The pre-election season used to be dubbed the silly season, but this year it might better be termed the scary season – things are getting pretty acrimonious. Following up on the scary theme, Meredith Hughes, Allison Levy, and Sam Wainwright of New Health Dialogue Blog team up to bring you Health Wonk Review: All Hallows Eve Edition. It’s an entertaining and substantive issue, and the last issue before the election.
And in other news of note:
Joe Paduda of Managed Care Matters tackles the issue of physician dispensed drugs in work comp and explains how repackaged drugs can add to costs by an alarming magnitude. In 2007, California closed this loophole that allowed repackaged drugs to go “off the grid” in terms of existing pricing controls, and other states are now looking at this issue. Joe’s post compiles research and explains why this is an issue you should know and care about.
Roberto Ceniceros of Comp Time looks at the NFL’s recent focus on helmet-to-helmet hits. He links to a press release from the NFL Players Association, which makes the point that player safety extends beyond the field, calling on the league to “call on the league to end “nasty litigation against nearly 300 players’ workers compensation cases and stop saying ‘no’ to the disability benefits of NFL legends.”
Yvonne Guibert of Complex Care Blog discusses obesity and comorbidities and the impact on claims costs. She offers research and resources to help employers grapple with this issue. The current issue of Human Resource Executive also carries a good article on how obesity adds to healthcare costs, along with some approaches that employers are taking to mitigate the problem.
For all practical purposes, Texas is the only state in the union that allows employers to opt out of mandatory workers comp coverage. Peter Rousmaniere takes a look at how the opt-out option has affected employers in the current issue of Risk and Insurance. And on the topic of opting out, see Good News for Texas Non-subscribers, Bad News for Excess Carrier, a post by Michael Fox of Jottings By An Employer’s Lawyer.
Advanced Safety and Health News Blog discusses and links to federal OSHA’s recently issued special evaluation of state-run OSHA programs. “The reports provide detailed findings and recommendations on the operations of state-run OSHA programs in 25 states and territories. The review was initiated after a 2009 special OSHA report on Nevada’s program, identified serious operational deficiencies in that state.”
Judge Tom of the eponymous blog schools us on Oklahoma’s law on recreational injuries and workers comp. In 2005, the law was tightened to exclude any injuries that stem from recreational and social activities, even those occurring on the employer’s premises. He notes: “The larger, unanswered question is whether employers no longer have tort immunity for injuries sustained at recreational and social functions such as Christmas parties, company sponsored sports leagues, the Orcutt basketball pick-up game, attendance at charitable events to name a few.”
Short takes
Weekly Toll: Death in the American Workplace
High Unemployment Rate a Drag on Workers’ Compensation Insurers
Health care group spends $4 million on safety, saves $14 million
Specialist and primary care pay per hour
FedEx to Pay $2.3 Million Over Independent Contractors
Posts Tagged ‘recreational injuries’
All Hallows Eve Edition of Health Wonk Review and other noteworthy news
Thursday, October 28th, 2010MA Supremes: teacher chaperoning ski trip due workers comp
Tuesday, December 15th, 2009In a recent decision that shouldn’t be too surprising to those who follow workers’ comp compensability issues, the Massachusetts Supreme Court recently upheld a decision by the Department of Industrial Accidents to grant workers compensation benefits to Karen Sikorksi, a Peabody teacher injured while chaperoning high school kids on a 2004 ski trip. The City of Peabody had contested the award on the basis that she was a volunteer engaged in a recreational activity.
We’ve seen many of these cases and the decision often hinges on the voluntary nature of the activity. In this case, the city of Peabody probably thought they were well within the law in denying benefits. According to Insurance Journal, the Massachusetts legislature added a little twist to the workers’ comp statue in 1985, when it excluded “… any injury resulting from an employee’s purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof.”
Note the adjective “purely.”
When is a volunteer really not a volunteer? Usually, when an employer encourages the employees to participate in said activity. (Everybody who has ever been an employee is likely familiar with the concept of so-called voluntary recreational activities – non-participation can be a career-limiting option.) According to reports, the Peabody school administration has historically expected teachers to become involved with the school’s extracurricular activities and, in this particular case, the school principal and the ski club adviser solicited teachers to serve as chaperones. In Sikorski’s case, the Supreme Court justices unanimously found that she was “acting in the course of her employment” and not in a recreational activity as described in the law. The court found that her responsibilities as chaperone were “…essentially the same ones teachers must exercise while working in the school building during school hours.” Chaperones were expected to supervise students both in the lodge and on the slopes.
