Apparently not accordingly to Tom Robinson, J.D., writer for Lexis-Nexis Workers’ Comp Law Center. Here’s what he reveals . . .
Here’s What Happened
Wilson, a Clark County (Nevada) firefighter, filed a workers’ compensation claim with his employer for prostate cancer. Prior to the filing of Wilson’s claim, three other Clark County firefighters filed similar claims for prostate cancer and received compensation for an occupational disease.
Wilson worked with the three firefighters for seventeen years and was exposed to similar conditions, chemicals, and carcinogens. Unlike the three other firefighters, however, Wilson’s claim was denied.
Wilson appealed the Hearing Officer’s denial of his workers’ compensation claim. Appeals Officer Richins denied Wilson’s claim because (1) an independent medical examiner offered persuasive medical evidence contradicting Wilson’s allegations, and (2) Wilson failed to prove that he was exposed to carcinogens that were reasonably associated with the development of prostate cancer as required by NRS 617.453.
Wilson then filed a complaint pursuant to 42 U.S.C. § 1983 in federal court alleging Ayers, Stephens, and Richins-who apparently had prior knowledge of the three other firefighters’ successful claims-denied Wilson of his civil rights and conspired to do the same [while it is clear from the reported decision that Richins was the Appeals Officer who denied Wilson's claim, it is unclear what relationship Ayers and Stephens had to Wilson's workers' compensation claim].
All three defendants moved to dismiss on the grounds that Wilson failed to serve Defendants within 120 days after the complaint was filed [Federal Rule of Civil Procedure 4(m)]. Additionally, Richins argued Wilson’s claims should be dismissed because they were barred by 42 U.S.C. § 1983′s statutory language, judicial immunity, and the exclusive remedy provisions of Nevada’s workers compensation statutes.
Here’s How the Court Ruled
In Wilson v. Ayers, 2009 U.S. Dist. LEXIS 57692 (D. Nev. July 7, 2009), the federal district court, finding that Richins, Ayers, and Stephens were eventually served, that it was highly unlikely that the defendants would be prejudiced by continued litigation, and that Ayers and Stephens failed to advance any additional arguments supporting dismissal, denied Ayers’ and Stephens’ motions (although the district court granted the defendants 30 days to file additional motions).
The district court granted Richins’ motion to dismiss on multiple grounds.
First, it indicated that because Wilson sued Richins in her official capacity as an employee of a state agency, Wilson effectively sued the state. Under § 1983, a plaintiff may bring a suit only against a “person.” The court said that the state, however, was not a “person” under 42 U.S.C. § 1983 and a state employee sued in her official capacity was also not a “person.”
Second, because Richins was a Hearing Officer who hears appeals and renders decisions, Wilson’s claim was barred by judicial immunity. The purpose of judicial immunity was to ensure an objective and independent judiciary by relieving judges from the threat of civil liability and protecting the finality of their judgments from collateral attacks by disgruntled litigants. (workersxzcompxzkit)
Third, to the extent that Wilson was also asserting a state claim for workers’ compensation benefits, his suit was barred by the exclusive remedy provisions of NRS 617.017 and NRS 617.200. Finally, Wilson’s suit against Richins was barred by the Eleventh Amendment. The state of Nevada had not waived immunity from suit conferred by the Eleventh Amendment.
See generally Larson’s Workers’ Compensation Law, §§ 100.01, 100.03.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
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As you probably already know, the first step in reducing your workers' compensation costs is implementing a well-thought-out program, one including:
- Specific duties within your company
- A regulated injury-response system
- A systematic post-injury follow up
- Accurate and thorough documentation throughout the process.
If you are a large company, you may choose to use a third-party administrator (TPA) to handle some of the nitty-gritties, so to speak. But, your TPA must be aware of your new program. They must part of the team. The Workers Comp Kit suggests informing the TPA of your new program is something can be done through email. Many communiqué should be on paper, or at least printable documents, but simply informing the TPA can be more causal. A copy should go to the TPA AE. We suggest explaining the following:
- First, your new program's goal is to reduce workers' compensation costs, which implies returning employees to work as soon as possible.
- Next, note you have added a part-time medical director to enhance the quality of the treatment your employees receive. This is not to reduce medical provider fees, but to expedite return to the workforce.
- Be polite. Inform your TPA you are looking forward to a close relationship.
- Inform them the first phase of the program involves developing a team of qualified individuals and you want them on your team.
- The team meets weekly. Include the time, date and method (likely a conference call) for these meetings. (workersxzcompxzkit).
