Category Archives: Uncategorized

Does HR Have a Retention Strategy for Injured Employees?

Today’s post was shared by Workers Comp Gazette and comes from

Employee retention, employee engagement and talent management are the buzz words in the Human Resource Community. Every major publication predicts some level of talent shortage, yet every year employers allow trained talent to walk out their door after an occupational injury.

As the HR Professional managing workers compensation you must have a retention strategy for injured employees!

Historically, the workers’ compensation laws have not adequately supported the return to work process – it is much easier to offer injured employees a settlement than it is to provide them with the opportunity to return to gainful employment. The only problem with this scenario – the next employee you hire could be someone else’s settlement.

The key reason why employers do not make a valiant effort to retain injured employees – Fear! Fear of re-injury, fear of litigation or just fear of workers’ compensation.

All too often, an injured worker is not put back into the workforce for one of three reasons. First, employers do not feel that they can offer the employee a limited but meaningful job. Or second, you worry that the recovering employee, who is not up to “full speed”, many re-injure themselves and create additional injury claims. Third, you may not have the resources to systematically implement a proactive injury management program. And there’s also, the negative side of Injury Management.  Most employers do not want to deal…

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Insurance Carrier Subject to Lawsuit for Failing to Reimburse CMS

Today’s post was shared by Jon L Gelman and comes from

Workers’ Compensation insurance carriers have a duty to reimburse the Centers of Medicare and Medicaid Services for conditional medical payments. Failure to do so may result in a private cause of action by the injured worker or his representative for double damages. Once the lawsuit is filed the workers’ compensation insurance company cannot mitigate the double recovery penalty by making payment.

A private cause of action was permitted to go forward seeking double damages by an estate against a workers’ compensation insurance carrier for failing to reimburse CMS for conditional medical payments. The District Court, Charles R. Simpson, III , Senior District Judge, held that an issue of fact as to whether insurer did nothing to reimburse Medicare prior to estate’s commencement of private action precluded summary judgment.

The Court held that a genuine issue of material fact existed as to whether workers’ compensation insurer did nothing to appropriately reimburse Medicare for medical expenses that Medicare had paid for a work-related injury until estate of deceased employee brought private action under the Medicare Secondary Payer Act (MSPA), precluding summary judgment on whether estate was entitled to double recovery under the MSPA. 42 U.S.C.A. § 1395y(b)(3)(A).

"The private cause of action provision allows for damages “in an amount double the amount otherwise provided” – the purpose being to encourage beneficiaries to bring claims even if Medicare…

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Drug Overdose Deaths Hit ‘Alarming’ New Record in U.S., CDC Says

Today’s post was shared by WC CompNewsNetwork and comes from

Deaths from opioid drug overdoses have hit an all-time record in the U.S., rising 14 percent in just one year, the Centers for Disease Control and Prevention reported Friday.

More than 47,000 people died from these drug overdoses last year, the CDC reported.

"These findings indicate that the opioid overdose epidemic is worsening," the CDC’s Rose Rudd and colleagues wrote in their report.

"The increasing number of deaths from opioid overdose is alarming," said CDC Director Dr. Tom Frieden.

"The opioid epidemic is devastating American families and communities. To curb these trends and save lives, we must help prevent addiction and provide support and treatment to those who suffer from opioid use disorders," he added.

"This report also shows how important it is that law enforcement intensify efforts to reduce the availability of heroin, illegal fentanyl, and other illegal opioids."

The CDC is embroiled in a big fight over how to do this. It proposed new draft guidelines this month that include using every other possible approach to managing pain before giving someone an opioid such as fentanyl or oxycontin to control pain.

This wouldn’t apply to terminally ill cancer patients and the proposed guidelines would be voluntary. But the pushback has been hard from patients, doctors and the drug industry, as well as groups such as the U.S. Pain Foundation and the American Academy of Pain Management.

