As social networking websites continue to rise in popularity, attorneys are increasingly searching such websites to uncover information about injured employees as part of the discovery process. Over time, this form of discovery will become customary, and introduction of social networking evidence in workers compensation litigation will become routine. It is therefore important for workers compensation attorneys to become familiar with the issues involved in using social networking information in litigation. These issues include (1) informal discovery; (2) formal discovery; (3) discovery from site operators and privacy; (4) ethical and professional responsibility considerations; and (5) admissibility of social networking evidence.
 

Defense attorneys should routinely look for injured employees on search engines such as Yahoo! and Google, as well as on the social networking websites themselves, such as Facebook and MySpace. Internet searches for public social networking profiles are similar to the common informal video surveillance investigations of injured employees many insurance companies and defense counsel perform. (WCxKit)

Of course, some employees may use security settings to prevent the public from viewing their social networking profiles. Attorneys for plaintiffs should advise their clients not to discuss or post information about any alleged work injuries or physical capabilities. At minimum, attorneys for plaintiffs  should advise their clients to place security settings on their profiles so defense counsel cannot freely discover them by a simple internet search. However, injured employees should be aware that defense counsel can request production of social networking information, even if they are unable to access it publicly.
  

Just as workers compensation attorneys often request medical and employment records of plaintiffs through the formal discovery process, defense attorneys can request relevant social networking records during discovery. When deposing an employee, defense counsel should routinely ask the employee whether s/he maintains a Facebook or other social networking profile.
 

Formal discovery requests for social networking information must be narrowly tailored in order to be valid. This includes information relating to the physical capabilities and alleged work injuries, including photographs, videos, message board posts, and other communications of the employee.
 

Attorneys have already begun to request social networking information through discovery, and such requests are not limited to the context of workers compensation. Although some states have restrictive rules for discovery to uphold the underlying goal of efficiency of the workers compensation system, most states follow the state rules for discovery in workers compensation litigation. In addition, states with restricted rules for discovery usually permit the workers compensation judge to allow broader discovery if it will help a party present its case more effectively. Therefore, workers compensation attorneys cannot dodge formal requests for social networking information merely because of state rules for discovery are not generally followed in workers compensation cases.
 

If the employee refuses or is unable to provide social networking information to defense counsel, defense counsel may request this information from the social networking site operator directly. Situations in which this would occur include the employee deleting or deactivating his/her social networking account, or simply refusing to turn over the information.
 

Most social networking websites have privacy policies allowing them to provide social networking profile information in response to a narrowly tailored discovery request or court order.
 

Employees and site operators have two defenses to such requests by defense counsel, including that production is barred by the Stored Communications Act and that an employee has a privacy interest in his/her social networking profile. 
 

However, an exception to the Stored Communications Act is that the employee can give permission to the social networking site to disclose information relating to his/her social networking profile, similar to an authorization for medical records provided to a record custodian at a medical facility. A privacy argument is unlikely to prevail in workers compensation court because a person has no reasonable expectation of privacy in whether s/he has a social networking account or in what is posted in his/her profile.  

For example, attorneys for plaintiffs  may not advise their clients to delete relevant photographs, videos, or communications from their social networking accounts. Defense counsel cannot initiate contact with an opposing party represented by counsel. Therefore, it is unlikely that defense counsel can “friend” an employee represented by counsel on Facebook or another social networking site.
 

Non-attorney investigators and insurance company representatives in workers compensation litigation often conduct video surveillance. Unlike attorneys, these people are not regulated by the rules of professional responsibility. However, attorneys working with insurance companies and private investigators must be careful, because an attorney most likely cannot advise a non-attorney to initiate contact with an employee represented by counsel. Workers compensation attorneys should therefore be very cautious in working with third parties who “friend” employees on social networking websites.
 

It is important to remember that these ethical considerations are not applicable to informal discovery social networking sites when the information is publicly available and no direct communication is made with the employee.    

