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What are We Talking About?
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ACCIDENTS
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Why Do InjuriesHappen?
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Major Types of Claims
1OSHA 2VSSR 3IntentionalTort
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OBJECTIVES
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OBJECTIVESUnderstand what the claims will look like
Help to avoid +defend claims
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Reporting Investigations FinesRegulations
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VSSR
iolationafetypecificegulations
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The Verdict on VSSRs15-50% of total compensation
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VSSR Investigation
No plain view rule
Usually happens well after incident
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How to Defend OSHA + VSSR claims
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BASIC1 Employee misconduct
2 Infeasibility
3 Impossibility
OSHA
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BASICVSSR1 Employee caused accident
2 Regulations don’t apply
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Pre-Incident ActionsHazard analysis
Possible safety options
OSHA 300 logs
Training records
Employee disciplinefor violations
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You need to inspect
after the incident
IMMEDIATELY
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Internal Inspection: OSHADetermine if reporting is required + when
Take photos Get witness statements
Recreate accident
Research maintenance records of machines involved
Machine accident history
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Internal Inspection: VSSRIs VSSR a possibility?
What caused injury?
What safety regulations are involved?
Can we limit claim cost?
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Internal Inspection: Workers’ CompIs there a defense to claim?
Employee have prior incidents?
Were the prior incidents similar?
Drugs and alcohol involved?
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Critical documents in investigation?
Maintenance Records
TrainingRecords
EmployeeDiscipline Photos Surveillance
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Incident Report
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Make your own!
Were contemporaneous
photos taken?
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Make your own!
Were contemporaneous
photos taken?Is there video of
the incident?
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Make your own!
Were contemporaneous
photos taken?Is there video of
the incident?What machines
were/are involved?
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Make your own!
Were contemporaneous
photos taken?Is there video of
the incident?What machines
were/are involved?Was a medical
provider contacted?
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Make your own!
Were contemporaneous
photos taken?Is there video of
the incident?What machines
were/are involved?Was a medical
provider contacted?Have names of who arrived?
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Make your own!
Were contemporaneous
photos taken?Is there video of
the incident?What machines
were/are involved?Was a medical
provider contacted?Have names of who arrived?
Which employees saw the injured
employee that day?
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Make your own!
Were contemporaneous
photos taken?Is there video of
the incident?What machines
were/are involved?Was a medical
provider contacted?Have names of who arrived?
Which employees saw the injured
employee that day?How did the
employee look?
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Make your own!
Were contemporaneous
photos taken?Is there video of
the incident?What machines
were/are involved?Was a medical
provider contacted?Have names of who arrived?
Which employees saw the injured
employee that day?How did the
employee look?What was
employee’s condition that day?
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Want this done before
shows up
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Don’t remove a guard
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POINTSFinal
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Get Counsel Involved Early
1
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You Can’t Replace Time
2As time passes defense gets harder
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Do the Prep Work
3Will be critical if/when something happens
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Document EVERYTHING
4
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Questions?Brendan Feheley, DirectorKegler Brown Hill + [email protected]/brendanfeheley614-462-5482
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presented by Tony Fiore
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Pending Marijuana Legislation in 2015
1. Alabama: SB3262. Iowa: SF4843. Missouri: HB490 + HB8004. Nebraska: LB643 5. Pennsylvania: SB3 + HB1936. South Carolina: H3140, SB672, H4307 7. Texas: SB1839 + HB3785
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Failed Marijuana Legislation in 2015
1. Florida: SB528 + HB 6832. Georgia: SB73. Indiana: SB284 + HB14874. Kansas: SB9 + HB20115. Kentucky: SB40 + HB36. Mississippi: SB23187. North Carolina: HB788. North Dakota: HB14309. Tennessee: SB660 + HB561
10. Utah: SB25911. West Virginia: SB546 + HB2909
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Medical Marijuana “Legalization”
1. Alaska: 19982. Arizona: 20103. California: 19964. Colorado: 20005. Connecticut: 20126. DC: 20107. Delaware: 20118. Hawaii: 20009. Illinois: 201310. Maine: 1999
21. Oregon: 199822. Rhode Island: 200623. Vermont: 200424. Washington: 1998
11. Maryland: 201412. Massachusetts: 201213. Michigan: 200814. Minnesota: 201415. Montana: 200416. Nevada: 200017. New Hampshire: 201318. New Jersey: 201019. New Mexico: 200720. New York: 2014
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Medical Marijuana Legislation Pending in 2015
1. Georgia: HB1 + SB1852. Idaho: S1106 + S11463. Kansas: HB22824. Louisiana: HB6 + SB1435. Ohio: HB336. Tennessee: SB2807. Texas: HB892 + SB3398. Virginia: HB1445 + SB1235
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Ohio’s Ballot PROCESS
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Create Petitioners’ Committee
File Initial Petition with Ohio Attorney GeneralCreate Petition + Gather SignaturesSignature Requirements - 305,591Filing Deadline + Filing Fee
Signature Verification + Supplemental Signatures Signature or Petition ChallengesBallot LanguageBallot Arguments
Early voting begins Tues., Oct. 6
Ballot Arguments Published 3 weeks Prior – Oct. 13, 2015Election Day - November 3, 2015
Effective Date - 30 days after voter approval
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ElectionRESULTS
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Issue2
Anti-Monopoly
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YES 1,587,060
NO 1,489,703 48.42%
51.58%
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Issue3
Legalization of Marijuana
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YES 1,122,386
NO 2,003,641 64.10%
35.90%
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Think Your Vote on Issue 3 Didn’t Count?
