Workers’ Comp Docket
Limit on TTD Creates Unconstitutional Denial of Access to Courts
Westphal v. City of St. Petersburg, et al., No. SC13-1930 (Fla. 06/09/16)
Ruling: The Florida Supreme Court held that the workers’ compensation law that cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but has not reached maximum medical improvement is unconstitutional.
What it means: In Florida, the workers’ compensation law that cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but has not reached maximum medical improvement is unconstitutional.
Summary: A firefighter for the city of St. Petersburg suffered a severe lower back injury while lifting heavy furniture in the course of fighting a fire. Shortly after his injury, he began receiving temporary total disability benefits and medical benefits.
The firefighter did not reach maximum medical improvement before the expiration of the 104-week limitation on TTD benefits. At the expiration of TTD benefits, he was still incapable of working, based on the advice of doctors and vocational experts. He sought further temporary disability or permanent total disability benefits.
The judge of compensation claims denied the claim. The appellate court held that a worker who is totally disabled as a result of a work accident and remains totally disabled at the end of his eligibility for TTD benefits is deemed to be at MMI and is eligible to assert a claim for PTD benefits.
The Florida Supreme Court quashed the appellate court’s decision and held that the workers’ compensation law that cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but has not reached maximum medical improvement is unconstitutional.
The court found that the appellate court’s decision was an impermissible judicial rewrite of the statute. In finding the statute unconstitutional, the court explained that the law did not just reduce the benefits the firefighter would receive, but completely cut off his ability to receive benefits even though he remained disabled and was receiving treatment.
As there was no way to know when he would reach MMI, the firefighter was left without benefits for an indefinite amount of time. The court concluded that the 104-week limitation, as applied to a worker who fell into the “statutory gap” at the end of the benefits, did not provide a reasonable alternative to a suit against the employer.
The court found that the proper remedy was the revival of the previous version of the statute that provided a limitation of 260 weeks of TTD benefits. The court rejected a concurring judge’s assertion that this remedy still allowed for the possibility of a statutory gap.
Worker Can’t Connect Breast Abscesses to Manure Exposure
Leib v. State of Wyoming, No. S-15-0235 (Wyo. 05/20/16)
Ruling: The Wyoming Supreme Court held that a worker was not entitled to benefits for her breast abscesses.
What it means: In Wyoming, a temporal connection between a work-related incident and an infection is not necessarily sufficient to establish causation.
Summary: A maintenance worker for Laramie County Community College was required to work with dirt that was mixed with untreated manure from livestock kept on campus and from traveling circus animals.
She experienced pain and swelling in her breasts, and surgery was performed to drain abscesses. A culture collected following her surgery indicated that she had a peptostreptococcus bacterial infection. The worker filed a claim for workers’ compensation benefits. The Wyoming Supreme Court held that she was not entitled to benefits.
The court found that the worker failed to establish causation. The court pointed out that a temporal connection between a work-related incident and an infection is not necessarily sufficient to establish causation.
Where a medical question is complex, medical testimony should not be ignored. Here, the medical experts disagreed about the cause of the worker’s breast abscesses. The worker’s medical expert testified that her condition was caused by a bacterial infection originating from the dirt and manure mixture she used at work.
The worker’s medical expert also indicated other possible sources of the worker’s infection, including her choice of clothing and perspiration outside the workplace. The college’s medical expert opined that there was no relationship between the worker’s work and her infection. The college’s medical expert reasoned that the organisms found in the worker’s infections arise in a variety of settings and that her exposure to manure was very unlikely to result in the bacterial infection found in the culture of her abscesses.
The court noted that the dirt and manure mixture was never tested to determine its contents.
Positive Marijuana Tests Erase Employer’s Liability to Pay for Opioid Medication
Halcomb v. American Mining Co., et al., No. 2015-SC-000335-WC (Ky. 05/05/16)
Ruling: In an unpublished decision, the Kentucky Supreme Court held that an employer was no longer liable to pay for a worker’s narcotic medication prescription.
What it means: In Kentucky, an employer is no longer required to pay for an injured worker’s narcotic pain medication after the worker has positive drug tests that indicate marijuana use.
Summary: A worker for American Mining Co. suffered a work-related back, left-hip, and muscular injury. His treating physician prescribed him narcotic pain medication as part of his treatment.
American Mining requested for the physician to have the worker submit to random drug screens. The worker tested positive for THC, the active component of marijuana, on three occasions. The physician continued to prescribe the narcotic pain medication to the worker.
American Mining disputed the worker’s continued use of the narcotic. The Kentucky Supreme Court held that American Mining was no longer liable to pay for the worker’s narcotic medication.
