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 
More appellate court decisions support regular attendance as an essential function of most jobs

In Trautman v. Time Warner Cable Tex., LLC, (5th Cir. Dec. 12, 2018), Vitti v. Macy’s Inc., (2d Cir. Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp., (8th Cir. Dec. 19, 2018), the Fifth Circuit, Second Circuit, and Eighth Circuit each found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment in favor of the employer. While the decisions show that unreliable attendance can render an employee unqualified for his or her job, it’s not a given and rests on the facts of the case- employers need to be vigilant in their documentation and process and consistent in the treatment of all employees.

FMLA 
Employee must turn over social media posts

In Robinson v. MGM Grand Detroit, LLC, the United States District Court for the Eastern District of Michigan found that an employer does have the right to Facebook and other social media accounts when an employee sues for discrimination and violations of the FMLA. The case alleged that an employee of MGM Grand was terminated because of his race and disability and in retaliation for taking FMLA leave. In discovery, the employee refused to provide his social media posts. A federal magistrate ruled that the employee’s Facebook, Google Photo, and Google location accounts were relevant for the case and ordered the employee to turn them over for the time he was out of work.

Workers’ Compensation 
NLRB: independent contractor test overturned

The National Labor Relations Board (NLRB) has returned to a previous standard for evaluating the status of independent contractors versus employees. In the SuperShuttle DFW Inc. case, which involved shuttle-van-driver franchisees of SuperShuttle at the Dallas-Fort Worth Airport, the board concluded that the franchisees are not statutory employees under the National Labor Relations Act, but rather independent contractors excluded from the law’s coverage.

This decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Federal appeals court sends Browning-Ferris joint employer standard back to NLRB

The federal appeals court in the District of Columbia has partially upheld the Obama-era Standard in Browning-Ferris Industries of Cal., Inc. v. NLRB. The court said that it was permissible for the Board to create a standard that considered both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment. However, the Board failed to articulate the scope of what it considers “indirect” control, so the issue was remanded. The impact on the Board’s rulemaking remains to be seen.

Employer not vicariously liable for a fatal car accident caused by an intoxicated employee – California

In an unpublished decision, Pryor v. Fitness International, an appellate court ruled that an employer was not vicariously liable for a fatal car accident caused by an intoxicated employee. When a supervisor determined that a membership counselor was impaired and sent him home early, the counselor’s car struck a bicyclist, who died from his injuries. The widow asserted the company was vicariously liable for the employee’s negligence because he was acting within the scope of his employment when he became intoxicated, and/or when he struck her husband. Further, they were negligent in hiring, retaining and supervising.

The court found that the employee was acting in a purely personal capacity when he became intoxicated and killed the bicyclist. The fact that he was sent home by the supervisor did not implicate the “special errand” rule under workers’ comp. Further, the company had no duty to try to prevent the collision, so it could not be held directly liable for negligence.

Job placement agency can’t be sued by worker who passed drug tests but was not offered job – Florida

In McCullough v. Nesco Res. LLC, the Eleventh Circuit Court of Appeals held that a job applicant who was required to take two drug tests (and passed) but was not offered a position cannot sue the placement agency. The Drug-Free Workplace Program Statute does not provide an aggrieved applicant with a private right of action. The Court said the “penalty” for the employer’s failure to abide by the statute was its loss of the discount in workers’ compensation premiums that it could enjoy with full compliance.

Lawsuit against employer for off-duty worker’s death can proceed – Minnesota

In Henson v. Uptown Drink, the Supreme Court ruled that a lawsuit filed against a bar after the death of an off-duty employee may proceed. The bartender and other employees, including an off-duty employee, forcibly removed two men who had become drunk and belligerent. The off-duty employee fell and hit his head on concrete, causing a traumatic brain injury that led to his death. His family sued, but the district court ruled the suit was barred by the exclusive remedy of workers’ comp.

