New Drug Test Case from the Georgia Court of Appeals

On June 1, 2018, the Georgia Court of Appeals published its decision in the case of Lingo v. Early County Gin, Inc., ___Ga. App. ___, 2018 Ga. App. LEXIS 328 (2018) and it may prove to be a significant decision for how drug testing will be done and viewed by the Georgia Courts in the case of an on the job injury. The Background: Mr. Lingo worked for a Cotton Ginning company as a "module feeder." His job was to direct drivers backing their large module trucks (filled with Cotton Bales) into a loading dock area where he would then assist them with unloading of the modules of cotton for the ginning (removal of the seeds from the cotton fiber) process. Mr. Lingo was injured on November 20, 2014 when one of the trucks crushed him against the loading docks. Lingo did not see the truck as he was facing the loading dock and reportedly did not hear the truck due to two factors: 1) the truck did not have a working back-up beeper; and 2) Lingo contends that he could not hear the truck over the sound of the cotton gin machinery running nearby. He was evacuated to a hospital in Dothan, Alabama where he was taken into surgery. While in surgery, a technician who was not permitted to enter the operating room, asked a nurse inside of the O.R. for a urine sample from Mr. Lingo. The nurse brought the sample to the technician where it was marked, bagged and sent for processing. The urine sample was positive for Marijuana metabolites. The Trial: There was conflicting evidence as to whether Lingo should have known of the presence of the truck as there was a dispute as to whether it was Lingo that directed the truck to the loading dock as part of his job. Lingo offered expert testimony in the form of a sound study regarding the noise in the area of the loading dock and from a forensic toxicologist regarding the drug test. The Sound Study Expert testified that the sound of the module truck was not distinguishable from the background noise of the cotton gin. The claimant also pointed out that the employer had offered ear plugs to protect Lingo's hearing but Lingo was not wearing them at the time. The claimant's other expert questioned whether the positive drug screen was evidence of intoxication pointing out that the marijuana metabolizes out of the blood within 30-90 minutes but will remain in the urine for days or even weeks after last consumed and so could not form the basis of a valid test. The Employer presented evidence from a co-worker who admitted to smoking marijuana with Lingo on a daily basis, who claimed that Lingo always kept a bag of marijuana on him and who claimed that Lingo "must have been really 'messed up' not to hear the truck's beeper which he argued Lingo should have heard if he was not texting on his phone." There was no evidence of marijuana or drug paraphernalia recovered from Lingo's clothing. The ALJ did not believe the co-employee, for reasons not stated in Court of Appeals opinion, but which undoubtedly included the fact that the involved vehicle did not have a working back up beeper as contended by the co-employee witness. The ALJ found the claim to be compensable and rejected the employer's drug test defense as "the lab technician did not observe the sample being taken and thre was no testimony or other evidence establishing this initial link in the chain of custody." [Let's put a pin in that and come back to it.] The Appeals: The Appellate Division of the State Board of Worker's Compensation reversed and found the drug test to be sufficiently reliable to permit the employer to rely on the presumption afforded to the employer and against compensability in the event of a positive drug screen. The Board also noted that the evidence of whether Lingo could have heard the truck was conflicting. The Claimant appealed to the Superior Court which affirmed based on the any evidence Rule (which provides that the Courts above the State Board's Appellate division must affirm the Board's ruling if there is ANY evidence to support that ruling. The Court of Appeals is also bound by the any evidence but noted that this does not apply to errors of law. The Ruling: The Court of Appeals was bothered by the chain of custody, noting that the Drug Free Workplace Act found at O.C.G.A. § 34-9-415 provides standards for the collection of bodily fluid samples for testing and that those standards are incorporated into the wilfull misconduct statute, O.C.G.A. § 34-9-17, upon which the employer relied in its defense. In pertinent part,O.C.G.A. § 34-9-415, provides: All specimen collection and testing under this Code section shall be performed in accordance with the following procedures: … (5) A specimen for a test may be taken or collected by any of the following persons: (A) A physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment; (B) A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Georgia Department of Community Health; (C) A qualified person certified or employed by a collection company. " That statute also provides for the chain of custody to be maintained. What troubled the Court of Appeals was that the person who took the urine sample from Lingo was never identified and their qualifications never compared with the list of required qualifications found within O.C.G.A. § 34-9-415. Remember that the technician did not go into the operating room and was handed a sample by a nurse who WAS in the operating room. Writing for the Court, Judge Ellington (Now Justice Ellington on the Georgia Supreme Court) found that "the person who actually drew the urine sample could have been a nurse's assistant, an intern, or some other hospital employee who did not meet the statutory criteria. In this case, the Employer's failure to establish that a person authorized under the Code Section to collect the sample is fatal to the Employer's ability to rely upon the rebuttable presumption in OCGA § 34-9-17 (b) (2)." The Court noted in a footnote to the decision "If, for example, the Employer in this case had identified everyone in the operating room as qualified to draw the sample, then it would be reasonable to assume that the person who drew the sample was qualified. In this case, though, there is no evidence establishing who was in the operating room." The Impact: 1) Urine Samples Advocates for injured workers in Georgia have long argued that a urine sample is simply not competent evidence of impairment given that the fat soluable molecules of marijuana metabolites will remain in the urine for days and weeks after last usage. Once again, the Georgia Courts have rejected that assertion. The statute is clear: bodily fluid samples (saliva, urine or blood) that test positive for illicit drugs or for prescribed drugs not taken in compliance with a prescription afford the employer with a presumption that the injury was caused by the intoxication or impairment of the injured worker. Such injuries remain NOT compensable. The Employee then has the obligation to put forth evidence to rebut the presumption. That evidence must show what ACTUALLY happened and not just what MAY have happened. Had the employer been given the presumption afforded by O.C.G.A. § 34-9-17, it is unlikely that the Sound Study expert would have made the difference. 2) Chain of Custody: In all cases the chain of custody is necessary for the employer to have benefit of the presumption against compensability. Ordinarily, this chain of custody is started in the physician office when the employee hands the sample to a nurse who seals the sample with an identifiable code on that seal which matches the coding on the document to which the employee and the physician office both affix their signatures. In Lingo, it was this initial step which was missing. Thereafter the lab which retrieves the sample signs the same document and the chain of custody continues through the initial testing and all the way through confirmation testing. The significance of the Lingo ruling is that the Court recognizes that in some LIMITED circumstance, obtaining the signature may not be possible but that the defect can be overcome by other evidence and other testimony. While having the signature on the dotted line is best, we as litigants don't always get our evidence in the best of circumstances.


"Skedsvold and White
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Can Workers' Compensation Show the Way?

