Things you should know

Database of EPA-approved disinfectants for COVID-19 pandemic available via app

The Environmental Protection Agency has released its List N Tool, a new web-based application (app) that allows smartphone users and others to quickly identify disinfectant products that meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.

States without fee schedules pay more

The Workers’ Compensation Research Institute’s (WCRI) medical price index study found states with no workers’ compensation fee schedule pay higher prices for professional services. In states without fee schedules, including Indiana, Iowa, Missouri, New Hampshire, New Jersey, and Wisconsin, prices paid for professional services were between 42% and 174% higher than the median of study states with fee schedules.

Similarly, outpatient hospital payments are higher and growing at a faster rate in states without fee schedules. Comparing hospital payments from a group of common workers’ comp outpatient surgeries in 36 states from 2005 to 2018, WCRI researchers found that states that paid a percentage of charge versus a fixed-amount fee schedule paid as much as 168% more per surgical episode than the median of study states with flat-rate fee schedules in 2018.

Top 10 private industry occupations with the largest number of injuries and illnesses, 2018

The Insurance Information Institute released its list of the top ten private industry occupations with the largest number of injuries and illnesses. It may surprise you that retail salespeople and registered nurses had more injuries than construction laborers.

FMCSA final rule amends trucker hours-of-service regulations

The Federal Motor Carrier Safety Administration has unveiled a highly anticipated final rule the agency claims will add flexibility to hours-of-service regulations for commercial truck drivers.

CMS releases new WCMSA reference guide

The Centers for Medicare and Medicaid Services (CMS) released its latest version of the WCMSA reference guide version 3.1 (May 11, 2020). The link to the CDC life table has been updated to the current CDC life table (2017) CMS has been using as of April 25, 2020, to calculate an injured worker’s life expectancy for Workers’ Compensation Medicare Set-Aside. It should only result in minor differences.

Electrical safety group creates infographic for people working from home

Aiming to promote electrical safety among people who are working from home during the COVID-19 pandemic, the Electrical Safety Foundation International has published an infographic.

“Dirty Dozen” list of 12 most egregious employers focuses on coronavirus response

The National Council for Occupational Safety and Health (National COSH) releases the report each year and this year focused on companies and organizations that allegedly are failing at preventing their employees from exposure to the novel coronavirus.

Updated COBRA Model Notice issued

On May 1, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued revised COBRA model notices (both the general notice and the election notice), along with brief Frequently Asked Questions related to the Consolidated Omnibus Budget Reconciliation Act (COBRA).

State News

California

  • Insurance Commissioner Ricardo Lara issued an order requiring insurers to provide an adjustment to the premium in the form of a premium credit, reduction, return of premium, or other adjustment as soon as possible and no later than Aug. 11, 2020. The order covers insurance lines including workers’ compensation, commercial automobile, commercial liability, commercial multiperil, medical malpractice, and any other insurance line where the risk of loss has fallen substantially as a result of the pandemic.
  • The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to expand the hearing schedule.
  • There was an 11.3% drop in workers’ compensation independent medical review letters in 2019 when compared with 2018, according to a report issued by the Workers’ Compensation Institute.

Georgia

Illinois

Massachusetts

  • Attorney General Maura Healey called on the state’s Division of Insurance (DOI) to take immediate steps to ensure that businesses pay fair workers’ compensation insurance premiums that reflect the businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic.

Michigan

  • Pursuant to the Governor’s latest Executive Orders, the Workers’ Disability Compensation Board of Magistrates’ hearing schedule has been updated.

North Carolina

  • Furloughed employees who are paid will not be counted on payroll for premium calculations, the rate bureau announced in a recent circular.
  • Deputy Commissioner Hearings (Non-Medical-Motion Hearings) to Resume in June 2020 via Webex.

Virginia

  • Workers’ Compensation Commission has issued an order to return to in-person hearings on or after June 11, 2020.

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

Legal Corner – including new COVID-19 Work Comp Cases

Workers’ Compensation

Attorney General sues Uber and Lyft over misclassifying drivers – California

Attorney General Xavier Becerra sued Uber Technologies Inc. and Lyft Inc. for classifying its drivers improperly as independent contractors instead of employees, evading workplace protections and withholding worker benefits. Several cities joined the state in its lawsuit, saying the companies’ misclassification harms workers, law-abiding businesses, taxpayers, and society more broadly.

Appeals court allows apportionment of permanent disability – California

In County of Santa Clara v. Workers’ Compensation Appeals Board and Barbara Justice, an employee suffered a compensable injury in a fall at work and was granted a 100% permanent disability. The county appealed, arguing that documented degenerative conditions in her knee caused part of her permanent disability. Noting the unrebutted substantial medical evidence, the appeals court agreed. The rule is that apportionment is precluded only where the industrial medical treatment is the sole cause of the permanent disability.

PTD awarded 17 years after retirement – Florida

In Pannell v. Escambia County Sch. Dist., an appellate court ruled that a worker who retired for reasons unrelated to her workplace injuries before reaching maximum medical improvement was entitled to permanent total disability benefits after she exhausted her temporary total disability benefits. It noted that a JCC erred in focusing on her retirement date, as well as her age and disability status at that time, in finding that she did not qualify for PTD benefits.

To determine whether she qualified for PTD, the relevant date is either the date of overall MMI or the expiration of her entitlement to temporary benefits, whichever occurred first. She exhausted her entitlement to temporary benefits (TTD) as of December 30, 2004, well before she reached overall MMI in 2011. She had no substantial earning capacity when her TTD was exhausted and was incapable of gainful employment when she reached MMI. Therefore, she suffered a catastrophic injury and was entitled to PTD as of Dec. 31, 2004.

Phony COVID-19 medical note leads to business shutdown and arrest – Georgia

An employee with a past criminal record defrauded his employer with a phony medical excuse letter claiming COVID-19. The letter prompted the employer to stop business and sanitize the workplace, still paying other workers who were forced to stay home in quarantine, at a cost of over $100,000. The worker was arrested by the FBI.

McDonald workers file class-action suit over COVID-19 safety – Illinois

Five workers in Chicago filed a class-action lawsuit against McDonald’s accusing it of failing to adopt government safety guidance on COVID-19 and endangering employees and their families.The lawsuit does not seek money for sick staff, but compliance with health guidance such as not having to reuse masks, mandating face coverings for customers, and requiring the company to inform employees if a co-worker becomes infected.

Judge dismisses lawsuit over safety concerns at pork processing plant – Missouri

A U.S. federal judge has dismissed a worker advocacy group’s lawsuit accusing Smithfield Foods Inc., the world’s largest pork processor, of failing to adequately protect employees from the novel coronavirus at a plant in Milan. The judge ruled that the company was taking many of the health precautions asked for and that it was not the court’s purview to oversee working conditions. Under President Donald Trump’s executive order in April requiring meatpacking plants to remain open during the pandemic, the federal government is responsible for overseeing working conditions. The company said the lawsuit should be dismissed because OSHA is already investigating. The attorney for the workers did not rule out an appeal; however, he acknowledged that the lawsuit prompted beneficial changes at the plant.

Compensability sought for family of health care worker who dies from COVID-19 – Missouri

The family of a Kansas City nurse, Celia Yap-Banago, who died from COVID-19 has filed for death benefits with the Missouri Division of Workers’ Compensation.The claim could prove to be the first major test case on compensability for virus-sickened health care workers.

