When relocating, businesses consider many factors, including workers’ comp premiums

Punter’s benefits award overturns longstanding precept

We’ve covered workers’ comp issues in the NFL before, most recently in a piece last month, but the main issue before has been players who file for workers’ comp benefits in the state where they were injured rather than in team’s home state. They do so because the “away-state” offers better benefits than the “home-state.”

Now another issue has arisen, in the case of a former punter for the Washington Redskins. A recent court decision has upended 30 years’ of NFL and legal tradition.

According to a March 10 press release, “Former Washington Redskins punter Thomas Tupa, who suffered a career-ending back injury while warming up for a preseason game in 2005, is eligible to receive workers’ compensation under Maryland law, the state’s court ruled Feb. 28, 2011. Attorneys Benjamin T. Boscolo and Gerry Herz of ChasenBoscolo Injury Lawyers represented Tupa in this landmark case. (No. 09-1839, Pro Football Inc. v. Thomas Tupa, Maryland Court of Special Appeals).

” ‘For almost 30 years, the Court ruled injuries suffered by NFL players were not accidental injuries, stating professional football players were not entitled to receive workers’ compensation benefits because they assumed the risk of such injuries,’ said Boscolo, who has been handling the firm’s sports-related cases since 2000. ‘The Court’s recent decision overturned this longstanding precedent as being contrary to the very purpose of the Maryland Workers’ Compensation Act.’ ”

Venue of game re-appeared, as side issue

The other issue, that is, where games are played, did arise during the process, as the case bounced from commission hearings to county court to appellate court. According to a March 5 article in the Washington Examiner:

Tupa in 2007 originally filed a claim with the Maryland Workers’ Compensation Commission requesting benefits, the documents state. The Redskins were ordered by the commission to pay partial disability as well as medical expenses.

When the team appealed the decision, court documents show that the NFL team argued that Maryland didn’t have the jurisdiction to award Tupa workers’ compensation because he was hired to play in Virginia, where the team’s headquarters and practice field are located.

But the appeals court was not swayed, pointing out that game days are in Maryland: “It is clear that the purpose of Tupa’s employment was to play in games, not to practice.”

Appellate court agreed with county court

A March 10 post at a trade Web site, Injury Board says that “Tupa claimed to have hurt his back warming up at FedEx Field in 2005. The Maryland Court of Appeals upheld a 2009 Prince George’s County Circuit Court jury’s award to Tupa, who says he injured his lower back before a Redskins preseason game at the team’s Landover stadium. Pro-Football Inc., the corporation that operates the Washington Redskins, appealed the jury award by arguing that there’s no connection between Tupa’s 2005 injury and any ongoing disability he still claims.

“Tupa has not played football since hurting his back; the punter has testified that he still needs back surgery. “It is undisputed that he is physically unable to punt in the NFL,” the appeals court wrote. Court records state that the Prince George’s County jury awarded Tupa just over a year’s worth of disability benefits.”

I have a sneaking feeling that all these workers’ comp issues will be addressed in whatever agreement finally ensues from the current battle between the NFL owners and players.

Back to the regular world…

Rhode Island AG fights to rein in workers’ comp premiums

All states and local governments compete for new business, in one way or another. Most want growth–even if their natural resources can’t sustain it–and all need revenue. An undeniable factor in the mix for businesses choosing to relocate is a given state’s cost of workers’ comp premiums.

The Great Recession has affected not only the disability network but also workers’ comp.

We posted the following in September 2010: “In the Northeast, workers comp issues are making headlines via reduced claims in Rhode Island and price hikes in New York, while an unrelated study suggests that impairment ratings for injured workers are often wrong, most often erring on the side of the patient. On one hand, the company that performed the study has a history of similar findings; on the other, the cumulative effect could be bad news for both employees and employers.”

A March 11 post at Insurance Journal says, “Rhode Island Attorney General Peter F. Kilmartin said he opposed a 3.9 percent workers’ comp rate hike being sought by the National Council on Compensation Insurance (NCCI) for the state.

