Working From Home and Workers’ Compensation

In 2019, Colorado earned the top spot for the highest percentage of employees Working From Homewho work from home, according to Flex.Jobs  https://www.flexjobs.com/blog/post/infographic-which-stateshave-most-full-time-telecommuters.  While telecommuting is not realistic for every company, many jobs have at least some component that employees can do flexibly even if a job requires an employee to be onsite for specific hours.  Perhaps the employee reconciles call logs or works on quarterly reports on a Sunday afternoon.  The question then arises, “What is an employer’s liability for injuries occurring at an employee’s home or when traveling between the home and work?”  A compensable injury is one which “arises out of” and “in the course of” the employment.   An injury “arises out of” of a work-related activity if it is “sufficiently interrelated to the conditions and the circumstances under which the employee usually performs his job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a strict benefit on the employer.” City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). For example, in Schwindt v. Red Roof Delivery Inc., W.C. No. 4-009-534 (September 14, 1992), the Claimant, a restaurant manager, was injured when she fell down a stairway in her home at approximately 4:30 a.m., sustaining significant injuries.  The Claimant had been working on schedules for the employer, and was authorized, but not required, to do so at home.  The Claimant was performing this work in her living room, but began to fall asleep, so she gathered her materials to go to an office adjoining her bedroom.  Just prior to approaching the stairway, the Claimant closed a door.  The resultant reduced lighting impeded the Claimant’s visibility. Claimant lost her step in the hallway and fell down the stairs.  The Claimant testified she “probably” would have taken a shower and returned to scheduling had the fall not occurred.  The ALJ concluded the injury was compensable.  He found the Claimant’s work demands permitted her to complete administrative work at home, and that, at the time of the fall, the Claimant “would have been asleep in bed” had she not been working on the schedules.  The Respondents made several arguments on appeal, including that the connection between the fall and the Claimant’s employment was too remote, and that the Claimant’s act of closing the door severed the causal connection.  The Panel rejected the Respondents’ arguments, holding there was a sufficient nexus between the conditions of employment and the injury.  The Panel reasoned, the claimant “need only have been acting in a manner consistent with, or incidental to, the employment” to establish compensability.

 

Similarly, in Bates v. Coors Brewing Co., W. C. No. 4-348-224, 1998 WL 872454, (Nov. 13, 1998), the Claimant worked as a plant manager for the employer. On May 14, 1997, the Claimant left the employer’s plant in her personal vehicle to travel home, where she was going review work-related material she was taking on a business trip the following day. On her way home, the Claimant was injured in a motor vehicle accident.  The ALJ found the claim compensable, holding the Claimant’s travel home on this occasion was in pursuit of the employer’s business and conferred a benefit to the employer beyond her own presence at work.  On appeal, Respondents contended that the facts of this case did not fall within the travel status exception because the Claimant was not required to work at home and was not required to bring her personal vehicle to work. The Panel rejected Respondents’ arguments, holding an injury does not have to be the result of a mandatory employment activity to be compensable. University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953);  Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment.  This includes discretionary or “optional” activities on the part of the employee which are devoid of any duty component.

 

The case Roe v. Alpine Plumbing & Heating, Inc., W.C. No. 3-766-435, 1987 WL59197, (July 20, 19987), had similar facts, but a contrary result.  In Roe, the Claimant who was employed by Respondent as a plumber, was injured in an automobile accident.  The Claimant testified that the accident occurred while he was “driving up to the job” near Boulder. As a result of a previous injury, the Claimant was performing light-duty work for the Respondent.   The Claimant’s duties included working on plans at his home. However, the ALJ found that the Claimant was “allowed to work at home for his own convenience” and that “the Claimant’s home was not an alternative job site.” Consequently, the ALJ concluded that the Claimant was not within the course and scope of his employment at the time of the accident.