Another common criteria that courts use is in determining whether an activity is “voluntary” is how beneficial it is to the employer and whether it furthers the employer’s interests. In this case, the court found that it did: “…the ski club’s trips benefited the city by furthering the school’s educational mission.”
Of course, nothing is ever simple with workers’ comp – there are 50 different flavors, so every state law may have its own particular nooks and crannies related to these issues. Andrew G. Simpson has an excellent article on ‘Forced Fun’ and related workers’ compensation problems, in which he discusses variations in state laws.
Other posts related to the issue of “mandatory fun”:
Compensable Fun
Monday, August 3rd, 2009There is an ongoing debate concerning the compensability of injuries that occur during company sponsored recreation. As Dr. Suess might say, “These things are fun and fun is good,” except when your employer makes you do it. There is a fine line between employees participating because they want to, as opposed to feeling that they have to.
Clark Kauffman has a nice summary of the compensability issues in the Des Moines Register. He sites the case of Robert Powell, an employee of the Cedar Rapids Gazette, who injured his back bowling at a “Family Fun Fest” sponsored by his employer. His injury was compensable – to the tune of $100,000 – because the employer urged participation: “Don’t make us cancel this event from lack of interest/attendance.”
Iowa has some interesting case law regarding compensability:
Hunting: way back in 1933 Claire Fintzel was trying to close a deal while pheasant hunting with a business associate. He was shot in the leg. He received $15 a week for 100 weeks (a paltry sum, to be sure, but this was back in the depression).
Boating: In 1941 Roy Linderman, a salesman for Cowie Furs, won a company-sponsored contest for highest sales. His prize? A fishing trip, during which, alas, he drowned. His death was deemed compensable.
Basketball: In 1982 Professor Charles Campolo of Briar Cliff College was partcipating in a faculty-student basketball game. At age 40, Campolo had a known heart condition. He died in the game’s final seconds. Because the school derived a benefit from his participation, the death was compensable.
State by State
Kauffman takes a brief look of the compensability issue from state to state. It usually boils down to this: is the event truly voluntary? Does the employer derive a direct business benefit from the activity? To some degree the burden of proof is on the employer to demonstrate that there is no pressure on employees to participate – that participation is not the only true measure of “team spirit.”
The state of Tennessee recently revised their comp statute, to provide clarification on the compensability issue. The statute is brief but comprehensive:
Public Chapter 407 (SB1909/HB1500) excludes from workers’ compensation injuries that occur during recreational activities that are not required by the employer, and do not directly benefit the employer. Workers’ compensation injuries that are covered under workers’ compensation include those that occur where participation:
1) was expressly or impliedly (sic) required by the employer; or
2) produced a direct benefit to the employer beyond improvement in employee
health and morale; or
3) was during work hours and was part of the employee’s work duties; or
4) occurred due to unsafe conditions the employer had knowledge of and failed to
curtail or cure the unsafe condition.
This statutory language summarizes the issues without tying the hands of judges unnecessarily. It’s a good model for legislators contemplating changes. Beyond that, it’s good policy guidance for employers who want to encourage team building and fun, without creating inadvertant comp exposures.
NOTE: Our collegue Julie Ferguson has related blogs here and here.
Injuries at the gym: compensability, incentives, and wellness
Thursday, July 16th, 2009Roberto Ceniceros blogs about the New York appeals court ruling in Frank P. Torre v. Logic Technology, which awarded workers comp benefits to an employee for an injury sustained in the gym. Usually, injuries sustained in extracurricular activities aren’t covered by workers comp, but there are exceptions, such as when injuries occur during “mandatory attendance” events or while an employee is on business travel (see our past posts: Mandatory fun: when recreational activities are compensable and When play becomes work, or the case of the traveling employee).
On first glance, a case like this might seem open and shut. The employee was on his own time at the gym – the injury did not appear to arise out of and in the course of employment. But on closer examination, the court apparently determined that gym participation was furthering the employer’s interest for the networking potential. (Is gym the new golf?) When it is determined that an employer has derived significant business benefit from an activity – such as interacting with clients and prospects – then an activity may be compensable.
