It is time to revisit and re-evaluate the value of this statutory condition (L/C 3208.1), which is rapidly becoming yet another undue burden on both employers as well as the workers' compensation system. Cumulative Trauma claims are currently being used, and in many instances abused, by disgruntled employees who are no longer on the payroll. By filing Post-Termination Cumulative Trauma claims, employees are circumventing the legitimate needs of businesses to make personnel decisions based on the employer's current financial situation and needs.
One need only look at the increase in Cumulative Trauma claims that are being filed after an employee has been laid off. While there has been no specific injury that they can point to, many are now claiming that “work” has worn them out and that they are therefore entitled to even more money than that which was bargained for as a part of their employment agreement.
I would not argue that there are no real and viable events that can lead to a compensable situation. Asbestosis would be the best example of an occupational disease that was unknown to either management or their employees for many years. Litigation over asbestosis has been ongoing since then, and I believe that the compensation awarded to injured workers in such cases is justified.
However, when an employee who is hired to do a job that produces no discernible injuries and who has been laid off for legitimate, non-discriminatory reasons is able to work around the system by claiming a cumulative injury, it is time to reassess the value of that part of the Labor Code. We must decide if both parties to this equation are being properly served. Or, is this an abuse of the system that has been allowed to fester too long?
As a starting point for this discussion, when someone is hired for a job whether it is for either brain or brawn, the employer is taking on the whole person as he/she finds them. When the employee arrives at the jobsite, he/she does not simply place their body in the corner to rest while some mysterious spirit does their job. Employers hire the entire package as he/she finds them and is responsible for same. I would then point out that whether or not we like it, all of us are “wearing-out” as the years pass. The question then is, “Why should an employer be responsible for the normal aging process vs. being responsible for a specific injury?” I argue that they should not.
I therefore offer three possible options for consideration. Any or all of these will allow legitimate cumulative injuries to be raised as part of the work bargain while at the same time making employees responsible for their own “wearing out.”
Take “cumulative” claims out of L/C [Section 3208.1(b)] so that it reads: “An injury may be either specific or cumulative occurring as the result of one or a series of incidents or exposure which causes disability or the need for medical treatment” and then remove cumulative trauma from L/C 5412 and place it under 5411.
This will allow employees to file a cumulative trauma claim just as they would a specific injury. This would also place the burden of proof on the employee to show, just as they must now with a specific injury. In other words, what extraordinary events of employment occurred thereby showing how this cumulative trauma is more than just part of the normal “wearing out/aging” process we all face every day.
- Change the definition of a Cumulative Trauma injury to more closely mirror that of psych/stress claims (L/C 3208.3). In other words, let the employee show how the preponderance of actual work, absent the normal aging process, had caused a “disability” which should be covered.
- Since the employer is hiring the entire package, we should set up a “depletion” allowance funded by the employee. There should be a percentage taken from each dollar earned which is placed in a fund similar to a 401K. It will belong to the employee and will be portable so that it follows him/her throughout their working career. At the time they become eligible for Social Security, they would have access to this additional fund of dollars. This would result in taking the burden of the normal aging process off the backs of employers.
Regardless of which of these or any others the legislature feels would be the best solution to this growing problem, the real point is that this is currently just another further drain on employers and therefore the California economy and needs to be addressed.
Or do high profits create the opportunity for a safe workplace?
The success of Paul O'Neill as CEO of Alcoa Corporation has resurfaced in the book, The Power of Habit: Why We Do What We Do in Life and Business, by Charles Duhiggs.
Prior to becoming US Treasury Secretary in the Bush Administration, O'Neill took on the task of turning a “tired” and “floundering” company into a highly profitable and efficient organization. To simplify his formula for success, he created and led a new mindset of safety in the workplace no matter the cost. Employee safety became the main goal of Alcoa.
Critics emerged from everywhere questioning O'Neill's belief that a goal of zero workplace injuries would result in high corporate earnings. The facts proved the critics were wrong, and history continues to show continuous financial growth after O'Neill retired from the company.
