Things you should know

Deadline to submit pay data to EEOC extended

A federal court judge has granted the EEOC’s request to extend the deadline for employers to report equal pay data (known as Component 2) of the EEO-1 to September 30, 2019. Notice has been posted on the EEOC website.

Preventing falls in construction: NIOSH issues fact sheet

NIOSH has published a new fact sheet intended to help construction employers and workers prevent falls from roofs, ladders, and scaffolds.

FMCSA webpage answers FAQs on upcoming database of CMV drivers who fail drug, alcohol tests

The Federal Motor Carrier Safety Administration (FMCSA) has created a webpage that outlines specifics of the Drug and Alcohol Clearinghouse, a national online database intended to provide – in real time – the names of commercial motor vehicle drivers who have failed drug and alcohol tests.

‘Dirty Dozen’ list of workplace safety violators released

The National Council for Occupational Safety and Health (NCOSH) released its 2019 “dirty dozen” companies that the organization says failed to protect workers from preventable illness, injury and death.

This year’s list includes:

  • Amazon.com Inc., Seattle
  • Atlantic Capes Fisheries Co., Cape May, New Jersey, and the staffing firm it uses, B.J.’s Service Co Inc., New Bedford, Massachusetts
  • Bedrock Detroit LLC, Detroit
  • Beiza Brothers Harvesting LLC, Moultrie, Georgia
  • Facebook Inc., Menlo Park, California, along with contractors Accenture PLC, Cognizant Technology Solutions Corp., PRO Unlimited Inc. and Tech Solutions Co.
  • Genan Inc., Houston
  • Integra Health Management Inc., Timonium, Maryland
  • The Johns Hopkins Hospital, Baltimore
  • McDonald’s USA LLC, Oak Brook, Illinois
  • Purdue Pharmaceuticals LP, Stamford, Connecticut, and the opioid industry
  • Tooma Enterprises Inc., Sterling Heights, Michigan
  • XPO Logistics, Greenwich, Connecticut

 

Report on women and safety in the workplace

The American Society of Safety Professionals (ASSP) released a report on women and safety in the modern workplace. The report focuses on three main challenges faced by women and offers potential solutions.

WCRI releases comp state trends reports

The 18 states in the CompScope report are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Tennessee, Texas, Virginia and Wisconsin.

According to an article in Business Insurance, key findings include:

  • The median indemnity costs per claim across the states for three years starting in 2015 was $17,778, with North Carolina, Pennsylvania and Georgia ranked in the top three and Wisconsin, Indiana and Texas in the bottom three.
  • The median cost per claim with more than seven days lost time between 2015 and 2018 was $41,888, with Louisiana, Pennsylvania and Virginia ranked in the top three and Minnesota, Tennessee and Texas in the bottom three.
  • The median medical payments per claim in 2017 was $13,524, with Wisconsin, Virginia, and Indiana ranked in the top three and Massachusetts, California and Texas ranked in the bottom three.
  • Twenty-nine percent was the median percentage of 2015 claims with more than seven days of lost time and 36 months of experience that had a defense attorney involved. Among the states with the highest attorney involvement were Illinois, New Jersey and California. Those with the lowest were Texas, Wisconsin and Minnesota.

New resource to help employers understand mental health issues

The DOL, in coordination with the Office of Disability Employment Policy (ODEP) and its Employer Assistance and Resource Network on Disability Inclusion (EARN), has launched a new resource, Mental Health Toolkit to help employers better understand mental health issues and to provide guidance on how to cultivate a supportive workplace.

Workers’ marijuana use major contributor to rise in positive drug tests, analysis shows

The rate of positive drug tests for illicit substances among U.S. workers in 2018 reached a 14-year peak, with marijuana playing a significant role, according to the annual Drug Testing Index from lab services provider Quest Diagnostics.

Researchers found that 4.4% of the combined U.S. workforce tested positive – up from 4.2% in 2017 and 2016 and the highest since 2004 when the rate was 4.5%. “Post-accident” positive tests showed rate increases: to 8.4% from 7.7% in 2017 among employees in the general workforce, and to 4.7% from 3.1% among workers in safety-sensitive jobs.

Boom lift scenario now part of NIOSH simulation tool

NIOSH has added a boom lift scenario to its Aerial Lift Hazard Recognition Simulator.

The training tool includes a scissor lift operation simulation, provides realistic workplace scenarios “to help potential aerial lift operators acclimate to aerial lift operation and to identify the common occupational hazards during use,” but is not intended to be a replacement for required training.

