NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
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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.
The Division has issued an updated list of health care providers restricted in the workers’
compensation system. The list includes enforcement actions against health care providers that
involve practice restrictions, doctors removed or suspended from the Designated Doctors List
(DDL), and health care providers removed from or denied access to the former Approved Doctors
List (ADL). Gary Pritchett, DC has been suspended from the DDL from 9/23/16 through 9/23/19.
Jerome Carter, MD was removed from the ADL indefinitely as of 9/20/16. Ray Altamirano, MD
was removed from the ADL through 7/19/18.
A full list of health care providers restricted in the workers’ compensation system can be found at
http://www.tdi.texas.gov/wc/hcprovider/status.html.