Legal Corner

ADA
Part-time schedule not required when the essential duties of the job cannot be performed

In Green v. BakeMark USA LLC, 6th Cir., the manager had been granted several leaves for cancer surgery and subsequent complications and returned with hour restrictions for a limited time. Shortly after returning to full duty and working a 24-hr shift, he collapsed and his doctor again issued work restrictions. At the employee’s request, the company provided information on the hours he was expected to work to the treating physician. It also attempted to reach the employee by phone and email, but received no response, which led to mediation.

At mediation, the employee, in effect, requested an indefinite leave of absence. The company terminated the employee who filed several claims under the ADA. A federal district court granted summary judgment in favor of BakeMark and on appeal, the 6th U.S. Circuit Court of Appeals affirmed dismissal.

Based on witness testimony and the job description for the position, the appeals court noted anything less than full-time hours would fundamentally alter the position, which is not required by the ADA. While part-time or flextime schedules can be a reasonable accommodation, they are not required when the essential duties of the job cannot be performed within the restricted hours.

 

Workers’ Compensation
Supreme Court tightens rules on where injury lawsuits can be filed – United States

The U.S. Supreme Court tightened rules on where injury lawsuits may be filed, handing a victory to corporations in a case involving Texas-based BNSF Railway Co. In an 8-1 decision, the justices threw out a lower court decision in Montana allowing out-of-state residents to sue there over injuries that occurred anywhere in BNSF’s nationwide network. State courts cannot hear claims against companies when they are not based in the state or the alleged injuries did not occur there, the justices ruled. In effect this significantly limits the ability to bring claims in friendly courts.
Work Comp policy can be rescinded for misrepresentation – California

A Workers’ Compensation Appeals Court determined that an insurer has the right to retroactively rescind a workers’ compensation policy, even if a worker has already been injured. In this case, the employer’s application for coverage implied that its employees did not travel out of state, but an employee was injured out of state.

In Southern Insurance Co. vs. Workers’ Compensation Appeals Board (WCAB), EJ Distribution Corp. et al., EJ Distribution Corp.’s application indicated covered employees would not travel out of California or outside of a 200-miled radius. After the arbitrator found the policy could not be rescinded and the WCAB adopted the arbitrator’s report, Southern petitioned the court for a writ of review, which was granted.

“Contrary to the arbitrator’s ruling, a workers’ compensation insurance policy may be rescinded,” the court said in its ruling. “A recession is enforced by a civil action for relief based on recession or by asserting recession as a defense. Because the arbitrator and the appeals board did not address and determine whether rescission was a meritorious defense to the employee’s claim, we annul the appeals board’s decision and remand the case with directions to hear and determine whether the insurer was entitled to rescind, and did rescind, the policy.”
Court of Appeals allows apportionment to genetics – California

In City of Jackson v W.C.A.B., a police officer injured his neck and was diagnosed with cervical degenerative disc disease and cervical radiculopathy. A physician concluded that his injury was cumulative and caused by a combination of work and personal activities as well as a personal history of “heritability and genetics”, among other things.

After the neck surgery, the doctor changed the apportionment to 49 percent; saying that there was new evidence that showed genetics played a more significant role in cervical spine disability than previously thought, citing several studies. The WCAB did not agree, but the Court of Appeals noted employers are able to base apportionment on other factors such as a preexisting disability or the natural progression of a non-industrial condition. The Court determined that there was substantial medical evidence to justify the apportionment, since new medical studies showed that heritability had a role in about 75 percent of degenerative disc disease cases.
Injured employee gets lawn care but not home renovations for treatment – Florida

An employee was injured on the job, had a compensable spinal fusion surgery, after which she developed a dropped foot, and experienced balance issues and falls. She also suffered from depression. A Judge of Compensation Claims awarded her lawn care, home renovations, attendant care, a podiatrist, an AFO brace, and evaluation of the need for specialized shoes based on medical necessity.

The First District Court of Appeals upheld the award for lawn care because there was evidence that it would improve her depression and anxiety, both of which were compensable. The home care, podiatrist, AFO brace and specialized shoes were also upheld because the employer failed to contest their medical necessity in a timely manner. The home renovations proposed by a registered nurse, however, were denied. The court reasoned that while the orthopedic surgeon indicated that he agreed with some of the suggestions in a home assessment report completed by a registered nurse, the physician never identified which ones should be provided and the registered nurse was not qualified to establish the medical necessity.
Worker can request change in doctor even after discharge from medical treatment – Florida

In Dominguez v. Compass Group, the1st District Court of Appeals ruled that a worker was entitled to exercise her statutory right to a one-time change in physicians, even though her doctor had discharged her from care.
School employee due benefits for fall when senior prank day necessitates different parking location – Illinois

