Legal Corner

Posted on by davidrleng

ADA
Lawsuit over lifting restrictions reinstated

In Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C, the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court and reinstated a lawsuit filed by a dialysis technical specialist.The court found that the former employee’s and another technician’s statement that the most he lifted on a regular basis was about 40 pounds, conflicted with his former employer’s assertion that lifting 75 to 100 pounds is an essential job function.

The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.” Alternatively, said the ruling, “if the lifting requirement was an essential function, he may have been entitled to an accommodation that the employer waive the formal lifting condition.”

Supermarket chain pays over $800,000 to resolve ADA charges

A Salt Lake City-based supermarket chain, Associated Fresh Market, will pay $832,500 to settle an EEOC charge that it denied reasonable accommodations to disabled individuals. It also has agreed to change its ADA policies and procedures and conduct training for its human resources team, store directors, assistant store directors and employees.

FMLA and ADA
When job functions can be fulfilled, part-time work is a reasonable accommodation

The 6th U.S. Circuit Court of Appeals in Cincinnati in Heidi Hostetler v. The College of Wooster, overturned a lower court ruling and reinstated disability discrimination charges filed by a college worker terminated because her post-pregnancy disability required her to work only part time. Noting that there were genuine disputes that full time work was an essential function of the job, the court stated although it may have been more efficient and easier for the college if the employee worked full-time, but could fulfill her job duties on a part-time basis, “those are not the concerns of the ADA”.

Workers’ Comp
Exclusive remedy bars suing company for asbestos exposure – California

In Allen Rudolph et al.,vs. Rudolph and Sletten, Inc., the 1st District Court of Appeals ruled that a person who was sickened by asbestos could not sue the company allegedly responsible for his exposure, even though the Supreme Court has ruled that employers have a duty to protect workers’ families from exposure through contact with fibers that come home on the employees’ skin, hair and clothing. The worker was exposed to asbestos as a child at home as well as a worker at the father’s construction company.

Tort claims by employees for injuries that are collateral to, or derivative of, a compensable workplace injury are barred by the exclusive remedy. A substantial contributing cause of his illness was his job exposure to asbestos and the exposure at home did not create a separate injury outside workers’ compensation coverage.

Out-of-state football player could not pursue a cumulative trauma claim – California

In Larry C. Tripplett v. Workers’ Compensation Appeals Board, Indianapolis Colts et. Al, the 4th District Court of Appeal ordered publication of its ruling finding that an out-of-state football player, who was a resident of the state, could not pursue a cumulative trauma workers’compensation claim in the state because there’s no proof he signed his National Football League contract there and he only played two games there.

At issue is jurisdiction, according to the court record. Since he was not “hired” (there was no evidence the contract was executed in the state) and the cumulative injury occurred at his retirement, rather than during any particular game, he was not entitled to workers’ compensation benefits.

Court finds financial need for advance to pay for litigation costs should be considered – Florida

In Anderson v. Broward County Sheriff’s Office, the 1st District Court of Appeal overturned a judge of compensation claims and ruled a worker’s financial need for an advance payment should be considered even when the purpose is to pay for expenses related to establishing compensability. An injured worker who had returned to full duty after nine months on light duty was seeking an advance to pay for an independent medical exam in support of a pending claim for continued medical treatment.

The court saw “no reason why the claimant’s financial need (or lack thereof) should not be considered when the purpose of an advance is to pay for litigation costs rather than other expenses such as rent or utility bills.”

Jimmy John’s not a joint employer – Illinois

The U.S. District Court in Chicago granted sandwich shop franchiser Jimmy John’s L.L.C, summary judgment in Re: Jimmy John’s Overtime Litigation. The court noted, “Jimmy John’s has established that it does not: (1) have the power to hire or fire franchise employees; (2) supervise and/or control employee work schedules or conditions of payments; (3) determine the rate and method of payment or (4) maintain employment records for franchise employees.”

Misclassification statute does not apply when employee sues employer – Michigan

In McQueer v. Perfect Fence Co., a laborer who worked intermittently for a fence company and had been directed to stop using a Bobcat as a hammer, but did not stop a fellow worker from doing so, was injured. He claimed the employer told him not to report his injuries as work-related because he was “not on the books” and there were no workers’ compensation benefits. However, he did receive benefits.

