3 Actions to Weed Out Marijuana-Related Workers’ Comp Challenges

The trend of legalizing marijuana for medical and/or recreational use is growing and may soon affect nearly all states. The recent election brought the number of ‘medical marijuana’ states to 28 plus the District of Columbia; while eight states now allow it for recreational use. Add to that the fact that several states have seen cases that allow injured workers to obtain the drug through their workers’ comp systems, and you’ve got a veritable nightmare for employers — especially those in multiple jurisdictions.

 

But employers don’t have to sit by and watch your workforce go up in smoke. You can — and should — take steps to keep your workers, property and the business itself safe.

 

 

Drug testing

 

The most effective way to prevent drug-related workplace injuries and illnesses is to avoid hiring drug users. While passing a drug test certainly doesn’t guarantee an employee won’t use marijuana or other drugs down the road, it is at least a way to eliminate habitual users from entering your workforce.

 

Even in states where marijuana is legal — for medicinal or recreational purposes — private employers still have the right to test conditionally-hired job applicants. How you handle a positive test result, however, likely differs among states; so it behooves you to understand the laws in your jurisdiction.

 

Beyond pre-employment testing, employers may also do drug testing randomly, based on reasonable suspicion, for return-to-work screening and post-accident. OSHA’s new injury reporting rule has raised many questions about whether employers that conduct post-accident drug testing may run afoul of the agency.

 

OSHA has tried to clarify the confusion by saying drug testing policies should be limited to situations where drug use is “likely to have contributed” to the incident, and for which the test can “accurately identify impairment.” Injuries such as bee stings, repetitive strain injuries or one caused by a machine malfunction would not qualify for mandatory testing, under OSHA’s explanation. Federal drug testing has not changed.

 

There are generally three types of drug tests:

 

  • Urinalysis. The first and still most widely used, this is less expensive than some other test methods. It detects most drug use for the previous 2–3 days and is the only type allowed for federal testing. On the downside, it is easily manipulated and cannot measure the frequency of drug use.
  • Oral fluid. These are collected under supervision, making tampering impossible. It determines drug use for up to 48 hours and is generally inexpensive. It also does not measure frequency of use.
  • Hair. Perhaps the best for pre-employment tests, as its detection window is generally 3 months. However, it is the most expensive type of test. Also, it typically takes longer — up to 10 days versus 1 or 2 — for the results.

 

 

Create/Update Drug-Free Workplace Policy

 

Lower job performance, reduced productivity, absenteeism and higher workers’ comp costs are among the results of workers who abuse drugs. As an employer, you are obligated to provide a safe work environment for all employees. Those are among the biggest reasons to have a workplace drug and alcohol policy — and communicate it clearly to your workers. A policy can include the following:

 

  • Basic assumptions. The policy should spell out why the company is establishing it, what is expected of employees and the consequences for violations, including dismissal.
  • Broad statement. The policy should clarify that employees may not perform their job duties under the influence of alcohol, illegal drugs, or mind-altering prescription medications — including marijuana. In states where marijuana is legal you should include a section with clear guidelines devoted to that drug.
  • Drug testing. If your company conducts drug tests, that should be included with the specific procedures outlined. It should also say that workers with prescribed medical marijuana may not use the drug while at work. The policy should be similar to that for narcotic prescriptions.

 

Workers in states that have medical and/or recreational marijuana laws on the books are likely confused about their rights to the drug in the workplace. Therefore, you should train supervisors on it and ensure all employees understand it. Employee handbooks, posters, intranet messages and other technology-related approaches are ways to disseminate the policy.

 

 

Know the law

 

Before drafting or changing a policy you need to understand the specifics of all the jurisdictions in which you operate. Much like the workers’ comp system itself, marijuana laws vary by state. Statutes may have vastly different provisions, especially when it comes to the workplace.

 

In states where the drug is legal, courts have taken different actions as to whether marijuana is reimbursable through the workers’ comp system. Following several court rulings, New Mexico passed a reimbursement rule.

 

In other states, however, laws say workers’ comp payers are not compelled to pay for the drug. They include Arizona, Colorado, Michigan, Montana, New York, Oregon and Vermont.

In some states, employers that can prove the drug is the cause of a work-related injury are off the hook for reimbursement. In others, the injured worker may be entitled to payment even if the drug caused the accident.

 

Summary.

The laws surrounding marijuana are changing rapidly. Employers are well advised to stay abreast of this constantly changing situation through legislation and case law; review and update workplace substance abuse policies often; and consider drug testing — at least for pre-hiring.

 

 

For additional information on workers’ compensation cost containment best practices, register as a guest for our next live stream training.

 

Author Michael Stack, Principal, COMPClub, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder of COMPClub, an exclusive member training program on workers compensation cost containment best practices.

 

Contact: mstack@reduceyourworkerscomp.com.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Marijuana Impact on Workers Compensation

Problem:

 

23 States and the District of Columbia have or will be approving recreational marijuana use.   Chances are more states will approve recreational use since politicians have discovered a tax gold mine from marijuana.  Unfortunately marijuana use is very dangerous.

