Posts Tagged ‘New Jersey’

Workers’ Compensation’s Costly Psychosocial Issues (2)

Wednesday, February 1st, 2017

First, a review.

Yesterday, we described the challenges confronting claims adjusters and injured workers when psychosocial issues are present in a workers’ compensation claim. These issues impede recovery and exacerbate costs. We confidently picked up our saw and walked out on the proverbial limb to suggest this thesis:

Our nation’s current system for treating injured workers with mental health issues is uncoordinated, overly fragmented, highly wasteful and does not focus enough on speedy return to work. There is a critical need for a more systemic approach as well as an integrated coterie of clinicians and practitioners, trained in workers’ compensation, whose goals are to provide compassionate treatment with a steady return to work trajectory. 

Finally, we listed the serious factors that make finding a solution to this looming crisis tremendously difficult.

But early in 2015 in New Jersey two Neuropsychologists, Mary Ann Kezmarsky and Richard Filippone, had an idea. Over a couple of decades, they’d treated a number of workers’ compensation claimants and had been appalled by what appeared to be the lack of a coherent system to deal with the issues they saw in their patients. They weren’t exactly sure what to do about it – they didn’t know much about workers’ compensation – but they saw it as a business opportunity.

They contacted me, and over the next year we created a company, Work Comp Psych Net (WCPN), and built a systemically organized and integrated specialty network of workers’ compensation clinicians and therapists to treat injured workers in New Jersey who might have behavioral health issues delaying recovery. Here’s how we did it:

  1. Over the last half of 2015, we recruited, credentialled and vetted 44 mental health professionals covering 55 offices throughout New Jersey’s 21 counties. Providers within WCPN’s network include psychologists and neuropsychologists, as well as cognitive rehabilitation and biofeedback specialists. All of the clinicians and therapists gave up a weekend to attend Lynch Ryan training in workers’ compensation. They learned about the New Jersey law, as well as the way workers’ compensation works – how a premium is constructed and  what indemnity and medical benefits are. They now understand experience modification, maximum medical improvement and the law regarding injuries “arising out of and in the course of employment.” Further, they have been educated regarding early return to work and have agreed to work with employers, adjusters and nurses to effectuate modified duty wherever possible.
  2. We built (with difficulty, because it wasn’t easy) the nation’s first electronic Claimant Intake & Referral Portal that allows claims adjusters, nurse case managers and attorneys to refer a claimant instantly. The paperless portal’s referral system is geographically and specialty based, meaning that referrers are assured that claimants will not have to travel far to reach their assigned clinician. In the past, referrals and appointments took weeks, even months, to arrange, but they can now be finalized within minutes. In Beta Testing from May through October, 2016, the longest time from referral to Provider scheduled appointment was 27 minutes.
  3. We built (with even more difficulty) the nation’s first mental health Electronic Health Record system for workers’ compensation. The EHR is set up as a roadmap for all WCPN clinicians to follow, meaning reports have a consistently structured form. The EHR is paperless, HIPPA-compliant and cloud-based. Initial Psychological Evaluations and subsequent treatment reports reach claims adjusters in pdf form within five business days.
  4. Our clinicians are all highly qualified and experienced; they know how to treat workers with mental health issues delaying recovery. But to make the system work we needed to understand the needs of adjusters and defense attorneys who would be referring the injured workers the clinicians would treat. Consequently, we conferred with experienced adjusters and defense attorneys. After doing so we decided that every referral would begin with a thorough Initial Psychological Evaluation (IPE), which, although not technically an IME, would be done at the IME level (we priced the IPE at $450, and, since nobody’s complained, we now think that’s too low, but we’re sticking with it). If the Initial Psychological Evaluation determines the presence of one or more mental health issues which are deemed to be work-related and requiring treatment, the treatment prescribed is initially authorized for up to 12 sessions unless medically justified, extraordinary circumstances are present. Additional treatment requires the approval of the referring party.

