According to the EEOC’s suit, Princeton HealthCare System enforces leave policies that do not provide reasonable accommodations to qualified individuals with a disability. Princeton HealthCare fires employees who are not qualified for leave under the Family Medical Leave Act (FMLA) if they cannot return to work within seven days, and refuses to grant leave beyond the 12 weeks allowed by the FMLA. Princeton HealthCare System does not grant exceptions to these policies for qualified individuals with disabilities who need additional leave as a reasonable accommodation. (WCxKit)

More than a dozen employees with disabilities requesting a leave of absence as a reasonable accommodation were denied leave and were fired by Princeton HealthCare. The EEOC filed suit (EEOC v. Princeton HealthCare System) in U.S. District Court for the District of New Jersey after first attempting to reach a pre-litigation settlement through its conciliation process. (WCxKit)

 
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Posted in ADA (Americans with Disabilities Act), EEOC Discrimination Laws |

A British Columbia tree planter's contract was terminated by the provincial government while authorities investigate allegations workers were subjected to no toilets, only creek water to drink and were paid with bounced checks.

According to The Canadian Press, upwards of 30 workers were removed from the Khaira Enterprises work camp after forestry ministry staff came upon what the province's labor minister details as "substandard conditions'' last month. They were responding to complaints of illegal burning.

The company is barred from government work for at least one year and the ministry is withholding its security deposit and other funds on the grounds it contravened its contract with BC Timber Sales. (WCxKit)

"I am very concerned about the alleged substandard conditions and mistreatment of employees at this forestry work camp,'' Labour Minister Murray Coell said in a statement about terminating the contract. "The conditions described are completely unacceptable for employees.''

According to the B.C. Federation of Labour, whose staff and president spoke to about a dozen workers in recent days, most members of the group were landed immigrants from Burundi and the Republic of Congo. President Jim Sinclair said they travelled from Winnipeg, Ottawa and Montreal to earn money to pay rent and go back to school.

They are also owed tens of thousands of dollars, he alleged, and said they initially tried striking and reaching out to authorities for help, but were only rescued when Forestry got the complaint for burning rubbish.

Sinclair said the workers were treated like “virtual slaves,'' and he put the blame on the province for lack of oversight.

"I've seen lots of lousy working conditions, but this is probably the grossest example that I've seen,'' he said in an interview. "It just shows you how far we've come as a society away from the idea that government is going to stop people from being abused. "Ninety per cent of them are new immigrants, they're being taken advantage of partly because of who they are.'' Sinclair fears there could be other hidden situations like this and called for the government to make and follow through on recommendations. (WCxKit)

 
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Posted in Canada Workers Comp, Safety and Loss Control, WC in Other Countries (International) |

The question was recently asked, “When is the best time to have an independent claims auditor  do a claim file review?” The best way to answer the question is to make a determination of the reason the question is being asked. The question is usually related to an underlying concern about the handling of the work comp files….e.g. there is a problem, a perceived problem, or for some reason there is a question about the integrity of the claims handling. As the employer, you should feel confident that your claims are being handled well. If you aren't, it's a good time for a file review.

 

Workers’ compensation claims can be handled by your insurance company's claim department or, if you are self-insured, the work comp claims can be handled by the third party administrator hired to handle the claims or by your own in-house claim staff. Regardless of who is handling your claims, you should have them audited when you have a concern about your claim files.

 

The best time  to have a claim file review or a claim audit is when you determine there is a need for the file review/audit. There are some telltale signs that indicate the need for a claim file review. They include:

 

 

If you are unhappy about the quality of the claim services you are receiving from your claims adjusters, a claims file quality audit, also known as a best practices audit, should be undertaken promptly. The longer file quality issues go unaddressed, the higher the amount you will pay on the work comp claims due to poor quality claim service. 

 

The professional claims auditor compares your claim handling service standards against a statistically valid random sampling of your open and recently closed claim files. The claims auditor should review your service standards and create a customized audit to reflect fully the quality of claim handling you expect.