 

Finally, in Sedgwick CMS v. Valcourt-Williams, in a 12-2 decision, the District Court of Appeals of Florida, reversed an ALJ’s decision awarding worker’s compensation  benefits to an at home worker.  During working hours on  April 27, 2016, Valcourt-Williams, a workers’ compensation claims adjuster, reached for a cup of coffee in her kitchen and tripped over one of her dogs, fell and sustained injuries to her knee, hip and shoulder.  She filed a worker’s compensation claim, which the employer denied, contending her injuries did not arise out of employment.  The ALJ held the Claimant’s injuries were compensable because the work from home arrangement meant the employer “imported the work environment into the claimant’s home”.  On appeal, the District Court held the Claimant’s non-employment life—her dog, her kitchen, reaching for her coffee cup—caused the accident, not her employment.  The court, however, said their decision would not “immunize” employers from workers’ compensation claims in work-at-home arrangements.  Two judges issued dissenting opinions.  One dissenter said it was “expected that employees who work from home will take periodic breaks and may suffer compensable injuries from falls from a variety of causes”.   The second dissenter argued that workplace injury from a neutral risk has been “undoubtedly compensable” and that the majority erred in their decision.  The judge found that tripping over the dog was “no different than if the claimant had slipped on a liquid substance on the floor” and was consistent with a decade of case law holding that a trip and fall in the workplace is compensable.

 

The trend to allow employees to work from home raises many wrinkles in the event of  injury, including applicability of the “dual purpose doctrine”, travel status, and obvious problems with proof.  In certain factual situations, the dual purpose doctrine has been applied to cover injuries sustained while the claimant is traveling between home and the job site. One such instance exists when the nature of the claimant’s employment is such that “it can genuinely and not fictitiously be said that the home has become part of the employment premises.” In those circumstances “travel between two parts of the employer’s premises is in the course of employment.” 1 Larson’s Workers’ Compensation Law, § 16.10[1]. Larson adds the following at § 16.10[2]:  When reliance is placed upon the status of the home as a place of employment generally, instead of or in addition to the existence of a specific work assignment at the end of the particular homeward trip, three principal indicia may be looked for: the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary, and not merely personally convenient, to work at home.

 

The reported cases  suggest compensability of injuries suffered by an employee permitted to work from home are highly fact specific.  If you have questions about the compensability of such an injury, or any injury, contact one of the attorneys at Lee & Brown.

 

NEW COLORADO LAW LIMITS OPIOID PRESCRIPTIONS

Colorado is addressing the ongoing opioid epidemic with an array of public and private initiatives.  Per the American Medical Association,  the state Medicaid agency (the Colorado Department of Health Care Policy and Financing [HCPF]) and the Division of Insurance (DOI) are spearheading the initiatives.  On March 16, 2018, the revised Guidelines for Prescribing and Dispensing Opioids were adopted by all six of Colorado’s prescribing and dispensing Boards: the Colorado Dental Board, the Colorado Medical Board, the State Board of Nursing, the State Board of Optometry, the Colorado Podiatry Board and the State Board of Pharmacy.  On May 21, 2018, then Governor, John Hickenlooper, signed Senate Bill 18-22, Clinical Practice for Opioid Prescribing.  The bill, which limits the number of opioid pills a healthcare provider can prescribe, went into effect immediately upon the Governor’s signature.  Under the new law, a prescriber must limit a patient’s initial prescription of an opioid to a seven-day supply, if the prescriber has not written an opioid prescription for the patient in the preceding twelve months.   All six dispensing Boards recommend a prescription of less than 50 MME per day and utilization of long-acting or extended relief formulations. These limits do not apply in certain discrete situations, including, if, in the judgment of the prescriber, the patient:

 

  • Has chronic pain that typically lasts longer than 90 days past the point of healing, as determined by the prescriber;
  • Has been diagnosed with cancer and is experiencing cancer-related pain;
  • Is experiencing post-surgical pain, expected to last longer than fourteen days due to the nature of the procedure; or
  • Is undergoing palliative care or hospice care designed to improve quality of life.

 

After the first prescription, the prescriber may exercise discretion in issuing a second-fill for a seven-day supply. In cases of a second-fill, the prescriber is required to check the Prescription Drug Monitoring Program (PDMP) database before prescribing additional opioids for the same  patient.  Failure to check the PDMP constitutes unprofessional conduct if the prescriber repeatedly fails to comply with this PDMP requirement.  The requirement to check the PDMP on a second-fill does not apply in situations exempting compliance with the seven-day first-fill, with two additional exemptions:

 

  • The patient is receiving the opioid in a hospital, skilled nursing, residential, or correctional facility; or
  • Is receiving treatment during a natural disaster or where mass casualties have taken place.