We officially launched in November, 2016. Over the intervening three months  we’ve learned two things (among a lot of others): First, our solution works extremely well; referrers have been highly receptive and pleased. They appreciate the ease of referral and the EHR reports.  They appreciate even more the fact that our clinicians and therapists have been trained in workers’ compensation. We’ve signed contracts with insurers and TPAs. Second, this could be a national solution.

So, our solution is working in New Jersey, but every state workers’ compensation system is grappling with how to deal with psychosocial issues that frequently hobble recovery. This may be work comp’s final frontier. Time will tell whether our template and software could help others. Regardless, we will continue to improve our solution at Work Comp Psych Net, as well as report on our outcomes.

It’s taken us nearly two years to get to this point, so if any reader wants to take this issue on in another state, we’d be happy to offer the wisdom (and sometimes folly) of our experience.

 

 

John Geaney: Setting A High Bar For New Jersey’s Bar

Thursday, April 14th, 2016

John Geaney’s been a friend for years. And why not? He’s a Holy Cross and Boston College Law School grad, as well as a Red Sox fan. So, in a way we’re Boston Brothers.

But that’s not important. What is important is that John Geaney is recognized as the pre-eminent New Jersey attorney focusing on workers’ compensation. He heads the workers’ compensation practice for Capehart Scatchard, one of New Jersey’s foremost law firms. There are nearly 40 attorneys in John’s practice department.

John is the author of “Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters, and Employers,” and updates it annually. If you have anything to do with workers’ compensation in New Jersey, you need to have John Geaney’s Manual.

In addition to representing a great number of New Jersey’s premier employers, writing a Lexis Nexis Top Blog (a really good one!) and creating the aforementioned Manual, John, teaming with Millennium Seminars, puts on three seminars each year for New Jersey professionals specializing in workers’ compensation.

I’m writing this from today’s seminar in Mount Laurel. I’m attending with Richard Filippone and Mary Ann Kezmarsky, founders of Work Comp Psych Net, a seminar exhibitor and a Lynch Ryan client.

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There more than 100 New Jersey workers’ comp pros here, and all of them are highly engaged. Moreover, Geaney’s seminars are always fully subscribed. Attendees keep coming back, and that doesn’t happen by chance. Geaney is charismatic on the podium. The presenters are interesting, articulate and well-regarded. It’s considered a high compliment to be invited to present here.

Around the nation, most states have one, perhaps two, people who set the professional standard for everyone else in their state. In New Jersey, that person is John Geaney.

 

WCRI, Inside Baseball in California, Patient Records in New Jersey and Who’s Managing What Care

Thursday, February 26th, 2015

The WCRI Annual Issues and Research Conference gets underway a week from today in Boston. The conference and Lynch Ryan are each in their 31st year, but, truth to tell, the first WCRI conference could have been held in a telephone booth (not The Tardis).

We wrote about this conference a couple of weeks ago, so no need to cover old ground. However, it is worthwhile to mention how valuable the conference has become. It’s a serious event attended by serious professionals. Sorry- not much partying. Las Vegas it aint. And this year its style is even more cramped what with more than eight feet of snow hanging around. But the walkway around the Charles is cleared, so you can bring your running shoes. I, on the other hand, coffee in hand, will be happy to wave goodbye to you as you head out the hotel door for that morning run. The older I get the more I subscribe to Winston Churhill’s view of exercise: he said he got enough of it carrying the coffins of his athletic friends.

Unfortunately, we just learned that the WCRI has “reluctantly” decided to cancel its Opt Out session, because “at least one of the presenters felt that the time allotted for the session was too short for the objectives to be well-met.” This is truly unfortunate given the momentum the Opt Out movement is gaining nationally. You would have thought the presenters could have raised this issue a lot earlier. Nonetheless, I’m sure there will be much opt out discussion among attendees outside of the sessions. WCRI is offering to refund registration money for those who choose to “opt out” of Boston due to the cancellation. Regardless, I hope to see you in Boston.

Inside Baseball In California
When looking for something a bit out of the ordinary, California workers’ comp never disappoints. Work Comp Central’s Greg Jones reports this morning that:

A Southern California applicants’ law firm claims in court filings that Knox Ricksen “hacked” the computer network of a vendor it uses to sign up new clients to gain access to an estimated 2,000 confidential and privileged documents.

