Workers Compensation (WC) Winter 2018

Anti-fraud Employers Hispanic Raising efforts, first face complex workers the bar responders drug-testing see higher on safety and more rules injury rates standards PAGE 6 PAGE 14 PAGE 20 PAGE 24WORKERS COMPENSATION WINTER 2018 | ISSUE 4 VOL. 4 HEALTH CARE VIOLENCE Those trained to care for others face heightened attacks themselves PAGE 10 A PUBLICATION OF



CONTENTS WINTER 2018 | ISSUE 4 VOL. 4 14 2010 24 30COVER STORY FEATURES10 Dangerous ground 14 In a fog over workplace drug testsThe day-to-day scenarios on the job encountered by health Shifting regulatory stances on drug and alcohol testing incare workers make them disproportionately more vulnerable the workplace make for a hazy environment.to physical and verbal assault, rape and homicide, resulting in By Louise Esolahigher injury and illness rates than other “dangerous” industries.By Gloria Gonzalez 20 Higher safety risks for Hispanics DEPARTMENTS The risk of injury and illness is not always equal, even when workers are in the same industry or have the same job. By Rixio Medina 24 Benefits of safety management Occupational health and safety management systems may be due for more widespread adoption. By Todd Grover 4 EDITORIAL COLUMNS 6 STATE-BY-STATE 9 STATE PROFILE 30 Giving Back 28 THE FORUM One organization helps children of injuredA PUBLICATION OF workers pursue their educational dreams by raising scholarship funds. From Kids’ Chance WC WINTER 2018 3

EDITORIALTaking care of caretakers WORKERS COMPENSATIONA cruel irony for health care workers is that the very people whose calling is WINTER 2018 | ISSUE 4 VOL. 4 to treat the sick and injured are more vulnerable to being hurt themselves by the nature of their jobs. CEOViolence against doctors, nurses and other caregivers is rising as employ- Adam Potterment in the sector grows, but health care workers also are proportionally much PUBLISHER Keith Kenner more likely to face violence in the workplace than other [email protected] private-industry employers. EDITOR Gavin Souter Dealing with distressed or impaired patients, their [email protected] family members or associates can lead to incidents where DEPUTY EDITOR Gloria Gonzalez health care employees suffer physical harm or are killed [email protected] as they carry out what for them are everyday work tasks. REPORTER Louise Esola In addition, the mental abuse that health care workers [email protected] suffer as a result of verbal attacks, which is not suffi- COPY CHIEF Katherine DowningGavin Souter ciently tracked, creates another dimension to workplace [email protected] EDITOR violence in hospitals and other health care settings. COPY EDITOR As we report in our cover story, risk managers and Brian Gaynor [email protected] compensation professionals have several tools at hand to help reduce ART DIRECTORattacks on health care staff, starting with better incident reporting procedures. Jeremy Werling [email protected] it remains a complex problem, and further efforts clearly are needed to HEAD OF ADVERTISING SALEScurb what is too often a fatal workplace hazard. Jeremy Campbell [email protected] complex problem found in many workplaces is drug testing. While VICE PRESIDENT OF MARKETINGemployers have found such tests useful in pre-employment screening and Brian McGann [email protected] post-incident investigations, the changing legal environment has created DIRECTOR OF MARKETING & EVENTSchallenges for firms applying the tests. Katie Kett [email protected] legalization of medical and recreational marijuana in various states — MARKETING & EVENTS MANAGEReven though state laws conflict with federal law — means that employees must Brittany Collins [email protected] their testing protocols to ensure they adapt to the new environment. SUBSCRIPTIONS & SINGLE COPY SALESAs we report on page 14, while most experts advise employers that they [email protected] 954-449-0736can keep testing workers for drug use, they should also check the state laws in WC is published four times a year and coversall the jurisdictions where they operate to ensure that they comply with the the trends and topics of interest to professionals responsible for the cost-effective resolution of workersshifting legal landscape. compensation claims — risk and litigation managers, insurance and claims professionals, corporateAnother area where employers should take a nuanced approach is workplace counsel, outside counsel and services providers.safety. As safety expert Rixio Medina explains on page 20, Hispanic workers Copyright © 2018 by Business Insurance Holdings. All rights reserved. No part of this publication mayare injured at a higher rate than the average of all workers, and employers be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying,with Hispanic populations must create safety programs that reflect the needs recording or otherwise, without prior written permission of the Business Insurance Holdings.of those workers. A PUBLICATION OFFinally, all safety programs can benefit from additional attention, says The views expressed in contributed articles are solelysafety standards expert Todd Grover on page 24. By taking into consideration those of the authors and do not necessarily reflect the views or opinions of Business Insurance Holdingsall hazards that can surface in a workplace rather than just complying with or the companies in which the authors are employed.regulatory requirements, employers can take safety to the next level to benefittheir employees and their organizations.4 WINTER 2018 WC

JANUARY 30 - FEBRUARY 1, 2019 TURNBERRY ISLE | MIAMI, FLORIDACelebrating its 28TH year, the 2019 World Captive Forum will address new and emerging risks facing companiesand organizations worldwide, demonstrating how captives can offer solutions that may not be available inthe traditional insurance marketplace. A domicile-neutral conference, the World Captive Forum providesin-depth, high-caliber educational content to risk managers, benefit managers and financial executives whoseorganizations have risks insured by a captive or who are exploring the formation of one. The meeting also drawsleading providers of captive services, including captive management, legal, accounting, actuarial, claims, assetmanagement, fronting and many other services, as well as numerous regulators and representatives from majordomiciles. Additionally, delegates to the WCF enjoy unparalleled networking and business opportunities.WHO SHOULD ATTEND? EARLY SPONSORS • Captive owners and those interested in forming a captive –BTIRHRDORUAGTHE—S • Captive managers DECEMBER 1, DIAMOND • Service providers • Investment managers 2018 • Reinsurers • Domicile regulators and officials • Brokers OPENING KEYNOTE GOLD JEFF CARR SILVER President and Senior Economist Economic & Policy Resources, Inc. REGISTER, VIEW FULL AGENDA & MORE: BusinessInsurance.com/conference/wcfSPONSORSHIP INFORMATION | Jeremy Campbell | [email protected] | 513-737-4063

STATE-BY-STATE WORKERS COMPENSATION NEWS FROM ACROSS THE USFRAUD EFFORTS LIKELY cies when not on official duty and out ofPAYING OFF: BUREAU state will be able to collect workers com- pensation benefits, according to one of then Efforts to identify and prosecute pro- four comp-related bills Gov. Jerry Brownvider fraud in the California workers signed into law in September.compensation system is likely reducingsuch payments and lowering their associ- Under A.B. 1749, it will be up to theated costs, according to a report released first responder’s “employing agency”in October. whether an injury suffered out of state is compensable, according to the law As of April 7, more than 450 medical that was introduced earlier this year inproviders had been indicted and/or suspended by the California Department of response to the California officers injuredIndustrial Relations from practicing in the state’s system. while providing assistance to Las Vegas first responders following the mass shoot- “Many of these providers previously billed and were paid significant amounts for ing there in October 2017.workers compensation-related services,” the report by the Workers CompensationInsurance Rating Bureau of California stated. “While many of the procedures billed Gov. Brown also signed into law the fol-by these providers may have been for legitimate services, the suspension of their lowing bills:practices in California’s workers compensation (system) is likely a significant driverof reduced medical costs.” • A.B. 2046, which forces governmental agencies involved in combating workers Within California’s comp system, the share of medical payments to indicted provid- compensation fraud to share data, amongers declined to 1.9% in the second half of 2017 from 7.2% in the second half of 2012, other changes to anti-fraud efforts.while the share of paid transactions by indicted providers fell to 1.4% from 4.4% overthe same period, according to the report. • S.B. 880 allows employers to pay indem- nity benefits with a prepaid credit card. The total medical payments to indicted providers peaked in 2013, when 23% ofmedical lien payments, 14% of pharmaceutical payments and 4% of payments for other • S.B. 1086 eliminates a law that pro-medical services were made to these providers, according to the report. Since 2013, the vides an extended statute of limitationsshare of total payments to indicted providers declined across all types, but the propor- for workers compensation death benefitstion of medical lien payments to these providers increased by 130% from 2013 to 2017. payable to the survivors of public safety officers who die as a result of work-related cancer or other specified diseases.ALASKA be successful and in compliance, and will POT INDUSTRY COMP help workers clearly understand what PROGRAM LAUNCHEDGOVERNOR SIGNS constitutes independent contractor sta-COMP REFORM BILL tus,” she said. n Atlas General Insurance Services LLC has launched a workers compensationn Gov. Bill Walker in August signed into The Alaska Truckers Association, the program for the cannabis industry inlaw a bill that aims to reduce administra- Alaska chapter of the National Federa- California, the program administratortive costs in the workers compensation tion of Independent Businesses, Painters announced in August.system and provide a clear definition of Local 1959, and the Alaska Homebuild-independent contractor, thus helping to ers Association all testified in support of The program, affiliated with Accreditedcombat worker misclassification. the bipartisan legislation, according to the Surety and Casualty Co., can cover work- statement issued by the governor’s office. ers comp risks involved in all aspects of H.B. 79 also creates an interim legisla- the cannabis industry, including growers,tive workers compensation working group CALIFORNIA extractors, analytical labs, medicine man-tasked with reviewing the comp system. ufacturers, food and beverage products LAS VEGAS SHOOTING manufacturing, packaging, warehousing Worker misclassification is a growing PROMPTS COMP LAW CHANGE and distribution, transportation and dis-problem in the state, Labor Commission- pensaries, according to a statement issueder Heidi Drygas said in a statement. n California police officers and firefight- by San Diego-based Atlas. ers injured while responding to emergen- “Providing a clear definition of inde-pendent contractor will help businesses6 WINTER 2018 WC