The court found that American Mining established that the worker’s narcotics prescription was unreasonable and unnecessary. The worker contended that two subsequent clean drug screens showed that he was not self-medicating with marijuana and that that the prior failed drug screens were caused by secondhand marijuana smoke.
The court rejected the worker’s argument. A conclusion that the worker was using marijuana was supported by the three failed drug screens and the opinion of a doctor who stated that the failed drug screens indicated that the worker was actively using marijuana instead of being exposed to secondhand smoke.
Inability to Challenge Reasonableness of Attorney’s Fees Is Unconstitutional
Castellanos v. Next Door Co., et al., No. SC13-2082 (Fla. 04/28/16)
Ruling: The Florida Supreme Court held that the attorney’s fees schedule in the workers’ compensation law is unconstitutional.
What it means: In Florida, the mandatory fee schedule for attorney’s fees in workers’ compensation cases is unconstitutional.
Summary: A press break operator for Next Door Co. suffered an injury during the course of his employment. Through the assistance of his attorney, the operator prevailed in his workers’ compensation claim.
Because the workers’ compensation law limits a worker’s ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the attorney’s fees awarded to the operator’s attorney amounted to $1.53 per hour for 107 hours of work. The operator argued that the mandatory fee schedule for attorney’s fees was unconstitutional. The Florida Supreme Court held that the fee schedule is unconstitutional.
The court explained that the legislature removed any consideration of reasonableness and removed the judge’s discretion to alter the attorney’s fees award in cases where the sliding scale obtained results that were inadequate or excessive. The court explained that the inability of a worker to challenge the reasonableness of the attorney’s fees award is a due process issue.
One of the legislature’s justifications for the fee schedule was to standardize fees. However, the court found that it did so in a manner that lacked any relationship to the amount of time and effort expended by the attorney.
The court explained that excessive fees can still result under the fee schedule. Also, courts have operated under the view that the fee schedule was “merely a starting point.” Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or raise multiple defenses.
The court found that the elimination of any requirement that the fee be reasonable eviscerated the purpose of the attorney’s fees provision. The court concluded that the statute violated the state and federal constitutions.
Dissenting judges opined that the Constitution does not require the workers’ compensation scheme to include reasonable attorney’s fees.
‘Harsh Result’ Doesn’t Create Exception to Statute of Limitations
Bell v. Gilder Timber Co., et al., No. A16A0300 (Ga. Ct. App. 05/04/16)
Ruling: The Georgia Court of Appeals held that a worker’s claim for permanent partial disability benefits was barred by the statute of limitations.
What it means: In Georgia, a worker can file for permanent partial disability benefits no more than four years from the last payment of temporary total disability benefits or temporary partial disability benefits.
Summary: In 1992, a worker for Gilder Timber Co. sustained a compensable injury to his neck. As a result, he underwent cervical fusion surgery. He received temporary total disability benefits for four months until he returned to work.
The worker continued to experience neck pain and worked until he retired in 2009. In 2013, Gilder paid for the worker’s second surgery, which was related to the 1992 injury. In 2014, he sought permanent partial disability benefits.
A Georgia statute states that a worker can file for PPD benefits no more than four years from the last payment of TTD benefits or temporary partial disability benefits. The Georgia Court of Appeals held that the worker’s claim was barred by the statute of limitations.
Recognizing that the application of the statute of limitations led to a “harsh result,” the court declined to create an exception to the statute of limitations. The court found that the statute was clear and unambiguous, and its ordinary meaning was that it barred claims for PPD benefits made more than four years from the last payment of TTD or PTD benefits.
The court noted that the worker presented “a compelling policy argument as to why an exception should be created,” but that his arguments should be brought before the legislature.
Worker Not Entitled to Have Family Present During IME
Finke v. Comair, Inc., et al., No. 2014-CA-000624-WC (Ky. Ct. App. 04/29/16)
Ruling: The Kentucky Court of Appeals held that a flight attendant was not entitled to benefits during the period of her noncompliance with an independent medical examination.
What it means: In Kentucky, an injured worker does not have an unfettered right to have an immediate family member present during an IME.
Summary: A flight attendant for Comair sustained work-related injuries to her right hand and shoulder. There was a dispute regarding the compensability of the flight attendant’s right-shoulder condition and proposed surgery.
At the request of Comair, the flight attendant appeared for an independent medical examination. However, the IME physician refused to perform the IME because the flight attendant would not enter the examining room without her father present.
The flight attendant also refused to fill out the IME physician’s questionnaire regarding her medical history and the work injury.
Later, the flight attendant was examined by another IME physician who allowed her father to be present during the examination. Subsequently, the flight attendant appeared for another IME, but the physician refused to proceed with her father present.