- Ask them to respond quickly to be sure they are on board.
- Close, again, with your company and contact information.
Author: Robert Elliott, J.D.
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Medical payments in Maryland per workers’ compensation claim are among the lowest of 14 states. According to a new study by the Workers’ Compensation Research Institute (WCRI), a main driver was lower prices paid for all major non-hospital services related to the lower fee schedule rates
The study, Monitoring the Impact of Fee Schedule Changes in Maryland: CompScopeTM Medical Benchmarks, 9th Edition, observed that Maryland implemented three changes to its non-hospital provider fee schedule between 2004 and 2008. The study analyzes claims with experience as of March 2007 and captures the impact of the first two changes, including the 2006 change that substantially increased the rates for orthopedic and neurological surgeries.
WCRI observed prices paid for major surgery services increased 21% from 2005 to 2006, corresponding to the 2006 fee schedule change. Previously, the prices paid for major surgery services decreased nearly 40% from 2003 to 2005, related to the significant reduction in fee schedule rates in September 2004.
The average price paid for major surgery services in Maryland was still among the lowest of the 14 study states in 2006 despite the significant price increase in that year. This is not a surprising result given that, according to WCRI’s Benchmarks for Designing Workers’ Compensation Medical Fee Schedules: 2006 study, the surgery fee schedule rate in Maryland was still among the lowest in the nation, even after the 2006 increase. In addition, the percentage of claims with major surgery in Maryland was among the lowest of the 14 states throughout the study period.
Furthermore, a main driver of the rapid growth in total medical costs per claim in 2005 and 2006 was double-digit rate increases in hospital payments per inpatient episode in that period.
One possible factor underlying this trend might be the transition to the All Patient Refined-Diagnosis Related Groups (APR-DRG) system in hospital rate setting beginning in July 2005. This new grouping system provides a more detailed classification of a case’s severity and risk of mortality, and may lead to differing case-mix weights and hence differing rates than used in the pre-2005 methods. Despite the increases, the average hospital payment per inpatient episode in Maryland was still lower than many study states in 2005 for claims with 24 months of experience.
Utilization for most non-hospital services was typical in Maryland, except for physical medicine services, which were higher than typical. In addition, hospital outpatient care was used less frequently in Maryland than in many other study states. Among the cases with such care, the average hospital outpatient payment per claim in Maryland was among the lowest of the 14 states. These results all contributed to the lower medical costs per claim in Maryland.
While employers in Maryland paid less for medical costs per claim, injured workers in the state reported generally typical outcomes, according to WCRI’s Comparing Outcomes for Injured Workers in Michigan 2009 study, which contains worker outcome results for Maryland for comparison. Despite the lower fee schedule rates, workers in Maryland reported typical access to care and satisfaction with care when compared with other states in that study.
Maryland injured workers also reported typical physical recoveries and fairly typical return-to-work rate and speed. In general, the Maryland workers’ compensation system provided both workers and employers with a better value proposition compared to other states studied.
In addition, the study found that utilization for physical medicine services in Maryland was higher than typical, driven by more visits per claim compared to other study states. Over the study period, the number of visits per claim for physical medicine in Maryland had steady, small increases each year. (workersxzcompxzkit)
This result masks offsetting trends: the number of visits per claim for physical medicine services provided by chiropractors decreased 15% from 2001 to 2006, while the number of visits per claim for physical medicine services billed by other non-hospital providers, such as physical/occupational therapists and physicians, increased 20% over the same time period.
Author: Robert Elliott, J.D.
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Reducing Workers Comp Cost Using Rehabilitation Assessments: Visual
As discussed previously, part of assigning an injured worker to transitional duty is the factor of “medical readiness” to assume a modified duty job. Thus, it is important to know an injured worker’s physical capabilities and strengths.
Let’s look at the third area of significant physical assessment.
- Hand Strength
- Isometric Leg Lift and Arm Lift
- Visual Estimation of Effort
What is the Visual Estimation of Effort, and Why Should You Care About It?
During a lifting assessment the so-called visual estimation of effort (VEE) is the most widely used method of classifying validity of effort. So what is this estimation, and how accurate is it? In the VEE, a trained therapist visually monitors a claimant during an functional capacity evaluation (FCE) and attempts to determine, visually, if the claimant is working at a maximum level and if the claimant is cooperating.
Studies nearly 30 years ago found untrained college students in Sweden could determine with accuracy, above the level of chance, as to whether a person was having true difficulty during a lifting task or was “faking” difficulty.
