Legal Corner

ADA
Lawsuit over lifting restrictions reinstated

In Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C, the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court and reinstated a lawsuit filed by a dialysis technical specialist.The court found that the former employee’s and another technician’s statement that the most he lifted on a regular basis was about 40 pounds, conflicted with his former employer’s assertion that lifting 75 to 100 pounds is an essential job function.

The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.” Alternatively, said the ruling, “if the lifting requirement was an essential function, he may have been entitled to an accommodation that the employer waive the formal lifting condition.”

Supermarket chain pays over $800,000 to resolve ADA charges

A Salt Lake City-based supermarket chain, Associated Fresh Market, will pay $832,500 to settle an EEOC charge that it denied reasonable accommodations to disabled individuals. It also has agreed to change its ADA policies and procedures and conduct training for its human resources team, store directors, assistant store directors and employees.

FMLA and ADA
When job functions can be fulfilled, part-time work is a reasonable accommodation

The 6th U.S. Circuit Court of Appeals in Cincinnati in Heidi Hostetler v. The College of Wooster, overturned a lower court ruling and reinstated disability discrimination charges filed by a college worker terminated because her post-pregnancy disability required her to work only part time. Noting that there were genuine disputes that full time work was an essential function of the job, the court stated although it may have been more efficient and easier for the college if the employee worked full-time, but could fulfill her job duties on a part-time basis, “those are not the concerns of the ADA”.

Workers’ Comp
Exclusive remedy bars suing company for asbestos exposure – California

In Allen Rudolph et al.,vs. Rudolph and Sletten, Inc., the 1st District Court of Appeals ruled that a person who was sickened by asbestos could not sue the company allegedly responsible for his exposure, even though the Supreme Court has ruled that employers have a duty to protect workers’ families from exposure through contact with fibers that come home on the employees’ skin, hair and clothing. The worker was exposed to asbestos as a child at home as well as a worker at the father’s construction company.

Tort claims by employees for injuries that are collateral to, or derivative of, a compensable workplace injury are barred by the exclusive remedy. A substantial contributing cause of his illness was his job exposure to asbestos and the exposure at home did not create a separate injury outside workers’ compensation coverage.

Out-of-state football player could not pursue a cumulative trauma claim – California

In Larry C. Tripplett v. Workers’ Compensation Appeals Board, Indianapolis Colts et. Al, the 4th District Court of Appeal ordered publication of its ruling finding that an out-of-state football player, who was a resident of the state, could not pursue a cumulative trauma workers’compensation claim in the state because there’s no proof he signed his National Football League contract there and he only played two games there.

At issue is jurisdiction, according to the court record. Since he was not “hired” (there was no evidence the contract was executed in the state) and the cumulative injury occurred at his retirement, rather than during any particular game, he was not entitled to workers’ compensation benefits.

Court finds financial need for advance to pay for litigation costs should be considered – Florida

In Anderson v. Broward County Sheriff’s Office, the 1st District Court of Appeal overturned a judge of compensation claims and ruled a worker’s financial need for an advance payment should be considered even when the purpose is to pay for expenses related to establishing compensability. An injured worker who had returned to full duty after nine months on light duty was seeking an advance to pay for an independent medical exam in support of a pending claim for continued medical treatment.

The court saw “no reason why the claimant’s financial need (or lack thereof) should not be considered when the purpose of an advance is to pay for litigation costs rather than other expenses such as rent or utility bills.”

Jimmy John’s not a joint employer – Illinois

The U.S. District Court in Chicago granted sandwich shop franchiser Jimmy John’s L.L.C, summary judgment in Re: Jimmy John’s Overtime Litigation. The court noted, “Jimmy John’s has established that it does not: (1) have the power to hire or fire franchise employees; (2) supervise and/or control employee work schedules or conditions of payments; (3) determine the rate and method of payment or (4) maintain employment records for franchise employees.”

Misclassification statute does not apply when employee sues employer – Michigan

In McQueer v. Perfect Fence Co., a laborer who worked intermittently for a fence company and had been directed to stop using a Bobcat as a hammer, but did not stop a fellow worker from doing so, was injured. He claimed the employer told him not to report his injuries as work-related because he was “not on the books” and there were no workers’ compensation benefits. However, he did receive benefits.