"Those of us with chronic disabling illnesses…

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America’s ‘Third Wave’ Of Asbestos Disease Upends Lives

Today’s post was shared by Linda Reinstein and comes from

Until the morning of Sept. 25, 2014, life was treating Kris Penny well. His flooring company had just secured its first big contract.

But that morning, Penny, of Clermont, Fla., was feeling lethargic. He pulled into a McDonald’s for a cup of orange juice. Seconds after he drank it, he doubled over in pain. "It felt like someone stabbed me in the stomach with a machete," he said. A co-worker drove him to the emergency room.

When he awoke in the hospital, his wife, Lori McNamara, was beside him, crying. "I go, ‘What’s the matter? I’m still here,’ " Penny said. The surgeon who’d opened up his abdomen had found it full of cancer — type to be determined. The doctor "pretty much told me to get my affairs in order, right there on the spot."

The pathology results came in four days later. Penny, 39, learned that he had peritoneal mesothelioma — a rare cancer of the lining of the abdomen almost always tied to asbestos exposure. He concluded, after consulting with a lawyer, that he’d inhaled microscopic asbestos fibers about a decade earlier while installing fiber-optic cable underground. He sued telecommunications giant AT&T.

Kris Penny in April (left), and in October.
Kris Penny in April (left), and in October.

The cable was housed in pipe made of asbestos cement. When workers maneuvered the cable into or out of the pipe, they generated dust. Penny says he didn’t know the dust contained asbestos, a claim AT&T disputes.

Physicians, scientists and union officials had people like him…

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Retro Groups, The Department of Labor and Industries, and Us

Today’s post comes from guest author Francesca Severini, from Causey Law Firm.

Most people who become involved in the workers’ compensation system due to injury or illness are only aware of a few common players: themselves, as the claimant; the Department of Labor & Industries (DLI) or self-insurer; their attending doctor; and, if necessary, a vocational counselor. However, in Washington State there is another major player working the sidelines in a big way.   An entity that, over the past few years, has taken on a much larger role in the administration of workers’ compensation claims:  the retro program.

The Retrospective Rating program was initiated by DLI as a “safety incentive program” and was designed with the objective of reducing workplace injuries and helping control claim costs. Somewhere along the way, the concept of the retro program functioning as a safety incentive program seems to have fallen to the wayside with the primary focus now being squarely on controlling claims costs. 

Preventing injuries? Sounds great! Wait, what was that…? Controlling losses? How does that work exactly? What is considered a loss? You mean the cost of a workers’ compensation claim? YES!

So, how does this system work exactly? And what ever happened to the whole safety idea? Let’s take a look. DLI’s selling point of their program is that any time an employer has a worker that gets injured, it costs the business money (this includes many factors including but not limited to: loss of production at the jobsite, potential for loss of business, hiring and training a new employee, etc.). Oh, and let’s not forget an increase in workers comp premiums.  Through the retro program, employers are given the opportunity to be rewarded for their safety program by turning their positive rating into a refund from DLI by preventing injuries and controlling losses. Preventing injuries? Sounds great! Wait, what was that…? Controlling losses? How does that work exactly? What is considered a loss? You mean the cost of a workers’ compensation claim? YES!

Let’s reward employers for safety. I’m all for it. Like most things of this nature, the devil is in the details and in this case, the details lie in the concept of keeping the cost of a claim lower.

A Retro Group’s annual coverage period lasts 12 months and can begin any calendar quarter. On or around 10 months after a coverage period ends, DLI  will review an employer or groups actual experience and will  calculate a “retrospective premium”  for that 12-month coverage year. If claim costs for the coverage year are below what is expected, the employer or group could earn a partial refund of the difference between the Retro premiums and the standard premiums. If claim costs are higher than the amount of standard premium paid, it could result in an employer being assessed and having to pay an additional amount. So the incentive lies in keeping the cost of the claim lower.

