The Law

Legal Spotlight

A look at the latest decisions impacting the industry.
By: | August 3, 2015 • 5 min read
You Be the Judge

Florida Workers’ Comp Law Upheld

In 2010, Julio Cortes sued his employer Velda Farms after being injured while operating equipment. He alleged the company was negligent and should not be permitted to claim immunity under the Workers’ Compensation Law because the injury claim had been denied by Velda Farms and its insurer.

CombineThe Cortes lawsuit was amended in 2012 to argue the state’s workers’ comp law was unconstitutional, although the State of Florida was never added as an additional defendant to the lawsuit.

Several months later, Florida Workers’ Advocates (FWA) and the Workers’ Injury Law and Advocacy Group (WILG) intervened in the lawsuit. In 2013, Velda Farms voluntarily dismissed its defense of immunity — later being removed from the case — and sought to dismiss the claims.

A trial court concluded that WILG and FWA “lacked standing” to pursue claims of unconstitutionality.

Later, however, Elsa Padgett, who had been injured in 2012 while working for Miami-Dade County, sought and received permission to intervene in the case, seeking a judicial ruling on whether the state’s workers’ comp law was her “exclusive remedy.”

The state advised the court, upon its request, that it was not a party to the action, and stated the court lacked jurisdiction to rule the law unconstitutional. After the court struck the law down, the state appealed to the state’s Third District Court of Appeal, which reversed the decision.

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On June 24, the appeals court ruled the constitutionality question became moot when Velda Farms left the proceedings, that the state was never a party to the lawsuit and that FWA and WILG had no standing to pursue the case “based exclusively on a predecessor plaintiff’s subsequently dismissed claim.”

Scorecard: Employers are immunized from lawsuits related to covered, work-related injuries.

Takeaway: The Florida Workers’ Compensation Law remains the exclusive remedy for injured workers.

Insurer Has No Duty to Defend

Global Fitness operated a regional chain of fitness centers, and contracted with data company Federal Recovery Acceptance Inc. (FRA) to process member accounts and transfer members’ monthly fees to Global.

08012015_legal_spotlight_workoutGlobal obtained credit card and other information from its members and uploaded the data to FRA’s encrypted website for FRA to manage the electronic billing. For security purposes, only FRA retained the billing data.

After Global entered into an asset purchase agreement (APA) with LA Fitness, it requested the return of member account data. It was agreed that FRA would retain members’ banking and credit card information until the LA Fitness deal was near closing.

But later, FRA refused to return the data. FRA issued several “vague demands for significant compensation” above and beyond the terms agreed to in its contract with Global, according to the legal documents. FRA also refused to transfer some member fees until the matter was resolved.

Global claimed FRA’s position was unjustified, and that the delay threatened its ability to comply with its obligations under the APA with LA Fitness, causing a decreased purchase price.

Global sued FRA for tortious interference, promissory estoppel, conversion, breach of contract, and breach of the implied covenant of good faith and fair dealing.
FRA, which had a cyber policy with Travelers, sought a defense under that policy, which included liability for any “error, omission or negligent act relating to the holding, transferring or storing of data.”

Travelers provided a defense under a reservation of rights, while seeking a judicial declaration on its duty to defend FRA.

The U.S. District Court for the District of Utah determined on May 11 that there was no duty to defend.

It held that Global’s complaint did not allege that FRA withheld the data as the result of an error, omission, or negligence. On the contrary, it ruled, “Global alleges that Defendants knowingly withheld this information and refused to turn it over until Global met certain demands.”

Scorecard: Travelers had no duty to defend Federal Recovery Acceptance Inc.

Takeaway: Although the insurer prevailed in this case, other jurisdictions have ruled that an error need not be negligent for coverage to be available.

Policy Did Not Cover Settlement Negotiations

In 2007, computer tapes containing personal information of current and former employees of International Business Machines (IBM) fell off an Executive Logistics Services LLC (ExLog) truck.

08012015_legal_spotlight_tapeExLog had been contracted to provide transportation services for Recall Total Information Management Inc., which had a contract with IBM to transport and store such tapes.