The Supreme Court reversed a finding of the state’s Court of Appeals noting a provision that prohibits the misclassification of certain employees in order to avoid workers’ compensation liability, did not apply to an injured employee who sued his employer, alleging an intentional tort. The statute provides a civil remedy to an employee of a contractor engaged by a principal, which was not the case here, thus the employee misclassification provision did not apply to him.

Squabbling employers must pay attorney fees – Minnesota

In Hufnagel v. Deer River Health Care Center, a nursing assistant aggravated an earlier back injury. A few years after she returned to work from the first injury, the company was sold and the workers’ comp insurer changed. When she experienced back pain, the new company denied liability, noting the need for medical treatment was a continuation of the prior work injury, which is under a different insurer. After nearly two years of legal proceedings that included six medical examinations, a Workers’ Compensation Court of Appeals judge overturned a lower ruling and ruled that the current employer was liable for the aggravated injuries.

In upholding the decision, the Supreme Court noted, “the efforts by each employer to shift responsibility to the other employer greatly increased the burden on counsel to provide effective representation… We therefore hold that (Ms.) Hufnagel was entitled to receive reasonable attorney fees.”

Auto insurer must pay work-related chiropractic treatment – Minnesota

In Jennifer Rodriguez v. State Farm Mutual Automobile Insurance Co., the Court of Appeals ruled that State Farm Mutual Automobile Insurance Co had to pay for an insured’s chiropractic treatment after the workers’ compensation insurance carrier stopped paying because they exceeded the 12 weeks specified under the work comp treatment guidelines. The employee was a bus driver who was injured when a person driving a stolen vehicle crashed into her bus. According to the court, it is up to the no-fault automobile insurer to seek payment from the workers compensation insurer, if applicable, and the court did not express an opinion whether treatment was considered excessive under workers’ comp regulations.

Overtime must be included in calculation of AWW – Mississippi

In Nixon v. Howard Industries, an assembler injured his back and the company stipulated that his average weekly wage was $645.40, which included overtime. A vocational rehab counselor determined that he could still work, but at a much-reduced wage. An administrative judge found that the injury had caused a loss of wage-earning capacity, but based the pre-injury weekly wage by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. After several appeals, the Court of Appeals noted the average weekly wage is to be calculated by taking the actual earnings over a period of 52 weeks and dividing the sum by 52. Permanent partial disability is determined by two-thirds of the difference of the average weekly wage before the injury and earning capacity post-injury.

Knee injury aggravated at home compensable – Mississippi

In Prairie Farms Dairy v. Graham, an employee injured his knee while making a delivery of milk and underwent surgery, but continued to have problems with his knee. A little less than a year later, he fell at home because his knee gave way and he experienced back pain. Several years earlier he had had back pain and the nurse case manager told him an appointment with the physician would not be allowed because it was a pre-existing condition. He saw his personal health physician, but filed a petition demanding benefits for his knee injury and a subsequent injury to his back.

The company contested the compensability of the back condition, but the Workers’ Compensation Commission and the Court of Appeals approved it. The court noted that industrial loss is not synonymous with functional loss and means that a loss of wage-earning capacity has occurred. There was no dispute that the employee was not able to return to his position and that his earning capacity had greatly decreased. Further, the court said “every natural consequence” that flowed from the knee injury was compensable under law.

Legislative change to lump settlements process applies to pending cases – Nebraska

In Dragon v. Cheesecake Factory., the Supreme Court ruled that a legislative change to the process for finalizing lump-sum settlements applies to cases that were still pending when the statutory amendments took effect. The legislative change provides that a verified release becomes effective once payment is made and the Workers’ Compensation Court enters an order of dismissal with prejudice. According to the court, this was a procedural, not substantive, change and, therefore, applicable to pending cases.

The court also ruled that the existence of a legitimate question over the enforceability of liens against the settlement does not excuse an employer from making timely payment of the settlement amount.

Worker cannot raise “increased risk” argument on appeal – Nebraska

In Maroulakos v. Wal-Mart Associate, a worker who complained of not feeling well, fell and had a seizure. He sustained a facial laceration, sinus fractures and possibly a traumatic brain injury causing neurocognitive impairment. While he argued he tripped over a pallet, video surveillance and witness accounts did not support this. A compensation court judge determined that the fall resulted from an idiopathic seizure and syncope event that was personal to him and not compensable under workers’ comp and the appeal was heard by the Supreme Court.

