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Legal Analysis

Florida High Court Signals Demise of Controversial Ruling

A new ruling from the Florida Supreme Court could unravel a circuit court assertion that the state's workers' comp law is unconstitutional.
By: | December 15, 2014 • 3 min read
Florida supreme court

To the extent a trial-court decision declaring the Florida Workers’ Compensation Act unconstitutional was the shot heard ‘round the workers’ compensation world, a new Florida Supreme Court ruling is a powerful salvo.

Florida Circuit Court Judge Jorge E. Cueto last summer declared the state’s Workers’ Compensation Act unconstitutional.

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The case now known as Padgett drew national attention when Cueto ruled that the Workers Compensation Act no longer provides injured workers with an adequate remedy because of benefit cuts lawmakers implemented over the years.

While the Supreme Court of Florida did not directly rule on the constitutionality of the Florida Act — that question was not before the court — it is difficult to see how Padgett can stand in the wake of the high court’s decision in Leticia Morales v. Zenith Ins. Co., handed down Dec 4, 2014.

Responding to three questions certified to it by an appeals court, the high court held in Morales vs. Zenith that a provision in a landscape company’s employer liability policy that excluded from coverage “any obligation imposed by workers’ compensation … law” excludes coverage of an estate’s claim for a $9.525 million default judgment entered against the company in a state trial court.

Morales sustained fatal injuries in a landscaping accident. His widow entered into a settlement agreement with Zenith Insurance, which provided Morales’ employer with both a workers’ compensation policy and one for employer liability.

The agreement provided for a payment to Ms. Morales in exchange for a release from all liability regarding insurance coverage provided to the employer by Zenith.

At the time of the settlement agreement, Ms. Morales also had initiated a wrongful death action against the employer. She obtained a default judgment and then sued Zenith in state court, requesting that it be required to pay under the terms of the employer liability policy.

The matter was removed to federal court, where the district court held the insurance policy’s exclusion provision barred any recovery. Ms. Morales appealed, contending the judgment was not the result of a workers’ compensation claim and that Zenith, therefore, should have to pay.

Following certification of the questions to the Supreme Court of Florida, that court said, in relevant part, that the employer liability insurance was a “gap-filler,” providing protection in those situations in which the employee had a right to bring a tort action despite the provisions of the workers’ compensation statute.

The high court continued that the estate did not have a right to proceed in tort against the employer; its exclusive remedy was under Florida’s Workers’ Compensation Law. The default judgment did not alter the fact that a wrongful death action was barred.

The court concluded that in as much as the workers’ compensation policy and the employer liability policy provided mutually exclusive benefits to the employer, the liability policy’s exclusion clause precluded any recovery by the estate.

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While the court did not discuss either Padgett or the constitutionality of the Florida Act, it is difficult to see how Judge Cueto’s decision in Padgett can stand in the fact of the Morales decision.

If the state supreme court had any notion that the exclusive remedy provisions of the Act or the Act itself could not withstand the sort of onslaught represented by Padgett, the court likely would have given us some indication. It did not.

Padgett is currently before Florida’s Third District Court of Appeals. That court, armed now with an understanding that the Supreme Court likely has its back, should give Padgett an ignominious end.

Thomas A. Robinson, of Durham, N.C. is a national columnist for the LexisNexis Workers’ Compensation eNewsletter. He is also a contributing writer or editor for eight other workers' compensation publications and has an active blog on workers’ comp law — workcompwriter.com. Robinson has lectured widely on workers' compensation issues. He can be reached at trob@workcompwriter.com.
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Benefits Integration

Is Integration the Answer to Compliance?

An integrated approach to employee health can help companies stay on top of regulations.
By: | December 15, 2014 • 5 min read
integration

Addressing worker health has many parts – health care, wellness, disability management and workers’ comp. Managing them as a whole instead of discrete components can help reduce costs while improving outcomes, which is why more and more employers are moving toward an integrated approach to employee health and safety. But streamlining administration of these programs and making decisions that go across the board can also have the added benefit of tightening up regulatory compliance.

