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

OSHA watch (part 2)

Heat illness prevention

new video on heat hazard recognition and prevention is available.

Cal/OSHA issued a news release reminding employers to protect outdoor workers from heat illness.

Construction safety

A virtual stand-down to prevent struck-by incidents in construction is now available to view.

Recent fines and awards

Florida

  • Jax Utilities Management Inc. was cited for exposing employees to cave-in hazards at a Jacksonville worksite. Inspected as part of the National Emphasis Program on Trenching and Excavation, the construction contractor faces $56,405 in penalties.
  • Two contractors, Prestige Estates Property Management LLC of North Miami and Jesus Balbuena of Miami, face $44,146 in penalties for failure to protect employees from fall hazards at a construction worksite in North Miami. The investigation followed an employee’s 20-foot fall from an aerial lift that led to fatal injuries.
  • Flat Glass Distributors Inc. was cited for exposing employees to unguarded machinery, failure to implement and have a written lockout/tagout program, and electrical hazards at the Jacksonville fabrication and distribution facility. Inspected as part of the National Emphasis Program on Amputations, the custom glass shaping and cutting distributor faces $121,446 in penalties.
  • Crown Roofing LLC was cited for exposing employees to fall hazards at a residential worksite in Tamarac. The Sarasota-based contractor faces penalties of $134,937. The inspection was initiated under the Regional Emphasis Program for Falls in Construction after inspectors observed employees working on roofs without fall protection.

For additional information.

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

OSHA watch

Guidance on distancing

Recent guidance focuses on strategies to implement social distancing in the workplace. Spanish version. It urges employers to isolate workers showing symptoms of coronavirus until they can go home or seek medical care, establish flexible worksites and work hours, stagger breaks and rearrange seating in common areas to maintain social distance, mark social distancing with floor tape where customers are present and reposition work stations and install plastic partitions to create more distance. It also issued new procedures to make it easier for federal workers in high-risk industries to obtain workers compensation for COVID-19.

Coronavirus alerts: Industry specific recommended practices

In May, recommended business practices were released for food service, nursing homes and long-term care facilities, dental practitioners, retail pharmacies, and rideshare, taxi and car services. All business guidances released to date can be found here in English and Spanish.

COVID-19 Quick Tips Videos

New animated videos provide quick tips to keep workers safe from COVID-19:

For all the quick tip videos released related to coronavirus, including Spanish versions, go here.

Eight ways to protect meat processing workers from COVID-19

Principal Deputy Assistant Secretary Loren Sweatt outlined eight ways to protect meat processing workers from COVID-19.

Guidance is now available in English and Spanish.

COVID-19 Q & A: Social distancing in meat and poultry facilities

Q. In some areas of meat and poultry processing facilities, social distancing at 6 feet of distance may not be feasible in order to maintain continued operation at the maximum capacity possible. In these areas, are other controls, based on the hierarchy of controls outlined in the CDC/OSHA guidance (e.g., personal protective equipment) acceptable in order to maintain safe operations at the maximum capacity possible?

A. Employers should use the hierarchy of controls to control hazards and protect workers, including by first trying to eliminate hazards from the workplace, then implementing engineering controls followed by administrative controls and safe work practices, and finally, using personal protective equipment (PPE). When engineering controls, such as physical barriers, are not feasible in a particular workplace or for a certain operation, other types of controls, including PPE, may be considered in accordance with the hierarchy.

Poster and video show right way to put on, take off respirator

A poster and video detail seven steps to properly put on and remove a respirator at work.

English version of poster

Spanish version of poster

Guidance and resources from state OSHA programs

California

Indiana

Michigan

Minnesota

North Carolina

Tennessee

Virginia

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

Things you should know

Medical payments per comp claim rise: WCRI

Medical payments per workers compensation claim increased in most states in 2018 after a period of relative stability, according to studies of 18 states by the Workers Compensation Research Institute (WCRI).

Managers’ attitudes toward worker well-being can lead to safe and healthy behaviors: study

Employees who sense their managers are invested in their well-being at work may be more likely to practice safe and healthy behaviors on the job, results of a recent study from the Colorado School of Public Health suggest. The study was published in the February issue of the Journal of Occupational and Environmental Medicine.

Worker suicide: CDC study explores which industries, occupations have the highest rates

Comprehensive suicide prevention strategies that target certain industry and occupational groups are needed particularly in the extraction and construction industries, according to a report from the Centers for Disease Control and Prevention.

Early care can help mitigate mental issues tied to workplace injuries

An article in Business Insurance cites several studies finding that people who were injured at work have an increased risk of both opioid dependence and depression.

Preventing opioid misuse: New guide for employers in rural areas

Aiming to assist rural communities in the fight against opioid misuse, the Office of National Drug Control Policy has partnered with the U.S. Department of Agriculture on a guide for employers.

State News

California

  • COVID-19 resources for businesses can be found here.

Georgia

  • COVID-19 resources for businesses can be found here.

Illinois

  • COVID-19 resources for businesses can be found here.

Indiana

  • COVID-19 resources for businesses can be found here.

Massachusetts

  • COVID-19 resources for businesses can be found here.
  • The Division of Insurance approved an average 6.8% rate cut for policies incepting on or after July 1.

Michigan

  • COVID-19 resources for businesses can be found here.