In Field v. Pinckneyville Community H.S. Dist. 101, a teacher was walking from her car to the building where she worked when she fell and fractured her lower leg. She was walking a much further distance than usual because vehicles blocked the entrances to the school parking lot as part of a senior prank day. The Workers’ Compensation Commission awarded the teacher permanent partial disability benefits based on 35 percent loss of use of the left leg and medical expenses of $80,791 for injuries. It noted the prank day is implicitly approved by the school administrators, and the blocking of the teachers from parking in their customary parking spaces is a known activity, therefore, the teacher was within the scope of her employment.
Chicago Bears pay over $12.5 million to settle comp claims – Illinois

According to an article in the Chicago Sun-Times, over the past 20 years the football team has spent nearly $12.5 million to settle worker compensation claims filed by 141 players. And the team it still grappling with 144 additional claims from 55 other players. The Chicago sports teams have been arguing that the state’s laws regarding wage differential payments create a financial burden.
Highest court restricts admissibility about immigration status – Indiana

The Supreme Court ruled that an injured worker could pursue a damage claim for his lost future earnings in the U.S. job market, even though his immigration status did “not allow him to be legally employed.” It also restricted the admissibility of evidence about his immigration status to the jury unless the preponderance of the evidence establishes that he is likely to be deported and that his future lost earnings would therefore be limited to what he could earn in his native Mexico. Escamilla v. Shiel Sexton Co.
EMT suspended for criminal charges due benefits – Massachusetts

In Brian Benoit v. City of Boston, an EMT suffered an ankle injury and one year later was indicted on charges relating to misuse of controlled substances intended for his emergency patients. The city refused to pay benefits citing a 1972 state law banning public-sector workers facing criminal charges from receiving compensation from a government agency. However, the court ruled unanimously that the benefits are not salary, but an insurance agreement between the injured worker and the insurer and benefits were due.

Request for work with a different employer in rehabilitation plan nixes termination of TTD benefits – Minnesota

In Gilbertson v. Williams Dingmann, LLC, an employee who had given her notice, was injured prior to her departure date. The employee’s rehabilitation plan stated that her vocational goal was to return to work, but with a different employer. Although her employer offered her the same position at the same pre-injury wage, with reasonable accommodations for her physical restrictions, it was not completely consistent with the rehab plan as required by law. The employer’s offer could not, under any circumstances, be consistent with that plan.
Teacher cannot sue school district for injuries incurred during student fight – Minnesota

There are three exceptions to Minnesota’s workers’ comp exclusive remedy provision, including an assault exception, an intentional act exception and a co-employee liability exception. In John Ekblad vs. Independent School District, a high school teacher also served as lunchroom supervisor for additional compensation. While his duties included intervening to break up fights if he could do so safely, he was not required to do so. He received workers’ comp benefits when he intervened in a fight and was injured.

He sued the school district, alleging negligence and negligent supervision. The assault exception covers injuries inflicted for personal reasons and he argued the students made references to his race, but the court found that racial animosity is insufficient to establish a personal connection. The court also ruled the intentional act exception did not apply because even if the district’s policies were substandard or ineffective, that did not establish a conscious and deliberate intent to inflict injury. Further, the co-employee liability exception did not apply because the duty to provide a safe workplace is a non-delegable duty held by the employer as part of workers’ comp law.
Employee’s death does not negate settlement agreement not yet approved by Commission – Mississippi

In Taylor v. Reliance Well Service, the Court of Appeals ruled that an employer must honor a $71,659.43 settlement for a comp case even though the worker died before the Workers’ Compensation Commission approved of the deal. The agreement was submitted to the commission for review on May 13, 2016, the employee was killed on May 16, and the Commission approved the settlement on May 18, assuming the employee was still alive. The company filed a motion to have the approval order vacated, which was initially granted.

Upon appeal, the court reversed noting Workers’ Compensation Law specifically provides that settlement agreements “shall not be made except when determined to be in the best interest of the injured worker” and therefore, the sole statutory basis for disapproval of a settlement is a finding that the settlement would not be in the best interest of the worker. The employee’s death wouldn’t affect the commission’s determination of this issue.
Eastern District refuses to approve post-award settlement, in direct conflict with the Western District – Missouri

In the Western District, cases have determined that the Labor and Industrial Relations Commission must sign off on a joint proposal to commute an award so long as it was not made as a result of undue influence or fraud, the employee understood his rights and benefits, and he voluntarily agreed to accept the terms of the agreement. In Andrew Dickemann v Costco Wholesale Corporation, the Eastern District says these criteria, derived from Missouri Revised Statutes Section 287.390.1, apply only when there is an unresolved claim for benefits.

If the worker has established his entitlement to an award, the Eastern District said the applicable Section is 287.530, which says that commutations are to be granted only in “unusual circumstances,” and it requires that the value of the commutation be equal to the present value of the future installments due to the employee. In this case, there was no evidence of “unusual circumstances” and the terms of the agreement did not provide a payment equal to the present value of the future benefits, therefore, the Labor and Industrial Relations Commission properly refused to authorize the deal. The Eastern District panel said it believed the case setting precedent in the Western District had been wrongly decided.

