Under North Carolina law, where an employer has failed to carry workers' compensation insurance as required by law, the amount of the penalty is determined by law, rather than at the discretion of the court.
Risk Management Learning Center
By Associated Press
11:48 AM CDT, March 9, 2009
OKLAHOMA CITY (AP) — The Oklahoma House has passed legislation that critics say limits workers compensation benefits for workers who suffer soft tissue injuries.
House members voted 62-33 for the measure Monday and sent it to the Senate for a vote.
The bill by Rep. Dan Sullivan of Tulsa says a claimant who has had surgery for a soft tissue injury on the recommendation of a doctor can get an extension of total compensation of no more than 16 weeks.
If surgery is not recommended or recommended but not performed within 90 days, benefits are to be terminated.
Sullivan says the bill clears up legal guidelines for courts to follow.
But Rep. Richard Morrissette of Oklahoma City says they are too restrictive and place the interest of companies over injured workers.
City officials in Edmond, Okla., are challenging court rulings in favor of a firefighter who claims his colon cancer is a work-related injury because of the smoke, hazardous materials and chemicals he was exposed to on the job.
Tim Vernon, 45, is a 19-year veteran firefighter who is fighting for his workers' compensation benefits.
Oklahoma law presumes his stage four colon cancer is work related because of the nature of firefighting work. Workers' Compensation and Oklahoma Court of Civil Appeals judges agree Vernon is eligible for state financial help.
Edmond's attorneys believe the law is unconstitutional because it provides special treatment for firefighters and they want the Oklahoma Supreme Court to review the case.
If Vernon wins in the higher court, it will mean Edmond and other cities across the state are liable for firefighters who become ill with cancer or heart and lung problems on the job.
Edmond firefighter John Werhun also has been diagnosed with stage four colon cancer.
"Fighting cancer is hard enough without having to hire an attorney and fight for your rights that the Legislature thought we deserved," said Werhun, 28. "The burden of fighting a court case makes it that much harder to handle the (cancer) treatment."
Vernon added: "Not to do what the court said is asinine and arrogant. A lot is riding on this, not just for me, but all firefighters and their families. It has gotten a whole lot bigger than Edmond."
Gary Copeland, president of International Association of Firefighters Local 157, said a number of Oklahoma City firefighters also have been denied workers' compensation benefits in similar cases and have been forced to hire attorneys at their expense.
"We think municipalities are handling it wrong," he said.
Information from: The Oklahoman, www.newsok.com
Will Decision Trigger Deluge of Lawsuits in Show Me State?
Almost 15 months after it heard arguments in the case, the Missouri Supreme Court issues a splintered decision in a constitutional challenge to the state legislature's 2005 workers' compensation reform that, among other things, limited the types of injuries covered. An attorney predicts a flood of lawsuits against employers as a result.
Go to the full story in Missouri Law
Go to the full story in Springfield Business Journal
Go to the full story in fox4kc.com (Kansas City)
Go to the full story in the Hays Daily News
Go to the full story in Business Insurance
California’s Second District Court of Appeals recently heard a case that turned on the issue of whether or not workers compensation was the “exclusive remedy” available to an injured worker. The worker, Eugene Duffy, was assaulted by a co-worker in August of 2004. Mr. Duffy filed suit in an attempt to hold his employer, Technicolor Entertainment Services, Inc. responsible for negligently retaining and supervising the co-worker that attacked him. He pointed toward a pattern of violent threats and verbal attacks in alleging that Technicolor Entertainment Services should have fired the co-worker before he caused any harm. In response, Technicolor argued that the “exclusive remedy” rule pre-empted Mr. Duffy's lawsuit because the attack grew out of, and was incidental to, his employment. The court disagreed, stating that Mr. Duffy wasn’t injured in the scope of his employment – in part, because he was attacked as he stepped out of his car at work and in part because he was not performing work for his employer at the time that the attack occurred. The court then upheld the finding of the jury that awarded Mr. Duffy $1 million and agreed that Technicolor had a heavy hand in Mr. Duffy’s being injured. If the court had found that the “exclusive remedy” did prevent him from collecting more than workman’s compensation, his award undoubtedly would have been much less.
Among other discoveries, the study found that comp systems pay more than group health for specific services, which are used more often in comp than in group health in an attempt to get an injured worker back on the job as quickly as possible.