While the program is available only in judge conducted a formal hearing on the Corp. as a relief operator when he injuredCalifornia, Atlas will open the program Longshore Act claims in 2013, hearing his right shoulder in 2013 and underwentin other states with legalized cannabis, testimony of two physicians, both stating four surgeries, reaching maximum medi-according to the statement. that “smoking contributed to (the dece- cal improvement by mid-2016, according dent’s) lung cancer, but his asbestos expo- to documents in John J. Bower v. Eaton California Insurance Commission- sure was a substantial contributing cause,” Corp. and Old Republic Insurance Co.,er Dave Jones previously had called for records state. Citing other evidence, the filed in state Supreme Court in Lincoln,workers compensation products to serve administrative law judge concluded that Nebraska.the marijuana industry. Mr. Filosi’s cancer was work-related. Mr. Bower appealed an award of theCONNECTICUT ILLINOIS Nebraska Workers’ Compensation Court that concerned a number of issues,SHIPYARD WORKER’S WIDOW GOVERNOR VETOES including his impairment rating, wheth-WINS ASBESTOS CASE RULING MEDICAL PAYMENTS BILL er an injured extremity caused a whole body impairment, the sufficiency of then The Supreme Court of Connecticut in n Outgoing Illinois Gov. Bruce Rauner evidence to prove out-of-pocket medicalSeptember ruled that a shipbuilder can- in August vetoed a bill that would have expenses and future medical expenses, thenot litigate a claim filed by the widow of amended workers compensation law in necessity of vocational rehabilitation, anda shipyard worker who died of lung can- relation to fees and electronic claims. the amount of attorney fees, according tocer following asbestos exposure because a documents.federal judge already ruled the man’s inju- S.B. 904, which passed both the statery was compensable under the Longshore Senate and House on May 31 and fea- Regarding the claims of whole-bodyand Harbor Workers’ Compensation Act. tured more than three dozen sponsors in impairment, the lower court “reasoned the state Assembly, would have imposed that the medical evidence showed Bow- Donald Filosi began working at Groton, interest charges on unpaid services, per- er’s residual limitation and impairmentConnecticut-based Electric Boat Corp.’s mitted doctors to sue insurers for unpaid were to his right upper extremity, and theshipyard in 1961 until he retired in 1998. bills, required a medical provider to bill court was ‘not persuaded that (Bower’s)During his employment he was exposed an employer or its designee directly, and impairment to his right upper extremityto asbestos and was also a heavy smok- would have required that the employer or has in some manner manifested itself as aer of cigarettes from the age of 14 until the insurer send to the provider an expla- . . . whole (body) impairment.”his death “with some pauses,” according nation of benefits, among other changesto documents in Katherine Filosi, execu- to the state’s Workers’ Compensation Act, Details on out-of-pocket expenses weretor (Estate of Donald L. Filosi) v. Electric according to the bill. “woefully short” of what was requestedBoat Corp., filed in state court in Hartford, by the court, according to the ruling. TheConnecticut. NEBRASKA lower court also relied on a doctor’s tes- timony that no future treatment of the After he was diagnosed in 2012 with IMPAIRMENT RULING work-related injury would be necessary,high grade neuroendocrine lung cancer, FAVORS EMPLOYER the ruling states.he filed a notice of claim for compensa-tion with the Connecticut Workers’ Com- n The Supreme Court of Nebraska in NEW YORKpensation Commission, alleging he had October affirmed a ruling that denied asustained a lung injury from “exposure to man’s claim of whole-body impairment STATE TOPS RANKINGdust and fumes,” records state. and both out-of-pocket and future med- OF HIGHEST COMP COSTS ical costs following a shoulder injury that On Dec. 17, 2012, Mr. Filosi died as left him 12% impaired per an orthopedic n New York has surpassed California asa result of his lung cancer. His widow, surgeon’s assessment. having the highest workers compensa-Katherine Filosi, subsequently filed a tion costs in the country, according to pre-notice of dependent’s claim, and the two John J. Bower was working for Eaton liminary data released in October by theclaims were assigned to the commission’s Oregon Department of Consumer andconsolidated asbestos litigation docket, Business Services.records state. Oregon’s biennial study ranks all 50 While the claims under the Connecticut states and the District of Columbia basedWorkers’ Compensation Act were pend- on premium rates that were in effect Jan.ing, Ms. Filosi also filed claims seeking 1, 2018. Researchers also compared eachbenefits under the Longshore Act. A U.S. state’s rates to the national median rate ofDepartment of Labor administrative law WC WINTER 2018 7

STATE-BY-STATE WORKERS COMPENSATION NEWS FROM ACROSS THE US$1.70 per $100 of payroll. establish criteria for evaluating permanent ‘ALTERNATIVE’ TREATMENT As of 2018, New York is ranked No. 1, impairment.” NOT COVERED UNDER COMPwith costs at 181% of the median costs WYOMING n The Supreme Court of Wyoming rulednationwide, up from 154% in 2016. That in August that a device surgically placedstate now spends $3.08 of $100 of payroll DISEASE CAUSED DISABILITY, in an injured worker’s spine should not bein workers comp costs. California’s costs NOT BACK INJURY: COURT covered by the comp system because theare 169% of the median, down from 176% device was not approved by the U.S. Foodtwo years ago; it spends $2.87 for every n The Supreme Court of Wyoming in and Drug Administration and thus was$100. September affirmed an earlier court rul- not proven to be safe or effective. ing that pegged a man’s permanent and Meanwhile, North Dakota spends the total disability on a progressive neurode- Linda Harborth injured her spine whileleast on workers comp, at 48% of the generative disease and not the result of working as a driller in a mine for themedian, spending 82 cents of every $100 a back injury he suffered at work eight Powder River Coal Co. and subsequentlyof payroll, according to the data. years before. underwent surgery to have an artificial disc placed in her spine, according to documentsPENNSYLVANIA Peter Hart, who injured his back while in Linda H. Harborth v. State of Wyoming, working for Solvay Chemicals Inc. in Department of Workforce Services, Workers’GOVERNOR SIGNS 2005 and was deemed partially impaired Compensation Division. Records filed in theIMPAIRMENT RATINGS BILL as a result, applied in 2014 for permanent courthouse in Cheyenne,Wyoming,did not total disability after a doctor diagnosed specify the dates of her injury and surgery.n Pennsylvania Gov. Tom Wolf in late him with amyotrophic lateral sclerosis,October signed into law a bill that rein- according to documents in Pete Hart, by The Department of Workforce Services,states controversial impairment ratings and through his Personal Representative, Workers’ Compensation Division, deniedafter the state’s Supreme Court deemed Mona Hart v. State of Wyoming, Depart- benefits for the surgery because the arti-them unconstitutional in 2017, a change ment of Workforce Services, Workers’ Com- ficial disc and the surgical procedure hadthat experts say raised workers compensa- pensation Division, filed in Cheyenne, not been approved by the FDA and Ms.tion loss cost rates by 6.06% mid-year. Wyoming. Harborth “had not produced sufficient objective medical support for their use,” Republican-endorsed H.B. 1840 was An earlier ruling found that Mr. Hart records stated.introduced in October 2017. After a year failed to prove that his back injury causedof discussions, it passed both the state his disability, citing testimony from a The state’s Medical Commission upheldHouse and Senate, by a 115-80 vote and doctor who found that his disability was the division’s decision, determining thata 34-15 vote, respectively. likely due to ALS, commonly known as the procedure was both an “off-label” use Lou Gehrig’s Disease and often resulting of medical services and “alternative med- Under the new law, an employer can in permanent paralysis. icine” for which benefits were not autho-request an impairment evaluation where rized.That commission found that “noth-a physician determines the degree of an “Mr. Hart’s current disability status, ing in the record presented demonstratesinjured employee’s impairment under the from the standpoint of an inability to why the non-FDA approved device wasPennsylvania Workers Compensation return to his previous level of partici- necessary,” according to court records.Act after the employer was injured for pation in the work setting, stems more104 weeks. from the recent development of ALS than The district court affirmed the Medi- from injury residual,” the doctor stated, cal Commission’s decision and the state Doctors are to refer to the “most recent” according to court documents. “In my Supreme Court following suit, the five-edition of the American Medical Asso- opinion, if it were not for the ALS, (Mr. judge panel unanimously finding thatciation’s Guide to the Evaluation of Per- Hart) may have been able to manage his “substantial evidence supported the Med-manent Impairment — thus reinstating normal work duties, with chronic pain ical Commission’s determination that Ms.the previous system rejected by the Penn- medications and injections continuing, Harborth failed to provide sufficient doc-sylvania Supreme Court in June 2017 as that was a successful regimen/pattern umentation of the procedure’s safety andwhen it ruled that the “General Assembly over the years.” effectiveness, thus rendering it ‘alternativeunconstitutionally delegated to the Amer- medicine’ for which benefits were proper-ican Medical Association the authority to ly denied.”8 WINTER 2018 WC

