State News : Ohio

“The Calfee Corner” - Recent Successes Before the Industrial Commission of Ohio

William F (13-351333) - No “Substantial Aggravation” of Pre-Existing Conditions, (April 27, 2015)

A construction worker and former college football lineman had injured his right knee at work in 2000.  This Claim was eventually settled in 2011.  In 2013 while employed by a Calfee client, he slipped off a plank into a shallow trench.  He did not seek medical treatment until 9 days later.  The Claim was allowed for a “Right Knee Strain” and Calfee appealed.  The original independent medical examination had noted the badly degenerated condition of the worker’s knee and the likelihood he would require a knee replacement unrelated to the alleged injury.  The worker then alleged that the knee strain had caused him to alter his gait and as a result he had sustained a “Lumbar Sprain/Strain.”  Testimony established that his gait was unchanged and instead was due to his weighing 300 pounds.  The supposed back injury was denied and the worker appealed to the court of common pleas.  While a Motion to Consolidate was pending in court, the worker attempted to achieve his ultimate objective, having his knee replacement paid for by workers’ compensation.  “Substantial Aggravation” of 4 degenerative conditions of the right knee wasdenied by the Industrial Commission.

Glen K (13-826115) - Alleged Adjustment Disorder Due to Being Caught Stealing from EmployerNot Industrial Injury (May 19, 2015)

 A chemical worker on the first shift of a Sunday night/Monday morning arrived at work feuding with his ex-wife.  He failed to follow proper procedures in checking whether liquid chemicals had solidified.  When it turned out they had not, he sustained second degree burns to various body parts.  The worker returned to light duty 2 months later and then full duty 2 months after that.  The worker was changed to a new job which gave him access to the facility after hours.  He consulted a psychologist 13 months after returning to full duty and was diagnosed him with “Adjustment Disorder with Mixed Anxiety and Depressed Mood” supposedly due to the accident.  The Employer then discovered that the worker had been stealing sophisticated metal molds and selling them for scrap.  He was terminated and reported to the local authorities.  The worker was convicted of Aggravated Theft and given a 6 month jail sentence with work release privileges.  The Employer’s Psychologist and the State Psychologist found “...multiple non-occupational stressors” rather than the industrial injury responsible for the worker’s mental state.

Lesbia S (13-302988) - Temporary Total Disability Compensation Terminated Due to Claimant’s Refusal of Modified Duty Off Site Light Duty Job Offer (January 22, 2015)

Claimant’s request for temporary total disability compensation was denied based on Claimant’s refusal to accept a restricted duty work offer.  The Claimant had been paid salary continuation through August 18, 2015.  The Claimant filed a motion requesting temporary total commencing August 19, 2014.  The Employer did not have light duty available on-site, so it set up modified duty off site to accommodate the Claimant.  On September 8, 2014, Claimant was given a bona fide offer of light duty employment based on the restrictions given by the doctor who performed Employer’s independent medical examination. The light duty job offer letter was sent by U. S. mail and certified mail and in both English and Spanish.  The light duty job offer included the title of the position offered, the details of the job, Claimant’s restrictions, and the date Claimant was scheduled to return to work.  Claimant failed to appear.  At the administrative hearings before the Industrial Commission Claimant testified that her doctor reviewed the light duty job offer and told her that she could not work.  Calfee successfully argued the treatment notes of Claimant’s chiropractor and Pain Management Specialist included impairments and symptomsnot related to the allowed conditions.   

Court Decisions of Note

Intentional Tort

“Transfer cars” operated by workers had safety bumpers which cut power  when compressed.  A maintenance worker investigating a malfunctioning conveyor motor  was struck by a transfer car whose operator’s view was obstructed.  The worker alleged the transfer car  safety device must have malfunctioned and was entitled to the malfunctioning safety device presumption in Pixley v. Pro-Pak Industries, Inc. 142 142 Ohio St. 3d 203 (Dec.2014).  The trial court granted Pro-Pak summary  judgment but the court of appeals reversed.

