Legal Corner

Posted on by davidrleng

ADA
Ability to delegate does not remove essential functions of job

In Tonyan v. Dunham’s Athleisure Corp., a store manager injured her shoulder and was fired when she could no longer perform some of the essential functions of her job, including lifting and reaching. She argued that such tasks only took up about 30% of the workday and could be delegated. However, the Seventh Circuit court disagreed, noting that the essential functions of the job were clearly and specifically defined in the job description and the ability to delegate was always available, but it does not mean it is appropriate to do so.

Failed case of fired worker suffering from Tourette’s syndrome reinstated

The 1st U.S. Circuit Court of Appeals in Boston in Brian Bell v. O’Reilly Auto Enterprises LLC, d/b/a/ O’Reilly Auto Parts, reinstated litigation filed by a fired auto parts store manager who suffers from Tourette’s syndrome, citing incorrect instructions given by the judge to the jury. The judge’s instructions in the case “required an employee to demonstrate that he could not perform the essential functions of his job without accommodation,” and may have favored the employer. The correct standard to prove a failure to accommodate claim is an employee must show that he is handicapped within the ADA’s meaning, he can perform the job’s essential functions with or without reasonable accommodation, and the employer knew of the disability but declined to reasonably accommodate it upon request.

Workers’ Compensation
Uber and Lyft get reprieve from appeals court – California

In early August, a lower court ordered Uber Technologies Inc. and Lyft Inc. to treat their drivers as employees. The companies successfully sought the intervention of the First District Court of Appeal in San Francisco to block the injunction order, giving them a reprieve at least for a few months. There is a ballot initiative in November that will let the app-based companies continue to treat drivers as independent contractors, thus making them exempt from state laws mandating overtime, sick leave, and expense reimbursement, but providing “alternative benefits.”

$11.25M workers’ comp settlement – California

A 35-year-old construction worker received what could be a record-breaking workers’ comp settlement of $11.25M. He suffered a traumatic brain injury and related complications when he fell four stories through an elevator shaft at a construction site in Irvine.

Workers’ Comp is the exclusive remedy for couple severely injured while assisting law enforcement officials – California

In Gund v. County of Trinity, a middle-aged couple was asked by the Sheriff’s office, which was nearly 100 miles away, to check on a woman who lived nearby in the remote area and had called 911. The reason for the call was unknown and it was suggested it could be related to an oncoming storm, although attempts to call back the woman failed.

When they arrived, they were attacked by a man who had killed the woman and her boyfriend and sustained serious injuries. In a 5-2 decision, the Supreme Court affirmed a trial court ruling that workers’ comp was their exclusive remedy since they were engaged in law enforcement activities at the time. California laws treat members of the public who engage in “active law enforcement service” at a peace officer’s request as eligible for workers’ compensation benefits.

McDonald’s sues insurer for coverage while fighting employee class action suit over unsafe working practices during COVID-19 – Illinois

In McDonald’s Corp. v. Austin Mut. Ins. Co., McDonald’s Corp. is suing its insurer for coverage of its legal fees while defending an employee class-action suit, which seeks to force the company to adopt certain safety measures, including requiring face coverings and offering hand sanitizer, during the pandemic.

The Chicago-based fast food chain and two of its franchise owners filed the action against Austin Mutual Insurance Co. in federal court, seeking a judgment that the insurer has a contractual obligation to defend them in the worker safety litigation. According to the complaint, McDonald’s has already incurred more than $1.5 million in attorney’s fees, costs, and expenses and the franchise owners have incurred about $116,000.

Certified mail not required for policy cancellation – Massachusetts

In Espinal’s Case, Nos. 19-P-1483 and 19-P-1484, the Massachusetts Appeals Board overturned a ruling that an insurance carrier had not canceled an assigned risk policy because it was sent by first-class mail, not certified mail. Cruz Abatement & Contracting Services LLC workers’ comp coverage was canceled because of non-payment and it received an assigned risk workers’ compensation policy from ACE American Insurance Co. After issuance and cancellation for nonpayment of two policies by ACE, the company was again assigned to ACE for Feb. 26, 2016, until Feb. 26, 2017, and again did not pay the invoice.

ACE sent a notice of cancellation to the address on the application by first class mail and received a certificate of mailing receipt from the PO. Cruz was hired to be a subcontractor on a demolition job and two workers were injured. Massachusetts General Law Section 187C governs insurance cancellations and authorizes notice by first class mail without requiring proof of receipt of notice by the insured. Section 65B, which governs the cancellation of assigned risk policies, has an additional provision that the employers have an opportunity to file objections with the Department of Industrial Accidents within 10 days after receipt of notice of cancellation. A judge and the Industrial Accident Reviewing Board interpreted this to mean it must be sent by certified mail return receipt requested, but the Appeals Board overturned, noting the statute did not include this requirement.

Employer not solely liable for PTD benefits – Missouri

In Williams v. City of Jennings, a correctional officer was attacked by an inmate and was awarded permanent total disability (PTD) based on her depression and anxiety arising from the work injuries. At the hearing, she and medical experts acknowledged that she had a pre-existing condition of panic and anxiety attacks.

The Court of Appeals noted that the decision should have addressed the fact that the pre-existing psychological conditions were partly responsible for the way she responded to the work injury and, therefore, contributed to her permanent total disability. The Second Injury Fund compensates workers who are permanently and totally disabled by a combination of a work injury with a pre-existing disability and the employer should not have been held solely responsible for her benefits.

Appellate court refuses to hear controversial case on benefits to worker who died of natural causes – New York

An appellate court refused to hear an appeal in Kanye Green v. Dutchess County Board of Cooperative Education Services. The decision by the Workers’ Compensation Board was controversial because it not only reversed precedent about continuing benefits to the family of an injured worker who died of natural causes but also did not direct that benefits be paid when the decision was appealed. The worker died of a heart problem with less than a year remaining on his weekly benefits, which his son sought.

