Workers' Comp

Making the Grade

Employers make jobs conditional on physical fitness.
By: | March 3, 2014 • 9 min read
Prince William County, VA firefighter Joe Hopper

Taking the time to match a tough job with a worker who can actually do it reduces the potential for costly workplace injuries, employers are now finding.

That concept is leading more employers to study their essential job functions and test the ability of job candidates, particularly when a job requires a new hire to perform functions known to cause injuries.

Increased nationwide hiring, the rising cost of treating workplace injuries and a less physically fit job applicant pool are driving more employers to employ the practice known as post-offer employment testing.


Post-offer employment testing, or POET, involves simulating the lifting, pushing, pulling and other physical activities that make up a job’s essential functions. Employers are increasingly making employment offers conditional upon a job applicant’s physical ability to perform those activities.

And in another recent trend, employers are expanding the strategy to help determine when to return an established employee to their duties following a workplace injury or a non-occupational disability leave.

“Pre-work screens are not a good strategy if your injuries are coming three years into employment.”

–Drew Bossen, founder, Atlas Ergonomics

At Cooper Standard, the Novi, Mich.-based automobile parts manufacturer, for example, workers desiring a strenuous job first participate in “simulated work.” That helps determine whether they are physically capable of performing the real job, said Patricia Hostine, the company’s global manager of workers’ compensation.

A job requiring continual force to press rubber hose into a mold that forms radiator hoses is desirable because it is one of the better paying tasks the auto parts manufacturer offers, Hostine added.

But it’s also one of the company’s most physically demanding roles.

“It’s very hard work,” Hostine said. “That is where a lot of our injuries are found.”

After performing the simulated work, more applicants decide against taking the job than the company disqualifies. That’s because the testing showed them they couldn’t do the job anyway.

Cooper Standard also requires a functional evaluation, conducted by physical therapists, for any worker who has been away from work either because of a workplace injury or a non-occupational disability.

That requires employees who normally form radiator hoses to show that they are once again physically capable of performing the work after returning from an absence.

Employers that have benefited from conducting POET evaluations for newly hired employees are increasingly adopting a similar worker evaluation as part of their return-to-work programs, several experts said.

“Historically, these [physical evaluations] have been used at the point of offer, at the point of employment,” said Drew Bossen, a physical therapist and founder of Atlas Ergonomics. “But in the last 12 months, we have clients formulating methodologies to use them for return to work as well.”

Data from an initial POET exam can also provide a measured baseline of an employee’s abilities that can be reviewed post injury to help determine when the worker has regained their ability to return to their original job, or whether they should take up other duties.

Using data that way can reduce return-to-work durations by providing support for a doctor’s determination to release their patient.

Most employers using a POET system, however, still use it only to test newly hired workers.


Evaluating whether potential new hires have the physical ability to perform certain tasks can substantially reduce a company’s injury rate because newer workers typically account for a greater number of injuries than their more-experienced counterparts, POET advocates said.

Data compiled by the National Council on Compensation Insurance Inc. showed that workers on the job less than a year in 2007 accounted for nearly 34 percent of injuries although they made up only 23 percent of the labor force.

“Pre-work screens are not a good strategy if your injuries are coming three years into employment,” Bossen said.

Now, as the U.S. Labor Department reports increased hiring across the country, vendors that provide physical ability testing programs said they are seeing increased demand, which had dropped off during the recession.

“We have seen a big uptick in companies interested in doing this across all industries,” including transportation, mining and health care, said Connie Vaughn-Miller, vice president of business development for BTE Technologies.

The testing may be more beneficial for the most strenuous types of work.

Hostine at Cooper Standard said, for example, that she does not see a cost/benefit advantage for testing workers engaged in light production jobs.

Most employers adopting a POET strategy do so for certain positions and many start with a pilot program, experts said. It’s best to decide which job categories to include in a pilot program by reviewing the company’s claims history to pinpoint where injury frequency and severity are problems. Or, they recommend starting with the company’s most physically demanding jobs, then add others if the pilot results warrant doing so.