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53.23%
46.77%Turnout 56.1%
55.32%
44.68%
Turnout 71%
55.7%
44.3%Turnout 81.25%
56.11%
43.89%Turnout 70.9%
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What Did Issue 3
PROPOSE?
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Ohioans 21+Possess, use, transport, share 1 ounce or its equivalent
Grow + cultivate homegrown marijuana
Grow, transport, buy, sell + process industrial hemp
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Personal Possession of Weed
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Prohibitions, Taxes + Locations
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Potential Ohio County Grow Sites
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Employer Control Over the Workplace?
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Medical MarijuanaPatients with valid certification allowed to possess, use, transport, etc.
>
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“(J)(4) Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, or
transportation of medical marijuana, marijuana, homegrown marijuana, marijuana-infused products or
marijuana accessories in the workplace or to affect employers’ ability to restrict the use of such products by
employees, except that a patient with a medical marijuana certification may self-administer the
medical marijuana subject to the same conditions applied to administration of prescribed medications.”
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Who Was BehindIssue 3?
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Issue 3 is not about legalizing marijuana…its about creating a monopoly in Ohio’s constitution ensuring profits for investors
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“With potential gross revenues exceeding $1 billion annually, funders of Ohio’s Marijuana
Legalization Act will have a say in how the State defines, regulates and taxes this new, and highly
profitable, market. The knowledge and perspective funders gain from this process will
give them multiple opportunities to realize substantial returns on their contribution in this
ballot initiative…”
zOhio Children's Hospital AssociationOhio Chamber of CommerceOhio State Medical AssociationOhio Hospital AssociationOhio Nurses AssociationCincinnati Children’s Hospital Medical CenterNationwide Children's HospitalCleveland ClinicMetroHealth SystemsProMedicaUniversity HospitalsColumbus Medical AssociationOhio Chapter, American Academy of PediatricsOhio Psychiatric Physicians AssociationFOP of OhioOhio School Boards AssociationStonewall Democrats of Central OhioAffiliated Construction Trades OhioAssociated General Contractors of OhioBuckeye Association of School AdministratorsOhio Association of School Business OfficialsADAMHS Board of Cuyahoga CountyADAMHS Board of Hancock CountyAllied Clubs & Charities of OhioBuckeye State Sheriffs’ AssociationCatholic Conference of OhioConstruction Employers AssociationCounty Auditors Association of OhioCounty Commissioners' Association of OhioAshland County CommissonersCarroll County CommissionersDarke County CommissionersErie County CommissionersHancock County Commissioners
Hardin County CommissionersLicking County CommissionersMorrow County CommissionersPortage County CommissionersPreble County CommissionersRoss County CommissionersWashington County CommissionersCounty Treasurers' Association of OhioCuyahoga Democratic Women's CaucusColumbus Chamber of CommerceGreater Cleveland PartnershipCouncil of Smaller Enterprises (COSE)Cincinnati USA Regional ChamberToledo Regional Chamber of CommerceDayton Area Chamber of CommerceDayton Regional Employers Against Marijuana (DREAM)Canton Chamber of CommerceDarke County Chamber of CommerceFindlay-Hancock County Chamber of CommerceLicking County Chamber of CommerceTuscarawas County Chamber of CommerceYoungstown-Warren Regional Chamber of CommerceDrug Free Action AllianceHancock County Community PartnershipGeauga County Board of Mental Health & Recovery ServicesIndiana/Kentucky/Ohio Regional Council of CarpentersInternational Union of Operating Engineers Local 18League of Women Voters of OhioMental Health & Addiction Advocacy CoalitionNational Organization of Black Law Enforcement
NFIB/OhioOhio AgriBusiness AssociationOhio Association of Chiefs of PoliceOhio Association of County Behavioral Health AuthoritiesOhio Association of Secondary School AdministratorsOhio Bankers LeagueOhio Chemistry Technology CouncilOhio Chief Probation Officers AssociationOhio Clerk of Courts AssociationOhio Contractors AssociationOhio Council of Behavioral Healthcare ProvidersOhio Council of Retail MerchantsOhio Business RoundtableOhio Farm Bureau FederationOhio Farmers UnionOhio Grocers AssociationOhio High School Athletic AssociationOhio Hotel & Lodging AssociationOhio Insurance InstituteOhio Manufacturers' AssociationOhio Prosecuting Attorneys AssociationOhio Recorders' AssociationOhio Restaurant AssociationOhio Society for Human Resource Management State CouncilOhio Society of CPAsOhio State Bar AssociationOhio State Coroners AssociationOhio Township AssociationOhio Trucking AssociationPrevent Blindness Ohio AffiliatePublic Children Services Association of Ohio
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"The voters have spoken and we have to respect their will. This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or Goldfish too quickly."