Missouri’s presumption law covers firefighters, law enforcement officers, and emergency medical technicians, but not nurses.

Fireworks injury not compensable – Nebraska

In Webber v. Webber, an appeals court upheld the denial of benefits to a self-employed truck driver who was injured in a fireworks mishap. The injury occurred when he was entertaining a warehouse manager on his route. On appeal, he argued he was responsible for rapport-building with clients as part of his job providing moving services and that this was work-related horseplay. The court found that was not grounds for a claim and lighting a firework at a warehouse was not within the scope of his job.

Benefits denied to worker injured in car accident riding to lunch with boss – New York

In Matter of Scriven v. Davis Ulmer Sprinkler Co., an appellate court overturned previous rulings and found an employee who was injured in a car accident while riding to lunch with his supervisor is not eligible for workers compensation. The court noted that he was not paid during his lunch break and that he was not “obligated” to go to lunch with his supervisor, along with three co-workers. Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee.

“Gray area” rule does not apply to worker struck by car while crossing public street – New York

In Matter of Johnson v. New York City Tr. Auth., an appellate court ruled that a worker was not entitled to benefits for his injuries when he was struck by a car as he was crossing a street to get to work. At the time of the accident, the worker had arrived more than one hour early for his shift, had not yet reported to work, and was not approved for overtime. The case falls under York’s special “gray area” rule, where the mere fact that the accident took place on a public road or sidewalk did not ipso facto negate the right to compensation.

Under the rule, injuries will be compensable only if there was a special hazard at the particular off-premises point and a close association of the access route with the premises, so far as going and coming are concerned. In this case, the court concluded that the risk of getting hit by a car while crossing the public road was unrelated to the worker’s employment and a danger that “existed to any passerby traveling along the street in that location.”

Industrial Commission erred in dismissing claim – North Carolina

In Lauziere v. Stanley Martin Communities LLC, a real estate agent claimed an injury which her employer contested. The company sought medical records, moved to compel her to respond, and ultimately challenged the sufficiency of the documents. More than one year passed and she did not act so the company moved to dismiss the claim because of failure to prosecute. The Industrial Commission granted the motion and dismissed the case.

Upon appeal, the court overturned, noting the company had not been materially prejudiced. The company offered no evidence to show how the delay impaired its ability to locate witnesses, medical records, treating physicians, or any other data. The company argued it was prejudiced because it was unable to direct the agent’s medical care, however, the court said the company didn’t have the right to control since it had not accepted her claim as compensable.

Protz decision applies to cases pending at time of decision – Pennsylvania

In Weidenhammer v. Workers’ Comp. Appeal Bd., the Commonwealth Court ruled that an injured worker was not entitled to the automatic reinstatement of her total disability compensation after Protz II struck down Section 306(a.2) [77 P.S. §511.2(1)] of the state’s Workers’ Compensation Act as unconstitutional because the statute’s language requiring use of “the most recent edition” of the AMA Guides amounted to an impermissible delegation of legislative power to the American Medical Association. It noted that since the high court’s decision was not fully retroactive, it applied to all parties in all cases still pending at the time the decision was announced and only where the issue of the statute’s constitutionality had been raised and preserved at all stages of litigation.

Section 413 of the Workers’ Compensation Act provides that no award can be modified or reinstated unless a petition is filed within three years of the most recent payment of compensation. She had filed her reinstatement petition almost four years after her last payment. Since her petition was not so pending at that time of the decision and more than three years had passed since her last receipt of benefits, her petition was properly denied.

Exclusive remedy prohibits sexual harassment claim – Tennessee

In Karen Potter v. YAPP USA Automotive Systems Inc., an appeals court ruled that workers’ compensation exclusive remedy provision prohibits a woman from filing sexual harassment and hostile worker environment claims under state human rights law because her injury did not involve previously reported harassment. She had suffered injuries when a co-worker, who she had previously reported for sexual harassment, spit on and pushed her. The court found, however, that her physical injuries did not involve sexual harassment and began with a discussion about work.

PPD award based on functional loss before hip replacement surgery – Virginia

In Loudoun County v. Richardson, a divided Supreme Court ruled that a firefighter was entitled to permanent partial disability benefits based on the extent of his impairment before undergoing hip replacement surgery. A physician determined that a loss-of-use rating of 74% before surgery and 11% after surgery. Affirming lower court decisions, the court noted that using a pre-surgery loss-of-use rating recognizes that a work-related injury has permanently deprived the employee of natural functionality and that hip replacement procedure came with the expectation that the prosthetic will eventually fail and require subsequent surgical revision. It acknowledged the irreplaceable loss of the natural joint, the nonmonetary costs associated with the corrective surgery, and the permanent restrictions on the employee’s activities resulting from the work-related injury.


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

Highlights of the 2020 NCCI Symposium: focus on what coronavirus means for the workers’ comp industry

Each year, the National Council on Compensation Insurance (NCCI), which gathers data, analyzes industry trends and legislation and prepares insurance rate and loss cost recommendations holds an Issues Symposium. Needless to say, the virtual event differed from years past, which looked at recent trends to project future performance. Like everything else the pandemic touches, the unknowns make projections a formidable task.

State of the Line

Donna Glenn, NCCI’s chief actuary began with a look at where the industry stands, which was good news. Highlights of the State of the Line address include:

  • In 2019, the industry reported a combined ratio for private carriers of 85%, making it the sixth consecutive year that the workers’ comp line of business has posted an underwriting gain. The two most recent years, including the 83% combined ratio in 2018, showed the lowest workers’ comp combined ratio since the 1930s, according to the presentation.
  • Years of profitable underwriting and healthy reserves in 2019 in the workers’ compensation sector will help the industry weather coronavirus-related claims amidst lower premiums in the coming months.
  • Claim frequency continued to decline with average lost-time claim frequency across all 38 states that work with NCCI declined by 4% in 2019.
  • Looking at types of injuries, sprains and strains decreased more quickly than most – 5.4%.
  • For body parts, back injuries decreased more than other types. Head, brain, and face injuries increased and can be attributable to the increase in motor vehicle accidents, likely the result of smartphone use.
  • Average indemnity claim severity increased by 4% relative to the corresponding 2018 value, which was in line with wage growth.
  • Medical lost-time claim severity increased by 3%, which is trending faster than personal health care costs.
  • The average indemnity claim cost in NCCI states is $54,800, including $25,300 for lost wages and $29,500 for medical costs.

Unlike previous years, the past does not give a lens into the future. It’s unknown what level of claims insurers will face from the COVID-19 outbreak or how much premium will be lost as a result of high unemployment. The extent of presumption coverage in states adopting changes to workers’ comp laws will be a major factor.

Claim activity unrelated to COVID-19 is also unpredictable. Some employees may delay care or not report claims, and those with existing injuries could see their return to work and recovery hindered by fewer jobs and doctor check-ups. Fears over unemployment can cause workers to file claims over smaller and non-acute workplace injuries.

 

Coronavirus and the Recession of 2020-Impact on Workers’ Compensation

Dr. Robert Hartwig, PhD, CPCU, presented the pandemic’s effect on our economy and the workers’ compensation system. While the industry has entered the COVID-19 era in a position of significant financial strength, the impact of the pandemic is still unfolding and is unlike anything faced before.