Can Workers' Compensation Show the Way?
We've just emerged from a national orgy of high dollar commercials and finger pointing, otherwise known as the Presidential Election.  Now that the business of governance is actually back in the news, the predictable calls emerge for our politicians "to get along and to get something done for the American people." Oy vey.  Maybe the calls for an end to gridlock make sense in terms of a yearning for a more activist role in government.  If, however, the voter considers the message of his vote not as a request for more but instead as a restraining order, gridlock is exactly what you want. Volumes have been written about the schizophrenia of the American electorate and yet every two years, we're supposed to forget that we just don't agree amongst ourselves about what we want, what is proper and, heaven forfend, the question of whether we can afford it.   So, the questions remain: what are we to do and is there a better way to do it?
If we can't get along, can we at least leave each other alone long enough to get something done? If all answers must come from Washington, it would seem that the answer is no.  If, however, we take a clue from the state Workers' Compensation systems, and solve the problems in our own states then it won't be necessary for one solution that is as ill-fitting as a one size fits all snuggie.   We don't have uniformity over something that is as simple as the income benefit and yet, somehow, the sky isn't falling.  Furthermore, if State A enacts a policy that seems like a good idea but has disastrous consequences,not only does neighboring State B not have to partake in the misery but State B might even profit from State A's failure to rectify its legislative missteps.  The built in incentive towards flexibility, agility and actual problem-solving is enhanced when the dissatisfied constituency lives 5 miles away rather than 500 or 5000.  Never underestimate the power of negative feedback that our elected officials can feel when the constituent is providing that feedback in person rather than by phone call or email.  The possibilities are just delicious.
I call this radical concept "Federalism."  Maybe it's time we gave the 10th Amendment a fresh look.   Since no Government has ever figured out how to repeal the law of unintended consequences and since today's reform sews the seed of tomorrow's problem, would it not make sense to have as many possible laboratories testing whether this or that reform works better, whether one idea causes unforeseen problems or whether a given idea might, while protecting workers from injury, cost their employer so much that the business must close its doors.  Actions have consequences.  There is not a single person among us who wouldn't rather rubber-neck while passing by an accident rather than being involved in that accident. Of course we'd rather that the accident not happen but wishes do not make reality.



"Skedsvold, White & Wesley
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He's illegal, is he entitled to Comp?

Our post yesterday asked the question whether someone who is illegal/undocumented is entitled to workers compensation benefits.  The quick answer is that illegal/undocumented status, standing alone does nothing to render an injured worker ineligible for medical benefits.  So far so good.  But what about income benefits?  Again, standing alone, the illegal/undocumented status doesn't answer the question and, again, it depends. 

For the sake of this discussion, we will assume that our hypothetical worker sustained a compensable injury and that there are no wilfull misconduct, statute of limitations or other defenses to the claim as a whole.  The question comes down to the injured worker's physical capacity after the injury.  If the injured worker, illegal or otherwise, has no restrictions related to an on the job injury then that worker is not entitled to Temporary Total or Temporary Partial (sometimes known as Indemnity or income) benefits.  If, on the other hand, the injured worker is completely unable to work, then that injured worker, whether legal or illegal, is entitled to Temporary Total Disability Benefits.  The harder question is what does an employer owe to an injured worker who can work within a restricted duty capacity.  Even in this narrow area, IT DEPENDS.  Let us discuss a few permutations:

1) Employer KNOWINGLY hires illegal/undocumentated worker who subsequently has an injury:    The State Board of Workers' Compensation is a court of limited and statutory definition. That means that the SBWC is not a court of equity.  While the SBWC has no powers to mete out fairness, the Board and its judges do have a sense of karma and you can bet your lungs that any employer who hires illegals/undocumenteds in the hopes of saving money on a later worker's compensation claim is in for a most inhospitable reception.  Recommendation?  Don't try that.

2) Employer UNKNOWINGLY hires illegal/undocumented worker who subsequently has an injury.  If the employee is immediately released to return to work with restrictions then the employer has no obligation to immediately commence income benefits if the employer can provide employment suitable to the employee's restricted capacity.  But, if you read yesterday's post or have paid attention to the various iterations of Federal Immigration law, you know that since 1986 Employers may not knowingly hire illegal/undocumented workers.  How then, does this work?  By the way, the cynical among us are already thinking "hey, wait a minute, how is it that yesterday the employer didn't know and today he does?" It's a fair question with a couple of answers.  Either the employer did know (in which case see #1) or something tipped them off.   That something can be a medical report in which the status is mentioned, a  medical bill with N/A listed for the social security number or a notice of representation from an attorney who is prohibited from filing WC claims using a fraudulent social security number.  It does happen that an employer is tipped off after the fact but the Employer better be prepared to prove the sequence of events or that employer will find an unsympathetic ear on the bench.   If the employer really didn't know, and that employer can provide the employee with suitable accomodated duty employment BUT FOR the employee's illegal/undocumented status, then the Employer can successfully assert that the proximate cause of the injured worker's unemployed status is NOT the restrictions from his on the job injury but instead the employee's immigration status. 

The Georgia Court of Appeals considered a situation CLOSE to this in Earth First Grading & Builders Ins. Group/Ass'n Services, Inc. v. Gutierrez. 270 Ga.App. 328, 606 S.E.2d 332
(2004).  In that case though, the Employer tried to argue that the employee's illegal status rendered him ineligible for income benefits by virtue of IRCA of 1986.  You will recall that the Georgia Supreme Court already rejected that argument in the Continental Pet v. Palacias decision earlier in 2004.  The Employer argued though that Mr. Gutierrez was ineligble for the income benefits since his illegal status rendered him unable to "meaningfully accept" any employment.  That argument gets close to the heart of the matter but, unfortunately the Court declined to reach that issue as the Court pointed out that the Employer did not even know if the illegal status until long after the period for which Mr. Gutierrez was seeking benefits. 

The next closest decision on the question came 2 years later in the case of Martines v. Worley & Sons Const., 278 Ga.App. 26, 628 S.E.2d 113 (2006).  In Martines, the Employee sustained a compensable injury and income benefits were paid to him.  The Employer wanted to suspend his income benefits by returning him to work.  The Court's opinin recounts:  "His employer offered him a position as a delivery truck driver, a job falling within the restrictions set by his physician. He agreed to accept the job, and reported to work. Before allowing him to drive a company truck, however, his employer asked him to show a driver's license and documentation that he was in the country legally. At that time, he revealed that he could not produce a Georgia driver's license and could not obtain one because, as all parties concede, he entered this country illegally.  No evidence was presented that he is unable to drive for any physical or health-related reason or that he does not possess the ability to operate the vehicle."  The Employer followed the statute and the rules in tendering the job to the employee and the Employee could not produce the required documentation or driver's license. What then to do?  The Court cited its decision in Gutierrez, especially the "meaningfully accept" language and decided that Mr. Martines was not entitled to a continuation of his income benefits.  The Court held  "Under these circumstances, declaring illegal immigration status to be a basis for justified refusal of employment under OCGA § 34-9-240 would allow an employee already receiving benefits to refuse any proffered employment on the basis of his legal inability to perform the work. "

Notice here, that the Court gave neither side a get out of jail free card.  It did not leave the injured worker unprotected by holding him forever and ever ineligible for income benefits.  Neither did the Court provide a free pass to some unscrupulous employer in search of low cost and disposable employees. 

