CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
By Roger Rabb, J.D., Special Correspondent for the LexisNexis Workers’ Compensation eNewsletter
Last December at the National Institute for Occupational Safety and Health (NIOSH) Workers’ Compensation Leaders Research Colloquium in Washington, D.C., many key leaders and stakeholders in the fields of occupational safety and workers’ compensation (WC) met to share ideas and provide input about how to best use WC data for research conducted by NIOSH’s Center for Workers’ Compensation Studies (CWCS). The broad field of 39 participants included representatives from government agencies, including federal agencies such as OSHA and NIOSH and state agencies in Ohio, California, and Washington; from the insurance industry, including from NCCI, CNA, Liberty Mutual, and AIA; from various universities, including Professor Emeritus John F. Burton, Jr. of Rutgers University and Professor Emily Spieler of Northeastern University School of Law; and also from RAND and the American College of Occupational and Environmental Medicine. A full list of the proceedings and participants involved is contained in the RAND publication “The National Institute for Occupational Safety and Health Workers’ Compensation Leaders Research Colloquium, December 11, 2014, Proceedings.”
CWCS, which was established in 2013 as a focal point for NIOSH’s WC efforts, has four main objectives: maximize the use of WC data for purposes of preventing workplace injuries; develop new research collaborations; communicate the findings of new studies; and share best study practices in WC. For purposes of these efforts, “WC data” refers to many types of administrative data generated through the operation of WC systems in the U.S., and might include any data collected when an injured employee files a claim with an employer, when an employer or doctor files a claim with an insurer, when an injured employee receives medical care, or when an insurer or claims administrator pays for health care or pays cash benefits to the employee for disability.
Strengths and Weaknesses of Workers’ Comp Data
As noted by the colloquium participants, WC data has many strengths as a research tool. For example, WC data can identify injured workers early in the injury cycle before the onset of disability, at which point rehabilitation efforts might be less effective. In addition, WC data sources such as a First Report of Injury (FROI) can provide narrative information about the causes of occupational injuries that may not be contained in general hospital records. WC data might also present a better picture of the total financial costs of occupational injuries by capturing not only the cost of the health care provided, but also the cost of indemnity payments made to injured employees to compensate for lost salary and wages.
WC data can also present advantages over other data sources. Participants noted, for example, that while the Bureau of Labor Statistics’ Survey of Occupational Injuries and Illnesses (SOII) compiles information on rates of occupational injury and illness from OSHA logs taken from a sample of employers, the rate of compliance with those reporting requirements is questionable and the quality of reporting varies across states. In addition, SOII does not contain the kind of narrative information about the causes of occupational injuries that may be found in WC data.
However, participants also noted some disadvantages of WC data. In addition to the obvious problem that, for a wide variety of reasons, not all occupational injuries will result in a WC claim, thus limiting the accuracy of WC data when trying to reach conclusions about injury rates within a particular industry, other impediments to deriving accurate injury incident rates from WC data were also noted, including the difficulty of determining the actual hours worked by the workers in the relevant population. Participants also noted the difficulty of extracting accurate information about small businesses from WC data, as in some states small businesses might be excluded from WC coverage mandates, and even when not excluded might have such a limited number of injuries because of the small population of workers at risk.
In general, participants stressed the difficulty of pooling data from different states because of the difference among state WC laws and other less obvious systemic differences among states that would affect the data being reported. For example, participants noted the difference between states such as Washington and Ohio, in which WC is funded exclusively with state funds, and states which run privately funded systems, with the former providing access to centralized state-compiled data and the latter often requiring that researchers who are seeking the best data compile that data from many different sources such as insurers. Participants also noted other barriers to acquiring quality WC data, including legal impediments such as the Health Insurance Portability and Accountability Act and state privacy laws.
These are just some of the advantages and disadvantages of using WC data, and a more complete discussion of the topic can be found in the RAND publication.
Impact of Current Workers’ Comp and Social Trends
An important topic discussed at the colloquium was how new and emerging trends in WC could potentially impact the collection and effective use of WC data for CWCS and researchers. For example, newer, tougher compensability standards in some states seeking to exclude from coverage those injuries or illnesses that are caused by nonoccupational factors, such as age or congenital conditions, are likely to lead to changes in WC data by eliminating some claims that might have been filed under earlier, more lax compensability standards.
Similarly, some states such as Oklahoma have enacted or are considering laws that would allow employers to opt out of the WC system if they provide equivalent benefit plans, a trend that might also have the effect of changing the scope and quality of the data being compiled, in addition to changing the safety and claim-filing incentives for affected employers and their employees. Even in states where WC coverage remains mandatory, high-deductible WC policies are becoming more common, which could potentially affect both safety incentives and claim-filing practices.
Colloquium participants also noted that certain high-risk industries, such as nursing, mining, construction, and animal meat processing, are bucking the wider trend of lower injury incidence rates. This could result in an increasingly higher proportion of employees from these higher-risk industries in the WC data available to researchers and warrant tighter observation of those particular occupations.
Participants also discussed systemic changes in how health care is provided to WC claimants, noting a trend away from health care provided by solo practitioners and small practices toward larger health care providers and health maintenance organizations with closer connections to the health insurers that ultimately pay for the health care. Another systemic change noted was the shift from paper reporting of claim information to the use of electronic data interchange for data collection, which, while still in its infancy, presented the clear potential for affecting WC data and its compilation.
The colloquium also touched on some broader changes affecting occupational safety and WC, including:
> Changes in labor markets, including increasing use of temporary employees, contractors, and outsourcing, can impact worker safety in some industries and generate surveillance and reporting issues.
> Public health issues affecting the general population can also affect the WC system, including not only higher health care costs associated with a population that is both getting older and more obese, but also increasing drug use and abuse, some of which might stem from the trend toward more lax marijuana laws.
> Changes in the health care system, including rising costs, expanded coverage requirements, and increasing opioid usage, are likely to affect the functioning of WC systems.
> Changes in data collection, such as new OSHA requirements and the use of electronic health records that might be linkable to other data sources, could lead to expanded opportunities for compiling useful WC data.
> Technological changes in the storage and processing of large databases, as well as improvements in extracting useful data from narrative records, could lead to both new opportunities and new challenges for researchers.
Further discussion of these topics can be found in the RAND publication.
Although no definitive answers were reached, the colloquium participants also discussed the competing research goals that NIOSH and the CWCS could target in order to maximize data usage effectiveness going forward. For example, many participants felt that as the only source for federal funding for research into primary prevention of workplace injuries and illnesses, that should be the focus of NIOSH’s research efforts. Other participants were of the opinion that a broader reach was appropriate, which would include also targeting often-neglected areas such as disability prevention and research into occupational health services that could provide substantial benefits for worker health.
However, participants at the colloquium agreed that NIOSH can and should continue to serve a key role in improving and sharing practices to benefit the WC and occupational safety communities. Among other practices, this leadership role could involve serving as a hub for the communication of best practices to stakeholders and facilitating the understanding of differences among state WC systems to researchers, as well as conducting and supporting primary research into the development of best practices for the prevention of injury, illness, and disability. Although many different suggestions were made as to particular areas in which NIOSH and CWCS could improve the research environment, participants agreed that these entities were well positioned to contribute to the consistency and efficacy of WC data for researchers and public health authorities.
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