State News

 Katherina Swank worked for CareSource Management Group (hereinafter CareSource) as a Registered Nurse (RN).  CareSource provides managed healthcare services to Medicaid recipients.  Her work involved case manager duties by telephone until CareSource initiated a new approach in 2011 to delivering managed care services to the Ohio Department of Job and Family Services, which mandated that CareSource employees meet face-to-face with certain high risk members of the community on at least a quarterly basis.

This face-to-face requirement posed a problem for Swank because she suffered from rheumatoid arthritis.  She had intermittent difficulty with walking, lifting heavy items, and driving.  She had a weakened immune system and was susceptible to illness.  Because of these medical issues, CareSource had allowed Swank to begin working from home in 2009.  When management contacted Swank in 2011 about the change in requiring face-to-face visits with members, Swank said that she had concerns about this, in particular having to drive a great deal as well as the impact on her autoimmune condition.

Swank sent a letter on November 14, 2011 to the Senior Vice President of Health Services stating that the new position “would be hazardous considering her current health condition.” She elaborated that contact with high risk patients would be detrimental to her health. She met with management and stressed that long distance driving would also be a problem.  CareSource suggested that Swank make an accommodation request.

Swank filled out an application for an accommodation and stated that she was “unable to tolerate being exposed to changes in weather conditions” and “unable to sit/stand for long periods of time.” Her request was to be permitted to continue to work in an office setting. Her physician weighed in by saying that Swank would have “difficulty” performing some of the job duties of the new CMHR job position.  Her doctor also said that during acute flare-ups of her rheumatoid arthritis, her medical condition would preclude her from traveling to and from work and from being at work.

Ten more conversations took place between the parties with no real progress. Ultimately Swank admitted that she could not perform the essential functions of the new CMHR position, and CareSource advised that it had no other position for her.  The company then terminated her employment.

Swank sued under the ADA and contended that the company failed to make reasonable accommodation for her disability.  The district court ruled for CareSource and the United States Sixth Circuit Court of Appeals affirmed the dismissal of Swank’s case.  The Court noted as follows:

• There was evidence that Swank could not perform her job duties at all during flare-ups of her rheumatoid arthritis.

• The Court had a right to rely on statements by Swank’s doctor that she was likely to have acute flare-ups even though Swank disagreed with her own doctor on this point

• Driving was an essential function of the CMHR position because driving was included in the “Work Environment/Physical Requirements” section of the job description, even if it was not mentioned in the CMHR heading as an essential job function.

• Making face-to-face visits with high risk patients was an essential job function

  Swank also argued that the company should have considered reassigning her to a telephonic position in Dayton or Cleveland.  The Court noted that at the time she raised this issue, there were no such positions available.  Further, this would not have addressed Swank’s restrictions against long distance driving.  Lastly, one of the Cleveland positions would have required a promotion for Swank, and the Court noted that this is never required of an employer under the ADA.

  The Court rejected the argument that Swank made a reasonable accommodation request:

  “Swank failed to propose a reasonable accommodation that would have addressed her stated driving limitations.  Swank contends that she proposed a reasonable accommodation because she ‘sought to be assigned members in the geographic area of her home in order to limit driving long distances.’ However, Swank testified that even if she were assigned members closer to her home, she still might have to sit in the car for long periods of time due to traffic or bad weather and still might experience flare-ups due to changes in the weather. Swank therefore agreed that assigning her members closer to her home would not adequately address her concerns.  Accordingly, because Swank did not propose a reasonable accommodation to CareSource that would address her stated limitations, her interactive-process claim fails as a matter of law.” 

  This case shows how important it is for an employer to ask an employee to outline in writing any health restrictions and make a specific request for accommodation.  Here the plaintiff boxed herself in by listing so many restrictions that it would be nearly impossible for the company to find a job which would meet all the restrictions.  When plaintiff tried to walk some of the restrictions back, contending that she was not really all that restricted, the employer correctly held her to her written representations and held her doctor to them as well.  The case also shows how important it is to list the essential functions on a job description.  It is worth the time to get the job description right, which CareSource did here in stating that driving and traveling were essential functions.

The case can be found at Katherina Swank v. CareSource Management Group Corporation, 32 AD Cases 1731 (6^th Cir. 2016).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

 Many employers have a policy of mandatory post-injury drug testing.  Those policies must now be reconsidered and largely jettisoned. The underpinning of the new OSHA policy on drug testing is the belief that blanket post-injury drug testing policies deter proper reporting of injuries.  On May 12, 2016 OSHA published new final rules against discrimination and injury and illness reporting.  The new rule became effective August 10, 2016.  The rule itself does not mention blanket drug testing policies, but the Comments to the rule make clear OSHA’s position.

The way OSHA gets to drug testing is through Section 1904.35(b)(1)(iv) which prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness.  While the evidence seems threadbare that employers retaliate against employees who report work injuries by requiring post-accident drug testing, employers have to deal with the new rule, like it or not.

Here is the new standard contained in the Comments to the rule.  “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”  Employers rightly question how they will develop the expertise to know when drugs are contributing to an accident. The Comments suggest that it would not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  That sort of testing, in the view of OSHA, “is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.”

Another harm that OSHA sees in drug testing is that it can be perceived as punitive or embarrassing to the employee and therefore likely to deter injury reporting.  OSHA states that “this final rule does not ban drug testing of employees.  However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”

So how can an employer perform post-incident drug testing while at the same time convincing OSHA that it is not doing this to deter reporting of injuries or illnesses?  OSHA says that drug testing which complies with a requirement of state or federal law or regulation is fine because the motive of the employer will be considered non-retaliatory. But those examples of drug testing do not address the issues most employers face.

