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An Indiana Power Grab Shows Politics At Its Worst

Thursday, July 21st, 2022

Fifty-two-year-old Theodore Edward Rokita, known as Todd, not Ted, is Indiana’s 44th Attorney General.

A dedicated far-right Republican, his political life is a thirsty search for one powerful political office after another. Elected Indiana’s Secretary of State at age 32 in 2002, he was the youngest Secretary of State in America at the time. He went on to capture Indiana’s 4th Congressional District seat in 2011 and served in the U.S. House until 2019.

In 2015, during his time in the House, Indiana created the Healthy Indiana Plan and expanded its Medicaid Program to take advantage of the Affordable Care Act. Rokita’s reaction to this was to say the ACA was “one of the most insidious laws ever created by man.”

He ran against Eric Holcomb for Governor in 2016 to replace Mike Pence, who had resigned to become Donald Trump’s running mate. Holcomb won convincingly, and, as I hope to prove below, Rokita never forgave him for the drubbing.

In 2017, Rokita resigned his House seat and sought the Republican nomination for U.S. Senator. He failed again.

But in 2020, in a political comeback of sorts, Todd, not Ted, Rokita defeated incumbent Curtis Hill for the Republican nomination for Indiana Attorney General, and in November 2020, he won the general election.

If that were all we ever learned of Todd Rokita, we could chalk him up as just another political hack of the Republican persuasion.

But the story doesn’t end there. It begins there. And it begins with a 10-year-old girl from Ohio.

In May 2022, a man from Columbus, Ohio, Gerson Fuentes, 27, allegedly raped that 10-year-old girl not once, but twice, and she became pregnant by him. On 27 June, a child abuse doctor treated her, but could not refer her for an abortion in Ohio, because, following the Supreme Court’s Roe reversal earlier in June, Ohio’s trigger law fired and outlawed abortions after six weeks of insemination. He determined the girl was six weeks and three days pregnant. So, he called a colleague in neighboring Indiana, where abortions were still legal in the first 22 weeks. Dr. Caitlin Bernard, an obstetrician-gynecologist, agreed to help, and the 10-year-old was quickly on her way to Indiana.

On 30 June, Dr. Bernard performed the abortion. The 10-year-old, who will bear the horrid psychological scars of this for the rest of her life, was spared the further horror of giving birth to her rapist’s child.

Among all the bureaucratic red tape government can create, Indiana has created what are called Termination of Pregnancy Reports, TPRs, and these must be completed by physicians who terminate pregnancies in the state. In the case of a pre-teen abortion, the law calls for TPR completion within three days of the abortion. Dr. Bernard completed and submitted her TPR for the 10-year-old within two days, on 2 July, thereby complying with the law.

On the first of July, one day after the abortion and one day before Dr. Bernard submitted her TPR, the Indianapolis Star ran a story about pregnant women from Ohio and Kentucky who were heading to Indiana for abortions because of the restrictive laws in their states. The story began:

On Monday, three days after the Supreme Court issued its groundbreaking decision to overturn Roe v. Wade, Dr. Caitlin Bernard, an Indianapolis obstetrician-gynecologist, took a call from a colleague, a child abuse doctor in Ohio.

Hours after the Supreme Court action, the Buckeye state had outlawed any abortion after six weeks. Now this doctor had a 10-year-old patient in the office who was six weeks and three days pregnant.

Could Bernard help?

The story later said Dr. Bernard had agreed to help. It did not say she had performed the abortion, just that she had agreed to help.

This story caught the nation’s attention, mostly for the wrong reasons. It was ridiculed. The Wall Street Journal called it “fanciful.” Republican Ohio Attorney General Dave Yost was among those who questioned the validity of the story.  Ohio Republican Representative Jim Jordan called the story “another lie” in a now-deleted tweet. Some of Fox’s most high-profile hosts — Tucker Carlson, Jesse Watters, Laura Ingraham — suggested the account of the 10-year-old rape victim was a “hoax” and “politically timed disinformation,” and claimed that the Biden administration was “lying” about the case after the Supreme Court overturned Roe v. Wade.