The Supreme Court reversed a finding of the state’s Court of Appeals noting a provision that prohibits the misclassification of certain employees in order to avoid workers’ compensation liability, did not apply to an injured employee who sued his employer, alleging an intentional tort. The statute provides a civil remedy to an employee of a contractor engaged by a principal, which was not the case here, thus the employee misclassification provision did not apply to him.

Squabbling employers must pay attorney fees – Minnesota

In Hufnagel v. Deer River Health Care Center, a nursing assistant aggravated an earlier back injury. A few years after she returned to work from the first injury, the company was sold and the workers’ comp insurer changed. When she experienced back pain, the new company denied liability, noting the need for medical treatment was a continuation of the prior work injury, which is under a different insurer. After nearly two years of legal proceedings that included six medical examinations, a Workers’ Compensation Court of Appeals judge overturned a lower ruling and ruled that the current employer was liable for the aggravated injuries.

In upholding the decision, the Supreme Court noted, “the efforts by each employer to shift responsibility to the other employer greatly increased the burden on counsel to provide effective representation… We therefore hold that (Ms.) Hufnagel was entitled to receive reasonable attorney fees.”

Auto insurer must pay work-related chiropractic treatment – Minnesota

In Jennifer Rodriguez v. State Farm Mutual Automobile Insurance Co., the Court of Appeals ruled that State Farm Mutual Automobile Insurance Co had to pay for an insured’s chiropractic treatment after the workers’ compensation insurance carrier stopped paying because they exceeded the 12 weeks specified under the work comp treatment guidelines. The employee was a bus driver who was injured when a person driving a stolen vehicle crashed into her bus. According to the court, it is up to the no-fault automobile insurer to seek payment from the workers compensation insurer, if applicable, and the court did not express an opinion whether treatment was considered excessive under workers’ comp regulations.

Overtime must be included in calculation of AWW – Mississippi

In Nixon v. Howard Industries, an assembler injured his back and the company stipulated that his average weekly wage was $645.40, which included overtime. A vocational rehab counselor determined that he could still work, but at a much-reduced wage. An administrative judge found that the injury had caused a loss of wage-earning capacity, but based the pre-injury weekly wage by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. After several appeals, the Court of Appeals noted the average weekly wage is to be calculated by taking the actual earnings over a period of 52 weeks and dividing the sum by 52. Permanent partial disability is determined by two-thirds of the difference of the average weekly wage before the injury and earning capacity post-injury.

Knee injury aggravated at home compensable – Mississippi

In Prairie Farms Dairy v. Graham, an employee injured his knee while making a delivery of milk and underwent surgery, but continued to have problems with his knee. A little less than a year later, he fell at home because his knee gave way and he experienced back pain. Several years earlier he had had back pain and the nurse case manager told him an appointment with the physician would not be allowed because it was a pre-existing condition. He saw his personal health physician, but filed a petition demanding benefits for his knee injury and a subsequent injury to his back.

The company contested the compensability of the back condition, but the Workers’ Compensation Commission and the Court of Appeals approved it. The court noted that industrial loss is not synonymous with functional loss and means that a loss of wage-earning capacity has occurred. There was no dispute that the employee was not able to return to his position and that his earning capacity had greatly decreased. Further, the court said “every natural consequence” that flowed from the knee injury was compensable under law.

Legislative change to lump settlements process applies to pending cases – Nebraska

In Dragon v. Cheesecake Factory., the Supreme Court ruled that a legislative change to the process for finalizing lump-sum settlements applies to cases that were still pending when the statutory amendments took effect. The legislative change provides that a verified release becomes effective once payment is made and the Workers’ Compensation Court enters an order of dismissal with prejudice. According to the court, this was a procedural, not substantive, change and, therefore, applicable to pending cases.

The court also ruled that the existence of a legitimate question over the enforceability of liens against the settlement does not excuse an employer from making timely payment of the settlement amount.

Worker cannot raise “increased risk” argument on appeal – Nebraska

In Maroulakos v. Wal-Mart Associate, a worker who complained of not feeling well, fell and had a seizure. He sustained a facial laceration, sinus fractures and possibly a traumatic brain injury causing neurocognitive impairment. While he argued he tripped over a pallet, video surveillance and witness accounts did not support this. A compensation court judge determined that the fall resulted from an idiopathic seizure and syncope event that was personal to him and not compensable under workers’ comp and the appeal was heard by the Supreme Court.