From 1987 to 1991, the employee injury rate decreased 50%. Because of the culture O'Neill created, the injury rates continued to decrease even after he retired from Alcoa and continue to do so today.
During his leadership, company sales increased 15% each year, and the earnings per share increased seven times the level when he joined Alcoa.
Obviously, most employers are not the size and financial stature of Alcoa. But, what can all organizations gain from the “O'Neill Formula for Financial Success?”
No one can argue that making sure employees leave work for home as healthy as they arrive at work is a bad idea. Let's face it — creating a safe work environment should always be the top priority for any organization. Most employers believe safety is important, but they feel they don't have the time or resources to adequately address all issues. The solution to the employer's dilemma is to align themselves with a risk insurance advisor who can help an employer plan, implement and lead their organization through a consistent process to achieve measurable results of improvement.
If an employer's risk insurance advisor relationship does not have the interest, resources, knowledge and experience to be a coach and leader for a program like this, it should be time to find a new relationship. Keeping valuable assets safe, like employees, and helping to keep an organization financially sound are of the utmost importance.
Financial success can be achieved at different levels — the O'Neill approach will rally all stakeholders and result in outcomes that you could not have imagined. Certainly, O'Neill's detractors felt that way until they saw the results.
What has your risk insurance advisor done for you lately to help you achieve your financial goals?
AOECOE – Not Just Another Acronym
California Senate Bill 863 was passed in the fall of 2012 and went into effect on January 1, 2013. Senate Bill 1062 was just signed into law by Governor Mary Fallin of Oklahoma and will take effect January 1, 2014. On April 30, 2013, Tennessee Governor, Bill Haslam, signed into effect Senate Bill 200. House Bill 154 is expected to go into effect in Georgia in July, 2013. What are these bills? The first of many sweeping Workers' Compensation reforms. A common theme in these bills and other pending reforms is to level the playing field for employers and accept only those claims that arise out of the course and scope of employment, AOECOE.
A well-known term of art in the Workers' Compensation arena, AOECOE is not just an acronym. It is transitioning from a term of art to a statement with teeth, as reforms are actually including such wording into bills. The purpose of doing this is to establish whether an employee's alleged injury is work-related and happened in the course and scope of employment, or whether the injury is non-industrial or affected by third parties.
Workers' Compensation is a no fault system and thus benefits the injured worker, as, in order to receive benefits, he or she does not need to prove that the employer was negligent. However, it is the injured party's burden to show that the injury did, in fact, occur while at work, while employed as an employee and while undertaking some activity for the benefit of the employer. The injury itself must have been caused by the accident or employment conditions, and not from some other non-industrial related factors or degenerative factors.
The determination of AOECOE has long been an OSHA policy. OSHA's Injury and Illness Recordkeeping Regulation Section 1904.5: Determination of work-relatedness contained under section (a) basic requirement states in order for an injury or illness to be work-related an event or exposure in the work environment is either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.
California's SB 863 was signed into law by Governor Brown on September 18, 2012, for a January 1, 2013, effective date. While certainly not the first bill to consider AOECOE issues, it is one of the most significant Workers' Compensation reform bills to specify AOECOE language. SB 863 calls for an Independent Medical Review (IMR). While this process may be problematic for an employer, since an IMR can be requested only by an injured worker following a denial, modification, or delay of a treatment request through the utilization review (UR) process, the bill specifically states that this does not apply if the injury is in question for AOECOE reasons.
On May 8, 2013, Oklahoma Governor Fallin signed into law historic Workers' Compensation reform, Senate Bill 1062. The bill defines compensable injury as arising out of the course and scope of employment and does not include: any strain, degeneration damage or harm to disease or condition of the eye or musculoskeletal structure or other body part resulting from the natural result of aging, osteoarthritis, degenerative process or pre-existing, except if a treating physician clearly confirms an identifiable and significant aggravation arising out of AOECOE.
On April 29, 2013, Tennessee Governor Haslam signed a Workers' Compensation reform bill into law, SB 200. It specifies that injuries arise out of and in the course and scope of employment only if proven by a preponderance of evidence that employment contributed more than 50% to causing the injury, AOECOE.