Bottom line:  Employer's do your homework and get the documentation for your employees BEFORE you hire them.  Get the required I-9 form and photo Identification and maintain the records.  If possible, use the E-Verify System.  Whatever you do, standardize your practice, keep the records and treat your employees fairly.  Another important tip not discussed , but assumed,  in these cases is to keep control of the medical treatment.  Georgia law provides for Employer control of medical if the Panel of Physicians is properly composed, properly posted and properly explained to the employees.  Had the Employers in Gutierrez or Martines not provided medical care to the workers, these employers might have had less opportunity to consider accomodated duty as the employee's choice of physician might very well have been less receptive to the concept. 

Next up:  What happens when Martines v. Worley & Sons collides with Maloney v. Gordon County Farms and its allowance for an injured worker to get back on income benefits if he is unable to find employment suitable to his restrictions. 


"Skedsvold, White & Wesley
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My Injured worker is an illegal alien. Do I have to pay him?

The title may sound harsh or deliberately charged so, stated another way, My injured worker is undocumented.  Do I have to pay him?    Well, as with most answers that you will get from an attorney, "it depends." 

First and foremost, ANY worker that you have in your employ that is injured in an accident arising out of an occurring in the course of his employ is entitled to medical treatment for his COMPENSABLE injuries.  That is not to say that claims of injury for which you have an otherwise viable defense are treated any differently.  On the contrary, Georgia law is perfectly clear on this point that based upon that person's presence and employment in Georgia, he is entitled to the equal protection of its laws.    That much was settled in 1993 in the case of Barge-Wagener Const. Co. v. Morales, 263 Ga. 190, 429 S.E.2d 671 (1993).  In that case, the Georgia Supreme Court invalidated a provision of the Georgia Workers' Compensation Act concerning payments made to dependents of workers who died as a result of compensable injuries in Georgia.  The statutory provision in question provided for lesser benefits to surviving dependents who did not reside in the United States.  Citing a decision from Florida, the Court held:

 

'[W]e do not perceive this case as hinging on the constitutional rights of the surviving dependents, but on the constitutional rights of the worker, now deceased.... This case concerns whether a worker who happens to have dependents residing out of the country is entitled to the same fruits of his or her labor as any other worker, including the same insurance benefits where the state has required those benefits to be provided. It thus is immaterial that petitioners happen to be nonresident aliens, since they have standing in this context as his beneficiaries.'

We should reach the same conclusion here in Georgia because, as was the case in Florida, the benefits in question were generated by the employee's labor and flowed through him to the intended beneficiaries, his dependents. We should recognize their standing to enforce the rights which Mr. Morales earned by his labor while resident in this country.

 

The bottom line is that the injured worker's presence in the United States that confers upon him  the right to enforce benefits for a compensable under Georgia Law.  Morales  extended standing to enforce rights conferred by Georgia Law to his surviving dependents, .  As well it should.   Employers should be encouraged and required to follow both Federal Immigration law and Georgia Workers' Compensation law by endeavoring to hire those eligible to work while at the same time protecting everyone they do hire.

In 2004, another run was made at the idea of disqualifying illegal/undocumented from the Georgia Workers' Compensation Act  in the case of Continental PET Technologies, Inc. v. Palacias, 269 Ga.App. 561, 604 S.E.2d 627 (2004).  In Palacias, the employer pointed to the requirements of the last great immigration solution, the Federal Immigration Reform and Control Act of 1986 (IRCA) in support of its position that the injury should not be covered.  Citing IRCA, the employer argued that Federal law prevented the knowing hire of illegal aliens/undocumented immigrants and prohibited the use of fraudulent documents to obtain employment.   The Employer argued that the terms of IRCA would preempt state law and thus render Ms. Palacias ineligible for employment and, by extension, workers' compensation benefits.  The Georgia Court of Appeals rejected the preemption challenge holding that IRCA was not intended to preempt state workers' compensation laws.    This holding was in line with decisions in other states such as Florida and Minnesota. 

The Employer's next argument was that Ms. Palacias perpetrated a fraud in presenting fake documents to get hired and that her fraud voided the employment contract from the beginning.  In essence the employer wanted the court to hold that Ms. Palacias was not an employee and, therefore not subject to coverage under the workers compensation act.  The Court rejected that argument holding that there was no causal connection between the misrepresentations and the injury. 

The Georgia Court rulings make sense when one considers not only the law, but also when one considers the implications of a different finding.  Were employers able to claim that compensation for medical treatment for an otherwise compensable injury can be denied with impunity if the injured worker happens to be illegal/undocumented, the incentives would then be for the employer to hire such illegal/undocumented workers and to treat them as a disposable commodity.  The problem would then NOT be solved,  but magnified. 

What about INCOME benefits though?  More on that tomorrow....


"Skedsvold, White & Wesley
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The Limits of Workers Compensation

In a January 15, 2013 post on www.InsuranceJournal.com there is a cursory mention of proposed legislation in Connecticut that would require coverage for PTSD to help first responders.  The need for such legislation, was suggested by the Newtown Board of Police Commissioners to help those suffering physical and emotional trauma "as a consequence of their heroic efforts" on the job.  By implication, this suggests that the current law in Connecticut does not, for one reason or another already provide for necessary protection for psychiatric problems or disability occasioned by on the job exposures.   Before rushing headlong into legislation to cover this or that condition, I wonder if any thought is given as to WHY current law does not cover it or the implications of the change.

Please do not misunderstand, I do not know what Connecticut law is and have  no familiarity with it to offer any criticism of the current law or the wisdom of seeking to change it.  My point is a larger one:  workers' compensation is a blunt instrument and not one well-suited for tailor-made solutions while running from one high profile crisis to another.  It seems that legislators are genetically predisposed towards the mindset that "there should be a law."  Less thought is given though as to the implications or the expense when a few extra lines are added to the State Labor and Industrial Relations act.  

What, might you ask, is the harm in providing protection when the need is so clearly demonstrated?  Well, consider that psychiatric disability is so poorly understood that the legal system is ill equipped to handle it.  If two medical experts can look at the same MRI and come to two different conclusions, can we hope for certainty or objectivity when there is no picture, no diagnostic test that all can see to demonstrate that this person has it and that one doesn't?    I am in no way suggesting that PTSD is not real, that depression is not disabling or that on-the-job exposures might lead to them.  I only suggest that they are so poorly understood that a little legislative humility might be in order and that maybe, just maybe, the workers' compensation system is not the best forum or the only forum in which these policy judgments can be worked out. 

As a statutory system, workers' compensation is designed to be applied by the numbers, by the book.  Each State Constitution has as its foundational principle that all of its citizens must be given equal protection under the law.  Can we truly say that is happening when a police officer or EMT is given treatment for PTSD after this horrific event in Newtown, Connecticutt but an officer who responds to a domestic abuse call or child abuse investigation is not?   The statute in question here will undoubtedly include both going forward and probably for the good.  However, in the rush to get this bill passed, is the larger tapestry of the workers' compensation system considered?  Is any consideration given as to why the system did not include this in the past?  There might be some wisdom in the existing system that gets lost when a high profile event drives our emotions out in front of reason.  I do not mean to suggest that this is the case with the bill in question but I would hope that legislators are mindful of the concept.

