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James-Worthy-SpeechLast week at the California Workers’ Compensation and Risk Conference, we were fortunate to hear James “Big Game” Worthy, NBA Hall of Fame member and three time NBA champion, deliver the keynote address. The standing-room-only crowd was treated to a motivating message about how teamwork, leadership, talent development and management, and ego management are key ingredients to winning NBA championships, but it also applied to our industry and likely all others. As an industry, we deal with all of these issues every day as we handle claims, attract and develop employees, and try to improve our industry by working together. When we have great examiners handling claims, the industry working together to ensure the system is balanced, and we deliver timely and effective benefits to injured workers while maintaining a sustainable and cost-effective system, workers’ compensation is a win-win for everyone.  The following were Mr. Worthy’s key points on what a team is really all about.

  1. Buy into the philosophy

Teamwork is essential in the workplace no matter how talented your individual team members are. Without teamwork, your workforce is going to face high turnover and lack of satisfaction in  everyday responsibilities.

  1. Be a good listener

You have to be a good listener. It is important to receive the information you are given, gather your data and then take action. Listening allows you to learn to follow before you lead.

  1. Your superstar doesn’t always have to take the winning shot

Everyone on a team is a valuable contributor. Your superstar does not always have to be the one you turn to for that important project. You have to trust each team member to be the best at whatever role they play on the team. Sometimes your superstar has to step aside and let someone else step up. You never know – they might become the next Michael Jordan.

  1. Teamwork is about talent

We have to recognize what our platform is in the organization – it’s there for a reason. You are obligated to give back and raise those around you to help meet the bottom line. Magic Johnson was a great example of someone who could will the best out of his teammates. Refusing to accept mediocrity from those around us becomes contagious to the team.

  1. How to resolve conflict

You don’t have to like everyone you work with on the team to succeed. Even if you are a superstar, you still have to fall in line with the team or there will be conflict. Disconnected talent will fail in the end; communicating and showing respect to your team is very important. The Lakers relied on the “circle of communication” where everyone had to share their thoughts no matter if feelings were hurt. Participation by everyone was the first step toward success. The second important thing was hearing from the “12th man” – the fans and commentators who brought important insight by saying things the superstars didn’t see.

  1. Everyone deserves your time

If you are a leader, you must make time for everyone on your team. When you don’t listen, you demoralize your team. Mr. Worthy said his mother taught him that everyone can make time for everyone. Never discount what your team has to say when it comes to reaching your objectives.

What makes your team successful?

Darrell Brown, Chief Performance Officer

Sedgwick was pleased to sponsor Mr. Worthy at this year’s conference.

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More and more, our clients and other risk managers and human resource directors in the industry ask how they can ensure compliance with the Americans with Disabilities Act (ADA/ADAAA). Sedgwick has sponsored the latest Risk Scenario, produced by Risk & Insurance magazine, which highlights the issue in a “real-life” way. This fictional story shows the potential repercussions of ADA/ADAAA non-compliance and offers some helpful suggestions for putting the right processes in place.

Additionally, Sedgwick will be addressing ADA/ADAAA challenges in more detail during our upcoming educational webinar in partnership with Human Resource Executive magazine. Read below for the full Risk Scenario and click here to register for our webinar discussion on September 17.

Darryl Hammann, EVP Disability Operations

The Scales of Justice

RiskScenario-ScalesOfJusticeTwo employee injuries at national grocery chain Better Harvest produce two very different outcomes. Cheerful and boisterous fish cutter Frankie Burns, who works in the Boston store, injures his back on the job. Testing reveals that he aggravated a chronic degenerative back condition and he is accommodated by his store’s GM under the Americans with Disabilities Act, per company policy.

Hector Velasquez is a fish cutter in Better Harvest’s Brentwood, Calif. store. While out dancing with his girlfriend, he takes a critical misstep and injures his back. He misses a few days of work and is in substantial pain but eventually returns, worried about bearing medical costs he cannot afford.

Velasquez starts a steady diet of ibuprofen and light beer to help him perform his job but when that is not enough, finally reports his injury to the store’s GM, asking for ADA accommodation.

The response from the Brentwood general manager is much different than the well-documented accommodation efforts made for Frankie Burns in Boston. Velasquez is accommodated and then terminated after 90 days.