 

Marijuana intoxication contains as many as 400 known chemicals entering the body.  Marijuana smokers inhale more deeply and keep the smoke in their lungs longer. These smoke toxins and use procedures make it more dangerous, allow for greater side effects, as well as allows for greater permanent disabilities.  One ingredient THC has increased in toxicity and causes the greatest disability of brain damage.  In 2008 it reached a high of 9.6%.  Some foreign marijuana has been found that exceeded 24%.  (Interactions with other bodily functions and prolonged use deterioration are still being developed by the scientific and medical communities.)

 

Deteriorating health and employee performance impacts from marijuana use can become part of a workers compensation injury claim. Employees under marijuana intoxication coming on the job, or becoming intoxicated on the job, have great potential to cause or create situations for on the job injuries.   Should this happen, the employer can be faced with paying weekly benefits and medical care costs.  This may even cause exposures for the  employee’s lifetime.  Remember worker compensation laws require that the employee must be brought to pre-injury status.

 

 

Employer Reliefs Minimal:

 

Most or all workers compensation acts provide the employer with relief or no responsibility for employee self-inflicted injuries.  Substance abuse with resulting health impairment has been held to be self-inflicted and workers compensation cases have been denied based on this premise.

 

Two theories stand to defeat such relief. First the state law or a decisional finding, requires the employer to take the employee as found.  This means, any underlying health condition or pathology aggravated by a compensable injury becomes the employer’s responsibility to address and correct until the employee is brought back to pre-injury status.

 

Second, all workers compensation judges and referees operate on the presumption that the employee is to be given as much leeway as possible.  The rulings and decisions are to favor the employee as much as possible.  The employers have to present extraordinary evidence In order to have any hope of prevailing with a decision in their favor.

 

State Second Injury Funds used to assist employers with reliefs from non- related injury issues.  Currently, most states funds are almost non-existent.  The few that are functional require difficult steps for relief.  Employers need to have knowledge of a pre-existing condition prior to the compensation injury.   Most funds require the employer to pay first and seek reimbursement.  Since many state fund second injury units are often under-funded, recovery may be slow.

 

 

Determining Marijuana Usage:

 

There are basic signs for the layman to suspect marijuana use and intoxication.

 

 

The following steps are some outward signs.  As with any substance, many employees can hide their use.  Do not challenge the employee or make accusations without factual investigations and toxicology studies to confirm use.

 

  1. Loss in train of thought during conversations.
  2. Increase in appetite with gorging on junk food and sweets.
  3. Lack of energy and loss of motivation.
  4. Excessive sleeping patterns.
  5. Bad sleeping habits.
  6. Possession of Drug paraphernalia. (Most users roll their own cigarettes.)
  7. Legal or financial problems.
  8. Paranoia attitudes. (Everyone is out to get me.)
  9. Slow down or poor performance of work duties.
  10. Glassy eyes or staring off into space.
  11. Slurred speech.
  12. Poor vehicle operation and lack of attention to driving rules.
  13. Tips from fellow employees.
  14. Data from accident and health claim records.
  15. Excessive use of sick time.
  16. Deterioration of personal grooming.
  17. Prolong observation of these signs. THC stays in the body for days up to weeks depending on the amount and length of use.

 

 

Develop Policy and Procedures for Marijuana Intoxication.

 

Start a policy and procedure program soon as possible.  Use a professional organization that specializes in developing and implementing the program.  Be sure the procedure conforms to good legal practice and evidence obtained will be upheld and hard to challenge by the employee.

 

Always include a toxicology study when screening new employees and require pre-employment physical examinations.

 

Join with other employers and industry associations in petitioning legislators for changes in workers compensation law that will work to bring this problem under control.

 

 

Summary:

 

Marijuana use is here and will affect workers compensation claims dramatically.   The exposure and associated cost will be monumental.  Develop a policy and procedure that will work to minimize these consequences.

 

 

 

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

Is Your Workplace Truly Drug-Free?

As an employer, you want to give your employees the benefit of the doubt.
Sure, you want to believe that all your workers come to work each and every day drug-free, but can you say that with 100 percent certainty?
According to the National Council on Alcoholism and Drug Dependence (NCADD), drug abuse in the workplace costs business owners $81 billion annually. With that staggering figure in mind, you as an employer have to do everything possible to make sure your business stays drug free.

 

 

Workers Comp Impacted

 
If you did not already know this as an employer, take note that running a drug-free workplace allows you to reduce your required workers comp premiums. In what should be common sense, no drugs in the workplace (included to mean employees do not report for work under the influence) means reduced risk for the on-the-job accidents.
Looking nationwide, if Georgia employers have their drug-free workplace program certified by the Georgia State Board of Workers Compensation, they get in return a seven and one-half percent (7.5%) reduction on their workers comp premium. When the employer submits a copy of their certificate of a drug-free workplace yearly to their comp insurance carrier, they continue to receive the 7.5% decrease in their total work comp premium.
Self-insured employers in Georgia can also take advantage of the savings.
The self-insured employer submits a copy of their drug-free workplace program certificate when they file their annual payroll report. The self-insured employer can decrease the monetary figure they set aside for “premiums” which in turn will lessen the amount of company is regularly assessed by the Georgia State Board of Workers Compensation.
The state statutes in Alabama, Arkansas, Florida, Mississippi, South Carolina, Tennessee, Virginia and Washington State all include provisions that stipulate a five percent (5%) discount on workers comp premiums for providing a drug-free workplace. Keep in mind that a number of these states do in fact require an annual certificate as does Georgia, so review with the state department that administers workers comp in your state.

