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Seven reasons to stay strategic in a Insurance Soft Market
Posted on December 31, 2019 December 18, 2019 by davidrleng
Some businesses are experiencing an unpleasant shock when renewing their commercial insurance. Market conditions for many commercial lines are changing from a "soft" to a "hard" market, where premiums increase and underwriting requirements tighten. Fortunately, workers' compensation is a notable exception.
A "soft" insurance market can give a false sense of reality and some companies relax their focus on managing risk and losses. Yet, maintaining an accurate accounting of your performance is critical in both a soft and hard market. This ensures your company is less vulnerable to the inevitable cycles that occur in all lines of insurance.
Here are seven reasons to keep your eye on strategy:
The company's risk profile is key regardless of market conditions and has implications across all business categories. Given the availability of big data today, the workers' compensation premium is based on more than payroll and the Experience Mod. What's critical is the insurance's company perception of your risk. Importantly, the totality of your risk is relevant. For example, how you select drivers and conduct fleet safety affects both auto insurance and workers' comp.
Many factors go into the assessment of risk. The insurance company expects your risk management to be an ongoing process. It's important to know the granular details of claims and what was done post-incident, so an informed conversation can take place when questions arise. A strong partnership with a broker who understands your business is essential to long-term cost control.
Your safety strategy should be an integral part of your business strategy, not a standalone that can be put on the back burner when working well. It's not a set of tactics, it's what the company does, a shared vision and the plan to achieve safety excellence. When leadership loses its focus, the Workers' Compensation program is without a compass and ultimately will flounder.
Insurance rates are cyclical. While there are many positive trends impacting workers' comp, including controlling opioids prescriptions, safer workplaces, and benign medical inflation that may keep rates low, there are some hovering clouds. For only the second time since 2003, the rate of nonfatal workplace injuries did not decrease, but held steady in 2018 according to the BLS. With relaxing ACA participation requirements, the rate of medically uninsured ticked higher in 2018, which could impact workers' comp. The implications of medical marijuana and recreational marijuana on incident rates are troubling, Medicare Set-Asides can be complicated and unpredictable, and medical advances and longer lives have dramatically driven up the costs of catastrophic claims.
Further, if insurers need to make up for losses in other commercial lines, they can look to Workers' Compensation.
Some industries are more vulnerable than others, including temporary staffing organizations, transportation, and retail. The BLS report spotlighted injury trends for the retail industry, where the rate of nonfatal workplace injuries increased from 3.3 per 100 workers in 2017 to 3.5 per 100 last year. Cases with days away from work also increased in retail, from 1 to 1.1 per 100 workers from 2017 to 2018.
Seemingly minor missteps, such as delays in reporting or treatment, can escalate costs or lead to litigation. According to a study by the Hartford Financial Service Group, claims reported 7-14 days after the injury cost 18 percent more than those filed within a week of the injury. Wait 15-28 days and the costs jump 30 percent. Delaying medical treatment by even one day increases OSHA recordability by 60 percent.
A lack of vigilance leads to a failure to identify potential high-cost claims early. The more information an adjuster has, the more efficiently a claim can be managed. Information on job description, co-morbidities, recovery at work options, prior workers' comp claims, workplace disputes, and so on, are critical for expediting the process. Ignoring an employee who has multiple small injuries is a lost time injury waiting to happen. And failure to settle legacy claims means less scrutiny of the costs that are driving the claim. All are red flags to insurance companies about risk exposure.
Insurance companies make mistakes. Payroll errors, incorrect Experience Modifiers, classification errors, over or under reserving claims, and failure to report subrogation recovery are just some of the common mistakes that lead to overcharging.
The gig economy and classification of independent contractors is a hot legislative issue. California's AB5, which goes into effect Jan. 1, 2020, changes the criteria used to classify employees and independent contractors, making it more difficult to classify an employee as an independent contractor. While this is a state law, California is often considered the bellwether for workplace protection laws. Labor groups and lawmakers will be watching closely to see how this evolves. In fact, in New York, a similar bill was introduced in the Senate in November.
Posted in UncategorizedTagged Insurance, Risk, Risk Management, work comp, workers compensation coverage, Workers` CompensationLeave a comment
Highlights of the 2019 NCCI Symposium
Posted on June 26, 2019 June 26, 2019 by davidrleng
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. The theme of the program is always described in one word that describes the current workers' compensation environment.
Bill Donnell, president and CEO, identified the 2019 word as "delivering." "…we should never, never lose the thought that we deliver for injured workers. So this idea of delivering on a 100-year-old promise is a very powerful statement. It distinguishes workers' compensation from other safety nets." A short,compelling video, Back to Work: The Faces of Workers Compensation, told the story of how workers comp supported four employees to find the strength and commitment to recover from devastating injuries. Focusing on and motivating the person behind the injury is key to successful outcomes.
State of the Line
Presented by NCCI's chief actuary, Kathy Antonello, highlights of the State of the Lineinclude:
Net written premiums for private carriers rose from 39.8 to 43.2 billion. Most of this increase can be attributed to tax law changes and carriers keeping the money onshore.
While payroll increased, this was offset by lower rates so the overall direct written premium was flat 2017 vs 2018.
Workers compensation combined ratios decreased 6% from 89% to 83%. 2018 was the lowest workers' compensation combined ratio on record since the 1930s. This was attributed to the improvement in the underlying loss ratios as a result of underwriting discipline in a low-interest environment.
California, Illinois, and Florida saw an overall decrease in premiums as declining premiums offset increased payroll.
Overall reserve position for carriers is $5 billion redundancy. "A redundant workers' compensation reserve position has not been observed in at least 25 years."
In 2018, every NCCI state except Hawaii saw rate decreases. The most significant was Tennessee with a 19% decrease.
Indemnity claim severity in NCCI states increased 3%.
Medical lost time severity increased 1%.
Accident claim frequency decreased by 1%. This is the lowest decrease since 2011. The tight labor market, which means less qualified, younger, and more deconditioned workers in the workforce, could have contributed to the lower decline in frequency. Carriers also saw an increase in slip/fall claims due to the harsher winter in 2018.
Can this good news continue is a common question. While there is no way to predict the future, NCCI CEO Bill Donnell speculated that large swings might be mitigated by two factors. Improved analytics and faster access to data allow stakeholders to see the impact of their decisions and quickly make corrections, and investment in competencies around core processes, such as claims handling, underwriting, and reserving processes add to stability.
On the other hand, the regulatory landscape always has a big impact on the workers' compensation world, as well as domestic and global affairs. Issues such as marijuana, opioids, opt-out, and post-traumatic stress disorder loom large in states, and the lack of infrastructure spending and a trade war with China could spell bad news for the comp industry looking forward.
Barry Lipton, Practice Leader and Senior Actuary for NCCI discussed a variety of recent NCCI studies .
Group Health (GH) vs. Workers' Comp (WC) pricing: Costs for physician services are 77% higher in WC than GH. Price differences were mainly driven by the quantity of services not fees for service. On average, WC prices were about 12% higher per service than GH. However, WC performed 60% more services on similar injuries than GH.
NCCI Experience Rating Modification: Mods are good predictors of loss outcomes across all industries and Mod types. NCCI sees opportunities to improve predictive power and accuracy and is undertaking a major review of the system.
Mega claims: The number of mega claims (over $10 million) reported in 2017 and 2018 has dropped back down to long-term average values from an uptick in 2016. However, it remains a top concern and more studies are expected.
Physicians' view of workers compensation
A panel discussion highlighted the challenges physicians face in working within the workers' comp system. There is a dearth of occupational medicine physicians in the US (3300) and occupational medicine is not part of education in most medical schools. Many treating physicians don't understand the medical benefits of work and the effects on patients who are out of work for extended periods of time.
Both primary care and occupational medicine physicians have substantial recordkeeping requirements, discouraging specialization in these areas for other more financially rewarding areas. Moreover, case management time is often not billable. Payers and patients complain that they are not getting enough information. Too much time is spent filling out the forms on the computer, which often means clicking boxes rather than a narrative.
Quality of care, return to work, and medical outcomes do not get the priority they should. Network referral requirements can prohibit the best care options. Telemedicine is gaining traction in the group health setting but much less in workers' compensation and some feel it is best used for follow-up in comp. Personal interaction can keep the return to work messaging on track.
Opioid use and excess physical therapy are the biggest cost drivers on workers' compensation claims. Other factors include co-morbid conditions, mental disorders, and legal involvement.
Takeaway: Good occupational medicine physicians are a valuable asset. Take time to understand the challenges they face and the best way to work with them.
