Category Archives: Health and Wellness

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Handling the Pain: Getting People Back to Work

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Photo ©Donscarpo

Employers nationwide are always concerned about absenteeism. When a worker doesn’t show up, the loss of productivity and profits can be staggering, making the worker’s problems a serious issue for the employer.

If the employee doesn’t stay home, the result doesn’t fall under ‘absenteeism’ but it still creates a negative impact.

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Productivity loss due to poorly performing employees who try to “work through” recurrent pain places employers in a difficult situation. Lost productivity—like time itself—is a non-renewable resource. No one wins when employees are unable to work.

The reverberations are felt on many levels. The worker may continue to feel pain. The employer must deal with the issue. Colleagues and associates often need to pick up the slack. Customers may be affected.

Who else? The employee benefits managers and the company’s workers compensation claims statistics. The higher the number and value of claims, the greater the drag on the company’s fiscal performance.

Pain emanating from chronic or lingering injuries needs professional involvement. The good news is that by treating the pain comprehensively or applying interventional pain techniques, nagging injuries or pain can be remedied or reduced sufficiently to increase the productivity of suffering employees.

On the Job

For many sufferers, relief through medication, physical therapy or other ‘traditional’ remedies is temporary, but pain and lost productivity continue.

Interventional pain care and management is a specialty where the physician diagnoses and treats pain at the source. According to the American Society of Interventional Pain Physicians (ASIPP), “Interventional pain management is defined as the discipline of medicine devoted to the diagnosis and treatment of pain-related disorders, principally with the application of interventional techniques in managing subacute, chronic, persistent, and intractable pain, independently or in conjunction with other modalities of treatment.” Employers should encourage workers to learn more on how interventional pain management can reduce the duration and severity of pain, help them return to work faster and enjoy an overall improved quality of life.

Interventional pain physicians employ a number of techniques and procedures. Among the many successful solutions are epidural steroid, trigger point and botox injections; sympathetic plexus blocks; spinal cord stimulation; radiofrequency ablation, percutaneous intradiscal procedures, and implantable intrathecal drug delivery systems.

Pain reduction or eradication is the desired outcome, but diagnosis plots the path to potential recovery. Procedures like fluoroscopically-guided injections using local anesthetic can provide both relief and diagnostic value. Fluoroscopy is an imaging technique that incorporates X-rays to produce real time images of the internal anatomy. This diagnostic tool provides more accurate delivery of medication and important information to the physician on the origination of the pain, and thus the doctor can offer more effective treatment. In a healthcare climate that seeks to reduce unnecessary expenditures, like tests or procedures, such interventional techniques can reduce or eliminate ineffective, unnecessary or even more invasive options, up to and including surgery.

Injuries, chronic pain and absenteeism, plus the urgency to get employees back to work affect more than the bottom line. From on-the-job injuries, like lifting, strains and slip-and-fall injuries, to the resulting drain on human capital and performance, organizations are in need of solutions.

The Call of the Benefits Manager

The appropriate first call made by a human resources director or employee benefits manager is to the general practitioner or claims adjuster to document the mishap. Yet, if pain persists and lengthens an employee’s out-of-work status, quite possibly exacerbating a deteriorating psychological status, resolution may be difficult to achieve.

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The advice and services of an interventional pain management specialist are beneficial and can often be even more effective when combined with physical therapy or other home programs. A patient treated early often begins to experience expedient and lasting relief. The employee is not only more comfortable, but also returns to work sooner. This increases organizational productivity and, equally as important, reduces the time of a workers compensation claim.

Interventional pain care and management is growing in favor and its beneficiaries run the demographic gamut. Depending on the injury or source of lingering pain, employees from millennials to baby boomers approaching retirement are ideal candidates for many procedures.

This is especially important as many workers are putting off retirement into their late 60s and 70s. As those older patients more frequently suffer degenerative problems that may create or complicate injuries, interventional treatments deliver an ideal remedy, especially when performed in concert with physical or occupational therapy.

Using an Interventional Pain Specialist

The engagement of an interventional pain specialist presents a unique scenario. Benefit managers, human resource professionals and case workers have become more aware of interventional pain care over time.

Who should get the referral? The American Board of Anesthesiology has a certification process for interventionalists, as well as an additional sub-specialty certification in pain management. The American Board of Pain Medicine (ABPM) also certifies qualifying members. A Fellow of Interventional Pain Practice (FIPP) has earned certification by the World Institute of Pain, and the American Board of Interventional Pain Physicians (ABIPP) has a certification process as well.

The American economy loses upward of billion annually, due to lost productivity stemming from health issues and missed work, according to a 2013 report from Gallup-Healthways.

