Things you should know

Return to work more likely with less-invasive back surgery

A recent study of 364 Ohio workers diagnosed with degenerative spinal stenosis who underwent back surgery found that those who underwent primary decompression, a surgical procedure to alleviate pain caused by pinched nerves, had higher return to work rates than those who had the more-invasive, more-expensive fusion surgery. The study was published in July’s Spine medical journal.


Ohio adopts rule requiring initial conservative back treatment

The Ohio Bureau of Workers Compensation’s new spinal fusion rule requires workers to first undergo at least 60 days of comprehensive conservative care, such as physical therapy, chiropractic care and rest, anti-inflammatories, ice and other non-surgical treatments before lumbar surgery. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule.

DOL will again issue opinion letters on FMLA, FLSA and other laws

The U.S. Department of Labor will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. The DOL has established a new webpage to submit requests for opinion letters and to review old opinion letters.

New I-9s must be used beginning Sept. 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. Changes to the form are considered minor.

Free safe driving kit from National Safety Council

The Safe Driving Kit, sponsored by Wheels, Inc., aims to create safer roads and protect employees through multi-media resources and engaging materials. The kit addresses the key contributors to car crashes, including distraction, alcohol, other drugs, fatigue and seatbelt use. It also brings attention to lifesaving technology that helps prevent crashes.

Workers’ comp making more progress in reducing opioid prescriptions

According to research released by the Centers for Disease Control and Prevention (CDC), the average days’ supply per opioid prescription increased from 13 days in 2006 to almost 18 days in 2015. Meanwhile, nearly half of the states included in a study of opioid prescribing in workers’ compensation cases have seen reductions in the frequency and strength of opioids given to injured workers, according to a study released in June by the Cambridge, Massachusetts-based Workers Compensation Research Institute.

More than 1,000 unsafe CMVs pulled from service during ‘Operation Airbrake’

Brake violations prompted the removal of 1,146 commercial motor vehicles from service as part of a recent unannounced, single-day inspection blitz across the United States and Canada on May 3. According to the Commercial Vehicle Safety Alliance (CVSA), 12 percent of CMVs inspected were taken out of service for brake violations, and 21 percent were removed for other violations.

More than half of workers aren’t trained on first aid, CPR: survey

About 10,000 cardiac arrest situations occur in the workplace each year, yet only 45 percent of U.S. employees have been trained in first aid – and only 50 percent of workers know where to find an automated external defibrillator – according to the results of a survey recently conducted by the American Heart Association.

‘Sleeping in’ on weekends may be bad for your health: study

Going to bed later and waking up later on weekends than during the week – also known as social jet lag – may be linked to poor health and higher levels of sleepiness and fatigue, according to the preliminary results of a study conducted by researchers at the University of Arizona. Results showed each hour of social jet lag was linked to an 11.1 percent increase in the chances of developing heart disease. In addition, participants who experienced social jet lag were 28.3 percent more likely to report their health as “fair/poor.” The study abstract was published in an online supplement to the journal Sleep.

Safety measures lacking on plastic injection molding machines, peripheral equipment: study

Factories with plastic injection molding machines that interact with peripheral equipment – such as robots or conveyors – could do more to improve safety, Canadian scientific research organization IRSST concluded in a recent study. The study was published in May along with a technical guide.

State news

New rule requires preauthorization of all compounds, regardless of price – Florida

  • To clear up a “misunderstanding” among stakeholders, the Florida Division of Workers’ Compensation has clarified that all compounded drugs, regardless of cost, are now subject to preauthorization.

Legislators pass budget without workers’ comp reform – Illinois

  • While the state faces one of the highest workers’ compensation insurance rates in the country, legislators were unable to reach a consensus on reforms.

Prescription drug monitoring program implemented – Missouri

  • Missouri was the only state that lacked a prescription drug-monitoring program prior to last month when the governor signed an executive order directing the Department of Health and Senior Services to create a prescription drug-monitoring program.

Workers’ comp rules tightened – Missouri

  • The new legislation redefines “maximum medical improvement (MMI)” as the point when the condition of an injured employee can no longer improve, and bans any claims for benefits beyond that time period. It also puts more emphasis on the employee proving an employer discriminated against them after they filed a workers’ compensation case.

