U.S. Department of Labor Issues Warning About Nonsubscriber Injury Reporting Time Frames
The U.S. Department of Labor has warned that occupational injury welfare benefit plans with “overly restrictive” time requirements for workers to report injuries violate the Employee Retirement Income Security Act.
The DOL had investigated a Texas service provider that writes injury welfare benefit plans and several nonsubscribers who have implemented injury welfare benefit plans to see if the plans include a reasonable time frame for injured employees to make a claim. Although it decided not to take any action, the DOL concluded that short injury-reporting time frames violate ERISA because the penalty for lack of compliance is too severe.
According to the DOL, a short reporting requirement “ignores the reality that the severity of many injuries may only become clear in the hours and days following the injury.” DOL cautioned against denials where:
- The seriousness of the injury becomes apparent only later.
- The lack of notice within a short period of time has no impact on the plan’s ability to resolve the claim correctly.
- Management had actual knowledge of the injury at the time.
- The injury compromised the participant’s ability to give immediate notice.
- The claimant otherwise provided notice on a reasonably timely basis under the circumstances.
The DOL further determined the plan’s good cause exception does not cure the plans’ deficiencies, either as written or administered, for several reasons, including:
- Little or no guidance is given to participants regarding their ability to assert the exception, the types of factors relevant to the good cause determination, or how to successfully argue good cause.
- Plan administrators do not apply the good cause exception “systematically or consistently.” In fact, few of the files the DOL reviewed “reflected any consideration of the application of the good cause exception.”
- There do not appear to be established internal policies or procedures — or clear explanations of documentation of such policies or procedures — for the application of the good cause exception or the consistent review of claims to determine if the exception applies.
Donna Peavler, of the PeavlerBriscoe law firm, provides the following advice for nonsubscribers:
- Stop denying claims based upon the failure to report an injury within the unreasonably short time periods provided in the plan, and disregard the current injury notice requirement in adjudicating claims.
- Review recent claims that were denied based on late reporting and analyze them under the plan’s good cause exception.
- Modify unduly restrictive deadlines. Although the DOL did not establish a bright-line rule, it suggested that same-shift, same-day and even five-day deadlines are too short.
- Ensure the plan has a well-defined good cause exception that defines the use, parameters and standards for meeting the exception, and standards for application of the exception.
- Provide training to plan administrators regarding how to solicit compliance with, interpret and apply the plan’s good cause exception.
- Implement a system to effectively explain to claimants how the good cause exception can be satisfied in the event of late reporting.
- Periodically review claims to ensure a disproportionate number of claims are not being denied based on late reporting.
- Ensure claim files contain all critical information needed to make good cause determinations.
If you have questions about your company’s injury reporting time frame or its good cause exception rule, you are encouraged to contact an ERISA attorney for guidance.
Vaccine Mandate Headed to U.S. Supreme Court, Arguments Set for January 7
The U. S. Supreme Court will hold a special session on Jan. 7 to hear arguments on the Biden’s administration’s COVID vaccine requirements for large employer and its mandate for health care workers. The court was not scheduled to hear cases again until Jan. 10.
The OSHA announcement follows a 2-1 ruling from a panel of judges on the conservative-leaning Sixth Circuit Court of Appeals in Cincinnati, Ohio, that dissolved a stay on the administration’s vaccine or test mandate for businesses with 100 or more employees. The Sixth Circuit ruling was immediately appealed to the Supreme Court by more than half the states and a coalition of business and religious groups. About 80 million workers are estimated to be affected by the mandate.
Lower-court rulings to date have come down on both sides of the issue. In September, an Ohio federal judge held that a private employer near Cincinnati could require employees to get vaccinated or risk losing their jobs. In November, a federal judge in Texas ruled a United Airlines vaccine mandate for employees could continue, and the U.S. Supreme Court in December refused to block New York’s vaccine mandate for health care workers.
Meanwhile, lower courts have issued temporary stays against the Biden administration vaccine mandates in separate cases involving federal contractors and health care workers who work in facilities that receive Medicare or Medicaid funds. The Biden administration has asked the Supreme Court to overturn the decisions that blocked a vaccine mandate for health care workers in facilities that receive Medicare or Medicaid funds.
Occupational Fatalities Decline in Texas
The number of fatal occupational injuries in Texas dropped 23% in 2020 from the previous year, according to data from the Texas Department of Insurance, Division of Workers’ Compensation.