“We can’t be a better place to work if we’re hiring people that are not able to perform the job. That’s bad for the company and the associate.”

–Libby Christman, vice president of risk management, Ahold USA.

Making Work Safer

“One of our company promises is to be a better place to work,” said Libby Christman, vice president of risk management at Ahold USA.

“We can’t be a better place to work if we’re hiring people that are not able to perform the job. That’s bad for the company and the associate.”

Ahold is a retailer with about 120,000 employees operating stores under the names of Stop & Shop, Giant Food Stores, Martin’s Food Markets, and Peapod, an online grocery ordering unit.

Late last year, Ahold launched a pilot program for Peapod delivery drivers and for certain strenuous jobs in two warehouses, Christman said. The warehouse jobs require pushing, pulling, bending and lifting.

Since September, Christman has found that about 25 percent of job applicants could not pass its physical demands test. Screening for an employee capable of doing the job, though, not only reduces injuries, but improves productivity.

“We know that obtaining an accurate assessment of an applicant’s physical abilities can help us place him or her in a suitable job, potentially eliminate injuries and ensure efficiency and performance on the job,” Christman said.


Stepped-up hiring is not the only factor driving employer demand for POET services, observers said.

Employers — continually pushing for more sophisticated safety measures in the face of an aging, more obese, and less physically fit U.S. workforce — are also driving the demand, BTE Technologies’ Vaughn-Miller said.

The Discrimination Question

Employers cannot discriminate when hiring, but they can legally ask a worker to demonstrate that they can meet the physical demands of a job’s essential functions, experts said.

That requires careful analysis, however, to clearly understand a job’s essential functions, so the designed test measures just those functions and does not go beyond evaluating a worker’s ability to perform those specific tasks.

Employers have run afoul of the Equal Employment Opportunity Commission when implementing POET programs that evaluated for abilities beyond those required by the job.

If employees must lift 75 pounds only once a year, and can use a mechanical lift assist to help them when they do so, then testing to see whether a worker can lift 75 pounds is not a fair test, advised Colleen M. Britz, managing director and ergonomics practice leader for Marsh Risk Consulting.

Colleen M. Britz, managing director and ergonomics practice leader for Marsh Risk Consulting

Colleen M. Britz, managing director and ergonomics practice leader, Marsh Risk Consulting

Employers may also face discrimination complaints if they do not require a POET evaluation of everyone seeking a specific job, experts warned.

The tests themselves, however, vary substantially, depending on the vendor or employer providing them.

Some resemble gym equipment with electronic systems for measuring a worker’s strength and agility. Those results can then be compared to computerized measurements of a task. Other tests may be as simple as requiring a worker to lift bags of sand.

“I do consider it a best practice to have a well-designed post-offer employment test that truly is measuring an employee’s capacity to meet physical demands,” Britz said. “It’s a matter, from my perspective, of whether some of the methodologies are truly testing that.”

The wide variation in testing methodology has hampered the collection of data on POET’s impact on overall employee injury rates across industries or multiple employers, experts said.

But individual employers have experienced success, Britz said.

“I don’t know of any company that has stopped doing POET after starting — because they are seeing a positive return on investment,” she added.

A physical abilities test helped Prince William County in Virginia mitigate a double loss driven by candidates seeking to become firefighters.

The county was losing tens of thousands of dollars on hiring and training costs each time a  job candidate washed out of a 26-week training course simply because they could not perform the physical challenges firefighters face in the line of duty, said Tim Keen, assistant chief for the county’s Department of Fire and Rescue.

Because firefighting is a tough job, a lack of physical capability also contributed to recruit training injuries.


“Not only is it a hard job, but when you add all the gear they wear, their air packs, as well as the functional movements that it takes to accomplish certain tasks, it puts  strains on the body,” Keen said.