4.5% decrease in workers’ comp for businesses – New York

  • The New York Department of Financial Services has approved the 4.5% workers compensation premium rate decrease recommended by the New York Compensation Insurance Rating Board effective Oct. 1.

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

Things you should know

Attention motor carriers: “Roadcheck” annual event – June 6 – 8

Nearly three times more roadside inspections take place during the 72 hours on June 6 – 8 than on any other time of the year. Sponsored by the Commercial Vehicle Safety Alliance (CVSA), the intensive annual “Roadcheck” is a good opportunity for those in the motor carrier industry to improve their Compliance, Safety, Accountability (CSA) scores. In 2016, 62,796 truck and bus inspections were completed throughout the United States, Canada, and Mexico.

Top construction risks: geopolitical instability, workforce management issues

In a survey of executives in the construction sector, Willis Towers Watson P.L.C. found geopolitical instability and workforce management issues as the biggest challenges facing the industry. Geopolitical issues included uncertainty of government support and financing, postponement and delays, changes in strategy, and commitment to project pipelines. Workforce management issues include increasing need for digital skills, a global employee network, disparate labor laws, difficulty to attract talent, and an aging population. The Construction Risk Index report can be downloaded here.

New pamphlet spotlights Hypothenar Hammer Syndrome

Scientific research organization IRSST has released a pamphlet intended to help workers recognize Hypothenar Hammer Syndrome. Aimed at workers who use vibrating tools or frequently strike, press or twist objects with the palms of their hands, the free pamphlet outlines syndrome warning signs and prevention methods.

Mayo Clinic study: second opinion leads to new or refined diagnosis for 88% of patients

Many patients come to Mayo Clinic for a second opinion or diagnosis confirmation before treatment for a complex condition. In a new study, Mayo Clinic reports that as many as 88 percent of those patients go home with a new or refined diagnosis – changing their care plan and potentially their lives. Conversely, only 12 percent receive confirmation that the original diagnosis was complete and correct.

These findings were published online in the Journal of Evaluation in Clinical Practice.

Study links participation in weight-loss programs to reduced absenteeism

Obese workers who took part in a structured weight-loss program reported fewer hours missed on the job after six months, a recent University of Michigan study shows.

Researchers surveyed 92 people who had an average body mass index of 40 and worked in various occupations. Before entering the program, participants stated in a self-evaluation that they worked an average of 5.2 fewer hours a month than their employers expected. After six months and an average of 41 pounds shed, participants reported working 6.4 more hours a month than expected.

WCRI’s CompScope™ Benchmark 2017

The 17th edition of CompScope™ Benchmarks Report is available from the Workers’ Compensation Research Institute (WCRI). The report looks at the impact of state workers’ compensation reforms on things like claim costs, rate of litigation, and disability duration and included 18 states: California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia and Wisconsin. In California and North Carolina, the total costs per claim have been steady between 2010 and 2013. Illinois saw total costs per claim decrease by 6.4 percent since 2010, which researchers attribute to a 30 percent reduction in fee schedule rates for their medical services. Indiana’s total costs per claim decreased by 4 percent from 2014 to 2015, a product of a 10 percent decrease in medical payments, but a 5 percent increase in indemnity benefits per claim. In Florida, total costs per claim increased between 2010 and 2015, but there were decisions last year from the Florida Supreme Court that may slow or stop those increases in costs.

Rising pedestrian death toll

The latest report on U.S. pedestrian deaths, from the Governors Highway Safety Association, estimates that last year’s total rose 11.6 percent to nearly 6,000, or more than 16 fatalities a day. If that projection proves accurate – it is based on fatality records from only the first half of 2016 – it would mark the sharpest yearlong increase since records have been kept.

Analysts are putting much of the blame on drivers and walkers who are looking at their smartphones instead of watching where they are going. Tipsy walking also is part of the problem, with one in three victims legally drunk when they were struck and killed.

Workplace death rate hits a 10-year high in Massachusetts

Seventy Massachusetts workers lost their lives last year, marking a 10-year high in the rate of workplace-related fatalities, according to the Massachusetts Coalition for Occupational Safety and Health, known as MassCOSH. Sixty-two of those workers were killed on the job, many in construction; the rest were firefighters who died from occupational illnesses, such as lung cancer and heart disease.

