Tag Archives: post-traumatic stress disorder

Addressing PTSD in the Workplace

The occurrence of school shootings, store robberies and job-related fatalities have all contributed to the increase in cases of post-traumatic stress syndrome (PTSD) in the workplace. This session at the RIMS 2019 Annual Conference and Exhibition discussed the need to address the issue on a broader basis.

Speakers included:

  • Dr. Teresa Bartlett, senior vice president, medical quality, Sedgwick
  • Denise Algire, director, risk initiatives, and national medical director, Albertsons
  • Dr. Steve Wiesner, on-the-job medical director, workers’ compensation service, Kaiser Permanente

Post-Traumatic Stress Disorder (PTSD) is a complex disorder that affects the memory and emotional responses of a person who has experienced or witnessed an event that involved actual or threatened death or serious injury. The worse the trauma, the more likely it is that a person will develop PTSD and the worse the symptoms. The most severely affected patients are unable to work, have trouble with relationships and have great difficulty parenting their children.

See also: The Need to Be Open on Mental Illness  

MRI and PET scans show changes in the way memories are stored in the brain for patients who suffer from PTSD. The disorder actually changes the portions of the brain that regulate the fight or flight response and the area where memories are coded and stored. Symptoms are generally grouped into three types: intrusive memories, increased anxiety and avoidance/numbing. Prognosis depends on the patient’s health prior to developing the disorder but is improved with early treatment, preferably within the first 12 months. Patients with PTSD are more likely to have amplified pain and stress reactivity when they are injured, leading to longer-tail claims.

Major life-threatening events that can lead to PTSD:

  • Combat or military exposure
  • Sexual or physical assault
  • Childhood sexual or physical abuse
  • Serious accidents, such as a car wreck
  • Terrorist attacks
  • Natural disasters, such as fire, tornado, hurricane, flood or earthquake

When PTSD occurs in the workplace, an employer’s program should address early intervention, specific functional limitations, treatment consistent with care and time away from work as part of the treatment plan. Clinical involvement early in the claim process is critical.

A successful employer program should include critical incident response as well as continuing guidance and counseling. Critical incident response gives the employee a chance to express feelings or reduce stress and gives management an opportunity to show concern for colleagues, both of which can help the employee re-acclimate when the person returns to work.

See also: How to Help Veterans on Mental Health  

There are many work accommodation considerations to take into account for employees suffering from PTSD. Modifying specific environments that trigger memories of the original stressor can be very helpful. For example, an employee who was present for an armed robbery could be transferred to a different location, if possible. Allowing work-at-home or flexible scheduling opportunities can also be effective, to allow the employee ample time for mental health treatment. There are an extraordinary number of other possible accommodations that may be needed, addressing alertness/concentration, decreased stamina, memory loss and stress intolerance. If an employer is committed to safely reintroducing the employee into the work environment, the employer will need a clear and actionable plan.

How to Help Veterans on Mental Health

The constant beat of the major media drum often paints a grim picture of veterans and suicide. Sometimes, we wonder if these messages become a self-fulfilling prophecy. Consistent headlines include data such as:

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  • Approximately 22 veterans die by suicide each day (about one every 65 minutes).
  • In 2012, suicide deaths outpaced combat deaths, with 349 active-duty suicides; on average about one per day.
  • The suicide rate among veterans (30 per 100,000) is double the civilian rate.

Listening to this regular narrative, a collective concern and urgency emerges on how best to support our veterans who are making the transition back to civilian jobs and communities. Many veterans have a number of risk factors for suicide, contributing to the dire suicide statistics, including:

  • A strong identity in a fearless, stoic, risk-taking and macho culture
  • Exposure to trauma and possible traumatic brain injury
  • Self-medication through substance abuse
  • Stigmatizing views of mental illness
  • Access to and familiarity with lethal means (firearms)

Veterans show incredible resilience and resourcefulness when facing daunting challenges and learn how to cope, but employers and others who would like to support veterans are not always clear on how to be a “military-friendly community.”

