David Williams hosts this weeks Cavalcade of Risk #218 at Health Business Blog - check it out!
October 2, 2014
October 2, 2014
OSHA Expands Mandatory Reporting Requirements to Encompass Individual Employee Hospitalizations, Amputations, and Eye Loss
Jason Markel, Hodgson Russ LLP:
"On September 11, 2014, OSHA adopted a final rule that significantly broadens the mandatory reporting requirements, resulting in an amended Section 1904.39 that becomes effective on January 1, 2015. The amended regulation will require employers not only to report deaths within eight hours as before; it also mandates that employers report to their local OSHA office, subject to limited exceptions, all in-patient hospitalizations of an employee, all amputations, and all eye loss incidents within 24 hours of the event. And, of course, these events must also be recorded on the employer's OSHA 300 log."
Other OSHA News
OSHA's List of Severe Violators Grows by 23 Percent
There are currently 423 sites in the program. "Launched in 2010, OSHA's Severe Violator Enforcement Program "concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated or failure-to-abate violations," in the words of the agency."
September 25, 2014
Billy Wynne has posted the "Thank God It's Recess" edition of Health Wonk Review at Healthcare Lighthouse, a bi-weekly best of the health policy bloggers. Go there now to find out the latest scoop on the Affordable Care Act as the rubber hits the road. Plus, assorted other health policy issues.
In other news:
Happy birthday to us! Worker's Comp Insider is 11 years old this month. Follow us on Twitter too
National Employers Push for Comp Options
Roberto Ceniceros, Risk & Insurance
"National employers already benefiting by opting out of Texas' workers' compensation system are now pushing for "free market alternatives" to traditional state systems across the nation.
They launched a new organization called the Association for Responsible Alternatives to Workers' Compensation. ARAWC plans to lobby state legislators to allow employers to develop new options for delivering medical and wage replacement benefits to injured workers.
Its members include nationwide companies such as Wal-Mart Stores Inc., Lowe's Companies Inc. and Sedgwick Claims Management Services Inc."
Workers' Comp - Feeding the Heroin Dragon
Risk & Insurance, Jason Beans:
"When you start doing some back-of-the-napkin math, you realize that the workers' compensation system's potential contribution to the heroin problem in America is staggering. Bottom line, we need to take ownership - our industry is creating addicts who are creating a massive recurring demand for heroin and other illegal substances."
Drugs and Drinking on the Job in New Mexico
Joan E. Collier, WCI360
"My home state of Florida has a law on the books that says workers' compensation benefits can be denied if an employee is found to have been intoxicated on the job at the time of injury. I've always thought that was sound public policy, so I was surprised to learn that we are decidedly in the minority on this."
Clinical Connections: What's So Special about Specialty Managed Care in Work Comp?
Shelley Boyce, CEO, MedRisk:
"As consolidation limits marketplace choices and as specialization is replaced by generalization, it is critical that buyers remember that expertise and ongoing clinical oversight is more important than ever. Service-specific guidelines, care oversight and outlier identification and management are still the answers to achieving the best patient outcomes. Outcomes, which, in the long-run, will continue to be the right answers for the carriers and payers, for their customers and their injured workers."
Accountable Care and Workers Compensation: Are They Compatible? (PDF)
Jacob Lazarovic, Chief Medical Officer of Broadspire
"Do these alternative medical models offer opportunities to redesign the prevailing model
of delivery and financing in workers compensation? It would seem that bundled arrangements would be easier to implement than population‐based models, and furthermore they would more closely match the nature of WC events which are inherently episodic, not holistic.
Several barriers to WC application of these models exist. Historically, WC has been a volume‐driven, fee‐for‐service model, and expectations and attitudes would need to be reformed. A pattern of micromanagement of all medical services would need to be altered, by increased delegation to provider entities. And the plethora of state regulations, dealing with reimbursement and direction of care, among others, would need to be overhauled to facilitate these approaches."
It's the diagnosis...
Joe Paduda, Managed Care Matters
"If the diagnosis isn't right, there's a pretty good chance the treatment won't be right.
A while back I had an interesting conversation with folks from Best Doctors about this issue, and they provided some interesting statistics about the incidence of misdiagnosis."
Severe black lung reaches near-record levels
Ken Ward, Coal Tattoo
"There's a new paper out this morning that has some scary news about the continued resurgence of black lung disease in the Appalachian coalfields. It focuses on progressive massive fibrosis, or PMF, an advanced, debilitating, and lethal form of coal workers' pneumoconiosis with few treatment options and no cure."
California is the tail that wags the dog
Dave DePaolo, DePaolo's Work Comp World
"Injured workers in California received nearly 20% of the $181.4 billion in medical and indemnity benefits paid by state and federal workers' compensation programs between 2010 and 2012.
