Legal Corner

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.

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

Important takeaways from recent studies and reports

Outlook for workers’ comp is stable, but rising medical and legal costs and payroll threaten profits – AM Best Co. Inc.

Currently, AM Best has a stable outlook on the U.S. workers’ compensation industry, the largest component of the U.S. commercial lines segment. However, the well-known rating agency sees some threatening headwinds that can alter the industry’s course. In 2017, growing payrolls helped offset rate decreases and overall soft-market conditions, according to the report. The agency believes that the use of technology, which has provided greater insights into underwriting, pricing and claims decisions, has helped support the line’s health and will continue to do so.

Despite the positive results, AM Best believes the trend of declining rates likely will trigger profit margin compression, possibly as soon as 2019. Unemployment has decreased steadily since 2010; however, AM Best notes that long unemployment rate declines typically are followed by sharp spikes in unemployment, and believes that workers’ compensation writers should be prepared for a downside scenario as well.

In addition, while there has been a decline in loss frequency, medical cost inflation, as well as the potential for accelerating frequency if employers hire less-qualified candidates are a concern. Rising medical loss cost severity, the declining benefit from prior accident year reserve redundancies and high average settlements on cases stemming from attorneys’ growing involvement and litigation, also put pressure on pricing.

Employer takeaway: The report is good news about the stability of rates in the short term. It also provides insights as to how insurers will be evaluating risk. The continued growth of technology in underwriting and pricing means that a company’s risk profile is critical. Insurance companies have become quite sophisticated and rates will be based on their perception of your risk. The way to get the best rates is to improve your risk profile – not bidding and quoting. There are trends and claims that are red flags for underwriters, including claim severity, high medical costs, and excessive attorney involvement. If you have claims in these categories, it’s a good idea to document special circumstances as well as actions taken to prevent future occurrences.

Employee care concern and satisfaction -WCRI

An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested, according to Comparing Outcomes for Injured Workers reports by the Workers Compensation Research Institute (WCRI). Telephone interviews were conducted with close to 10,000 injured workers from 15 states who were hurt at work between 2010 and 2014. The workers interviewed live in Arkansas, Georgia, Kentucky, Florida, Iowa, Indiana, Tennessee, North Carolina, Virginia, Minnesota, Michigan, Pennsylvania, Wisconsin, Massachusetts, and Connecticut.

Among the findings:

  • An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested.
  • Between 12% and 21% of injured workers reported “big problems” getting the service they or their primary provider wanted, with 10 of the states falling in the 17% to 18% range. Pennsylvania had the lowest rate of 12%.
  • Between 11% and 20% reported being “very dissatisfied” with their care.
  • Thirteen percent of workers said they did not return to work for at least a month after their injury.
  • Between 6% and 11% of injured workers report a significant loss of income due to injury at the time of the interview.

Employer takeaway: The data reinforces the message that employers must be proactive and vigilant in managing workers’ comp. This is not new “news” – recovery-at-work programs, medical management best practices, and open lines of communications among all stakeholders are the cornerstones of a successful program.

First-ever industry breakdown of drug use in the American workforce – Quest

Quest, a leading drug-testing provider, announces the rate of positive drug test results annually based on an analysis of 10 million urine tests. The new data marks the first time Quest has broken it down by industry.

The rate of positive test results for illicit drugs was highest in retail (5.3%), health care and social assistance (4.7%), and real estate rental and leasing (4.6%) sectors in 2017, while the utilities (2.8%) and finance and insurance (2.6%) sectors had the lowest rates. Drug use by the workforce increased each year, and by double-digits over the two years between 2015 and 2017, in five of 16 major U.S. industry sectors analyzed. The highest rates were in consumer-facing industries.

Marijuana was the most commonly detected substance, with the highest drug positivity rate of all drug classes across the majority of industry sectors. Marijuana positivity was highest in accommodation and food services, at 3.5 percent in 2017, more than 34 percent higher than the national positivity rate of 2.6 percent for the general U.S. workforce.

Employer takeaway: With low unemployment and tight job markets as well as legalized recreational marijuana in many states, many employers have dropped pre-employment drug tests for positions that aren’t safety sensitive. The analysis suggests that employers can’t assume that workforce drug use isn’t an issue in their industry. Employers are responsible for ensuring the safety of workers, customers, and members of the general public and this is one of the more vexing areas. Review your written drug policies, clearly communicate expectations and company rules to all employees, and be sure supervisors know how to recognize signs of impairment.

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

Legal Corner

Workers’ Compensation
ABC test applies only to wage order claims – California

Earlier this year, the Supreme Court issued a groundbreaking decision when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors. The Dynamax vs The Superior Court of Los Angeles County case was decided for the purposes of the state’s wage orders, but some speculated it might be applied more broadly.

Recently, in Garcia v. Border Transportation Group, a Court of Appeals held that the new test is limited to claims arising under the California Wage Orders, and that other claims continue to be governed by the prior (and more employer-friendly) standard known as the Borello test. It noted: “Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California’s labor protections…[The California Supreme Court] did not reject Borello, which articulated a multifactor test for determining employment status under the Worker’s Compensation Act.”