Liability for asbestos-related condition can not be apportioned – New York

In Matter of Manocchio v ABB Combustion Eng’g, the Workers’ Compensation Board appropriately refused to apportion liability for an employee’s asbestos-related disease despite some evidence that he had been exposed to asbestos at multiple employers over a long period of time. While a medical expert indicated that apportionment was appropriate in terms of exposure, the expert admitted that determining the exposure to asbestos at each employer was impossible. Therefore, the appellate court concluded there was no objective way to prove that the employee contracted pleural plaque while working for another employer, and could not be apportioned.
Employer stops negligence suit on labor law technicality – New York

In Robinson v. National Grid Energy Mgt. LLC, an electrical foreman’s negligence suit was thrown out after his employer argued that Labor Law § 240(1) did not require it to protect workers from electrical shock. The employee was installing wires for a company hired by T-Mobile, when he fell 12-15 feet to the ground from a faulty aerial bucket. Noting that the bucket was not equipped with the proper electrical protection and that the lift function on the truck was malfunctioning, he decided to climb down, but his foot became stuck in the part of the bucket typically covered by the electrical protection, and he slipped and fell.

When he sued, T-Mobile petitioned to dismiss the complaint, arguing the bucket was faulty because it did not provide adequate protection from electrical shock, not because it provided inadequate fall protection and that the Labor Law did not guarantee a protection from electrical shock. While a lower court dismissed the complaint on the grounds that the decision to exit the bucket had caused his fall, the Supreme Court of the State of New York’s 2nd Judicial Department Appellate Division disagreed, but dismissed the case based on T-Mobile’s reasoning regarding the Labor Law.
Protz decision does not automatically nullify IRE rating – Pennsylvania

In William Gillespie vs. Workers’ Compensation Appeal Board (WCAB) (Aker Philadelphia Shipyard), the Commonwealth Court affirmed the decision of the WCAB, reversing the decision of the Workers’ Compensation Judge (WCJ), who upheld the employee’s constitutional challenge to his impairment rating evaluation (IRE). The Commonwealth Court ruled that its 2015 decision in Protz v. WCAB (Derry Area School District) does not automatically allow injured workers who had their disability status converted through the impairment rating evaluation process to undo this change.

While the court’s decision in Protz declared the IRE rating standard unconstitutional, the court said workers who have already gone through the IRE process have 500 weeks to appeal the conversion of their disability status, and they need evidence of a full-body impairment above 50% to support their claim, which the employee did not provide. The court said it had already rejected the idea that the Protz decision invalidated all IREs performed using the fifth edition of the guides late last year, in the case Riley v. WCAB.
Lay testimony sufficient to prove exposure – Pennsylvania

In Kimberly Clark Corporation v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician who was diagnosed with metastatic bladder cancer in the summer of 2005, and died a year later. His widow filed a Fatal Claim Petition and relied upon the testimony of two co-workers who detailed the various chemicals and substances known to cause cancer that her husband worked with, as well as an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens. This testimony was considered more credible than that presented by the “environmental manager” for the Employer’s plant and the insurance company’s expert physician. The Fatal Claim Petition was granted by the WCJ and upon appeal, affirmed by the Commonwealth Court.

One issue addressed by the Court was whether the death took place within 300 weeks of the “injury.” When viewed as a repetitive or cumulative trauma case, the date of the “injury” is the date of the last exposure to the harmful source; thus, the death did take place within that period.
Co-employee immunity protects unpaid volunteer – Wisconsin

In Fitzgerald v. Capezza, an employee of a catering company suffered injuries in a car accident while en route to a work site as a passenger in a truck driven by a volunteer for the catering company. The employee filed a workers’ compensation claim, which she eventually settled. About a year later, she filed a personal injury action against the volunteer and her automobile liability insurance carrier. The case went through several appeals, but all concurred that the unpaid volunteer for the catering company was still a co-employee. As long as she received something of value in exchange for her work, and she received food, lodging and free admission into events, the court said she would be a “paid” worker for purposes of Wisconsin comp law.

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

OSHA watch

Legislative updates (see first article for details)

  • Electronic record-keeping rule delayed, but anti-retaliation provisions remain
  • Walkaround rule rescinded
  • Enforcement of silica standard for construction delayed until Sept. 23

No major budget changes for FY 2018, but shifting priorities

The proposed FY 2018 budget includes $543 million with $130 million for “federal and state compliance assistance activities to enhance employer outreach and training.” The budget for fiscal year 2017, which ends Sept. 30, was $552.8 million. While adding money to compliance assistance, the proposed budget slashes funding for the standards and statistics programs. Enforcement remains intact and there are no new riders that would prohibit the agency from enforcing any standards or other parts of the law.