Those strains became costly workers’ compensation claims when recruits could not return to an existing job as would occur after an established firefighter suffered an injury, added Lori Gray, the county’s risk management division chief. That forced the county to continue paying workers’ compensation benefits to recruits who did not have a job to return to.

So in 2003, the risk management and fire department helped the county establish its own facility where applicants wanting to become firefighters must first participate in a standardized Candidate Physical Ability Test.

The International Association of Fire Fighters and the International Association of Fire Chiefs developed the CPAT test the county licenses.

The test used by fire departments across the country requires candidates to climb stairs while wearing weight vests, drag hoses and simulated bodies, simulate forcing their way into a building, and conduct other physical feats within a certain time period.

“There are a variety of firefighting tasks they must go through in this course,” Keen said. The course tests their aerobic capabilities, their flexibility, core strength, and upper and lower body fitness.

The test’s standardization ensures it is true to the firefighter’s actual work role and that is legal and fair to all candidates, he added.

“Regardless of age or gender the course is the same for everybody,” he said.

“The test is appropriate so you are not losing people due to injuries, especially early in their careers, Keen said. “It’s the right thing to do, making sure they are physically capable of doing the job.”

The screenings have resulted in fewer recruits lost due to a lack of physical ability.

“We have also seen a huge reduction in the number of injuries that were occurring because recruits are coming in more physically fit to do the job,” Keen said.

POET advocates said the screening results have other applications as well.

In some cases, post-offer physical test results provide employers with a defense in permanent disability cases, Britz said.

In states allowing employers to apportion responsibility for permanent disability claims, for example, the baseline results from the initial post-offer exam can limit an employer’s liability by showing that a worker lost only a certain portion of their functional ability during their employment tenure.

Britz added that she expects to see more large, sophisticated employers counter rising claims severity driven by factors such as aging and obesity by integrating their ergonomics, wellness intervention and physical ability testing programs.

For example, an employee returning from a leave might undergo a fitness for duty exam to evaluate their ability to perform the job without injuring themselves.

Simultaneously, the employee could be referred to the employer’s wellness program to address health-related issues such as high body mass index or to learn exercises that would strengthen certain body parts, such as their shoulders, if frequently used in their daily work routines.

“That is the evolution of post-offer employment testing into fitness-for-duty programs,” she said.

“Not so they lose the job, but to recognize that this person needs to work on shoulder strength. So we create an opportunity to increase shoulder strength. I think that is going to be the wave of the future.”

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.
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Unmanned Risk

Rise of the Drones

Insuring unmanned aircraft systems is going to be complicated.
By: | March 3, 2014 • 7 min read

An unmanned aircraft flies over a raging forest fire, alerting firefighters to where the blaze is most dangerous; another hovers over a construction site conducting a building inspection; and a third sweeps through a neighborhood taking photographs that showcase the exterior and interior of a home listed for sale.

While this may sound like some sci-fi movie scene set in the future — it’s not. The use of flying robotics in the form of small unmanned aircraft systems (UAS), also known as drones, is not only happening now, its commercial growth is predicted to significantly increase over the next 10 years.


However, in implementing these new UAS-related business opportunities, a multitude of insurance liability and coverage issues must be addressed, ranging from personal injury and invasion of privacy to aerial surveillance and data collection.

An Expanding Market

The Federal Aviation Administration (FAA) has determined that small UAS are “currently the most dynamic growth sector within the aviation industry.” By 2020, it is estimated that about 30,000 small unmanned aircrafts will be used for all types of business purposes. Currently, the FAA has allocated $63.4 billion for the modernization of the country’s air traffic control systems as well as an expansion of airspace to accommodate the commercial use of UAS.

Total spending for small unmanned aircraft systems worldwide is expected to reach $89.1 billion over the next 10 years.

