Synopsis: Aggressive Defense Handling of IL WC Claims—How Do You Defend and Win “Repetitive Working” Claims?

Editor’s comment: Our lawyers at KCB&A are focused on paying the claims we owe but fighting as aggressively, passionately and as fervently as possible where we can on claims our clients have to win. One growing “problem” we see in the IL WC matrix is the growth of “repetitive working” claims and how the WC defense industry is struggling with them.

What is a “repetitive working” claim?—it is onset of pain without a defined accident, trauma or unforeseen occurrence. We feel workers pick the heaviest task or tool in their job duties and try to point to that work as the source of their problems. Lots of older workers and wily younger workers are signing up for Illinois’ generous WC benefits but don’t want to deal with the uncertainty of an unpredictable incident. So when they have any medical issue, like spontaneous sore knees, one way to cash in is to blame the sore body part on “work.” What such workers are doing across the state is to say, “ouch, my [insert body part] hurts” and then say the problem is due to “work.”

On the Defense Side, Don’t Call It an “Accident” or “Injury” unless it is a True “Accident” or “Injury”

An accident or acute injury is something unforeseen and unexpected. One phenomenon we have seen, particularly with nurse case managers, is many veteran NCM’s and defense claims handlers will describe or label any medical condition as an “accident” or “injury” if the worker says their pain started in the workplace. For one example, if you have a forklift operator with a sore knee they say started from getting off their forklift, in our view, they haven’t suffered an “accident,” they simply have a sore knee. Acute pain or soreness in the adult knee without any history of trauma is usually associated with the degenerative development of bone-marrow edema and/or joint effusion. In this setting, bone marrow edema can be caused by various non-work-related disorders ranging from septic arthritis with or without osteomyelitis, inflammatory and degenerative arthritis, to transient osteoporosis, spontaneous osteonecrosis and acute synovitis. If you aren’t willing to fight such conditions, you may pay lots of money when they randomly arise—you basically own that leg for hip and knee replacements and all the sequalae that might ensue.

We have seen nurse case managers call the onset of chronic knee pain an “accident at work.” Such NCM’s will then get an independent medical exam where they tell the expert medical examiner the worker/examinee with transient onset of knee pain suffered an “accident at work” and ask the doctor if the “accident” is related to work. It is a very solid physician who will see through such questions and ask if there was actually an acute occurrence in the investigation or initial medical history. In our view, the use of the words “accident” or “injury” is very poor nomenclature, as it implies an accident or an injury occurred. The defense attorneys at KCB&A would instead indicate this claimant suffered “onset of pain” or spontaneous onset of knee pain while at work. Where there is no incidence of trauma or an unexpected event in the reporting or investigation, please don’t provide a label for an event that isn’t present.

What about “Repetitive Trauma”—Isn’t that Compensable?

We have some problems with calling the random onset of pain from activities of daily life as being due to “repetitive trauma” or repetitive injury based upon our example of the job duties of occasionally getting on and off forklifts. Most IL Arbitrators don’t feel getting on and off a forklift at the beginning of an eight-hour shift, at a single morning work break, at a lunch break, at an afternoon break and at the end of the day a lot of stress to the body. In our view, they aren’t going to feel that is “repetitive trauma” like a work task performed hundreds of times an hour. Please remember, if you don’t investigate and document the true work situation, the employee can say anything they want at a hearing.

So if we are going to defend such claims, you need

ü An outline or specifics or investigation of how many times in a day, week or month this worker may have been getting on and off a forklift.

ü You have to be able to prove it was four times a shift or forty times each hour.

ü You have to determine if the forklift step is an inch, six inches or two feet off the work floor/surface.

ü It might be important to know the surfaces the forklift runs on and whether such surfaces were in level, dry, well-lit and clean.

ü You may also consider getting confirmation the forklifts being used were all in a normal and ordinary state of repair and were being used by numerous other similarly situated workers without any complaint about maintenance or safe use.

We also don’t want any client to have a worker say they got hurt using any equipment without getting the maintenance and safety records of that equipment. Like any Boy/Girl Scout, be prepared to show the equipment in question was in a normal and ordinary state of repair. As soon as possible following a report of a repetitive working problem, have a supervisor “test” or at least use/observe the equipment to insure it is working properly and didn’t fail—you have to “prove a negative” to show things weren’t broken and worked fine.