In looking at the NASI numbers, the California Workers' Compensation Institute noted that the $11.5 billion paid in medical and indemnity benefits in California was "by far the highest in the nation, exceeding the combined total of New York, Pennsylvania and Florida, which ranked second, third and fourth among all states."
Related: Mark Walls, PropertyCasualty360
The current state of California workers' compensation and a look forward
Insurance Carrier Fraud: Know the Signs
Bill Byington, Missouri Employers Mutual WorkSAFE Center
"When you hear about workers compensation fraud, you usually think about employees and employers filing false claims or falsifying premium. It is important to know that insurance companies can also commit fraud. There are red flags and indicators that policyholders and injured employees need to be aware of when dealing with insurance companies."
NIOSH Celebrates National Farm Safety and Health Week
September 21-27, 2014, is National Farm Safety and Health Week. The National Institute for Occupational Safety and Health (NIOSH) marks this year's theme, Safety Counts: Protecting What Matters, by announcing the new Agriculture, Forestry and Fishing directory page.
Meetings & Conferences
Safety National has a new blog called Conference Chronicles
Register for Business Insurance' 5th annual virtual conference focused on workers comp and safety solutions is scheduled for October 8, a full day of webinars, audience Q&A and networking with peers that can help you better understand and manage the drivers for success in your workers comp and safety programs.
Don't miss out on a discount if you are planning to attend the National Workers' Comp & Disability Conference - if you register by tomorrow, you can save $275. You can learn more about the Nov. 19-21 Las Vegas event at the link above, or follow on Twitter at @wcconf or #NWCDConf
- The huge impact of expanding Medicaid, in one chart
- How states have gamed Medicaid for hundreds of millions of dollars
- People think CEO pay is out of control. The truth is much worse than they know.
How social media is reshaping news
- Teamsters, Advocates Sue U.S. DOT For Not Issuing Truck Driver Training Requirements
- WCRI Study: Prices for Physician-Dispensed Drugs in PA Continued to Grow Rapidly
- Employer obligations related to domestic violence
- Congress Cutting it Close on TRIA
- Now is the time: Insurance industry steps up push for TRIA renewal
- Is it legal to fire an employee for off-duty alcohol consumption?
- 5 things to know about driving on marijuana
- Shift work: Marketing medication for symptoms instead of addressing the hazard
- Major League Baseball Balks at Foul Ball Safety Measures
- Why Your Workplace Wellness Program Is Unhealthy
- Using Independent Contractors just got riskier!
- U.S. Predicts 1.4 Million Ebola Cases in Africa by January Without More Action
- 10 big questions the Pew Research Center has tackled in the past decade
September 19, 2014
in her post How Americans die on the job, in 5 charts, Danielle Kurtzleben of Vox media analyzes and summarizes data from the Labor' Department's most recent preliminary Census of Fatal Occupational Injuries, 2013 The charts offer a quick look at of some of the most deadly jobs, activities and demographics.
The good news is that fatalities continue trending down, as can be seen in the chart below. In 2013, 4,405 fatal work injuries were recorded in the United States, lower than the 4,628 recorded work fatalities in 2012. The numbers could adjust - final 2013 data isn't released until the late spring of 2015. The Bureau of Labor Statistics says that, "Over the last 5 years, net increases to the preliminary count have averaged 165 cases, ranging from a low of 84 in 2011 to a high of 245 in 2012."
September 17, 2014
Cavalcade of Risk #217 is live, covering such wide-ranging topics from the Audacity of Dope to the state of the residual property market. Rebecca Shafer hosts at the WC Roundup blog - check it out!
September 15, 2014
Over the years, we've devoted a few dozen posts to the issue of FedEx and its drivers. Here's the issue in a nutshell: FedEx thinks its Ground drivers are independent contractors and the drivers generally disagree.
For the eleven years we've been blogging, this issue has been wending its way through state courts, with a win for the company here, a win for the drivers there. On August 27, FedEx suffered a massive one-two punch at hands of the Ninth U.S. Circuit Court of Appeals in San Francisco, who overturned a lower court's decision in Alexander v. FedEx, ruling that 2,300 drivers were indeed employees. Within a few days, the same court ruled that some 360 Oregon drivers were also employees (Slayman v. FedEx.) In making the ruling, the Court found that when the rubber hit the road, the lower court had overstated the entrepreneurial opportunities factor that benefited the so-called independent contractors. It apparenly wasn't enough of a benefit to sway the court.
To paraphrase our illustrious VP, "...this is a big effing deal."
