Things you should know

Workplace deaths rise and workplace violence is now the second-leading cause

According to Bureau of Labor Statistics data cited in the AFL-CIO’s 2018 edition of Death on the Job: The Toll of Neglect, 5,190 workers were killed on the job in 2016, an increase from the 4,836 deaths the previous year, while the job fatality rate rose to 3.6 from 3.4 per 100,000 workers. Workplace violence is now the second-leading cause of workplace death, rising to 866 worker deaths from 703, and was responsible for more than 27,000 lost-time injuries, according to data featured in the report.

35% of workers’ compensation bills audited contained billing errors

Out of hundreds of thousands of audited workers’ compensation bills, about 35% contained some type of billing error, according to a quarterly trends report from Mitchell International.

The top cause was inappropriate coding, which produced 24% of the mistakes and unbundling of multiple procedures that should have been covered by one comprehensive code accounted for 19% of billing mistakes.

Only 13 states adequately responding to opioid crisis – National Safety Council

The National Safety Council (NSC) released research that shows just 13 states and Washington, D.C., have programs and actions in place to adequately respond to the opioid crisis going on across the country. The states receiving the highest marks of “improving” from the Council are Arizona, Connecticut, Delaware, Washington, D.C., Georgia, Michigan, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Rhode Island, Virginia and West Virginia. Eight states received a “failing” assessment including Arkansas, Iowa, Kansas, Missouri, Montana, North Dakota, Oregon and Wyoming.

NIOSH answers FAQs on respirator user seal checks

Seal checks should be conducted every time respiratory protection is used on the job, and employers and workers should ensure the equipment is worn properly so an adequate seal is achieved, NIOSH states in a recently published list of frequently asked questions.

NIOSH publishes fact sheet on fatigued driving in oil and gas industry

According to a new NIOSH fact sheet, fatigue caused by a combination of long work hours and lengthy commutes contributes to motor vehicle crashes, the leading cause of death in the oil and gas industry.

New tool allows employers to calculate cost of motor vehicle crashes

Motor vehicle crashes cost U.S. employers up to $47.4 billion annually in direct expenses, according to the Network of Employers for Traffic Safety, which has developed a calculator to help organizations determine their own costs.

It has separate calculators for tabulating on- and off-the-job crashes, as well as one for determining return on investment for employee driving safety programs.

Watchdog group releases list of Dirty Dozen employers

The National Council for Occupational Safety and Health (National COSH) announced their list of the most dangerous employers, called “The Dirty Dozen.” Among those listed: Seattle-based Amazon.com Inc., Mooresville, North Carolina-based Lowes Cos. and Glendale, California-based Dine Brands Global Inc., which owns Applebee’s and International House of Pancakes locations.

CMS finalizes policy changes for Medicare Part D Drug Benefits in 2019 with focus on managing opioid abuse

The policy change addresses the Implementation of the Comprehensive Addiction and Recovery Act of 2016 (CARA), which requires CMS’ regulations to establish a framework that allows Part D Medicare prescription plans to implement drug management programs. Part D plans can limit access to coverage for frequently abused drugs, beginning with the 2019 plan year and CMS will designate opioids and benzodiazepines as frequently abused drugs.

Stakeholders hope that CMS will apply similar thinking to Workers’ Compensation Medicare Set-Aside (WCMSA) approvals in which the beneficiary is treating with high-dosage opioids.

Study: workers exposed to loud noise more likely to have high blood pressure and high cholesterol

A study from the Centers for Disease Control (CDC) was published in this month’s American Journal of Industrial Medicine that indicates workers who are exposed to loud noises at work are more likely to have high blood pressure and high cholesterol.

IRS FAQs on tax credit for paid leave under FMLA

The IRS has issued FAQs, which provide guidance on the new tax credit, available under section 45S of the Internal Revenue Code, for paid leave an employee takes pursuant to the FMLA.

US Supreme Court rules car dealership service advisers exempt from being paid overtime under the Fair Labor Standards Act

The FLSA exempts salesmen from its overtime-pay requirement and “A service adviser is obviously a ‘salesman,'” said the majority opinion in the 5-4 decision in Encino Motorcars L.L.C. v. Navarro et al. This reversed a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that held the advisers were not exempt from being paid overtime.

Legal experts note that this expands the FLSA’s interpretation more broadly and could have implications for other businesses.

State News

California

  • The Workers Compensation Insurance Rating Bureau (WCIRB) quarterly report for year-end 2017 projects an ultimate accident year combined loss and expense ratio of 92%, which is 5 points higher than that for 2016 as premium levels have lowered while average claim severities increased moderately. More findings.
  • Cal/OSHA reminds employers to protect outdoor workers from heat. The most frequent heat-related violation cited during enforcement inspections is failure to have an effective written heat illness prevention plan specific to the worksite. Additional information about heat illness prevention, including details on upcoming training sessions throughout the state are posted on Cal/OSHA’s Heat Illness Prevention page.
  • The Department of Justice certified that the state’s prescription drug monitoring program is ready for statewide use. Doctors will have to start consulting the program before prescribing controlled substances starting Oct. 2.
  • According to a recent report by the Workers’ Compensation Research Institute (WCRI), the state ranked fourth-highest in terms of average claim costs among 18 states examined and a major contributing factor is the relatively high percentage of claims with more than seven days of lost time.

Florida

  • A new law, HB 21, takes effect July 1 and puts a three-day limit on most prescriptions for acute pain and toughens the drug control monitoring program. The bill also provides for additional treatment opportunities, recovery support services, outreach programs and resources to help law enforcement and first responders to stay safe.

Georgia

  • The State Board of Workers’ Compensation’s latest fee schedule update, which became effective April 1, includes the first-ever dental fee schedule and reimbursement rates for air ambulance services as well as other amendments.

Illinois

  • According to a recent report by WCRI, the average claim cost of $16,625 was the highest among 18 states examined and the percentage of claims with more than seven days of lost time ranked third.

Massachusetts

  • Deaths on the job reached an 11-year high in 2017, an increase attributable to the state’s many construction projects, as well as an increased prevalence of opioid addiction, according to a newly released report.

Michigan

  • Work-related injuries requiring hospitalization increased for the third straight year recent data from Michigan State University shows.

Minnesota

  • The Department of Labor plans to adopt what it calls “cost neutral” changes to workers’ compensation vocational rehabilitation fees and other rules without a public hearing, unless one is requested by at least 25 people, in keeping with state law. Comments can be made until May 31.
  • Paid claims and premiums have dropped significantly in the last 20 years (54 percent relative to the number of full-time-equivalent (FTE) employees from 1996 to 2016), while benefits have risen slightly, according to the Minnesota Workers’ Compensation System Report for 2016.

North Carolina

  • The Supreme Court denied review of an appeal by medical providers who argued that the Industrial Commission violated the state’s Administrative Procedure Act when it adopted an ambulatory surgery fee schedule. The fee schedule that became effective on April 1, 2015, remains in effect.

Tennessee

  • According to a recent report by WCRI, the average total cost per workers’ compensation claim decreased by 6% in 2015, driven by a 24% reduction in permanent partial disability and lump-sum benefit payments.

Wisconsin

  • In an effort to combat the misclassification of workers, the state has netted $1.4 million in unpaid unemployment insurance taxes, interest and associated penalties, according to the state Department of Workforce Development.
  • According to a recent report by WCRI, medical costs in workers’ comp increased five percent per year rising in 2014 with experience through 2017.