The courts also noted that the employer encouraged and sponsored this activity. In this case, the sponsorship entailed reimbursement for membership fees. One has to wonder what kind of chilling effect a ruling like this could have on wellness programs. Employers frequently incent employees by paying for or supplementing gym membership, exercise programs, and weight loss or smoking cessation programs. Some companies offer financial incentives for participating in wellness programs or disincentives such as increased cost for insurance for not participating.
This type of endorsement and sponsorship can be tricky when it comes to workers comp. In days gone by, sponsorship generally referred to softball or bowling teams and employers could take some steps top mitigate risks. But as employers become more aggressive about wellness programs in an effort to control health care costs and these wellness programs become more ingrained in the corporate culture, does the compensability exposure increase? Some of the variables that have come into play in determining compensability are the location and time of the activity – is the gym on the employer’s premises? Does the activity take place during work hours? Another factor is how strongly the company encourages participation and whether participation is purely voluntary. If a corporate culture is such that it so strongly endorses an activity, the issue of whether participation is truly voluntary could be up for debate.
Comorbidities like obesity and diabetes have been shown to have an impact on claim frequency and severity so it would appear that wellness programs would have a positive net effect on workers comp costs. But good intentions can often have bad outcomes. Take the concept of programs that heighten worker awareness about safety and incent workers for best practices – that may sound great on the surface, but The New York Times recently reported on safety incentive programs that ran headlong into the law of unintended consequences.
News roundup: blogs, RTW, meth users, ethics, and more
Monday, February 6th, 2006Insurance weblogs. We are featured in an article about weblogs by Therese Rutkowski that appeared in the December issue of Insurance Networking News: Online Soapboxes Get Down to Business. Several of our fellow bloggers are cited too.
Returning to Work: Overcoming Injury and Achieving Success – an article written by Kurt Schuhl and Michael McMahon the January issue of Risk Management magazine.
Meth abusers cost employers millions – A recent study determined that each meth-using employee costs his or her employer $47,500 a year in terms of lost productivity, absenteeism, higher health-care costs and higher workers’ compensation costs.
Off-the-job injuries – A Stockton California police officer was denied workers comp for an off-duty injury he suffered while playing basketball. According to the court: “When an employee is injured during voluntary, off-duty participation in a recreational, social, or athletic activity, Labor Code section 3600, subdivision (a)(9) provides that the injury is not covered by workers’ compensation, unless the activity was “a reasonable expectancy of” the employment or it was “expressly or impliedly required by” the employment.”
The Weekly Toll. – Tammy at Confined Space reminds us all of the real reasons why we should be doing the work that we do – a grim reminder to redouble our efforts to keep workers safe.
Immigrant worker injuries – Our colleague Peter Rousmaniere points to a recent Massachusetts study that offers a breakdown of hospitalizations by medical diagnosis, job and ethnic orientation. The study shows a relationship between the type of job and the type of injury.
Drug dispensing by docs – Joe Paduda notes that workers comp prescription drug costs are driven by utilization and price. But are some docs compromised by a profit motive via on-site dispensaries now in vogue?
Looking out for the workers – RawblogXport reminds points to an item that paints a dismal portrait of the economic status of the American worker, who is working harder and longer for less pay. “For the first time on record, U.S. household incomes failed to increase for five straight years – and that record includes the Great Depression. And the minimum wage, adjusted for inflation, is actually worth less today than it was before the last increase was passed 10 years ago”
Is the U.S. economy strong? – In terms of wages and jobs, the U.S. economy is not as strong as it might appear, according to some recent economic studies, and as reported recently in the New York Times.
Ethics – According to a survey by theAmerican Management Association (AMA), pressure from management to meet unrealistic business objectives and deadlines is the leading factor for most unethical corporate behavior. The desire to further one’s career and to protect one’s livelihood are ranked second and third, respectively, as leading factors.
Scandal watch. Speaking of ethics, Business Insurance reports that an AIG settlement with the SEC and the NY AG may be pending. Meanwhile, Judy Greenwald speculates that there may be bigger fish to fry in the wake of recent indictments of senior execs at General Re Corp. and American International Group Inc.
Mandatory fun: when recreational activities are compensable
Sunday, March 21st, 2004Roberto 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.