1 percent while claims caused by motor vehicle accidents increased by 4.9 percent. Motor vehicle accident lost-time claims continue to cost over 80% more than the average lost-time claim because such claims tend to involve severe injuries to such body parts as head, neck, and spine. The study points to the rapid expansion of smartphone use as a possible cause.

Takeaway: An effective and consistently implemented distracted driving policy is critical for any business with employees who drive as part of their job.

 

Study: Comparing Physician Services in Workers Compensation and Group Health – NCCI

Findings: Injuries cost more, much more for some conditions, when they’re covered by workers’ compensation rather than group health insurance. Overall, comp costs are about 177% of group health costs. The costs for treatment are only slightly higher than group, but the utilization (number of treatments) is significantly higher.

Takeaway: The author suggests, “Some workers’ compensation claimants and claimant attorneys may find an incentive to seek additional medical care to support wage replacement benefits over a longer healing period or to negotiate a better settlement.” Partnering with an occupation medicine provider can help control the quantity and efficiency of medical services.

 

Study: Biopsychosocial Approach to Identify and Treat At-Risk Injured Workers – One Call Care Management Inc.

Findings: A small percentage of claims (five percent) account for a disproportionate percentage (25 percent) of the costs of physical therapy and rehabilitation. In fact, the average cost associated with that top five percent is more than five times the average cost. These cases are often not identified as problematic until after a treatment plan exceeded the initial guidelines. Predictive analytics can help identify at-risk workers early in the process and lead to an intervention plan that improves outcomes.

Takeaway: Share all you legally can about an injured worker’s type of work and medical history that can help flag at-risk cases.

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

Things you should know

Database of EPA-approved disinfectants for COVID-19 pandemic available via app

The Environmental Protection Agency has released its List N Tool, a new web-based application (app) that allows smartphone users and others to quickly identify disinfectant products that meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.

States without fee schedules pay more

The Workers’ Compensation Research Institute’s (WCRI) medical price index study found states with no workers’ compensation fee schedule pay higher prices for professional services. In states without fee schedules, including Indiana, Iowa, Missouri, New Hampshire, New Jersey, and Wisconsin, prices paid for professional services were between 42% and 174% higher than the median of study states with fee schedules.

Similarly, outpatient hospital payments are higher and growing at a faster rate in states without fee schedules. Comparing hospital payments from a group of common workers’ comp outpatient surgeries in 36 states from 2005 to 2018, WCRI researchers found that states that paid a percentage of charge versus a fixed-amount fee schedule paid as much as 168% more per surgical episode than the median of study states with flat-rate fee schedules in 2018.

Top 10 private industry occupations with the largest number of injuries and illnesses, 2018

The Insurance Information Institute released its list of the top ten private industry occupations with the largest number of injuries and illnesses. It may surprise you that retail salespeople and registered nurses had more injuries than construction laborers.

FMCSA final rule amends trucker hours-of-service regulations

The Federal Motor Carrier Safety Administration has unveiled a highly anticipated final rule the agency claims will add flexibility to hours-of-service regulations for commercial truck drivers.

CMS releases new WCMSA reference guide

The Centers for Medicare and Medicaid Services (CMS) released its latest version of the WCMSA reference guide version 3.1 (May 11, 2020). The link to the CDC life table has been updated to the current CDC life table (2017) CMS has been using as of April 25, 2020, to calculate an injured worker’s life expectancy for Workers’ Compensation Medicare Set-Aside. It should only result in minor differences.

Electrical safety group creates infographic for people working from home

Aiming to promote electrical safety among people who are working from home during the COVID-19 pandemic, the Electrical Safety Foundation International has published an infographic.

“Dirty Dozen” list of 12 most egregious employers focuses on coronavirus response

The National Council for Occupational Safety and Health (National COSH) releases the report each year and this year focused on companies and organizations that allegedly are failing at preventing their employees from exposure to the novel coronavirus.

