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Roberto Ceniceros

Roberto Ceniceros is senior editor at Risk & Insurance and co-chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.

Undocumented Workers

Workers’ Comp Laws Regarding Illegal Immigrants See Little Change

Will renewed calls to ban workers’ compensation benefits for illegal immigrants follow rising immigration worries?
By: | July 15, 2014 • 3 minutes min read
Immigration

With immigration grabbing headlines, some state legislators may decide to once again push bills to disqualify illegal immigrant workers injured on the job from receiving workers’ compensation benefits.

“Is it plausible that elected officials who feel strongly about the immigration issue might use the current instability to make a political point?” asked Bruce Wood, workers’ comp director for the American Insurance Association (AIA). “You can connect the dots. But from me sitting here today it would be speculation to say that is going to happen.”

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The immigration issue surged to the forefront recently with news stories of tens of thousands of Central American children flooding the U.S. border in recent months, an angry reaction by residents in one California town who blocked Homeland Security buses carrying illegal immigrants, and a political stalemate in Washington D.C. over immigration law reforms sought by business groups.

“There was definitely that wave [of legislation] four or five years ago and it has been pretty quiet on that front the last two or three [legislative] session cycles, but given the current news and political climate we are potentially expecting to see bills in 2015.” — Trey Gillespie, senior workers’ comp director for the Property Casualty Insurers Association of America

But with a history of businesses opposition to legislation denying workers’ comp benefits to illegal immigrant workers, any new bills could meet the same fate as those introduced in 2011 in Georgia, Montana, New Hampshire, and South Carolina.

Those legislative efforts failed to pass into law amid insurer opposition and concerns they would harm employers, including by allowing claimants to seek redress in civil courts rather than through workers’ comp systems where employer liability is limited.

“There was definitely that wave [of legislation] four or five years ago,” said Trey Gillespie, senior workers’ comp director for the Property Casualty Insurers Association of America (PCIAA), “and it has been pretty quiet on that front the last two or three [legislative] session cycles, but given the current news and political climate we are potentially expecting to see bills in 2015.”

That lull doesn’t apply to all state legislation regarding immigration-related issues, which rebounded in 2013 after falling off the prior year, according to the National Conference of State Legislators.

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Lawmakers in 45 states and the District of Columbia enacted 437 immigration-related laws and resolutions during 2013, affecting issues such as education, drivers’ licenses, and budget appropriations, according to NCSI. That compared to 267 in 2012, and included resolutions praising immigrant contributions.

AIA’s Wood recalled a 1999 Virginia’s Supreme Court finding that illegal immigrants in that state could not receive workers’ comp benefits when injured.

“The employer community took a victory lap after that and then AIA and others reminded them that this opened them up to tort exposure because there was nothing precluding an undocumented worker from filing a tort suit,” Wood said.

That new exposure pushed Virginia employers to support the successful adoption of a law requiring workers’ comp benefits, with the exception of vocational rehabilitation benefits, to be paid to undocumented workers.

Overall, despite legislative attempts over the years to prevent providing workers’ comp benefits to illegal immigrants, state laws on the matter have remained unchanged, Wood said.

“Notwithstanding all of the bills introduced there haven’t been a whole lot that actually got through and were signed into law,” he said.

But that has not stopped attempts, even recently.

In North Carolina, Sen. Thom Goolsby (R-Wilmington) amended House Bill 369 in late June to disallow workers’ comp benefits being paid to workers “not lawfully employable in the United States and [those who] knowingly made a false representation to the employer as to his or her legal work status.”

But on July 8, the bill was removed from the state Senate’s calendar and referred to a Senate Rules and Operations Committee, meaning it had stalled.

Insurers oppose such legislation because in addition to stripping employers of worker’s comp exclusive remedy protections, there is a public policy concern. Such laws could incentivize certain employers to hire illegal workers and ignore safety practices because they would not be obligated to purchase workers’ comp insurance.

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Those employers would gain an unfair advantage over other employers paying workers’ comp premiums.

“There is a concern,” said PCIAA’s Gillespie, “as to whether you are rewarding employers for knowingly hiring illegal aliens at the expense of employers who do their best to follow immigration and employment laws and pay benefits to their injured workers, as opposed to other employers who may get a benefit from hiring illegal aliens because they wouldn’t have to pay workers’ compensation claims arising out of injuries.”