The Court noted that the injured employee had not raised the issue of falling into a shelfing unit nor the ‘increased danger rule’, which recognizes that when an employment hazard causes or increases the severity of an injury sustained from an idiopathic accident, the injury becomes compensable. Since he had not raised this at trial, he could not raise on appeal.

Claim of injury isn’t sufficient for benefit award – New York

In Matter of Elias-Gomez v. Balsam View Dairy Farm, a farmhand claimed that he injured his right shoulder on a specific date, approximately one year earlier, while assisting in a “particularly difficult” birth of a calf. However, the farm representative testified that no calves were born on that date and there was no report of injury.

State comp law provides that, absent substantial evidence to the contrary, there is a presumption that an accident that occurs in the course of employment also arises out of such employment. However, this cannot be used to establish that an accident occurred nor relieve the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment.

Benefits can be terminated even though worker still experiences pain – Pennsylvania

In Hernandez v. WCAB (F&P Holding Co.), the Commonwealth Court ruled that an employer could terminate benefits to an injured worker, although a judge accepted the employee’s testimony about lingering pain. A worker who was on light duty, injured his back and received workers’ compensation. However, when his doctor imposed further restrictions, the company could not accommodate and fired him.

When the employee filed a petition seeking compensation for the decrease in earning power, the company argued that the new restrictions were not related to the injury and filed a petition to terminate its payment of benefits, arguing the worker had fully recovered. A workers’ comp judge and the Commonwealth Court agreed. While the judge accepted the employee’s testimony of his continued pain, the court noted, a worker could forever preclude the termination of benefits by merely complaining of continuing pain.

Pennsylvania case law shows an employer can terminate benefits, even if a worker credibly testifies about the existence of ongoing pain, so long as the employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the worker is fully recovered, can return to work without restrictions and that there are no objective medical findings that either substantiate the claims of pain or connect them to the work injury.

Hearing loss compensable despite long filing delay – Tennessee

In Westby v. Goodyear Tire & Rubber Co., the Supreme Court’s Special Workers’ Compensation Appeals Panel upheld an award of benefits to a worker for his hearing loss, even though he did not file his claim until years after he told his doctor he was aware he was losing his hearing. For much of his career with Goodyear, the worker was not required to wear hearing protection, but the company made it mandatory in the last few years of his employment. He told a doctor in 2002 that he knew he had hearing loss and that he had known for at least 10 to 15 years, but he did not file a comp claim until 2012.

The company contested his claim, contending he had failed to give timely notice of injury; however, the court noted case law has established that the statute of limitations for filing a workers’ compensation claim involving gradually occurring injuries does not begin to run until the date the employee is unable to work due to his injury. This is known as the “last-day-worked rule”. It also noted that the worker’s hearing tests demonstrated a continued loss of hearing and the test results were the actual notice of injury.

Hearing loss work related – Wisconsin

In Harley-Davidson Motor Co. Group L.L.C. v. the Labor and Industry Review Commission, an appeals court upheld a labor review commission’s ruling that a former employee of Harley-Davidson Motor Co. Group L.L.C. and Transportation Insurance Co. suffered an 84.67% hearing loss as a result of his employment. In this case, the medical opinions of the company-designated physician disagreed with that of the treating physician. An independent medical exam determined work-related hearing loss, but his calculation method was contrary to the state’s administrative code, which requires the calculation to be based on pure tone testing. Although the independent medical examiner found the pure tone test unreliable, the review commission and circuit court found them reliable and awarded an 84.67% binaural hearing loss.

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

Determining the risks of delayed recovery

Posted on by davidrleng

One of the most perplexing problems in workers’ comp is delayed recovery, or relatively minor claims that become long-term, costly claims. Often the claims go unnoticed until significant dollars are spent on procedures, surgeries, and medications for an injury that should have healed long ago. While these claims may only represent 6 – 10% of all claims, they can consume 80 percent or more of medical and indemnity resources, according to Integrated Medical Case Solutions.

Yet, if identified early, proper intervention prevents the delayed recovery. Research suggests that psychosocial factors play a large role in these “creeping catastrophic claims.”