The Carson J Spencer Foundation and our Man Therapy partners Cactus and Colorado’s Office of Suicide Prevention conducted a six-month needs and strengths assessment involving two in-person focus groups and two national focus groups with representation from Army, Air Force, Navy and Marine Corps and family perspectives.

When asked how we could best reach them, what issues they’d like to see addressed and what resources they need, here is what veterans and their advocates told us:

  • “I think that when you reach out to the vets, do it with humor and compassion…Give them something to talk about in the humor; they will come back when no one is looking for the compassion.” People often mentioned they preferred a straightforward approach that wasn’t overly statistical, clinical or wordy.
  • Make seeking help easy. A few veterans mentioned they liked an anonymous opportunity to check out their mental health from the privacy of their own home. Additionally, a concern exists among veterans, who assume some other service member would need a resource more. They hesitate to seek help, in part, because they don’t want to take away a resource from “someone who may really need it.” Having universal access through the Internet gets around this issue.
  • “We need to honor the warrior in transition. The loss of identity is a big deal, along with camaraderie and cohesion. Who I was, who I am now, who I am going to be…” The top request for content was about how to manage the transition from military life to civilian life. The loss of identity and not knowing who “has your back” is significant. Several veterans were incredibly concerned about being judged for PTS (no “D,” for disorder – as the stress they experience is a normal response to an abnormal situation). Veterans also requested content about: post-traumatic stress and growth, traumatic brain injury, military sexual trauma and fatherhood and relationships, especially during deployment.
  • The best ways to reach veterans: trusted peers, family members and leaders with “vicarious credibility.”

Because of these needs and suggestions, an innovative online tool called “Man Therapy” now offers male military/veterans a new way to self-assess for mental health challenges and link to resources.

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In addition to mental health support, many other things can be done to support veterans:

We owe it to our service members to provide them with resources and support and to listen carefully to the challenges and barriers that prevent them from fully thriving. Learn how you can be part of the solution instead of just focusing on the problem.

Debunking ‘Opt-Out’ Myths (Part 2)

This is the second of eight parts. The first article in the series is here.

“Opt-out” advocates have taken time to understand how workers’ compensation systems work, so it is fair to expect option opponents to take time to understand how options work. Sometimes, option myths are simply because of misunderstandings. Sometimes, they are outright lies in a desperate attempt to maintain the status quo for workers’ compensation programs that are championed only by a subset of interested insurance carriers, regulators and trial lawyers.

Despite what some myths say, most (if not all) option programs:

  • Cover all common law employees
  • Require immediate injury reporting, subject to a “good cause” exception (leading to faster medical care, more appropriate medical treatment, safer workplaces for co-workers and other advantages for workers and employers. For a further discussion of reporting requirements, go to http://journalrecord.com/2015/05/20/minick-oklahoma-option-works-for-companies-workers/)
  • Pay all reasonable and necessary medical expenses
  • Include no employee premium payments, deductibles or co-pays
  • Pay for emergency care, surgeries (without regard to outcome) and skilled nursing care
  • Cover mental injuries, like being a victim or witness to a criminal act and post-traumatic stress disorder
  • Cover cumulative trauma claims supported by medical evidence
  • Cover aggravations of pre-existing conditions to the extent caused by the course and scope of employment
  • Cover catastrophic injuries (including impairments and death)
  • Gain access to more of the best medical providers
  • Allow employees to object to a treating provider’s findings, request a change in physician or seek a second medical opinion
  • Use independent medical examinations

Opponents also do their best to avoid the fact that opt-out programs:

  • Pay higher wage replacement benefits than workers’ compensation (even after applicable taxes, if any – a subject addressed later in this series of articles)
  • Deny fewer claims, result in fewer disputes and deliver more predictable outcomes than workers’ compensation
  • Rely on the same claim procedures used for more than 40 years in group health plans. Option programs allow appeals of denied claims, including employee discovery, submission of information and access to state and federal courts and are not subject to run-away jury verdicts
  • Include employer liability exposure for any wrongful denial of benefits, discrimination, wrongful termination or retaliatory discharge or failure to provide information
  • Are subject to the Americans with Disabilities Act, the Family and Medical Leave Act, the Occupational Health and Safety Act and other applicable state and federal laws (including civil and criminal penalties for any employer compliance failures)
  • Do not require employees to have a lawyer to understand basic rights and responsibilities
  • Are implemented primarily by small employers supported by independent insurance agents