The impact will vary by industry. Sectors hard hit by unemployment, such as hospitality, retail, manufacturing, and tourism will see large drops in premiums. At the same time, there will be upward pressure on costs, as more states pass presumptive laws and exclude COVID-19 claims from Experience Mod ratings. Workers’ compensation coverage will spike in severity and frequency for essential workers like those in healthcare.

The bottom line is that the workers’ comp line will be severely impacted given the reduction in payrolls, flattened wages, historically low interest rates, and stock market volatility. Dr. Hartwig estimated up to a 25% drop in workers’ compensation premium written. He noted insurers have received tens of thousands of claims related to COVID-19. There have been extraordinary efforts to stretch contract language to find coverage where none exists or none was intended – especially in workers’ compensation and business interruption.

 

Workers’ compensation research: demographics and medical services

NCCI also released reports prepared by two of its research experts. Latest Trends in Worker Demographics was presented by Barry Lipton, FCAS, MAAA, practice leader, and senior actuary at NCCI. Highlights include:

  • The number of older workers (65+) in the workforce continues to increase. This age group will see the largest growth between 2018-2028 (projected 6.1 million more workers), closely followed by those ages 25-44, who will see a projected growth of 4.8 million.
  • There has been an increase in accident frequency among older workers and they lose more time for work-related injuries. The average worker will lose eight working days for an injury, while those ages 65 and older, lose an average of 14 days. Falls, slips, trips and overexertion are major causes.
  • Short-tenured employees suffer a disproportionate share of total workplace injuries. New workers with under five years of experience account for a third of all injuries, but only make up a fifth of all employment. Workers with five or more years of experience account for another third of all injuries but make up half of all employment.

Raji Chadarevian, director of Medical Regulation and Informatics for NCCI, offered Gen rX-The Next Generation of Medicine. Highlights include:

  • In 2012, non-physicians made up 47 percent of all professional services. In 2018, that share has jumped to 59 percent. Non-physicians are composed of professions like physical therapists, physician assistants, and nurse anesthetists.
  • There’s a massive increase in telemedicine services in response to COVID-19. This trend, which the industry had been slow to adopt, offers potential cost savings and accelerated care.
  • Overall opioid use is on the decline, with the share of all prescription claims receiving opioids decreasing 38 percent from 2012-2018.
  • One out of every 42 chronic pain claims received mental health services in 2018, a 20% increase since 2012.
  • There were 23 physical therapy visits per chronic pain claim during the first year of injury in 2018, a 15% increase since 2012.

Employer takeaways:

  • Employers that have experienced a reduction in payroll should be proactive in working with their insurance agent to get the insurance company to adjust premiums now rather than waiting for an audit.
  • Employers must accurately document how their operation has changed and affected the classification of employees.
  • Given the high costs of indemnity claims, a strong recovery-at-work program and good hiring practices are cornerstones to lower rates.
  • Stay focused on all safety measures and maintain a strong risk profile. No one knows exactly how the expected massive increase in costs, coupled with the reductions in premiums, will be paid. Since many of the claims will be exempt from the Experience Mod rating, it’s reasonable to guess that it will come from rate increases. Expect to see a tightening market and more rigid underwriting.
  • Safety management and loss prevention can put extra focus on short-tenured workers and older workers.
  • When the unemployment rate was at record lows, employers relaxed hiring and onboarding practices. Employers in a position to take advantage of a surging labor market pool can make the best choices with good hiring practices.

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

Coronavirus, Workers’ Compensation and legislative updates

Like everything else the pandemic touches, the regulatory and legislative actions related to COVID-19 are a work in progress and continue to evolve.

Workers’ Compensation

Presumptive coverage

Governors and state legislatures grappling with how best to protect employees, while balancing the interests of businesses, continue to look to emergency adjustments to the workers’ compensation system to deal with COVID-19. The dominant issue is providing presumption of coverage for COVID-19 so that first responders and health care workers and, in some cases, other essential workers, have unimpeded access to workers’ compensation benefits.

Legislation is pending or has passed in several states, but the laws vary significantly. In some states, the presumption is conclusive, scrapping the basic tenet of workers’ comp that employees must prove they were exposed to the virus during the course of their employment. But in others, the presumption is rebuttable. The trend, which dramatically alters the workers’ comp landscape, is so prevalent that the National Council on Compensation Insurance, (NCCI) tracks this information.

States implementing changes include Alaska, Arkansas, California, Florida, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, New Mexico, North Dakota, Utah, Washington, Wisconsin, and Wyoming. States with legislation pending include Illinois, Louisiana, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, and Vermont. Updated status can be found here.

Not surprisingly, the action with the broadest sweep came from California. On May 6, Governor Gavin Newsom issued an Executive Order making it easier for employees to prove that they contracted COVID-19 at work and thus, get workers’ compensation benefits. While the presumption can be disputed if there is evidence the disease was contracted outside of work, the order effectively makes workers’ comp coverage available to all employees who worked outside their homes from March 19 to July 5 and contracted COVID-19 within two weeks of performing on-the-job duties. It is expected to cost between $600 million on the low end and $2 billion if higher estimates come to fruition, according to the WCIRB.

In Illinois, a significant court challenge compelled the Workers’ Compensation Commission to withdraw a sweeping emergency amendment that would have created a rebuttable presumption that when medical personnel, first responders, and essential employees contracted COVID-19, it was work-related. Both houses of the General Assembly recently passed a more limited bill that was a compromise measure that both businesses and workers’ advocates could live with. It provides death benefits for first responders who were presumably infected with COVID-19 on duty between March 9, 2020 and December 31, 2020 and worker’s compensation benefits for essential workers under certain conditions, but gives businesses a path to rebuttal.

The term “COVID-19 first responder or front-line worker” is defined in the bill as “all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers, correction officers, and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. For purposes of this subsection only, an employee’s home or place of residence is not a place of employment, except for home care workers.” Further, COVID-19 claims will not count against employers’ experience modification and premiums.

Employers can rebut claims under certain conditions if they can demonstrate the workplace was following current public health guidelines for two weeks before the employee claims to have contracted the virus; can provide proof that the employee was exposed by another source outside of the workplace; or, the employee was working from home for at least 14 days before the injury claim. Documentation will be critical to support rebuttals. The bill is expected to be signed by the Governor.

Employers and insurers are concerned that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges. In Minnesota, the Senate recently passed a bill which creates a coronavirus relief fund with stipulations that such funds will help local government organizations cover workers’ compensation costs related to COVID-19, among other needs generated by the pandemic.

While few states have extended presumption beyond health care workers and first responders, some have issued warnings about the handling of COVID-19 claims. Recently, the Industrial Commission of Arizona issued a policy statement noting “claim denials related to COVID-19, like any claim denial, must be ‘well-grounded in fact’ and ‘warranted by existing law'” or based upon a good faith argument for the extension, modification, or reversal of existing law.

NCCI: Impact of claims on Experience Mod

In mid-May, NCCI posted Item E-1407 which excludes all COVID-19 claims from Experience Mods. In the early days of the crisis, new claim codes were created specifically for COVID-19 infections that were paid under workers’ compensation. This filing serves to exclude those claims from experience rating (and merit rating). This applies to claims with accident dates of December 1, 2019 and later and there is currently no expiration date for this rule.

This rule has been approved by Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Maryland, Mississippi, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, South Dakota, Tennessee, Vermont, and West Virginia. Other states are expected to follow suit.