 

 

Ohio, Hawaii and Idaho
In the Buckeye State of Ohio, officials implemented a five-year phased in workers comp premium decrease for those businesses sporting a drug-free environment.
As the five years culminates, the employer showcasing a drug-free workplace over the five-year period gets a 20 percent decrease in the comp premium the state charges.
In the Aloha State, Hawaii businesses who offer both health and safety programs to include a drug-free workplace policy, also obtain a five percent insurance premium discount. (The difference with Hawaii and the other 5 percent discount states noted earlier is you have to have implemented both a safety program and a health program to receive the discount).
Lastly, Idaho’s state statute does not specify the figure for premium reduction the employer will attain for a drug-free workplace.
Their law states that the employer who provides drug and alcohol testing for all prospective employees and present workers will qualify for a workers comp premium decrease.
In the event you operate in a state not mentioned, be sure to ask your broker what premium decrease you may be eligible for in running a drug-free workplace program.
Think about it, having a drug-free environment in your workplace makes for better employees, better rates on your comp costs, and ultimately better revenue.

 

 

 

Author Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

The P’s and Q’s Of Different Types Of Drug Testing

Most employers understand the importance of drug testing to prevent accidents that can injure people or property. Work related accidents resulting in employee injuries should include a drug test as part of the immediate medical care.

 

Most private employers have a legal right to test for a wide variety of drugs. This can be complicated when there is a union. It is important that before designing a drug-testing program that an employer knows the various state and federal laws that apply to them. For more information about various state drug testing laws see http://reduceyourworkerscomp.com/drug-testing-state-laws/

 

A drug test involves taking a biological specimen and having it analyzed for the presence or absence of specific drugs or their metabolites, the products of metabolism. The biological specimen can be urine, blood, hair, saliva or even sweat.

 

 

SAMHSA Panel

 

Federal agencies conducting drug testing must follow procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services. More detailed information about drug testing is available from http://www.dol.gov/elaws/asp/drugfree/drugs/screen92.asp.

 

The five substances tested in federal drug-testing programs are:

 

• Cannabinoids (marijuana, hash)

• Cocaine (cocaine, crack, benzoylecognine)

• Amphetamines (amphetamines, methamphetamines, speed)

• Opiates (heroin, opium, codeine, morphine)

• Phencyclidine (PCP)

 

 

Blood Test

 

A blood drug test is more accurate than the testing of urine. The blood sample is drawn from the employee, labeled and sent to the laboratory where it is placed in a centrifuge where the blood plasma and blood cells are separated. The plasma is then tested for the presence of illicit drugs. Blood testing is not commonly used as it is considered more intrusive and is expensive. However, it is considered the most accurate drug test.

 

 

Urine Drug Screen

 

The most common drug test is the urine drug screen called urinalysis. This typically involves collecting a urine specimen in a cup specifically designed for this purpose. The cup comes with a cap that seals. The cap is sealed with tamper resistant tape. A label with the either the employee’s name or a unique number is used to identify from whom the specimen was obtained. The urine specimen is delivered to the screening laboratory.

 

 

How Urinalysis Is Performed

 

To perform the test, a specimen is split into half. The first half goes into an analyzer that measures the presence or concentration of a substance in the urine. If the test shows the presence of a drug, the second half of the urine is test using a gas chromatography method. This means that they separate the urine into the various substances within it. The test results are then reviewed by a physician for confirmation. If the test results are negative, the employer is advised. If the test results are positive, the employee is contacted to see if there is any valid reason for the test result to be positive, e.g. use of a prescription drug.

 

A urine drug test has a longer detection window of time then a blood test. Urine tests are accurate for cannabis for at least three to seven days. However, they may be valid up to 30 days for heavy users or users with high body fat. Urine tests are accurate for cocaine for at least two to five days. Urine tests are accurate for amphetamines for at least one to five days, except for methamphetamine that is accurate for three to 15 days. Urine tests are accurate for codeine for two to three days and heroin for three to four days. They are accurate for PCP for three to seven days for a single use, but up to 30 days for chronic users.

 

 

Drawbacks of Blood and Urine Tests

 

Most illicit drug users know that urine and blood tests are accurate for only recent use and may try to delay their drug testing until their body has eliminated the drugs. Time is not the only factor that determines whether the drug test will reflect recent drug use. Factors include the type of drug used, the person’s body mass, metabolic rate, age, overall health, the amount and frequency of use, and their urine pH. Some drug users may try to flush the drugs out of their system by drinking copious amounts of water or detox drinks they can buy over the internet. There are also users who may try to pass off someone else’s urine as their own and various devices such as “the whizzinator” to try to help them accomplish this.