Interested in learning more? Consider this public policy paper or FAQ on the Oklahoma Option. In-depth information is also available from many insurance carriers and third-party administrators with whom you likely already do business. Let me know if you need contacts, legal citations, actuarially credible data or other detail on any point above.

Five Things Employers Need to Know About Mental Health

“The workplace is the last crucible of sustained human contact for many of the 30,000 people who kill themselves each year in the United States. A coworker’s suicide has a deep, disturbing impact on work mates. For managers, such tragedies pose challenges no one covered in management school.” (Shellenbarger, 2001)1

Five things employers need to know about workplace mental health and suicide include some bad news…

  1. Depression is a top driver of health care costs to employers.2 3 Depression represents employers' highest per capita medical spending. (The per-capita annual cost of depression is significantly more than that for hypertension or back problems, and comparable to that for diabetes or heart disease. People with depression also have more sick days than people suffering from other conditions.)4
  2. If we take a snapshot of any workplace at any given point in time, at least one in five people will have a diagnosable mental health condition.5 The most common are mood disorders like depression or substance abuse disorders like alcohol abuse.
  3. The majority of people who die by suicide are of working age. While other groups’ suicide rates are holding steady or decreasing, the rates for men and women in the middle years have increased significantly over the last decade.

And some good news…

  1. By engaging in simple preventative steps (e.g., stress management or depression screenings) anyone can help maintain their own mental health. By learning practical tactics (e.g., becoming suicide prevention gatekeepers or referring coworkers to employee assistance services) employees can help promote the mental health and safety of others.6 7
  2. A comprehensive and evidence-based approach to suicide prevention and mental health promotion exists,8 is cost-effective9 and gives employers a clear guide on what to do. By being “visible, vocal and visionary” leaders, employers can set the expectation that a culture of health and safety is a priority and that mental health promotion and suicide prevention are a critical part of that priority.

While managers often feel responsible for the well-being of the people they supervise, very few have been given any substantial training in how to identify people in a suicide crisis and how to link them to life-saving care. Employers can play a critical role in closing this gap through a comprehensive approach.

A five-year analysis of the nation’s death rates released by the Centers for Disease Control and Prevention found that the suicide rate among 45- to 54-year-olds increased 20% from 1999 to 2004, while rates for youth and elderly persons are decreasing. The Surgeon General’s National Strategy for Suicide Prevention targets employers as critical stakeholders in the prevention of suicide.10

While suicide prevention may seem to be too intensive for workplaces to take on, there are many upstream prevention strategies that do not take much effort but yield tremendous results. Here are low-cost, high impact strategies employers can take to promote mental health and prevent suicide:

