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Missouri Supreme Court Expands Legal Rights for Injured Workers

May 1, 2014

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On April 15, 2014, the Missouri Supreme Court overturned 30 years of precedent with a ruling that gives greater legal protections to injured workers who subsequently are fired from their jobs for filing a workers’ compensation claim.

The new standard in retaliation claims only has to be a “contributing factor” where before this ruling; employees had the burden of proof to show that their workers’ compensation claim was the “exclusive cause” for dismissal.

This change comes from a case titled Templemire v. W&M Welding, Inc. MP/ SC 93132. John Templemire was unsuccessful at trial and on appeal as both courts followed the precedent that an employee alleging retaliatory discharge must show that his or her filing of a workers’ compensation claim was the exclusive cause for the dismissal. But in a 5-2 decision, the Missouri Supreme Court reversed the lower courts and overturned three decades of case law stating the prior cases were “clearly erroneous” and inconsistent with the “plain language” of the statute.

Missouri Statute 287.780 reads “no employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.”

As you can see, this groundbreaking decision from the Missouri Supreme Court has expanded rights for injured workers. The new standard in workers’ compensation retaliation cases is that the discharged employee alleging retaliation need only prove that the workers compensation claim was a contributing factor that led to his/her discharge. Employers need to be cautious not to take (or threaten to take) any adverse action against an employee who has filed a workers’ compensation claim. Employers should maintain clear documentation regarding an employee’s performance related to an employment decision, and be sure that the filing of a workers’ compensation claim is not considered at all in the decision.

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Workers’ Compensation Executive Forum

March 19, 2014

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J.W. Terrill is coordinating the Workers’ Compensation Executive Forum for the Self Insurance Institute Of America (SIIA), on May 20-21 in Miami Beach at the Eden Roc Hotel. The conference theme is “See and Be Seen” as this conference will bring together industry leaders from across the country, and will offer cutting edge education and great networking opportunities.

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Don’t miss the Keynote presentation “Nice Bike”, by Emmy-award winning speaker Mark Scharenbroich. Conference session themes include medical analytics, opioid addiction, correlation between healthcare initiatives and controlling Work Comp.

Please contact dniedringhaus@jwterrill.com  to discuss group discount for the registration fees for J.W. Terrill clients.

To download a conference brochure, click here.
To learn more about SIIA, visit their website.

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Update on MO Senate Bill #1- Expanded Benefits for Mesothelioma Cases

January 14, 2014

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You may remember a bulletin we sent out in July, 2013 advising of changes to the Missouri Workers’ Compensation Statutes relating to certain occupational diseases due to toxic exposure.

Due to the change which was effective January 1, 2014, any claim for mesothelioma, asbestosis, berylliosis, coal worker’s pneumoconiosis, brochiolitis obliterans, silicosis, silicotuberculosis, manganism, acute myelogenous leukemia, and myelodysplastic syndrome; provides additional benefits under the workers compensation law which an employer is responsible for and includes the following:

If an employee becomes permanently totally disabled or dies as a result of one of these diseases, the employer shall pay 100 weeks of compensation at a rate equal to 200% of the average state wage unless the disease is mesothelioma and the employer has accepted mesothelioma liability, then the rate of compensation is based upon 300% of the average state wage and is to be paid for 212 weeks.

Once the enhanced benefits are paid the employee will be due regular benefits. If an employer rejects the mesothelioma liability, the employer loses the exclusivity protection and the employee can go through the civil courts.

In discussions with a number of our carrier partners, we have been informed that they are automatically including the additional benefits as covered under their workers compensation policies for no charge at this time. If however, an insured wishes to “reject” the coverage, they must sign a form and present to the insurance carrier and there will be no premium reduction. In addition, employers who are self-insured may exclude the benefit or choose to provide coverage by becoming a member of the Missouri Mesothelioma Risk Management Fund, which was created to pay mesothelioma claims brought against contributing members.

We feel this is positive news for our clients where additional mandated benefits are provided at no additional cost. This may change however over time dependent on claim activity.

