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.




Job Stress Linked To: Weight Gain, Hypertension & Hormone Imbalance

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

The Centers for Disease Control and Prevention’s NIOSH Research Rounds – Volume 1, Issue 10, April 2016, is the link where the article featured in today’s blog post came from, via Jon Gelman’s Twitter feed. Mr. Gelman, of Jon L. Gelman, L.L.C., is a respected advocate for injured workers in New Jersey, and I thank him for sharing this resource.

When you think about your job, what are the words that come to mind? How do you describe your job and how it makes you feel?

The notion of stress means many different things in different contexts. Sustaining a work-related injury and navigating through a state’s workers’ compensation system is one kind of stress that our employees help clients with every day. As you can see below, another kind of stress has to do with job fit, and that “can lead to poor health and even injury.”

“Job stress refers to the harmful physical and emotional responses that occur when the requirements of the job do not match the capabilities, resources, or needs of the worker,” according to the article. “One form of stress under investigation at the National Institute for Occupational Safety and Health (NIOSH) is job strain, which occurs when high job demands combine with low job control.”

There are good links to different research abstracts that were featured in this article, so I’d encourage people to consider each one.

When it comes to job stress and job strain, I hope that employers consider how they can make such occupations as truck driving and nursing less challenging for workers. In addition, I hope that workers can, within the limits of their job descriptions and work schedules, digest the information and think about how to reduce job stress and job strain to both prevent injury and increase overall health.

Have a safe, productive week. Please contact an experienced workers’ compensation lawyer for specific questions, whether you or a loved one has been injured at work, regardless of how the injury occurred.


Gig Economy and Work Comp: Are Uber Drivers Covered?

If an Uber driver gets in an accident while working (or is beaten up by a passenger), are they entitled to worker’s compensation benefits?   

Take a look at this interesting article: Gig Economy Workers Injured on the Job Should Get Workers’ Comp Protections.  The author indicates that most Uber drivers are labeled as independent contractors, which (if a legitimate labeling) would preclude a claim for worker’s compensation.  Worker’s compensation policy allows the costs of a work injury to effectively be an employer’s cost of doing business.  Without worker’s compensation, the significant expenses of a work injury are borne by the worker directly, along with the medical provider and potentially the taxpayers (through Medicaid, Medicare, or Social Security Disability).

Disputes arise in many states, including Wisconsin, regarding whether an individual is an employee versus and independent contractor.  Wisconsin law requires a specific nine-part test to be deemed an “independent contractor” (these include whether the individual maintained their own office and equipment; had a federal ID number; receives compensation on a per job or bid basis; incurs the main expenses related to the service; and others).   This can be a difficult standard to meet, and the failure to meet the standard renders the individual an employee–with rights under the worker’s compensation law.  These include compensation for lost time benefits, permanent disability benefits, and medical treatment expenses.

At the current time, I’m unaware of any recent decisions addressing the issue of an Uber driver’s claim for worker’s compensation benefits….but it may come in short order on our state.  


Implant May Help Opioid Addicted Injured Workers

The Food and Drug Administration has approved an implant that may help those addicted to opioids. The new medication called Probuphine is inserted in four rods in the addicted. Experts indicate that the implants, which administer a constant low-level dose of medication, would stop opioid cravings for injured workers.  The implants are projected to last at least six months.

Given the scourge of opioid addiction following many serious worker’s compensation injuries, the FDA’s approval of the implants is welcome news for injured workers.

Comparing Outcomes for Injured Workers in Wisconsin

In an interstate study by WRCI, Wisconsin workers reported higher rates of return to work, lower rates of problems accessing medical providers, and higher rates of satisfaction with medical care.

The Workers’ Compensation Research Institute (WCRI) has studied interstate comparisons of key outcomes achieved by injured workers in Wisconsin and fourteen other states, part of a multi-year effort by WCRI to collect and examine data on the outcomes of medical care achieved by injured workers.

Wisconsin workers reported higher rates of return to work, lower rates of problems accessing medical providers, and higher rates of satisfaction with medical care. (Note: Wisconsin still maintains employee choice of doctors for post-injury care, despite some legislative efforts proposed for an employer-directed care, i.e., an employer panel of doctors.)

The study found the average rate of physical health and functioning was similar across all fifteen states. Wisconsin workers reported higher rates of return to work than workers in the other states. Ten percent of Wisconsin workers with more than a week off never returned to work within a year compared to fourteen percent and seventeen percent in most of the other states. On average Wisconsin workers had returned to work about ten weeks after the injury, which was in the middle range of the study states.