A previous court decision found that nonschedule loss of wage-earning capacity claims was not the same as schedule losses and wage-replacement benefits should not continue because a dead worker has no wage-earning capacity. It’s unknown if the employer will appeal.

Comp carrier can’t recover benefits from widow who sued – North Carolina

In Walker v. K&W Cafeterias, a worker suffered fatal injuries in a work-related auto accident and his widow was awarded medical and death benefits of over $333,000. The worker was employed by a North Carolina company and was driving a company car, but the accident occurred in South Carolina. Later, the widow filed a wrongful death case in South Carolina seeking damages from the driver of the motor vehicle who was at fault in the accident and was awarded $962,500 in a settlement.

The comp insurer filed a subrogation lien, which was approved by the Workers’ Compensation Commission and the Court of Appeals but overturned by the Supreme Court. The court found that while the commercial policy was purchased in North Carolina, it included an endorsement to conform with South Carolina insurance laws since the car was registered, garaged, and driven in South Carolina. South Carolina insurance law bars subrogation of UIM proceeds.

Non-OSHA compliant tractor seat insufficient for wrongful death suit – North Carolina

A court of appeals found that buying a non-OSHA compliant tractor seat without a seatbelt from eBay didn’t rise to the level of intentional misconduct and, therefore, the estate could not sue the company under tort law. In Hidalgo v. Erosion Control Services Inc., the worker was ejected from a tractor on a construction site and fatally injured when it rolled on top of him.

The estate alleged that the company was negligent – the seat on the tractor was replaced with one purchased on eBay that didn’t have a seatbelt because the manufacturer was unable to supply one. Furthermore, OSHA cited the company for four workplace safety violations related to the seatbelt and safety measures for the tractor. However, the company argued that the worker was operating the tractor outside of the designated project area where no work was going on.

While a trial court found for the estate, the appeals court found the seat created an unsafe condition but it did not make it substantially certain that death or serious injury would occur. In overturning the decision, the court noted there was no pattern of OSHA violations regarding tractor safety, there was no work going on in the area it occurred, and the seat had been used for more than a year without incident.

Court clarifies total disability benefits reinstatement post-Protz – Pennsylvania

In White vs. WCAB, the Commonwealth Court ruled that an injured worker is entitled to reinstatement of her total disability benefits retroactive to the date she filed her petition, not the date upon which her benefits were modified. Based on the Commonwealth Court’s decision in Protz v. WCAB, the injured worker filed a reinstatement petition seeking to nullify her IRE which had changed her condition from totally to partially disabled.

A WCJ approved the petition and the Appeal Board modified the ruling, noting the reinstatement was effective on the date she filed her reinstatement petition in October 2015, not the date of the change in her disability status. The Commonwealth Court agreed.

Truck driver was not statutory employee and can proceed with tort – Pennsylvania

In Dobransky v. EQT Production Co., a truck driver delivered a load of barite, which is a weighting agent to increase the density of industrial fluids, to a well site when a cap of a storage tank blew off and released barite into his face. He filed suit against EQT Production Co. and Halliburton Energy Services Inc. that owned or maintained the tanks. The companies sought summary judgment, citing workers comp’s exclusive remedy.

A trial judge agreed, but the Superior Court vacated the decision, noting a contractor can be deemed the statutory employer of a subcontractor’s employee only if the requirements of Section 302(a)(2) of the Workers’ Compensation Act are met. The contracted work must include removal, excavation, or drilling for minerals. In this case, the contract was to transport and unload materials.

Comp denied for Pittsburgh prosecutors who contracted COVID-19 – Pennsylvania

Two prosecutors who believe they contracted COVID-19 at the Allegheny County Courthouse where a court reporter tested positive, have had their claims denied. Both prosecutors spent time in the hospital and one died. The deceased prosecutor believed he contracted the virus from his colleague with whom he shared a small office and had filed a complaint with OSHA over how the notification of cases at the courthouse was being managed. The claims were denied because they were not a work-related injury. An appeal is expected.

Meaningful return to work must exist for cap on PPD Benefits – Tennessee

In Coates v. Tyson Foods, a supervisor who also performed physical work developed tennis elbow in both elbows and needed surgery. Following surgery, he took FMLA leave, which was extended, but he was unable to return to work when it ended. The company filled his position and told him when he could return without restrictions he’d have to start at the bottom again.

He left and found work as a farmhand and filed for comp benefits, and then sued. A trial court determined that because the supervisor didn’t have a meaningful return to work, he was owed temporary total disability and PPD benefits and his benefits were not subject to a statutory 1.5 multiplier cap. The Supreme Court agreed noting that the company didn’t make a reasonable effort to return the supervisor to his job.

Disagreement with IME physician’s opinion not sufficient to rebut presumption of correctness – Tennessee

In Rodgers v. Rent-A-Center East, Inc., an employee was injured when he was rear-ended in an automobile accident while running errands for the store manager. After he received treatment for back pain, two doctors referred by the employer concurred that he had a 0% permanent impairment rating. He presented conflicting reports from his physicians who assigned a 7% impairment rating and the employer requested an independent medical evaluation from the Medical Impairment Registry.The IME physician assigned a 2% impairment rating.

A bench trial judge agreed with his personal physicians and assigned a permanent impairment of 7% with a multiplier of 3 because there was no meaningful return to work. However, the Supreme Court noted under state law, a MIR physician’s rating is presumed to be accurate and the employee did not meet high burden of proof to rebut the presumption of correctness.