The Ohio Supreme Court reversed, finding that the Claimant failed to prove that Pro-Pak deliberately removed or disabled the transfer car safety bumper.  Pro-Pak utilized extensive post-accident testing of the transfer car bumpers.  The Claimant’s experts relied on OSHA video footage showing dragging bumpers which failed to halt transfer cars.  The  Court never reached the question of  whether  the intentional tort statute  creating the presumption for safety device removal was restricted to machine operator injuries or  also applied to nonoperators.  Failure to address this issue led three justices to dissent.

VSSR

In State ex rel. Richmond v. Indus. Comm'n, 139 Ohio St. 3d 157 (Apr. 2014), the Claimant sought an additional award for a violation of a specific safety requirement (VSSR) after he fell from a ladder that he improperly secured. As a defense to the VSSR allegation, the Employer pointed to OSHA regulations in order to show that the safety gear was indeed appropriate.  The Hearing Officer denied the VSSR. The Claimant then argued that the Industrial Commission abused its discretion by relying on the OSHA regulations when deciding the VSSR.  The Claimant contended that the appropriate specific standard to be applied in deciding  a VSSR  was whether or not Ohio's specific safety requirements (SSR) were violated.

The Ohio Supreme Court disagreed with the Claimant’s position explaining that "although the Industrial Commission may not adopt external standards as thesole basis for a violation of a SSR award, it may look to those standards asrelevant factors to inform its interpretation of a SSR and its determination whether the employer violated that SSR." (emphasisadded).  The Court ruled that the Commission's use of the OSHA regulation was appropriate.

Temporary Total

In State ex rel. Floyd v. Formica Corp., 140 Ohio St. 3d 260 (Aug. 2014), the  Industrial Commission denied a claim for Temporary Total Compensation applied for by a Claimant in 2010, almost ten years after the Claimant left his employment with the Employer.  During the intervening time, the Claimant had several surgeries and went through alternating periods of Temporary Total  and Maximum Medical Improvement.  The Commission determined that, based upon the fact that the Claimant never looked for work and applied for Social Security, the Claimant was no longer eligible to receive Temporary Total because he had abandoned the entire job market when he left the Employer and retired. The Claimant argued that the Industrial Commission's order was not supported by the evidence as he was not required to look for work while he was receiving Temporary Total and when he was not receiving compensation he still was not medically able to work.

The Ohio Supreme Court found that the Industrial Commission’s Order was indeed supported by the evidence. The Court noted  the Claimant was not required to apply for Social Security benefits; rather, this was a personal choice. If the Claimant intended to return to the workforce after leaving the Employer, he had no reason to file for retirement at that time.

In State ex rel. Bailey v. Indus. Comm'n of Ohio, 139 Ohio St. 3d 295 (May 2014), the Claimant contended that the Ohio Industrial Commission erred in relying on an older medical report to deny her temporary total compensation. The report, written  in 2009, stated that the Claimant had reached maximum medical improvement, and "...can perform without significant limitations at this time. However, this does not take into account the physical allowances in this claim ... and/or high levels of exaggeration and malingering measured on objective psychometric testing."   The Claimant asserted that the Commission abused its discretion when it failed to acknowledge later reports which were contrary to the 2009 report. The Franklin County Court of Appeals reviewed the reports and noted that the Claimant had given a different version of his medical history and withheld certain information from a different doctor. Additionally, no psychological testing was performed in preparing the second doctor’s report; instead, the doctor seemed to have based her opinion only on the Claimant’s history and complaints. The Court of Appeals overruled the Claimant’s objections.

On appeal, the Ohio Supreme Court affirmed the judgment of the Court of Appeals, noting that the Commission "is exclusively responsible for determining the weight and credibility of the evidence." The Court rejected the notion that the 2009 report was stale, explaining the "content of the report and the question at issue are more relevant than the date the report was issued." The Court ruled that the later report failed to establish any new and changed circumstances that would lessen the probative value of the earlier report, so it was appropriate for the Commission to rely on it.

