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Katie Siegel

Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at ksiegel@lrp.com.

Undocumented Workers

Claimant Pleads the Fifth, Wins Benefits

Refusal to confirm immigration status is not enough to prove an injured worker illegal and stop benefits.
By: | July 29, 2014 • 4 min read
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In the case of Cruz vs. the Workers Compensation Appeals Board (Kennett Square Specialties), the Pennsylvania Supreme Court established that employers bear the burden of proof when it comes to arguing that an injured worker’s immigration status is the cause of loss of earning power, rather than his injury.

In July 2008, David Cruz injured his lower back while working as a truck driver for Kennett Square Specialties, which operates a mushroom farm in Chester County, Pa. Cruz herniated a disc in his back while lifting 15- to 20-pound barrels into the truck and reported the injury immediately. Cruz’s physician, as designated by his employer, ordered that he lift no more than 15 pounds, barring him from returning to his pre-injury job.

Kennett Square informed Cruz that it had no positions available that suited his restrictions, and so paid him temporary workers’ comp benefits for roughly a month before ceasing payments altogether in September, 2008. Cruz subsequently filed a petition claiming that his ongoing, work-related injury rendered him totally unable to work, and thus entitled him to compensation for lost wages and medical expenses.

The real trouble arose during the hearing, when the employer’s attorney questioned Cruz about his immigration status. Cruz’s lawyer objected, citing his client’s Fifth Amendment right not to provide a self-incriminating answer.

Cruz was born in Ecuador and arrived in the U.S. approximately 10 years before the incident.

“In all of the cases that came before this, the injured worker admitted in the legal proceeding that they were undocumented. In most cases, the court used that as the basis for concluding that their benefits should be suspended,” said Matthew Wilson, attorney with workers’ comp firm Martin Law. “The Cruz case is interesting because it was the first time a lawyer got smart enough to say ‘we’re not answering that question.’”

While evidence proved that Cruz’s injury did in fact disable him and prevent him from working, Kennett Square moved to discontinue all compensation on the grounds that Cruz’s illegal status disqualified him from receiving benefits. Initially, the judge partially concurred with this argument, ordering Kennett Square to cover medical expenses (as the injury was decidedly work-related), but stop disability compensation.

“The second a doctor finds an injured undocumented worker can still perform some type of work, the court can legally suspend their wage check, but not their medical, on the premise that if they went looking for a job, they couldn’t get one legally because they don’t have documentation,” Wilson said.

An appeal by Cruz turned that around in his favor.

The state Workers Compensation Appeals Board (WCAB) found that in order to cease all disability compensation payments, Kennett Square bore the burden of proof to show that Cruz’s loss of earning power really stemmed from his status as an undocumented worker, rather than from his injury. Adverse inference of Cruz’s choice not to answer questions regarding his status did not qualify as sufficient evidence, especially since it was Cruz’s lawyers who invoked the Fifth, and not Cruz himself.

“They’re looking at immigration status differently and telling employers they have to do more than just ask the question, ‘are you here illegally?’ and assume that a lack of response proves they are,” Wilson said.

The final ruling ordered Kennett Square to continue both medical and disability compensation. The company appealed the decision in 2011, but on July 23, a Pennsylvania Commonwealth Court upheld the ruling in Cruz’s favor.

However, some judges issued opinions clarifying their stance that “we should assume the legislature did not intend to reward those who violate federal law in obtaining employment by allowing them to participate in a social insurance scheme for Pennsylvania workers.”

Mr. Justice Saylor argued that inferences should be given greater weight as evidence, stating that “inferences do not exist in a vacuum, but stem from factual evidence. Where a witness affirmatively refuses to answer a question on grounds that the answer might incriminate him, I would not assign absolutely no evidentiary value to such refusal.”

That being said, the judge still felt the employers should be held responsible for injuries incurred on the job, regardless of immigration status.

“I would be receptive,” he said, “to reconsidering the soundness of the determination that a worker’s immigration status alone can present a lack of earning power for purposes of an employer’s request to suspend benefits, so as to relieve the employer of the burden to demonstrate physical recovery from the injury.”

Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at ksiegel@lrp.com.
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Workers' Comp Leadership

Kathryn Mueller’s Presidential Plans

Focusing on disability prevention, ACOEM’s new president intends to increase its influence in the occupational medicine field.
By: | July 28, 2014 • 2 min read
Topics: Workers' Comp
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“We want to make sure the breadth of what we’re doing is well known, because healthcare is really a team effort now,” said Kathryn Mueller, the new president of the American College of Occupational and Environmental Medicine (ACOEM).

Muller was installed as president on April 30 during ACOEM’s 2014 American Occupational Health Conference in San Antonio, Texas, but has been involved with the organization since 1992 as a board member, secretary treasurer, chair of several committees and eventually vice president.

Mueller is also a professor at the School of Public Health and Department of Emergency Medicine at the University of Colorado Anschutz Campus, the medical director for the Colorado Division of Workers’ Compensation, and member of the Rocky Mountain Academy of Occupational and Environmental Medicine.

As president, her goals center on expanding the role of occupational medicine in healthcare and society as a whole.

“It’s interesting that among the Western European countries and the U.S. and Canada, we really all have similar issues going on regarding cost of disability and understanding of what our specialty is and how we can contribute,” she said. “All of us want to show how we can benefit society in a larger sense, because our name — occupational medicine — kind of makes people think the only thing we know about it is people in the workplace. But actually wellness and disability management extends outside of the workplace, to any injuries.”

Those efforts include working with other associations and professionals in the occupational medicine field.

