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 rceniceros@lrp.com. Read more of his columns and features.

Column: Workers' Comp

News or Noise?

By: | March 2, 2015 • 3 min read
Roberto Ceniceros is senior editor at Risk & Insurance® and 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.

Trial court judges in two different states ruled that workers’ comp exclusive remedy protections don’t apply. This raises the question: Is this something we need to worry about? There is continually information launched into the “stuffosphere,” but how much of it should we sweat over?

We all do our best to filter out the noise that clutters up the useful information out there, and these two legal cases exemplify why that is increasingly critical. These cases, pushed along by ample attention from pundits, have stirred workers’ compensation industry angst.

In one case, an Oklahoma judge ruled in mid-January that his state’s exclusive remedy law doesn’t provide a defense against foreseeable injuries. That followed an August 2014 ruling by a Florida judge who found his state’s exclusive remedy law unconstitutional.

I’ve heard that industry leaders are worried a similar ruling could surface in other states. While this is still more hype than an actual problem, such rulings could raise substantial coverage issues if they stick, an expert told me.

I’ll show my age by saying that pre-Internet I worked under a guideline that said unless an appeals-level court issued a ruling, it probably wasn’t worth writing about. If the case posed enough harm to employers and insurers, an appeals court would eventually let us know if claims payers indeed had something to sweat about.

No sense in pining for the old days, but there weren’t months of speculating and hand-wringing waiting for trial court decisions to wind their way through the appeals court process.

The Internet changed that.  Now, with many writers — some professionals and some doing great work while self-publishing — all looking for workers’ comp fodder to  fill pages, you find stories about trial court decisions, with their potentially dire consequences, told and retold before the appeal that you know is surely coming finally gets filed.

The Florida and Oklahoma decisions provide good examples of this.
Sure, it’s important to take note of the potential for exclusive remedy protections to slip away and a claimant attorney group vowing to take the fight to other states. Whether the risk of this happening is high or low, the severity could be devastating if it indeed occurs.

Many of the people writing about workers’ comp, meanwhile, truly understand their subject matter and excel at keeping us all informed.  They provide ample opportunity to keep abreast of industry trends and perhaps prepare us should the worst come about.

The work has value for a variety of reasons. Some of it is good for water-cooler conversations with colleagues who share an understanding of the subject matter. Some of it is priceless for providing a good chuckle when workers’ comp meets the absurd.

But there are many examples of stories suggesting potential crises ahead — crises that never happened.

A few years ago, for instance, many of us wrote about the potential for a new wave of claims due to increased mobile-phone use. While those claims do occur today, a tidal wave never emerged. Informed risk managers countered with rules prohibiting phone use while driving on company business.

Similarly, I suspect business interests will launch plenty of legal and lobbying resources to prevent exclusive remedy protections from eroding, whether in appeals court fights or in the lawmaking arena.

So more than ever, it’s important to view all the Internet-empowered pundit attention paid to various topics like this one by ceaselessly asking ourselves: “Is it worth sweating about this before an appeals courts renders its judgment?”

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Column: Workers' Comp

Time to Act on Diversity

By: | February 19, 2015 • 2 min read
Roberto Ceniceros is senior editor at Risk & Insurance® and 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.

As the executive director of the Puget Sound Workers’ Compensation Trust in Renton, Wash., Clairmonte Cappelle is keenly aware of the racial and ethnic diversity shift occurring among students in school districts across the nation.

But when the executive director of the self-insured workers’ comp pool for 35 school districts attends workers’ comp conferences and other functions, he hasn’t noticed a corresponding diversity shift in his industry’s workforce or leadership.

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He isn’t hearing industry discussions on specific strategies that might improve claims outcomes when injured workers come from a minority group.

Cappelle’s observation matters, because today’s students of various hues and cultures are our future workers and workers’ comp claimants.

The National Center for Education Statistics projected last year that 2014 would mark the first time that whites would make up less than 50 percent of the total number of students enrolled in public schools while the percentage of minorities grows. Their parents are already a growing segment of our workforce.

Recognition has spread that the insurance industry and workers’ comp service providers need to respond to our country’s changing demographics, but where are the strategies for moving forward?

Some have mentioned that the workers’ comp industry needs to respond, but there hasn’t been discussion on strategies for making that happen.

Cappelle, by the way, isn’t looking at this as a social justice issue. He’s looking at it as someone who must make business decisions to position his organization for success.

It would be helpful to have information on, for example, whether treatment compliance and claims outcomes improve when an injured worker interacts with adjusters, nurse case managers or doctors who understand their cultural sensibilities.

Is there claimant input that would speed claims resolutions, but gets lost when adjusters don’t understand differences in communication styles?

The safety side is more familiar with this. The American Society of Safety Engineers, for instance, has long sponsored forums to help overcome cultural and language barriers when addressing Spanish-speaking workers.

There have also been discussions about insurer communications with millennial employees and information on meeting the health and safety needs of aging workers.

A smattering of recent industry conference sessions have also addressed workplace diversity, with an industry leader or two expressing opinions on how diversifying the workforce can provide a competitive advantage as the insured-client population diversifies.

I have heard at least one CEO for a major third-party administrator discuss the potential advantages of meeting an increasingly diverse U.S. workforce with claims managers who can navigate cultural variations. And the title of “chief diversity officer” has been around for a few years at some major insurers.

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Recognition has spread that the insurance industry and workers’ comp service providers need to respond to our country’s changing demographics, but where are the strategies for moving forward?

“Now that we have identified this as a challenge for us, I am not seeing what the next steps are for us to meet the challenge,” Cappelle told me. “That is the piece that I think is lacking.”

He is right. The country’s changing demographic makeup has been in progress for decades. Just recognizing and discussing the issue is no longer enough.