Next, you might want to look on the web about the ergonomics of stepping on and off forklifts and how that differs, if at all, from routine activities of daily life. You also want to pull and save security videos to give any IME doctor the real picture of the job and work duties before they reach their expert opinions. Such videos also help the Arbitrators to see what really goes on in your workplace and how much stress might be involved.

We make these points specifically to confirm if you accept and pay substantial benefits for what we characterize as a “repetitive working” claim, you may be on the hook and/or implicitly accept any claim for foot, knee, hip, back, neck and shoulder pain for anyone working for this company who wants to point to stepping on and off forklifts as the “cause” of those problems. All of those body parts/areas are used and are arguably “stressed” when one gets on or off a forklift.

Do These Approaches work—Can We Truly Defend “Repetitive Working” claims?

Youbetcha--we want all of our readers to know the 16 lawyers at KCB&A fight and win claims on a regular basis in Illinois, Indiana, Wisconsin and Michigan. If you give us the tools and evidence, we are aggressive and relentless. But we can’t win without our clients’ help and assistance in aggressively investigating claims, documenting/authenticating defenses and possible WC fraud. If you need help in ramping up your accident investigation protocols, send a reply. Please post your thoughts on our award-winning blog.

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Synopsis: Ten OSHA Recordkeeping Mistakes You Have to Know and Avoid.

Editor’s comment: The OSHA experts at KCB&A keep seeing our clients making the same recordkeeping errors and wanted to give you our expert thoughts and advice. All employers should be on the lookout for common errors on maintaining your OSHA 300 logs. Here is our list of ten major mistakes U.S. employers may make on your OSHA 300 logs:

1. Work restrictions in relation to OSHA recordability

The most common error is failing to understand what an OSHA-recordable work restriction is. Many employers honestly believe an injury may not be recordable as a work restriction if the injured employee still can perform some work. Employers try to avoid OSHA recordability by assigning office work to injured truck drivers. Other employers may think a case is not recordable if the employee still can perform work within his or her job description. For example, they give purely sedentary welding work to ironworkers who otherwise would climb ladders.

However, OSHA's regulations (29 C.F.R. § 1904.7(b)(4)(i)-(ii)) state a restriction occurs when either one of two circumstances occur:

The employer keeps an occupationally injured employee from performing one or more “routine functions” of his job; or

A licensed health care professional recommends the employee not perform one or more “routine functions” of his job. “Routine function” is defined as a work activity regularly performed at least once per week. For an injured ironworker who now is unable to climb ladders, the case is recordable because he typically climbs ladders every day.

2. “Light or medically modified duty” may cause OSHA recordability

Another typical error is the perception light or medically modified duty is not a work restriction. An OSHA recordkeeping regulation (§ 1904.7(b)(4)(vii)) indicates light or medically modified duty can indeed amount to a work restriction and cause recordability. In fact light or medically modified duty is presumptively a restriction according to the regulation cited.

OSHA watchdogs take this regulation to mean “light or medically modified duty” is a recordable work restriction unless the physician affirmatively states the injured worker may perform all of their routine job duties and work a full shift. If you are faced with nebulous restrictions, we tell our clients and readers when faced with vague restrictions such as “light duty,” you have to then contact the physician and get details on what work duties the worker may not perform. If the restricted duty is one the worker regularly performs at least once a week, an OSHA recordable case must be entered on the 300 log.

3. Always remember the injured worker is an important “witness” and can’t be ignored

A typical mistake is to fail to give proper weight to the report of the injury offered by the injured worker. Employers sometimes discount a worker's version of injury because there were “no witnesses.” However, the injured worker is a witness and if he or she says they twisted their knee when he stepped on an oily surface, the worker's account must be given as much weight as circumstances warrant. You have to remember, sometimes the employee's statement may be enough. If you feel it is not enough and the event should be disputed, an employer has to document and authenticate your disputes.

4. Overreliance on late reporting as a basis for disputing an injury

Our clients sometimes fail to record an injury on their OSHA 300 log because the worker did not report the event timely or on the same day. Some employers assert a worker’s failure to immediately report is fatal to credibility, especially if the failure violated your “as-soon-as” accident reporting rule. Such reasoning is understandable but can cause issues. Although the worker’s failure to immediately report an injury may violate your accident-reporting protocols, it does not necessarily mean a work-related injury did not occur. You still have to consider whether the worker’s account is reliable and whether there is other defense evidence to dispute the report.