 

After the second opioid prescription, the law has no additional restrictions on the healthcare provider’s prescribing practices.

 

In keeping with SB 18-22, the Colorado Division of Workers’ Compensation recently released its amendments to Rule 18, W.C.R.P., the Medical Fee Schedule. The updated fee schedule took effect January 1, 2019.  While several important changes were made in the amended fee schedule rule for 2019, including inclusion of the most current CPT code terminology, HCPCS codes, Colorado Z-codes (state-specific billing codes) and Medicare’s most current National Physician Fee Schedule Relative Value file, with updated conversion factors, the amended rule also incorporates the revised physician prescription/dispensing restrictions on opioids.   The amended rule language provides:

 

Opioids classified as Schedule II or Schedule III controlled substances that are prescribed for treatment lasting longer than seven days shall be provided by a pharmacy.

 

The changes to Rule 18, W.C.R.P. suggest the Division of Workers’ Compensation intends to move forward and integrate any necessary modifications to drive full compliance with the new restrictions on physician dispensing of Schedule II and III opioids. Physicians prescribing chronic opioids through the Workers’ Compensation system are also expected to comply with Colorado’s Medical Treatment Guidelines, Rule 17, Exhibit 9, addressing chronic pain disorder.  While the Guidelines do not have the force of law, they are intended to assist practitioners in the safe prescribing and dispensing of opioids.

 

If  you have any questions about the Medical Treatment Guidelines, changes to the Medical Fee Schedule, or any other topics, please contact any of the attorneys at Lee & Brown.

 

Injuries Sustained Coming and Going From Work – When Are They Compensable?

We typically think of compensable injuries occurring when the employee is already at their place of employment.  But what about the time employees spend on the road, coming from and going to work?  Many industries require employees to drive as part of their daily duties, not to mention the time workers in various professions spend commuting to and from the job site.

 

In 2017 alone, there were 648 fatalities in Colorado resulting from motor vehicle accidents.  https://www.codot.gov/library/traffic/safety-crash-data/fatal-crash-data-city-county In the same year, there were close to 3,500 injury-only accidents.   https://www.colorado.gov/pacific/csp/traffic-safety-statistics.   Generally, injuries sustained while travelling to and from work are not considered to have arisen out of, and in the course and scope of, the employment relationship.  However, special circumstances may exist which establish a causal relationship between the employment and the travel to and from the worksite.  In the sentinel case of Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the Supreme Court reiterated the longstanding rule that injuries sustained going to work from home, and while returning, are not compensable because they are not seen as arising out of employment.  The Madden opinion however, also acknowledged the facts of any particular case may justify an exception to this general rule.  The decision sets forth four categories of “variables” to consider in determining compensability of travel-related accidents.  The Madden court indicated that the variables include, but are not limited to; (1) whether the travel occurred during working hours, (2) whether the travel occurred on or off the employer’s premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the obligations or conditions of employment created a “zone of special danger” out of which the injury arose. The Madden court also recognized the question of whether the travel was contemplated by the employment contract has the “potential to encompass many situations.” Generally, these situations involve the following: (a) whether the particular journey was assigned or directed by the employer, (b) whether the travel was at the express or implied request of the employer and conferred a benefit beyond the employee’s arrival at work, and (c) whether the travel was singled out for special treatment as an inducement to employment. The common element in these types of cases is that the travel is a substantial part of the service to the employer. Finally, if the Claimant establishes only one of the four Madden “variables,” recovery depends upon whether the evidence supporting that variable demonstrates a causal connection between the employment and the injury, such that the travel to and from the work arises out of and in the course of employment.