Protecting first responders from fentanyl exposure: NIOSH releases video

NIOSH has released a 13-minute video intended to protect first responders who face potential exposure to fentanyl – a synthetic opioid considered up to 50 times more potent than heroin – and other illicit drugs.

State News

California

  • The number of independent medical review determination letters calling for review of treatment denials and modifications peaked to 184,733 in 2018, 7.3% more than in 2017 according to the California Workers’ Compensation Research Institute. Full report.
  • 55% of medical bill reviews were overturned according to a report by the California Department of Industrial Relations.
  • The Workers’ Compensation Insurance Rating Bureau determined that the modest improvement in pure premium workers’ compensation rates so far in 2019 does not warrant a midyear filing.

New York

  • The New York State Workers’ Compensation Board announced that the maximum weekly wage benefit rate will climb, from $905 to $934, effective July 1.

Pennsylvania

  • Insurance Commissioner approved a nearly 13% reduction in loss costs for workers compensation insurance.

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

Employee behavior and heat-related illness: 5 problem-solutions

Educational campaigns and accessible resources coupled with technology and meteorology precision have made it possible for employers to provide site-specific weather information and the proper resources and training for employees to combat the risk of heat exposures. Tools such as OSHA’s heat index app calculate the heat index for the worksite, display a risk level for workers, and provide reminders about the protective measures that should be taken at that risk level.

Yet, every year thousands of workers suffer from heat illness and some die. Why?

In some cases, it’s organizational factors such as indifferent or callous supervision, poor workplace conditions, and unrealistic production expectations, which reflect the company’s overarching culture. Yet, many employers are proactive and do an excellent job in training employees and implementing procedures to prevent heat stress that aren’t followed by some employees.

Here are five problem-solutions related to employee behavior and heat stress:

  1. Problem: Risk perceptionSome employees simply underestimate how serious heat illness can be. They’ve worked in the heat before without incident – been there, done that – can’t happen to them. Moreover, the symptoms of heat illness can be subtle and misinterpreted as mere annoyances rather than signs of a serious health issue.

    That’s why the American Society of Safety Engineers calls heat the “unseen danger” at construction sites. If a heat rash appears or a cramp develops, workers can dismiss them as an inconvenience and continue working without applying a powder or getting water or a sports drink. Even signs of heat exhaustion such as thirst, heavy sweating, headache, nausea, dizziness, and irritability can be interpreted as being tired from working in the sun.

    Potential solutions: Make rest and shade breaks mandatory, pre-shift reminders about the symptoms of heat stress, foster a ‘stop and think’ culture, buddy system, make sure employees are aware of the worst-case scenario, and use testimonials and share previous incidents to heighten awareness.

  2. Problem: Don’t understand hydrationDehydration not only leads to heat stress but also impairs visual motor tracking, short-term memory, and concentration leading to work-related accidents. Most workers know that staying hydrated is critical when working in hot and humid environments.

    But “staying hydrated” means different things to different people. To some, it means waiting until they are thirsty to drink. To others, it means grabbing an ice-cold soda loaded with sugar.

    As a general guideline, the recommended amount of water intake is one quart per hour (ideally one cup every 15 minutes) of active work for the average adult. However, every worker is different. Workers with underlying medical conditions or those who are new to the work environment have unique hydration requirements.

    Potential solutions: Have water easily and readily available, provide reusable water bottles, enforce breaks, educate with detailed information about how to hydrate (frequency, water vs.sports drinks, predisposing medical factors, effects of diet, drinking alcohol) and the symptoms of dehydration, and issue frequent reminders and weather alerts throughout the day.

  3. Problem: Inexperienced workersSummer work means many young and inexperienced workers and OSHA statistics prove that these workers are particularly vulnerable to heat-related illnesses. Whether it’s lack of knowledge, an immature attitude, fear, a desire to fit in and prove their worth, or an invincible mindset, some young workers try to side-step an acclimatization program and keep up with more seasoned workers with deadly results.

    Potential solutions: Have a mentoring program, tailor training, establish consequences for failure to follow rules, and consistently interact with workers to gauge how they’re feeling.

  4. Problem: Heat illness mythsEven well-trained employees can fall back on myths, misconceptions, and inaccuracies in the “heat” of the moment. Some common myths are:
    • When you’re having heat stroke, you don’t sweat
    • Acclimatization will protect you during a heat wave
    • Salt tablets are a good way to restore electrolytes lost during sweating
    • Off-duty drinking and diet do not adversely affect the ability to manage job-related heat
    • Medications/health conditions will not affect the ability to work safely in heat

    Potential solutions: To debunk myths, employees need to understand them. Make them a part of ongoing training.