 

Independent states

Pennsylvania

In early May, the Pennsylvania Comp Bureau posted the rules relating to COVID-19, effective 3/1/20 to 12/31/20.

These changes allow for:

  • Temporary reclassification to 953 (Clerical) for employees who are now doing clerical work at home during the crisis.
  • Exclusion of payroll for wages paid to employees who are performing no services to the employer. This payroll will be assigned to Code 1212.
  • Exclusion of COVID-19 claims from Experience Rating.

There was a filing to make changes to the Basic Manual as well as the Statistical Plan.

Delaware

Also in May, Delaware made changes identical to Pennsylvania, effective April 1, 2020.

New York

New York has approved new rules, which differ from other states. According to RC 2512, published 5/1, payroll for employees who are not working at all OR employees who are temporarily reassigned to work at home will have their payroll assigned to the new code 8873. 8873 will carry the same rate as 8810. This means that employees who are being paid to not work WILL have premium applied to them, albeit at the very low 8810 rate.This rule is retroactive to 3/16/20 and applies for 30 days following the lifting of the Stay at Home order.The filing also excludes COVID-19 claims from any future experience rating.

Massachusetts

The Massachusetts Rating Bureau released a statement, “For the time being, we are interpreting Rule V.G. 6 to apply to the COV-19 situation. It states that employees who are not on strike, but are unable to perform their normal duties because of a strike, and they are performing absolutely no work for their employer and are not present on their employer’s premises during this period, such wages shall be assigned to Code 8810 – Clerical Office Employees NOC, provided the facts are clearly disclosed by the employer’s records.”

Minnesota

In Minnesota, the bureau has adopted NCCI’s payroll rules, but has stated that COVID claims WILL BE included on the experience mod.

Michigan

Unlike most states, the Michigan bureau (CAOM) does not file rules on behalf of carriers operating there. The carriers have the option to adopt or not adopt anything. CAOM has approved NCCI’s payroll rules for the Assigned Risk market, but individual carriers will have the option whether to follow this or not.

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

Legal Corner

FMLA
ABA’s summary of 2019 FMLA decisions

Each year, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from November 1, 2018 through October 31, 2019 in a user-friendly manner.

 

Workers’ Compensation
“Borrowed servant” provisions prevent temporary worker’s tort action against employee – Georgia

In Sprowson v. Villalobos, Waste Pro USA entered into a contract with Labor Ready for providing temporary employees to perform work under Waste Pro’s general or direct supervision. A temporary employee was working on a sanitation truck driven by a Waste Pro employee when he was pinned between the truck and a tree. He received comp benefits from Labor Ready and filed tort action against Waste Pro and the driver of the truck.

A judge dismissed the case against Waste Pro, noting it was barred by the exclusive remedy provisions, but allowed the case against the driver to proceed. The Court of Appeals found that the driver was “an employee of the same employer” and, thus, was protected by the exclusive remedy provisions. The court explained that even if the worker works for a different employer, when he is a “borrowed servant,” he is the co-employee of the borrowing employer’s regular employees, even though temporarily.

 

Case to watch: Worker who died from COVID-19 sues Walmart – Illinois

The family of a Walmart worker who died from complications of COVID-19 is suing the retailer in Estate of Wando Evans vs. Walmart, Inc. Four days after her death, another employee at the Chicago area store died of complications from COVID-19 and other employees exhibited symptoms. The case alleges that the retailer failed to cleanse and sterilize the store, failed to adhere to social distancing guidelines, failed to provide proper PPE, failed to notify employees of known cases, failed to follow OSHA and CDC guidelines, failed to provide employees with soap and wipes, failed to train personnel to minimize threat of COVID-19, failed to monitor employees for symptoms, and hired by phone without verifying they did not have the virus.

 

Additional evidence allowed to support claim of mental injury – Missouri

In Department of Transportation v. Labor and Industrial Relations Commission, a worker for the Department of Transportation (DOT) worked for more than 20 years responding to accident scenes. Her case went through several appeals and ultimately the Supreme Court vacated the finding of compensability, noting that the wrong standard was applied to determine if the work-related stress was “extraordinary and unusual.”

The case was remanded with the directive to review the case against the proper standard, “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.” In turn, the worker filed a motion to submit additional evidence and the DOT filed a request for writ relief, which was denied by the courts.

 

High court denies benefits for injury at doctor’s office – Missouri

In Schoen v. Mid-Missouri Mental Health Ctr., a charge nurse had a reaction to an insecticide that was sprayed around air conditioning units to control ants. The health center sent her to a physician for an evaluation. As she was being escorted by the doctor to a pulmonary function test, the doctor tried to divert a dog and accidentally tripped the nurse. She fell and allegedly sustained permanent injuries to her knees, lower back, hip, and neck, although the physician completed his exam and found she could return to regular duty.

The case made its way to the Supreme Court. Although the employee argued that her tripping injuries were the natural consequence of her cypermethrin exposure, the Court found that the risk of being tripped accidentally was a risk to which she was equally exposed outside of her employment.

 

Future wage replacement benefits denied because of misrepresentation – New York

In Matter of Teabout v. Albany County Sheriff’s Dept., an appellate court confirmed a WCLJ’s and WC Board’s ruling that an employee could not receive future wage replacement benefits because she had misrepresented her work activities and failed to disclose important information to the examining physician. The worker had sustained a foot injury and received a permanent total disability classification. However, while she denied working following the injury, she was running a photography business.

Further, she had denied any psychiatric history prior to her work accident, as well as any family psychiatric history. Based on those denials, the treating physician diagnosed adjustment disorder with a depressed mood that was causally related to her 1997 injuries. However, later the physician received medical records that revealed a strong history of psychiatric issues.

 

Traveling employee rules lead to benefits for traumatic brain injury – New York

In Matter of Wright v. Nelson Tree Serv., an appellate court affirmed a decision by the Workers’ Compensation Board that awarded benefits to a worker who suffered a traumatic brain injury in a motor vehicle accident. The tree service worker was assigned to various locations, sometimes over six hours from his home when he opted to stay at a local hotel for the workweek. He was paid a per diem for food and lodging.

He and his coworkers would drive from the hotel to the same parking lot to pick up a bucket truck and proceed to the designated work site. En route to the parking lot, he was seriously injured. While a WCLJ found the injury was not compensable, the Board reversed and the Appellate Court agreed. It applied the traveling employee exception, where injuries may be compensable even if the employee at the time of the accident was not engaged in the duties of his or her employment, provided that the employee was engaged in a reasonable activity.

 

Traveling employee’s fall in hotel laundry room not compensable – North Carolina

In McSwain v. Industrial Commercial Sales & Serv., LLC, a worker was part of a crew working on a project in California. They finished a day early, but the company opted not to change their flight due to the high cost. On the day off, one worker started a load of laundry then joined his coworkers on the patio for some drinks. When he returned to retrieve his laundry he slipped on a wet spot and fell in the hotel lobby and filed a WC claim.

The Court of Appeals upheld the denial of the claim. While the court noted that when employees are required to stay overnight away from home, they are treated as being within the course of their employment for the duration of the trip “except when a distinct departure on a personal errand” is shown. Doing the laundry was not considered a personal need, such as eating a meal.