STATE PROFILETennessee UPDATESThe Tennessee Supreme Court ruled an injured worker who had been on OPIOIDShigh doses of opioids does not need another physician panel to possiblyrebuke doctor and utilization review board findings that determined The Tennessee Supreme Courthe needed to be weaned to lower doses. In addition, a state panel ruled in September that anoverturned a 44% permanent partial disability rating given to a truck injured worker with chronic painmechanic, the high court reversed a trial court decision to cap a child from a shoulder injury and oncare attendant’s injury award, and the National Council on Compensation high doses of opioids does notInsurance proposed a 19% comp rate reduction for the state. need another physician panel to possibly rebuke the findingsINSURER PERFORMANCE CIVILIAN of his doctor and a utilization LABOR FORCE review board that determinedDirect written premiums for Tennessee workers compensation coverage he needed to be weaned todipped in 2017 after a slight increase in 2016. The combined ratio for insurers 3.3 lower doses. When the workeroperating in the state in 2017 held steady, the fifth straight year the ratio has million was assigned a doctor in 2009either improved or stayed flat. (September 2018) following an award of lifetime medical care by his employer,Insurer premiums Combined ratio POPULATION Lebanon, Tennessee-based Goodall Buildings Inc., he had$833M $895M $861M $859M $873M $867M 6.7 already been on “high dosages 89% 87% 83% 82% 82% million of opioids to manage his pain,” (2017) according to documents in C.K.2012 2013 2014 2015 2016 2017 Smith Jr. v. Goodall Buildings COMPANIES Inc., filed in the TennesseeSource: National Council on Compensation Insurance Supreme Court in Nashville. 135,352ESTIMATED AVERAGE COST Medical cost* DISABILITY RATINGPER INDEMNITY CLAIM (2016) The Special Workers’ Indemnity cost AREA Compensation Appeals Panel with the Tennessee Supreme$18,298 $17,849 $16,954 $15,735 $15,708 $15,916 42,143 Court in September overturned a 44% permanent partial$29,978 $32,269 $32,611 $31,436 $31,809 $33,904 square miles disability rating given to a 42-year-old truck mechanic 2011 2012 2013 2014 2015 2016 GROSS STATE with degenerative spinal issues PRODUCT CHANGE who couldn’t prove an injury* Policy year average costs GOVERNMENT at work caused his disability.Source: National Council on Compensation Insurance 11% 2.5% He was hurt in 2012 while carrying an oil-drip pan with aLARGEST INDUSTRIES EDUCATIONAL (2017) co-worker who had dropped his SERVICES, side of the pan, according toALL OTHERS STATE RANK FOR documents in Thomas D. Flatt 41% HEALTH CARE HIGHEST COMP v. West-Tenn Express Inc., filed & SOCIAL PREMIUM RATES in the state Supreme Court inPROFESSIONAL Jackson, Tennessee. One year & BUSINESS ASSISTANCE 32nd prior, he was in a work-related SERVICES 10% car accident, which he claimed 11% (2018) he had recovered from when FINANCE, he was injured carrying theDURABLE GOODS, INSURANCE, oil pan, documents state.MANUFACTURING REAL ESTATE, COMP RATES 9% RENTAL & LEASING Tennessee Department ofSource: U.S. Bureau of Economic Analysis Commerce and Insurance 17% Commissioner Julie Mix McPeak has approved a 19% reduction in workers compensation rates in the state, effective March 1. The National Council on Compensation Insurance proposed the 19% reduction for average voluntary market loss cost levels in Tennessee in August based on premium and loss experience for policy years 2015 and 2016 and a continued decrease in the state’s lost-time frequency. By industry, contracting saw the largest proposed cut of 20.7%, office and clerical was next at 20.6%, goods and services at 19.7%, manufacturing at 18% and miscellaneous at 16.8%. WC WINTER 2018 9

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HEALTH CARE’SDANGERSHIDDEN Health care employees are disproportionately more vulnerable to workplace violence, and riskmanagers are working hard to better protect them, starting with improved incident reporting BY GLORIA GONZALEZ extent of the workplace violence problem thanks to improved — albeit still not goodA [email protected] enough, some say — incident reporting gang member injured in a shootout comes into an emergency and regulatory and licensing agency efforts room for treatment, and soon rumors spread on social media to propel mitigation. They are developing that a rival gang is heading to the hospital to continue the fight, prevention programs, taking concrete risk forcing the hospital into lockdown. engineering steps to protect their workers, An Alzheimer’s patient is terrified and confused because he or and training staff in de-escalation tactics. she does not recognize the person caring for them and literallylashes out. “One of the great things I’ve seen a lot of organizations do is put prevention plansA doctor giving family members bad seen such incidents as “part of the job” in place and make sure there’s manage- ment commitment, not only in preventingnews about the diagnosis of a sick relative amid their Hippocratic oath obligations. the workplace violence, but supporting a mechanism for reporting,”said Rich Reyn-is cursed and spit at. “Caregivers should not have to be olds, senior manager-workers compensa- tion for Providence St. Joseph Health, aThose are true day-to-day scenari- exposed to those types of things to improve Catholic nonprofit health care system in Renton, Washington.“If (health care orga-os encountered by health care workers the health of other people,” said Veronica nizations are) not aware of where the prob- lems are happening, as an organization youdescribed by caregivers and workers comp Matejko, vice president of workers com- can’t address it.”professionals interviewed by Workers pensation services for Boston-based med-Compensation. Health care professionals ical professional liability insurer Coverys.are disproportionately more vulnerable to “They should not have to put their ownphysical and verbal assault, rape and homi- physical and mental well-being at risk tocide in their workplaces and generally have help other people improve theirs.”higher injury and illness rates than other Risk managers in the health care space“dangerous”industries. But caregivers have are starting to come to grips with the WC WINTER 2018 11

The potential for violence “comes from ENDING IN TRAGEDY ing that these employees are four timesso many directions,” said Faye Sheppard, a more likely to be injured in a workplaceregistered nurse and principal with Patient Health care and social service workers are violence incident than other private-in-Safety Resources Inc. in Cuero, Texas, and disproportionately more vulnerable to workplace dustry workers.the president of the American Society of violence, with 42 employees fatally injured dueHealth Care Risk Management. “It’s not to violence in the sector in 2016. In 2016, 117 employees in the sectorjust patients against nursing staff or other were fatally injured, with 42 of those deathsstaff. It’s visitors and patient’s families that SOCIAL coming from violence and other injuries bycan become very upset at health care work- persons or animals — an increase from theers. It’s people coming off the street that ASSISTANCE 109 employees fatally injured in the sec-we may not recognize. If you’re treating 5 NURSING AND tor, 27 of whom died due to these types ofa gang member in your ER, you’re likely RESIDENTIAL CARE violent incidents in 2015, according to thegoing to see gang members follow. It can most recent BLS data.be employee against employee.” HOSPITALS FACILITIES 7 17 As shocking as the numbers may be, theyNo such thing as overreporting do not fully outline the scope of the prob- AMBULATORY lem, because health care workers by their The health care and social assistance HEALTH CARE nature and devotion to their craft are oftensector is projected to be the fastest-grow- reluctant to report incidents, especiallying sector through 2024, with health care SERVICES those dealing with mentally ill patients oroccupations expected to add more jobs those suffering from conditions such asthan any other occupational group, accord- 13 dementia, or do not report verbal assaultsing to data from the U.S. Bureau of Labor unrelated to physical injuries, experts say. Source: U.S. Bureau of Labor Statistics “It’s the benevolence of the people who Statistics. But with that growth comes work in health care,” said Karen Liptak increased risk, with the U.S. Occupational Safety and Health Administration report-EXTENT OF VERBAL ABUSE AGAINST CAREGIVERS UNKNOWND ocumentation of the physical injuries and illnesses sustained alert that specified requirements related to say they had been sexually harassed by health care workers through to both physical and verbal violence. than their male counterparts. The commission’s outline starts with Mental or verbal abuse is “somethingviolent incidents is improving as directing organizations to clearly define that I think as an industry we need to doorganizations encourage their workers workplace violence and put systems a better job of tracking and addressingto report such incidents, but less into place across the organization that overall … and developing training on howwell known is the impact of verbal enable staff to report workplace violence people can deal with that or what theabuse, such as bullying and threats instances, including verbal abuse. industry can do to prevent that,” saidof violence from patients, family “Recognizing verbal assault as a form of Rich Reynolds, senior manager-workersmembers or colleagues, experts say. workplace violence cannot be overlooked, compensation for Providence St. JosephEven though the U.S. Department since verbal assault is a risk factor for Health, a Catholic nonprofit healthof Labor’s definition of workplace battery,” the alert stated, citing academic care system in Renton, Washington.violence includes abusive behavior research on verbal abuse. “According to Stress or post-traumatic stress disordertoward those in authority, intimidating the ‘broken windows’ principle, apathy claims arising out of bullying or verbalor harassing behavior and threats, data toward assaults such as verbal abuse abuse can result in “people not wantingcollected by the department’s Bureau of creates an environment conducive to take the abuse and they just leaveLabor Statistics does not record verbal to more serious physical crimes.” the industry,” Mr. Reynolds said. “Is thatincidents, meaning that the actual In a 2018 American Nurses Association recorded as a work comp incident? Notnumber of violent incidents against membership survey, 62% of nurses necessarily all the time. It’s somethinghealth care workers is much higher than said they have personally experienced that should be. But are they consistently?the bureau’s estimates, experts say. physical and verbal abuse on the job. No. Sometimes it might qualify in aIn April, nonprofit accreditation body In addition, 71% of nurses have been risk management department as a nearThe Joint Commission, based in Oakbrook harassed by a patient, and 73% of miss or a no-physical-injury incident.”Terrace, Illinois, issued a sentinel event female nurses were much more likely Gloria Gonzalez12 WINTER 2018 WC