If you need further information about how your insurance carrier is handling this change, please contact your J. W. Terrill Account Executive.

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Online Tool Simplifies OSHA Form 300 Recordkeeping

December 26, 2013

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The Occupational Safety and Health Administration (OSHA) requires that the majority of workplaces maintain a 300 log and a 301 summary worksheet.

As an employer do you understand your requirement to maintain an OSHA 300 log and 301 Summary worksheet? In the Loss Control department at J.W. Terrill we are often asked about whether an incident is required to be on an employer’s OSHA 300 log.

OSHA_log

It can often be a complex thought process, but start by asking yourself:

1. Is it work related?
2. Does the injury/illness result in treatment above and beyond first aid?

If you answer yes to both of these questions there is as strong possibility that you do have an OSHA recordable event. However, there are numerous exceptions and special circumstances that may increase the need for additional research. Fortunately, OSHA has designed a recordkeeping advisor tool on their website. The tool is very user friendly, walking you through several questions, allowing you to elaborate on your specific incident. At the end of the questioning process, the tool advises you as to whether your event should be placed on your facility’s log.

You can access the tool via the link below:
http://www.dol.gov/elaws/osharecordkeeping.htm

Considering it is required to keep your OSHA log current, updated within 7 days at all times; bookmark this tool for easy reference.

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OSHA Training Requirement for December 1, 2013 – Updated Hazard Communication Standard

October 14, 2013

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Hazard Communication-symbolsOSHA has updated the Hazard Communication standard to better conform to the Global Harmonization System (GHS) adopted by the United Nations (UN) in 2003. The United States was an active participant in the development of the GHS, and is a member of the UN bodies established to maintain and coordinate implementation of the system. OSHA published its proposed rulemaking in 2009 and the final rule in March of 2012.

What does this mean to employers? Keeping in mind the intent of the standard, which is to ensure chemical safety in the workplace, major changes from the 1994 version of the standard include these key areas:

  • Hazard Classification: Specific criteria for classification of physical and health hazards.
  • Labels: Inclusion of a harmonized signal word, pictogram, and hazard statement; as well as precautionary statements.
  • Safety Data Sheets (SDS): What was an MSDS will now have a specified 16-section format.

Information and training start this year with a December 1, 2013 deadline to train workers on the new labels elements and SDS format to facilitate recognition and understanding in the workplace. Other key dates to remember as implementation of this new standard begin are:

  • June 1, 2015: Compliance with all modified provisions of the final rule except:
    December 1, 2015: Distributors shall not ship containers labeled by the manufacturer or importer unless it has a GHS label
  • June 1, 2016: Update alternative workplace labeling and hazard communication program as needed. Provide any additional training needed for newly identified physical or health hazards

Note that there will be a time period of two years between when the initial employee training is required and the new container labeling must be utilized by those importing, manufacturing, or distributing chemicals. Potentially, this time frame can mean that containers compliant with the 1994 or 2012 format may be received. Employers should expect to periodically monitor received containers during this period so that employees can be reminded and retrained, if necessary, on the new information to reduce confusion in the workplace.

To learn more about this regulatory update as well as obtain materials to assist with informing and training employees, start with this link to the OSHA website addressing the GHS topic: http://www.osha.gov/dsg/hazcom/index.html

The J.W. Terrill Loss Control Department has also compiled resources to help employers. Those resources are as follows:

Partner Portal

  • Recording of May 8, 2013 webinar discussing the changes to the standard and what it means to employers
  • Sample updated Haz-com program for use in updating a safety manual
  • Sample toolbox talk addressing the changes for use in training employees

J.W. Terrill Online Training Center

  • 3 training modules specific to the updated Haz-com standard among a total of 87 topics
  • Annual subscription-based service

Contact the loss control department at either 314.594.2700 or at losscontrol@jwterrill.com for more information or a demonstration of these services.