 

Court overturns worker’s reinstatement petition – Pennsylvania

In Communication Test Design v. WCAB (Simpson), the Commonwealth Court held that a WCJ erred in granting a worker’s reinstatement petition and awarding unreasonable contest fees. The employer accepted liability for medical bills for an eye laceration. Soon after the company began paying disability benefits, it stopped and denied that the employee suffered a work injury.

The worker argued the company failed to issue a notice that it was stopping its payment of benefits within five days after the last payment of temporary compensation. However, the court found that there was no evidence to prove this and the act provides no remedy for non-compliance. Moreover, the worker had never established disability prior to the filing of the Reinstatement Petition and it was his burden to establish his right to reinstatement. The court noted, the employer not only contested the Reinstatement Petition, but it also proved that the worker did not suffer a disability. Accordingly, the WCJ erred by awarding unreasonable contest fees.

 

Injuries not compensable caused by “Act of God” – Virginia

In Sylvia Martin v. Virginia Beach Schools and Corvel Corp., a school security guard fell when a gust of wind suddenly caused a metal gate, through which she had just passed, to close behind and strike her. The guard, who was on work restrictions from an earlier fall, filed a claim more than four months after the second incident, asserting that she had landed on her left side, injuring her left leg, left hip, ribs, back, neck, left hand, and right hand.

The Workers’ Compensation Commission denied the claim and the appeals court affirmed. Applying the “risk test,” the Commission noted that she did not face a risk that was any greater than the public at large. The fall was caused by a natural wind force which, standing alone, had to be considered an “act of God.”

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

Things you should know:

State news: Coronvirus resources

All states

  • Most states have dedicated webpages on the coronavirus at their statename.gov website with links for businesses
  • The National Conference of State Legislature’s website has a list of passed and pending legislation by state
  • For updates to Workers’ Comp information, visit your state’s Workers’ Compensation website

California

Florida

Georgia

Illinois

Indiana

Massachusetts

Michigan

Minnesota

Missouri

Nebraska

New York

North Carolina

Pennsylvania

Tennessee

Virginia

Wisconsin

 

Regulatory relief for commercial drivers to combat COVID-19

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has issued a national emergency declaration to provide hours-of-service (HOS) regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak. This declaration is believed to be the first time the agency has issued nationwide relief and follows President Trump’s issuing of a national emergency declaration in response to the virus.

Department of Transportation issues notice related to CBD products

CBD products may have higher levels of tetrahydrocannabinol, or THC – the main psychoactive ingredient in marijuana – than the Department of Transportation allows in a non-controlled substance, the agency cautions in a Feb. 18 policy and compliance notice, adding that CBD use is not a “legitimate medical explanation” for a safety-sensitive employee who tests positive for marijuana.

Opioid use in construction: CPWR issues report, launches awareness training

The Center for Construction Research and Training (CPWR) has launched a beta version of a training program aimed at combating the opioid crisis in construction. Intended for use by experienced instructors and developed in conjunction with North America’s Building Trades Unions, the program comprises six sections and covers topics such as the opioid epidemic, prevention and harm reduction, and treatment and recovery.

Feb. 27 webinar from CPWR provided an overview of a recent report, and highlighted available resources and efforts to help mitigate the effect of opioids on the industry.

Helpful guide for choosing slip-resistant footwear

To assist in the selection and purchase of slip-resistant footwear for the workplace, Canadian research organization IRSST has published a free online guide.

Federal agencies launch website on school safety and security

The Department of Education, together with the departments of Health and Human Services, Justice, and Homeland Security, has launched a new website it calls a “one-stop shop of resources” for K-12 teachers, administrators, parents and law enforcement to identify, prepare for, respond to and mitigate school safety threats.

NIOSH launches online inspection tool for mast climbers

A new online tool from NIOSH is designed to guide users through daily pre-shift inspections of mast climbing work platforms and help identify common hazards associated with the equipment.

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

Legal Corner

Workers’ Compensation

$2.8 million award for emotional and financial damages upheld – California

In Reynaud v. Technicolor Creative Services USA Inc., an appellate court upheld a $2.8 million award to a United Kingdom citizen for emotional and financial damages related to delays in processing a green card application, finding the claims were not barred under the workers’ comp act. The company had arranged and sponsored a series of temporary work visas for the employee which his family also used to come to the U.S. In 2013, the employee asked the company to sponsor him for a green card and the company delayed and was very slow to implement the requirements.

The company told him that he would no longer remain employed after his visa expired in May 2016 and the employee and his family returned to England. Unable to find work, he developed depression and his wife sought counseling for depression and anxiety. The employee sued the company for negligence, alleging that it breached its assumed duty of due care “by failing to initiate the green card process.” A jury awarded $2.8 million to the couple.

The company argued it was protected by the exclusive remedy of the workers’ comp act, but the court found that the injuries were not caused by job-related duties or responsibilities, therefore the workers’ compensation law was inapplicable.

Truck driver is employee and cannot file personal injury claim – Georgia

In Estes v. G&W Carriers LLC, a married couple rotated driving responsibilities on their trips. The wife was injured while in the sleeping compartment when her husband was driving and rolled the truck.She filed a personal injury claim against the company. The company argued that the suit was barred by the exclusive remedy provision of workers’ comp and the court agreed.

While the wife argued she was an independent contractor because the company did not mandate a specific route be taken and that she could decline loads, the court found that the company had the right to control the time, manner and method of executing the work. It was the right to control, not necessarily the actual level of control, that governed the decision.

Widow can pursue tort claim against farm and forklift company, but not employer – Georgia

In Mullinax v. Pilgrim’s Pride Corp., the Court of Appeals reversed a trial court’s decision and allowed a tort case to proceed against two companies. The worker was a truck driver who was at a farm to transport chickens for processing by Pilgrim’s Pride Corp. A forklift operator employed by Rising Inc., which was contracted by Pilgrim’s to catch chickens and load them onto the trucks, left the forklift running when he went to the bathroom, and a co-worker of the truck driver, who was not authorized to drive a forklift, got into the forklift and ran over him.

The court upheld the dismissal of the case against Pilgrim’s, but allowed it to proceed against the owner of the farm and Rising as a jury could conclude that they had breached their duty of care.

Going and Coming rule clarified – Michigan

In Smith v. Chrysler Grp., LLC, an auditor was injured in a car accident while driving from home in his personal vehicle to a manufacturing plant owned by his employer. The employer reimbursed the auditor for his travel expenses. In reversing a decision of the Appellate Commission, a state appellate court found the auditor’s travel was an integral part of his work duties within the course and scope of the employment.

It noted while generally the going and coming rule prohibits workers’ comp benefits, there are exceptions. Each exception should be examined on its own merits and not as factors to be weighed. The situation met two exceptions: the employee was on a special mission for his employer and the employer paid for or furnished employee transportation as part of the employment contract.

High court denies benefits for school teacher – Missouri

In Annayeva v. Special Administrative Board of the Transitional School District of the City of St. Louis, a teacher slipped and fell inside the main entrance of the school, while carrying a bag of school-related papers. A security guard witnessed the fall. Although initially the teacher indicated she did not know the cause of the fall, after questioning by her attorney, she claimed the floor was covered with ice, dirt, and moisture.

The Commission did not find her testimony credible and denied the claim, but an appeals court overturned and the case made its way to the Supreme Court. The court found her not credible, that the accident did not involve a risk greater than any other and, therefore, was not compensable.