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

Legal Corner

ADA
Multi-month leave not required in 7th Circuit states – Illinois, Indiana, and Wisconsin

The U.S. Supreme Court has declined to review a 7th Circuit decision that the ADA doesn’t require employers to allow workers with disabilities to be off the job for two months or more. In Raymond Severson v. Heartland Woodcraft Inc, the 7th Circuit ruling that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA does not comply with the U.S. Equal Employment Opportunity’s position and disagrees with other courts.

The Severson decision allows employers in the 7th Circuit to, without violating the ADA, terminate the employment of workers who make months-long leave requests, but employers should be cautious about denying leaves of less than two months and obtain written confirmation of the requested time off. Under Wisconsin law, there is a more lenient interpretation of reasonable accommodation than under the ADA, so it important to consider the state statute as well.

Telecommuting a reasonable accommodation

The 6th U.S. Circuit Court of Appeals affirmed a $92,000 verdict and $18,184.32 for back pay and lost benefits award for a city utility attorney who was denied her request to telecommute during her 10-week bed rest for pregnancy complications. The utility had reversed its policy on telecommuting in 2011, requiring all lawyers to work onsite, but she had been allowed to work from home when she recovered from neck surgery, shortly after the policy change.

In her 23rd week of pregnancy, her doctors placed her on modified bed rest for approximately 10 weeks. She made an official accommodation request with supporting documentation, which was denied based on the argument that physical presence was an essential function of the job, and telecommuting created concerns about maintaining confidentiality.

She filed a lawsuit for pregnancy discrimination, failure to accommodate and retaliation under the ADA and was awarded $92,000 in compensatory damages and $18,184.32 for back pay and lost benefits by a jury. Upon appeal, the attorney testified that in her eight years of employment, she had never tried cases in court or taken depositions of witnesses, even though those duties were listed in her position description. The court found that she was adequately performing her duties telecommuting, as her job duties were not tied to her presence in the office. Mosby-Meachem v. Memphis Light, Gas & Water Division, 6th Cir., No. 17-5483 (Feb. 21, 2018).

Workers’ Compensation
Worker entitled to attorney’s fees although benefits were less than he sought – Florida

In Portu v. City of Coral Gables, a fire fighter developed hypertension, but his impairment rating was based on those of a female patient and were adjusted from 35% to 4%. State statute provides that a worker will be entitled to a fee award if the claim is successfully prosecuted after being denied by his employer. Also, a fee award will not attach to a claim until 30 days after the date the claim petition was provided to the employer or carrier.

A judge denied the claim for attorney fees because the city paid benefits within 30 days of the revised impairment rating assessment, and it couldn’t have paid benefits earlier because it had no way of calculating the correct amount. An appellate court, however, found he was entitled to attorney’s fees because the carrier had denied the claim, the employee had successfully prosecuted the claim, and 30 days had elapsed from “the date the carrier … receives the petition.” It did not matter that the claim petition had sought benefits based on a higher impairment rating.

Police officer entitled to duty disability pension for injuries in training session – Illinois

In Gilliam v. Board of Trustees of the City of Pontiac Police Pension Fund, a police officer was injured during a voluntary bicycle patrol training session and was denied a line-of-duty pension because her disability had not been caused by an “act of duty.” An act of duty is defined as an act “inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman.”

The decision went through a series of appeals and the courts determined that there are “special risks associated with bicycle patrol” and what mattered was whether she was injured while attempting a bicycle maneuver that involved a special risk.

No additional payment for provider who accepted partial payment from Medicaid – Minnesota

In Gist v. Atlas Staffing, a worker for a temporary employment agency was assigned to a position that involved working with silica-sand tanks. About two years later he stopped working and shortly after was diagnosed with end-stage renal disease. He received treatment in Minnesota and Michigan, which was partially paid for by Medicaid and Medicare.

He then filed a workers’ comp claim, asserting the exposure to silica had caused the kidney failure and the treating medical center intervened seeking payment for the portion that Medicaid and Medicare had not paid. A workers’ compensation judge found in favor of benefits but noted the medical center should be paid “in accordance with all other state and federal laws.”

The case made its way to the state Supreme Court, which noted that while a treatment provider is entitled to a payment for medical services provided to an employee, to the extent allowed under the workers’ compensation medical fee schedule, even if the provider has already received partial payment from a private, non-employer insurer, in this case payment was received from Medicaid. A federal regulation requires providers who participate in Medicaid programs to accept a Medicaid payment as “payment in full.”

Award of schedule benefits overturned because summary judgment is not a way to resolve factual disputes – Nebraska

In Wynne v. Menard, a retail worker injured her knee and in a later accident injured her shoulder. The court awarded her temporary total disability benefits and ordered that the benefits continue until she reached maximum medical improvement, at which time she underwent a functional assessment evaluation. While the evaluator imposed no restrictions on her ability to sit, her treating physician said she could not sit for more than 10 minutes at a time, and a court-appointed vocational expert questioned this finding.

The state Supreme Court said there was a triable issue of fact as to the extent of her disability and the Workers’ Compensation Court erred by weighing the relative merits of the evidence and awarding her schedule benefits for her knee and shoulder since summary judgment is not a way to resolve factual disputes. The case was reversed and remanded.

Board can reject medical decision but not misread records – New York

In Matter of Gullo v. Wireless Northeast, the Workers’ Compensation Board rejected the opinion of the worker’s doctor because he had testified that he could not offer an opinion on causation since he was not familiar with the employee’s work duties. However, when he was advised of her work duties, he confirmed his opinion. The appellate court found that the Board overlooked this fact when it held that the doctor could not offer an opinion on causation. Thus, the denial of benefits was reversed.

Employer’s lien against subrogation recovery determined when settlement is made – New York

In Matter of Adebiyi v. New York City Housing Authority, an employee was injured when an ultra-high-pressure washer malfunctioned. He filed tort suits against the manufacturer and lessor of the pressure washer and received settlements of $1.6 million and $800,000. When he received judicial approval of the settlement with the lessor, the Housing Authority was granted a lien of over $222,000. At the time, the Workers’ Compensation Board was deciding whether to reclassify him as permanently and totally disabled and the employee argued the lien should not be determined until the decision was made. While a trial judge ruled in his favor, the appellate court noted the lien was appropriately determined at the time of the settlement without consideration for reclassification.

Failure of employer to timely contest claim doesn’t guarantee benefits – New York

In Matter of Nock v. New York City Department of Education, a lunch helper alleged she suffered a work-related back injury. A judge found that the department did not file a timely contest and awarded benefits. The Workers’ Compensation Board reversed and Appellate Division’s 3rd Department agreed, explaining that an employer’s failure to file a timely notice will bar it from raising certain defenses, but it does not relieve a worker of the burden to prove that the medical condition was caused by work.

Medical claim for non-FDA approved compound cream upheld – North Carolina

In Davis v. Craven County ABC Bd, an employee injured his ankle and after four years of treatment was diagnosed with reflex sympathetic dystrophy and prescribed a compound cream. The carrier refused to pay for the cream, which was not approved by the FDA, or any further treatment from the prescribing physician. A new physician prescribed a similar, non-FDA-approved cream and the carrier again refused payment.

The North Carolina Industrial Commission affirmed a deputy’s order for the carrier to pay for the cream. The appellate court noted that the law did not limit the types of drugs that might reasonably be required solely to those that are FDA-approved. Reasonable treatment is a question that must be individually assessed in each case. “If requiring workers’ compensation providers to compensate injured workers for non-FDA-approved drugs is bad policy, it is for our General Assembly to change that law,” added the court.