 

Following the Supreme Court’s holding in Madden, the courts have applied the analysis with varying outcomes.  In Norman v. Law Offices of Frank Moya, W.C. No. 4-919-557 (April 23, 2014), the Claimant was employed as an attorney performing public defender duties for the employer pursuant to its contract with the City and County of Denver. The Claimant was required to use her automobile at work to travel from her office to the court house, to the jails, and to other miscellaneous locations. When the Claimant was injured in a traffic accident while she was driving to her first appointment of the day at the court house, the Industrial Claim Appeals Panel upheld the ALJ’s determination the Claimant’s travel was contemplated by the contract of hire and the Claimant’s injuries were compensable. The Claimant’s travel by automobile to the court house was deemed to confer a benefit upon the employer beyond the sole fact of the Claimant’s arrival at work. Therefore, “…the circumstances of the auto accident on that date fell within the exception to the going and coming rule specified in the Madden decision.”

 

However, in In the Matter of the Claim of: Holly Lagasse, Claimant, 4-993-361, 2018 WL 15445488 (March 29, 2018) (NSFOP), the Court of Appeals affirmed the ALJ’s denial of benefits based on the coming and going rule.  The Claimant in the case was the decedent’s wife. The decedent worked for the employer as a derrick hand on an oil rig. The decedent worked for 12.5 hours each day from December 11, 2013 through December 17, 2013. The decedent voluntarily worked extra shifts from 6:00 am to 6:00 pm on December 19, 21, and 23, 2013. On December 24, 2013, the decedent began working the 6:00 pm to 6:00 am shift. The Claimant slept for about six hours on Christmas day and left for work at approximately 4:30 pm on December 25, 2013, to begin his 6:00 pm shift. After the decedent completed his work shift the morning of December 26, 2013, he started driving home. At approximately 6:36 am, the decedent’s pickup truck drifted across the center line of the County Road 66 in Weld County and collided with a bread truck. At hearing, the Claimant contended that the decedent’s death occurred during the course and scope of employment. The Claimant asserted that the decedent’s accident was compensable because of two special circumstance exceptions to the general rule that injuries sustained while coming and going to work are not compensable. The Claimant argued that the decedent’s work created a “zone of danger” because his work schedule produced significant fatigue and caused him to fall asleep at the wheel.  Claimant further argued the decedent’s employment implicitly contemplated the use of a personal vehicle as the work location could change without notice because of a “rig move.” According to the Claimant, there was a benefit to the employer because if the employees did not bring their personal vehicles to work, the employer would have had to arrange and pay for transporting the employees to the new work site after a rig move. Finally, the Claimant argued that the employer benefitted from the employees transporting their uniforms and special apparel home for cleaning.

 

The ALJ rejected the Claimant’s argument regarding the “zone of danger exception.” The ALJ also determined that the travel was not contemplated by the employment contract. The ALJ found the employer did not require the decedent to use his vehicle to work; mainly the decedent’s vehicle was not used to perform job duties and did not confer a benefit to the Claimant beyond his mere arrival at work. The ALJ determined that the Claimant failed to show that special circumstances existed to justify an exception to the general going to and coming from work rule, concluded that the decedent’s accident was not compensable and denied the Claimant’s request for death benefits.

 

The “special circumstances” outlined by the Madden court sufficient to establish the required nexus between travel and a compensable work injury can present complicated factual and legal issues. Should you have any questions concerning accidents occurring while an employee is coming or going from work, please contact any of the attorneys at Lee & Brown.

Injuries Resulting from Workplace Violence — When Are They Compensable?

We have all heard the grim news; a school in Parkland, a concert in Las Vegas, a nightclub in Orlando, a church in Charleston, a movie theater in Aurora.  The scenes have become far too common.  While we may think of the scenes of these places as serving a specific function, such as education, the location of each of these atrocities was also a workplace, making these acts a form of workplace violence.

 

While large-scale violent attacks grab the headlines, a Bureau of Justice Statistics Study found that 80 percent of workplace violence is non-life-threatening, verbal or physical assault.  http://www.bjs.gov/content/pub/press/wv09pr.cfm.   The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) defines “workplace violence” broadly, as “violence or the threat of violence against workers”.  It can occur at, or outside, the workplace and can range from verbal threats and abuse to physical assault and homicide. However it manifests, workplace violence is a growing concern for employers and employees alike.  OSHA estimates some 2 million American workers are victims of workplace violence each year.  https://www.osha.gov/OSHDoc/data_General_Facts-workplace-violence.pdf.  Co-worker altercations, domestic situations brought to the workplace, and customer retaliation are all situations falling under OSHA’s broad definition of workplace violence. All could lead to compensable workers’ compensation claims, significant injuries, including death, and the associated financial loss.   But not all incidents of workplace violence causing injury result in a compensable claim.