In State ex rel. McCormick v. McDonald's, 2015-Ohio-123 (Jan. 2015), a Claimant  asserted that her Temporary Total was improperly terminated based upon an incomplete medical report stating she had reached Maximum Medical Improvement.  The Claimant believed her physician's request for authorization of three additional steroid injections after the original report rendered the medical report incomplete and unreliable based on the reasoning of State ex rel. Sellards v. Indus. Comm., 108 Ohio St.3d 306 (2006). 

The Court refused to extend the reasoning ofSellards to this case, explaining:"Sellards was narrowly decided based on its unique facts. This  Court's conclusion that the doctor's opinion was premature was narrowly based on two factors:  the bureau's error or delay in paying for Sellards' psychiatric prescriptions and Dr.Levy's lack of awareness of the contemporaneous approval of Dr. Spare's treatment plan when he issued his report. Those factors do not appear in this case." The Court ruled that the subsequent request for and approval of a treatment plan does not automatically render a doctor's opinion on maximum medical improvement premature.

PTD

In State ex rel. Sheppard v. Indus. Comm'n, 139 Ohio St. 3d 223 (May 2014), the Claimant suffered a work-related back injury in 1997. Subsequent MRI results indicated that the condition was resolved, and an intervening injury occurred in 2002.  In 2006, the Claimant filed a motion to reactivate his claim in order to pay for additional medical treatment. The Industrial Commission determined that the treatment was related to the Claimant’s degenerative disc disease, a non-allowed condition, and denied his motion. 

In 2010, the Claimant filed an application for Permanent Total Disability.  Following a hearing on the application, a Staff Hearing Officer granted it without addressing the intervening injury.  Eventually the Ohio Industrial Commission exercised its continuing jurisdiction and reversed the Staff Hearing Officer's ruling. The Claimant contended that the Ohio Industrial Commission’s action was an abuse of discretion, asserting that the hearing officer was not required to address the intervening injury. The Ohio Supreme Court ruled that, since the Ohio Administrative Code requires the hearing officer to specifically determine whether the Claimant established proximate cause, the Industrial Commission has the right to exercise its continuing jurisdiction to determine proximate cause.  The Court contended that an intervening injury could eliminate the industrial injury as the proximate cause of the inability of the Claimant to work and thus destroy the Claimant’s eligibility for Permanent Total Disability compensation. The Court held therefore that there was no abuse of discretion by the Ohio Industrial Commission.

Loss of Use/Amputation

In State ex rel. Varney v. Indus. Comm'n of Ohio, 2014-Ohio-5510 (Dec. 2014) a Claimant had four fingers on his left hand amputated in a work-related accident in 1983.  Three of the Claimant’s fingers were completely reattached, and a fourth was partially reattached.  Because the fingers did not regain their full function, the BWC awarded the Claimant compensation for the amputation of his fingers.  Twenty years later, the employee sought an additional award for the total loss of use of three of his fingers. The Industrial Commission denied the claim, concluding that there was no legally valid medical report in the record supporting the loss of the functional use of these fingers.

Upon appeal, the employee argued that,  when analyzing the loss of use of his fingers, the Industrial Commission should have applied the standard for the loss of use of a thumb articulated inState ex rel. Rodriquez v. Indus. Comm'n.,2009-Ohio-4834 (10th Dist.). In a split decision, the Court of Appeals concluded that the reasoning inRodriguez regarding the loss of use of a thumb did also apply to the loss of use of a finger.

The Ohio Supreme Court, however, held that "in the absence of a statutory numerical measure for the total loss of a finger, the Industrial Commission must apply the accepted and mandated method for measuring loss of use—a physician's opinion on impairment or extent of loss."  The Court found that it was entirely appropriate for the Industrial Commission to rely on a physician's report that stated the employee had some functional use of his fingers.

Due Process

In State ex rel. Evert v. Indus. Comm'n of Ohio, 2015-Ohio-120 (Jan. 2015), the Claimant alleged that she had been denied due process of law when a Commissioner on the Ohio Industrial Commission who did not attend the Claimant’s hearing voted on the Claimant’s Motion for Reconsideration.  The Court found that the Commissioner was not required to attend the hearing in order to vote on the matter being heard, as the issue presented by the Claimant was a purely legal one that could be settled as a matter of law without judging a witness' credibility.   The Commissioner had discussed the matter with an experienced Staff  Hearing Officer who had been present at the hearing and who summarized the testimony and arguments presented.  The commissioner had reviewed the entire claim file.   The Court determined the Commissioner had conducted a meaningful review of the matter sufficient to satisfy due-process concerns.