No coverage for injury that occurred before issuance of policy – Florida

An insurance broker scrambled to get a policy in place for an uninsured employer dated the same day of an employee injury without disclosing the incident to the insurance carrier. In Normandy Ins. Co. v. Sorto, an appellate court ruled that there could be no coverage because insurance laws preclude coverage for losses that have already taken place. The court noted agreement to assume a known loss is not insurance. Insurance is to provide protection against risk. One cannot insure against known losses; there is no risk.

Lunch break injury not compensable – Georgia

In Frett v. State Farm Employee Workers’ Comp., an insurance claims associate had a scheduled lunch break and walked to the break room to microwave her lunch, which she intended to eat outside. In the breakroom, she fell in a puddle of water and a manager instructed her to complete an incident report. While an administrative law judge granted benefits, the State Board of Workers’ Compensation reversed and a superior court judge affirmed the denial.

The board found the injury did not arise out of her employment because it occurred while she was on a regularly scheduled break and while she was leaving to attend to “a purely personal matter.” While there was precedent for compensability when a worker is entering or exiting the employer’s property, even during break times, the court said this was a mistake and disapproved of its prior decisions.

Injured employee has right to sue employer under retaliatory discharge statute – Massachusetts

In Bermudez v. Dielectrics, Inc., a worker was placed by a temporary employment agency in a manufacturing facility. She sustained work-related injuries when one of the manufacturer’s employees negligently operated a forklift and several large metal sheets fell on her foot. She received work comp benefits from the employment agency and returned to work at the manufacturer eight weeks later. A few months later, she was hired as a full-time employee at the plant.

Eighteen months later, she filed a third-party action for negligence against the manufacturer and the forklift operator. Two months later she was terminated and she sued.

While a trial judge ruled in favor of the company, an appeals court found that the workers’ compensation law specifically says a worker can initiate a third-party action in addition to receiving benefits through the comp system and that a 1971 amendment eliminated the election of remedies concept (comp remedy or a civil claim). The worker had a right to file her third-party action and she could not be fired for doing so.

Worker on business trip who witnessed killings at a restaurant awarded benefits for PTSD – Michigan

In Dickey v. Delphi Automotive Systems LLC., an employee was at a restaurant in Mexico with clients and workers when he witnessed gunmen kill several people in the restaurant. When he returned to Detroit, he was diagnosed with PTSD. The Commission held it was logical to conclude that one who witnesses a horrific, stressful, and traumatizing event such as a multiple murder could possibly be afflicted with PTSD and that the award of benefits was reasonable. The employer’s examining doctor found that his symptoms were related to the side effects from the medicine he was taking, but the magistrate relied on the opinion of the treating doctors, who were actually increasing the worker’s medications.

Murder of worker by co-worker not work related – Michigan

In Williams v. Park Family Health Care PC, a worker was killed by a co-worker who she previously dated. She had broken off the relationship because he was married and not seeking a divorce. He let himself into the building, killed the worker, set the building on fire, and killed himself.

While the court found the death occurred in the course of employment, it did not arise out of her employment. The feud was personal and not connected to her employment.

Devastating stroke after reaching MMI does not affect permanent total disability benefits – Nebraska

In Krause v. Five Star Quality Care, a housekeeper fell and fractured her right femur. After her surgery she attempted to return to work, but experienced too much pain. About 2.5 years later, she filed a petition in Workers’ Compensation Court seeking temporary and permanent disability benefits. Approximately three weeks later, she suffered a massive stroke that left her incapacitated.

The compensation court, finding that the stroke was unrelated to the work injury or treatment, found she had reached maximum medical improvement prior to her stroke and awarded her permanent total disability benefits (PTD). The company argued that the stroke cut off her entitlement to PTD benefits. The court disagreed, noting that her work-related disability did not cease once she had the stroke.

Treatment guidelines apply to out-of-state providers – New York

In Matter of Gasparro v. Hospice of Dutchess County, a home health aide sustained work-related injuries to her lower back and buttocks while employed in New York and was given a nonscheduled permanent partial disability classification. Ten years later, she moved to Nevada.

Several years later, the workers’ compensation carrier objected to payment of various medical charges from a pain management specialist in Nevada. A workers’ compensation law judge ruled in favor of the medical provider, but the Workers’ Compensation Board reversed and the appellate court agreed.

Although the Board had departed from its prior decisions on the issue, the appellate court found it was rational to require medical treatment be in compliance with the guidelines.

Unreasonable deviation from employment nixes benefits – New York

In Matter of Button v. Button, a farmhand was seriously injured in a vehicular accident as he crossed a road on an employer-owned all-terrain vehicle (ATV) from his employer-provided residence to the farm itself. His residence was across the road from the farm and his girlfriend was moving in that day. He stopped at the house and grabbed a beer and the accident occurred on the way back to the farm.