“Post-injury misconduct” does not include absence from the workplace – Missouri

In Hicks v. State of Missouri, an injured correctional officer was awarded temporary total disability (TTD) benefits after being terminated for unexcused absences. The employee injured his arm and shoulder during a training program and did not initially report the injury, but when an inmate asked what was wrong with his “wing”, he felt vulnerable and reported it. He had surgery and was eventually released for full duty, but informed his supervisor he was a risk to himself and others and requested light duty.

There was no light duty and the prison denied a request for a second medical decision. He stopped working after five days and was terminated for unexcused absences. He obtained another medical opinion, which suggested further treatment was needed. The prison authorized further treatment and additional surgeries were performed and two years later he was found capable of full duty without restrictions.

While the prison contested his claim for TTD because he was terminated for “post-injury misconduct,” the court noted the statute says the phrase “‘post-injury misconduct” does not include absence from the workplace due to an injury unless the employee is capable of working with restrictions and, therefore, his absences were attributable to his injury.

Drivers for Postmates are employees – New York

The Court of Appeals recently ruled that drivers for online food delivery service Postmates Inc. were employees eligible for unemployment insurance. The ruling noted, “Postmates has complete control over the means by which it obtains customers, how the customer is connected to the delivery person, and whether and how its couriers are compensated.”

Injured worker must be weaned from high dose of opioids – New York

In Matter of Forte v. Muccini, an automotive repair shop employee injured his back and received permanent partial disability. After undergoing surgery in 2005, he continued to receive opioids for over ten years and developed a tolerance to high dosages. The employer’s carrier sought an order directing that he be weaned from the opioid medications based upon the medical opinion of an IME. However, the employee’s physician warned that weaning him could result in increased blood pressure and other medical problems and that the employee was experiencing high levels of pain and following his own tapering regiment.

The Workers’ Compensation Board ruled that he should be weaned per the program developed by the IME. An appellate court upheld the ruling, noting it was for the Board to resolve the conflict in medical opinion and it had done so.

Workers’ Compensation Board will reopen SLU/Non SLU decisions after landmark court decisions – New York

Earlier this year, the Supreme Court’s 3rd Department, which handles workers’ compensation appeals, issued rulings in Saputo v. Newsday, Fernandez v. New York University Benefits, and Arias v. City of New York, which found that the Workers’ Compensation Board failed to abide by a 2018 decision, Taher v. Yiota Taxi. The ruling found that some workers were entitled to simultaneous schedule loss of use (SLU) and non-schedule loss (Non-SLU) classifications.

The Board had a policy that barred a worker, who had received benefits for a Non-SLU and was back at work at regular wages, from receiving SLU benefits. If the Board issued a prior decision contrary to the newly issued court decisions, the Board will reopen the cases upon request as stated in this bulletin.

Settlement of claim nixes civil action of assaulted residential counselor – Pennsylvania

In Grabowski v. Carelink Community Support Services Inc., the Superior Court upheld the dismissal of a worker’s civil action against her employer seeking damages for injuries from an assault by a patient at a residential treatment facility. She received over $75,000 in workers’ compensation and then entered into a compromise and release agreement and received a $40,000 lump sum from the employer.

She then filed a negligence action. However, the court noted the employer would liable only if she was attacked for purely personal reasons that were not related to her employment. While the passive receipt of workers’ compensation benefits does not bar an employee from suing the employer for negligence, she actively pursued and agreed to a settlement. In effect, this constituted an admission that the incident occurred in the course and scope of her employment.

Spider bite compensable – Virginia

In James Madison Univ. v. Housden, an appeals court found that a bite by a brown recluse spider was compensable. Noting that the employee had previously reported spiders in the building and that construction work in a boiler room located below her office may have disturbed insects and spiders, the court found she faced a greater risk than that experienced in ordinary life.

Failure to wear seatbelt nixes compensation – Virginia

In Mizelle v. Holiday Ice, an appellate court confirmed the decision of the Workers’ Compensation Commission that a truck driver’s conduct – not wearing a seatbelt – was considered “willful” under state case law and, therefore, compensation was barred. The “willful misconduct” provision in the state’s comp law states that an employer can prevail when asserting a defense of willful misconduct if the employer proves that the safety rule, or other duty, was reasonable, was known to the employee, was for the employee’s benefit, and that the employee “intentionally undertook the forbidden act.”

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

 

FAQ: Coronavirus and the workplace

Q. Can employers ask employees who exhibit symptoms to leave work and stay home?

A. Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC Guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act addresses these issues.

Q. What should we do if one of our employees has COVID-19 symptoms or tests positive for COVID-19?

A. “Employers should send the employee home and require them to stay home until they are able to return under CDC guidance. It is important to note that return to work standards and time frames may be different depending on circumstances. Employers should review the CDC’s website for guidance. If an employee tests positive, the employer should also consider notifying other employees who may have been exposed at work, but maintain the confidentiality of the employee who tested positive. A good CDC reference for employers” – East Coast Risk Management

Q. What should we do if one of our employees has had contact with a person with COVD-19 symptoms or someone who has tested positive for COVID-19?

A. “Employers should review the risk categories established by the CDC and develop a response based on that guidance. This CDC guidance ultimately puts employees into a risk category based on symptoms, travel, and level of contact with a symptomatic individual. If there is a risk that the employee’s contact with another person puts them at risk of contracting COVID-19, the employer should send the employee home and require them to stay home until they are able to return under CDC guidance. The CDC risk assessment guidance can be found here.” – East Coast Risk Management

Q. How much information may an employer request when an employee calls in sick to work?

A. The EEOC has issued guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, that explains during a pandemic, ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. They may also require the employee to undergo medical testing before returning to work.

Q. When may an employer take the body temperature of employees during the COVID-19 pandemic?

A. While under normal circumstances, measuring an employee’s temperature is considered a medical exam and prohibited under the ADA, employers may now measure employees’ body temperature. However, the practice needs to be consistently applied and employers need to know that some people with COVID-19 do not have a fever, and not all fevers are COVID-19 related. The risks to the worker taking temperature must be evaluated and proper PPE provided to minimize the hazard. OSHA offers guidelines.

Q. What are the most effective cleaning products to sanitize our facility?

A. The Environmental Protection Agency has added nearly 200 registered disinfectants to an online list of cleaning products that can help prevent and reduce the spread of the coronavirus and has made the list sortable, searchable and printable. Employers must also ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication standard (29 CFR 1910.1200) and to provide proper PPE and training, when necessary. If this is a non-typical task for an employee, they must be trained at the time of their first assignment.

Q. When employees return to work, can employers require medical documentation?

A. Yes, however, as a practical matter, doctors and other health care professionals may be too busy to provide such documentation in a timely way. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, or an e-mail to certify that an individual does not have the pandemic virus. A best practice would be to follow CDC guidance and instructions from public health authorities.

Q. Do we need to report a confirmed or suspected case of coronavirus to the CDC or local health department?

A. No, the health care professionals will handle the reporting requirements.

 

Workers’ Comp – experience mod and audit considerations

Q. If a Comp claim is accepted will it go on the experience mod?

A. As it stands, yes. This question came up when Cause of Loss codes were updated this week to include a code for COVID-19. Every injury has a Cause of Loss code. It’s how rating bureaus and other agencies track what types of injuries are happening. Except for the code for claims arising from the 9/11 attacks, none of them have been given special treatment in experience rating.

