George Miller (D-CA), senior Democrat of the committee said, "The legislation will make important program integrity improvements and will update benefit levels not adjusted for inflation since 1949. I agree with the majority that other programmatic changes recommended by the administration require further examination.”

 

 

1.      Enhancing efficiency to ensure the program reflects best practices in medical treatment and developments in the workforce.

2.      Improving integrity by granting greater authority to the Department of Labor to verify workers’ earnings.

3.      Modernizing the benefits federal workers receive to ensure the assistance they need reflects the realities of today's economy.

 

 

The report notes that committee leaders also requested a comprehensive review from the Government Accountability Office (GAO) of additional reforms that may be needed to strengthen the program and the impact of the potential reforms on beneficiaries. (WCxKit)

 

 

“FECA is the safety net for over 2 million federal workers who are injured or killed on the job, and the bill we are introducing today strengthens the law," said Lynn Woolsey (D-CA), senior Democrat of the Workforce Protections Subcommittee. "As we heard from many witnesses at a May 12 Committee hearing, more analysis is needed before we consider the proposed cuts to benefits for permanently injured workers and their survivors. So I am pleased there is a bipartisan effort to secure GAO’s input before we embark on further legislative efforts.”

 

To learn more about H.R. 2465, click here. To read the legislative text of H.R. 2465, click here.

To learn more about the federal workers compensation program, click here.

 

Posted in Federal Workers Compensation, Legal Doctrines |

The Ohio Supreme Court just issued a decision that may have implications for employers who have purchased stop-gap insurance. Many Ohio employers have purchased this insurance to protect themselves against employer intentional tort lawsuits, those cases in which their employees sue outside the workers compensation system on grounds the employer either deliberately intended to injure them or the injury was substantially certain to occur because of the employer’s actions.

 

 

Indeed, there is now an Ohio statute (R.C. § 2745.01) that governs such actions and gives rise to a presumption of deliberate intent when an employer removes a guard and the employee is injured. The question of whether such lawsuits must be defended by the stop-gap insurer has been decided, at least in part, in this recent Ohio Supreme Court decision.(WCxKit)

 

 

In this case of Ward v. United Foundries, et al., the Ohio Supreme Court determined the insurance company did not have a duty to defend in a case where the stop-gap policy had a specific exclusion for bodily injury resulting from an act which is determined to have been committed by the employer with the belief that an injury is substantially certain to occur.

 

 

In other words, the particular stop-gap insurance policy purchased by this employer specifically excluded these intentional tort actions. The court determined that this exclusion released the insurance company from the obligation to defend a claim. The court went on to state that the company could refuse coverage in the beginning, and need not wait until the jury rendered a verdict one way or the other.

 

 

Because of the exclusionary language, one would have to ask the question: what in fact did the stop-gap endorsement cover? The Ohio Supreme Court held that it covered lawsuits by relatives of an employee, lawsuits in a dual capacity where the employee was using a product manufactured by the employer and was injured and was suing on a products liability theory, and some other very esoteric situations. So the endorsement was not considered illusory.

 

 

While this is an important development in insurance law as it applies to employers and intentional torts, it does not answer all of the questions. Most of these stop-gap policies are intended to cover intentional tort claims, or at least to provide a defense. Thus, most stop-gap policies do not have the exclusionary language that this particular policy had. In those instances, will the stop-gap insurance apply, or does this case suggest there is a public policy argument against coverage?(WCxKit)

Employers will want to check with their insurance agents and brokers to determine whether or not their policy includes this exclusionary language and, if so, whether another and better policy can be purchased from the carrier.

Author George B. Wilkinson, Partner. Attorney Wilkinson is Workers Compensation Group Practice Leader at Dinsmore & Shohl in Cincinnati, OH. He can be reached at George.wilkinson@dinslaw.com or 513-977-8316. Many thanks to Attorney Wilkinson who has helped my clients and employers reduce workers' comp costs over the last 20 years.  

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Posted in Legal Doctrines |

 

 

The U.S. Department of Labor's Occupational Safety and Health Administration recommended $61,500 in fines for DuPont and $55,440 in fines for contractor Mollenberg-Betz Inc. (WCxKit)

 

 

 

 

 

 

Posted in Legal Doctrines, NY Workers Comp Issues, Safety and Loss Control |

 

In the new Global Report on Equality at Work 2011, the International Labor Office (ILO) is stating that in spite of continuous positive advances inanti-discrimination legislation, the global economic and social crisis has led to a higher risk of discrimination against some groups like migrant labour.