Soon after, Hector finds a good employment rights attorney, who reaches a substantial settlement with Better Harvest over violations of its company policy and federal guidelines.

Read the full Scenario >

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When I began discussing medical marijuana as an emerging workers’ compensation issue more than five years ago, it had only been legalized in 12 states. In 2012, Colorado and Washington legalized the sale of marijuana for recreational use. Today, 23 states and the District of Columbia have since legalized medical marijuana with Maryland, Minnesota and New York enacting laws this year.

Legalization-of-medical-marijuana-ig0914
Eleven states passed laws this year that provide limited access to marijuana products with low tetrahydrocannabinol (THC) and high cannabidiol (CBD). In most of these states, the marijuana product is only available to patients with debilitating epileptic conditions.

In May 2014, in the case Vialpando v. Ben’s Automotive Services, the New Mexico Court of Appeals upheld an order by a workers’ compensation judge that required an employer and its insurance company to reimburse an employee for medical marijuana. It will be interesting to see the precedential value of this particular ruling, however. The employer argued that because marijuana is a controlled substance under federal law that reimbursing its use would essentially cause it to commit a federal crime. The court claimed that the employer did not cite a particular statute it was forced to violate and stated that the court would not look for one. It is probably safe to say that attorneys for employers and insurers will be careful to include this in the future.

Several other states have marijuana initiatives on the upcoming November ballots. If passed, Alaska, District of Columbia and Oregon would allow people age 21 and older to possess small amounts of marijuana and plants for recreational use. The Florida ballot initiative to be decided by voters on November 4, 2014 would legalize medical marijuana for debilitating medical conditions.

The rapid pace of change in state marijuana laws that currently contradict federal law continues to be a source of confusion in this fast-evolving national debate; additionally, there has been activity surrounding the topic within the federal government over the past year. In an interview published January 27, 2014 with The New Yorker magazine, President Obama said that while marijuana is a vice, a waste of time and not very healthy, it is no more dangerous than alcohol.

In May 2014, the U.S. House of Representatives voted 219-189 in favor of an amendment to prohibit the Drug Enforcement Administration (DEA) from investigating, prosecuting and incarcerating those who comply with state medical marijuana laws. This may be the most significant indicator this year of the change in public opinion regarding medical marijuana. There is currently no change in federal law, however, because the amendment – added to HR 4660, the Commerce, Justice, Science and Related Agencies Appropriations Act – has not passed the Senate. Interestingly, the language in the amendment that passed had been previously offered seven times since 2003.

In August 2013, the U.S. Department of Justice (DOJ) updated its federal marijuana enforcement policy that marijuana remains an illegal drug under the Controlled Substances Act (CSA) and that federal prosecutors will continue to enforce this statute. The announcement further indicated that the department would continue to rely on states and local law enforcement agencies to address lower-level marijuana activities by enforcing their own narcotics laws; the DOJ also informed the governors of Colorado and Washington that it was deferring its right to challenge their legalization laws at this time.

There have been multiple attempts to reclassify marijuana under the CSA schedule over the years. Most recently, the Americans for Safe Access petitioned the DEA to reclassify marijuana; the request was rejected, stating a lack of FDA-quality clinical trials confirming the drug’s value in treating medical conditions. Claiming the DEA ignored hundreds of peer-reviewed studies demonstrating marijuana’s efficacy, the Americans for Safe Access sued to overturn the agency’s decision. In January 2013, in Americans for Safe Access, et al v. DEA, the United States Court of Appeals for the District of Columbia Circuit upheld the DEA’s action. In October 2013, the United States Supreme Court rejected a petition to review the ruling.

Given the new report on the dangers and consequences of marijuana abuse, published by the DEA in May 2014, it does not seem likely that this agency will agree to reclassify marijuana in the near future. The report states, “Organizers behind the medical marijuana movement did not really concern themselves with marijuana as a medicine – they just saw it as a means to an end, which is the legalization of marijuana for recreational purposes.”

Whether research such as a multi-institutional study led by researchers at University of Pennsylvania’s School of Medicine will change the DEA’s current position is yet to be seen. In August 2014, a study published in JAMA Internal Medicine found that medical marijuana laws are associated with significantly lower state-level opioid overdose mortality rates; although, it is noted that further investigation is required to determine how medical marijuana laws may interact with policies aimed at preventing opioid analgesic overdose.