Game changers focuses on autonomous vehicles, gig economy, universal healthcare, wearables, and telehealth
TRIA Renewal-Action & Reaction: explores the importance of TRIA renewal specifically to workers compensation, which has no exclusion for terrorism
Cognitive Collaboration-Why Data Science Needs Human-Centered Design: discusses the importance of human decision making in AI
21st Century Threats to Worker Health and Safety: Artificial Intelligence, robotics, sensing, and 3-D printing all present new opportunities and risks to the 21st -century workplace
Posted in UncategorizedTagged Insurance, Risk, Risk Management, work comp, workers comp rates, workers compensation coverage, Workers` Compensation, Worker`s Compensation ClaimsLeave a comment
Understanding the drivers of serious injuries by industry Liberty Mutual Workplace Safety Index
Posted on May 24, 2019 May 12, 2019 by davidrleng
Produced annually, the Liberty Mutual 2019 Workplace Safety Index identifies the leading causes of the most disabling non-fatal workplace injuries (resulting in more than five days of lost time) and ranks them by total Workers' Compensation costs. While the findings have always provided insight into critical risk areas so businesses can better allocate safety resources, this year's report delves deeper by reporting the causes and costs of the most serious workplace injuries by eight industries.
U.S. companies lose more than $1 billion per week due to workplace injuries, according to the report that is based on data from Liberty Mutual, the U.S. Bureau of Labor Statistics and the National Academy of Social Insurance. The top causes of the most serious workplace injuries have been stable over the past several years, with overexertion (lifting, pushing, pulling, holding, carrying) and falls from the same level topping the list. Here are the top ten causes and their costs:
Overexertion involving outside sources. Cost: $13.1 billion
Falls on the same floor level. Cost: $10.4 billion
Struck by object or equipment including falling objects from above. Cost: $5.2 billion
Falls to lower level from a ladder or platform. Cost: $4.9 billion
Other exertions or bodily reactions from activities (crawling, reaching, bending, twisting, climbing, kneeling, or walking). Cost: $3.7 billion
Roadway incidents involving motorized land vehicle. Cost: $2.7 billion
Slip or trip without fall. Cost: $2.2 billion
Caught in or compressed by equipment or object. Cost: $1.9 billion
Repetitive motions involving microtasks, such as working on an assembly line. Cost: $1.63 billion
Struck against object or equipment. Cost: $1.2 billion
Even when broken down by eight industry sectors, there was consistency with overexertion and falls on the same level in the top five causes for each of the sectors. Here are the industry results:
Construction – $9.87 billion in losses ($189.81 million a week)
Falls to a lower level
Struck by object or equipment
Overexertion involving outside sources
Falls on the same level
Slip or trip without a fall
Professional and business services – $7.86 billion in losses ($151.15 million a week)
Roadway incidents involving motorized land vehicle
Manufacturing- $7.62 billion in losses ($146.54 million a week)
Caught in or compressed by equipment or object
Repetitive motions involving microtasks
Health care and social services – $5.17 billion in losses ($99.42 million a week)
Intentional injury by person
Other exertions or bodily reactions
Retail – $5.09 billion in losses ($97.88 million a week)
Transportation and warehousing – $4.37 billion in losses ($84.04 million a week)
Wholesale – $4.04 billion in losses ($77.69 million a week)
Leisure and hospitality – $3.46 billion in losses ($66.54 million a week)
Struck against object or equipment
While James Merendino, Vice President and General Manager at Liberty Mutual Insurance, acknowledges that efforts to improve safety need to be based on a specific employer's operations and employees, he says there are three techniques that have proven successful in improving safety in a variety of industries.
Establish a strategic safety plan. This involves identifying the top safety risks facing the company and how they will be mitigated and managed. This includes existing risks, as well as integration of new technologies or procedures.
Set expectations. The commitment of senior management must be unwavering, consistent, and visible. It must be an integral part of the business plan for the company's success.
Directly involve front line employees in the strategic safety program. This is an on-going process that benefits both the employer and employees. These are the people who do the work, are closest to the hazards, and know the shortcuts that can be taken.
Posted in UncategorizedTagged claims, employee injuries, Insurance, Risk, Risk Management, safety, Safety Compliance, Safety Engineering, Safety Management Systems, safety training, work comp, workers compensation coverage, Workers` Compensation, Worker`s Compensation Claims, Workplace Fatalities, workplace injuriesLeave a comment
Important takeaways from recent studies and reports
Posted on February 1, 2019 January 24, 2019 by davidrleng
Outlook for workers' comp is stable, but rising medical and legal costs and payroll threaten profits – AM Best Co. Inc.
Currently, AM Best has a stable outlook on the U.S. workers' compensation industry, the largest component of the U.S. commercial lines segment. However, the well-known rating agency sees some threatening headwinds that can alter the industry's course. In 2017, growing payrolls helped offset rate decreases and overall soft-market conditions, according to the report. The agency believes that the use of technology, which has provided greater insights into underwriting, pricing and claims decisions, has helped support the line's health and will continue to do so.
Despite the positive results, AM Best believes the trend of declining rates likely will trigger profit margin compression, possibly as soon as 2019. Unemployment has decreased steadily since 2010; however, AM Best notes that long unemployment rate declines typically are followed by sharp spikes in unemployment, and believes that workers' compensation writers should be prepared for a downside scenario as well.
In addition, while there has been a decline in loss frequency, medical cost inflation, as well as the potential for accelerating frequency if employers hire less-qualified candidates are a concern. Rising medical loss cost severity, the declining benefit from prior accident year reserve redundancies and high average settlements on cases stemming from attorneys' growing involvement and litigation, also put pressure on pricing.
Employer takeaway: The report is good news about the stability of rates in the short term. It also provides insights as to how insurers will be evaluating risk. The continued growth of technology in underwriting and pricing means that a company's risk profile is critical. Insurance companies have become quite sophisticated and rates will be based on their perception of your risk. The way to get the best rates is to improve your risk profile – not bidding and quoting. There are trends and claims that are red flags for underwriters, including claim severity, high medical costs, and excessive attorney involvement. If you have claims in these categories, it's a good idea to document special circumstances as well as actions taken to prevent future occurrences.
Employee care concern and satisfaction -WCRI
An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested, according to Comparing Outcomes for Injured Workers reports by the Workers Compensation Research Institute (WCRI). Telephone interviews were conducted with close to 10,000 injured workers from 15 states who were hurt at work between 2010 and 2014. The workers interviewed live in Arkansas, Georgia, Kentucky, Florida, Iowa, Indiana, Tennessee, North Carolina, Virginia, Minnesota, Michigan, Pennsylvania, Wisconsin, Massachusetts, and Connecticut.
An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested.
Between 12% and 21% of injured workers reported "big problems" getting the service they or their primary provider wanted, with 10 of the states falling in the 17% to 18% range. Pennsylvania had the lowest rate of 12%.
Between 11% and 20% reported being "very dissatisfied" with their care.
Thirteen percent of workers said they did not return to work for at least a month after their injury.
Between 6% and 11% of injured workers report a significant loss of income due to injury at the time of the interview.
Employer takeaway: The data reinforces the message that employers must be proactive and vigilant in managing workers' comp. This is not new "news" – recovery-at-work programs, medical management best practices, and open lines of communications among all stakeholders are the cornerstones of a successful program.
First-ever industry breakdown of drug use in the American workforce – Quest
Quest, a leading drug-testing provider, announces the rate of positive drug test results annually based on an analysis of 10 million urine tests. The new data marks the first time Quest has broken it down by industry.
The rate of positive test results for illicit drugs was highest in retail (5.3%), health care and social assistance (4.7%), and real estate rental and leasing (4.6%) sectors in 2017, while the utilities (2.8%) and finance and insurance (2.6%) sectors had the lowest rates. Drug use by the workforce increased each year, and by double-digits over the two years between 2015 and 2017, in five of 16 major U.S. industry sectors analyzed. The highest rates were in consumer-facing industries.
Marijuana was the most commonly detected substance, with the highest drug positivity rate of all drug classes across the majority of industry sectors. Marijuana positivity was highest in accommodation and food services, at 3.5 percent in 2017, more than 34 percent higher than the national positivity rate of 2.6 percent for the general U.S. workforce.
Employer takeaway: With low unemployment and tight job markets as well as legalized recreational marijuana in many states, many employers have dropped pre-employment drug tests for positions that aren't safety sensitive. The analysis suggests that employers can't assume that workforce drug use isn't an issue in their industry. Employers are responsible for ensuring the safety of workers, customers, and members of the general public and this is one of the more vexing areas. Review your written drug policies, clearly communicate expectations and company rules to all employees, and be sure supervisors know how to recognize signs of impairment.
Posted in UncategorizedTagged Insurance, Risk, Risk Management, safety, Safety Compliance, work comp, work comp claims, workers comp rates, workers compensation coverage, Workers` Compensation, Worker`s Compensation Claims, workplace injuriesLeave a comment
Seven actions to improve existing work comp practices and boost employee engagement in 2019
There's been a lot of good news about workers' comp in the past few years. In most states rates have declined, employers are reporting fewer claims and workplaces continue to be safer. Becoming complacent is tempting but there are trouble spots and emerging risks, and historically rates are cyclical. It makes sense to have an eye on the future.