In my experience, the majority of injuries are real, but they are not AOECOE. Injured parties may exaggerate the severity and extent of their injuries or may attempt to hide pre-existing conditions. So how do any employers determine if injuries are AOECOE? The answer is simple. They need to ascertain what the employees' statuses are pre-injury. This is effectively done with baseline testing.
Baseline testing is a bookend solution. To be effective, it should be objective, meet the criteria for evidenced-based medicine, be job related and consistent with medical necessity. It needs to be specific to the metrics being evaluated. A good example of a specific baseline test that is recognized in some jurisdictions by statute is audiometric testing. Hearing tests are routinely done in environments with high noise exposure to determine a baseline that is referenced once a claim is filed. This is commonly referred to as the lock box defense.
Audiometric testing is beneficial for documenting hearing loss but is not designed to address other conditions such as musculoskeletal disorders (MSD). MSDs are the most frequent and costly claims for an employer. In order for a baseline test to be utilized for MSD, it must not only be objective and reproducible, it must contain measurements to ascertain electromyography (EMG), range of motion (ROM) and function.
In addition, baseline testing must be legally defensible. In 1990, Congress enacted the Americans with Disabilities Act that outlines what makes a legally defensible test. To be legally defensible, the testing needs to be job-related and consistent with business necessity i.e. the employer must show that it “substantially promote[s]” the business' needs. It must be repeatable, objective and address functionality. Also, since baseline testing is considered to be a medical exam, it needs to evaluate some functions of the job.
Baseline testing is not a post-offer, pre-placement test, as it can not identify disability because the data is not read and no hiring decisions are made with baseline evaluations. When a work-related injury occurs, a post loss test is conducted, at which time the baseline test is read and compared to the post loss results, hence the bookends.
When compared, the results can determine if an injury exists and if it has arisen out of the course and scope of employment, thus determining an employer's true responsibility. Good baseline testing is non-discriminatory and prevents “false” claims. The sweeping Workers' Compensation reforms allow for a new definition of “false” claim: one that is not AOECOE. A false claim no longer means fraud! A proven example of an effective baseline test is the EFA-STM.
Workers' Compensation statutes are helping employers by allowing them to accept the claims that are only AOECOE. Employers need to see that they comply with legislation, and baseline testing now gives them an objective assessment to do just that.
Employees sometimes drive to work,
And then they find a parking spot,
Sometimes on a busy street,
Sometimes in a parking lot,
But injuries can still occur,
Between their cars and the front door,
And who will pay for slips and falls,
Will always be the Judge’s call.
Such is the nursery rhyme sung to children of applicants’ attorneys and defense lawyers in the dark and murky world of California workers’ compensation.
This issue came up recently while I was having lunch with my brother-in-law, Jasper. Jasper had been doing well recently in the wheelbarrow industry, and wanted to expand his operations from his garage to a real factory. He invited me to lunch to present me with some exciting investment opportunities in the wheelbarrow industry. Currently, Jasper had his eye set on one location in particular because it came with a parking lot.
His plan was to set up a series of obstacles in the parking lot, in the hopes that the employee with poor agility and balance would sustain injury outside his factory and shield him from workers’ compensation liability. Thus, only the workers that could swim faster than sharks, swing over quicksand pits, and tightrope over mine fields would actually make it to work.
Without getting into issues of serious and willful misconduct, for those readers out there that aren’t Jasper, when you’re facing a claim of injury in or near a parking lot, are you on the hook? Let’s start with the basics.
In order for an injury to fall within the scope of California’s workers’ compensation system, as opposed to general civil tort, the injury must arise out of and occur within the course of employment (See Labor Code section 3600). This is commonly referred to as AOE/COE (Arising Out of Employment, in the Course of Employment). Generally speaking, injuries sustained during the regular commute to or from work are not compensable, unless they fit into one of several exceptions.
But what about that last stretch of travel, between the car door and the building door?