Garvey, vice president of safety and clinical More states are likely to follow Califor- ing to address in the prevention,” said Philrisk management for the Parkland Health nia’s lead, said Paul Vescio, a senior risk Dyer, senior vice president in USI Insur-& Hospital System in Dallas and a board consultant at Aon PLC in Pittsburgh. ance Services LLC’s health care manage-member of ASHRM. “These are noble ment services practice in Seattle.professions, so they don’t want to report on “If health care employers are forced toan individual that they’re trying to care for.” develop these programs through regulation Covering the risk (or) statute and they’re forced to imple- But insurers urge health care risk man- ment these programs and train, then at the The insurance industry has developedagers to encourage and facilitate employee end of the day that’s a good thing,”he said. solutions specific to the workplace violencereporting of violence incidents because it issue, but the takeup of such policies variesallows them to identify hazard trends and Perhaps even more noteworthy was an in the health care sector depending on theopportunities to eliminate exposures. April 2018 sentinel event alert issued by type of organization, experts say. For exam- The Joint Commission, a nonprofit accred- ple, private physician practices recognize “I think it’s important that at all levels iting organization for health care organi- and have experienced violent incidents inof the organization you’re emphasizing zations and programs, that outlined the their workplaces, but they have not pur-the importance (of reporting) so it does known scope of the workplace violence chased the coverage because “expenses areeventually become a cultural element of problem and specified requirements to tight,”said Jennifer Richard, vice presidentthe organization,” said Marie Michelich, address it, because health care organizations of sales and marketing for insurance agen-Dallas-based senior underwriting manager take these alerts very seriously, experts say. cy Professional Risk Associates Inc. basedat Liberty Mutual Insurance Co. in Midlothian, Virginia. But “the pricing I The commission outlines seven actions think is pretty reasonable,” she added. According to Coverys, 8% of the total for health care organizations to take, start-count of all work comp claims and inci- ing with clearly defining workplace vio- These policies can cover a variety ofdents received by Coverys work comp have lence and putting systems into place across costs, from legal liability-related defensecauses of loss related to workplace violence the organization that enable staff to report and settlement costs to hostage negotiatorsin the workplace, mainly caused by patients. workplace violence incidents. to counseling to business interruption costsAs a percentage of total dollars incurred forall claim types or causes, violence-related “When the Joint Commission came out See VIOLENCE page 23claim total incurred is about 5%. with their definition … it really started helping risk managers in both clinical and “The most common types of injuries that hospital settings define what they were try-we see are patient-related claims due toanxiety (and) various mental states,” said PMS We help employers and insurersJanice Homola, senior risk consultant for ® settle workers’ compensationCoverys in Detroit. “A lot of those are claims quickly, regardless ofunintentional in health care based on these complexity.types of conditions.” Offices NationwideRole of the regulators TEAMARCADIA.COM The California Division of OccupationalSafety and Health Administration Stan- 800-354-4098dards Board unanimously adopted the firstworkplace violence prevention standard for WC WINTER 2018 13health care workers in the United States in2016. General acute care hospitals, acutepsychiatric hospitals and special hospitalsmust report incidents of workplace violenceat their facilities to Cal/OSHA, which isrequired to report each January on the totalnumber of incidents reported, the namesof the hospital facilities, the outcomes ofinspections or investigations, the citationslevied against a hospital based on a violentincident and recommendations for the pre-vention of violent incidents in hospitals.

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TIMESTESTINGWith conflicting state and federal marijuana laws complicating workplace drug policies, legal experts advise employers to proceed with caution when implementing programs BY LOUISE [email protected] rug and alcohol testing in the workplace is not going anywhere state and federal laws, as the federal govern- despite shifting regulatory stances ment still considers the drug illegal despite on post-incident testing and the 32 states approving its medical use and 10 introduction of legalized medical on board with recreational pot, as of Nov. 1. and recreational marijuana across When it comes to drug testing, lawyers are generally telling employers they can con-the states, experts say. tinue to drug-test employees as part of rea-But the landscape is hazy, experts warn, as sonable suspicion or with properly designedno one wants impaired workers in the work- random testing programs, and can contin-place, nor do they want to break conflicting ue to discipline, refuse to hire or fire an WC WINTER 2018 15

SPONSOREDSECTIONHead off DME/Ancillary cost and utilizationchallenges by taking a preemptive approachThe drive to reduce opioid use for pain management is sparking an medical efficacy at the best cost structure.increase in durable medical equipment (DME) and ancillary services If it’s automated in a way that’s predictable and reliable, the costto manage pain. With the growth of DME and ancillary, challengeswith rising costs and utilization concerns can be expected — the kind structure is manageable and, more importantly, injured workers getof challenges that sparked pharmacy benefit management programs their DME in a timely manner. This way, time isn’t wasted adding touch-(PBM) to manage financial and clinical outcomes for pharmacy usage. es and getting adjusters and case managers involved in selecting products where their involvement adds more administrative burden to With national workers’ comp spending at $38 billion in 2017 — an already overloaded team. This frees companies to focus on things10% DME, almost $4 billion dollars — it’s prudent for companies to with greater impact such as orthotics, prosthetics, hearing aid pro-take a preemptive approach to manage the costs of DME/ancillary and grams, and home and vehicle modification. These solutions are moreensure that injured workers are getting effective treatment. complex — dollars are much higher and the cost impact on claims reserves is especially important for claims handlers to understand. Companies need to be watching their DME/ancillary dollars. With-out focused oversight of this spend, a few years from now it will be Changing from referrals to programmatica shock to see DME expenses increase from 10% to 20% — notjust from the unit cost rising with inflation, but from an increase in Automating the DME supply chain means moving from what hasutilization. historically been a referral-based approach to DME dispensing, to a programmatic process. Instead of calling a vendor when something isThe need for pain management needed, it should be approached by partnering with a company that can deliver an end-to-end solution. As healthcare professionals look for ways to decrease opioid pre-scribing, injured workers need alternatives to manage through the That solution must allow:pain cycle. This is especially important for injured employees who • Orders to be placed prospectively — products are in stock andare returning to work, which would preclude the use of opioids. Itemslikes TENS units, electro-therapy and physical therapy are pain relief available when the order is placed and dispensed within very shortoptions that are being increasingly used. Just as pharmacy benefits turnaround times.have programs and formularies to manage costs and utilization, a • A mechanism for healthcare providers to contact the DME/ancillarystrategy to manage DME/ancillary can prevent unexpected costs and partner company to get authorization to stay within networkpromote appropriate therapies. • An out-of-network retrospective component so that DME that wasn’t ordered prospectively can be brought into network and billed at theFactors impacting DME/Ancillary Expenses network price. In addition to reduced opioid utilization, a contributor to the boost Benefits of a managed DME/ancillary programin DME/ancillary use is the aging workforce. Older employees are stay-ing on the job longer which increases the probability of needing DME A managed DME/ancillary program provides deeper discounts,when an injury happens. As a result, growth in DME/ancillary utilization confirmation of need, and fulfillment management — very similar toshould be expected as the graying of the workforce trend continues. managed pharmacy programs. Managing DME spending is also complicated by the HCPCS reim- A managed DME program also allows companies to discover gapsbursement coding strategy which is not an exact science. The coding in network coverage and the opportunity to fill the gaps by growingis not one-to-one as in pharmacy, it’s one-to-many. There’s room for the network. There may be places where there are large populationsa lot of creativity in coding and several items can be lumped under of employees and a lack of suppliers to fill DME/ancillary needs.one reimbursement code. Unless there’s a process to manage what’s Identifying these locations and needs allows companies to bolsterunder that code, a payer can be stuck with bills for things it shouldn’t, the network or create other arrangements to keep orders filled in-net-and at a much higher rate, which compounds for a double whammy. work. This way, companies can manage claimants’ DME/ancillary needs before the order is filled by out-of-network providers that haveHow to structure a program to manage DME/Ancillary not been credentialed and contracted at the most appropriate reim- bursement rate. A proactive program to oversee durable medical expenses needsto not only look at the cost of DME but how to manage the distribution Ongoing management and monitoring of DME/ancillary utilizationof these products. A good place to start is to look at what’s worked and the accompanying data provide visibility into claimants’ activityin pharmacy. Optum data show our PBM saved workers’ comp clients and offer verification that medical necessity continues. This is espe-63% on drug costs in 2017 by providing well managed formularies cially important for refills. If medical necessity remains, then formularywith brand to generic substitution and lower cost alternative products. providers that have a better cost structure can be utilized. And prod- ucts and services can be expedited to injured workers so that claims A solid prospective program that includes all of the things that can be resolved.have worked well in pharmacy should include a product catalog andsuppliers who are electronically integrated at the point of sale, similar The benefits of managed DME/ancillary programs are numerous:to how pharmaceuticals are integrated at the pharmacy. Just as the improved patient care, education and time savings for adjusters andpharmacy automatically dispenses a generic without a discussion of support staff, identifying trends and increased program control throughwhich generic is selected, DME items like canes, walkers, standard reporting — which yields money savings. As DME use continues towheelchairs, TENS units, etc. should be vetted in advance for the best rise, keeping an eye on costs and utilization will prevent unexpected surprises negatively impacting the bottom line.For more information, please visit www.workcompauto.optum.com