RECENT DECISIONS OF THE FULL INDUSTRIAL COMMISSION

Injured Worker Denied Wage Loss for Not Verifying On-Line Searches as Required

The Full Commission vacated the SHO Order granting Wage Loss Compensation to an Injured Worker working part-time and denied Wage Loss Compensation.  The Injured Workers had not verifyied any of her on-line job searches as required by Ohio Adm. Code sections 4125-1-01 (D)(1)(d) and (E)(1)(c).  The Injured Worker was restricted to only working 30 hours per week and worked part-time within this restriction.  She documented 42 job contacts during the requested wage loss time period.  Twenty-two job contacts were through the internet, which had to be verified with a copy of the on-line posting and the application submission.  The Injured Worker did not verify any of her on-line searches as required.  The Commission found the limited number of contacts (20) over a seven-week period insufficient to constitute a consistent, sincere and best attempt to obtain suitable employment.

Failing to Complete Required Post-Accident Drug Test Constitutes Voluntary Abandonment Terminating Temporary Total Disability Compensation

Injured Worker’s claim was allowed for cervical strain.  Injured Worker’s employment began on November 4, 2013 and prior to the start of his shift, he verified acknowledgment of the Employer’s Substance Abuse Policy.  The Acknowledgement included a “Statement of Understanding,” which notified Injured Worker that his employment was contingent upon the successful completion of drug and alcohol screen tests. Injured Worker was terminated on November 5, 2013.  He had sought treatment on November 5, 2013 and was asked to submit a urine sample for drug testing.  Affidavits were submitted confirming that Injured Worker provided a sample of insufficient quantity, which precluded temperature verification.  The Injured Worker refused a second sample.  The Commission found that a suitable sample was implicit in the Employer’s Substance Abuse Policy.  By providing a urine sample that could not be verified, the Commission found that Injured Worker failed to successfully complete the required post-accident drug test.  Specifically, the Commission found that the Employer’s written work rules and policies clearly required post-accident drug testing and appropriately warned Injured Worker that failure to successfully complete such testing was grounds for termination.  Injured Worker acknowledged his receipt of the policies.  Accordingly, Injured Worker’s  termination constituted a voluntary abandonment of the workforce and temporary total disability compensation was denied.

Psychiatric Consultation Denied When Hearing Officer Manual Memo M1 Criteria Not Met

The Full Commission denied a request for authorization and payment for psychiatric consultation.  Hearing Officer Manual Memo M1 states that psychiatric consultative fees are payable in claims withno allowed psychiatric condition when the consultation is necessary for pre-operative work-up or as a resource in planning future treatment.  Injured Worker did not submit evidence of either criteria and the request was denied.

NEWS FROM OHIO BWC

CSI Ohio Style

Ohio’s CSI -- Common Sense Initiative, was established in Executive Order 2011-01K.  Under this initiative, agencies, including the Bureau of Workers' Compensation, are directed to balance the critical objectives of all regulations with the costs of compliance by the regulated parties, and use plain language.  Every proposed rule under CSI is accompanied by a business impact analysis.

On 5/22/2015, under the auspices of the CSI, O.A.C. 4123-3-36, the Provisional Treatment Pilot Program, became effective.  Based on “common sense,” this provision allows the BWC to immediately allow claims for specific medical conditions which have a historical record of being allowed whenever requested in a claim and also having low medical costs in relation to that diagnosis.” The diagnoses and their ICD 10 codes that fall within this program are listed in Appendix A, which runs five (5) pages!

To prepare medical providers for this new program, also called “The Enhanced Care Program,” the BWC began provider education programs in April.  In addition to education, the BWC has promised enhanced fee payments.  Also, the Physician of Record (POR) will have greater treatment latitude in the first 60-days of the claim along with a reduced administrative burden.   On the other side, the BWC will require participating providers to take a more active role in managing these claims.