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The Americans with Disabilities Act (ADA) – and amendments made in 2008 – present employers with a thorny trail to blaze. Especially after the implementation of the Affordable Care Act, employers are shouldering a greater responsibility for employees’ health and wellness, and rules imposed by the ADA can complicate matters as companies and organizations strive to improve worker health without overstepping boundaries.

The intersection of the ADA with other regulations like the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA) also creates gray areas for employers when it comes to deciding what benefits an injured or disabled employee is entitled to, if any. In a National Law Review article, labor and employment attorney Melvin Muskovitz called the intersection of ADA, FMLA and workers’ comp issues the “‘Bermuda Triangle’ of employee health-related statutes.”

Leave and benefits provided by workers’ compensation can overlap with what employees may be entitled to under the ADA and FMLA; carriers can benefit from more open communication with administrators of health plans and wellness and safety programs to ensure the right program responds to a request for accommodation or benefits.

One issue they all have in common is “the potential for claims of discrimination or retaliation,” Muskovitz wrote. “An employer must be sure the employee does not suffer any adverse employment action as a result of the leave of absence or condition necessitating the leave.”

“Integration is the only way to go with all these regulations coming at employers,” said Tamara Blow, principal consultant at TYB Global Business Consultants, LLC. “You need all the key players involved.” That includes human resources, safety managers, risk managers, and legal counsel, as well as the payroll department or others in charge of tracking attendance. With multiple perspectives weighing in on decisions, it should be easier to identify where clashes with different statutes could occur.

Take for example the case of Peggy Young, a female UPS delivery worker who sued the company in 2007. When Young became pregnant in 2006, her doctor ordered her not to lift more than 20 pounds; UPS delivery workers sometimes have to lift packages of up to 70 pounds. Young brought the doctor’s note to her supervisor and requested a temporary reassignment, which was denied because pregnancy is not covered under the ADA. She was placed on unpaid leave for the duration of her pregnancy.

Young, whose case is currently being heard by the Supreme Court, argued that UPS violated the PDA, which states that pregnant women must be treated the same, in terms of receipt of benefits, as “others not so affected but similar in their ability or inability to work.” In other words, if UPS provides accommodations for an injured worker with the same physical limitations as Young, she should also receive benefits even though she is not technically disabled.

Could an integrated approach have helped UPS avoid this regulatory tangle?

“Absolutely,” Blow said. “Any HR professional who’s worth their salt knows that the Pregnancy Discrimination Act would be the first to come into play with a pregnant employee.” A cross-functional team that included the legal department might have been able to anticipate potential violations.

“If their system was integrated, they would see that impairments that arise out of being pregnant would qualify as temporary disability covered under the ADA and FMLA,” she said.

Implementation Challenges

For larger employers, though, there are structural hurdles blocking integration. Health care, disability management and workers’ comp tend be viewed as separate programs, so decision-making around them also remains separate.

“Workers’ comp is handled by risk management, which report up to either treasury or general counsel,” said Russell Johnston, casualty president for the Americas at AIG. “Disability benefits and medical tend to be human resources or the administration side. So within larger employers, in terms of their governance model, there are structural disconnects.”

Bringing everyone together from different departments is a time-consuming effort that can also be constrained by office politics, Blow said. “Some departments want to be in charge. They may bash heads over who wants to take this initiative, especially with senior management’s eyes on it.”

Another structural hurdle Johnston pointed to was the way in which companies access these products on the market.

“Larger employers access the workers’ comp market through agents and brokers,” he said. “On the benefits and medical side, agents and brokers tend to be very different from the P/C side. They tend to operate completely separately. And in some cases it’s provided directly by the medical providers to employers.”

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For these reasons, smaller employers have an easier time implementing an integrated approach to employee health. “They don’t have the luxury of having large infrastructure, so decisions are made across the totality of their business,” Johnston said.