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

Key takeaways from the WCI virtual conference

Posted on by davidrleng

The Workers’ Compensation Institute (WCI) is a nonprofit educational organization and its annual conference is considered one of the largest comp education events in the country. Although it was postponed this year, they offered a virtual mini-educational forum. Here are some of the key takeaways:

  • Claims processing. Changes in the industry in response to COVID-19 is forcing insurers to change their claim review model and focus more on those claims that drive costs, not the less-expensive injuries, according to Danielle Lisenbey, president of third-party administration solutions for Broadspire Insurance. The widespread adoption of video conferencing and telemedicine suggests that the comp industry should allow more injured workers to self-report certain types of claims. There’s also been discussion about automated adjudication or “light-touch” claims handling, reducing the man-hours involved in claims management. Medical-only claims, up to a certain threshold, could be processed without human intervention.
  • Modernizing AMA guidelines. American Medical Association’s (AMA) has a new way of devising impairment rating guidelines. The decades-long practice of releasing a hardcover edition of the AMA Guides to the Evaluation of Permanent Impairment every ten years will be replaced by online guides that could be updated as often as once a year in a format that allows easy comparison to previous guides, and is searchable and can be annotated. Importantly, stakeholders who disagree with impairment ratings will be able to petition a panel of experts to make changes, much like the rulemaking process employed by state and federal regulators.

    The plan not to create the 7th edition but continuously update raises legal issues – would state legislatures have to pass on each change? How does it affect Pennsylvania and Oklahoma that have had significant court cases involving the 6th edition and 18 other states that use earlier editions?
  • Injured while working from home. Several defense attorneys discussed why they expect to see more cases of employees claiming they were injured while working from home. Defending such claims can be difficult since they usually lack video evidence or witness testimony to confirm or deny the details. Attorney Emily Edwards, of the Los Angeles firm Manning & Kass, suggested employers establish strict, enumerated guidelines that spell out exactly what constitutes an appropriate work environment, including sending workers an ergonomic checklist and requiring employees to send a photo of the work setting they’ll be using at home.
  • Medicare set asides. John Jenkins, who manages the Medicare contracts with workers’ compensation review contractors for the Centers for Medicare and Medicaid Services, advised that documentation is key to avoiding set-asides problems. Common problems include failure to send in full documentation with the terms of the agreement when a settlement is reached, beneficiaries declining procedures without documentation in the record, and failure to indicate conflicts with state laws regarding medical procedures allowed in workers’ comp. Also, sometimes medical and pharmacy records don’t match payment histories. Actual medical records must be included; independent medical exams cannot substitute for treating physicians’ medical documents.
  • Fraud and misrepresentation cases. Recent court decisions in Florida show that adjusters need to do an extra level of investigation to avoid attorney fees. Surveillance video without other evidence, inadequate documentation of drug tests, and failure to disprove medical necessity were examples of lost cases. Michael Laseter, technical claims specialist with Helmsman Management Services, said the lesson is to uncover solid evidence or to consider the fraud to be part of a larger strategy, such as a smaller settlement. Communication between the carrier and the employer can also be important in avoiding some attorney fees.

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

Understanding and combating medical provider fraud in Workers’ Compensation

Posted on by davidrleng

While many employers have good antennae to identify employee claim fraud, medical provider fraud can be more difficult to detect, but packs a stronger financial punch. A recent article in the Insurance Journal, “Medical Provider Fraud: The Most Common Schemes to Watch For” reports that according to California’s Department of Industrial Relations, which has been at the forefront of fighting medical provider fraud in recent years, the most common schemes include:

“Fraudulent Billing and Billing Codes. The medical provider bills for visits or services that never occurred, billing both the workers’ comp payor and the employee’s health insurance for the same services, double-billing, billing separately for claims that are normally covered by a single fee, or using an incorrect billing code to charge more.

“Unnecessary Treatments. The medical provider performs unnecessary treatments, examinations or procedures to profit from them.

“Illegal Kickbacks. Working with other providers and receiving undisclosed payments or other benefits for making a referral.

“Soliciting. Working with runners, cappers or steerers to solicit or obtain injured workers for the medical provider.

“Pharmaceuticals and Medical Equipment. Pharmacies providing generic drugs and billing for brand-name prescriptions, billing for medical equipment that was never dispensed, or selling used medical equipment as new to upcharge.”

The unethical providers can be part of a “claims mill” when marketers, doctors, lawyers, and medical providers work together to maximize their income. One of the most famous, Operation Spinal Cap, involved a scheme that stretched over 15 years and originated in Southern California. The scheme billed workers’ compensation insurers hundreds of millions of dollars for spinal surgeries on patients who had been referred by doctors and others who typically got illegal kickbacks of $15,000 per patient. In addition to the monetary cost, over 160 patients have filed lawsuits, many of them experiencing excruciating pain as a result of the surgery.

Lone providers can also be offenders. In some cases, billing patterns of upcoding therapeutic procedures and exercise can be subtle, but when extrapolated over hundreds of claims, can drive incremental revenue.

The good news is that many insurance companies have adopted data technologies that cut the time needed to recognize fraud. But employers still have an important role to play. The best ways to help combat medical provider fraud, as well as ensure the best outcome for your injured worker, are:

  • Partner with occupational medical providers who can diagnose and treat workers’ injuries effectively and familiarize themselves with the specific conditions of your workplace to create a practical, effective treatment plan that returns an injured employee to work quickly and safely. Educate employees on the value of working with such providers.
  • Stay focused on your Recovery-at-Work program.
  • Communicate with your injured employees to determine if they have concerns about their treatment. Encourage second opinions by qualified physicians if surgery is recommended.
  • Recognize delayed recovery problems, unusual treatments, increase in frequency of appointments, excessive billing early and report to the claims adjuster.
  • Be aware of trends. It’s a red flag if the same medical providers and law teams are working on problematic claims.
  • Report any suspicions of medical provider fraud.

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

Legal Corner

Posted on by davidrleng

ADA 
Court clarifies ADA website accessibility obligations

When the ADA was enacted, Congress did not anticipate the role of the Internet and focused on physical access barriers. Title III does not provide guidance for the Internet or web-based and mobile applications, but it does not limit coverage to brick-and mortar locations or exclude online locations. As a result, there have been a number of lawsuits and the decisions are split regarding whether Title III’s definition of “public accommodations” is limited to physical spaces.

For the first time, a U.S. Court of Appeals has ruled on this issue in Robles v. Domino’s Pizza. The Ninth Circuit held that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impedes access to the goods and services of its physical pizza franchises, which are places of public accommodation.

