If you think the 50 states having 50 different workers compensation statutes is confusing, you will be totally dumbfounded if you try to understand the workers compensation laws of all the
Native American tribes. There are approximately two million Native Americans who belong to 562 federally recognized Native American tribes and between 225 and 250 non-recognized tribes. Under federal law, the recognized tribes are afforded a level of sovereignty. The sovereignty provides them immunity from most state regulatory laws including workers compensation, therefore state workers compensation laws do not apply within the Tribal areas recognized by the federal government (with an exception noted in the next paragraph). This allows the Native American tribes to make their own decisions in regards to workers compensation laws.
The recognized Native American tribes have basically taken three approaches to workers compensation. They are:
1. The individual tribe has created their own workers compensation commission and has created their own set of workers compensation laws that they abide by.
2. The individual tribe has not created their own set of workers' compensation laws and handle work related injuries through their tort system.
3. The individual tribe has elected to be subjected and regulated by the state workers compensation system of the state where their reservation or business is located.
The non-recognized tribes are not considered separate sovereign governments and are subject to the workers compensation laws of the state where they are located.
When the Native American tribe is the employer or the private employer is a Native American and the work being performed is by Native American employees within the geographical boundaries of their reservation, the Native American tribe has total authority over how workers compensation claims will be handled. Confusion about where state workers' compensation law applies and where Native American tribal workers' compensation law applies arises when:
1. The Tribe is operating a business outside the geographical boundaries of the reservation.
2. The employer is the tribe or a Native American individual operating a private business within the geographical boundaries of the reservation, but employing non-Native Americans as employees.
3. The employer is a Native American with Native American employees working outside of the geographical boundaries of the reservation.
There are no absolute rules that addresses these areas as various states have approached differently the determination of where state sovereignty over workers compensation ends and Native American sovereignty begins. A good guideline for Native American tribes and private employers who are Native American: If there is work to be performed outside of the geographical boundaries of the reservation, as an employer you should obtain state workers' compensation insurance to protect your business rather than incur the legal cost of untangling whether or not the state workers' compensation law apply. [Plus, if the legal result is that you are required to have state work comp coverage, you do not want your business to be liable for the cost of the work comp claim(s).]
As non-Native Americans working as employees of Native American tribes or Native American private employers within the geographical boundaries of the reservation can find themselves without worker's compensation benefits, several states have worked out agreements with the tribes. For instance, in Michigan, as part of the gaming compacts between the state and the tribal owned and operated casinos, it has been agreed that Michigan's workers compensation statutes will apply. However, for non-casino non-Native American employees, the Michigan work comp laws do not apply unless the tribe voluntarily agrees to the state's jurisdiction.
When the employer is not a Native American tribe or Native American private individual and is performing business with non-Native American employees within the geographical boundaries of the Tribal reservation, (for instance
logging or mining) the employer could be subject to both the state's workers compensation law and the Tribal workers compensation law. Normally, the employer and the employee would both elect to submit the claim through the state workers compensation system. (WCxKit)
As each recognized Native American tribe can establish its own workers compensation system, elect not to have workers compensation, or elect to be subjected to the state workers compensation statutes, before a non-Native American employer starts performing work on a Native American reservation, the employer should consult with a local attorney. The attorney needs to be knowledgeable of both the Native American tribal laws and the state work comp statutes in order to provide guidance on how to properly insure the business for workers compensation.
This is a comprehensive website for all things Native American.
www.bia.gov.
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. www.LowerWC.com
Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©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.
Australias federal work health and safety regulator, Comcare, has launched Federal Court proceedings against both John Holland Pty Ltd (John Holland) and John Holland Group Pty Ltd (John Holland Group) in response to a fatal incident and two dangerous occurrences at the Mt Whaleback Mine Facility in Western Australia.
Comcare alleges that both John Holland and John Holland Group contravened federal work health and safety laws by failing to take all reasonably practicable steps to protect the health and safety of their employees in relation to matters over which they had control. The maximum penalty for each breach alleged is $242,000. (WCxKit)
On March 19, 2009, a John Holland employee died when the grid mesh he was standing on dislodged and he fell ten metres to the ground below.