Further, workers' comp cannot be separated from employee retention and engagement. It's a core business practice of comprehensive risk management that protects your most valuable asset – your employees.
Here are seven actions to consider for 2019:
Analyze your risks and exposuresSuccessful businesses continually evolve. Changes to business operations, automated work processes, new technologies, growing number of telecommuters, more temporary employees, mergers and acquisitions, and other factors affect the company's risk profile. While there's invaluable information in workers' comp loss run reports, as well as OSHA reporting forms, it's also important to evaluate leading indicators, such as training, near miss reporting, employee engagement in safety, and equipment maintenance and upgrades. Savvy employers focus on emerging trends and threats, identifying what incidents happen often and which ones are severe, assessing new exposures, evaluating what works, and proactively preventing incidents.
This process not only helps to determine where resources are needed to reduce injuries and keep employees safer, it also enables employers to work more efficiently and strategically position themselves with insurance companies. With robust data and an accurate picture of exposures, companies can present themselves in the best light and differentiate their risk profile. It's not only about getting the best rate today, but positioning for the future.
Strengthen the personal connection in claims managementTrust is a key factor in avoiding litigation and achieving a successful claims outcome. Language and cultural barriers, as well as unconscious bias, can lead to unintended miscommunications and failure to manage expectations, which causes claims to spiral out of control. It goes beyond translation, which alone can be difficult when medical language is involved. The claims manager should guide the process, identify and overcome barriers, advocate, and build trust. Advocacy-based claims management yields positive results.
No two injured employees are the same. Good diversity training that accounts for cultural, demographic, and gender variations helps identify the nuances of managing the injury. Travelers started a Cultural Advantage program four years ago, which connects injured workers with claims and case professionals of similar backgrounds to help alleviate misunderstandings that delay recovery. The initiative produced a 24 percent improvement in injured workers returning to work within 30 days and a 23 percent reduction in attorney representation.
And there are groups that often evade the radar screen. For example, childcare issues can complicate recovery of injured working moms. Taking the time to understand the needs of the individual employee can significantly improve claim outcomes.
Measure the success of medical care and return to workWhile growth in medical costs in workers' comp has moderated, they still represent the lion's share of most claims. Controlling costs can seem daunting with the ever-changing evolution in healthcare and the varying state laws.
There is a great variety in quality of care, clinical outcomes, and costs among physicians. Claims that don't apply evidence-based medicine are open 13.2 percent longer and 37.9% higher in medical costs according to a report in the Journal of Occupational and Environmental Medicine. If you have an established relationship with an occupational health physician, year-end is a good time for a review, which should include an evaluation of the agreed-upon outcome metrics, the satisfaction of workers, and the relationship with the employer and claims/case manager.
Some outcome metrics often evaluated include average cost per claim, percentage of injuries that become lost time claims, days away from work, wait time for appointments, percentage of workers referred to specialists, surgery, physical therapy, percentage of workers returned to work with disability duration guidelines, and the cases with subsequent litigation. You'd have your head in the sand if opioid prescriptions were not part of the discussion.
It's also a good time to assess the effectiveness of the return to work program. An open discussion with the treating physicians can reveal weak or troublesome areas.
It also may be time to look at emerging trends. A number of employers value nurse case managers, who guide injured employees' medical treatment and return-to-work efforts. Serving as a liaison between all parties involved in the claim, including doctors, the injured worker, the employer and the insurance company, they can significantly reduce the duration and cost of claims. They can be particularly helpful when an injured worker has comorbid conditions that lengthen the duration of a claim.
Another emerging trend to consider is telemedicine that, in some cases, offers convenient, quicker, and more-accessible options for care. See the article, The possibilities of telemedicine in workers' comp.
Examine your trainingMost manufacturers are now looking at a workforce that is 35% millennials and could grow as high as 75% by 2025. Yet, they work alongside baby boomers, Gen X, and Gen Z and each generation has unique learning styles and preferences. However, there is agreement on the complaints about training. It's boring, there's an overload of information, it's not relevant, it's all about rules and what not to do, it's only done to meet regulatory requirements, it's untimely, it's generic and so on.
To be effective, it must be personalized and kept simple to maximize retention. Training is worthless if it doesn't stick. Stereotype thinking often guides decisions, such as baby boomers prefer classroom learning with interaction and millennials prefer fast-moving interactive activities such as games and social networks. It's best not to pigeon-hole workers and to assess the effectiveness of your program on an individual basis.
Do employees find it engaging and relevant? Did they acquire and retain the knowledge? Has their on-the-job behavior changed? Were the desired outcomes obtained? What are the key motivators? While "the stick" used to be sufficient to motivate learning, today "the carrot" of fun and rewards dominates.
Making time for learning is also a challenge for employees. Microlearning, which delivers training in short "bursts," is a growing trend. It generally stresses specific skills and can utilize short messaging and videos via a mobile device. It avoids technical language or other unfamiliar terminology and focuses on specific employees and specific responsibilities. A blended approach of delivering training on multiple platforms may be the best solution.
Don't let up on distracted drivingWhile workers' compensation has experienced a long-term decline in overall claim frequency, the story is quite different for motor vehicle accidents (MVA). For the past five years, MVAs in workers' comp and in the general population have been on the rise, anecdotally coinciding with the growth of smartphones. This troubling trend is compounded by the severity of the injuries, costing 80 to 100 percent more than the average claim according to the National Safety Council.
Every employee is affected…from professional drivers to employees who may drive a few times a year for errands or community service projects. While there is growing awareness of the risk of distracted driving, a "not me" attitude remains prevalent because people believe they are better drivers than those around them.
Is your policy strong enough? Is it enforced? Is it effective? How often is it reiterated to employees? The mobile telephone culture is deeply embedded in everyday routines. Getting employees to take seriously the dangers of distracted driving takes a persistent commitment from employers.
Raise the awareness of safety risks to womenWomen in the workplace encounter particular safety risks, including ill-fitting personal protective equipment and workplace violence, that are not always recognized according to experts at the American Society of Safety Professionals' Women's Workplace Safety Summit. In spite of the growth of women in male-dominated industries, many women are faced with wearing personal protective equipment that was designed for men. Simply making smaller sizes available often doesn't work. By purchasing PPE products specifically for women, injuries will be reduced and job satisfaction improved.
While workplace violence solutions are difficult and more can be done for all employees, workplace violence (such as patient-on-nurse violence in the healthcare field) is a category that disproportionately affects women. According to the U.S. Bureau of Labor Statistics, 70% of the workers who experienced trauma from workplace violence (days away from work) were women, and 70% worked in the health care and social assistance industry. In analyzing workplace violence vulnerabilities, gender differences should be one of the examined variables.
Evaluate work-from-home policiesFlexible work policies often top employee wish lists when they look for a job, and employers have responded. Attraction of talent and retention levels are two key factors to examine when implementing or evaluating telecommunicating policies.
Equally important are the complicated workers' comp coverage issues that arise. Even if your company offers limited remote working arrangements, a telecommuting policy is crucial. It outlines the obligations of both parties and addresses work hours, equipment, time management, reporting, and work area setup. Some employers are also including proof of presence in work area, such as geo-tracking or equipment tracking, and periodic home inspections, when allowed by law.
There is a common thread in each of these issues: employees want to feel valued. Employers who take a strategic approach to workers' comp demonstrate they truly care about the health and well-being of their employees.
Posted in UncategorizedTagged Construction, Human Resources, Insurance, Risk, Risk Management, safety, Tips, work comp, Workers` Compensation, Worker`s Compensation ClaimsLeave a comment
Posted on December 10, 2018 November 11, 2018 by davidrleng
PA company faces charges of hiring bias against applicants in drug treatment
The Equal Employment Opportunity Commission (EEOC) filed suit against Clearfield-based Appalachian Wood Products Inc., a major supplier of cabinet components to the kitchen and bath industry. The suit alleges that the company unlawfully barred job applicants from certain positions if they were taking prescribed medications for drug addiction treatment without evaluating whether the medications affected their ability to perform the job safely. Also, unlawfully, the company required applicants to disclose their use of medications prior to making conditional offers.
Retaliation claim by fired auditor can go to trial
In Batson v. The Salvation Army, the 11th U.S. Circuit Court of Appeals ruled an employee who was fired after returning from medical leave and unsuccessfully applying for a position she previously held can go to trial on her retaliation claim under the FMLA. The employee, who had multiple sclerosis, was promoted to an audit manager position when the audit secretary became ill. When the audit secretary died, the new position was eliminated and around the same time the employee took FMLA leave.
When she returned to work, she was told her position was eliminated but she could apply for her old position as a senior auditor, which she did and was the only one to meet the application deadline. At the same time, a new audit secretary was hired. When she was interviewed, she was asked many questions about her health. In making the decision not to hire her, the new audit secretary noted she performed poorly in the interview, and she had "recent performance issues" as an audit manager.