“NCCI’s calculations call for a 3.9 percent increase for advisory loss costs for workers’ compensation insurance. But Kilmartin says that an analysis and an independent actuarial study, the rate hike should be rejected. Kilmartin’s office submitted an alternative calculation that calls for an overall increase of 0.6 percent.”

About a week earlier, Business Insurance posted, “Among other problems, the attorney general said Wednesday that the Boca Raton, Fla.-based workers comp rating organization applied an excessive medical trend factor to arrive at its suggested loss-cost rate increase.

“Instead, Mr. Kilmartin said, a 0.6% rate decrease is in order for Rhode Island businesses.”

In the Northeast, workers comp issues are making headlines via reduced claims in Rhode Island and price hikes in New York, while an unrelated study suggests that impairment ratings for injured workers are often wrong, most often erring on the side of the patient. On one hand, the company that performed the study has a history of similar findings; on the other, the cumulative effect could be bad news for both employees and employers.

Rhode Island claims down during Recession

Earlier this month, Risk&Insurance.com ran a piece about a state judiciary report that indicates the Great Recession has contributed to a significant reduction in workers comp claims in Rhode Island.

Apparently, though, it’s not that the crippled economy and raging unemployment have made workers super cautious about safety technique or that we’re suddenly safer without those pesky, “extra employees” cluttering up the workplace. No, the concern is that today’s on-edge employees are reluctant to report injuries lest they be canned.

Quoted in the piece was Mark Gemma, described as a workers’ compensation attorney based in Providence, R.I., who “said a recently released judiciary report suggests a disturbing trend of fewer employees reporting workplace injuries and illnesses out of fear they might lose their jobs.’

‘Employers have a duty to employees’

” ‘It’s disturbing to me because, regardless of economic conditions, employers have a duty to provide a reasonably safe workplace for their employees, and employees have a right to make sure employers fulfill that legal obligation,’ [Gemma] said. ‘Given economic conditions, I certainly understand workers’ concerns, and I realize that some workers may be misinformed about what can happen if you report an injury or illness.’

Courts see further irony

” ‘The truth is that the law entitles you to compensation if you are harmed at work, and the law strictly prohibits your employer from retaliating against you.’ ”

This edition of the annual state judiciary report compared filings in 2009 against those in 2008, finding a 7 per cent decrease, at least in part attributable to the lousy economy and Rhode Island’s relatively high unemployment rate.  The report also mentions the counterintuitive possibility that fewer initial claims may cause litigation to rise in years ahead (from page 14):

“Fear about the response to such reports and a perception that a work-related injury could jeopardize the employment relationship tends to depress the number of injury claims and, therefore, the number of cases filed with the court. Ironically, since many of these cases will ultimately result in disability and litigation, the number of petitions seeking to affix liability for a work-related injury will ultimately rise in upcoming years.”

Beyond the obvious concerns of the effects on morale and productivity, the findings also call into question the depth of understanding that employees have concerning their rights after suffering job-related injuries.

1970 act provides fines, penalties

“Gemma said many workers may not know that the Occupational Safety and Health Act of 1970 protects them from discrimination based on a ‘protected activity,’ which includes reporting work-related injuries and illnesses. The act also provides for heavy fines and penalties if an employer actively discourages employees from filing such report[s].”

The next item doesn’t affect employees in New York directly, but it could affect hiring and layoff policies there, if the proposed rate hike gets approved.

Rate hike proposed in New York

According to a Sept. 7 brief at InsuranceJournal.com, “The New York Workers’ Compensation Board is proposing to raise portions of the medical fees schedule by 30 percent.”

Although not explaining the who-or-how the rate hike can be approved (or contested), the brief does note that the increase would involve injury “evaluation and management codes” of the board’s approved payment schedule, “which hasn’t seen an increase in payment rates since 1996.”

Apparently also up for grabs? The NYWCB also said further review will address fees for: “medical, podiatry, psychology and chiropractic” classifications.

Study finds inflated impairment ratings

Our final item for this post also comes from a recent Risk&Insurance.com posting, apparently based on a PR by the company that performed the study, Impairment Resources.

According to Impairment Resources, “A study of more than 6,200 impairment ratings spanning five years revealed an error rate of 78 percent, resulting in ratings averaging more than twice what was appropriate.”