Further, there were two alleged dangerous occurrences, on March 12 and 18, 2009 respectively, where heavy grid mesh flooring fell from work structures landing on the ground near where John Holland employees were working. On each occasion, it will be alleged that the grid mesh had been installed by John Holland and John Holland Group employees, but not secured.
A spokesperson for Comcare, Neil Quarmby, Work Health and Safety Group General Manager, said ”This was a tragic loss of life that should not have occurred; the incident underlines why safety procedures need to be in place and why a focus on prevention can save lives”.
This is not the first court action commenced by Comcare against John Holland for an alleged contravention of federal work health and safety laws.
In December 2009, John Holland was found to have breached the Act and was fined $180,000.00 for a fatal incident in Dalrymple Bay, Queensland. (WCxKit)
John Holland Group has not previously been the subject of proceedings under the Act.
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©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.
The security of workers in the film industry and The Hobbit in New Zealand has been secured with the passing of the Employment Relations (Film Production Work) Amendment Bill into law, according to Minister of Labor Kate Wilkinson.
"This law provides certainty to the film industry in New Zealand, an industry that is worth $2.8 billion to our economy. The two Hobbit films alone are worth $670 million,” Wilkinson commented. "It clarifies what are already widespread industry practice – those actors, crew members and other production personnel in the film industry who sign on as independent contractors are just that, independent contractors. If they sign on as an employee, they are an employee.” (WCxKit)
According to Wilkinson, the Government gave serious thought to how it would respond to the threat posed to the entire New Zealand film industry. While this is a direct response to ensure The Hobbit is filmed here, it is also in response to the fact that had it lost The Hobbit the country’s reputation as a filming location would have suffered hugely.
"This Government was not going to let that happen. We were not prepared to see thousands of Kiwi jobs disappear and we were not prepared to see the hard work of the many talented New Zealanders who built our film industry from scratch put at risk,” Wilkinson continued. (WCxKit)
"The passing of this Bill allows film workers and producers to get on with what they do best – making movies.”
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©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.
Take Control of The Claim Process
Too many employers allow their involvement in the workers comp claim to end when the send the employee to the doctor. That is a huge mistake and will result in a steady increase in the amount of workers comp insurance premiums. The employer needs to have an established post injury process. It should include:
1. Report the claim to the insurer, third party administrator or self-insured claims office immediately. The supervisor or your workers comp claims coordinator should be reporting the claim to the claims office while the employee is still enroute to the medical provider.
2. Complete the Employer's First Report of Injury and any other state required paperwork on the claim. If the injury is severe and the employee will be unable to return to work within the waiting period, provide the claims office with necessary wage information for the calculation of indemnity benefits.
3. Advise the claims office of the claimant's prior history of workers comp claims. The adjuster's approach to the claim varies significantly between the employee who never had a prior workers comp claim and the employee who has had 15 workers comp claims in the last ten years.
4. Review your transitional duty program and find a job the employee can do within the treating physicians restrictions.
5. Be sure the employee's supervisor (and co-workers if needed) are available to discuss the accident and injury with the claims adjuster and to assist the adjuster with the claims investigation as needed.
6. Don't alienate the employee – show empathy to the employee. When employees feel the company does not care about them and their injury and the company owes them, the claim will get ugly when employees feel it is time to stick it to the employer.
7. Maintain an open dialogue – call the employee at home to show your concern and to offer assistance on processing the workers comp claim with the insurance company. Address any employee problems or issues right away. Also, call the employee on a regular basis until s/he is back at work.
8. If you are contacted by an attorney representing the employee, notify the claims adjuster immediately.
9. Immediately dispute any invalid or fraudulent claim. (WCxKit)
10. If the employee has a questionable claim, or a subjective claim for neck or back injuries, and immediately goes to the television advertising workers comp attorney, or a plaintiff's attorney-oriented doctor known for excessive disability ratings, advise the employee immediately that you intend to fight the claim as the attorney and/or doctor has a history of inflated claims
11. Monitor the state filings by the adjuster and any other claim related paperwork
12. Monitor the Workers Compensation Board decisions – that means, reading them carefully, not just filing them away. Be ready to protest any finding or order you feel is unfair to you as the employer as all decisions have time limits for disputing the decision, with some time limits as short as 15 days. The board will learn YOU are an employer who takes part actively.