Pioneers of diagnosing and treating injured workers with psychosocial risk factors, Michael Coupland, the CEO and Network Medical Director of Integrated Medical Case Solutions, and Steven Litton developed a simple pain screening questionnaire (PSQ). Though widely used in Canada and several other countries, it is just starting to catch on with the U.S. workers’ compensation system, according to an article in Property Casualty 360°.

It includes ten questions or statements related to the injured worker’s pain attitudes, beliefs and perceptions, which the injured worker rates on a scale of 1 to 10. The article notes that one of Coupland’s favorite questions is ‘I should not do my normal work with this amount of pain,’ which gives insight into work attitudes, catastrophic thinking, and fear-avoidance behavior.

Physicians focus on the pain and physical diagnosis and prescribe MRIs, tests, surgeries, and even opioids. Costs escalate with little relief of pain. The underlying psychosocial factors go untreated and include:

  • Catastrophic thinking – or OMG! Thoughts. Despite the injury or illness, people believe they are beyond the ability to recover.
  • Fear avoidance. Workers are so concerned about further injuries, they avoid doing anything that might exacerbate the pain.
  • Anger and perceived injustice. Regardless of how long someone has worked at their company, they feel a disservice has been done to them.
  • External focus of control. Workers rely on their medical providers and others to fix them, rather than taking any responsibility for their own recovery.

Since 2013, Albertsons Safeway has used the test to determine the risk level of delayed recovery, giving it to all injured workers with indemnity claims two weeks post injury. According to a blog post by the IMCS Group, the average amount paid per claim rose exponentially with risk level. Looking at data from the 2013 – 2015:

Risk Level # of Injured Workers Average Amount Paid
Low 1,031 $2,059
Low-Moderate 307 $10,759
Moderate 145 $21,783
High 192 $26,212
Very High 148 $39,967

The injured workers who scored high or very high were given the opportunity to undergo cognitive behavioral therapy (CBT). About half agreed to do so. Unlike traditional psychotherapy, CBT is brief. The goal is for injured workers to cope with their pain, rather than be cured of it.

The blog post, Early CBT Intervention Changes Lives, Saves Money for WC Payers, explains the company created three groups of injured workers that had scored as high-risk on the PSQ to test the effectiveness of the CBT intervention. One group that participated in the CBT program; a second group that chose not to participate; and a third group of injured workers that had not been offered CBT.

Here are the results:

Group Average Total Paid
Participated in CBT $36,629
Did not participate $44,356
Were not referred to CBT $73,488

Those who engaged in CBT returned to work much sooner than those in either of the other two groups. According to an Albertsons Safeway representative, the program resulted in an estimated 30 percent reduction in total claims cost.

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

Things you should know

Posted on by davidrleng

Utility sector workers at higher risk of serious injuries: Study

Employees in the utility sector are at higher risk for serious injuries and fatalities than workers in other industries such as construction, manufacturing and mining, according to a study conducted by workplace safety consultancy DEKRA North America Inc. Water utilities have the highest SIF exposure rate at 42%, followed by electric utilities at 32%, and gas utilities at 29%. Overall the utilities sector has a 32% SIF exposure rate, which is seven points higher than the all-industry SIF rate of 25%. Motor vehicle incidents were responsible for most hazards at 30%, followed by line of fire or struck by incidents at 28%.

Older construction workers at increased risk for hearing loss: study

More than half of former construction workers have experienced hearing loss, and smoking, noise, and solvents can exacerbate the condition, according to a recent study by the Center for Construction Research and Training (CPWR).The researchers found that 58 percent of the former construction workers had some form of hearing loss and those who worked for more than 30 years were nearly four times more likely to experience hearing loss than workers with fewer than 10 years on the job.

The researchers recommend that prevention efforts center on reducing worker exposure to noise, solvents and smoking. The study was published Feb. 28 in the American Journal of Industrial Medicine.

Treatment costs for injured workers vary widely by state: Study

Prices paid for a similar set of medical services varied significantly across states, ranging from 26% below the 35-state median in Florida to 158% above the 35-state median in Wisconsin in 2017, according to a study released by the Workers Compensation Research Institute (WCRI). The study compares medical prices paid in 35 states and tracks price changes in most states over a 10-year span from 2008 to 2017.

States without fee schedules for these services had higher prices paid compared to states with fee schedules (39 to 168 percent higher than the median of states studied with fee schedules in 2017).They also found changes in prices paid for professional services varied across states, from a 17 percent decrease in Illinois to a 39 percent increase in Wisconsin.