Care that physicians provide at hospitals and other facilities was found more likely to exceed workers’ comp fee schedules than care provided in their offices. NCCI said that this was partly due to the fact that the fee schedule need not always apply when facilities bill for such services.
NCCI reported that the comp rates were particularly higher than group health for specialty areas such as radiology and surgery.
The organization said that advocates of higher comp fee schedules argue that if they are too low, worker access to care will be compromised. Additionally, NCCI said that comp claims require an investment in more costly paperwork.
Further, the group suggested that rural areas may have a limited number of medical specialists.
NCCI’s study reported a shift to a greater proportion of medical services being provided by hospitals and other facilities and a lower proportion by private physicians. It also found that the higher prices paid by workers’ comp are associated with higher utilization of services.
The researchers wrote that higher reimbursements are a financial incentive to medical providers to perform more procedures on comp claimants, while comp insurers are more willing to pay premium prices for care most necessary to result in a patient going back to work.
They said the more frequently used procedures are the most likely to be lobbied for higher fee schedule reimbursement.
"As a physician and legislator I want a system that delivers the needed medical care to injured workers," said Cox, a Grove Republican and emergency room doctor. "We need to treat these workers as quickly and efficiently as possible."
However, he said Oklahoma’s current workers comp system actually discourages treatment of injured workers.
"Physicians are hesitant to take work comp cases under the present system because too often, after seeing an injured worker, the physician receives a subpoena for medical records and has to waste a great deal of time Xeroxing records and dealing with legal hassles," Cox said.
He said the current system also discourages workers from actually rehabilitating.
"I know many physicians are tired of releasing an injured employee to return to work only to find out later the worker was poorly motivated, preferring instead to take his chances on winning a big settlement through a workman comp case," Cox said. "In addition, physicians are concerned that even with the high number of injured workers receiving permanent partial disability payments, not enough cases are referred for actual vocational rehabilitation. I believe vocational rehabilitation should be started earlier in cases when it is warranted."
A recent legislative study found the rate of permanent partial disability payments (PPDs) in Oklahoma is almost twice the regional average, yet in 2006 Oklahoma’s workers’ compensation system ordered vocational rehabilitation for only 4 percent of all cases.
Cox noted the current workers’ compensation system is also a drag on the state economy.
"The present system has resulted in higher rates for Oklahoma companies and that discourages economic development," Cox said. "We cannot offer enough up-front incentives to compensate for the high workers comp rates incurred year after year for even well-run Oklahoma businesses."
Cox said any reform of Oklahoma’s workers compensation system should emphasize efficient and quality medical care, and returning employees to the workforce as soon as possible (either at their old job or by retraining them for another job).
He said the reforms will impact some physicians who are bilking the system.
"I am saddened to admit there are some unscrupulous physicians who seem to be in the pockets of the workers comp attorneys and willing to write whatever disability rating the attorney requests," Cox said. "That has to end. I feel we should take a good look at any bill that reforms our present system to better serve the injured worker and Oklahoma industry. Industry deserves a system that helps an injured worker and does not place undue financial strain on Oklahoma companies"
An Alabama worker killed on the job was denied death benefits to his family because the worker's family resided in Mexico. The Alabama Court of Criminal Appeals ruled that dependents living outside the US cannot collect as written in original Alabama Workers Comp law in 1919.
The November elections gave Republicans a majority in the Oklahoma Senate for the first time in the state's history. Party leaders recently called for reform of the state's workers' comp system, which they branded "archaic and business-unfriendly."
Senate President Pro Tem Glenn Coffee, R-Oklahoma City, and Republican Caucus Chairman John Ford said the party wishes to improve the state's legal system and business climate by reforming the workers' comp system and continuing the charge to reform the tort process. Coffee said this will aid in lowering costs, creating jobs, attracting more physicians, and protecting the rights of all individuals in the state.
"Republicans have sat in the background in forming public policy for too many years now, but with thanks to the voters of our state, we will now have a seat at the head of the table," he said.
The 2009 legislative session begins Feb. 2 and runs through the end of May.
January 29, 2009
Copyright 2009© LRP Publications
The Oklahoma Workers' Compensation Court periodically sponsors, or jointly sponsors, educational conferences. Onsite training and workshops also are provided upon request. If you or your business, insurance or civic group are interested in a presentation or speaker from the Court, please submit your request to the Court's Counselor Department using the attached form.