According to “The 2020 Census for Fatal Occupational Injuries,” there were 469 fatal occupational injuries in Texas in 2020, down from 608 in 2019. The 2020 number represents an incident rate of 3.9 per 100,000 full-time employees, slightly higher than the national incident rate of 3.4 per 100,000 full-time employees.
Private-sector employees represented 92% of the total fatalities in Texas, with 431 incidents in 2020 — down from 573 in 2019. The other 38 incidents involved public/governmental-sector employees — an increase of three from 2019.
The highest number of fatalities were reported in the construction industry, with 127 incidents, an increase of four fatalities from 2019. Fatalities in the transportation and warehousing industry decreased to 96, down from 137 incidents in 2019.
Among the service-providing industries in the private sector, transportation and warehousing had the highest number of incidents, at 96. Within transportation and warehousing, truck transportation accounted for 16% of all fatalities, with 73 fatalities.
The occupation with the highest number of fatalities was driver/sales workers and truck drivers, with 101 incidents, representing 22% of all fatal work injuries. This was a decrease of 41 incidents from 2019.
Of the 38 fatalities that involved government employees, 30 were employees in local government. Fourteen of those in local government were in police protection, up from 11 in 2019.
The full report is available here.
OSHA Extends Comment Period for Heat Injury Standard
The Occupational Safety and Health Administration (OSHA) has extended by a month the period for submitting comments on a proposal to create rules for regulating heat injury and illness prevention in work settings. Comments must now be submitted by Jan. 26.
OSHA currently does not have a heat-specific standard to protect workers in indoor and outdoor work settings from exposure to hazardous heat conditions. In recent months, OSHA has initiated several efforts to protect workers from heat-related illnesses and deaths while working in hazardously hot indoor and outdoor environments. In addition to pursuing a heat-specific workplace rule, OSHA instituted a heat-related enforcement initiative and plans to issue a National Emphasis Program for heat-related safety efforts in 2022.
OSHA began the process of considering a heat-specific workplace rule to address heat-related illnesses when it published an Advance Notice of Proposed Rulemaking (ANPRM) in October 2021. In the notice, OSHA says it is looking for more information about “the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness.” Additionally, OSHA says it wants input on heat-stress thresholds, heat-acclimatization planning and exposure monitoring.
Comments must be submitted electronically at www.regulations.gov in Docket No. OSHA-2021-0009.
Employer-Sponsored Health Insurance Costs Rise in 2021
The average per-employee cost of employer-sponsored health insurance jumped 6.3% in 2021 as employees and their families resumed care after avoiding it last year due to the pandemic, according to Mercer’s 2021 National Survey of Employer-Sponsored Health Plans, released today. With the highest annual increase since 2010, health benefit cost outpaced growth in inflation and workers’ earnings through September, raising the question of whether employers are seeing a temporary correction to the cost trend (following last year’s increase of just 3.4%) , or the start of a new period of higher cost growth.
Employers are projecting, on average, a fairly typical cost increase of 4.4% for the year ahead.
Cost growth was sharper among smaller employers (50-499 employees), at 9.6%, while larger employers reported average cost growth of 5.0%. Smaller employers are more likely to offer fully insured health plans, suggesting that insurance carriers expected significantly higher costs in 2021 relative to 2020.
Additionally, spending on prescription drugs rose 7.4% in 2021 among large employers (those with 500 or more employees), driven by an increase in spending on specialty drugs of 11.1%.
When health benefit cost growth accelerates, employers typically ratchet up cost management efforts to keep increases at sustainable levels. However, one traditional cost management tool known as “cost shifting” — where employers shift a larger share of the cost of health services to plan members — seems to be off the table for many employers.
In fact, concerns about health care affordability for lower-wage workers, along with the need to retain and attract employees in a competitive labor market, have resulted in an unexpected reversal in some health plan cost-sharing trends. Most employers not only held off on raising deductibles and other cost-sharing provisions, but some even made changes to reduce employees’ out-of-pocket spending for health services. Among small employers (50-499 employees), the median deductible for individual coverage in a PPO dropped from $1,000 to $900 in 2021. Among large employers, the median individual deductible in an HSA-eligible plan dropped from $2,000 to $1,850 in 2021.
Nationally, 40% of all covered employees enrolled in a high-deductible consumer-directed plan in 2021, up from 38% in 2020. However, most large employers that offer a CDHP at their largest worksite (86%) also offer employees another medical plan choice with a lower deductible.
Additionally, large employers did not increase employee premium contributions significantly in 2021. The average monthly paycheck deduction rose by just $7 for employee-only coverage (from $160 to $167) and by just $12 for family coverage (from $590 to $602) in PPO plans, the most common type of medical coverage offered.