The court, however, found that the health-related questions during the interview suggested the audit secretary was concerned about the need for FMLA leave, not her interview performance and had no experience supervising the applicant. Emails also suggested the audit secretary decided not to hire her because of her illness but recognized the need to come up with an alternative justification.
Employer takeaway: Under the FMLA, if a position was eliminated for legitimate reasons, reinstatement rights no longer exist. However, several mistakes were made in this process. The employee was told she could apply "as a formality" for a recently posted senior auditor position (her former position) and would be transferred and she was the only applicant to apply before the deadline. The focus on health-related questions during the interview was inappropriate and the emails during the selection process were incriminating.
Exclusive remedy defense can be added to case after several appeals – Illinois
In Hiatt v. Ill. Tool Works, an employee of Western Plastics was seriously injured when both his arms got caught in a metal roller and had to be amputated. He filed suit against multiple parties, including Illinois Tool Works (ITW), which sold products to Western and was housed in the same building. All suits were settled or dismissed except for the ITW case, which went on for five years and involved seven amended complaints and over 40 dispositions.
The employee claimed that ITW was engaged in a joint venture with Western and had knowledge that the machine involved in the incident was dangerous. ITW moved for summary judgment, which was granted by a trial judge, but reversed by the Appellate Court. The trial judge, on her own initiative, raised the exclusive remedy defense.
The case went through more appeals and ITW raised the exclusive remedy defense for the first time, while the employee argued the law-of-the-case doctrine, which limits re-litigation of a previously decided issue in the same case. The Appellate Court noted that its prior decision had not explicitly said ITW could not raise an exclusive remedy defense on remand and that ITW, as a member of the joint venture, is an agent entitled to the same immunity afforded to the employer by the exclusive-remedy provision.
PTD granted to worker unable to find work – Mississippi
In Harris v. Stone County Board of Supervisors, the Court of Appeals reinstated permanent total disability benefits to a maintenance worker who could not find a job after reaching maximum medical improvement for a knee injury. A functional capacity examiner found that he was able to work full-time, mostly sitting; however, he had done manual labor all his working life. A vocational rehabilitation counselor noted very limited job skills and found 12 low paying jobs, which the worker applied for without success.
After several appeals, a Court of Appeals noted a worker is presumed to be permanently and totally disabled (PTD) if he reports to work after reaching MMI but is not reinstated. The employer failed to meet its burden to prove otherwise.
Physician assistant does not meet definition of physician in workers' comp – Nebraska
In Bower v. Eaton Corp., an employee who injured his shoulder underwent four surgeries and the company accepted responsibility for three of the surgeries. The employee appealed an award of the Nebraska Workers' Compensation Court that concerned a number of issues, including his impairment rating.The Supreme Court held that the Workers' Compensation Court appropriately failed to consider the medical report as evidence of the worker's impairment. The medical report which indicated the injured worker suffered a 15 percent permanent impairment to the right upper extremity was signed by an orthopedic surgeon's physician assistant and not by the surgeon.
Injury incurred while scanning parking pass at kiosk not compensable – New York
In a divided decision, Matter of the Claim of Shelly A. Grover v. State Insurance Fund, Workers' Compensation Board, the Appellate Division of the Supreme Court ruled that an employee's injuries sustained while stopping to scan her employee parking pass were not compensable. The privately-owned parking garage that she was accessing is located underneath the building where she worked. The garage is open to the public, but there is a section of the garage exclusively dedicated to employees located in the building.
Although a law judge found the injuries compensable, the Workers' Compensation Board ruled that the incident did not arise out of and in the course of her employment and the Appellate Court agreed. The Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage.
Special employer liable for half of comp benefits – New York
A truck driver worked for Eaton's Trucking Service, which exclusively hauled cargo for Quality Carriers. Eaton operated under Quality's logo and license without which Eaton could not have conducted its hauling operation. When the driver filed a claim for injuries to his right hand, wrist, arm and shoulder, he identified both Eaton and Quality as his employer. Following a hearing, a WCLJ determined that the driver had an occupational disease of right carpal tunnel syndrome and found that Eaton was his general employer and Quality was his special employer, and that each was liable for 50% of the workers' compensation awards. The Board upheld that determination.
Upon appeal to the Supreme Court's appellate division, the court noted that while Quality did not control the day-to-day oversight of the driver, Eaton and the driver operated entirely under Quality's authority and pursuant to its policies. The Court also stressed that when there is a general and special employer, the Board is empowered to make an award against either or both of the employers.
Ordinary supervision does not warrant claim of mental injury – New York
In Matter of Lanese v. Anthem Health Servs.,a registered nurse case manager alleged that she suffered a relapse of preexisting depression and anxiety and had to stop working as a result of harassment and bullying by her managers. The court found, however, that she was receiving normal oversight and monitoring to assist her in correcting deficiencies and improving her performance that were no greater than what other workers experienced in the normal work environment.
Work Comp case file can't be sealed from public access – North Carolina
In Mastanduno v. National Freight Industries, an employee asked the Industrial Commission to keep the information related to his workers' compensation claim out of the public record, which includes a searchable online data base. He was concerned the information would affect his ability to obtain a visa, his insurance premiums, his qualifications to adopt a child, and his eligibility to secure a line of credit, as well as expose him to identity theft and cyberbullying.
The Court of Appeals affirmed the denial of the request, noting the general statute specifies that all commission records, aside from awards issued by the Commission, are not public and the exclusion of awards meant that the General Assembly intended for awards of the Industrial Commission to be public.
Employee's fall on premises after clocking out is compensable – Pennsylvania
In Wegmans Food Markets v. WCAB (Tress), a cashier had finished her shift and was walking across the store to pick up a hamburger, which she had ordered from the store's pub. She slipped and fell and was injured.
The Commonwealth Court noted that in order to be compensable the fall must have occurred on the employer's premises, be caused by a condition of the premises, and be required by the nature of the job to be on the premises. In this case, the first two were clearly met and the court noted that getting to and from the work station is a necessary part of employment. In Pennsylvania, injuries that occur on the employer's premises while the worker is coming to or leaving work are in the course of employment if they occur within a reasonable period of time before or after the worker's shift.
Supreme Court reduces burden of proof in firefighter cancer cases – Pennsylvania
While the state had created a presumption of an occupational disease for firefighters with cancer, the Commonwealth Court read the language as requiring firefighters to prove they had industrial exposure to known carcinogens that caused the form of cancer. In a recent decision, City of Philadelphia Fire Department vs Workers' Compensation Appeal Board (Sladek), the Supreme Court lowered the burden of proof, noting that a cancer-stricken firefighter has the burden of proving the "occupational disease" but did not have to prove that an identified Group 1 carcinogen actually caused the cancer. This involves showing they spent four or more years working as a firefighter after passing a physical examination that they were cancer-free, as well as direct exposure to a Group 1 carcinogen.
Gradually incurred injury not an injury by accident and not compensable – Virginia
In Daggett v. Old Dominion Univ., an appellate court upheld the denial of benefits, noting that an injured employee must demonstrate an "identifiable incident" or "sudden precipitating event" to receive workers' comp benefits. In this case, a shoulder injury was a result of repetitive trauma. On the day of the alleged injury, the employee repeated the same combination of movements to rotate and move 14 smart boards, each weighing between 28 and 48 pounds.
Employer must protect workers' family from asbestos exposure – Virginia
In Quisenberry v. Huntington Ingalls, a divided (4-3) Supreme Court ruled that an employer has a duty to protect its employees' family members from potential exposure to asbestos fibers that employees may carry home on their work clothes. The daughter of a former employee, who regularly laundered her father's clothing, died from mesothelioma and her son filed a wrongful death suit.
In reaching its decision, the court noted there does not need to be actual interaction between the parties, so the fact that the alleged harm occurred at a location removed from the employer's business and after hours was irrelevant. Because the shipyard owed the duty to the family members, it was susceptible to tort liability.
Bus driver's failure to wear seat belt nixes benefits – Virginia
In Mailloux v. American Transp., a bus driver, who sustained serious injuries in an accident in which his bus was struck from behind, causing it to careen against a guard rail and flip over, ejecting the driver, was found to have violated his employer's safety policy and disqualified from receiving benefits. The appellate court showed that he did not sustain the injuries while in the driver's seat, but only after being ejected from the vehicle, and that the driver was aware of the employer's safety policy requiring seatbelt use at all times. Thus, the proximate cause of the driver's injuries was his failure to use the seatbelt and he was not entitled to benefits.