  1. Promote the Suicide Prevention Lifeline. This free resource (1-800-273-8255 [TALK]) is available to employees 24/7 and used by both people in crisis and those who are trying to support them. The line connects to local crisis call centers and is answered by certified volunteers, most of whom have had more training and experience in de-escalating suicidal behavior than many of our mental health professionals.
  2. Participate in National Screening Days.  Whenever we can identify a health condition early in its course, we are in a much stronger position to prevent it from escalating. Employers can help coordinate screening days as a part of a larger national awareness effort. Mental Health Screening offers workplaces promotional and screening tools for National Depression Screening Day (October), National Eating Disorders Awareness Program (February), National Alcohol Screening Day (April), and National Anxiety Disorders Screening Day (May). In addition, their WorkplaceResponse program gives employees an anonymous opportunity to self-screen for depression, bipolar disorder, Post Traumatic Stress Disorder, generalized anxiety disorders, eating disorders, and alcohol use disorders.  These screenings offer immediate results and referrals to an organization’s employee assistance program and community-based resources.
  3. Reward Mental Wellness. For example, the Working Minds program offers a contest every year to workplaces that have developed mentally healthy policies and practices that demonstrate positive outcomes like retention, lower absenteeism, and higher employee satisfaction. These workplaces then become the model for others.
  4. Change the Conversation Through Social Marketing.  By showing models of people who have experienced significant psychological distress and who have recovered and are thriving, employers can show that struggles are normal and increase a sense of efficacy among the hopeless. For example, workplaces can develop a multimedia campaign that lets people know they are not alone if they are thinking about suicide and that many resources exist to help. If the company’s leaders are courageous enough to model this message, the culture of the organization usually shifts accordingly.
  5. Offer Educational Programs on Mental Illness. Employee assistance professionals can provide “lunch-and-learn” sessions that increase awareness about the signs and symptoms of depression, bipolar disorder, alcohol dependence, and other mental illnesses that can lead to suicide.  These presentations should share how treatments are effective while dissipating misperceptions people have that create barriers to care.
  6. Training Staff to Become Suicide Prevention Gatekeepers. In addition to offering general training, workplaces should train key people in suicide prevention gatekeeper methods. The concept is similar to CPR – train lay people to know the warning signs of a life-threatening situation and how to sustain a person’s life until they can be linked to professional care. Many models for this training exist, including Working Minds, QPR, and ASIST. For more information, review the gatekeeper matrix on the Suicide Prevention Resource Center website.

As our workplaces accelerate from the industrial age to the information age and beyond, we come to increasingly rely on our mental muscle to get us through our workday. Like any other muscle, our mental muscle can get injured or fatigued, and we can experience high levels of distress, sometimes leading to a suicide crisis. Workplaces can prepare for this in many ways and develop a comprehensive approach to reduce suicide risk and promote mental resiliency.

For more information, visit WorkingMinds.org. Working Minds is one of the first programs in the country to provide workplaces with a comprehensive approach to suicide prevention. Working Minds is a priority program of the Carson J Spencer Foundation based in Golden, Colorado. In a little more than a lunch hour, employees at all levels of a workplace can be taught how to identify warning signs and risk factors and help link distressed coworkers to appropriate care.

1 Schellenbarger, S. (2001, June 13). Impact of colleague’s suicide is strongly felt in workplace. The Wall Street Journal.

2 Mental Health America (n.d.) Depression in the Workplace.

3 Witters, D. (2013, July 24). Depression Costs U.S. Workplaces $23 Billion in Absenteeism.

4 Managed Care Magazine (2006, Spring) Depression in the Workplace Cost Employers Billions Each Year: Employers Take Lead in Fighting Depression.

5 Gray, T. (2004) ValueOptions Articles – Managers.

6 Paul, R. & Spencer-Thomas, S. (2012). Changing Workplace Culture to End the Suicide Standstill. National Council Magazine. (2), 126-127.

7 Spencer-Thomas, S. (2012). Developing a workplace suicide prevention program. Journal of Employee Assistance, 42(1), 12-15.

8 National Action Alliance for Suicide Prevention (2013) Comprehensive Blueprint for Workplace Suicide Prevention. Retrieved from http://actionallianceforsuicideprevention.org/task-force/workplace/cspp

9 National Institute of Mental Health (2007, September) Workplace Depression Screening, Outreach and Enhanced Treatment Improves Productivity, Lowers Employer Costs.

10 U.S. Department of Health and Human Services, Public Health Service. (2001). National strategy for suicide prevention: Goals and objectives for action, p. 67.

Oklahoma And Beyond: Significant State Workers' Compensation Reforms In 2013

The cost of providing workers’ compensation insurance is one of the top issues for companies of all sizes and across industries. Because it is regulated at the state level, companies need to stay abreast of issues in any state in which they do business. To date in 2013, nine states have seen significant workers’ compensation reform bills signed into law. Highlights from the legislation in each of the nine states follows.