It is worth noting that it was March 2002 before the rules relating to excluding 9/11 claims were approved. If rules excluding COVID-19 claims are coming, we would expect them well after the outbreak is considered over.

Q. If a business continues to pay non-working employees, will it count on the audit? Also, will the pay employees receive under the newly passed laws for sick time or FMLA benefits count on the audit?

A. Probably so. A few states (Oregon, South Dakota, Kansas) have rules that allow for the exclusion of sick time and vacation pay.

Rule 2.F.2 of the NCCI Basic Manual allows for the reallocation of payroll for KEY employees of construction or stevedoring risks who are paid despite the business being idle. This rule is primarily used when a business goes through a seasonal shutdown but retains a few key employees who may work in the office or may not work at all. Moving their payroll to 8810 is permissible. Per communication with NCCI this week, this rule does NOT apply to any other type of business. Idle time is classified the same as being at work.

Our recommendation: EVERY business in either of these situations should keep a close accounting of the money spent. If the rules change in the future, only those with the appropriate records will be able to take advantage of them.

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

Things you should know

Proposed rule could mean stiff Medicare secondary payer penalties for insurers

The Centers for Medicare & Medicaid Services released a long-awaited proposed rule regarding late reporting of Medicare Secondary Payer data. While the regulation established that insurers and self-insured report the information to CMS when they accepted a medical responsibility in a workers’ compensation claim or provided payment or settlement to a Medicare beneficiary report, it took 13 years to address penalties for failure to accurately report the data.

The proposed rule allows penalties of up to $1,000 per day per claim for failure to register and report Medicare secondary payer data or report with sufficient accuracy. It places a five-year statute of limitations on fines and recovery by CMS.

NLRB releases new definition of “joint employer”

As expected, the National Labor Relations Board (NLRB) tightened up the definition of “joint employer” in a final rule announced Feb. 25. The final rule takes effect April 27 and establishes an entity is a joint employer of a separate employer’s workers only if the two employers share or codetermine the employees’ essential terms or conditions of employment.

Free online training: Preventing workplace violence in retail, food service

The University of Southern Maine, in conjunction with the Maine Small Business Development Center, has launched three free online training modules intended to help employers (fewer than 250 employees) and workers in the retail and food service industries prevent workplace violence. The three modules are:

  • Employer and manager (two hours)
  • Employee (one hour)
  • Trainer (one hour)

Each module is self-paced, allowing users to log in and resume learning when convenient.

New resources from the Center for Construction Research and Training (CRC)

FMCSA final rule delays compliance date for CMV driver minimum training requirements

The Federal Motor Carrier Safety Administration is delaying by two years the compliance date of its final rule on minimum training requirements for entry-level commercial motor vehicle drivers. The new compliance date is Feb. 7, 2022. For more information.

New video for tower workers: safety climb systems

new video from the National Association of Tower Erectors highlights the importance of properly inspecting and using safety climb systems installed on communication towers.

State News

California

  • In a unanimous decision, the state Supreme Court held that the time spent by employees waiting for and undergoing security checks of bags and other personal items is compensable, even when the policy only applies to employees who choose to bring personal items to work. However, the ruling provides a multi-factor test as to whether “onsite employer-controlled activities” must be compensated as “hours worked.”

Illinois

  • The Department of Human Rights (IDHR) issued guidance for employers on the requirements created by the Workplace Transparency Act (WTA), which became effective Jan.1. The guidance provides the “minimum” standards required in connection with aspects of the Act.

New York

  • The New York City Commission on Human Rights (NYCCHR) has released a factsheet on the anti-discrimination protections provided to individuals performing services as independent contractors and freelancers under the New York City Human Rights Law (NYCHRL) that went into effect January 11, 2020.

Wisconsin

  • The Department of Workforce Development (DWD) announced the rollout of additional educational tools that will help workers, employers, and other stakeholders learn more about and connect with organizations and resources that work to advance workplace safety. These include updated publications, a new blog, and social media videos.

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

Legal Corner

ADA

Recent EEOC settlements

  • Des Plaines, Ill.-based M&M Limousine Service will pay a deaf job applicant $30,000 to settle a disability discrimination lawsuit for refusing to hire the applicant based on his disability and failing to consider whether he could do the job with or without reasonable accommodation.
  • Washington-based Prestige Care, Inc., Prestige Senior Living, LLC, and their affiliates will pay $2 million and furnish other relief to settle a disability discrimination suit. The company had policies requiring employees to perform 100% of job duties without restriction, accommodation, or engaging in the interactive process and inflexible leave policies.
  • Barnhart, Mo.-based, Home Service Oil Company, doing business as Express Mart, will pay $25,000 and furnish other relief to settle a disability discrimination suit for failing to hire a job applicant with Tourette’s syndrome and neurofibromatosis for a part-time sales clerk position because of his medical conditions.
  • California-based local grocery outlet PAQ, Inc., doing business as Rancho San Miguel Markets, has agreed to pay $100,000 to settle a disability suit, reinstate the employee and improve its policies related to the ADA. A deli clerk with a disability provided Rancho San Miguel Markets a doctor’s note requesting an accommodation. Her request was denied, and she was subsequently fired.

Workers’ Compensation

30-day grace period to avoid legal fees not extended for holidays and weekends – Florida

In Zenith Ins. Co. v. Cruz, an appellate court ruled that a carrier has 30 calendar days from its receipt of a petition of benefits to rescind a denial of the claim to avoid the imposition of legal fees and that is not extended if the thirtieth day falls on a weekend or holiday. In this case, the claim was initially denied and the 30-day grace period expired on a Saturday. On the Monday, following the 30-day grace period, the employer/carrier rescinded the denial, agreed to pay all benefits, and issued an indemnity benefits check.

The employee was awarded a claim for attorney fees and the carrier appealed. Although rule 60Q-6.109 of the Rules of Procedure for Workers’ Compensation Adjudications provides that if any act required or allowed to be done falls on a holiday or weekend day, performance of the act may be satisfied if done on the next regular working day, the court held that an administrative rule cannot supersede the language of the statute. The statute does not specify business days and precedent has treated other deadlines concerning the filing and receipt of petitions as referring to calendar days.

Positive alcohol test doesn’t nix benefits – Florida

In Krysiak v. City of Kissimmee, a utility technician for the city injured his shoulder. Earlier in the year, he was reprimanded for purchasing beer in a city vehicle, signed a last-chance warning, and completed an employee assistance program. When he returned to full duty, he was still receiving temporary partial disability benefits, missed several days of work without calling in, and a letter was drafted terminating him for job abandonment. However, he returned to work before the letter was sent. When he did report to work, his supervisor was concerned about his ability to work and HR ordered an alcohol and drug test, which came back positive for alcohol. He was terminated for violating the city’s substance abuse policy.

The city has a policy prohibiting workers from being under the influence of alcohol while at work, but the policy does not designate a specific prohibited alcohol level or define the phrase “under the influence.” While a JCC ruled that temporary partial disability benefits were barred since he was terminated for misconduct, an Appeals court disagreed. The city did not present the results of the drug test and simply saying he did not look fit to work was insufficient and remanded the case.

Bus driver who suffered stroke not entitled to comp benefits – Georgia

In Henry County Board of Education v. Rutledge, while warming the air brakes a bus driver noticed smoke or steam coming out of the dashboard and lost consciousness. He had suffered a stroke and filed a workers’ compensation claim. The case bounced between the courts and Board of Workers’ Compensation, revolving around whether exposure to a substance from the bus contributed to or worsened his pre-existing conditions (hypertension and diabetes) and risk for stroke.