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OSHA watch
Posted on December 5, 2018 November 11, 2018 by davidrleng
OSHA softens hard line on workplace safety incentives and post-incident drug testing
See post – Much needed clarification from OSHA on anti-retaliation
FY 2018 preliminary list of top ten violations
See second article above – Preliminary list of top ten OSHA violations includes eye and face protection for first time
Employers targeted in record-keeping crackdown
Under this site-specific program, inspections will target employers the agency believes should have provided Form 300A data, but did not for the calendar year 2016, which had to be electronically submitted by Dec. 15, 2017. It will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection, but will not include construction worksites.
Regulatory agenda update
Released in October, the regulatory agenda had few surprises. Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, Crane Operator Qualification in Construction, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, and Tracking of Workplace Injuries and Illnesses are in the final rule stage.
National Emphasis Program (NEP) on trenching and excavation safety
The updated NEP on trenching and excavation safety became effective October 1. It provides education and prevention outreach during the first 90 days of the program, and will respond to trench-related complaints, referrals, hospitalizations and fatalities. Enforcement activities will begin once the outreach program expires. State Plans are expected to follow suit.
Regional Emphasis Program (REP) addresses ammonium hazards in farming industry
Covering seven states, Arkansas, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, and Texas, this REP addresses hazards from exposure to fertilizer-grade ammonium nitrate (FGAN) and agricultural anhydrous ammonium. The program began Oct. 1, 2018 with three months of education and prevention outreach and enforcement will follow and continue until Sept. 30, 2019, unless the program is extended.
Fact sheet on initiating a naloxone program
NIOSH has published a new fact sheet Using Naloxone to Reverse Opioid Overdose in the Workplace. It provides a series of steps for employers to consider when deciding whether to make the overdose reversal medication available in the workplace.
Revised webpage makes state plan information easier to find
A redesigned State Plans webpage has a new color-coded, interactive map to simplify finding contact and jurisdictional information for each state. Users can also access frequently asked questions and details about State Plan activities.
Rejection of OSHA inspection upheld – Georgia
In an unpublished decision, United States of America vs. Mar-Jac Poultry, Inc., the 11th Circuit Court of Appeals ruled that a poultry plant could not be compelled to submit to a company-wide inspection after a worker suffered an electric shock injury. The company reported the incident in a timely manner and when the inspectors requested access to the entire facility, rather than just the hazards involved in the incident, the company refused.
OSHA argued it had the right to expand the scope of the inspection based on (1) a National Emphasis Program ("NEP") on poultry processing facilities and (2) the company's recordkeeping forms, such as the 300 Logs. An magistrate judge held that OSHA did not have reasonable suspicion of the other hazards based on the 300 Logs and that Mar-Jac had not been selected by neutral criteria under the NEP. Upon appeal, the decision was upheld. The court concluded that the mere recording of work-related injuries or illnesses does not mean that they were the result of a violation of an OSHA standard, rule or regulation.
Cal/OSHA issues notice of emergency regulation for electronic submission form 300A by December 31, 2018
Cal/OSHA issued a notice of emergency regulation that businesses required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation's proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).
30-day time limit for employer to challenge safety citation – California
In RAAM Construction v. Occupational Safety and Health Appeals Board, an appellate court ruled that a contractor has 30 days from the date of a decision by the Appeals Board to bring a challenge, without extra time to account for the mailing of the decision. RAAM argued that its petition was timely, since it was filed within 30 days of learning of the denial, but the court said the trigger of the time period is the filing of the order, not the date of service.
Enforcement notes
Cal/OSHA issued two willful-serious accident-related citations totaling $225,500 in proposed penalties to Rancho Santa Margarita-based house-framing contractor, Circle M Contractors Inc., for failure to train workers on nail guns and failure to ensure safe operation of these tools after a carpenter was seriously injured. A review of the employer's injury log showed 34 instances of nail gun injuries suffered by employees since 2016.
C.W. Hendrix Farms Inc. was cited for failing to protect workers from recognized hazards after lightning struck and killed an employee at the Parkland farm. The company faces a penalty of $12,934, the maximum amount allowed.
Kasper Roofing & Construction Inc. was cited for exposing employees to fall and other hazards after an employee suffered fatal injuries at a Maitland worksite. The Orlando-based roofing contractor faces $134,510 in penalties, the maximum allowed by law.
An administrative law judge with the OSHRC vacated a violation stemming from an incident at a chicken processing plant, Norman W. Fries Inc. d/b/a Claxton Poultry Farms, in which an employee's arm was fractured when it got caught under a conveyor belt. The judge found inspectors failed to prove that the company did not ensure that conveyor belts were protected by a metal frame to prevent such injuries.
Springfield Terminal Railway was ordered to pay $85,000 to an employee who was subjected to retaliation after reporting a work-related injury at its facility in Andover.
An administrative law judge with the OSHRC vacated in part and affirmed in part violations following a 2015 fatality at a pharmaceuticals plant in South Easton. Pharmasol Corp. successfully contested a serious violation under the general duty clause for underride hazards.
An administrative law judge with the OSHRC affirmed a citation against Kansas City-based Adam Ham Construction LLC for violating residential fall protection requirements and assessed a $3,741 penalty. The owner did not follow through in contesting the citations.
Blue Springs-based Arrow Plumbing LLC admitted to willfully violating the safety standards to require and enforce the use of trench boxes or other trench protection techniques at a home construction site in Belton. An employee was killed when an unprotected trench collapsed on him. Along with its successor company R2 Plumbing LLC, it agreed to implement several safety enhancements and it will pay a civil monetary penalty of $225,000.
Harmony-based Insight Pipe Contracting LLC was placed in the Severe Violator Enforcement Program and faces $331,101 in fines following a safety inspection initiated after an employee suffered a fatal electrocution at a worksite in Johnstown. Violations included failing to develop and implement procedures for confined space entry, train employees on confined space hazards, conduct atmospheric testing before permitting entry into a sewer line, use a retrieval line, and complete proper permits.
Toy Factory TX LLC was cited for workplace safety violations after an employee suffered an arm amputation while cleaning machinery at the company's Elysburg plant. Proposed penalties of $112,523 relate to hazardous energy and lockout/tagout violations.
Dura-Fibre LLC, based in Menasha, settled a whistleblower suit and will pay a machine operator $100,000 in back wages and compensatory damages after it terminated him for reporting injuries he and a co-worker sustained.
Superior Refining Company LLC, based in Superior, was cited for failing to control the use and release of highly hazardous chemicals after an explosion and fire injured several employees. The company faces $83,150 in proposed penalties for eight serious violations of the process safety management procedure.
JBS Green Bay Inc. was cited for machine guarding violations when an employee suffered serious injuries after becoming caught in an unguarded machine. The Green Bay-based company was cited for one willful and 10 serious violations, and faces proposed penalties of $221,726.
Posted in UncategorizedTagged Communication, Construction, Human Resources, Insurance, OSHA, OSHA 300, OSHA 300A, OSHA Compliance, Risk, Risk Management, safety, Tips, work comp, workers compensation coverage, Workers` Compensation, Worker`s Compensation ClaimsLeave a comment
Much needed clarification from OSHA on anti-retaliation provisions
Posted on November 19, 2018 November 11, 2018 by davidrleng
My fellow Certified WorkComp Advisor, Dustin Boss, has allowed me to share his summary of the OSHA anti-retaliation clarification that the U.S. Occupational Health and Safety Administration (OSHA) just issued.
OSHA issued a standard interpretation clarifying its position on the new recordkeeping rule's anti-retaliation provisions. OSHA's memorandum essentially "rolls back" its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing.
Why is this important? Many employers struggled to understand the anti-retaliation provisions since they were published in May 2016 in guidance materials accompanying the new regulations. Up until now, OSHA's explanations have been extremely vague and confusing. But with this new publication, the confusion ends as the interpretation supersedes all the prior guidance on this topic.
So what changed?
OSHA clarifies that it does not prohibit workplace safety incentive programs or post-incident drug testing. It allows that incentive programs can be an important tool to promote workplace safety and health and encourages programs that reward workers for reporting near-misses or hazards and involvement in a safety and health management system.
OSHA also provides that rate-based incentive programs are permissible under the rule as long as they are not implemented in a manner that discourages reporting. If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus, or a slice of pizza, because of a reported injury, OSHA will not cite the employer under the anti-retaliation provisions as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness. It hints that the more "substantial" the reward, then the more the employer may need to do to reassure employees they are free to report without retaliation. In other words, pizza parties are back.
In addition, it states that most instances of workplace drug testing are permissible. Examples of permissible drug-testing include:
Random drug testing
Drug testing unrelated to the reporting of a work-related injury or illness
Drug testing under a state workers' compensation law
Drug testing under other federal law, such as a U.S. Department of Transportation rule
What should employers do now?
Employers should keep in mind that the regulations do not mention safety incentive programs or drug testing policies. The discussions about prohibitions on drug testing and incentive programs were included in prior guidance given by OSHA, as is yesterday's interpretation rolling back that position. Thus, this position could change with the next election. For now, employers have some more certainty that the current OSHA is not going to pursue these types of retaliation claims unless there is some strong indications that the employer took action to discourage reporting.