 

 

Hair Stat Test

 

In the last decade the use of hair in laboratory test for the detection of illicit drugs has developed into a reliable forensic toxicology method that has general been approved by courts. Once ingested, cannabinoids, cocaine, amphetamines and opiates are metabolized by the body. Their breakdown products enter the hair root where they are deposited and remain until the hair grows out and is cut off or the hair falls out. Except for the abuse of alcohol, hair is considered a very reliable indicator of illicit drug use up to 90 days after the drug was ingested. To perform the test a small amount of hair is cut off very close to the root. Some drug users have attempted to get around the test by dying their hair.

 

 

Sweat Patch

 

One method that courts and probation offices use to test for drugs is called the sweat patch. It is an adhesive patch similar to a nicotine patch that the user will typically wear for a week that will measure whether drugs are present in a person’s sweat. These have been the subject of court challenges.

 

According to the Tennessee Department of Labor, thirty-eight to fifty percent of all workers compensation claims are related to substance abuse. How the illicit use of drugs will impact the work comp claim varies tremendously from state to state. In approximately 40 states the employee’s workers compensation benefits can be denied or reduced for being under the influence of drugs at the time of accident.

 

 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com.
Editor Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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Techniques to Control Run-Away Cost of Narcotics in Workers Comp

All insurers and self-insured employers deal with the long-term medical treatment claims where the injured employees become addicted to one or more narcotics. Narcotics, which are opium based and are excellent for treating pain in the short run, have two problems. First, the human body adjusts to the medication, and in order to continue to obtain the same level of pain relief, the amount of the medication must be increased. Second, narcotics are highly addictive, and the injured employee can go through both physical and psychological withdrawal symptoms when the narcotics are taken away.
 
 
Employee Focus Can Shift From Recovery to Obtaining Narcotics
 
Unfortunately, often the injured employee’s focus shifts from recovering from their injury to obtaining their favorite narcotic(s). The injury, while real, becomes the excuse for obtaining the narcotic. Unless the employee has a very high ethical standard, the level of pain associated with an injury becomes overstated. As pain cannot be measured, the treating physician is relying on the honesty of the employee to determine the need for narcotics to manage the pain.
 
Also, for the employee with low ethical standards, narcotics become a source of income. Many narcotics prescribed for workers’ compensation injuries are resold by the injured employee. The illicit trade in prescription drugs is a huge problem for law enforcement throughout the country.
 
There are several techniques insurers and self-insured employers can used to attempt to control, if not stop, the run-away cost of narcotics. 
 
 
Techniques to Control Run-Away Cost of Narcotics:
 
  • Require the physician treating the employee to complete a urine toxicology drug screen at each office visit

 

  • If the prescribed medication(s) is not in the injured employee’s system, the further replacement of the medication should be stopped

 

  • If the prescribed medication(s) is in the injured employee’s system, but at a lower level then it should be, the dosage and/or frequency of the prescribed medication should be reduced accordingly

 

  • If the drug screen included cannabis or other illicit drugs, all narcotics should be stopped, if state law permits

 

  • Often there is a less expensive narcotic that provides the same level of pain relief to which the injured employee can be switched, for example from oxycodone to tramadol

 

  • Generic versions are available for many name brand narcotics

 

  • A request should be made to the nurse case manager to discuss with the medical provider the switching of the claimant from his/her favorite narcotic(s) to an opiate agonist. An opiate agonist is a drug that causes the receptors in the brain to feel the effects of a narcotic, even though the effect isn’t actually occurring.

 

  • If the medical provider has also been dispensing the drugs to the injured employee, a letter should be sent to the employee, employee’s attorney and the doctor advising all medications will be provided by the pharmacy benefit managing company through the pharmacy benefit card provided to the employee. This accomplishes two things, it removes the incentive for the doctor to over prescribe, and it prevents the employee from self choosing the pharmacies to obtain duplicate prescription refills.

 

  • A list of medications prescribed along with the dosage amount of each medication prescribed for the injury should be obtained from the medical provider. This list of medications should be provided to the pharmacy benefit management company with instructions to not provide any other medications or higher amounts than the prescribed dosages.

 

  • If the medical provider is indifferent to controlling the employee’s narcotics addiction, a drug utilization review to verify the adequacy and accuracy of the medications being prescribed should be completed.

 

  • A senior nurse reviewer can be utilized to constantly oversee and manage the drugs prescribed to an injured employee.
 
For more information on fighting narcotics addiction, or to obtain a referral to a drug utilization review company or to a nurse case manager, please contact us.
 
 
Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com
 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.  

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

The Best Tidbits of News from the Workers Comp Community

Here are the some of the hot topics from the Workers Comp world this week:

 

Teach Your Data To Fight Opiod Abuse

Workers’ Compensation research, networking communities, and press are overflowing with information about Opioid overuse and how it is negatively impacting claim costs and outcomes. Information about the problem abounds. Opioid abuse is clearly recognized as a serious problem in the industry, clearly evidenced by recent research.   Read More…


Rulebook Supplement 2012-13 Available Online

The Texas Workers’ Compensation Rulebook Supplement 2012-03 containing rules adopted by the Commissioner of Workers’ Compensation is available online from the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC). The supplement can be printed from the TDI website at http://www.tdi.texas.gov/wc/rules/supplements.html.  See more… Information provided by Downs . Stratford, PC 



Security and Risk Management as a Social Science by Emily Holbrook


Here at the Gartner Security & Risk Management Summit, I sat in on a session regarding human behavior and it’s connection to information security. Tom Scholtz, an analyst with Gartner, started off with a statement many of us know to be true, but often forget.