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

Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

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

Legal Corner

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

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

Legal Corner

ADA
Severe obesity claim of discrimination can proceed

A bus driver of the Chicago Transit Authority sought to return from an extended medical leave and was cleared through a fitness exam to return to work, but failed a safety assessment and was not allowed to return to work. The Authority argued that obesity is not a disability unless it is due to a physiological disorder and the employee had not alleged a physiological disorder.

However, the Court noted that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability. The court did not take a position on what approach is right, but said “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.” Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016)

 

FMLA
Medical privacy protected under FMLA

In Scott Holtrey v. Collier County Board of County Commissioners, the Florida U.S. District Court ruled the employer violated the FMLA when a management-level employee allegedly disclosed the employee’s serious health condition with his genitourinary system to co-workers and subordinates at a staff meeting. The employee became the subject of jokes and obscene gestures. While the County Board argued that the interference claim failed because it granted the employee FMLA leave, the Court disagreed, “The enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA.”

Doctor’s certification and job description key factors in defining essential functions

A laborer for the City of Red Bank in Tennessee, who rose to the position of Assistant to the Director of Public Works, did significant outdoor work. His job evolved and required different responsibilities, more and more of which were outdoors. He developed skin problems and was diagnosed with lupus. His dermatologist said he needed to be indoors.

After an indefinite FMLA leave lasting six months, he returned to work and bought protective clothing, but it failed to provide adequate protection. He sought another FMLA leave and his doctor ‘s certification emphatically stated that he must work indoors. When it was determined he was not qualified for the two open indoor positions, he was terminated.

The City prevailed at the federal court level, and upon appeal the Sixth Circuit Court of Appeals affirmed that the worker did not show that he could perform the essential functions of his job with or without accommodation. While the employee and the doctor attempted to modify their position after the termination decision, the City had a right to base its decision on the information available at the time of termination. Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016)

Workers’ Compensation
Michigan federal court reiterates that RICO may not be used for bad faith claims – United States

Citing two earlier precedents, a federal district court sitting in Michigan ruled that racketeering activity leading to a loss or diminution of benefits that a worker expects to receive under a state workers’ compensation system does not constitute an injury to “business or property” under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. The worker tried to distinguish his case by alleging tortious activity by “independent medical examiners.” Gucwa v. Lawley, 2017 U.S. Dist. LEXIS 8698 (E.D. Mich., Jan. 23, 2017)

Medicare reimbursement is limited to related injuries identified by diagnosis codes – California

The U.S. District Court for the Central District ruled in favor of the California Insurance Guarantee Association (CIGA) in its ongoing challenges against the Centers for Medicare and Medicaid Services (CMS) over the Medicare Secondary Payer (MSP) practices. CIGA faced Medicare Conditional Payment demands for three separate workers’ compensation claims that had settled. Included in the demands were diagnosis codes unrelated to the accident.

CIGA noted to the court that it is not uncommon in conditional payment letters from the CMS for multiple diagnosis codes to appear under a single charge – some of which relate to a medical condition covered by the primary plan, but others that do not. CMS routinely determines if any of the codes relates to a covered condition and seeks reimbursement for the full amount. California Insurance Guarantee Association v Burwell, et al case no. 2:15-cv-0113odw (ffmx)

Broad interpretation of employment finds union responsible for member’s injury – California

In Mason v. S.E.I.U. Local 721, 2016 Cal. Wrk. Comp. P.D. LEXIS 618 (Lexis Advance), the WCAB, reversing the WCJ in a split panel opinion, held that an employee of the County of Los Angeles, Department of Children and Family Services who was a member of S.E.I.U. Local 721 was acting as an employee of S.E.I.U. Local 721 at the time she suffered an injury while participating in a union rally. The WCAB found employment by the union, noting the injured worker was rendering service for “another,” (the union), and that the union provided transportation, food and water while at the rally, and that the services and goods provided by the union were akin to economic substitutes for wages.

Injured worker can’t switch to doctor in different specialty – Florida

In a case of first impression, the Florida 1st District Court of Appeal ruled that a worker exercising his statutory right to a one-time change in physician was not entitled to choose a new doctor in a different specialty simply because the carrier did not respond in a timely fashion. In Retailfirst Insurance Co. v. Davis, an employee who had injured his leg had received authorization for treatment with a family practice physician and later sought authorization for care with an orthopedist. The court noted that procedures exist for such a request.