No benefits for teacher’s stroke suffered while receiving unfavorable review – North Carolina

In Cohen v. Franklin County Schools, a high school principal received complaints about a math teacher and prepared a professional development plan. When he met with the teacher and the director of secondary education, he presented the plan, but she refused to sign it. After the meeting, which lasted about 15 minutes, the teacher experienced head pain and sought medical treatment three days later. It was determined she had had a stroke and she sought comp benefits.

The Industrial Commission denied the benefits and the Court of Appeals upheld the denial, noting that the meeting was neither unexpected nor inappropriate. “At most, Cohen received critical feedback that was unwelcome to her – an occurrence that is not unusual for an employee at any job.”

Uber limousine drivers are independent contractors – Pennsylvania

In what is believed to be the first ruling on the classification of Uber drivers under federal law, a U.S. District judge ruled that drivers for Uber’s limousine service, UberBlack, are independent contractors and not the company’s employees under federal law. The judge found that the drivers work when they want to and are free to nap, run personal errands or smoke cigarettes in between rides and, thus, the company does not exert enough control over the drivers for them to be considered employees. Razak v. Uber Technologies Inc.

Chiropractor cannot collect fee for office visits and same day treatments – Pennsylvania

In Sedgwick Claims Management Services v. Bureau of Workers’ Compensation Fee Review Hearing Office, an employer was obligated to pay reasonable and necessary medical expenses for an employee’s shoulder injury under a Compromise and Release Agreement. The employee saw a chiropractor as many as three times each week, who billed the TPA $78.00 per visit for office visits on dates on which he provided chiropractic treatment.

The TPA denied the office visit charges but paid for the other treatments. The state code permits payment for office visits “only when the office visit represents a significant and separately identifiable service performed in addition to the other procedure.” Thus, the Commonwealth Court overturned a hearing officer’s decision finding that a chiropractor was entitled to payment of the office visit fee, noting that payment for same day examinations was the exception, not the rule.

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

OSHA watch

Silica safety enforcement ramped up at construction sites

Since compliance requirements took effect Sept. 23, 2017, there have been 116 alleged silica violations at companies as of April 17, a Bloomberg Environment analysis of agency records show. The number of violations in the initial six months is likely to increase since it can take up to six months after an inspection to issue citations. A common misunderstanding of Table 1 among small contractors is that using respirators is the first option. Respirators are acceptable protection, but contractors are expected to first change construction methods or tools to reduce the amount of silica that becomes airborne.

Of the 116 silica violations cited, the most frequently mentioned provision was employers failing to measure silica exposure levels (29 C.F.R. 1926.1153(d)(2)(i)). Almost as frequently cited is incorrectly following Table 1’s procedures (29 C.F.R. 1926.1153 (c)(1)), intended to reduce silica exposure. Eighty percent of the cases were classified as serious violations.

Direct final rule revising Beryllium Standard for general industry issued

While enforcement of certain provisions of the beryllium rule began on May 11, the compliance date for the beryllium standard for general industry was extended and certain ancillary provisions in the final rule changed as a result of a settlement agreement with four petitioners.

The direct final rule clarifies certain definitions and provisions for disposal/recycling, along with those that apply in cases of potential skin exposure to materials containing at least 0.1 percent beryllium by weight. The direct final rule will go into effect July 4, “unless the agency receives significant adverse comments by June 4,” according to a press release.

New flier offers steps to keep tractor trailer drivers safe at destination

Developed in concert with the trucking industry, a new flier addresses the most common hazards for drivers after they reach their destination: parking, backing up, and coupling (attaching) and uncoupling (detaching) vehicles.

List of authorized outreach trainers now available online

The website now has a searchable list of authorized Outreach trainers to assist the public in finding authorized instructors for the 10- and 30-hour Outreach classes.

Mid-Atlantic regional construction safety campaign shifts focus to falls

The four-month campaign in the Mid-Atlantic states to address the four leading causes of fatal injuries in construction will focus on falls in May. Caught-in/-between hazards is the focus in June.

Enforcement notes

California

  • Mr. Good Vape LLC of Chino, was ordered to reinstate a former manager and pay $110,000 in compensation after he was fired for claiming the company’s production of flavored liquids for e-cigarette vapor inhalers violated federal environmental law.
  • California Premier Roofscapes Inc. was cited for repeat violations of fall protection safety orders and faces proposed $134,454 in penalties.

Florida

  • An administrative law judge of the OSHRC downgraded a citation issued against Ocala-based Jody Wilson Construction Inc. from willful to serious and reduced the penalty from $49,000 to $2,800, noting the contractor had attempted to comply with the standard, albeit incorrectly.

Georgia

  • In a settlement in a whistleblower case, Jasper Contractors, headquartered in Kennesaw, but performing roofing work in Florida, agreed to pay an employee $48,000 in back wages and compensatory damages.

Massachusetts

  • In a settlement with Lynnway Auto Auction Inc., the Billerica facility agreed to correct hazards, implement significant safety measures, and pay $200,000 in penalties, following a May 2017 incident in which a sport utility vehicle fatally struck five people during an auto auction.

Michigan

  • Grand Rapids-based excavation contractor Kamphuis Pipeline Co. faces proposed penalties of $454,750 for exposing employees to trench cave-ins and other serious hazards while installing water metering pits and lines at a North Dakota municipal project.
  • RSB Construction Services LLC, in Goodrich, faces $147,000 in penalties for failing to train workers on fall hazards, and provide required guardrail, safety net, or personal fall arrest systems for workers on a pitched metal roof.

Mississippi

  • An administrative law judge of the OSHRC affirmed two items of a serious citation issued to Southern Hens after an employee’s partial thumb amputation, but vacated a third item, noting the standard is concerned with the ‘how’ of the lockout procedures, not the ‘when.’ The penalty was reduced from $19,134 to $12,000.

Nebraska

  • Contractor Premier Underground LLC was cited for failing to protect its workers from excavation collapse hazards. The company faces proposed penalties of $46,930.
  • Omaha-based plumbing contractor Gavrooden Inc., doing business as Mr. Rooter Plumbing, was cited for the second time in less than six months for failing to protect its workers from excavation collapse hazards. Proposed penalties are $38,061.

Pennsylvania

  • The OSHRC has reversed an administrative law judge’s decision to vacate a one-item serious citation with a proposed penalty of $7,000, issued against Calpine Corp. because access to the exposure was reasonably predictable.

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

Overcoming the opioid crisis in the workplace

The national crisis of the misuse of and addiction to opioids echoes in the workplace every day. A National Safety Council (NSC) poll, estimates that over one-quarter of the U.S. workforce is using opioids. The costs to employers are well documented – increased absenteeism, lower productivity, higher health care costs, more occupational injuries, fewer skilled workers who can pass drug tests, and increased workers’ compensation costs. A recent study by the Kaiser Family Foundation found that large employers experienced a sharp increase in costs for treating opioid addiction and overdoses among their workers, rising from $646 million in 2004 to $2.6 billion in 2016.

While the workers’ comp industry has made significant progress in limiting opioid prescriptions for acute pain, much work remains to be done. According to a new workers’ compensation drug trend report from Optum, forty-nine percent of injured workers receiving a prescription drug were taking an opioid in 2017, a figure that was about four percentage points lower than in 2016.

Although each workplace has its own challenges, an assessment of a company’s efforts to combat the opioid problem should focus on three areas:

  • Reducing or eliminating initial opioid usage for recently injured workers
  • Helping injured workers who have become long-term users wean off of opioids
  • Prevention – preinjury support

Reducing or eliminating initial opioid usage for recently injured workers

While efforts to curb opioids in workers’ comp vary significantly by state, customized formularies, utilization management and clinical programs, legislative action including limits on initial opioid prescriptions for acute pain, and claims professional education, have collectively worked to reduce opioid prescriptions for pain. Some states are requiring alternative approaches. In Ohio, for example, residents with work-related back injuries are now required by law to try remedies such as rest, physical therapy or chiropractic care before surgery or opioids.

