By Christopher D. Vanderbeek
On the whole, the American workforce is less healthy now than it has ever been. The sad truth is that many American workers live unhealthy lifestyles of poor exercise and eating habits, due in part to an increase in automation and technology. This unhealthy state, in combination with the natural aging process, leads to an American workforce struggling with chronic conditions such as obesity, diabetes, and arthritis.
Missouri workers are no exception, and this causes an increasing concern for Missouri employers. Increasing unhealthiness contributes to a higher incidence of degenerative and inflammatory musculoskeletal conditions. Put simply, this means that less healthy workers tend to become “injured” due to work activities more often than other workers.
How can Missouri employers insulate themselves from increased workers’ compensation liability for unhealthy workers?
There are two analytical measures employers can implement to limit their workers’ compensation liability in the face of increased liability risk due to unhealthy workers. Continue reading »
10/29/12 6:00 AM
Business Law, Employment Law, Workers' Compensation | Comments Off |
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How to Limit Work Comp Liability when Faced with Unhealthy Workers
By Christopher D. Vanderbeek
In Missouri, an employer has the right to direct and control medical treatment in workers’ compensation cases. This means that when an employee injures himself on the job, the employer has the right to direct the employee to a specific medical provider for treatment, and the employer thereafter has control over where the employee treats until the employee is released.
This may not seem like a big deal, but it is. An employer who seizes and proactively manages this dual right (first to direct treatment, and then to control it) will keep medical costs much lower than an employer who flouts them. And as all employers know, the less the insurance carrier pays for work-related medical treatment, the lower the work comp insurance premium will be.
In the vast majority of cases, the employer will ultimately defer to its workers’ compensation insurance carrier to handle medical care for an injured worker. After all, one of the functions of a work comp insurance carrier is to do just this – manage and pay for work-related medical care until the injured worker is released from care.
However, in most cases, medical treatment decisions need to be made before the insurance carrier is even involved. The most common example is where an employee is injured and tells his supervisor, and the supervisor tells the employee to go to a specific provider – usually an urgent care or occupational medicine clinic. This is an important step, because it constitutes the employer’s exercise of its right to direct and control medical treatment. (Additional discussion of the importance of exercising this right is contained below.)
Continue reading »
06/1/12 8:57 AM
Employment Law, Workers' Compensation | Comments Off |
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Missouri Employers and the Right to Direct and Control Medical Treatment in Work Comp Cases
By Christopher D. Vanderbeek
The Workers’ Compensation Research Institute recently released the results of a study documenting the costs of medical professional services in workers’ compensation cases.
The study, entitled Medical Price Index for Workers’ Compensation (MPI-WC), defined medical professional services as “nonhospital, nonfacility” services provided by physicians, physical therapists, and chiropractors. It measured the difference between medical professional service costs in states that do not have medical fee schedules versus states that do have medical fee schedules. More specifically, the study compared the increase in medical professional services between 2002 and 2011 in states without fees schedules versus states with fee schedules.
A medical fee schedule is essentially a listing, rendered by a state government, of the amounts medical providers are allowed to charge for given services. The allowable amounts are based on the codes for given services. For example, in New York, the code for a level one ambulatory surgery is “PAS 1” – each provider licensed to administer ambulatory surgeries has an allowable fee for a level one surgery.
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05/24/12 8:21 AM
Business Law, Manufacturing and Distribution, Workers' Compensation | Comments Off |
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Worker’s Comp Medical Costs Rising Faster in States without Medical Fee Schedules
By Christopher D. Vanderbeek
A St. Louis judge recently struck down the city’s red-light camera ordinance, which had enabled the use of red-light cameras in issuing traffic citations in the City of St. Louis since 2007. It is important to note that this ruling is applicable only to the red-light camera ordinance in St. Louis City. It has no effect on any municipalities operating red-light cameras in St. Louis County.
St. Louis Circuit Court Judge Mark Neill initially opined in May 2011 that the ordinance violated state law. He made his ruling “temporary,” in order to allow St. Louis officials to present evidence to the contrary. The city provided nothing, and Judge Neill issued a permanent ruling on February 17, 2012.