Despite the obstacles, larger companies can still benefit in the long run from a unified employee health front because of cost savings. However, Johnston believes it won’t necessarily ease compliance issues.

“I struggle to see where it will make a material impact on the compliance side,” he said. “But is there a compelling reason for employers to look at this and try to implement it? Absolutely.”

Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at ksiegel@lrp.com.
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Sponsored: Healthcare Solutions

The Promise of Technology

A roundtable in Philadelphia explores the power of technology in WC and its potential to take us where we have never been before.
By: | December 10, 2014 • 7 min read

SponsoredContent_HCS
The field of workers’ compensation claims management seems ideally suited as a proving place for the power of technology.

Predictive analytics in the hands of pharmacy and medical management experts can give claims managers the data they need to intervene in troublesome claims. Wearables and other mobile technologies have the potential to give healthcare providers “real-time” reports on the medical condition of injured workers.

Never before have the goals of quick turnaround and transparency in managing claims appeared so tantalizingly achievable.

In the effort to learn more about technology’s potential, in September, Risk & Insurance® partnered with Duluth, Ga.-based Healthcare Solutions to convene an information technology executive roundtable in Philadelphia.

The goal of the roundtable was to explore technology’s promise and to gauge how advancements are serving the industry’s ultimate purpose, getting injured workers safely back to work.

 

Big Data, Transparency and the Economies of Scale

Integration is a word often heard in connection with workers’ compensation claims management. On one hand, it refers to industry consolidation, as investors and larger service providers seek to combine a host of services through mergers and acquisitions.

In another way, integration applies to workers’ compensation data management. As companies merge, technology is allowing previously siloed stores of data to be combined. Access to these new supersets of data, which technology professionals like to call “Big Data,” present a host of opportunities for payers and service providers.

Through accessible exchange systems that give both providers and payers better access to the internal processes of vendors, a service provider can show the payer the status of the claim across a much broader spectrum of services.

SponsoredContent_HCS“One of the things I see with all of this data starting to exchange is the ability to use analytics to predict outcomes, and to implement workflows to intervene.”
–Matthew Landon, Vice President of Analytics, Bunch CareSolutions.

“Any time that we can integrate with a payer across multiple products such as pharmacy, specialty and PPO services, what it does is gives us a better picture of the claim and that helps us to drive better outcomes,” said roundtable participant Chuck Cavaness, chief information officer for Healthcare Solutions.

Integration across multiple product lines also produces economies of scale for the payer, he said.

Big Data, according to the roundtable participants, also provides claims managers an unparalleled perspective on the cases they manage.

“One of the things that excites us as more data is exchanged is the ability to use analytics to predict outcomes, and to implement workflows to intervene,” said roundtable participant Matthew Landon, vice president of analytics with Lakeland, Fla.-based Bunch CareSolutions, A Xerox Company.

Philadelphia roundtable participant Mike Cwynar, vice president of Irvine, Calif.-based Mitchell International, agrees with Landon.

Jerry Poole, President and Chief Executive Officer, Acrometis

Jerry Poole, President and Chief Executive Officer, Acrometis

“We are utilizing technology to consolidate all of the data, to automate as many tasks as we can, and to provide exception-based processing to flag unusual activity where claims professionals can add value,” Cwynar said.

Technology is also enabling the claims management industry to have more productive interactions with medical providers, long considered one of the Holy Grails of better case management.

Philadelphia roundtable participant Jerry Poole, president and CEO of Malvern, Pa-based claims management company Acrometis, said more uniform and accessible information exchange systems are giving medical providers access to see how bills are moving through the claims manager’s process.

“The technology is enabling providers to call in or to visit a portal to figure out what’s happening in the process,” Poole said.

More efficient data storage and communication is also resulting in quicker turnaround times, which is shortening the duration of claims and driving down the overall cost of risk, according to Cwynar.

 

Going Mobile

Another area where technology is moving the industry forward, according to the Philadelphia technology roundtable participants, is mobile technology, which is being used to support adjustors and case managers and is also contributing to quicker return to work and lower costs for payers.