Samplings not random

The company does not claim that the study is based on random samplings but does contend that because all cases had been submitted for “expert review  . . . [that it therefore] sheds light on reasons for inaccuracy in impairment ratings, suggests areas for improvement, and echoes the findings of a similar study performed in 2005.”

The company, formerly known as Brigham & Associates, says it “examined ratings from eight states, with 81 percent of the cases being from California and 91 percent rated using the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

Study’s highlights

The “observations” highlighted in the study include:

• “There are significant problems with interrater reliability with Fifth Edition ratings.
• “Most ratings were performed incorrectly, resulting in ratings averaging more than twice what was appropriate.
• “Problems are more common in jurisdictions where physicians use approaches other than those specified by the AMA Guides than in jurisdictions where physicians are trained, experienced, and perform in accordance with best practices.
• “Inaccurate ratings are often the result of bias, confusion, and misapplication of the Guides.
• “Preliminary data suggest that both the error rate and magnitude of error may be less with Sixth Edition ratings.

“Currently, 16 states use the Fifth Edition; 10 use the Sixth Edition; 10 use earlier editions; 7 use state-specific guidelines; and no guidelines are specified in the remaining states.”

The main thrust of the recommendations seem to be for impairment raters to use the Sixth Edition of the guide–and to have a review performed by a company such as Impairment Ratings. Although conceding that ratings can come back at a lower rate than warranted, the company line is that “stakeholders” are paying out far more than appropriate each year, due to ratings that are too high.

Ratings from treating physicians cited as frequently too high

Judging from previously published material by company principal Christopher R. Brigham (published, apparently, when IR was still Brigham & Associates), the chief source of too-high impairment ratings are those originating with a treating physician. Some highlights from a 2006 article, “AMA Guides to the Evaluation of Permanent Impairment“ (emphasis added):

• “The error rate for the review of 132 Florida cases was a staggering 94 percent. The vast majority of Florida ratings were performed by treating physicians typically prior to the probable date of maximum medical improvement.
• “Of the 1,229 allopathic (M.D.) reports reviewed, 78 percent were determined to be erroneous, of the 47 osteopathic (D.O.) reports the error rate was 85 percent, and of the 141 chiropractic (D.C.) reports reviewed the error rate was 88 percent. Errors were more common if the rating was by the treating physician.
• “The nature of the errors is such that it is more likely that an erroneous rating will be higher, rather than lower. Most medical schools and residency training programs do not include instruction on the assessment of impairment, disability or causation. Therefore, many physicians lack an adequate ability to assess these and other medicolegal issues.
• “The rating physician must be “independent and unbiased.” This can be challenging for any evaluator, but is more likely to be problematic for the treating physician since there is an inherent patient advocacy role.“

In other words, this is something to know if you’ve been hurt on the job and your doctor says you may not fully  recover. If such is the case, you’ll likely need an experienced, trained attorney–if you don’t have one, already. The fact that such third-party reviewers as IR consider treating-physician ratings as a serious red flag is a matter for you and your attorney to discuss.

Recent news shows the importance of retaining experienced counsel in the often confusing world of workers compensation law.

Take the case of minor league hockey player, Canadian Andy Bezeau.

According to this AP brief from December 9, Bezeau, 39, is from St. John, N.B. but “was living in Michigan in 1998 when he signed a three-year contract with the now-defunct Detroit Vipers . . . .”

But the Vipers sent him to Providence, R.I., to play for the Bruins, “where he was injured Oct. 6, 2000.”

So what’s the problem? He was working, and he got hurt, right?

Well, not so fast.

“His request for compensation from the Vipers was under review when the Michigan Supreme Court ruled in 2007 a person must be a Michigan resident when hurt to collect.”

Oh, OK–so then he needs to collect from the Bruins’ carrier, right?

Well, what if he maintained his residence in Michigan and only had temporary digs in Rhode Island? Then what?

We’ll find out later–the Michigan board ruled against him, because of the state Supreme Court’s 2007 ruling, so now the Supreme Court has to rule on this specific case. Watch here for an update.