Many of us remember the horrible days of 9/11/2001 and were all caught up in the emotional rollercoaster that started that morning.  The outpouring of support both public and private was the least that those of us not directly involved in rescue, recovery and later salvage operations could do.  Each of the workers involved in those events will carry the scars and the honor of having been there and having performed so selflessly in circumstances which most of us can scarcely imagine.  Like them, the first responders in Newtown, have the thanks of a grateful nation for what they had to endure.    The question remains though, is the workers' compensation system the only forum or the best forum to express that gratitude?   Is a police offer responding to a single shooting of an adult any less traumatized by the event?  If PTSD was not considered an appropriate stand-alone diagnosis and the basis of a compensable workers' compensation claim in the past, is it just the agony of seeing the slaughter of innocents that compels the change?  Remember, the legislative change will apply to all going forward and we need to understand that once this pandora's box is opened cannot thereafter be closed to others deserving or otherwise.  How long will it take before this PTSD is applied to a termination for cause or to an unpleasant interaction between co-employees in which the business played no part? 

In 1996 floodwaters wreaked havoc in Albany, Georgia.  As sometimes happens in low lying and flood prone areas, caskets from a local cemetary worked their way up and into the floodwaters.  An employee of the city was given the unenviable task of retrieving the caskets and the bodies from the waters.  The effort left this poor man scarred.  His workers' compensation claim was, however, denied since he suffered no physical injury and instead soley psychic trauma.  Georgia's statutes do not provide for purely psychic trauma claims but do allow for psychiatric treatment when a physical injury is involved.    The Georgia Supreme Court declined to create a pure psychic trauma category even in this example when problems would be understandable, opting instead to leave that to the legislature.  Was the Court harsh?  Was the Workers' Compensation system or the Employer and its Insurer uncaring simply because the workers compensation system was not the proper forum?  What was lacking from the Supreme Court's opinion was the rest of the story.  As often happens, the full picture provides not only context but explanation and in some cases justification.  The Trial Judge in this case explained that psychiatric treatment was offered to this worker but as part of the Employer's Employee Assistance Program, outside of the Workers' Compensation system.  Was the employer less compassionate by providing that treatment outside of a system designed more for physical injuries and their treatment?  Sometimes, there is no appropriate remedy.  Sometimes the remedy lies elsewhere.   Workers' Compensation should not be the repository for every potential encounter, every potential injury.  It is still a statutory system that, if held to the language of the statute can be used to effecuate the purposes of the act but only if the respective legislatures act with deliberation, after due consideration of the practical consequences of their actions. 


"Skedsvold & White
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Fictional Accident DENIED

In our discussions of New Accident versus Change of condition, we have tried to distinguish between the two. A recent case from the Georgia Court of Appeals highlights the fact that the concept of a "new accident" needs some attention as well. In JMJ Plumbing v. Cudihy (Ga. Ct. App. A12A1348, 11/30/2012) the Court was presented with an appeal by an Employer that won its case at the State Board's Appellate Division only to have the Superior Court reverse. First, anytime you have that situation arise, the Superior Court's ruling is in jeopardy if there is ANY evidence to support the finding of the SBWC. In short, all the Superior Court can do is to see if the correct legal standard was applied. If so, the award should be affirmed even if the Superior Court disagrees with the facts. As to the issues in Mr. Cudihy's claims, the Court of Appeals found that the SBWC had applied the correct standard and reversed the Superior Court. Claim denied. So, now that you know the result, what happened? Mr. Cudihy was a plumber who on 9/2/2008 alleged that he felt a sharp pain in his back while digging in the course of his employ. The problem is that he did not report the injury to his employer but did seek medical treatment after work. During that visit, though, he mentioned that he developed back pain over the weekend and experienced pain that morning while digging. His next medical treatment was in 1/2009 and then in 3/2009 when he sought chiropractic care. He saw an orthopedist in May and June 2009 and was told that he should work at light duty and that surgery might be warranted. The injury was first reported to his employer on 6/25/2009. He worked light duty until terminated for reasons unrelated to his injury (the Court does not elaborate and there is apparently no dispute that the termination was in fact unrelated) in August 2009. Mr. Cudihy applied for WC benefits and alleged a 6/25/2009 injury date. The Administrative Law Judge found that the claimant had sustained in injury on 9/2/08 and a new accident on 6/25/09 and was entitled to TTD and medical treatment. The new accident date of 6/25/09 was supposely based upon the 1978 decision of the Court of Appeals in Central State Hospital v. James and relates to the situation in which the employee is injured but "continues to work until he is forced to cease work because of his gradullay worsening condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury..." On Appeal to the Appellate Division of the SBWC, the AD found that Mr. Cudihy did not establish the first accident (9/2/2008) thus making the fictional new injury inapplicable. Remember, Cudihy failed to give notice of the injury within 30 days of 9/2/2008. Further, since 6/25/2009 was not a date of disability, the very terms of the "new accident" as expressed by Central State v. James was inapplicable. Mr. Cudihy only reported the original injury (9/2/2008) on that date. He did not lose time, he continued to work until terminated for other reasons. When he left work, he was admittedly capable of continuing to work. So why did the Superior Court reverse? After all, it seems like the SBWC applied the law correctly. The Superior Court looked to the claimant's continued employment and worsening condition, calling it a cumulative trauma condition that amounted to a gradual injury. The problem with this analysis is that even Mr. Cudihy admitted that he did not sustain any injury on 6/25/2009, he did not become disabled on 6/25/2009 and continued working until he was fired on 8/12/2009 and even after that admits he was capable of continuing to work. The Court of Appeals also noted that there was some evidence that Mr. Cudihy's condition on the date of the original hearing was the same as it was on 9/2/2008 so a finding of worsening was not demanded. Bottom line for Mr. Cudihy and his employer, all claims were denied. Practice Pointers: 1) For the injured worker - report your injury, treat with authorized doctors and work with your employer about accomodated duty 2) For the Employer - don't count on the fact that ACTUAL notice will be required to carry the day. Constructive notice "the employer should have known" will often suffice and is most often available (i.e. the supervisor knew the claimant was in pain, saw indications of pain behavior, claimant missed time for doctor appts, cl was not able to perform as well as had previously been the case) 3) For the Insurer - know the facts about the original injury and make sure that the employee's statements (most helpful if part of a recorded statement) comport with the medical evidence. Interview and be appropriately skeptical of anything told to you, even by the Employer and witnesses, to make sure that these statements are consistent with the record in front of you.


"Skedsvold & White
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New Case - Change of condition v. New Accident

The difficult task of discerning between what facts constitute a change of condition and those which show a new accident were once again the subject of a Georgia Court of Appeals decision issued yesterday 11/13/12.  The Court handed down its opinion in the case of Evergreen Packaging, Inc et al. v. Prather (Ga Ct App A12a1067).  Briefly, the facts are that Larry Prather was working as a warehouseman and forklift driver for Evergreen when he injured his back in 2002.  As a result of that injury, he was paid 5 weeks of income benefits, received medical treatment and returned to work.  In 2005-2006, Prather applied for and was granted a change in his job duties.  His new job as "plate maker"(he made plates for Evergreen's printing presses and cleaned them after the process was completed) required him to gather materials, cut those materials and to handle the plates which weighed between 15-20# for a set of 4 plates.   The process also required him to place the plates in numbered bins which required bending over all the way to the floor and reaching up over his head.  In addition, the new position also required lifting boxes weighing between 30-50#.  Prather admitted that the lifting required in new position was lighter than the lifting requirements in his position as a warehouseman. 