His comp claim was denied by a judge because he was engaged in a prohibited activity at the time of the accident (drinking) and, therefore, his injuries did not arise out of and in the course of employment. The Board affirmed as did the appellate court, noting there was a verbal warning about drinking on the job and that other employees testified the consumption of alcohol at work was prohibited.

Workers’ Compensation Board must determine if worker is independent contractor – New York

In Findlater v Catering by Michael Schick, Inc., a state appellate court held that a trial court’s finding that a worker was an independent contractor, and not an employee, must be reversed. It found that employment issues must be decided by the Workers’ Compensation Board and the court erred by not holding the matter in abeyance pending a final resolution.

Volunteer can pursue personal injury suit in spite of liability waiver – New York

In Richardson v. Island Harvest, an unpaid volunteer worked as warehouse assistant and signed an agreement, which stipulated he was a volunteer and would not attempt to hold the organization liable for any bodily injuries he suffered in the course of his volunteer activities. He was struck by a forklift being operated by an employee and filed a personal injury suit. While a county Supreme Court Justice granted summary judgment to the organization, an Appellate Court reversed.

“New York courts have long found agreements between an employer and an employee attempting to exonerate the employer from liability for future negligence whether of itself or its employees or limiting its liability on account of such negligence void as against public policy,” the Appellate Division said.

Insurer cannot sue third-party without involvement of injured worker – Pennsylvania

An employee of Reliance Sourcing, Inc, which was insured by The Hartford, was standing in the parking lot of Thrifty Rental Car when she was struck by a rental vehicle. The Hartford paid over $59,000 in medical and wage benefits and sought to sue the responsible parties for damages. The employee did not join in the insurer’s action, did not assign her cause of action to the insurer, and did not seek to recover damages independently.

While the defendants argued The Hartford had no independent ability to commence a subrogation claim directly against them, The Hartford argued it had filed the suit “on behalf of” the employee. In a divided decision, the Supreme Court ruled that absent the injured employee’s assignment or voluntary participation as a plaintiff, the insurer may not enforce its right to subrogation by filing an action directly against the tortfeasor. – The Hartford Insurance Group on behalf of Chunli Chen v. Kafumba Kamara, Thrifty Car Rental and Rental Car Finance Group.

Widow denied benefits for husband’s pancreatic cancer – Tennessee

In Alcoa v. McCroskey, the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel ruled that a widow failed to prove her husband’s cancer was caused by his occupational exposure to coal tar pitch, affirming the decision of a trial judge. The judge found Alcoa’s expert to be more persuasive than the widow’s expert, who relied upon a single medical article, yet that article expressly noted its evidentiary deficiencies. The employer’s expert testified that the employee possessed recognized risk factors for the development of pancreatic cancer that were wholly unrelated to his work exposure to coal tar pitch.

Department-approved settlement not sufficient to compel treatment – Tennessee

In Hurst v. Claiborne County Hospital and Nursing Home, a paramedic was injured in an ambulance accident and also alleged a psychological injury from an October 2000 incident when she encountered a severely abused infant. The claim was settled, but the agreement only addressed her psychological injury. No reference was made to the ambulance accident.

After the settlement was finalized, she filed a new claim seeking benefits for the injuries incurred in the ambulance accident. She settled the claim in exchange for the payment of permanent partial disability benefits and the promise of payment for future medical directly related to her injuries. The Department of Labor and Workforce Development signed off on the settlement, not a judge. Seven years later, she filed a motion to compel payment for medical care which a trial judge granted.

On appeal, the hospital argued that the judge lacked jurisdiction since there was no court order awarding her a right to medical treatment for her physical injuries. The Supreme Court of Tennessee’s Special Workers’ Compensation Appeals Panel found the version of the Workers’ Compensation Law applicable to the 2001 car accident did not provide any mechanism for the enforcement of a department-approved agreement that had not been approved by a judge.

Worker loses benefits for failure to attend FCE sessions – Virginia

On three occasions over a four-month period of time, an employee cancelled a scheduled (and rescheduled) functional capacity evaluation (FCE) session. The employer filed a request to terminate benefits. Although the worker did appear for a FCE one week after the hearing, the worker took no action in the nearly seven-month period between the time the employer filed the request and the date of the hearing. In DeVaughn v. Fairfax County Public Schools, the Court of Appeals upheld the decision of the Workers’ Compensation Commission that there were no mitigating circumstances excusing her lack of effort and no basis for a finding of good faith.

Drivers failure to chock wheel nixes benefits – Virginia

In Callahan v. Rappahannock Goodwill, an appellate court affirmed a finding by the state’s Workers’ Compensation Commission that a truck driver willfully violated safety rules when he failed to chock the wheel on the employer’s truck during a stop and, hence, could not receive benefits for the injuries he sustained. The record supported that the safety rules were communicated through several methods to the driver and the physical evidence supported the finding that the wheels were not chocked.

