Tag Archives: workers’ compensation

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

What Happens If an Employee Gets Hurt at the Work Holiday Party?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

“Frosting and beer can be a very fun but lethal combination starting at around midnight,” says Miller, star of the upcoming ensemble comedy “Office Christmas Party” (in theaters Dec. 9). As you know, it’s holiday party season and there’s a new comedy film coming out with some great comedians (Jason Bateman, Kate McKinnon, Jennifer Aniston, Vanessa Bayer) depicting the most out-of-control work holiday party ever. Based on the preview, the employees of a large corporation really, really let loose for an insanely crazy and highly dangerous holiday party. Which leads to the legal question, what happens if an employee is injured at a work holiday party? Like most (if not all) attorney responses, the answer is “well . . . it depends.”

The answer is based on a factors laid out in a North Carolina Supreme Court case from 2007, Frost v. Salter Path Fire & Rescue, and reiterated more recently in the Court of Appeals case Holliday v. Tropical Fruit & Nut Co. In both of these cases, the employee was injured at an employment-related event out of the office. However, in one case (Frost) the worker was denied benefits whereas in the other (Holliday) the injured worker prevailed. In rendering their decisions, the court reviews six factors: 

  1. Did the employer sponsor the event?
  2. To what extent was the attendance really voluntary?
  3. Was there some degree of encouragement to attend by factors such as: taking attendance, paying for time, requiring employee to work if s/he did not attend, and/or maintain known custom of attending.
  4. Did the employer finance the occasion to a substantial extent?
  5. Did the employees regard it as an employment benefit?
  6. Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through tangible advantages such as having an opportunity to make speeches and awards?

Thus, the more the employer is involved in paying for the event and requiring employees to attend, the more likely that a “party-related injury” will also be deemed a work-related injury. So with that in mind, everyone enjoy your holiday parties and go see “Office Christmas Party” for examples of what not to do. Please stay safe and have a happy holiday. 

Can I Get Workers’ Comp Benefits For My Loss of Sense of Taste and Smell?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

What is your sense of smell and sense of taste worth to you? These senses are truly priceless. In a medical malpractice case, the plaintiff – a chef – was awarded $1.5 million in damages when he lost his sense of taste following a tonsillectomy when the surgeon failed to disclose that this was a risk.

 

Unfortunately, sometimes an injured worker may suffer a head injury or other type of injury that causes him or her to lose his/her sense of smell and/or taste. While no amount of money will ever make a person whole after losing one of their senses, North Carolina workers’ compensation law allows for an injured worker to be awarded some compensation for the loss of sense of smell and taste if the loss was a result of compensable workplace injury. Under North Carolina General Statute § 97-31(24), the “loss or permanent injury to any important organ or part of the body for which no compensation is payable under any other subdivision of this section. . .”. The maximum award for the loss of both senses (combined) is capped at $20,000 in North Carolina.

 

North Carolina law treats the “loss of sense of taste and smell” as the loss of an important internal organ.” See Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362 (1982).  In 1997, the North Carolina Court of Appeals (Bess v. Tyson Foods, Inc., 125 N.C. App. 698, 482 S.E.2d 26 (1997) held that the injured worker was entitled to compensation for permanent damage to the olfactory organ but not for compensation for two separate compensable injuries. As a result, in North Carolina the most a plaintiff can receive for losing his or her sense of taste and smell is $20,000.

 

Based on a brief look at other states, it appears that many states do not compensate injured workers for their loss of sense of taste or smell at all. When compensation is allowed, the states have compensation caps less than North Carolina’s cap.  For example, Connecticut allows 17 weeks (max) compensation for loss of sense of taste, and 17 weeks (max) for loss of sense of smell. Minnesota allows a 1% disability rating for total loss of taste and 1% rating for total loss of sense of smell. Washington caps the total body impairment for the loss of taste and smell at 3% (or a max award of $5,977.41). Finally, Wisconsin has a cap of 2.5% for permanent total disability for losses of taste and smell. 

Oklahoma Commission Says Workers’ Comp “Opt Out” Not OK

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Ever since Oklahoma employers were allowed to “opt out” of the workers’ compensation system in 2013, nearly 60 big employers have chosen the “opt out” path. By opting out, these large corporations (like Wal-Mart and Big Lots) are no longer constrained by the requirements of the Oklahoma State workers’ compensation laws. Instead they are allowed to create their own internal workers’ compensation system playing under their rules and definitions.

According to a NPR study these opt out plans “ . . . provide fewer benefits, make it easier for employers to deny benefits, give employers control over medical assessment and treatment, and leave appeals in the hands of employers, and force workers to accept lump-sum settlements.”

However, just last week, the Oklahoma Workers’ Compensation Commission unanimously declared two sections of the “Oklahoma Employee Injury Benefit Act” (a/k/a Oklahoma’s Opt Out law) unconstitutional. According to the Commission, the Opt Out provisions deprived injured workers of equal protection and access to the court. The Oklahoma Workers’ Compensation Commission called the opt out plans “a water mirage on the highway that disappears upon closer inspection.”

Here is a link to the Oklahoma Workers’ Compensation opinion filed 26 February 2016. The ruling will likely be appealed and we can expect to hear much more about these Oklahoma opt-out plans in the near future.

 

 

 

Workers’ Compensation Fraud – North Carolina Statistics for 2014 – 2015

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Several months ago, the North Carolina Industrial Commission published their Annual Report for 2014 – 2015. Based on the Annual Report, employer fraud was by far the overwhelming majority of investigated fraud in the North Carolina workers’ compensation system.