Critical to the decision was the nexus between Domino’s website and app and physical restaurants. While technically this ruling only applies to states covered by the Ninth Circuit, it reflects a nationwide trend and the DOJ’s position that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards, the Web Content Accessibility Guidelines (“WCAG”), developed by the World Wide Web Consortium.

Workers’ Compensation 
Timeliness of denial of benefits clarified – Florida

Florida statutes allow an employer to pay benefits to a worker while investigating his claim, for up to 120 days. An employer waives the right to deny compensability unless it can establish material facts that it could not have discovered through reasonable investigation within the 120-day period.

In Rente v. Orange County BOCC, the employer issued a notice of denial eight months after the injury. A judge allowed the denial, finding the injured worker had made misstatements to the spine surgeon about his prior symptoms and treatment to his low back, which was the proximate cause of delay in the employer’s decision to contest his claim. However, the 1st District Court of Appeals reversed and remanded, noting the judge needed to make a determination of when the employer had material facts regarding the issue of causation and compensability, which would trigger the employer’s 120-day period to commence an investigation and either accept or deny his claim.

Workers’ comp settlement does not bar recovery in tort suit – Illinois

In Armstead v. Nat’l Freight, Inc., a semi-truck driver for a Pennsylvania corporation sustained injuries in a vehicular accident with a National Freight truck in Grundy County. The Pennsylvania work comp settlement described his injury as a knee strain and noted its terms did not bar subsequent third-party action against various defendants for injuries he alleged he sustained to his back and shoulder.

He also sued National Freight and the driver, but they argued he could not present evidence of injuries other than to his knee, since the settlement said that it was his only injury. An appellate court reversed the circuit court’s grant of partial summary judgment and remanded for further proceeding, noting a statement could not be considered a judicial admission when it was made in the course of another proceeding and could not be used to bar his tort claim.

No extra benefits for worker who did not seek job rehab services – Illinois

In Euclid Beverage v. The Illinois Workers’ Compensation Commission et al., a long-term worker in the beverage distribution industry injured his back and was terminated because he could not be accommodated on light duty. He received temporary total disability, maintenance, and permanent partial disability benefits.

Shortly after his termination, he was offered a job that did not rely on physical ability, but he declined to interview. A few years later, the employer filed for review and the Circuit Court overturned the award for maintenance benefits, “finding that the record did not demonstrate that the claimant participated in a vocational rehabilitation program or (a) self-directed job search.” State law only mandates that an employer pay maintenance benefits if an injured worker was or is enrolled in a vocational rehabilitation program.

Worker must show disability made it impossible to secure work – New York

In Matter of Figueroa v Consolidated Edison Co. of N.Y., Inc, an office assistant who worked for approximately 41 years began to experience pain in her hands and wrists and filed a claim for workers’ compensation benefits. Shortly thereafter, she retired from her position at the age of 59.

Three years later she began efforts to reenter the job market, attending an orientation session, taking classes on preparing a résumé and cover letter to assist her in finding a job and subsequently submitting job applications to various retail companies. The employer challenged the Board’s award of benefits during the time period she had reattached to the labor market. The court agreed that she had to demonstrate her inability to obtain work was due to her causally-related disability, as opposed to her age, economic conditions or other factors. It found the Board’s decision to award claimant wage replacement benefits during the period of her labor market reattachment was not supported by substantial evidence.

Worker’s estate entitled only to portion of posthumous schedule loss of use award – New York

In Matter of Estate of Youngjohn v Berry Plastics Corp., an appellate court noted that when an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee’s schedule loss of use (“SLU”) award that had accrued at the time of the death is payable to the estate. That rule applies even when the SLU award is posthumous.

Temporary worker cannot maintain tort suit against borrowing employer – New York

In Ferguson v. National Gypsum, a temporary worker was injured while working for National Gypsum and filed suit seeking damages. The Appellate Division’s 4th Department found the claim was barred by the exclusive remedy provision of the Workers’ Compensation Law based on the special employer concept. Since National had complete and exclusive control over the manner, details and results of the injured worker’s work, the court said the company was his special employer and enjoyed immunity from civil liability.

Family of worker killed cannot sue in civil court – North Carolina

An appeals court ruled that workers’ comp is the only recourse for a family of a mechanic crushed to death while repairing a machine at a plywood manufacturing plant. The deceased was hired by a staffing agency, but the manufacturer controlled the worker’s day-to-day work activities, controlled the work the worker performed and paid him an hourly wage. Therefore, the plywood manufacturer was the worker’s special employer and it could not be liable in a wrongful death action. – Estate of Belk v. Boise Cascade Wood Prods., L.L.C.

Superior court judges have broad discretion in review of attorney fees – North Carolina

Overturning a decision by the Court of Appeals, the Supreme Court noted that superior court judges have broad discretion to review the reasonableness of an attorney fee award provided by the state Industrial Commission. In Saunders v. ADP Totalsource Fi Xi, the court noted that under state law, the commission must approve a fee for an attorney in a workers’ compensation case. However, if the attorney disagrees with the commission’s decision, he/she can seek a review by a superior court judge.

Parent company not liable for death of subsidiary’s employee – Pennsylvania

In Grimsley v. Manitowoc Co. Inc., a worker was killed when he was pinned between two cranes. The employer, Grove U.S., LLC, was fined by OSHA and the widow received workers’ comp benefits. Later, she filed a wrongful death and survival action asserting negligence and strict liability against the parent company, Manitowoc Co., arguing the crane was owned by Manitowoc and branded with its logo.

The U.S. District Court granted summary judgment to the employer, parent company, and several other subsidiaries finding Grove was entitled to the exclusive remedy provision under the Workers’ Compensation Act and Manitowoc did not exercise significant control over Grove to establish liability.

Benefits continue for worker released to full duty – Pennsylvania

In an unreported case, Heartland Employment Services, LLC v. Workers’ Compensation Appeal Board (Ebner), a worker suffered a significant injury to the lumbar spine, including a herniated disc and lumbar radiculopathy and had spinal fusion surgery. The medical treatment was successful, and the injured worker was released back to work, without restriction.