 

“Economically adverse times are a breeding ground for discrimination at work and in society more broadly. We see this with the rise of populist solutions,” said ILO Director-General Juan Somavia, adding, “this threatens painstaking achievements of several decades.” (WCxKit)

 

 

The report entitled Equality at Work: The Continuing Challenge, cites equality bodies which receive increased numbers of complaints, showing that workplace discrimination has become more varied, and discrimination on multiple grounds is becoming the rule rather than the exception.

 

 

It also warns against a tendency during economic downturns to give lower priority to anti-discrimination policies and workers’ rights in practice. “Austerity measures and cutbacks in the budget of labor administrations and inspection services, and in funds available to specialized bodies dealing with non-discrimination and equality, can seriously compromise the ability of existing institutions to prevent the economic crisis from generating more discrimination and more inequalities,” the report says.

 

 

According to the report, the lack of reliable data in this context makes it difficult to assess the exact impact of these measures. It therefore calls on governments to put into place human, technical, and financial resources to improve data collection on discrimination at the national level.

 

 

The report also notes that new forms of discrimination at work arise while the old challenges remain at best only partially answered.

 

 

 

1.      Significant progress has been made in recent decades in advancing gender equality in the world of work. However, the gender pay gap still exists, with women’s wages being on average 70 to 90 percent of men’s. While flexible arrangements of working schedules are gradually being introduced as an element of more family-friendly policies, discrimination related to pregnancy and maternity is still common.

 

2.      Sexual harassment is a significant problem in workplaces. Young, financially dependent, single, or divorced women and migrants are most vulnerable, while men who experience harassment tend to be young, gay, or members of ethnic or racial minorities.

 

3.      Combating racism is as relevant today as it ever was. Barriers impeding equal access to the labour market still need to be dismantled, particularly for people of African and Asian descent, indigenous peoples and ethnic minorities, and above all women in these groups.

 

4.      Migrant workers face widespread discrimination in access to employment, and many encounter discrimination when employed, including access to social insurance programs.

 

5.      Rising numbers of women and men experience discrimination on religious grounds, while discrimination based on political opinion tends to take place in the public sector, where loyalty to the policies of authorities in power can be a factor in access to employment.

 

6.      Work-related discrimination continues to exist for many of the world’s 650 million persons with disabilities as their low employment rate reveals.

 

7.      Persons with HIV/AIDS can suffer discrimination through mandatory testing policies, or testing under conditions, which are not genuinely voluntary or confidential.

 

8.      In the European Union, 64 per cent of those surveyed expected that the economic crisis would lead to more age discrimination in the labour market.

 

9.      In a limited number of industrialized countries, discrimination based on lifestyle has emerged as a topical issue, especially in relation to smoking and obesity. (WCxKit)

 

 

The Global Report recommends four priority steps to combat discrimination including the promotion of the universal ratification and application of the two fundamental ILO Conventions on equality and non-discrimination; the development and sharing of knowledge on the elimination of discrimination in employment and occupation; development of the institutional capacity of ILO constituents to more effectively implement the fundamental right of non-discrimination at work; and strengthening of international partnerships with major actors on equality.

 

 

 

Posted in EEOC Discrimination Laws, WC 101 |

 

 

 

 

 

 

 

 

 

“There may be some important lessons for policy makers in other states from the regulatory approaches used by Washington State,” said Dr. Richard A. Victor, WCRI’s executive director.

 

 

Other findings include:

1.      The average prescription cost per claim in Washington was 40 percent lower than the median of the 17 states in the second edition of the WCRI prescription benchmarks—after adjusting for the longer claim duration. Without this duration adjustment, the average prescription cost per claim was 11 percent lower than the 17-state median.

2.      The average price per pill paid to Washington pharmacies was 35 percent lower than the median state as a result of state policies and programs, such as: a formulary of approved drugs and therapeutic interchange, lower than typical pharmacy fee schedule, and mandatory generic substitution. (WCxKit)

3.      Physicians in Washington more often prescribed stronger, Schedule II narcotics, compared to physicians in the other study states.

 

 

More information on this study, available for purchase, can be found here.