Change in economic conditions not basis for increased benefits – Illinois

In Murff v. IWCC (City of Chicago), No. 1-16-0005WC, 01.06.2017, an injured worker returned to work in a modified capacity. Later, he was determined to have reached maximum medical improvement and was awarded benefits and continued to work in the modified capacity for about six months. He was then told him that if he could not return to his old job duties, he’d have to go home, so he went on disability leave and filed a claim seeking additional comp benefits.

The Appellate Court upheld the findings of the lower courts that there was no evidence he had not suffered any material change in his physical or mental condition since the award of benefits. An increase in economic disability is not a basis for additional comp benefits.

Lung disease from pigeon droppings lead to lifetime of benefits – Missouri

In Lankford v Newton County an investigator with the county prosecutor’s office would smoke frequently on the courthouse roof, which was a popular place for pigeons. In 2002, he was diagnosed with COPD as a result of ammonia exposure from investigating a meth lab and in December 2007, after undergoing lung surgery, to remove half of his right lung, which contained a nodule that was suspected to be cancerous, he suffered a stroke that left him unable to work.

He filed a workers’ comp claim asserting that he was exposed to pigeon droppings during the course and scope of his employment. Doctors noted that a biopsy of his lung nodule showed the growth contained bacteria and a fungus linked to pigeon droppings. He died of complications and his wife became the claimant. The case was appealed up to the Court of Appeals, but in each case, the award of $167,811.62 in permanent total disability benefits to the deceased worker, as well as more than $500 in lifetime weekly workers compensation benefits to his wife, was approved.

Change in job duties means claim compensable despite pre-existing condition – Missouri

In Clawson v Cassens Transport Company, a union car hauler had a pre-existing knee condition as a result of a work-related accident a few years earlier. After working for 3.5 years after the accident, his workload increased and he began working 6-7 days per week. When he complained of pain in his knee, the employer denied the claim and declined to provide medical treatment. He sought medical treatment on his own, was advised to have surgery and a doctor opined the issue was casually related to the increase in his job duties.

At a hearing, an ALJ found that although there was a pre-existing condition, the prevailing factor in causing his worsening condition was the change/increase in his job duties.

Subcontractor found guilty for worker’s death – Missouri

The U.S. District Court in Kansas City found Pacific-based DNRB Inc., a steel erection company doing business as Fastrack Erectors, guilty in the 2014 death of an employee who fell while working on a warehouse construction project in Kansas City. The court found that “Fastrack was aware of safety violations but willfully ignored them, with tragic results.” Fastrack was a subcontractor to ARCO National Construction – K.C., Inc. and the contract required that personnel who were working or present at heights in excess of six feet shall be provided adequate fall protection and Fastrack failed to do so.

Undocumented worker due comp benefits – New York

A U.S. District Court judge dismissed an insurer’s request to forgo payment of workers’ compensation benefits for an undocumented landscaper’s injury. The insurer, NorGuard Insurance Co., sought a declaratory judgment that it wasn’t obligated to pay medical expenses, indemnity payments or comp benefits because the worker had entered the U.S. illegally.

The court noted that the insurers allegations simply do not “fall within the zone of interests protected by law invoked. Such violations are the concern of the Internal Revenue Service, Homeland Security, and like agencies.”

Opera singer can sue Met for injuries sustained in fall – New York

Finding that her employment contract was with her personal holding company and not the Metropolitan Opera House, an Appellate Court found that a prominent opera singer can sue the famous facility that featured her in over 500 performances. Noting that New York law generally considers a person engaged in the performing arts an employee of the establishment where he or she performed, the exception here was the singer was stipulated to be an employee of another employer. Therefore, the exclusive remedy provisions of workers’ comp do not bar her suit. White v. Metropolitan Opera Assn., Inc., 2017 N.Y. App. Div. LEXIS 90 (Jan. 5, 2017)

No reason to stop compensating attendant care by wife – North Carolina

In Thompson v. International Paper Co., No. COA15-1383, 01/17/2017, a worker was burned over 23% of his body in a work-related accident. His wife took FMLA leave from her job to care for her husband and, when she returned to work, she arranged her schedule to accommodate his medical needs. While the company accepted the burn injuries as compensable, it denied reimbursement for attendant care services provided by his wife. The full Industrial Commission ruled that attendant care by his wife was unnecessary after Dec. 31, 2012, but the appellate panel disagreed. While the need for care may have lessened, treating physicians had found attendant care was medically necessary.

Futility in finding another job allows continuing benefits – North Carolina

In Neckles v. Teeter, a 68-year-old employee who had moved to the U.S. from the Caribbean island nation of Grenada had worked as a meat cutter and suffered an injury to his lower back, right hip, and right arm and leg for which he was compensated and received temporary total disability. A functional capacity evaluation concluded he couldn’t go back to his job as a meat cutter, but he was capable of a job that required light physical demands, however, a vocational rehabilitation specialist determined it would be difficult for him to get any job.

Three years later, the employer filed a form alleging the worker was no longer disabled. After a series of appeals, the Court of Appeals ruled that the worker should continue to receive TTD benefits and coverage of medical expenses. According to the court, it was necessary to look at the totality of the evidence, including age, education, work experience, work restrictions for the compensable injury, other unrelated health conditions (i.e., diabetes, gout, and angina), and trouble communicating (a thick accent).

IRE that didn’t consider worker’s psyche invalidated – Pennsylvania

A divided Supreme Court ruled that an impairment rating evaluation (IRE) that failed to consider a worker’s psychological injuries from an industrial accident was invalid, noting an IRE doctor must consider all conditions that he or she believes are related to the worker’s injury, not just those that are designated in the notice of compensation payable (the “NCP”.)

In this case, an employee suffered an electric shock and received 104 weeks of temporary total disability benefits at which time the employer requested an IRE. The doctor assigned a 6% permanent impairment rating, but the employee argued his compensable injury included damage to his psyche as well as his hands. A workers’ compensation judge found the worker had adjustment disorder and post-traumatic stress disorder that were compensable consequences of the accident. While the Workers’ Compensation Appeal Board and the Commonwealth Court reversed this decision, the Supreme Court overturned their ruling, noting that the IRE doctor must determine the level of impairment and in this case did not assess psychological conditions, nor determine whether those conditions were fairly attributable to the accident. Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.)

Supreme Court affirms franchisors do not employ their franchisees’ employees – Pennsylvania

In Saladworks, LLC v. W.C.A.B. (Gaudioso), the question revolved around whether the franchisor, Saladworks, was a statutory employer. Under Pennsylvania law, when an employee is unable to recover from its direct employer, the employee can file a workers’ compensation claim against a “statutory employer.” A Workers’ Compensation Judge initially held that Saladworks was not a statutory employer, however, the Workers’ Compensation Appeal Board reversed that decision. On appeal, the Commonwealth Court reversed the Board’s decision recognizing the difference between Saladworks’ business model and the business engaged in by its franchisee. The Supreme Court dismissed the appeal, effectively upholding the Commonwealth Court’s decision.

Penny wise and pound foolish: attorney’s fees of $27,000 awarded for $187 medical claim – Tennessee

In Grissom v. UPS, 2017 Tenn. LEXIS 4 (Jan. 9, 2017), the Special Workers’ Compensation Appeals Panel of the Supreme Court affirmed a trial court’s award of attorney’s fees and expenses in the amount of $27,353.63, in connection with an employee’s petition to compel the employer to pay $187 for two trigger point injections. The workers’ compensation carrier had sought a peer utilization review (UR), although it had paid for earlier injections. An authorized physician provided the injections to the injured employee, but the UR provider found the injections unnecessary. Following a hearing, the trial court disagreed.

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

Top 10 Workplace Trends in 2017

Performance Management tops the list

The Society for Industrial and Organizational Psychology (SIOP) asked its members – who study workplace issues of critical relevance to business, like talent management, coaching, training, organizational development, and work-life balance – about their predictions for 2017. Topping the list of top ten is the changing nature of performance management.

While much has been written about companies ending annual performance reviews and ratings, it’s unclear what will take its place. The group predicts, “Organizations can expect to rely less on once-a-year performance appraisals and more on frequent feedback and coaching to put the focus on improving performance. Strategies, such as continuous performance management, will lead to a greater emphasis on real-time feedback, daily manager-employee relationships and an increased need for managers to acquire the skills to coach and deliver timely feedback to employees.”