OSHA adds the following opaque comment: “Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”  What “reasonable possibility” means is anyone’s guess at this point in time.  Questions abound on how an employer will be able to acquire in the short window of time following an accident sufficient information to make a decision to drug test under the “reasonable possibility” standard?  A huge percentage of workers’ compensation accidents are unwitnessed, and drug use is widespread in our society generally.  One can argue that there is always a reasonable possibility that drugs may be involved in work injuries, but clearly OSHA is looking for something beyond broad generalities like this.  The Comments provide no examples of what OSHA is looking for.  The likely effect of this rule will be to deter employers from drug testing after work injuries, and ultimately this will make workplaces and workers less safe.

Employer groups will surely challenge this rule in federal court.  In the interim, employers should know that maximum penalties are now $12,000 per violation and over $120,000 for repeat violations. Given the new rule is now in effect, we recommend that employers, if they have not already done so, take a fresh look at their drug testing policies.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

The National Workers’ Compensation Defense Network (NWCDN) put on another great seminar

this month. The seminar was held at the Intercontinental Hotel on the Magnificent Mile in Chicago.

Seminar topics included traumatic brain injury, reducing/avoiding narcotics abuse, and negotiation

skills. Additionally, there was a regional break-out session to discuss medical issues specific to

different states. The seminar was sandwiched between two lively and engaging cocktail receptions,

and many attendees took the opportunity to see Chicago’s many sights, such as the John Hancock

Tower, museums, and the architecture boat tour.

The Division started work in September to convert a backlog of hard copy records to digital format.

The project apparently involves scanning 21,000 boxes of files– specifically, “millions of claim

files”. Once the project is complete, the Division hopes to see an improvement in data security, as

well as quicker and easier fulfillment of records requests.

The Division has extended the comment period for the rule proposing modification of the cap on

attorneys’ fees and withdrawal of representation, as well as the proposed modifications to forms

relating to attorneys’ fees, attorney representation, and attorney withdrawal from representation.

If you’d like to comment on the rule proposals or proposed form revisions, please submit your

written comments by 5:00 p.m. Central time on October 4, 2016. Written comments may be

emailed (Rulecomments@tdi.texas.gov) or physically mailed to: Texas Department of Insurance,

Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel MS - 4D,

7551 Metro Center Drive, Suite 100, Austin, Texas 78744-1645.

The Division has also issued a notice that comments that were submitted via email between 8/01/16

and 9/19/16 may not have been received, and is encouraging you to resubmit your comment if it was

submitted via email during that time-frame.

The Division has determined that any interest or discount provided for in the Act shall be at the rate

of 4.11 percent. The method for computing the interest rate is based on the treasury constant

maturity rate for one-year treasury bills issued by the United States Government, as published by

the Federal Reserve Board, detailed in Texas Labor Code §401.023. This new interest rate is

effective beginning 10/01/16, through 12/31/16. The rate in effect for the previous period (7/01/16

through 9/30/16) was 4.03 percent.

The Division has set the state average weekly wage (AWW), maximum weekly benefit, and

minimum weekly benefit rate for 10/01/16 through 9/30/17 dates of injury. The state AWW has

been set at $912.69. The maximum weekly benefit rate is set at $913, and the minimum weekly

benefit rate is set at $137.

The maximum and minimum weekly benefit rates for dates of injury from 10/01/15 through 9/30/15

were $895 and $134, respectively.

A table showing maximum and minimum weekly benefit amounts for all dates of injury after

1/01/91 is available on the Texas Department of Insurance website at

www.tdi.texas.gov/wc/employee/maxminbens.html.

The Division is evaluating whether it is necessary to request social security numbers on certain

forms, and is accepting public comments on these proposed revisions. The Division’s website

includes a full list of forms that have been identified as warranting either: (1) removal of the social

security number field entirely (e.g. DWC-2, DWC-25, DWC-31, DWC-33, DWC-35, DWC-45M,

DWC-46, DWC-48, DWC-49, DWC-51, DWC-54, DWC-55, DWC-56), or (2) requesting only the

last four digits of the social security number (e.g., DWC-6, DWC-24, DWC-32, DWC-45A, DWC-

47, and DWC-52). The revisions would apply to both the English and Spanish versions of the forms.

If you’d like to comment on the proposed revisions to the forms, the Division has asked that you

submit your written comments by 5:00 p.m. Central time on October 4, 2016. Written comments

may be emailed (Rulecomments@tdi.texas.gov) or physically mailed to: Texas Department of

Insurance, Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel

MS - 4D, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744-1645.

This month the Oklahoma Supreme Court struck down the controversial “opt out” provision of its

workers’ compensation law. The provision had allowed employers to “opt out” of Oklahoma’s

workers compensation system and write their own plans, establishing terms for what injuries would

be covered, how workers would be compensated, which doctors workers could see, and providing

for a dispute resolution process.

In a 7-to-2 ruling, the Court held that the provision is an unconstitutional “special law” conferring

employers the ability to provide inequitable treatment for their injured employees, stating that the

provision “creates impermissible, unequal, disparate treatment” for those workers, and a violation

of the Oklahoma Constitution.

At this time, Texas is the only state that allows employers not to carry workers’ compensation.

We bid farewell to Judge Phillip Brown, who retired as Hearing Officer with the Division of

Workers’ Compensation late last month. Judge Brown was a Hearing Officer in the Fort Worth

Field Office.

Judge Kara Squier, formerly at the Waco Field Office, has been transferred to Fort Worth to take

over some of its docket. The Division has hired attorney Amber Morgan as the new Waco Hearing

Officer following Judge Kara Squier’s transfer. Ms. Morgan formerly worked at Helton &

Associates in Waco as an advocate for injured workers. She is a graduate of Baylor Law School,

where she received her J.D. in 1999.