In the case of Lewis v. WCAB, Lewis parked in a lot leased for employees. Walking down the street to her office, three blocks away, she fell. In finding the claim compensable, the Supreme Court reasoned that there is a “reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done” included within the scope of employment.
The Court went further, noting that once the employee enters the premises under the control of the employer, including employer-owned parking lots, the commute has ended and the scope of employment has begun (See Santa Rosa Junior College v. WCAB, footnote 11).
By providing an employee parking lot, Jasper could very well find himself increasing his liability with every square foot of parking under his control.
At this, Jasper got nervous and decided his plan would have to be changed. Instead, he would have his employees park on the street and use the entire lot for more obstacles. After all, he read an article in Wheelbarrows and Workers’ Comp, a very limited-circulation magazine which only exists in this story, which discussed a similar idea. There, the article’s author discussed two cases.
The first, an unpublished decision by the Court of Appeal, was Sharp Coronado Hospital v. WCAB. There, the Court held that an employee asked by its employer to park on the street instead of the parking lot was precluded from recovering for an injury sustained while walking from the employee’s parked car to the hospital. The other, General Insurance Co. v. WCAB, held that an employee struck while crossing the street from his parked car to work could not recover because of the going and coming rule.
Furthermore, he had heard his friend, an applicants’ attorney, grumbling about the panel decision in the case of Sharon Ewegemi v. Oakland Unified School District. In that case, he understood, a teacher had parked her car on the street and was just a few feet from the door of her school when she turned back to get some papers from her car. Walking to her car, she tripped and fell in the street.
In denying her application, the Workers’ Compensation Appeals Board reasoned that, until she entered the school and began working, she was still engaged in her commute, even up to a few feet away from the school.
Jasper’s new plan could put all this into use, he thought, by having his employees cross the obstacle course before entering the front door.
Now, bear in mind, dear readers, this is my brother-in-law, so things had to be stated delicately, or else every Thanksgiving dinner would include Jasper mumbling about how he hopes I come see his snake-pit. So, I had to explain that his new idea wouldn’t exactly work, either.
So, as I side-stepped the issue of intentionally exposing workers to snake-pits, quicksand, and landmines, I gently pointed out that he might still be liable for injuries sustained in his parking lot because of the “special risk” doctrine, which makes injuries sustained during travel to work compensable if the employee is exposed to a risk of injury, for the benefit of the employer, to which the general public is not exposed.
For example, the applicant in the case of Sandra Parks v. Workers’ Compensation Appeals Board, was attacked two car lengths down the street from the employer-provided parking lot, as she was boxed in by school children crossing the street and other cars behind her. In finding the injury compensable, the Court of Appeal reasoned that the car’s immobility caused by school children crossing the street was a special risk, and thus compensable.
Similar results were reached in R. G. Greydanus v. Industrial Accident Commission and John Freire v. Matson Navigation Company. In Greydanus, a dairy employee who had to turn left across a busy road to pull into the dairy farm was found to be exposed to a special risk because of the dangerous turn.
Likewise, in Freire, a janitor who worked aboard a steamship could only reach the ship by walking across a public bulkhead. The walk across the bulkhead was found to be a special risk, and the injury, though sustained some distance away from the ship itself, was found compensable.
Jasper looked deeply saddened as his eyes became watery and he glanced down at his blueprint. Where, before, the set of American Gladiator was reborn in his parking lot, now remained only painted lines between which employees could park their cars before proceeding to work.
Frustrated, Jasper shoved his blueprint aside and decided he wouldn’t have a parking lot at all. As he angrily stared out the window, no doubt jealously glaring at the restaurant’s parking lot, your humble author felt compelled to give some good news.
“Cheer up,” I told my brother-in-law, Jasper. “Not all injuries sustained in parking lots are compensable.” At that, Jasper seemed to rekindle the possibility of a parking lot obstacle course and he began to listen closely.
For example, in the case of Jessica Rodgers v. Workers’ Compensation Appeals Board, an employee took a break from work to go to the bank. She then returned to the work parking lot and arranged her money before stepping out of her car and returning to work. In between her car and the building, however, a “biker,” who had followed her from the bank, attacked her and stole her money.