Employers, too, play a powerful role in preventing the development of opioid addiction. Educating workers about the dangers of opioids may prompt injured workers to forego opioids altogether rather than accepting an initial short-term prescription. Monitoring opioids prescriptions by receiving alerts when they are prescribed and setting limits can ensure that guidelines are followed. Intervening early and ensuring that injured workers have a clear path for getting back to work helps control the fear of pain, which leads to avoidance behavior.

Physicians, who can clearly explain the advantages of alternative treatments and the dangers of addiction, as well as gain the workers’ trust, will be effective in facilitating a return to work without reliance on pain meds. Utilizing nurse case managers can provide valuable interaction with physicians and can help injured workers manage their pain, recover, and avoid opioid dependency.

Training supervisors and managers to identify workers who struggle with pain or are at greater risk for dependence will trigger a need for early intervention and behavioral programs that focus on pain management through employee engagement and resilience. Unsupportive supervisors who intimidate workers by insisting they work through the pain or ignore the problem may disrupt the recovery.

The process takes planning and must be geared to the individual. Effective change comes when workers understand the benefits of non-drug pain therapies and buy into the solution. There are some workers who will want immediate relief, the hallmark of pain meds. Others may not want to exert the effort or time involved in physical therapy, acupuncture, exercise, or yoga, and others may be skeptical of mindful therapies. It’s the employer’s role to foster trust, provide support, and help motivate the employee.

Helping injured workers who have become long-term users wean off of opioids

While averting opioid dependency in a new workers’ comp claim is no easy task it’s tenfold more difficult in legacy claims tied to long-term opioid prescriptions. There are many barriers to successfully resolving long-term claims that involve chronic opioid usage:

  • The treating physician doesn’t buy into alternatives and won’t suggest them to a patient
  • There aren’t enough physicians who have adequate training on pain management and opioid prescribing
  • There’s attorney involvement
  • The worker is in a vicious cycle of drugs trying to manage the pain – the worker hasn’t slept, has anxiety, depression or nausea, and takes other pills alongside their Vicodin or OxyContin to repress those side effects
  • The prospects of returning to work seem slim and the worker has psychosocial factors such as depression, hopelessness, and hostility
  • The worker is focused on pain and unwilling to quit or reduce their pain medications
  • Medicare set-asides allows comp claims to close with cash set aside to pay for future drugs – often strong doses – with little oversight

Although these barriers are daunting, there is promise in a recent report released by California’s Workers’ Compensation Insurance Rating Bureau. The report, Study of Chronic Opioid Use and Weaning in California Workers’ Compensation, showed nearly half of the study claims with employees demonstrating chronic opioid usage (11 months from the date of injury) weaned off of opioids completely within 24 months from the date of injury. The weaning process typically involved a gradual decrease in opioid prescriptions combined with a mix of alternative non-drug treatments and non-narcotic drugs.

Vital to success is the adjuster who must remain involved throughout the process. It begins with knowing how to look at the data, not only to identify claims where opioid usage costs are high, but to identify trends. What types of injuries are involved? Do they occur in the same department or under the same manager? Can they be linked to certain physicians? Chronic use of opioids extends disability, and data analysis is critical to building a plan.

The adjuster must be familiar with and open to evidence-based innovative treatment options and understand how best to work with the injured worker. The program’s success also relied upon peer-to-peer conversations with the prescribing physicians and developing a program specifically aimed at helping workers cope with significant chronic pain. It demonstrates that a well-designed, carefully managed program with the focus on the individual can work.

The increased awareness around the epidemic has improved the possibilities of success with legal action, as indicated by a recent decision of the West Virginia Supreme Court. In Grinnan v. West Virginia Office of Insurance Commissioner, the court ruled unanimously that a carpenter was not entitled to continued treatment with OxyContin for a 26-year old back injury. However, legal action should be viewed as a last resort because of the time, money, and hostility involved.

Prevention – preinjury support

In the past, opioids were often prescribed for musculoskeletal injuries, effectively masking the pain but doing nothing to treat the injury. Ensuring good ergonomics in work place design and processes and ensuring that workers can handle the physical demands of their job is a good first step. Listening to workers who have minor pain and providing the support to minimize it, will help prevent costly claims.

Drug policies should be reevaluated to identify the situations where testing makes the most sense as well as what tests should be used. Screening for prescription drug use, illicit drug use, and adherence to legitimate opioid medications is a sound approach to mitigate risk. Working with legal counsel, the employer should decide what testing is warranted for pre-employment screening, pre-duty, periodic, at random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.

Legitimate claims from workers who already are using opioids are among the most difficult to resolve. A recent article on lexisnexis.com by Thomas Robinson notes that a study to be published by the Journal of Occupational and Environmental Medicine supports the widely-held notion that pre-injury opioid and benzodiazepine use may increase the risk and cost of disability after a work-related injury.

Prevalence of compensable claims was higher among cases with pre-injury opioid use compared to cases without such pre-injury use (28.6 percent vs. 19.5 percent) and prevalence of post-injury opioid use was higher among claims with pre-injury opioid use compared to cases without such pre-injury use (67.2 percent vs. 22.8 percent). Train supervisors and managers how to identify the signs of drug abuse, the steps to take if abuse is suspected, and the legal issues involved. It is in the best interest of the employer to provide support and confidential access to treatment.

Proactive employers are also altering health plans to restrict the use of prescription opioids. The Surgeon General urges employers to ensure that health providers are following the Centers for Disease Control and Prevention (CDC) guidelines, “Use your levers on the health care delivery side.” He notes that dental prescriptions for opioids is the first step for many toward addiction. “If you tell your employees and their families that you’re not going to pay for more than 10 pills if they go to the dentist, that will have a quicker impact than anything I can do as surgeon general to educate the prescribers in the community.”

While the path to finding effective treatment of choice can be long, difficult, and expensive, doing nothing can be costlier to the employer and devastating for the worker.

Note: NCCI is doing a series exploring three viewpoints on issues surrounding opioid use and workers’ compensation: those of doctors, insurers, and workers compensation regulators.

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

Legal Corner

ADA
Employer takes proper steps to win approval of terminating employee taking opioids

In Sloan v. Repacorp, Inc. (S.D. Ohio February 27, 2018), an employee who worked 10% – 20% of his time on heavy machinery was taking both prescription morphine and non-prescription opioids. The company’s handbook requires all employees to notify management if they are taking nonprescription or prescription medications and testing positive for these could result in termination. However, the employee did not inform his supervisors.

After his company learned of his drug use, the employee voluntarily submitted to a drug test and tested positive for hydrocodone, the opiate found in Vicodin. When he was terminated less than two weeks later, he filed suit on charges including disability discrimination and retaliation under the ADA. He alleged he was disabled because of degenerative disc disease and arthritis in his neck and back and fired because of his disability.

The company, however, had made a good faith effort to involve him in the interactive process. It asked him to consult with his doctor to see if there were alternative medications or treatments for his pain that did not include opiates, but he refused. The court noted that he was not fired because he was a direct threat to himself or others, but because he failed to participate in the interactive process. Thus, he impeded the company’s ability to investigate the extent of his disability and determine whether a non-opiate medication could reasonably accommodate his disability.

This decision serves as a reminder that individualized assessments should always be made and an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.