All this happened between the Indy Star’s story and the arrest—and confession—of Mr. Fuentes, which is when the backtracking happened. Jordan deleted his tweet, the WSJ issued a “correction,” Fox News actually took credit for “justice being served,” and Indiana Attorney General Todd Rokita, with all the empathy of an empty paper cup, saw an opportunity and took the stage.

Was he devastated that a 10-year-old had suffered such a horrific experience? If he was, he never said. What he did say, during a press conference he hurriedly called on the subject, complete with TV, Radio and Print media, was that he would be investigating Dr. Bernard for failing to provide the Termination of Pregnancy Report within the time required by law (She had).

On 13 July, twelve days after the abortion, he wrote a letter to Governor Holcomb, the same Eric Holcomb who had trounced him in the race for Governor, advising, “If  Doctor Bernard has failed to file the required reports on time, she has committed an offense, the consequences of which could include criminal prosecution and licensure repercussions.” Rokita went on to say “key” people on his staff had been trying to get the Indiana Department of Health to forward the TPR for two days, without success. Two days.

Rokita’s letter lectures the Governor, saying, “As state officeholders, we bear an important responsibility to get to the bottom of this matter immediately….” He admonishes the man who beat him in the election of 2016 by saying Holcomb should “direct the state agencies under your purview to produce immediately to my office the requested TPRs…so we can confirm Dr. Bernard’s compliance with the law.”*

Not one drop of the Balm of Gilead does Todd, not Ted, Rokita offer the 10-year-old whose life has been so tragically scarred. Nope. He can’t be bothered. He has other things on his mind. He is 100% focused on scoring whatever rancid political points he can.

No wonder people hate politicians.

 

*On 14 July, one day after Rokita’s letter to the Governor, Indianapolis TV station Fox 59 published the TPR, submitted by Dr. Bernard within two days of the procedure, which it had secured by a Freedom of Information request. Maybe Todd should have tried that.

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Saving Lives—Building A Modern Pharmacy Program Amid A Deadly Epidemic

Thursday, March 22nd, 2018

Dr. Terrence Welsh, Medical Director for the Ohio Bureau of Workers’ Compensation, flew into Boston for WCRI’s 2018 conference to talk about Ohio’s attack on the opioid epidemic. He began with two slides worthy of reproduction here. The first is scary indeed:

 

So, in 2011, the Ohio BWC decided to do something about it. Here are some results through 2017:

So, much has been done, but much remains to be done. One of the many things that might be making a difference is this: Outside the box of the claim, Ohio BWC will pay for 18 months of treatment as long as the injured worker/patient complies with the treatment guidelines. This is innovative, but the Bureau doesn’t have outcome data yet. Dr. Welsh pointed out that, as you can imagine, the program isn’t very popular with opioid-dependent injured workers. The program asks them to give up the opioids they have come to know and love for the rest of their lives. A wickedly difficult thing to do. Regardless, the Ohio BWC should be complimented for the measures it has taken to attack this national horrendoma.

Here is a chart showing the decline in opioid prescriptions for Ohio’s injured workers:

What about the future. There’s a long way to go, but the Bureau  has charted a way forward, although it’s a mighty hard road with a lot of potholes, deep and wide.

The Ohio Bureau is working tremendously hard on this issue. The people in it are dedicated and committed to doing all in their power to rescue the many workers who have fallen into the opioid pungy pit. The emphasis they place on the last bullet of the last slide is critical for winning the battle.

 

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Annals of Aging: Return to Work at 80?