According to Prather, after his return to work from the initial injury, his back (which bothered him from day one) got progressivley worse.  Prather was unable to point to any specific incident where he actually felt that he hurt himself.  From his return to work after the 2002 unjury until 2010, he missed one week of work due to back problems.

During his last two years of employment, Evergreen purchased a new plate table for Prather to use.  This new table required him to bend over farther in performing his duties and this activity caused his back condition to worsen.  Over the last few months of his employment, he noticed new symptoms  (a numbing feeling down into his foot).  Prather south treatment on 2/3/10 with a chiropractor and on 3/1/10 stopped working at the recommendation of another chiropractor.  A new MRI was obtained on 3/15/10 which, when compared with the previous MRI in 2005 showed an increase in the extent of disc extrusion and an increase in stenosis.  An annular tear was also noted as a new finding on the 2010 report. 

With no specific injury noted and with work lifting requirements in the new employment being lighter than in his old job, it would seem that this case was tailor-made for a change of condition finding.  Readers of this blog will recall previous posts in which the case of Central State Hospital v. James,  147 Ga. App 308, 248 SE 2d 678 (1978) was discussed (probably at too much length).  The James court explained the possible permutations in a given factual scenario as the basis for the analyzing whether a change of condition or a new accident should be found.   Evergreen argued that the first scenario discussed in James was directly applicable and required the change of condtion finding since the condition deteriorated, there was no specific incident or new injury precipitating that decline and because the job duties were lighter.  They argued that, as a matter of law, these facts required a finding of a change of condition.

The Court in Prather, however, decided that the ALJ, the SBWC's Appellate Division and the Superior Court, had it right in deciding that the claimant aggravated his condition, a fictional new injury, as a consequence of his job duties. The Court pointed to the 1980 decision in Certain v. USF&G, 153 Ga App 571, 266, SE 2d 263(1980) which provided that "ordinarily the distinguishing feature which will characterize the disability as either a change of condition or new accident is the intervention of new circumstances."  Since in Mr. Prather's case the SBWC had found such new circumstances in the new plate table that Prather used which required him to bend over farther in performing his duties and that this activity caused his back condition to worsen.  With this finding, there was evidence to support the award of the SBWC (finding a new injury) and thus, the Superior Court and the Court of Appeals were duty-bound to affirm it.

What were pivotal pieces of evidence?   1) new findings on the MRI - in particular the annular tear 2) the Plate table which required more bending over and which made the condition worse.  Other items of concern, which Evergreen and its attorneys could do precious little to combat were: a) the change of condition statute of limitations had run on the old claim so if Mr. Prather were provided medical under the old claim, he would have no income during the convalescence and b) the claimant and the medical providers were pushing for the new accident.   Motivation of the employee is an important consideration when analyzing these claims.  Getting the employee on your side early on may help sway the medical providers as well.  This is critical, especially when there is a new carrier or new employer involved.




"Skedsvold & White
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My Employee got an attorney for his work comp claim! Why?

My Employee got an attorney!  Why? 

 http://youtu.be/oUulWBv3Pro


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What in heaven's name is a Medicare Set Aside Account?

Think a  comp claim is expensive?  Like most things, wait till the Federal government is involved.  That's when the expense is really out of control.  But you say, WC is a state program, why is the Federal Government involved?  Here's how it happens: When your employee has a serious injury and is out of work for an extended period of time, he can pick up the phone and call one of those oh so helpful TV lawfirms advertising for Social Security Disability claims (SSDIB).  The application for SSDIB attempts to prove that the employee is unable to return to his previous work or to work that might be available to him in substantial numbers in the national economy.  The decision will include an assessment of whether your employee's physical capacity (work restrictions and the employee's other health issues), education and transferable skills and whether given those factors, there are enough jobs out there that the employee could perform if he was looking for work.  Oh, by the way, you don't get a seat at the table when these issues are decided.  You don't even get notice of the hearing or even an opportunity to be heard over whether the employee is in fact capable of returning to work. 

Once on SSDIB, the employee eventually becomes eligible for Medicare Coverage based on that disability.  This is where the Medicare Set Aside Account comes in.   The taxpayers among us would all agree that we do not want our taxes paying for someone else's fault or someone else's responsibility.  That is the basic idea behind the Medicare Secondary Payor Act.  This act states that Medicare is not the primary payor for medical expenses related to a private risk.  This includes not only WC claims but also auto accidents as well as many other incidents for which a private person or business might be responsible.  The basic idea is that the Federal Government and the taxpaying public will not be picking up the tab and that, in this example, the Employer/Insurer need to take Medicare's interests into account when settling a WC claim. The Medicare set-aside account (MSA) is the vehicle whereby Medicare's interests are protected. 

So what's in a Medicare Set Aside Account.  The easiest answer is that the MSA is made up of the best guess as to what the medical expense is going to be for the covered condition for the rest of that employee's life.  For this reason it's always important for the carrier to cover ONLY those conditions related to the injury and to jealously guard against attempts to include unrelated conditions.  For example, your employee has a shoulder injury and then begins to complain of neck pain.  When the medical coding for that claim (the Diagnostic Related Group) includes not just that DRG for the shoulder but the DRG codes for the neck as well, you may just have increased exponentially the cost of the claim as the medical conditions covered by the MSA will have to include the medical care, diagnostic evaluations and worst of all the prescriptions necessary for treatment of that condition.  Unrelated condition should be very clearly denied and if necessary litigated.  Unfortunately, the calculation of how much money must be placed in the MSA is little more than a multiplication of prior expense by the life expectancy of the injured worker.  If the medications are all name brand and expensive, then the cost of the prescription medications in that MSA may very well make the cost of the MSA such that settlement is not possible. 

In most WC claims, the Federal Government will never become involved.  If you play your cards right, then doing the right thing, protecting your employees and protecting your business will make sure that your entanglements with the Federal Government are kept to  minimum.   In future posts, we'll talk about what steps you can take to try and make sure that you don't need an MSA or, if you do, ways to keep the cost of MSA's down
"Skedsvold & White
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My premiums cost what?!

Although it may seem as if your insurance carrier pulled your premium calculation out of thin air (or someplace else you might choose to describe on your own time - Hey, this is a professional post) there actually is a basis for the bill that your carrier sends you.  Your premium is a factor of 3 things:   1) the classification of the jobs performed in your business (the riskier the job, the higher the premium) 2) the amount of your payroll and 3) the experience modifier.    Consider the experience modifier as the "mileage you've put on your car."  When you buy a car, you want to know what the year is but you also want to know the mileage.  You cannot change the classification of your workers without changing your business. You can control your payroll but you may limit your income.  Viewed this way, WC is a controllable expense but only if you treat workers compensation as your business issue and not as an insurance issue.   If your first response is to say "Oh well, that's why I have insurance" rather than "Okay, let's deal with this and see how we can prevent it next time" then that's your problem.  You are allowing events to control you rather than controlling events, present and future.

