Tag: Workers Comp

A New York appeals court has reversed a decision to disallow a COVID-19 psychological injury claim that had been filed by an elementary school teacher.

The New York Appellate Division on March 28 determined that the state’s Workers’ Compensation Board wrongly ruled against the teacher, finding that the board failed to consider the claimant’s “particular vulnerabilities” that made her susceptible to injuries from COVID-19.

The teacher filed for workers comp in October 2020, claiming that she experienced a “dangerous exposure” to the virus in the workplace, which led to her sustaining psychological injuries.

The employer controverted the claim and both a workers comp judge and the comp board upheld that decision.

While the record established the teacher suffered from mental health issues, the workers comp judge found that the “conditions that … claimant is claiming are the result of the stress that was no greater than that which occurred in the normal work environment,” according to the appellate ruling.

On appeal, the teacher argued that the workers comp board applies “disparate burdens to claimants seeking compensation for a physical injury as compared to those seeking compensation for psychological injury,” in violation of the state’s workers comp law.

The appellate court agreed, writing that the burden placed on claimants seeking benefits for mental injuries is “no higher than the burden placed on those seeking benefits for physical injuries.”

The court remanded the case to the comp board for further proceedings.

 

 

An Occupational Safety and Health Review Commission administrative law judge Wednesday dismissed three citations and a total penalty of $148,137 against the U.S. Postal Service, saying alleged violations at a mail-sorting facility in Portland, Oregon, were unproven.

The Occupational Safety and Health Administration inspected the facility beginning in 2021 following an employee complaint that stated USPS had allowed at least six nonqualified employees to complete maintenance on machinery.  

After taking testimony from 17 employees, OSHA cited USPS for three serious violations, alleging a lack of training on lock-out/tag-out procedures and machine guarding and that a lock-out/tag-out device had been removed from machinery.

The judge, in vacating the three separate citations, found that the Secretary of Labor failed to apply the correct standards and did not prove the cited violations occurred, according to the ruling in Secretary of Labor v. U.S. Postal Service, dba Portland Processing and Distribution Center.

The judge said much of the evidence was insufficient, noting that in one instance a photograph was presented as evidence that a safety device had been removed.

 “This evidence does not establish that (USPS) … operated without the guard in place; the evidence establishes only that the guard was not in place during OSHA’s inspection,” the judge wrote.

Emperion, a Wayne, Pennsylvania-based company offering independent medical examination services in workers compensation claims, announced Wednesday that it has taken on all IME, peer review and independent review organization services from Enlyte LLC.

The move comes after the two companies announced a separation agreement in February.

Emperion and Enlyte said all contractual and service agreements for current clients would now be maintained by Emperion.

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The U.S. Occupational Safety and Health Administration said Wednesday it cited a Texas modular home manufacturer for more than two dozen safety violations following an inspection in October.

OSHA cited Austin-based Cavco Industries Inc., parent company of Palm Harbor Homes, for 25 serious and two other-than-serious violations and proposed $272,479 in penalties.

The agency said Cavco failed to provide workers with fall protection, allowed overhead hazards and suspended loads, improperly inspected fire extinguishers, didn’t offer welding screens, and used ladders improperly. It said the company also failed to maintain respiratory communication programs to protect workers from isocyanates and silica and didn’t provide employees with personal protective equipment.

Cavco, which designs and builds modular and manufactured homes, park model RVs and vacation cabins, has 15 business days to contest the citation and proposed penalties.

 

Alabama lawmakers on Tuesday introduced a bill that would permit medical care providers to first bill an injured worker’s health insurer for costs related to care and seek reimbursement from an employer’s workers compensation insurer if a claim is accepted.

H.B. 391, which was sent to the House Insurance Committee, would cover “all medical treatment rendered by a provider to an employee during an emergency, appointment, outpatient visit, in-home visit, or inpatient stay, including surgery, procedures, therapies, and rehabilitative or convalescent care, all of which have the purpose of diagnosing, managing, alleviating, or healing an injury.” The bill includes any related drugs, supplies, or equipment used in the treatment.

Under the bill, providers “may” submit a claim to an employee’s health insurer first. That health insurer and the employee who paid any co-pays or deductible would then seek reimbursement from the workers comp insurer or self-insured employer. 

 

 

With two bills introduced on one day and for the second time this legislative season Louisiana lawmakers are proposing the creation of a medical fee schedule to set parameters for workers compensation costs for injured workers.

H.B. 863, introduced Tuesday and sent to committee, would require that by Jan. 1, 2026, the reimbursement schedule include fees based on Medicare “with variable service aid reimbursement levels that shall be reasonable when compared to the workers compensation reimbursement schedule of states that surround and have similar characteristics to this state and the reimbursement of private health claim.”

H.B. 870, also introduced Tuesday and sent to committee, would set that reimbursement rate at one and half times what Medicare charges and states that “(i)f there is no Medicare fee schedule reimbursement amount for a particular care, service, treatment, drug, or supply, the reimbursement amount shall be one hundred sixty-two percent, if such reimbursement is reasonable and in accordance with the legislative intent” and that the “burden of proof shall be on the party seeking reimbursement to prove that the amount is reasonable, and the payor shall be entitled to reasonable discovery concerning payments accepted by the provider for similar services.”

 

 

In a yearslong trend that experts say is both political and scientific, several states are looking to expand the types of cancer that are covered under existing occupational illness presumption laws for firefighters.

Nearly two dozen states have presumptions in place for firefighters who get cancer, presumably due to exposure to toxins while fighting fires and the historic presence of chemicals in their gear. Most presumptions dictate which cancers are acceptable, such as lymphomas or those of the respiratory tract, and virtually every year lawmakers aim to expand the lists, which vary state to state. This year is no different.