Benefit priorities have shifted in response to the pandemic’s impact on the workforce and an evolving benefits landscape. Many employers view supporting the mental, emotional and behavioral health of employees as a business imperative. Based on the survey results, adding or expanding programs to increase access to behavioral health care is a top-three priority for all large employers (74% rated it important or very important), and it is the No. 1 priority for employers with 20,000 or more employees (86% rated it important or very important).
The survey found that nearly half of all large employers — and about two-thirds of those with 20,000 or more employees — say that addressing health equity and the social determinants of health will be an important priority over the next three to five years.
Looking ahead to 2022, the majority of plan sponsors (60%) say they will not make plan changes of any type to reduce their expected cost increase. This is largely due to employers focusing their attention on enhancing benefits to support employees and stay competitive in a tight labor market, but the sharp cost increase suggests a need to prioritize how they will manage costs.
Employees seem more open to virtual care than ever before. With in-person health care severely limited during the worst of the pandemic, telemedicine clearly got a boost: Utilization rates had stagnated at 9% or less among large employers for many years; they jumped to 15% in 2020 and held at 12% during the first half of 2021.
Targeted health solutions that address specific health conditions such as diabetes or musculoskeletal disorders are now offered by 25% of all large employers, and another 20% are considering adding them. Such programs can save money for both the employer and the employee by substituting at-home care — for example, online physical therapy — for in-person visits. A virtual primary care physician (PCP) network or service is offered by 16% of large employers, with 10% considering. And 28% of all large employers (and 43% of those with 20,000 or more employees) offer a virtual behavioral health care network.
Tips to Protect Workers From Wintry Conditions
The onset of winter brings the threat of colder weather, slippery sidewalks and dangerous driving conditions.
Cold temperatures and increased wind speed (wind chill) also cause heat to leave the body more quickly, putting workers who work in cold or wet conditions at risk. Common types of cold stress include hypothermia, frostbite and trench foot.
Hypothermia occurs when a person’s normal body temperature drops to 95°F or less. Mild symptoms include shivering. Moderate to severe symptoms include shivering stopping, confusion, slurred speech, slow heart rate/breathing, loss of consciousness and death. If a worker is experiencing moderate to severe hypothermia, call 911. To prevent further heat loss:
- Move the worker to a warm place.
- Change the worker to dry clothes.
- Cover the body (including the head and neck) with blankets, and with something to block the cold (e.g., tarp, garbage bag). Do not cover the face.
- If medical help is more than 30 minutes away, give warm, sweetened drinks if alert (no alcohol). Apply heat packs to the armpits, sides of chest, neck and groin. Call 911 for additional rewarming instructions.
Frostbite occurs when body tissues freeze, e.g., hands and feet. It can occur at temperatures above freezing due to wind chill. Symptoms include numbness as well as reddened skin that develops gray/white patches, feels firm/hard and may blister.
To help workers with frostbite, follow the same instructions as for hypothermia, but also observe the following precautions:
- Do not rub the frostbitten area.
- Avoid walking on frostbitten feet.
- Do not apply snow/water. Do not break blisters.
- Loosely cover and protect the area from contact.
- Do not try to rewarm the area unless directed by medical personnel.
Trench foot is a nonfreezing injury to the foot caused by lengthy exposure to a wet and cold environment. It can occur in air temperatures as high as 60°F if feet are constantly wet. Symptoms include redness, swelling, numbness and blisters. To treat trench foot, remove wet shoes/socks, air dry (in a warm area), keep affected feet elevated, and avoid walking. Get medical attention.
Mixing Pfizer, AstraZ COVID-19 Shots with Moderna Gives Better Immune Response -UK Study
A major British study into mixing COVID-19 vaccines has found that people had a better immune response when they received a first dose of AstraZeneca or Pfizer-BioNTech shots followed by Moderna nine weeks later, according to the results on Monday. Click here for full article.
Groundbreaking Chewing Gum Potentially Mitigates Covid Transmission
A collaborative endeavour between researchers from the University of Pennsylvania, The Wistar Institute, and Fraunhofer USA has determined that a novel chewing gum containing a plant-grown protein can trap the SARS-CoV-2 virus, reducing viral load in saliva and lowering Covid transmission. Click here for full article.
The Weather Channel
A Flu Strain May Have Gone Extinct Due to COVID-19
The 2020/21 flu season was milder due to COVID-19 mitigation efforts, like lockdowns, and as a result a fairly common strain of the flu may have gone extinct. Click here for full article.