 

Posted in Assessment & Diagnostics, Safety and Loss Control |

Workers compensation is a type of insurance employers are required to have to provide benefits to employees who are injured on the job or become ill due to on the job exposures. Workers compensation (work comp) insurance provides the injured employee with medical benefits and partial wage replacement benefits. All 50 states, the District of Columbia, Guam, the Virgin Islands and Puerto Rico have workers compensation statutes. Each jurisdiction has their own unique provisions as to what their work comp laws provide.

 

 

Work comp provides benefits to the injured employee without regard as to whose fault the accident was. In return for the guaranteed benefits, the employee can not bring legal action against the employer if the employer was in someway negligent and caused the accident.   The employee is not compensated for any pain and suffering that occurs as a result of the accident. (WCxKit)

 

 

Work comp has been referred to as a combination of health insurance, disability insurance and life insurance for employees. When the employee is injured or has an occupational disease, work comp pays the medical bills like health insurance does and provides partial wage replacement like disability insurance does. If the employee dies as a result of the injury or occupational disease, work comp will pay benefits to the dependents as a form of life insurance. Work comp does not pay any of these benefits if the employee injury occurs away from the job.

 

 

Employers in Ohio, North Dakota, Puerto Rico, the Virgin Islands, Washington State and Wyoming are required to purchase their workers compensation insurance from the state/territory government. In the other states, D.C and Guam, the employers can buy their work comp coverage from a private insurance company or in most states, self insure, if they are large enough to handle the financial risk. Some states allow smaller employers to join together to self insure. About a dozen states give the employer the option of buying the insurance from the state government. Texas is the only state that classifies work comp as voluntary insurance. If a Texas employer does not have work comp coverage, the injured employee can bring a lawsuit against the employer for their injuries.

 

 

In most jurisdictions there are four primary types of benefits available to the employee. They are medical benefits, disability benefits, vocational rehabilitation and death benefits. Medical benefits pay for all types of medical expenses including doctors, hospitals, prescriptions, durable medical equipment and other medical providers (like nursing services, chiropractors, physical therapist, etc). 

 

 

Indemnity benefits can be broken down into four primary types in most jurisdictions:

 

 

Temporary total disability benefits are the most common indemnity benefit. The injured worker receives on a weekly or a bi-weekly basis a portion (two-thirds in most jurisdictions) of their average weekly wage until they are able to return to work. 

 

 

If the injured worker is able to return to work , but only for a part of the time, or at a reduced rate of pay, temporary partial disability benefits are provided to make up a portion of the lost income until the employee is able to return to work full time.

 

 

When the employee receives a permanent injury and will be partially disabled as a result of the injury, permanent partial disability is paid to the employee to compensate for their future loss of earning capacity due to the partial disability. 

 

 

If the employee receives an injury that is very severe, and the employee will never be able to return to any type of work, the employee is paid permanent total disability benefits which can either be for a set of number of weeks (for example – 500 weeks) or is paid disability benefits for life, depending on the state law.

 

 

Vocational rehabilitation benefits are designed to assist the employee who is permanently partial disabled and is unable to return to work for the employer. The vocational rehabilitation benefits assist the employee in being trained for another job or obtaining the education needed to perform other work. (WCxKit)

 

 

Death benefits (usually in amount similar to the weekly disability benefits) are paid to the surviving spouse, dependent children or other dependents of an employee who is killed on the job or dies as a result of an occupational disease. Death benefits vary by jurisdiction, with some jurisdictions requiring death benefits be paid to the surviving spouse for life while other jurisdictions cap death benefits at a certain number of weeks (for example 400 weeks) or at a set dollar amount (for example ($250,000). Dependent children usually receive a portion of the death benefits until they are 18, or 22 if attending college. Surviving spouses normally lose the death benefit if they remarry.

 

 

  

 

 

 

Posted in WC 101 |

The Columbus (Ohio) Fire Division battalion chief who was the first female in that position has come up short in the discrimination lawsuit she filed against the city in federal court.

 

 

According to The Columbus Dispatch, U.S. District Judge Michael Watson dismissed Yolanda Arnold's claims that she had been harassed due to the fact she is black and that she had suffered retaliation because of her discrimination claims. Arnold also claimed she was humiliated and embarrassed. (WCxKit)

 

 

Watson ruled recently that Arnold did not offer specific proof of her allegations in three years of court proceedings that included a number of depositions of witnesses and presentations of exhibits like emails, newspaper stories and other documents.

