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New in Workers Comp: “Lifestyle Risk” and the Dangers of Telecommuting

NEW ORLEANS—While controlling workers compensation costs often focuses on mitigating the risk of slip-and-falls or ensuring employees have proper safety gear, some notable exposures exist in employees’ everyday personal lifestyle choices. In the Thought Leader Theater at RIMS 2015, Fred Hubbs, a partner in the lawfirm Hall Booth Smith, P.C., discussed how different trends—from the obesity epidemic to telecommuting—can increase risk exposure in the workplace.

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As the workers comp system is based on principles of no fault and no personal responsibility and there are broad state definitions of what is medically necessary or what an employer is responsible for, employers are often vulnerable to what Hubbs calls “lifestyle risk.” Obesity, smoking, non-compliance with treatment for diabetes, and telecommuting can all put employees at risk, and either contribute to a compensable event or complicate the recovery process.

Obesity, which affects approximately 37% of Americans and is expected to his 50% by 2030, is a well-documented factor in workers comp, with obese workers filing twice as many claims that tend to be up to seven times more expensive and see these workers missing thirteen more days a year, while indemnity benefits paid can be five times higher. And some states have ordered employers to pay for weight loss that is medically necessary to facilitate recovery.

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Smokers are also drastically more likely to be injured at work, and smoking while on the job can lead to specific accidents in the workplace that are compensable. In fact, courts have ruled that, if smoking is only a slight deviation from job duties, an accident that occurs while a worker is on a smoke break is compensable. In at least two states, employers are also now required to pay for smoking cessation programs if doctors deem it necessary to help with recovery from surgery.

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For diabetic employees, a refusal to comply with treatment can expose employers, whether because of the increased risk of seizure, making a minor injury worse, or delaying recovery. Some treatments for injuries sustained on the job can also aggravate pre-existing diabetes, which can be a compensable event.

For all of these issues, Hubbs recommended that employers get more proactive to help employees be healthier, reduce workers comp costs, and even benefit from some incentives from new healthcare laws. Stop-smoking campaigns and weight-loss or activity-boosting initiatives can all aid in these efforts, and these employee-sponsored wellness programs are promoted under new healthcare laws, which may offer direct incentive to businesses that introduce them. Ensuring that employees are complying with doctors’ orders regarding these required efforts is also important, and may be actionable if employees are refusing. There are laws that require employees to comply if they are receiving workers comp benefits, Hubbs said, and employers should seriously examine their legal ability to stop compensation if an employee refuses to submit to a reasonable examination or treatment.

Finally, Hubbs cautioned that many employers should be more cognizant of the risks of telecommuting. While working remotely is certainly nothing new, it is continuing to grow, especially after President Obama signed the Telework Enhancement Act requiring government agencies to establish policies for working outside the office. These arrangements can severely complicate workers comp questions, however, as the lines blur surrounding whether an accident that occurs in the home is compensable and whether an employee is on or off the clock at any given time. To mitigate some of these risks, he recommended that employers:

  • Visit the “jobsite” to evaluate where employees will be working
  • Email or otherwise communicate when an employee is on or off the clock
  • Create a written and signed agreement that designates hours and breaks, designates rooms in the house as “office” space, specify what duties are included in the telework, designate “personal comfort” areas, and attach panel of physicians in states where appropriate

Top 10 Benefits of Return to Work Programs

According to the Occupational Health and Safety Administration, 4.1 million U.S. employees experience work-related injuries or illnesses each year and 1.12 million of those employees lose work days as a result. With the average employee missing eight days per injury, even a minor injury can create a domino effect in your company.

When employees experience illness or injury, it often impacts their ability to perform their jobs, especially in occupations that are more labor intensive. As soon as your worker is able, it is in everyone’s best interest to return him or her to work in some capacity. Oftentimes, this is done through formalized return to work programs. Return to work programs are extremely effective because they provide benefits to not only the employee, but also your company.

Example Job Duties

Return to work programs involve “light duty” or alternative jobs for recovering employees. For example, you can assign less strenuous or stressful parts of the employee’s normal job or have them work at a slower rate. You can also combine the less strenuous or stressful parts of several different jobs to create one full-time job for the recovering employee; this could free up other workers to take on special projects or catch up with work that is falling behind.

A supervisor can also assign a special project without a tight deadline to a recovering employee. As another alternative, some companies work with local not-for-profit organizations to keep the employee engaged with light work duties while making a notable contribution to the community.

Establishing these types of assignments will create a more fruitful and engaging return to work program. Still not convinced? Here is a list of the top 10 benefits of return to work programs for both your employee and business.

Top Benefits for Your Employees

Implementing a return to work program for injured employees communicates care and concern. It also shows employees that you value their well-being and want them back on the job as soon as possible.

Employees benefit in the following ways:

1.            Retaining full earning capacity

2.            Maintaining a productive mindset

3.            Staying on a regular work schedule

4.            Avoiding dependence on a disability system

5.            Having a sense of security and stability

Top Benefits for Your Company

A return to work program can also benefit your company financially by:

1.            Anticipating and controlling hidden costs

2.            Reducing financial impact of workplace injuries

3.            Providing a proactive approach to cost containment

4.            Improving your ability to manage an injury claim and any restrictions

5.            Getting your experienced employees back to work, resulting in less time and money spent on recruiting and hiring

It should be no surprise that a simple workers compensation case may result in expensive litigation. A well-executed return to work program will also provide clear expectations and guidelines for employees injured on the job and have been shown to reduce litigation.