That said, employers need to remember that the key aspect for determining whether their incentive programs are OSHA "compliant" is to treat all employees in a consistent manner and ensure that employees feel free to report an injury or illness.
Regarding employer drug testing programs, to strike the appropriate balance, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.
For additional information, see OSHA's memorandum entitled, "Clarification of OSHA's Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv).".
Posted in UncategorizedTagged Construction, Human Resources, Insurance, OSHA, OSHA Compliance, Post Accident Drug Testing, safety, Safety Compensation, Safety Compliance, safety training, Tips, work comp, workers compensation coverage, Workers` Compensation, Worker`s Compensation ClaimsLeave a comment
Posted on November 16, 2018 October 27, 2018 by davidrleng
NLRB issues proposed rule on joint employers
As expected, the National Labor Relations Board (NLRB) has announced publication of a proposed rule on joint employers. The rule will effectively discard the expanded definition of joint employer in the Browning-Ferris Industries decision during the Obama era and return to the much narrower standard that it had followed from 1984 until 2015. An employer may be found to be a joint-employer of another employer's employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment.
NIOSH publishes guide on air-purifying respirator selection
NIOSH has issued a guide intended to help employers select appropriate air-purifying respirators based on the environment and contaminants at specific jobsites.
Top trend in workers' comp reform – legislation impacting first responders
According to National Council on Compensation Insurance (NCCI), the introduction of legislation impacting first responders was the top trend in workers' compensation reforms countrywide, although few bills have passed. In 2018, there were 103 bills dealing with first responders battling post-traumatic stress disorder or cancer, but only five bills passed. Washington and Florida both passed bills that would allow first responders with PTSD to file workers' compensation claims under certain circumstances, and Hawaii and New Hampshire revised or enacted presumption bills for firefighters battling certain types of cancer. New Hampshire also passed a law that calls for a commission to "study" PTSD in first responders.
Worker fatalities at road construction sites on the rise: CPWR
A total of 532 construction workers were killed at road construction sites from 2011 through 2016 – more than twice the combined total for all other industries – according to a recent report from the Center for Construction Research and Training, also known as CPWR. In addition to the statistics, the report highlights injury prevention strategies for road construction sites from CPWR and several agencies.
State-by-state analysis of prescription drug laws
The Workers Compensation Research Institute published a report that shows how each of the 50 states regulates pharmaceuticals as related to workers' compensation. Some of the highlights include:
34 states now require doctors to perform certain tasks before prescribing
At least 11 states have adopted drug formularies
15 states do not have treatment guidelines to control the prescription of opioids, and preauthorization is not required
In at least 26 states, medical marijuana is allowed in some form and nine of those states specifically exclude marijuana from workers' compensation
Guide and study related to workers and depression
Workers who experience depression may be less prone to miss work when managers show greater sensitivity to their mental health and well-being, recent research from the London School of Economics and Political Science shows. The study was published online in the journal BMJ Open.
In March, the Institute for Work and Health published a guide intended to aid "the entire workplace" in assisting workers who cope with depression or those who support them.
11 best practices for lowering firefighter cancer risk
A recent report from the International Association of Fire Chiefs' Volunteer and Combination Officers Section and the National Volunteer Fire Council details 11 best practices for minimizing cancer risk among firefighters.
NIOSH offers recommendations for firefighters facing basement, below-grade fires
The Workplace Solutions report offers strategies and tactics for fighting basement and below-grade fires, along with a list of suggested controls before, during and after an event.
Predicting truck crash involvement update now available
The American Transportation Research Institute has updated its Crash Predictor Model. It examines the statistical likelihood of future truck crashes based on certain behaviors – such as violations, convictions or previous crashes – by using data from 435,000 U.S. truck drivers over a two-year period.
This third edition of CPM includes the impact of age and gender on the probability of crashes. It also features average industry costs for six types of crashes and their severity.
Governor signed four bills related to comp. A.B. 1749 allows the first responder's "employing agency" to determine whether an injury suffered out of state is compensable. A.B. 2046 requires governmental agencies involved in combating workers compensation fraud to share data, among other changes to anti-fraud efforts. S.B. 880 allows employers to pay indemnity benefits with a prepaid credit card. S.B. 1086 preserves the extended deadline for families of police and firefighters to file claims for death benefits.
Governor vetoed bills that would have prohibited apportionment based on genetics, defined janitors as employees and not contractors, identified criteria doctors must consider when assigning an impairment rating for occupational breast cancer claims, called for the "complete" disbursement of $120 million in return-to-work program funds annually, and required the Division of Workers' Compensation to document its plans for using data analytics to find fraud.
The Division of Workers' Compensation revised Medical Treatment Utilization Schedule Drug List went into effect Oct 1.
Independent medical reviews (IMRs) used to resolve workers' comp medical disputes in the state rose 4.4 percent in the first half of 2018 compared to the first half of 2017; however, in over 90 percent of those cases, physicians performing the IMR upheld the utilization review (UR) physician's treatment modification or denial. – California Compensation Institute (CWCI)
Workers' compensation coverage for post-traumatic stress disorder (PTSD) for first responders like firefighters, EMTs, law enforcement officers and others went into effect Oct. 1.
Workers' Compensation Board will destroy paper documents in settlements. If parties mail or drop off paper-based settlement agreements and related documents, it will trash them and notify the parties by phone or email to submit online. The board urges parties to follow the settlement checklist and procedure posted on its website.
The Department of Labor and Industry formally adopted a number of changes to fees for rehabilitation consultants.
Department of Labor and Industry approved rule changes that slightly increase fees for medical and vocational rehabilitation services, and increase the threshold for medical, hospital and vocational rehabilitation services that treat catastrophically injured patients.
Effective Jan. 1, the assigned risk rate, which insures small employers with less than $15,000 in premium, and employers with an experience modification factor of 1.25 or higher, will decrease 0.7%.
A new portal from the Department of Labor offers safety data, video, and training programs.
The Workers' Compensation Board has launched its virtual hearings option for injured workers and their attorneys. For more information.
Attorneys or representatives are now required to check-in to all hearings using the online Virtual Hearing Center when appearing in person at a hearing center.
The Department of Labor and Industry has issued a hazard alert warning of the potential dangers of unsafe materials handling and storage in the beverage distribution and retail industry.
The Workers' Compensation Annual Report for 2017 shows claims and first report of injury are trending up, bucking the downward trend nationally. There has also been a big jump in alternative dispute resolutions.
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Appellate court clarifies permanent disability rule – California
In Department of Corrections and Rehabilitation v. Workers Compensation Appeals Board and Dean Fitzpatrick, the issue revolved around whether the Workers' Compensation Appeals Board applied the correct standard when calculating a worker's permanently disabled rating. The Board had affirmed an administrative law judge's ruling of 100% permanent disability, based on Labor Code Section 4662.
Upon appeal, the Appellate Court noted that Section 4662 of the law does not provide for permanent total disability separate from Section 4660, which governs how the finding and award of permanent total disability shall be made "in accordance with the fact" as provided in 4662. It annulled the Board's decision and remanded the issue for further proceedings.
Federal court upholds use of state worker classification test – California
In a blow to the California Truckers Association (CTA), the U.S. 9th Circuit Court of Appeals ruled that federal deregulation of the trucking industry does not pre-empt the state agency from applying a common law test, called the Borello test, because the law only pre-empts state rules that are "related to prices, routes, or service." Named for a 1989 state Supreme Court case, the Borello test is the standard used to determine whether a worker is an employee or an independent contractor. California Trucking Association v. Su, No. 17-55133
Reasonableness of refusal to accept job considered in nixing TTD – Florida
In Employbridge v. Rodriguez, the 1st District Court of Appeal overturned an award of temporary total disability benefits to an injured worker who refused a job offer because the commute was too long. In this case, a worker and her husband both worked for Employbridge, a staffing service provider. When they received a new assignment in Largo, they moved to Largo from Tampa. A few years later, the worker fell at work and injured her knee. Initially, the company accommodated her work restrictions with a clerical position at their Largo offices. She was then offered a similar position at the Tampa office, but turned it down.
A Judge of Compensation Claims found the commute between Largo and Tampa justified the decision to refuse the position and awarded TTD benefits. However, in a split decision the 1st District Court of Appeals overturned the award.
Worker wins retaliation case for filing a workers' compensation claim – Michigan
In Mitchell v. Dore & Associates Contracting (D & A), a worker broke his leg in a work-related accident and received benefits. D & A would hire workers for projects and lay them off when the job was complete. Workers believed if they were injured on the job, they'd never be asked to work again.
After the worker recovered, a former supervisor asked him to work on a project. While working he heard his supervisor speaking with the risk manager for D & A. The worker alleges the supervisor said the risk manager no longer wanted Mitchell on the project and he was never recalled to work.