I can appreciate the spirit behind this initiative. Taken at face value it sounds too good to be true. Let’s reward employers for safety. I’m all for it. Like most things of this nature, the devil is in the details and in this case, the details lie in the concept of keeping the cost of a claim lower.  How is that done? By limiting the amount of money paid on a claim – counting every penny – and by getting the claim closed as quickly as possible – preferably within the 12 month coverage period.

Although induvial businesses can be part of the retro program, most commonly we see and deal with Retro Groups, businesses independent of the employer of injury but contracted by them to represent their financial interests in the claim. As a plaintiff firm specializing in workplace injuries, we have certainly not seen a decrease in client intakes since the initiation of these groups. Workers are still getting injured at a steady rate.  What we have seen is a substantial and alarming uptick in Retro Group involvement in the claims administration process to the point where we are actually getting business as a result of the Retro Groups interference in claims management.  It is not uncommon for me or my colleagues to review a claim file online and see that a Retro Group claims manager has protested nearly every favorable decision that an injured worker has received from DLI. From claim allowance to general medical allowance orders, time loss payments or treatment authorizations – there is typically a response from the Retro Group – even if the decision by DLI appears entirely appropriate.

A little known fact outside of the workers’ comp world is that many of the representatives of these groups are former employees of the Department of Labor and Industries, some previously in claims manager or claims unit supervisor roles. Their employment history at DLI provides them with a unique knowledge base of the DLI system  and its policies, the life cycle of a claim, as well as access to employees at the DLI level, many of whom they have a personal working relationship with already.  We have seen Retro Group claims managers bypass normal chain of command channels due to their relationships with individuals at DLI.

The Retro Group is NOT the employer. But they like to act like it. Just recently I had a Retro Group create a light duty, modified return to work position for my client without checking with the actual employer if such a position could even be offered. Their goal: to get time loss payments terminated, and keep claim costs down.  They created a light duty job specifically aligned with the restrictions outlined by the attending physician, which was medically approved. Time-loss was terminated and the claimant appeared for the first day of the job with the work restrictions in hand and was told that no such job existed within those restrictions. Our firm had previously tried to get the Retro Group to address our inquiries about the questionable modified job, but we were ignored. We requested that DLI intervene, and a vocational counselor was assigned. We insisted that a standalone, onsite job analysis be done of the modified job.  As we suspected, no such job existed and the claimant is now eligible for vocational retraining.

A website for a popular Retro Group advertises their results in order to attract business, boasting of more than 28 percent in premium refunds for one employer, 37 perfect for another and over $452 million in premium refunds for their clients over a 20 year span. The list of clients that they represent is alarming to me only in that I wonder if the employers who hire them  to represent their interests fully understand the scope and lengths that the Retro Groups go to in order to post such returns.  Do the employers have any idea what is happening to their employees who have filed claims?

The unwarranted roadblocks caused by aggressive Retro Group interference can cause severe instability for injured workers who are simply trying to access the benefits that they paid into through their employment in the hopes of returning to their former lives.

This brings me back to the injured worker and the issue of safety: the founding idea of this program and the concept that DLI actually has to create incentives for employers in order to keep work environments safe. Couldn’t the Department offer similar rewards to employers for simply limiting the amount of actual claims that are filed?   Instead, our current system rewards employers after the fact, after the injury has already happened, which places the emphasis on saving costs, nor preventing the injury in the first place. In the Retro Group’s effort to save their clients’ money, the result to the injured worker is that they are often cheated out of medical treatment and benefits, both monetary and vocational, that they are most likely entitled too, or in delays of these rightful benefits that are so extreme that the end result is catastrophic and detrimental to their health and livelihood.

The unwarranted roadblocks caused by aggressive Retro Group interference can cause severe instability for injured workers who are simply trying to access the benefits that they paid into through their employment in the hopes of returning to their former lives.  The result is that many face an inability to pay mortgages or rent on time, pay their bills, put food on the table, pay child support, or even put gas in a car to get to doctors’ appointments for treatment, causing a delay in recovery and potentially even more injury or worsening of their condition. The list goes on.   