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

The possibilities of telemedicine in workers’ comp

While more and more insurers are offering telehealth as part of their health plans, the highly regulated workers’ comp industry is just getting its feet wet. Telemedicine is the use of electronic communication technologies to provide medical services to injured workers without an in-person visit. This fast-paced, instant ability to connect with a medical professional can help a claim to start out right and stay on track. It can be utilized for a range of physician-led services, including initial injury treatment, specialty consultations and follow-up care.

There are several advantages:

  • Immediate attention to minor injuries
  • Fewer emergency room visits
  • More physician and specialist availability
  • Ideal for rural and remote areas
  • Removes transportation obstacles
  • Fewer missed appointments
  • “Stay-at-work” visits improve early return-to-work
  • Aid in management of chronic conditions
  • Initial assessment and evaluation for injuries when access to immediate medical care is limited, such as overnight shifts and remote travel
  • Lower costs

Yet, there are a number of barriers:

  • Employee uneasiness with receiving remote care from an unfamiliar provider
  • Physical examination limited
  • Jurisdictional and regulatory issues
  • Lack of physician fee schedules for telemedicine
  • Start-up technology costs
  • Cybersecurity threats
  • Lack of regulations and policies for licensing and privacy
  • Misdiagnosis

Telemedicine is designed to supplement, not replace, in-person care. For some injured workers, it may be a viable option. As this continues to take hold in workers’ comp, strategies to address the barriers are developing. The types of telemedicine services covered, provider requirements, and reimbursements vary across states and continue to evolve.

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

Things you should know

NLRB issues proposed rule on joint employers

As expected, the National Labor Relations Board (NLRB) has announced publication of a proposed rule on joint employers. The rule will effectively discard the expanded definition of joint employer in the Browning-Ferris Industries decision during the Obama era and return to the much narrower standard that it had followed from 1984 until 2015. An employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment.

NIOSH publishes guide on air-purifying respirator selection

NIOSH has issued a guide intended to help employers select appropriate air-purifying respirators based on the environment and contaminants at specific jobsites.

Top trend in workers’ comp reform – legislation impacting first responders

According to National Council on Compensation Insurance (NCCI), the introduction of legislation impacting first responders was the top trend in workers’ compensation reforms countrywide, although few bills have passed. In 2018, there were 103 bills dealing with first responders battling post-traumatic stress disorder or cancer, but only five bills passed. Washington and Florida both passed bills that would allow first responders with PTSD to file workers’ compensation claims under certain circumstances, and Hawaii and New Hampshire revised or enacted presumption bills for firefighters battling certain types of cancer. New Hampshire also passed a law that calls for a commission to “study” PTSD in first responders.

Worker fatalities at road construction sites on the rise: CPWR

A total of 532 construction workers were killed at road construction sites from 2011 through 2016 – more than twice the combined total for all other industries – according to a recent report from the Center for Construction Research and Training, also known as CPWR. In addition to the statistics, the report highlights injury prevention strategies for road construction sites from CPWR and several agencies.

State-by-state analysis of prescription drug laws

The Workers Compensation Research Institute published a report that shows how each of the 50 states regulates pharmaceuticals as related to workers’ compensation. Some of the highlights include:

  • 34 states now require doctors to perform certain tasks before prescribing
  • At least 11 states have adopted drug formularies
  • 15 states do not have treatment guidelines to control the prescription of opioids, and preauthorization is not required
  • In at least 26 states, medical marijuana is allowed in some form and nine of those states specifically exclude marijuana from workers’ compensation

Guide and study related to workers and depression

Workers who experience depression may be less prone to miss work when managers show greater sensitivity to their mental health and well-being, recent research from the London School of Economics and Political Science shows. The study was published online in the journal BMJ Open.

In March, the Institute for Work and Health published a guide intended to aid “the entire workplace” in assisting workers who cope with depression or those who support them.

11 best practices for lowering firefighter cancer risk

A recent report from the International Association of Fire Chiefs’ Volunteer and Combination Officers Section and the National Volunteer Fire Council details 11 best practices for minimizing cancer risk among firefighters.

NIOSH offers recommendations for firefighters facing basement, below-grade fires

The Workplace Solutions report offers strategies and tactics for fighting basement and below-grade fires, along with a list of suggested controls before, during and after an event.

Predicting truck crash involvement update now available

The American Transportation Research Institute has updated its Crash Predictor Model. It examines the statistical likelihood of future truck crashes based on certain behaviors – such as violations, convictions or previous crashes – by using data from 435,000 U.S. truck drivers over a two-year period.

This third edition of CPM includes the impact of age and gender on the probability of crashes. It also features average industry costs for six types of crashes and their severity.