The Court of Appeals explained that a stroke is generally not compensable unless the employee can show that his work was a contributing factor. Since the Board had analyzed whether his exposure contributed to or aggravated his injury, it was correct in denying the claim.

Employer cannot be penalized for unreasonably denying medical treatment – Illinois

In O’Neil v. Ill. Workers’ Comp. Comm’n, a divided Appellate Court ruled that the Workers’ Compensation Commission does not have statutory authority to assess penalties against an employer for a failure or delay in authorizing reasonable and necessary medical treatment. A marine technician received approval for surgery for an injury to his right knee, but delayed surgery because he was the only marine technician on staff and it was a busy time. About a week before the scheduled surgery, the employer’s carrier revoked the surgery authorization, indicating that there was a need for an additional investigation because they had found records of an earlier surgery on the knee.

An arbitrator found the earlier surgery was on the lower leg and that there was a causal relationship between the employee’s work and the knee condition. The arbitrator ordered surgery and assessed a penalty of $6,900 as well as the payment of legal fees. However, the Commission determined and the court agreed, it did not have statutory authority to award attorney fees and penalties.

Widow denied benefits because of husband’s preexisting condition – Massachusetts

In Arruda v. Zurich American Insurance Co., an appeals court reversed a district court decision awarding death benefits to the widow of a utility’s sales executive killed in a work-related car crash. He crashed his car on the way to a work-related event, crossing all lanes of traffic.

The autopsy conducted after his accident listed the primary cause of death as heart disease, with spine fracture due to blunt impact as a contributory factor and the police said he experienced a medical episode. His preexisting conditions included hypertension, cardiomyopathy, depression, anxiety, high cholesterol, diverticulosis, insomnia, fatigue, muscle pain and weakness, and fainting spells. Four months before the accident, he had felt weak and fainted and had an implantable cardioverter-defibrillator placed in his chest.

The court found the insurance company presented substantial evidence that his death was caused or contributed to by preexisting medical conditions.

Staffing agency fined $55,000 for misclassifying workers – Massachusetts

Delta-T Group Massachusetts Inc., a national staffing agency that places education sector workers in temporary positions, has been cited $55,000 in penalties for misclassifying employees by the Attorney General. It has agreed to modify its practices to require all school workers who use its services be treated as employees going forward. The state uses a three-prong test, similar to California’s ABC test.

Comp exemption for North Dakota businesses upheld – Minnesota

In John Devos vs. Rhino Contracting, the state Supreme Court issued an order (but not a full opinion) upholding the decision of an appeals court that a law that gives a special workers’ compensation exemption to North Dakota employers is not unconstitutional. North Dakota has a monopolistic comp system and significantly lower benefits than Minnesota.

A 2005 law excludes injured employees of North Dakota companies from collecting Minnesota benefits if they worked in Minnesota for fewer than 240 hours in a calendar year. It was designed to give small businesses, such as mom-and-pop pizza places that delivered into Minnesota, a break so they wouldn’t have to purchase comp insurance in both states.

Workers’ comp coverage not enough to trigger enhanced benefit for mesothelioma – Missouri

In 2014 the state passed a statute that allows a lump-sum payment equal to 300% of the state’s average weekly wage for 212 weeks in occupational mesothelioma claims resulting in permanent disability or death. A dairy farm worker was diagnosed in 2014 with mesothelioma caused by toxic exposure to asbestos that occurred at work and died a year later. He and his adult children filed for a comp claim with enhanced benefits. The farm had closed in 1998.

The case, Vincent Hegger et al. v. Valley Farm Dairy Co., made its way to the state Supreme Court. The court upheld lower decisions that employers have to take affirmative action to elect the enhanced benefits, simply having a workers’ comp policy was not sufficient. The court added that, under the plain language of the statute, employers that do not make the requisite affirmative election for the enhanced benefit have rejected such liability and are thereby exposed to civil suit. Since the farm had closed 16 years before the statute, it could not affirmatively elect to accept liability for the enhanced benefit.

SLU awards must be made for body members, not subparts – New York

In Matter of Johnson v. City of N.Y., a patient care technician sustained work-related injuries to both his knees and in another later accident to his neck, back, shoulder and hip. When it was determined that the scheduled loss of use (SLU) must be reduced by his prior SLU awards of the legs, which encompassed both hip and knees, the employee appealed. Upon appeal, the court noted SLU awards are limited only to those “members” statutorily enumerated in the statute or guidelines. A leg is listed as a statutorily-enumerated member, but not its subparts.

NFL player not a seasonal worker – Pennsylvania

Acknowledging that in earlier decisions, the appellate court had held that injured NFL players are “seasonal” employees for purposes of computing their average weekly wage, the court held that circumstances in Pittsburgh Steelers Sports, Inc. v. Workers’ Comp. Appeal Bd. (Trucks) were different.

Here, the player had a two-year contract, was required to attend all minicamps, practice sessions, to make public appearances and perform other services at the discretion of the employer. This meant he was not a seasonal worker.

Failure to establish a reasonable degree of medical certainty nixes benefits – Tennessee

In Armstrong v. Chattanooga Billiard Club, an employee suffered an electrical shock and alleged injuries to her mouth, face, and right arm. The employer’s physician argued that the dental injuries were not caused by the electrical shock, whereas the employee’s physician said they “could be.” In 2014 the Workers’ Compensation Reform Law strengthened the statutory requirement for compensability. An injury was not compensable unless it arose primarily out of and in the course and scope of employment and causation had to be established to a reasonable degree of medical certainty.

The Appeals Board found the employee’s doctors “could be” opinion insufficient to satisfy the statutory causation standard.

Benefits awarded under occupational disease presumption despite history of heart disease – Virginia

In City of Newport News v. Kahikina, an appeals court affirmed the Workers’ Compensation Commission’s award of benefits to a police officer for heart disease. In 2017 he filed for workers’ compensation benefits, stating his cardiomyopathy was caused by the stress of his job. As early as 2004, he began having heart problems and in 2011, a cardiologist diagnosed him with cardiomyopathy and attributed his irregular heartbeats to his consumption of Red Bull. In 2015, he was hospitalized for chest pain and diagnosed with “unstable angina” as well as hypertension, diabetes and high cholesterol. The Commission found that this episode triggered the two-year statute of limitations and that his claim was timely filed.

The city argued the statute of limitations should have begun with his first diagnosis of cardiomyopathy and, therefore, the claim was untimely. The appellate court disagreed, noting the employee did not know that his occupational disease arose out of and in the course of his employment until the 2015 incident.

Worker who was denied benefits and attempted suicide cannot sue – Wisconsin

In Francis G. Graef v. Continental Indemnity Company, a livestock worker was gored by a bull, became depressed, and was prescribed anti-depressants. About three years after the incident, the insurance company denied refilling the prescription. A month later he attempted suicide by shooting himself in the head. Surviving the attempt, he sued the insurance company that argued the exclusive remedy applied. While a circuit court denied summary judgment to the insurer, the appeals court said the issue should stay with the state’s workers’ compensation system. “(T)he exclusive remedy provision allows for an insurer to be held liable for an employee’s new or aggravated injuries, regardless of fault, as long as those new injuries relate back to the original compensable event.”

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