Marijuana Impact on Workers Compensation

Problem:

 

23 States and the District of Columbia have or will be approving recreational marijuana use.   Chances are more states will approve recreational use since politicians have discovered a tax gold mine from marijuana.  Unfortunately marijuana use is very dangerous.

 

Marijuana intoxication contains as many as 400 known chemicals entering the body.  Marijuana smokers inhale more deeply and keep the smoke in their lungs longer. These smoke toxins and use procedures make it more dangerous, allow for greater side effects, as well as allows for greater permanent disabilities.  One ingredient THC has increased in toxicity and causes the greatest disability of brain damage.  In 2008 it reached a high of 9.6%.  Some foreign marijuana has been found that exceeded 24%.  (Interactions with other bodily functions and prolonged use deterioration are still being developed by the scientific and medical communities.)

 

Deteriorating health and employee performance impacts from marijuana use can become part of a workers compensation injury claim. Employees under marijuana intoxication coming on the job, or becoming intoxicated on the job, have great potential to cause or create situations for on the job injuries.   Should this happen, the employer can be faced with paying weekly benefits and medical care costs.  This may even cause exposures for the  employee’s lifetime.  Remember worker compensation laws require that the employee must be brought to pre-injury status.

 

 

Employer Reliefs Minimal:

 

Most or all workers compensation acts provide the employer with relief or no responsibility for employee self-inflicted injuries.  Substance abuse with resulting health impairment has been held to be self-inflicted and workers compensation cases have been denied based on this premise.

 

Two theories stand to defeat such relief. First the state law or a decisional finding, requires the employer to take the employee as found.  This means, any underlying health condition or pathology aggravated by a compensable injury becomes the employer’s responsibility to address and correct until the employee is brought back to pre-injury status.

 

Second, all workers compensation judges and referees operate on the presumption that the employee is to be given as much leeway as possible.  The rulings and decisions are to favor the employee as much as possible.  The employers have to present extraordinary evidence In order to have any hope of prevailing with a decision in their favor.

 

State Second Injury Funds used to assist employers with reliefs from non- related injury issues.  Currently, most states funds are almost non-existent.  The few that are functional require difficult steps for relief.  Employers need to have knowledge of a pre-existing condition prior to the compensation injury.   Most funds require the employer to pay first and seek reimbursement.  Since many state fund second injury units are often under-funded, recovery may be slow.

 

 

Determining Marijuana Usage:

 

There are basic signs for the layman to suspect marijuana use and intoxication.

 

 

The following steps are some outward signs.  As with any substance, many employees can hide their use.  Do not challenge the employee or make accusations without factual investigations and toxicology studies to confirm use.

 

  1. Loss in train of thought during conversations.
  2. Increase in appetite with gorging on junk food and sweets.
  3. Lack of energy and loss of motivation.
  4. Excessive sleeping patterns.
  5. Bad sleeping habits.
  6. Possession of Drug paraphernalia. (Most users roll their own cigarettes.)
  7. Legal or financial problems.
  8. Paranoia attitudes. (Everyone is out to get me.)
  9. Slow down or poor performance of work duties.
  10. Glassy eyes or staring off into space.
  11. Slurred speech.
  12. Poor vehicle operation and lack of attention to driving rules.
  13. Tips from fellow employees.
  14. Data from accident and health claim records.
  15. Excessive use of sick time.
  16. Deterioration of personal grooming.
  17. Prolong observation of these signs. THC stays in the body for days up to weeks depending on the amount and length of use.

 

 

Develop Policy and Procedures for Marijuana Intoxication.

 

Start a policy and procedure program soon as possible.  Use a professional organization that specializes in developing and implementing the program.  Be sure the procedure conforms to good legal practice and evidence obtained will be upheld and hard to challenge by the employee.

 

Always include a toxicology study when screening new employees and require pre-employment physical examinations.

 

Join with other employers and industry associations in petitioning legislators for changes in workers compensation law that will work to bring this problem under control.

 

 

Summary:

 

Marijuana use is here and will affect workers compensation claims dramatically.   The exposure and associated cost will be monumental.  Develop a policy and procedure that will work to minimize these consequences.

 

 

 

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

 

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

Washington L&I Cites Pair of Employers

Two Washington State employers ran into expensive trouble recently.

 
The Department of Labor & Industries (L&I) cited two employers for violations that exposed workers to asbestos during the demolition of a Seattle apartment building. Asbestos can cause cancer and other fatal illnesses.