Contractors and small business are being chased down aggressively by state authorities (and rightly so, we think) to make them shoulder responsibility for employment obligations that other businesses carry. But in the land of the giant employers, many use independent contractor and subcontractor mechanisms to shield themselves from workers comp, Social Security, unemployment insurance, the provision of benefits like healthcare and paid vacation, and the obligation to protect workers in a variety of ways.
For your further edification on this important issue, we defer to business and legal experts. We've gathered opinions and analyses from a variety of sources and offer excerpts.
What court rulings against FedEx mean for workers
"It seems likely FedEx will want to appeal the 9th Circuit decisions to the Supreme Court. But it may face some difficulty in doing so, because -- even though made at the federal level -- the two decisions concern matters of state law rather than federal. Their reach is similarly limited; they apply only to FedEx drivers in California and Oregon. But there's a decent chance the 9th Circuit's decisions will influence future decisions in other jurisdictions. At the very least, they are shining more light on corporations' maddening reluctance to take responsibility for the folks who represent them most directly to the public."
FedEx Latest Company Slammed Over 'Independent' Employees
"What the 9th Circuit did was to apply the more traditional measure. Judge Stephen Trott, a Reagan appointee in a concurring opinion, quoted Abraham Lincoln: "'If you call a dog's tail a leg, how many legs does a dog have?' His answer was, 'Four. Calling a dog's tail a leg does not make it a leg.'" Trott also admonished FedEx for presenting some information out of context and told the company's lawyers that they "would be well advised not to elide the truth, the whole truth, and nothing but the truth."
"FedEx is largely credited with having pioneered the "independent contractor" work model in the logistics industry. Under this system, workers function as self-employed drivers with their own routes, covering the costs of their own trucks, gasoline, uniforms and so forth.
While corporations claim the contractor system gives drivers flexibility and strong incentives as "small businesses," critics say it's simply a way to shift the costs of employment onto workers and avoid payroll taxes and workers'-compensation costs.
The basic question in lawsuits involving the independent contractor model is whether or not a company like FedEx still maintains control over the work itself. In Wednesday's ruling, the judges asserted that it does."
"The decision will likely upend FedEx's driver business model in part because it makes it more expensive for FedEx to operate its business - an added expense that we can expect it will pass along to us, the consumers. Why more expensive? Because, among other things, FedEx will now have to (i) make the required employer contributions on behalf of these individuals (i.e. to Social Security and unemployment benefit funds); (ii) take out new insurance policies (i.e. for workers' compensation insurance); (iii) offer them health insurance and (possibly) pension benefits along with other benefits like paid vacation; (iv) incur the administrative and operational costs associated with treating these individuals as employees (i.e. additional training and development, compliance, etc.); and (v) potentially pay them back for millions in lost wages. Further, these individuals can now sue FedEx under many of the employment laws that did not previously cover them (i.e. Title VII) - yet another potential expense for FedEx."
Who's the Boss
"It has become harder and harder for workers to tell who their employer is. Companies have engaged in vertical dis-integration as franchised businesses have become increasingly prominent and contracting out of operations by traditional firms has increased. The expanded reach of private equity funds as owners of Main Street companies has also undermined the traditional employment relationship.
In both cases, a complex web of legally distinct entities has been put in place whose aim is to separate a business's actual owners and managers from responsibility for the effects of their decisions on workers."
'Seismic' 9th Cir. rulings nix FedEx claim its drivers aren't employees, could cost company millions
"By retaining independent contractors to perform work instead of employees, companies can potentially save a lot of money that would go toward overtime pay and other benefits such as social security. FedEx also has reportedly required its drivers to pay for their own uniforms and trucks. But if companies are determined to have misclassified employees as independent contractors, they can wind up paying not only the original employee costs they avoided but substantial penalties, as an earlier ABAJournal.com post about the FedEx litigation details."
Is this the end of the independent contractor as we know it?
"This case also confirms that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors. This distinction is important, because, unlike contractors, employee are subject to a host of employment laws, including the anti-discrimination laws, workers' comp laws, and wage-and-hour (minimum wage and overtime) laws.
While this case only covers employers governed by California law in the 9th Circuit, I would expect the filing of copycat lawsuits under the laws of different states in different courts. In other words, this case is not the final word on this issue. Thus, to answer the specific question I posed in the title to this post, while this case does not necessarily spell the end of the independent contractor, it very well could be the beginning of trend of cases leading down this path."
FedEx Refuses to Treat Your Friendly Delivery Guy Like a Real Employee And an important new court ruling could change that
"This is a classic example of employee misclassification, but such employer malfeasance is not limited to FedEx. It's a nationwide problem that shifts significant costs to workers, eliminates employment-related protections, deprives the government of billions of dollars in revenue and prevents workers from unionizing. On Wednesday, labor earned a big victory when the Ninth Circuit Court of Appeals ruled in two cases that the shipping company misclassified the employment status of 2,300 California drivers and 363 Oregon drivers. It's an important, if limited, step towards rectifying this widespread problem."