5. Trying to understand aggravation of pre-existing conditions in relation to OSHA recordability

Another common mistake is our clients and readers make is misunderstanding OSHA's test for recordability of a workplace aggravation of a non-occupational injury or condition. Employers may hope if an on-the-job incident caused a true flare-up of a condition that originally arose off the job or with a previous employer, such aggravation is not OSHA recordable. Such a perspective may be incorrect. Please also note OSHA's regulations on this point can be misleading. Consider an employee who runs a marathon and gets sore knees on vacation, returns to work and picks up a small box. Suppose the lifting of the small box causes a flare-up of knee pain that started during the marathon race and causes the worker to either require medical treatment or makes them unable to perform normal weekly duties. Is such a problem OSHA recordable? It would be understandable for an employer to think lifting incident may be ignored as insignificant in relation to the overall issue. First, the principal provision on aggravation in the regulations §1904.5(b)(3) says an aggravation is not recordable unless the current workplace “significantly” aggravated a preexisting non-occupational condition. Second, the preamble to the regulations describes the provision as not “requir[ing] the recording of cases involving only minor aggravation of preexisting conditions.” So a reasonable employer might think the regulations permit you to distinguish between significant and insignificant aggravations. Employers can and should be forgiven for being confused by a regulation which speaks of “significant” aggravation but requires you to record a case the cause of which is 99.99 percent non-occupational.

6. The influence of non-OSHA criteria for work-related problems, aggravations and work restrictions

Another issue arises when physicians and employers apply non-OSHA criteria for work-relatedness, aggravations and restrictions. For example, employers commonly ask a doctor whether an aggravation is work-related. Often an OccDoc might respond the “major” cause was non-occupational. Such a response reflects the physician's common-sense test for work-relatedness or aggravation or a given state's workers' compensation causation statute. This analysis does not reflect OSHA's definition of aggravation, which does not require analysis of “major” causes.

This issue also affects work restrictions. Workers' compensation TPAs/insurance carriers urge employers to keep workers working. Risk, safety and health managers who succeed in keeping injured workers working find it difficult, when reviewing a case for OSHA recordability, to place the case on the 300 log as an OSHA recordable restriction.

7. Common sense first aid can be recordable

Under the OSHA recordkeeping regulations, medical treatment is recordable unless it falls within an exception in the regulations, one of which is “first aid.” The regulations list all treatment comprising “first aid.” Accordingly, we encounter employers who feel if treatment is first aid, it is not recordable. However, as OSHA created its own special and highly restricted definition of “first aid,” there is a difference between first aid in common parlance and “first aid” within the meaning of the OSHA regulations.

8. Prescription drugs in relation to recordability

OSHA's recordkeeping rules state use of a prescription drugs is recordable as medical treatment. Employers often overlook, however, that a physician's recommendation for an employee to use even a non-prescription drug at “prescription strength” is recordable.

9. What to do about “Battling Physicians”

Employers may try to avoid a recordable case by asking a second physician for their opinion on whether medical treatment or a work restriction recommended by, a previous physician was needed, or whether an injury or aggravation is occupational. This seems permitted by OSHA's regulations, which twice state that, “If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.” The trouble is that OSHA's regulations fail to make clear distinctions OSHA enforcement officials can make. Under these distinctions, a second doctor can affect recordability caused by a first physician, and sometimes not.

10. Recordability can change as a work-related condition changes

Once an injured worker stops reporting for work because of long-term injury leave, record keepers may forget to keep track of days away from work and put them on the OSHA 300 log. The same thing frequently occurs when injured employees make subsequent physician visits sometime after an injury; on these occasions, restrictions may be later imposed, medical treatments given or drugs prescribed of which the employer is unaware. Employers need to establish a system for keeping tabs on subsequent events and for making sure your record keepers consistently track them. If not, recordable cases or data might slip through the cracks and not be reflected on the employer's OSHA 300 log.

We have several OSHA experts on staff at KCB&A. Our hourly rates are dramatically more reasonable than the giant national law firms who want to keep this as mystical and mystifying as possible. We are happy to provide clarity and simplicity to this area of law. If you have concerns or issues with OSHA or recordability, please send an email or call at any time.

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Synopsis: Investigating Suicide in the Workplace must involve careful vetting of causation, thoughts from our respected nurse-lawyer Ellen Keefe-Garner, J.D., R.N. B.S.N.