  5. Problem: Bantering and sense of controlBanter is commonplace in many physically demanding jobs. Good-natured joshing and jibing can reduce stress and help to build strong teams. Yet, when bantering moves to rough-and-tumble horseplay or bullying it can lead to dire consequences. When workers are made to feel that needing a break is a sign of weakness – “don’t be a wimp,” “man-up” – a critical line is crossed.

    Potential solutions: How workers perceive the ease or consequences of horseplay or bullying is a key factor. All organizations should make clear what is acceptable and set clear boundaries. Importantly, drill home the message that workers are responsible for each other’s safety and make sure supervisors walk the talk.

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

Things you should know

Studies:

Do higher deductibles in group health plans increase injured workers’ propensity to file for workers’ compensation? – Workers Compensation Research Institute (WCRI)

Finding: Injured workers are more inclined to seek workers comp coverage to avoid out-of-pocket health expenses when “facing a substantial financial burden” of group health deductibles.

Workers’ Compensation and Prescription Drugs – NCCI

Finding: Prescription drug prices continue to increase, but there is lower utilization.

State Policies on Treatment Guidelines and Utilization Management: A National Inventory – WCRI

Finding: There are vast differences in states’ workers’ compensation treatment guidelines and how those guidelines are enforced.

California Workers’ Comp Prescription Drug Utilization and Payment Distributions, 2009-2018: Part 1 – California Workers’ Compensation Institute (CWCI)

Finding: NSAIDs overtake opioids as the top workers’ comp drug group; dermatologicals are most costly.

Characterization of occupational exposures to respirable silica and dust in demolition, crushing, and chipping activities

Finding: Certain job tasks may expose construction workers to silica dust at levels more than 10 times the permissible exposure limit set by OSHA.

Antineoplastic drug administration by pregnant and nonpregnant nurses: an exploration of the use of protective gloves and gowns

Finding: Nearly 40 percent of pregnant nurses don’t wear protective gowns when administering powerful cancer drugs, putting their own health and that of their unborn babies at risk.

Workplace bullying and workplace violence as risk factors for cardiovascular disease: a multi-cohort study

Finding: The effect of bullying and violence on the incidence of cardiovascular disease in the general population is comparable to other risk factors such as diabetes and alcohol drinking.

Compounded topical pain creams to treat localized chronic pain: a randomized controlled trial

Finding: Topical creams were not effective in reducing pain in a study of 399 pain patients at Walter Reed National Military Medical Center.

NIOSH updates Sound Level Meter app

NIOSH has released an updated version of its free Sound Level meter app, designed to measure noise exposure in the workplace. It is available from the Apple App Store.

NIOSH releases software tool for hazard recognition training in mines

This new training tool is a beta release developed by NIOSH’s Mining Program. It is a PC-based software application that allows both novice and experienced miners to test their examination skills in a simulated, interactive environment with more than 30 panoramic photos from a real surface limestone mine, or with uploaded images taken by smartphones or digital cameras in their own mine in any sector.

Download a beta version of the EXAMiner software.

American Society of Safety Professionals issues guidance on workplace violence

The document, “How to Develop and Implement an Active Shooter/Armed Assailant Plan,” contains recommendations from more than 30 safety experts on how businesses can better protect themselves ahead of such incidents. There is a related free video and infographic.

NSC publishes Managing Fatigue

Managing Fatigue, gives employers specific, actionable guidance on implementing an effective fatigue risk management system.

NSC releases The State of Safety

The State of Safety assesses states’ safety efforts by examining laws, policies and regulations around issues that lead to the most preventable deaths and injuries. In addition to receiving an overall grade, states earned grades in three different sections:

  • Road Safety
  • Workplace Safety
  • Home & Community Safety

NIOSH publishes new skin-hazard profiles for five chemicals

The new profiles are:

  • Atrazine
  • Catechol
  • Chlorinated camphere
  • Pentachlorophenol
  • Sodium fluoroacetate

State News

California

  • The Division of Workers’ Compensation has given medical providers who treat injured California workers free online access to the state’s drug formulary and treatment guidelines.

Michigan

  • The Workers’ Compensation Agency has published its Health Care Services Rules and Fee Schedule, which took effect on Jan. 8. It includes a new definition and rule language regarding telemedicine services. The health care services rules and fee schedule may be found here, on page 238. More information

North Carolina

  • Rules approved by the North Carolina Industrial Commission regarding workers’ comp settlement agreements, which were effective January 1, were published in the North Carolina Register on page 1583.

Pennsylvania

  • Some 15 insurance carriers, including Pennsylvania’s largest workers’ compensation writer, have now agreed to retroactively cut rates, part of a do-over requested after a data-reporting error led to higher premiums last year.