In the suit, the plainiffs’ law firm, Reyes & Barsoum, says it has a vendor, HQ Sign-up Services Inc., whose job it is to “sign up” customers for the firm. The suit alleges that the defense law firm Knox Ricksen hacked HQ Sign-up, gaining access to claimant information which HQ Sign-up would forward to lawyers at Reyes & Barsoum. This would give Knox Ricksenan unfair and illegal advantage in the legal proceedings. People, I did not title this Inside Baseball for nothing!

This little dust-up shines a light on the dog-eat-dog adjuducative business that is California workers’ comp. It’s not pretty and it never has been. I wonder what opt out legislation would do for California?

Patient Records In New Jersey
Now we balance the cesspool into which California’s workers’ comp courtroom wars sometimes descend with workers’ comp law as it should be practiced. John Geaney, a man for whom I have great respect, is an executive committee member and shareholder with New Jersey’s Capehart Scatchard. John began publishing a client newsletter in 2001. A few years ago it morphed into a blog, which Lexis Nexus awards as one the nation’s Top 25 workers’ comp blogs. John’s blog should be required reading for all workers’ comp professionals in New Jersey. For that matter, it’s instructive wherever you are.
Today’s blog post concerns the right of injured workers to have access to their medical files. In my experience, there are some claims adjusters that resist this. However, doing so can worsen the situation and alienate the injured worker. Transparency is good for everyone. This blog post is well worth reading.

Who’s Managing What Care
In his Quick Tips blog post of today, Barry Thompson takes no prisoners as he derides what has become of “Managed Care,” which Barry has renamed “Manipulated Cost.” His is a tale told in anger, and he asks, “Where’s the outrage?” Good question. In the early 1990s, I gave a presentation at NCCI’s Annual Issues Conference and titled the presentation Managed Care: Who Manages, Who Cares? ‘Twas ever thus. It seems that the question is still begging for an answer.

New Jersey Courts: Zero Tolerance, Zero Compassion

Friday, February 24th, 2012

You have to feel sorry for Erik Martin. He went to work for Quick Chek Corp in 1999 as an assistant store manager. He was promoted to store manager in the summer of 2000. He was diagnosed with Parkinson’s disease that same year. After informing his supervisor of his diagnosis, she advised him to keep his illness “hush, hush.” Martin complied, and never mentioned his illness to the company’s HR director. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. Despite his formidable physical difficulties – unrelated to work – he returned to work as soon as he was able.
In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations. Later that same month, Martin injured his back at work. He contacted his doctor, who instructed him to take a darvocet that was previously prescribed to Martin’s mother-in-law. Martin visited the doctor the following day, at which time he was prescribed percocet to manage his pain.
Drug Policy
In keeping with company policy, Martin was drug tested two days after the injury. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.
A reasonable person might think that Martin was in compliance with the company policy. He took a pill at the verbal direction of his doctor. Was this a “prescribed” medication? Well, that’s where a problem arises.

The word “prescription” comes from the Latin “praescriptus” compounded from “prae”, before + scribere, to write = to write before. Historically, a prescription was written before the drug was prepared and administered.

It appears that a “verbal prescription” is an oxymoron: if it isn’t in writing, it isn’t a prescription. [NOTE: the court ruling did not even address this issue.]
The HR director testified that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company’s zero-tolerance drug abuse policy. The director also stated that he was not aware of Martin’s Parkinson’s disease until this litigation commenced.Thus Martin’s termination was consistent with company policy. And in the view of the court, the termination was perfectly legal.
The court wrote:

Unquestionably, the company’s drug policy was enforced in a harsh fashion against Martin. The company relied completely on the assessment of the testing company that Martin “failed” the drug test. Quick Chek operates in such a way as to delegate total discretion to interpret the drug test results to the testing company. Once deemed to have failed the drug test, an employee is terminated without exception with no apparent right of appeal. In Vargo v. National Exchange Carriers Assn., Inc., 376 N.J.Super. 364, 383 (App. Div. 2005), we held that a company need not investigate possible legal reasons for a positive drug test before taking action with regard to a prospective employee; nor should such a duty exist with respect to existing employees. NJLAD is not offended by a private company’s lack of compassion in these circumstances.