Guide intended to help workers deal – or help others deal – with depression

The Canadian Institute for Work and Health has published a guide intended to assist workers who experience depression or support those coping with it. IWH states that the guide is applicable “to the entire workplace regardless of sector or role,” including individuals with depression, managers, co-workers, human resources staff, union representatives and worker representatives.

New CSB fact sheet outlines safe practices for hot work

The Chemical Safety Board recently released a fact sheet that offers several best practices for staying safe when performing hot work.

American Chemistry Council creates PPE infographic for auto refinishers

In partnership with OSHA, the American Chemistry Council has published an infographic to encourage workers in the automotive refinishing industry to wear the correct personal protective equipment.

NTSB releases tip card on fatigued driving in commercial bus industry

The National Transportation Safety Board has released a safety tip card aimed at reducing fatigue among commercial bus drivers. The card – designed to be stored above a driver’s visor – highlights issues of fatigue in transportation and its effects, as well as lessons learned from crash investigations. It offers tips for both drivers and bus company operators.

State News

California

  • State Compensation Insurance Fund has reduced the number of opioid prescriptions for injured workers by 60% to 23.7 million since launching its opioid-reduction program in 2014.
  • Cal/OSHA reminded employers to closely observe their employees for signs and symptoms of heat illness and instruct workers to take preventative cool-down breaks in the shade as temperatures rise.
  • Workers’ Compensation Institute said there was little change in the number of independent medical review determination letters and decisions issued in the first three months of 2018 compared to the first quarter of 2017.
  • The maximum temporary total disability benefit will increase nearly 3%, to $1,251.38 per week from $1,215.27 effective Jan. 1, 2019, per the California Division of Workers’ Compensation.

Georgia

  • Starting this month, the Board of Workers’ Compensation will begin phase two of its integrated claims management system, which utilizes new electronic data interchange standards. The board will soon grant access to insurers, self-insured employers, group funds, and claims adjusters to learn how to use the system. Watch the website for details.

Indiana

  • The workers’ compensation board has released new application forms and guidelines for self-insurers, and the agency is urging employers to make sure they complete the form in full or they will not be approved.
  • Workers’ Compensation Board put practitioners on notice that it expects to adopt a new protocol for submitting settlement agreements in the next 30 to 45 days. In the meantime, it asked that practitioners start using its new checklist to prepare settlements for submission for board approval.

Illinois

  • Beginning July 2, all parties in workers’ compensation claims cases will receive notice through electronic means and the Workers’ Compensation Commission is urging injured workers, attorneys, and employers to submit email addresses. Attorneys and injured workers representing themselves can submit email addresses with a form available at the commission’s website. Even if a party already has an address on file with the agency, the commission is building its database anew and asks that email addresses be submitted again.

Michigan

  • The application form, Form WC-104C for mediation and hearing requests was revised to make it easier to list additional parties involved in the case.

New York

  • Workers’ Compensation Board is proposing a medical fee schedule that would increase payments by 5% overall, which would affect medical, podiatry, chiropractic, and psychological treatment. This would be the first increase in fees since 1996.
  • The New York Assembly passed a bill that would let acupuncturists be reimbursed for treating injured workers.

Tennessee

  • The average total cost per workers’ compensation claim decreased 6 percent in 2015, reflecting in part the impact of reforms enacted in 2013, according to a WCRI study.

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

Things you should know

Posted on by davidrleng

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

Posted on by davidrleng

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

Things you should know

Posted on by davidrleng

New disability claim procedures effective April 1

The U.S. Department of Labor’s (DOL’s) new procedures for processing disability claims took effect April 1. Employer-sponsored plans that deal with disability claims should be amended as needed. This includes retirement plans, medical coverage, life insurance, as well as short- and long-term disability plans. The rule is intended to give workers new protections when dealing with plan fiduciaries and insurance providers that deny their claims for disability benefits.

Implementation of the final rule was delayed 90 days from its original effective date of Jan. 1, 2018. If plan documents have not yet been updated, employers should still prepare to handle claims under the new procedures.

Opioid prescriptions decline in states allowing marijuana

While acknowledging the limitations of the data, Dr. David Bradford from the Department of Public Administration and Policy at the University of Georgia reports an analysis of data for prescriptions filed by Medicare Part D enrollees from 2010 to 2013 revealed the use of prescription drugs dropped when the state fully implemented medical marijuana legislation.