In the United States, one of the rare references to accuracy of the method found maximal performances were correctly identified in 46% to 53% of healthy subjects and in 5% to 7% of chronic back pain patients evaluated in a study published in Spine.
In a current study being submitted for peer review, it was found trained therapists and untrained health care professionals who never did an FCE achieved the same level of accuracy, slightly above the level of chance, in classifying effort as did lay subjects taking part in the study. (workersxzcompxzkit)
In other words, being a trained professional does not quarantee accuracy in classifying effort.
Author: Darrell Schapmire, MS of X-RTS Software Products & Testing Devices develops distraction-based tests for use in functional capacity evaluations. He can be reached at dschapmire@yahoo.com or www.exrts.com
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New York Employer Nabbed in Certificate Scheme
New York State Insurance Fund officials reported the arrest of the owner of a Suffolk County flooring company who allegedly provided a general contractor with phony certificates of insurance indicating he had workers’ compensation coverage when in fact he did not.
The man’s company was hired as a subcontractor by another contractor who was insured by NYSIF. The defendant is accused of submitting two fraudulent certificates to the hiring contractor falsely indicating he had coverage with NYSIF.
The alleged fraud resulted in additional premiums of over $1,000 being charged to the hiring contractor.
The defendant was charged with fraudulent practices, a felony violation of the Workers’ Compensation Law. Investigators say during their investigation, the employer allegedly admitted preparing the false documents. He was released on his own recognizance and awaits further court action. (workersxzcompxzkit)
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New York State Insurance Fund Welcomes Grant Winners to Accept Free Safety Training New York State Insurance Fund (NYSIF), Executive Director James Wrynn congratulated policyholders who received youth education and training grants from the United States Department of Labor this summer and extended an offer to assist these organizations with on-site youth worker safety training services. NYSIF offers free workplace safety training to help workers avoid work-related injuries. As the state's largest workers' compensation insurance carrier NYSIF has one of the most qualified teams of safety and loss control specialists anywhere. Approximately $114 million in grants went to 183 community organizations nationwide in the department's YouthBuild program. The program helps out-of-school youth to obtain their diplomas or GEDs while providing occupational training in the construction industry. NYSIF reached out with a written invitation to grantees in New York State who hold NYSIF workers' compensation insurance policies, inviting them to have a NYSIF safety specialist conduct on-site training geared toward construction safety for young people and teen worker safety in general. The YouthBuild program helps at-risk youth acquire leadership skills and participate in community service while building and renovating affordable housing in their communities. With about 37% of the workers' compensation market in New York, NYSIF has a large base of construction company policies and experience within the industry to help young people work safely on construction sites. (workersxzcompxzkit) NYSIF has among the largest number (at 56) of New York State Department of Labor Certified Safety Consultants on staff, and has partnered with the Occupational Safety and Health Administration in providing certified outreach training across a broad spectrum of general industry. Author: Robert Elliott, J.D.
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The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced publication of a notice of proposed rulemaking in the Federal Register to approve a new Illinois state public employee protection plan. The Occupational Safety and Health Act of 1970 at 29 CFR Part 1956 allows states and territories to establish plans covering only state and local government employees, who are excluded from federal coverage. Once a state plan is approved federal OSHA funds up to 50% of the program's operating costs. To be eligible for initial (developmental) approval as a public employee-only state plan, a state must be able to operate an occupational safety and health program that is, or will be, at least as effective as the federal program. Illinois has applied for approval to develop a public employee-only occupational safety and health program to be administered by the Illinois Department of Labor. The Federal Register notice provides a 30-day comment period and offers an opportunity to request an informal public hearing. If the plan is approved, Illinois will become the fourth state, along with Connecticut, New Jersey and New York, and the Virgin Islands to operate a safety and health program specifically for public employees. An additional 21 states and Puerto Rico have programs covering both public and private sector workplaces. "The Illinois Department of Labor is to be commended for taking this step forward to provide protection for its public sector workers," said acting Assistant Secretary of Labor for OSHA Jordan Barab. "This should serve as a model for other states interested in maintaining the safety and health of their public workforces." The plan, if approved, will cover more than 1 million public workers, including approximately 161,200 state government workers and roughly 690,000 municipal workers, and workers in the public education sector. Private sector workers will remain under the jurisdiction of federal OSHA. Author: Robert Elliott, J.D.
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Nine Useful Tips
1. To really get a grip on managing your company’s workers’ compensation costs, division of labor is critical. Most importantly, the division of labor must be specific and have at least the appearance of permanence.
