Category Archives: Workers’ Compensation

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

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. 

Removing The Safety Net: A National Trend Of Benefit Reductions For Injured Workers

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Benefits for injured workers continue to be under attack throughout the country. In New York, there have been a number of changes in the last decade, all in the name of reform. These reforms were encouraging at first as they increased the weekly benefits for some higher wage-earning injured workers for the first time in decades. They also created medical treatment guidelines under the guise of allowing injured workers to obtain pre-approval on certain medical treatments and procedures. 

Unfortunately, the changes also resulted in reduction of benefits for many injured workers. Monetary benefits were capped, so injured workers deemed partially disabled could only receive a certain number of weeks of benefits regardless of their ability to return to their pre-injury jobs. The determination of the degree of disability has become a battle involving multiple, lengthy depositions of medical witnesses where the outcome is how long injured workers get wage replacement or whether they receive lifetime benefits. The criteria is not whether injured workers can return to their prior employment, but whether they are capable of performing any work at all, regardless of their past job experience or education. The battle is not limited to the amount of weeks of benefits injured workers can receive, however. The medical treatment guidelines, touted as getting injured workers prompt medical treatment, discounts the fact that if the requested treatment is not listed within the guidelines, it is denied and the burden is placed upon injured workers and their treating doctors to prove the requested treatment is necessary.

Other changes designed to cut administrative costs and court personnel include reducing the number of hearings held, thereby denying injured workers due process. There also has been a reduction in the number of presiding judges, and in many hearing locations the judges are not even at the site but are conducting hearings through video conferencing. At the end of October, the Board announced a new procedure authorizing the insurance carrier to request a hearing on whether injured workers should be weaned off of opioids that are used by many medical providers to treat chronic pain. While everyone would agree that the misuse of prescription pain medication is an epidemic in this country, many question whether the insurance industry really has the injured workers’ best interest at heart.    

As an attorney who has represented injured workers for more than 26 years, I have seen many workers successfully transition from injured worker back into the labor market. It is very encouraging to note that for many people the system has worked. They receive their treatment, which may involve physical therapy, surgery, pain management, prescription therapy, or whatever else their treating physician recommends. They are paid a portion of their prior income and after a period of convalescence, they are able to return to work. Some injured workers, however, are not so lucky. The decisions about what happens to those unable to work have been left to those who seem to care more about business and insurance industry profits. 

Just about one year ago, 14 people were killed and 22 more injured when ISIS-inspired terrorists went on a shooting rampage in San Bernardino, California. The nation and the world were horrified to hear about this tragedy and the story was in the news for many weeks. Now a year has gone by and many of the survivors have complained about treatment being denied and prescription medication being cut off.  While many injuries happen quietly without the headlines seen in the California attack, there are many similarities. It seems that when an initial injury occurs, there are many good protections and benefits in place. However, as time goes on and costs increase, injured workers are looked upon as enemies to defeat or to forget about. Unfortunately for injured workers and their families, they don’t have this luxury and they don’t have the means to fight.

Most people don’t think it will ever happen to them. That is what most of my clients have thought as well.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717. 

 

WA L&I’s Stay at Work Program Hits Major Milestone: > 20,000 Workers Helped

Today’s post comes from guest author Kit Case, from Causey Law Firm.

A Department of Labor & Industries (L&I) program that helps support light-duty jobs after workplace injuries has reached two major milestones. The Stay at Work Program has now helped more than 20,000 injured workers and provided more than $50 million to reimburse businesses that take part. 

The program pays employers for part of the costs associated with offering light-duty jobs to injured workers. It helps defray some of the expenses so businesses can allow eligible employees to keep working during their recovery and stay connected to their workplace.  

“This return-to-work incentive is changing the workers’ compensation system, and more importantly, changing workers’ lives and improving the bottom line for employers,” said Vickie Kennedy, L&I’s assistant director of Insurance Services.   

To date, more than 4,500 employers have used the program to offer light-duty jobs to help thousands of workers return to work as part of their recovery from a workplace injury or illness.