 

 

According to Watson, a large amount of the evidence was hearsay, which was not admissible direct evidence of discrimination.

 

 

Arnold, 55, who is still a Columbus fire battalion chief, said recently that she is appealing the judges decision to dismiss her suit.

 

 

The lawsuit originated from allegations by city building inspectors in 2004 that fire inspectors under Arnolds command were missing inspections and collecting overtime pay.

 

 

Separate investigations by the Columbus police and fire divisions detected no wrongdoing. A third investigation, by a private attorney, reported management problems in the Fire Prevention Bureau, which Arnold oversaw, but it also found that claims of racial discrimination in the bureau were unfounded.

 

 

At the time of the third investigation, Fire Chief Ned Pettus accused Arnold of lying to investigators and suspended her for a week. She also was removed from the Fire Prevention Bureau.

 

 

Arnold filed the lawsuit in January 2008. Watsons ruling was in response to a request from the city for a summary judgment against Arnold.

 

 

Ten other Columbus firefighters who were employed as fire inspectors filed three similar discrimination lawsuits against the city in federal court. (WCxKit)

 

 

Watson dismissed a pair of those suits on March 31, the day he also threw out Arnolds. A third is pending.

 

  

 

 

 

Posted in EEOC Discrimination Laws, Legal Doctrines, WC 101 |

Shortly after stating that four more cancers were added to the list of occupational diseases covered by presumptive workers compensation legislation, Alberta Employment and Immigration (AEI) has proposed including the province's 10,000 volunteer firefighters under the presumptive umbrella, according to Canadian OH&S News.

 

 

On May 10, AEI came out noting that an amendment to the Workers Compensation Act had been recently unveiled that, if passed, would permit volunteer, part-time and casual (on-call) firefighters to receive presumptive compensation for the 14 cancers currently covered under the legislation. (WCxKit)

 

 

The amendments, which went to third reading on May 11, mean that firefighters regularly exposed to the hazards of a fire scene would receive workers comp minus having to demonstrate the burden of proof. The province's 3,500 full-time

 

 

The announcement comes six days after the government added the following items: prostate, breast, skin and multiple myeloma cancers to the 10 diseases presently assumed to be work-related. British Columbia, Manitoba, Ontario, Nova Scotia, Northwest Territories and Nunavut have likewise coverage for volunteer firefighters, according to an AEI statement.

 

 

Manitoba was Canada’s first jurisdiction to put in place presumptive legislation in 2002, which now includes 14 cancers and applies to full-time and volunteer firefighters. (WCxKit)

 

 

In Manitoba, the provincial Workers Compensation Board (WCB), the United Fire Fighters of Winnipeg Local 867 (UFFW) and Global Television recently partnered on a TV advertising campaign to back safe work practices and early detection and screening of occupational cancers, according to a UFFW executive board member.

 

 

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

When you get a “bad” report from an agreed medical exam (AME) or a panel qualified medical exam (PQME) your first thought might be to depose the doctor. Your second thought should be, maybe not.

 

 

 

 

1.      Doctors rarely change their opinions. Factors such as ego, bias, facts, and law often prevent doctors from changing their opinions. Even in the face of skilled questioning, a doctor will usually not change an opinion of industrial causation to non-industrial, reduce impairment, or increase apportionment in a deposition.

 

 

2.      The doctor might increase exposure. As your defense attorney is trying to reduce exposure, the applicant's attorney is trying to increase it! The applicant's attorney will probably try to rebut the standard AMA Guides rating with an Almaraz rating. And he or she may push for more medical-legal referrals.

 

Q: Dr. Ortho, my client completed your questionnaire, correct?

A: Yes.

Q: Did my client indicate complaints on the questionnaire outside your field of expertise?

A: Yes.

Q: What were those complaints, Dr. Ortho?

A: The questionnaire indicated complaints of anxiety, depression, difficulty sleeping, and sexual difficulties.

Q: You also took my client's medical history, personally, correct?

A: I did.

Q: During this interview did my client again complain of anxiety, depression, difficulty sleeping, and sexual difficulties?

A: Yes.

Q: Complaints of anxiety and depression fall within the specialty of psychiatry, correct?

A: Of course.