State News

California

  • Governor signed four bills related to comp. A.B. 1749 allows the first responder’s “employing agency” to determine whether an injury suffered out of state is compensable. A.B. 2046 requires governmental agencies involved in combating workers compensation fraud to share data, among other changes to anti-fraud efforts. S.B. 880 allows employers to pay indemnity benefits with a prepaid credit card. S.B. 1086 preserves the extended deadline for families of police and firefighters to file claims for death benefits.
  • Governor vetoed bills that would have prohibited apportionment based on genetics, defined janitors as employees and not contractors, identified criteria doctors must consider when assigning an impairment rating for occupational breast cancer claims, called for the “complete” disbursement of $120 million in return-to-work program funds annually, and required the Division of Workers’ Compensation to document its plans for using data analytics to find fraud.
  • The Division of Workers’ Compensation revised Medical Treatment Utilization Schedule Drug List went into effect Oct 1.
  • Independent medical reviews (IMRs) used to resolve workers’ comp medical disputes in the state rose 4.4 percent in the first half of 2018 compared to the first half of 2017; however, in over 90 percent of those cases, physicians performing the IMR upheld the utilization review (UR) physician’s treatment modification or denial. – California Compensation Institute (CWCI)

Florida

  • Workers’ compensation coverage for post-traumatic stress disorder (PTSD) for first responders like firefighters, EMTs, law enforcement officers and others went into effect Oct. 1.

Indiana

  • Workers’ Compensation Board will destroy paper documents in settlements. If parties mail or drop off paper-based settlement agreements and related documents, it will trash them and notify the parties by phone or email to submit online. The board urges parties to follow the settlement checklist and procedure posted on its website.

Minnesota

  • The Department of Labor and Industry formally adopted a number of changes to fees for rehabilitation consultants.
  • Department of Labor and Industry approved rule changes that slightly increase fees for medical and vocational rehabilitation services, and increase the threshold for medical, hospital and vocational rehabilitation services that treat catastrophically injured patients.
  • Effective Jan. 1, the assigned risk rate, which insures small employers with less than $15,000 in premium, and employers with an experience modification factor of 1.25 or higher, will decrease 0.7%.

Missouri

  • A new portal from the Department of Labor offers safety data, video, and training programs.

New York

  • The Workers’ Compensation Board has launched its virtual hearings option for injured workers and their attorneys. For more information.
  • Attorneys or representatives are now required to check-in to all hearings using the online Virtual Hearing Center when appearing in person at a hearing center.

Virginia

  • The Department of Labor and Industry has issued a hazard alert warning of the potential dangers of unsafe materials handling and storage in the beverage distribution and retail industry.
  • The Workers’ Compensation Annual Report for 2017 shows claims and first report of injury are trending up, bucking the downward trend nationally. There has also been a big jump in alternative dispute resolutions.

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

 

Legal Corner

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

Things you should know

The importance of contractor selection and oversight

The Chemical Safety Board has published a new Safety Digest highlighting insufficient safety requirements in contractor selection and oversight. The digest summarizes separate CSB incident investigations and recommendations from 2007 and 2011 in which the agency concluded that inadequate contractor selection and oversight contributed to a combined 10 fatalities and four injuries.

New hazard alert and toolbox talk on opioid-related overdose deaths in construction

In an effort to raise awareness of opioid-related overdose deaths among construction workers, the Center for Construction Research and Training, CPWR, has published a hazard alert and toolbox talk on the topic. The hazard alert and toolbox talk are available in English and Spanish

ISEA/ANSI 121-2018 first in the industry to address tethering practices

The International Safety Equipment Association (ISEA) and the American National Standards Institute (ANSI) developed the first industry standard to reduce the risk of dropped objects in industrial and occupational settings. The standard, ANSI/ISEA 121-2018, American National Standard for Dropped Object Prevention Solutions, sets the minimum design, performance, labeling, and testing requirements for tethering practices.

The standard contains four active controls, which are:

  • Anchor attachments
  • Tool attachments
  • Tool tethers
  • Containers (buckets, pouches)

ISEA/ANSI 121-2018 is available online from ISEA.

CSB issues investigation update, animated video on Wisconsin refinery explosion, fire

The Chemical Safety Board has released an update of its investigation into an April 26 explosion and fire at the Husky Energy refinery in Superior, WI, as well as an animated video that explores the cause of the incident.

State News

California

  • The Labor Enforcement Task Force (LETF) issued 26 orders shutting down unsafe machines or operations at workplaces it inspected during the fiscal year 2017-2018 and found that 93% of businesses inspected were out of compliance with labor laws.

Florida

  • The National Council on Compensation Insurance (NCCI) is recommending a 13.4% decrease in rates, the second straight year that the rating organization has recommended a reduction in the state.

Illinois

  • Governor vetoed a bill that would have amended workers compensation law in relation to fees and electronic claims.

Minnesota

  • Department of Commerce has approved a 1.2% increase in the overall average pure premium level, effective Jan. 1.

Nebraska

  • Workers’ Compensation Court has redesigned its website, offering the Google platform for forms and distribution of court news. Previously bookmarked links to the court’s website will no longer work, so users are encouraged to delete their old links, then find the updated pages and bookmark them for future use.
  • Hospitals and insurers may now file diagnosis-related group (DRG) reports through the Workers’ Compensation Court’s web application.