Wednesday, December 26th, 2012

As the New Year looms, the 100 year old workers compensation system continues its awkward foray into the 21st century, it encounters problems beyond its original design: the widespread availability of opioids, increasing sophistication in medical interventions, and an aging workforce. Today we examine a formerly inconceivable conundrum: can an 80 year old man be expected to return to work after an injury?
Kenneth Brunner graduated high school in 1949 and worked steadily all his life: From 1951 through 1993 he ran the family dairy farm with help from his wife, an accountant. Brunner raised crops; used a tractor, plow and other farm machines, kept track of feed and each animal’s output. He took milk samples from each cow and sent them for analysis; after receiving reports, he adjusted feed for each animal to maximize output. He supervised two to three individuals on the farm.
From 1954 through 1984 he supplemented his farm income by driving a school bus – work which, in the view of the Ohio workers comp commission, required the ability to work independently and use judgment.
From 1968 through 2000 Brunner also was employed as an insurance adjuster. He estimated crop loss for an insurance company, a job that required using scales, taking samples and writing reports. In 1990, at age 58, he was certified for insurance sales.
In January 2011, at age 77, he was working in a maintenance job, when he tripped on a drain pipe and fell face first onto pavement. His injuries were severe:bilateral frontal bone fracture; fracture lateral wall right maxilla; fracture bilateral paranasal sinuses; closed fracture bilateral nasal bone; open wound of forehead; abrasion face; closed fracture C2 vertebra.
He received workers comp benefits. A couple of years into his recovery, he filed for permanent total benefits (PTD). Brunner was 80 years out and had had enough of working.
Brunner’s treating doctor concluded that he would never work again:

This claimant has an injury that is permanent and for which there is no curative therapy. This claimant has progressively suffered loss of function and has had to endure progressively more pain. The exam above shows that there is so little functional capacity and that the claimant is so affected by his condition and its required care, that there is no capacity for sustained remunerative employment and that there is no reasonable employer that would ever hire the claimant expecting any work capacity.
Based on the examination above, review of documents, and based on sound medical reasoning I find that the allowed physical conditions, independently and by themselves, render the claimant permanently and totally disabled and unfit for all sustained remunerative employment.

Once a Worker, Always a Worker?
The Ohio workers comp commission reviewed Brunner’s claim for PTD benefits. They took into account his age, as well as his resume in determining that he was still capable of working. While most of his living involved physical labor, throughout his working life Brunner had displayed skills that at least theoretically were transferable to sedentary work. As a result, they rejected Brunner’s request for PTD benefits. The commission did not address the likelihood of anyone offering Brunner a sedentary job.
An appeals court upheld the denial of the claim, finding that the commission did not abuse its discretion: (1) in weighing Brunner’s age in assessing the non-medical factors; and (2) in determining that Brunner has some transferable skills.
It appears that Brunner’s longevity worked against him. He labored well into his 70s and displayed unusual fortitude in recovery from serious injuries. Because the premise of PTD payments is protection for disabled workers who are available for work but no longer able to do it, Brunner finds himself ineligible for benefits. In a supreme irony, his ability to work as an older worker precluded the conclusion that he was unable – even at 80 – to continue working.
Brunner’s dilemma is by no means unique. As the workforce ages, as more and more workers continue labor late into their seventies and even 80s, a paradox emerges: the point where one is too old to work recedes into the haze of the future, leaving injured older workers in a gray zone where their permanent injuries may or may not be compensable and where their (theoretical) ability to work mitigates against their being paid not to work.
In the months and years ahead we will see more and more litigation involving the claims of “older” workers with ages far beyond what was contemplated in the original workers comp system. State by state, the system will have to respond, becoming the focal point of economic, social and even psychological forces that are far larger than workers, comp stakeholders and state policy makers combined. This is an evolving narrative of surpassing interest. Stay tuned.

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Health Wonkery, FL money trail, work violence report & more