Colorado Governor Hickenlooper, 2012
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Americans with Disabilities Act/ Anti-Discrimination
Unemployment Compensation
Workers’ Compensation
Lawful Off-Duty Conduct
Workplace Challenges
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Other Practical Considerations
Hiring + Retention Challenges
Losing Job
Losing Parental Rights + Government Benefits
Increasing Healthcare Costs
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FederalILLEGALITY
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Schedule 1 Narcotic Federal Seizure
Conflict with State Laws – No Analogies
Cole + OlgenMemos –
Enforcement Protocols
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Cole MemorandumDistribution of marijuana to minors
Revenue from sale of marijuana from going to criminal enterprises, gangs and cartels
Diversion of marijuana from states where it’s legal under state law in some form to other states
State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity
8 Enforcement Priorities Preventing
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Cole MemorandumDistribution of marijuana to minors
Revenue from sale of marijuana from going to criminal enterprises, gangs and cartels
Diversion of marijuana from states where it’s legal under state law in some form to other states
State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity
Violence and use of firearms in the cultivation and distribution of marijuana
Drugged driving and exacerbation of other adverse public health consequences associated with marijuana use
Growing marijuana on public lands + attendant public safety and environmental dangers posed by marijuana production on public lands
Preventing marijuana possession or use on federal property
8 Enforcement Priorities Preventing
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"There's a growing trend of older Americans who are using marijuana in their retirement. That makes sense because old people are always talking about their joints."
Jimmy Fallon
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Industry STATUS
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Half the states have legalized marijuana, including GeorgiaInformal
political coalition
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Smoked2015
Smoked 95%Pre-2000
40%
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20 mil.Past month
usage
50% Admit use at least once
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$1.53 bil.National Legal
Cannabis Market
$10.2 bil.Estimated in
2019
17.4 mil.Regular use
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Marijuana consumption mirrors alcohol
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CA$HImplications
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Prior to 2011 – Cash + Bank Accounts
2011 + 2012 – Bank Out
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2012 – Present: Alternatives
1 All Cash
3 ATMs
4 Rolling Accounts
2 Card Runners
5 Side Accounts
7 MJ Mortgages
8 4th Corner Credit Union
6 Bank Lossening
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“Reminder: Your job’s not safe just because pot’s legal.”Bryce Crawford, Report – Colorado Springs
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Workers’ Compensation
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No court has decided whether marijuana is a "not medically prescribed" controlled substance for purposes of reducing benefits
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But… it’s likely that the issue would be decided consistently with Coats, Beinor, and the other state marijuana laws
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Drug test must be performed by a state-licensed
or certified lab AND a duplicate sample must be
preserved by lab for employee to test at his/her expense
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“there is a rebuttable presumption that an employee is intoxicated or under the influence of a controlled
substance … and that being intoxicated or under the influence of a controlled substance … is the proximate
cause of an injury….”
Ohio Rev. Code Ann. § 4123.54 (B)
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Disqualified from receiving workers’ comp benefits if:
Tested within 32 hours of injury
Test is positive for marijuana
Employee cannot prove drugs were not proximate cause of injury
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If not the proximate cause… an employee
may still receive benefits, no matter the
workplace policies
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Adverse Employment
ACTION
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You can discipline or terminate employees who smoke medical
or recreational marijuana if:
1 They are impaired or hung over at work
2 It is in their system while they are at work (i.e. they fail a drug test)
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Establish a written drug + alcohol policy
1
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Establish a written drug + alcohol testing policy
2
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Inform your employees of the policies
3
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Apply the policies consistently
4
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Document! Document! Document!
