Workers' Compensation

2014 Workers’ Compensation Emerging Issues

The new edition of Workers’ Compensation Emerging Issues Analysis (LexisNexis) is a veritable cornucopia of expert analysis, provocative commentary, and a 50 state survey of workers’ compensation legislation in 2014

As with last year’s inaugural edition, the 2014 Larson Series Workers’ Compensation Emerging Issues Analysis (“WCEIA”) is a veritable cornucopia of expert analysis, provocative commentary, interesting case summaries and legislative updates from all across our nation. Whether you're a risk manager, insurance broker or executive, claims adjuster, HR expert, practicing attorney or an academic, this volume promises to provide you with pertinent insights, practice points, and other relevant takeaways that will enhance your work.

Temporary Workers in the Modern American Employment Landscape

Temporary workers and the special issues related to their use within the American economy is a primary theme for this year’s edition. Some years ago, the concept of “just-in-time inventory” became the craze as firms began to leverage available technology in order to exert more control over their supply chains. Armed with their discoveries, they began to alter procurement and manufacturing processes to minimize the amount of raw materials and spare parts on hand at any given time. In more recent years, many more firms have begun to do the same with their work force, contracting with temporary staffing firms who provide extra—sometimes key—personnel during busy times, allowing the “borrowing” employer to pare away staff to minimal numbers when times are lean.

As depicted on this edition’s cover, the temporary worker is no longer just the seasonal agricultural worker; often he or she now occupies the cube or work carrel down the hall. Many firms are drawn not only to ease with which they can outsource various labor duties to temporary workers, but to the administrative efficiencies gained when some other company handles payroll, tax issues, unemployment compensation matters, fringe benefits and other HR chores. In late August, for example, a major legal publishing company announced it would technically lay off many of its information technology staffers, with most of them to be transitioned into jobs with an outsourcing company.

The challenges ahead, not only for that publishing company and similar employers, but for the outsourced former employees are discussed by Karen C. Yotis in the opening article (see WCEIA pp. 4-22) in this Edition’s Part I (Expert Analysis and Commentary). Yotis discusses a broad set of issues, including the tendency of some firms to use outsourcing as a means of mischaracterizing significant segments of their work force in an effort to save in workers’ compensation insurance premiums and taxes. As noted by Yotis and reiterated in my analysis of a recent study by Wuellner and Bonauto (see WCEIA pp. 106-111), sponsored by the Bureau of Labor Statistics, the heavy use of temporary workers likely results each year in the underreporting of work-related injuries and illnesses.

A number of important pieces of state legislation affecting temporary workers were passed this year in California (see WCEIA Part II, the 50 State & D.C. Legislative & Case Survey):

> Labor Contracting; Client Liability. AB 1897 establishes civil legal responsibility and civil liability of client employers, which obtain workers from third-party labor contractors, for the payment of wages and the failure to obtain valid workers’ compensation coverage. AB 1897 prohibits a client employer from shifting to the labor contractor the legal duties or liabilities under workplace safety provisions with respect to the workers provided by the labor contractor. AB 1897 defines both “client employer” and “labor contractor” and provides exceptions to each. AB 1897 does not prohibit client employers and labor contractors from mutually contracting for otherwise lawful remedies for violations of its provisions by the other party.

> Healthy Workplaces, Healthy Families Act of 2014. AB 1522 requires most employers to provide temporary and part-time workers accrued sick leave days each year. Generally, any employee who, on or after July 1, 2015, works in California for 30 or more days within a year, is entitled to paid sick days for prescribed purposes from the commencement of employment, to be accrued at rate of no less than one hour for every 30 hours worked. Employers can limit an employee’s use of such paid sick days to 24 hours or 3 days in each year of employment. Employers may not discriminate or retaliate against an employee who requests paid sick days.

> Interns; Discrimination; Harassment. AB 1443 provides that discrimination against any person in the selection, termination, training, or other terms or treatment of that person in an unpaid internship, or another limited duration program to provide unpaid work experience for that person, or the harassment of an unpaid intern or volunteer, on account of the factors described in the Fair Employment and Housing Act regarding employment discrimination or harassment is an unlawful employment practice. California now joins NY, OR, and DC in providing civil rights protections to interns.

In addition, the Vermont legislature, in S218 (Act 163), is examining whether temporary State employees should be able to earn sick leave benefits.

Part I. Expert Analysis and Commentary (WCEIA pp. 4-204)

In addition to the pieces devoted to temporary workers’ issues already mentioned above, Part I contains a broad mix of relevant content. Whether it’s the Affordable Care Act [see Teresa McLoughlin Rice’s fine summary of an April 2014 LexisNexis webinar (WCEIA pp. 147-149) and Yotis’ analysis of Marsh USA’s March 2014 Risk Management Research Briefing (WCEIA pp. 144-146.)], the “expanding” problem of obesity within the work force [see my piece on the compensability of bariatric surgery (WCEIA pp. 130, et seq.) and the excellent LexisNexis commentary (WCEIA pp. 136-139 and pp. 140-141)], or the complicated maze created by the Medicare Secondary Payer Law [see Jennifer C. Jordan’s two articles beginning on WCEIA p. 150], the reader will come away with new perspective and knowledge.