 

Under Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable.  An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions.  An injury “arises out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract.

 

The Colorado Supreme Court has determined injuries which result from workplace violence are divided into three categories of causation, some of which are compensable, some not. The first category is assaults that have an inherent connection to the employment because of “enforced contacts” which result from the duties of the job. This includes assaults originating in arguments over work performance, work equipment, delivery of a paycheck or termination from work.

 

The second category is assaults which result from a “neutral force”.  A “neutral force” is one that is neither particular to the claimant nor the employment. This type of assault has been analyzed under the “positional risk” or “but for” test and is applied to injuries which result from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks.

 

The third category is assaults which are the result of a private dispute which the parties import to the work place. (E.g., Claimants shot by a co-worker who believed that the claimants had made obscene calls to the co-worker’s spouse). This category has been expanded to include assaults where the victim was specifically chosen or targeted.

 

Injuries from workplace violence resulting from “enforced contacts”, specifically resulting from the claimant’s job duties are compensable. However, the issue of whether the assault resulted from the “duties of the job” requires a factual determination you may want to present to an Administrative Law Judge.  Assault injuries from a “neutral force”, such as a completely unexplained shooting, are also compensable. In such situations, the Courts consider whether, “but for” the conditions and obligations of employment, the claimant would have been injured.

 

In contrast, injuries caused by a work place assault which results from a private or personal dispute imported to the workplace are not compensable. Thus, where the assault has no inherent connection to employment activities, compensability of the claimant’s injuries depends on whether the claimant was specifically targeted for the assault.

 

When evaluating the compensability of workplace violence claims, the employer should also be mindful of the exclusivity provisions of the Workers’ Compensation Act.  An employer that has complied with the Act is granted immunity from common-law actions for damages, such as pain and suffering, mental distress, loss of enjoyment of life, lost earning capacity, etc., and its employees are limited to the remedies specified in the Act.  If an employee’s injuries result from an assault that is inherently connected to the employment or is attributable to neutral sources that are not personal to the victim or perpetrator, those injuries arise out of the employment for the purposes of workers’ compensation and the employee is barred from bringing a tort claim against his or her employer. However, employee claims are not barred by the Workers’ Compensation exclusivity provisions if the assault originates in matters personal to one or both parties.

 

Have questions? Please contact any of the attorneys at Lee & Brown, LLC.

 

LEGISLATIVE UPDATE — FIRST RESPONDERS’ COVERAGE FOR PTSD

2017 saw more legislative action related to workers’ compensation than Colorado has seen for the past few years.  Three bills were introduced in the Colorado Legislature and all three passed.  One of the newly enacted bills, HB 17-1229, was enacted on June 5, 2017, with an effective date of July 1, 2018 (subject to exception)[1].  It amends section 8-41-301, C.R.S., relating to the conditions of recovery for claims of mental impairment.  Under the current law, an employee can file a “mental only” (i.e., there is no associated physical injury) claim only as a result of employment-related situations consisting of a “psychologically traumatic event that is generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances”.   The claimed mental impairment must be proven by the testimony of a licensed physician or psychologist.  Strict judicial interpretation of this statutory language resulted in the de facto disqualification of police officers, firefighters, EMTs and other first responders from the receipt of mental impairment benefits for PTSD claims because violent and bloody incidents, including the deaths of others, were deemed to be within their “usual” work experience.   While it is true some of these professionals do encounter repeat exposure to horrific events as part of their typical work experience without impact, others struggle to secure the coverage and psychiatric care they need to help them deal with gruesome work situations, which might be “expected” in their occupation, but are still somewhat atypical.  Section 8-41-301, C.R.S., as amended, allows workers to claim workers’ compensation coverage for PTSD in a limited set of circumstances, based on repeated exposure to violent incidents.  It also retains the statute’s existing requirement that, outside the few exceptions that apply primarily to peace officers and first responders, mental impairment coverage is implicated only when an incident is outside a worker’s usual experience.  As before, a mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. To qualify for mental impairment benefits under the amended statute, the worker must be diagnosed with PTSD by a licensed psychiatrist or psychologist following exposure to one or more of the following events:

 

  • The worker is the subject of an attempt by another person to cause the worker serious bodily injury or death through the use of deadly force, and the worker reasonably believes the worker is the subject of the attempt;
  • The worker visually witnesses a death, or the immediate aftermath of the death, of one or more people as a result of a violent event; or
  • The worker repeatedly visually witnesses the serious bodily injury, or the immediate aftermath of the serious bodily injury, of one or more people as the result of the intentional act of another person or an accident.

 

These changes to the mental impairment statute achieve a balance that is fair to first responders, while maintaining appropriate limitations on coverage for others in nonviolent occupations, and protecting the interests of employers and insurers.  The act applies to injuries sustained on or after its effective date, July 1, 2018.

If you have questions about the recently enacted workers’ compensation legislation, or any questions about workers’ compensation, please contact Lee + Kinder LLC.

 

[1] This act takes effect July 1, 2018; except that, if a referendum petition is filed pursuant to the applicable state constitutional provision, then the act will not take effect unless approved by the people at the November 2018 general election.

A FIRST! FDA REQUESTS WITHDRAWAL OF OPANA® ER FROM THE MARKET; MANUFACTURER ACQUIESCES

Amid the nation’s ongoing and “unprecedented opioid epidemic”, (per the U.S. Department of Health and Human Services), on June 8, 2017, the U.S. Food and Drug Administration requested Endo Pharmaceuticals to voluntarily remove its opioid pain medication, reformulated Opana ER (oxymorphone hydrochloride), from the market. The request was based on concerns that the benefits of the drug no longer outweigh its risks related to abuse. This is the first time the FDA has taken steps to remove a currently marketed opioid pain medication due to the public health consequence of abuse.

Opana ER is an opioid first approved in 2006 for the treatment of moderate to severe pain when a continuous, around-the-clock opioid analgesic is deemed necessary. In 2012, Opana ER was reformulated to deter snorting and injecting. While the new product met the FDA’s standards for approval, based on new information about the risks associated with the reformulated product, the agency is now taking steps to remove Opana ER from the market.

Janet Woodcock, M.D., Director of the FDA’s Center for Drug Evaluation and Research, indicated, “The abuse and manipulation of reformulated Opana ER by injection has resulted in serious disease outbreak. When we determined the product had dangerous unintended consequences, we made a decision to request its withdrawal from the market. This action will protect the public from further potential misuse and abuse of this product.”

The FDA requested the manufacturer, Endo International, voluntarily remove reformulated Opana ER from the market. In another first, Endo has announced its plan to voluntarily comply with the FDA’s request. In a July 6, 2017 press release, Endo announced plans to work with the FDA to coordinate the orderly removal of the pain medication, “in a manner that looks to minimize treatment disruption and allows patients sufficient time to seek guidance from the health care professionals.”

The FDA has indicated it will continue to examine the risk-benefit profile of all approved opioid analgesic products and take further actions as appropriate as part of its response to the opioid public health crisis. For further information, read the FDA News Release.

 

What can you do to help manage the chronic prescription of opioids or narcotics on your claims?

• Obtain an independent medical evaluation if:
1. Opioids are prescribed for complaints of pain and there are inconsistencies in the diagnosis and objective findings;
2. There is no reported reduction in pain levels with ongoing prescription of opioids or narcotics;
3. There is no demonstrable improvement in function, including return to work, with ongoing prescription of opioids or narcotics;
4. Abuse, addiction, or deviation is suspected.