Updated COBRA Model Notice issued

On May 1, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued revised COBRA model notices (both the general notice and the election notice), along with brief Frequently Asked Questions related to the Consolidated Omnibus Budget Reconciliation Act (COBRA).

State News

California

  • Insurance Commissioner Ricardo Lara issued an order requiring insurers to provide an adjustment to the premium in the form of a premium credit, reduction, return of premium, or other adjustment as soon as possible and no later than Aug. 11, 2020. The order covers insurance lines including workers’ compensation, commercial automobile, commercial liability, commercial multiperil, medical malpractice, and any other insurance line where the risk of loss has fallen substantially as a result of the pandemic.
  • The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to expand the hearing schedule.
  • There was an 11.3% drop in workers’ compensation independent medical review letters in 2019 when compared with 2018, according to a report issued by the Workers’ Compensation Institute.

Georgia

Illinois

Massachusetts

  • Attorney General Maura Healey called on the state’s Division of Insurance (DOI) to take immediate steps to ensure that businesses pay fair workers’ compensation insurance premiums that reflect the businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic.

Michigan

  • Pursuant to the Governor’s latest Executive Orders, the Workers’ Disability Compensation Board of Magistrates’ hearing schedule has been updated.

North Carolina

  • Furloughed employees who are paid will not be counted on payroll for premium calculations, the rate bureau announced in a recent circular.
  • Deputy Commissioner Hearings (Non-Medical-Motion Hearings) to Resume in June 2020 via Webex.

Virginia

  • Workers’ Compensation Commission has issued an order to return to in-person hearings on or after June 11, 2020.

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

Legal Corner – including new COVID-19 Work Comp Cases

Workers’ Compensation

Attorney General sues Uber and Lyft over misclassifying drivers – California

Attorney General Xavier Becerra sued Uber Technologies Inc. and Lyft Inc. for classifying its drivers improperly as independent contractors instead of employees, evading workplace protections and withholding worker benefits. Several cities joined the state in its lawsuit, saying the companies’ misclassification harms workers, law-abiding businesses, taxpayers, and society more broadly.

Appeals court allows apportionment of permanent disability – California

In County of Santa Clara v. Workers’ Compensation Appeals Board and Barbara Justice, an employee suffered a compensable injury in a fall at work and was granted a 100% permanent disability. The county appealed, arguing that documented degenerative conditions in her knee caused part of her permanent disability. Noting the unrebutted substantial medical evidence, the appeals court agreed. The rule is that apportionment is precluded only where the industrial medical treatment is the sole cause of the permanent disability.

PTD awarded 17 years after retirement – Florida

In Pannell v. Escambia County Sch. Dist., an appellate court ruled that a worker who retired for reasons unrelated to her workplace injuries before reaching maximum medical improvement was entitled to permanent total disability benefits after she exhausted her temporary total disability benefits. It noted that a JCC erred in focusing on her retirement date, as well as her age and disability status at that time, in finding that she did not qualify for PTD benefits.

To determine whether she qualified for PTD, the relevant date is either the date of overall MMI or the expiration of her entitlement to temporary benefits, whichever occurred first. She exhausted her entitlement to temporary benefits (TTD) as of December 30, 2004, well before she reached overall MMI in 2011. She had no substantial earning capacity when her TTD was exhausted and was incapable of gainful employment when she reached MMI. Therefore, she suffered a catastrophic injury and was entitled to PTD as of Dec. 31, 2004.

Phony COVID-19 medical note leads to business shutdown and arrest – Georgia

An employee with a past criminal record defrauded his employer with a phony medical excuse letter claiming COVID-19. The letter prompted the employer to stop business and sanitize the workplace, still paying other workers who were forced to stay home in quarantine, at a cost of over $100,000. The worker was arrested by the FBI.

McDonald workers file class-action suit over COVID-19 safety – Illinois

Five workers in Chicago filed a class-action lawsuit against McDonald’s accusing it of failing to adopt government safety guidance on COVID-19 and endangering employees and their families.The lawsuit does not seek money for sick staff, but compliance with health guidance such as not having to reuse masks, mandating face coverings for customers, and requiring the company to inform employees if a co-worker becomes infected.