Judge Neill’s decision is based on two legal findings:
First, the City of St. Louis did not have authority from the State of Missouri to enact the red-light ordinance. Missouri municipalities are entitled to enact ordinances only with proper authority provided by the State of Missouri. Traffic ordinances are typically enacted under the authority of state-authorized “police power.” However, police power provides authority for ordinances that protect the health, safety, peace, comfort, and general welfare of the citizenry. Judge Neill found that the red-light ordinance does “nothing to regulate and control the streets of traffic” and, therefore, does not protect the general welfare of the inhabitants of the city.
Second, the red-light ordinance violated procedural due process. Oversimplified, procedural due process entitles each U.S. citizen the right to notice and the right to hearing with regard to governmental decisions that affect the citizen’s liberty. Judge Neill essentially opined that red-light camera violation notices are deficient. He stated that the violation does not offer sufficient means for the owner of the vehicle to contest the alleged violation. He also cited that the violation notices do not include a summons or court dates on which they can be contested.
In finding a due process violation, Judge Neill distinguished the St. Louis ordinance from a Creve Coeur ordinance that was recently upheld by the Missouri Court of Appeals. Judge Neill noted that the Creve Coeur ordinance specifically provides that offending drivers cannot be subject to imprisonment as a result of the red-light camera violations. The St. Louis ordinance does not contain such a provision.
Unfortunately for individuals that have paid for red-light camera violations in the past, Judge Neill held that past payments are not refundable because they were paid “voluntarily.” Certainly, there would be an incredible administrative burden for the city to reimburse millions of dollars to individual defendants, not to mention the corresponding drain to the city’s budget as a result.
The City of St. Louis has announced it will appeal Judge Neill’s decision. In the meantime, the city plans to keep the red-light cameras in operation and continue to issue citations pending a decision from the Eastern District Court of Appeals.
Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers.
02/23/12 12:51 PM
Litigation | Comments (2) |
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Red-light Cameras Get the Red Light in St. Louis City
By Christopher D. Vanderbeek
The Work Loss Data Institute (WLDI) recently released state-by-state workers’ compensation report cards. The report cards incorporate data compiled during the 10-year period from 2000 through 2009. Forty-three states, as well as Puerto Rico, Guam and the Virgin Islands, were included in the survey.
The data used in determining states’ grades comes primarily from OSHA recordable injuries and illnesses. Once the data was collected, it was interpreted in terms of the two most significant factors driving the cost of workers’ compensation throughout the US. The first factor is injury/illness outcomes, specifically the success within a state in preventing injuries, and, when they occur, the success in returning the injured worker to health and productive endeavor, thus avoiding prolonged absence and medical treatment costs. The second factor is administrative burden stemming from the accumulation of rules, procedures, disputes, delays, discretionary charges and patterns of practice, including lawsuits, affecting the resolution of claims.
The 2012 WLDI report cards primarily consider the “primary outcome measure” of how quickly workers recover from their injuries/illnesses and return to work. Five different outcome measures are compared among the states for each year:
- Rates of the occurrence of workplace incidents;
- Number of cases in which employees missed work;
- Median duration of disability;
- Instances of “delayed recovery”; and
- Instances of the “key condition,” which for this reporting period was low back strain.
For 2012, Missouri was one of only five states to receive an “A” grade overall. The other four states were Alabama, Arkansas, Georgia, Minnesota, and Utah. In addition, the WLDI reports indicated “impressive advancement” for Missouri from 2000 through the present.
Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers.
02/1/12 8:40 AM
Workers' Compensation | Comments Off |
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Missouri Receives “A” Grade on State Workers’ Compensation Report Card
By Christopher D. Vanderbeek
Missouri businesses have kicked off 2012 with a legislative measure that is intended to effect comprehensive reform with regard to Missouri workers’ compensation law. The business-backed measure is the coordinated response of Missouri businesses to many recent issues that have surfaced on the state’s legal landscape.
One major issue, the depletion of Missouri’s Second Injury Fund (SIF), arose gradually.