Editor’s comment: Statistics show suicide is the 11th leading cause of death In the U.S. and is in fact a more frequent cause of death than homicide, which is the 13th leading cause of death. If an employee commits suicide, whether at work or outside of work, questions can arise as to whether the death is or should be compensable under workers’ compensation law. In order for any injury or death to be compensable in WC, it must be related to or “causally connected” to work. In workers’ compensation, proof of causation requires death by suicide arise out of and in the course of the employment. Arising out of the employment means that some act or element of employment is or was a causative factor in the suicide.

Petitioners sometimes try to push the limits of causation by trying to prove a suicide was prompted by or caused by a work-related event even though the suicide happened outside of work. This occurs because the value of a workers’ compensation death case in Illinois is a minimum of approximately $615 thousand dollars with a maximum potential recovery of over $1.6 million dollars.

Importantly, employers should recognize the fact of an employee’s death by suicide at work does not automatically mean the death is or is not causally related to work. For instance, if a distraught employee commits suicide at work because of depression prompted by a recent divorce, the suicide should not arise out of the employment and should not be causally related to employment, even though it occurred at work. In contrast, if a distraught employee commits suicide at home to avoid some extreme pain arising from a work-related injury, some courts have found a causal relationship between the death by suicide and the work-related accident even though the suicide was committed at home and not at work.

In the oft-quoted Illinois case of Harper v. Industrial Commission (from 1962), a worker who had sustained a back injury at work committed suicide after leaving work in the middle of the morning. A workers’ compensation award to the widow was ultimately appealed all the way up to the Supreme Court of Illinois since the death had not occurred at work. The Illinois Supreme Court ultimately upheld the award to Decedent’s widow, finding there was sufficient proof of a direct causal relationship between the work-injury and the suicide. Based on the proof of a sufficient causal connection to the work accident, the Court held it was not necessary to prove the precise mental condition suffered by Decedent at the time of the suicide.

In contrast, in the later Illinois case of Goldsamt v Industrial Commission, our Supreme Court affirmed the denial of benefits for injuries resulting to an employee who lost both of his legs after attempting to commit suicide by jumping out of a 9th story window at work. Although the employee argued his suicide attempt was due to stress from work, the key to the denial of benefits in Goldsamt was the presence of the employee’s mental illness unrelated to the work environment. In other words, the Court held evidence of the employee’s long-standing depression and obsessive-compulsive disorder militated against a direct or a sufficient causal link between his suicide attempt and depression from work problems. Ultimately, the Supreme Court upheld the lower courts’ findings indicating Petitioner’s depression arose from causes that were not “work-related” and, therefore, not compensable.

Given that causation is such an important factor in any workers’ compensation case related to an employee’s suicide (or suicide attempt) at work, employers must do a careful investigation to determine the cause of any employee’s suicide. In other words, a suicide death must be diligently treated like any other work-related accident involving a fatality. Before an investigation is completed, no assumptions should be made that a suicide will or will not be compensable even though it arose as a result of an intentional and self-inflicted act unrelated to work.

Of course, when the employer becomes aware of an employee’s suicide at work, the employer should contact the police and OSHA to report the death so a full investigation as to the cause of the death can be started. However, the involvement of these outside investigators should not prevent the employer from doing its own investigation as to the cause of the suicide. Any employer in such a circumstance should gather and preserve important evidence, like a suicide note or statements made by Decedent to co-workers. Ultimately, any workers’ compensation claim that arises out of a suicide death or a suicide attempt will center on issues related to causation. In other words, the main question at trial and later on appeal will be whether the employee’s suicide ultimately arose out of and in the course of the employment.

One other caution in dealing with workplace fatalities—you have to remember witnesses to a sudden, shocking event and “first-responders” may also become claimants if they suffer psychological or related mental issues as a result of the unforeseen occurrence on the job. Following the Supreme Court’s rule in Pathfinder v. Industrial Commission, you have to reach out to such workers and provide care, as needed.

This article was researched and written by Ellen Keefe-Garner, J.D., R.N. B.S.N. Please feel free to send questions or concerns to Ellen at emkeefe@keefe-law.com

KCBA Blog

11-27-12; How Do We Defend and Win "Repetitive Working" Claims; Top Ten Mistakes in OSHA Recordability; Ellen Keefe-Garner on Dealing with Work-Related Suicide and much more