Roberto Ceniceros is senior editor at Risk & Insurance and co-chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.
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Genetic Testing

Better Prescribing Through Technology

A growing number of physicians are turning to pharmacogenetics to evaluate how workers’ comp claimants will respond to prescription drugs based on a patient’s genetic makeup.
By: | June 20, 2014 • 3 min read
pill bottles

Doctors are increasingly turning to the genetic testing of workers’ compensation claimants to evaluate their tolerance for prescription medications such as opioid pain relievers, observers say.

Pharmacogenetics, or the study of genetic variations among individuals, has found broader use to test how patients suffering from cancer and other diseases metabolize prescription drugs and whether they are likely to derive therapeutic benefits or are at higher risk of suffering harmful side effects.

Now, more physicians are turning to pharmacogenetics to similarly evaluate how workers’ comp claimants will respond to prescription drugs based on a patient’s genetic makeup.

It is not yet a mainstream practice for workers’ comp claims, nor is it appropriate for all claims, said Candy Raphan, director of medical services for Broadspire, a third party administrator.

Candy Raphan, director of medical services, Broadspire

Candy Raphan, director of medical services, Broadspire

But the practice is taking hold, and a recent review of injured worker claims managed by Broadspire revealed “quite a few incidences where this was used in the last year,” Raphan added.

Doctors turning to pharmacogenetics are doing so to determine how workers’ comp patients might metabolize opioids and other pharmaceuticals used for “adjunct pain management,” Raphan said. They are looking to identify patients that may not respond positively to certain drugs or experience a “heightened response,” placing them at a high risk for an adverse drug reaction, such as overdose and death.

Physicians may also use it — by taking a swab from inside a patient’s cheek — as a tool for learning why patients may not respond to the “pain-relief intention” of a drug, despite dose escalation, Raphan said.

“If you are giving someone a medication and they keep saying, ‘I took twice as much because I didn’t get pain relief,’ it may be as a result of them not having one of those [genetic] factors so they can break that drug down to get that therapeutic benefit,” she elaborated.

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Advocates say pharmacogenetics could shorten injury and disability durations among workers’ comp claimants by eliminating common trial-and-error doctor attempts to find which prescriptions will benefit patients most.

It can also reduce treatment durations by eliminating harm caused when providing drugs a patient will not tolerate well, they add.

“We have seen providers say, ‘Let’s do some genetic testing to identify which drugs you are more likely to have side effects from, or are least likely to respond to or to tolerate, and let’s use that as a roadmap to guide our therapy,’ ” said Jennifer Strickland, VP and pharmacogenetics business leader for Millennium Laboratories L.L.C.

San Diego-based Millennium launched in 2007, providing urine-drug testing services for patients suffering from pain. The company moved into pharmacogenetics testing about two years ago.

Jennifer Strickland, VP, Millennium Laboratories L.L.C.

Jennifer Strickland, VP, Millennium Laboratories L.L.C.

There is interest in applying pharmacogenetics in worker’s comp cases because doctors are often attempting to address pain, which is a “very subjective condition,” Strickland said. It is difficult for them to find the right drug, especially while trying to meet the goal of returning employees to the job as soon as possible.

Most requests for testing are now coming from doctors, but Millennium has also held discussions with pharmacy benefit managers evaluating the practice and considering its application for cases where patients have not responded to medications prescribed to them, Strickland said.

For now, plenty of doctors remain hesitant about using a new technology.

But as the technology enters the mainstream, Raphan said she expects to see more doctors turn to it, “as long as the costs and the benefits align.”

Roberto Ceniceros is senior editor at Risk & Insurance and co-chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.
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Evidence of Impairment

Positive Drug Test Not a Slam Dunk in Court

Why did an appeals court find that an injured worker was eligible for comp, even though he tested positive for cocaine and admitted using it?
By: | June 13, 2014 • 4 min read
cocaine

Employers and insurers arguing that an injured worker’s illegal drug use should block payment of workers’ compensation benefits must pick their battles wisely amid state laws limiting the argument’s success.

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A recent appeals court finding that an insurer must provide benefits for an electrician who suffered electrical burns — despite post-accident urine analysis revealing cocaine use and the Texas worker’s admission that he consumed the drug — could have been the outcome in other states and serves as an example of a typical “proximate cause” hurdle that employers and insurers must clear.

Although employers regularly conduct post-accident drug tests, states often require proof that a worker was intoxicated or impaired at the time of the accident before allowing claims payers to deny workers’ comp benefits.

