Roberto Ceniceros

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.

Integrated Disability Management

Thinking Outside the Absence Silo

Employers are increasingly looking at employee engagement and its role in disability management and return to work.
By: | July 27, 2015 • 3 min read
disabled worker2

Linking employers’ growing interest in worker engagement with an integrated disability management strategy can improve return-to-work outcomes following workplace injuries and non-occupational illnesses alike.

When engaged employees suffer an illness or injury they are more motivated than disengaged workers to return to the job, said Renee Mattaliano, VP and practice lead of workforce management at HUB International.


While that intuitively makes sense, the concept is also backed by quantitative research showing that engaged employees perform work tasks in a safer manner and rebound sooner from absence-causing illnesses and injuries.

A Gallup examination of 192 worldwide organizations with 1.4 million employees conducted in 2012, for instance, revealed that companies with engaged employees experience 48 percent fewer safety incidents, 37 percent less absenteeism, and a productivity increase of 21 percent, among other improved performance outcomes.

Sophisticated businesses in recent years have grown increasingly interested in worker engagement because of its impact on several components of corporate performance such as employee turnover rates, customer service satisfaction, and profitability.

A “Global Human Capital Trends 2015” report produced by Deloitte states that “this year, employee engagement and culture issues exploded onto the scene, rising to become the No. 1 challenge around the world.” Deloitte’s survey of businesses worldwide found that 87 percent percent believe the issue is important, while 50 percent called it very important.

“This year, employee engagement and culture issues exploded onto the scene, rising to become the No. 1 challenge around the world.” — Deloitte, “Global Human Capital Trends 2015”

Heightened business interest in worker engagement has included greater appreciation for its influence on absenteeism and disability management, said Karen English, a partner at Spring Consulting Group, an employee benefits and risk management consultancy.

“The concept is out there, it’s a matter of how much employers tie it all together,” English said.

Under one strategy tying employee engagement to absence management —whether absences are driven by workers’ compensation claims, short-term or long-term disability claims, or leave laws — HUB International advises employers to match the hiring of workers with roles that will specifically engage those employees.

To help employers do that, HUB International partners with Judgment Index, a company providing a predictive tool that helps businesses hire “the right person for the right job.” The tool “measures an individual’s judgment capacity as it relates to decision-making, stress management, how work is valued, and so forth,” according to a HUB paper on absence management.

The predictive tool, also named the Judgement Index, is neither an integrity test, a personality profile, IQ test, nor an emotional balance test, said Roger D. Wall, Judgment Index’s chief marketing officer.

The “values-based assessment” evaluates one’s judgment capacity and the strength of decisions they are capable of making, Wall said. It can help a prospective employer determine how motivated a prospective employee is and how well they fit a specific role, he added.


“We can tell you how motivated they are and what is their value of work,” Wall said. “If a person has a low value of work going into a work environment they are not going to be as engaged. And if a person becomes disabled (and) he doesn’t have a good value or work morale, he is going to be less inclined to go back to work.”

Completing the index takes a few minutes and requires subjects to rank or prioritize statements the subject deems most positive or agreeable.

Evaluating potential employees during the recruitment process with the goal of reducing absences or disability durations remains an innovative approach, said a disability-management consultant who asked not to be identified because they did not have corporate approval to speak.

For HUB International, applying the Judgment Index tool is a part of a comprehensive absence management approach that aims to integrate across workers’ entire “employment life cycle,” starting with their recruitment.

Employers are increasingly disregarding traditional corporate silos to develop comprehensive strategies for absence and disability management, HUB’s Mattaliano said. They are doing so by evaluating employee data regardless of whether it is generated by workers’ comp and disability claims, health and productivity measurements, group health outcomes or leave programs.roberto_sidebar.indd

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.
Share this article:

Legal Developments

Marijuana: The Great Pain Management Hope?

Some doctors are turning to marijuana when opioids fail to ease patient pain. And courts say the treatment is reasonable under workers' comp.
By: | July 6, 2015 • 4 min read
med marijuana4

Doctors supported workers’ comp claimants’ medical marijuana use when powerful opioid narcotics combined with other medications failed to relieve their chronic pain conditions, three recent New Mexico Court of Appeals rulings show.

Legal arguments in all three cases focused on whether insurers and employers must reimburse claimants for their medical marijuana consumption. In each case, the court ruled against insurers and employers, saying they must pay.


But the underlying facts in the three cases revealed that doctors supported their patients’ marijuana use when polypharmaceutical regimens — including several addictive opioid pain medications combined with numerous other drugs — failed to diminish chronic pain stemming from back injuries.