Social networking evidence has been admitted in court in different types of cases, from family law to employment law to criminal law. Most states follow relaxed rules of evidence for workers compensation, indicating that it is likely that such evidence would be admissible in workers compensation litigation as well.
 

Workers compensation attorneys should realize that relevant social networking information will likely be admissible as evidence, as are traditional forms of surveillance, so long as there is foundation for the evidence, and notice is provided to opposing counsel. Objections to admission of social networking evidence on the basis of hearsay are generally not applicable to the workers compensation context, as hearsay rules generally do not apply. (WCxKit)

Although many courts are unfamiliar with social networking evidence, this area continues to evolve, and it is clear that social networking evidence will play an increasingly prevalent and important role in all aspects of the litigation process in workers’ compensation cases and beyond.
 

WCK Blog welcomes two very well qualified guest authors and thanks them for a timely and informative contribution.
 

Jaclyn S. Millner is an attorney at Fitch, Johnson, Larson & Held, P.A., a workers compensation defense firm in Minneapolis, Minnesota. She is licensed to practice in Wisconsin and Minnesota. She has a B.A. from the University of Michigan and a J.D. magna cum laude from the William Mitchell College of Law in St. Paul, Minnesota. She was an editor of the William Mitchell Law Review. Jaclyn can be reached at jmillner@fitchjohnson.com  or 612-746-3444.
 

Gregory M. Duhl is an Associate Professor of Law at the William Mitchell College of Law in St. Paul, Minnesota, as well as the executive editor of The Business Lawyer, the flagship publication of the ABA Section of Business Law. He received a B.A. summa cum laude from Yale University, a J.D. cum laude from Harvard Law School, and an LL.M. in Legal Education from the Temple University James E. Beasley School of Law. Gregory can be reached at gregory.duhl@wmitchell.edu  or 651-290-6409.

For more information regarding social networking and workers compensation litigation, see Social Networking and Workers Compensation Law at the Crossroads, 31 Pace L. Rev. A free download of Social Networking and Workers’ Compensation Law at the Crossroads is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675026.
 

Posted in Litigation Management |

Workers Comp Kit Blog is very proud to be awarded a listing in the "Top 50 Health Insurance Blogs," in the category of “By and For Health Insurance Industry Blogs by The Health Express.

 

The Health Express provides health and medical information covering fitness, nutrition and medical knowledge attractions on their website, and has selected top blogs contributing to that knowledge. Our MD's contribute important information about health and wellness.

Alba Collazo, The Health Express co-founder said of WCK when announcing our award, “I found Workers' Comp Kit Blog to be very interesting and relevant.”

We thank our many fine writers, contributors, editors and staff – we cannot achieve what we have without them. Our management and staff offer sincere appreciation and thanks for this honor and are encouraged to continue providing employers with tools to contain their workers compensation costs.

Posted in Risk Management, Workers Comp Kit |

An area where a lot of employers, workers compensation claim adjusters and even some lawyers get confused is the requirements of HIPAA – the Health Insurance Portability and Availability Act of 1996, which became fully functional in 2003. The law was written to protect the personal health information of individuals, and to keep the personal information as private as possible.

Like most federal regulations, it was written in code. Instead of saying the HIPAA law applies to doctors, hospitals, health care clinics, and other health service providers, the HIPAA law refers to “covered entities." An employer is not a “covered entity” unless the employer is also a provider of medical services, and then HIPAA does not apply to medical information in your employment records.(WCxKit)

The HIPAA law uses another two code phrase a lot – “personally-identifiable health information” (PHI), and “protected health information” (PHI)  both meaning the same thing. [Yes, two phrases meaning the same thing, both using the same acronym – PHI].   By PHI the law is referring to:

 

All the PHIs were referring to health insurance until the last one listed – the First Report of Injury which is the most often used workers' compensation form. Now this is where confusion about HIPAA arises for the employer. The First Report of Injury form you complete when the employee has a work comp claim is PHI when it is in the possession of the medical service provider. When it is in the employer's workers compensation file, it is not PHI and not subject to HIPAA. (It may be subject to state privacy laws – more on that later).