For the Top 10 Workplace Trends for 2017

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

Things you should know

DOL overtime rule on hold

In late September 2016, 21 states led by Texas and Nevada, along with the U.S. Chamber of Commerce and other business groups, challenged the new overtime exemption rule and sought a nationwide injunction preventing the rule from taking effect. The states argued that the DOL unconstitutionally overstepped its authority and took issue with the policy behind the rule change, arguing that salary level alone does not reflect the type of work an employee performs, and that the DOL’s regulation disregarded the text of the FLSA by imposing a salary threshold without regard to whether an employee actually performs bona fide executive, administrative or professional duties.

 

Workplace injuries decline in private sector

The number and rate of nonfatal workplace injuries and illnesses in the private sector declined last year, according to a Bureau of Labor Statistics (BLS) report. Private industry employers reported about 2.9 million nonfatal workplace injuries and illnesses in 2015, representing a decline of about 48,000 from 2014, despite an increase in total hours worked. The rate of cases recorded was 3.0 cases per 100 full-time workers, down from 3.2 in 2014. Nearly 2.8 million, or 95.2%, of the cases were injuries, with 75% of these injuries occurring in service-providing industries and the other 25% occurring in goods-producing industries.

Workplace illnesses accounted for the other 4.8% of the cases reported by private industry employers in 2015, with service-providing industries accounting for 64.7% of illnesses and goods-producing industries accounting for 35.4%, according to the report. Wholesale trade was the only sector with an increase in the rate of injuries and illnesses in 2015, rising from 2.9 cases in 2014 to 3.1 cases in 2015.

Important to note: More than half of the nonfatal injury and illness cases involved days away from work, job transfer, or restriction, according to the report.

 

Workers’ comp medical severity dips for the first time in two decades

Workers’ compensation medical severity fell about 1% from 2014 to 2015, marking the first time that medical severity has fallen since 1994, according to a report released by the National Council on Compensation Insurance Inc. (NCCI). A 3% decline in physician service utilization was “a major driver” in lower workers comp medical severity, which some attribute to more insured workers under the ACA. The mix of injuries covered under workers’ comp has remained stable between 2012 and 2015, with musculoskeletal and connective tissue injuries comprising the majority of workers’ comp medical payments each year.

The study concluded that prescription drug costs continue to represent a “significant portion” of medical costs, and “one of the most active subjects” of workers’ compensation-related legislative activity. For every $100 paid for medical services to workers injured in 2014, $17 was for prescription drugs. For claims older than 10 years, the prescription amount rises to 45% to 50%. The study did not include three of the four highest-population states – California, Texas and New York.

 

Health care law not limiting workers’ comp doctor access

According to a report released by the NCCI, a study of the first full year of the impact on workers’ compensation of the health care law found that the law has not limited workers’ comp claimants’ access to doctors. The report, “Impacts of the Affordable Care Act on Workers Compensation,” used medical data from workers’ compensation claims from 2012 to 2014 to compare primary care utilization per claim. The timeline included the first year of expanded medical insurance under the national healthcare reform law.

 

Workers in stressful, low-control jobs have higher risk of early death: study

Workers in high-stress jobs who have little control over workflow and other key decisions are at a higher risk of dying early, according to a study from Indiana University’s Kelley School of Business. Researchers examined a seven-year, longitudinal sample of 2,363 Wisconsin residents in their 60s who worked high-demand jobs. They found that workers in “low-control” jobs had a 15 percent higher risk of death. In contrast, workers in “high-control” positions had a 34 percent lower risk of death.

 

CDC resource to help reduce smoking

To help combat the use of tobacco in the workplace, the CDC foundation is offering resources in the latest edition of Business Pulse. Included are an infographic and a Q&A with Corinne Graffunder, director of CDC’s Office on Smoking and Health.

 

Communication tower association releases video on anchor corrosion

A new safety video from the National Association of Tower Erectors highlights the conditions and factors that contribute to anchor corrosion on guyed towers.

 

Workplace weight management lowers costs, improves quality of life

Employees who participate in a workplace weight management program-even those without significant weight loss-have reduced health care costs and improved quality of life (QOL), reports a study, Effect of workplace weight management on health care expenditures and quality of life, in the November Journal of Occupational and Environmental Medicine, official publication of the American College of Occupational and Environmental Medicine (ACOEM).