Actionable clinical insightAdvanced predictive analyticsRobust networkCustomizable technology

To test or not to test employee for a failed test, said George Voegele, a labor and employment attorney with CozenI n a crowded session on drug testing at the National Safety Council Congress O’Connor’s Philadelphia office. and Expo in Houston in October, one human resources executive lamented that 30% of applicants test positive for marijuana, limiting the job pool. “Nothing has changed except if (one is) a Christine Clearwater, president of Delray Beach, Florida-based Drug-Free medical marijuana user. In some states, if you Solutions Group LLC, told the group to continue to test workers when the (are prescribed to) use medical marijuana, you executive said the company had thought about eliminating pre-employment are protected,” Mr. Voegele said. drug screening. Some states such as Massachusetts and Con- “The majority of your workers aren’t on drugs and deserve to work in a drug- necticut have drafted policies or have in place free environment,” said Ms. Clearwater, whose firm helps employers design case law that protect workers from being fired drug-free workplace policies. or not hired if they have medical marijuana cards and their employer tests them for drugs. Employers struggling with the drug question are urged to focus on job Other states such as Pennsylvania and Colora- classifications. Federal law requires those working in transportation to be do have no such provisions in place. drug-tested. Beyond that, anyone working in a safety sensitive job ought to be tested, experts say. “What I tell clients is, know your state law because there are important differences in state “What does the person do? Are they driving a forklift or climbing up ladders?” law and on employee protections. Each state is said Swen Prior, Las Vegas-based partner with Snell & Wilmer LLP. still grappling with this … and it really is going to continue to evolve,” said Mr. Voegele, who Anecdotally, companies stepping away from drug testing are doing so because followed up with an email further adding that the employers are “not seeing a return on investment,” not because of an influx employers need to “take into account if they of legal marijuana laws, said Dr. Todd Simo, Charlotte, North Carolina-based know the candidate or employee is a certified chief medical officer for the drug screening firm HireRight LLC. medical marijuana user.” For example, companies in the technology space are saying “we are not “When it comes to marijuana in general, worrying about it,” he said. “They don’t have high accident (rates).” you have a patchwork of state laws and federal law,” said Swen Prior, Las Vegas-based partner Louise Esola with Snell & Wilmer LLP. “You have to tread lightly and look at this on a case-by-case basis18 WINTER 2018 WC — not one-size-fits all … This is a fluid area.” Attempt at clarity adds to confusion Adding to the confusion, the U.S. Occupation- al Safety and Health Administration in October shifted its enforcement stance on the 2016 elec- tronic record-keeping rule, Improve Tracking of Workplace Injuries and Illnesses regulation, clarifying in a memorandum that the regulation does not prohibit post-incident drug testing. This, despite the original OSHA rule urg- ing employers to avoid drug testing after incidents, stating that the drug and alcohol tests will dissuade workers from reporting accidents. The agency in its Oct. 11 memorandum sent to OSHA’s regional administrators stat- ed that it “believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.” Action taken under a post-incident drug testing policy would only violate the anti-re-

taliation provisions of the electronic United States, and found little differ- TESTINGrecord-keeping rule “if the employer took ence in the amount of marijuana testing POSITIVEthe action to penalize an employee for ordered despite the onslaught of statereporting a work-related injury or illness marijuana laws introduced. n Drug positivity raterather than for the legitimate purpose of for the U.S. workforcepromoting workplace safety and health,” Nationwide, 99% of drug tests in 2016 was 4.2% in 2017,the memo stated. included screening for marijuana and the same as in 2016. in 2017 that figure dropped to 98.4%, When it comes to marijuana in according to Mr. Sample’s data. States n This represents a general, you have a patchwork with legalized marijuana saw the high- “dramatic increase” of state laws and federal law. est drops in screening for the drug. In over the 3.5% positivity You have to tread lightly. Colorado in 2016, 98% of employment rate in 2012, which drug tests screened for marijuana and was a 30-year low. Swen Prior, in 2017, that figure dropped to 96%. In Snell & Wilmer LLP Washington state, 98% of tests screened Source: Quest Diagnostics Inc., 2018 for marijuana in 2016, but the next year, “There was so much misunderstanding 97% of tests included marijuana screen- “There are some companies that haveof the application of the rule,” said James ing, according to Mr. Sample. stopped testing and some that have start-D. Smith, regional leader of national risk ed,” he said. “Impaired employees arecontrol services for Arthur J. Gallagher Newer recreational marijuana states something (employers) are trying to avoid.”& Co. in West Palm Beach, Florida, and such as California and Nevada saw similarthe former president of the Park Ridge, drops in marijuana urine testing, between Intoxicated workers have a five timesIllinois-based American Society of Safe- one and four percentage points — chang- higher chance of getting injured or injur-ty Professionals. “It’s a bad rule when it’s es Mr. Sample saw as “minor.” ing someone else, according to his research,too confusing for the professionals to he said.come to some conclusion. If you’re going Dr. Todd Simo, Charlotte, North Car-to write a rule like that, it should be very olina-based chief medical officer for the “The vast majority of employers arewell understood.” drug screening firm HireRight LLC, saying, hey, we have to have something in agreed that testing will continue — even place,” said Dr. Simo. But many stakeholders concluded that with slight dips.the clarification wasn’t clear. Gloria Gonzalez contributed to this story. “We feel that there are no final rules(from OSHA) in respect to post-incidentdrug testing,” said Barry Sample, Seneca,South Carolina-based senior director ofscience and technology for the employersolutions business at Quest DiagnosticsInc. “I think the general feeling is that itis going to be business as usual.”Testing levels remain flat Marijuana testing is also not going away,despite employers grappling with whatto do with a positive test, which can onlydetect marijuana in the blood and notintoxication, experts say. Mr. Sample tallied recent drug-test-ing figures for Quest, one of the largestemployer-contracted testing firms in the WC WINTER 2018 19

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MARKET INSIGHTSSTRATEGIES TO KEEPSAFEHISPANIC WORKERS Language barriers, economic factors are likely behindhigher injury rates for a growing population of employees, signaling a need to try alternative approaches to safety BY RIXIO MEDINAI n the workplace, the risk of injury and illness is not always equal, even when workers are The Hispanic population in the U.S. has grown in the same industry or have the same job. over the past few decades. In 2016, Hispanics A wide range of factors make some workers accounted for 18% of the nation’s population and more vulnerable than others to injury and were the second-largest racial or ethnic group illness, including social dynamics such as behind whites. Hispanics are also the nation’s sec- ond-fastest growing racial or ethnic group, with arace and gender; economic trends such as 2% growth rate between 2015 and 2016. Accord-the growth of the temporary workforce; and orga- ing to the U.S. Bureau of Labor Statistics, therenizational factors such as business sector and size. were 26.8 million Hispanics in the U.S. labor forceHispanic and Latino (Hispanic) workers face in 2016, nearly triple the 9 million in 1988. His-an increased risk of adverse job-related safety and panics comprised 16.8% of the labor force in 2016,health issues, particularly in small construction up from 7.4% in 1988.firms where safety programs can be lacking due tofinancial constraints. In addition, Hispanic work- Impact in the workplaceers suffer a higher fatality rate, at 3.7 per 100,000workers, than the national average for all workers The American Society of Safety Professionals isin the United States, at 3.6 per 100,000 workers. It particularly interested in these demographic trendsis clear that more needs to be done to address and because occupational safety and health profession-reduce these pervasive and persistent occupational als need to consider these factors when designingsafety and health disparities. If nothing changes and implementing safety and health managementfor this vulnerable population, tragedies will con- systems at their companies. For example, non-En-tinue to destroy families while the cost to workers, glish speaking Hispanic workers need to be pro-employers and society grows. vided craft and safety training in the Spanish lan- WC WINTER 2018 21

guage and be encouraged to stop work and financial resources to implement compre- as peer safety leaders. The programs trainreport unsafe working conditions without hensive safety programs, thereby carrying a the laborers to recognize safety and healthfear of retaliation. greater level of worker risk than midsize and hazards, communicate effectively with large corporations. An avenue for expand- co-workers and supervisors, and facilitate BLS data shows that in 2016, 66.9% of ing safety resources at small businesses is tailored training sessions. These effortsHispanic workers who died on the job (879) the use of intermediary organizations such need to be expanded.were born outside of the United States. as trade associations, insurers, chambersTheir leading birthplace countries were of commerce, building supply stores and Construction contractors remain anMexico (60.9%), Guatemala (8%) and El unions. These organizations provide infra- important target in the promotion of safe-Salvador (7.1%).Hispanic immigrant work- structure that can facilitate the delivery of ty as well. There’s a need for clear, strongers experience a higher occupational fatality safety interventions to help small compa- incentives to improve Hispanic immigrantrate, at 5.9 per 100,000, than all other U.S. nies overcome resource scarcity. workers’ safety rather than ignoring manyworkers, at four per 100,000. One high-risk incident prevention measures, which isindustry with a high concentration of His- Improving safety for too often the case. Considerable effort haspanic immigrant workers is construction. In Hispanic workers been made to teach both employers and2013, Hispanic immigrants accounted for employees in the construction industry20% of the U.S.construction workforce,and While there are many obstacles to insti- how to develop a stronger safety culture75% of all Hispanics working in this indus- tuting safety programs that experts deem and safety climate within their organiza-try were immigrants. The highest fatality necessary across various industries, we can tions and on job sites.rates for Hispanic construction workers break down those barriers if we remainare among ironworkers, at 135 deaths per focused on the issue. Doing so requires a Contractors, trade associations and com-100,000; roofers, at 28 deaths per 100,000; collaborative approach to sharing insights munity groups have implemented pro-and laborers, at 22 deaths per 100,000. and leveraging existing resources for the grams to improve Hispanic workers’ safety broader good. performance, enhance their ability to com- Several barriers contribute to the disparity municate in English and increase their par-in occupational injuries and illnesses expe- A collaborative effort from government, ticipation with other workers in activitiesrienced by Hispanic immigrants. Many advocacy groups, labor unions, academia, that promote safety and health. Improvingimmigrants are unfamiliar with the risks professional associations and the business safety culture among smaller constructionthey face on the job, the construction trade sector can make much-needed progress in firms will create an atmosphere in whichtechniques and standard safety procedures better protecting Hispanic workers. These vulnerable Hispanic immigrant workersand practices in the U.S., and the regulatory types of gatherings have restarted over the are more likely to speak up and employersinfrastructure that protects their right to a past year in a renewed collective effort that are able to communicate safety measuressafe workplace, regardless of their immigra- has been gaining momentum. ASSP has more effectively.tion status. Therefore, craft and workplace convened these groups to provide a forumsafety training are critical, as are period- for a robust exchange of ideas, develop Whatever the safety intervention efforts,ic worksite observations to reinforce safe strategies that will make a lasting impact it is important that data-driven evaluationswork practices and conditions. However, on Hispanic worker safety and health, and are conducted periodically, using leadingimmigrant workers frequently don’t receive build a network for future cooperation. and lagging performance indicators tocraft or safety training on the job, or they demonstrate their effectiveness. Occupa-receive poor-quality training. Language Any effective solution will require a tional safety and health professionals willdifferences are a common barrier to safety. clearinghouse for data and a centralized be better able to implement and improve location for collaboration, including tools the impact of their programs for Hispanic Cultural factors also contribute to the and resources for working with Hispanic workers with effective measurement tools inincreased occupational safety and health workers and small employers. Campaigns place. Hispanic immigrant workers will berisks the workers in this population face. are needed that target various audiences on safer, and employers will be more successful.For example, a study of Hispanic immi- the importance of occupational safety andgrant workers in Chicago showed that health. A comprehensive solution will save Rixio Medina is thetheir behaviors reflected a culture that lives, strengthen families and lower costs 2018-19 president ofplaced a high value on being perceived as across the board. the American Societyhard workers.That cultural value increased of Safety Professionalstheir likelihood of taking risks, such as Other efforts have shown promise in and a vice president atworking too fast. addressing the unique needs of this at-risk Insight Risk LLC based worker population. For example, some in Houston. He can be Employers with fewer than 20 workers work centers have implemented programs reached at 713-876-0427account for 90% of all U.S. businesses. to teach immigrant day laborers to serve and [email protected] small companies typically have fewer22 WINTER 2018 WC

VIOLENCE health care workers vulnerable, experts say. institutions to prevent incidents and help “Each hospital is different, and they all them develop plans on what to do if they Continued from page 13 experience a violence event. have their different areas of vulnerability,if the facility needs to be shut down for a so the first step is to go in and take a look “There’s definitely more work to becertain period of time, she said. But risk at the facility and shine a light on areas done,” said Debra Steiner Friedman, amanagers interested in purchasing such where we may see exposure and then aid Philadelphia-based member with Cozencoverage should carefully examine how the the hospital in developing policy and pro- O’Connor. “Many employers haven’t takenpolicies define and cover certain elements cedure to make sure those specific areas that next step in training their employ-such as stalker incidents or the weapon are being addressed,” said Diane Doherty, ees to recognize those signs and ways toused in an assault, Ms. Richard said. New York-based senior vice president of respond to protect themselves and others.” health care for Chubb Ltd. “There’s no “If it’s really specific, you probably want policy and procedure that is going to cover A key step is to have a consistent anti-vi-to get that broadened so it’s not just some- every type of facility, so it has to be tailored olence message that comes down from thebody with a gun,” she said. “If somebody and specific to that organization, that hos- board level, including a zero tolerancehits you, that can be considered a weapon pital, that urgent care center to make sure policy, experts say. Zero incidents can andbecause that probably happens a lot more they’re addressing their unique safety risk.” should be the goal, even if it may be unat-frequently than an active shooter.” tainable when it comes to patients with They are also focusing on de-escalation conditions such as dementia, they say.Zero tolerance tactics training and measures, experts say. For example, Parkland has armed officers “Zero is a hard number, but one of the Risk managers mitigate the risk of vio- dressed in regular clothes such as khakis things we do is not let the perfect get inlence through risk engineering steps such and T-shirts because uniforms will escalate the way of the good,” Ms. Sheppard said.as installing metal detectors and addressing the situation, Ms. Garvey said. “Are we going to be perfect? Absolutelyline-of-sight limitations that could leave not. You have to let patients and families ASHRM has a health care facility work- know we’re not going to tolerate abuse of place violence risk assessment tool to help our staff. If they know that’s not tolerated, risk managers proactively prepare their that can change behavior.”OSHA, EMPLOYER PARTNERSHIPS KEY TO VIOLENCE PREVENTIONT he U.S. Occupational Safety and Health Administration does not partner with Seyfarth Shaw LLP. in their facilities and advise them on have a specific standard for “I don’t think it’s changed,” he said. how to mitigate those risks, experts say. “My sense is that OSHA doesn’t go “OSHA has done a great job of doingworkplace violence prevention, but looking for a fight. But if there are what they can do, helping providesuch a standard for the health care complaints and serious injuries, they’re guidance,” said Rich Reynolds, seniorsector is on the agency’s regulatory going in to inspect, and if there’s an manager-workers compensation forradar even if little progress has issue they will issue citations.” Providence St. Joseph Health, a Catholicbeen shown, experts say. The general duty clause requires nonprofit health care system in Renton,In January 2017, OSHA granted employers to furnish a workplace Washington. “A lot of folks see them aspetitions by a coalition of labor unions free of recognized hazards causing the enemy, and I’ve never seen it thatto pursue a standard, but it was removed or likely to cause death or serious way. They’re an ally. They should befrom the agency’s Unified Agenda of physical harm to employees. seen as a trusted adviser. They’re tryingRegulatory and Deregulatory Actions “I don’t think anyone in health to help people do the right thing.”before reappearing on the list in July. care can say they do not recognize “Partnering and providing guidanceOSHA has utilized the Occupational the potential for violence incidents without being punitive is reallySafety and Health Act’s general anymore,” said Paul Vescio, a senior risk important,” said Karen Liptak Garvey,duty clause to cite health care consultant at Aon PLC in Pittsburgh. vice president of safety and clinical riskemployers for not protecting their OSHA has taken an active enforcement management for the Parkland Healthemployees from violent workplace role in responding to the violence & Hospital System in Dallas and aincidents and continues to do so problem, but the agency can and board member of the American Societyunder the Trump administration, should focus on helping health care of Health Care Risk Management.said James Curtis, Chicago-based organizations assess the risks inherent Gloria Gonzalez WC WINTER 2018 23