 

An L&I investigation into the Seattle project found a total of 19 willful and serious safety and health violations. As a result, together the businesses have been fined a total of $379,100.

 

Partners Construction Inc., of Federal Way, was cited for a total of 14 willful and serious violations and fined $291,950. Asbestos Construction Management Inc., of Bonney Lake, was fined $87,150 for five willful and serious violations.

 

The violations were for asbestos exposure to workers, asbestos debris left on site and other violations that occurred during demolition of an apartment building in the Fremont neighborhood. The three-story, five-unit apartment building was originally constructed with “popcorn” ceilings, a white substance containing asbestos fibers, as well as asbestos sheet vinyl flooring.

 

Asbestos is an extremely hazardous material that can lead to asbestosis, a potentially fatal disease, as well as mesothelioma and lung cancer. Removal of asbestos-containing building materials must be done by a certified abatement contractor who follows safety and health rules to protect workers and the public from exposure to asbestos. The contractor must also ensure proper removal and disposal of the asbestos materials.

 

Partners Construction Inc., a certified asbestos abatement contractor at the time, was hired by the building owner to remove the asbestos before the apartment building was demolished.

 

After several weeks, Partners provided the building owner with a letter of completion indicating that all asbestos had been removed.

 

L&I Inspectors Discover Work Improperly Done

 

When L&I inspectors responded to a worker complaint, the inspectors found that the removal work had not been done and approximately 5,400 square feet of popcorn ceiling remained throughout, as well as asbestos sheet vinyl flooring.

 

Partners came back to finish the abatement work; however, due to a prior history of willful violations, L&I was in the process of revoking Partners’ certification to do asbestos abatement work. In May, Partners was decertified and went out of business.

 

A new company, Asbestos Construction Management Inc. (ACM), owned by a family member of the Partners owner, took over the job using essentially the same workers and certified asbestos supervisor as Partners, and sharing the same equipment.

 

A subsequent L&I inspection of ACM found many of the same violations as in the Partners’ inspection. L&I led to an initiation of decertification action against ACM.

 

The employers were given 15 business days to appeal the citation.

 

Penalty money paid as a result of a citation is placed in the workers compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

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Alabama Employer Gets OSHA Citation

Fines of nearly $42,000 were recently levied against one employer in Alabama.

 
Austal USA LLC was cited by the U.S. Department of Labor’s Occupational Safety and Health Administration for 12 safety and health violations that involved fall and other hazards following a May 2014 complaint regarding the Mobile shipbuilder’s facility. Proposed penalties total $41,500.

 
“The government expects that contractors, such as Austal, should not only deliver a good product, but also conduct operations in a safe manner,” said Joseph Roesler, OSHA’s area director in Mobile. “The lack of attention to safety and health issues unnecessarily exposed employees to hazards at the Mobile facility, and these hazards need to be addressed and controlled throughout the shipbuilding process.”

 
Nine serious citations were issued for lack of standard railings on all staircases, which exposed workers to fall hazards; improperly secured gas cylinders; and failure to reduce the pressure in a compressed air device to less than 30-pounds-per-square inch when cleaning. OSHA also cited the company for allowing worker overexposure to copper fumes during welding operations. Other citations included failure to ensure workers followed safety procedures to prevent accidental machine startup and to protect workers from unguarded machinery.

 
Three other citations were issued for using temporary flexible cable instead of permanent wiring, improperly labeling hazardous chemicals and failure to ensure that temporary wiring was not damaged. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

 

Employer Cited 3 Times in Past 5 Years

 
OSHA has cited this facility three times in the past five years.

 
The company was issued citations for improper use of slings and maritime gear, poor walking and working surfaces, a lack of accident prevention signage and electrical hazards.

 
Austal USA is a global contractor, designer and manufacturer of defense and commercial ships.

 
The company has 15 business days from receipt of its citations and proposed penalties to comply, request a conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

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Physician Dispensing Associated With Unnecessary Prescribing Of Opioids

 

Cambridge, MA, Dec. 16, 2014―A new study from the Workers Compensation Research Institute (WCRI) found evidence that physician dispensing encouraged some physicians to unnecessarily prescribe strong opioids. The study analyzed the prescribing behavior after Florida banned physician dispensing of strong opioids.