The employer argued that an ability to work without restrictions mandates a finding of full recovery and termination of benefits. However, the court noted, “Employer appears to conflate the diagnosis of full recovery from a work injury with a physician’s release to return to work without restrictions. While Claimant was capable of returning to work, the WCJ found she had not recovered from the effects of her work injury.” As such, the WCJ did not err in granting benefits for medical expenses with wage loss benefits suspended upon Claimant’s return to work.

No comp benefits despite failure to use on-site defibrillator – Tennessee

In Chaney v. Team Techs, the Supreme Court, reversing a decision of a state trial court, found an employer isn’t liable for workers’ compensation benefits because they failed to use an automated external defibrillator (AED) that was available to help an employee who was suffering from a non-employment related medical emergency. Although the court noted that under the state’s emergency doctrine, an employer can be liable for benefits if it failed to render reasonable medical aid to an employee who had become helpless at work, the employer had called emergency responders and the doctrine could not be extended to require an employer to utilize an AED.

The first responders were able to revive the worker who collapsed because of a heart condition, but she suffered a permanent brain injury because of a lack of oxygen to her brain and sought workers’ comp benefits. While the employee’s injury had occurred in the course of the employment injury, it did not arise out of the employment.

Subrogation lien cannot include nurse case management expenses – Tennessee

In Memphis Light, Gas and Water Division v. Watson, a case of first impression, the Court of Appeals ruled that nurse case management fees are not recoverable as part of an employer’s workers’ compensation subrogation lien. A meter reader suffered injuries when she was attacked by a dog and received workers’ compensation benefits. She also settled a tort claim for $80,000.

Since the court had never decided whether an employer’s statutory subrogation lien extends to nurse case management fees, it considered an Illinois decision in which the cost of services for a “medical rehabilitation coordinator” had been excluded from the subrogation amount.

The court concluded that such fees are not included in a lien, since the provision of case management services is not mandatory and is for the benefit of an employer, not the worker.

Requirements for workers to receive additional PPD benefits clarified by Supreme Court – Tennessee

In Batey v. Deliver This Inc., a delivery driver injured his back and underwent surgery. Under Tennessee law, when a worker reaches maximum medical improvement for a compensable injury and receives a permanent medical impairment rating, they receive an “original award” of permanent disability benefits. There are various provisions for increasing this amount if the worker does not return to work when the award ends.

A trial court determined that he was entitled to 275 more weeks of permanent partial disability benefits. Although the WCAB found errors in “defining an employee’s burden of proof” and in defining the phrase “employee’s pre-injury occupation,” it noted the errors were harmless and the Supreme Court agreed. Both the appeals court and the state Supreme Court, however, denied a motion for prejudgment interest on his claim, citing the exclusive remedy provision in the comp law.

Violation of safety rule nixes benefits – Virginia

In Jones v. Crothall Laundry, a team leader at a commercial laundry entered a fenced area through an unapproved opening, instead of through the approved interlock gate that would have deactivated machinery inside the fence. An appellate court affirmed a finding by the state’s Workers’ Compensation Commission that the employee’s action constituted a violation of a known safety rule, that the violation was the proximate cause of his serious injury to a leg, and that the worker, therefore, could not recover workers’ compensation benefits. The employer had proved the rule was reasonable, for the benefit of the employee, that it was known, the employee intentionally breached the rule, and the breach was the cause of his injury.

Injured worker who was left quadriplegic ineligible for benefits – Virginia

The Supreme Court affirmed an earlier ruling that denied workers’ compensation benefits to a worker injured while rehabbing a historic school building, finding the man was hired by an unlicensed contractor and was not an employee of the church and historical society that were restoring the building.

The court noted that the statute holds a party liable for the payment of workers’ compensation benefits if it has hired another to perform work that is “a part of his trade, business or occupation.” While the historical society was formed to restore the school, the court reasoned that “its trade, business or occupation did not include the complete reconstruction of the building.”

Court reverses denial of benefits to employee assaulted by coworker – Virginia

In King v. DTH Contract Services Inc., the Workers Compensation Commission denied an employee’s workers’ compensation claims for injuries he sustained when he was stabbed at work by a former co-worker, finding that the motive of the attack was relevant in determining if the injury arose out of employment. The employee worked as an overnight rest area attendant and a former employee stabbed him in the eyes with a screwdriver when he was on his way back to the office after a safety check. The assailant committed suicide and the motive was never determined.

Upon appeal, the worker argued his employment placed him at a greater risk of assault than the risk faced by the general public. The court remanded the case back to the Commission, noting other cases in the state have found that when an assailant’s motive is unknown, an injured worker does not have to affirmatively establish that the assailant’s motive was not personal. Further, it was an error to treat the motive as the only relevant issue.

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

Legal Corner

Posted on by davidrleng

ADA
Bank pays $700,000 for inflexible disability policy

A bank has agreed to pay $700,000 to settle an EEOC lawsuit for violating the ADA. Hudson City Savings Bank, which merged into Wilmington Trust Co., a subsidiary of Buffalo, New York-based M&T Bank Corp. in 2015, had a long-standing inflexible policy of placing employees with impairment or disabilities on involuntary leave or discharging them until it received a medical provider’s clearance to return to work with no restrictions.

Disability discrimination case of health worker who refused vaccine dismissed

In Janice Hustvet v. Allina Health System, a unit of Minneapolis-based Allina Health System merged with Courage Center in Minneapolis. Allina required Courage Center employees who had patient contact to get a vaccine for measles, mumps and rubella as part of a preplacement health assessment screen. An independent living skills specialist refused noting she had many allergies and chemical sensitivities.

When she was fired, she filed a disability discrimination suit under the ADA. The court found that the requirement to undergo a health screen was job-related and consistent with a business necessity. Further, there was insufficient evidence that her chemical sensitivities or allergies substantially or materially limit her ability to perform major life activities.