“The doctors, I don’t think, believe the opioids are a long-term solution [and the pharmaceutical pain medications may create their] own set of problems over time,” said Peter D. White, a Santa Fe, N.M., attorney who represented claimants in two of the cases. “I think they are hopeful medical cannabis will reduce the reliance, if not eliminate, the reliance on prescription pain medications.”

It is reasonable and not surprising that doctors treating patients suffering from intractable pain would try medical marijuana as an alternative to combinations of opioids and other prescription drugs, added Kevin T. Glennon, vice president of Clinical Education and Quality Assurance Programs at One Call Care Management.

“Physicians are always looking for alternatives,” to narcotics for patients with intractable pain because increased doses of narcotics become ineffective as patients build up a tolerance, while also increasing the risk of addiction, Glennon said.

Meanwhile, a June report published in the Journal of the American Medical Assn., based on a review of medical literature detailing existing clinical trials, found that “use of marijuana for chronic pain, neuropathic pain, and spasticity due to multiple sclerosis is supported by high-quality evidence.”

Several of the trials reviewed found that marijuana “may be efficacious” for pain, the report states. But the research does not support marijuana’s effectiveness for other illnesses, the review of past studies also found.

Court records in the three New Mexico cases do not reveal whether the doctors who authorized medical marijuana for the three workers’ comp claimants suffering from chronic pain based their decisions on such medical research.

“I think [doctors] are hopeful medical cannabis will reduce the reliance, if not eliminate, the reliance on prescription pain medications.”  —Peter D. White, attorney, Santa Fe, N.M.

But the records do show the doctors authorizing their patients’ marijuana use under New Mexico’s medical marijuana law called the Compassionate Use Act.

The latest of the New Mexico decisions, handed down on June 26, involved a chronic-pain patient consuming numerous prescription medications that commonly concern workers’ comp observers because of the drugs’ association with addiction and overdose deaths, while often failing to eliminate chronic pain long term.


Oxycontin, oxycodone, Soma, Norflex, gabapentin, Lyrica, Percocet, fentanyl, and Zantac are among drugs prescribed for the claimant, court records in the case of Sandra Lewis v. American General Media and Gallagher Bassett reveal.

In addition to those drugs, Lewis consumed medical marijuana and believed it was the most effective of the medications. One of three doctors who approved her marijuana use stated that other medications had failed to treat her chronic pain, and that the “benefits of medical marijuana outweigh the risk of hyper doses of narcotic medications.”

A court-appointed psychologist also supported her marijuana use for pain control, declaring it reasonable and appropriate. The court appointed the psychologist after the employer in the case requested an independent medical exam.

The appeals court eventually ruled that “marijuana constitutes reasonable and necessary medical care.”

Similarly, the January 13, 2015 appeals court opinion in the case of Miguel Maez v. Riley Industrial and Chartis shows that medications prescribed to claimant Maez for chronic back pain included Soma, Ultram, Sprix, Percocet, Lortab (oxycodone), and hydrocodone.

But when those failed to manage his pain, his doctor authorized medical marijuana as a trial, to see if it would help Maez.

In the third case, a May 19, 2014, appeals court opinion in Gregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty describes a workers’ comp claimant treated with “multiple narcotic pain relievers and multiple anti-depressant medications” for severe chronic pain.

His doctor also recommended marijuana services and provided the certification necessary under the Compassionate Use Act.

Employers in all three cases posed various arguments as to why they should not be responsible for funding the claimants’ marijuana use. But they found the court unsympathetic.

Many doctors remain skeptical about medical marijuana’s efficacy, said Victor A. Titus, a Farmington, N.M., attorney who represented claimant Miguel Maez. Therefore, the three cases may not represent a trend of doctors recommending marijuana as an alternative to prescription pharmaceuticals, he said.

“I know there are a lot of doctors who still don’t believe in medical marijuana,” he said.

But White has spoken with many injured workers who are certified to use medical marijuana in New Mexico, yet have not asked their insurer to pay for it.


They report, anecdotally, that the drug has effectively addressed their pain, White said.

Other cases could benefit from knowing whether medical marijuana helped the claimants in the three New Mexico situations eliminate their narcotic use, Glennon said.

“If they were willing to share that information that would substantiate that medical marijuana is beneficial,” Glennon said. “However, I have a feeling the reason that information is not readily available is they are still doing both.”Untitled-2

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.
Share this article:

Legal Developments

Growing Pains in the Sharing Economy

Experts expect not much will change regardless of the outcome of the Uber employment-classification appeal.
By: | July 1, 2015 • 5 min read

A recent finding that an Uber driver is an employee rather than an independent contractor has focused attention on the future of the sharing economy.