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

Legal Corner

ADA 
Court clarifies ADA website accessibility obligations

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

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

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

Workers’ Compensation 
Timeliness of denial of benefits clarified – Florida

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Benefits continue for worker released to full duty – Pennsylvania

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

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

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

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

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

Subrogation lien cannot include nurse case management expenses – Tennessee

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

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

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

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

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

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

Violation of safety rule nixes benefits – Virginia

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

Injured worker who was left quadriplegic ineligible for benefits – Virginia

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

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

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

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

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

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

HR Tip: Bolstering recruitment efforts in 2019

Finding qualified applicants is one of the top challenges faced by employers. According to a new SilkRoad and CareerBuilder study, the problem begins with the job search process. A majority of employees believe their experience as a job candidate reflects how the company treats its people.

Among the key findings are:

  • Candidates expect proactive, transparent and frequent communications from employers.
  • The candidate experience speaks volumes about the employee experience.
  • Candidates are not willing to wait.
  • Candidates expect a fast and easy application experience.
  • Candidates keep looking for other jobs even when they accept an offer.
  • Successful onboarding for a new hire is critical for their long-term vision of culture and career potential at the new company.

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

Bike-share and motorized scooter workers’ comp risks

Electric scooters and dockless bikes are popping up everywhere. Some employers are encouraging their use by paying rental fees. Yet, the laws for operating scooters are just emerging, operation and safety information varies from company to company, and some are not properly maintained. Helmets may not be available. User agreements limit users to binding arbitration and/or disclaim liability, which can make an employer vulnerable if an employee injures others. While state legislatures are beginning to consider scooter bills, this craze is new and few regulations currently exist, so employers need to evaluate their use as part of a risk management plan and update their policies.

Although an employee’s travel time to and from work is generally not covered by workers’ comp, employers that subsidize transportation costs should be clear that such arrangements are voluntary and that the employer is released from liability for injuries or harm caused by or to employees during their commute. Also, the employee should accept financial responsibility for any injuries caused to third parties while using the commuter benefit.

If an employee uses a motorized scooter or bike for a work-related purpose, such as to and from a meeting or for a business-related errand, and is injured, a workers’ compensation claim could result. Employers may decide to prohibit all use of bike-share and scooter services during work hours. Those that wish to allow their use need to make sure that their workers’ compensation and general liability coverage cover such incidents and develop policies that employees agree to abide by.

New transportation technology is developing rapidly. Employers must be aware of what technologies their employees are using for business, ensure appropriate coverage, and set reasonable terms of use.

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

The daunting challenge of maintaining a drug-free workplace

With a national opioid crisis that defies holistic solutions, the legalization of medicinal marijuana in more than 30 states and recreational marijuana in 10 states, increases in deadly overdoses in the workplace, changing state laws, confusion over OSHA’s anti-retaliatory drug testing rule, and concerns about medical privacy, no employer should think they are immune to the problem. In fact, according to the National Safety Council (NSC), 15.6% of American workers live with a substance disorder and The Hartford reports that 64% of HR professionals are ill-prepared to help a worker with an opioid addiction.

These factors, coupled with a tight labor market and low unemployment, have led some employers to soften zero-tolerance policies for jobs where safety is not critical and there is a low risk of injury or error. The decision to relax zero-tolerance policies requires buy-in from company leadership and supervisors as well as serious evaluation of the consequences. Although the legalization of marijuana exponentially increases the complexity of the issue, the reasons for maintaining a drug-free workplace remain constant: safety of employees and customers, lower absenteeism, reduced turnover, fewer workers’ comp claims, fewer workplace conflicts, and reduced liability for workplace accidents.

It’s also troublesome for supervisors because substance abuse often falls below the radar of the workplace. Yet, for five consecutive years, unintentional workplace overdose deaths have increased by at least 25%. Drug testing, which is often a critical component of a zero-tolerance policy, can identify those at risk.

Here are five things to consider when evaluating a drug policy:

Legal concerns

While federal law regulating drug testing affects some heavily-regulated industries, there is no comprehensive federal law regulating drug testing in the private sector. The Drug-Free Workplace Act of 1988 requires all recipients of federal grants and some federal contractors to maintain a drug-free workplace.The ADA does not consider drug abuse a disability and allows drug testing; however, disability discrimination is a significant legal risk. If an applicant is not hired or an employee is terminated because of a positive drug test and the medication was legally prescribed for a disability, the employer could be liable. Reasonable accommodations must be provided at application, hiring, and during employment.