Thursday, February 2nd, 2012

Louise Norris jumps into the political fray with this week’s Health Wonk Review – Campaign 2012 Edition at Colorado Health Insurance Insider. It’s a great edition with some solid submissions, and we are smitten by the great historic voting photos that Louise used to punctuate the posts. Check it out.
Other noteworthy news
Follow the money – In the continuing saga of Florida’s physician-dispensed workers comp drugs and the associated costly price tag for employers, Joe Paduda looks at the behind-the-scenes opposition muscle aimed at any legislative attempts to put limits on this practice. He cites a recent research report, which tracked more than $3 million in political donations to “one Mirimar address, dozens of companies.” The Florida Independent news story goes on to say, “In suburban Tampa, a single-story building at 610 South Blvd. is home to countless political committees in Florida and all over the country, and is known as a veritable political action committee mill. A similar story lies in Miramar, where two doctors — Paul Zimmerman and Gerald Glass — run dozens of companies that, altogether, have funneled more than $3 million into state political campaigns and committees in recent years.” Joe notes, “$3.2 million total shows clearly just how important Florida is to dispensing companies and their affiliates.”
Violence in the Workplace – “Workplace homicides ‘Are not crimes of passion committed by disgruntled coworkers and spouses, but rather result from robberies.’ And the majority of workplace assaults are committed by healthcare patients.” These are a few top line findings in the NCCI research report on Violence in the Workplace. Although homicides are trending down, they comprise 11% of workplace fatalities. You can download a copy of the complete report, which is part of NCCI’s ongoing research into the topic of work violence.
New blog of note – The folks at PRIUM, a workers’ compensation utilization management company, have recently launched Evidence Based, a blog that will focus on our favorite topic – workers comp – with particular emphasis on the over-utilization of prescription drugs in the treatment of injured workers. Recent posts have dealt with state efforts to control narcotics. See recent posts on Arizona: The Simple Path to Controlling Narcotics in Non-Monopolistic States and Ohio’s New Rules: A Good Start (with a Potential Gap).
Getting social – Pro tip for social media users: If you are going to file a workers’ comp claim, you should think twice about posting party pics on Facebook – judges may take them into consideration when evaluating the merit of your claim.
The Feds & Fraud – In Government Executive, Kellie Lunney explores the reasons why the federal workers’ comp program remains vulnerable to fraud. According to a study by the Government Accountability Office, limited access to data is a key culprit. “Specifically, we found that limited access to necessary data is potentially reducing agencies’ ability to effectively monitor claims and wage-loss information,” the report stated. In addition, agencies’ overreliance on self-reported data from claimants, the frequent use of physicians not employed or selected by the government, and the expense involved in conducting investigations and prosecutions have stymied efforts to stamp out fraud. GAO noted that investigations are the “most costly and least effective” way to reduce fraud, but the ability to prosecute those who cheat the system is a valuable deterrent.
OSHA Posting Compliance – Employers, did you remember to post OSHA Injury & Illness Reports on Feb 1? If not, make sure that you do. Rules require that employers post “…the official summary of all injuries and illnesses occurring in the previous year. The information must be compiled on the OSHA Form 300A or an equivalent and posted in a conspicuous place or places where notices to employees are customarily posted. The information must remain up through April 30, 2012.” For more information and to learn if this requirement applies to your organization, check out OSHA’s Recordkeeping page.
Quick takes

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Overdosing on Drugs: Compensable in Tennessee, Denied in Ohio

Monday, December 12th, 2011

Today we examine two court cases that trouble the dreams of claims adjusters: workers with severe injuries whose use of pain medication leads to their deaths. In one case, the accidental overdose is deemed compensable; in the other, the claim is denied. The devil, of course, is in the details.
Compensable Death In Tennessee
In November 2008, Charles Kilburn was severely injured in an auto accident while in the course and scope of employment. Fractures to his back and neck resulted in permanent total disability. Following surgeries, he still experienced severe pain. A pain specialist prescribed oxycodone. Fourteen months after the accident, Kilburn died of an accidental overdose. His widow filed for death benefits.
Kilburn’s employer believed that the death was the result of negligence, which would break the chain of causality with the original injury. Kilburn had ignored his doctor’s cautions to limit his intake of oxycontin to a specific maximum dose. The Supreme Court of Tennessee determined that the severe pain experienced by Kilburn might result in diminished faculties, which in turn might lead to taking more medicine than was prescribed. In their view, the chain of causality remained intact at Kilburn’s death and thus his widow was entitled to benefits.
Denial in Ohio
In Parker v Honda of America, the initial circumstances are similar, but the apparent “diminished faculties” lead to a very different result. John Parker suffered a severe back injury at work in 1988. He was prescribed OxyContin in March 1999. He eventually became addicted to the drug, along with cocaine, percocet and heroin. In March of 2006 he was found dead, a syringe in his arm, a spoon with a lethal dose of melted OxyContin at his side. In this case, the Ohio Court of Appeals found that his melting and injecting the drug, combined with his documented abuse of street drugs, broke the chain of causation linking the death to the workplace injury.
The court rejected his widow’s argument that the drug abuse was the result of a “severe disturbance of mind” and thus unintentional. It’s worth noting that if Parker had deliberately overdosed as an explicit act of suicide, the death may have been deemed compensable. But because the overdose was an acccident, workers comp benefits were denied.
The Big (and Not-So-Pretty) Picture
Pain is a constant factor in work-related injuries. The control of pain is a complex and widely misunderstood aspect of claims management. Because we live in a culture that relies heavily on powerful medications to control pain, and because the prescribing of these powerful drugs is neither well managed nor well monitored, we will see more and more cases of drug overdoses wending their way through the workers comp system. Some cases will be compensable, others will not. One thing is certain: the challenges of managing these situations will continue to haunt key players in the comp system: the doctors who prescribe the drugs, the adjusters who authorize bill payment, the families who suffer the consequences of loved ones in severe discomfort, and above all, the injured workers, whose every waking moment is compromised and consumed by a pain that just won’t go away.