 

 

The authors of the study, The Impact of Physician Dispensing on Opioid Use, expected little change in the percentage of patients getting strong opioids—only a change from physician-dispensed to pharmacy-dispensed. Instead of finding an increase in pharmacy-dispensed strong opioids, the study found no material change. Rather, there was an increase in the percentage of patients receiving physician-dispensed weaker pain medications—specifically, nonsteroidal anti-inflammatory medications (e.g., ibuprofen)—from 24.1 percent to 25.8 percent, and the percentage receiving weaker (not banned) opioids increased from 9.1 percent to 10.1 percent.

 

The study found there was a high level of compliance with the ban by physician-dispensers. Prior to the reforms, 3.9 percent of injured workers received strong opioids dispensed by physicians during the first six months after their injuries. After the ban, only 0.5 percent of patients with new injuries received physician-dispensed strong opioids. If the pre-ban strong opioids were necessary, researchers would expect that workers who received weaker physician-dispensed pain medications after the ban would later need strong opioids (that can be dispensed only at a pharmacy). But only 2 percent of those with weaker physician-dispensed pain medications in the first six months after the ban received strong opioids at a pharmacy in the next six months.

 

According to the study, the policy debate in a growing number of states has been focused on the much higher prices charged by physician-dispensers than pharmacies for the same medications. The debate has recently begun to focus on whether the economic incentives attendant to physician dispensing (like any form of physician self-referral) lead to prescribing and dispensing of unnecessary medications. Over the past 10 years, 18 states have modified reimbursement rules to reduce the prices paid for physician-dispensed drugs. Until recently, few of these states also limited the use of physician dispensing. The findings of this study raise the question of whether policymakers should consider reforms that limit the use of physician dispensing of certain medications in addition to reforms aimed at limiting the prices of physician-dispensed drugs.

 

“When we compare pre- and post-reform prescribing practices, it appears that physician-dispensers not only reduced their dispensing of strong opioids, but also reduced prescribing of strong opioids. This raises concerns that a significant proportion of pre-reform physician-dispensed strong opioids were not necessary, which means injured workers in Florida were put at greater risk for addiction, disability or work loss, and even death,” said Richard Victor, WCRI’s executive director. “Since Florida has banned physician dispensing of strong opioids, the lessons of this study are relevant for the other states concerned about eliminating unnecessary costs in their system while protecting injured workers from unnecessary medical care.”

 

This study analyzed data on the medications dispensed for injured workers covered by the Florida workers’ compensation program. It included both open and closed Florida claims. The claims were divided into two groups: pre-reform, with dates of injury from January 1, 2010, to June 30, 2010 (prior to the July 1, 2011, effective date of the ban) and post-reform, with dates of injury from July 1, 2011, to December 30, 2011 (immediately after the ban). The data included 24,567 claims with 59,564 prescriptions in the pre-reform group and 21,625 claims with 52,747 prescriptions in the post-reform group.

 

For more information about this study or to purchase a copy, visit http://www.wcrinet.org/result/PD_opioid_result.html.

 

 

ABOUT WCRI:

 

The Workers Compensation Research Institute (WCRI) is an independent, not-for-profit research organization based in Cambridge, MA. Founded in 1983, the WCRI is recognized as a leader in providing high-quality, credible, and objective information about public policy issues involving workers’ compensation systems. WCRI’s diverse membership includes employers; insurers; governmental entities; managed care companies; health care providers; insurance regulators; state labor organizations; and state administrative agencies in the U.S., Canada, Australia, and New Zealand. For more information, visit: http://www.wcrinet.org.

 

 

Vietnam’s Construction Ministry Tightens Safety Measures

Officials in Vietnam are heightening their efforts to protect workers.

 
The Construction Ministry recently said it would suspend all works that cannot ensure safety standards for workers and the general public.

 
In a communique sent recently to other ministries as well as provincial and city administrations, the ministry called for immediate dissemination of the National Standard for Construction Safety developed in September.

 
It also asked provincial and city administrations to carry out strict inspections of safety standards in construction works, focusing on equipment, including cranes and scaffolding in urban areas.

 

Contractors and Investors Not Following Safety Regulations

 
The ministry noted that reports of several construction accidents, including collapsed cranes and scaffolding that have killed people and damaged property, showed that contractors and investors were not following safety regulations.

 
In a recent accident, one man was killed and two others injured when a steel beam dropped from a crane at the construction site of the urban railway project in ThanhXuan District.