Supporting Recovery

Mao Pen, an industrial seamstress at Seattle Tarp, is one example of those helped by the Stay at Work Program. Pen broke her left elbow and forearm last June when she fell backwards while helping coworkers stretch a large tarp. “It was a horrible break,” said Chris Perlatti, president of Seattle Tarp, where Pen has worked for 20 years.

After having surgery and staying home for three months, Pen wanted to come back to work. “And we wanted her back,” said Perlatti. “She’s a valuable employee and a sweet individual. She’s part of our work family.”  

Perlatti said the answers came when L&I’s occupational nurse Deirdre Staudt started talking to his staff about how light duty could help both Pen and Seattle Tarp. 

Through the Stay at Work Program, Seattle Tarp could get reimbursed for half of Pen’s light-duty wages (up to 66 days and $10,000), along with costs for training, equipment, tools, and any clothing needed for the light-duty work.

“This is a phenomenal program,” said Perlatti. “I wish we had known about it before one of our workers got injured.”

Changing Workers’ Compensation

“Instead of writing a check to the worker to replace some of their wages while they stay at home to recover, we’re reimbursing employers to help workers return to work as soon as medically possible,” said Kennedy, adding that the workplace connection offers financial, social and psychological support that a worker needs to improve recovery times.   

Return-to-work initiatives like the Stay at Work Program, efforts to ensure quality medical care, and other improvements in the workers’ compensation system are helping an estimated 560 injured workers each year avoid possible long-term disability. 

Together, these efforts have saved $700 million in estimated wage replacement, disability and medical costs to Washington employers, workers, and the workers’ compensation system. More importantly, these efforts are helping injured workers heal and return to productive lives. 

L&I encourages employers to establish return-to-work programs at their worksites. Employers can start by creating light-duty job descriptions and using the Stay at Work incentives to offset costs associated with workplace injuries.

There’s more information online about the Stay at Work Program (Lni.wa.gov/StayAtWork).

 Photo credit: kenmainr via Foter.com / CC BY-NC-SA

Age Discrimination Claims in Workers’ Compensation Settlements?

When an employee settles a workers’ compensation claim, the employer often wants to terminate the employee and is cautious because of potential age discrimination. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. (2015), prohibits companies with 20 or more employees from discriminating against a person (40 years of age or older) because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

An individual who has been discriminated against because of his or her age may be entitled to back pay, reinstatement, hiring, promotion, front pay, liquidated damages, and court costs and attorney fees.

To avoid potential discrimination claims after a workers’ compensation settlement, the employer often seeks an ADEA waiver at the same time. For an ADEA waiver to be enforceable, it must:

  • Be in writing and understandable;

  • Specifically refer to ADEA rights or claims;

  • Not waive an individual’s future rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the individuals is already entitled;

  • Advise the individual to consult with an attorney before signing the waiver;

  • Provide the individual with a certain amount of time to consider the agreement:

    • 21 days for individual agreements

    • 45 days for group waiver agreements

    • A “reasonable” amount of time for settlements of ADEA claims

  • Provide a period of at least 7 days following the execution of the agreement, in which the agreement is not effective or enforceable, in which the individual may revoke the agreement.

Some termination agreements may not be enforceable, and the individual may have a valid claim to pursue under the ADEA.

Drug Formularies, Part 2: Pharmacy Benefit Managers and Drug Prices

Mylan CEO Heather Bresch testified before the House Oversight Committee about her company’s increase in the price of life-saving EpiPens by more than 500 percent since 2007.

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

This fall, most Americans were outraged at revelations that the price of life-saving EpiPens had increased by 600 percent since 2007. The anger over the drastic price increase for EpiPens focused attention on the role that pharmacy benefit managers play in the increase of drug prices. Pharmacy benefit managers administer drug formularies, so the use of drug formularies should also be questioned on prescription price control in addition to the question of whether drug formularies shift costs to more expensive treatment.

Pharmacy benefit managers have been praised for helping negotiate drug discounts. However, pharmacy benefit managers have been criticized on the same grounds because their profitability depends in large part on being able to pocket a percentage of the discount that they negotiate. This is a lucrative business. Express Scripts is described by Wall Street-types as a “pure play” pharmacy benefit manager. In the last quarter, Express Scripts made $722.9 million in profit, a 9 percent year-over-year increase.