 

The claims quality audit will review coverage verification, contacts with the employer and employee and medical provider, the details of the claim investigation, the determination of compensability, the medical management, the medical cost control, the litigation management, the file documentation, the reserving, the involvement of the adjuster's supervisor, compliance with reporting procedures, subrogation and all other aspects of claim handling covered in your service standards. 

 

If you do not have agreed upon service standards with your claims office, the professional claims auditor can compare the claims handling against generally accepted best practices in the insurance industry or against the claims administrators best practices. The claims auditor can also provide your company with a set of service standards that follow the best practices in the claims field.

 

The claims auditor should review and analyze how the various aspects of the claim file interrelate to give you a total picture of how each file has been handled. The files of each adjuster should be combined to give you an understanding of the claim handling quality of each adjuster. The files of the adjusters should be combined to give you the overall performance level of the claims office. 

 

If you are concerned about the reserves and their accuracy, a reserve audit should be undertaken immediately because of the impact on the financial health of your company. Whether you are concerned about reserves that may be too low, which will overstate your company's available assets and eventually will result in unanticipated shortfalls, or whether you are concerned about reserves that may be too high which will impact your company's ability to get financing, the professional claims auditor can be invaluable. 

Accurate reserves are one of the most difficult aspects of the adjuster's job. Reserving needs to be accurate and timely on all claim files. The reserve audit will evaluate the accuracy of the reserves on each individual file review and provide you an evaluation of the accuracy of the reserves on your entire claim inventory.

If your third party administrator's claim office or your own self-handling claims office does not seem to have its act together, the professional claims auditor/consultant can perform an organizational and operational review. A high-level claims management review of the service standards, policies, guidelines and operating procedures will provide insight into the strengths and weaknesses of your claim handlers. The professional claims consultant can make creative suggestions and innovative recommendations on how to improve your current claims office. A claim organizational review should be undertaken soon if your claim office is not operating effectively and efficiently.

Every subrogation file that is not properly pursued is money lost by your company. The work comp adjuster will normally recognize the subrogation potential of automobile related work comp claims, but often miss the subrogation on claims that involve general liability, products liability and various other forms of liability. Your professional claims auditor should be equally well versed in liability claims as workers compensation claims in order to identify all potential subrogation.

If you have not had a subrogation audit in the past year, you should schedule one. The subrogation audit should review not only your open work comp claims, but also the closed claim files that are still within the statute of limitations for liability claims in your jurisdiction. 

A subrogation audit can be structured to pay the auditor a percentage of the dollar amount uncovered in claims that had not been previously identified as a subrogation opportunity. This makes the subrogation audit a win-win situation for both your company and the claims auditor. (WCxKit)

 

 

When you have any concern about how your claims handlers are processing your work comp claims, it is time to have a claims file review. The professional claims auditor will save your company money by collaborating with you to improve the outcome of your claims. Please contact us and we will be glad to provide you with a consultant and M.D. to audit your claim files. 

Posted in TPA and Claims Administration |

The Federal Court of Canada will conduct a judicial review in November of a Canadian Human Rights Tribunal decision challenging the ability of unions and employers to negotiate mandatory retirement ages for all Air Canada pilots.

According to The Canadian Press, the challenge to the tribunal decision was brought by the Air Canada Pilots Association. The association wants to continue to negotiate a standard retirement age for pilots, currently set at age 60.

The pilots association asked the federal court for a review a 2009 decision they believe “erred at law by ignoring Supreme Court of Canada decisions which found it acceptable for employers and employees to determine a retirement age through the collective bargaining process.” (WCxKit)

The tribunal ruled Air Canada's contract with the pilots was discriminatory under the Canadian Charter of Rights and Freedoms. It found the provisions of the Canadian Human Rights Act allowing employers to impose mandatory retirement policies as “bona fide occupational requirements'' violated the Charter.

If left unchallenged, the tribunal's decision would potentially affect the wages and benefits of the Air Canada pilots and thousands of other federally regulated employees working under collective agreements containing a fixed age of retirement, the union said.