Oklahoma
Oklahoma’s workers’ compensation reform laws have received the most attention lately because of the inclusion of an opt-out provision, known as the Oklahoma Option. This legislation takes effect on February 14, 2014, and applies only to injuries occurring on or after January 01, 2014.

The ability to opt out has been a significant component of the Texas workers’ compensation system for a number of years. Wyoming also has a limited opt-out provision. Approximately one-third of employers in Texas participate in the opt-out, including many large national retailers. The significant cost savings employers saw in Texas was one of the driving forces behind the Oklahoma Option.

The Oklahoma Option’s application form is significantly different from that in Texas. Employers that opt out in Texas cannot simply endorse their excess liability policy to cover Oklahoma. Rather, employers in Oklahoma that choose the option are required to provide a written benefit plan that serves as a replacement for the workers’ compensation coverage. This benefit plan must provide for full replacement of all indemnity benefits offered in the workers’ compensation system. The plan can be self-insured, or coverage can be purchased from a licensed carrier. At this time, carriers are developing policies to provide both first-dollar and excess self-insurance coverage for the benefit plans under the Oklahoma Option.

The key component of the Oklahoma Option for employers is that it gives them full control of the medical treatment through their benefits plan. More than 60% of workers’ compensation costs are medical treatment. With full medical control, employers will be able to ensure that injured workers receive the appropriate medical care from medical providers who follow widely accepted occupational medicine treatment protocols. This will eliminate doctor shopping, which is a significant cost driver in many states. The hope is that full employer medical control will eliminate unnecessary treatment, produce shorter periods of disability, and ultimately improve medical outcomes for the injured workers.

Unlike the Texas opt-out, the Oklahoma Option does not permit employees to pursue a negligence action through the civil courts. Workers’ compensation is usually the exclusive remedy for an injured worker for any work-related injuries. In other words, the employee cannot usually pursue a separate tort action in civil court. In Texas, injured workers for employers who opted-out are free to pursue remedy in the civil courts. With the Oklahoma Option, any litigation must proceed through the normal workers’ compensation administrative processes. This exclusive remedy has a narrow exception for injuries that were intentionally caused by the employer. Attorneys will have to overcome this very high burden of proof in order to pursue a civil complaint for a work injury.

Another difference between the Oklahoma and Texas opt-out scenarios is that the Oklahoma system is backed by a guarantee fund, which provides benefit payments in the event that a carrier or self-insured employer becomes insolvent and is unable to continue paying claims. The Oklahoma Option coverage offers guarantee funds for both self-insured employers and carriers. These are separate from the workers’ compensation guarantee funds.

The Oklahoma reforms also include the switch from a court-based system to an administrative system. Oklahoma was one of the few remaining states where all workers’ compensation disputes were adjudicated in the civil courts. Civil litigation is both very expensive and time-consuming. This change to an administrative system should reduce employer costs associated with litigation and produce more timely decisions, which are key elements of controlling claims costs.

Overall, the changes made in Oklahoma are positively viewed by employers and should improve Oklahoma’s ranking as a top ten state for loss costs.

Delaware
The recently passed reform bill in Delaware was designed to control medical costs and encourage return-to-work efforts.

Medical cost savings will be achieved by:

  • Suspending for two-years the annual inflation increase on medical fees.
  • Lowering the inflation index on hospital fees.
  • Creating new cost-control provisions on pharmaceuticals.
  • Establishing a statute of limitations for appealing utilization review decisions.
  • Expanding the fee schedule to capture items that were previously exempted.

Other changes included more emphasis on return-to-work efforts, which will be considered in calculating the workplace credit safety program.

These changes are expected to lower employer workers’ compensation costs in Delaware.

Florida
The use of physician-dispensed medication has been a significant issue in Florida workers’ compensation. Physicians were charging several times what the same medication would cost from a retail pharmacy, and the costs were not regulated by a fee schedule. SB 662, which was recently signed into law, creates a maximum reimbursement rate for physician-dispensed medication of 112.5% of the average wholesale price, plus an $8 dispensing fee. Although the bill is expected to produce cost savings for employers in Florida, the fee schedule amount for physician-dispensed medications is still significantly higher than that for the same medications at retail pharmacies. There are savings; however, this will continue to be a cost driver in the state.