The Court of Appeals reversed, holding that the evidence was insufficient to establish that the death arose out of and in the course of his employment. The case then proceeded under innkeeper negligence and violation of the Dram Shop Act and went through several appeals. The Supreme Court affirmed the appellate court decision, ruling in part that “a reasonable fact-finder could determine that (the patron’s) intoxication, violent outburst, and subsequent physical resistance, taken together, were the proximate cause of the fall that killed…”

Comp carriers must split death claim in spite of mistaken duplicative coverage – Missouri

In Employers Preferred Ins. Co. v. Hartford Accident and Indem. Co., a husband and wife each procured a workers’ compensation policy for a bakery they owned. An employee died in an automobile accident in the course of his employment and Employers paid the claim, but sought an equitable contribution from Hartford. When a Hartford agent told the husband after the accident that the Hartford policy was active, the husband filed a cancellation request, Hartford retroactively cancelled the policy, and issued the bakery a full refund of the premium and maintained it did not owe any contribution to Employers.

However, the Eighth Circuit found state law barred Hartford from cancelling a policy and eliminating its duty to defend and indemnify, after an insured had become liable for a workers’ compensation claim.

Nebraska resident hired in state but injured in Alaska cannot collect in state – Nebraska

A Washington seafood company recruited, drug tested, and hired prospective employees in Nebraska, but did no actual work in the state, therefore it was not an “employer” for purposes of the Workers’ Compensation Act. In Hassan v. Trident Seafoods & Liberty Mut., an appellate court held that a resident who was hired in Nebraska and later sustained work-related injuries in Alaska, receiving some workers’ compensation benefits from that state, could not maintain a workers’ compensation claim in Nebraska

Worker must sue third party in state that paid benefits – Nebraska

Drivers Management LLC, a Nebraska trucking company, contracted with Eagle KMC LLC, an Arizona company, to train employers. A truck-driver-in-training was injured and collected workers’ comp from Drivers Management. Almost two years later, she filed a personal injury suit against Eagle and other parties. Because Drivers Management had a subrogation claim against any third-party recovery, it was named as a defendant. The suit was filed in Arizona and upon appeal, the court held that Arizona laws do not apply because workers’ compensation benefits were adjudicated and paid in Nebraska, which “governs subrogation, lien, and assignment rights in this action.”

Causal link must be more than a “possibility” – New York

In Bufearon v City of Rochester Bur. of Empl. Relations, a worker was injured in a work-related auto accident and received medical treatment for his left shoulder, left hip, low back,and cervical spine. The self-insured employer accepted liability for all treatment except for the cervical spine.

While a workers’ compensation law judge found that the cervical spine injury was compensable, the Workers’ Compensation Board reversed and the appellate court agreed, noting the Board had the power to determine the causal relationship based on substantial evidence. The court found the medical testimony conflicting, and neither treating physician reviewed the employee’s medical records from his prior cervical spine surgery. Therefore, the Board’s finding the physicians’ opinions regarding causation were mere expressions of possibility and speculation was proper and the injured worker failed to prove that his cervical spine issues were causally related to his accident.

No “grave injury” nixes 3rd party claim for indemnification – New York

In Alulema v. ZEV Electrical Corp., a worker allegedly suffered a brain injury while at work, resulting in disabling cognitive and emotional symptoms and filed a tort claim against a subcontractor. The subcontractor filed a third-party complaint against the employer, seeking indemnity or contribution.

Under state law, if an employee suffers a “grave” injury, the employer may be liable to third parties for indemnification or contribution. To be classified as a grave injury, it must leave the worker unemployable “in any capacity.”

An appellate court overturned the trial court and found no grave injury. Testing did not substantiate his claims of cognitive and emotional symptoms and he was actively looking for employment and had obtained his GED.