Workers’ Compensation
Apportionment for pre-existing, asymptomatic conditions allowed – California

In City of Petaluma v. WCAB (Lindh), a police officer suffered head injuries during a training exercise, experienced headaches and lost vision in his left eye. A medical assessment determined that he had a pre-existing vascular condition that predisposed him to a loss of eyesight. While an administrative law judge and the WCAB granted a 40% permanent disability without apportionment, the 1st District Court of Appeal noted statutes provide that permanent disability must be apportioned based on causation, as long as there is substantial medical evidence that the disability was caused, in part, by nonindustrial factors. The condition does not have to manifest itself; an asymptomatic condition, means a condition that is present but for which there aren’t any symptoms.

The court therefore ordered the case sent back to the board to issue an award apportioning 85% of Lindh’s disability to his pre-existing condition, and 15% to his industrial injury.

Workers’ fraud means carrier can seek modification of benefits – Florida

Florida’s statute allows a judge of compensation claims to change benefits if there is a change in condition or if there was a mistake in a determination of fact. In U.S. Fire Insurance Co. v. Hackett, the carrier had been paying for around-the-clock attendant care provided by the husband and daughter of the injured worker. Over 25 years after the accident, the injured worker stopped seeing her treating doctor.

The carrier then conducted surveillance and found she was not receiving all the attendant care for which they were paying and questioned the need for continued care. While a judge agreed that the husband and daughter were deceiving the carrier, she denied the carrier’s petition for modification, reasoning that the evidence established fraud, not a change in medical condition. She also stated she did not have the authority to compel an IME. The Court of Appeal for the 1st District disagreed and reversed the decision.

Injured worker cannot sue third party – Illinois

In A&R Janitorial v. Pepper Construction Co.; Teresa Mroczko, an employee of a janitorial service was cleaning an office building. At the same time, a subcontractor was replacing carpets and a desk that had been placed in an upright position fell and injured the custodian. She collected workers’ comp benefits from her employer, but did not file a timely personal injury action against the construction company.

Under Illinois law, if a worker does not file a personal injury action, her employer can. While the litigation was pending, the worker filed her own action, but was denied as untimely. Later, she filed a petition to intervene in her employer’s case. While a judge denied the petition, the Appellate Court reversed and the case went to the Supreme Court.

The Supreme Court reversed on res judicata grounds – the matter had already been adjudicated by a competent court and may not be pursued further by the same parties.

Temporary staffing employee cannot sue assembly plant – Indiana

An employee of a temporary staffing agency was assigned to work in an assembly plant. When her hand was crushed by a punch press and a finger was severed, she collected workers’ comp from her employer, the temporary staffing agency. Later she filed suit against the assembly plant, claiming negligence.

The assembly plant argued that it was immune from civil liability since the worker was an employee and the courts agreed. The Indiana statute provides “a lessor and a lessee of employees shall each be considered joint employers of the employees provided by the lessor to the lessee.”

Attorney’s text message to IME does not bar medical report and testimony – New York

In Robert G. Knapp v. Bette & Cring LLC, Workers’ Compensation Board, a divided appellate court ruled that the Workers’ Compensation Board erred in barring the introduction of the IME’s report and testimony at a later hearing because the attorney sent a text message to the physician and not the opposing counsel.

The message requested an update on the loss of use of the worker’s left foot, which had been determined at 40.5% for comp benefits. Following the exam, the IME found an 88% scheduled loss and the Board reopened the case. The Board credited the employer’s physician’s report and awarded a 50% loss, precluding the IME’s report.

In overturning the decision, the appellate court noted the message ‘appears to be a limited communication’ and did not reflect an effort to influence the physician’s testimony or opinion.

Injured employee can continue medication beyond its recommended short-term use – New York

In Matter of Byrnes v. New Island Hospital, an appellate court ruled that an injured nurse could continue use of Amrix, a muscle relaxant, which is recommended for only short-term use on the board’s Non-Acute Pain Management Guidelines, but which she had been using for over 16 years. The injured worker’s doctors argued that the medication, in combination with other therapies, allowed her to perform the activities of daily living and to continue working as a nurse and the effects of the drug vary by individual.

The court supported the board’s finding that the medication was medically necessary.

Additional compensation awards subject to durational limits – New York

In Mancini v. Office of Children and Family Services, the state’s highest court ruled the additional compensation awards permissible under Section 15 (3) (v) of the Workers’ Compensation Law are subject to the durational limits set out under Section 15(3)(w) – those for workers with non-schedule injuries. The ruling is a continuation of the state’s trend toward caps on benefits that started with the 2007 reforms.

Supreme Court overturns compensability award based on preexisting condition – North Carolina

In Pine v. Walmart Associates, a long-time employee fell and was released to return to work, but continued to experience pain. A few months later, imaging revealed nerve damage and she filed a workers’ compensation claim. Walmart accepted liability for the right shoulder and arm injuries, but denied liability for the condition of her cervical spine as well as other injuries, since she had a pre-existing degenerative disc disease.

The Industrial Commission found her injuries and subsequent pain were the result of the earlier fall and were compensable based on the Parson’s presumption that injured workers should not be required to prove their need for treatment was related to the original injury every time they seek further medical care. While noting the commission applied the incorrect standard in determining compensability, the Court of Appeals affirmed.

While this was under appeal, legislation was enacted that amended the statute, Section 97-82(b), to clarify that the Parsons presumption applies only to the specific injury that was accepted on a Form 60. Since the statute was applicable to all cases not yet resolved, the worker was not entitled to a presumption that her other conditions were compensable. Further, it was unclear if the commission made findings of causation independent of the application of the presumption; therefore, the decision had to be set aside.

Petition for civil contempt cannot compel interest payments on benefits delayed while employer appealed award – Missouri

In Smith v. Capital Region Medical Center, a widow was awarded benefits for the death of her husband. When the employer appealed the award, there was a delay of about 1.5 years before the Court of Appeals affirmed it. The widow filed a petition for civil contempt to compel the employer to pay the interest owed, but the court noted Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money.