In the meantime, the largest paper in the nation has joined the discussion. In July 2014, the editorial board of The New York Times called for the federal government to repeal the ban on marijuana, comparing it to the prohibition of alcohol. What do you think?

Staying informed and developing a company policy to address the use and reimbursement of medical marijuana for on-the-job injuries is important. Are you prepared for legislative changes or an adverse decision like the one in New Mexico? How will changes to marijuana laws impact where you live or your business? Make your voice heard on this issue.

Darrell Brown, Chief Performance Officer

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Having just returned from the G31000 annual conference where I had a chance to present and participate in a panel discussion, I’d like to share my thoughts on current risk standards and a bit on where we seem to be headed. Full disclosure, this forum I attended promotes ISO31000 (31K), which grew out of the Australian/New Zealand 4360 standard.iso2

For starters, I found the statistics generated by an extensive G31000 sponsored survey nothing short of astounding. Adoption of ISO31000 around the world has reached an all-time high. After getting its DNA from ASZ4360 in the late ’90s, with very competent shepherding by Kevin Knight, this most flexible risk “standard” represents a comprehensive guide for practitioners to design and implement customized risk strategies, which would then inform and flesh out their resulting frameworks. Your framework, of course, defines the tactics you would use to “make things happen.” The survey of over 1,800 respondents in 111 countries (with 40% from the U.S., UK and Australia) by G31000, the organization that has helped evolve and perpetuate global use of this standard, reveals that 60% have a clear understanding or some knowledge of 31K while 40% confirmed that they use the standard to guide “all” key decision making in their organizations. Interestingly, 74% said that they believe their professional associations should strongly endorse or recommend 31K as the best standard in order to achieve organizational success.

Contrasting 31K with other common risk standards, the survey showed that twice as many adhere to 31K over COSO ERM, the auditor/accountant designed standard that emerged around the time of Sarbanes Oxley and that, in the opinion of many, frankly derailed early efforts to deploy ERM strategies in favor of the more narrow focus on financial reporting accuracy. Many firms adopted COSO ERM in lieu of others and while useful in many respects, its control environment focus leaves it less flexible and customizable (notwithstanding the recent issuance of the COSO 2013 update of their Internal Controls framework). Interestingly, 40% of respondents claim to have created and use their own “standards,” though I strongly suspect this finding is more likely a reference to risk frameworks since practitioners don’t typically create their own “standards,” however, it is not impossible to do so. After all, if it is self-designed, I would argue it hardly meets the definition of a standard typically externally promulgated.

Disappointingly, results for U.S. respondents reflect a 31K take-up rate that lies in stark contrast to the global take-up rate. Only 20% of U.S. based respondents claim to use 31K, while 12% claim to use COSO ERM. This latter statistic is the more surprising of the two as the longstanding impression among U.S. ERM experts has been that COSO was much more commonly used. All the better however, since migration away from COSO to 31K would be an advisable strategy for those that prefer less prescriptive risk guidance.

Finally, a surprising 43% believe that 31K ought to have certification as a requirement, with only 9% supporting it as a mandate. While on its face, organizational certification may seem useful, I believe users will ultimately regret the way it layers costs and time requirements on organizations whose time and resources can be better applied to the management of risks. Encouragingly, 24% plan to implement 31K in the future, which will undoubtedly only increase its gravitational pull towards even wider adoption over time.

Chris Mandel, SVP, Strategic Solutions

 

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On August 13, 2014 Miami-Dade 11th Circuit Judge Jorge Cueto in Florida Workers’ Advocates v. State of Florida held that the Florida Workers’ Compensation Act, as amended effective October 1, 2003, is unconstitutional as long as it contains the exclusive remedy provision (Section 440.11, Florida Statute). The reason he provided for this conclusion is that the benefits provided under the Act do not medical-legal-ACAprovide the worker “a reasonable alternative to the tort remedy supplanted.”

In 2003 reforms were enacted to increase the availability and affordability of coverage and reduce litigation. Since those reforms premium rates have been reduced by approximately 56 percent.