The same guidelines for the employer's handling of the First Report of Injury apply to the work comp adjuster's handling of the First Report of Injury. When the adjuster requests the medical records for an injured employee, the medical provider can provide all of the PHIs listed above and not be in violation of HIPAA. The HIPAA law specifically excludes workers compensation from its far reaching tentacles.

Workers compensation insurance companies, employers who are self-insured for workers compensation, third party administrators, medical case managers and workers compensation boards/industrial commissions are allowedby HIPAA to obtain all necessary medical information for the purpose of processing workers compensation claims. State laws governing the obtaining of medical information for work comp claim handling still apply. As the state laws on workers compensation can vary tremendously from state to state, the employer needs to know and understand the work comp laws and privacy laws of the states where they do business. 

Often when the employee's attorney does not want the work comp adjuster to know about the employee's preexisting double laminectomy, or some other preexisting medical issue, the attorney will try to throw-up a smoke screen telling the adjuster t they cannot have the employee's pre-injury medical records due to HIPAA. This is totally incorrect. HIPPA specifically allows in Title 45 of the Code for Federal Regulations (CFR) for disclosure of the employee's pre-injury medical history:

1.      If the disclosure is authorized and to the extent necessary to comply with laws relating to workers' compensation………(to) provide benefits for work related injuries or illness {this info is in the statute – 45 C.F.R. Paragraph 164.512 (1)}

2.      If the disclosure is required by state law, the disclosure is limited to whatever the law requires {45 C.F.R. Paragraph 164.512(a)}

3.      If the disclosure is for the purpose of obtaining payment for health care provided to the employee { 45 C.F.R. Paragraph 164.502(a)(1)(ii)}

 

In most states the notification to the medical provider that the information is being requested for the purpose of processing a workers compensation claim is all the authorization needed for the medical provider to send the information to the work comp adjuster.   In the few states requiringthe adjuster to obtain a medical authorization before obtaining the medical information from the medical provider, it is the state law that requires the medical authorization, not HIPAA.

In the situation noted above where the employee's attorney is trying to block the adjuster from having the information about the employee's preexisting medical condition, HIPPA does not stand in the way. The adjuster in most states will still need the medical authorization for medical records prior to the date of the employee's injury, but the adjuster can petition the work comp board to require the employee to provide the medical authorization if it is not freely provided. (WCxKit)

The employer should understand that HIPAA does not hinder the processing of work comp claims. Some states have passed their own versions of medical privacy laws that are more restrictive than HIPAA. Also, some of the states have other privacy laws limiting the information you can disclose about an employee. If you have any question about what your state requires, please consult with an employment law attorney. If you have any questions about HIPAA and its relationship with workers' compensation, please contact us.

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact:  RShafer@ReduceYourWorkersComp.com or 860-553-6604.

 

Posted in Litigation Management, Medical Issues, Risk Management |

Employer involvement in a workers compensation claim begins before the injury occurs and ends when the employee is back at work, fully recovered from the injury. (WCxKit)

Sooner or later an employee is injured on the job. Here are 12 steps an employer can take prior to an injury occurring. Taking these steps impacts the outcome of the workers compensation claim. (WCxKit)

1.       Provide each new hire with an employee accident brochure outlining what the employee will do in case of an accidental injury.

11.    Post all the state required notices in a place convenient for all employees to see including workers compensation laws, OSHA posters and anything else required in your state. (WCxKit)

 Implementing these first pre-injury 12-steps starts the employer down the path of efficient injury and claim management toward happier, healthier employees and work comp cost reductions.

 
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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 Risk Management, Settling WC Claims |

Tesoro filed its appeal recently of the record $2.39 million citation the Washington Department of Labor & Industries issued against the company in the wake of the fatal refinery explosion that killed seven workers.

In October, L&I cited Tesoro for 39 “willful” violations and five “serious” violations of state workplace safety and health regulations in connection with the deadly April 2, 2010 explosion at the company’s Anacortes refinery. The accompanying $2.39 million fine is the largest ever issued by L&I.(WCxKit)

A willful violation is a category of violation where an employer knowingly violates a rule or is plainly indifferent to it, while a serious violation is one where there is a substantial probability of serious injury or death.