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Risk roundup & other news briefs

Thursday, October 20th, 2011

Van R. Mayhall of Insurance Regulatory Law makes his debut as host of Cavalcade of Risk with his “Meet the Experts” edition. Mayhall is an expert himself – an attorney who practices in the areas of Business & Corporate Law and Insurance Regulatory Law. We welcome his participation!
Workers Comp Conference – Nancy Grover offers a sneak peek at highlights of the National Workers’ Compensation and Disability Conference & Expo which is on the docket for November 9 and 10 in Las Vegas. You can follow more about upcoming conference events on LinkedIn’s National Workers’ Compensation and Disability Conference & Expo Group.
Maximizing wellness program ROI – According to a post by Preston Diamond in Risk Management Monitor, “On average, employers can see a 30% reduction in Workers’ Compensation and disability claim costs, according to a review of 42 published studies involving the economic returns of wellness programs. Moreover, wellness programs will reduce the costs of absences that, according to the 2010 Kronos/Mercer Survey on the Total Financial Impact of Employee Absences, add up to 8.7% of payroll costs, more than half the cost of health care.” But experts caution that all wellness programs are not equal so employers need to implement with care. See 5 Steps Companies Should Take Before Launching a Wellness Program.
Performance Standards & Disabilities – Employment law attorney Daniel Schwartz posts an FAQ on Applying Performance Standards to Employees with Disabilities. He notes that although the ADA affirms an employer’s right to define jobs and to evaluate employees according to consistently applied standards governing performance and conduct, it’s a case where the devil is in the details. But he links to some lesser-known EEOC guidance on the matter that helps to address some common questions.
High costs of excessive alcohol consumption – According to a new study on the costs of excessive drinking by the Centers for Disease Control and Prevention, the cost of excessive alcohol consumption in the United States in 2006 reached $223.5 billion, which translates into about $1.90 per drink or $746 per person. Researchers also pointed out that 72% or the total costs could be attributed to losses in workplace productivity.
Is Ohio drinking the tea? – Looking at some ballot issues in Ohio, Roberto Ceniceros asks if a tea party initiative could end workers’ comp. He cites a Toledo Blade editorial which argues that although the intent of the measure is to thwart the health-care reform law, it may open the door to some unintended consequences.
A picture is worth a thousand words – The Geography of a Recession is an animated view of U.S. unemployment from 2007 to 2011. Hat tip to Workplace Prof Blog for the pointer.
Lift Gates – Tony Jones of the MEMIC Safety Blog offers a good overview on safety considerations related to lift gates, including equipment considerations, pre-operations, operations, and special considerations.
News briefs

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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 fraud – WorkCompWire 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.
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Pharma in Parma