Another issue impacting workers’ compensation costs in Florida is that the First District Court of Appeals, in two separate rulings, has found sections of the workers’ compensation statutes unconstitutional. Under the Westphal decision (Bradley Westphal v. City of St. Petersburg, No. 1D12-3563, February 2013), the court decided that the 104-week cap on temporary total disability (TTD) benefits was “unfair” and violated the state’s constitutional right to access the court and “receive justice without denial or delay.” Injured workers are currently limited to 260 weeks of TTD benefits, which was the cap under the prior law. There is concern that the arguments used in Westphal could also be used to invalidate the 260-week limit. The Court has agreed to review this decision en banc, so the ruling is not final.

In the Jacobson case (Jacobson v. Southeast Personnel Leasing, Case 1D12-1103, June 5, 2013), the court found unconstitutional a section of the Act that prevented injured workers from hiring an attorney for motions for costs on disputed claims, as this violated their right to due process.

The Jacobson case is very narrow in scope and has limited impact, but the Westphal decision has potential to significantly increase employer costs. With these cases, there is growing concern in Florida that attacks on the constitutionality of the workers’ compensation statutes will continue, further eroding prior reforms that produced significant employer savings.

Despite savings produced via the fee schedule for physician-dispensed medications, if the court upholds the decision in Westphal, the associated costs will outweigh any savings from the recent legislation.

Georgia
Legislation passed in Georgia should have a positive impact on workers’ compensation costs for employers. Effective July 1, 2013, medical benefits for non-catastrophic cases are capped at 400 weeks from the date of accident, whereas previously, injured workers were entitled to lifetime medical benefits for all claims. This change significantly shortens the claims tail for non-catastrophic cases. By eliminating exposure for lifetime medical coverage on all claims, it also reduces the potential exposure on any Medicare Set-Aside, as Medicare’s rights on a workers’ compensation claims are confined to the parameters of the state law.

In order to receive this concession from labor on the medical costs, employers agreed to increase the indemnity rates for temporary partial disability (TPD) and TTD. The indemnity rate increases are as follows:

  • TPD: $334 to $350 for a period not exceeding 350 weeks from the date of injury.
  • TTD: $500 to $525 per week for a period not exceeding 400 weeks from the date of accident.

Indemnity rates in Georgia had not increased since 2007.

Another change involves a requirement that an injured worker make a legitimate effort to return to work when a modified-duty position is offered. The employee must complete a full work shift or eight hours, whichever is longer. If the injured worker feels that he or she is unable to work beyond that, benefits must be reinstated and the burden is on the employer to show the work offered was suitable. If the employee does not complete that full shift, then the burden of proof does not shift back to the employer and the employer can suspend benefits.

The cost savings from capping the medical benefits is expected to slightly outweigh the cost increases associated with the indemnity maximum rate increase. Thus, the net impact to employers should be a slight reduction in workers’ compensation costs.

Indiana
Research indicates that workers’ compensation medical fee schedules lower medical costs. In Indiana, legislation was passed that establishes a hospital fee schedule at 200% of Medicare rates. This is consistent with other states that base their fee schedules on Medicare rates. The bill also capped the price for repackaged drugs and surgical implants. Since repackaged drugs and surgical implants were previously outside the fee schedule, these caps will help to reduce employer costs. The fee schedule takes effect on July 1, 2014.

The legislation also included changes to indemnity benefits:

  • Gradual average weekly wage (AWW) increase of 20% over three years, beginning with a 6% increase on July 1, 2014, and up to 20% over current AWW by July 1, 2016.
  • An increase of 25% in permanent partial impairment or disability (PPI or PPD), from $1,400 per degree from 1 to 10 degrees to $1,750, gradually over three years. Higher PPI ratings, above 10 degrees, increased from 16% to 22% incrementally over the same period.