Court dismisses worker’s claim against Trump campaign for distress – North Carolina

In Vincent Bordini v. Donald J. Trump for President Inc. and Earl Phillip, an appellate court ruled it had jurisdiction rather than a workers’ compensation court over a suit alleging a Trump 2016 presidential campaign data director pointed his gun at a co-worker causing emotional distress and other damage. The director, who possessed a concealed carry permit, allegedly took out his gun and held it against the worker’s knee with his finger on the trigger while in the car.

While the campaign contended the case should be heard as a workers’ comp claim, the court noted, “The risk of being intentionally assaulted at gunpoint by a coworker is not one which a reasonable person may have contemplated when accepting an information technology job on a presidential campaign.” Therefore, it was not preempted by workers comp law.

Nevertheless, the court found that the campaign could not be held vicariously liable because the director was an independent contractor, not an employee. He was hired through a political consulting firm, had no set work hours, and was not under a regular employment contract.

Disability commences on the work day following the injury – Pennsylvania

While neither the statute nor case law addresses when a disability commences if an injured employee is paid full wages the day of their injury, the Commonwealth Court ruled the disability commences on the work day following the injury. It noted the bureau’s interpretation states that payment is to be made “on the date the claimant is unable to continue work by reason of injury unless he is paid full wages for the day.”

In Stairs v. Workers Compensation Appeal Board, a worker was injured and taken to the hospital by ambulance and did not return to work, but received full pay for the day of the injury. The employer sent a notice of temporary compensation payable, acknowledging the worker had suffered a back injury on Friday, March 27, 2015, and stated that the 90-day period to contest his claim would run from March 30 through June 27, 2015.

Under state statute, if the employer does not file to contest within 90 days its notice of temporary compensation payable will be converted into a notice of accepting liability for the claim. On the 90th day of the disability the company filed to contest the claim, although the Bureau issued a notice of conversion the following day. The worker appealed but the commonwealth court ruled that the employer’s notice was timely filed and the notice of conversion issued by the bureau was void.

Although symptoms abated, bricklayer entitled to ongoing benefits but not penalties from employer – Pennsylvania

In Kurpiewski v. WCAB (Caretti) and Caretti v. WCAB (Kurpiewski), the Commonwealth Court found a bricklayer was entitled to ongoing benefits, although he no longer had symptoms nor did he need treatment for a skin condition arising from his long-term exposure to chromium. His chromium sensitivity prevented him from working as a bricklayer. The worker also sought penalties, based on the employer’s failure to timely accept or deny liability for his claim.

The court found the employer had violated the law by failing to acknowledge or deny the claim within 21 days. Although it filed an answer contesting his claim, it did not issue a separate notice of denial. However, the court noted not every violation requires a penalty and remanded the imposition of a penalty to the judge.

Worker awarded benefits in spite of “close question” on causation – Tennessee

In Butler v. Tennessee Municipal League Risk Management Pool, a laborer worked on installing a water line at the county landfill. Two days later he was diagnosed with invasive pulmonary aspergillosis and has not returned to work.

While he argued it was a result of working in the trench, the pool said he had developed it on his farm. Since aspergillus spores are everywhere, causation is difficult to prove. However, through the testimony of his coworkers, it was established that several workers developed respiratory ailments after installing the water line at the landfill. In addition, four doctors opined that the invasive aspergillosis was caused by a massive exposure to the aspergillus fungus while digging the trench.

In overturning the denial of benefits, the Supreme Court’s Special Workers’ Compensation Appeals Panel noted it was “strangely coincidental” all of the men fell ill with similar symptoms while working at the landfill and given the beneficent purpose of the workers’ compensation system, it found in favor of the worker.

Falling asleep at the wheel nixes benefits – Virginia

In Norris v. ETEC Mechanical Corp., a master electrician fell asleep while driving home from a job site and suffered serious injuries.The court found that the accident occurred in the course of employment, but did not arise out of his employment. The state uses the “actual risk” test to determine whether an injury arose out of employment. While he said he fell asleep because he was tired, he did not relate the drowsiness to his work.