The ability to take a digital tablet to a meeting with an injured worker or a health care provider is allowing case managers to enter data and give feedback on a patient’s condition in real time.

“Our field-based case managers have mobile connectivity to our claims systems that they use while they’re out of the office attending doctor’s appointments, and can enter the data right there into the system, so they’re not having to wait until they are back at the office to enter critical clinical documentation,” said Landon.

Injured workers that use social media, e-mail and the texting function on their mobile phones are staying in better touch with those that are charged with insuring that they are in compliance with their treatment plans.

Wearable devices that provide in-the-moment information about an injured workers’ condition have the potential to recreate what is known in aviation as the “black box,” a device that will record and store the precise physical state of an employee when they were injured. Such a device could also monitor their recovery process.

But as with many technologies, worker and patient privacy also needs to be observed.

“At the end of the day, we need to make sure that we approach technology enhancement that demonstrates value to the client, while ensuring patient advocacy,” Landon said.

Consolidation

As payers and claims managers set out to harness the power of computing in assessing an injured worker’s condition and response to treatment, the cycle of investment in companies that serve the workers’ compensation space is currently playing a significant role.

The trend of private equity investing in companies that can establish one-stop shopping for such services as medical case management, bill review, pharmacy benefit management and fraud forensics has huge potential.

SponsoredContent_HCS“Any time that we can integrate with a payer across multiple products such as pharmacy, specialty and PPO services, what it does is gives us a better picture of the claim and that helps us to drive better outcomes.”
— Chuck Cavaness, Chief Information Officer, Healthcare Solutions.

The challenge now facing the industry, one the information technology roundtable participants are confident it can meet, is integrating those systems. But doing so won’t happen overnight.

“There’s a lot of specialization in the industry today,” said Jerry Poole of Acrometis.

Years ago there was a PT network. Now there’s a surgical implant guy, there’s specialized negotiations, there’s special investigations, said Poole.

The various data needs to be integrated into an overall data set to be used by the carriers to help lower the cost of risk.

“Consolidating all these providers will take standardization of communication pathways and it will likely be led by the vendors,” Poole said.

 

Securing Sensitive Information

Long before hackers turned the cyber defenses of major national retailers inside out, claims management professionals have focused increased attention on the protection of data shared across multiple partners.

Information security safeguards are changing and apply to what technology pros refer to “data at rest,” data that is stored on a particular company’s servers, and “data in flight,” data that is transferred from one user to another.

Michael Cwynar

Michael Cwynar, Vice President, Mitchell International

Mitchell’s Cwynar said carriers want certification that every company their data is being sent to needs to have that information and that both data at rest and data in flight is encrypted.

The roundtable participants agreed that the industry is in a conundrum. Carriers want more help in predictive analytics but are less willing to share the data needed to make those predictions.

And as crucial as avoiding cyber exposures and the corresponding reputational damage is for large, multinational corporations, it is even more acute for smaller companies in the workers’ compensation industry.

Healthcare Solutions’ Cavaness said the millions in loss notification and credit monitoring costs that impact a Target or a Home Depot in the case of a large data theft would devastate many a workers’ compensation service vendor.

“They’d be done in a minute,” Cavaness said.

The barriers to entry in this space are higher now than ever before, continued Cavaness, and companies wishing to do business with large carriers have the burden of proving that its security standards are uncompromising.

In Reality

Workers’ compensation risk management in the United States is by its very nature, complex and demanding. But keep in mind that those charged with managing that risk get better results year after year.

Technology has a proven capability to iron out the system’s inherent complications and take its more mundane tasks off of the shoulders of case adjustors.

The roundtable members agreed that the business goals of a lower cost of risk and an even more productive workforce will follow.
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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 Healthcare Solutions. The editorial staff of Risk & Insurance had no role in its preparation.




Healthcare Solutions serves as a health services company delivering integrated solutions to the property and casualty markets, specializing in workers’ compensation and auto liability/PIP.
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