A provider in this pilot program is allowed to consider the claimant in a more “holistic view” -- and can develop a care plan which can include other medical providers such as the claimant’s own primary care physician, specialists and perhaps physical therapists to address issues/injuries not officially allowed in the claim but that the physician of record believes to be causally related to the workplace injury. And, last but not least, the POR can consider the Claimant’s general health issues that may impact the Claimant’s optimal path back to work.  This plan would need to be submitted to the appropriate Managed Care Organization (MCO)  within 5 days but the POR could begin treatment and expect appropriate reimbursement if the care plan falls within the ODG treatment guidelines.  The Bureau of Workers' Compensation expects the physician of record to serve as “quarterback” for managing claimant’s care to receive the enhance compensation.

BWC ICD-10 changeover

The changeover from ICD-9 to ICD 10 codes is set for October 2015.  The Bureau of Workers' Compensation is on-track to be compliant with this mandate.

NEWS FROM INDUSTRIAL COMMISSION

Industrial Commission Happenings:  Really New!

After being on the 7th Floor of the Office Building since 1979, the Cleveland Industrial Commission has moved to the 5th Floor.  Among the heralded features of the 5th Floor is handicapped accessibility.  The hearing rooms are spacious.  The corridors are wide enough to accommodate at least 2 wheelchairs at the same time.  The most important innovation is restrooms on thesame floor as the Industrial Commission.  This removes the necessity of having to descend to the Plaza level (you can guess how this is designated on the elevator button) in order to respond to calls of nature.  (The status of a couch in the Women restroom remains unclear.)  Although the 5th Floor started holding hearings on May 19, 2015, the official grand opening was June 3, 2015 with cake, punch, and Industrial Commissioners.  From a decorative perspective, the color scheme is bright orange (perhaps inspired by the Cleveland Browns) with windows providing views of Lake Erie, the Cuyahoga River, and downtown Cleveland.  The aesthetic compares favorably with an airport waiting room, quite an improvement after 36 years on the 7th Floor.

LEGISLATIVE NEWS

Mental-Mentals Mired in Legislature

Bills recognizing Post-Traumatic Stress Disorder without a physical injury for “first responders” (police, fire, emergency medical, etc.) are currently on hold.  A first problem was defining the eligible class of workers and whether this created equal protection problems for those who were ineligible but witnessed the same kind of event.  A second was the government entities who employ first responders became concerned about the potential costs.

Legislative Bill and Rumor Mill

Various bills heard by the House Insurance Committee proposed tweaks to Ohio’s unique Workers’ Compensation System such as providing health care more quickly to Injured Workers and assisting them with return to work after 45 days of missed work.  Among these bills was one which turns out to be the latest iteration of cyclical attempts over the years to privatize the system.  Whether privatization ever makes it out of committee will be dependent on support in the dominant Republican Caucus.  As to the politics, one legislator was quoted as saying: “Everybody’s a fiscal conservative and a lot of people ran on the concept that they wanted to do some type of privatization of workers’ comp...”  It is not clear at present if this will become a legislative priority.

A Special Contribution to the “Calfee Update” by Michael F. Brown, Account Executive, Benefits 1 Group

mikeb@benefits1group.com

Ohio Workers’ Compensation – A New Way of Paying Premium

 Prospective Premium Payment

As previously communicated in our prior updates, the dominating story for Ohio employers for Summer 2015 is that the Ohio BWC has now begun their transition to having employers pay premiums in advance, consistent with most other insurance payment schedules.  

Included in the BWC’s transition to this new payment method is providing Ohio employers a total of 8 months of free WC premium, offered in the form of credits for the premium which would otherwise be due for the period January 1, 2015 through August 31, 2015.

·        As an aside, BWC’s posture is that payment is not complete until posted by BWC, even if payment is made online via EFT.  As posting may take “a few days”, BWC recommends paying premiums at least 3 days before the stated deadline, to avoid lapses in WC coverage.