The Court noted that the injured employee had not raised the issue of falling into a shelfing unit nor the ‘increased danger rule’, which recognizes that when an employment hazard causes or increases the severity of an injury sustained from an idiopathic accident, the injury becomes compensable. Since he had not raised this at trial, he could not raise on appeal.

Claim of injury isn’t sufficient for benefit award – New York

In Matter of Elias-Gomez v. Balsam View Dairy Farm, a farmhand claimed that he injured his right shoulder on a specific date, approximately one year earlier, while assisting in a “particularly difficult” birth of a calf. However, the farm representative testified that no calves were born on that date and there was no report of injury.

State comp law provides that, absent substantial evidence to the contrary, there is a presumption that an accident that occurs in the course of employment also arises out of such employment. However, this cannot be used to establish that an accident occurred nor relieve the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment.

Benefits can be terminated even though worker still experiences pain – Pennsylvania

In Hernandez v. WCAB (F&P Holding Co.), the Commonwealth Court ruled that an employer could terminate benefits to an injured worker, although a judge accepted the employee’s testimony about lingering pain. A worker who was on light duty, injured his back and received workers’ compensation. However, when his doctor imposed further restrictions, the company could not accommodate and fired him.

When the employee filed a petition seeking compensation for the decrease in earning power, the company argued that the new restrictions were not related to the injury and filed a petition to terminate its payment of benefits, arguing the worker had fully recovered. A workers’ comp judge and the Commonwealth Court agreed. While the judge accepted the employee’s testimony of his continued pain, the court noted, a worker could forever preclude the termination of benefits by merely complaining of continuing pain.

Pennsylvania case law shows an employer can terminate benefits, even if a worker credibly testifies about the existence of ongoing pain, so long as the employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the worker is fully recovered, can return to work without restrictions and that there are no objective medical findings that either substantiate the claims of pain or connect them to the work injury.

Hearing loss compensable despite long filing delay – Tennessee

In Westby v. Goodyear Tire & Rubber Co., the Supreme Court’s Special Workers’ Compensation Appeals Panel upheld an award of benefits to a worker for his hearing loss, even though he did not file his claim until years after he told his doctor he was aware he was losing his hearing. For much of his career with Goodyear, the worker was not required to wear hearing protection, but the company made it mandatory in the last few years of his employment. He told a doctor in 2002 that he knew he had hearing loss and that he had known for at least 10 to 15 years, but he did not file a comp claim until 2012.

The company contested his claim, contending he had failed to give timely notice of injury; however, the court noted case law has established that the statute of limitations for filing a workers’ compensation claim involving gradually occurring injuries does not begin to run until the date the employee is unable to work due to his injury. This is known as the “last-day-worked rule”. It also noted that the worker’s hearing tests demonstrated a continued loss of hearing and the test results were the actual notice of injury.

Hearing loss work related – Wisconsin

In Harley-Davidson Motor Co. Group L.L.C. v. the Labor and Industry Review Commission, an appeals court upheld a labor review commission’s ruling that a former employee of Harley-Davidson Motor Co. Group L.L.C. and Transportation Insurance Co. suffered an 84.67% hearing loss as a result of his employment. In this case, the medical opinions of the company-designated physician disagreed with that of the treating physician. An independent medical exam determined work-related hearing loss, but his calculation method was contrary to the state’s administrative code, which requires the calculation to be based on pure tone testing. Although the independent medical examiner found the pure tone test unreliable, the review commission and circuit court found them reliable and awarded an 84.67% binaural hearing loss.

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

Things you should know

Workplace deaths rise and workplace violence is now the second-leading cause

According to Bureau of Labor Statistics data cited in the AFL-CIO’s 2018 edition of Death on the Job: The Toll of Neglect, 5,190 workers were killed on the job in 2016, an increase from the 4,836 deaths the previous year, while the job fatality rate rose to 3.6 from 3.4 per 100,000 workers. Workplace violence is now the second-leading cause of workplace death, rising to 866 worker deaths from 703, and was responsible for more than 27,000 lost-time injuries, according to data featured in the report.

35% of workers’ compensation bills audited contained billing errors

Out of hundreds of thousands of audited workers’ compensation bills, about 35% contained some type of billing error, according to a quarterly trends report from Mitchell International.