 
The Ministry of Transport has suspended the project pending investigation and assessment of safety standards.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

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Cal/OSHA Cites Fuel Distributor Following Fatal Blast

The death of one worker and major injuries to another recently led California officials to site the employer of the pair.

 
Cal/OSHA cited fuel distribution company National Distribution Services Inc. (NDS) $99,345 following an investigation into an explosion at the company’s Corona facility that killed one employee and left another with severe burns.

 

The owner of the company has been previously cited for similar incidents.

 
On May 6, 2014, two employees attempted welding operations on a 9,000-gallon tanker truck containing an unknown amount of crude oil. The tank had not been purged or tested for flammable vapors, resulting in the explosion.

 
Samuel Enciso, 52, was a welder who had been with NDS for four years. He was found dead on the floor of the facility with his right hand and lower arm completely severed.

 
A second employee with five years of experience suffered burns to more than 50 percent of his body.

 

 

Safety Procedures Were Lacking

 
Investigators from the San Bernardino Cal/OSHA District Office determined that NDS contributed to this incident by failing to have required safety procedures in place for working with flammable vapors.

 
Additionally, investigators found that NDS failed to train employees on the dangers of welding near combustible materials.

 
“California requires employers to have and adhere to an Injury and Illness Prevention Program” said Christine Baker, director of the Department of Industrial Relations (DIR).

 
Cal/OSHA, formally known as the Division of Occupational Safety and Health, is a division of DIR. “This preventable death is a reminder of what can happen when that requirement is ignored,” said Baker.

 

Previous Explosion at Facility

 
While investigating the May 6 event, investigators learned about a previous explosion at the Corona facility that occurred under similar circumstances, and involved the same two NDS employees.

 
On Sept. 25, 2012, the lid of a fuel tanker blew through the ceiling of the repair facility after the employees commenced welding on a truck filled with flammable vapors. No injuries occurred on that date.

 
“Enforcement of California safety laws sends a message to non-compliant employers,” said Juliann Sum, acting chief of Cal/OSHA. “You cannot cut corners when it comes to worker safety.”

 
The Federal Motor Carrier Safety Administration served NDS with an emergency restriction order on August 14, prohibiting the company from using cargo tank motor vehicles. The company appealed the order in September.

 
The owner of NDS, Carl Bradley Johansson, served prison time following a previous similar incident.

 
In the 1990s, Johansson operated a business in Montebello known as Atlas Bulk Carriers. On Sept. 27, 1993 there was an explosion involving welding operations on a fuel tanker that had also not been purged or tested.

 
This incident also took the life of a welder employed by the company. Atlas Bulk Carriers was cited by Cal/OSHA for this incident.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

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EEOC Speaks Out on Workers Compensation ADA Obligations

Employers Must Begin Interactive Process for Return to Work Sooner Than Thought
Dated: December 4, 2014

[WorkCompRoundUp is authorized to provide this information on behalf of EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD.]
EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD Provide Guidance on When Employers Must Start Discussion Regarding Return to Work Accommodations

 

This may be surprising news for some readers: In workers’ compensation, MMI should not be viewed as the trigger for ADA-related protections and obligations.

 

Background: A common practice in workers’ compensation claims management may not be legal. Employers / claims organizations that postpone the reasonable accommodation process until an injured worker’s medical condition has reached MMI (maximum medical improvement) may be violating the ADA, now that the definition of “disability” has been broadened. Prior to MMI, if medical restrictions have been established by the treating physician, employers often decide whether to offer temporary transitional work without involvement of injured workers. If not, the workers remain out of work – and may end up losing their jobs. Jennifer Christian, MD, MPH who chairs ACOEM’s Work Fitness & Disability Section, asked Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC about this. She was surprised to hear that the ADA does apply at any time – whenever a medical condition has the potential to significantly disrupt an employee’s work participation. This means that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process. Christian and Konopasky agreed to co-author a brief summary of the way these two programs interact during the post-injury period, which appears below. Please forward this on to anyone who needs to know.

 

In the Worker’s Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker’s Compensation and ADA legal issues concurrently.

 

This is because an employer’s reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee’s ability to work. If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

 

Although the employer can stop at this point to determine whether the individual is a “qualified individual with a disability,” it may not be worthwhile. Since employees with workers’ comp injuries are already employed at the time of injury, one can presume they meet the requirement of being “qualified” for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA “disability.” An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

 

Thus, whether or not the worker’s condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer’s obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA. For more details about specific times when the ADA may apply, read below.