To keep benefits, employee must be bound by release – Virginia

In Giles v. Prince George Cty. Pub. Sch, a worker suffered multiple injuries and filed several claims. Later, with the help of an attorney, she entered into a settlement agreement that included some exceptions to her treatment and prohibited further claims arising from the accident. Shortly after the settlement, she demanded benefits for her right shoulder, which was an exception in the agreement. The commission treated this as a request to review the settlement, but the worker argued she did not want a review, but wanted additional benefits. The Court of Appeals upheld the commission’s denial of benefits, noting she could not keep the benefits of her agreement and at the same time not be bound by her release.

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

Things you should know

2018 WorkComp Benchmark Study released

The sixth annual Workers’ Compensation Benchmarking Study Report by Rising Medical Solutions, Inc. focuses on key issues influencing medical management performance and the most potent strategies to address these issues.

BLS report: Fatal injuries remain over 5,000

The number of fatal work injuries dropped slightly in 2017 to 5,147 down from 5,190 in 2016. Fatal falls were at their highest level in the 26-year history of the BLS’s reporting, accounting for 17.2% of employee deaths, while transportation incidents again account for the most deaths with 2,077, or 40.4%.

In 2017, 15.1% of fatally injured workers were age 65 or over – a series high. The number of deaths among Hispanic or Latino workers rose 2.7% to 903 in 2017.

Report: Injured restaurant workers miss an average of 30 days

AmTrust Financial Services Inc., a provider of workers compensation insurance, took a deep dive into common restaurant injuries, lost time, industry loss ratio trends and how to implement loss control best practices in its report, Restaurant Risk Report. Cafés and coffee shops had the highest lost time, on average 45% more time lost than all other restaurant types. Wrist injuries are the biggest danger for coffee shop workers, with “barista wrist” resulting in an average of 366 days to return to work.

Study: Musculoskeletal injuries to long-haul truck drivers

Nearly half of all musculoskeletal injuries reported by long-haul truck drivers are to their arms, backs or necks – the majority being sprains and strains – according to a recent study conducted by researchers from the University of Alabama at Birmingham. Drivers most often were injured because of a fall (38.9 percent) or contact with an object or equipment (33.7 percent).

Of those injured, 53 percent required time away from work, at a rate of 355.4 incidents per 10,000 full-time workers, which is more than double those of other hazardous professions. The researchers said the study suggests the need for injury prevention and interventions and ways to improve recovery when injuries occur.

Report ranks states by risk of violence from Black Friday

A report ranking states by risk of violence during Black Friday was recently released by Reviews.org. Included in the report are the employers that have the most incidents during Black Friday.

State News

Florida

  • Department of Economic Opportunity announced that the statewide average weekly wage paid to injured workers by employers will be $939 starting Jan. 1.

Minnesota

  • A total of 101 fatal work-injuries were recorded in Minnesota in 2017, an increase from the 92 fatal work-injuries in 2016 and 74 fatal work-injuries in 2015. More information

Missouri

  • The Department of Insurance is recommending a 3.5 percent decrease in workers’ compensation insurance loss costs for 2019, the fifth year in a row rates will decrease.

New York

North Carolina

  • The Workers’ Compensation Research Institute’s (WCRI) Benchmark shows that medical payments per workers’ comp claim decreased significantly since 2013, falling 6 percent each year through 2016.
  • The Industrial Commission has finalized settlement agreement rules, The “Group 2” rules aimed to clean up some inconsistent language and streamline the settlement process, as well as clarify wording relating to attorney’s fees. The rules took effect Jan. 1.
  • The Commission approved Group 1 rule changes, which took effect Dec. 1. Medical motions, responses and appeals on medical motions must be submitted electronically and must include the opposing party’s position on the matter.