 

The Annual Report tracked investigations of suspected fraud and violations related to workers’ compensation involving employees, employers, insurers, health care providers, attorneys, and rehabilitation providers. The total figure of fraud investigations for 2014 – 2015 was 1,474 cases. Of those 1,474 cases, 1,336 cases related to employer fraud. That means that 90.64% of the investigated workers’ comp fraud was fraud on the part of the employer.  Whereas there were 129 cases of suspected employee fraud (i.e. 8.75% of the total investigated fraud cases).

 

The silver lining? Of the employer fraud that was prosecuted, the State of North Carolina was able to collect nearly $1,000,000 in revenue just in 2014 – 2015 in fraud penalties paid by noncompliant employers. 

Insult to Injury: ProPublica’s Series “Demolition of Workers’ Compensation” Focuses on Ongoing Workers’ Comp Woes Faced by Injured Workers Nationally

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Recent years have not been favorable to injured workers. States across the nation have enacted “reform” measures curbing injured workers benefits. Disability caps have been introduced, medical care restricted. In our last blog, we discussed Oklahoma’s Opt Out provisions as an example of the court system declaring that the legislature had legislated away too much of the injured worker’s protections. A couple years ago, Florida workers’ comp laws were declared unconstitutional by a judge. Although the decision was later reversed, the Florida judge (Judge Cueto) expressed concerns regarding the loss of an employee’s right to wage-loss benefits after an accident.  

 

NPR and ProPublica have been authoring an in-depth series on national workers’ compensation issues. ProPublica reviewed “reams of insurance industry data” and their findings confirmed what many workers’ compensation attorneys suspected for years:  insurance companies are increasingly controlling medical decisions, workers are unable to pick their own doctor in many states, and insurers are denying medical care based on internal “guidelines.”

 

As an example, ProPublica’s article talks about a case in California where the insurance company reopened an old case and denied medical care based on the opinion of a doctor who never even saw the patient. “Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.”

 

The article also brings up a good point about workers’ comp fraud. Repeatedly studies show “most of the money lost to fraud results not from workers making false claims but from employers misclassifying workers and underreporting payroll to get cheaper insurance rates.”

 

I was injured at home while working for my employer. Am I entitled to workers’ compensation benefits?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

We’ve all seen the ads for “work from home” jobs (spoiler alert – many are scams). However, corporations like Apple, IBM, CVS, and many, many more are frequently advertising work-from-home or telecommuter jobs to employees thus providing a flexible work schedule. The question then arises – what happens if the telecommuting employee is injured at home? For example, what if the employee is injured during a personal coffee break? What if he slips on his driveway? Or, if she trips over her pet while walking to her van to get work supplies?

 

In deciding on whether an employee’s injury may be compensable, courts have generally considered (1) how regularly the employee works from home, (2) the presence of work equipment at home (e.g. work computer or corporate phone), and/or (3) other conditions particular to that employment that make it necessary for the employee to work from home. The courts specifically look to whether the employee is working from home for his or her convenience, or if it’s necessary from the employer’s standpoint that the employee work from home (e.g. there is no other suitable place of employment offered by the employer).

 

For example, in Utah, the Court of Appeals held that a sales manager who was spreading salt on his driveway in anticipation of an important business delivery sustained a compensable slip and fall at work. The Court determined that the manager’s motivation in spreading the salt was to assist the employer’s business. [AE Clevite Inc. v. Labor Comm’n, 2000 UT App. 35, 996 P.2d 1072 (2000)]. Also, where a custom decorator for J.C. Penney was walking out to her van in her garage to get fabric samples and tripped over her dog, that injury was also compensable [Sandburg v. J.C. Penney Co, Inc., 260 P.3d 496 (2011)]. The Court explained that the home premises was also her work premises and the decorator had to keep samples in her van to show potential customers.

 

The bottom line is that when telecommuters are injured at home during the actual performance of their jobs, regardless of how insignificant, the injury may be compensable.

 

Occupational Asthma, or Work-Related Asthma, and Workers’ Compensation

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Occupational asthma (OA) is asthma that’s caused or worsened by breathing in chemical fumes, gases, dust or other substances on the job. Typical symptoms of OA are: chest tightness, wheezing, and shortness of breath. OA accounts for approximately ten to twenty-five percent of adult onset asthma. (Dykewicz, MS. Occupational Asthma: Current Concepts in Pathogenesis, Diagnosis, and Management. J Allergy Clin. Immunol. 2009; 123:519.)

Under North Carolina workers’ compensation laws, OA is considered an occupational disease pursuant to North Carolina General Statute §97-53(13). In order to obtain workers’ compensation benefits for OA, an injured worker must show that s/he was at an increased risk of developing OA as a result of his/her employment. Furthermore, the injured worker must show that his or her exposure at work was a significant contributing factor to his/her development of OA.

Treatment with a pulmonologist is essential for the injured worker’s recovery. Frequently the injured worker must avoid working in conditions (i.e. fumes) that will irritate his/her underlying condition. Certain professions are known to have higher likelihood of developing OA. For example, foam insulation installers exposed to diisocyanates, refinery workers exposed to metals (chromium, platinum, nickel), textile workers exposed to dyes, and health care workers exposed to formaldehyde are just a few examples of industries where workers are at an increased risk of developing OA. The Canadian Centre for Occupational Health and Safety published an online Fact Sheet which lists dozens of occupations where workers are at risk for developing OA.

Clearly, the best way to prevent OA is for workers to avoid using or being exposed to harmful substances. If this is not possible, then employers should make efforts to minimize employees’ exposure through ventilation systems or other methods. If you are concerned about your exposure to a substance at work, your employer should have material data safety sheets (MSDS) on site so that you can review any potential health hazards. As always, prevention and education of employees about proper handling procedures is key.