First employer liable for reoccurrence of injury of worker hired through labor union – Nebraska

In Weyerman v. Freeman Expositions, a stagehand was a member of a local union. The union had a collective agreement with Complete Payroll, which was considered the employer of members of Local 42 when they worked on its jobs, but the union also had agreements with other companies, including Freeman Expositions, which specified it was the “employer” when union members were working on its jobs.

The stagehand was injured while working for Freeman and the treating doctor cleared him to return to work in about a week. Complete Payroll sent the worker to another job, but he was unable to perform because of back pain. Then he was cleared to return to work, but did not go back and began seeing another doctor and filed for workers’ compensation.

The workers’ compensation court found he suffered an injury to his back while working for Freeman Expositions and that he suffered a recurrence of the injury several weeks later and he had not reached MMI. While the Court of Appeals acknowledged conflicting evidence, it affirmed the decision that Freeman was liable for both injuries.

Question of disability limits benefits for daughter with incurable eye disease – Pennsylvania

In Aqua America v. WCAB (Jeffers), a worker was killed in an auto accident, leaving behind a wife and four children. Under the law, payment of benefits to minor children continue until they reach the age of 18 and beyond, if they have a disability.

His daughter suffers from an incurable, progressive eye disease, which will eventually leave her legally blind. The widow sought dependency benefits that would continue after her daughter turned 18.

While a workers’ compensation judge and the Workers’ Compensation Board approved the daughter’s benefits beyond the age of 18, until the employer could prove she was capable of self-support, the Commonwealth Court overturned. It noted disability involves “not merely physical impairment, but loss of earning power” and there was no evidence regarding loss of earning power.

Patient’s ulcer not attributable to pain medications – Tennessee

In Steak N Shake v. Yeager, a restaurant worker suffered serious injuries in a fall and was given prescriptions for several pain medications. A week after his fall, he returned to the hospital complaining of weakness, dizziness and chest pain and a doctor posited that the ulcer was likely caused by the combination of meds. The Department of Labor ordered the restaurant to pay for his care.

His hospital bill was over $48,000 and the restaurant contested it by filing a civil suit against the worker. In so doing, they obtained admissions that the worker had taken more meds than prescribed and he consumed an average of three ounces of liquor daily. While a trial judge upheld the award, the Special Workers’ Compensation Appeals Panel reversed and the Supreme Court upheld the Panel’s decision not to award benefits.

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Legal Corner

Posted on by davidrleng

Workers’ Compensation
Appellate court clarifies permanent disability rule – California

In Department of Corrections and Rehabilitation v. Workers Compensation Appeals Board and Dean Fitzpatrick, the issue revolved around whether the Workers’ Compensation Appeals Board applied the correct standard when calculating a worker’s permanently disabled rating. The Board had affirmed an administrative law judge’s ruling of 100% permanent disability, based on Labor Code Section 4662.

Upon appeal, the Appellate Court noted that Section 4662 of the law does not provide for permanent total disability separate from Section 4660, which governs how the finding and award of permanent total disability shall be made “in accordance with the fact” as provided in 4662. It annulled the Board’s decision and remanded the issue for further proceedings.

Federal court upholds use of state worker classification test – California

In a blow to the California Truckers Association (CTA), the U.S. 9th Circuit Court of Appeals ruled that federal deregulation of the trucking industry does not pre-empt the state agency from applying a common law test, called the Borello test, because the law only pre-empts state rules that are “related to prices, routes, or service.” Named for a 1989 state Supreme Court case, the Borello test is the standard used to determine whether a worker is an employee or an independent contractor. California Trucking Association v. Su, No. 17-55133

Reasonableness of refusal to accept job considered in nixing TTD – Florida

In Employbridge v. Rodriguez, the 1st District Court of Appeal overturned an award of temporary total disability benefits to an injured worker who refused a job offer because the commute was too long. In this case, a worker and her husband both worked for Employbridge, a staffing service provider. When they received a new assignment in Largo, they moved to Largo from Tampa. A few years later, the worker fell at work and injured her knee. Initially, the company accommodated her work restrictions with a clerical position at their Largo offices. She was then offered a similar position at the Tampa office, but turned it down.

A Judge of Compensation Claims found the commute between Largo and Tampa justified the decision to refuse the position and awarded TTD benefits. However, in a split decision the 1st District Court of Appeals overturned the award.

Worker wins retaliation case for filing a workers’ compensation claim – Michigan

In Mitchell v. Dore & Associates Contracting (D & A), a worker broke his leg in a work-related accident and received benefits. D & A would hire workers for projects and lay them off when the job was complete. Workers believed if they were injured on the job, they’d never be asked to work again.

After the worker recovered, a former supervisor asked him to work on a project. While working he heard his supervisor speaking with the risk manager for D & A. The worker alleges the supervisor said the risk manager no longer wanted Mitchell on the project and he was never recalled to work.

While the Court of Appeals noted that causation between the workers’ comp claim and layoff is difficult to prove, it found that the trial judge had properly kept information about criminal convictions and excused work absences from the jury and upheld the jury verdict that D & A had unlawfully retaliated.

Damages of $873,000 upheld in negligence suit against supervisor – Missouri

While the statute generally immunizes co-employees from civil liability for a workplace injury, if a co-employee engaged in a negligent act that purposefully and dangerously increased the risk of injury to another employee, the suit can proceed. An employee of a staffing agency was working for a manufacturer and operating a lamination machine. He noticed glue on the bottom rollers and notified the lamination line supervisor, who removed a metal grate and allegedly told the worker to clean the bottom rollers with a wet rag. (The company prohibited workers from running the machine without the guard installed, and the machine displayed a warning against operation without it.)

The worker’s thumb was pulled in and crushed and he filed a personal injury suit against the supervisor and the manufacturer of the laminating machine. He settled with the machine manufacturer, and, while the other case was pending, the supervisor died, so a defendant ad litem was then substituted. Based on the jury’s findings and the settlement with the machine manufacturer, the trial judge awarded $873,000 in damages. The Court of Appeals upheld the decision.