“The single weakest link in the information security chain still remains the human being,” he said.  Read More…

 

The High Cost of Treating Low Back Pain by Dr. David C. Radford from West Hartford Group, Inc.

According to the American College of Physicians, low back pain is the fifth most common reason for all physician visits in the United States. Approximately one quarter of U.S. adults reported having low-back pain lasting at least 24 hours in the past 3 months, and 7.6% reported at least 1 episode of severe acute low-back pain within a 1-year period. Low-back pain is also very costly: Total incremental direct health care costs attributable to low-back pain in the United States were estimated at $26.3 billion in 1998. It is estimated that the real cost of back pain including the cost of health care and lost production now exceeds $100 billion a year.  

To better understand the role of the nation’s chiropractic physicians in reducing the health care cost of low-back pain, WHG has produced a public service video announcement



Watch the video: http://youtu.be/Wfkg3hTSbDI


News From Lexis Nexis

Fifth Circuit Muddies the Water in Hearing Loss Cases

HEARING LOSS UNDER LHWCA

Stephen Embry

I Can See Clearly Now, Just Can't Hear So Good, by Stephen Embry, Esq. In the study of the law styled jurisprudence, there are many schools of thought. Some students of the law believe that past cases predict the future and that precedent must prevail. In this philosophy, past words have meaning and are the expression of internal logic that controls and instructs us as to how current and future conflicts must be resolved. Others follow another road, believing that past cases are at best examples of isolated arguments that worked in the past and may be instructive of arguments that may be useful in the future. Read More…


DEFENSE BASE ACT BILL

JohnKawcyznski

New Bill Proposes to Exclude Private Carriers from DBA Insurance Market, by John E. Kawczynski, Esq. Congressman Elijah E. Cummings (D-MD), the Ranking Member of the House Oversight and Government Reform Committee, has introduced the "Defense Base Act Insurance Improvement Act of 2012" (H.R. 5891) which would exclude private insurance carriers from the Defense Base Act insurance market. Instead, a new "Government Defense Base Act self-insurance program" would be created Read More…


THOMAS A. ROBINSON TO SPEAK AT NATIONAL WORKERS' COMP CONFERENCE

LexisNexis has partnered with the National Workers' Compensation Conference to create an enhanced legal track for attorneys and other workers' comp professionals.Tom Robinson thumbnailLexisNexis author Thomas A. Robinson will be speaking on several panels, including theFuture of Exclusive Remedy. View the program agenda. Overall, there are 15 members of the Larson's National Workers' Compensation Advisory Board speaking at this event. You don't want to miss this conference! Take advantage of the special discount for all LexisNexis Workers' Compensation Law Community members. Community membership is free at our site.

 

Note: If your company has any developments you'd like to share, please send them to us at: mstack@reduceyourworkerscomp.com

 

Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 

 

 

 


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Make Your Drug Free Workplace Program an Asset Not a Liability

As owner of OshaSure, a Birmingham-based safety and risk management firm, I evaluate workplace safety and risk for small to mid-sized companies. Falling into my scope of expertise is the company Drug Free Workplace Program (DFWP). It is troubling to report that a large number of my evaluations of this highly beneficial program reveal serious risk to the client.

 

Make no mistake about it; there is not another program that reduces the exposure to the employer more than does a well-crafted “DFWP”. The discount programs help offset the costs of the program. A well organized, legal “DFWP” will often equal in cost the amount of the discount or more. .[WCx]

 

Benefits of a Drug Free Workplace Program

The main benefit of the “DFWP” is the Workers Compensation carrier can deny a claim based on a positive test for drugs. Since initial development of the “DFWP” in the states, case law and precedent have determined that the “positive” drug test results must be causal to the injury. This means, in simple terms, that if the employee is standing somewhere on the job and a brick falls on the employee’s head, for example, the claim would not be paid even with a “positive” drug test result. This is due to the fact that the falling brick has nothing to do with the employee’s intoxication. This is fair and leaves most accidents well within the realm of denial of the claim.

 

 

Getting to the heart, here, my evaluations suggest that many firms are not placing a high enough emphasis on individual compliance with this program. I find glaring omissions such as little or no formal written policy or a lack of proper notification to existing employees and “new hires” about required testing. Further, not educating how prescription or “OTC” drugs can alter a test or alerting employees how and when to inform the employer that they are taking a prescription drug.

 

 

Customize the Program

Prescription drugs that can affect one’s ability to perform must be reported. Employers have the duty to place the employee in non safety sensitive positions, if applicable, for the course of the prescription.

 

 

This is just one of many reasons that all programs must be customized to the client.

 

 

The details of your program must be determined from the start to include situations unique to your company. The company policy should be developed by a knowledgeable HR employee or consultant and then reviewed by a labor attorney, familiar with your operations, and the DFWP laws and administrative codes in your state.