 

State news
Florida – Workers’ comp attorney fees jump after high court ruling

A recent Florida Supreme Court decision has caused workers compensation attorney fees to increase 22% in the state, according to the NCCI. The average Florida workers’ comp claimant attorney fee per award was $4,978 between May and September 2016, compared with $4,095 for May through September 2015.

 

Pennsylvania battles opioid addiction crisis with slate of new laws

Legislation, including five separate bills that will go into effect within the coming months, is aimed at the opioid crisis. Among the new laws is the Safe Emergency Prescribing Act – House Bill 1699 – which prohibits hospital emergency rooms and urgent care centers from prescribing opioids for longer than seven days and bans refills for opioid prescriptions.

Senate Bill 1202, which amends Pennsylvania’s Achieving Better Care by Monitoring All Prescriptions Program Act, requires continuing education for medication prescribers and dispensers related to pain management, addiction and dispensing, and requires prescribers use of the prescription drug monitoring database every time they prescribe an opioid or benzodiazepine.

Three other bills will now require more training on pain management in medical schools, restrict the ability to prescribe opioids to minors and permit certain facilities to serve as drop-off locations for unused prescription drugs.

PA.gov provides a summary of the five bills.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Things you should know

Things you should know

New Medicare Secondary Payer appeals process may prove costly

According to an article in Business Insurance a new Medicare Secondary Payer appeals process for workers’ compensation and liability claims will allow payers to challenge reimbursement demands they believe are incorrect, but appeal costs could be greater than any potential savings.

Study of shift workers reveals those with low levels of sleepiness are at more risk

Night-shift workers who experience insomnia but report low levels of sleepiness have higher levels of cognitive impairment than those with insomnia who say they experience “excessive” sleepiness, according to a recent study from the Sleep Disorders and Research Center at Henry Ford Hospital. Night-shift workers who had insomnia but did not report excessive sleepiness displayed the most impairment in productivity and cognitive function, potentially affecting their safety at work. The study was published in the April issue of the Journal of Clinical Sleep Medicine.

CDC Foundation offers employer resources for worker heart health

Preventing heart disease and improving health and productivity in the workplace is the goal of Business Pulse: Heart Health, released by the Centers for Disease Control and Prevention Foundation. Resources for employers include a health promotion kit and a worksite health scorecard, as well as information on smoking cessation and screening and managing blood pressure. Additionally, an infographic shares facts, links and other resources about heart health.

New York governor orders emergency measures to protect workers in nail salons

According to an article in the New York Times, Gov. Andrew Cuomo ordered emergency measures to combat the wage theft and health hazards faced by the thousands of people who work in the nail salon industry. He said in a statement, a new, multiagency task force will conduct salon-by-salon investigations, institute new rules that salons must follow to protect manicurists from the potentially dangerous chemicals found in nail products, and begin a six-language education campaign to inform them of their rights.

Free training for nurses aimed at combating ill effects of long hours

NIOSH is offering a free online training program to help educate nurses and supervisors about reducing the health and safety risks of shift work and long hours. Part 1, which takes about 1.5 hours to complete, covers the risks of shift work and long hours. Part 2, which lasts about 1.7 hours, addresses strategies to help reduce these risks.

Quits rate highest since 2008

Some 2.8 million people quit their jobs in March 2015, the most in seven years, according to a new report from the Bureau of Labor Statistics (BLS). The BLS Job Openings and Labor Turnover Summary report showed that the quits rate is back to pre-recession levels, indicating rising confidence in finding new opportunities.

Report: Young immigrants in small construction firms most at risk of injury

Young, Hispanic immigrants who work for small construction firms are among the most at risk of being injured on the job, according to a report by NIOSH and the American Society of Safety Engineers. For example, small employers are more likely to hire young workers, who are at a greater risk of injury, and a young immigrant worker may fear deportation for reporting unsafe conditions. Further, small employers make up about 90 percent of all construction firms, and the construction industry has the most number of on-the-job deaths.

DOL updates FMLA forms – valid through May 2018

The DOL updates were relatively minor but highlighted information relating to the Genetic Information Nondiscrimination Act (GINA).

The forms also can be accessed from the DOL web page.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

David Leng, CPCU, CIC, CBWA, CWCA, CRM

Author | Speaker | Certified Risk Manager | Certified Work Comp Advisor