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The State of Workers’ Compensation: A Summary

August 8, 2013

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J.W. Terrill has summarized the key highlights of the May, 2013 Annual Work Comp State of Line conference by the NCCI chief actuary.  As underwriters continue to demand rate increases, the challenges have resulted in significant growth for the alternative market including Group Captives and Self Insured Work Comp groups.  One aspect that J.W. Terrill has addressed on challenging accounts is to highlight top management commitment to managing risk.  This has allowed some underwriters to overlook historical adverse loss ratios. 

Summary of Annual State of Workers’ Compensation by the Chief Actuary for NCCI

  • 9% growth in Workers’ Compensation premiums to $39.6B and total Property/Casualty industry premium increased 4% to $457B
  • Workers’ Compensation loss ratios decreased to 109% from 115% in both 2010 and 2011.  The loss ratios for state funds improved to 124% from 133% in 2011 and 138% in 2010.
  • Brokers responses regarding January, 2013 average rate increases: One of three renewals had a rate increase over 11%
  • Assigned Risk premiums increased from $500MM to $800MM, about 7% of market premiums.  Much of the increase from accounts over $100k premium.  Assigned risk pools had a 112% combined ratio.

 Download highlights from the presentation here.

Summary

  • Poor interest rates
  • Underwriters drive rate increase
  • Challenging large accounts heading to the assigned risk
  • Uncertain impact from healthcare reform

I would add that although NCCI has enormous Workers’ Compensation data, their data does not include a large segment of the self-insurance market such as self-insured Workers’ Compensation groups (SIG’s). In some states such as Alabama, SIG’s have a significant market share and lower loss ratios.

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Notice of Senate Bill #1 – Work Comp Amendments effective 1/1/2014

July 11, 2013

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We would like to bring to your attention Governor Jay Nixon’s signing of Senate Bill #1 on July 10, 2013. This bill was long awaited and the final step in correcting a major flaw in the workers’ compensation changes of 2005. The law required strict construction whereby the definition of “accident” failed to include occupational disease.

Since that time, employees were allowed to pursue these types of injuries in civil courts against their employers because workers’ compensation was no longer the “exclusive remedy”.  Another change regarding Occupational Disease delineates  “disease by toxic exposure” and awards additional benefits to employees developing certain illnesses.

Below are the most significant changes that will take place regarding injuries occurring on or after January 1, 2014:

• This legislation sets out to bring back “occupational disease” to the workers compensation act and make it the ‘exclusive remedy” as it was intended to be. It also defines the term “occupational disease” to mean, an identifiable disease arising with or without human fault out of and in the course of employment.  The injury or death by disease is compensable only if the occupational exposure was the “prevailing factor” in causing both the resulting medical condition and disability.  An injury due to repetitive motion is recognized as an occupational disease. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of the occupational disease as defined in this section.

• For the purposes of this chapter, “occupational diseases due to toxic exposure” shall only include the following:  mesothelioma, asbestosis, berylliosis, coal worker’s pneumoconiosis, brochiolitis obliterans, silicosis, silicotuberculosis, manganism, acute myelogenous leukemia, and myelodysplastic syndrome.

If an employee becomes permanently totally disabled or dies as a result of one of these diseases, the employer shall pay 100 weeks of compensation at a rate equal to 200% of the average state wage unless the disease is mesothelioma and the employer has accepted mesothelioma liability, then the rate of compensation is based upon 300% of the average state wage and is to be paid for 212 weeks. Once the enhanced benefits are paid the employee will be due regular benefits.  If an employer rejects the mesothelioma liability, the employer loses the exclusivity protection and the employee can go through the civil courts.

• Second Injury Fund payments will no longer be allowed for permanent partial disability. Claims for permanent total disability shall only be allowed where the prior disability is a medically documented disability due to military duty or preexisting disability of at least 50 weeks that is either due to active military duty, the direct result of a compensable injury or involves preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, and where the subsequent injury is to the opposing extremity, eye or ear.

If you have any questions, please contact your J.W. Terrill Account Executive or Claims Specialist.