Although the information on the tapes, which were retrieved by an unknown individual, has never been used, IBM had more than $6 million in losses resulting from the event, including providing identity theft services to employees.
In “informal negotiations,” IBM sought reimbursement from Recall and ExLog.

Federal Insurance Co. had issued ExLog a commercial general liability policy, and Scottsdale Insurance Co. had issued ExLog an umbrella liability policy. Both policies named Recall as an additional insured.

Both insurers declined to participate in the negotiations or provide coverage to the companies, who then sued the insurers claiming breach of duty to defend as well as seeking coverage for claims made by a third party.

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Both a trial court and appellate court ruled in favor of the insurers. On May 26, the Connecticut Supreme Court agreed with the lower courts, which had found that the loss of the computer tapes was not a “personal injury,” which was defined in the policies as electronic, oral, written or “other publication of material that … violates a person’s right of privacy” — because there was no publication of the information.

In addition, the court ruled there was no breach of duty to defend because the settlement negotiations did not involve a lawsuit or “other dispute resolution proceeding.”

Scorecard: The insurance companies did not need to provide more than $6 million in coverage for losses.

Takeaway: Informal settlement negotiations did not trigger the insurer’s duty to defend the policyholder.

Anne Freedman is managing editor of Risk & Insurance. She can be reached at [email protected]
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Defense Contractor Risk

In Danger’s Path

Defense contract job sites can be managed safely, despite hostile environments.
By: | August 3, 2015 • 8 min read
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Defense contractors in the Middle East work in some of the most dangerous and inhospitable conditions on the planet. Workers are drawn there by high pay rates, but face a long list of exposures.

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Defense Base Act (DBA) insurance provides the sole workers’ compensation remedy for these employees, although some employers supplement that cover with employer liability coverage, in case of legal action from injured workers or third parties.

Provided through the Department of Labor, DBA coverage is congressionally mandated for civilian employees working outside the United States on military bases or under a contract with the government for public works or for national defense unless their employer obtains a waiver.

DBA carriers qualify for full reimbursement from the government for injuries caused by a “war-risk hazard” under The War Hazards Compensation Act.

Video: The DOL in 2009 reported that at least 1,688 civilian contractors in Iraq and Afghanistan died and more than 37,000 were injured, according to this Global Report TV broadcast. 

Although conflict is spreading in the Middle East, many areas are not considered “conflict zones” where qualified injuries would be reimbursable by the federal government.

Still, DBA benefits are broad, said Karen Dobson, national client director, Aon Risk Solutions. They don’t officially provide 24-hour coverage, but they apply to many activities, sometimes even those as questionable as bar fights and softball injuries.

AIG has the lion’s share of the statutory DBA business, followed by CNA and ACE.

Neither the Department of Defense nor the Department of Labor releases statistics on the number of workers covered by the DBA, but the Business Benefits Group, a benefits consultant, reports that it covers almost 200,000 prime and subcontractor employees overseas and that it generates annual government-wide premiums of more than $400 million. DBA coverage extends to foreign nationals as well as U.S. citizens.

Contractors accounted for at least 50 percent of U.S. forces in Iraq and Afghanistan over the last decade, and before that, in the Balkans, said Moshe Schwartz, specialist in defense acquisition, before the House of Representatives’ Committee on Armed Services in October 2013.

High Risk and High Rewards

Despite its dangers and discomforts, the Middle East is an attractive place to work for many, said Aon’s Dobson, in large part because the work pays so well. For example, a truck driver who makes $40,000 per year in the United States may make $100,000 per year in the Middle East.

“An attorney will ask, ‘Is the worker’s heart condition or inflamed liver related to drinking bad water in Afghanistan?’ ” — Scott Bloch, a Washington, D.C. attorney who represents injured employees in many DBA cases.

But fundamental safety considerations sometimes get pushed to the back burner by extreme conditions. In challenging environments, such as 120-degree heat, “people just want to get the job done, and they’re not always focusing on safety procedures or taking the time to avoid risk,” said Alan Leibowitz, corporate director, environment, safety, health and security for Exelis Inc., a contractor with a large Middle East footprint.

Those shortcuts can lead to high injury rates. Workers in the Middle East are injured at least 10 times more frequently than their stateside equivalents, said Haleh Khodayari, chief executive officer, Advanced Consulting Inc., a global risk management firm based in California.