Some provisions of the bill effective on October 1, 2003:

  1. The workers’ compensation accident must be the major contributing cause for disability or the need for treatment.
  2. Elimination of the payment of permanent partial disability benefits available in certain cases.
  3. Permanent total disability benefits were changed to end at age 75 in most cases.
  4. Permanent total disability benefits are payable for no more than 5 years, if the employee was 70 or older at the time of accident.
  5. Limited the fees paid to attorneys in workers’ compensation.

Precedential Value

This circuit court opinion does not establish any precedent for trial courts in the rest of the state. Unless and until this decision is addressed by an appellate court, it has no precedential value. Moreover, since the issue of whether an employer is immune from tort liability in any given case is not one that concerns the Judge of Compensation Claims (JCC), the Circuit Court’s ruling has no effect on pending or future workers’ compensation claims.

 Background and Case Summary

This issue began with a complaint for damages brought by Julio and Nelida Cortes who alleged injury due to the negligence of his employer, Velda Farms. The employer raised the affirmative defense that workers’ compensation was the employee’s exclusive remedy. The complaint was then amended to seek a declaration that the exclusive remedy provision was invalid because it violated the due process clause of the 14th amendment of the U.S. Constitution as well as various rights guaranteed by the Florida Constitution.

Florida Workers’ Advocates (FWA) and Workers’ Injury Law & Advocacy Group (WILG) sought and were granted the right to intervene as plaintiffs. Thereafter, Velda Farms abandoned its exclusive remedy defense. FWA and WILG moved to sever the declaratory relief action from the personal injury litigation. This motion was granted and the matter was allowed to proceed independently although the only defendant, Velda Farms had been dismissed. Elsa Padgett, through her counsel moved to intervene and the motion was granted, although her employer was not named as a defendant. The attorney for Ms. Padgett happens to also be the attorney for the defendant in the Westphal v. City of St. Petersburg case pending before the Florida Supreme Court. See below for detail on this case.

The State of Florida, Office of the Attorney General was notified of the proceedings, but did not intervene except to file a response to the court’s order to show cause why the state’s workers’ compensation exclusive remedy provision should not be declared unconstitutional.

The Office of the Attorney General argued the following in their response:

  • The trial court did not have jurisdiction to consider the claim because there is no defendant,
  • The Florida workers’ compensation framework is constitutional, and
  • Workers’ Compensation benefits have always been limited, and a change to benefits is within the Legislative prerogative.

What’s next?

The Attorney General has not announced whether or not the decision will be appealed. If appealed, the case will be heard by the 3rd District Court of Appeal in Miami.   The appeal court can uphold or reverse the ruling.  If the appeal court upholds Judge Cueto’s opinion the case would be heard by the Florida Supreme Court.

The appellate court can also “pass” on review of the decision and send the case directly to the high court.

If not appealed, this circuit court opinion has no precedential value for trial courts in the rest of the state.

What do we expect to be the immediate effect of this decision?

It is likely that more negligence lawsuits will be filed by injured employees against their employers in Miami-Dade County. As pointed out in the decision, Florida changed from a contributory negligence state to a comparative negligence state in 1973, which improves an employee’s chance of recovery if suing the employer for negligence.

Since in general there is a four year statute of limitations applicable to legal actions founded on negligence in Florida, there may be instances of workers’ compensation claimants resolving their workers’ compensation claim and then pursuing a tort action against the employer.

What is your reaction to this ruling? As an employer are you concerned about the ruling or do you think it is much ado about nothing?

Sedgwick will continue to update our clients and stay actively involved in monitoring the judicial process and engaging our clients, as appropriate in the legislative process. Watch for additional updates as the ruling passes through the judicial process.

Darrell-Brown-Sedgwick-180px

 

 

 

Darrell Brown, Chief Performance Officer

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RiskResource-ERMblog022014Providing safe care to children and avoiding liability is a top concern for most emergency department (ED) providers and facilities. ED use by children under age six is frequent, accounting for more than 30 million encounters and 24 percent of annual ED visits in the U.S., according to a 2012 National Report on Health Statistics.1 Three quarters of pediatric emergency visits are to hospitals that are not children’s hospitals.2 Recognizing this, the American College of Emergency Physicians (ACEP) currently offers its members an online course, culled from its 2013 scientific assembly entitled, “The Pediatric “Risk-Free” Emergency Department: Reducing Malpractice Exposure” (http://virtual.acep.org/ common/presentations.aspx/4/18/390).