Indiana had not increased its maximum indemnity benefit for many years, so the general consensus is that the increase was overdue.

Given that medical costs typically account for 60% of the total workers’ compensation expenditure, the decrease in medical costs from these reforms should offset the increase in indemnity benefits. The expectation is that this legislation will produce a small degree of savings for employers.

Minnesota
Minnesota joined most other states in amending its statutes to allow for mental-mental injuries (a psychiatric disorder without a physical injury). The law provides that the employee must be diagnosed with post-traumatic stress disorder (PTSD) by a licensed psychiatrist or psychologist in order to qualify for benefits. However, PTSD is not recognized as a work injury if it results from good faith disciplinary action, layoff, promotion/demotion, transfer, termination, or retirement.

Other changes include a cap on job development benefits and a restructuring of how attorney fees are paid. There is also an increased cost-of-living adjustment (COLA) for permanently disabled workers and an increase on the maximum indemnity rate. Lastly, rulemaking authority is now in place to include narcotic contracts as a factor in determining if long-term opioid or other scheduled medication use is compensated.

The job development benefits and narcotic use in Minnesota are significant cost drivers, so these are positive limitations for employers. However, the increase in indemnity rates, COLA, and coverage of mental-mental claims all add to employer costs. Thus, a slight overall increase in claim costs is expected as the result of the legislation passed in 2013.

Missouri
Missouri’s reforms were focused on addressing the insolvent second injury fund and returning occupational disease claims to the workers’ compensation system.

The Missouri Second Injury Fund has been plagued by problems for several years. It was heavily utilized by injured workers to supplement permanent partial disability awards. The fund became insolvent when prior reforms capped assessments that were supporting it while not reducing the claims that were covered by it. Under these new reforms, which are effective January 01, 2014, PPD claims are excluded from the second injury fund. Access to the fund will be limited to permanent total disability (PTD) claims where the total disability was caused by a combination of a work injury and a pre-existing disability. In addition, employer assessments to cover the funds’ liabilities are increased by no more than 3% of net premiums. These increased assessments expire December 2021.

The new law also indicates that occupational diseases are exclusively covered under the workers’ compensation statutes with some exceptions, which are noted below. The Act also establishes psychological stress of police officers as an occupational disease under workers’ compensation.

Bringing occupational disease claims back under workers’ compensation came at a cost. Trial lawyers in Missouri had significant influence in crafting this legislation. The act defines “occupational diseases due to toxic exposure” and creates an expanded benefit for occupational diseases due to toxic exposure other than mesothelioma — equal to 200% of the state’s average weekly wage for 100 weeks to be paid by the employer. For mesothelioma cases, an additional 300% of the state’s average weekly wage for 212 weeks shall be paid by employers and employer pools that insure mesothelioma liability. These expanded benefits are in addition to any other traditional workers’ compensation benefits that are paid. Also, these enhanced benefits are a guaranteed payout to the injured worker or his or her estate. It is very unusual to see guaranteed payout of benefits in workers’ compensation, so there is potential that this will lead to an increase in toxic exposure claims being filed under workers’ compensation.

In addition, employers will no longer have subrogation rights on toxic exposure cases. This is a potentially significant issue. Often, attorneys do not bother filing for workers’ compensation on such cases, as their focus is on larger awards available on the tort side. Attorneys know any workers’ compensation benefits have to be repaid under subrogation. There is concern from some employers and defense attorneys that eliminating subrogation rights will actually encourage filing more toxic exposure claims under workers’ compensation.

The establishment of a “Meso Fund” is also creating confusion. Employers must opt into this fund, and it is supported by additional assessments against the employers in an amount needed to cover the liabilities. If an employer does not opt into the Meso Fund, their liability for a mesothelioma claim is not subject to the workers’ compensation exclusive remedy and action may be pursued in the civil courts. Most employers do not have exposure to mesothelioma claims, so it is expected that the only employers who will join the Meso Fund are those who frequently see such claims and are looking to spread their risk to others.