5
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Have a certified lab conduct the drug testing
6
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The REALITY
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Workplace Impact +Other Considerations
Company Reputation
Drug Testing
Federal Funding
3rd-PartyEmployeeBenefits
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Thank You!Tony Fiore, Of CounselKegler Brown Hill + [email protected]/fiore614-462-5428
@anthoniofiore
Director, Government AffairsOhio State Council of SHRM
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presented by Dave McCarty
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Problem –Substance abuse is rampant
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SomeSTATS
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The ResultIncreased absenteeism + tardiness
Decreased productivity
Increased WC premiums
Increased insurance costs
Morale effected
Pretty hollow lives –need help
People are getting hurt
It’s not good for them either!
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So, am I allowed to drug test my
employees?
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Short Answer: PROBABLY
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Mandatory in some industries
Not prohibited in Ohio by statute
May be governed by CBA
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…every employee, who is injured or who contracts an occupational disease…wherever such injury has occurred or
occupational disease has been contracted, provided the same were not…caused by the employee being intoxicated
or under the influence of a controlled substance
Ohio Rev. Code § 4123.54 (A)(2)
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…not prescribed by a physician
Ohio Rev. Code § 4123.54 (A)(2)
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…where the intoxication or being under the influence of the controlled substance…was the proximate cause of the injury, is entitled to receive…compensation for
the loss sustained on account of the injury (the benefits) provided by this chapter.
Ohio Rev. Code § 4123.54 (A)(2)
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The Rebuttal Presumption
(2004)
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…provided that an employer has posted written notice to employees that the results of, or the employee’s refusal to submit to, any chemical test described under this division may affect the employee’s eligibility for compensation and
benefits pursuant to this Chapter…
Ohio Rev. Code § 4123.54 (B)
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…there is a rebuttable presumption that an employee is intoxicated or under the influence of a controlled substance not prescribed by the employee’s physician and that being intoxicated or under the influence of a controlled substance not prescribed by the employee’s physician is the proximate cause of an injury under either of the following conditions:
Ohio Rev. Code § 4123.54 (B)
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§ 4123.54 (B)(1)When any one or more of
the following is true:
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The employee, through a qualifying chemical test administered within 8 hours of an injury, is determined to have an alcohol concentration level equal to or in excess of the levels established in the (Ohio OVI statute);
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The employee, through a qualifying chemical test administered within 32 hours of an injury, is determined to have one of the following controlled substances not prescribed by the employee’s physician in the employee’s system that tests above the following levels in an enzyme multiplied immunoassay technique screening test…
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…and above the levels established in division (B)(1)(c) of this section in a gas chromatography mass spectrometry test
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So, what’s covered?Amphetamines(Adderall, Ecstasy)
Cannabinoids
Cocaine (including crack)
Opiates
Phencyclidine (PCP)
Barbiturates
Benzodiazeopines(Valium, Xanax, Ativan)
MethadonePropoxyphene (Darvocet)
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The Rebuttal Presumption
(2004) So, when can I use
this?
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§ 4123.54 (C)A chemical test is qualifying if it is administered to an employee
after an injury under at least one of the following conditions:
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§ 4123.54 (C)A chemical test is qualifying if it is administered to an employee
after an injury under at least one of the following conditions:
Employer had “reasonable cause” to suspect employee intoxicated or under the influence
At request of police officer not employed by employer + not at request of employer
At request of licensed physician not employed by employer + not at request of employer
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So, what’s “Reasonable Cause”?Any evidence that an employee is or was using alcohol or a controlled substance drawn from specific, objective facts and reasonable inferences drawn from these facts in light of experience and training
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This is not an exhaustive list!
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Observable Phenomena, Possession or Distribution
1
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Physical Symptoms of Being Under the Influence
2
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Pattern of Abnormal Contact
3
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Erratic or Aberrant Behavior
4
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Deteriorating Work Performance
5
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Identification of Employee as Target of Criminal
Investigation
6
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Report of Use from Reliable + Credible Source
7
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Repeated or Flagrant Violations of Workplace
Safety Rules
8
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Common MISTAKES
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Failure to put up required posting
Posting too small
Inadequate investigation
Untimelyinvestigation
Inadequate documentation
Untimely testing
“Reasonable cause” viewed too narrowly
Failure to obtain medical opinion on intoxication/ proximate cause
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Lack of “Reasonable Cause” for drug test does not mean
the employer loses
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Inability to defeat WC claim does not mean employer
cannot enforce/follow drug testing policies
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Phelps v. Positive Action Tool
“An employee who drinks intoxicating liquor to such an extent that he can no longer engage in his employment abandons his job and, when injured in that condition, his
injury does not arise out of his employment.”