Meanwhile, the Mine Safety and Health Administration would see relatively small changes in funding for fiscal year 2018, but NIOSH might experience a sizable reduction in its budget, and the Chemical Safety Board still is scheduled for elimination.

New videos and infographics provide facts on falls

Falls are the leading cause of death for construction workers, accounting for 367 of the 985 construction fatalities recorded in 2015. Two videos have been posted on the Stand-Down homepage and a series of infographics can be downloaded.

Enforcement notes

Illinois

Demolition company faces $152,000 in fines following death of worker

Omega Demolition Corp. was working on the demolition of an I-90 bridge when a falling beam injured several workers and killed one. An investigation found that the company overstressed the beam, resulting in the beam’s failure and $152,000 in fines was levied. A commission has been set up to review the findings and determine whether the fines and citations will stand and what additional measures the Illinois Tollway will take.

Massachusetts, Maine

Railroad company violated whistleblower’s right and ordered to pay $260,000

A federal appeals court has affirmed that Pan Am Railways, Inc. must pay $260,000 in punitive and compensatory damages and take corrective action on behalf of an employee who was subjected to retaliation for filing a Federal Railroad Safety Act whistleblower complaint. The court found the North Billerica-based commercial railroad retaliated against the employee, who works in a rail yard in Waterville, Maine, when it charged him with dishonesty in connection with his FRSA complaint. The employee had tried to report an injury.

Michigan

Landscaping company hit with $222,000 in safety fines, stop-work order

Failure to abate safety hazards, including not using traffic control devices when employees were working near the road, not training workers on tree-trimming operations and safeguards, and not using a chipping machine in a safe manner led to a cease-operation order against Sunset Tree Service & Landscaping LLC. The company has a history of violations.

Auto insulation manufacturer faces fines of $569,463

An Ohio-based employee of Michigan, Farmington Hills-based Autoneum North America suffered an amputation of his right hand, wrist and part of his forearm when his arm got caught in a shredding machine at the auto insulation manufacturer plant in Oregon, Ohio. The company faces $569,463 in proposed penalties for failure to equip the machine with adequate safety guards.

Ohio

Automotive steel manufacturer faces $279,578 in penalties

Canton-based Republic Steel, an automotive steel manufacturer, is facing $279,578 in proposed penalties after investigators found workers at its plant exposed to machine hazards and lead.

South Dakota

Sioux Falls-based Hultgren Construction L.L.C. faces two willful citations and a proposed penalty of $101,400 for failing to properly train and instruct employees, for exposing employees to struck-by and crushing hazards, and not performing an engineering survey prior to beginning demolition. The company was renovating a historic building in downtown Sioux Falls when the building collapsed, killing one of its employees.

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

HR Tip: Employers underestimate impact of change on employees

American adults who have been impacted by change at work are more likely to report chronic work stress, less likely to trust their employer, and more likely to say they plan to leave the organization within the next year compared with those who haven’t been affected by organizational change, according to a recent survey by the American Psychological Association.

The Executive summary notes: “Underlying employee reactions to organizational change may be their perceptions of the motivation behind those changes and the likelihood of success. Almost a third of U.S. workers said they were cynical when it comes to changes, reporting that they believed management had a hidden agenda (29 percent), that their motives and intentions were different from what they said (31 percent) and that they tried to cover up the real reasons for the changes (28 percent). Working Americans also appeared skeptical when it comes to the outcomes of organizational changes. Only 4 in 10 employees (43 percent) had confidence that changes would have the desired effects and almost 3 in 10 doubted that changes would work as intended and achieve their goals (28 percent each).”

Other key findings include:

  • Although 78 percent of workers reported average or better levels of engagement, one in five employees reported low or very low levels. Workers who felt they were treated fairly by their employers were more than five times as likely to report high or very high levels of work engagement, compared with employees who didn’t feel treated fairly. Other important factors affecting engagement were employee involvement, growth and development opportunities, and health and safety efforts.
  • Although most employed adults (71 percent) felt that their organization treats them fairly, one in five said they did not trust their employer.
  • Trust and engagement play important roles in the workplace, accounting for more than half of the variance in employee well being.
  • Workers reported having more trust in their companies when the organization recognizes employees for their contributions, provides opportunities for involvement, and communicates effectively.

David W. Ballard, PsyD, MBA, head of APA’s Center for Organizational Excellence noted that change is inevitable in organizations, but when not managed properly, can undermine success. “To build trust and engagement, employers need to focus on building a psychologically healthy workplace where employees are actively involved in shaping the future and confident in their ability to succeed.”

 

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

Legislative update

OSHA delays electronic record-keeping rule, but anti-retaliation provisions remain

OSHA announced on its website on May 17 that it “is not accepting electronic submissions at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.” There was no word on when, or whether, a new deadline would be set for data submission.