Court rejects FedEx Ground's driver business model
"Ross said that FedEx now requires its contractors based in California to hire a secondary workforce of FedEx drivers, who do the same work as the plaintiffs under the same contract. She said the Alexander decision "calls into question FedEx's strategy of making plaintiffs the middle men" between the secondary workforce of drivers and FedEx. "We have heard of many instances where the secondary drivers are earning such low wages that they have to rely on public assistance to make ends meet."
September 11, 2014
David Williams posts the first issue of the fall season at Health Business Blog - Health Wonk Review: September 11, 2014. Topics include Obamacare, Medicare, performance measurement, power plants and more...
And speaking of 9/11...
Our condolences to all who lost loved ones on 9-11 -- our thoughts particularly go to the many heroic 9-11 first responders - both those who lost their lives, and those who continue to suffer today with the mental and physical after-effects.
Our thoughts also gravitate to the many in our industry who lost their lives while doing their jobs. Marsh lost 293 colleagues and 63 consultants and Aon lost 176 colleagues. Astounding still today. Hug a colleague in their memory. Be kind to those around you.
Robert Hartwig and Claire Wilkinson of the Insurance Information Institute have produced some reports on the impact of 9/11 on the insurance industry - as well as the documented need for renewal of a terrorism insurance backstop.
September 11, 2014
If you're looking for something about workers' compensation, might as well stop reading now, because this isn't about workers' compensation, although we know that 9/11 produced a slew of claims .
No, this is a brief post to share my 9/11 tribute song recorded on 28 September 2011 at one of the three greatest small concert halls in American - Mechanics Hall in Worcester, MA. Peter Clemnte is on guitar. As the song says:
We must be strong
For friends who've gone.
I hope the song brings comfort on this sad anniversary.
September 10, 2014
Trust for America's Health and The Robert Wood Johnson Foundation recently released The State of Obesity: Better Policies for a Healthier America, a 136 page report that can be downloaded in PDF.
This is the most recent in a series of updates on the topic of obesity, and while the report is guardedly more optimistic about the nation's obesity rate -- "there is increasing evidence that obesity rates are stabilizing for adults and children" -- the overall situation is still plenty bleak. Here are some highlights:
- Adult obesity rates rose in Alaska, Delaware, Idaho, New Jersey, Tennessee and Wyoming
- More than a third of adults (34.9 percent) were obese as of 2011 to 2012.
- More than two-thirds of adults were overweight or obese (68.5 percent).
- Over the past 35 years, obesity rates have more than doubled. From 2009 to 2010 to 2011 to 2012, rates remained the same. The average American is more than 24 pounds heavier today than in 1960.
- Two states have adult obesity rates above 35 percent (Mississippi and West Virginia), 20 states have rates at or above 30 percent, 42 states have rates above 25 percent and every state is above 20 percent. In 1980, no state was above 15 percent; in 1991, no state was above 20 percent; in 2000, no state was above 25 percent; and, in 2007, only Mississippi was above 30 percent.
- The 10 states with the highest rates of type 2 diabetes are all in the South. Alabama had the highest rate at 13.8 percent.
Related medical conditions
The report also discusses obesity's link with other serious, life-limiting illnesses. Here's a sampling:
- Diabetes rates have nearly doubled in the past 20 years -- from 5.5 percent in 1988 to 1994 to 9.3 percent in 2005 to 2010.
- More than 25 million American adults have diabetes and another 79 million have prediabetes. The CDC projects that one-in-three adults could have diabetes by 2050.
- One in four Americans has some form of cardiovascular disease.
- One in three adults has high blood pressure, a leading cause of stroke.
- Approximately 30 percent of cases of hypertension may be attributable to obesity, and the figure may be as high as 60 percent in men under age 45.
- People who are overweight are more likely to have high blood pressure, high levels of blood fats and high LDL (bad cholesterol), which are all risk factors for heart disease and stroke.
The report contains significant detail about adult demographics and a special focus on childhood obesity rates, recommendations and policy initiatives.
Obesity and the Work Comp Nexus
How does obesity affect workers' comp? Here are a variety of studies, reports and news related to workers compensation and obesity - from our own pages and from other sources. .
September 5, 2014
Tim Dodge makes his CavRiskhosting debut with an impressive collection of risky posts: Cavalcade of Risk #216: Workers' Comp, Cat Losses, Kayaks, and Did a Doctor Prescribe That Joint?
As always, there's sure to be something that strikes your fancy, so do check it out.