For added perspective on the growth of this industry, the Teal Group’s 2012 market study forecasts that total spending for UAS worldwide is expected to reach $89.1 billion over the next 10 years, including strong military and commercial demand. The FAA also asserts that civil UAS markets will continue to grow even with the current regulatory constraints. However, once these constraints are modified, commercial markets will quickly develop, and demand for additional UAS and ancillary services will be created. The FAA estimates that this will translate into approximately 7,500 commercial UAS being viable at the end of five years.

An Overview

For commercial operations, the FAA has approved two flying robotics models; both of which weigh less than 55 pounds and measure four and half feet long. Prior to this, the only way the commercial/private sector could fly an unmanned aircraft in U.S. airspace was with an experimental airworthiness certification.

These small crafts enjoy two distinct features not shared with the aviation marketplace: (1) they are unmanned, having no human pilot/operator onboard, and (2) they are remotely operated by a pilot using data link transmissions.

Vikki Stone Senior Vice President Poms & Associates

Vikki Stone
Senior Vice President
Poms & Associates

In addition, these UAS have the ability to house high-powered cameras, infrared sensors, facial recognition technology, and license plate readers. For example, Halstead Property located in Darien, Conn., has been using aerial robotic cameras in its real estate business for almost four years to showcase home listings. The first in the state to use this technology, the company was recently featured on the “Today” show in a demonstration of how images can be captured remotely and then posted on the Internet, showing a home from both inside and out. The use of the technology has increased Halstead’s online listings views by more than three times and clients are impressed by the company’s progressive marketing efforts and use of cutting-edge technology.

Integration By Late 2015

Congress has tasked the FAA with integrating UAS into the national airspace system by late 2015. This accelerated time frame requires the FAA to quickly develop a comprehensive plan focused on the safety of UAS technology as well as operator certification. To meet these objectives, the FAA, in March 2012, created a new UAS integration office which brings together specialists from the aviation safety and air traffic organizations.


In attempting to integrate this new generation of commercial flying robotics, it is clear that the FAA is facing a variety of complex operational, procedural and technological challenges. Specifically, the FAA must develop effective policies and standards addressing the following issues: increasing UAS capacity, efficiency and predictability while enhancing safety; operating globally; creating a flexible paradigm for airspace uses; and mitigating congestion with a concern for protecting both safety and the environment.

Additionally, there are a host of related legal issues that will arise with the introduction of UAS in the skies. Such concerns include whether a property owner may protect his property from a trespassing drone; stalking, harassment, and other criminal laws that could be related to drone use; the applicability of airspace ownership laws; concerns over invasion of privacy and spying; and the extent to which federal aviation law trumps state law.

In 2013, the Drone Aircraft Privacy & Transparency Act was introduced to create a regulatory scheme for the private use of drones, including privacy protection, data collection and enforcement.

Carriers are developing policies to cover exposures, but there is little clarity or guidance in this area.

A Myriad of Challenges

In addition to regulatory and legal challenges, there are a myriad of complex liability and coverage issues related to insuring the use of commercial UAS. Surely, the operation of flying robotics will not be as orderly as presented in “The Jetsons” with all kinds of new and serious problems arising over such things as airspace procedures, types of accidents, and inadvertent eavesdropping.

Carriers are currently in the process of developing policies to cover insurance exposures presented by these small unmanned aircrafts, yet there is little clarity or guidance in this area.

However, even with the current lack of UAS insurance “experts” or private UAS claims, it is clear that two particular issues are going to raise huge red flags to the insurance industry — personal injury and invasion of privacy. As far as insuring these aircraft, carriers will want to know such things as its function or intent, its takeoff and landing location, whether it will be operating over a populated area, and its flying altitude.

In addition, with the ability to collect massive amounts of unsolicited data, UAS present an enormous threat to individual privacy and a significant challenge for insurance carriers. In drafting policies, it is crucial for carriers to know how such information will be used.