State laws that do regulate workplace drug testing vary widely and are constantly changing. Generally, state laws allow employers to drug test job applicants. However, many have rules about providing notice, preventing discrimination, and following procedures to prevent inaccurate samples. The laws governing testing of current employees varies widely by state, with some prohibiting random testing and others requiring ‘reasonable suspicion.’ There are also laws governing post-accident testing. It’s critical to understand and stay abreast of the laws in all the states in which you operate.

Marijuana

Marijuana is one of employers’ biggest worries and one of the driving reasons for employers to relax pre-employment drug testing. There is legitimate fear that it will reduce the pool of qualified candidates. Some address this issue by removing marijuana from the test panel for many positions that are not safety-critical.

The laws vary significantly with states that have legalized marijuana and case law is limited and evolving. Some states have card holder anti-discrimination statutes and some states prohibit firing of an employee who tests positive for marijuana while others allow it. Although all marijuana use is still illegal under federal law, state courts across the country are deciding cases on medical marijuana use and accommodation. Employers are wise to consider whether positive drug tests are connected to medicinal use before making employment decisions.

Employers should be careful about penalizing employees for off-duty marijuana use, since some states have statutes protecting employees. However, most states permit employers to prohibit marijuana use on their premises and to discipline employees who come to work under the influence.

While the uncertainty is unnerving for employers, a growing number of states are writing statutes to remove the ambiguities. Statutes in Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania, Rhode Island, Washington DC, and West Virginia address employment protection for medical marijuana patients. It’s still possible to restrict marijuana use in these states, but care needs to be taken in crafting and enforcing a policy.

If you choose to differentiate marijuana policies from other drug policies, consider these questions:

  • Will treating marijuana differently create problems in the workforce?
  • Under what circumstances will employees be tested for marijuana?
  • What are the consequences of not testing (i.e. more injuries, absenteeism)?
  • What is the process to determine a medical exception to the policy?
  • What happens when an employee fails the test?

Workers’ Comp

Substance abuse can contribute to workplace accidents and a drug-free workplace helps prevent accidents, thus lowering workers’ comp costs. In some states, employers implementing a drug-free workplace receive a premium discount. As of October 2018, 13 states had such laws. While the requirements and discounts vary, the states include Alabama, Arkansas, Florida, Georgia, Idaho, Kentucky, Mississippi, Ohio, New York, South Carolina, Tennessee, Virginia, and Wyoming.

In addition, some states have enacted laws to make it easy for employers who properly drug test to deny workers’ compensation benefits. For example, Florida law provides that if the employee tests positive for drugs, then “it is presumed that the injury was occasioned primarily by…the influence of the drug upon, the employee.”

Medical marijuana raises thorny issues for employers. Can a claim be denied if an employee tests positive for using state-approved medical cannabis? Can an injured employee receive medical marijuana to treat a workplace injury? Both are new and evolving issues that will be the subject of future court cases and state regulations. The Minnesota Department of Labor & Industries issued rules allowing cannabis as a reimbursable form of medical treatment.

OSHA

The anti-retaliatory provisions of OSHA’s e-Recordkeeping rule resulted in considerable confusion about post-injury drug testing policies, which was somewhat clarified in a guidance memo in October 2018. Before doing post-accident drug testing, employers should:

  • Have a reasonable basis to conclude drug use could have contributed to the injury
  • Test all employees whose conduct could have caused an accident, even if they were not injured
  • Identify high hazard work as a reason for testing
  • Determine if the drug test can provide insight to the root cause of incident
  • Consider whether drug test is capable of measuring impairment at the time the injury occurred
  • Ensure employees are not discouraged or dissuaded from reporting injuries

Remember, the rule does not affect new hires, random testing, or testing to comply with state or federal laws or required by Workers’ Comp insurers.

Privacy

Although challenges to workplace drug testing policies on the grounds that they violate employees’ privacy have generally not been successful, the manner in which the test is conducted and how the results are used have been successfully challenged. Drug test results are considered protected health information and must be kept confidential. Further, as laws on employee privacy continue to evolve, testing that is not clearly authorized by law could be open to legal challenges.

Conclusion

Zero-tolerance policies are strong stands that send an important cultural message, but like any policy it should be evaluated periodically. How effective has it been? Has it hampered recruitment and retention efforts for positions that are not safety-critical? Has it prevented workers from seeking the help they need to deal with substance abuse? Does it impede flexibility?

Anecdotally, more employers are tailoring drug testing to the job and adding a fitness-for-duty component. Any policy changes require serious consideration as protecting employees remains the top priority. However, no change in policy should excuse an employee who is impaired while working. There’s just too much at risk.

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

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