Although there were indications that OSHA had beta tested a secure portal with the help of a few national employers and employment organizations, the suspension did not come as a surprise. At the time the rule was published, it was noted that the portal would be live on February 1, 2017, but, after the election, there were no updates from OSHA about how precisely the database would function or when it would go live.

It’s uncertain what will happen going forward. According to the Washington Post, an OSHA spokeswoman said that the agency delayed the rule to give the agency time to address employers’ “concerns about meeting their reporting obligations.”

There are several possibilities. The Administration may formally rollback the new rule through notice and comment rulemaking to rescind all or at least this portion of the rule. Another possibility is that the rule stands or stands without the public viewing aspects. There are two ongoing lawsuits challenging the rule, which are in the early stages of litigation. It’s possible the agency will wait for the outcome of the cases. Also, the new Secretary of Labor Alexander Acosta has only recently assumed his position, so action may be delayed until Secretary Acosta’s new team at OSHA is in place. The rule is not dead… it’s wait and see.

Anti-retaliation provisions remain

The electronic filing delay does not affect the anti-retaliation provisions of the rule that went into effect in December 2016. Employers must inform workers of their right to report work-related injuries and illnesses, and they can’t retaliate against employees for doing so.

According to OSHA guidance on the anti-retaliation provisions, employers must establish reasonable procedures for reporting injuries. The guidance recommends limitations on safety incentive programs and drug-testing policies that might deter workers from reporting accidents.

Business groups have also challenged this provision in court, arguing that OSHA exceeded its authority. A court denied a preliminary injunction that would have blocked the provisions; however, it is still possible the court could find it illegal.

While it is unknown how aggressive enforcement efforts will be, the rule is in effect and employers need to comply. Employers should have reviewed drug testing policies and safety incentive programs in light of OSHA’s guidance. Also, they should document informing employees of the right to report injuries without retaliation and how to report, as well as post the latest version of OSHA’s Rights poster.

OSHA rescinds walkaround rule

OSHA has changed its policy on allowing employees at non-union workplaces to choose a union-affiliated representative for “walkaround” inspections, according to an April 25 memo sent to regional administrators.

The policy began in 2013 but was being challenged in court by the National Federation of Independent Business, with help from the Pacific Legal Foundation. Following the memo, the lawsuit was withdrawn on April 27.

OSHA delays enforcement of silica standard for construction

Enforcement of the silica standard for construction was set to begin June 23, but has been delayed to Sept. 23. The delay is necessary for OSHA “to conduct additional outreach and provide educational materials and guidance for employers,” according to the agency.

Despite the delay, OSHA said it expects employers in the construction industry to take steps toward implementing the standard’s requirements.

Feds won’t tackle medical marijuana

Given Attorney General Jeff Sessions’ negative position, there was much speculation if there would be efforts to resolve the conflict between federal and state laws on medical marijuana, which is still considered a Schedule I drug by the U.S. Drug Enforcement Administration, but is now legal in 29 states. President Trump signed House Resolution 244, a $1.1 trillion appropriations plan that includes language that will prevent the federal government from spending money to fight medical marijuana.

According to a press statement from the White House, a section of the bill “provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various states and territories.”

DOL withdraws guidance on employee definitions

On June 6, the U.S. Department of Labor withdrew Obama administration guidance on joint employment and independent contractors that expanded the definition of employees. The statement withdrawing the guidance noted: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.” It is expected, however, that employers, who can now rely on the law rather than administrative interpretations, will laud the news.

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

HR Tip: Post-offer medical examination “textbook case” of ADA

In EEOC v. M.G.H. Family Health Center, a federal district court in Michigan ruled that the health center violated the ADA when it fired a recently hired community outreach coordinator over fears that her migraines or other impairments might interfere with her job performance. According to the court, this was a textbook case of unlawful discrimination based on a perceived disability. Congress explicitly clarified in the ADAAA that “major life activity” definitions are not relevant to the question of whether an individual has suffered unlawful discrimination based on a perceived disability.

When the health center hired the community outreach coordinator, she was told she would be required to undergo a “post-offer” medical examination by a third party, but could begin work. While the results of the exam were normal, the third party recommended she be put on a “medical hold” and undergo a costly functional capacity evaluation (FCE) due to migraines and other medical issues resulting from injuries in a car accident that were documented in her medical files. After she had been working in the job without incident for two weeks, the health center terminated her before allowing her to complete the FCE, which she offered to pay for herself.

In granting summary judgment for the EEOC, the district court noted three things that the employer did wrong: (1) it did not engage in an individualized assessment; (2) it did not follow the recommendation of the physician to have the employee complete a functional capacity evaluation; and (3) it terminated the employee’s employment after the employee had been performing the job for two weeks without incident, even though her own physician had submitted information indicating she was able to perform the job.