A six-month investigation by L&I determined that the explosion was preventable. A heat exchanger at the petroleum refinery blew apart along cracks in welded areas. Tesoro was required by state law and industry standards to test the equipment for cracks, but L&I inspectors determined the company had failed to do this correctly.

Under state law, employers don’t have to correct hazards identified in a citation during the appeals process.

“I don’t think anyone is surprised that they would appeal,” said Michael Silverstein, assistant director, Division of Occupational Safety and Health. “We look forward to hearing how the company intends to address the violations we found.”

Businesses have a right to appeal a citation issued by L&I. The first step is often an informal “re-assumption” conference where L&I representatives meet with the employer to hear their concerns regarding the citation. (WCxKit)

If an employer remains dissatisfied with the results of this process, they can appeal the decision further to the Board of Industrial Insurance Appeals, a separate state agency independent of L&I. Its three-board members are appointed by the Governor’s Office and include a business representative, a labor representative and a public member.

 

Posted in Legal Doctrines, Litigation Management, Safety and Loss Control |

The Alberta government says it's behind an investigation into whether a cleaning company has been paying its temporary foreign workers properly.

Bee-Clean Building Maintenance has acknowledged that it owes some of its janitors overtime pay due to an administrative error and has hired an accounting firm to review its books. (WCxKit)

But Alberta Employment Standards says it ordered Bee-Clean to pay for an independent review of its payroll for all 3,000 of the company's workers following complaints this summer by some of the janitors.

Employment Minister Thomas Lukaszuk said the accounting firm KPMG is doing the review and is to submit its final report to the government. Bee-Clean must hand over any money it owes the janitors to the province, which would pay it out.

"We will serve the company with an order demanding them to make restitution,'' Lukaszuk said Wednesday. “This order is court enforceable. The employer will be expected and compelled to comply.''

The government says it wants the report from KPMG by the end of the month.

If problems are found with Bee-Clean's books, the province would order another review, which could lead to the Edmonton-based company being charged under Employment Standards legislation, he said.

Lukaszuk said it's important for businesses and workers to understand that Alberta's employment standards apply equally to everyone in the province regardless of their nationality or where they come from.

"It doesn't matter whether you're a born Albertan or from Ontario or from another country,'' he said.

Recently, Bee-Clean issued a statement saying it owes some employees back pay for overtime.

Robert Scott, the company's regional director, said the company is working with the province to resolve the situation.

"We have apologized to all affected employees and have advised them of our intentions,'' Scott said.

"We are working to calculate the money owed based on manual time records and we have engaged KPMG to conduct an independent, third-party review of our preliminary findings and payroll practices to ensure this doesn't happen again.''

The payroll issue is part of a larger dispute between some Bee-Clean janitors who want to join the Services Employees International Union and the company, which employs the workers at the University of Alberta.

The union has launched lawsuits on behalf of the some of the janitors over unpaid wage claims and has filed an unfair labor practice complaint with the Alberta Labor Relations Board. The complaint alleges some of the janitors have been fired or threatened for talking about joining the union.

The SEIU represents Bee-Clean employees in Ontario and Quebec who were organized under the union's Justice for Janitors campaign.

Bee-Clean countersued on Oct. 15. The lawsuit claims union statements about unpaid overtime and threats to employees are false and malicious. Statements of claim contain allegations that have not been proven in court. (WCxKit)

Meanwhile, the union says students, faculty and staff at the University of Alberta have formed a committee to support the janitors. The committee says it is planning a campus rally to be held next month.

 

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

The Houston District Office of the U.S. Equal Employment Opportunity Commission (EEOC) has filed two separate lawsuits to enforce the ADA, demonstrating the on-going relevance of and need for the law in today’s workplace.