In addition to being criticized for benefiting from the increase in pharmacy costs, pharmacy benefit managers have also been criticized for having conflicts of interest. Pharmacy benefit managers run drug formularies. However, since pharmacy benefit managers negotiate discounts with specific drug firms, pharmacy benefit managers have an incentive to put those drugs on drug formularies. These types of arrangements have drawn the attention of Preet Bharara, the high-profile United States attorney for the Southern District of New York. In 2015, Bharara settled a charge against Express Scripts for $45 million. The settlement came after an Express Scripts unit participated in a kickback scheme involving Novartis under the False Claims Act and the Anti-Kickback Statute.

In fairness to pharmacy benefit managers, there may be other factors driving increased prescription prices. Recently, former Democratic presidential candidate and current U.S. Sen. Bernie Sanders wrote a letter to the Federal Trade Commission alleging collusion among pharmaceutical companies in regards to insulin prices. Insulin is a generic drug, and generic are cheaper than so-called brand-name drugs. However, the increase in insulin prices is far from the sole example of drastic increases in generic drugs.

In 2015, the National Council on Compensation Insurance (NCCI) released a report on prescription drug prices in workers’ compensation. On page 36 of this report, NCCI pointed out that four of the 10 drugs most responsible for the increase in drug prices were generics. In 2014, the price of generic Oxycodone-Acetaminophen rose 35 percent, Oxycodone’s price rose 60 percent, the price of generic muscle relaxer Baclofen rose 86 percent, and the price of generic Morphine Sulfate ER rose by 25 percent.

There is strong evidence that pharmacy benefit managers do little to control prescription drug prices. There is also strong evidence that pharmacy benefit managers benefit from increases in drug prices. If advocates of workers’ compensation reform want to expand the use of drug formularies, they need to explain to policy makers how the pluses of pharmacy benefit managers outweigh the myriad problems related to pharmacy benefit managers.

Drug Formularies, Part 1: The Rest of the Story

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

A drug formulary is a term describing a list of drugs that are covered by an insurance plan. In workers’ compensation, formularies are touted as a way to reduce prescription costs and lead to more effective care. Formularies are particularly pushed as a solution for opioid use and abuse for injured employees.

The headline numbers about the reduction of prescription costs look eye popping. One group of pharmacy benefit managers, the companies that manage drug formularies, claimed a 9 percent reduction in prescription costs over the last year. Ohio, which has the largest state-run workers compensation fund in the country, claimed a 16 percent reduction in prescription costs in the first three years after they implemented a drug formulary. Ohio reported 15.7 million fewer doses of opioids in that time period and a 36 percent reduction in opioid costs.

The Rest of the Story about Drug Formularies

Florida workers’ compensation judge David Langham has asked “what is the rest of the story” about drug formularies. If drug formularies are so effective, then why have they only been adopted in a few states for workers’ compensation?

While drug formularies are a relatively recent development in workers’ compensation, they are well established in the larger world of health insurance. Drug formularies have long been criticized for increasing costs in health insurance plans by reducing prescription usage because costs are shifted to insureds, which forces insureds to seek more expensive care, because chronic conditions go untreated. Overall costs are increased. The costs are also shifted onto insureds who have to pick up the costs for more expensive procedures that could have been taken care of through medication. Cost shifting from the employer onto the employee, other forms of insurance and the government is already a serious problem in workers’ compensation. Drug formularies in workers’ compensation could exacerbate the issue of cost-shifting.

Do Drug Formularies add up?  Cost = Price * Utilization

When you study drug formularies for any amount of time, you run across the equation that drug costs equal price multiplied by utilization. Proponents of drug formularies tout that they can decrease both the utilization and the price of prescription drugs. Ohio has provided detailed information about the decrease in the utilization of certain drugs like opioids because of formularies. However, the decrease in the utilization in opioids cited by proponents of drug formularies coincides with an overall long-standing decrease in the frequency or number of workers’ compensation claims. Fewer overall claims mean less overall utilization, which could explain some of the cost decrease. A better measure of the effectiveness in drug formularies in controlling costs would be measured by looking at prescription cost per claim. So far, drug formulary proponents have been unable to show that data. Even if drug formulary proponents could show that data, there is still the issue of whether reductions in prescription drug costs lead to increases medical costs by forcing injured employees to seek more expensive care that could have been taken care of by prescriptions.

