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.)
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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 David R. Bohm
Part of a series on issues related to Manufacturers, Distributors and International Trade
Co-authored by David R. Bohm and David A. Zobel
A major change involving subpoenas to non-parties has hit the business world in the state of Missouri.
A new amendment to the Missouri Supreme Court Rules now requires non-party record custodians to physically appear at deposition to produce subpoenaed items, unless all parties to the litigation have agreed that the subpoenaed party may produce the items without appearing.
The amendment changes the prevailing practice where parties send out subpoenas to third parties with a letter explaining that they will be excused from appearing at deposition if they produce the requested items along with what is known as a business records affidavit.
Rule 57.09, as amended, now requires parties to first obtain consent from all other parties to the litigation before a subpoenaed witness may produce documents without attending the deposition. This agreement must be communicated to the witness in writing. Absent this agreement, a witness must appear to produce subpoenaed items at deposition.
What does this mean to you? If you receive a subpoena, you may only produce the documents to the party serving the subpoena without appearing at deposition if that party represents to you in writing (e.g., in a letter) that all other parties have consented to production of the documents without need for you to appear at the deposition. Such a letter should protect you from allegations that you improperly produced records by mail, instead of bringing the documents to the deposition. You do not need to see the actual agreement. If you have any questions as to whether you can simply mail the documents, instead of appearing at deposition, you should either call your attorney for advice or simply wait and bring the documents at the time and place designated in the subpoena.
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03/28/12 12:30 PM
Banking and Finance, Bankruptcy, Business Law, Employment Law, Healthcare, Intellectual Property, Litigation, Manufacturing and Distribution, Real Estate, Tax, Workers' Compensation | Comments Off |
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Is This by Consent? Changes to Missouri Supreme Court Rule Affect Use of Non-party Subpoenas
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.
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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