Judge dismisses lawsuit over safety concerns at pork processing plant – Missouri

A U.S. federal judge has dismissed a worker advocacy group’s lawsuit accusing Smithfield Foods Inc., the world’s largest pork processor, of failing to adequately protect employees from the novel coronavirus at a plant in Milan. The judge ruled that the company was taking many of the health precautions asked for and that it was not the court’s purview to oversee working conditions. Under President Donald Trump’s executive order in April requiring meatpacking plants to remain open during the pandemic, the federal government is responsible for overseeing working conditions. The company said the lawsuit should be dismissed because OSHA is already investigating. The attorney for the workers did not rule out an appeal; however, he acknowledged that the lawsuit prompted beneficial changes at the plant.

Compensability sought for family of health care worker who dies from COVID-19 – Missouri

The family of a Kansas City nurse, Celia Yap-Banago, who died from COVID-19 has filed for death benefits with the Missouri Division of Workers’ Compensation.The claim could prove to be the first major test case on compensability for virus-sickened health care workers.

Missouri’s presumption law covers firefighters, law enforcement officers, and emergency medical technicians, but not nurses.

Fireworks injury not compensable – Nebraska

In Webber v. Webber, an appeals court upheld the denial of benefits to a self-employed truck driver who was injured in a fireworks mishap. The injury occurred when he was entertaining a warehouse manager on his route. On appeal, he argued he was responsible for rapport-building with clients as part of his job providing moving services and that this was work-related horseplay. The court found that was not grounds for a claim and lighting a firework at a warehouse was not within the scope of his job.

Benefits denied to worker injured in car accident riding to lunch with boss – New York

In Matter of Scriven v. Davis Ulmer Sprinkler Co., an appellate court overturned previous rulings and found an employee who was injured in a car accident while riding to lunch with his supervisor is not eligible for workers compensation. The court noted that he was not paid during his lunch break and that he was not “obligated” to go to lunch with his supervisor, along with three co-workers. Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee.

“Gray area” rule does not apply to worker struck by car while crossing public street – New York

In Matter of Johnson v. New York City Tr. Auth., an appellate court ruled that a worker was not entitled to benefits for his injuries when he was struck by a car as he was crossing a street to get to work. At the time of the accident, the worker had arrived more than one hour early for his shift, had not yet reported to work, and was not approved for overtime. The case falls under York’s special “gray area” rule, where the mere fact that the accident took place on a public road or sidewalk did not ipso facto negate the right to compensation.

Under the rule, injuries will be compensable only if there was a special hazard at the particular off-premises point and a close association of the access route with the premises, so far as going and coming are concerned. In this case, the court concluded that the risk of getting hit by a car while crossing the public road was unrelated to the worker’s employment and a danger that “existed to any passerby traveling along the street in that location.”

Industrial Commission erred in dismissing claim – North Carolina

In Lauziere v. Stanley Martin Communities LLC, a real estate agent claimed an injury which her employer contested. The company sought medical records, moved to compel her to respond, and ultimately challenged the sufficiency of the documents. More than one year passed and she did not act so the company moved to dismiss the claim because of failure to prosecute. The Industrial Commission granted the motion and dismissed the case.

Upon appeal, the court overturned, noting the company had not been materially prejudiced. The company offered no evidence to show how the delay impaired its ability to locate witnesses, medical records, treating physicians, or any other data. The company argued it was prejudiced because it was unable to direct the agent’s medical care, however, the court said the company didn’t have the right to control since it had not accepted her claim as compensable.

Protz decision applies to cases pending at time of decision – Pennsylvania

In Weidenhammer v. Workers’ Comp. Appeal Bd., the Commonwealth Court ruled that an injured worker was not entitled to the automatic reinstatement of her total disability compensation after Protz II struck down Section 306(a.2) [77 P.S. §511.2(1)] of the state’s Workers’ Compensation Act as unconstitutional because the statute’s language requiring use of “the most recent edition” of the AMA Guides amounted to an impermissible delegation of legislative power to the American Medical Association. It noted that since the high court’s decision was not fully retroactive, it applied to all parties in all cases still pending at the time the decision was announced and only where the issue of the statute’s constitutionality had been raised and preserved at all stages of litigation.