Even though the injury was sustained during work hours, between starting and finishing the day’s shift, and in the employer parking lot, the Court of Appeal held that the injury was not compensable because the cause of the injury was formed independent of any work-related activity — the biker just wanted to rob her, regardless of where she worked or who she was.
Likewise, in the panel decision of Basil Perkins v. City of Los Angeles, the applicant, a city animal control officer, was shot while napping in his work vehicle, while parked in the employer-owned lot, and wearing his uniform. As his home was over 130 miles away, he made a regular practice of napping in his car after a shift had ended.
Initially, the workers’ compensation judge found the injury compensable, but the Workers’ Compensation Appeals Board reversed, finding the injury was not compensable, as the shift had ended, and the employee was only in the parking lot for his convenience. In other words, the scope of employment cannot be artificially extended by dallying on the employer’s premises.
The same occurred when a worker arrived to work too early, as in the writ denied case of Paul Grove (Dec’d), Sharon Grove (Widow) v. Miller Coors, LLC. In that case, the employee had arrived to work early and had used the restroom at work less than two hours before the start of his shift, when he sustained an injury in the restroom. There, the workers’ compensation Judge found the injury to be non-compensable.
Fortunately, Jasper never got to try out his obstacle course idea — the wheelbarrow industry took a downturn, and he decided expanding beyond his garage was not a good idea at this time. Regardless, here are some takeaway rules:
- Arriving at an employer-owned or provided parking lot begins the scope of the employment relationship and ends the commute, so long as the arrival is within the regular time for employment.
- If travel to the employer or the employer’s parking lot presents a “special risk” to the employees, then the time during which the employee is exposed to the risk will not be barred by the Going and Coming Rule.
- Injuries sustained in an employer-provided parking lot are subject to AOE/COE analysis, so injuries sustained for reasons unrelated to work, such as robberies, will not be compensable, unless the special risk doctrine applies.
- Whatever the liability for workers’ compensation, the “Going and Coming” rule is not subject to the premises rule for civil liability and respondeat superior, as found by the Court of Appeal in Dean Hartline v. Kaiser Foundation Hospitals.
- Do not invest in the wheelbarrow market if the president of your company is busy planning an obstacle course for his employees trying to get to work.
The trucking industry accounted for nearly 20 percent of all days-away-from-work cases in 2011. Correspondingly, trucking was among the seven occupations which had an incidence rate greater than 300 cases per 10,000 full-time workers and who had greater than 20,000 days-away-from-work cases.
OSHA defines a Musculoskeletal Disorder (MSD) as an injury of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. They identify examples of Musculoskeletal Disorders to include: carpal tunnel syndrome, rotator cuff syndrome, De Quervain’s disease, trigger finger, tarsal tunnel syndrome, sciatica, epicondylitis, tendinitis, Raynaud’s phenomenon, carpet layers knee, herniated spinal disc, and low back pain.
The average cost of a work-related soft tissue injury in the trucking industry exceeds any other industry. According to the U.S. Bureau of Labor Statistics (BLS), Musculoskeletal Disorders nationwide typically account for 33% of work-related injuries, while the incidence of Musculoskeletal Disorders in the transportation industry is 60-67%. The Bureau of Labor Statistics also noted that there were 1.4 million total transportation workers, and each year 1 in 18 is injured or made ill by the job.
These higher rates of injury can be attributed in part to several factors. Due to the nature of their work, many drivers maintain a poor diet, rarely get enough sleep, and are sedentary. As a result, they find themselves more susceptible to heart attacks and diabetes, as well as a myriad of strains, sprains and various other Musculoskeletal Disorders.
Additionally, the percentage of older workers is higher in transportation than in most industries, with the Transportation Research Board estimating that up to 25 percent of truck drivers will be older than 65 by 2025, translating into more severe Musculoskeletal Disorder claims.