Takeaways: When using post-offer, pre-employment examinations, it’s best to make the offer conditional and conduct the exam prior to the first day of employment. If the exam does reveal some concerns about the ability of the individual to perform the job, it’s the employer’s responsibility to engage in the interactive process to determine if reasonable accommodations can be provided.

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

Things you should know

Opioid abuse rises with length of prescription

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

Blacklisting rule repealed

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

FMCSA will not reinstate overnight rest regulations for commercial drivers

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

Study reveals occupations with sleep deprived workers

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

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

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

NIOSH announces free health screenings for coal miners

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

NIOSH updates mine hazard assessment software

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

Study: PT as effective as surgery for carpal tunnel

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

When hospital inspectors are watching, fewer patients die

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

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

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

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

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

 

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

HR Tip: ABA’s summary of 2016 FMLA cases

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

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

Seven in ten employers impacted by employee prescription drug use

Seventy-one percent of U.S. employers say drug use among employees has impacted their business, but only 19% of them have comprehensive workplace drug policies in place, according to a survey by the National Safety Council (NSC). While 57% test their employees for drugs, only 41% screen for synthetic opioids – the kind of prescriptions usually found in medicines cabinets and increasingly available on the black market.

The types of incidents experienced in the workplace as the result of prescription drug use are: 39% absenteeism; 39% workers have been caught taking drugs while on the clock; 32% a positive drug test indicated use; 29% a worker had been found to be impaired or showed decreased work output; 29% a family member complained; 22% another employee complained to human resources; 15% an injury or near-miss occurred; and 14% an employee was caught selling drugs in the workplace.

“Employers must understand that the most dangerously misused drug today may be sitting in employees’ medicine cabinets,” Deborah A.P. Hersman, president and CEO of the NSC, said in a statement. “Even when they are taken as prescribed, prescription drugs and opioids can impair workers and create hazards on the job.” Cognitive impairments and physical pain masked by prescription drugs can make employees engage in riskier behaviors and reduce response time.

 

What employers can do

Develop a drug-free workplace policy, including prescription drugs

Most employers have a drug-free workplace policy directed at illegal drugs and an alcohol abuse policy, but most don’t have a prescription drug policy. Since prescription drugs are legal, it’s been difficult to craft a policy, but many addictions begin with legal prescriptions. Even when taken as prescribed, they can impair workers and create hazards on the job.

The NSC provides a free Prescription Drug Employer Kit to help employers create prescription drug policies and manage opioid use at work. The kit recommends actions including:

  • Define the employee’s role in making the workplace safe. A drug-free workplace program (DFWP) should state what employees must do if they are prescribed medications that carry a warning label or may cause impairment. The employer can create a plan around not operating vehicles or machinery while the prescription is in use. The DFWP should also spell out the steps an employer will take if it suspects a worker is using certain medications without a prescription, in larger doses than prescribed, or more frequently than prescribed.
  • Add prescription drug testing to illicit drug testing. Working with legal counsel, the employer should decide if additional testing is warranted for pre-employment screening, or for pre-duty, periodic, at random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.
  • List the procedures or corrective actions the employer will follow when an employee is suspected of misusing prescription drugs or for an employee with confirmed prescription drug abuse.
  • Obtain legal advice. An attorney experienced in DFWP issues should review the policy before it’s finalized.
  • Train supervisory staff and educate employees. Educate managers and supervisors about prescription drug abuse and what to do if they suspect an employee has a problem. Training also is an underused tool that companies can use to make employees aware of the risks and signs of prescription drug misuse, along with company policies.
  • Review service coverage for behavioral health and/or employee assistance program (EAP) needs. Evaluate the behavioral health portions of health insurance policies and EAP contracts to ensure employees are covered for abuse of prescription drugs.

 

Work with insurers to cover alternative approaches

Hersman advised employers to work with their insurers to cover alternative therapies so that employees can avoid taking opioids or other addictive medications for chronic pain. Alternative therapies include acupuncture, guided imagery, chiropractic treatment, yoga, hypnosis, biofeedback, and others.

While 88 percent of survey respondents were interested in their health insurer covering alternative pain treatments, only 30 percent indicated they would not act on that interest by negotiating expanded coverage with insurers.

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

Five ways employers derail claims with poor medical choices

“An injured employee treated by the wrong medical provider is like a stripped down “to save money” fire policy with more exclusions than inclusions. Right doctor. Right time. Right treatment. Always.” – Preston Diamond, Institute of WorkComp Professionals

A poor choice in medical care can break a worker’s compensation case and result in significant higher premiums for several years. While the rules vary, in many states employers have the ability to direct injured employees to a doctor of the employer’s choice. Even if this is not possible, having a relationship with a competent occupational physician who understands your business and can develop confident relationships with employees will help insure your injured employees get the proper care.