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Issues include chronic health problems such as pain, obesity, high cholesterol, blood pressure, cancer, asthma and depression. Even issues like poorly designed ergonomics in the workplace can result in significant pain and absenteeism. About one in three (34%) of all work missed stems from ergonomic-related issues, according to the U.S. Bureau of Labor Statistics.

For employee benefits managers who know how to help employees tackle pain and return to work, absenteeism and lost productivity can be reduced and billions of dollars can be saved all year long.

Court Dismisses EEOC Lawsuit for Lack of Jurisdiction

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On Sept. 22, 2014, in EEOC v. Vicksburg Healthcare LLC, et al., Judge Keith Starrett of the U.S. District Court for the Southern District of Mississippi granted defendant’s motion to dismiss an EEOC lawsuit for lack of personal jurisdiction and insufficient service of process. The EEOC had filed a disability discrimination claim on behalf of a nurse who worked at a hospital owned by a subsidiary of the defendant. The court held that the EEOC, which sued a subsidiary hospital in Mississippi and its Tennessee-based parent corporation, did not put forth prima facie evidence of the necessary factors to satisfy personal jurisdiction requirements for the parent corporation in Mississippi.

While this ruling is favorable for non-Mississippi parent corporations operating subsidiaries in Mississippi, it has larger significance for employers. It shows that nationwide jurisdiction is not a given when the EEOC sues. Additionally, the ruling provides the framework for how to prevent liability by avoiding personal jurisdiction.

Case Background

The EEOC filed an action on behalf of Beatrice Chambers alleging disability discrimination under Title I of the Americans with Disabilities Act of 1990. The complaint named Community Health Systems, Inc. (CHSI) and Vicksburg Healthcare, LLC (VHL) as Defendants, alleging that both CHSI and VHL have been continuously doing business as River Region Medical Center (River Region) in Vicksburg, Mississippi.

The EEOC alleged that the defendants terminated Chambers–who had worked as a nurse at River Region for about 36 years–because of her unspecified disability, and additionally failed to provide her with reasonable accommodations in violation of the ADA. VHL was a subsidiary of CHSI, which was incorporated in Delaware and had its principal place of business in Tennessee. While VHL admitted doing business as River Region and admitted employing Chambers, CHSI denied doing business as River Region and denied employing Chambers. Further, in its motion to dismiss, CHSI asserted the affirmative defenses of lack of personal jurisdiction, insufficient process, and insufficient service of process.            

The Court’s Decision

In granting CHSI’s motion to dismiss, the court held that the issue of personal jurisdiction was controlling. The EEOC has the burden of establishing a prima facie case for personal jurisdiction. The court noted that a non-resident defendant is amenable to being sued in Mississippi if: (1) Mississippi’s long-arm statute confers jurisdiction over the defendant; and (2) the exercise of personal jurisdiction comports with the requirements of federal due process. The Mississippi long arm statute consists of three prongs, including: the contract prong; the tort prong; and the doing-business prong. It was undisputed that the “doing-business” prong was case dispositive.

CHSI submitted an affidavit from its Senior Vice President and Chief Litigation Counsel to the effect that it did not conduct business in Mississippi and that it lacked sufficient minimum contacts to be hauled into court in Mississippi.

The affidavit confirmed that CHSI is a holding company with no employees; CHSI indirectly owned subsidiaries including VHL; CHSI neither operated nor controlled the day-to-day operations of River Region; CHSI and River Region maintained separate banking records and did not co-mingle funds; CHSI did not employ nor have control over any River Region staff; CHSI never made any employment decisions regarding Chambers; CHSI and River Region observed corporate formalities (including no overlap between the Board of Trustees of River Region and the board of directors of CHSI; the respective boards of River Region and CHSI each convened separate meetings, (the boards maintained separate minutes and records); and CHSI is not qualified to do business in Mississippi–owns no property there, has no offices there, does not market there, and does not pay taxes there.

Following well-established precedent, the court found this aggregation of factors to be dispositive. It held that the EEOC lacked personal jurisdiction to sue CHSI in Mississippi.

The court rejected the EEOC’s three arguments in opposition of dismissal. First, the EEOC argued that the 10-K form submitted by CHSI to the SEC demonstrated CHSI’s intent to do business in Mississippi as it often used language such as “we” when referring to the hospital.  The court rejected this argument, noting that the 10-K form also contained a provision saying the hospitals are expressly owned and operated by the subsidiaries. Next, the EEOC mistakenly speculated that the River Region employee handbook contained references to CHSI. The court cited an affidavit from CHSI’s litigation counsel clarifying that the entity referred to in the handbook was a different indirect subsidiary, and not the parent corporation. Finally, the EEOC erroneously relied on another case involving CHSI – Bass v. Community Health Systems, Inc., Case No. 2:00cv193 (N.D. Miss.). The court noted that no facts from that case illustrated that CHSI should be amenable to personal jurisdiction.