For pain medications there was a decrease of over 10% in prescribing patterns. States that permit medical marijuana distribution via dispensaries – versus states that only permit the private cultivation of marijuana for medicinal purposes – saw a 14% decline in pain medications prescribed under Medicare Part D.

Construction workers more likely to die from opioid overdose than workers in other industries

A 2017 survey by the National Safety Council (NSC) found an estimated 15 percent of construction workers have substance abuse disorders – nearly twice the national average of 8.6 percent. A recent report from the Midwest Economic Policy Institute notes that an estimated 380 construction workers in Ohio suffered opioid-related overdose deaths in 2015, followed by Illinois (164), Michigan (160) and Wisconsin (92).

The report suggests that the demanding physical work, the higher injury rates, and the economic pressures to return to work before fully healed lead to prescription abuse. It offers several strategies to help employers, contractors and labor unions combat the opioid crisis.

Caught-in and caught-between fatalities on the rise in construction: CPWR

Caught-in or caught-between incidents resulted in 275 construction worker deaths from 2011 to 2015 – the most of any major industry – according to a recent report from the Center for Construction Research and Training (CPWR). About 69 percent of the deaths were attributed to “being caught or crushed in collapsing materials,” a 50 percent increase over the five-year period.

New tools to reduce the risks of workers in nanotechnology

The National Institute for Occupational Safety and Health (NIOSH) has released four new documents to help provide employers with strategic steps towards making sure their employees stay safe while handling nanomaterials. The documents are:

  • handling and weighing of nanomaterials when scooping, pouring and dumping;
  • harvesting nanomaterials and cleaning out reactors after materials are produced;
  • processing of nanomaterials after production;
  • working with nanomaterials of different forms, including dry powders or liquids.

To access the products, and for more information about nanotechnology research at NIOSH, visit https://www.cdc.gov/niosh/topics/nanotech/pubs.html .

EPA releases guidance on first aid statements for pesticide labels

In response to stakeholder comments and questions, the Environmental Protection Agency (EPA) has issued final guidance on the placement of first aid statements on pesticide labels. First aid statements on Toxicity Category I pesticides must be visible on the front panel unless a variation has been approved. First aid statements on Toxicity Category II and III products can be placed on any panel of the label – front, back, side or inside.

Forest nurseries, timber tract operations, and fishing have higher risk of hearing loss

Researchers from NIOSH found that although work-related hearing loss in the agriculture, forestry, fishing and hunting sector (15 percent) is lower overall than most other industries (19 percent), three subgroups had a notably higher number of workers with hearing loss. These were:

  • Forest nurseries and gathering of forest products (36 percent)
  • Timber tract operations (22 percent)
  • Fishing (19 percent)

The study was published in the January issue of the American Journal of Industrial Medicine.

 

State News

California

  • Adopted its own statewide workplace safety and health regulations to prevent and reduce ergonomic work-related injuries to housekeepers in the hotel and hospitality industry, the first such regulation in the country. The rules, which will be enforced by California’s Division of Occupational Safety and Health, will become effective July 1.
  • The volume of independent medical reviews declined 2.2% in 2017, the first decline since the state adopted its practice of reviewing medical claims for injured workers, according to a report by the California Workers Compensation Institute (CWCI). Physicians upheld 91.2% of modified or denied medical service requests that they reviewed, the same as previous years.

Florida

  • The Governor signed a bill that will cover post-traumatic stress disorder under workers compensation for first responders.

Indiana

  • The governor signed two new comp bills. One creates a workers’ compensation drug formulary aimed at curtailing the opioid crisis (SB369), and the other penalizes employers for late payments of benefits (SB290). SB290 takes effect July 1, 2018. The state is adopting MCG Health’s Official Disability Guidelines as the formulary, under which doctors cannot prescribe “not recommended” medications unless the insurance company approves. The ban on reimbursement for the prohibited drugs takes effect Jan. 1, 2019, but injured workers who began taking the medications before July of this year may continue until January 2020.

Massachusetts

  • The average comp rate will decrease 12.9% following a settlement reached by the Attorney General with the State Rating Bureau and the Workers Compensation Rating and Inspection Bureau.