Tuesday, July 12th, 2011

Dr. Jean Zannoni, 77, runs a family practice in Parma, Ohio. It would be a mistake to assume that by specializing in families, she is not interested in treating injured workers. She treats them all right – to pill after pill after pill. She was recently sentenced to two years probation and ordered to pay more than $7,500 in fines and restitution after pleading guilty to theft, attempted workers’ compensation fraud and telecommunications fraud.
According to authorities, two Ohio Bureau of Workers Compensation (BWC) undercover agents were provided narcotic medications without proper medical examinations and BWC was billed improperly for the office visit.
Dr. Zannoni instructed her staff (in writing!) to bill all injured workers under the same code and charge BWC $75, regardless of the circumstances of the visit. She also manipulated “pain” ratings to ensure that patients qualified for narcotics. And she continued to prescribe narcotics to patients who were known doctor shoppers, even after receiving warnings from pharmacies, parents, spouses, social service agencies and police departments. Some family, some practice.
A Microcosm
In the scheme of things, Dr. Zannoni is a bit player. But when you try to figure out how narcotics became such a major cost driver in workers comp, you have to take into account doctors like Zannoni, who parlay a little pain into big profits.
Given the scale of her crimes – she overbilled WBC by $65,000 – the penalties in this case (small fine plus probation) seem a bit modest. On the other hand, the (Feel)Good doctor, at 77, is probably nearing the end of her practice, which may well have played into the decision to let her off relatively lightly.
Ironically, if you Google her name, Zannoni’s patient ratings are uniformly high (pun intended). One anonymous patient even commented on an article describing her conviction as follows:

This is one of the sweetest most nieve (sic) people on ths planet. I know her personally and she has no idea what goes on. All she knows is how to do is practice medicine and nothing about finances at all. God bless her and I hope everything works out for her sake.

We’ll let that stand as written. And one thing is certain: those seeking pills in Parma may not be able to count on Dr. Zannoni any longer, but surely they will find other sources to make their pain go away, to get a little buzzed, and, who knows, make a little money on the side.

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Retaliation in Ohio: Fire in Haste, Repent at Leisure

Monday, June 13th, 2011

DeWayne Sutton worked for Tomco Machining in Dayton, Ohio. When he hurt his back while dismantling some equipment, he followed “best practices” and reported the injury immediately to company owner Jim Tomasiak. The boss pulled a “Trump” – deviating 180 degrees from “best practices” by firing Sutton immediately. No reason was given for the termination. As you would expect, Sutton was able to collect comp benefits (termination is no bar to eligibility), but could he also sue for wrongful termination? In other words, was the termination retaliation for reporting the claim?
Under the Ohio statute, employers are prohibited from firing, demoting or taking punitive action against an employee who files a workers comp claim. The question at issue is one of timing: the claim had been reported to the employer, but not yet filed with the insurer. So did Tomasiak violate the law by firing Sutton in the interval between the injury and the report to the insurer?
Begging to Differ
In a sharply divided opinion (4-3), the Supreme Court of Ohio found in Sutton’s favor, sending the case back to the lower court for reconsideration. Chief Justice Maureen O’Connor, writing for the majority, notes:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits.
The alternative interpretation – that the legislature intentionally left the gap – is at odds with the basic purpose of the anti-retaliation provision, which is “to enable employees to freely exercise their rights without fear of retribution from their employers.”

The court minority noted that Sutton was able to collect comp benefits – kind of “no harm, no foul.” Then, as Justice Terrence O’Donnell notes:

The majority has today expanded the public policy behind the provisions of (state law) to apply to those persons discharged before filing, instituting or pursuing a workers’ compensation claim. This allowance is a legislative prerogative, and in my view, we should follow the law as written and defer to the General Assembly, instead of stretching the extent of protection to fit situations not addressed by the statute.

This is familiar territory in the world of law: liberal interpretation (the majority) versus strict construction (the minority). One vote determined the outcome.
The Biggest Loser
Business owner Tomasiak comes away with a double whammy: he is liable for the comp claim through the experience rating process; having fired Sutton, he is unable to lower the cost of the claim by bringing Sutton back to work on modified duty. Then he faces a wrongful termination lawsuit, which he is probably going to lose. The timing of his action, along with the absence of any stated rationale, reak of retaliation.
Tomasiak’s impulsive response to Sutton’s injury violated Rule Number One for employers: if employees are not working out, fire them before they get hurt. Once they are injured, comp laws pretty much assume that any firing would be retaliation. For Tomasiak, just trying to run his machine shop in Dayton, Ohio, this is a tough – and expensive – lesson in best practices.