Pennsylvania

  • Insurance commissioner approved two loss cost reductions that together will amount to a 14.74% decrease, starting Jan. 1. Loss costs are one of many factors that determine premiums for workers’ comp insurance.
  • Department of Labor and Industry reported that the maximum compensation rate will rise by 2.3%, to $1,049 per week, starting Jan. 1. It’s website offers a chart to determine compensation based on the employee’s average weekly wage.
  • Department of Labor and Industry announced that it has adopted the Red Book, published by Truven Health Analytics, to determine the average wholesale price of prescription drugs.

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

Things you should know

EEOC issues FY 2018 Performance Report

In its performance report, the U.S. Equal Employment Opportunity Commission (EEOC) reported significant increases in its outreach efforts and enforcement actions to prevent and remedy employment discrimination. The EEOC secured approximately $505 million and other relief for over 67,860 victims of discrimination in the workplace. The EEOC’s legal staff resolved 141 merit lawsuits, filed 199 more in FY 2018, and filed 29 amicus curiae briefs on significant legal issues in employment discrimination cases.

Non-fatal injuries and illnesses decline – BLS report

The Bureau of Labor Statistics (BLS) report on workplace injuries and illnesses showed a slight decline from 2016 to 2017. There were 2.8 million nonfatal workplace injuries and illnesses reported by private industry employers in 2017, a rate of 2.8 cases per 100 full-time equivalent workers, compared with 2.9 cases in 2016. In manufacturing, sprains, strains and tears were the leading type of injury with a rate of 27.5 cases per 10,000 FTE workers which was unchanged from 2016. For more details

Recreational and medicinal marijuana – midterm results

  • Michigan became the 10th state to legalize the possession and use of recreational marijuana for adults.
  • Missouri and Utah approved the use of marijuana for medicinal purposes.
  • North Dakota rejected a measure to legalize recreational marijuana.

Crashes up in states with legalized marijuana

Crashes have increased by up to 6% in four states that have legalized marijuana for recreational use compared with neighboring states that have not done so, said the Insurance Institute for Highway Safety and the Highway Loss Data Institutes. Data from Colorado, Nevada, Oregon and Washington, which have legalized marijuana, was compared with the control states of Idaho, Montana, Utah and Wyoming. The combined state analysis is based on collision loss data from January 2012 through October 2017.

Bad commutes have driven more than 20 percent of office workers to quit a job, survey shows

Nearly one in five U.S. office workers say they’ve quit a job because their commute was too much, according to the results of a recent survey conducted by global staffing firm Robert Half.

In a survey of more than 2,800 office workers from 28 cities, 23 percent cited a bad commute as a reason for quitting a job. The cities with the most workers resigning for commute-related reasons were Chicago, Miami, New York and San Francisco.

Managing fatigue risk in the tugboat, towboat and barge industry: New guide available

The American Waterways Operators has released a guide on various principles of fatigue risk management.

State News

California

  • Workers’ Compensation Insurance Rating Bureau (WCIRB) released their Workers’ Compensation Aggregate Medical Payment Trends report, which compares medical payment information from 2015 to 2017. There was a cumulative 8% reduction in medical payments per claim from 2015 to 2017. More information
  • Average losses on newer indemnity claims are starting to tick up even as costs for older claims continue to level out or decline, the Workers’ Compensation Institute (CWCI) reports.

Florida

  • The Insurance Commissioner has issued a final order for a 13.8% workers’ compensation rate decrease for 2019, which applies to both new and renewing workers comp policies effective in the state as of Jan. 1. The reduction is slightly larger than that submitted by NCCI (13.4%).

Illinois

  • Legislature overturned the Governor’s veto of the workers’ compensation law to allow medical providers to sue insurers over interest stemming from unpaid bills, among other changes to the way medical claims are managed between doctors and payers. Attached to the new law is an amendment that specifies the medical treatment must be approved under workers’ compensation – and oftentimes by the commission – before interest can be accrued and then collected via the circuit court.