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Chester Scaffolding v. Hanley
On the other hand, an employee who plunged to his death as a result of a 200 foot fall off a scaffold shortly after drinking 6 beers at lunch was found not to have been
“incapacitated” from his employment because of the fact that he was able to climb the scaffolding.
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Can “reasonable cause” be established after the test?
Can the way the injury happened itself establish “reasonable cause”?
Employee Assistance Programs
Drug Free Workplace Programs (BWC)
Final THOUGHTS
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presented by Randall W. Mikes
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What is VoluntaryAbandonment?
an affirmative defense to a claimant’s request for total disability
compensation (i.e. TTD, PTD)
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Issue? whether causal
connection exists between injury +
loss of wages
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Issue? whether causal
connection exists between injury +
loss of wages
Temporary Total Disability Compensation
Compensation paid to a claimant when they are unable to return to the former position of
employment as a result of disability from the allowed conditions
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Issue? whether causal
connection exists between injury +
loss of wages
Temporary Total Disability Compensation
Compensation paid to a claimant when they are unable to return to the former position of
employment as a result of disability from the allowed conditions
Paid to compensate for lost earnings due to disability up and to the point claimant returns to
work or the allowed conditions have reached maximum medical improvement
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Issue? whether causal
connection exists between injury +
loss of wages
Temporary Total Disability Compensation
Compensation paid to a claimant when they are unable to return to the former position of
employment as a result of disability from the allowed conditions
Paid to compensate for lost earnings due to disability up and to the point claimant returns to
work or the allowed conditions have reached maximum medical improvement
Permanent Total Disability Compensation
Compensation paid where allowed conditions prevent a return to sustained remunerative
employment
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Origin of Voluntary Abandonment
Doctrine
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State, ex rel. Jones & Laughlin Steel Corp. v.
Indus. Comm.
Claimant voluntary retired
Subsequently moved for temporary total disability compensation
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“One who has voluntarily retired and has no intention of ever returning to his former position of employment is not prevented from returning to that
former position by an industrial injury which renders him unable to perform the duties of such former
position of employment.”
“A workers is prevented by an industrial injury from returning to his
former position of employment where, but for the industrial injury,
he would return to such former position of employment.”
“However, where the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to
continued temporary total disability benefits since it is his own action, rather
than the industrial injury, which prevents his returning to such former position of
employment.”
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Expansion of Voluntary
Abandonment
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Imprisonment
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State, ex rel. Ashcraft v. Indus. Comm.
Claimant moved for temporary total disability compensation while
imprisoned
TTD denied because claimant not in a position to return to work while in
prison; loss of earnings was no longer “on account of the injury”
A person who violates the law is presumed to tacitly accept the
consequences of his voluntary acts
Now codified in R.C. 4123.54(J)
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Violation of Written Work Rule
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State, ex rel. Louisiana Pacific Corp. v. Indus.
Comm.
Termination for violation of a written work rule can give rise to
a voluntary abandonment
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Termination must be pursuant to a written policy that
1 Clearly defines prohibitive conduct
2 Has previously been identified as a dischargeable offense
3 Was known or should have been known by the employee
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PretextTiming +
circumstances of discharge
Burden shift to claimant
Claimantmust raise orit is waived
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Job Change
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State, ex rel. McGraw v. Indus. Comm.
Held that a voluntary departure to perform work for another employer for
reasons unrelated to the industrial injury precludes the receipt of TTD
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State, ex rel. Bakerv. Indus. Comm.
In Baker I, the court affirmed the rule in McGraw
Reconsideration in Baker II
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“When a claimant who is medically released to return to work following an industrial injury leaves his or her former
position of employment to accept another position of employment, claimant
is eligible to receive temporary total disability compensation pursuant to R.C.
4123.56(A) should the claimant re-aggravate the original industrial injury while working at his or her new job.”
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Post-Voluntary Abandonment
Re-Employment
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State, ex rel. McCoy v. Dedicated Transport, Inc.
Held that a claimant who voluntarily abandons his or her former position of employment or who is fired under circumstances that amounted to a voluntary abandonment of the former position will be eligible to received TTD if he or she re-enters the workforce and, due to the original industrial injury, becomes
temporarily and totally disabled while working at his or her new job
Must be employed at the time of the subsequent disability
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Timing of the Prohibited Conduct
+ Disability
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Dischargeable Conduct While
on TTD
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State, ex rel. Brownv. Indus. Comm.
PTD not terminated by subsequent incarceration
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“…a claimant can abandon a former position or remove
himself or herself from the work force only if he or she has the
physical capacity for employment at the time of the
abandonment or removal.”
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State, ex rel. Pretty Products, Inc.
v. Indus. Comm.