The costs in those cases can escalate rapidly due to exorbitant medical, medevac and repatriation expenses, in addition to lost time from work. The list of regional and war zone exposures is long and can be grisly, Khodayari said, ranging from slip-and-fall injuries to environmental exposures to death and injury from detonated roadside bombs and other extreme hazards from strife in the Middle East.

Post-traumatic stress and fatigue disorders occur frequently in Iraq and Afghanistan, sources said. The list of regional exposures includes allergies to foreign plants, such as palm pollen, and traffic accidents as workers try to negotiate unfamiliar or haphazard traffic patterns.

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Adding to underwriters’ headaches is that the high compensation rates overseas sometimes motivate applicants to hide disqualifying ailments such as asthma or heart conditions during pre-employment screenings, which could put them at risk. It could also put their colleagues at risk if the safety of one depends on the unimpaired function of the other.

When DBA Applies

The Department of Labor is vigilant in its oversight of the DBA program, said Dobson, to the extent that it is “paternalistic” about looking after workers. In several cases, she said, the insurance company and claimant agreed on a settlement, but the DOL didn’t agree with the terms. It compelled the insurer to pay more, even though the claimants had competent legal representation.

Some disputes arise over whether or not idiopathic ailments, such as cancers and heart conditions, are related to employment, said Scott Bloch, a Washington, D.C. attorney who represents injured employees in many DBA cases.

Terri Rhodes CEO Disability Management Employer Coalition

Terri Rhodes
CEO
Disability Management Employer Coalition

“A DBA remedy could kick in if any aspect of the employment hastens or aggravates the conditions,” he said, which pulls the employer into complex legal and medical situations to prove or disprove a claim.

“An attorney will ask, ‘Is the worker’s heart condition or inflamed liver related to drinking bad water in Afghanistan?’ ”

To stave off financial crises in case DBA does not apply or while a case is in review, Bloch said, many employers offer their workers disability insurance over and above the workers’ compensation insurance to cover gaps that DBA may not cover.

Although DBA prevents employers from being hauled into civil lawsuits for its direct employees, employers may still be liable for third-party suits independent of DBA, Bloch said.

For example, if an employee leaves a live electrical cord that electrocutes a subcontractor in the shower, the employer may be subject to liability in civil court for action or inaction taken vis-à-vis the electrocuted subcontractor, who is a third party despite being part of “the team.”

The same pertains to any third party who wanders onto a work site or is struck by a contractor’s car.

Claims Management in Farsi

Language and distance often hobble claims management for injuries in the Middle East, said Terri Rhodes, CEO of the Disability Management Employer Coalition. U.S. doctors and carriers have to read medical reports from non-English-speaking countries to determine the nature and cause of injuries and whether they’re job-related.

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They have to be able to read a treatment plan to arrange return-to-work. Even when she hires interpreters, Rhodes said, she never has full confidence that the interpretation is accurate.

“There’s always some variance in language,” Rhodes said.

Extracting, transporting and repatriating injured workers from conflict zones and remote regions to a location with adequate medical facilities can be complicated and expensive, said Eric Dean, senior vice president, ACE Risk Management Global Casualty.

DBA insurance provides coverage for repatriation. But problems multiply when a worker is medically incapacitated and can’t speak, Rhodes said, and it becomes necessary to obtain medical records.

“We have to communicate with hospitals,” she said, “and we run into time zone problems. In an emergency, we have to find out immediately when the injured worker was admitted and what the injury is.”

As elsewhere, incident prevention in the Middle East is the best claims management strategy, to whatever extent that’s possible in an environment where explosives and extreme heat are a fact of life.

Nicholas Gross, chief operating officer, international operations, Michael Baker International

Nicholas Gross, chief operating officer, international operations, Michael Baker International

Michael Baker International, a global engineering, planning and integrated consulting firm, strives for a “zero-incident, zero-accident” workplace at every site around the world, said Nicholas Gross, chief operating officer, international operations. That pays off both in protection of its employees and in its claims experience: Last year, Michael Baker International got “the best DBA rates in history,” Gross said.