Note how the court starts with a precedent involving a job applicant and then applies it to a loyal employee of long standing: “nor should such a duty exist with respect to existing employees.” The court may not see any difference between an applicant and a loyal employee, but I do.
No Room for Compassion
The court “is not offended by a private company’s lack of compassion.” Well, I am. Zero tolerance policies back companies into a corner; their rigidity may eliminate the need for discretion, but in doing so, these policies also eliminate many good employees. A little discretion in the hands of good managers is a powerful tool toward building a positive work culture. By contrast, zero tolerance policies may provide an illusion of control over matters that are difficult to control, but they are not an effective way to run a company (or a school, for that matter). Indeed, the policy makes it difficult for the company to fulfill its promise as a great place to work:

Quick Chek is proud to be one of NJ’s Best Places to Work! With 2,600 team members in over 120 stores, we strive to create a positive experience and fun environment where core values are nurtured, hard work is rewarded and leadership is cultivated.

I wonder what Erik Martin thinks of the company’s “core values.” When his illness prevented him from doing his job, he requested and was granted a demotion. When his illness prevented him from working, he took (unpaid) time off and focused on recovery. When he was injured at work, he followed his doctor’s orders and his company’s procedures. Martin’s loyalty and perseverance are admirable qualities, but they did not buy him much in the corporate offices of Quick Chek or the courtrooms of New Jersey.

Health Wonks, drug epidemic, ACA mandate, exploding hog farms & more

Thursday, February 16th, 2012

Health Wonk Review – Jason Shafrin has posted the Health Wonk Review: More than Birth Control Pills edition at Healthcare Economist. And there is indeed much more than birth control in this issue: politics, health care reform, the Affordable Care Act, and a grab bag of other timely topics. Check it out!
CDC calls prescription drug problem “epidemic” – The CDC weighs in on the prescription drug abuse problem, calling it “epidemic” and “the fastest growing drug problem in the United States.” Risk & Insurance offers a concise summary. And on the same theme is a story about how New Jersey has implemented a Prescription Drug Monitoring Program. “In unveiling the program last month, state officials related that one patient obtained more than 2,500 doses of oxycodone and methadone in a four-week period. The patient presented what are now believed to be forged prescriptions to three pharmacies on 14 separate occasions, spread out his visits among the pharmacies, and paid sometimes with cash and sometimes by insurance.”
Affordable Care Act: What if… – What if the Supreme Court overturns the mandate? At Managed Care Matters, Joe Paduda looks at what the repeal of the mandate would mean for workers comp.
Marijuana & impairment Roberto Ceniceros recently discussed the issue of marijuana use and impairment. He cites a recent Louisiana appeals-court ruling that upheld benefits for an injured worker who showed positive in a post-injury test for consumption of marijuana and a prescription drug.
Emerging Risks: Exploding Hog Farms – Hog farmers take note: the Minnesota Daily covers reports of a mysterious foam that has caused Midwest swine barns to unexpectedly explode. The foam can build up to heights of four feet on manure pits. “The foam traps gases like methane and when a spark ignites it causes an explosion. About a half dozen barns in the Midwest have exploded since the foam was discovered in 2009. / In mid-September 2011, a barn in Iowa was added to the growing number of barns taken down by the foam. In the explosion, 1,500 pigs were lost, and one worker was injured.”
Contractors in conflict zones – At Risk Management Monitor, Jared Wade discusses contractor deaths in Afghanistan as reported in a recent New York Times article. He notes that, “In 2011, for the first time, there were more civilian contractors working for U.S. companies that died in Afghanistan than there were U.S. soldiers.” He follows up with excerpts and links to a prior Risk Management story on working in the world’s most dangerous locations
Economy & Insurance – Global financial woes will not derail the economy, according to Robert Hartwig, President and Economist at the Insurance Information Institute, who has been a reliable forecaster and source of information on both the overall economy and the impact on the insurance industry. He sees opportunities for insurers beyond waiting for rate increases. Read more in Chad Hemenway’s story at Propertycasualty360: Hartwig: U.S. Insurers Should Look at ‘New Trajectory of Growth’
Aging & Construction Work – The Center for Construction Research and Training analyzed 100,000 workers comp construction industry claims for the
state of Colorado to understand the relationship between the claimant
age and costs by the causes and natures of injuries and illnesses. Consistent with other aging studies, the report says “Older construction workers filed a small percentage of the total workers’ compensation claims; however, when they did file a claim the associated costs were greater.” Review the key findings: The Role of Age on the Cause, Type, Nature and Cost of Construction Injuries (PDF)
News briefs