Between the increased assessments, expanded benefits for toxic exposure, and the loss of subrogation on toxic exposure cases, it is expected that this legislation will increase costs for employers in Missouri.

New York
Governor Cuomo has indicated that the workers’ compensation reform legislation he recently signed into law will reduce employer costs by about $800 million annually. These savings are derived primarily by streamlining the assessment collection process and eliminating the 25-a fund and its associated assessments. New York’s workers’ compensation assessments are the highest in the nation, so employers welcome any relief in this area.

Many employers are questioning whether this legislation provides any real savings. Because the streamlining process is not known, whether or not assessments will be significantly lowered is still unclear.

The 25-a fund covered claims that were reopened for future medical treatment. Eliminating this fund does not save employers money. As occurred when the 15-8 fund (second injury fund) was eliminated under the last reforms, the claims previously paid by these funds will now be paid by employers directly, so there is no net savings realized. In addition, running off the 15-8 and 25-a funds will take several years, so the assessments — in particular those for the 15-8 — will continue. Because of the continued assessments, shutting down these funds will actually increase employer costs in the short-term. The long- term impact should be cost neutral, with the employers paying the claim costs directly, instead of through assessments.

Finally, the minimum weekly indemnity benefit was increased from $100 to $150. This will have a negative impact on employers who hire part-time workers earning near the minimum wage.

Until the impact of the streamlined assessments is known, it is impossible to quantify the overall impact this bill will have on employers. However, after the legislation passed, the New York Insurance Rating Board recommended a double-digit rate increase for the second consecutive year, indicating that they are skeptical the law will produce significant savings.

Tennessee
Tennessee also moved its workers’ compensation dispute resolution process from a court-based system to an administrative system, leaving Alabama as the only state that still uses the trial courts for all such litigation. As mentioned in regard to Oklahoma, this should reduce employer costs associated with litigation and provide more timely resolution of disputes.

Tennessee also amended its law to provide for strict statutory construction of the Workers’ Compensation Act. The law previously required that close disputes be adjudicated in favor of the injured worker. The switch means that the administrative courts no longer can favor either party and must strictly follow the statutes. In theory, this should lead to a much narrower interpretation of the statutes and reduce the courts’ expansion of what is covered under workers’ compensation. However, strict construction can work against the employer if the language in the statutes is vague. For example, several years ago Missouri switched to strict construction, which resulted in some unintended consequences. The courts in Missouri issued many decisions that were unfavorable to employers because the statutes in Missouri did not strictly indicate that occupational disease was subject to the exclusive remedy of workers’ compensation or that permanent total disability benefits stopped at the death of the injured workers.

Calculation of permanent partial disability (PPD) has also been changed in the new Tennessee law. The multipliers for not returning an injured worker to employment have been eliminated in favor of a system based primarily on the impairment rating. Overall, PPD is expected to decrease under the new system. Until cases are adjudicated under the new system, however, this remains to be seen.

Tennessee also now requires a higher burden of proof on causation. Employees must prove that the workplace is the primary cause of any injury, meaning that the employment contributed more than 50% percent in causing the injury. This is expected to significantly reduce claims where an employee’s pre-existing conditions are the main cause of the work injury.

Finally, a medical advisory committee was created to develop treatment guidelines for common workers’ compensation injuries. In other states, these treatment guidelines have helped to lower medical costs. Until these guidelines are actually in place, the exact impact is unknown.

The workers’ compensation legislation in Tennessee was designed to make the state more attractive for businesses. Employers should see lower costs as the result of the reforms.

Pending Legislation
At the time of this article, some state legislatures were still in session with pending workers’ compensation bills. It is important for companies to stay informed on state-level changes to workers’ compensation laws as they can have significant impact on costs and approaches to managing this key risk area.

Author’s Note: I would like to thank members of the National Workers’ Compensation Defense Network (NWCDN) for their assistance with this article. They are a tremendous resource in my efforts to monitor workers’ compensation developments nationwide.