While many of the Part I articles are keenly practical [see my piece on Flu Shots, WCEIA pp. 112-115 and my offering related to the use of penalty clauses within settlement agreements, WCEIA pp. 45-46; Yotis’ report on “Why Injured Workers Lawyer Up,” WCEIA pp. 51-56; Rice’s piece on prescription drug monitoring programs, WCEIA pp. 74-77], others are more theoretical and/or statistical [see my analysis of a recent JOEM article on the dangers of combining benzodiazepines and opioids, WCEIA pp. 66-70; my analysis of a recent WCRI study that identifies trust in the workplace as a key “predictor” of injured worker outcomes, WCEIA pp. 47-50; and my extended article entitled, “The Tension between Evidence-Based Medicine and Clinical-Based Medicine,” WCEIA pp. 88-105]. Some content is even light-hearted [see my Top 10 Bizarre Workers’ Comp Cases, Jan.-Aug. 2014, WCEIA pp. 32-36]. Consult the Part I Table of Contents for all the offerings in this Edition.

Part II. 50 State & D.C. Legislative and Case Survey (WCEIA pp. 205-392)

Part II, which contains a discussion of this year’s important workers’ compensation-related legislation, with commentary, as well as Larson’s Spotlight on Interesting Cases (short summaries of workers’ compensation cases) is alphabetically arranged on a state-by-state basis.

Medical Marijuana

A number of states, for example, passed legislation related to the use of medical marijuana including, but not limited to: Alabama (WCEIA p. 207), the District of Columbia (WCEIA p. 237), Iowa (WCEIA p. 258), Kentucky (WCEIA p. 265), Maine (WCEIA p. 272), Minnesota (WCEIA p. 291), New York (WCEIA p. 318), and Utah (WCEIA p. 368). Other states have commissioned studies, including Georgia (WCEIA p. 246), New Mexico (WCEIA p. 315), South Carolina (WCEIA p. 352) and Vermont (WCEIA p. 372).

2014 saw the first workers’ compensation appellate decision involving medical marijuana (see the discussion of Vialpando v. Ben’s Automotive Servs., 2014 N.M. App. LEXIS 50 (May 19, 2014) (WCEIA pp. 316-317). Interested readers should also read Roger Rabb’s insightful discussion of a Colorado case—currently on appeal to the state’s Supreme Court—on the issue of whether a medical marijuana user can be fired for off-duty use of the drug to treat painful muscle spasms (see WCEIA pp. 78-83).

Other legislative highlights

> Arizona’s new law regarding physician reporting of opioid prescriptions (see WCEIA p. 211)

> California’s new sick pay law discussed above (see WCEIA p. 219)

> Colorado’s prescription drug monitoring program (see WCEIA pp. 230-231)

> Florida’s new provisions related to the reimbursement of expenses related vitamins, supplements, and other “medical foods” (see WCEIA p. 241)

> Minnesota’s new drug “compounding” law (see WCEIA p. 294)

> New Hampshire’s provisions regarding injuries to first responders (see WCEIA p. 308)

> Broadening of New York’s civil rights laws to protect intern’s (see WCEIA p. 318)

> Amendments to Ohio Workers’ Compensation Act regarding injuries to workers temporarily outside the state (see WCEIA p. 331)

> Increase in Virginia’s civil penalties for failure to obtain workers’ compensation insurance (see WCEIA p. 376)

Larson’s Spotlight on Interesting Cases

As noted above, this 2014 edition also contains recent interesting and important workers’ compensation cases from around the nation. Arranged on a state-by-state basis at the end of each respective section highlighting the state’s legislative update, the case summaries include:

> A 7th Circuit decision, Phillips v. Continental Tire, 2014 U.S. App. LEXIS 2841 (7th Cir., Feb. 14, 2014), construing Illinois law, where a plaintiff’s retaliatory discharge against a former employer failed—he had been fired for refusing drug test (WCEIA p. 255)

> Award of benefits to a Colorado worker who was a non-participating victim of horseplay, Esckelson v. Miners’ Colfax Med. Ctr., 2014 N.M. App. LEXIS 14 (Feb. 18, 2014) (WCEIA pp. 315-316)

> District of Columbia decision finding that a worker’s overuse of pain-relievers was not an abandonment of the workplace, Marriott at Wardman Park v. District of Columbia Dep’t of Emp. Servs., 2014 D.C. App. LEXIS 54 (Mar. 6, 2014) (WCEIA pp. 238-239)

> Decision in Federal Court finding an employer potentially liable for a sarcastic Facebook comment made by one of the HR staff, Shoun v. Best Formed Plastics, Inc., 2014 U.S. Dist. LEXIS 84868 (N.D. Ind., June 23, 2014) (WCEIA p. 257)

> Lower level Florida court decision finding the state’s exclusive remedy defense unconstitutional, Padgett v. State of Florida, Case No. 11-13661 CA 25 (Circuit Ct., Aug. 13, 2014) (WCEIA p. 243)

Request for Comments

We are grateful for the contributions offered by so many of our colleagues. As one can tell from even a glance at the Table of Contents, this volume is a collaborative effort. We’d like to make it even more so next year. We welcome your comments and suggestions. Please address them to: trob@workcompwriter.com or Robin.E.Kobayashi@lexisnexis.com.

Thomas A. Robinson, J.D., Co-Editor-in-Chief, Workers' Compensation Emerging Issues Analysis (LexisNexis)

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State by State Workers' Comp Legislation for 2014. Expert analysis and commentary. Larson Spotlight on Interesting Cases.

This year's top issue: The Temporary Workforce and Impact on Workers' Compensation