ITHACA, N.Y. – From large international corporations to small local contractors, construction companies that drug test appear to be successfully reducing workplace injuries, according to a new Cornell University study. “While drug testing is controversial, this study provides useful data on a readily-measurable outcome,” says the study’s author, Jonathan Gerber, a student at Cornell University’s School of Industrial and Labor Relations who conducted the study as part of an independent research project. Professor Robert Smith served as the advisor of this study.
In the last 15 years, drug testing in the workplace has gone from ground zero to widespread universal employer acceptance. In 1983, less than one percent of employees were subject to drug testing. Today, approximately 49 percent of full-time workers are subject to some from of workplace drug testing, according to the Substance Abuse and Mental Health Administration.
This growth is particularly evident within the construction industry. High rates of drug and alcohol-abuse in the construction industry, coupled with the high-risk, safety-sensitive nature of the industry’s jobs have prompted many companies to implement a variety of safety strategies including drug testing – particularly when the safety of workers and the public hand in the balance.
The study, titled “An Evaluation of Drug Testing in the Workplace: A Study of the Construction Industry,” was undertaken to test the efficacy of workplace drug-testing programs in establishing safer workplaces by examining company injury incident rates and workers’ compensation experience-rating modification factors over a period of five years. The results reported are based on scientific analysis of data collected form 71 companies by a voluntary survey faxed to a randomly selected national sample of 405 construction companies in December 1999. Additional data was provided by the National Council on Compensation Insurance (NCCI).
Among the study’s findings:
The average company that drug tests in the study sample experienced a 51 percent reduction in its injury rate within two years of implementing a drug-testing program from a rate of 8.92 incidents per 200,000 work-hours to 4.36 incidents. The difference was proven statistically significant when compared to the 14 percent decline in the average construction firm during the same time period.
As a result of fewer job site accidents and injuries, the average company that drug tests in the study sample experienced an 11.41 percent reduction in its workers’ compensation experience-rating modification factor. At the same time, companies that did not implement drug testing programs saw no decline in their workers’ compensation experience-rating modification factor. This means that companies that drug test can save substantially on their workers’ compensation premiums
Drug test is most effective in reducing workers’ compensation experience-rating modification factors in the first three years immediately following the implementation of a program.
The vast majority of respondents, whether or not they utilized drug testing, think substance abuse is a “moderately serious problem” in the construction industry. The majority of company officials who responded to the survey think the problem of drug and alcohol abuse on the job has dropped in the past five years.
Seventy-two percent of respondents with drug-testing programs in place said they think the benefits of drug testing outweigh the costs.
Company officials generally believed their drug-testing programs had a positive impact in virtually every respect. The most positive impacts of the programs concerned the overall safety of the work environment, reductions in workers’ compensation costs, and the quality of job applicants.
The number one reason why employers in the construction industry drug test their employees and job applicants is to promote the safety of their workers and those who use the products and services. In addition, company officials believe that drug testing contributes positively to a company’s image and is an effective deterrent in preventing drug abuse.
The number one reason why some employers in the construction industry do NOT drug test their employees and job applicants is a concern for increased legal liability. Other reasons include concern that drug testing is too costly or that it is prohibited or restricted by state legislation.
The study also revealed that larger construction companies are significantly more likely to test workers for drugs and alcohol. This could make small firms particularly vulnerable to substance abuse problems as drug users may intentionally seek employment where they are not likely to be detected.
This article was released by Cornell University
Contact: Jonathan Gerber
The Physician Advisory Committee, an advisory committee to the Oklahoma Workers Compensation Court, will hold a public hearing on Friday, January 9, 2009 at 2:00 p.m. in the second floor courtroom of the Workers’ Compensation Court, 1915 N. Stiles, Oklahoma City, Oklahoma.
The purpose of the hearing shall be to receive public comments and/or proposals, including views or arguments, regarding the Committee’s proposed Treatment Guidelines for the Cervical Spine.
Written comments may be submitted to the Physician Advisory Committee, c/o Bill Wiles, Worker’s Compensation Court, 1915 N. Stiles, Oklahoma City, OK 73105.
Copies of the proposed guidelines are available on the Court’s website: owcc.state.ok.us under the “What’s New” link. For additional information, call Bill Wiles at 405-522-8766 or toll free at 800-522-8210.