Q: Sleep problems could indicate neurological issues, correct?

A: Yes, that is correct.

Q: And sexual problems may indicate a disorder regarding internal medicine, correct?

A: Yes.

Q: You just indicated that all of these complaints fall outside the field of your expertise, correct?

A: That is correct, counsel.

Q: Referrals in psychiatry, neurology, and internal medicine would be required to fully address these complaints, correct?

A: Yes, that would seem reasonable.

 

 

Congratulations, you just bought three medical-legal examinations and untold additional exposure!

 

 

3.      If it is broken, why fix it? AMEs and PQMEs often write reports that provide industrial-causation or high-permanent disability but are not substantial medical evidence. There are many reasons why a report is not substantial medical evidence. Expert attorney advice is sometimes needed to reveal these flaws. But once the flaws are revealed, it is important to remember that it is the applicant's burden to prove industrial causation and the extent of impairment (LCS 3202.5). It is not the employer's burden. Hence, if a report is not substantial medical evidence, deposing the doctor may just give applicant's attorney and the doctor a chance to fix a bad report and make it substantial medical evidence.

 

 

4.      Time and money. A doctor deposition will probably cost more than $1,000 in doctor and defense attorney fees. And it will add several months to the life of the case.

 

 

5.      Maybe you can settle the issues. Use your knowledge and skills to negotiate, compromise, and settle the issues you have with the AME or PQME report. However, be careful not to reveal too much. Do not show all your cards. If you do not settle, you want to close discovery and set the case for trial, with the expectation that the judge will not base an award on reports that are not substantial medical evidence. If you tip your cards during negotiations, the applicant's attorney may decide that he needs to depose the doctor so he can fix the report and make it substantial medical evidence.
 

 

Important note: There are cases in which you should depose an AME or Panel QME. Nothing here is intended to imply you never need to. But you should consider the factors above before you set the next AME or PQME deposition.

 

California Attorney: Albert A. Navarra is a practicing lawyer from Newport Beach, CA, a Board Certified Specialist in Workers Compensation law, and a partner at Sapra & Navarra, LLP. Navarra is a frequent speaker about workers compensation issues, and has represented employers in the area of workers compensation for over 10 years. He is also an expert in constitutional law, the author of The Elements of Constitutional Law, and a frequent guest on radio stations across the country. He can be reached at: (866) 384-4891 or Albert@snworkcomp.com.

Posted in California Workers Comp, Legal Doctrines, Medical Cost Containment & Managed Care |

WorkCover New South Wales (Australia) recently announced the 47 recipients of the $6.7 million WorkCover Assist Grants Program to help employers, unions and not-for-profit group training organizations prepare for the new national harmonization of work health and safety legislation.

 

 

In total 24 employer associations were awarded $3.1 million, 14 employee representatives were awarded $2.1 million, and four not-for-profit group training providers were awarded funding worth $344,552. In addition, four employer associations and one employee representative received high risk focus area grants worth $393,487. (WCxKit)

 

 

WorkCover CEO Lisa Hunt said NSW represented around a third of all business activity in Australia and with more than 3.2 million workers in the state, the changes to work health and safety laws would affect a large number of people.

 

 

“It is important employers, employees and other stakeholders are ready for its implementation and I’m pleased to announce the 47 recipients of the WorkCover Assist grants,” Hunt said. “There were a significant number of applications for these grants. This demonstrates the interest in the national harmonization legislation and I’m pleased so many have been successful.

 

 

Hunt continued, “The harmonization of WHS legislation will reduce compliance costs and regulatory burden for employers and enable workers holding licenses to work across jurisdictions more easily.

 

 

“It will provide consistency in safe work standards across Australia and allow the states and territories to share resources and information more freely, leading to even safer workplaces.

 

 

“These grants will support not-for-profit group training organizations, employer associations and trade unions implement a range of programs to prepare for the changes.

 

 

“These programs will be rolled out across the next 18 months and will fund educational programs that will focus on what the changes will include, and what people need to know to meet the requirements of the new legislation.” (WCxKit)

 

 

These will include:

 

1.      Workshops and webinars for the retail industry

2.      Training courses, including facts sheets for manufacturing industry apprentices

3.      Educational site visits for small businesses like garden nurseries

4.      Direct mail-outs, publications and telephone training for stakeholders in the agriculture industry.

  

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