 

Training

Finally, training requirements vary from state to state; however, training in DFWP is required by all states; at minimum, employees are required to have initial and periodic training. Supervisors must have training in recognizing the signs and symptoms of alcohol and drug abuse and must be familiar with all related company policy and procedures. (I suggest annually for both)

 

 

 

Do Not Do it Yourself

Next, another troublesome finding with testing, I have found many companies selling “do it yourself testing” including hair, urine or saliva testing. The gold standard and all state programs rely on urine testing through a certified laboratory. A trained collector, along with a facility restroom dedicated and set up solely for drug testing is required. No matter the purported legality, the difference in cost of these types of “self tests” and a certified laboratory along with a medical review officer (MRO) is negligible considering what is at stake.

 

 

Remember, the discount is given not as a profit item but to help pay for the program and testing. There is no advantage in saving a small amount of money against the risk of losing a case due to improper testing. (This topic could well be its own article but for the purpose of this writing I assure you that using a nationally recognized laboratory along with a competent MRO is a “no brainer” to any risk assessment.)

 

 

Review your Program

Regular review of your DFWP is highly recommended. Make no mistake about it; this is a very punitive program that has the ability to take a huge amount of coverage from an employee.  As such, the stakes are high, the company will be viewed in litigation as the “big bad wolf” after “the little guy employee”. However, the law is clear and case law backs this up. If all ducks are in a row, the company can expect protection intended by the law.  .

 

 

It is not difficult or excessively costly to establish and maintain a program that is properly developed and funded from the start or at the point of re-establishing one after a deficiency is found.  NOTE:

Remember to receive your discount, you must verify annually that the program is complete. This consultant asserts that it is likely for the carrier to ask for a refund of discounts, if your program is not complete.[WCx]

 

 

Most challenges will be clear and your firm will be protected from excessive loss due to an employee’s violation of your company drug policy.

 

 

In closing, I suggest if you have not recently or regularly reviewed your DFWP, now rather than later is the time to do so.  Please see our workers comp resource center at LowerWC.com for more on state by state Drug Testing 

Brian Hill is owner of OshaSure in Birmingham Alabama and has over 20 years as a workplace safety and risk consultant. Brian was previously a pilot for a major US airline and member of the company’s interdepartmental safety committee. He found his new career in safety after the closing of the airline in 1991. Brian has found the same passion he had for flying in assisting companies with safety, heath and risk issues. For more information click on www.oshasure.com  205-296-0601  oshasurebh@aol.com

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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.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

 

Porn Industry Requires Condom Use for Workers Safety, Workers Revolt

 

pic3Earlier this month the Los Angeles City Council passed an ordinance requiring condoms to be used in all permitted adult films shot within their city limits. It brings up many interesting workers compensation issues. After all, this requirement is for the health and safety of employees. Is it any different from requiring construction workers to wear a helmet? Road workers to wear a bright, orange vest?

 

 

 

 

In this commentary on Salon.com porn performer, writer and director Lorelei Lee calls the ordinance well intentioned but ineffectual. She notes that the new law requires adult film production companies to pay a fee with permit applications. “Currently, condoms are used in the mainstream gay adult film industry (which includes only gay male films), while the heterosexual industry (which includes both lesbian and straight films) has used mandatory STI (sexually transmitted infections) testing as a health and safety precaution since the early 2000s,” she writes.

 

 

 

Lee writes that until May of 2011, the Adult Industry Medical Center, founded by a retired performer, ran a nationwide STI testing service and database that certified heterosexual performers as STI-free previous to their working on any production whereas the new ordinance is in response to a San Francisco-based nonprofit AIDS Healthcare Foundation campaign along with other groups that have picked and boycotted companies which sell or show condom-free pornography.

 

 

 

One of the protest leaders called the testing service a “fig leaf” over the adult industry and backed the lawsuit that led to the organization’s financial insolvency and shutdown last year, which left a vacuum in health and safety protections in the industry, Lee writes. “(He) seemed to hope that leaving performers without any kind of health protection would force legislators to mandate condom use,” she writes.

 

 

 

Lee writes that she became a condom-only performer in 2010 but had worked for eight years previously relying only on the testing service. “But during my time as a non-condom performer, I never once contracted an STI on set that condoms would have prevented, and truthfully, I’m not sure that condoms actually keep me safer than testing alone,” she writes.

 

 

 

She writes that performers have a mix of opinions as to whether they mind actually using condoms on set and some are even strongly opposed to using condoms at work, believing that they may actually increase likelihood of STI transmission.

 

 

 

Lee says what she is most opposed to is regulating condom use in the industry through government regulation. “Many of the people attracted to this industry are still those who don’t care a lot about public opinion or about obeying authorities. In the case of a condom mandate tied to permits, many producers will simply shoot in Los Angeles without a permit. Others will move production outside of the city – to places like Las Vegas, San Francisco or Miami, where some companies are already established,” she writes, noting that perhaps that s what the city is after.