Indeed, ACEP, along with the Emergency Nurses Association (ENA) and the American Academy of Pediatrics (AAP) published a Joint Policy Statement setting forth guidelines and the resources necessary for EDs to serve pediatric patients.3 According to the joint guidelines, the first essential for managing pediatric emergency care is to appoint physician and nurse coordinators for the care of children in the department. Having these coordinators in place supports responsibility for ensuring provider and staff competencies in pediatric care, implementation of risk management/patient safety/quality improvement activities, and development of appropriate policies and procedures for pediatric emergency care.

A useful self-assessment checklist to assess ED readiness to safely care for children has been developed based on the joint guidelines. The checklist is available online at the ENA website: http://www.ena.org/about/position/jointstatements/Documents/GuidelinesfortheCareofChildreninED2010.pdf.

Top areas of risk for pediatric emergency care include communication breakdowns during transitions of care and handoffs, barriers to obtaining adequate histories and presenting problems, and challenges with ensuring safe medication prescribing and administration. These areas are compounded when the culture in the ED is not conducive to teamwork and the work environment does not allow staff to speak up when there are concerns about safety and quality.

Strategies to address these top areas for pediatric safety improvement in the ED center on enhancing teamwork, implementing standardized communication tools, and using evidence-based safe practices. Resources to implement these strategies include the following:

TeamSTEPPS® – an evidence-based teamwork system to improve communication and teamwork skills in support of a culture of safety. Higher hospital patient safety culture survey scores have been associated with lower adverse event rates.4 TeamSTEPPS is freely available from the Agency for Healthcare Research and Quality. See http://teamstepps.ahrq.gov/.

ED “Safer Sign Out” protocol – this team-based intervention to improve safety and prevent communication failures during shift changes and care transitions that can lead to patient harm and liability is promoted by and readily accessible through The Emergency Medicine Patient Safety Foundation. See http://safersignout.com/.

Joint Commission Sentinel Event Alert: Preventing pediatric medication errors – this literature contains guidance on pediatric medication safety in the emergency department.5 See: http://www.jointcommission.org/sentinel_event_alert_issue_39_preventing_pediatric_medication_errors/.

There is increasing evidence of a significant correlation between the frequency of adverse events and malpractice claims. 6 Examination of serious safety events and liability claims can also reveal high-risk areas and diagnoses or conditions ripe for risk prevention efforts. Diagnostic error is a frequent allegation in claims involving pediatric patients, 7and conditions related to these errors include infections such as meningitis, appendicitis, and sepsis. Both cognitive and system factors contribute to diagnostic error.

Analysis of a high-profile ED case involving the death of a 12-year-old in New York from streptococcal toxic shock in 2012 revealed several possible cognitive and system factors leading to error in diagnosis. Possible contributing cognitive factors include: 8

  • Availability bias: Gastroenteritis was prevalent at the time
  • Received diagnosis: Reliance on diagnosis from referring provider
  • Premature closure: Assuming first diagnosis is accurate without considering another
  • Anchoring bias: Not considering new information/not listening to the patient

Possible contributing system and communication factors include:

  • Initial vital signs lacked a temperature
  • Discharge vital signs not reviewed by the physician
  • Abnormal labs not reviewed or not acted on

Here are five strategies for mitigating these cognitive and system/communication factors and reducing risk of diagnostic errors that can result in patient harm and expose ED providers to liability include:

  • Awareness of cognitive factors by ED providers, deliberate self-assessment, and cross monitoring with peers
  • Use of algorithms and screening tools for high-risk conditions such as sepsis and abdominal pain
  • Implementing decision support systems that prompt considerations of alternative diagnoses
  • Auditing compliance with patient intake, assessment, and discharge procedures and correcting noncompliance
  • Establishing protocols for communicating and acting on diagnostic results and assigning accountability for carrying out the protocols

Ongoing training and education in the care of children –ACEP, ENA, AAP, and other professional societies provide clinical education programs to develop and maintain pediatric competencies and skills.

What has been your experience regarding pediatric saferty in the ER? I look forward to hearing from you.

Kathleen Shostek, RN, ARM, BBA, FASHRM, CPHRM
Sedgwick

 

References

1. National Center for Health Statistics. Health, United States, 2012: With Special

Feature on Emergency Care. Hyattsville, MD. 2013.