Unfortunately, we do not simply see this type of thing happening in one or two cases where a Retro Group is involved. We see it in EVERY case where a Retro Group is involved. And we are only one law firm. And our client list is growing.


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“Ban the Box”: Good for People with Disabilities

Today’s post was shared by US Labor Department and comes from

a job application with the question

Over the past few years, a growing list of city, state and local governments; organizations; and private companies have come forward to support “Ban the Box.” It’s an initiative to persuade employers to remove the question “Have you been convicted?” from job applications and delay that inquiry until the final stages of the hiring process. The goal is for employers to make hiring decisions based on a candidate’s skills and qualifications, not their past transgressions. This month, President Obama took an historic step by directing the Office of Personnel Management to take action to ban the box in federal employment. As a result, OPM will modify its rules to delay inquiries into criminal history until later in the hiring process.

Encouraging employers to make this shift is critical. An estimated 70 million Americans — one in four adults — have a criminal record. Employment is a stabilizing factor in anyone’s life, providing a sense of structure and responsibility, and it’s strongly correlated with reduced recidivism for those reintegrating into the community following incarceration. Because employers often hesitate to hire an ex-offender, not having to check that box can make a massive difference.

Marsha Temple, of Los Angeles’ Integrated Recovery Network, knows well the stories of many of the individuals for whom the box is a major barrier. For more than 15 years, she has worked to improve mental health…

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Opting Out of Responsible

Today’s post was shared by WC CompNewsNetwork and comes from

A few weeks back I wrote about the most recent Opt Out news, a ProPublica/NPR article looking at the Federal Governments potential interference in workers’ comp with Opt Out being a final ingredient in the interventional stew. In that article I had a bit of fun with a public relations firm hired by ARAWC, the Association for Responsible Alternatives to Workers’ Compensation, which is a trade association of employers looking to expand Opt Out to states beyond Texas and Oklahoma. A statement from the firm, Jones Public Relations, referred to their client, ARAWC, as the “Association for Alternatives to Workers’ Compensation”.

They completely omitted the word “Responsible” in the statement. It was a gaffe noted here, then picked up and tweeted by numerous people, including Michael Grabell, author of the ProPublica article that started the entire conversation to begin with.

While we all had a good chuckle at what we thought to be an obvious mistake, the PR firm appeared to double down on that notion the very morning after my article was published. A representative claiming to be calling for ARAWC (I would later confirm via LinkedIn that the person worked for Jones PR) called my office and wanted to speak to me. They wanted to provide comment on the story. I was not in the office, as I was attending a conference in Raleigh, NC. The associate who relayed the message to me was laughing when doing so, as the person in the office who took the…

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A Toxic Work World

Today’s post was shared by Jon L Gelman and comes from

Credit Lilli Carré

FOR many Americans, life has become all competition all the time. Workers across the socioeconomic spectrum, from hotel housekeepers to surgeons, have stories about toiling 12- to 16-hour days (often without overtime pay) and experiencing anxiety attacks and exhaustion. Public health experts have begun talking about stress as an epidemic.

The people who can compete and succeed in this culture are an ever-narrower slice of American society: largely young people who are healthy, and wealthy enough not to have to care for family members. An individual company can of course favor these individuals, as health insurers once did, and then pass them off to other businesses when they become parents or need to tend to their own parents. But this model of winning at all costs reinforces a distinctive American pathology of not making room for caregiving. The result: We hemorrhage talent and hollow out our society.

To begin with, we are losing women. America has unlocked the talent of its women in a way that few nations can match; girls are outpacing boys in high schools, universities and graduate schools and are now entering the work force at higher salaries. But the ranks of those women still thin significantly as they rise toward the top, from more than 50 percent at entry level to 10 to 20 percent in senior management. Far too many discover that what was once a manageable and enjoyable work-family balance can no longer be sustained —…

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