Comair sought to terminate the flight attendant’s benefits. The Kentucky Court of Appeals held that the flight attendant was not entitled to benefits during the period of her noncompliance with the IME.
The court explained that under the law, an injured worker has the right to have a duly qualified physician or surgeon designated and paid by herself present at an IME.
The law does not give a worker an unfettered right to have another person, including a family member, present. The court found that in this case, the flight attendant did not properly present herself for an IME.
The court noted that had the flight attendant presented the administrative law judge with a basis to support her position, such as a religious exception, it would have been appropriate for the ALJ to order that any IME be conducted with a male family member present.
Employer Not Required to Honor Vague Accommodation Requests
Frazier-White v. Gee, No. 1512199 (11th Cir. 04/07/16)
Ruling: The 11th U.S. Circuit Court of Appeals affirmed a grant of summary judgment to an employer on an officer’s claims under ADA Title I. The 11th Circuit held that the officer did not present sufficient evidence to support her failure-to-accommodate claim.
What it means: When an employer’s hiring process is governed by civil service rules, it is not required to violate those rules in order to accommodate an employee.
Summary: An officer with a sheriff’s department injured her arm at work and went on light-duty status. Sheriff’s employees were allowed 270 days of light duty before undergoing a medical hearing to determine whether they could return to work in a reasonable time. If not, they were subject to termination.
As the officer approached the 270-day limit, the sheriff informed her that she was subject to termination if she did not return to full duty. She was encouraged to contact the office to discuss ADA accommodations or to apply for other positions in the department.
She requested an extension to “continue to receive care” so she could “get better and return to full duty.” She did not suggest any other accommodation and did not file applications for other positions. Civil service rules required her to submit an application before being hired for a position.
She reached the 270-day light-duty limit. At her medical hearing, she indicated that she could not estimate when she could return to full duty. When told that the hearing panel recommended termination, she asked if she could do “something else.” Noting that she had not applied for other positions, the panel terminated her. She sued the sheriff for failure to accommodate. The 11th U.S. Circuit Court of Appeals held that her requests for accommodation were unreasonable.
The officer requested an extension of time to “continue to receive care.” Noting that the ADA only covers people who can perform the essential functions of their jobs presently or in the immediate future, the court held that her request was unreasonable because she never specified a time frame in which she would be able to resume her full-duty position.
The court construed the officer’s question regarding whether she could do “something else” as a request for reassignment. Although the officer claimed that there were vacant positions available that “she believed she could have performed,” the court concluded that her request was unreasonable because she did not identify a specific full-duty vacant position she was qualified for or show that she requested reassignment to any such position.
Furthermore, she did not complete any applications for other positions, as required by civil service rules prior to being reassigned. Because the ADA does not require an employer to reassign an employee in violation of its governing civil service rules, the court held that this request for reassignment was unreasonable.
Sensors Show Promise for Recovery and Prevention
Emerging technologies in biomechanics offer huge promise for the workers’ compensation world.
Take the Motus Pro: a multi-sensor training tool that tracks the throwing and batting movements of baseball players, particularly those who are rehabilitating from injuries.
Developed by the Massapequa, N.Y.-based biomechanics software and analytics firm Motus, the sensor provides feedback to baseball teams’ medical staff to aid in their return-to-play programs.
But the firm has always set its sights beyond baseball, developing its physics engine, hardware and training tools in a manner that would allow the firm to eventually address the larger population beyond athletes, said co-founder and chief executive Joe Nolan.
“We are starting to work on early projects with partners outside the world of sports to refine applications that can be applied to worker safety, human performance optimization and evidence-based, quantified-outcome physical therapy programs,” Nolan said.
There are dozens more products like the Motus Pro that could have a place in the workers’ comp industry, including some of the wearable technology currently being used in baby sensors and monitors to track fetal movement in the womb, said Zack Craft, vice president of rehab solutions, complex care education at One Call Care Management in Jacksonville, Fla.
Wearables could be used in the ergonomics space to potentially prevent carpel tunnel syndrome by monitoring the position of the elbow, total muscles used and the speed of muscles being used by employees during the workday, Craft said.
If a worker has already filed a claim for carpel tunnel, the tool could be used to monitor appropriate positioning and could validate recommendations and potential retraining by providing solid outcome data.
“The small sensor is easily attached using a plastic clip on a glove or through the use of a compression garment,” he said. “For individuals working in an office environment, a very simple postural device can really help them learn to avoid poor positions and improve their posture.”
Wearable technology also has the potential to benefit clinical studies, Craft said. An example is the impact wearables can have on paraplegic patients in the prevention of shoulder injuries such as rotator cuff damage.