Here’s another example of a someone not from the U.S. getting hurt, this time a worker in Nebraska. The difference is that even though the worker was working here illegally, he’s still entitled to workers comp. Also from a December 9 AP account: “The Nebraska Court of Appeals has upheld a lower court ruling that an illegal immigrant injured at a slaughterhouse is eligible for workers’ compensation benefits.

“Cargill argued that because Odilon Visoso cannot legally work, he should not be eligible to receive weekly wages of about $340, payment for future medical expenses related to his spine injury and other benefits.”

And, get this: Cargill fired the guy after he got hurt–supposedly because he’s here illegally.

After a 100-pound slab of beef fell on him, he had surgery “in October 2007 and was fired shortly after by Cargill because, its officials say, he was an illegal immigrant.”

As a side note, one wonders why Cargill is not in trouble for hiring illegals in the first place…

At any rate, “. . . the court pointed out that state law says all employees, including illegal immigrants, are eligible for workers’ compensation.”

A copy of the ruling is here.

Another Michigan case also involves that state’s Supreme Court, which sent a RICO case back to lower courts. According to a December 10 account at ClaimsJournal.com, “The U.S. 6th Circuit Court of Appeals had found in Paul Brown et al. vs. Cassens Transport Co. et al., the plaintiffs could sue their employer and its workers’ compensation claims adjuster under federal racketeering laws.”

The details involve a so-called “cutoff doctor,” a term recognized by anyone who has ever worked for a health provider–it’s lingo for docs who seem to be in the pocket of insurance companies based on their patterns of claims denials and lowered injuries ratings.

“The six plaintiffs alleged that the defendants–Cassens Transport Co., Crawford & Company, and Dr. Saul Margules–had schemed to deny them workers’ compensation benefits under the Michigan Worker’s Disability Compensation Act (WDCA) in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).”

According to a December 8 brief at BusinessInsurance.com, the appeals court decision may set a bad precedent for employers and their carriers: “Attorneys and employer groups have criticized the appeals court decision, arguing among other things that it provides an avenue for federal courts to rule on workers comp claims decisions and that the ruling will raise costs.”

The Claims Journal account says that a lower court had ruled in favor of the defendants by dismissing “the plaintiffs’ RICO claims,” but in October 2008 the 6th Circuit court reversed that decision.

“The defendants had argued that WDCA preempts the plaintiff’s RICO claims and the lower court agreed. The appeals court found that was not the case, however, and determined that the plaintiffs had ‘sufficiently pleaded a pattern of racketeering activity,’ according to court documents.

“Specifically, the plaintiffs alleged that Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of worker’s compensation benefits, and that defendants ignored other medical evidence in denying them benefits. The plaintiffs claimed that the defendants made fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of” the racketeering act.”

That’s a case worth following, too.

Of course, employers can’t be too careful, either.

In California, a city official been charged with “workers’ compensation fraud after authorities allegedly caught her exercising and riding a motorcycle at a time she said she was too injured to do her job.”

If she did what authorities are alleging, it’s one of those head-scratching, you’d-think-she-knows-better kinda deals: the lady is not only a city council member but also a former mayor.

According to a December 3 piece in the portal to the San Francisco Chronicle, “The charges stem from a workers’ compensation claim that [Maggie] Gomez filed in 2005 with Seton Medical Center in Daly City, where she works as patient relations manager.

“Gomez said she had been injured while working, authorities said. From 2005 to 2007, she lied to doctors, insurance companies, claims administrators and the state Employment Development Department ‘regarding the injury and the extent of her disability,’ said Karen Guidotti, an assistant district attorney.

“Investigators with the district attorney and state Department of Insurance allegedly saw Gomez exercising at the gym, walking long distances while shopping, riding a motorcycle and climbing out of her boyfriend’s truck, all activities she said she was unable to do.”

Another high-profile case hinging on questions of employee status (which we profiled here ) involves a woman who was severely injured by a chimpanzee. She was on Oprah recently, providing details of the attack and insights into life since the mauling. Here’s the update, but be forewarned: Some of the pictures include shots of her without the veil she normally wears–and the images are highly disturbing.
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Whether you’re an injured employee or an aggrieved employer, if you’re facing legal problems regarding workplace injuries, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Denial of benefits

Choosing an attorney