13. Monitor the medical progress reports to be sure the treatment is appropriate – for example – no physical therapy for the low back when the injury is a cut finger.
14. Always advise the adjuster when the employee returns work – the same day.
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.
©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.
OSHA is extending until March 21, 2011 the comment period on interpretation of parts of its noise standard.
The action is titled Interpretation of OSHAs Provisions for Feasible Administrative or Engineering Controls of Occupational Noise. It was published in the Oct. 19 Federal Register. Those interested may submit comments electronically by March 21 to:
http://www.regulations.gov.
Thousands of workers continue to suffer preventable hearing loss each year due to high workplace noise levels. The Bureau of Labor Statistics reports that since 2004, more than 125,000 workers have suffered significant, permanent hearing loss. In 2008, BLS reported 22,000 cases. (WCxKit)
OSHAs proposal seeks to make enforcement of the hearing conservation standard consistent with other regulations by clarifying the term “feasible administrative or engineering controls.”
OSHA says its current enforcement policy for noise exposures less than 100 decibels does not accurately reflect the rules requirement that feasible controls be used as the primary way to reduce noise exposure. (WCxKit)
Instead, OSHA has allowed employers to rely on a hearing conservation program. But the agency says hearing protection alone cannot prevent hearing loss and that administrative or engineering controls must be used.
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.
©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.
Manitoba researchers have spent the last month or so seeking input from farmers 55 and older to have their say on what ails them.
According to OH&S of Canada, the study out of the University of Manitoba in Winnipeg is looking to gather input on the effects of long-term health conditions among farmers.
Researchers wanted to know how the conditions – both work- and non-work-related – influence work practices, safety behaviors and lifestyles, according to Margaret Friesen, Ph.D., an assistant professor in the university's Department of Occupational Therapy, who is heading up the study. (WCxKit)
"Does it slow them down? Do they have to get help? Have they had to change the way they do things?" Dr. Friesen asks. These are the types of questions that she and her team were looking to answers to through a survey which ran until early November
Following receipt of all surveys, Dr. Friesen says researchers plan to conduct in-depth interviews with some of the respondents. "Hopefully that will give us a good picture."
"Whenever anybody has a long-term health condition, you adapt so slowly that you don't notice how many changes you're making to the way you work," she says. It is "certainly possible" that some adaptations might actually result in less safe work practices, she added.
Farmers face a wide range of occupational illnesses and injuries, notes an information bulletin prepared by Dr. Friesen. There may be respiratory diseases caused by agents in soil, grain, pesticides and herbicides; musculoskeletal disorders; skin cancers; and depression.
There is also the physical side of work-related harm, including fractures, spinal cord damage, crush injuries and amputations.
Neil Enns, president of Manitoba Farmers with Disabilities in Elm Creek, Manitoba, can relate, having lost the lower portion of his right arm to an auger in 1995 following a miscommunication with a co-worker. For farmers of all ages, "we have to be cautious and take the time and make sure that we don't do things hastily," Enns noted. (WCxKit)
The study is expected to spawn a journal article, a summary to be shared with agricultural associations and, possibly, a tool kit on working while coping with health conditions. With more than 40 percent of Canadian farmers being older than 55, the results could prove all the more relevant.
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©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.
One of the more colorful phrases you will hear in the workers compensation claims office is the term “old dogs”. “Old dogs” is a term referring to the large, old paper files that have been around for years. There are two explanations where the term “old dogs” came from. The first explanation is: As the years went by, the corners of the paper file and some of the papers in the file got the corners bent over, the file became dog-eared. The second explanation is: the claim file is like a dog. During the early start of the claim, it can be very active and things happen quickly like a puppy jumping around. But after a few years, the file, like an old dog, just lays around with nothing happening. (And yes, electronic files can become an 'old dog' too, if they hang around long enough).