North Carolina

  • Industrial Commission announced a $36 increase in the maximum weekly workers’ compensation benefit, starting Jan. 1. The maximum benefit will rise from $992 for this year, to $1,028.

Tennessee

  • The NCCI has proposed a statewide reduction of 19% for average voluntary market loss cost levels. By industry, contracting saw the greatest decrease of 20.7%, office and clerical was next at 20.6%, goods and services at 19.7%, manufacturing at 18% and miscellaneous at 16.8%. The new rates, which are under review, would become effective March 1, 2019.

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

Legal Corner

ADA
Failure to accommodate is costly for employers

In Equal Employment Opportunity Commission, Linda K. Atkins v. Dolgencorp L.L.C., dba Dollar General Corp., a federal appeals court affirmed a jury verdict of more than $277,000 to a former diabetic Dollar General worker. She worked the register and was often alone, so she could not leave her station when she experienced a low blood sugar episode. Her manager refused to let her keep a bottle of orange juice at her register, so when she had an attack she took a bottle of juice from the store cooler and drank it, later paying the $1.69 she owed for each bottle and told her manager.

She was fired for violating Dollar General’s “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it. The appeals court affirmed the jury awards of $27,565 in back pay and $250,000 in compensatory damages, and the court awarded her lawyers $445,322 in attorney’s fees and $1,677 in expenses. The jury found Dollar General failed to provide reasonable alternatives to keeping orange juice at her register.

In Stanley Christie v. Georgia-Pacific Co., Ace American Insurance Co., director, Office of Workers’ Compensation Program, the 9th U.S. Circuit Court of Appeals in San Francisco awarded permanent total disability to a man who injured his back working for a large paper company that failed to prove that they provided the employee with adequate accommodations after returning to work. While the company assigned him to a less-demanding warehouse position, the position required some lifting, which was difficult for him.

When he learned that the company was eliminating its early retirement program, he decided to retire because he did not feel he could work in pain for another six years. About two years later, his treating physician said he had reached maximum medical improvement, and he filed a claim seeking permanent total disability benefits under the Longshore and Harbor Workers’ Compensation Act, for which he was eligible.

The DOL’s Benefits Review Board, denied the claim, arguing his loss of wages was due to retirement, not the work injury. A three-judge panel of the 9th Circuit unanimously reversed, noting that his inability to work pushed him to retirement and the company had failed to provide suitable alternative work and had not documented any accommodations.

Workers’ Compensation
Injured worker cannot sue utilization reviewer – California

In King v. Comppartners, Inc., an utilization reviewer denied a treating physician’s request to continue prescribing Klonopin, a psychotropic drug, for an injured employee. The injured worker argued that the reviewer owed him a duty of care and had caused additional injuries by denying the request without authorizing a weaning regimen or warning him of the possible side effects of abruptly ceasing the medication. When he stopped taking the medication, he suffered four seizures.

The case found its way to the state Supreme Court, which found that utilization reviewers, in performing their statutory functions, effectively stood in the shoes of employers. As such, they were provided with the same immunity from tort liability as employers.

Safety consultant owes duty of care – California

In Oscar Peredia et al. v. HR Mobile Services Inc., parents filed a wrongful death claim against HR Mobile Services Inc., a workplace safety adviser for the employer of their son, who died in a work-related accident. The 5th District Court of Appeal found that HR Mobile agreed to assist the employer in carrying out its workplace safety obligations, and accepted a role in conducting safety inspections and safety training. As such, it can be held liable for injuries the third party suffers as a result.

Public employer can fire an injured worker who cannot perform essential job functions – Massachusetts

In Robert McEachen v. Boston Housing Authority (BHA), a carpenter for the Boston Housing Authority was injured and placed on FMLA and medical leave. About a year later, a termination hearing was held with the union and the employee and it was concluded that “he is unable to return to work and cannot perform the essential functions of his job.” The employee did not disagree and argued he could return to work in a modified duty capacity, supervising other carpenters. Such a position did not exist.

When he was terminated, he appealed to the Civil Service Commission, which upheld the BHA decision, noting the employee was unable to perform the essential functions of the job. A three-judge panel of the state appellate court affirmed.

Decision not to use handrail nixes comp claim – Minnesota

The Supreme Court ruled that an employee who fell down a flight of steps while at work is not due workers compensation because she chose not to use a handrail. In Laurie A. Roller-Dick v. CentraCare Health System and SFM Mutual Cos., the employee was leaving work, carrying a plant with both hands,when she fell down a flight of stairs and fractured her ankle. While she argued that her shoe stuck on the non-slip treads on the stairs, the compensation judge held that the injury did not arise out of employment because she failed to establish that the stairs were “more hazardous than stairs she might encounter in everyday life or that her work duties in some way increased her risk of falling as she descended them.”