The Washington Post
Omicron May Require Fourth Vaccine Dose Sooner Than Expected, Pfizer Says
The new omicron variant could increase the likelihood that people will need a fourth coronavirus vaccine dose earlier than expected, executives at pharmaceutical giant Pfizer said Wednesday. Boosters are likely to help control the variant, according to the company, which said early lab experiments suggest that the standard two-dose regimen still provides some protection against severe illness from the variant. Click here for full article.
Half of Parents Say Their Teen Received COVID-19 Shot as Uptake Slows: KFF Poll
About half of parents said their 12 to 17-year-old has gotten at least one COVID-19 dose as the vaccination uptake among the age group has slowed in recent months, a Kaiser Family Foundation (KFF) poll found. Click here for full article.
Court Rules Worker’s Lawsuit Against Company Over Husband’s COVID-19 Death can Proceed
A court ruled on Tuesday that a candy company in California must face a lawsuit after an employee said she contracted COVID-19 at work and infected her husband, which resulted in his death. Click here for full article.
At-home COVID Tests Will be Free in Weeks. Here’s What we Know, and Don’t
As Christmas approaches and the new omicron variant surges across the US, at-home COVID-19 testing is in high demand. And starting in early 2022, the over-the-counter kits will be available for free for everyone. Under a plan announced by President Biden, health insurance companies will be required to reimburse Americans for rapid COVID-19 antigen tests, which can cost more than $25 for a pack of two, starting January 15. Click here for full article.
Is it a Cold? The Flu? Or COVID? How to Tell Sniffles and Chills Apart this Holiday Season
The common cold made an early appearance this summer with an unprecedented uptick of respiratory viruses. Since then, health care providers say cases haven’t slowed down. Click here for full article.
Workers’ Compensation Liability for COVID-19 Vaccine Side Effects May Be Limited
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Workers’ Comp Bureau of California Issues COVID-19 Analysis
The Workers’ Compensation Insurance Rating Bureau of California in collaboration with several other workers’ comp rating bureaus released the COVID-19’s Impact on Workers Compensation report. Click here for full article.
Employer Must Face Worker’s Lawsuit Over Husband’s Covid Death – California Court
A California candymaker must face a lawsuit by an employee who says she caught Covid-19 at work and gave it to her husband, resulting in his death, a state appeals court held on Tuesday, upholding what appeared to be the first ruling allowing a worker’s lawsuit against an employer over a family member’s Covid death. Click here for full article.
Employees are Suing Over Workplace Covid Infections. Do They Have a Case?
Matilde Ek worked on a packing line at See’s Candies, a California-based confectionery that Warren Buffett’s Berkshire Hathaway Corporation has owned since 1972. Click here for full article.
Report: 25 State Employees Who Filed Workers’ Comp Claims Died From COVID-19
The crush of the COVID-19 pandemic has resulted in the deaths of 25 state workers and forced the state to pay tens of millions in lost wages to workers ravaged by the virus that has also killed more than 62,000 residents. Click here for full article.
Study Shows Men Spread COVID Particles More Than Other Populations
A study focused on tracking the spread of COVID-19 in performing arts settings has also unveiled the population of humans who spread the most COVID-19 particles. Researchers at Colorado State University learned that men more frequently spread the coronavirus particles than women or children. Click here for full article.
The Dallas Morning News
Brave Few Go Up Against Texas COVID Liability Law To Sue Employers For Wrongful Death Claims
In March 2020, when much of Texas shut down to prevent the spread of the novel coronavirus, the world’s largest recycler of polyethylene kept its Grand Prairie factory open as an essential business making heavy-duty Husky brand trash bags. Click here for full article.
Safety + Health
Texas Government Publishes ‘Plain Language’ Guide on Workers’ Comp Terms
The Texas Department of Insurance’s Division of Workers’ Compensation has published a plain language glossary intended to make workers’ comp insurance easier to understand. Click here for full article.
Tampa Bay Times
Two Laws, Lower Workers’ Comp Rates to Take Effect
A pair of bills signed this year by Gov. Ron DeSantis, involving vehicle rentals and notaries public, will become law Saturday. Click here for full article.
Top 10 Developments In Florida Workers’ Compensation In 2021
Prior final compensation order did not predict that permanent total disability benefits would flow from the award as the claimant intended, but did not, undergo a surgery to alleviate the work-related injury. Click here for full article.