“Our safety record has a direct benefit on our bottom line.”

Industry best practices include thorough pre-and post-employment screens, which include medical, dental and psychological exams, followed up with checkups during deployment, even in war zones, Aon’s Dobson said.

Michael Baker keeps a solid, detailed documentation trail about every incident, illness and injury, which ensures that injured employees get swift treatment and also protects the company against future claims.

Like Michael Baker, Exelis spends a lot of resources training its workers, both U.S. and foreign nationals, in safety protocols. It holds workers in the field to the same standard as its U.S. offices and factories.

Safety protocols could include redundant testing for electrical current on a rewiring site — an important precaution where infrastructure is cobbled together and wiring is “not always the safest,” Exelis’ Leibowitz said. It also includes forced hydration breaks, because people don’t notice heat exposure until it’s too late.

Compliance is high, Leibowitz said, because workers appreciate that the protocols are in their best interest. Exelis offers incentives for following safety rules and applies penalties, such as being sent home, for breaking them.

Return-to-work programs for Middle East contract workers can be hard to implement, Advance Consulting’s Khodayari said. A fairly simple injury such as a broken leg can be treated in most regions of the Middle East, but the worker can’t get back to work as quickly as in the U.S. because light duty assignments are not usually available.

The cost of lost wages can be high because the DBA entitles some injured workers to full wage loss for the rest of their lives.

“If a worker can’t return to the original contract, we may conduct a formal Labor Market Survey and help the injured worker look into other jobs with the same employer in a different capacity,” Khodayari said.

Gross attributes much of Michael Baker International’s safety success to its proactive approach — and to its partnership with its broker and DBA insurance provider.

“Our broker took an active role in identifying and managing risk, reducing claims and getting personnel back to work,” he said. “Our partnership with our carrier helped us reduce claims and experience.”

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And key to the successful relationship, said ACE Group’s Dean, is working directly with the client, face to face when possible.

“Insurance is a contract of trust. Putting a face to the name helps build that trust,” he said, even with statutory coverage, such as DBA insurance.

“The relationship doesn’t change the coverage, but it facilitates the placement of coverage.”

Susannah Levine writes about health care, education and technology. She can be reached at [email protected]
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Sponsored Content by IPS

Managing Chronic Pain Requires a Holistic Strategy

To manage chronic pain and get the best possible outcomes for the payer and the injured worker, employ a holistic, start-to-finish process.
By: | August 3, 2015 • 5 min read
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Chronic, intractable pain within workers’ compensation is a serious problem.

The National Center for Biotechnology Information, part of the National Institutes of Health, reports that when chronic pain occurs in the context of workers’ comp, greater clinical complexity is almost sure to follow.

At the same time, Workers’ Compensation Research Institute (WCRI) studies show that 75 percent of injured workers get opioids, but don’t get opioid management services. The result is an epidemic of debilitating addiction within the workers’ compensation landscape.

As CEO and founder of Integrated Prescription Solutions Inc. (IPS), Greg Todd understands how pain is a serious challenge for workers’ compensation-related medical care. Todd sees a related, and alarming, trend as well – the incidence rate for injured workers seeking permanent or partial disability because of chronic pain continues to rise.

Challenges aside, managing chronic pain so both the payer and the injured worker can get the best possible outcomes is doable, Todd said, but it requires a holistic, start-to-finish process.

Todd explained that there are several critical components to managing chronic pain, involving both prospective and retrospective solutions.

 

Prospective View: Fast, Early Action

IPS_BrandedContent“Having the wrong treatment protocol on day one can contribute significantly to bad outcomes with injured workers,” Todd said. “Referred to as outliers, many of these ’red flag’ cases never return to work.”

Best practice care begins with the use of evidence-based UR recommendations such as ODG. Using a proven pharmacological safety and monitoring opioid management program is a top priority, but needs to be combined with an evidence-based medical treatment and rehabilitative process-focused plan. That means coordinating every aspect of care, including programs such as quality network diagnostics, in-network physical therapy, appropriate durable medical equipment (DME) and in more severe cases work hardening, which uses work (real or simulated) as a treatment modality.