 A brief summary of the key points in the prospective premium timeline is included below:

 May 2015

·        The BWC will send a letter to all private state fund employers, explaining the new processes.  This communique will also include an estimated payroll that BWC will use to generate the invoices issued for the 2015-16 rating year. (Public employers are on a different schedule; their transition to prospective premium payment will occur in Spring 2016)

·        The payroll used to estimate premiums for the 2015-16 rating year will be the amount that the employer reported from the period July 1, 2013 through June 30, 2014. If an employer believes their 2015-16 payroll will be significantly different than the BWC’s estimate, they may request the BWC to adjust the premium (either up or down.) 

 ·        The BWC will also default all employers to a six payment plan, which can also be altered to anywhere from 1-12 installments, by requesting same from the BWC.  Employers should carefully consider their options as each additional payment cycle establishes another deadline for making payment to avoid lapses in WC coverage.

 Jun 2015

·        In June 2015, invoices will not be issued because the BWC’s transition credit will cover this installment for this rating year only.  Going forward in June 2016 and beyond, an invoice will be issued, and payment will be due prior to July 1, 2016. 

 ·        In the future, an Ohio employer will be required to pay at least part of their annual estimated WC premium prior to the beginning of the rating year (July 1, or January 1 for public employers).

 Aug 2015

·        This invoice covers the period September 1, 2015 to October 31, 2015. Payment is due by August 31, 2015. At this time, employers must also report payroll for 6 months ending 6-30-15 by 8-31 (but pay $0). 

 ·        Timely reporting of payroll for the first half 2015 is extremely critical, as all premium credits (8 months’ worth) being offered as part of the transition will be forfeited if payroll for this period is not reported by the last business day of August 2015.

 Oct 2015

·        This invoice covers the period November 1, 2015 to December 31, 2015. Payment is due by October 31, 2015.

Dec 2015

·        This invoice covers the period January 1, 2016 to February 29, 2016. Payment is due by December 31, 2015 to avoid a lapse in WC coverage.

 Feb 2016

·        This invoice covers the period March 1, 2016 to April 30, 2016. Payment is due no later than February 29, 2016.

 Apr 2016

·        This is the final invoice for the July 2015 rating year, presuming that no changes to the BWC’s default billing schedule were requested.  The invoice covers the period May 1, 2016 to June 30, 2016, and payment is no later than April 30, 2016.

Aug 2016 // Filing & Reconciliation

·        Prior to August 15, 2016, employers must report actual payroll for the year ending June 30, 2016 to reconcile their WC account. 

·        If a credit balance results due to reporting less than the BWC’s estimated payroll, a credit to the employer’s WC account will accrue and be applied to future payments.  If additional premium is due to BWC, any amount due must be paid by the same August 15, 2016 date (note prior comment about BWC’s posting philosophy).

·        Timely reporting of this annual payroll is extremely important, as significant penalties apply to non-compliant employers.  Should actual payroll and any associated payment not be made by the August 15 deadline, the employer will be removed from any and all BWC programs for which they have enrolled for the July 2016 rating year.  This includes all group rating, deductible, retrospective rating or other alternative financing programs, as well as the BWC’s multiple incentive rebate programs.  Hence, the consequences of failing to comply with this deadline could amount to tens or hundreds of thousands of dollars.

Premium Rates Decreased 10.8%

In more good news for Ohio employers, the Bureau of Workers’ Compensation (BWC) will adopt a 10.8 percent overall rate reduction for Ohio private employers with approval from the BWC Board of Directors today. The change, effective July 1, is expected to bring a decrease in projected annual premium of $153 million, and bring private employer rate levels 21.4 percent lower than the rate levels in effect January 1, 2011.

"The environment for employers operating in Ohio is improving along with the state's economy, and BWC is certainly part of that story," said BWC Administrator/CEO Steve Buehrer. "We’ve targeted improvements that will yield positive improvements to Ohio's workers' compensation system, and are conducive to business growth. Lower rates, along with a focus on workplace accident prevention and care for those who are injured, all support the state’s continued economic recovery."