 

1. At the time a person is injured.
No matter whether the resulting condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense. Examples might include specialized equipment, removal of non-essential job functions, and special scheduling. Individualized assessment is a key precept of the ADA, so a blanket policy is not appropriate. Employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA. It should be noted, though, that the ADA cannot be used to deny a benefit or privilege to which the employee is entitled on a separate basis. If, for example, the individual has other types of leave available at his or her discretion, whether paid (such as vacation leave) or unpaid (such as FMLA leave), the employer cannot deny that leave based on the fact that he or she could remain on the job with a reasonable accommodation.

 

2. While recovering out of work due to injury
The ADA may apply as soon as the worker’s condition becomes stable enough that on-the-job reasonable accommodations might allow the individual to perform the essential functions of the job (whether or not there has been a formal declaration of MMI). A blanket policy is not appropriate at this juncture, either. At this point, the employer should re-engage the interactive process to determine whether a reasonable accommodation would allow the individual to return to their usual job. As mentioned above, employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA.

 

3. When the individual has exhausted his or her leave and workers’ compensation benefits, and is still unable to return to the original position, even with an on-the-job reasonable accommodation.
At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation, such as additional unpaid leave or, if the individual is not expected to regain the ability to do the essential functions of his or her current position, reassignment to a vacant position (if one is available). Again, a blanket policy is not appropriate.

 

In summary, legal obligations under Worker’s Compensation and ADA legal issues should not be assumed to be sequential, because they may run simultaneously. Duration is not the key issue; the main issue is the nature of the condition and its impact on the ability to function at work.

 

 

CLARIFICATION To MEMO dated December 4, 2014
Dated: December 11, 2014

The EEOC’s Aaron Konopasky and I were glad to see many thoughtful comments in response to our message about the ADA in workers’ compensation last week in the forums where it was posted. Our summary was primarily written to dispel two common myths:

  1. In workers’ compensation, the time to think about the ADA is at MMI. This is NOT true. MMI is late among several points in the post-injury timeline when the ADA needs to be considered.
  1. The ADA’s requirement for an interactive process doesn’t apply in decision-making about transitional work assignments. This is NOT true. Injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

 

However, based on the comments we have received, we want to clarify that the ADA has several other significant implications for how employers should respond to existing employees who develop health problems. The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another. The fundamental purpose of the ADA’s employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved — whether workers’ compensation, FMLA, sick pay, or disability insurance programs. A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

 

Here are 5 more practical implications for management of ALL types of health-related employment situations:

 

  1. As the Federal agency that enforces the employment provisions of the ADA, EEOC’s biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work — doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers — should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

 

  1. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer’s vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation — even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

 

  1. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

 

  1. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers’ compensation—

 

A.  Temporary Total Disability (TTD) Benefits – There is little difference between cash payments under workers’ comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

 

  1. The doctor wrote “no work” because their patient’s medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better;
  2. The doctor wrote “no work” because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis;
  3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily.
  4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work.

 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

 

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits -These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

 

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a “usual” 90-day limitation policy that provides for an individualized assessment of the individual’s situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee’s TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

 

 

Please note that this material is an informal discussion and does not constitute an official opinion or interpretation of the EEOC.

 

 

Aaron Konopasky, J.D., Ph.D
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
Email: aaron.konopasky@eeoc.gov

 

Jennifer Christian, MD, MPH
President, Webility Corporation
Chair, Work Fitness & Disability Section
American College of Occupational & Environmental Medicine
Email: Jennifer.christian@webility.md

 

If you would like to hear directly from the EEOC, inquiries can be submitted by mail to:

EEOC Office of Legal Counsel
131M Street, NE
Washington, DC 20507

 

Download A Printable Copy of This Memo

The Prohibited Acts Doctrine: Do Not Pass GO; Do Not Collect $200

monopoly.imagesThe Prohibited Acts Doctrine is used in workers’ compensation cases as a primary liability defense.  While this defense is something every claims management team should explore in workplace injuries, it is often difficult to employ successfully.

 

 

A Hypothetical

 

Consider the case of a truck driver.  As part of the hiring process, the employee underwent a three-day orientation and received a copy of the employer’s policy manual.  The manual included a number of statements concerning employee conduct, which included a prohibition of the “possession or consumption of alcoholic beverage while on company property, using company equipment, or traveling for work.”