Section 413 of the Workers’ Compensation Act provides that no award can be modified or reinstated unless a petition is filed within three years of the most recent payment of compensation. She had filed her reinstatement petition almost four years after her last payment. Since her petition was not so pending at that time of the decision and more than three years had passed since her last receipt of benefits, her petition was properly denied.

Exclusive remedy prohibits sexual harassment claim – Tennessee

In Karen Potter v. YAPP USA Automotive Systems Inc., an appeals court ruled that workers’ compensation exclusive remedy provision prohibits a woman from filing sexual harassment and hostile worker environment claims under state human rights law because her injury did not involve previously reported harassment. She had suffered injuries when a co-worker, who she had previously reported for sexual harassment, spit on and pushed her. The court found, however, that her physical injuries did not involve sexual harassment and began with a discussion about work.

PPD award based on functional loss before hip replacement surgery – Virginia

In Loudoun County v. Richardson, a divided Supreme Court ruled that a firefighter was entitled to permanent partial disability benefits based on the extent of his impairment before undergoing hip replacement surgery. A physician determined that a loss-of-use rating of 74% before surgery and 11% after surgery. Affirming lower court decisions, the court noted that using a pre-surgery loss-of-use rating recognizes that a work-related injury has permanently deprived the employee of natural functionality and that hip replacement procedure came with the expectation that the prosthetic will eventually fail and require subsequent surgical revision. It acknowledged the irreplaceable loss of the natural joint, the nonmonetary costs associated with the corrective surgery, and the permanent restrictions on the employee’s activities resulting from the work-related injury.


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

Coronavirus, Workers’ Compensation and legislative updates

Like everything else the pandemic touches, the regulatory and legislative actions related to COVID-19 are a work in progress and continue to evolve.

Workers’ Compensation

Presumptive coverage

Governors and state legislatures grappling with how best to protect employees, while balancing the interests of businesses, continue to look to emergency adjustments to the workers’ compensation system to deal with COVID-19. The dominant issue is providing presumption of coverage for COVID-19 so that first responders and health care workers and, in some cases, other essential workers, have unimpeded access to workers’ compensation benefits.

Legislation is pending or has passed in several states, but the laws vary significantly. In some states, the presumption is conclusive, scrapping the basic tenet of workers’ comp that employees must prove they were exposed to the virus during the course of their employment. But in others, the presumption is rebuttable. The trend, which dramatically alters the workers’ comp landscape, is so prevalent that the National Council on Compensation Insurance, (NCCI) tracks this information.

States implementing changes include Alaska, Arkansas, California, Florida, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, New Mexico, North Dakota, Utah, Washington, Wisconsin, and Wyoming. States with legislation pending include Illinois, Louisiana, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, and Vermont. Updated status can be found here.

Not surprisingly, the action with the broadest sweep came from California. On May 6, Governor Gavin Newsom issued an Executive Order making it easier for employees to prove that they contracted COVID-19 at work and thus, get workers’ compensation benefits. While the presumption can be disputed if there is evidence the disease was contracted outside of work, the order effectively makes workers’ comp coverage available to all employees who worked outside their homes from March 19 to July 5 and contracted COVID-19 within two weeks of performing on-the-job duties. It is expected to cost between $600 million on the low end and $2 billion if higher estimates come to fruition, according to the WCIRB.

In Illinois, a significant court challenge compelled the Workers’ Compensation Commission to withdraw a sweeping emergency amendment that would have created a rebuttable presumption that when medical personnel, first responders, and essential employees contracted COVID-19, it was work-related. Both houses of the General Assembly recently passed a more limited bill that was a compromise measure that both businesses and workers’ advocates could live with. It provides death benefits for first responders who were presumably infected with COVID-19 on duty between March 9, 2020 and December 31, 2020 and worker’s compensation benefits for essential workers under certain conditions, but gives businesses a path to rebuttal.

