Archive for August, 2011

Health Wonk Review’s Health Policy Heat Wave and assorted work comp news briefs

Thursday, August 4th, 2011

Joe Paduda has posted a steamy Health Policy Heat Wave edition of Health Wonk Review over at Managed Care Matters. He notes that “Far from the summer doldrums, activity related to the debt limit, IPAB, Medicare reform and Health Exchanges is at a late-September pace.” Get in on the action, Joe always hosts a lively and informed edition.
Coming & Going – Roberto Ceniceros discusses the compensability case of a NC public school principal who was shot while driving to work. This is an interesting case because the principal was conducting phone business on a school-issued phone while commuting and he was also paid for travel expenses. He was awarded benefits, but the case is headed for appeals court. Ceniceros notes that injuries that occur during a commute generally are not compensable. He also notes that this might be some of the earliest case law on this issue. And with the brave new world of ubiquitous work enabled by mobile devices, it surely won’t be the last.
Radical change – Peter Rousmaniere talks about the recent Illinois workers’ comp reform and the radical change that the reform signified for workers’ comp, change that he notes has largely gone unnoticed. He discusses two significant issues that surfaced in the reform: the “nuclear option,” which Rousmaniere noted “freaked out almost everyone” – yet despite the dramatic language, an opt-out or non-subscribe program has long existed in Texas. The second issue that he notes is “an easy-to-overlook provision” that allows for union carve outs, which he discusses in greater detail. Peter’s take on all things workers’ comp is always well worth reading.
FL CFO tackles check-cashing fraudWorkCompWire reports that the Florida CFO will be reviewing check cashing services for collusion in workers’ comp fraud, which is said to be diverting more than a billion dollars from Florida’s economy. According to CFO Jeff Atwater, this latest workers’ compensation premium scheme is highly organized and orchestrated by individuals who know the construction and subcontracting industry and are intent on evading payment of workers’ compensation premiums.
MA AG recoups millions in drug overcharges – In the latest of a series of settlements, Rite-Aid will pay $2.1 Million to resolve allegations of prescription drug overcharges. The settlement is the 5th in a series of similar settlements, the result of an investigation by Attorney General Coakley’s office into prescription drug overcharges by pharmacies to public entities under the workers compensation insurance system. Settlements now total $7.9 million. Walgreens recently settled for for $2.8 million. Other pharmacies with settlements include CVS, Shaws Supermarkets, and Stop & Shop. Recouped money will be returned to cities and towns.
OH BWC publishes Facebook fraud page – If you commit workers comp fraud in Ohio, you may find your photo on Facebook. Yesterday, we posted about workers’ comp and social media, so we were interested to see that the Ohio Bureau of Workers Comp has launched a special investigations Facebook page. It will include news on recent investigatory action, a most-wanted section and a link to report fraud. The page can be found at www.facebook.com/ohiobwcfraud
World’s scariest job? – If not the scariest, it certainly is a contender: Chinese Road Workers. For other scary jobs, see our post on the workers on the cruise from Hell and the untethered tower workers. I’ll stick with blogging, thanks.
Quick takes

Social media and workers comp

Wednesday, August 3rd, 2011

Are Facebook, Twitter and other social media postings fair game when conducting a workers comp fraud investigation?
We’ve posted on this topic previously, including a reference to a successful Facebook-related investigation conducted by New York State Insurance Department’s Fraud Bureau: social networking, workers comp & the law. Now, two of the experts that we cited in that post – Professor Gregory Duhl of the William Mitchell College of Law and attorney Jaclyn Millner – have a new article that is worth your attention: Social media and insurance fraud.
In the article, they answer our opening question with a strong affirmative, making a comparison between internet searches of public social networking profiles to the more common fraud investigation tool of video surveillance of property-casualty claimants. In fact, they make the case for why insurance investigators should be spending even more company time on Facebook, suggesting that postings or photos can substantiate some other evidence found in an investigation. While privacy issues are of concern, they state:

A privacy argument is unlikely to prevail in court because a person has no reasonable expectation of privacy in whether he or she has a social networking account or in what is posted in his or her profile. Even if a claimant protects his or her social networking profile information with privacy settings, the information is available to at least some third parties, to whom the claimant gives access (the claimant’s “friends”).

Some courts have gone so far as to say that there is no privacy interest in information stored on the internet because even if information, such as social networking information, is protected with privacy settings, it could be accessed by certain members of the public.

The recent case of Romano v. Steelcase Inc. shows that anything posted on Facebook or any other social networking site, whether the user has privacy settings or not, is likely discoverable.

Social Media & Employment Law
The social media landscape is dynamic and the courts are grappling with many thorny issues. If it isn’t one of the top issues you are tracking in employment law, it needs to be. While fraud investigation is one area of interest, there are many other significant issues: how social media is used in hiring and pre-employment screening; social media policies in and out of the workplace; monitoring employees in the workplace, and more. Here are some good resources to help you keep current with the dynamic intersection of social media and employment law:
Think Before You Click: Strategies for Managing Social Media in the Workplace is a newly released book that we can’t wait to read. The book’s authors and editors are among some of the legal authorities we most frequently turn to on the topic of social media – several are practicing bloggers. We would particularly cite the following two authors, who frequently blog on social media:
**Employment Law Attorney Jon Hyman: Ohio Employer’s Law Blog
**Employment Law Attorney Daniel Schwartz: Connecticut Employment Law Blog
And from the plaintiff perspective, we would recognize attorneys Jon Gelman and Alan S. Pierce who paired up for a podcast on Privacy, Clients and Social Media. Gelman frequently posts about social media on his blog, Workers’ Compensation (which is well worth reading on other topics, too). He also has authored articles on social media, such asFacebook Becomes a Questionable Friend of Workers’ Compensation.

Pennsylvania Death: Work Related, Not Compensable

Monday, August 1st, 2011

David Little worked for B & L Ford in Ashland, Pennsylvania. He suffered a shoulder injury in October 2005. He worked light duty up until January 19, 2006, when the employer received a letter from his attorney stating he was unable to perform any manual labor. The employer advised Little to secure a note from his doctor regarding his ability – or inability – to work. His doctor gave Little a letter stating he was unable to work, but before Little had the opportunity to present the letter to B & L Ford, they sent Little a letter of their own, terminating him.
Little spent a weekend brooding over the termination. He called his wife home from her job on Monday. She found Little at the kitchen table, holding the termination letter. He stood up and then collapsed from a heart attack. Emergency workers had to pry the letter from his hand. Little died later that day at a hospital.
Was this a work-related fatality? Little’s widow filed two workers comp claims, one for Temporary total benefits up until the death, and one for death/survivor benefits.
Small Victory, Big Loss
A workers comp judge awarded temporary total disability benefits up to the date of Little’s death; once Little became “unavailable” for work (i.e., dead), the benefits ceased. On the issue of a work-related fatality, the judge found – and the Commonwealth Court of PA upheld – that the death was not work related, as it neither occurred “in the course and scope of employment” nor did Little’s activities on that fatal day “further the interests” of the employer.
There is no question that the loss of his job was a significant, perhaps predominant, factor in Little’s death. However, personnel actions (discipline, demotions and terminations) are generally excluded from workers comp coverage. The sequence of events that began with his attorney’s letter culminated first in the loss of the job and then in a fatal heart attack.
Given that Little had filed a workers comp claim and the employer apparently fired him because of his injury, the widow might be able to sue for wrongful termination. But the courts have made it clear that aside from a modest indemnity payment for lost time, workers comp will provide the widow no solace and no support for the work-related loss of her husband.