2. Giving a regular, trusted manager an additional title or responsibility will only be an asset to her resume. In some cases a position will need to be created.
3. “Floating” responsibilities or merely suggesting them to employees only guarantees you miscommunication and confusion at a time when you want neither.
4. Primary injury responsibilities fall under the heading of “injury coordinator.” If your company is large enough, you will want to include supervisors, mid-management, and legal and medical positions.
5. Naturally, some of these posts require job-specific training on matters of workers’ compensation. Some require additional professional certification.
6. It cannot be underestimated how much the strength of these precautions can save a company in the event of catastrophic accidents.
7. Unrelated employees may also be included in the structure as they, too, may have responsibilities and roles to perform in the event of a work-related incident. Each person should feel like a member of a team to aid in thorough and rapid documentation – not to mention first aid.
8. As a general rule of thumb good managers occasionally praise employees for accepting additional responsibilities. A feeling of pride and leadership are never mistakes in a well-run company. (workersxzcompxzkit).
9. Workplace injury roles and responsibilities discussed here are broad enough to apply to virtually every type of business, but they can also be customized and integrated in order to dovetail with your specific company’s way of doing business.
Author: Robert Elliott, J.D.
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Employee Must Pay Back $10,000 in Workers' Comp Fraud Case A retired sergeant with the San Joaquin County, California Sheriff's Office offered a plea of no contest to misdemeanor workers' compensation fraud charges for allegedly drawing disability payments while working on his Montana retirement home. A judge ordered the 51-year-old retiree to pay back $10,000 and serve one year probation as part of the negotiated plea deal. The defendant initially was looking at two felony counts on charges he fraudulently collected $56,000 in compensation payments. (workersxzcompxzkit) According to the San Joaquin County Deputy District Attorney's Office, investigators saw the defendant working on his Montana home even though he was receiving workers' comp benefits on a claim he had physical limitations. Author: Robert Elliott, J.D.
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WorkSafeBC Releases Safety Report for Forest Workers and Public Use WorkSafeBC (British Columbia, Canada) released the Resource Roads Demonstration Project with recommendations on improving worker safety on resource roads by focusing on the organization and implementation of a management structure to provide a system of coordination and a process of safety compliance for users of the defined road systems. The project was conducted in the Prince George forestry region and the oil and gas fields southeast of Fort St. John, covering more than 600,000 kilometers of resource roads, commonly known as "logging roads," "forest service roads," "petroleum development roads," or "industrial roads" used to access remote parts of the province. Built primarily to support industry, the roads are used frequently by the public for recreational purposes. Pat Bell, minister of Forests and Range said the government is committed to maintaining high safety standards to protect both forest workers and the public and the new road safety committees are the latest in a series of initiatives to improve safety on Sorest Service roads, including speed enforcement through expanded use of radar guns and funding for repair and upgrades. Accident and Fatality Prevention Goal From 1999 to 2009 motor vehicle incidents claimed 68 lives in the Forestry and Oil/Gas industries; 53% of those fatalities were on resource roads. The most common types of vehicles involved in resource road fatalities are log trucks (47%) and pickup trucks/crummy vans (41%). The most frequent type of collisions was rollovers, accounting for nearly 64% of fatalities. "WorkSafeBC and its partners believe fewer workers will be killed or seriously injured on resource roads as a result of this project," said Betty Pirs, WorkSafeBC's executive director of Prevention. "We are committed to working with our government and industry partners to implement the recommendations across the province." Recommendations were made to WorkSafeBC, the Ministry of Forests and Range, the BC Forest Safety Council, Enform, and employers requiring workers to travel on resource roads.
- Establish Road Safety Management Committees throughout the province as the administrative structure for safety on resource roads
- WorkSafeBC taking a leadership role to ensure any system put in place for road administration is compliant with the Workers' Compensation Act
- Review and use new technology appropriately by all road users
- Electronic stability control becoming a standard on light duty trucks and other vehicles when feasible
- Identity driver training standards, implemented, and enforce.
- Put in place Subcommittees or Road User Groups (RUGs) at an operational level where work is occurring within each unique road system or road network.
The project concluded a critical success factor is the participation of the road owner (i.e., Ministry of Forest and Range, the Oil and Gas Commission, or others) in any road safety management initiative. The entire report is available for download at WorkSafebc.com http://www2.worksafebc.com/Portals/Petroleum/ResourceRoads.asp Author: Robert Elliott, J.D.
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