2. Schappert SM, Bhuiya F. Availability of pediatric services and equipment in

emergency departments: United States, 2006. National health statistics reports; no

47. Hyattsville, MD: National Center for Health Statistics. 2012.

3. AAP Joint policy statement—guidelines for care of children in the emergency

department. Pediatrics 2009 Oct;124(4):1233-43. http://pediatrics.aappublications org/content/124/4/1233.full.html.

4. Mardon, et al. Exploring Relationships Between Hospital Patient Safety Culture and

Adverse Events. Journal of Patient Safety, 2010. Vol. 6 (4) 226-32.

5. Cadwell S. Pediatric medication safety in the emergency department. J Emerg Nurs

2008;34:375-7.

6. Greenberg MD, Haviland AM, Ashwood JS, Main R. Is better patient safety

associated with less malpractice activity? RAND Institute for Civil Justice, 2010.

Available at http://www.rand.org/pubs/technical_reports/2010/RAND_TR824.pdf.

7. Data Sharing Project 1985-2010. Physician Insurance Association of America (PIAA),

Rockville, MD.

8. Ryan R and Fischer S. Risk and Claims in Pediatrics: A case study in sepsis. Available

online

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MH900309611

You need to be prepared when they do! Because we are the leave administrator for many large employers, since the first of the year, Sedgwick has received an increased number of requests to assist our clients with Department of Labor (DOL) inquires including but not limited to the Family Medical Leave Act (FMLA). This should come as no surprise to employers. At the Disability Management Employer Coalition annual compliance conference earlier this year, Helen Applewhaite, DOL Branch Chief for the Wage and Hour Division (WHD), stated “2014 is a pivotal year for FMLA enforcement”. The DOL’s Wage and Hour division has approximately 1000 field investigators who are responsible for all Wage and Hour Division investigations, including the FMLA. So they are staffed and ready to carry out their mission!

The DOL is no longer focused on investigating a single complaint. They are now looking more broadly and will be undertaking systemic – on site investigations and looking at employer’s practices from top to bottom. In their “Fact Sheet #44: Visits to Employers,” the DOL states “WHD does not typically disclose the reason for an investigation. A full version can be found here: http://www.dol.gov/whd/regs/compliance/whdfs44.pdf

So what can you expect when the DOL shows up without an explanation? Here are four steps to take prior to a potential DOL meeting:

  1. Host an opening conference with investigators and employer representatives – be sure to engage your employment counsel
  2. Review leave records typically for a two year period – contact your leave administrator as soon as possible, if applicable, so they can assist in gathering this information for you
  3. Conduct interviews with a “representative number” of your employees – this will require some preparation with the staff that is chosen
  4. Organize a closing conference to discuss the results of the investigation – again, you may want to engage your employment counsel here as well

Since FMLA is a Federal entitlement the DOL takes it very seriously when they think an employer is attempting to interfere with an employee’s right to take leave or worse, terminate an employee who was using FMLA protected time!

What can employers do to help avoid the DOL visit?

Train your front line mangers! This was another message I heard loud and clear from the DOL Branch Chief, who stated “Human Resources has everything perfect, but front line managers are not aware.” Be sure your managers understand the requirements of the FMLA. Stress the importance that prior to taking any adverse employment action, they must do their homework to determine if there is any potential FMLA overlap between the adverse employment action they are contemplating and FMLA protected time. Even if the adverse employment decision has nothing to do with their FMLA claim, it can get tricky if the employee has an approved FMLA leave. If you have outsourced your leave administration, managers should be trained to contact the leave administrator to ensure managers have all the facts around the employee FMLA leave.

I would like to hear from you if the DOL has already knocked on your door. What was the outcome? As always our team of Sedgwick experts would be happy to assist you in this area.

Sharon Andrus
Director National Technical Compliance
Sedgwick

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medical-legal-ACAWhen the Affordable Care Act (ACA), courts and differing points of view are all mentioned in the same sentence it should not surprise anyone, should it? If you watch Jimmy Fallon on the Tonight Show, he has a regular feature called “Pros and Cons” of current social topics. Let’s take our own pro/con look at recent movement in the courts and what – if any – impact it might have on the workers’ compensation arena.

Con

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled that the Affordable Care Act does not allow subsidies on federally run exchanges. This includes plans that have been purchased in the 36 states currently supporting the health insurance exchange.