While the Court of Appeals noted that causation between the workers' comp claim and layoff is difficult to prove, it found that the trial judge had properly kept information about criminal convictions and excused work absences from the jury and upheld the jury verdict that D & A had unlawfully retaliated.
Damages of $873,000 upheld in negligence suit against supervisor – Missouri
While the statute generally immunizes co-employees from civil liability for a workplace injury, if a co-employee engaged in a negligent act that purposefully and dangerously increased the risk of injury to another employee, the suit can proceed. An employee of a staffing agency was working for a manufacturer and operating a lamination machine. He noticed glue on the bottom rollers and notified the lamination line supervisor, who removed a metal grate and allegedly told the worker to clean the bottom rollers with a wet rag. (The company prohibited workers from running the machine without the guard installed, and the machine displayed a warning against operation without it.)
The worker's thumb was pulled in and crushed and he filed a personal injury suit against the supervisor and the manufacturer of the laminating machine. He settled with the machine manufacturer, and, while the other case was pending, the supervisor died, so a defendant ad litem was then substituted. Based on the jury's findings and the settlement with the machine manufacturer, the trial judge awarded $873,000 in damages. The Court of Appeals upheld the decision.
Invalid arbitration agreement means discrimination and retaliation suits can proceed – Missouri
In Caldwell v. UniFirst Corp, a worker was diagnosed with lumbar disc protrusions and herniations and given work restrictions, which the company accommodated initially. His doctor imposed more restrictions and his supervisor allegedly objected to a request for time off and repeated requests for accommodations. After surgery, the company did not allow him to return to work, but extended his medical leave, then fired him.
The worker filed suit against his former employer and supervisor, alleging discrimination on the basis of his disability and retaliation for pursuing a comp claim. The defendants moved to compel arbitration, noting that the former worker had signed an employment agreement that included an agreement to arbitrate any employment-related claims.
A trial judge denied the motion to compel, finding that the arbitration agreement was invalid and the Court of Appeals agreed. For an agreement to be enforceable each party must provide something of value to the other – some form of "consideration," which was lacking in this situation.
Employer must reimburse firm for third-party settlement of over $1 million – Nebraska
In 2008, an explosion at a Conagra Foods Inc. plant in Garner, North Carolina, killed three Conagra employees and injured more than 60 others while the food company was installing a new water heater. The company that provided a contracted engineer to oversee the project, Dallas-based Jacobs Engineering Group Inc., was sued and settled the claims after failing to obtain contractual indemnification from Conagra.
The engineering company sued Conagra and a jury in district court awarded Jacobs the full amount of the settlement payments, $108.9 million. The Supreme Court affirmed, noting the food company's "negligence was the proximate cause of Jacobs' damages" stemming from the lawsuits following the explosion.
Untimely claim denied since employer had no knowledge of injury – New York
In Matter of Taylor v Little Angels Head Start, a worker filed a comp claim more than one year after the employer had put her on medical leave. She claimed her bilateral knee condition was caused from walking between the employer's work sites and the repetitive stair climbing associated with her job duties. A workers' comp judge awarded benefits, but the Workers' Compensation Board found she had failed to give her employer timely notice of injury.
The Board can waive the thirty-day notice if notice could not be given, the employer had knowledge of the injury, or the employer is not prejudiced. While the employer knew of the knee condition, she did not tell her employer it was work-related for over a year.
Scheduled loss of use award can be adjusted for prior injuries – New York
In Matter of Genduso v. New York City Department of Education, a worker injured his right knee and filed a comp claim. He had had two previous injuries to his right knee, which resulted in loss of use awards of 20% and 12.5%. An expert opined that there was a 40% loss of use and the judge deducted the prior awards, leading to a 7.5% scheduled loss of use. The Workers' Compensation Board and Appellate Court affirmed the award.
Worker's tort claim against insurer for allegedly providing false information to the police can proceed – North Carolina
Although a workers' compensation insurer generally enjoys the same immunity from tort liability afforded the employer, there are limits to that immunity. In Seguro-Suaraez v. Key Risk Inc. Co., a worker suffered a serious brain injury in a work-related accident and suffers from significant behavioral and memory deficits. While the insurance company found the injuries compensable, it denied a request for an occupational home therapy evaluation. Over a six-month period, the company video-taped the worker, edited nine hours of surveillance to 45 minutes, and showed to a neuropsychologist, who said the worker was exaggerating his symptoms.
The Industrial Commission issued a decision in the workers' favor and the insurance company conducted an independent medical exam, which determined the symptoms were valid. In spite of this, the company directed its investigator to convince the Lincolnton Police Department to bring criminal charges against the worker – that he was obtaining his workers' compensation benefits by false pretenses. This led to his arrest and jailing and indictment on 25 counts of obtaining property by false pretenses and one count of insurance fraud. The charges were dismissed after a psychological examination to determine competency to stand trial noted conditions consistent with his documented medical history.
The Court of Appeals upheld a trial court ruling that the worker can pursue malicious prosecution, abuse of process and unfair and deceptive trade practices claims, but found the trial court erred in failing to dismiss the bad faith and civil conspiracy claims.
Return-to-Work notice requirements clarified – Pennsylvania
The Workers' Compensation Act requires an employer provide a worker with "prompt written notice" when the employer receives medical evidence that the worker is able to return to work in any capacity. Although "prompt" is not defined, the notice must give the worker a reasonable period of time before the employer requests a modification of benefits.
In County of Bucks v. WCAB (LePosa), the worker received a notice of her ability to return to work along with a letter offering her pre-injury position at the same wage, which had no expiration date. When she did not return to work, the county filed for a suspension of benefits. The Workers' Compensation Appeal Board said the county was required to prove the worker had received a notice of her ability to return to work before sending her the job offer. The Commonwealth Court disagreed since the offer had no expiration date, noting a notice of ability to work sent with a job offer letter does not, as a matter of law, render the notice not prompt.
Worker with lifetime medical care award must be weaned from opioids – Tennessee
In C.K. Smith Jr. v. Goodall Buildings Inc., an injured worker with an award of lifetime medical care from his employer received high dosages of opioids to manage pain. Several years after the injury, the doctor expressed concern about the possibility of addiction. About the same time, the employer requested a Utilization Review (UR) of the employee's medications and prescriptions and the UR Board recommended weaning down. The employee then requested a new physician panel, which a trial court approved. However, the Supreme Court's special workers' compensation appeals panel reversed that determination, stating that it would violate state code and remanded the case to trial court.
High court finds injury an advancement of preexisting condition and overturns disability award – Tennessee
In Thomas D. Flatt v. West-Tenn Express Inc., a worker fell when a coworker dropped his side of an oil-drip pan, which they were carrying together and claimed to injure his neck and left arm. The worker was in a work-related auto accident one year earlier, but maintained he was fully recovered. The trial court found the new injury was compensable and the impairments did not stem from the auto accident and awarded a 44% permanent partial disability rating.
On appeal, the trucking company had the employee undergo examination by four doctors. Upon reviewing the medical testimony, the Special Workers' Compensation Appeals Panel with the Supreme Court overturned the trial court ruling. It determined this was not a new, distinct injury, but an advancement of a preexisting condition.
Posted in UncategorizedTagged Construction, Human Resources, Insurance, Legal, Risk, Risk Management, safety, Safety Compliance, Tips, work comp, work comp claim fraud, work comp claims, Workers` Compensation, Worker`s Compensation ClaimsLeave a comment


" We got a surprised complimentary fruits in our rooms ( we had 2 rooms) as we were returning customers. That was very nice. The service and cleanliness of hotel is still spot-on. Location was great ! Highly recommend it. PS: We love the breakfast here. "
Centara Anda Dhevi Resort & Spa Krabi is set within its own extensive tropical gardens just short walking distance from hotel to Nopparat Thara Beach and is conveniently close to the centre of Ao Nang, with its shopping and entertainment facilities.
Guests can easily reach Ao Nang pier from where boats travel to nearby islands, including Phi Phi and Phuket. Krabi International Airport is 40 minutes away and Phuket International Airport can be reached in 150 minutes. The resort offers 135 rooms and suites featuring up to 92 square meters of living space and a number of Deluxe Pool units together with a Honeymoon Suite offer direct pool access.
Suitable for couples and families alike, the resort offers 135 rooms and suites. All rooms have a furnished balcony, rainfall shower and separate bathtub, a king bed/twin bed option, flat-screen LED TV with satellite cable channels, workspace desk, Wi-Fi internet access, mini-bar, coffee and tea making facilities, in-room safe, hair dryer, and individually controlled air conditioning.
With an area ranging between 34 and 37 square meters and offering a furnished balcony, this unit can accommodate up to 3 adults OR 2 adults and 1 child per room.