Other issues arose much more suddenly. Specifically, two recent Missouri cases flipped Missouri’s workers’ compensation system on its side by respectively providing:
(a) that an employee can sue a co-employee in civil court for the co-employee’s negligence in causing a workplace injury, and
(b) that an employee can sue his or her employer in civil court for a work-related occupational disease (e.g. carpal tunnel syndrome).
Prior to these court cases, it was believed – and, Missouri businesses argue, the Missouri legislature intended – that the sole venue for a claim based on a work-related injury was the workers’ compensation system.
Missouri businesses have responded by throwing their weight behind SB 572. The bill proposes a plethora of amendments to Chapter 287 of the Missouri’s statutory code, which is informally known as the Missouri Workers’ Compensation Act. Included are several amendments to Section 287.120, otherwise known as the “Exclusivity Clause.” This section was recently cited in the case of State ex rel. KCP & L Greater Missouri Operations Co. v. Cook in support of the argument that employees have the right to sue their employers in civil court for work-related occupational diseases.
Some highlights of the proposed bill:
- Prohibition of occupational disease claims outside the workers’ compensation forum
- Prohibition of negligence-based injury claims against co-employees
- Elimination of a $40-per-week benefit paid to injured workers out of the SIF
- Elimination of benefits paid by the SIF to uninsured employers
- Prohibition of all claims for permanent partial disability (PPD) against the SIF
- Prohibition of all claims by employees not legally entitled to work in the US
- Elimination of benefits for employees who become incarcerated
SB 572 was introduced by Senator Tom Dempsey of the 23rd District of Missouri (St. Charles County). The bill is currently being considered by the Small Business, Insurance, and Industry Committee and was initially presented to the committee on January 10, 2012.
Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers.
01/16/12 4:33 PM
Workers' Compensation | Comments Off |
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New Proposed Bill Would Impact Workers’ Compensation Reform in Missouri
By Christopher D. Vanderbeek
In September 2011, Missouri’s Western District Court of Appeals rendered its opinion in State ex rel. KCP & L Greater Missouri Operations Co. v. Cook. The Court ruled that Missouri employees may sue their employers in civil court where they have allegedly suffered an “occupational disease” as a result of their employment. It is important to note that the Court did not bar employees from filing workers’ compensation claims based on occupational diseases. Rather, the Court essentially gave employees with occupational diseases the option of either filing a workers’ compensation claim or filing a civil lawsuit.
Prior to KCP & L, the general understanding among employers, employees, the State of Missouri, and workers’ compensation legal practitioners was that the Missouri workers’ compensation system was the exclusive remedial forum for any claim involving a work-related injury, whether it be a broken arm or lung cancer. This general understanding was derived from Section 287.120 of the Missouri statutory code. Section 287.120 (the “exclusivity provision”) states as follows:
- Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee’s employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.
- The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.
The intent behind the exclusivity provisions was that Chapter 287 of the Missouri statutory code would provide the exclusive remedy for all claims based on work injuries. However, the Court in KCP & L exploited an oversight in legislative wording – the legislature only made the workers’ compensation system the exclusive forum for claims based on injuries (or deaths) caused by accidents.
Continue reading »
12/20/11 12:30 PM
Business Law, Employment Law, Workers' Compensation | Comments Off |
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Employees Can Now Sue for Occupational Diseases: Understanding Breeds a Solution to the Problem
By Christopher D. Vanderbeek
Missouri Appeals Court Says Employees Can Sue Employers in Civil Court for Occupational Disease Claims
Missouri’s Western District Court of Appeals recently decided that an employee can sue his employer in civil court for an “occupational disease” claim. In KCP & L Greater Missouri Operations Co. v. Cook, the employee claimed that he contracted mesothelioma as a result of his employment. The court ruled that Gunter was allowed to file suit in civil court because, under Missouri law, the workers’ compensation forum is not the exclusive forum for a claim premised on an “occupational disease” injury, such as mesothelioma, even if the injury is allegedly work-related. (Note the distinction between an “occupational disease,” which develops over a period of time, versus an injury that happens instantaneously or acutely as a result of a single accident.)