Annals of Compensability: Death by Sitting in New Jersey

Tuesday, July 5th, 2011

Work can be a killer when workers are asked to do too much: intense labor in the heat of summer, the stress of heavy repetitive lifting, moving too quickly among common workplace hazards. But can work kill us from doing too little? Can work-required inactivity lead to a compensable claim?
For twenty five years, Cathleen Renner worked as a manager for AT&T. With a heavy workload, she often brought work home and labored at her computer late into the night. In September 2007, facing a tight deadline, she appeared to pull an all-nighter; she sent an email to a colleague around midnight and was seen at her desk at 7 in the morning, at which time she complained about a pain in her leg. She labored on through the morning. Around 11 am, she had trouble breathing. By the time she reached the hospital, she was dead from a pulmonary embolism (which began with that pain in her leg).
The New Jersey workers compensation had to determined if work was the predominant cause of the death.
Risks in Doing Nothing
Back in May of 2006, we blogged the dangers of inactivity. If people sit still for a long time – for example, during air travel – they are at risk for deep vein thrombosis. It appears that Cathleen’s prolonged and unrelieved sitting at her computer caused just such an incident. According to a medical expert, she experienced an “unorganized” blood clot which developed while she was sitting (as opposed to an organized clot, which takes much longer to form). Despite her other risk factors – obesity and the use of birth control pills – the court determined that her death was work related.
The defense argued that Cathleen lived a relatively sedentary life – that her sitting at the computer was no different than her sitting at other times. But her husband countered with the observation that they had school-aged children. Cathleen was always running around, taking the kids to school and appointments, cooking meals, cleaning the house and doing the myriad tasks that virtually all mothers must perform. That’s a pretty compelling argument and it convinced the judges: the Superior Court determined that the prolonged sitting while performing work-related tasks caused her death.
Get Out of that Chair!
Savvy employers will note the risks of prolonged sitting and encourage – require! – employees to get up at least once an hour to move around and stretch. (Policies should cover workers in their home offices, too.) Moving around not only prevents blood clots, it also prevents injuries to the spine. Humans are not meant to sit in one place indefinitely. We are built to move and move we must.
With that being stated, I’m going to stand up and stretch a bit. Unless you are reading this on a treadmill, I recommend that you do the same.