 

 

 

In effect, Lee writes, this legislation has made it more difficult for the industry to use the protections already in place with AIM’s testing program. “We’re also opposed to the squandering of AHF resources – resources that could be effectively used to help prevent and treat HIV and AIDS – on a political campaign against an industry whose health and safety regulations are already working. In the decade since AIM began the program of mandatory testing, six performers have tested positive for HIV, and only three of those have shown to be from on-set transmissions,” she writes. “That’s three transmissions during the course of filming tens (or perhaps hundreds) of thousands of scenes. There are no real statistics as to how this compares to transmission rates in the general population.”

 

 

 

 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%Contact: RShafer@ReduceYourWorkersComp.com.

 

 

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©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

 

5 Ways a Pharmacy Benefit Manager can Control Prescription Costs

 
 
The cost of prescribed drugs, especially narcotic pain medications, is rising in the world of workers' compensation. This cost increase is due to the fact that a drug company is like any other company: When the demand for your product is high, supply lessens, and costs have to increase. And, these medications are not exactly cheap to manufacture. In fact I saw a news report that some cancer fighting drugs are in short supply due to overwhelming demand.
 
 
Think about going to your personal physician for a knee strain you had over the weekend playing football with your family. You probably went to your doctor, and you probably left with a prescription for Motrin buddied up with a short-term prescription for a narcotic pain reliever — even if a cold pack or hot pack and rest would have taken care of the problem. This is the world in which we live. In the past, these pain medications were for extremely acute trauma, such as a car accident or bone fracture. But more and more, medications such as Vicodin, Percocet, Oxycodone, etc are being prescribed for the slightly-above-average diagnosis of lumbar or shoulder strain. (WCxKit)
 
 
Below we discuss five ways you can try to control these associated drug costs when it comes to your workers compensation claims. By no means is this an exact science, but it is certainly one you should look into for help controlling your bottom line.
 
1. Come up with your game plan.

Whether you have five claims a year, or five claims per week, medication cost will be a significant expense of the claim. Many carrier/TPAs are partnering with a Pharmacy Benefit Manager (PBM) to review prescription history and also to provide a reduced cost for medications. These outside vendors attract carrier/TPAs by offering them a discount cost for medications, in exchange for their guaranteed business.

 

Adjusters set claimants up with a drug card from these vendors, and they are widely accepted at many pharmacies nationwide. Furthermore, the PBM will review the injury and the claimant’s individual medication history. They can recommend medications based on the injury type and location. This is an attempt to stop every John Doe back pain sufferer from walking out of his doctor’s office with an RX for Percocet, when he really does not meet the criteria for needing that strong of a medication to begin with. Most strains can resolve by taking a stronger dose of Motrin, an anti-inflammatory medication similar to Advil or Ibuprofen. The PBM will also monitor duration of medication use and quantity limits. Why pay for 90 pills when John Doe should only need 30? Medication costs are associated with dosage as well, so it doesn’t make sense to pay for 90 pills unless they are needed.

 

2.  Start being aggressive at the first prescribed RX.

When a new claim is filed and the adjuster sets the drug card up to be mailed out to the employee, it may already be too late. This is when proper communication is handy. If you have a worse-than-average claim, you can phone your adjuster with the info, and they can get the PBM info right to the claimant.

 

This way they are not getting medication from an occupational clinic or hospital, where the costs are typically the highest. Right off the bat they can use the PBM card, and that reduces cost right from the beginning. This also helps manage future spending on RXs, since they already have the card and should be using it for any medication the claimant is prescribed. Sure, not using the card for your first medication fill is no big deal if you only have one or two claims per year, but if you have one or two claims per week, over the course of a year this can lead to a dramatic savings in medication cost. Every little bit of savings will help in the long run, and it is important not to overlook the small savings that you can implement right away.

 

3. Can you do bulk home delivery?

For those injuries lasting longer than a month, it is worth it to look into home delivery of medications. This increases the discount, because you buy more of the medication at one time, and you do not have to pay the pharmacy overhead for a short-term 30 day fill. Injured workers will appreciate having one less errand to run, especially those who do not have easy transportation readily at hand. At the same point, the PBM will monitor dosage and quantity. Why should you continue to get a medication if it is not helping? Or, if the injured worker is not taking the medication at all? These are leakage costs, and expensive ones at that. The adjuster will ultimately decide if a claim is worthy of needing home delivery, and the delivery will not last forever. If a person has a bad fracture and will need a long-term supply of Motrin, this is a perfect scenario.

 

Adjusters do frown on home delivery of narcotic pain meds. This gives the claimant a large supply of potentially strong medication, which carries the risk of addiction. Home delivery meds are generally milder. Again, even though these drugs may not cost the most, any sort of savings is better than no savings at all.

 

4. Are you using prescription utilization review?

PBM companies use a panel of clinical pharmacists to examine prescription data and injury type to make sure appropriate medication is dispensed. This helps control unnecessary costs due to prescribing incorrect medication. Also, PBM utilization review will help to control fraud by monitoring the date and location of refills. Red flags indicating abuse include early refills, a doctor shopping around to get new prescriptions, or a patient changing pharmacies to get refills. Clinical pharmacists also are useful at catching new medication trends, proper quantities of medications, and future costs/needs for ongoing medications. 
 