There is the option of a king bed or twin beds, with down duvets and pillows. The bathroom has a rainfall shower and separate bathtub. The flat screen TV has international satellite TV channels / programs, and there is Wi-Fi high-speed internet access.
Other room amenities include a workspace desk, mini-bar, tea & coffee making facilities, individually controlled air-conditioning, safe deposit box, IDD telephone, hairdryer and smoke detector.
With an area of 38 square meters and offering a furnished balcony overlooking the pool, this unit can accommodate up to 3 adults OR 2 adults and 2 children per room.
With an area of 42 square meters and offering a furnished balcony with its own sun loungers and direct access to the swimming pool, this unit can accommodate up to 3 adults OR 2 adults and 2 children per room.
Type of Cuisine : Western and Traditional Thai Cuisine.
Palm Court offers both indoor and outdoor dining options, the outdoor tables on the terrace within the shaded courtyard. The restaurant is open for breakfast, lunch and dinner. Buffet creations as well as an eclectic mix of a la carte Western and traditional Thai cuisine dishes are on offer. Themed dinner experiences are also a feature.
Type of Cuisine : Poolside Bar & Snacks.
During the day enjoy refreshments and light snacks in the pool or by your own sun bed. A variety of cocktails and snacks are available all day long.
Type of Cuisine : Afternoon Tea, Drinks & Snacks.
Relax in comfort on large sofas living-room style with daytime coffee, snacks, evening pre-dinner drinks and a nightcap.
Type of Cuisine : A La Carte.
Serving In Room Dining is available 24 hours.
Located in 12 acres of land with extensive tropical gardens dotted with ponds and shade trees, Centara Anda Dhevi Resort & Spa Krabi has an extensive range of facilities that make it suitable for individuals, couples, families and groups. Leisure amenities include a 43-metre-long swimming pool with waterslides and swim-up bar, a children's pool, kids club, fitness centre and a SPA Cenvaree. The resort's location also makes it an ideal base from which to discover Krabi with its well preserved natural environment, white sandy beaches and numerous offshore islands.
Your health and well-being is so essential in today's world. At SPA Canvaree, we put you first with pampering treatments that are both relaxing and good for you. You will find SPA Cenvarees at almost all of our hotels and resorts plus an expanding collection of spas at locations around the world.
Come visit us where you can review our programs and treatments, shop online for spa products and chat with our spa concierge about your upcoming visit and treatment needs. Put yourself first and visit SPA Cenvaree, you will soon discover why they are so Centara to your health and well-being needs.
Indoor and outdoor meeting facilities are available at the resort, with a fully equipped convention room suitable for accommodating up to 200 guests for seminars, presentations, private receptions and weddings. The extensive gardens and the poolside also offer ideal and picturesque outdoor venues.
A tailor made approach is adopted for each event, blending a calming location to enable focus, an active program to foster unity and premium accommodations to provide total relaxation and peace of mind.
If your plans for the near future include tying the knot, we can readily provide for every detail that could possibly be needed, starting from the arrangements of a traditional lustre water ceremony to the reception, and more!
Simply contact our Wedding Organizers, who come with a plethora of ideas for celebratory themes, menus and decorations, a choice of wedding packages, and a collection of albums of past events. Better yet, make an appointment to meet personally and discuss your plans for the big day at leisure.
Centara Anda Dhevi Resort & Spa Krabi is within in a 5 minutes leisure stroll to Nopparat Thara Beach and about a 15 minutes walk to Ao Nang Beach with close proximity accessibility to the piers in taking ferries and long-tail boats to the various beautiful surrounding islands and limestone formations.


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Articles Tagged with Criminal
Supreme Court adopts broad interpretation of "different occasions" provision under the Armed Career Criminal Act
Published on: March 8, 2022 | by Lasnetski Gihon Law
The Supreme Court handed down an important federal criminal law decision on March 7th, 2022 involving the interpretation of the "different occasions" language in the Armed Career Criminal Act. The Armed Career Criminal Act, 18 U.S.C. s.924(e), provides for a 15 year minimum mandatory sentence for any defendant convicted of possession of a firearm by a convicted felon if that defendant has three prior convictions for a violent felony or a serious drug offense, if those three prior offenses were committed on "occasions different from one another."
In Wooden v. United States, the Supreme Court addressed what the term "occasions different from one another," which is often referred to as the "different occasions" provision, means. In 1997, Wooden broke into a storage facility and burglarized ten different storage units. He was arrested and pled guilty to ten counts of burglary and was sentenced to eight years in prison. In 2014, Wooden answered the door to his house and a police officer asked to speak to his wife. The officer asked if he could step inside due to the chill outside and Mr. Wooden agreed. When the officer entered, he observed firearms in plain sight. The officer had previous knowledge that Mr. Wooden was a convicted felon so he arrested Mr. Wooden for Possession of a Firearm by a Convicted Felon. Mr. Wooden was indicted in federal court and convicted.
In his federal case, the federal prosecutors argued that Mr. Wooden was an Armed Career Criminal because each burglary to each storage unit happened successively and therefore were separate occasions. That is, he completed each burglary before beginning the next burglary of the next unit. Mr. Wooden's attorney argued that all ten burglaries occurred on one occasion. The District Court agreed with the government and sentenced Mr. Wooden to 16 years with the 15 year minimum mandatory sentence as an Armed Career Criminal. Without the Armed Career Criminal status, Mr. Wooden was looking at a maximum sentence of 10 years, with guidelines of around 21 months. Mr. Wooden appealed to the Sixth Circuit Court of Appeals, which agreed with the District Court. The Supreme Court granted certiorari based on a conflict between various circuits.
Posted in: Federal Crimes
Tagged: armed career criminal, Criminal and federal
Published on: March 8, 2022
Florida Police Cannot Arrest DUI Suspect Without Observing Him/Her Driving
Published on: September 30, 2016 | by Lasnetski Gihon Law
In Florida, a police officer is not normally permitted to arrest a person for DUI (driving under the influence of alcohol or drugs) unless the police officer observes the suspect actually commit the crime. This applies to standard DUI's, not DUI's involving an accident. This is not an issue in most DUI cases in Florida as DUI arrests are usually the result of a traffic stop after the police officer claims to observe the driver commit some traffic violation.
However, there are situations where a police officer comes upon a person he/she believes to be impaired, but the driver is no longer operating the vehicle or in actual physical control of the vehicle (usually characterized as being inside the vehicle in the driver's seat with the keys). In these cases, the police officer may not be able to make a DUI case even if he/she has reason to believe the suspect was recently driving the vehicle while impaired from alcohol or drugs.
For instance, in a DUI case just south of Jacksonville, Florida, a witness observed the suspect driving erratically and then come to a stop in the roadway. The witness was in the medical field and decided to stop and see if the driver needed any medical assistance. The witness got the driver out of the vehicle, obtained her keys and drove the vehicle off to the side of the road. It became apparent to the witness that the driver was impaired from alcohol. A police officer arrived when the driver and the keys were already outside of the vehicle. The police officer arrested the driver for DUI based on his observations that she was drunk and the witness's statement that she had been driving.
Tagged: Criminal and DUI

redpajama_set_name: RedPajamaCommonCrawl


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Home > The Middle: Season 8 released on DVD
The Middle: Season 8 released on DVD Posted August 15 2017
The Middle: Season 8 is available on DVD today from Amazon.com and the Warner Archive.
The three-disc manufactured-on-demand release includes all twenty-four episodes from The Middle's eighth season.
In The Middle's hit eighth season, the Heck kids continue to smash through their comfort zones and navigate new situations – which may or may not be comforting to parents Frankie (Patricia Heaton) and Mike (Neil Flynn). Axl (Charlie McDermott) may be living out of a Winnebago, but he has discovered the love of his life. Meanwhile, always-optimistic Sue (Eden Sher) has caught the acting bug in Dollywood and is changing her major to drama. Now in high school, Brick (Atticus Shaffer) has made it his mission to fit in with his peers – and not be one of the weird kids. With an emptier nest, Frankie and Mike cut back on the parental duties – which is easier said than done, as parenting continues no matter where your kids are. Balancing kids and work never really gets easier. It just gets different!
View The Middle: Season 8 DVD at Amazon.com
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The Middle: Season 7 released on DVD November 15 2016
The Middle: Season 7 is available on DVD today from Amazon.com and the Warner Archive. Read the full story
The Middle: Season 2 released on DVD September 28 2011
The Middle: Season 2 was released on DVD yesterday in the United States. The three disc set includes all twenty-four episodes from the show's sophmore season. Episodes are presented in widescreen with Dolby Digital 5.1 Surround Sound. The English audio track is accompanied with Chinese, French, Portuguese and Spanish subtitles. Bonus features on the DVD are unaired scenes and a gag reel. Read the full story
The Middle: Season 2 coming to DVD June 16 2011
Warner Home Video has announced The Middle: Season 2 will be coming to DVD on September 27. Read the full story
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