Massachusetts

  • Falls to a lower level were the leading cause of fatal worker injuries from 2014 to 2015, representing nearly 17 percent of the workplace fatalities, according to a report released Oct. 16 by the Department of Public Health.

Minnesota

  • The workplace injury rate fell to the lowest level ever recorded in 2017, to 3.3 nonfatal injuries per 100 full-time workers, reports the Department of Labor & Industry.

North Carolina

  • The nonfatal workplace injury and illness rates reached an all-time low in 2017, according to a new report from the state Department of Labor.

Tennessee

  • The Department of Commerce and Insurance Commissioner approved a 19% reduction in workers’ compensation rates, consistent with NCCI’s recommendation. The reduction will become effective on March 1.

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

OSHA watch

Final rule on crane operator certifications issued

As anticipated, the final rule clarifying certification requirements for crane operators, requires certification by type of crane or type of crane and lifting capacity. “Certification/licensing” must be accomplished via an accredited testing service, an independently audited employer program, military training, or compliance with qualifying state or local licensing requirements. Employers also are required to “train operators as needed to perform assigned crane activities” and provide training when it is necessary to operate new equipment.

Most requirements in the final rule became effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on Feb. 7, 2019. Employers who have evaluated operators prior to Dec. 9, 2018 will not have to conduct those evaluations again, but have to document when those evaluations were completed.

New publication on lockout/tagout and temporary workers

A new bulletin on lockout/tagout explains the joint responsibility of host employers and staffing agencies to ensure that temporary employees are properly protected against the sudden release of stored energy. Prior to beginning work, both employers should review the task assignments and job hazards to identify, eliminate, and control the release of hazardous energy before workers perform service or maintenance on machinery.

Regional Emphasis Program (REP) in Pacific Northwest for fall protection in construction

Enforcement of the REP, which includes Alaska, Idaho, Oregon and Washington, will begin after a period of outreach and education. Enforcement activities will include “onsite inspections and evaluations of construction operations, working conditions, recordkeeping, and safety and health programs to ensure compliance.”

Cal/OSHA emergency regulations approved for electronic submission form 300A by December 31, 2018

The Office of Administrative Law approved the emergency regulations that businesses required to submit the Cal/OSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

Enforcement notes

California

  • Oakland-based general contractor, Bay Construction, Inc., was cited for dismantling a trench box while an employee was still working inside and later killed by a loosened support rail. The company was issued nine citations with $141,075 in proposed penalties, including five classified as general, two serious, one serious accident-related and one willful-serious accident-related.
  • Amazon Landscaping Co. faces six citations and $54,750 in penalties after a worker was fatally injured when a rope he had around his body became entangled in the stump grinder and he was pulled into the cutting wheel.
  • After a series of appeals relating to citations issued to Pinnacle Telecommunications Inc. after an employee suffered serious head injuries from a 7-foot fall from a telecommunications structure, the Alameda County Superior Court affirmed that fall-protection safety orders apply to elevated indoor telecommunications structures and the penalty of $25,560.

Florida

  • PGT Industries Inc., operating as CGI Windows and Doors Inc. in Hialeah, was cited for machine guarding hazards after an employee suffered a partial finger amputation while working on an unguarded punch press. The window and door manufacturer faces $398,545 in penalties, including the maximum amount allowed by law for the violations that can cause life-altering injury.
  • Inspected under the REP on falls, Crown Roofing, LLC, was cited for exposing employees to fall hazards, including installing roofing materials without the use of a fall protection system. The roofing contractor was issued the maximum allowable penalty of $129,336.
  • Inspected under the REP on falls, Panama City Framing LLC was cited for exposing employees to fall hazards at a worksite in Panama City. The company faces $113,816 in proposed penalties.
  • Tom Krips Construction Inc. and Etherna Services Inc. were cited after a lattice boom section of a crane fell onto an employee during disassembly, crushing his foot and ankle at a Fort Lauderdale worksite. Tom Krips Construction Inc. faces $29,877 in penalties, and Etherna Services Inc. penalties total $5,174.