Todd emphasized working closely with the primary treating physician, getting the doctor on board as soon as possible with plans for proven programs such as opioid Safety and Monitoring, EB PT facilities, patient progress monitoring and return-to-work or modified work duty recommendations.

“It comes down to doing the right thing for the right reasons for the right injury at the right time. To manage chronic pain successfully – mitigating disability and maximizing return-to-work – you have to offer a comprehensive approach.”
— Greg Todd, CEO and founder, Integrated Prescription Solutions Inc. (IPS)

 

Alternative Pain Management Strategies

IPS_BrandedContentUnfortunately, pain management today is practically an automatic move to a narcotic approach, versus a non-invasive, non-narcotic option. To manage that scenario, IPS’ pain management is in line with ODG as the most effective, polymodal approach to treatment. That includes N-drug formularies, adherence to therapy regiment guidelines and inclusive of appropriate alternative physical modalities (electrotherapy, hot/cold therapy, massage, exercise and acupuncture) that may help the claimant mitigate the pain while maximizing their ongoing overall recovery plan.

IPS encourages physicians to consider the least narcotic and non-invasive approach to treatment first and then work up the ladder in strength – versus the other way around.

“You can’t expect that you can give someone Percocet or Oxycontin for two months and then tell them to try Tramadol with NSAIDS or a TENS unit to see which one worked better; it makes no sense,” Todd explained.

He added that in many cases, using a “bottom up” treatment strategy alone can help injured workers return to work in accordance with best practice guidelines. They won’t need to be weaned off a long-acting opioid, which many times they’re prohibited to use while on the job anyway.

 

Chronic Pain: An Elusive Condition

IPS_BrandedContentSoft tissue injuries – whether a tear, sprain or strain – end up with some level of chronic pain. Often, it turns out that it’s due to a vascular component to the pain – not the original cause of the pain resulting from the injury. For example, it can be due to collagen (scar tissue) build up and improper blood flow in the area, particularly in post-surgical cases.

“Pain exists even though the surgery was successful,” Todd said.

The challenge here is simply managing the pain while helping the claimant get back to work. Sometimes the systemic effect of oral opioid-based drugs prohibits the person from going to work by its highly addictive nature. In a 2014 report, “A Nation in Pain,” St. Louis-based Express Scripts found that nearly half of those who took opioid medications for more than a month in their first year of treatment then refilled their prescriptions for three years or longer. Many studies confirm that chronic opioid use has led to declining functionality with reduced ability to recover.

This can be challenging if certain pain killers are being used to manage the pain but are prohibitive in performing work duties. This is where topical compound prescriptions – controversial due to high cost and a lack of control – may be used. IPS works with a reputable, highly cost-effective network of compound prescription providers, with costs about 30-50 percent less than the traditional compound prescription

In particular compounded Non-Systemic Transdermal (NST) pain creams are proving to be an effective treatment for chronic pain syndromes. There is much that is poorly understood about this treatment modality with the science and outcomes now emerging.

 

Retrospective Strategies: Staying on Top of the Claim

IPS_BrandedContentIPS’ retrospective approach includes components such as periodic letters of medical necessity sent to the physician, peer-to-peer and pharmacological reviews when necessary, toxicology monitoring and reporting, and even addiction rehab programs specifically tailored toward injured workers.

Todd said that the most effective WC pharmacy benefit manager (PBM) provides much more than just drug benefits, but rather combines pharmacy benefits with a comprehensive ancillary suite of services in a single portal assisting all medical care from onset of injury to RTW. IPS puts the tools at the adjustor fingertips and automates initial recommendations as soon as the claim in entered into its system through dashboard alerts. Claimant scheduling and progress reporting is made available to clients 24/7/365.

“It comes down to doing the right thing for the right reasons for the right injury at the right time,” Todd said, “To manage chronic pain successfully – mitigating disability and maximizing return-to-work – you have to offer a comprehensive approach,” he said.

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with IPS. The editorial staff of Risk & Insurance had no role in its preparation.




Integrated Prescription Solutions (IPS) is a Pharmacy Benefit Management (PBM) and Ancillary Services partner to W/C and Auto (PIP) Insurance carriers, Self Insured Employers, and Third Party Administrators who specialize in Workers Compensation benefits management.
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