Following the presidential election workers compensation legal experts say they are in wait-and-see mode with regard to the recent uptick in U.S. Equal Employment Opportunity Commission complaints.
“Everything with the EEOC may be off because of the election results this week,” said Chicago-based Jeff Nowak, co-chair of the labor and employment practice group with Franczek Radelet P.C., in a webinar hosted Thursday by the Disability Management Employer Coalition on Thursday.
The webinar focused specifically on how workers comp intersects with the Americans with Disabilities Act Amendments Act and the Family and Medical Leave Act, and provided tips on how to avoid penalties, fines and lawsuits.
Mr. Nowak, who said he is watching whether the EEOC will be the priority for Donald Trump’s administration that it has been for other administrations, said a number of pending complaints and rulings are highlighting the difficulty for employers who want to both comply with federal laws and get injured employees back to work.
Adopted in 2008, the ADAAA amended the ADA, which essentially bars employers from discriminating against people with disabilities in any aspect of employment-related activities. Under the FMLA, employers are required to give their employees up to 12 weeks of unpaid leave per year for specific reasons, including a serious health condition or to care for an immediate family member who has a serious health condition. According to experts, the two can intersect with workers comp and create EEOC complaints.
Panelists highlighted communication with employees as a better way to smooth the path to avoids costly litigation.
Dubbed the “interactive process” in worker comp, this communication requirement calls for each side of a claim to exchange of information in good faith. It is key to implementing ADAAA and FMLA requirements and state regulations that govern workers comp, experts say.
Communication is “the most critical element,” said Adrienne Paler, director of total health and productivity management, integrated disability and absence management for Sutter Health, a Sacramento, California-based health system. “We need to tailor it … what is the employee asking for? That’s a question to ask the employee.”
“The risk of litigation increases when an employer is ignorant about their obligations under ADAAA to engage in the interactive process … they are unwilling to think creatively what they can do to that job, what changes can they make to help the employee perform the job,” said Mr. Nowak.
69L-7.501: The proposed rule is amended to adopt the 2016 Edition of the Florida Workers’ Compensation Reimbursement Manual for Hospitals (“Manual”), as approved by the Three-Member Panel during a scheduled meeting held on April 20, 2016, pursuant to paragraph 440.13(12)(a), F.S. The 2016 Edition of the Manual increases the per diem reimbursement rates for surgical and non-surgical hospital inpatient services and the threshold dollar amount triggering Stop-Loss reimbursement above reimbursement allowances specified in the 2014 Edition of the Manual, as adopted by the existing rule. The 2016 Edition of the Manual also provides an updated fee schedule for various categories of hospital outpatient services based on the Current Procedural Terminology (“CPT”) line level charge data, with an adjustment of the Maximum Reimbursement Allowance (“MRA”) based on the geographic location of the service provider.
69L-7.100: The proposed rule amendment incorporates and adopts for use the 2016 Edition of the Florida Workers’ Compensation Reimbursement Manual for Ambulatory Surgical Centers (“ASC Reimbursement Manual”), as approved by the Three-Member Panel on April 20, 2016, pursuant to paragraph 440.13(12)(a), F.S. The 2016 Edition of the ASC Reimbursement Manual contains an updated list of the Maximum Reimbursement Allowances (“MRAs”) for various medical services provided to Florida’s injured workers.
69L-7.020: The proposed rule amends the existing rule to adopt and incorporate by reference the 2016 Edition of the Florida Workers’ Compensation Health Care Provider Reimbursement Manual, as approved by the Three-Member panel on April 20, 2016, pursuant to paragraph 440.13(12)(a), F.S. The aforementioned manual is updated to incorporate the 2016 Medicare Conversion Factor and Resource Based Relative Value Scale (“RBRVS”) geographic-specific reimbursement levels used to determine Maximum Reimbursement Allowances (“MRAs”) for physician’s services and non-surgical hospital outpatient services provided to Florida’s injured workers.
A copy of the notice and link to the proposed Rules are below:
FL Workers’ Compensation Reimbursement Manual for Hospitals, 2016 Edition
FL Workers’ Compensation Reimbursement Manual for Ambulatory Surgical Centers (ASCs), 2016 Edition
FL Workers’ Compensation Health Care Provider Reimbursement Manual, 2016 Edition
Injuries, illnesses and other accidents at the workplace will happen, even with the best possible security measures in place. However, that doesn’t mean a company should ignore proper safety procedures, or skip steps to prevent these incidents from happening and finding ways to lower workers compensation insurance costs.Read More Here
In Dilallo v. Sch. Bd. of Broward Cnty./OptaComp, d/a 4/16/12, 13-16388, Judge Hogan held that an idiopathic fall on employer premises before reaching the elevator to her office to start work was compensable under the premises rule. “[A]n injury is deemed to have occurred in the course and scope of employment if it is sustained by a worker, on the employer’s premises, while preparing to begin a day’s work or while doing other acts which are preparatory or incidental to performance of his or her duties, and which are reasonably necessary for such purpose.” Vigliotti v. K-Mart, 1st DCA. JCC rejected E/C argument that Caputo and Walker required that claimant was actively engaged in work at the time of the idiopathic fall.
Each of us should be asking our peers, our management and ourselves for a fair, objective and balanced review of the state of our industry. There is no doubt that the ever changing rigors of compliance mandates, the incessant increase in claims related medical spend and the rampant abuse of workers’ compensation payers continues.
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The ERA was first implemented in many states in the late 90s as a way to encourage employers to report all losses, not just those involving lost-time claims. At that time, it was common for companies to pay, rather than report, their small claims in order to avoid having those claims count against the mod.
NCCI and other stakeholders were interested in collecting all possible data for statistical actuarial purposes, so the ERA was introduced.
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