 

• Colorado’s Medical Treatment Guidelines address the appropriate use of Narcotics/Opioids in workers’ compensation claims including the following recommendations:
1. Screening for potential alcohol and drug abuse problems, as well as co-morbid psychiatric conditions, to identify those claimants who may be prone to dependence or abuse;
2. Long-term narcotics or opioids should only be offered after other therapies have failed to improve function;
3. Narcotics or opioids should result in demonstrable improvements in function, not just reported pain relief;
4. Random urine drug screens are required by the Guidelines for the chronic prescription of opioids or narcotics;
5. A narcotic pain contract, and compliance therewith, is required by the Guidelines for long term prescription of opioids or narcotics;
6. Periodic re-evaluation of function and side-effects is required for ongoing narcotic or opioid prescriptions;
7. Tapering and discontinuance of opioid or narcotic prescriptions are required when patient goals are not being met.

 

• Medical Utilization Review:
Provides a statutory, tiered, neutral medical review of the reasonableness and necessity of an authorized treating provider’s care, including the prescription of narcotic and opioid medications.
If you have any questions about challenging the ongoing prescription of narcotics or opioid pain medications, or any claim-related medical treatment, please contact any of the attorneys at LEE + KINDER, LLC. We are always glad to discuss the facts of your case and work towards the most efficient way to end unreasonable, unnecessary, and/or unrelated medical treatment.

EMPLOYEE OR INDEPENDENT CONTRACTOR?

Why is it important to know if the person working for you is an employee or an independent contractor?  Because the answer determines if he or she must be covered by your workers’ compensation insurance policy. An incorrect guess exposes you to substantial penalties under Colorado’s Workers’ Compensation Act.employeeVSic

 

A worker’s status as an “employee” versus an “independent contractor” has been one of the most heavily litigated areas of workers’ compensation since the enactment of Colorado’s Workers’ Compensation Act in 1915.  Fortunately, after decades of appellate decisions addressing the independent contractor versus employee issue, in 1993, the General Assembly enacted section 8-40-202(2), C.R.S.  According to section 8-40-202(2), C.R.S., anyone performing work for you is an employee, unless such individual is:

 

  • Free from control and direction in the performance of the service, and
  • Customarily engaged in an independent trade, occupation, profession, or business related to the service performed.

 

The statute sets forth nine factors which give rise to a presumption that a worker is an independent contractor as opposed to an employee.  The statute contains various factors the courts will consider in determining whether a worker is, based on the totality of the circumstances, “engaged in an independent trade, occupation, profession or business”.  For example, if the worker has a separate business name, carries his or her own business insurance, has business cards, carries workers’ compensation insurance on any employees, is paid at a contracted rate, submits invoices for the work being performed, with payments being made to the named business, is performing services for other companies at the same time he or she is working for you, the facts suggest the worker is independent and you may not be required to cover him or her under your workers’ compensation policy.

 

The statute also requires the worker to be “free from control and direction in the performance of their services”.  If the worker provides their own tools and necessary supplies, performs the services being contracted on their own schedule, exercises independent judgment in performing the services and how they choose to perform them, again these facts suggest the worker is free from control and independent.  Unfortunately, the courts have repeatedly held there is no single dispositive factor, or series of factors, resulting in proof of an employer-employee relationship or independent contractor status under section 8-40-202(2), C.R.S.

 

The statute does provide for the use of a document to satisfy its requirements by a preponderance of the evidence.  If the parties use a written document to establish an independent contractor relationship, it must be signed by both parties and contain a disclosure, in type which is larger than the other provisions in the document or in bold-faced or underlined type, that the independent contractor is not entitled to workers’ compensation benefits and is obligated to pay federal and state income tax on any moneys earned pursuant to the contract relationship.  All signatures on the document must be notarized.  Such a document creates only a rebuttable presumption of an independent contractor relationship between the parties.

 

Still confused or unsure?  Please call Lee + Kinder LLC to discuss the facts of your situation.

OSHA Injury and Illness Reporting Requirements

The Occupational Safety and Health Administration (OSHA) requires many employers with ten or oshalogomore employees to keep a record of serious work related injuries and illnesses (certain low risk industries are exempted).  Employers must report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of any worker within 24 hours.  Minor injuries requiring only first aid do not need to be recorded.   This information helps employers, workers and OSHA evaluate the safety of a workplace, understand workplace hazards and prevent future workplace injuries and illnesses.