So far, four states are considering adding more cancers to existing presumptions during their current legislative sessions:

• Hawaii’s House of Representatives on Thursday passed H.B. 1889, which would add breast and ovarian cancers to the state’s presumption for firefighters. 
• In Maryland, H.B. 584, passed by the House on March 7, would add thyroid, colon and ovarian to the list of 10 already accepted types of cancer.
• H.B. 2117 in Arizona, sent to committee on March 6, would add “reoccurrence of a previously diagnosed cancer” already on the list of eight cancers.
• H.B. 2817 in Missouri, introduced in February, would amend the state’s firefighter/occupational disease law to define carcinoma as a “condition of cancer affecting the skin or the central nervous, lymphatic, digestive, hematological, urinary, skeletal, oral, breast, testicular, genitourinary, liver, or prostate systems, as well as any condition of cancer that may result from exposure to heat absorption, inhalation, ingestion, or radiation.”

Scott Robinson, Washington-based deputy director of government relations for the International Association of Fire Fighters, said earlier presumptions and disability programs only allowed for lung cancer. As data on cancer diagnoses among firefighters continues to expand, so does interest in adding more types of cancers to presumptions — but politics mixes in with the science, making it a challenge for proponents who see the experiences among firefighters as proof of the need for expanded presumptions, he said.

“There’s been a huge push for scientific evidence, demonstrating a clear and consistent link between firefighting and the incidence of cancer,” Mr. Robinson said. “Every year there’s more data now that is coming out that is directly related to firefighting, in the types of cancers that we’re exposed to or that we’re developing.”

To aid policymakers, the federal government maintains a firefighter cancer registry that “collects health and occupational information to better understand the link between workplace exposures and cancer,” according to a spokeswoman with the U.S. Occupational Safety and Health Administration.

“Over time and with broad participation, the data will be used to better understand the types of cancer among firefighters; the prevalence of cancer risk factors and healthy behaviors among firefighters; and the relationship between firefighter cancer and workplace characteristics, exposures and practices.”

Adding cancers to a state’s presumption “often reflects the state of research at the time that the bill is written,” Mr. Robinson said. However, “you have the legislative process and budgetary considerations,” which create challenges for adding cancers to state presumptions, he said.

The success of bills that aim to amend the lists of cancers is mixed, as reported by the National Council on Compensation Insurance, the ratings agency that has long said gathering data on costs for such presumptions is complicated, as most municipalities are self-insured.

Those opposing firefighter presumptions for cancer have cited unknown costs and the fact that cancer is common among the general public. Expansions of presumptions have faced hurdles for the same reasons.

Brian Allen, Salt Lake City-based vice president of government affairs for Enlyte LLC, which provides workers compensation services and tracks legislation, said that while science takes the lead, “a lot of it is politics” with regard to which cancers pass muster and whether there’s a push by opponents to not expand presumptions. 

“If you have three or four firefighters who made a workers comp claim for a particular cancer that wasn’t under the presumption, then all of a sudden they’re going to add that to the list because obviously firefighters are getting it now,” he said, adding that cancer’s prevalence among the general population has long been a sticking point.

According to the American Cancer Society, 41.6% of men and 19% of women in the United States will get cancer in their lifetime, and cancer is the second most common cause of death, after heart disease. Meanwhile, the National Institute for Occupational Health and Safety says firefighters have a 9% higher risk of being diagnosed with cancer and a 14% higher risk of dying from cancer than the general U.S. population.

“Policymakers try to make sure that there’s a nexus between the cancer and the work that’s being done, and the exposures that they’re subjected to,” he said. “I don’t think they’re just adding (cancers) willy-nilly, but I do think it’s fueled by this desire to take care of first responders.”

 

 

 

 

Safety National Casualty Corp., a St. Louis-based specialty insurer, Monday announced executive leadership changes.

Nick Kriegel, former senior vice president of operations, was named executive vice president and chief innovation officer. He retains his titles of general counsel and secretary.

Curt Reno was named executive vice president and chief underwriting officer-insurance underwriting. Mr. Reno previously was senior vice president of underwriting.

Patrick Hiles, former vice president of workers compensation claims, was appointed corporate senior vice president of workers compensation claims. Todd McMillan, former vice president of liability claims, became corporate senior vice president of liability claims.

 

The Supreme Court of New Mexico on Monday ruled that a state law that limits the duration of benefits for subsequent mental impairments to the duration of benefits allowed for the underlying physical condition violates the equal protection clause of the state’s constitution.

The ruling in NO. S-1-SC-39225 stems from a case in which a teacher for the Aztec Municipal School District in San Juan County injured her knee, impairing her physically, which led to an undescribed secondary mental impairment. 

The woman received 150 weeks of permanent partial disability benefits for her knee injury. Because state law limited permanent disability benefits for a secondary mental injury to the maximum period allowable for the disability caused by the physical impairment, a workers compensation judge said she was entitled to 150 weeks of PPD for the mental injury.

On appeal the woman argued that limiting the duration of benefits for secondary mental injuries to the duration for physical injuries violates the equal protection clause of the state constitution, basing her claim on provisions in the Workers’ Compensation Act that establish different ways to determine the duration of benefits. 

The state Court of Appeals agreed, and the state’s highest court affirmed that decision. 

“Both mentally disabled workers and physically disabled workers are impaired in their capacities to perform work,” the Supreme Court said, adding that under state law “(a) mental disability …  affects workers in the same way as a compensable physical disability does by preventing them from earning a wage because of an on-the-job accident. The idea that mentally disabled workers may be entitled to recover less compensation than physically disabled workers is contrary to the purposes of the (Workers’ Compensation Act), which guide our equal protection analysis.”