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J.W. Terrill Shares Insight into Captive Market with U.K. Publication

June 27, 2013

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J.W. Terrill provided the London Captive market with insight into the U.S group captive industry.  In an interview with London-based Captive Insurance Times, Duke Niedringhaus outlined why mid-market firms in the U.S. are moving to group captives at record pace and never looking back.

Duke Niedringhaus is Chairman of the Workers’ Compensation committee for the Self Insurance Institute Of America www.siia.org.  J.W. Terrill offers captive alternatives including Group Captives (Work comp, Auto , Liability), heathcare captives and 831b microcaptives for uninsured business risks.

Read the entire article “Shock Absorbent” from the Captive Insurance Times

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Workers’ Compensation Executive Forum

April 3, 2013

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J.W. Terrill is coordinating the Workers’ Compensation Executive Forum for the Self Insurance Institute Of America (SIIA), on May 29-30 in St Louis at the Chase Park Plaza. The conference theme is “Gateway to Relationships” and will offer cutting edge education and great networking opportunities.

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Conference session themes include medical analytics, opioid addiction, correlation between healthcare initiatives and controlling Work Comp. One session will address unique approaches to managing Work Comp for union contractors and our keynote speaker will discuss her personal experiences with the Joplin tornado.

Please contact dniedringhaus@jwterrill.com  to discuss group discount for the registration fees for J.W. Terrill clients.

 

To download a conference brochure, click here.
To learn more about SIIA, visit their website.

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Workplace Violence and Work Comp Exposures

March 11, 2013

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Workplace violence headlines certainly appear to be increasing. Within these tragic events are enormous workers compensation liabilities.

Considering the significant exposure, employers are realizing the value that insurance companies provide. J.W. Terrill contributed to an article by Business Insurance regarding work comp exposures related to these events.

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Stand-alone Excess Work Comp Under Pressure

February 5, 2013

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Self-Insured Workers’ Compensation programs have historically been immune from market cycles. However, self-insured’s are finding challenges with the current Excess Work Comp market. Excess carriers have found that medical inflation, claim severity trends, opioids and minimal investment returns require increased pricing and retentions. These issues combined with some states requiring significant collateral requirements from self-insured entities have generated challenges.

J.W. Terrill  addresses these issues by evaluating several different risk financing options including captives, self-insured groups (SIG’s) or unbundled carrier deductible programs. Rising self-insured retentions can be managed with buffer layer programs and supported by analytical data of projected losses to help with retention selection.

Regardless of the risk financing option, primary work comp losses ultimately drive all costs and collateral. J.W. Terrill can help to evaluate proven strategies to control losses including medical analytics, baseline physical capacity testing and chronic pain management/opioid addiction treatment.

Related Story: Business Insurance magazine looks to J.W. Terrill for Work Comp industry perspective

Visit the SIIA website: www.siia.org

All of the Excess work comp markets will be available for networking at the SIIA Self Insured Work Comp Executive Forum May 29-30 at the  Chase Park Plaza hotel , St Louis, Missouri.
Learn more about the 2013 Executive Forum:  http://www.siia.org/i4a/pages/index.cfm?pageid=4412

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The Prescription Opioid Crisis

January 4, 2013

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The topic of prescription opioids is an increasingly concerning issue in workers compensation as well as health care in general. The costs associated with a treatment plan involving opioids for pain is staggering. Not only are the prescription costs alone expensive, the long-term use can cause the need for rehabilitative care to stop the use of the drug and the addition of other health issues which can increase the cost of the claim.

Most insurance companies are now instructing their adjusters to monitor files more closely if there is prescription opioid use. The adjusters may talk to the physicians directly if they see these drugs are being prescribed beyond 30 days. Some States are implementing chronic pain prescription guidelines for workers compensation providers (i.e. daily dosage limitations and testing of urine to make sure patients are not diverting painkillers).

If you have injured employees who have been given these drugs for pain, please pass this information along to them and heighten their awareness to the long-term side effects. Also, consider talking to your workers compensation providers and ask if other types of pain relievers can be administered to your employees if practical.

Stopping the prescription opioid crisis starts with education. Here is a link to a great educational resource to share with others.

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