Yet, many employers find the process of choosing physicians outside their expertise and defer the choice to insurers or employees. Here are five ways this leads to unnecessary higher claims costs:

  1. Apathetic commitment to Recovery-at-WorkWhile medical treatment guidelines have gained traction in many states, they are only mandatory in a few states and often permit discretion for the treating physician. As a result, there is significant variability in quality of care and outcomes among physicians. Moreover, today many doctors seek to treat workers’ comp injuries because it is more lucrative than healthcare.

    Given the option, employees will choose to go to their primary care doctor who, most likely, will grant their request. Want a few days off for work to rest? Why not grant it when it keeps the patient happy? Yet, those few days can cost the employer big bucks.

    When there is a strong Recovery-at-Work commitment and the injured worker returns to work before becoming eligible for wage benefits, claims are known as medical-only claims. In 39 states (ERA states), medical-only claims are reduced by 70% on the experience modification worksheet, and usually have minimal effect on the final Mod. On the other hand, claims that also include indemnity payments are known as lost-time claims and often have a significant impact on the Mod.

    This hypothetical example gives an idea of the impact on costs. A small claim ($2,791) that included indemnity had a .0360 impact on the Mod and increased the annual premium by $1,771. Since this increase affects the premium for three years, the employer will pay a total of $5,265! A second small claim ($3,230) was medical only and impacted the Mod by .0125, raising the annual premium by $615 and increasing the premium $1,845 over three years.

    It takes more than lip service for physicians to partner with employers effectively in a Recovery-At-Work program. Look for physicians who:

    • Know the state’s Workers’ Comp rules
    • Come and tour your facility to understand the requirements of the job
    • Develop a good understanding of your Recovery-at-Work program and recognize the value of work in the healing process as well as factors that can keep injured employees out of work longer, such as anxiety, family issues, financial issues, and so on
    • Follow best practice guidelines for each type of injury (typically Occupational Medicine doctors)
    • Have strong communication skills with all parties – employer, injured workers, and claims examiner
    • Engage the injured worker in thinking about recovery and what they can do, not what they can’t do
    • Have objective standards to measure outcomes, such as claims duration, total costs, percentage return to full duty within disability guidelines, litigation, recidivism, and patient satisfaction
    • Have strong capabilities, both in-house and referral network, so that wait times are minimized
    • Do not dispense drugs
    • Have a clear policy regarding opioids
  2. Limited or no focus on outcomesWhile there is a growing focus on developing outcome-based networks for workers’ compensation, fee schedules are the norm for controlling costs. When insurers point out “savings” below fee schedules, this can divert employers from focusing on the real issue – how much they are paying. Physicians and hospitals squeezed by the health care system look to maximize revenues from other sources and workers’ comp is one of the most vulnerable.

    The answer is to direct care to providers who have measures of quality and outcome and deliver the best value, by delivering consistently excellent outcomes and competitive pricing. Insurance adjusters often handle upwards of 250 claims at one time; it’s unlikely they are going to have the time to identify the best provider for each of their clients.

  3. Not a good fit for the employer or workforceWhile Occupational Medicine doctors are a good starting point, it makes sense to drill down further. From past claims employers know where their exposures are the greatest and should identify physicians with specific proficiencies needed for the injuries and hazards in their work setting. In addition, if the employer is in a regulated or hazardous industry, the physician must be familiar with regulatory compliance issues.

    There are other considerations as well. If you have a bilingual workforce, the provider staff, including medical staff, should be bilingual. Equally important, the provider must be able to balance patient advocacy with employer concerns. Injured workers will respond positively to a physician if they have trust and believe the physician is their advocate, thus accelerating the return to worker and reducing the likelihood of litigation.

  4. Poor representation in disputed casesContesting cases when it is suspected the injury is not work-related is never easy, particularly when it involves a cumulative trauma injury, pre-existing conditions, or stress. Failing to challenge cases when the injury cause is not work-related leads to paying unwarranted benefits and emboldens others to file similar claims. On the other hand, wrongly challenging injured workers needlessly drives litigation costs up and leads to morale and trust issues among the workforce.

    Doctors are trained to treat injuries; causation is a secondary concern. While many states do not require that medical opinions be expressed with absolute medical certainty, it is expected that opinions be more than mere speculation and there is a probability as to the cause that can be supported.

    A good medical expert will not only be well qualified, but must be able to write a good report that clearly explains their opinions. Understanding how a physician handles disputed cases is key to avoiding unnecessary litigation costs.

  5. Unnecessary use of emergency room servicesWhen injured workers use emergency room services, they are likely to be told to take time off and medical costs are likely to be much higher. The only time an injured employee should go to the emergency room is when there is a 911 emergency or when there are no other available treatment options. Emergency rooms are busy places and their primary task is to make sure people are not in imminent danger. There’s no time to consider Recovery-at-Work possibilities.