Workers’ Compensation
Statute of limitations for temporary disability awards clarified – California

In County of San Diego v. Workers’ Compensation Appeals Board and Kyle Pike, a deputy sheriff suffered an injury to his right shoulder on July 31, 2010, and received benefits for five years up to July 31, 2015. He sought to reopen the petition and receive temporary disability benefits and a WCJ awarded the benefits and the Board agreed.

However, a dissenting panel member argued that the statute does not permit an award of temporary disability more than five years after the date of the injury. The Court of Appeal, 4th Appellate District, agreed, noting the language of the statute clearly indicates that temporary disability payments cannot be awarded for periods of disability occurring more than five years after the date of the underlying injury.

Interactive process and accommodation required after injury – California

In Bolanos v. Priority Business Services, an injured worker returned to work with restrictions and suffered a hernia while he was working in the office. He settled a workers’ comp claim for the hernia, but the company told him they could no longer accommodate him. He filed suit alleging disability discrimination and retaliation and a jury awarded him almost $40,000 and attorney fees of $231,470.50, plus $10,697.08 in costs.

The company argued that it could not show it engaged in the interactive process and reasonably accommodated the employee because a trial judge disallowed evidence of the workers’ compensation claim and settlement from consideration by the jury. However, the Court of Appeals found the company was not prejudiced by the trial judge’s ruling.

Implanted surgical hardware does not qualify as continued remedial care – Florida

Under Florida statutes, workers have two years from date of injury to file a worker’s compensation claim, but the time can be extended to one year after the date that the employer last paid indemnity benefits or furnished remedial care. In Ring Power Corp. v. Murphy, an employee who injured his back underwent spinal surgery and doctors used rods and screws to stabilize his spine while the bone grew back together.

A judge determined that a petition for benefits seeking additional medical treatment was not time barred because the company was continuously furnishing remedial treatment as long as the rods and screws remained within the worker’s body. The 1st District Court of Appeal disagreed noting that the pins and screws no longer served a purpose.

Worker’s suspected intoxication not factor when insurer fails to meet 120-day deadline to deny compensability – Florida

In Edward Paradise v. Neptune Fish Market/RetailFirst Insurance Co., an employee fell and fractured his hip while emptying the garbage. The employer was informed of the injury but did not report it to the insurer. The injury was complicated by infections and, ultimately, five surgeries were required. Ten months after the accident, the worker filed the first notice of the injury and the insurer elected to pay and investigate under Florida’s 120-day rule. The insurer did not file a notice denying compensability of the workplace injuries because of intoxication until almost 16 months after the injury. The court noted the failure to meet the 120-day deadline to deny the compensability of an injury claim waived the insurer’s intoxicated-worker rights.

Appellate court misconstrued “arising out of employment” requirement – Georgia

In Cartersville City Schools v. Johnson, a school teacher was denied benefits by the State Board of Workers’ Compensation’s Appellate Division for a fall incurred while she was teaching a fifth-grade class because the act of turning and walking was not a risk unique to her work. Upon appeal, the Court of Appeals noted, “For an accidental injury to arise out of the employment there must be some causal connection between the conditions under which the employee worked and the injury which (s)he received.”

It said the Appellate Division overlooked the proximate cause requirement and focused on the concept of equal exposure – that the teacher could have fallen outside of work while walking and turning, as she did while she was at work. Therefore, it erroneously concluded her injury resulted from an idiopathic fall and was not compensable. Although an employee could theoretically be exposed to a hazard outside of work that mirrors a risk faced while at work, it does not mean an injury resulting from the workplace hazard is non-compensable.

No death benefits for family in asbestos claim – Georgia

In Davis v. Louisiana-Pacific Corp., an employee, who worked at a Louisiana-Pacific facility in Alabama, moved to Georgia after leaving his position. Several years later, he was diagnosed with mesothelioma and died. His family filed a claim for death benefits arguing that, although he was last exposed to asbestos in Alabama, his diagnosis and death occurred in Georgia.

While the court acknowledged that there was not a work-related “injury” until he was diagnosed with mesothelioma, the “accident” that resulted in his condition was his exposure to asbestos while he was employed in Alabama. Had the worker’s contract been executed in Georgia he would have been eligible for benefits, but it was made in Alabama and, therefore, the state did not have jurisdiction over the claim.

Children can sue over birth defects related to father’s on-the-job exposure – Illinois

The exclusive remedy afforded by worker’s comp does not apply to two teenagers who suffered birth defects as a result of their fathers’ workplace exposure to toxins because they were seeking damages for their own injuries, not their fathers’ noted the 1st District Court in reversing the Circuit Court of Cook County. The fathers’ employer, Motorola, had argued successfully to the Circuit Court that the birth defects were derivative of a work-related injury to their fathers’ reproductive systems. However, upon appeal, the 1st District Court noted the children weren’t employees of Motorola, and they were suing over their own injuries, not their fathers’.

Failure of company to get out-of-state coverage nixes death claim – Illinois

In Hartford Underwriters Insurance Co. v. Worldwide Transportation Shipping Co., the Iowa-based shipping company hired an Illinois truck driver who only worked in Illinois. After he died from a work-related injury, his widow filed an Application for Adjustment of Claim against Worldwide under the Illinois Workers’ Compensation Act. Since the company only had workers’ comp coverage in Iowa at the time of the fatal accident and none of the insurer’s conduct suggested that coverage extended to out-of-state drivers, the insurer was not liable for death benefits.

Dismissal of tort claims against co-workers upheld – Missouri

Four cases that occurred during the period (2005 – 2012) when the comp law did not extend an employer’s immunity to co-workers were recently considered by the Supreme Court and the dismissal of the tort claims upheld. “For purposes of determining whether a co-employee can be liable for an employee’s injury between 2005 and 2012, the co-employee’s negligence is assumed,” the court said. The focus needs to be on whether the breached duty was part of the employer’s duty to protect employees from foreseeable risks in the workplace.

In Conner vs. Ogletree and Kidwell, Conner suffered an electrical shock when he came in contact with a live power line. The Supreme Court said the failure of his co-workers to ensure that the line was de-energized was a breach of the employer’s duty to provide a safe workplace. In Evans vs. Wilson and Barrett, the court said that a worker’s negligent operation of a forklift was also a breach of his employer’s duty to provide a safe workplace.

In McComb v. Nofus, the court said the decision of two supervisory employees to send a courier out into a dangerous winter storm was not a breach of any personal duty owed to McComb. In Fogerty v. Armstrong, the court said a worker’s misuse of a front loader was a breach of the employer’s duty of care.

Average weekly wage includes compensation, value of meals and lodging for former pro athlete – Nebraska

Nebraska’s statute states that wages do not include “board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring.” In Foster-Rettig v. Indoor Football Operating, a professional indoor football player received $225 for each game he played in, plus an additional $25 per game if the team won or played well. The team also paid for him stay at a particular hotel in Omaha seven days a week during the football season and he got 21 meal vouchers for local restaurants.

His career was ended by a back injury and he filed a comp claim. At trial, he provided expert evidence about the value of the hotel room and meals. The Court of Appeals agreed with the compensation court that benefits should be based on an average weekly wage of $903.25, including an average salary of $231.25 per week from playing in games, plus an average of $350 per week for lodging and $320 per week for his meals.

Landlord liable for labor law claim even if tenant contracted for work without their knowledge – New York

In Gonzalez v. 1225 Ogden Deli Grocery Corp. a deli leased retail space, hired a painter to add a decoration to its sign, and set up the A-frame ladder. The painter fell from the ladder and filed a Labor Law action against the landlord for his injuries. Under Section 240(1), property owners have absolute liability for failure to protect workers from elevation-related risk and Section 241(6) imposes a non-delegable duty on owners to comply with the safety regulations of the code. Even if the deli contracted with the painter without the knowledge of the landlord, the landlord was liable, according to the Appellate Court. The landlord only presented unsworn statements from the deli owner and a deli worker and hearsay statements cannot defeat summary judgment if they are the only evidence.