The top cause was inappropriate coding, which produced 24% of the mistakes and unbundling of multiple procedures that should have been covered by one comprehensive code accounted for 19% of billing mistakes.

Only 13 states adequately responding to opioid crisis – National Safety Council

The National Safety Council (NSC) released research that shows just 13 states and Washington, D.C., have programs and actions in place to adequately respond to the opioid crisis going on across the country. The states receiving the highest marks of “improving” from the Council are Arizona, Connecticut, Delaware, Washington, D.C., Georgia, Michigan, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Rhode Island, Virginia and West Virginia. Eight states received a “failing” assessment including Arkansas, Iowa, Kansas, Missouri, Montana, North Dakota, Oregon and Wyoming.

NIOSH answers FAQs on respirator user seal checks

Seal checks should be conducted every time respiratory protection is used on the job, and employers and workers should ensure the equipment is worn properly so an adequate seal is achieved, NIOSH states in a recently published list of frequently asked questions.

NIOSH publishes fact sheet on fatigued driving in oil and gas industry

According to a new NIOSH fact sheet, fatigue caused by a combination of long work hours and lengthy commutes contributes to motor vehicle crashes, the leading cause of death in the oil and gas industry.

New tool allows employers to calculate cost of motor vehicle crashes

Motor vehicle crashes cost U.S. employers up to $47.4 billion annually in direct expenses, according to the Network of Employers for Traffic Safety, which has developed a calculator to help organizations determine their own costs.

It has separate calculators for tabulating on- and off-the-job crashes, as well as one for determining return on investment for employee driving safety programs.

Watchdog group releases list of Dirty Dozen employers

The National Council for Occupational Safety and Health (National COSH) announced their list of the most dangerous employers, called “The Dirty Dozen.” Among those listed: Seattle-based Amazon.com Inc., Mooresville, North Carolina-based Lowes Cos. and Glendale, California-based Dine Brands Global Inc., which owns Applebee’s and International House of Pancakes locations.

CMS finalizes policy changes for Medicare Part D Drug Benefits in 2019 with focus on managing opioid abuse

The policy change addresses the Implementation of the Comprehensive Addiction and Recovery Act of 2016 (CARA), which requires CMS’ regulations to establish a framework that allows Part D Medicare prescription plans to implement drug management programs. Part D plans can limit access to coverage for frequently abused drugs, beginning with the 2019 plan year and CMS will designate opioids and benzodiazepines as frequently abused drugs.

Stakeholders hope that CMS will apply similar thinking to Workers’ Compensation Medicare Set-Aside (WCMSA) approvals in which the beneficiary is treating with high-dosage opioids.

Study: workers exposed to loud noise more likely to have high blood pressure and high cholesterol

A study from the Centers for Disease Control (CDC) was published in this month’s American Journal of Industrial Medicine that indicates workers who are exposed to loud noises at work are more likely to have high blood pressure and high cholesterol.

IRS FAQs on tax credit for paid leave under FMLA

The IRS has issued FAQs, which provide guidance on the new tax credit, available under section 45S of the Internal Revenue Code, for paid leave an employee takes pursuant to the FMLA.

US Supreme Court rules car dealership service advisers exempt from being paid overtime under the Fair Labor Standards Act

The FLSA exempts salesmen from its overtime-pay requirement and “A service adviser is obviously a ‘salesman,'” said the majority opinion in the 5-4 decision in Encino Motorcars L.L.C. v. Navarro et al. This reversed a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that held the advisers were not exempt from being paid overtime.

Legal experts note that this expands the FLSA’s interpretation more broadly and could have implications for other businesses.

State News

California

  • The Workers Compensation Insurance Rating Bureau (WCIRB) quarterly report for year-end 2017 projects an ultimate accident year combined loss and expense ratio of 92%, which is 5 points higher than that for 2016 as premium levels have lowered while average claim severities increased moderately. More findings.
  • Cal/OSHA reminds employers to protect outdoor workers from heat. The most frequent heat-related violation cited during enforcement inspections is failure to have an effective written heat illness prevention plan specific to the worksite. Additional information about heat illness prevention, including details on upcoming training sessions throughout the state are posted on Cal/OSHA’s Heat Illness Prevention page.
  • The Department of Justice certified that the state’s prescription drug monitoring program is ready for statewide use. Doctors will have to start consulting the program before prescribing controlled substances starting Oct. 2.
  • According to a recent report by the Workers’ Compensation Research Institute (WCRI), the state ranked fourth-highest in terms of average claim costs among 18 states examined and a major contributing factor is the relatively high percentage of claims with more than seven days of lost time.