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Additionally, many workers compensation insurers now require their clients to establish return to work programs.

If nothing else, having a well-documented return to work program will show a prospective insurance company that your organization takes risk management seriously. It’ll demonstrate a commitment that may mean the difference in getting into a better insurance deal and/or more favorable rates.

Getting Started

Establishing a return to work policy and or program is not difficult. Some companies already include many of the policies unofficially in the way they handle claims. It is important, however, to execute these programs correctly. Clear guidelines and specific, consistent policies must be established in writing. Your insurance broker or carrier’s loss control or claims personnel can help you get started.

According to data collected by the Job Accommodation Network, 74% of employers that implemented some form of return to work accommodations rated them as either very or extremely effective—with most accommodations costing the employers nothing. Of those that do have associated costs, the one-time expenditure on average is 0.

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Seeing the minimal costs involved and the resulting high value begs the question: why not implement a return to work program?

Tenn. Legislators Introduce Workers Comp Option Bill

A bill that would give companies in Tennessee a free market alternative to state-mandated workers compensation insurance was introduced yesterday by Sen. Mark Green (R-Clarksville), a physician and vice-chair of the Senate Commerce and Labor Committee, and Rep. Jeremy Durham (R-Franklin), House Majority Whip.

The Tennessee Option draws from the best practices of Texas nonsubscription and the Oklahoma Option, according to the Association for Responsible Alternatives to Workers’ Compensation (ARAWC). The Option is designed to provide Tennessee employers an alternative for funding and responding to occupational injuries while still protecting employees and their families. The key components are employee accountability, medical management, employee-employer engagement, and free-market competition.

“The core focus of the Tennessee Option is to help injured employees get back to work faster,” Sen. Green said in a statement. “Making that happen requires good benefits, strong communication, and will lead to higher employee satisfaction. An Option will also give job creators a way to save more than 50% on workers’ comp costs, so they can invest in growth and more employees.”

ARAWC spokesman, Brent Buchanan told the Monitor that the bill has been in the works for about six months and the next step is a committee hearing. Because of its strong sponsorship, there is a good chance it will pass this legislative session, he said.

Janine Kral, president of ARAWC and vice president of risk management at Nordstrom said in a statement, “The Tennessee Option is a local effort driven by the bill sponsors with the support of Tennessee employers and associations. ARAWC will serve as a resource to this local group that is focused on providing a free-market alternative to workers’ compensation insurance.”

Oklahoma passed Option legislation in 2013. Texas has allowed alternative injury benefit programs for more than 100 years, ARAWC said, adding that Texas employers using the Option have saved billions of dollars while increasing return-to-work rates.

According to ARAWC:

Private employers can elect the Tennessee Option. Current Tennessee law allows cities, counties and school districts to opt out of the workers compensation system and several have elected to do so. Tennessee law already exempts employers with less than five employees from the requirement to provide workers compensation insurance. The Tennessee Option legislation will not amend those current exemptions. The Option will not be available to construction or coal mining companies due to their unique industry requirements.

By removing various third parties from between the true stakeholders – employees and employers – the Tennessee Option will encourage more collaboration between the parties. At least a mandated level of benefits must be paid. Many Option employers will pay higher wage replacement benefits than workers’ compensation. The employer must prove that financial security is available to pay the benefits, and a guaranty fund will be established. Stringent appeal rights are included in the Option to provide employees due process. Due to disclosure requirements, employees in an Option will be more aware of their injury benefits and the processes for procuring them. And more employee accountability will lead to better medical outcomes, which is good for all parties.

 

Staying Safe During the Holidays

Whether in the office or at home, everyone needs to be extra careful and alert during the holidays. Because people are trying to pack so much into their day, accidents can happen.

At home, Allstate cautions to be alert to fire hazards, which can lead to substantial losses.

The LiVe Well Intermountain Trauma Managers Group lists some steps that can be taken to promote a safe environment:

Avoid Falls

  1. Keep sidewalks, driveways and entrances free of snow and ice. Falling on icy sidewalks is the number one cause for visits to the emergency department. Use sand or ice melt to prevent slipping.
  2. Falls while putting up lights and decorations is another. Do not use stools or chairs for hard-to-reach areas. Rather, use a sturdy ladder and have additional help.
  3. Ensure that your office or home is free from items that may cause people to trip or stumble, especially around a Christmas tree or other decorations with extension cords and light strands.

Safety Checks

  1. Check your furnace. It should be cleaned and checked regularly by professionals.
  2. Inspect fireplaces for safe operations. Use a screen or glass front, never leave a fireplace unattended and don’t burn gift wrappings, tissue, or evergreens in the fireplace.
  3. Make sure circuits are not overloaded.
  4. Check cords and plugs for wear, frayed insulation, cracks, and loose connections.
  5. Place a tree away from heat sources and open flames. Check the lights before placing them on the tree. Look for loose sockets or broken and frayed wires.
  6. Turn lights off when you leave.
  7. Never use a regular string of lights on a metal tree. The danger of shock is great. Rather, use a spotlight to illuminate a metal tree.

Holiday Driving

  1. Allow extra time for heavy traffic and poor weather conditions.
  2. Be courteous and respect the rights of pedestrians and other drivers.
  3. Be on the look-out for inebriated drivers.
  4. Expect the unexpected from pedestrians carrying large holiday packages.