Tort claim against co-employee can proceed – New York

In Siegel v. Garibaldi, an employee who was walking to the campus safety office to clock out was struck by a car driven by a co-worker, who was heading home. The injured worker received comp benefits and filed a tort action against his co-worker. While the appellate court noted that the law ordinarily limits a worker to a recovery of workers’ compensation benefits if he is injured by a co-worker, in this case, the driver was no longer acting within the scope of his employment. The road was open to the public and the risk of being struck in a crosswalk is a common risk shared by general members of the public.

Expert medical evidence is required to establish occupational disease claim – North Carolina

In Briggs v. Debbie’s Staffing, an employee operated a large mixing machine at a refractory manufacturer. Employees were required to wear respiratory protection masks because the process produced a lot of dust. After the employee was fired for attendance-related issues, he filed a workers’ compensation claim, asserting chronic obstructive pulmonary disease and asthma. While a physician initially opined that the asthma was likely caused by the working conditions, he did not know the worker was a smoker and had worn a respirator mask and testified this might affect his opinion on causation.

The employee argued that his own testimony about the working conditions were sufficient to establish a claim, but the appellate court noted only an expert is competent to opine as to the cause of the injury and present medical evidence that the employment conditions placed the employee at a greater risk than members of the general public.

Slip and fall on shuttle bus compensable – Pennsylvania

In US Airways Inc. v. Workers’ Compensation Appeal Board, a flight attendant was trying to place her luggage on the racks in a shuttle bus that was taking her from the airport to an employee parking lot, when she slipped on water on the floor and injured her foot. The airline argued that the incident did not take place on the airline’s property and that the shuttlebus was part of her commute to work, since it did not own the shuttlebus and did not require its employees to park in the parking lot. The Commonwealth Court ruled that her commute ended at the parking lot and work began on the shuttle, thus, her injury was compensable.

Worker was not permanently and totally disabled – Tennessee

For almost twenty years, the employee worked in a factory of General Motors. He suffered several on-the-job injuries and his last injury required surgery on his right shoulder. When he was cleared to return to work with restrictions, GM could not accommodate him and he never returned to work, nor sought other work. He filed a request for permanent total disability benefits, asserting that he had no vocational opportunities.

Two qualifying experts expressed conflicting opinions as to his vocational abilities and the employee said he did not consider himself unable to work, although not in the type of positions he had held in the past. The Supreme Court’s Special Workers’ Compensation Appeals Panel ruled against the benefits, noting it’s the trial court’s discretion to accept the testimony of one expert over another and to consider an injured employee’s testimony concerning his abilities and limitations.

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

HR Tip: Report: why employers are getting wellbeing wrong

A new report from the Campbell Institute, A Systems Approach to Worker Health and Wellbeing indicates not all employers are getting worker wellbeing right, and it could be affecting the sustainability of their business. While many organizations today are focused on wellbeing programs that tackle smoking cessation, weight loss or nutrition, the Campbell Institute report indicates a more multifaceted approach to worker wellbeing focused on improving the areas of highest risk to their employees can have the most benefit.

Recognizing there is not a one-size-fits-all solution to worker wellbeing, the Institute proposes a systematic approach to assessing and addressing total worker wellbeing, such as the “Plan Do Check Act” model. It’s designed to identify top problem areas, develop intervention strategies at an organizational level to address those risks, and ensure that the improvements are maintained.

The report includes a 35-item questionnaire that addresses six primary stress areas on the job.

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

Work-related injuries can increase a company’s healthcare costs through underreporting and on-going care

Two new studies came to a troubling finding: the usual method of studying reported injuries using workers’ comp records may underestimate the true number of injuries due to underreporting and use of group health insurance. To understand the actual cost of workplace injuries and illnesses, NIOSH-supported researchers at the Harvard T.H. Chan School of Public Health studied the cost of health insurance and patterns of underreporting.

One study focused on female healthcare workers. The injured workers’ combined insurance claims were $275 greater at three months post-injury, and at six months had climbed by $587.

Another study looked at whether injury reporting patterns differed among racial groups. Researchers compared the number of workers’ self-reported injuries to the number recorded by their employer’s official injury reporting system among a group of patient-care workers in a U.S. hospital. They found there were almost two times the number of self-reported injuries than those actually reported. While researchers noted that more research is needed, they found that self-reported injuries were more likely to go unreported to the hospital by black workers than were injuries to white workers.

Employer takeaway: These findings indicate that workers’ compensation costs do not reflect the true cost of work-related illness and injury. There are many explanations for why injuries are underreported, but the safety climate and supervisory enforcement behaviors, which are critically important to determining whether employees experience accidents at work, play a major role in whether employees are comfortable reporting injuries. Workers may fail to report injuries to their employer because they fear retaliation by their employer, stigma from their coworkers, or because they perceive the injury to be too minor or an accepted part of the job.

When an injury isn’t reported or properly cared for immediately, it can worsen and lead to higher health care costs, more lost time, and reduced productivity. One of the best ways to control costs is through early reporting and intervention through the work comp process. The often-quoted study by the Hartford Financial Services Group found that injuries reported four or five weeks after the incident are 45 percent more expensive than injuries reported within the first week due to increased health costs and possible legal fees (or even a lawsuit) associated with late reporting. Equally important, treating injuries through the work comp process will help to ensure an early return to work and improve safety programs.

In addition, employers may not recognize the hurdles employees face in filing a claim. Poor communication about the process, language barriers, cumbersome and paper-laden processes, no provisions for weekend or late-shift employees to report injuries immediately, and slow adoption of technology to report injuries are some of the common roadblocks to early reporting.

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

Long-term opioid prescriptions greatly increase the duration of temporary disability

The Workers’ Compensation Research Institute (WCRI) examined the impact of opioid prescriptions on the duration of temporary disability benefits for workers with lower back injuries. The conclusion: long-term opioid prescriptions lead to temporary disability durations more than three times longer than claims without opioid prescriptions. Long-term is defined as having prescriptions within the first three months after an injury and three or more filled opioid prescriptions between the 7th and 12th months after an injury.

According to the study, The Impact of Opioid Prescriptions on Duration of Temporary Disability, a small number of opioid prescriptions, over a short period of time, did not lengthen temporary disability.

Although medical practice guidelines often advise against routine use of opioids for the treatment of nonsurgical low back injuries, opioid prescribing in these cases is still common in a number of states. Workers living in high-prescription areas were more likely to receive opioid prescriptions than workers who lived in low-prescription areas.

The study examined data for injuries between 2008 and 2013 where workers had more than seven days of lost work time in 28 states. The states, which represent over 80 percent of benefits paid, were Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.

States with the highest average opioid prescribing rates:

  • Louisiana: 87 percent
  • Alabama: 85 percent
  • North Carolina: 82 percent
  • Tennessee: 82 percent

States with the highest average longer-term opioid prescribing rate:

  • Louisiana: 30 percent
  • South Carolina: 18 percent
  • Georgia: 17 percent
  • North Carolina: 16 percent

Employer takeaway: Working with physicians following evidenced-based guidelines helps ensure the proper treatment for injured workers. Moreover, few employers have escaped the pain of the opioid crisis. Educating workers as to the dangers of prescription opioids, as well as identifying workers who have an addiction and providing the appropriate assistance, is key.