Florida

  • A new law, HB 21, takes effect July 1 and puts a three-day limit on most prescriptions for acute pain and toughens the drug control monitoring program. The bill also provides for additional treatment opportunities, recovery support services, outreach programs and resources to help law enforcement and first responders to stay safe.

Georgia

  • The State Board of Workers’ Compensation’s latest fee schedule update, which became effective April 1, includes the first-ever dental fee schedule and reimbursement rates for air ambulance services as well as other amendments.

Illinois

  • According to a recent report by WCRI, the average claim cost of $16,625 was the highest among 18 states examined and the percentage of claims with more than seven days of lost time ranked third.

Massachusetts

  • Deaths on the job reached an 11-year high in 2017, an increase attributable to the state’s many construction projects, as well as an increased prevalence of opioid addiction, according to a newly released report.

Michigan

  • Work-related injuries requiring hospitalization increased for the third straight year recent data from Michigan State University shows.

Minnesota

  • The Department of Labor plans to adopt what it calls “cost neutral” changes to workers’ compensation vocational rehabilitation fees and other rules without a public hearing, unless one is requested by at least 25 people, in keeping with state law. Comments can be made until May 31.
  • Paid claims and premiums have dropped significantly in the last 20 years (54 percent relative to the number of full-time-equivalent (FTE) employees from 1996 to 2016), while benefits have risen slightly, according to the Minnesota Workers’ Compensation System Report for 2016.

North Carolina

  • The Supreme Court denied review of an appeal by medical providers who argued that the Industrial Commission violated the state’s Administrative Procedure Act when it adopted an ambulatory surgery fee schedule. The fee schedule that became effective on April 1, 2015, remains in effect.

Tennessee

  • According to a recent report by WCRI, the average total cost per workers’ compensation claim decreased by 6% in 2015, driven by a 24% reduction in permanent partial disability and lump-sum benefit payments.

Wisconsin

  • In an effort to combat the misclassification of workers, the state has netted $1.4 million in unpaid unemployment insurance taxes, interest and associated penalties, according to the state Department of Workforce Development.
  • According to a recent report by WCRI, medical costs in workers’ comp increased five percent per year rising in 2014 with experience through 2017.

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

What to expect in 2018

In today’s fast-moving business environment and volatile political atmosphere, nothing stays the same for very long, including Workers’ Compensation. Here are 18 ongoing trends and emerging issues to watch in 2018.

  1. Comp rates continue downward trend It’s good news for employers that comp rates are decreasing in most states as claims frequency declines and workplace safety continues to improve. This, coupled with relatively modest increases in medical costs and stable indemnity cost, means a reduction in loss costs and rates. Safety programs at the workplace, automation that has made hazardous jobs safer, a shift from more hazardous jobs to service jobs, and access to better medical care have all contributed to this favorable trend.There are a few areas that are more challenging, including the trucking and hospitality industries. Geographically, rates in California remain among the highest in the country and in Florida there still is concern about rising claims and legal costs, but rates are falling in both states in 2018. Rates in Pennsylvania are expected to increase 6-7% this year due to a Pennsylvania’s State Supreme Court 2017 ruling on injured employees on workers’ compensation over 2 years that will have a significant impact on rates in 2018 and moving forward unless legislation is addressed.  Moreover, workplace fatalities rose to the highest level since 2008.

    Takeaway: This is no time to become complacent. Hourly wages have been slowly trending up, along with employment. Claims have become more complex with comorbidities, aging, chronic pain, improved medical processes, and so on. The long tail nature of claims means that premiums collected today must cover losses for years to come. Insurance companies are using big data and more sophisticated predictive pricing models. Employers that collect and analyze data to improve cost controls, embrace innovative and progressive management of their Workers’ Comp program, and highlight them in underwriting submissions will reap the benefits.