North Carolina

  • The Industrial Commission gave final approval to new restrictions on opioid prescribing for injured workers, in keeping with a 2017 legislative mandate. The new rules take effect May 1.

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

Legal Corner

Posted on by davidrleng

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

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

Posted on by davidrleng

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

Things you should know

Posted on by davidrleng

NCCI report: National Medicare Set Asides and Workers Compensation: 2018 Update

A new report from the National Council on Compensation Insurance (NCCI), Medicare Set Asides and Workers Compensation: 2018 Update analyzes trends in the submission of Medicare set-asides (MSA) to understand the cost drivers and the medical care of workers injured on the job who are or are likely to become eligible for Medicare based on 11,500 Medicare set-asides.

About 64% of claimants are eligible for Medicare, not because of age but because they have been on Social Security Disability for at least two years. Another 29% of claimants are eligible due to age, and about 7% are likely to become eligible within 30 months. Overall MSAs represent more than 40% of total submitted workers’ compensation settlement costs. More than half of MSA’s involve an attorney.

Estimated future drug costs are the main reason that the Centers for Medicare & Medicaid Services are requiring increases of Medicare set-aside amounts.

New CPWR database shows 42 percent of construction worker deaths involve falls

In a 33-year period, falls accounted for nearly half of all construction worker deaths and more than half of the workers killed lacked access to fall protection mostly in the residential building, roofing, siding and sheet metal sectors, according to the Center for Construction Research and Training (CPWR). The new searchable database includes reports of fatality reports for 768 construction industry fatalities.

ISHN’s annual hand protection update

Industrial Safety and Hygiene News has released its annual hand protection update.

First blood test for concussions approved by FDA

The Food and Drug Administration (FDA) recently approved a blood test to evaluate and diagnose concussions, the first of its kind. This new kind of testing is quick and may reduce reliance on CT scans which can expose patients to radiation.

Up to 21 percent of asthma-related deaths may be from on-the-job exposures: CDC report

Occupational exposures may have contributed to 11 percent to 21 percent of all asthma-related deaths among 15- to 64-year-olds between 1999 and 2016, according to a recently released report from the Centers for Disease Control and Prevention.

Musculoskeletal disorders widespread among plastic surgeons

Nearly 80 percent of plastic surgeons experience work-related musculoskeletal issues or injuries, according to the results of a recently conducted survey of practitioners.

Cyber incidents top list of ten highest threats to U.S. businesses

Allianz’s Risk Barometer 2018 has released its annual survey of risk experts from 80 countries. For the first time, the No. 1 risk in the U.S. (with 45% of the vote) is cyber incidents (moving up from No. 2 last year), with business interruption the largest loss driver after a cyber incident.

Depression and fatigue increase risk of work-related injuries in women: report

A new study in the Journal of Occupational and Environmental Medicine found that women who suffer from depression, anxiety and fatigue are more likely to be injured at work. Nearly 60 percent of women, as compared to 33 percent of men, reported that they experienced a behavioral health condition before they were injured.

State News

Massachusetts

Nebraska

  • The Supreme Court has signed off on changes to Rule 15: Records Checked Out governing the procedures for filing workers’ compensation appeals. It also adopted changes to non-adjudicatory Rules 26, 47 and Addendum 2. View amendments.

New York

Pennsylvania

  • A bill that would have created a drug formulary for injured workers failed to pass the House ending in a split 98-98 vote.

Tennessee

  • The Bureau of Workers’ Compensation has produced a bullet-point summary to help explain the changes to the medical fee schedule rules, which are now in effect.

Wisconsin

  • Employers now subject to tort claims for temp workers’ injuries (see Legal Corner).

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

Trends in combatting abuse and fraud in Workers’ Compensation

Posted on by davidrleng

Fraud or abuse that might not reach the legal requirements for criminal sanctions happens in all aspects of the Workers’ Comp system. There’s employee fraud, employer fraud, health provider fraud, attorney fraud, and even insurer and claims adjuster fraud. The good news is that technology is making it easier to detect and many states have strengthened their laws to prevent fraud. In this article, we’ll look at employee fraud and health provider fraud.

Employee fraud

It’s important to recognize that only 1 – 2% of employee injuries are considered fraudulent and that injured employees can be scared and overwhelmed by the system and need the support and guidance of the employer to navigate to a quick recovery. But when fraud or abuse occurs it can be hard to detect and lead to unnecessary costs.