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

Legal Corner

FMLA
Adverse actions shortly after medical leave spell trouble for employer

In Schram v. Dow Corning Corp., E.D. Mich., while traveling for business a long-term employee was accidentally struck on the head by another passenger’s luggage, causing a detached retina that required immediate surgery. She had recently changed positions within the company and her new manager asked her to postpone surgery, but she refused and was off work for approximately three weeks. Although no paperwork was filed for FMLA leave, Dow allowed the time off.

When she returned to work, she alleged the manager excluded her for meetings and began questioning her work, moved her office, refused accommodations for ongoing retina issues, and ridiculed her for vision problems in a meeting. Shortly thereafter, she was told her position was eliminated and she found another temporary position in the company for one year and then was terminated. Meanwhile, her former position was filled by a younger male employee with less marketing experience at a salary $40,000 higher than her old salary.

After leaving Dow, she sued alleging retaliation under the FMLA and Michigan workers’ compensation law, as well as disability and gender discrimination under Michigan law. The district court found in her favor, noting the timing of her injury, leave of absence, and her “position elimination” was sufficient to place her retaliation claims before a jury. The judge also found that the assignment of her identical role and job duties to a younger male with significantly less marketing experience could provide sufficient basis for a jury to find in favor on her discrimination claims.
Leave not available for insomnia following death of pet

In Buck v. Mercury Marine Corp., E.D. Wis., a machinist asked for, and was granted, a day off because he was upset that he had had to put his dog of 13 years to sleep. The next day, he called his supervisor and explained he had not been able to sleep since putting his dog to sleep and asked for the day off and was documented for an unexcused absence. The same day, he sought treatment and was diagnosed with “situational insomnia” and the doctor wrote him a note that he was in the clinic for evaluation of situational insomnia. Despite the note, the absence remained unexcused. Over the next three months, the employee accumulated several other unexcused absences that resulted in his termination and he filed suit under the FMLA.

While the court held that inability to sleep caused by the passing of a pet could arguably constitute a “serious health condition,” it noted the employee failed to show that his condition qualified under the act. Other than the one visit to the clinic, there was no treatment, no prescriptions, and the doctor’s note did not say he was unable to perform the functions of his job. Although the company did not provide the employee directly with information about his FMLA rights or provide him a copy of its FMLA policy, it did not mean the company had violated the act, since the act requires employers to provide an employee with notice only “when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.”
Other
Supreme Court ruling may mean employees have more time to file state-law claims

While employees can file a single lawsuit in federal court for both federal and state-law claims against an employer, when judges dismiss the federal claims, they can also decline to hear the state claims. The employee can refile the claims in state court, but lower courts have disagreed about how much time employees have to do so.

Federal law provides that state-law claims will be “tolled” or paused while the claims are pending in federal court and for a period of 30 days after they are dismissed-unless state law provides for a longer tolling period. In Artis v. District of Columbia, the relevant state law limitations period had already passed when the employee’s claims were dismissed by the federal judge. The employer, therefore, argued that the worker only had a 30-day grace period to file her claims in state court.

However, the employee argued the tolling period began when the claim was first filed in federal court. In a 5-4 ruling, the U.S. Supreme Court agreed and held that the employee had 30 days plus whatever time had remained under the state statute of limitations when the federal lawsuit was initially filed.
Workers’ Compensation
Landmark decision means employers can face civil penalties for safety violations – California

In Solus Industrial Innovations, LLC v. Superior Court of Orange County, the Supreme Court has upheld the right of prosecutors to seek civil penalties under unfair competition statutes against employers violating work-safety statutes. While the company argued that the state plan for occupational safety and health should govern how employers with work-safety violations are treated, the court sided with prosecutors who argued they were targeting unfair business practices that arose from work-safety violations, not for the work-safety violations themselves. Although the decision is considered a landmark, it essentially validated an avenue that prosecutors have been using to go after unsafe corporate employers for decades.

Grubhub driver ruled independent contractor; judge urges change in gig economy laws – California

When a delivery driver was fired by Grubhub for failure to make deliveries while on the app, he sued for back wages, overtime and expense reimbursement. While he received a fee for each delivery, the company also paid him a minimum hourly rate and, therefore, he argued he was an employee. Grubhub claimed that they are primarily a software development company, not a food delivery service, so delivery drivers are not key to their business and they did not have enough control over their drivers to classify them as employees. Noting the need to update the laws relating to the gig economy, the judge said overall Grubhub did not have control over his work and under current laws he is an independent contractor.

Treatment must be by authorized doctor – Florida

In Hernandez v. Hialeah Solid Waste Department, the treating physician prescribed facet joint injections and the claims adjuster approved, but with a different physician. The 1st District Court of Appeal said the statutes allow an employer to transfer the care of a worker from an attending provider only if the worker is not making appropriate progress in recuperation and the refusal to allow the treating physician to do the injections was “a de facto deauthorization of the doctor” and improper.

Court explains interest rate on benefits when employers unsuccessfully challenge awards – Illinois

In Dobbs Tire & Auto v. IWCC, two employers unsuccessfully contested the award of benefits to two injured workers. The employers paid the awards plus interest, one at 0.11% and the other at 0.13%. The employees contested the rates in different county courts, and one court dismissed the complaint, while the other found the interest rate should be 9%. The cases were consolidated upon appeal.

While the Appellate Court explained that the Code of Civil Procedure Section 2-1303 provides that judgments recovered in any court will draw interest at a rate of 9% per year until satisfied, it only applies “if and when the arbitrator’s award or commission’s decision becomes an enforceable judgment,” because the employer has failed to pay. An employer that makes payment of an award, accrued installments, and Section 19(n) interest before the injured worker files a motion to enforce is not subject to the 9% interest. Section 19(n) provides for interest at a rate equal to the yield on indebtedness issued by the United States government with a 26-week maturity next previously auctioned on the day on which the decision is filed.

After firing an adjuster following a comp claim, insurance company faces ADA and retaliatory termination case – Illinois

In Buhe v. Amica Mutual Insurance Co., a federal judge ruled against an insurance company’s summary judgment in a suit filed by a former adjuster fired after an 11-month, unresolved workers’ comp claim. The adjuster fell off a roof while investigating a homeowner’s claim and suffered injuries to his lower limbs and shoulder, requiring several surgeries and rehabilitation.

The insurance company knew that the adjuster ran a mortgage company on the side.

While he said someone else oversaw the office activities of his mortgage firm when he was injured, an adjuster said surveillance revealed he was working for his own company while collecting workers’ compensation. He filed for bankruptcy but did not include his comp payments, claiming ignorance. He then filed the suit against Amica, asserting claims of discrimination under the ADA when the company allegedly failed to accommodate him, and retaliatory discharge and promissory estoppel, related to his bankruptcy filing. Amica followed with a summary judgment against his claims.

A judge ruled in part against the summary judgment, finding merit in both claims related to the ADA and retaliatory termination: “…A disability leave of absence that an employee seeks as a reasonable accommodation ‘is a factual issue well suited to a jury determination,'” his ruling stated. He also found that “a reasonable jury could conclude that the real reason for the termination was not the violation of company policy but the workers’ compensation claim.”

“Unusual strain” from daily work routine is compensable – Missouri

In Clark v. Dairy Farmers of America, a woman worker who was the shortest worker in the plant broke her rib and doctors discovered she had a lesion near the fracture. Further tests revealed that the lesion was Langerhans cell histiocytosis, a rare malignancy which can weaken a bone to the point where it can fail under a force that is less than normal. While an administrative law judge denied the claim for comp, the Labor and Industrial Relations Commission reversed and the Court of Appeals agreed.