Implications for Employers

 When out-of-state parent corporations conduct business in Mississippi through subsidiaries, it is imperative that they observe corporate formalities to clearly maintain the parent-subsidiary relationship. Further, in documents such as 10-K forms and employee handbooks, employers must explicitly indicate that subsidiaries, and not the parent, own and operate local entities. If parent corporations follow the teachings of EEOC v. Vicksburg Healthcare, LLC, et al., they can avoid unwittingly submitting to personal jurisdiction in Mississippi courts while their subsidiaries do business there.

This blog was previously posted on the Seyfarth Shaw website.

Soda Giants Pop the Top on Better-For-You Business

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Soda Industry Healthy Choices

This week, Pepsi unveiled a new offering: Pepsi True, a mid-calorie, lower-sugar soda that uses a mixture of sugar and stevia, a plant-based sweetener. By offsetting some of the sugar with stevia, the company has reduced the sugar content by 30% and the calories by 40%. Each 7.5 oz. can—a smaller serving than the traditional 12 oz.—contains 60 calories and will be priced on par with regular Pepsi. Available on Amazon.com later this month, the reduced-calorie soda joins the market with Coca-Cola Life, which also mixes sugar and stevia to lower the calories and sugar content while moving away from both high fructose corn syrup and artificial sweeteners. Coke rolled out their lower calorie drink in international markets last year, before launching in the U.S. at the end of August.

The new options are not the only changes consumers will see bubbling up at vending machines. Soda industry giants Coca-Colo Co., PepsiCo Inc., and Dr. Pepper Snapple Group Inc. have all signed onto a voluntary agreement to cut beverage calories in the American diet by 20% by 2025 by promoting bottled water, low-calorie drinks, and smaller portions. The measure was bartered by the American Beverage Association and the Alliance for a Healthier Generation, a children’s health group founded by the American Heart Association and the Clinton Foundation. The companies agreed to market and distribute drinks in a way that steers consumers to smaller portions and zero- or low-calorie drinks, the Wall Street Journal reported. Further, they have committed to provide calorie counts on more than 3 million vending machines, self-serve fountains, and retail coolers. In a statement, former President Bill Clinton heralded the commitment as a possible “critical step in our ongoing fight against obesity.”

The companies made a similar pact to stop selling soda in U.S. schools, which helped curb calories consumed from beverages at schools by 90% between 2004 and 2010, according to the American Journal of Public Health. Americans consume about 20 teaspoons of sugar a day—twice the amount considered healthy—and the government estimates that about a third of that sugar comes from soda, energy drinks, and sports drinks.

Falling Soda SalesMuch like CVS Caremark’s move to ban cigarette sales in stores, Big Soda has a lot to gain by helping customers make healthier choices. While the move may pose some implicit acknowledgement of the soda industry’s role in the American obesity epidemic, it also serves a role in boosting the bottom line. A public commitment to healthier options is a major reputation boost for an industry under attack from nutritionists, government initiatives, and scientists examining the impact of ingredients in both regular and diet offerings.

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And amidst that momentum, there is a perfect opportunity to introduce more offerings for customers to purchase, which could not come at a better time. Big Soda’s business has not only gone flat, it’s been evaporating away for about 10 years. In fact, according to Beverage Digest, the decline in volume more than doubled last year to a 3% drop across the industry as consumers grow increasingly concerned about the health effects of sugary drinks.

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Further, the trade publication reported that retail sales dropped 1% to $76.3 billion—the first monetary drop in at least 15 years, meaning companies were unable to offset volume declines by raising prices.

The losses are not limited to sugary sodas, however. Diet sodas, which make up a third of soda sales in the U.

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S., have fallen in sales three years in a row. They no longer present a safeguard against attacks—and cutbacks—on full-calorie beverages. Clearly, consumers want other options, and research about the potential perils of both sugar and artificial sweeteners has customers uncertain, and increasingly unwilling to purchase.

Nearly 10% of Americans Have Gone to Work High

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Marijuana in the workplace

According to a new study conducted by Mashable and Survey Monkey, 9.74% of American workers have been under the influence of marijuana when they went to work. Of that group, about 81% obtained the pot illegally, meaning only 19%  purchased it recreationally in Washington or Colorado, or bought it for medicinal purposes where medical marijuana has been legalized in one of 23 states or Washington, D.C.

Nearly three times as many workers have been on prescription drugs on the job, but only 7.

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28% reported that they had taken the drugs recreationally, and 95.

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36% had obtained the medication legally, with a doctor’s prescription.

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Check out the infographic below for more of the study’s findings on drug use in the workplace, and who some of the riskiest employees may be:

Drugs at work infographic