Georgia

  • Dollar Tree Distribution Center, Inc., and U.S. Xpress, Inc., were cited for exposing workers to hazards after an employee was fatally struck by a forklift and face penalties of $130,112 and $12,934 respectively. Both companies were cited for failing to ensure that employees wore high-visibility vests while working at night inside the center and Dollar Tree Distribution Center Inc. was also cited for using a vehicle with a non-functioning headlight, failing to guard a nip point on a conveyor discharge belt, and storing unstable materials on racks.

Massachusetts

  • Northeast Framing Inc., based in Lunenberg, was cited for exposing workers to falls and other hazards following an employee’s fatal fall at an East Boston worksite. The company faces $311,330 in penalties, the maximum allowed by law.

Nebraska

  • Rivera Agri Inc., a provider of temporary agricultural labor, was cited for failing to protect employees working in excessive heat after a farmworker succumbed to apparent heat-related symptoms while working in a cornfield near Grand Island. The company was cited for a serious violation of the General Duty Clause, and faces proposed penalties totaling $11,641.

For more information.

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

Seven emerging risks and trends to watch

Often employers don’t give emerging trends the same importance as existing practices. Here are seven emerging trends to put on your radar screen:

  1. Temporary workersWhether it’s to meet peaks in demand, a screening process for temp-to-permanent employee, or to tap a unique skill or talent, temporary workers are a vital part of today’s workforce. They also present unique risks for employers. Temp workers are less likely to return to work following an injury and are almost three times as likely to suffer non-fatal occupational injuries than direct hire employees according to a study by University of Illinois at Chicago’s School of Public Health.

    Further, classification of workers as employees or independent contractors remains a thorny legal issue. Insurers are also scrutinizing classification of workers particularly in franchises, the gig economy, and trucking industry. Despite the administration change, OSHA remains committed to overseeing and enforcing temporary workers rights.

    Keeping temporary workers safe and understanding agency/employer responsibilities is a constant challenge. While there is a tendency to be laxer with temporary workers, they need to be vetted and trained as if they would be there permanently. Expectations need to be clearly communicated. Some employers have found “buddy systems” and visual identification effective.

  2. Medical and recreational marijuanaConflicting laws, inconsistent legal rulings, zero tolerance drug policies, differing opinions about the use of marijuana as a viable alternative to relieve chronic pain, and reimbursement issues make marijuana a hot-button headache for employers. Court decisions about reimbursement for medical marijuana have been all over the place. A handful of states have found, and continue to find, that it is reimbursable (CT, MN, NJ, NM, and NY).

    While many courts have ruled that employers with drug-free workplace policies can terminate an employee who tests positive for marijuana, Massachusetts companies cannot fire employees who have a prescription for medical marijuana simply because they use the drug, but must attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ.

    With a tight labor market, companies lament that too many applicants test positive for marijuana during pre-employment screening, causing some to relax the practice. Others grappling with marijuana look at job functions and do not hire someone in a safety-sensitive position if they have a medical marijuana card or prohibit certified users from performing certain safety-sensitive jobs while “under the influence” of medical marijuana. Post-accident drug testing is also challenging for employers as is modified duty for injured workers treating with medical marijuana.

    A new year is a good time to review your written drug policies, clearly communication expectations and company rules to all employees, and be sure supervisors know how to recognize signs of impairment. Employers are responsible for providing their employees a safe working environment and this is one of the more vexing areas. Don’t go it alone; consult with legal counsel and insurance carriers that can help navigate the complexity.

  3. Mental health and PTSDThe debate about mental health coverage under workers’ comp is not new, but continues to gain traction with rising incidents of workplace violence, PTSD, efforts to reduce the stigma associated with mental health, and general concern of stress in the workplace. Workers’ Comp compensability for mental-mental and mental-physical injuries, either by statute, regulation, and/or case law vary widely by state and many states are reexamining their statutes, particularly for first responders.