Invalid arbitration agreement means discrimination and retaliation suits can proceed – Missouri

In Caldwell v. UniFirst Corp, a worker was diagnosed with lumbar disc protrusions and herniations and given work restrictions, which the company accommodated initially. His doctor imposed more restrictions and his supervisor allegedly objected to a request for time off and repeated requests for accommodations. After surgery, the company did not allow him to return to work, but extended his medical leave, then fired him.

The worker filed suit against his former employer and supervisor, alleging discrimination on the basis of his disability and retaliation for pursuing a comp claim. The defendants moved to compel arbitration, noting that the former worker had signed an employment agreement that included an agreement to arbitrate any employment-related claims.

A trial judge denied the motion to compel, finding that the arbitration agreement was invalid and the Court of Appeals agreed. For an agreement to be enforceable each party must provide something of value to the other – some form of “consideration,” which was lacking in this situation.

Employer must reimburse firm for third-party settlement of over $1 million – Nebraska

In 2008, an explosion at a Conagra Foods Inc. plant in Garner, North Carolina, killed three Conagra employees and injured more than 60 others while the food company was installing a new water heater. The company that provided a contracted engineer to oversee the project, Dallas-based Jacobs Engineering Group Inc., was sued and settled the claims after failing to obtain contractual indemnification from Conagra.

The engineering company sued Conagra and a jury in district court awarded Jacobs the full amount of the settlement payments, $108.9 million. The Supreme Court affirmed, noting the food company’s “negligence was the proximate cause of Jacobs’ damages” stemming from the lawsuits following the explosion.

Untimely claim denied since employer had no knowledge of injury – New York

In Matter of Taylor v Little Angels Head Start, a worker filed a comp claim more than one year after the employer had put her on medical leave. She claimed her bilateral knee condition was caused from walking between the employer’s work sites and the repetitive stair climbing associated with her job duties. A workers’ comp judge awarded benefits, but the Workers’ Compensation Board found she had failed to give her employer timely notice of injury.

The Board can waive the thirty-day notice if notice could not be given, the employer had knowledge of the injury, or the employer is not prejudiced. While the employer knew of the knee condition, she did not tell her employer it was work-related for over a year.

Scheduled loss of use award can be adjusted for prior injuries – New York

In Matter of Genduso v. New York City Department of Education, a worker injured his right knee and filed a comp claim. He had had two previous injuries to his right knee, which resulted in loss of use awards of 20% and 12.5%. An expert opined that there was a 40% loss of use and the judge deducted the prior awards, leading to a 7.5% scheduled loss of use. The Workers’ Compensation Board and Appellate Court affirmed the award.

Worker’s tort claim against insurer for allegedly providing false information to the police can proceed – North Carolina

Although a workers’ compensation insurer generally enjoys the same immunity from tort liability afforded the employer, there are limits to that immunity. In Seguro-Suaraez v. Key Risk Inc. Co., a worker suffered a serious brain injury in a work-related accident and suffers from significant behavioral and memory deficits. While the insurance company found the injuries compensable, it denied a request for an occupational home therapy evaluation. Over a six-month period, the company video-taped the worker, edited nine hours of surveillance to 45 minutes, and showed to a neuropsychologist, who said the worker was exaggerating his symptoms.

The Industrial Commission issued a decision in the workers’ favor and the insurance company conducted an independent medical exam, which determined the symptoms were valid. In spite of this, the company directed its investigator to convince the Lincolnton Police Department to bring criminal charges against the worker – that he was obtaining his workers’ compensation benefits by false pretenses. This led to his arrest and jailing and indictment on 25 counts of obtaining property by false pretenses and one count of insurance fraud. The charges were dismissed after a psychological examination to determine competency to stand trial noted conditions consistent with his documented medical history.

The Court of Appeals upheld a trial court ruling that the worker can pursue malicious prosecution, abuse of process and unfair and deceptive trade practices claims, but found the trial court erred in failing to dismiss the bad faith and civil conspiracy claims.

Return-to-Work notice requirements clarified – Pennsylvania

The Workers’ Compensation Act requires an employer provide a worker with “prompt written notice” when the employer receives medical evidence that the worker is able to return to work in any capacity. Although “prompt” is not defined, the notice must give the worker a reasonable period of time before the employer requests a modification of benefits.

In County of Bucks v. WCAB (LePosa), the worker received a notice of her ability to return to work along with a letter offering her pre-injury position at the same wage, which had no expiration date. When she did not return to work, the county filed for a suspension of benefits. The Workers’ Compensation Appeal Board said the county was required to prove the worker had received a notice of her ability to return to work before sending her the job offer. The Commonwealth Court disagreed since the offer had no expiration date, noting a notice of ability to work sent with a job offer letter does not, as a matter of law, render the notice not prompt.

Worker with lifetime medical care award must be weaned from opioids – Tennessee

In C.K. Smith Jr. v. Goodall Buildings Inc., an injured worker with an award of lifetime medical care from his employer received high dosages of opioids to manage pain. Several years after the injury, the doctor expressed concern about the possibility of addiction. About the same time, the employer requested a Utilization Review (UR) of the employee’s medications and prescriptions and the UR Board recommended weaning down. The employee then requested a new physician panel, which a trial court approved. However, the Supreme Court’s special workers’ compensation appeals panel reversed that determination, stating that it would violate state code and remanded the case to trial court.

High court finds injury an advancement of preexisting condition and overturns disability award – Tennessee

In Thomas D. Flatt v. West-Tenn Express Inc., a worker fell when a coworker dropped his side of an oil-drip pan, which they were carrying together and claimed to injure his neck and left arm. The worker was in a work-related auto accident one year earlier, but maintained he was fully recovered. The trial court found the new injury was compensable and the impairments did not stem from the auto accident and awarded a 44% permanent partial disability rating.

On appeal, the trucking company had the employee undergo examination by four doctors. Upon reviewing the medical testimony, the Special Workers’ Compensation Appeals Panel with the Supreme Court overturned the trial court ruling. It determined this was not a new, distinct injury, but an advancement of a preexisting condition.

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

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