“We’re working on a paper on marijuana with the American Academy of Occupational Health Nurses. We have been meeting with industrial hygiene and safety associations because we think the message of improving worker health overall and decreasing disability spans many professions,” Mueller said. “We want to make sure we are reaching out to physicians, physician’s assistants and nurses who may not be board-certified but are practicing in our field. We want to educate them.”

“All of us want to show how we can benefit society in a larger sense, because our name — occupational medicine — kind of makes people think the only thing we know about it is people in the workplace. But actually wellness and disability management extends outside of the workplace, to any injuries.”

ACOEM has also been updating its practice guidelines, having just passed guidelines for opioids that stress analyzing the level of opioid use for workers in safety-sensitive positions. Revisions are also in the works for guidelines on low back pain, which Mueller anticipates will include changed recommendations on the use of injections.

Again emphasizing the breadth of occupational medicine, Mueller highlighted the guidelines’ focus on quality care with the ultimate goal of improved function.

“And that’s not true for every guideline out there,” she said. “We take those ideas from the guidelines and those of us in occupational medicine are training other physicians to follow that type of thinking, aimed at improving patients’ function and decreasing disability.”

With a view to overall population health, Mueller said ACOEM is pushing its mission of reducing the occurrence of disability in the first place, not just to maintain productivity and control costs for businesses, but to keep society healthy.

“We’re the only specialty that does that,” she said.

Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at ksiegel@lrp.com.
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Pharmacy Cost Strategy

State PDMP Regulation Important for Opioid Control

The CDC highlights trouble zones for painkiller prescriptions, but lauds states with effective drug monitoring.
By: | July 18, 2014 • 4 min read
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In July, the CDC’s monthly report Vital Signs identified the states with the highest and lowest prescription rates for opioid painkillers — and the range is wide. While most states have some form of a prescription drug monitoring program (PDMP), their levels of effectiveness vary widely due to differences in enforcement and a lack of consensus over the appropriateness of opioid prescriptions.

“Health care providers wrote 259 million prescriptions for painkillers in 2012, enough for every American adult to have a bottle of pills,” the report said. Alabama and Tennessee were the highest-prescribing states, writing 143 painkiller prescriptions per every 100 people.

The report also gave kudos to states that have decreased opioid usage through tightened PDMPs and state enforcement. In the continental U.S., California had the lowest rate of prescriptions written in 2012 (second only to Hawaii overall), with opioids prescribed for only 57 out of every 100 people, compared to the national average of 82.5. In fact, California’s numbers were below average for all types of opioid pain relievers, including high dose, long-acting and benzodiazepines.

The state’s success can be attributed to its Controlled Substance Utilization Review and Evaluation System (CURES). The drug monitoring program requires dispensing pharmacy clinics to submit reports of all Schedule II through IV prescription drugs to the Department of Justice at least once per week, making its database an almost real-time source of patient prescription history. Health care practitioners can access the database to see a patient’s prescription history for painkillers dispensed anywhere in the state.

“Automated Patient Activity Reports (PARs) are available to physicians who log into their online PDMP accounts,” said Larissa Mooney, assistant clinical professor of psychiatry and director of the Addiction Medicine Clinic at UCLA. “These reports allow instant viewing of controlled substance prescription histories over designated time periods. Information provided by this database is one step towards reducing abuse and diversion of prescription drugs and their associated consequences.”

According to California’s Department of Justice website, the database contains over 100 million entries and responded to 1,063,952 report requests in fiscal year 2011-2012. Unlike other states, California does not require physicians to use the database before prescribing high-strength painkillers; their decisions to view patient histories are completely voluntary.

Dr. Karen Miotto, a physician in UCLA’s psychiatry and biobehavioral sciences department and leader of its addiction psychiatry services, told the CDC that supportive state agencies and medical associations have also bolstered the program, promoting its use through education initiatives.

Inadequate Education

Lack of addiction education in medical schools and too few substance abuse resources can undermine drug monitoring programs’ success.

“Physicians vary widely in their knowledge of substance use disorders and their ability to identify, diagnose and treat such disorders,” Mooney said. “Educating physicians on addiction risk factors, screening and clinical interventions could facilitate increased use of PDMP programs and incorporation of controlled substance prescription monitoring within clinical practice.”

Better education could spur physicians to identify patients at risk for addiction, seek alternative drugs for pain management, and prescribe only the lowest possible dose of opioids when necessary.

“Health care providers wrote 259 million prescriptions for painkillers in 2012, enough for every American adult to have a bottle of pills.”
— CDC Vital Signs; Opioid Painkiller Prescribing: Where You Live Makes a Difference; July 2014

In addition to lack of education, the report notes another key struggle states encounter with PDMPs is “complicated access and notarization procedures.” This is an area where state governments could intervene, creating policies to help streamline the process for those submitting and accessing data. California may have had an easier time with this since CURES is administered by its Department of Justice, rather than a pharmacy board or licensing agency, or Health and Human Services department.

State policies tightening regulation of for-profit pain clinics — or “pill mills” — could also reduce the prevalence of opioid prescription for non-medical use, a significant driver of demand for the drugs.

Another barrier may be the lack of a national database. Even in states with effective PDMPs, practitioners have an incomplete picture, seeing only what painkillers a patient has received in their own state but not others. While no plans for a national resource exist, the CDC report said the federal government can assist state PDMPs by “supplying health care providers with data, tools, and guidance for decision making based on proven practices,” and “increasing access to mental health and substance abuse treatment through the Affordable Care Act.”

Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at ksiegel@lrp.com.
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