Coverage Range

Given the inherently conservative nature of the insurance industry, carriers might require even stricter guidelines than what the FAA may mandate. Regardless, the following general types of coverage will be needed for the use of UAS and ancillary business activities: liability, personal injury, invasion of privacy, property and workers’ compensation.

Liability coverage typically includes protection for personal injury, which therefore also covers invasion of privacy. The scope of coverage will really depend on exactly what the aircraft is meant to do.

Property coverage broadly applies to the production, assembly and wholesaling process, which not only protects the parts being assembled and the finished product sitting in a warehouse, but the machinery as well.


In addition, while whole coverage will definitely be needed, aircraft underwriters are currently exploring how to write such policies as UAS are going to be significantly smaller than standard aircraft, with some even being perceived as little model kit types. At this stage, it’s difficult to predict what they will or will not do.

Workers’ compensation coverage is necessary to protect the people who are working for and in the facilities of UAS-related businesses.

Also, since many of these UAS businesses are going to be entrepreneurial startups funded by investors, there is a risk of financial loss due to operational mismanagement. Therefore, exploring directors’ and officers’ liability insurance might be a prudent option under the circumstances.

Simple strategies

Given that the use of UAS is completely new ground for the insurance industry, it is incumbent upon the broker to ask all the right questions and “go deep” in flushing out all the details. For example, brokers should inquire about data collection, storage and usage policies as well as a drone’s particular purpose and other physical specifications as it is information that must be presented to an underwriter. Nothing should be left to the imagination.

Currently, there are about 21 insurance companies that write aircraft products liability policies, whereas in previous years, there were only about nine.

As carriers become increasingly more comfortable with this unfamiliar territory, just as they did with insuring certain employment practices or cyber liability, the capacity to underwrite such policies will also increase.

However, bear in mind that insurance is about the collective, so if carriers get one or two deaths or serious injury claims, they will inevitably start to pull back, which results in less available coverage and higher prices.

While insurance coverage for commercial drones is currently “up in the air,” there is no question that the UAS market is a key growth area for the aerospace sector as well as other commercial businesses. For those insurance professionals who are willing to step in, learn, and not take a passive “wait and see approach,” there are tremendous opportunities in the rapidly expanding field of commercial UAS.

Vikki Stone is senior vice president at Poms & Associates. She can be reached at [email protected]
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Sponsored: Aspen Insurance

When the Going Gets Rough, the Smart Come to Aspen Insurance

Aspen’s products liability team excels at solving tough problems and building long-term relationships.
By: | November 2, 2015 • 5 min read

Sometimes, renewals don’t go as expected.

Perhaps your company experienced a particularly costly claim last year. Or maybe it was just one too many smaller incidents that added to a long claims history.

No matter the cause, few words are scarier to hear this time of year than, “Renewal denied.”

But new options are now emerging for companies that are willing to tackle their product liability challenges head-on.

Aspen Insurance’s products liability team – underwriters, loss control engineers and claims professionals – welcome clients who have been denied coverage from other, more traditional carriers.

“For our team, we view our best opportunities to be with clients who have specific problems to solve. In these cases, we leverage our deep expertise and integrated team approach to help the client identify root causes and fix issues,” said Roxanne Mitchell, Aspen U.S. Insurance’s executive vice president and chief casualty officer.

“The result is a much improved product or manufacturing process and the start of a new business relationship that we can grow for many years to come.”

“We want to work with insureds as partners, long after a problem has been resolved. We seek clients who are going to stick with us, just as we will with them. As the insured’s experience improves over time, pricing will improve with it.”
— Roxanne Mitchell, Executive Vice President, Chief Casualty Officer, Aspen Insurance

Of course, this specialized approach is not applicable to all situations and clients. Aspen Insurance only offers coverage if the team is confident the problems can be solved and that the client genuinely wants to engage in improving their business and moving forward.

“Our robust and detailed problem-solving approach quickly identifies pressing issues. Once we know what it will take to rectify the problem, it’s up to the client to make the investments and take the necessary actions,” added Mitchell. “As a specialty carrier operating within the E&S market, we have the ability to develop custom-tailored solutions to unique and complex problems.”