Pro

The same day (and hours apart), the U.S. Court of Appeals circuit in Richmond, Va., issued a conflicting ruling that upheld the legality of the healthcare law’s tax subsidies.

What should I do now?

Nothing. Right now there is no impact or change to the law and the ACA will continue to roll along as it is currently defined. In April of this year, I blogged on “The impact of the ACA on workers’ compensation,” and you can refer back to better understand the interconnection of workers’ compensation and the Affordable Care Act. The reality – these are just two of what will be many more court cases and rulings to come in weeks and months ahead of us. I feel fairly certain, as do other experts who have already written in recent days, that this will ultimately end up in the Supreme Court.

You can count on Supreme Court action not happening for a few months and most likely we are looking at years before a possible definitive Supreme Court case is fought. A new administration and a different-looking congressional body will also be in place by that time. As pointed out in this Washington Post article, Federal appeals courts issue contradictory rulings on health-law subsidies, the court rulings were heavily influenced by appointed judges of each party. The article provides a great overview of how the courts are aligned and strategies for appeal if you are interested in additional perspective.

Keep calm and carry on.

As the popular shirts and posters say, “keep calm and carry on” for now. The way patients are treated and their access to care will not change or stop in light of either of these two rulings. What we must do in the industry is help the injured worker become more engaged and part of their healthcare decisions as the legal decisions continue to rage on and unfold.

What I can definitively say is we will continue to closely monitor all these changes. The future will not be boring nor easy to navigate. Please feel free to ask questions or reach out on how your organization should be preparing for the future of the ACA as it relates to workers’ compensation.

Kimberly George, SVP, Senior Healthcare Advisor

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stress-in-the-workplaceStress in the workplace is a public health issue that the World Health Organization called the “health epidemic of the 21st century.”

According to the 2013 Stress in the Workplace national survey by the American Psychological Association, 65% of U.S. adults cited work as a significant source of stress and 35% of working Americans reported that they typically feel stressed during the workday.

As pointed out in the University of Illinois at Chicago (UIC) research study on stress in the workplace, there is a widespread understanding that high amounts of stress are unhealthy and can play a contributory role in or exacerbate mental health conditions, as well as chronic physical conditions like hypertension, cardiovascular disease, diabetes, obesity, asthma, cancer or a weakened immune system.

The costs of employee stress to American businesses are substantial and include healthcare costs nearly 50% greater for workers reporting high levels of stress, diminished productivity, increased risk of occupational injury, absenteeism, employee turnover and workers’ compensation awards.

Were this outbreak an infectious disease that we could vaccinate against with costs and prevalence rates this significant, we would mount an urgent national effort.

In concluding our series on stress in the workplace, let’s look at just what are employers’ obligations to address and proactively manage this issue.

A wide range of workplace laws is in place to protect employees and to ensure fair treatment. Some of those laws employers should consider when employees report being highly stressed or dealing with mental issues include:

  • OSHA: Under OSHA’s General Duty Clause, Section 5(a) (1), employers must maintain a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. While stress or mental illnesses are not specifically addressed, OSHA has issued guidelines for establishing programs to minimize workplace violence.
  • Workers’ compensation:  Claims for work-related stress under workers’ compensation benefits may be the first indicator of a workplace issue. The availability for benefits varies from state to state for work-related stress.
  • EEOC guidance on psychiatric disabilities under the ADA: The EEOC has issued guidelines to facilitate the enforcement of the Americans with Disabilities Act (ADA) for individuals alleging discrimination on the basis of psychiatric disability. Whether job-related stress falls within the purview of the ADA has been considered by several courts and, to date, the majority of courts have held that job-related stress is either not a disability or handicap, or that the employee is not entitled to reasonable accommodation.

Because of the complexity of these laws and the risk involved, employers should seek advice from legal counsel and medical health professionals when addressing them.

In addition to the laws mentioned above, the Affordable Care Act (ACA), building on the Mental Health Parity and Addiction Equity Act of 2008, requires coverage of mental health and substance use disorder benefits for Americans in the individual and small group markets who previously lacked those benefits. The ACA also expanded parity requirements to apply to millions of Americans whose coverage did not previously comply with those requirements.