This is a major change from prior law. Historically, the exclusive remedy for every employment-related injury was a workers’ compensation claim. And workers’ compensation is a system that clearly benefits employers (as well as third-party workers’ compensation insurance carriers). Relative to the civil realm, the workers’ compensation system places a dramatically lower ceiling employer and insurer liability vis a vis employee benefits.
There are generally two types of “occupational disease” injuries. The first type is an actual disease, such as mesothelioma, that results from an employment condition. The second type is a “repetitive use” injury, which results from the employee overusing the injured body part. Although it is yet to be seen whether or not Missouri courts will allow pursuit of repetitive use claims in the civil forum as well, a plain-language reading of the court’s opinion in KCP & L suggests that they will.
What This Means for Missouri Employers
This does not necessarily mean that a large number of employees will pursue injury claims in civil court. Repetitive use injuries like carpal tunnel syndrome are caused by repetitive use of the injured body part, plain and simple. It would be difficult for an employee to prove that his employer’s negligence cause this sort of injury. To prove negligence, an employee must prove that the employer knew or should have known that a harmful condition existed and that its employees were at risk as a result. If the employee cannot prove negligence, it would be foolish for his attorney to file a civil lawsuit rather than a workers’ compensation claim.
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11/23/11 10:59 AM
Business Law, Employment Law, Litigation | Comments Off |
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Occupational Disease Claims: Civil Court an Option for Employees
By Christopher D. Vanderbeek
According to a recent study published in the Journal of Occupational and Environmental Medicine, modifiable employee health risks dramatically increase employer operating costs. “Modifiable” health risks are those which can be remedied with appropriate action, such as exercise, diet, or medication.
The study focused on the employees of a large Midwestern corporation. It looked at the most common modifiable health risks: obesity, high blood pressure, high blood sugar, high cholesterol, inadequate exercise, poor nutrition, poor emotional health, tobacco use, and high alcohol consumption.
Researchers focused on two types of costs: health care-related costs, and productivity-related costs. The study suggests that health care costs were driven upward most significantly by high blood pressure, high blood sugar, and inadequate exercise. Productivity costs were driven upward most significantly by poor emotional health, which was also a driver of increased health care costs, though to a smaller extent.
The study also implemented findings from a Mayo Clinic assessment. A few of the pertinent Mayo Clinic findings:
Continue reading »
11/8/11 5:00 AM
Healthcare | Comments Off |
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Easiest Way to Increase Productivity and Decrease Health Care Costs
By Christopher D. Vanderbeek
The United States Department of Labor has initiated a crackdown on enforcement of federal wage laws. The Labor Department has signed agreements with twelve states, as well as the I.R.S., to share information about wage violations. Missouri is one of the states that has signed on to assist in the effort. Illinois reportedly plans to become involved in the near future.
The hope is that the shared information will help the Labor Department target businesses that improperly classify employees in order to pay employees less.
The most prevalent violations across the country involve employers classifying employees as “independent contractors.” This allows employers to avoid paying employees overtime pay and avoid complying with minimum wage requirements. Employers also do not pay for workers’ compensation and unemployment insurance for these misclassified workers. Employers also skip out on federal payroll taxes for the workers, which is why the I.R.S. is involved in the effort.
The practice of misclassifying workers is illegal, but U.S. businesses have been employing it as a cost-cutting measure for years. Misclassification for the purpose of depriving workers of overtime pay and minimum wage – known as “wage-theft” – is most prevalent and wide-spread in the hotel, restaurant, janitorial, health care, and daycare industries. The Labor Department has recently intensified efforts to curb the practice of misclassification, including getting states like Missouri involved, due in large part to the practice growing across corporate industries in recent years.
Thus far, the Labor Department’s crackdown has been an overwhelming success. From 2008 to 2010, collection of back wages for misclassified workers increased by 400 percent. The Labor Department expects even better results now that states like Missouri are involved in the effort.
Missouri businesses looking to ensure compliance with employer classification legal requirements, as well as other employment-related legal requirements, can find more information here.
Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers.
10/10/11 8:56 AM
Business Law, Emerging Business, Employment Law | Comments Off |
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Federal Crackdown on Misclassifying Employees Includes Missouri and the I.R.S.