The human rights tribunal was responding to a complaint, filed in 2005 by a pilot, who was required to retire from his position as an Air Canada Airbus 340 pilot when he turned 60 years of age in 2003. (WCxKit)

This man and another pilot, who filed a subsequent complaint, requested reinstatement to their positions, with full seniority, along with damages for lost income, pension and other benefits.

 
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in Canada Workers Comp, Union Issues, WC in Other Countries (International) |

Continuing a line of cases that generally allow for the recovery of medical benefits where a worker is exposed to blood and other body fluids, yet where there is no actual proof of harm, a Kentucky court recently awarded $700 in medical benefits to a health care worker who was splattered in the face and eye with blood and saline while flushing a patient's I.V. line [Kentucky Employers Safety Assoc., v. Lexington Diagnostic Center, 2009 Ky. LEXIS 80 (Ky. May 21, 2009)]. 

The worker sought immediate medical attention, at which point the applicable post-exposure protocol required by OSHA was initiated. That protocol required a series of five office visits that included tests for blood borne pathogens, for a total cost of about $700.00.  While the carrier paid for the first two visits, and part of the third, it resisted further payment, taking the position that an exposure has the potential to harm but does not constitute an injury until such time as objective medical findings showed it had produced a harmful change in the human organism. (WCxKit)

The Supreme Court of Kentucky held that being splattered in the face and eye with foreign blood or other potentially infectious material was a traumatic event for the purposes of KRS 342.0011(1) and that the presence of blood in the eye constituted an exposure as defined in 29 CFR 1910.1030(b), which describes a harmful change in the human organism as, among other things, the introduction of foreign blood or potentially infectious material into the worker's body. See Larson's Workers' Compensation Law, Ch. 29, § 29.03.

 
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Posted in Legal Doctrines |

After offering the man a position, the company rescinded the offer when he reported to work and Human Resource Specialist noticed his fingers were missing. The Human Resources Specialist stated he was concerned the potential employee could not do the job because of his missing fingers. (WCxKit)

The EEOC filed suit in U.S. District Court for the Middle District of North Carolina, Winston-Salem Division (EEOC v. KobeWieland Copper Products, LLC, Civil Action No. 1:10-cv-636), after first attempting to reach a voluntary settlement. In its suit, the EEOC seeks back pay, compensatory damages and punitive damages, and rightful-place hiring, for Cardwell, as well as injunctive and other non-monetary relief. (WCxKit)

 
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Posted in ADA (Americans with Disabilities Act), EEOC Discrimination Laws, Employment Law Issues |

COMPUSPAR USA Inc. was cited for failing to abate previous workplace safety and health violations by the United States Department of Labor's Occupational Safety and Health Administration (OSHA). Penalties total $101,700. 

 

OSHA initiated its investigation to determine the abatement status of previously identified hazards. As a result of the investigation, the company was cited with four failures to abate violations with a penalty of $83,400. The company also was cited for six repeat violations with a penalty of $11,400; six serious violations with a penalty of $6,900; and one other-than-serious violation, carrying no penalty.

"The company's refusal to abate these violations leaves its employees exposed to a variety of hazards and at risk of injury and illness," said Jean Kulp, area director of OSHA's Allentown office. "It is imperative COMPUSPAR take all necessary steps to remove these hazards to ensure the safety and health of workers at the Allentown facility."

The failure to abate citations address the company's failure to maintain OSHA 300 logs for two years; to develop and implement a hazard communication program; to train employees on hazardous chemicals; and to develop and implement a respiratory protection program. The repeat violations include the company's failure to maintain a material safety data sheet for hazardous chemicals used in the spray-painting operation; failure to cover flammable liquids; use of unapproved electrical equipment in hazardous locations; lack of proper ventilation in a spray booth and the lack of cleanliness of the spray area. OSHA issues a repeat violation when an employer was cited previously for the same or similar violation of any standard, regulation, rule or order at any other facilities in federal enforcement states within the last three years. (WCxKit)

The serious violations are due to the company's failure to label properly a drum containing hazardous chemicals; failure to properly guard machinery; improper use of electric boxes and the use of a power strip as an alternative to fixed wiring. A serious citation is issued when there is a substantial probability death or serious physical harm could result and the employer knew, or should have known, of the hazard.