The lawsuits, filed in the United States District Court for the Southern District of Texas, Houston Division, addresses various alleged unlawful practices by these two employers illustrating the broad and necessary protections afforded by the ADA.

In addition, one of the employers, DynMcDermott Petroleum Operations Co. (“DynMcDermott”) is alleged to have violated the Age Discrimination in Employment Act (“ADEA”). (WCxKit)

In the suit against ENGlobal Engineering Inc. (“ENGlobal”) (Civil Action No. 4:10-cv-XXXX), the EEOC alleges the company terminated the employee, Jeff Rose (“Mr. Rose”), because it regarded him as being disabled. ENGlobal is a publicly traded corporation providing engineering and professional services to the energy sector.

According to the EEOC, Mr. Rose worked for ENGlobal as a safety supervisor for approximately two weeks when, unbeknownst to him, he began to develop multiple sclerosis (“MS”) symptoms that did not debilitate nor substantially limit him. Mr. Rose informed his manager of the symptoms and kept him informed of the conversations he had with his doctors as they tried to ascertain what was wrong with him. As the manager learned more about Mr. Rose’s condition and realized he faced a potential MS diagnosis, the manager searched for a replacement and urged Mr. Rose to take medical leave despite the fact that he could continue working. After taking medical leave at his manager’s insistence, Mr. Rose presented the company with a doctor’s note stating he had clearance to return to work.

Although his position was available, ENGlobal’s human resources manager falsely told Mr. Rose it was not. Further, although the human resources manager then told Mr. Rose that ENGlobal would try to find him another position within the company, it took no such action. Three weeks later, ENGlobal hired another individual for Mr. Rose’s position. It is the EEOC’s position that ENGlobal’s management violated the ADA by incorrectly and impermissibly viewing Mr. Rose as substantially limited in his ability to perform the work of any job within the company.

The ADA was also violated by DynMcDermott when the company failed to hire an applicant for employment, the EEOC alleged in the lawsuit filed against this employer for actions occurring at its Winnie, Texas facility (Civil Action No. 4:10-cv-XXXX). The EEOC also maintains DynMcDermott’s actions violated the ADEA.

According to the lawsuit, DynMcDermott is a privately held corporation providing maintenance and operations services for the Strategic Petroleum Reserve managed by the U.S. Department of Energy. The EEOC alleges that the applicant and employee, Phillip (“Mike”) Swafford (“Mr. Swafford”), applied with DynMcDermott for a position he had previously held with the company. He was interviewed by and recommended for the position by both his former supervisor and the manager in charge of hiring for the position.

Nonetheless, the facility’s director, who had authority over both the supervisor and the hiring manager, stated to them and others, on at least two occasions, that Mr. Swafford should not be hired because of his age, then 56 years, and his wife’s cancer, which the director simply assumed would interfere with Mr. Swafford’s ability to perform his job duties. The EEOC alleges this assumption and DynMcDermott’s unwillingness to hire Swafford because of his age and his wife’s cancer violated both the ADA and the ADEA. DynMcDermott ultimately hired a 35-year-old applicant with no prior experience with the company for the position.

The EEOC filed the lawsuits after conciliation efforts to reach a voluntary settlement with each employer were unsuccessful. (WCxKit)

In each lawsuit, the EEOC is seeking a permanent injunction prohibiting the relevant company from engaging in employment discrimination, as well as other non-monetary relief to address the unlawful practices. The EEOC is also seeking back pay, compensatory damages, punitive damages or liquidated damages, and other relief.

 

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

A Lancashire, Great Britain business, which manufactures parts for aero planes, has been sentenced after a worker's left hand was badly injured by a machine.
 

Callender (Lancashire) Aeropart Ltd. was prosecuted by the Health and Safety Executive (HSE) after the employee's hand came into contact with a rotating blade in a milling machine at its site on Altham Industrial Estate on July 17, 2009. (WCxKit)
 

The 28-year-old from Oswaldtwistle severed a tendon, broke his little finger and badly cut his ring finger. He required an operation to reattach the tendon and needed physiotherapy to regain movement in his little finger.
 