Minnesota

  • COVID-19 resources for businesses can be found here.
  • According to a WCRI report, medical payments remained fairly stable between 2013 and 2017 before rising in 2018 at a rate of 6.5% for claims with more than seven days of lost time at 12 months’ maturity. Indemnity benefits per claim were approximately $15,500 for 2016 claims evaluated in 2019.

Missouri

  • COVID-19 resources for businesses can be found here.

Nebraska

  • COVID-19 resources for businesses can be found here.

New York

  • COVID-19 resources for businesses can be found here.

North Carolina

  • COVID-19 resources for businesses can be found here.

Pennsylvania

  • The Governor’s office has issued several COVID-19 guidances related to worker safety, manufacturing, building safety, and construction.

Tennessee

  • COVID-19 resources for businesses can be found here.

Virginia

  • COVID-19 resources for businesses can be found here.
  • The average medical payment per claim decreased 13% after the state implemented a workers compensation medical fee schedule in 2018, according to study details released by the WCRI.

Wisconsin

  • COVID-19 resources for businesses can be found here.

 

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

OSHA watch

Recent fines and awards

Florida

  • Cathcart Construction Company-Florida LLC was cited for exposing employees to excavation hazards at worksites in Orlando and Winter Garden. The general contractor faces $303,611 in penalties.
  • Skanska-Granite-Lane, a joint venture operating as SGL Constructors, was cited for exposing employees to safety hazards at the I-4 Ultimate Improvement Project worksite in Orlando. One worker suffered fatal injuries and another was hospitalized. The contractor faces $53,976 in penalties.

Georgia

  • Creative Multicare Inc., a carpet restoration, plumbing, and resurfacing contractor based in Stockbridge, was cited for exposing employees to safety and health hazards after a fatal incident at a worksite in Perry. The company faces $183,127 in penalties for failure to properly manage the handling and labeling of hazardous chemicals.
  • Martin-Pinero CPM LLC, a construction contractor based in Atlanta, was cited for exposing employees to fall hazards after a fatal incident at a highway construction project in Atlanta. The company faces $170,020 in penalties. The inspection was conducted in conjunction with the Regional Emphasis Program on Falls in Construction.

Illinois

  • Three employers, Northwestern University, Hill Mechanical Corp., and National Heat & Power Corp., were cited for exposing workers to permit-required confined space hazards associated with underground steam vaults. Northwestern University was cited for failing to provide required information to contractors and coordinate activities, identify and evaluate high-pressure steam as a hazard, isolate steam energy, perform air monitoring, provide required signage, complete entry permits, evaluate their confined space hazard program and ensure the ability to rescue employees from a confined space. It faces penalties of $105,835. Hill Mechanical Corp. was cited for failing to obtain information from the host employer and coordinate activities, identify and evaluate hazards of the space, isolate steam energy, perform air monitoring, complete entry permits, provide required confined space training and ensure the ability to rescue employees from a confined space. The company faces penalties of $105,835. National Heat & Power Corp., the contractor brought in to complete the repairs, faces penalties of $24,292 for four serious violations involving failing to obtain information from the host employer, adequately isolate steam energy, provide required confined space training, and complete entry permits.

Missouri

  • Skinner Tank Company, based in Yale, Oklahoma, was cited for lack of fall protection after an employee constructing a storage tank suffered fatal injuries in a 50-foot fall at a Missouri agricultural facility. The company faces $415,204 in penalties for two willful and 11 serious safety violations and has been placed in OSHA’s Severe Violator Enforcement Program.

Virginia

  • A $5,000 citation against a naval contractor that trains sea lions to detect trespassers was upheld after the Occupational Safety and Health Review Commission determined that a failure to mitigate drowning hazards led to the death of an employee. The Reston-based Science Applications International Corp was cited under the General Duty Clause.

Wisconsin

  • MODS International Inc., a fabrication company that converts shipping containers into commercial and residential structures, was cited for exposing employees to multiple hazards at their facility in Appleton. The company faces penalties of $216,299 for seven repeat and seven serious safety and health violations. The company is contesting the citations.

For more information.

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

HR Tip: EEOC issues updated Covid-19 Technical Assistance Publication

The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers on testing, medical exams, and essential workers.

Some of the updates include:

  • Employers may screen employees for COVID-19. Any mandatory medical test must be job-related and consistent with business necessity, be on a nondiscriminatory basis, and results need to be retained as confidential medical records according to the ADA’s requirements
  • Employers can keep a log of employees’ temperatures, although they must still maintain their confidentiality
  • All medical information related to COVID-19 may be stored in existing medical files
  • A temporary staffing agency or a contractor that places an employee in an employer’s workplace can notify the employer of the worker’s name if it learns the employee has COVID-19
  • Employers cannot postpone a start date or withdraw a job offer because an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19, however, they can discuss telework or if the workers want to postpone their start date
  • Employers can disclose employee names to a public health agency when it learns workers have COVID-19
  • Employers should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with the disease when choosing health screening questions
  • There may be reasonable accommodations for individuals with disabilities, absent undue hardship to the employer, that could offer protection to an employee who, because of a preexisting disability, is at higher risk from COVID-19
  • If an employee has a pre-existing condition, such as an anxiety disorder, that has been exacerbated by the pandemic, employers can ask questions to determine whether the condition is a disability and discuss accommodations
  • Undue hardship during the pandemic was clarified. In some instances, an accommodation that would not have posed an undue hardship before the pandemic may pose one now. Loss of income, ability to conduct a needs assessment, acquire certain items, and delivery to teleworkers are considerations

 

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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