  2. OSHA becomes more employer-friendly Under the Trump administration, there is a significant shift from the enforcement philosophy of the Obama administration to one of enforcement and compliance assistance.Combustible dust, vehicle backing hazards, hearing protection in construction, and updates to chemical PELs were removed from the regulatory agenda and workplace violence, process safety management, infectious diseases in healthcare, and emergency response and preparedness were moved to “long-term actions.” Enforcement of the silica standard on general industry and the maritime industry is scheduled to begin on June 23, 2018, but the Trump administration may seek a delay, depending on its experience with enforcement of the standard on the construction industry.

    Expect more emphasis on Voluntary Protection Programs (VPP), possible changes to “repeat” violation policies and National Emphasis Programs, much less public shaming, more limited use of the general duty clause, and changes to the e-recordkeeping and anti-retaliation rule.

    Takeaway: In spite of these shifts, employers should not assume they are guaranteed employer-friendly outcomes when dealing with OSHA, nor plan on specific regulatory changes, which will take time. While there may be closer adherence to the standards, the increased enforcement fines remain in effect, with some significant fines levied in 2017.

  3. New technologies will continue to emerge The ability to strengthen safety, provide health information, improve working conditions, and boost productivity with the adoption of new technologies (drones, wearables, the IoT, laser scanning, apps, emerging robotic technologies, and autonomous safety systems) will continue to grow. A virtual approach to ergonomics is emerging as a more efficient way to prevent or mitigate injuries.With this comes the need to understand regulatory requirements, privacy laws, insurance, and protection from liabilities. While the opportunities are compelling, some industries, such as construction, have been slow to adapt.

    The advances in technology also impact the medical treatment available for injured workers. Some new treatments will restore full functionality, others will significantly increase costs, and some expand the exposures for lifetime indemnity and medical benefits.

    Takeaway: As the benefits of using these technologies are proven and their prices decrease, more employers will adopt to improve safety and increase competitiveness. Evaluating functionality, security, and employee buy-in will be key in making product choices. New technologies mean new risks and promoting best practices for controlling exposures to hazards involving human interaction with technology, as well as training to mitigate the risks of workers becoming distracted or disengaged are crucial to obtain improved efficiency and reduced costs.

    From a medical vantage point, the use of evidence-based medicine and relationships with occupational physicians will continue to grow in importance.

  4. More employers will practice advocacy-based claims management Employers who have an “us vs them” attitude towards workers who have experienced a work-related injury are living in the past. Transparency, collaboration, and communication are the techniques that dominate effective claims management today.By easing the minds of injured workers and helping guide the recovery process, employers can avoid adversarial relationships and obtain better outcomes.

    Takeaway: It’s not a costly practice, but it takes commitment and consistency to work and an understanding of the injured worker. It can’t be a cookie cutter process; it’s a culture.

  5. New training techniques Training that requires focus, reinforces good practices, highly engages workers, is deliverable 24/7, and has no language barriers is not traditional training. Gamification, virtual reality (VR), and simulations have moved training from passive seminars, video watching, and form-filling to interactive culture and behavioral changing programs. Moreover, site specific safety orientation, daily tool talks, and near miss analysis and discussion build trust with workers and focus on the unique challenges of the job.Takeaway: While the top ten OSHA violations are evidence that many employers fail to meet their training obligations, it’s also true that training is often boring and ineffective. New approaches focus on problem solving and collaboration. The importance of training is how well employees remember and use what they know when the time comes to protect themselves, not that the obligation has been fulfilled.
  6. Alternative treatments for chronic pain While opioid prescribing is on the downturn in workers’ compensation and opioid early intervention programs have become an industry mainstay, legacy claims are a serious problem for the industry. Also, chronic pain particularly from musculoskeletal conditions, remains a serious problem among the workforce and must be addressed. Less invasive approaches such as education and self-care options; conservative therapies like exercise, acupuncture, physical therapy, and yoga; cognitive behavioral training to address psychological factors; and comprehensive pain management are leading the way. The debate rages on about the possibilities of medical marijuana.Takeaway: Employers offering access to affordable and evidence-based options that can help employees in pain can reduce their costs by mitigating unnecessary treatments, reducing lost time, and improving productivity. A comprehensive program provides education and is tailored to the individual needs of the employee.

    Medical marijuana continues to challenge employers in their substance abuse programs and drug testing, and state judicial and legislative bodies as they decide whether to permit reimbursement of medical marijuana as a compensable workers’ compensation benefit. Staying abreast of relevant legal decisions and clearly defined policies in employee handbooks is key.