Referenced Brown where issue was TTD and termination for absenteeism
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State, ex rel. OmniSource Corp.v. Indus. Comm.
TTD payable despite termination for no CDL while on TTD (incarceration)
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State, ex rel. ReitterStucco, Inc. v. Indus. Comm.
TTD payable despite termination for nasty comments about company
president
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Even if a termination satisfies the Louisiana Pacific criteria,
the eligibility for TTD remains if the claimant was disabled at
the time the dischargeable conduct occurred
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Dischargeable Conduct Simultaneous
with Inury
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State, ex rel. Gross v. Indus. Comm.
In Gross I, 112 Ohio St. 3d 65, the court held that a violation of a workplace safety rule that both resulted in termination and caused the
injury amounted to a voluntary abandonment precluding TTD
Upon reconsideration, the court revisited prior case law noting that where an employee’s
departure from the workplace is causally related to the injury, it is not voluntary and does not
preclude TTD
Termination was for conduct that caused the injury, i.e.
related
The Court expressed concern that Gross I added an element
of fault to a no fault system and unnecessarily expanded the voluntary abandonment
doctrine”
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“Until the present case, the voluntary abandonment doctrine has been applied only
in post-injury circumstances in which the claimant, by his or her own volition, severed
the causal connection between the injury and loss of earnings that justified his or her TTD
benefits…The doctrine has never been applied to pre-injury conduct or conduct
contemporaneous with the injury.”
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Dischargeable Conduct While Working With
Restrictions
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State, ex rel. Adkins v. Indus. Comm.
Termination while capable of light duty
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State, ex rel. Jacobsv. Indus. Comm.
Claimant released to return to work with restrictions
Claimant returned for one hour and left to go see doctor never to be seen
or heard from again
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“When a claimant is discharged because of actions that were initiated
by the claimant and that were not related to the industrial injury, a
voluntary separation from employment has occurred that breaks the causal relationship between the industrial
injury and the loss of earnings.”
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State, ex rel. Hildebrandv. Wingate Transport, Inc.
Claimant released to return to work with restrictions quit after a disagreement with employer
unrelated to his injury
TTD not payable
Pretty Products did not apply as claimant was not receiving TTD at the time he was terminated
The lack of evidence ofavailable work not dispositive
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Dischargeable Conduct Both Before
+ After Injury
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State, ex rel. Parraz v. Diamond Crystal Brands, Inc.
Claimant terminated under progressive discipline for attendance
policy violations
Points accrued both before and after injury
Louisiana Pacific criteria met and termination amounted to voluntary
abandonment
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Pre-Injury Conduct Discovered Post-Injury Revisited
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State, ex rel. Gross v. Indus. Comm.
Gross II: Voluntary abandonment has never been applied to
pre-injury conduct
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Falsification of Employment Application Discovered Post-Injury
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State, ex rel. Lawrence v.
Indus. Comm.
Court entertained that pre-injury falsification of employment application discovered post-injury could give rise to a voluntary abandonment; cases
remanded to Commission to address issue of pretextual firing
State, ex rel. Walters v.
Indus. Comm.
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State, ex rel. Strimbu, Inc. v. Indus. Comm.
Omission of a prior employer on employment application not grounds for voluntary abandonment without
evidence of “intent to deceive.”
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Post-Injury Drug Tests
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State, ex rel. Hislev. Indus. Comm.
Termination for positive post-injury drug test amounted
to voluntary abandonment precluding receipt of TTD
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“In particular, we are unpersuaded by relator’s argument that, as a matter of law, he cannot be found to have abandoned his employment due to
the fact that he was injured.”
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State, ex rel. PaySource USA, Inc.
v. Indus. Comm.
Pre-injury violation of drug policy discovered by post-injury drug test
amounted to voluntary abandonment
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Current Status of Post-Injury Drug Tests
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State, ex rel. Ohio Welded Blank
v. Indus. Comm.
Decided same year as PaySource
Relied on Gross II to find that pre-injury conduct discovered post-injury
cannot be the basis of a voluntary abandonment finding
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“Although the infraction may be grounds for terminating relator’s employment, Gross II
clarifies that it is not grounds for concluding claimant abandoned his employment so as to preclude temporary total benefits. The result
is especially compelling here, where the employer presented no evidence to suggest
the injury resulted from Relator’s being under the influence of drugs or alcohol.”
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State, ex rel. James F. Cordell v. Indus. Comm.
Relied on Gross II and Ohio Welded Blank to find that a positive post-injury drug test did not arise to a voluntary abandonment
Noted that PaySource was a memorandum decision that adopted a Magistrate’s decision to which there were no objections. “It does
not appear that the applicability of Gross II was even raised in PaySource.”