In her excellent post on this subject, http://blog.reduceyourworkerscomp.com/2012/07/how-to-improve-your-experience-modification-factor-and-reduce-your-workers-comp-costs/#axzz20nIBJotE, Rebecca Shafer explains how the experience modifier is calculated and how it's used to gauge the risk to the carrier of insuring you and your employees.   Unlike standard insurance such as automobile coverage or a business owners policy in which the risk is easier to calculate, the WC policy doesn't just cover a "once and done" event since the coverage applies to the date of the accident and covers that employee for the statutory benefits that accompany that date of accident.  So when the injury occurs, your carrier covers that risk until the claim is closed.  The expense of that claim will follow you and your business for the three year rolling average that is used to calculate your premium.  For this reason, it is usually to your advantage to control the cost of the claim through every means necessary including:  controlling the medical through the lawful means provided you by statute, returning your employees to work (this controls not just income benefits but has a very real effect on the medical treatment down the road) and settlement, if the outcome of the settlement can be shown to be a cost savings from the overall exposure of the claim. 

While the cost of an individual claim is one factor, another and possibly more important factor is the frequency of your claims.  Rebecca reports that 5 claims costing $5000 each will ding your premium calculation more than a single claim worth $50,000.  As your loss ratio is compared with other businesses in your industry, a higher ratio of claims is similar to what your auto insurance carrier thinks when you have a bunch of small fender benders.  Sooner or later, they start looking at you as a bad risk.  For this reason, SAFETY FIRST isn't just a bumper sticker.  It should be your first order of business.  Your employees need to know this.  You should encourage communication from your employees as to what they see as problems and what they think is the solution. When an employee notices a  problem you should address the problem immediately and be visible in the corrective action as well as your appreciation for this employee taking the initiative to prevent the injury.  Neither the front office or the supervisory staff should EVER discourge employees from bringing these issues to your attention and should never doubt that you will take necessary and appropriate action to keep them safe. 
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The Grand Compromise - Premise undercut?

In my post of 7/30/12, I discussed the interesting article written by attorney John Stahl, entitled "Many Work-related Disabilities Go Uncompensated: Compromising "The Great Compromise." The article can be found at http://www.lexisnexis.com/community/workerscompensationlaw/blogs/workerscompensationlawblog/archive/2012/06/18/many-work-related-disabilities-go-uncompensated-compromising-the-great-compromise.aspx.  Mr. Stahl's article discussed the possible reasons for underreporting of claims discussed in the Journal of Occupational medicine's June 2012 edition.  Specifically the authors noted: 

The number of claims for workers’ compensation has
been declining. The decline in the frequency of temporary
total disability claims mirrors the drop in reported frequency
of injuries in the BLS data ... The capture–recapture studies cited above,
as well as the recent GAO study that focused on underreporting of
OSHA data [GAO, 2009], suggest, however, that there
may be substantial underreporting in all of these systems.

On July 13, 2012, however, this article appeared on WorkcompWire discussing the latest data on WC claims released by the National Counsel on Compensation Insurance (NCCI), http://www.workcompwire.com/2012/07/ncci-releases-2012-claims-frequency-report/?goback=%2Egde_80469_member_134280169.  In contrast to the Journal of Occupational Medicine article, the NCCI found: 

2011 Overall Trends

• Prior to the 2010 uptick of 3%, claim frequency had been declining at an average rate of more than 4% per year since 1990. According to preliminary estimates, lost-time claim frequency once again declined in 2011 by 1%.
• For indemnity and medical combined, the average cost per lost-time claim increased 3.2% in 2011.

Frequency Per Payroll vs. Per Premium

• Claim frequency measured relative to payroll (frequency per payroll) varies far more by class than frequency measured relative to premium (frequency per premium).
• Hence, changes in industry mix typically have a greater impact on frequency per payroll than on frequency per premium measures.
• The decline in the construction industry resulting from the recession put downward pressure on frequency per payroll and upward pressure on frequency per premium.

As the data examined by Mr. Stahl and by Ms. Spieler and Professor Burton preceded the release of the NCCI data, this likely reflects only the differece in the reporting available at the time.  The NCCI report reflects though:  "The Great Recession of 2007–2009 was the most serious and long lasting economic contraction since the Great Depression. The recession and its tepid recovery had a considerable influence on workers compensation claim frequency." 

As discussed in my post of 7/30/12, to the extent that there was a drop in the number of claims expected, "might not the explanation lie in a slower economy with less people working?"  
Perhaps I do not understand the statistical information examined.  I will confess to an aversion to all things mathematical.  If the frequency of claims is on the rise, most especially in a tight labor market, where is the dearth of claims "expected to have been filed" as the basis of the idea that workers are being discouraged from filing/pursuing claims or somehow are unable to navigate the system. 

If the NCCI data is the final word then yes, there appears to have been a decrease in claim frequency leading up to 1997.  I wonder though how that decrease might correlate with expanded employment and with the change in the work requirements of the welfare program known as the Aid to Families with Dependent Children (AFDC).  Having opened up that can of worms, maybe it's time for reflection and not supposition on my part.
"Skedsvold & White
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Representing the Employer in Workers' Compensation - Video Interview, part 2

2nd segment of video interview with Bernie Woolford of Buckingham Business Review

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The Grand Compromise - Is the System falling apart?

Workers' Compensation has been called the grand compromise due to the necessary accommodations that needed to be made in in the early part of the 20th century in order to institute a program that both protected workers and the businesses that employed them. To be sure, protecting workers’ medical and financial needs whilst not strangling legitimate business needs was, and still is difficult. The injured worker had to give up the right to sue in tort while the employer was required to absolve his employee of negligence which may have led to the injury and to guarantee timely provision of appropriate benefits mandated by statute. Properly considered most workers' compensation systems are the progeny of these early efforts. Changes to the various systems, made through legislative and administrative modifications reflect not only priorities but also realities. Witness the exodus of business from California to other states and consider if the workers compensation doesn't have a very real effect on you, your business, your employees and your political realities.
Recently, attorney John Stahl, wrote a thought provoking article entitled "Many Work-related Disabilities Go Uncompensated: Compromising "The Great Compromise." The article can be found at http://www.lexisnexis.com/community/workerscompensationlaw/blogs/workerscompensationlawblog/archive/2012/06/18/many-work-related-disabilities-go-uncompensated-compromising-the-great-compromise.aspx.  This article, published in the LexisNexis Workers' Compensation Law Community and on the Workers Compensation Law Blog, argues as the title suggests that many injured workers are not receiving payments under their states' workers compensation systems and the calls for reform necessitated by this failure. Apparently, Mr. Stahl's article and the OSHA study that prompted it, is that the number of workers "who sustained a work related harm greatly exceeded the population of those workers who pursued workers' compensation benefits." In support of this proposition, Mr. Stahl states "research revealed that many employees who experienced arguably compensable harm did not pursue workers' compensation benefits." Quoting from an article written in the June 2012 edition of the American Journal of Industrial Medicine entitled "The Lack of Correspondence Between the Work-Related Disability and Receipt of Workers' Compensation Benefits" by Emily A. Spieler, JD and John F. Burton, LLB, PHD (which can be found at http://onlinelibrary.wiley.com/doi/10.1002/ajim.21034/pdf  ) the authors state that "studies consistently demonstrate that workers' compensation claims actually filed are substantially lower than the number of legitimate claims that [sic] would have been expected." Leaving aside what methodology might have been used to divine the number of claims that "would have been expected" might not the explanation lie in a slower economy with less people working?