The most common types of employee fraud are faking injury claims, exaggerating injury or illness, claims for injuries incurred outside of work, failing to report earned wages while receiving temporary disability benefits, and prescription fraud, especially related to opioids. Malingering can also complicate an already complex claim and postemployment claims such as those involving cumulative trauma (CT) can be difficult for the employer to control.

Two recent phenomenon driving employees to cheat the system are expensive health care and long-term unemployment. While the evidence is anecdotal, high deductible health insurance plans, the ever-increasing costs of co-pays, and the growing uncertainty of coverage can incentivize the use of workers’ comp. In most cases, workers will have all medical costs covered and receive indemnity payments. Despite continued job growth and low unemployment, long-term unemployment persists among certain workers, and those having a tough time finding jobs that match their skill set or pay well may look to postemployment comp claims for much needed income.

There are many “red flags” that can help employers identify questionable claims and these should immediately be shared with the claims adjuster. However, proving that an injured worker is engaged in personal physical activities inconsistent with the alleged disability can be difficult. Today, a combination of the traditional approaches to fraud detection and technology make it easier and more affordable.

Here are eight things that employers can do:

  1. Have the injured worker put in writing the facts of the injury.
  2. Do a thorough investigation of the incident, including interviewing witnesses, taking pictures, documenting PPE in use, and so on.
  3. Make your employees comfortable with reporting suspected fraud and train supervisors in monitoring “workplace chatter.” Often, co-workers may have information or a sense that a co-worker is abusing the system.
  4. Use surveillance cameras in offices, parking lots, warehouses, etc. According to an Employers Holdings, Inc. survey, 24% of small businesses have installed surveillance cameras on their property. There was a widely publicized YouTube video of a Florida woman hitting herself on the head with a sprinkler head that had fallen on her desk and then claiming a workplace injury.
  5. Have a relationship with a trusted, competent occupational physician who understands your business and can foster the confidence of employees. This partnership will help identify possible fraudulent cases and control prescription abuse. Prescription fraud is easily mitigated by a doctor’s ability to check a prescription-monitoring data base, which 49 states now have in place.
  6. Monitor social media. It’s positively amazing what people will post on social media. If fraud is suspected, investigators can use software to search upwards of 200 social media sites. Employers need to be cautious about how they employ social media tools to investigate their employees’ behaviors and be sure that the evidence is admissible in court. While social media has been allowed in some court cases, this area of law is still in its infancy. Even if the admissibility of social media is questionable, it provides an indication that video surveillance, which is more likely to be admissible because it includes a time stamp, is warranted.
  7. Consider smart device data. In recent cases, police obtained a search warrant for the data from the cardiac pacing device in an arson investigation, a fitness tracker was used to discredit an alleged assault, and an Amazon Echo was accessed (unsuccessfully) as a witness to a murder. This area of law is largely untested, but should not be overlooked.
  8. Check job applicants carefully. Criminal backgrounds and a history of suspicious injury claims can be good predictors of potential fraud.

Physician fraud

For the dishonest physician, workers’ comp is fertile ground. Common examples of fraud include: submitting claims for services not provided, duplicate billing, upcoding or submitting claims for services with higher rates, unbundling or submitting claims for several services that should have been one claim, ordering excessive treatment or supplies, dispensing drugs for personal gain, receiving kickbacks in exchange for directing patients to other service providers, and operating “medical mills” with others who lack required credentials.

Some states such as California have enacted laws to aggressively pursue fraud. Since A.B. 1244, which requires the division’s administrative director to suspend any medical provider, physician or practitioner from participating in the workers’ comp system in cases that involve criminal activity or inability to perform duties safely, among other requirements went into effect Jan. 1, 2017, over 170 providers have been suspended.

To combat physician fraud, employers can:

  1. Have a relationship with trusted, competent occupational physicians who understand your business and can develop confident relationships with your employees.
  2. Vet independent medical reviews for quality. Complex claims that involve comorbidities can be feeding ground for exaggeration and malingering and often involve legal representation. According to a recent white paper by the Risk & Insurance Management Society Inc. a quality independent medical examiner (IME) can help mitigate losses. It’s important to hold an IME to a high standard.
  3. Report the suspected fraud.

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