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MARKET INSIGHTSSETTINGTHE STANDARDSafety professionals have new tools available to take their programs to the next level BY TODD GROVERS afety programs that meet the compli- ance requirements of the U.S. Occu- Occupational health and safety management pational Safety and Health Admin- systems, or OHSMS, have been around for the istration have their place in reducing past 20 years but have had limited adoption in the frequency and severity of work- North America. With the release of the new place incidents. But these regulations ISO 45001 Global Health and Safety Stan- dard in the spring of 2018, and the expect-are the minimum expected require- ed release of the updated ANSI/ASSP Z10ments and often fall short in preventing costly Safety and Health Management Standard ininjuries and insured property losses. 2019, there is a lot of interest being expressed WC WINTER 2018 25

in what these modern consensus standards equipment involved, actively evaluating good corporate citizen. News travels fast,bring to the table. work as it is performed, and looking for is widely available and has a lasting impact opportunities to continuously improve that can affect the ability to compete effec- Today’s health and safety management both the efficiency and the safety of the tively in the marketplace.systems are specifically designed to work work being performed. This optimizescooperatively with standards previously the outcome by recognizing the stresses Getting started with an OHSMSimplemented by forward-thinking com- and exposures that could lead to poten-panies, like the ISO 9001 quality standard tial incidents or other disruptions, while Comparing the ISO 45001 Globaland the ISO 14001 environmental stan- establishing a routine way for all jobs to be Health and Safety Standard against thedard.They are designed to blend effective- evaluated. A team-based approach brings ANSI/ASSP Z10 Safety and Health Man-ly with business management systems such the experience of many disciplines to the agement Standard may be your first step.as Lean Manufacturing and 5S organiza- design and execution of tasks, with safe-tional strategies. ty specialists functioning more as integral Interest in ISO 45001 has been reported resources to support and advise the needs to be great, and sales of the new standard Management systems are made up of of production, engineering and procure- have been strong, according to the Amer-interacting organizational elements to ment stakeholders. ican Society of Safety Professionals, theestablish objectives, policies and process- secretariat for ISO 45001. ISO 45001 useses with the outcome of achieving specific This approach focuses on: the same easily integrated format as othergoals.These often include improvement of n Operational efficiency: Identification popular programs such as ISO 9001 orproduction processes, minimizing environ- of weak points throughout operations that ISO 14001, among others. Multinationalment impacts, enhancing product quality can affect the reliability of the work being corporations may find that the directionand sustainably providing safe and healthy performed. Improvements drive produc- provided by ISO 45001 plays well acrossworkplaces. tivity, leading to short-term gains that can national borders and the regulatory envi- turn into long-term, sustainable profitabil- ronments and workplace cultures of many The idea of implementing new and inte- ity. Automated material handling improve- countries. Companies already certified tograted strategies involving management, ments that also result in increased output the OHSAS 18001 standard are especial-workers and other stakeholders into a are an example. ly encouraged to convert their programscoordinated and ongoing effort to identify n Forecasting preventable losses: Pre- to ISO 45001 within three years, as theand control workplace hazards is appealing emptive efforts are made to eliminate or British Standards Institution organizationto both corporate policyholders and their minimize incidents, resulting in estimated intends to eliminate the OHSAS 18001insurance providers. cost savings that exceed the price of the certification in 2021. corrective actions. Investing in air filtra-Making safety the new normal tion technology to replace or reduce the Currently, ANSI Z10 is under revision reliance on respiratory protection is an and will build upon the prior versions of When a company approaches safety from example. the Z10 standard as well as perspectivesa compliance-based emphasis, many regu- n Compliance requirements: By design- gained by the U.S. contributions to thelatory-driven programs are identified that ing processes that consistently provide ISO 45001 global standard. It will see areflect workplace exposures. Often ,risk dependable, productive outcomes, compa- change to a single-column format withlevels are not evaluated. Rather, activities nies find that going beyond compliance to ISO standard language structure beingare performed to meet regulatory criteria. running a well-organized health and safety used to smoothly integrate with otherThis can take the form of written policy, management system is a proactive and jus- established ISO standards the companyemployee training and personal protec- tified investment. may already have in place.tive equipment. A safety manager is often n Job satisfaction: Workers respondput in charge of these programs, and it positively to safe and accommodating The revised ANSI Z10 is also expectedbecomes a balancing act of which gets workplaces and will not work for long to be issued with an in-depth implementa-prioritized for attention based on inci- under hazardous conditions in exchange tion guide that will help companies includedent experience, inspection findings or the for a paycheck. Management doesn’t want these important OHSMS elements in theirtraining calendar. to add to their already demanding list of existing business management systems. responsibilities by having to respond to Some of the highlights include examples Instead, ISO 45001 and ANSI Z10 use preventable on-the-job incidents. of how an effective OHSMS operatesa process that is driven by an ongoing n Public reputation: Leadership knows and how to get workers involved in acci-commitment to continuous improvement that public image influences their work- dent-prevention efforts. There is guidancethrough the Edward Deming management force, their customers and their role as a on setting goals and objectives with stake-model of Plan, Do, Check, Act. holders, and a proactive approach to hazard identification and occupational health con- Safety and health considerations are builtinto the process of designing tasks and the26 WINTER 2018 WC

siderations. Another section reviews how leads to an investment-oriented approach Todd Grover is theto establish metrics to measure successful that strives to assure dependable results. global senior managerimplementation of health and safety strat- for Applied Safetyegies into existing business management Workers compensation and property/ Solutions at Thesystems. casualty coverage is a necessary invest- Master Lock Co. He ment because it is exceedingly difficult for is a participatingManaging an organization’s risks a company to accurately budget for major member of the ANSI loss events related to unforeseen accidents. Z244.1 committee A business management system’s Optimizing the investment in coverage as on Control of Hazardous Energy, theapproach integrates the administrative, a result of confidence in the management ANSI Z10 Safety Management Systemsfinancial, operational, personnel and sales systems protecting the business responsibly Standard, and a delegate to the U.S.and marketing functions into a cohesive addresses risk. This means not overspend- PC283 committee contributing to the ISOplan to sustainably grow a company on the ing related to loss trends that could have 45001 Global Standard for Occupationalupside, and minimizes the adverse effects been anticipated and prevented.This makes Health & Safety. Mr. Grover’s participationof negative economic and other headwinds sense from an insurance industry perspec- on these committees contributes to hison the downside. tive as well. A low-risk, OHSMS-orient- ability to share his personal insights on ed client that wisely invests in the right the value of these standards, but cannot Blending safety and health consider- amount of coverage will have the protec- be construed to be the official opinion ofations into these disciplines brings an addi- tion if they need it, but is much less likely these committees. He can be reached attional element of control into the day-to- to file claims compared with a compli- 414-571-5625 or [email protected] experience, as well as long-term deci- ance-driven, reactive client that repeatedlysion-making processes.This helps to antic- taps their coverage whenever the gaps inipate problems before they happen, and their safety and health program occur. Get the EMPLOYERS® Price & Performance Review today which includes: Free Analysis Clear Price & Support Comparisons Concise Coverage Evaluation See if you are getting the right coverage at the right price.For more than 100 years, EMPLOYERS has specialized in providing value added services and competitively priced workers’ compensation insurance for America’s small businesses. Get Started Today Call: (877) 572-5126 Visit: employers.com/kids-chance An independent agent will contact you and perform your Price & Performance Review.Copyright © 2018 EMPLOYERS. Insurance is offered through Employers Compensation Insurance Company, Employers Insurance Company of Nevada, Employers Preferred Insurance Company, and Employers Assurance Company. EIG Services, Inc. (in California, dba EIG Insurance Services) is an affiliated agency and adjuster. Not all insurers do business in all jurisdictions. CM_0083AD_US | Rev 10/2018 WC WINTER 2018 27