The Industrial Medicine Article states:

The number of claims for workers’ compensation has

            been declining. The decline in the frequency of temporary
            total disability claims mirrors the drop in reported frequency
            of injuries in the BLS data ... The capture–recapture studies cited above,
            as well as the recent GAO study that focused on underreporting of
            OSHA data [GAO, 2009], suggest, however, that there
            may be substantial underreporting in all of these systems.

The Industrial Medicine Article goes on to discuss reasons why workers don't always receive workers' compensation benefits including:

• Exclusions from WC programs based on the status of the worker (i.e. there are some occupations that are not covered)
• Many workers who might be eligible for benefits do not file claim
• Barriers to benefits in Claims that are filed including
• Proof of causation including pre-existing conditions and occupational diseases
• Procedural Hurdles

It is within this context that Mr. Stahl suggests that the Grand Compromise is unraveling.  He states, “in simpler term, even fewer workers than predicted exert their workers compensation rights.”  Mr. Stahl suggests that the reasons for not reporting compensable harm include:

        ·        Unawarenss of workers’ compensation rights

      ·        Wish to avoid perceived complexity of the workers compensation system

·        Fear of employment termination, deportation or other retaliation

What is striking from both the article from the Journal of Industrial Medicine and from Mr. Stahl’s use of that article is that perception is piled on top of supposition, both of which are premised on the assumption of a particular number of claims that “would have been expected." If the call for systemic reforms made by Mr. Stahl are warranted perhaps we should expect more than supposition about the number of claims that would be expected to have been levied.    Addressing his points in order:

·        Knowledge (awareness) of workers’ compensation rights – anyone who has missed work and stayed home with a case of the flu or for other reasons has seen the ubiquity of commercial advertisements for attorneys and medical providers offering to rescue the beleaguered injured worker from the clutches of the Insurance Company who after all has legions of attorneys to advise them.  After the promise of cash settlements, the primary selling point for these vendors, especially the attorneys, is the knowledge of the system that they can bring to bear on behalf of the injured worker.  With easy access to industry knowledge from a simple google search, a wealth of information is available to the injured worker with a smartphone, an internet connection or television.  Are there that many individuals lacking knowledge of the system?  Yes.  Are there individuals without access to the means to gain that knowledge? The answer to this question is certainly less than clear.  Does this present evidence that the entire system is beyond repair, hardly.

·        Wish to avoid the perceived complexity of the workers compensation system – Is the workers compensation system complex? Undoubtedly.  For that matter, so is internet banking, email and any number of modern conveniences with which a user can become familiar by experience.  The problem presented in the workers’ compensation context is that most workers, most businesses go about their daily lives never needing to know about the WC system in which they exist.  Except for the frequent filer, the system is complex and opaque.  This fact applies to both the injured worker and their employer.  Most advocates for the injured worker present the Employer/Insurer as a monolithic enterprise girded for battle against the beleaguered worker when the truth is closer to the fact that the Employer generally has no more knowledge of what to do with an injured worker than does the injured worker himself.  Thus it has always been and thus it will likely forever be.  However, the easy availability of online information  for answers to such questions should tend to level the playing field over time.  To the extent though that the employer fails in its duty to shepherd its employees through the complex system, it is the attorney for the injured worker who picks up the slack, often to the detriment of that employer.  The result is a better educated employee (by and through the instruction of his attorney) and employer (by virtue of the adage that “experience is what you get,  when you don’t get what you want.”)  Does then, the perceived complexity of the system require dramatic reforms, not in my experience. 

 

·        Fear of employment termination, deportation or other retaliation – any employer that terminates on the basis of a legitimate claim very soon finds itself at cross purposes with its carrier, the State Board of Workers’ Compensation or the Equal Employment Opportunity system.  There will always be fear of retaliation in the minds of an injured worker.  The relevant question is whether the Employer has done anything to foster that fear.  An employer that has, is likely a frequent consumer of the of the Workers’ Compensation system and one that may if they are not careful, develop a reputation not just among the trial lawyers bar but also with the State Board.   That is neither a happy nor comfortable place to be.   The employer though, that treats its obligations seriously, protects its workers from the effects of legitimate injuries can burnish its reputation by living up to its obligations, providing medical treatment and returning the employee to gainful employment as soon as is practicable.  The process though is adversarial, despite its original intention and design, and will inevitably produce disagreements.  As for the fear of deportation, the workers compensation system is ill-suited to resolve the emotional and politically charged issues with which our current political class is unable to contend.  Most workers’ compensation systems provide for the protection of the injured worker regardless of his status.  That worker who is injured and is discovered to be illegal/undocumented/not lawfully present, still receives (in most every system) necessary medical care for his injuries.  The treatment of wage replacement benefits will differ but, in Georgia at least, the State Board of Workers Compensation takes  a dim view of the Employer who knowingly hires illegals and then attempts to take the position that the worker should not be paid income benefits based on his status.  The Employer who operates with “clean hands” and who does not act deliberately to hire non-qualifying employees should not be penalized when they discover that the employee is illegal and cannot now be brought back to work because such an act would require violation of Federal immigration law, enforced or otherwise.  In short, the parties are capable of producing evidence to be used at trial to sort out the innocent employees and innocent employers from those trying to game the system to their own advantage.  As long as due process is the order of the day, this particular complaint does not present the abject need for fundamental reform. 

The one area in which Mr. Stahl presents viable reason for a decrease in instances of reporting is in relation to the current labor market.  He states:  “Retaliation is of particular concern because it reflects an employee’s generally subservient position in employment relationships. Further, especially in a tough job market, actual and anticipated retaliation has prevented many injured workers from pursuing workers’ compensation claims.”  In any relationship, the advantage may be inequitably distributed. In the current labor market, jobs are relatively more scarce than at times in the past.  Such a reality causes workers cling more closely to those positions than might be the case in times of full employment.   With a lower unemployment rate,  the worker may very well be in a “seller’s market” and can more freely choose his course of action.  Does recognition of this reality portend the end of the Grand Compromise? Not likely.   What Mr. Stahl and the authors of the Industrial Medicine Article are seeing is that there are some injuries which in times of full employment might be reported and treated but in times of scarcity result in a cost-benefit analysis as to whether a minor strain need be quietly nursed (suffered if you will) with the employee continuing at work.  The relevant inquiry here is not whether the employee on his own decides that the hassle of a claim is not worth the potential risk but whether the employer has taken action to dissuade its employees from filing claims.  As an attorney representing employers and insurers, I have seen numerous examples of good people, trying to run a business with no more idea of how to handle a workers compensation claim than the individuals they employ.  The mythical example of the evil employer, with Machiavellian efficiency and design, taking advantage of the unsuspecting employee is truly the exception and not the rule.  