Sensors could be used to evaluate the movements of paraplegics in wheelchairs to determine whether they are properly forming a full propelling stroke to avoid damage to their wrist or shoulders.
“This data could then be collected and used to educate the injured worker and any caretakers to prevent the development of bad habits, or to help them relearn appropriate movements,” he said.
“Prevention of these types of injuries is key for paraplegics since the use of their shoulders is critical to complete transfers and pressure shifts.”
Apple recently announced an enhancement to its new Health app to assist wheelchair users in tracking their wheelchair propelling strokes as well calorie burn, periodically reminding them to stay active and take a “roll” around the block, Craft said.
“Wouldn’t it be great if we were able to get an injured worker in physical therapy to upload their exercise information to their workers’ comp treating doctor and claims manager, to see if they were meeting their daily goals?” — Dr. Teresa Bartlett, SVP, medical quality, Sedgwick Claims Management Services
Kathryn L. Havens, assistant professor of clinical physical therapy at the University of Southern California’s Division of Biokinesiology and Physical Therapy in Los Angeles, said that sensors have many great applications, but the difficulty is processing and interpreting all of the data.
Havens has had many discussions with other biomechanists about how to detect certain movement patterns from these velocities and accelerations, because the output from sensors “isn’t so straightforward.”
“I think there is potential and engineers are developing better algorithms for this,” she said. “But at this point we still need trained movement scientists to analyze the data from these sensors in order for the data to be useful.”
Dr. Teresa Bartlett, senior vice president, medical quality at Sedgwick Claims Management Services Inc., believes that technology will eventually be interspersed throughout all of medicine.
“In fact, I am looking for a client that wants to engage some wearable technology in a workers’ comp setting,” Bartlett said. “There are large manufacturers that could benefit from a health and safety perspective.”
Bartlett believes there is a place for such emerging technologies in a manufacturing setting to help prevent worker injuries. For example, sensors could be used by people to prevent elbow and shoulder injuries, to understand mechanics, thrust and the amount of energy it takes to perform certain jobs.
Moreover, existing technologies like the Apple Watch or Fitbit could help mitigate low back strain by getting workers to walk more during the day, Bartlett said.
“Wouldn’t it be great if we were able to get an injured worker in physical therapy to upload their exercise information to their workers’ comp treating doctor and claims manager, to see if they were meeting their daily goals?”
It would also help practitioners better understand if injured workers are being compliant with the quality of their exercise programs and to understand duration and intervals, she said.
For example, practitioners could determine whether workers are walking only in small increments such as one-minute intervals to the bathroom, whether they are walking five miles in one exercise period, or whether they’re walking five miles in one-mile increments.
“This information could make a big difference in their treatment plan and discussion with their doctor or nurse case manager,” Bartlett said.
Commercial Auto Warning: Emerging Frequency and Severity Trends Threaten Policyholders
The slow but steady climb out of the Great Recession means businesses can finally transition out of survival mode and set their sights on growth and expansion.
The construction, retail and energy sectors in particular are enjoying an influx of business — but getting back on their feet doesn’t come free of challenges.
Increasingly, expensive commercial auto losses hamper the upward trend. From 2012 to 2015, auto loss costs increased a cumulative 20 percent, according to the Insurance Services Office.
“Since the recession ended, commercial auto losses have challenged businesses trying to grow,” said David Blessing, SVP and Chief Underwriting Officer for National Insurance Casualty at Liberty Mutual Insurance. “As the economy improves and businesses expand, it means there are more vehicles on the road covering more miles. That is pushing up the frequency of auto accidents.”
For companies with transportation exposure, costly auto losses can hinder continued growth. Buyers who partner closely with their insurance brokers and carriers to understand these risks – and the consultative support and tools available to manage them – are better positioned to protect their employees, fleets, and businesses.
Liberty Mutual’s David Blessing discusses key challenges in the commercial auto market.
“Since the recession ended, commercial auto losses have challenged businesses trying to grow. As the economy improves and businesses expand, it means there are more vehicles on the road covering more miles. That is pushing up the frequency of auto accidents.”
–David Blessing, SVP and Chief Underwriting Officer for National Insurance Casualty, Liberty Mutual Insurance
More Accidents, More Dollars
Rising claims costs typically stem from either increased frequency or severity — but in the case of commercial auto, it’s both. This presents risk managers with the unique challenge of blunting a double-edged sword.
Cumulative miles driven in February, 2016, were up 5.6 percent compared to February, 2015, Blessing said. Unfortunately, inexperienced drivers are at the helm for a good portion of those miles.