While it was true that failure to use the handrail increased her risk of falling, there was no work-related reason not to use the handrail. The Workers’ Compensation Court of Appeals overturned the judge’s ruling, arguing that stairs in the workplace are inherently hazardous. However, the Supreme Court disagreed and reinstated the ruling of the compensation judge.

Teacher cannot sue school for injuries incurred when breaking up a fight – Minnesota

In Ekblad v. Independent Sch. Dist. No. 625, the 8th U.S. District Court of Appeals ruled that workers’ comp exclusive remedy bars a teacher from suing the school after he was seriously hurt breaking up a student brawl. The employee argued negligence and negligent supervision as well as failure to provide a safe workplace and a lenient policy toward minority students’ violent misconduct.

The court found that none of the three relevant exceptions to the exclusive remedy provision – the assault exception, the intentional act exception, and the co-employee liability exception – applied in this case.

Employer rebuts 100% industrial loss because employee has marketable skills – Mississippi

In Bridgeman v. SBC Internet Services, a worker suffered a compensable injury, was unable to return to his job that involved climbing utility poles, and he was terminated by his employer. Under law, there is a presumption of 100% industrial loss when the worker proves he can no longer perform his usual employment. This presumption is rebuttable, if the employer can prove the employee could earn the same wages in another position.

If the employer successfully rebuts the presumption, the employee will not recover for a 100% industrial loss of use, but receives a recovery based on the greater of his losses from the medical impairment or the industrial loss-of-use rating. Since the employer presented evidence that the employee had a computer science degree, had been a teacher, and could perform medium to heavy work, an appeals court upheld lower court decisions that granted a 50% industrial loss of use of his arm.

Subject-matter jurisdiction can be challenged at any time – North Carolina

In Burgess v. Smith, a young woman who sold cleaning products door-to-door was killed in a single car accident, driven by her co-worker. Her mother filed a wrongful death suit against the driver and her employer and neither responded to the summons. A trial judge entered a default judgment against the defendants for more than $2 million. Five months later, the employer filed a motion to set aside the default judgment, arguing that she was an employee (although he argued earlier she was an independent contractor) and that the superior court lacked jurisdiction over the claim.

The court of appeals overturned the superior court judge denial, noting that subject-matter jurisdiction may be challenged at any time, even after the default judgment. The court remanded the case with instructions for the judge to determine if there was an employer-employee relationship.

Employee cannot sue employer for failure to provide a stress-free environment – North Carolina

In Jones v. Wells Fargo Co., a former employee argued that the bank and her supervisor failed to provide her with a safe working environment free from mental stress or anxiety and aggravated a pre-existing mental condition, which they knew about. While she argued that the exclusive remedy of workers’ comp did not apply because of “egregious and extreme conduct,” the court disagreed.

Parking lot injury compensable – Pennsylvania

In Piedmont Airlines v. WCAB (Watson), an airline employee fell into a pile of snow in the employee parking lot and broke his finger. The employee parking lot, which was owned and operated by the Department of Aviation, required an identification card for entry and the employer had issued one to the employee.

The Commonwealth Court noted that when an injury does not take place while performing job duties, it is compensable if the injury occurred on the employer’s premises, the worker’s presence on the premises was required by the nature of his employment, and the injury was caused by the condition of the premises or by operation of employer’s business. The court found that all three factors were met and, therefore, the injury was compensable.

Failure to accept modified duty means benefits can be adjusted – Pennsylvania

In Pettine v. WCAB (Verizon Pennsylvania), an employee was struck by a car when marking the road and suffered compensable injuries. He later requested that the claim be expanded to include his back and shoulder. When he declined an offer of a modified job that met his physical restrictions, vocational background, and geographical area, Verizon sought to modify his benefits.

The case went through several appeals, but in each case, the employee’s petition was denied and Verizon’s was granted.

Compromise & Release (C & R) agreement may not be used to avoid paying third party fees – Pennsylvania

In Armour Pharmacy v. Bureau of Workers’ Comp, the terms of a settlement included that the company pay for all necessary medical treatment. Many years after the injury, the company requested a Utilization Review (UR) of a newly prescribed topical cream, which was determined to be reasonable and necessary treatment.

The company then entered into an agreement with the employee that stated its liability for his medical expenses did not include any past, present or future costs for any compounded prescription cream. Several months later, the employee filled another prescription for the same cream, and the company refused to pay the more than $6,000 bill.

The court explained that the C & R bind each other, but cannot release them from liability to an entity who is not a party, in this case, the pharmacy. An employer can challenge a provider’s treatment as neither reasonable nor necessary, only through UR, and the company had not challenged the second prescription.

Benefits for volunteer firefighter overturned – Pennsylvania

In East Hempfield Township v. WCAB, a long-term volunteer firefighter was diagnosed with cancer four years after taking the job with the township. Several years later he filed for workers’ compensation benefits, asserting that his cancer had been caused by his exposure to carcinogens while volunteering for the township.

The case went through several appeals with varying decisions related to whether adequate notice of the claim had been properly given. The burden of proof is on the worker to show that notice was issued within 120 days of the injury, or the date upon which he knew, or should have known, he had a potential claim.