On the price end of the equation, drug formularies are thought to control costs by having pharmacy benefit managers negotiate bulk discounts on prescription drugs. But pharmacy benefit managers have come under fire with allegations that they actually increase drug prices or at the very least are powerless to stop the increases in drug prices. The issue of drug formularies, pharmacy benefit managers and drug prices is complicated and will be addressed in Part 2 of this series.

Labor Report Urges Study Of A Federal Role In State Workers’ Comp Laws

Howard Berkes and Michael Grabell have been investigating the decline of workers compensation for Pro Publica and NPR.

Today’s post comes from guest author Edgar Romano, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Howard Berkes and Michael Grabell have been shining a light on the deterioration of state workers’ compensation benefits over the last decade. A new U.S. Department of Labor report bolsters their investigative journalism, noting that those hurt on the job are at “great risk of falling into poverty” because state workers’ compensation systems are failing to provide them with adequate benefits.

The Workers Injury Litigation Group (WILG) has been fighting against this decline for 20 years, and we will continue to advocate for fair benefits for injured workers. The following is a summary of Mr. Berkes and Grabell’s recent article:

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

“The current situation warrants a significant change in approach in order to address the inadequacies of the system,” the report says.

That’s where federal intervention comes in. The Labor Department calls for “exploration” of “the establishment of standards that would trigger increased federal oversight if workers’ compensation programs fail to meet those standards.”

The agency also suggests a fresh look at reestablishing a 1972 Nixon administration commission that recommended minimum benefits and urged Congress to act if states failed to comply.

“In this critical area of the social safety net, the federal government has basically abdicated any responsibility,” says Labor Secretary Thomas Perez.

Without minimum federal standards for workers’ comp benefits, Perez adds, the current system “is really putting workers who are hurt on the job on a pathway to poverty.”

Prior to the report’s release, employers, insurance companies and others involved in workers’ comp programs expressed alarm at the possibility of federal intervention.

“There has never been federal ‘oversight of state workers’ compensation programs’,” says a statement posted on the website of a group called Strategic Services on Unemployment and Workers’ Compensation, which says it represents the workers’ comp interests of the business community.

“Federal requirements imposed on a national basis would be inconsistent with the state workers’ compensation system, which has been in place for more than 100 years without federal oversight,” the group wrote.

Federal minimum benefits could ensure that injured workers across the country would not receive lesser benefits for often shorter periods of time simply because they lived in a state where lawmakers dramatically cut workers’ comp costs for employers.

“This is a system with no federal minimum standards and absolutely no federal oversight,” says Deborah Berkowitz, a senior fellow at the National Employment Law Project. “Clearly, more federal oversight is necessary to assure that that this system works for those most in need of assistance.”

No direct administrative or legislative action is proposed in the report, but Sen. Sherrod Brown, D-Ohio, says he’s “drafting legislation to address many of the troubling findings laid out in this report and will be working with my colleagues to advance it in the next Congress.” 

Brown echoes Perez, saying injuries on the job shouldn’t force workers into poverty.

“But without a basic standard for workers compensation programs, that’s exactly what’s happening in too many states across the country,” Brown adds. 

Another incentive for federal involvement, the report notes, is a shift of billions of dollars in workplace injury costs to taxpayers when state workers’ comp benefits fall short and workers are forced to turn to Medicare and Social Security for treatment and lost wages.

The report lays the groundwork for federal intervention by providing an extensive section detailing the government’s role in promoting national benefits standards in both Republican and Democratic administrations dating back to 1939.

But many in the workers’ comp world consider workplace injury policy and regulation a states’ right and any prospect of a controlling federal role will likely face stiff resistance.

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

“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.