Currently pending on appeal before the Ohio Supreme Court
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Voluntary Involuntaryvs.
Post-Injury Retirement
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Voluntaryjob separation
unrelated to injury
Post-Injury Retirement
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Voluntary Involuntaryvs.Job abandonment
Workforceabandonmentvs.
Post-Injury Retirement
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Post-Injury Retirement
vs.vs.Focus on voluntary
Focus on but-for
relationship
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Even involuntary retirement can preclude total disability compensation if subsequent
circumstances indicate an intent to abandon the entire workforce
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State, ex rel. Honda of America Mfg., Inc. v.
Indus. Comm.
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State, ex rel. Floyd v. Formica Corp.
Medicare Set AsidesNovember 12, 2015
Medicare Set-Asides John V. Cattie, Jr.
You Can Minimize/Extinguish
Your MSP Reimbursement
Exposure.How?
Imagine this …
“The issue is whether the settlement Mr. Smith
receives compensates him for future medical care he
will require due to the accident.”
In Case I Forget
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Base Camp: The Changing MSP Terrain
Trail Map : Map the Path & Timeline to Resolution
Climbing the Mountain: Conditional Payments
The Treacherous Descent: Using MSA Analysis to Ensure a Closed File Stays Closed
Take-Home Climbing Gear : Practice Tips
Medicare Secondary Payer : Base Camp
Medicare program began in 1966 42 U.S.C. §1395
Medicare Secondary Payer Act is a subpart of that law 42 U.S.C. §1395y(b)(2) According to MSP Act, payment … may not be made …
with respect to any item or service to the extent that … payment has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance plan (including a self-insured plan) or under no fault insurance.
CMS interprets MSP to include conditional payments and future medicals (§2 of WCMSA Reference Guide)
Medicare Secondary Payer : Base Camp
Broad prohibition on Medicare from paying injured worker’s medicals related to WC claim
One Exception : Conditional Payment MSP authorizes Secretary to make conditional payments
CMS Recovery Right is not Automatic When primary plan accepts responsibility for medicals and that
is evidenced in judgment, compromise for release, etc. What happens when E/C never accepts responsibility? Do you need to reimburse Medicare? Do you need an MSA?
At settlement, worker becomes “primary payer” of future medicals
Legal obligations, not medical obligations
Medicare Secondary Payer
What Does it Mean to “Reasonably Consider” Medicare’s Interests (or “Consider and Protect”
Medicare’s Interests)?
• Term does not appear in the statute• Term does not appear in the regulations• In short, it’s Medicare’s own lingo for:
• Making sure you pay us back when it’s appropriate; &
• Making sure we do not pay for future medicals when we shouldn’t
Base Camp: The Path & Timeline to Resolution
Date ofInjury
Date ofResolution
Distribution of Proceeds
Claim Filed
Counsel Retained
Demand Sent/ Negotiations Release Executed
Past Interest Future InterestMMSEA Section 111
Up to $1,000 per day per claimantfor failure to report
Climbing the Mountain: Conditional Payments
42 C.F.R. §411.21“A Medicare payment for services for which another payer is responsible…”A payment Medicare makes when a primary plan or payer has not yet accepted responsibility for the beneficiary’s medical expensesPast Medicals v. Future MedicalsAccepted v. Denied WC Claims
What is a “Conditional Payment?”
Certain amount of proceeds to satisfy MSP statutory requirements Covers future injury-related
care otherwise covered by Medicare MSAs are a subset of the future
medicals award Think insurance deductible …
Future Medicals and MSAs: The Basics
MSAs : Statutory Obligation
According to MSP Act, payment … may not be made … with respect to any item or service to the extent that … payment has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance plan (including a self-insured plan) or under no fault insurance.
MSAs: Workers’ Compensation Regulations
42 C.F.R. §411.46(b) Lump-sum compromise settlement
“If a settlement appears to represent an attempt to shift to Medicare the responsibility for payment of medical expenses for the treatment of the work-related condition, the settlement will not be recognized. For example, … Medicare will not pay for treatment of that condition.”
MSAs: Workers’ Compensation Regulations
42 C.F.R. §411.46(d) Lump-sum compromise settlement: Effect on
payment for services furnished after the date of settlement
1) Basic Rule. Medicare pays for future injury-related care.
2) Exception. If WC award contains dollars for future medicals, that amount must be spent down and exhausted before Medicare pays
MSAs: Workers’ Compensation Regulations
42 C.F.R. §411.47
Apportionment of a lump-sum compromise settlement of a workers’ compensation claim
a) Determining amount of compromise settlement considered as payment for medical expenses.1) If a compromise settlement allocates a portion of the
payment for medical expenses and also gives reasonable recognition to the income replacement element, that apportionment may be accepted as a basis for determining Medicare payments.