OSHA recently announced it is expanding its “Injury and Illness Record-keeping Rule” to encourage greater transparency of employer injury and illness data.  Starting in 2017, the Rule will also require some employers to disclose occupational injury and illness information to OSHA electronically.  Some of the electronically submitted data will then be posted to OSHA’s website.  OSHA believes that this public disclosure of employer information will “nudge” employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.  The amount of data submitted and publically posted will vary depending on the size of the company and the type of the industry.

The expanded Rule prohibits employers from “discouraging” workers from reporting an injury or illness.  The final Rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.   Originally slated to take effect August 10, 2016, OSHA is delaying enforcement of the anti-retaliation provisions in its new Injury and Illness Record-keeping Rule to provide education and outreach to employers.  Enforcement of the anti-retaliation provisions of the Rule will now begin November 1, 2016 and the record-keeping rule takes effect on January 1, 2017.

You might feel confident that your workplace is already in compliance with the “anti-retaliation” provisions of OSHA’s Injury and Illness Recordkeeping Rule.  You may even be asking yourself, “How is this a change in the law?  Isn’t it already against the law to retaliate against an employee for reporting a workplace injury or illness?”  While section 11(c) of the Occupational Safety and Health Act prohibits any person from discharging or discriminating against an employee for reporting an injury, illness or fatality, OSHA may not act under that section unless the employee files a complaint within 30 days of the retaliation.  OSHA believes the new Rule is vital as it gives OSHA the “ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves”. Further, the issues under the expanded rule are more complicated than they first appear. You could be inadvertently violating provisions of the rule and unexpectedly land yourself in hot water with OSHA.

Here are some common workplace safety policies that could result in violations of OSHA’s new anti-retaliation provisions:

  1. Mandatory post-accident drug testing programs: The OSHA rule specifically recommends against “blanket post-injury” drug testing policies. However, OSHA also specifically indicates the rule does not prohibit post-injury drug testing of employees.  It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.  That being said, in connection with the rule, OSHA stated, “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.”  Therefore, OSHA’s position on blanket post-injury drug testing appears to be equivocal and leaves employers without clear direction.  OSHA’s recommendation against blanket post-injury drug testing may prove particularly problematic, given that Colorado’s Worker’s Compensation Act clearly contemplates post-accident drug and alcohol screening in light of C.R.S. sections 8-42-112, (“safety rule violation”), 8-42-112.5, (the “intoxication defense”), 8-42-103(1)(g) and 8-42-105(4)(a), (the “termination statutes”).  For employers with “zero tolerance” policies, a positive post-accident drug or alcohol test could result in the termination of an injured employee’s employment, reducing their temporary indemnity benefits to zero.  If the employer proves either an intoxication defense or safety rule violation, the injured employee’s indemnity benefits, temporary and permanent, would be reduced by 50 percent.  While these concerns may not directly impact the course of worker’s compensation litigation, they could give rise to employment litigation outside the workers’ compensation system, particularly in light of OSHA’s independent ability to raise the retaliation issue under the expanded rule, without the need for the worker to file a complaint.

 

  1. Providing incentives exclusively to employees that have not been involved in workplace incidents or accidents: While OSHA indicates the rule does not prohibit incentive programs, it does state employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness. For example, if you are trying to minimize injury by providing cash bonuses, paid time-off, employer-sponsored parties, or other compensation, for a certain number of “injury-free” days, or “no lost time”, you could be in violation of the rule. Unfortunately, OSHA’s alternative direction is vague at best.    OSHA recommends incentive programs that “encourage safe work practices” and “promote safety-related activities”.

 

  1. If injured, off-work employees are excluded from workplace events, which could be considered a benefit of employment, such as luncheons, parties, football pools, birthday celebrations, or other work-related events or functions.

OSHA’s new Injury or Illness and Record-keeping Rule is complicated and could result in a quagmire of retaliation and perceived retaliation claims.  Your current safety policy and procedures should be reviewed for compliance with the expanded rule.  If you have questions about the rule, or whether your policies are in compliance, please contact us.