    Moreover, the effect of depression, anxiety, and other mental health issues on delayed return to work, increased claims costs, and workplace violence are being addressed in return to work efforts and employee assistance programs. Increasingly, mental health is also being incorporated into health and wellness programs.

  4. Ergonomics and wearablesA recent survey by Marsh Risk Consulting (MRC) found that companies are not doing enough to tackle emerging risks, including ergonomics and wearables. Ergonomics typically is one of the top three causes of workplace injuries, but advances in technology offer opportunities to manage and mitigate the risks. Wearables can measure body stresses and provide data, alerts and real-time monitoring to modify behavior and enable managers or other senior workers to make corrections before an injury occurs. They can also provide data for potential engineering and productivity improvements.

    While wearables are here to stay, they need to be integrated strategically. Some things to consider are how they complement existing safety efforts and culture, the cost-benefits, and the risks. Data privacy risks, ethical considerations, and liability exposures for employers all need to be considered when implementing programs using wearables. As with the introduction of any new technologies, employee acceptance is key.

  5. Robotic and human interactionAnother emerging risk needing more attention identified in the MRC survey is the rapid growth in collaborative and mobile autonomous robots that is increasing the threat of injury from human and robot interaction. Whereas robots used to work in isolation, technology has evolved so that many now work alongside humans. A common myth is that the collaborative robot is safe out of the box, yet the manufacturer does not control how it is programmed or used. Every collaborative robot system is unique and the risks must be assessed.

    In addition, employees may resist the introduction of such systems, particularly when they fear losing their job. Smart employers prepare employees for the future of work by systematically and intentionally reskilling and upskilling them.

  6. Alternatives for pain management and the opioid prescription drug crisis2018 was an active year for state legislation regarding prescription drugs in workers’ compensation and more is expected in 2019 to stem the opioid crisis. The industry has seen positive results and continues to seek new ways to address the problem.

    A Hartford survey on opioids in the workplace had troubling results. Over three-quarter of workers don’t feel trained to help colleagues navigate addiction, 64% of human resource professionals say they are unprepared to handle opioid addiction, and only 34% of workers feel the company has the resources to deal with the problem.

    Employers need to step up by educating employees about the risks of the misuse of opioids, identifying those at risk of misuse and getting appropriate help, assessing current workplace drug policies and scope of drug testing, and strengthening employee assistance programs. In addition, working to expand coverage of alternatives for pain management that offer a more holistic approach, such as cognitive behavioral therapy (CBT), mindfulness, physical and occupational therapy, relaxation training, and exercise will help employees gain confidence in their ability to manage their pain.

    Some employers use telemedicine to keep employees engaged with virtual face-to-face meetings between patients and psychologists. Medical marijuana may hold promise for the future, but science is too limited and it remains classified as a Schedule I drug under federal law. It behooves employers to stay abreast of new developments.

  7. Natural disastersThe country has seen its share of devastation this year and the recent dire report on climate change from the US Global Change Research Program suggests it will continue on an increasing scale. For those affected, the implications for workers’ comp are huge – expediting benefit payments and medical care to injured workers directly affected, workplace injuries during disaster recovery, and disruption of business operations. The National Council on Compensation Insurance (NCCI) states that when a natural disaster creates a temporary interruption of normal business activities, this can validate a change in an insured’s operations, and can prompt carriers to consider a change in governing classifications if the employer continues to pay its employees while they are unable to work.

    Businesses should always expect the unexpected. Staying ahead of risks during disasters requires an assessment of the unique risks that can potentially arise in your location and developing a comprehensive plan that addresses employees, infrastructure, and business continuity.

Employers that move beyond the familiar traditional issues and anticipate and address emerging risks become industry leaders.

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

 

The possibilities of telemedicine in workers’ comp

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

There are several advantages:

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

Yet, there are a number of barriers:

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

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

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