Six percent of injured workers reported earning “a lot less” at the time of their return to work compared with the time of injury, similar to the average in the other states studied.

Access to medical care. Wisconsin workers were less likely to report problems obtaining their medical services. Only 11% of injured workers in Wisconsin reported they had significant problems obtaining the services they needed, which was among the lowest in the study states (lower or somewhat lower than all the other states in the report). Additionally, almost 85% of Wisconsin workers said they were satisfied with their overall workers’ compensation medical care (with only 10% saying they were very dissatisfied). This dissatisfaction rate was the lowest of the study states.

WCRI compared the medical costs and outcomes in Wisconsin, trying to analyze tradeoffs between worker outcomes and medical costs. They expected to find that when medical costs for an injury were higher compared with other states, workers in the higher cost state should experience better outcomes for that injury. When WCRI compared the outcomes reported by injured workers and costs of medical care, it found Wisconsin medical costs per claim were among the highest of the study states, yet workers reported higher rates of substantial return to work, fewer problems obtaining desired services and providers, and higher satisfaction with overall medical care.

Compared with Wisconsin, injured workers in other states found similar rates of problems obtaining medical services but longer duration of time before return to work. The analysis did not aim to identify specific system features in workers’ compensation that impact outcomes, only highlighting how worker outcomes varied across the states. It did not examine whether differences in workers’ compensation policies explain different outcomes. Future WCRI studies may answer how worker outcomes differ across different system features – such as employer choice of physician, fee schedules, etc. (The other states in the study were Arkansas, Connecticut, Florida, Georgia, Indiana, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, North Carolina, Pennsylvania, Tennessee, and Virginia.)

Seven Seconds!

According to a recent article by CBS news, on average a worker is hurt in our country every seven seconds!  The article, based primarily on a report from a major worker’s compensation insurance company (Travelers), reveals that injuries happen in all professions and to all ages and types of workers.

Interestingly, according to the article (What Happens Every 7 Seconds: A Workplace Injury), about one-quarter of work injuries occur in an employee’s initial year of work.

WIth this volume of injuries across all industries, disputes are bound to occur over the existence of the injury, the extent of a worker’s disability, and whether permanent limitations are necessary.  Disputes also are endemic in a system primarily involving for-profit insurance companies (as well as rising medical costs).

The key is that every seven seconds a work injury happens–meaning every seven seconds a claim could be denied and attorney involvement required.     


Menards Agrees to Work Law Changes After Violations

Check out this article about the large Wisconsin home improvement retailer, Menards, and their previous disregard of workers’ rights: Menards Promises Changes After Violations of Federal Labor Laws.

As other stories have outlined,the company’s handbook allegedly threatened penalties for supervisors if they managed stores that unionized.  These tactics show the (sometimes extreme) lengths some employers may go at the expense of their workers.

Need Joint Replacement and on Medicare? Better Not Be Sick.

Having a lung ailment may make it more difficult to obtain coverage for joint replacement.

A new Medicare rule that took effect April 1, 2016 retools Medicare payments for hip and knee replacements.  Patients with serious medical conditions such as heart disease, obesity, diabetes, and lung ailments may not be able to find an orthopaedic surgeon willing to perform the joint replacement because hospitals face financial incentives to avoid patients with a high risk of complications. 

Hospitals will be given a “target price” for total joint replacements for the patient’s entire care from the hospital stay to outpatient rehabilitation through 90 days after discharge, according to a new rule from the Center for Medicare Services.  If the reimbursement is less than the target price, the hospital may receive an additional payment from Medicare as an incentive for good outcomes.  On the other hand, the hospital may be required to pay back part of their reimbursement that goes above the target.  The rule is intended to control costs on the $7 Billion Medicare spends for hospital care and for almost one-half million beneficiaries who receive a hip or knee replacement each year.  However, since Medicare will pay only one “bundled payment” for the patient’s entire care after total joint replacement surgery, the hospital will be accountable for the quality of care through the incentives and penalties.  The surgeon shares responsibility when a patient is re-admitted to the hospital and receives a “black mark” even when the re-admission has nothing to do with the joint replacement.  An unintended consequence of this payment model may be “cherry picking” of low risk patients.  Patients claiming a work-related connection to joint replacement surgery who have been denied by Medicare may face additional hurdles in obtaining their surgery. 

Stay tuned…