The reduction is possible due to a number of factors, including lower expected claim frequency, the impact of positive investment results on the State Fund, as well as the upcoming adoption of a prospective billing system. Details on prospective billing and the resulting one-time premium credit totaling $1.2 billion for private employers and local governments are available at bwc.ohio.gov.

The reduction is an overall statewide average. The actual premium paid by an employer will depend on expected future costs in their industry segment, their recent claims history, and participation in various premium credit and savings programs.

Revamped pharmacy program protecting health and safety of Ohio's injured workers

A new report details the success of the Ohio Bureau of Workers' Compensation (BWC) first-ever outpatient medication formulary, as well as future steps BWC will take to protect injured workers from deadly drug regimens.

Injured workers were prescribed 15.7 million fewer opiate doses in 2014 than in 2010, representing a 37 percent decrease. BWC implemented the closed formulary in 2011 to improve the efficiency and effectiveness of treatment, limit inappropriate uses of medications and lower prescription costs.

"Our goal is to ensure injured workers in Ohio are receiving effective, clinically grounded treatments that help them heal while protecting their well-being so they can regain their footing and return to work whenever possible," said BWC Administrator/CEO Steve Buehrer. "Prescription medications should assist in recovery following a workplace injury, and we’ve put safeguards in place because no one should suffer from addiction or an unintentional overdose while trying to get back on their feet."

The report was delivered by JohnHanna, BWC's pharmacy program director, during the fourth annual National RX Drug Abuse Summit in Atlanta, Georgia.Hanna provided the national audience an overview of the BWC formulary, and discussed the impact it’s had on drug and opiate use by injured workers since it went into effect in September 2011.

After implementing the formulary, BWC began refining coverage for opiates as well as coverage of muscle relaxants and anti-ulcer agents, which are also commonly overprescribed and misused. Over that period of time, prescriptions for muscle relaxants and anti-ulcer medications decreased by 72 percent and 83 percent.

"Our focus when implementing the formulary and making subsequent changes has been on the clinical rationale, and BWC's goal of ensuring the medications injured workers receive following their injury do not ultimately hinder their recovery," said Hanna.

Hanna stressed that injured workers can face risks beyond those posed by opiates. Moving forward, BWC will be targeting dangerous combinations of medications prescribed by multiple physicians. After detecting those at the highest risk, BWC will work with their physicians or make referrals to managed care organizations to ensure injured workers aren’t receiving medication combinations that can be deadly. BWC will be studying its data about injured worker medication and hopes to present early findings to its pharmacy and therapeutics committee this summer.

Ongoing improvements to the pharmacy program have also produced dollar savings. In 2014, BWC's total drug costs were 16 percent, or $20.7 million, less than in 2010. Opiate costs were down 36 percent ($19.9 million); muscle relaxant costs were down 78 percent ($3.3 million); and anti-ulcer costs were down 95 percent ($6.4 million).

With 859,000 open claims, BWC is the largest state fund workers' compensation insurer in the country. The agency paid $1.7 billion in total benefits during fiscal year 2014, including $662 million in medical spending and $109 million in pharmacy benefits.

San Allen Update

At press time, it appeared that the first payments related to theSan Allen v. Ohio BWC class action suit were beginning to arrive in employer mailboxes.  This is welcome news as the final step in settling the long-standingSan Allen v. Ohio BWC matter. 

Claim forms were issued last Fall to members of the class of employers who were not in a group rating program between 2001 and 2008.  The completed forms, once verified, entitled employers to their share of the $420 million settlement agreed to by the BWC. 

Michael F. Brown, ARM is an Account Executive with Benefits 1 Group.  Michael has been in the workers’ compensation and risk management industry for over 35 years. In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers to develop and maintain best-in-class strategies to workers’ compensation cost-containment and risk financing.

In his past experience, Michael served as a workers’ compensation and employee benefits manager for a multi-facility, self-insured employer.  Certified as an Associate in Risk Management (ARM), Michael applies an in-depth evaluation process to develop tailored solutions to the most complex workers’ compensation challenges.