A severe shortage of experienced commercial drivers — nearing 50,000 by the end of 2015, according to the American Trucking Association — means a limited pool to choose from. Drivers completing unfamiliar routes or lacking practice behind the wheel translate into more accidents, but companies facing intense competition for experienced drivers with good driving records may be tempted to let risk management best practices slip, like proper driver screening and training.
Distracted driving, whether it’s as a result of using a phone, eating, or reading directions, is another factor contributing to the number of accidents on the road. Recent findings from the National Safety Council indicate that as much as 27% of crashes involved drivers talking or texting on cell phones.
The factors driving increased frequency in the commercial auto market.
In addition to increased frequency, a variety of other factors are driving up claim severity, resulting in higher payments for both bodily injury and property damage.
Treating those injured in a commercial auto accident is more expensive than ever as medical costs rise at a faster rate than the overall Consumer Price Index.
“Medical inflation continues to go up by about three percent, whereas the core CPI is closer to two percent,” Blessing said.
Changing physical medicine fee schedules in some states also drive up commercial auto claim costs. California, for example, increased the cost of physical medicine by 38 percent over the past two years and will increase it by a total of 64 percent by the end of 2017.
And then there is the cost of repairing and replacing damaged vehicles.
“There are a lot of new vehicles on the road, and those cost more to repair and replace,” Blessing said. “In the last few years, heavy truck sales have increased at double digit rates — 15 percent in 2014, followed by an additional 11 percent in 2015.”
The impact is seen in the industry-wide combined ratio for commercial auto coverage, which per Conning, increased from 103 in 2014 to 105 for 2015, and is forecast to grow to nearly 110 by 2018.
None of these trends show signs of slowing or reversing, especially as the advent of driverless technology introduces its own risks and makes new vehicles all the more valuable. Now is the time to reign in auto exposure, before the cost of claims balloons even further.
The factors driving up commercial auto claims severity.
Data Opens Window to Driver Behavior
To better manage the total cost of commercial auto insurance, Blessing believes risk management should focus on the driver, not just the vehicle. In this journey, fleet telematics data plays a key role, unlocking insight on the driver behavior that contributes to accidents.
“Roughly half of large fleets have telematics built into their trucks,” Blessing said. “Traditionally, they are used to improve business performance by managing maintenance and routing to better control fuel costs. But we see opportunity there to improve driver performance, and so do risk managers.”
Liberty Mutual’s Managing Vital Driver Performance tool helps clients parse through data provided by telematics vendors and apply it toward cultivating safer driving habits.
“Risk managers can get overwhelmed with all of the data coming out of telematics. They may not know how to set the right parameters, or they get too many alerts from the provider,” Blessing said.
“We can help take that data and turn it into a concrete plan of action the customer can use to build a better risk management program by monitoring driver behavior, identifying the root causes of poor driving performance and developing training and other approaches to improve performance.”
Actions risk managers can take to better manage commercial auto frequency and severity trends.
Rather than focusing on the vehicle, the Managing Vital Driver Performance tool focuses on the driver, looking for indicators of aggressive driving that may lead to accidents, such as speeding, sharp turns and hard or sudden braking.
The tool helps a risk manager see if drivers consistently exhibit any of these behaviors, and take actions to improve driving performance before an accident happens. Liberty’s risk control consultants can also interview drivers to drill deeper into the data and find out what causes those behaviors in the first place.
Sometimes patterns of unsafe driving reveal issues at the management level.
“Our behavior-based program is also for supervisors and managers, not just drivers,” Blessing said. “This is where we help them set the tone and expectations with their drivers.”
For example, if data analysis and interviews reveal that fatigue factors into poor driving performance, management can identify ways to address that fatigue, including changing assigned work levels and requirements. Are drivers expected to make too many deliveries in a single shift, or are they required to interact with dispatch while driving?
“Management support of safety is so important, and work levels and expectations should be realistic,” Blessing said.
A Consultative Approach
In addition to its Managing Vital Driver Performance tool, Liberty’s team of risk control consultants helps commercial auto policyholders establish screening criteria for new drivers, creating a “driver scorecard” to reflect a potential new hire’s driving record, any Motor Vehicle Reports, years of experience, and familiarity with the type of vehicle that a company uses.
“Our whole approach is consultative,” Blessing said. “We probe and listen and try to understand a client’s strengths and challenges, and then make recommendations to help them establish the best practices they need.”
“With our approach and tools, we do something no one else in the industry does, which is perform the root cause analysis to help prevent accidents, better protecting a commercial auto policyholder’s employees and bottom line.”
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Liberty Mutual Insurance. The editorial staff of Risk & Insurance had no role in its preparation.