 

Shortly after employment begins, the employee stopped in central Kentucky for a two-day layover.  On the first full day of his layover, the employee wanted to watch the big basketball game and was told by an attendant at the truck stop he was staying that there was a bar about one mile away that had the game on the television.  That afternoon he walked to the bar to watch the game and consumed “a few alcoholic drinks.”

 

While walking back to the truck stop, a car with bright lights approached the employee, slowed to a crawl, and then accelerated causing him to jump back.  The employee fell off the road into a ditch hitting the base of his spine.  A workers’ compensation action was initiated related to this incident and primary liability was denied based on the Prohibited Acts Doctrine.

 

Sounds like a clear-cut case for the defense, right?

 

 

Application of the Prohibited Acts Doctrine

 

As a general rule, an employer/insurer can successfully use the Prohibited Acts Doctrine “where an employer expressly prohibits the doing of a certain specific act, the disregard of which is not reasonably foreseeable to the employer, a violation thereof takes the employee outside the scope of his employment and injuries resulting therefrom are not compensable even though the act might be considered to be in furtherance of the employer’s business.”[1]  Whether the employee’s performance of a prohibited act takes the employee outside the sphere of the employment depends, in part, on the nature of the act or conduct, which is prohibited.  Not every safety rule limits the scope of employment.  The less hazardous the conduct prohibited by the safety rule, the more likely the rule proscribes conduct within the scope of employment.  The more routine or minor the prohibited conduct, the more foreseeable it is an employee will violate the rule.[2]

 

Based upon the general application of the Doctrine, an employer and insurer asserting this defense in the above hypothetical would likely not prevail.  Even if consuming alcohol is prohibited, courts will often look to other factors such as the nature of one’s employment, rules considering traveling employees and other factors such as the surface or condition that play a role in the subsequent injury.

 

 

Tips to Successfully Asserting a Defense

 

Cases involving a Prohibited Acts Doctrine are complex, fact dependent and vary in each jurisdiction.  Employees are also given some latitude by the courts when the defense is asserted.  It is important to remember the following considerations associated with the defense:

 

  1. Each case should be analyzed on its own merits and fact. Other factors that make it a difficult defense to assert successfully include obtaining information and testimony from eyewitnesses and specific documentation or prohibitions by an employer.  Just because something is prohibited does not mean one will be successful when asserting the defense.
  2. Practitioners should also note that the prohibited act must also be causally connected to the injury. An injured worker will likely succeed in their claim if the prohibited act plays little to no role in the injury.
  3. Cases involving a prohibited acts defense may also include other defenses such as possible intoxication or the foreseeable activities of traveling employees.

 

[1] Bartley v. C-H Riding Stables, Inc., 206 N.W.2d 660, 663, 26 W.C.D. 675, 678-80 (Minn. 1973)

[2] Otto v. Midwest of Cannon Falls, 59 W.C.D. 25, 35 (W.C.C.A. 1999)

 

 

 

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

SALES TO PAY FOR ACCIDENTS CALCULATOR:  http://reduceyourworkerscomp.com/sales-to-pay-for-accidents-calculator/

MODIFIED DUTY CALCULATOR:   http://reduceyourworkerscomp.com/transitional-duty-cost-calculators/

WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/

SUBSCRIBE: Workers Comp Resource Center Newsletter

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

New Zealand Employer Hit with $37K Fine

The price of not practicing workplace safety to its entirety has cost one New Zealand company a stiff fine.

 
Kernohan Engineering Ltd was recently fined $37,000 and ordered to pay reparation of $20,000 after a worker had his hand crushed by a 1.8 ton housing block.

 
The housing block, which is a rectangular block of steel used to help support large cylindrical rollers, toppled forward from a forklift as it was being re positioned during planned maintenance at a fiber board factory near Rangiora in December 2013.

 
Michael Livingstone instinctively tried to stop the block falling by putting his right hand on its top corner. His hand became trapped between the block and the heel of the forklift fork. He suffered crush injuries and multiple fractures that have left him with restricted mobility and a weak grip.

 
Kernohan Engineering was sentenced in the Christchurch District Court under the Health and Safety in Employment Act for failing to take all practicable steps to ensure the safety of employees and contractors.