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact:  Robert_Elliott@ReduceYourWorkersComp.com   or 860-553-6604.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com 

Posted in Safety and Loss Control |

We hear about these tragedies across the country, but this one has happened near my hometown, someplace I drive by practically every day. And, as I toured the operations of several insurance company vendors this week, I noticed the security measures that did – or didn't – exist in each workplace. Hopefully this will be an additional lesson, a hard one, that we need to have more secure workplaces across the country. 

 

For the families of those killed and injured at Hartford Distributors Inc. there are serious ramifications over and above the shock and unexpected deaths and injuries of their loved ones. What happens next? What compensation are they entitled to? How do they go about applying for benefits?

By statue in Connecticut workers compensation is paid to the surviving spouse for life or until remarriage, with children receiving compensation until age 18. If a child enrolls in college, additional benefits may be paid.  Claims may be filed for up to one year following the workplace death or injury.

Workers injured at work are eligible for workers compensation benefits until they are medically able to return to work, either full time or to light duty.

Sources* indicate, including John Mastropietro, chairman of the state Workers Compensation Commission, the cost in workers comp benefits may be very high – perhaps the highest ever paid.

Compensation paid is 75% of the average weekly wage after deductions, based on each employee’s weekly average of wage, bonus, shift differential and other earnings in the 52 weeks prior to the death or injury.  (WCxKit)

The Teamster’s legislative liaison, John Hollis and The Hanover Insurance Group are available to assist families and workers filing workers comp claims, according to Mastropietro.

   \ Author Rebecca Shafer, President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.  Contact: Info@ReduceYourWorkersComp.com  or 860-553-6604.  

 
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Posted in Employment Law Issues, Safety and Loss Control |

Trying to dig out from over litigation for two decades, the New York Workers Comp Board encourages settlements. Not only has the number of settlements grown, but also they carry their own dangers.

The problem with settlements is the parties involved and the Board lose interest in further investigation of facts. Furthermore, it is assumed the employer gets to pay a non-trivial amount, meaning an attorney can rely on settlements as a substitute for proof. In time, “nuisance value” drives the system – and “nuisance” is expensive since it does not need much in the way of fact or reality to sustain it.

The solution is to have a compelling supply of facts in the arsenal – facts which must be obtained as soon as possible. Attitudes formed without facts quickly become set in stone.

A time line of typical New York workers comp claims shows a period of months, not weeks or days, before a carrier begins to obtain evidence which can limit the size of a claim. However, an employer frequently has information of similar utility already at hand and can get it into a Board file within days. (WCxKit)

Prior claims, comp or accident, known to the employer provide valuable knowledge about expectations during settlement talks. A history of a prior major settlement indicates the need for considerably more preparation. A history of a series of minor settlements demonstrates a willingness to return to work quickly.

Prior periods of employment, showing average length of time with employers as well as periods of absence from work, can provide warning of a claim that should not be settled with out in depth investigation.

Employers are not expected to conduct formal investigation, although some have been known to do so with devastating results. Instead, the employer can jump start a proper defense with prompt dissemination of useful info – even if only with a phone call.

Was this carrier interested in what my further investigation might show? Well, “maybe.” Maybe??!!  They are going to settle without knowing a thing about 8 prior claims. We are not even sure they were settled. Some were just dropped. (WCxKit)

In claims, any action based on expedience rather than knowledge never works to the benefit of the person paying.

Posted in NY Workers Comp Issues, Settling WC Claims |

According to the Associated Press, the court handed down its ruling last week in a case between insurance companies contesting a claim for firefighter who passed away in 2005 after attempting to save his boss from a manure pit on the farm where they worked. (WCxKit)

The men were taken from the pit after rescue personnel arrived, including members of the Volunteer Fire Department, who were paged 68 seconds after receiving the 9-1-1 call. (WCxKit)

 
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Posted in Safety and Loss Control |