Merely establishing illegal drug use is not always enough.

Trey Gillespie, Senior Workers Compensation Director, Property Casualty Insurers Association of America

Trey Gillespie, senior workers’ compensation director, Property Casualty Insurers Association of America

“There becomes a problem sometimes when the insurer or the employer tries to prove that they were intoxicated at the time of the accident because there are not necessarily clear toxicology standards for establishing impairment,” said Trey Gillespie, senior workers compensation director at Property Casualty Insurers Association of America.

The June 4, 2014 opinion by Texas’ 7th District Appeals Court in the case of Bituminous Fire & Marine Insurance v. Ricardo Ruel shows the insurer failed to overcome that hurdle.

Prior to treatment of his electrical burns, Ruel provided a hospital urine sample that showed the presence of benzoylecgonine, a cocaine byproduct remaining in the body after cocaine is metabolized. He later testified he consumed two lines of cocaine and six beers on Tuesday night, prior to the Friday morning accident.

But a supervisor and a coworker, who also suffered burns in the accident, testified that Ruel appeared normal and fit for duty before an electrical explosion occurred while they replaced a cover on a trough containing live wiring.

The case eventually went to trial and experts for the insurer and claimant disagreed on the value of urinalysis in establishing Ruel’s impairment.

A jury concluded Ruel was not impaired at the time of the accident and the appeals court affirmed.

Under Texas law — as in other states — an employer is not liable for workers’ comp benefits if an injury occurs while an employee is intoxicated.

But the appeals court noted that “unlike alcohol consumption, there is no level or test defined by statute that establishes per se if a person has lost use of his or her physical and mental faculties due to the ingestion of a controlled substance.”

The court found it reasonable to conclude Ruel was not intoxicated and affirmed the trial court’s ruling in his favor based on the jury’s decision that he was not intoxicated.

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By contrast, Mississippi’s Court of Appeals found in a March 2014 ruling that a trucker who fell while exiting an 18 wheeler was not entitled to workers’ comp benefits after a hospital urinalysis showed cocaine use.

In William Walker vs. Williams Transport, witnesses testified that following the accident, the trucker “appeared out of it” and “a little disoriented.” He also admitted to past crack cocaine use and prior to the accident he called a supervisor for directions to a sand yard, even though he previously drove the route several times a day.

The appeals court found substantial evidence that Walker was intoxicated when he fell and injured his back and ribs.

In addition to the other evidence, the court found the testimony of a pharmacology and toxicology expert particularly significant. The expert testified that the urinalysis showed Walker used cocaine two or three days before the accident and that use likely caused disorientation that contributed to his fall.

Such cases typically require payers seeking to deny benefits to prove that drugs or alcohol were the accident’s proximate cause, meaning the injury would not have occurred but for impairment, said Jeffrey Adelson, a partner at Adelson, Testan, Brundo, Novell & Jimenez, a workers’ comp defense firm.

Jerry Adelson, general counsel and managing partner, Adelson, Testan, Brundo, Novell & Jimenez

Jerry Adelson, general counsel and managing partner, Adelson, Testan, Brundo, Novell & Jimenez

“Your first hurdle is proving the substance was in their body,” he said.

That is why employers want a urine sample obtained immediately following a significant accident, such as one that sends a worker to the hospital.

“The second hurdle is showing that the substance impaired their ability to engage in the accustomed activities of their job in a safe fashion,” Adelson added.

The second hurdle presents a greater challenge for employers and insurers, potentially requiring legal expenses including paying for medical and toxicology experts.

Court rulings resulting from an intoxication defense often hinge on case-specific facts, more so than other workers’ comp issues that are litigated, Adelson said.

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For example, the outcome in the Texas case may have differed had a jury learned that the claimant consumed cocaine ten minutes before the accident rather than a few days prior, as actually occurred.

The closer the drug use to the accident, the more challenging it is for the claimant to prevail, Adelson said.

The proximate-cause hurdle should force workers’ comp payers to carefully consider whether to litigate a case involving a worker who tested positive for drug use.

But it shouldn’t discourage employers from pursuing the defense when the facts weigh in their favor.

Consider the consequences should word spread among employees that a drug-using coworker caused an accident, yet gets to stay home and collect benefits.

Roberto Ceniceros is senior editor at Risk & Insurance and co-chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.
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