The worker, who has asked not to be named, was cutting a metal part for a fan in a jet engine when the incident happened. He reached across machine to retrieve the metal part he had just cut, but the blade was still moving.
 

Accrington Magistrates' Court heard that the cutting tool on the machine was not fitted with a guard, despite the issue being raised in a risk assessment carried out by the company 16 months earlier.
 

Callender (Lancashire) Aeropart Ltd. admitted breaching Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998 by failing to prevent access to dangerous parts of machinery.
 

The company, of Metcalf Drive in Altham, was fined £8,000 and ordered to pay £3,996 towards the cost of the prosecution on Nov. 3, 2010.
 

David Myrtle, the investigating inspector at HSE, noted, "The injuries this worker suffered were nasty but they could have been a lot worse. He was lucky not to lose one or more of his fingers.
 

"The risk assessment, carried out by the company more than a year earlier, had identified the machine as being dangerous and needing a guard. But Callender failed to make sure that an appropriate guard was used.
 

"Unfortunately even the most experienced machine operators can have a lapse in concentration. The company should have made sure a fixed guard had been installed to prevent injuries." (WCxKit)
 

Last year, 35 workers lost their lives and nearly 26,000 suffered serious injuries in the manufacturing industry in Great Britain.

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

Employers need every edge in reducing their costs of workers compensation, given our stagnant economy. Medical billing and coding is perhaps an overlooked area of cost control. One tiny error can lead to a very big problem in a medical bill — i.e., kicking the bill back for re-processing thus delaying payment.
 

An employer can do one of two things:  rely on an outside source,–  billing departments of doctors, nurses, therapists, hospitals, etc.– to produce correct, timely medical invoicing with accurate coding and risk paying more, paying for the wrong procedure, or waiting longer for a work comp claim to close. However, an employer still need to provide oversight, will be one of many other clients, must be sure the staff understands workers comp issues – in other words, you’ll be bird-dogging. (WCxKit)
 

Another and better way is to have your own in-house staff whose job is to review and analyze all medical bills submitted by health care providers before they are approved for payment. Either hire or train a person to vet all medical bills. Training a current employee has the advantage having someone already familiar with the company’s workers comp procedures and works only for the employer.
 

Whether you hire or train, there is a high demand for workers who are medical billers and coder, a field described as “recession proof.” Look for a person with a:

Someone with this certification comes ready to start work with these skills:

1.     Knowledge of the universal alphanumeric medical coding system.

This is a system used in all areas of health care so there is little discrepancy or room for errors. Doctors and nurses uses these codes to know more about the patient's medical history and current afflictions, while insurance agencies use these codes to determine how much to pay their clients on their insurance claims.

 If you decide to train from within there are affordable and flexible one- or two-year MBA programs, many offered on line allowing an employee to continue in a current position.
 

Worker Comp Kit Blog thanks and welcomes Jenna Devoss who helps run and maintain MedicalBillingandCoding.org, for her insightful contributions. MedicalBillingandCoding.org is a reliable source for medical billing and coding training programs, careers and future job outlooks.

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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.

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Posted in Medical Cost Containment & Managed Care, Settling WC Claims |

Occasionally employers go overboard in their efforts to control the cost of workers compensation claims. Going without workers compensation insurance. This is a criminal offense in most states possibly resulting in your paying fines, paying the claim out of company funds and ending up paying your own costs to defend a lawsuit from the injured employee.

1.     You cannot terminate the employee for filing a workers compensation claim.

2.     You cannot refuse to hire an employee solely because of prior workers compensation claim history (unless the prior injury(s) makes it impossible for the employee to perform the job under consideration with accomodations. CHECK WITH LEGAL COUNSEL ABOUT THIS.

3.     You cannot charge an employee with any part of the workers compensation premium.

4.     You cannot pay the small claims out of company funds and not report them to the workers compensation insurer.(WCxKit) There is still a lot of debate about this one, but it's against the terms of most insurance policies to do this.
 

 
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Posted in Risk Management, Settling WC Claims |