For clients who are eager to learn from managing through a unique, pressing issue, and apply the consequential lessons to improve, Aspen Insurance can be their best, and sometimes only, insurance friend.

The Strategy: Collaboration from Underwriting, Claims and Loss Control

Aspen offers a proven combination of experienced underwriting professionals collaborating with the company’s outstanding loss control/risk engineering and seasoned claims experts.

“We deliver experts who understand the industries in which they work, which is another critical differentiator for us,” Mitchell said.

Mitchell described the Aspen underwriting process as a team approach. In diagnosing the causes of a specific problem, the Aspen team thoroughly vets the client’s claims history, talks to the broker about the exposures and circumstances, peruses user manuals and manufacturing processes, evaluates the supply chain structure – whatever needs to be done to get to the root of a problem.

“Aspen pulls from every resource we have in our arsenal,” she said.

After the Aspen team explores the underlying reason(s) and root cause(s) producing the client’s problem in the first place, it will offer a solution along with corresponding price and coverage specifics.

“We have a very specific business appetite and approach,” Mitchell said. “We don’t treat products liability as a commodity.”

As noted, a major component of Aspen’s approach is that they seek to work with clients who are equally interested in solving their problems and put in the work required to reach that end.

Aspen_SponsoredContentMitchell cited two recent client examples of manufacturers of expensive products that could endure large claim losses but had some serious problems that needed to be solved.

A conveyor systems manufacturer had a few unexpected large claims and lost its coverage in the traditional insurance market. The manufacturer never managed a product recall in the past, and Aspen’s loss control engineers dug into why several systems failed. Aspen also helped the company alert customers about the impending repairs.

Another company that manufactured firetrucks had three or four large losses, when telescoping ladders collapsed, resulting in serious injuries. The company’s claim history was clean until this particular product defect. When Aspen researched the issue, it found that the specific metal and welding used to make the telescoping ladders didn’t have the required torque to keep the ladders from collapsing.

Both companies worked with Aspen to correct the issues. Problem solved.

“It is so important that our clients are willing to actively engage in finding out what is causing their losses so they can learn from the experience,” Mitchell said.

Apart from the company’s problem-solving philosophy, Mitchell said, the willingness to allow qualified clients to manage their own claims is the second biggest reason companies come to Aspen.

“We are willing to work with clients who have demonstrated the expertise to handle their own claims — with our monitoring — rather than hiring a TPA,” she said. “It is a useful option that can save them money.”

Mitchell explained that customers who stay with Aspen for the long-term can be confident that Aspen will help them – whatever the challenge. For instance, if they need a coverage modification for a new product that they bring to market, Aspen can help make it happen. Mitchell noted, “We pride ourselves on the ability to develop custom-tailored solutions to address the complex and challenging risks that our clients face.”

Long-term Relationships

Aspen_SponsoredContentAspen’s desire to help solve difficult client problems comes with a caveat, but one that benefits both Aspen and the insured: It wants to move forward as a true partner – one with clear long-term relationship potential.

In a nutshell, Aspen’s products liability worldview is to partner with a manufacturer who is facing a difficult situation with claims or coverage, help them solve that problem, and then, engage in a long-term, committed relationship with the client.

“We want to work with insureds as partners, long after a problem has been resolved,” she said. “We seek clients who are going to stick with us, just as we will with them. As the insured’s experience improves over time, pricing will improve with it. This partnership approach can be a clear win-win.”

This article is provided for news and information purposes only and does not necessarily represent Aspen’s views and does constitute legal advice. This article reflects the opinion of the author at the time it was written taking into account market, regulatory and other conditions at the time of writing which may change over time. Aspen does not undertake a duty to update the article.


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

Aspen Insurance is a business segment of Aspen Insurance Holdings Limited.
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