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Health Wonk Review, Valentine’s week edition, and other news of note

Thursday, February 17th, 2011

When is healthcare like a box of chocolates? Find out over at Colorado Long Term Care Insider, where Louise & Jay Norris host an excellent Valentine’s Week Edition of Health Wonk Review.
Other news of note:
Tasers & cop claims – Roberto Ceniceros of Comp Time has an interesting post on how taser use by police is reducing injury rates and comp claims because it provides a low-impact way to subdue suspects. But tasers are also used on cops-in-training, sometimes resulting in serious injuries.
The straight dope – Joe Paduda has a do-not-miss post on narcotic opioids in workers comp and Cephalon’s role, in which he discusses how drugs like Fentora & Actiq, which are FDA approved only for cancer patients, are being promoted to workers comp patients. (One court ruling stated, “data suggested that more than 80% of patients using Actiq did not have cancer,” and “oncologists accounted for only 1% of Actiq prescriptions filled at retail pharmacies in the U.S.”) Cost is a huge issue, but Joe points out that it is not all about the money: Actiq has been linked to dozens of deaths from overdose.
Medical marijuana – Last week, Michigan court rulings dealt a double blow to medical marijuana. One of the Michigan rulings upheld the firing of a Walmart employee who had been proscribed the drug to control symptoms of his brain cancer, a case we posted about last year: Walmart: Shopping for Souls in Aisle Three. (Also see our recent post: Medical Marijuana in the Workplace: Dude, Lock Me Out!.)
Insurer market share – Cyril Tuohy of Risk & Insurance offers a short journey through the latest insurance industry statistics, including some great stats about market share: This Just in: Known and Lesser Known Facts About the Industry
Not something you see every day – CompNewsNetwork informs us that the Ohio Bureau of Workers’ Compensation has recently snagged a record $830,000 in restitution from a prior fraud conviction. The case was truly egregious – an anesthesiologist who bilked the system for $60 million in fraudulent claims – while contributing to at least two deaths in the process. Dr. Jorge Martinez was sentenced to life in prison for “the first known conviction involving a criminal charge of health care fraud resulting in death after the overdose of two patients seeking treatment for work related injuries.”
Illegal immigrant update – Peter Rousmaniere’s Working Immigrants blog is your in-the-know source for tracking the latest issues and stats on the topic. Via the Pew Hispanic Center, he informs us that the 2010 illegal population in 2010 remains about the same as in 2009: about 11.2 million, of which 8 million are in the workforce, and 58% of which are Mexicans. See more detail: Estimate of illegal immigrant population in 2010.
Good WC bookmark – We are adding WorkCompWire as a bookmark in our sidebar and you should keep it handy too. It’s a good source of news and opinion – check it out!
Savings on complex care – Yvonne Guilbert points out that overlooking simple facts can add significant costs to a claim very quickly. She asks carriers what they are missing on complex claims that might be costing them money.
Market pulse – At PropertyCasualty360, Caroline McDonald talks about why buyers shouldn’t get too comfortable with low workers comp rates. One of the primary sources for the article is our friend Mark Walls of Safety National – who is also well know as the founder of LinkedIn’s Work Comp Analysis Group.
Diversity – Jared wade posts that 18 insurance firms are among the best companies for LGBT employees to work for – “scoring a perfect 100% as a Best Place to Work for their ‘support equality for lesbian, gay, bisexual and transgender employees,’ according to HRC.”
Distracted driving in NY – A sign of things to come? In New York, drivers will get two points for talking on hand-held cell phones. A two-point penalty has already been in place for texting while driving. At that rate, auto insurance sure could get expensive quickly for compulsive phone-o-philes.
Mental health – CCOHS, the Canadian counterpart of OSHA, makes the case for why employers should care about mental health at work.

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Posted in News roundups | Comments Off on Health Wonk Review, Valentine’s week edition, and other news of note

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