MSP Case Law : Apportionment for Medicals
Benson v. Sebelius, 2011 U.S. Dist. LEXIS 30438
Decided March 24, 2011
“ … if a settlement covers both medical and nonmedical costs, CMS’s reimbursement may be apportioned so as to reach only the portion of the settlement allocated to cover medical costs.”
§4.0 of WCMSA Reference Guide
§4.1.4 – Hearing on the Merits of a Case - Process
1) Parties agree on gross settlement award (Z = X + Y)a) Non-medicals = Xb) Medicals = Y
2) Parties identify that portion of gross award as non-medicalsa) What does state WC statute allow for indemnity/wage loss?b) Disability, body part, # of weeks, dollars per week = X
3) Balance of gross award is medicalsa) Z – X = Yb) Y then becomes the maximum possible MSA needed
4) Execute settlement agreement5) Submit for approval
a) “If a court or other adjudicator of the merits (i.e., a state WC board or commission specifically designates funds to a portion of a settlement that is not related to medical services (e.g., lost wages), then Medicare will accept that designation.”
MSAs : Proposed New Regulation
Medicare Secondary Payer and “Future Medicals”ANPRM dated June 15, 2012; NPRM dated August 1, 2013 (withdrawn)Summary – Covers WC, Auto, Liability (including self-insurance) and No-Fault
General Rule… “If an individual or Medicare beneficiary obtains a “settlement” and has
received, reasonably anticipates receiving, or should have reasonably anticipated receiving Medicare covered and otherwise reimbursable items and services after the date of “settlement”, he or she is required to satisfy Medicare’s interest with respect to ‘future medicals’ related to his or her ‘settlement’ using any one of the following options.”
HHS Region III Letter
“The issue here is whether the settlement Mr. _____ will receive compensates him for future medical care he will require due to the accident.”
Using MSP Compliance as Profit Driver
How MSP Reimbursement Issues Can Make You
More Efficient and More Profitable
Using MSP Compliance as Profit Driver
What Concerns the Worker?
Timely Disbursement of ProceedsProtecting the Medicare Card
Making Sure Federal Gov’t Does Not Pursue ThemGetting Out of the WC System
Using MSP Compliance as Profit Driver
What Concerns the E/C?
$1,000 Per DayExposure to Federal Government
Double Damages Plus InterestLong Tail Claims
Fear That a File is Never Truly “Closed”
Using MSP Compliance as Profit Driver
How is Claims Adjustor Measured?
# Claims ResolvedTo What Extent are Reserves Being Depleted?
MSP : Current Industry Practices
Parties agree to settle; close future medsoWho’s handling conditional payments? (2-4 months)o Employer/Carrier gets MSA Allocation (1 -2 months)o E/C sends to CMS for review/approval (2-6 months)o Proceeds not disbursed until 3-8 months post
settlement or longer; bad for all sidesoWhat if a more proactive approach were applied?
MSP Compliance : Present State vs. Future State
Date ofInjury
Date ofResolution
Distribution of Proceeds
Claim Filed
Counsel Retained
Demand Sent/ Negotiations Release Executed
Past Interest Future Interest
The Roadmap to a More Profitable Business
o P handles conditional payment issues;o P figures out future costs of care;o P figures out MSA figure;o P gets quote from settlement planning company;o P gets CMS to review/approve the MSA; ando P builds this into the demand.
HOW WOULD THE ADJUSTOR REACT?
The Roadmap to a More Profitable Business
o P removes all MSP reimbursement concernso P makes sure Medicare cannot pursue E/C on
conditional payments – zero interest lettero P makes sure Medicare cannot pursue E/C on future
medicals – CMS approved MSAo P helps E/C close file fastero P helps E/C reduce reserve expenditureso P helps E/C adjustor achieve their annual bonus
oWould defense counsel react differently?o Counsel is happy when client is happy
Using MSP Compliance as Profit Driver
With proactive approach, parties can:
Close cases faster;Disburse proceeds faster;
Reduce costs; andBecome more profitable.
Practical MSP Compliance Tips
3 things to start doing today to ensure compliance:
1. Honest Internal Discussion Re: Policy/Procedure on MSP Formalized Approach Yields Compliant Results Goal = 100% Compliance at Lowest Cost
2. Time is right to revise intake or issue new RFP You should modernize your MSP cost containment protocols Make sure your vendors understand all the changes and CMS
Guidance, remembering the goal 3. Seek Help (as needed) Build It or Buy It
Additional Resources: GRG Learning & Resource Center
Downloadable client alerts, practice tips, whitepapers, guides, publications and additional resources
Conclusion
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