The primary reason a claim file becomes an old dog file is a lack of aggressive attention to the file by the work comp adjuster. This is not saying the adjuster did not do a good job on the file. The adjuster may have done a great investigation and made several efforts to move the file forward. What happens is the adjuster gets new claims in on a regular basis that need immediate attention, while the file that is becoming an old dog file has nothing happening at the moment. Therefore the adjuster's attention is on the new claims and not the claim she has for a couple of years or more. (WCxKit)
There is often a reason or even several reasons a claim file becomes an "old dog." Easy to handle files with minor injuries do not become old dog files. The old dog file is going to have either a medical treatment issue, a permanent partial disability issue or both. (While claim files where the employee is receiving permanent total disability payments for years or a widow is receiving life time death benefits are both types of old dog files, we are going to address the old dogs files where something can be done to move the files forward to resolution).
The employee's attorney will often steer the employee to a medical provider the attorney knows will keep the employee off work for as long as the employee wants to be off work or the attorney will take other actions to delay the file from being concluded. There are several things the work comp adjuster can do to stop the flow of disability benefits and excessive medical cost in these situations. This includes:
1. An independent medical examination (IME) by a medical provider who is a specialist in the area of medicine covering the employee's injury. The IME will either concur the employee should remain off work and provide recommendations for getting the employee back to work, or the IME will advise the employee is able to return to work either with restrictions or without restrictions, plus will give a disability rating that can be used to settle the indemnity portion of the claim.
2. If the state is a jurisdiction where the number of IMEs is limited, a peer review of the medical records can be requested from a medical specialist. The peer review doctor can advise the adjuster as to the appropriateness of the medical treatment and the expected time frame (if any) for the medical treatment to be completed.
3. Any claim more than a year old, or older, with on-going medical treatment, that does not have a Nurse Case Manager (NCM) assigned to the claim should have a NCM assigned. The NCM can assist the employee and the medical provider in coordinating the best possible medical care while expediting the medical treatment. [Note – If the employee is known to have a serious injury at the time the claim is reported to the claims office, medical management with a nurse case manager should be started at the time the claim is received. When medical management is started timely, the possibility of the claim every becoming an "old"dog" is significantly reduced].
4. If the issue on the claim becomes the ability of the employee to return to work, a vocational rehabilitation expert should be brought in to the claim as soon as it is mentioned that the employee might not be able to return to the previous job. The voc rehab expert will work with the employer and the medical provider on ways to place the employee with a permanent partial disability back at work. The vocational rehab expert can work out the details of what the employee will be able to do and the details of what the employer needs to do to be in compliance with the Americans with Disabilities Act (ADA).
5. A detailed review of the file by the claims supervisor or the claims manager should be completed to see if there are options available on the claim that the adjuster has missed. [Where this is a routine practice in the claims office, many claims that could become and old dog claim never get to be an old dog.] If the claims supervisor and claims manager are both too busy to give the old dog files this type of attention, an independent claims auditor should be brought in to review the files and make recommendations on how to move the old dog file forward to conclusion.
6. An old fashion round table discussion between the claims adjuster, the claims supervisor or the claims manager, and a couple of senior work comp adjusters is often a good way to identify steps that can be taken to move the old dog file. [The old adage: "Two heads (or more) are better than one."] By bringing other work comp experts into the discussion of the file, the claims adjuster may come up with new ideas to resolve the claim.
7. A source of information that the adjuster often does not think about if the work comp claim is not being contested is the defense attorney that normally handles the contested claims. The defense attorney is often willing to take an assignment to review an old dog claim and to make recommendations on how to bring the claim to a conclusion. (WCxKit)
Old dog claims can be difficult to resolve, but most of them can be concluded if a proactive and aggressive approach to doing so is taken. The individual recommendations above should be combined with as many of the other recommendations as needed to resolve the claim.
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. www.LowerWC.com Contact: RShafer@ReduceYourWorkersComp.com .
©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.
Great Britain’s Health and Safety Executive (HSE) has signed an agreement with the Building Control Alliance (BCA), in a bid to work more closely to improve health and safety standards in the construction industry.