While there are currently no specific laws dealing with stress in the workplace, most businesses recognize a responsibility to treat the wellbeing of their employees as an important business obligation that is important to their success.

What can employers do to address high levels of stress in the workplace? As an initial framework, the UIC study recommends a discussion beginning with three areas: organizational change; screening and outreach; and managing the risk of prescription drugs that impair performance. 

Stress in the workplace is a growing issue and we encourage employers, risk managers, clinicians, public health advocates, ethicists, elected officials and policymakers to engage on how to attack the problem.

Desiree Tolbert, National Technical Compliance Manager

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I think everyone reading this blog has been touched by alcohol or substance abuse in their lifetime, whether personally or through the experience of an acquaintance, a family member, a close friend, a classmate or a colleague. We know the dangers of illegal drugs and overindulging in alcohol, but not as many of us understand the dangers of misusing prescription drugs. We rely on our pharmacists and our doctors to educate us on the medications we take. But what if we receive prescriptions from multiple doctors or fill our prescriptions at multiple pharmacies – maybe one close to work and one close to home? What percentage of the population reads the drug warnings that come with medications?

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Recently I was very surprised to learn that an acquaintance is a recovering addict. She doesn’t fit the description of what I would consider a drug addict (not that there really is a profile for a drug addict); she comes from a supportive middle-class family, she’s educated, pretty, active, has a good job, lives in a nice community and loves animals. She talked about her past drug abuse, the people in her Narcotics Anonymous meetings and her seven years sober. Although she knew that I worked as a product manager doing something in the “medical field,” she was equally surprised to learn that part of my job is to develop narcotic management strategies for employers. She asked me how prevalent prescription painkillers are in the United States, so I shared with her the following facts:

  • The Centers for Disease Control and Prevention reported that enough narcotic painkillers are prescribed in the U.S. to medicate every adult American 24 hours a day for 1 month. Said another way, enough narcotic painkillers are prescribed to medicate 1 in 12 adult Americans around the clock for a year.
  • More people die from accidental prescription drug overdoses than car accidents.
  • More people die from accidental prescription drug overdoses than heroin, cocaine and all other illicit drugs combined.
  • The U.S. consumes 80-90% of the world’s supply of prescription painkillers, yet represents only 4.4% of the world’s population.
  • The street value of Oxycontin can reach up to $1/mg so an 80mg pill can fetch up to $80, making it significantly more expensive than heroin.
  • The #1 prescribed medication in the U.S. in 2012 was hydrocodone/acetaminophen (Vicodin).
  • 70% of all Americans who took a prescription drug for non-medical use obtained the drug from a friend or family member.

With every statistic, her jaw dropped lower. I will spare you all the details of our 45-minute conversation, but I will share with you her immediate response: “What can I do?” She wanted to help. Here’s what I told her:

  1. Don’t give your family or friends your unused medications.
  2. Keep all medications in a locked cabinet away from children, teenagers, family members and friends.
  3. Properly dispose of old prescriptions. The Drug Enforcement Agency created a national take-back program where Americans nationwide can dispose of unused, unwanted or expired medications on the last Saturday in April and the last Saturday in September/October. The program’s website also lists ways to dispose of medications properly if one of the 6,072 collection sites is not convenient.
  4. Assist elderly relatives in disposing of unused or expired medications.
  5. Educate others on the risk of combining alcohol with opioids. Alcohol and opioids are respiratory depressants, meaning they reduce our drive to breathe and can cause breathing to stop. Combine alcohol, opioids and benzodiazepines and the risk of accidental overdose increases significantly.
  6. When in doubt, ask your doctor or pharmacist about drug, food and vitamin interactions.
  7. Read the labels on medications; there is valuable information about the risks associated with the medication and how to take it safely.
  8. Don’t take expired medications or medications prescribed to others.
  9. Answer your doctor’s questions honestly.
  10. Only take medications as prescribed.

When taken properly, prescription painkillers can greatly reduce pain while the body heals after an injury or surgery. However, they can have unintended consequences if used improperly. We all have a stake in controlling the prescription painkiller abuse epidemic – from the drain on our emergency rooms, the cost to our healthcare system and, most importantly, the tragic loss of human life.

So I ask what are you going to do to be part of the solution?

Additional information can be found on the Centers for Disease Control and Prevention website.

Jamie Harer, Managed Care, Specialty Products Manager