In Search of a Good Cup of Joe

Wednesday, January 20th, 2010

We recently blogged a “to and fro” case involving a meandering motorcycle ride back to work from a conference. The cycle crashed and the employee filed for workers comp. The court in Wyoming determined that the accident took place during a deviation from the direct route home and thus was not compensable. Some readers commented that the employee was following his supervisor’s lead, so the injury should have been compensable. “To and fro” often raises issues in the gray zone. Here’s another gray area: coffee breaks.
Jesse Cooper, master plumber and foreman, needed to consult with someone at the union hall in Winslow Township, New Jersey. His contact was teaching a class, so Jesse decided to take a coffee break. He preferred the coffee at a deli some five miles down the road. On his way to a good cuppa, he was involved in a serious accident, breaking his arm and both legs.
Personal Comfort or Personal Errand?
Cooper’s employer, Bernickel Enterprises, argued that the coffee break was a personal errand. Workers comp judge Bradley Henson determined that a coffee break was part of the working day and that Cooper was under the “coming and going” rule while on his way to a somewhat distant cup of joe*. He found the injuries to be compensable.
Henson describes Winslow Township as a “rural area”, so the options for coffee are somewhat limited. In his summary of the case, New Jersey comp guru John Geaney notes that there were other coffee options closer than the deli; the judge, however, “accepted as credible that petitioner knew the deli had good coffee.”
This ruling certainly stretches the parameters of the “personal comfort” doctrine to its outer limits. One wonders when that hypothetical line between work and personal might actually be crossed: if I have a sudden craving for a Caramel Brulee Latte (not likely, mind you) and the nearest Starbuck’s is 15 miles out of the way, am I still “working” when I head in that direction?
The Driving Hazard
These two cases share one important characteristic: both involve accidents while driving, statistically the most dangerous part of the working day. As risk managers contemplate enhancements to safety programs, they would do well to put safe driving near the top of the list.
* Why do they call it a “cup of Joe”? Check this link for a possible if not entirely plausible answer involving a former Secretary of the Navy.

Cavalcade of Risk and other news

Thursday, October 9th, 2008

Check out Cavalcade of Risk #62 at Wenchypoo – the Wall Street Wipeout Edition!
The financial crisis and workers comp – According to a recent broker survey by Advisen, more than 75% of the respondents were confident or very confident about AIG’s financial security. Meanwhile, some preliminary news is starting to filter out about the effects of the market meltdown on workers comp. The Montana State Fund is down by about $26 million – the first of many such reports we are likely to hear. West Virginia is considering suing Wall St. firms due to losses in investments for public employee pension funds, workers comp, and other benefit programs. The meltdown is global. In Australia, WorkSafe Victoria reports a $600 million drop in the value of its investments.
New Jersey comp reform – Governor Jon Corzine just signed five bills to strengthen and reform New Jersey’s workers compensation system. The measures were taken to in response to an investigative series in the Star-Ledger last spring revealing a series of weaknesses and holes in the system which left injured workers facing lengthy delays for benefits and medial treatment. The new measures expedite hearings involving medical issues; mandate employer proof of workers compensation coverage and increases penalties for employers who fail to have coverage; increase the power of workers comp judges; and broaden public representation on the governing board of the Compensation Rating and Inspection Bureau.
Carrier preference surveyInsurance Journal recent conducted a survey of 1,600+ independent agents which offers a window on agent attitudes to the carriers they work with. Unsurprisingly, pricing is the the leading factor that influences most agents (63%) to select a new market over their preferred market. This is followed by coverage (55%), customer need or request (53%), or underwriting restrictions (51%). When asked why they avoid carriers, agents cited three issues: poor service, muddled carrier organization and erratic underwriting.

Mandatory fun: when recreational activities are compensable

Sunday, March 21st, 2004

Roberto Ceniceros of Business Insurance reports that the New Jersey Supreme Court recently awarded workers compensation benefits to an employee injured in a go-cart accident that occurred after hours. This finding reversed an earlier decision that dismissed the case as extracurricular horseplay.

There are a lot of gray areas when it comes to compensability and recreational activities are among them. Generally, recreational activities would not be compensable. The foundation for determining compensability is “arising out of and in the course of employment. On first blush, an activity like riding a go-cart after work doesn’t sound as though it meets that standard.

But there are certain circumstances when a court may decide that an injury resulting from a recreational activity would indeed be compensable. When an employer requires participation in a recreational activity, for example; or if it can be shown that the employer was deriving significant benefit from the employee’s activity at the point of injury. Sometimes, when the injury occurs on the employer’s premises — even if it stems from an activity that is recreational and voluntary in nature — it may be deemed compensable. There are no black and whites. Laws vary stated by state, as do court interpretations.

Employers should be cautious in the types of recreational activities they mandate, whether the coercion is implied or overt. Sometimes a company’s cultural values can be so strong as to make participation in teams or activities seem anything but voluntary. Most of us have seen companies where the pressure to join an after-hours sports team or some other activity can be quite intense. That could mean trouble in the event of an injury, particularly if that pressure came from a manager or supervisor.