These factors are contributing to more workers’ compensation claims for drivers which increase employers’ costs. As part of the job, many truck drivers are required to unload the goods they transport, leading to serious sprains and strains. Heavy lifting after long periods of sitting can increase the likelihood of severe sprains and strains. In addition, drivers often rush at the delivery site in an effort to meet the demands of tight schedules. This combination contributes to 52% of the non-fatal injuries in this industry, with trunk and back claims accounting for 70% of these cases.
Due to its unique workplace circumstances, the commercial transportation industry is at higher risk for increased frequency of injuries and costs to the industry. The following describes the framework of this dilemma:
- Commercial transportation jobs expose workers to high physical demands and extended hours of exposure.
- The transportation industry experiences one of the highest work-related injury rates among all workplace sectors.
- The transportation industry experiences a high level of turnover on an annual basis, which results in a high number of newly hired employees exposed to unfamiliar and physically demanding tasks.
While this is an industry-wide issue, we will focus on California in order to illustrate how problematic it truly is. In March of 2010, the California Workers’ Compensation Institute (CWCI) issued its latest scorecard for the California Trucking Industry. Over eight years, $480 million dollars was paid in medical and indemnity costs alone. The study found that, even though this industry accounted for only 1% of all California industrial claims, they accounted for 1.8% of the state’s workers’ compensation paid benefits. It was also found that medical and indemnity payments were higher than any other industry. The average lost-time direct claim cost at $18,587 is 41% higher than the industry average in California. The indirect costs in this industry range from a 2x to a 10x multiple, and in an industry known for low profit margins, controlling costs is critical.
It should also be noted that California can retain jurisdiction of a workers’ compensation claim even if the injury did not occur in that state; the employee only has to live in California, drive through California or have been hired out of California. This is such a significant problem that in 2010 the U.S. Department of Transportation initiated the Compliance Safety Accountability measure of driver’s fitness. This is specific to transportation, is publicly available, and the ratings are tied to insurance rates and letters of credit.
With the numerous reforms taking place in 2013 and the Centers for Medicare and Medicaid Services (CMS) Mandatory Reporting Act, it is now essential that employers become proactive and only accept claims that arise out of the course and scope of employment. Medicare has mandated all work-related and general liability injuries be reported to CMS in an electronic format. This means that CMS has the mechanism to look back and identify work comp-related medical care payments made by Medicare. This is a retroactive statute that will ultimately hold the employer and/or insurance carrier responsible for these payments.
Should CMS have to pursue the employer in court, the amount owed is doubled. The insured or employer could pay the future medical cost twice — once to the claimant at settlement and later when Medicare seeks reimbursement of the medical care they paid on behalf of the claimant. There is no statute of limitations on compliance with the MSA requirements. CMS can review claims closed last year, five years ago, or even longer to check for compliance. Penalties and fees for noncompliance are $1,000 per day if medical care is not paid within 30 days.
Historically, soft tissue injuries have been difficult to diagnose and even harder to treat due to the broad spectrum of disorders related to soft tissue. Most diagnostic tests are not designed to address Musculoskeletal Disorders and are unable to document the presence of pain or loss of function … two key complaints.
Employers need a way to manage their Musculoskeletal Disorder exposure and provide better care to their injured workers. The key to managing this problem is for employers to obtain the ability to only accept claims that arise out of the course and scope of employment. The only viable solution for employers is to conduct a baseline soft tissue assessment in order to establish pre-injury status. The baseline must be job and body part specific and objective to comply with the Americans with Disabilities Act Amendments Act of 2008.
The baseline assessments are not read or interpreted unless and until there is an injury. By not identifying a potential disability, employers are able to conduct baseline assessments on new hires as well as existing employees while maintaining compliance with the Americans with Disabilities Act Amendments Act. If there is a soft tissue injury, the employee is sent for a post-loss assessment to determine what and if there is any change from the baseline assessment. If no change is noted (no acute pathology), then there is no valid claim. This proven baseline program is known as the EFA Soft Tissue Management Program (EFA-STM Program), which utilizes the Electrodiagnostic Functional Assessment to objectively provide this data.