The agreement sets out how HSE and building control professionals will cooperate to help and support each other, for example in providing health and safety advice to the construction industry, but clearly distinguishes their separate regulatory roles and responsibilities. (WCxKit)
The BCA represents those Building Control professionals responsible for ensuring compliance with Building Regulations, whether in Local Authorities or the private sector, and the professional bodies that accredit them.
Building Control professionals regularly visit sites and are in an excellent position to promote good health and safety practice to duty holders.
Philip White, HSE's Chief Inspector of Construction, signing on behalf of HSE, noted, "This agreement clearly sets out how HSE and BCA members can work more closely together. It is a further example of how everyone involved in the construction industry can spread the health and safety message, especially to the hard to reach small sites where the majority of fatal accidents take place.
"Today's agreement does not change a duty holder's responsibility to protect workers health and safety but has created another opportunity to get potentially lifesaving advice to those responsible for health and safety standards on construction sites."
Construction is one of Britain's most dangerous industries. Over the last 25 years, 2,800 construction workers have died. (WCxKit)
Despite a welcome reduction in construction fatal accidents in recent years, a large number of construction workers still die or suffer major injury or serious ill health as a result of their work.
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
©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.
The Ohio Bureau of Workers Compensation (BWC) Board of Directors recently received a report on the performance of employer programs.
The report was presented to the Boards Actuarial Committee, and focused on new programs developed over the past few years to help employers reduce their premium costs, as well as the agencys largest cost-saving program, the group-experience rating program. (WCxKit)
According to the report, the number of employers participating in Group Rating remained stable from 2009 (97,604) to 2010 (96,575). It also concludes group participation has not been impacted by reductions in the maximum credibility discount as the number of employers participating at the maximum level remained constant from 2009 to 2010.
“Continual review and evaluation are crucial to understanding the impacts of the changes to the Group Rating program,” said BWC Administrator Marsha Ryan. “We are pleased with our progress in eliminating the extreme imbalance in what group-rated and non group-rated employers were paying for the same workers compensation insurance coverage, while maintaining incentive for employer participation in Group as well as other BWC program offerings.”
The Board also approved the agencys Fiscal Year 2010 Annual Report, which is published jointly with the Industrial Commission of Ohio. The report will be submitted to Gov. Ted Strickland and legislative leadership, and covers the period from July 1, 2009 to June 30, 2010.
In FY10, BWC managed 1.2 million open claims and paid medical and indemnity compensation to injured workers totaling nearly $1.9 billion. (WCxKit)
Other highlights include the identification by BWCs special investigations department of more than $66 million in workers comp fraud, representing $6.30 in fraud identified for every dollar spent; and the devotion of 96 cents of every premium dollar collected to the care of injured workers, compared with the U.S. average of 69 cents.
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©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.
The Workplace Health, Safety and Compensation Commission (the Commission) for New Foundland reported that the average assessment rate for employers in the province will remain at $2.75 per $100 of payroll for 2011. Approximately 65 percent of employers will see a reduction in their assessment rates in 2011, while 35 per cent will experience an increase. (WCxKit)
Assessment rates are premiums paid by employers to cover anticipated costs of workplace injuries, return-to-work programs, prevention initiatives and the cost of administering the workers compensation system.
“The $2.75 rate has remained unchanged for five years despite the fact that medical costs have increased significantly,” said Leslie Galway, CEO of the Commission. “We have been able to maintain this rate due to a declining injury rate, a sound fiscal policy and good management practices at the Commission, but there is much work to be done. While we continue to work hard to ensure every man and woman returns home safely at the end of each working day, we are increasing our efforts to help those injured on the job return to work safely.”
For injured workers, the maximum compensable and assessable earnings limit is increasing from $51,235 to $51,595, reflecting a 0.7% increase in the consumer price index (CPI). Any injured worker whose pre-injury earnings are at or above the new maximum compensable limit will be compensated based on the new limit effective January 1, 2011.
Serving over 17,000 employers and approximately 12,000 injured workers, the Commission is an employer-funded, no fault insurance system that promotes safe and healthy workplaces, provides return-to-work programs and offers fair compensation to injured workers and their dependants.(WCxKit)
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©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.
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