  7. Medical practices will continue to change Telemedicine is here and expanding. Delivering medical care and information via telecommunication networks is impacting case management, physician’s visits, and rehab. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow-up care, including post-op visits, home treatment plans, questions and answers, and consultations with specialists. There’s also been an uptick in telerehab, which supplements in-clinic physical therapy, with virtual access to physical therapy. The possibilities will continue to expand.Takeaway: The benefits of telemedicine can be significant, including cost savings, better access to care, immediate triaging of injuries, and faster claims closings. Issues facing employers include state laws, which vary in the types of services covered, provider requirements, reimbursements, and medical licensure; changing roles of stakeholders who are providing service to injured workers; patient and data privacy; monitoring quality of outcomes; and systems connectivity.
  8. Mental health issues will be talked about more The significant impact of mental health in workers’ comp continues to emerge. Legislative efforts to make it easier for first responders to receive workers’ compensation benefits for mental stress injuries (such as post-traumatic stress disorder) have met with varying degrees of success. The effect of depression, anxiety, and other mental health issues on delayed return to work, increased claims costs, and workplace violence are more fully understood and recognized.Takeaway: Companies are becoming more cognizant of these issues and are more focused on building healthy workplace cultures. The stigma attached to mental health is a societal problem and greater education is needed to identify mental health issues and appropriate treatment.

    Regulatory and external factors can become disruptors including:

  9. Natural disasters have a significant impact on the industry
  10. The national opioid crisis finds its way into the workplace, with double digit increases in overdose fatalities
  11. Globalization means borderless business and new challenges to keep traveling employees safe
  12. Debate over drug formularies will continue to rage in many states
  13. The Gig economy raises questions of adequately protecting workers
  14. The question of independent contractor vs. employee remains one of the hottest, most litigious areas
  15. Rising on-demand services change the risks faced by workers
  16. Changes to immigration laws have significant implications for the hospitality, restaurant, agricultural, construction, and technology industries as well as others
  17. 24/7 connectivity has implications for employee fatigue, driver safety, productivity
  18. The new tax law will mean changes in investment priorities and could lead to accelerated automation

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

Six ways employers unwittingly fuel workplace violence

The statistics are alarming. According to an FBI report, workplace violence impacts almost two million Americans a year, causing an average of 700 homicides. About 18% of violent crimes are committed in the workplace. In addition to the invaluable loss of human life, NIOSH estimates the annual economic cost is $121 billion, not including the immeasurable physical and emotional trauma and morale issues among employees and disruption for the business.

Yet, according to the Bureau of Labor Statistics (BLS), fewer than 30% of private employers have workplace violence prevention programs and only 20% provide workplace violence prevention training. Employers can be reactive rather than proactive, believing an incident cannot occur at their office and don’t seek help until something has happened.

While some associate workplace violence with the high-profile cases covered by the news media, its definition is much broader. The FBI defines workplace violence as “actions or words that endanger or harm another employee or result in other employees having a reasonable belief that they are in danger.” It encompasses bullying, harassment, stalking, robbery, rape, sexual assault, physical assault, as well as shootings, and happens daily.

Generally, it can be grouped into four types:

  1. Violent acts by people who have no other connection with the workplace other than to commit the crime (such as robbery). Convenience stores, gas stations, and liquor stores are at particularly high risk.
  2. Directed at workers by customers, clients, patients, students, inmates or any others for whom an organization provides services. Health care and social assistance sectors are particularly vulnerable.
  3. Violence against coworkers, supervisors or managers by a present or former employee. While some can be random, more often it is a disgruntled employee.
  4. Domestic violence that spills over to the workplace – violence committed in workplace and the perpetrator has a personal relationship with an employee.

Here are six ways employers unwittingly fuel the problem:

  1. Fail to adequately assess all aspects of physical securityConducting a thorough walkthrough at least once during the day and once after dark with a focus on identifying vulnerabilities lays the foundation for a security plan. Where can people enter the building? Are the entrances secured in any way? If electronic access cards are used, are they immediately disabled when an employee leaves the company or loses the card? Where can perpetrators hide to sneak in behind an employee? How do visitors gain access to the building? What about the lighting? If it’s shared space, how is security coordinated? How can employees escape in the event of an incident? What about employees with disabilities? How is after-hour access controlled? Are there security cameras and are they positioned where they are needed? If you have security guards how rigorously do they enforce the rules?Once a security plan is developed, be sure employees have a way to communicate any issues and conduct periodic reviews of the security measures. If an employee reports a former boyfriend is stalking her, is there a way to communicate that information to those in the frontline? If a door is left open, employees may like the convenience of not using their keycards and not report it.
  2. Fail to train managers and supervisors in managing peopleManagers and supervisors often rise through the ranks because of their superior technical skills and strong work ethic. Managing people requires a different skill set and it can be particularly difficult with a troublesome employee. Far more frequent than killing rampages at the office are cases of workplace bullying and workplace assault. Stopping these dangerous situations early can prevent problems from spiraling out of control or turning deadly, yet poorly trained managers can make matters worse by intensifying the sense of persecution felt by the disgruntled employee or ignoring the situation altogether.Managers and supervisors may feel challenged to understand issues employees are experiencing outside the workplace – a divorce, a terminally ill child, financial problems, and so on, while also respecting privacy issues. They should know what to do and who to turn to for assistance.
  3. Fail to foster a culture that encourages reporting of physical and verbal threats and harassmentAll too often after an incident of workplace violence, co-workers describe the perpetrator as belligerent, angry, a bully, misfit, loner and so on, but did not report their concerns.The highly publicized sexual assault allegations made against Hollywood producer Harvey Weinstein and others – including the use of the #MeToo social media hashtag – indicates that sexual misconduct is a regular, but underreported workplace occurrence. They may worry about their job, fear retaliation, believe it’s not their responsibility, don’t want to be viewed as a “tattler,” don’t believe it will escalate, or think the employer will ignore the complaint. Ironically, aggressors count on this behavior.Educating workers on all aspects of workplace violence and training how to spot potential trouble is a good start. Open communications and a clear reporting structure that enables them to report in a non-judgmental way that includes timely feedback and action is essential.
  4. Fail to recognize workplace factors that can trigger violenceStress, downsizing, mergers, feelings of being undervalued or unheard, and rigid management styles are often cited as precursors of workplace violence. Stress is a key trigger, and increased production demands, new technologies, reorganization, and the pressure to be available 24/7 can be overwhelming to some employees. Special programs to help employees manage stress can be helpful and demonstrate support for employees.Yet, the same ‘objective’ stressor at work can trigger an aggressive reaction in one person and not in another. This sometimes leads managers to conclude that a problem is the individual’s – rather than accepting the need to acknowledge and respond to differences in their staff. Yet, often there are early warning indicators, such as a change in attitude or appearance, friction with co-workers, deteriorating performance, excessive complaints, and increased absences. When managers get involved with an open dialogue and provide a plan for support, the likelihood of this escalating to overt threats and aggression decline.
  5. Fail to manage the threat with hiring and firing practicesThere’s no doubt it is difficult to obtain substantial information from past employers, but it’s critical to try. According to reports in the Baltimore Sun, the gunman at the Advanced Granite Solutions company in Maryland had been violent previously at work. An employee at a prior employer filed a peace order against him, alleging that he had punched an employee in the face and had returned later to threaten employees at the place of business.Experts suggest that behavioral-based interviewing can help identify potential problems. This technique involved probing questions that relate to how an individual behaves in the workplace. “Tell me about a situation where you did not agree with a co-worker. How did you handle it? What was the outcome? Were you satisfied with the outcome?” Observing body language also can be revealing. Employers who do not take proper precautions in hiring run the risk of being accused of negligent hiring practices.

    Equally important is managing the termination process. Whether it’s a layoff, non-performance, or just a poor fit, treat the person with dignity and respect and stick to the facts. Be consistent. Keep it short and private. Do it at a time when business impact is minimized. Many experts suggest earlier in the week and definitely not a Friday. Provide information on resources that will be helpful to the employee.

  6. Fail to involve workers in the development of the planWhen employees have a role in developing a plan, they are more likely to take ownership and feel empowered to take action. The group should include individuals from line staff to the highest-ranking management official or an appropriate designee to ensure feedback and representation from the entire workplace. All-employee training sessions designed to educate staff on what workplace violence is, how to look for it, and what actions to take should be conducted regularly.

Employers in every industry need to do a better job at preventing workplace violence. While it is not always possible to prevent violence in the workplace, by preparing and planning ahead, it is possible to minimize the risk and protect employees.

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