The term “COVID-19 first responder or front-line worker” is defined in the bill as “all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers, correction officers, and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. For purposes of this subsection only, an employee’s home or place of residence is not a place of employment, except for home care workers.” Further, COVID-19 claims will not count against employers’ experience modification and premiums.

Employers can rebut claims under certain conditions if they can demonstrate the workplace was following current public health guidelines for two weeks before the employee claims to have contracted the virus; can provide proof that the employee was exposed by another source outside of the workplace; or, the employee was working from home for at least 14 days before the injury claim. Documentation will be critical to support rebuttals. The bill is expected to be signed by the Governor.

Employers and insurers are concerned that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges. In Minnesota, the Senate recently passed a bill which creates a coronavirus relief fund with stipulations that such funds will help local government organizations cover workers’ compensation costs related to COVID-19, among other needs generated by the pandemic.

While few states have extended presumption beyond health care workers and first responders, some have issued warnings about the handling of COVID-19 claims. Recently, the Industrial Commission of Arizona issued a policy statement noting “claim denials related to COVID-19, like any claim denial, must be ‘well-grounded in fact’ and ‘warranted by existing law'” or based upon a good faith argument for the extension, modification, or reversal of existing law.

NCCI: Impact of claims on Experience Mod

In mid-May, NCCI posted Item E-1407 which excludes all COVID-19 claims from Experience Mods. In the early days of the crisis, new claim codes were created specifically for COVID-19 infections that were paid under workers’ compensation. This filing serves to exclude those claims from experience rating (and merit rating). This applies to claims with accident dates of December 1, 2019 and later and there is currently no expiration date for this rule.

This rule has been approved by Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Maryland, Mississippi, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, South Dakota, Tennessee, Vermont, and West Virginia. Other states are expected to follow suit.

 

Independent states

Pennsylvania

In early May, the Pennsylvania Comp Bureau posted the rules relating to COVID-19, effective 3/1/20 to 12/31/20.

These changes allow for:

  • Temporary reclassification to 953 (Clerical) for employees who are now doing clerical work at home during the crisis.
  • Exclusion of payroll for wages paid to employees who are performing no services to the employer. This payroll will be assigned to Code 1212.
  • Exclusion of COVID-19 claims from Experience Rating.

There was a filing to make changes to the Basic Manual as well as the Statistical Plan.

Delaware

Also in May, Delaware made changes identical to Pennsylvania, effective April 1, 2020.

New York

New York has approved new rules, which differ from other states. According to RC 2512, published 5/1, payroll for employees who are not working at all OR employees who are temporarily reassigned to work at home will have their payroll assigned to the new code 8873. 8873 will carry the same rate as 8810. This means that employees who are being paid to not work WILL have premium applied to them, albeit at the very low 8810 rate.This rule is retroactive to 3/16/20 and applies for 30 days following the lifting of the Stay at Home order.The filing also excludes COVID-19 claims from any future experience rating.

Massachusetts

The Massachusetts Rating Bureau released a statement, “For the time being, we are interpreting Rule V.G. 6 to apply to the COV-19 situation. It states that employees who are not on strike, but are unable to perform their normal duties because of a strike, and they are performing absolutely no work for their employer and are not present on their employer’s premises during this period, such wages shall be assigned to Code 8810 – Clerical Office Employees NOC, provided the facts are clearly disclosed by the employer’s records.”

Minnesota

In Minnesota, the bureau has adopted NCCI’s payroll rules, but has stated that COVID claims WILL BE included on the experience mod.

Michigan

Unlike most states, the Michigan bureau (CAOM) does not file rules on behalf of carriers operating there. The carriers have the option to adopt or not adopt anything. CAOM has approved NCCI’s payroll rules for the Assigned Risk market, but individual carriers will have the option whether to follow this or not.

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

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