While the employee was diagnosed years earlier, he argued he did not know of the causal link between his cancer and firefighting and filed within 120 days when he received a doctor’s letter noting the connection. The Commonwealth Court found that the relevant inquiry was not when the employee actually knew of the work-relatedness of his injury, but rather when he should have known the work-relatedness through the exercise of reasonable diligence. The case was vacated and remanded.

High court upholds total disability award for trucker with pre-existing degenerative disc disease – Tennessee

In Wesley David Fly v. Mr. Bult’s Inc. et al., the Special Workers’ Compensation Appeals Panel with the Supreme Court affirmed a circuit court ruling that a trucker’s total disability was caused by a workplace injury, not the pre-existing degenerative disc disease, which was discovered at the time of the injury. The court noted that the law requires employers to “take an employee as he is,” and “all reasonable doubts as to the causation of an injury and whether the injury arose out of the employment should be resolved in favor of the employee.”

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

Things you should know

Opioid spending down but topical medications up

A report by Coventry Workers Comp compared its 2017 data on managed claims, representing 77.6% of total comp prescriptions, and unmanaged claims. Overall drug utilization in comp was down in 2017 – especially in opioids and compounds medication, an overall industry trend – with 5.9% drops in managed claims and 7.4% in unmanaged claims.

However, topical medications prescribed in the unmanaged category of claims jumped 9.8%, compared with a 6.5% drop in the managed category. This was driven by “high-dollar, private-label topical analgesics marketed directly to physicians’ offices… contributing to the significant rise in unmanaged topical utilization per claim – demonstrating the need for continued focus on moving these transactions.”

Safety standard for wind turbine workers

The American Society of Safety Professionals has published the first U.S. industry consensus standard written specifically for the construction and demolition of wind turbines.

White paper suggests Medicare Set Asides greatly inflate costs

A new white paper produced by Care Bridge International, suggests that conventional Set Aside practices greatly inflate costs to claims payers, by as much as doubling the cost. The company is a data analytics firm, that uses a massive claims database to estimate the true exposure of future medical treatment and costs in Medicare Set Asides for workers’ compensation claims.

Health care workers, PPE and infection control: Study finds failures to follow protocol

Health care workers may be contaminating themselves and their work environments by neglecting to use personal protective equipment and follow preventive protocols, according to a study from researchers at the University of Michigan and the University of Utah. The study was published online June 11 in JAMA Internal Medicine.

CPWR offers skin cancer prevention tips for outdoor workers

Workers who spend all or part of their days outdoors have an increased risk of developing skin cancer, the Center for Construction Research and Training (CPWR) cautions in a recently released hazard alert.

Highly repetitive work in cannabis industry increases risk for musculoskeletal disorders

Employers in the marijuana industry should provide safeguards to protect workers from repetitive stress injuries, NIOSH states in a recently released Health Hazard Evaluation Program report.

European Commission adopts new rules on pilot mental health requiring airlines

Three years after the Germanwings crash in which a pilot deliberately flew a jet into a mountainside, the European Commission has adopted new rules on pilot mental health requiring airlines for the first time to carry out a psychological assessment of pilots before they hire them.

States bolster whistleblower protection

An analysis by watchdog group Public Employees for Environmental Responsibility (PEER) found that most states have expanded their whistleblower protection laws over the past 12 years, including 10 states that have done so in their most recent legislative sessions. The PEER analysis includes a report card detailing where all the states rank in different categories.

State News

California

  • Cal OSHA stronger enforcement has led to more citations and higher fines. In 2016, it inspected 813 businesses, finding 93% of them out of compliance, issuing 2,736 citations, 15% of them serious, all totaling $2.5 million in fines – nearly double the amount for the same number of citations from two years earlier.
  • Although workers’ compensation insurance rates have dropped 22% since 2014, the state still has the highest rates in the country, representing one-fifth of the premium collected nationwide with only 11% of the national workforce, according to a report released recently by the Workers’ Compensation Insurance Rating Bureau.

Indiana

  • A new procedure for submitting settlement documents to the Workers’ Compensation Board took effect Aug. 1 and will become mandatory Sept. 1. All settlement agreements and proposed orders, as well as supporting documentation, should be submitted to WCB electronically in a PDF format. WCB has provided a checklist of elements that should be included, or not included, in settlement documents.

Pennsylvania

  • The Governor introduced opioid prescription guidelines in a booklet to “help health care providers determine when opioids are appropriate for treatment of someone injured on the job.” It is one of 11 guideline booklets on the subject.

North Carolina

  • After three years of litigation, the new ambulatory surgery center fee schedule became effective June 1. The new rules.

Tennessee

  • Strict new claims-handling standards took effect Aug. 2, the first revision to the standards since they were enacted almost 20 years ago. The new rules will require greater attention to detail, better communication with injured workers, and low error rates on electronic data submissions.

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

Legal Corner

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.

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