By using prospective utilization review, done before the product is used, to avoid the cost, consider prior authorization program. By having an MD on the TPA's staff review the file, many of the medication concerns are addressed proactively. The utilization review company you use, should be URAC certified to ensure quality, credentials and training. A good TPA might even have a chronic pain program to discuss pain issues with an interdisciplinary team of experts. 
 
 
 
 
5. Use a Pharmacy Benefit Manager or vendor to help with repeat offenders and duplicate prescription medications.
 
This use of an outside PBM is effective for many reasons, including catching a doctor prescribing both a short-term and long-term narcotic pain medication, duplicate or similar prescriptions being unnecessarily prescribed, and implementing the use of generics whenever possible. The PBM will also participate in state-wide reporting, which will catch if a claimant has other narcotic pain medication fills before the date of injury. This can show the worker may have a history of requesting certain narcotics — a red flag for abuse.
 
 
Surveillance companies usually have a service that can do a background check of pharmacies, to see if your claimant has had fills of certain medications aside from the meds needed for your specific injury. This fights fraud, and can expose someone that may have a prescription drug problem. An easy way to get strong medication is to file a comp claim, and any weapons you have to fight fraudulent claims are worth it.(WCxKit)
 
 
In summary, a third-party PBM is a useful tool not only for cost-savings but also for catching the many forms of prescription abuse out there. Doctors get lazy when it comes to prescribing medications. Sometimes the answer to every injury is a prescription of Vicodin, Percocet, or some other narcotic when none are needed. Not only are these medications expensive, but they can carry long-term health problems including addiction, which only increase the overall cost of the claim. Using a PBM is another way of being proactive when it comes to handling your claims, and your carrier/TPA will have more information on what you can do to implement a PBM program for use on all of your claims that require prescription medication.
 

Ask your TPA what programs they offer.
 


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. She is the author of the #1 selling book on cost containment, Manage Your Workers Compensation: Reduce Costs 20-50% www.WCManual.com. Contact: RShafer@ReduceYourWorkersComp.com.
 
 

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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.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact

Solutions to the American Prescription Drug Abuse Epidemic Part III

 
Stuart Colburn, Esq., has done it again with his third installation on prescription drug abuse in America for the LexisNexis Communities on Workers Compensation. Part One explained “the problem”. Part Two identified stakeholders and his final blog offers solutions. You may read his complete blog here or take a look at this brief summary.
 
1. Government Regulation
“Prescription drug abuse and diversion is a problem requiring close interaction between public and private sectors. Stakeholders must work together using tools at their disposal in a coordinated effort to fight supply and demand,” Colburn wrote. He suggests a prescription drug monitoring program (PDMP) that would include:
 
– Scheduled and other highly abusive substances.
– Real time data transmission between stakeholders.
 -A requirement for doctors to check the PDMP database before writing a prescription.
– A requirement for pharmacies to check the PDMP database before dispensing narcotics.
Integration with neighboring states.
 
 
2. Physicians
“The public has an unreasonable view of the knowledge base of healthcare providers. Although every doctor graduated from medical school, knowledge itself comes from specialized training,” he wrote, “Scheduled narcotics should only be prescribed by doctors with the requisite training and experience. Those doctors granted the additional license to prescribe scheduled narcotics would be subject to additional regulation.”
 
 
3. Pharmacies
“Pharmacies should be required to participate in a prescription drug monitoring program for scheduled narcotics before dispensing scheduled narcotics,” Colburn suggested.
 
 
4. Pharmaceutical Companies
Drug companies should design drugs to deter abuse. Drug companies can employ manufacturing techniques, making it more difficult or impossible for drugs to be ground up into a powder,” he added.
 
 
5. Consumers
“Public education about prescription drug abuse should be paramount on billboards and in our school systems. Every day, 7,000 young people abuse prescription narcotics for the first time. Patients who receive a prescription or scheduled narcotics should also undergo approved education and information,” Colburn wrote.
 
 
6. Payers
“Payers should implement strategies designed to identify addicts, diverts and outliers. Payers should urge policy makers to adopt PDMP and common sense laws giving regulators the information and power necessary to fight PDA,” he wrote. “Payers have ever more increasingly sophisticated software able to perform advanced predictive modeling and performance analytics that can identify outlier doctors and possible addicts.”
 
 
© Copyright 2011 Stuart Colburn, Esq. Reprinted with permission.
For more information about LexisNexis products and solutions connect with them and become part of the conversation at Workers Compensation Law Community

This information was provided by attorney Stuart Colburn, a Shareholder at Downs Stanford in Austin, Texas. Colburn has extensive experience in all phases of dispute resolution before the Texas Department of Insurance, Division of Workers Compensation and in district courts across the state. Stuart represents clients regarding workers compensation, non-subscription, subrogation, and bad faith litigation. He is the founder and the first chairman of the State Bar of Texas (SBOT) Workers Compensation Section; course coordinator for the SBOT the Advanced Workers Compensation Seminar; and course coordinator for the Texas Workers Compensation Forum. He can be reached at:  scolburn@downsstanford.com

 
 
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©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

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