$9,000 an Hour for Comp Attorney Fee Has Tongues Wagging in Florida
Few things in Florida workers’ compensation have been a bigger issue over the last decade than claimants’ attorneys’ fees. Despite two landmark appeals court rulings barring limits on fees, employers and insurers have continued to cite the need for new legislation. Click here for full article.
Workers’ Compensation Bureau of California Profiles Restaurant Industry
Restaurants make up a sizable portion of California’s workers’ comp system, a new report shows. Click here for full article.
Report: California Public Self-Insured Workers’ Comp Indemnity Claim Cost up
An analysis shows that in the midst of the pandemic, the total number of job injury claims reported by California public self-insured employers edged down slightly last year, but a growing number of lost-time claims and rising claim severity fueled by higher indemnity costs drove up total workers’ compensation paid and incurred losses for cities, counties and other public agencies. Click here for full article.
Minimum Wage, OT And Workers’ Comp Premium Changes in Washington Starting in 2022
Changes in Washington’s minimum wage, overtime for white-collar professionals, overtime for agricultural workers, and workers’ compensation premiums are set to take effect Jan. 1, 2022. Click here for full article.
Top 10 Developments In Delaware Workers’ Compensation In 2021
The Board’s decision denying a DCD Petition alleging that the claimant developed COVID-19 due to work exposure is currently pending before the Superior Court. Click here for full article.
Top 10 Developments In New Jersey Workers’ Compensation In 2021
The Appellate Division affirmed a Judge of Compensation’s decision to include the petitioner’s portion of attorney’s fees and costs in the employer’s Section 40 lien. Click here for full article.
Tennessee Approves 5.6% Cut in Workers’ Comp Loss Costs; COVID Impact Uncertain
The Tennessee commissioner of commerce and insurance has ratified a 5.6% decrease in workers’ compensation loss costs for voluntary market in 2022, which will result in the ninth straight year of rate decreases for many businesses in the state. Click here for full article.
Voluntary Comp Rates Drop Again in South Carolina; Assigned Risk Multiplier to Rise
Workers’ compensation insurance rates for the voluntary market will drop next year in South Carolina, but the loss cost multiplier for the assigned risk sector will climb again, thanks to another year of excessive losses, the state Department of Insurance announced. Click here for full article.
Claim For Fatal Heat Stroke Barred by Mo. Ruling on Co-Employee Lawsuits
Tyler Scott Halsey worked himself to death trimming trees in 96-degree heat, his parents say. Click here for full article.
Worker Who Crashed From Choking While Driving Denied Benefits
The Supreme Court of Missouri on Tuesday upheld a denial of benefits to a worker for his injuries from a single-vehicle accident after he choked on his breakfast, blacked out behind the wheel and crashed. Click here for full article.
Former Kaiser Permanente Employee Alleges FMLA, Workers’ Compensation Violations
On Friday a case was filed in Maryland federal court by a former employee against health giant Kaiser Permanente. The case is regarding Family Medical Leave Act (FMLA) and workers’ compensation retaliation and discrimination. Click here for full article.
Aire Canada Employee Who Fell On Stairs In Her Home Eligible For Worker’s Compensation: Judge
A Quebec labour judge has ruled that an Air Canada call centre employee who hurt herself going down a staircase while working from home suffered a workplace injury and merited worker’s compensation. Click here for full article.
Risk & Insurance
Watch for These 4 Workers’ Comp Litigation Trends in 2022
From whether COVID-19 is reimbursable to developments in medical marijuana’s compensability, it has been a busy year for workers’ comp decisions at both the state and federal level. Click here for full article.
Risk & Insurance
Workers’ Compensation Claims Mounting? A Collaborative Review Process Can Help
The cornerstone of every business is to operate efficiently and in a fiscally responsible manner. Click here for full article.
Man Can Claim Workers’ Comp for Injuring Himself on Walk From Bedroom to Home Office, Court Rules
A German man can claim workers’ compensation after slipping on his way from his bedroom to his home office. Click here for full article.
Are Too Many Comp Claims Being Opposed? Some Major Employers Think So
Employers may be warming up to the idea that fighting some workers’ compensation claims and medical treatments can be counterproductive, and new emphasis should be placed on keeping injured workers happy – and out of the courtroom. Click here for full article.
Property Casualty 360
2021 Workers’ Comp Insurance Market Update
The workers’ compensation insurance market remained profitable in 2021 in spite of premium declines and such worries as sizeable COVID-19 claims. Click here for full article.