 

Job Safety Analysis Was Missed

 
WorkSafe New Zealand’s Chief Investigator Keith Stewart says moving the 1.8 ton housing block was clearly hazardous work and a job safety analysis should have been done beforehand.

 
“A proper job safety analysis would have identified the risks and the best way to minimize those risks before anyone was in harm’s way. It would have identified the need to stabilize the housing block and ensured the proper equipment was used.

 
“In this case a crane should have been used to support and stabilize the housing block from above to prevent it toppling.

 
“This case is a reminder of the importance of taking the time to do proper analysis and planning before undertaking such dangerous work,” added Stewart.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

WORK COMP CALCULATOR:   http://www.LowerWC.com/calculator.php

MODIFIED DUTY CALCULATOR:   http://www.LowerWC.com/transitional-duty-cost-calculator.php

WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/

SUBSCRIBE: Workers Comp Resource Center Newsletter

Workers Compensation Second Injury Fund Alert

Problem

Employers get little to no relief from state workers compensation second injury funds.  Many state second injury laws are weak, ill defined, are hard to penetrate, and may lack proper funding. Rules and regulations make it hard for a claim to be  acceptance by a second injury fund..

 

Funding programs for second injury funds vary greatly. Some are funded from insurance carrier premium assessments.  Others are funded from state budgets and legislative action.  Most funding programs may fail to meet the fund exposures or liabilities.  This means that even if a claim is accepted by a fund, the employer may not be able to recover their expended funds. The employer has to handle and pay the claim before seeking reimbursement from the second injury fund.

 

 

Background and Liability

Second Injury Funds and rules became prevalent after World War II as a program to induce employers to hire handicapped veterans.   By then workers compensation law, legal precedent, and regulation had clearly established that the employer took the employee as is.  This meant any employee with an underlying pathology or disability, who sustained a compensable injury which aggravated or increased the overall heath or disability costs had to be borne by the employer.

 

The second injury fund program gave the employer relief from the expense of the aggravation or increased disability. The fund would take over the claim handling and cost after certain set periods of time or at the end of normal work injury recovery periods.

 

Despite the current calls for employers to hire veterans, states have done little to nothing to bring second injury funds up to standard to ease the employer’s burden for military injuries.  As a result all veterans, especially Iraq and Afghanistan veterans are meeting hiring resistance.

 

More states are moving to legalize marijuana for recreational purposes.  The user’s health consequences will present great challenges to the employer.  Unlike tobacco and alcohol, marijuana effects can remain in the body for several days.  The dangers for permanent injury by marijuana are not being publically exposed like tobacco and alcohol.

 

 

A Strong Policy is Mandatory

Most second injury funds require that the employer has knowledge of the employee’s pre-existing condition prior to the compensable injury that invokes increased disability.  Employer knowledge can be established through: pre-employment physical examinations, prior compensable claims where the condition became known, accident and health claims (care needs to be invoked due to privacy law and rules), employees volunteering information on job applications, or in the course of employment. A private investigator might also be of assistance to review the employees’ disability background.

 

When the employer learns of the pre-existing condition the personnel file needs to be documented.

 

It is strongly recommended that the policy be well written, cover all know current contingencies, and be firmly adhered to.  It is best to have professional assistance from legal counsel, or organizations specializing in developing such programs.

 

When an injury occurs that might cause exposure for aggravation and increased disability, it is suggested that the file be given strong medical management by professional medical managers.  They will know the basics as to how to develop information for submission to the second injury fund.

 

 

Get Involved Legislatively

There needs to be pressure put on legislative bodies to fund and revamp second injury funds.   Explore what groups or organizations might be actively working for legislative action in the second injury fund legislation.  Determine which groups might be advantageous to support.  Then move forward to add assistance.

 

 

Summary

The financial exposure is growing for pre-existing aggravation and increased disability for workers compensation claims.   It is becoming harder for employers to recover claim costs from state second injury funds. Strong policies must be developed and adhered to for pre-existing conditions exposure. Use professional help to develop and implement policies, and keep them current with annual reviews. Finally, join effort groups working to accomplish legislative funding and reform.

 

 

 

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

SALES TO PAY FOR ACCIDENTS CALCULATOR:  http://reduceyourworkerscomp.com/sales-to-pay-for-accidents-calculator/

MODIFIED DUTY CALCULATOR:   http://reduceyourworkerscomp.com/transitional-duty-cost-calculators/

WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/

SUBSCRIBE: Workers Comp Resource Center Newsletter

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

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