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Legal Developments

When Comp and Non-Comp Drugs Collide

Workers’ comp payers are worried about poly-substance abuse cases, and the issue of who is liable if a mix of drugs proves lethal.
By: | February 11, 2015 • 5 min read
pill combo

Did pharmaceutical drugs prescribed to treat a work-related fall contribute to an employee’s death?

Or did other drugs prescribed by a personal physician treating a non-industrial illness cause his fatality?

If the pharmaceuticals prescribed to treat his workplace injury merely contributed to the worker’s demise, in combination with the other prescribed drugs, is that enough to trigger worker’s compensation death benefits for the employee’s surviving family members?

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Those questions underlie a legal battle over whether an employer and its worker’s compensation insurer must indemnify the deceased worker’s family. California’s Supreme Court will hear arguments in that legal battle next month in the case of South Coast Framing v. Workers’ Compensation Appeals Board.

While it is a California specific case, it epitomizes a concern shared by workers’ compensation claims payers across the country. They worry about courts forcing them to shoulder liability for adverse outcomes when a workers’ comp claimant consumes a dangerous combination of prescription drugs.

Courts in several states have already ruled that workers’ comp payers are responsible for providing surviving family members with death benefits when workers die due to overdosing on pain medications and other drugs prescribed to treat work-related injuries, said Mark Pew, senior VP at PRIUM.

Courts have reached such conclusions in overdose death cases, even when drug misuse or abuse occur beyond an employer’s control, Pew added.

A Washington state appeals court, for example, ruled in 2012 that a claimant’s widow was entitled to survivor benefits after her husband died after ingesting several prescribed pain medications in combination with alcohol.

Tennessee’s Supreme Court ruled, somewhat similarly, in 2011 that a workers’ widow was entitled to survivor benefits when her husband died after accidentally overdosing on oxycodone prescribed for work-related injuries.

In both cases, the workers’ comp payers argued that claimant behavior — consuming alcohol in one instance and ignoring a doctor’s instructions for consuming the medication in the other case — amounted to an independent, intervening factor that broke the causal connection between the workers’ deaths and their workplace injury.

Workers’ comp payers are extremely concerned about poly-substance abuse cases where worker’s comp claimants have been prescribed multiple medications that can lead to harmful outcomes such as addiction and death.

In California, courts have also held employers responsible for adverse results from medical care, including pharmaceutical prescriptions, given to treat workplace injuries, said Robert G. Rassp, a California worker’s comp claimant attorney at the Law Offices of Robert G. Rassp.

In one case, California’s high court ordered the defendant to provide treatment for a worker grown dependent on opioids prescribed for a work injury even though the claimant had a history of illegal drug use and dependence pre-existing the workplace accident that led to the opioid addiction, Rassp said.

Workers’ comp payers are extremely concerned about poly-substance abuse cases where worker’s comp claimants have been prescribed multiple medications that can lead to harmful outcomes such as addiction and death, Rassp and others said.

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But the case that will go before California’s Supreme Court on March 3rd is different, said Michael McClain, general counsel for the California Workers’ Compensation Institute. CWCI members include worker’s comp insurers and self-insured employers. The organization filed an amicus brief supporting the employer and insurer going before the Supreme Court.

While the worker’s death resulted from ingesting pharmaceutical drugs, California’s Supreme Court will review the burden of proof and causation standard required to determine whether the employer and insurer in the case must provide benefits to the worker’s survivors, McClain elaborated.

The case addresses worker’s comp death benefits sought by Brandon White’s surviving spouse and three children. They allege White’s death resulted from a work injury and “industrially prescribed medications,” court records state.

White died in 2009 after consuming amitriptyline, gabapentin and hydrocodone, prescribed by a worker’s compensation doctor treating back, head, neck and chest injuries caused when he fell from a roof while working for South Coast Framing Inc., the court records show.

But the exact role the drugs played in his death was complicated by his consumption of Xanax and Ambien, prescribed by a personal physician for anxiety and sleeping difficulties.

A worker’s comp judge found that White’s death resulted from medications consumed as a result of his industrial injury. South Coast Framing and its insurer, Redwood Fire and Casualty Co., administered by Bershire Hathaway Homestate Cos., filed for reconsideration.

But California’s Worker’s Compensation Appeals Board agreed with the judge’s finding and denied reconsideration.

Upon further appeal, however, a California appeals court reversed and denied the claim, essentially finding insufficient evidence that the prescriptions White consumed for his industrial accident caused his death. White’s wife then appealed to California’s Supreme Court.

In an amicus brief filed to the Supreme Court in support of White’s family, the California Applicant’s Attorneys Assn. argues that the appeals court erred in denying death benefits because it did so by introducing a new, more rigorous standard.

The appeals court erred, the attorneys argue, when it found that one of the drugs prescribed to treat White’s work injury was not a “material factor contributing” to his death.

They argue that the appeals court ignored standing law and should have made its final determination based on whether the drug was a “proximate” or “contributory” cause of death, not a “material” or “substantial” cause.

Now, records show that California’s high court is set to answer the question of whether a workers’ comp death benefits claim has “a separate and distinct causation standard and burden of proof requiring that an industrial injury constitute a ‘material factor’ contributing to the employee’s death, or does the standard require only that the industrial injury be a ‘contributing cause’?”

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The CWCI in its amicus brief, however, asks the Supreme Court to reject an “effort to shift the burden of the decedent’s non-industrial pharmaceutical abuse onto the workers’ compensation system.”

CWCI further argues that Court of Appeal decision denying compensation should be upheld “as a proper application of the burden of proof’ and substantial evidence standard.”

Roberto Ceniceros is senior editor at Risk & Insurance® and 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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