After discussing the crisis in reporting rates, Mr. Stahl (as well as Ms. Spieler and Professor Burton)  turns to current trends in workers compensation and the difficulty that some injured workers experience in reporting and proving their claims.  Specifically, Mr. Stahl states: 

Even among claimants who sought benefits, higher costs of medical treatment have contributed to a 20-year trend toward restricting workers’ compensation coverage. Difficulty proving harm and/or causation are common reasons for that practice. Examples include:

·        Musculoskeletal injuries for which a claimant has not provided “objective medical evidence”

·        Persistent debilitating pain that was not easily medically documented

·        “Cancers and diseases that result from multiple causation or cannot be distinguished from” non-compensable harm

The issue of multiple causation related to the basic tenet that receiving workers’ compensation required that a claimant demonstrated that the relevant harm had an adequate nexus with an incident that “arose out of the course and scope” of that person’s employment.

If  the complaint here is the difficulty of proof?  If so, on behalf of the Defense bar, let me say, “welcome to our frustration. “  With each advance in diagnostic medical technology, the pain producing mechanisms in the human anatomy are better explained and, in time, better understood.  With advances in medical research, more is understood about the causes of “Cancers and Diseases” that Mr. Stahl, Ms. Spieler and  Professor Burton mention.   Is it, however, evidence that the system is unravelling simply because the measure of proof is uncertain?  Each litigant attempts to provide evidence convincing to the trier of fact and each litigant sometimes feels that the bench or the climate of the industry, is conspiring against them.  Each of us must produce evidence satisfying the Daubert standard for evidence which is generally accepted in the scientific community.  The answer to the conundrum, however, should not be found in the application of strict liability in which a close call goes to one side simply because that side is in need of the other’s money.  I will admit to my fair share of gripes about adverse decisions but such is the life of the advocate.  The system that we have, however imperfect it is probably the best that can be designed with fallible claimants, fallible employers and the various State Boards all grappling with difficult decisions.   Absolving, or even relaxing, one side of evidentiary burdens is not the answer. 

"Skedsvold & White
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Affordable Care Act - Does the Affirmance of this monstrosity have any impact on WC?

I count myself among the many who were dismayed, disheartened and dumbfounded when the Supreme Court issued its opinion upholding the constitutionality of the act.  I will not join the commentariat in condemning the Supreme court in general or Chief Justice Roberts for the opinion.  I take at face value the idea that Chief Justice Roberts ruled in the fashion that he thought correct.  He seeming to have relied on the Brandeis Rule for statutory construction in place since 1936 which provided that :

"The Court will not pass upon a constitutional question, although properly

presented by the record, if there is also present some other ground upon which the case may

be disposed of. [...] Thus, if a case can be decided upon two grounds, one involving a

constitutional question, the other a question of statutory construction or general law, the

Court will decide only the latter."  

On the Affordable Care Act (ACA) my issue is not with the Court but with the manner in which Congress passed the Act and the manner in which the President marketed and sold it.  While insisting to the voting public that the mandate and the rest of the act were not taxes, he sent his Solicitor General out to argue that it was in fact a tax so as to save it from constitutional scrutiny.   The whole spectacle was some charade of Three-Card-Monty marketed using almost Orwellian Language. I think that I need to read Animal Farm again.   [Rant concluded] 

With the constitutional viability of the act safely ensured, I suppose that it is time for everyone to take Representative Pelosi's advice and now read it to find out what is in it.   Some of that work has already been done and, as it applies to the Insurance Industry, Dr. Robert Hartwig of the Insurance Information Institute sat through an interview with World Risk and Insurance News to discuss the impact of the Affordable Care Act.  That interview can be seen at http://www.wrin.tv/index.php/component/content/article/3/392#.T_LU2o4JJ5E.bitly.

As the ACA relates to the WC industry, the effects are not likely to be direct, if felt at all.  Dr. Hartwig suggests that the primary impact on Employers and Workers' Compensation Insurers will be to diminish cost shifting behavior.  For example, an employee without health insurance is less likely to be in good health and that, as a result, any occupational injuries are exacerbated by the poor condition that the employee was in prior to the injury.  If one accepts that the ACA will actually lead to higher instances of coverage, this tangential benefit MAY lead to less problems with medical co-morbidities that lead to higher medical costs and longer periods of disability.  For employers that actually provide health insurance for their employees, what little benefit may have been there under the most charitable treatment of Dr. Hartwig's comments most certainly evaporates.   If one removes the rose-colored glasses, however, and views the Mandate through the lens of human experience the ACA neither removes the free-rider problem (the whole reason for the law in the first place right?) nor solves the cost shifting that Dr. Hartwig mentions.  While Congress can pass a law, it cannot repeal the law of unintended consequences.  The ACA's provisions for guaranteed issue with no ability to decline coverage based on a pre-existing condition has sewn the seeds of its own demise.  If an individual can pay a fine (er... a tax as it was termed to survive constitutional scrutiny) and that fine is LESS than the cost of the premium, simple observance of human nature shows that the least expensive path will be chosen.  At some point in the future, with the pre-existing condition in full flower, that same individual can now go get his insurance policy and VIOLA!, coverage is in place until it is no longer needed.  In this example (and I would love to be proven wrong about the gaming of the system that looms large on the horizon) there is no diminishment of cost shifting just a reallocation of that to a wider premium base known as the taxpaying public.  [While we're on that point, how many people that actually pay taxes, file a return are without insurance? Is the population such that this massive legislation was the only way through the problem?]  Further, with the prohibition against taking a persion's condition into account when setting the premium for a policy, the so-called "community rating" provisions, the cost of that guaranteed issue policy is now to be shared by those of us who had coverage all along. Thanks for that Ms. Pelosi. 

Another possible benefit mentioned by Dr. Hartwig relates to wellness programs encouraged under some health insurance programs. Perhaps there is some truth to this but I would submit that this relates more to larger Fortune 100 companies with Health Insurance Programs already in place, with a healthier work force. If that's the population involved, cost shifting from non-occupational conditions to the occupational injury realm is probably as rare as unicorns.

Finally, Dr. Hartwig also mentions as another possible benefit to the Worker's Compensation Insurance Industry the idea that supposedly injured workers will have less incentive to commit fraud by attempting to secure coverage for their non-occupational medical conditions as work related injuries.   If the only benefit to an individual submitting a fraudulent claim is the coverage of medical conditions, I might have some sympathy with this argument.  However, is it realistic to believe that someone who lies to get a medical condition covered is going to suddenly discover their scruples when it comes to the income benefits that accompany a WC claim?  After all, if the individual had no money to purchase medical insurance in the first place, is it any more likely that this same person had savings, spare cash or money enough to cover disability insurance premiums?   Sorry, but someone who is willing to commit fraud in the first instance is more than likely willing to see it through if there's an indemnity check for them during their convalesence.   Yes, desperate people do desperate things but the idea that providing them with coverage for their medical conditions that they did not have before is going to change the incentives seems little more than wishful thinking. 

"Skedsvold & White
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