A worker is entitled to benefits if there is “personal injury” that was caused by an “accident.” Although the worker was injured performing her normal job duties, this time was unusual because she felt and heard a pop in her chest and she could not raise her right arm.

Treating physician’s opinion does not have to be given greater weight than others – Missouri

In Blackwell v. Howard Industries, the Court of Appeals ruled that a worker who suffered an elbow injury and who refused to participate in physical therapy (PT) sessions was not entitled to permanent total disability benefits. The Court of Appeals noted the worker received varying levels of treatment, evaluation and medical records reviews from at least 15 different physicians.

All of the doctors, except for the treating doctor, concluded that the best form of treatment was PT. While a treating physician’s opinion is “of great import,” the court said, “the commission is not required to abide by it or required to give it any greater weight than other physicians’ opinions.”

Employer does not have to pay for “unfamiliar and undocumented” treatments – Nebraska

In Escobar v. JBS USA, the Court of Appeals ruled that a worker was entitled to temporary total disability benefits for a back injury but said the compensation court had erred in determining which medical bills the employer had to pay. A tenderloin puller, the worker allegedly injured his back and received treatment from an onsite nurse but continued to complain of pain and saw several doctors, with one stating that the subjective back pain was out of proportion to the physical examination.

The compensation court determined that he suffered a compensable back injury and that he was entitled to temporary total disability benefits. However, the Court found that the compensation court ordered payment for “unfamiliar and undocumented” treatments that were not clearly related to the work injury.

State has jurisdiction for resident injured while working for out of state employer – New York

In Galster v. Keen Transport, an appellate court ruled that the state workers’ compensation system had jurisdiction over a resident’s claim for an out-of-state accident while working for an out-of-state employer. A trucker who resided in New York worked for a Pennsylvania company, making deliveries of highway construction equipment all over the U.S. He injured his shoulder while shifting equipment in his trailer in Illinois.

After his injury, the company secured medical care for him in New York, as well as a light-duty job. The trucker filed a comp claim in New York, while the company filed one in Pennsylvania and contested the New York claim. The Appellate Division’s 3rd Department affirmed lower court decisions, noting New York has jurisdiction over a claim for an injury occurring outside the state where there are “sufficient significant contacts” between the employment and New York.

Compensation for exacerbation of pre-existing fibromyalgia denied – New York

In Park v. Corizon Health Inc., a worker was exposed to pepper spray while working in a prison when a guard discharged a canister to subdue an inmate. She sought medical care for her symptoms, returned briefly to work, and then took off almost one year. She filed a claim, asserting that her exposure to pepper spray had exacerbated her pre-existing fibromyalgia.

The Workers’ Compensation Board overturned the award by a workers’ compensation law judge, finding there was no causal connection. The Appellate Division’s 3rd Department said the board determines the factual issue of whether a causal relationship exists, and its determination will not change when supported by substantial evidence. The court noted there was conflicting medical testimony, there is no known medical cause of fibromyalgia, and that its symptoms are fleeting and vary considerably among individuals. Therefore, the Board’s decision to credit the opinion of the IME rheumatologist over that of the other physicians was entirely reasonable.

Construction worker receives comp for repetitive lifting injury – New York

In Garcia v. MCI Interiors, an employee worked as a plasterer in the construction industry for over 30 years. He filed a comp claim asserting he had suffered injuries to his neck and back from his repetitive heavy lifting. A neurosurgeon and the treating physician found that his chronic back pain was caused by “repetitive use at work.”

The Appellate Division’s 3rd Department said that a worker can establish an occupational disease by demonstrating a recognizable link between the medical condition and a distinctive feature of employment and with no contradictory medical evidence, the worker had succeeded in doing so.

Commission must review its denial of benefits to worker in light of recent Supreme Court ruling – North Carolina

In Neckles v. Harris Teeter, a meat cutter injured his hip, back, and arm at work and a functional capacity evaluation revealed that he would not be able to return to his job. A vocational rehabilitation specialist reported it would be “difficult” for him to secure a job in an open job market because of his limited work history, transferrable skills and age.

A few years later the company filed a motion asserting that the worker was no longer disabled. The Court of Appeals reversed the ruling of the Industrial Commission, which said the worker had not met his burden of proving that it would be futile for him to look for work. When appealed to the Supreme Court, it ordered the matter remanded to the Court of Appeals for reconsideration in light of the 2017 decision in Wilkes v. City of Greenville. In Wilkes, the Supreme Court ruled that a worker who can demonstrate a total incapacity for employment because of physical and vocational limitations does not also need to show that a job search would be futile. The Court of Appeals noted the case has to go back to the commission to make specific findings addressing the worker’s wage-earning capacity in light of his pre-existing and coexisting conditions.

Commonwealth Court ruling denying benefits for mental injury is published – Pennsylvania

The ruling in Frankiewicz v. WCAB (Kinder Morgan) denied benefits to a chemical operator for a psychiatric injury from exposure to a diesel fuel leak. Under state law, a claim must involve a combination of physical and mental injuries in order for mental injuries to be compensable, unless the mental injury was the result of exposure to “abnormal working conditions.” In this case, it was found that the worker only experienced transient symptoms that did not constitute a physical injury. These included headache, nausea, violent vomiting, choking, a runny nose and watery eyes after he was exposed to a discharge of diesel fuel from a plant a mile away. Following the incident, he began to suffer from panic attacks, anxiety and depression and doctors agreed the exposure had caused a mental injury.

The courts determined that he did not prove that he had been exposed to an abnormal working condition and the “transient” physical symptoms were insufficient to support an application of the physical-mental standard.

Failure to undergo surgery does not warrant shift in liability from employer to the Second Injury Fund – Tennessee

In Tankersley v. Batesville Casket Co., a long-term employee injured his arm and shoulder and surgery was recommended. However, the worker had congestive heart failure and decided not to undergo surgery. He returned to work with restrictions but eventually was laid off because the company had no work within his restrictions. A vocational counselor determined he had no transferrable skills and was 100% vocationally disabled because of the restrictions.

When a judge apportioned 90% of the liability for the award to the company and 10% to the state’s Second Injury Fund, the company appealed arguing the disability was caused in large part by pre-existing medical conditions. The court found that the ruling was based solely on the arm and shoulder injuries and the vocational counselor’s findings were based on the restrictions, thus the evidence did not preponderate against the trial judge’s apportionment decision.

Temp workers can choose to sue or apply for workers’ comp – Wisconsin

In Ehr v. West Bend Mut. Ins. Co. (In re Estate of Rivera), the Court of Appeals issued a decision that temporary workers have the right to file a suit against their temporary employer if they do not make a workers’ compensation claim. The case involved Carlos Rivera, a temporary employee of Alex Drywell, who was killed on the job in a one-car accident. Assigned to work for Alpine Insulation, Rivera was in an Alpine-owned vehicle, driven by an Alpine employee when the car crashed. The Alpine employee was later found to be at fault in the accident.

His estate filed a wrongful death suit against Alpine and the insurance company rather than claim death benefits under workers’ comp. The appeals court overturned a lower court and said that the exclusive remedy portion of the Workers’ Compensation Act doesn’t bar a temporary employee from bringing a claim against their temporary employer, if they had not made a claim for compensation, even if they were a “loaned employee.” The court determined that his estate could not bring a suit against Alex Drywall but was free to bring a suit against Alpine since Alpine was not technically his employer.

It’s expected that the case will be appealed to the Supreme Court.

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

HR Tip: ABA’s summary of 2017 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 2017 in a user-friendly manner.

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