    Furthermore, there’s a higher possibility of an inaccurate diagnosis. More than one-third of reports from consulting physicians for orthopedic injuries in emergency rooms were inaccurate, including 30% of open fractures that were described as closed, according to findings detailed in AAOS Now , a publication of the American Academy of Orthopedic Surgeons. According to the author, musculoskeletal conditions, a common workers’ comp injury, are the most commonly missed injuries in emergency departments.

    Emergency departments rarely communicate with the employer, don’t usually set up follow-up visits or provide ongoing care, and common treatment plans often include rest and no work activity for days or weeks following an injury. All of which means delays, lost time, and added cost to the employer.

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

Takeaways from WCRI Annual Issues and Research Conference: worker outcomes, attorney involvement

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Keys to improving worker outcomes

Worker outcome surveys are a key component of The Workers’ Compensation Research Institute’s (WCRI) work. An independent, not-for-profit research organization, it provides data and analysis aimed at improving workers’ compensation systems. Measuring workers’ access to care, satisfaction with care, return to functionality, recovery at work, and earning history, the surveys are designed to give injured workers a voice in the discussion of how workers’ compensation can be improved, as well as assess how they fare in the system.

Reading through the observations, it’s easy to think that’s obvious and simple; yet, similar issues have existed for several decades, indicating implementation is not as simple as it seems. According to Safety National Conference Chronicles, the observations include:

  • Among workers who had worst claim outcomes, 48% had a strong fear of being fired after a workplace injury. There may be real justification for concern or a more general lack of trust in the employer.
  • Those concerned about being fired from the workplace retain attorneys.
  • Back in the mid 1990s, a study of back injury cases in New Hampshire showed a strong correlation between prolonged disability and the injured worker feeling their supervisor was negative and unsupportive.
  • Some of the words used by claims adjusters and employers can have very negative impacts on the message. Words such as claimant, adjudication, pending investigation, etc., focus on conflict and the process, ignoring the person who actually had the claim.
  • Another study found that when the claims handler expressed empathy, engaged in active listening skills and took the time to explain benefits claim outcomes improved.
  • Simply asking the worker “do you feel you will be able to return to your regular job without restrictions in 4 weeks” is an excellent predictor of disability duration. If the injured worker says “no” they are usually correct.
  • If you do not have company policy and practices aligned with messaging, you will not get positive messaging from supervisors. Company culture starts at the top.
  • The medical providers and case managers also can have a significant impact on the claims outcomes.

Takeaway: Most employers understand that the initial response to an injury, continual and effective communication, and workplace satisfaction are critically important for positive claims outcomes. Yet, injured employees’ perception of their work environment and lack of communication with injured employees remain major drivers of “permanent disability.” If they feel their needs aren’t being taken into account or they are being treated unfairly, they are less likely to return to work and more likely to retain an attorney. It requires constant vigilance to be effective.

Attorney involvement

Injured workers in Illinois are more likely to lawyer up than any of 18 states studied by the WCRI, while only a small fraction of injured workers in Wisconsin and Texas had legal representation. Attorneys represented workers in 52% of Illinois claims with more than seven days of lost work time. New Jersey was a close second at 49%, with Georgia following at 41%, then California at 40% and North Carolina fifth at 38%.

Explaining the high rate of attorney involvement in Illinois, the researchers noted that the state bases permanent partial disability benefits on several factors in addition to physical impairment. It also may be more difficult in Illinois to terminate temporary disability benefits than in other states. Also, the difference between maximum permanent partial disability and temporary total disability benefits is much wider in Illinois than in other states. The maximum TD rate in Illinois is $1,362, while the maximum PPD rate is $775, providing an incentive for injured workers to keep their cases open.

On the other hand, workers had low legal representation in Wisconsin (13%),Texas (14%), Michigan (17%), and Indiana (18%). In Wisconsin, the lower attorney involvement is likely due to limits on lump sum settlements, and an administrative process for resolving disputes. In Texas, caps on attorney fees for both plaintiff and defense attorneys, the prohibition of lump sum settlements of claims, which is the main driver for attorney representation, and an efficient dispute resolution process that does not necessitate attorney involvement all contribute to reduced attorney involvement. The researchers concluded that a more self-executing system limiting settlements significantly reduces attorney involvement.

More insights to attorney involvement can be found in a 2010 study by WCRI, Avoiding Litigation: What Can Employers, Insurers, and State Workers’ Compensation Agencies Do?

The study found that workplace trust issues, fear of claim denial and injury severity are the main reasons for attorney representation in workers’ compensation claims. It’s important to point out that a simple delay in paying a medical bill or an erroneous interpretation of a communication is enough to stoke the worker’s fear that the claim was going to be denied, thus leading to attorney involvement. The most effective way to counteract this fear is through reassurance and the building of trust.

Takeaway: Treating injured employees with respect, clearly explaining the process, and making them feel confident that they will get the treatment they need and that their job is secure will help reduce uncertainty and fear.

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