THE FORUM2019 workers compensation predictions MODERATOR Looking back at 2018, what What are the biggest challenges surprised you in the workers facing your workers compensation Richard Lenkov, compensation industry? program right now? capital member, Bryce Downey NICOLE TACKETT: I am pleased to see TACKETT: It is very difficult to get & Lenkov LLC a nationwide interest in the dangers injured workers back to work if of opioid use and addiction. I hope we permanent restrictions are assigned.Mr. Lenkov’s practice areas include see a reduction in opioid use and an More often than not, a claim withinsurance litigation and workers increase in alternate treatment methods. very small future medical exposurecompensation, among others. With can still be a costly claim duenearly 20 years of experience, he JEFFREY R. STOLLE: How some markets to a claimant’s right to ongoingserves as co-chair of the Claims and relied extensively on modeling, leading temporary total disability benefitsLitigation Management Alliance’s to pricing pressure, that combined and vocational rehabilitation.Workers Compensation Committee. ratios and loss history may not have been justified. Also, the amount of STOLLE: With a self-insured program, independent specialists that have the high cost and overprescription of popped up to help manage claim costs drugs. Also the extreme claim cost — investigators, bill review, medical differential by state, i.e. much higher networks, return to work specialists, etc. in California than most other states. JEFFREY A. WHITE: The continuing WHITE: Ongoing changes in regulations moderation of overall medical costs. continue to present challenges The most rewarding surprise has through both new legislation and been the relative plunge in new court decisions. An example is King opioid prescriptions and episodes of v. CompPartners Inc., a California addiction. The industry has worked decision concerning utilization review. hard to make an impact, and it looks While changing regulations have always like our research and due diligence been a fact of life, the velocity and is finally starting to pay off. complexity seems to be ratcheting up. LINDSEY S. STROM: It always surprises STROM: Clients are extremely me how an adjuster would rather demanding. Technology is everywhere force a case to trial than to settle and easily accessible. Clients can email it, especially when it is against the us at all hours of the day and night. So advice of their attorney. Attorneys clients do not understand why, in their can typically work things out. mind, we do not have answers for them Prediction: An infusion of new technology in workers compensation from insurtech enablers, particularly in the management of claims and the delivery of medical services. Jeffrey A. White, Gallagher Bassett Services Inc.28 WINTER 2018 WC

THE FORUMimmediately. Managing expectations unemployment rate continues to training, exercise programs, etc.is always one of the hardest parts decline. The increased stability wouldof being a claimant’s attorney. be helpful as we work to introduce STOLLE: Stable rates, but more service innovations, drive costs consolidation and less choicesHow will the strong economy affect out of the workers compensation of high-quality insurers.workers compensation next year? system and improve outcomes. WHITE: An infusion of new technologyTACKETT: A strong economy means STROM: One could say that the in workers compensation frommore people are working, which higher the employment rate, the more insurtech enablers, particularly inincreases the chance of injuries. workers compensation cases will be the management of claims and theHowever, claims are usually smaller filed, but I do not agree with that delivery of medical services withand resolved faster than in poor correlation. Workers compensation increased utilization of artificialeconomic times, when workers cases are filed all the time. The main intelligence, robotic processcompensation payments can be a reason why people do not pursue automation, application programmingworker’s only opportunity for income. workers compensation claims is fear interfaces and new mobile solutions. of retaliation from their employer.STOLLE: More workers in the workforce, STROM: I think that there will beespecially in lower paying jobs, What are your predictions for some new arbitrator appointmentscould lead to an increase in claims workers compensation in 2019? and positive changes to lookif not properly managed. A growing forward to. I have high hopes forpayroll will require businesses to TACKETT: A shift in how pain workers compensation in 2019 inkeep premium rates under review. management is handled in workers Illinois. (Editor’s note: Democrat compensation claims, with greater J.B. Pritzker won the IllinoisWHITE: Premium and claim volumes attention paid to more holistic governor’s race against Republicanshould be relatively stable as the treatment options such as biofeedback incumbent Bruce Rauner.) MEET THE PANEL Nicole Jeffrey R. Jeffrey A. Lindsey S. Tackett is Stolle is White is the Strom is a a workers the director senior vice trial attorney compensation of risk president for Strom & managing management and product Associates attorney for Castle manager Ltd. based in for Vernis & Cooke of workers Chicago. She& Bowling of Charlotte Inc. based in Westlake compensation at Gallagher has dedicated her practicePLLC based in Charlotte, Village, California. He has Bassett Services Inc. He has exclusively to workersNorth Carolina. She over 20 years of experience over 20 years of experience compensation cases formanages and defends in insurance and enterprise working in the health care the past 10 years. She hascases through all stages of risk management, and has and insurance industries experience working as anworkers compensation, from worked for private and and has worked with diverse attorney on both sides of thethe initial determination public companies ranging organizations, including bar, currently representingof compensability from $500 million to over the U.S. Food and Drug injured workers. She has beenthrough settlement. $35 billion in revenue. He is Administration, the National recognized by Super Lawyers,She has been practicing actively involved in the risk Science Foundation and the Emerging Lawyers, the Expertworkers compensation management community and Certification Commission Network and Chicago Lawyerdefense for 17 years. is the incoming president for Health Information Magazine for her work as of the Los Angeles chapter Technology. He currently a petitioners attorney. of the Risk & Insurance serves on the Illinois Workers’ Management Society Inc. Compensation Commission Medical Fee Advisory Board. WC WINTER 2018 29

GIVING BACKKids’ Chance helps children of injuredworkers pursue their educational dreams“I have just been so grateful for this scholarship. It has awareness for our cause. These organizations play an integral role definitely eased some of the burden of college costs for me in our mission and ensure that those in need know how to seek out — I will be graduating this time next year.” our assistance.”Sarah James is a Kids’ Chance of Michigan scholarship recipient. Kids’ Chance of America experienced tremendous growth thisHer father was killed eight years ago in a workplace accident, and year on multiple levels: Its national scholarship program grew significantly; support services available to member states havea scholarship from Kids’ expanded; and national partnerships continue to increase and positively impact its scholarship programs nationwide.Chance has helped her to Specifically, the scholarship program has grown significantly,pursue a college education. realizing a 20% increase in the number of student scholarships awarded and a 14% increase in the dollar amount of thoseThose who consider awards. With the guidance of a nationally recognized scholarship consultant, the national office has created a scholarship guide ofthemselves a part of the best practices for the member states, including nationally vetted policy recommendations, procedures and templates, and a commonKids’ Chance community scholarship application.believe they can make “I see 2018/2019 as a pivotal period for Kids’ Chance of America,” said Kevin Turner, president of Kids’ Chance of America, as well asa significant difference chief sales officer and senior vice president of account services at Walnut Creek, California-based Paradigm Outcomes, a longtimein the lives of children corporate partner of Kids’ Chance.whose parent has been “As president, it is with deep humility that I continue the legacy of Bob Clyatt and his successors. At the national conference heldseverely or fatally injured in Detroit this past May, we established three areas of focus: build sustainable annual funding; invest in our state organizations andon the job by helping increase accessibility to the breadth of support available through Kids’ Chance of America; and preserve the history of Kids’ Chancethem pursue and achieve and its member states,” Mr. Turner said.their educational goals. Since its founding in 1988, Kids’ Chance has awarded over 6,500 scholarships totaling over $20 million.Robert Clyatt, a workers “We are extremely grateful for the support of our dedicatedcompensation attorney Sarah James, Kids’ Chance of partners,” continued Mr. Turner. “These partnerships help propelfrom Valdosta, Georgia, Michigan scholarship recipientfounded the first Kids’Chance organization in 1988. He saw families impacted by a claimevery day and felt he needed to give the kids a chance. Sinceinception, the Kids’ Chance community has grown to include 39state organizations with four affiliate organizations and three statesin the process of forming an organization.“The primary goal of Kids’ Chance is to raise more moneyfor more kids,” said Vicki Burkhart, the executive director ofKids’ Chance of America, headquartered in Philadelphia. “Stateorganizations provide visibility throughout the country and raise30 WINTER 2018 WC

To learn more about Kids’ Chance and the opportunities available in your state, please visit www.kidschance.org.us toward the future we envision in which no student is denied an scholarship applicants, state organizations can reach out to themeducation due to financial constraints from a parental workplace when the time comes to start considering life after high school.injury or fatality.” “I am so thankful for and blessed by everyone at Kids’ Chance,”HOW CAN YOU HELP? Ms. James said. “And I hope I’m making them proud as well.” What happens when a child loses a parent to a work-related Katie Burkhart is the communications directorfatality? In many cases, pursuing higher education seems at Kids’ Chance of America. She can be reached atunattainable. No student should be denied the opportunity to 484-945-9903 or [email protected] an education due to lack of finances. That’s where you come in. Kids’ Chance of America is committedto identifying eligible scholarship applicants across the country andwould like you to help find future students in need. The Planning for the Future Initiative is an all-inclusive programdesigned to reach potential scholarship applicants. Kids’ Chanceunderstands that attending college isn’t the only educational futurestudents could choose, and they make scholarships available tostudents who have a range of educational and vocational pursuits. The Planning for the Future program provides families andindustry professionals, specifically those who spend time inregular communication with the families of seriously and fatallyinjured workers, with a simple tool to identify children in need.By collecting and maintaining contact information for theseFor 40 years, Genex has helped restore the lives ofmen and women injured on the job. We understandthe tremendous impact a catastrophic workplaceinjury has on the entire family. We supportKids’ Chance in its efforts to improve the livesof children impacted by a parent who hasexperienced a catastrophic injury. WC WINTER 2018 31

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