Whatever that future, observers don’t expect that the sharing economy, with its business models that rely on smartphone apps like Uber’s, will have a significant impact on workers’ compensation insurance.


They are, however, watching to see how state labor commissions, courts and legislatures nationwide will address the employment status of people providing a range of services through technology platforms such as those offered by ride-sharing companies like Uber and its rival Lyft.

“We are very interested,” said Peter Burton, senior division executive for state relations at NCCI Holdings Inc., a workers’ comp ratings and research organization.

“We actively are watching work comp commission decisions as well as legislative decisions.”

But NCCI’s interest in how states will eventually rule on whether workers in the sharing economy will be legally designated as contractors or employees is mostly technical. NCCI wants to stay abreast of matters, for instance, should it need to develop new rates.

So far, there have been few definitive legal determinations on the classification of on-demand workers, and whether app companies linking them to customers must purchase workers’ comp insurance. Consensus may also be elusive.

“It’s going to have to be adjudicated state by state and you are probably going to have all sorts of different opinions,” Burton said.

“Right now it’s still uncharted ground.”

The issue of whether the sharing economy’s on-demand workers should be classified as employees and legally entitled to a range of benefits and expense reimbursements has surfaced before.

“It’s going to have to be adjudicated state by state and you are probably going to have all sorts of different opinions. Right now it’s still uncharted ground.” — Peter Burton, senior division executive for state relations,
NCCI Holdings Inc.

But the topic recently gained increased attention when news stories reported that rapidly-growing Uber — valued at $40 billion — is appealing a California Labor Commission finding that a former chauffeur was an employee rather than an independent contractor as the company classifies its drivers.

The Labor Commission said that Uber could not exist without the work performed by the former driver. It essentially found that Uber exercised enough control over how the driver conducted her work to make her an employee. The ruling requires Uber to reimburse the former driver $4,152 in expenses and interest.

Uber argued that it is merely a technology company that allows drivers and passengers to conduct transportation business. It filed its appeal of the Commission’s ruling to a San Francisco County trial court on June 16.


The California Labor Commission’s decision applies to a single plaintiff. But the case’s eventual outcome, and other ongoing cases including class-action lawsuits with similar allegations against a range of sharing-economy app companies, could substantially impact Uber’s profitability and business model.

However regulators and courts in California and other states decide the employment-classification issue, the overall impact on workers’ comp insurer operating results will not be significant, said Robert P. Hartwig, president of the Insurance Information Institute.

If courts and regulators find that sharing economy companies are employers, then workers’ comp insurers would gain only modest opportunity to write new coverage for workers not currently covered by comp policies, he added.

“It would bring the payrolls associated with tens of thousands of workers into the workers comp exposure base,” Hartwig said. “The vast majority of which is not there right now. That would represent a modest opportunity for some insurers who are inclined to write these.”

Any premium volume growth would be limited because the number of people participating in the sharing economy is “very small,” Hartwig explained. About 7 percent of the U.S. population aged 18 and older has engaged in providing sharing-economy services.

Their participation typically is limited, rather than full time, and mostly conducted to supplement other income, Hartwig added. For instance, about 16 percent of people over the age of 65 have participated in the sharing economy, doing so to earn additional income.

Any new revenue workers’ comp insurers might gain from a group of newly insured workers could be offset by losses, Burton said. Insurers already understand how to rate taxi and limousine companies, but time would tell whether losses for ride-sharing companies differ.

Hartwig also wouldn’t expect significant impact on insurers should labor departments and courts take the opposite position, finding that people providing sharing-economy services are not employees.

Evidence does not exist that workers leave traditional jobs, where they are counted as part of employer payrolls and employers’ workers’ comp insurance exposure base, to exclusively participate in on-demand economy work, he said.

“There would be some very small amount of leakage from the overall payroll base to the extent that some occupations can migrate on net to this online platform, but that leakage is very, very small,” Hartwig said.

While there have been scant definitive rulings nationwide on whether shared economy participants are employees or independent contractors, “in most cases we have seen states leaning toward the side of independent contractor status,” Burton said.

That is consistent with Uber’s position.

In a June 19 press release announcing that it will appeal the California Labor Commission ruling, the San Francisco-based company said six states have found that Uber drivers perform services as independent contractors.


Uber also said that the recent California Labor Commission ruling is contrary to a previous finding by the same body. In 2012 the Commission ruled that a driver performed services as an independent contractor and not as an employee, Uber said.

“It’s important to remember that the number one reason drivers choose to use Uber is because they have complete flexibility and control,” the release states.

“The majority of them can and do choose to earn their living from multiple sources, including other ride sharing companies.”

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.
Share this article: