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HOTEL WORKERS AND WORKERS’ COMPENSATION: HOTEL WORKERS SUSTAINING INDUSTRIAL INJURIES AND WORKERS COMPENSATION: WHAT YOU NEED TO KNOW

Posted on September 2, 2020 by Edward Singer

Hotel Workers are at risk for injury. They have demanding jobs that are time sensitive. There are many tasks that they perform that can cause musculoskeletal disorders. In addition, some workers use tools and materials which can place them at risk for skin and respiratory injuries.

There was a study awhile ago which analyzed work injuries in the Hotel Industry. Moving forward from the study, you can see how the industry has dealt with the problem of their high rate of workers’ compensation claims. At the time, the study found that the Hotel Industry was at high risk when compared to others. Disparities in the US Hotel Industry Susan Buchanan, MD, MPH, * Pamela Vossenas, MPH, Niklas Krause, MD, PhD, Joan Moriarty, MS, Eric Frumin, MA, Jo Anna M. Shimek, MS, Franklin Mirer, PhD, CIH, Peter Orris, MD, MPH, and Laura Punnett, AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 53:116–125 (2010)

This article will discuss Hotel Workers, their tasks, their rates of work injuries and the tactics that Risk Management has used to address the high rate of work injuries.

Why Should Hotel Employees Be Concerned?

Any time an Industry is subject to significant amounts of work injuries, Risk Management will take measures to reduce work injuries. These measures may impact Hotel Employees and how they perform their work assignments. Additionally, it may impact how Injured Workers will be treated after claims have been reported.

Why Are Work Injuries in the Hotel Industry Important?

When the study was done, it was noted that “[w]ithin the US hospitality industry, hotels, and motels employ 1.8 million workers [USBLS, 2007b].” Supra.

At the time, the study reported the significant number of work injuries that occur at Hotels. “In the United States, hotel workers are nearly 40% more likely to be injured on the job than all other service sector workers. Hotel workers also sustain more severe injuries resulting in more days off work, more job transfers, and more medically restricted work compared to other employees in the hospitality industry [USBLS, 2005]. Supra.

What is the Service Industry?

The Service Industry is part of the employment/business sector that provides customer services and occasionally provides goods. The Service Industry does not manufacture products.

Examples of the Service Industry include food services: i.e., McDonalds, Starbucks, and Taco Bell, retail, i.e. Target, Walmart and Food-4-Less, transport, i.e. Greyhound and Southwest Airlines, and distribution, i.e. Fed-Ex, UPS and DHL.

Manufacturing and Raw Materials are the other employment/industrial sectors.

What is the Hotel Industry?

The Hotel Industry is considered as part of the “Hospitality Industry”. The term “Hospitality Industry” includes additional employers such as food service, drink service, event planning, theme parks and transportation.

Who are Hotel Workers? What Do They Do? What Types of Labor Makes Them at Risk for Injury?

Hotel Workers have many titles and perform various tasks. Hotel Workers have many job titles such as bartender, banquet server, cashier, chef, cook, dishwasher, door person, host, hostess, housekeeper, lobby attendant, pot washer, room attendant, and stewards.

Hotel tasks can be broken down into five distinct categories. These are Housekeepers, Banquet Servers, Stewards/Dishwasher, Cooks/Kitchen Workers and Other.

What Tasks Do Housekeepers Perform?

”Housekeepers perform guest room cleaning including making beds, vacuuming floors, cleaning shower walls and bathroom fixtures, dusting furniture, and pushing carts.” Occupational Injury Disparities in the US Hotel Industry Susan Buchanan, MD, MPH, * Pamela Vossenas, MPH, Niklas Krause, MD, PhD, Joan Moriarty, MS, Eric Frumin, MA, Jo Anna M. Shimek, MS, Franklin Mirer, PhD, CIH, Peter Orris, MD, MPH, and Laura Punnett, AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 53:116–125 (2010)

NOTE: Housekeepers perform physically arduous work.

What Tasks Do Banquet Servers Perform?

“Banquet servers provide food service such as carrying plated food from the kitchens to the customers, dispensing drinks, and supplying food to cafeteria and buffet services.” Supra.

NOTE: Banquet Servers perform physical activities which are time sensitive.

What Tasks Do Stewards/Dishwashers Perform?

“Stewards retrieve, sort, load/lift, unload, and return dishes, glasses, pots, utensils and silverware, and provide these items by pushing carts to cafeteria and buffet lines. In addition, stewards maintain cleanliness in food preparation areas.” Supra.

NOTE: Stewards/Dishwashers, like the Banquet Servers, perform physical activities which are time sensitive.

What Tasks Do Cooks/Kitchen Workers Perform?

Cooks lift, weigh, measure, mix, cut and grind food ingredients; they cook these ingredients and compose salads and other food for serving Supra.

NOTE: Cooks/Kitchen, like the Banquet Servers, perform physical activities which are time sensitive. Likewise, they may also be involved in shift work.

What Tasks Do Others Perform?

All remaining jobs were categorized as “other.” Jobs classified as “other” were those that did not share similar job tasks or exposures with the other four key job categories. These included lobby attendant, cashier, door person, host/hostess, among others. Supra.

NOTE: Other work may involve various physical activities as well as perform shift work.

What Are the General Types of Injuries that Hotel Workers Can Sustain?

Most commonly, Hotel Workers are subject to musculoskeletal injuries.

The study cited that “[a]mong Las Vegas hotel room cleaners, the prevalence of self-reported pain associated with work was 75% during the previous year [Scherzer et al., 2005]; 63% had had severe or very severe low back pain just in the prior month [Krause et al., 2005].” Supra.

Additionally, Hotel Workers who work with water or other liquids or who use gloves as subject to “wet-work” injuries. These injuries are to the skin, i.e. contact dermatitis. For an article discussing “wet work,” click here. Further Hotel workers may work with products that contain fragrances. These products may cause respiratory injuries such as “occupational asthma.” For an article discussing “fragrance-related injuries,” click here.

What Did the Study Tell Us About Hotel Workers? As an Injured Worker, Should It Matter?

The study found that with respect to certain Hotel Employees that women had a greater rate of work injuries than men. It found that there were some racial differences in that certain ethnic groups had greater injury rates than whites.

NOTE: With respect to these rates, it is this writer’s opinion that more data should be explored. Non-English-Speaking workers may stay with a work position that is physically harming them longer than English Speaking workers. One reason for them remaining on such as a job is that that their lack of English Fluency may limit their ability to obtain less physical employment. As a result of this, they may at a greater risk of injury. Thus, the ethnic group itself may not really be the issue. It may be more the ability of worker to seek other employment that is less injurious in nature.

How Does the High Rate of Work Injuries Impact Hotels?

Industries with high rates of workers’ compensation claims will seek to reduce their injury rates. Since the study, Hotel Risk Management has already taken steps to reduce injuries. For those who visit hotels, it is apparent that what has been done. Reducing staff hours and tasks translates into lower rates of injuries. Many Hotels, under the auspices of being “green” encourage patrons to reuse towels and decline daily “room service.” In doing so, labor time of laundry service and housekeeping is reduced. Long term, if staff hours are reduced, staffing may in turn be reduced. In sum, less employees.

With respect to food service workers, many catered events feature buffets and no longer offer table service. Further, beverage stations are offered so that attendees can get their own coffee, juice, etc.. Again, less labor hours translates to less risk of injury. In sum, less labor hours, less employees.

Additionally, Risk Management may engage in more surveillance of their employees via cameras to prove or disprove work injuries. NOTE: This may be most effective with respect to specific injuries and not so much with respect to cumulative trauma injury claims.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

SUN EXPOSURE AND WORKERS’ COMPENSATION: WORK INJURIES FROM OCCUPATIONAL SUN EXPOSURE: WHAT YOU NEED TO KNOW

Posted on August 20, 2020 by Edward Singer

Many Workers spend significant periods of time working outdoors. This outdoor exposure during working hours can be a cause of Occupational Skin Disease. If a cause of one’s Skin Disease is partially caused by work-related exposure, the Injured Worker is then able to make a claim for workers’ compensation claim and may be entitled to monetary compensation, temporary disability and permanent disability benefits, medical care, vocational rehabilitation benefits and death benefits.

“Currently, it is estimated that one in five Americans will develop skin cancer during their lifetime, the majority diagnosed with nonmelanoma skin cancer (NMSC), which includes basal cell (BCC) and squamous cell (SCC) carcinomas.” Skin cancer as an occupational disease: the effect of ultraviolet and other forms of radiation Claudia C. Ramirez, MD, Daniel G. Federman, MD, and Robert S. Kirsner, MD

This article will discuss the nature of Sun Exposure Skin Diseases, What Occupations Are at Risk for Occupational Skin Disease, Statutes that Relate to Skin Disorders, and Case law discussing Skin Conditions.

What are Sun-Related Skin Diseases?

Sun Exposure can lead to various skin conditions. These include cancerous, pre-cancerous, and non-cancerous conditions. These can include photoaging -solar lentigo, wrinkles and loose or irregular skin. Pre-Cancerous Skin conditions include Actinic Keratosis. Cancerous Conditions include Basal Cell Carcinoma, Squamous Cell Carcinoma and Malignant Melanoma.

What Occupations are at Risk for Occupational Skin Disease?

Occupations at risk for Occupational Skin Disease include the following jobs: cabin attendants, construction workers, farmers, landscapers, physical education teachers, pilots, police officers, postal workers, roofers, telephone line workers, waterman, and welders.

What is Exposure? Are There Different Exposures?

“The damaging effects of ultraviolet radiation accumulate over the years. In general, the risk of developing skin cancer increases with the amount of time spent under the sun and the intensity of radiation. The intensity of radiation varies according to the season of the year, time of day, geographic location (latitude), elevation above sea level, reflection from surfaces (e.g., white sand or concrete, water, snow), stratospheric ozone, clouds, and air pollution.

Recent studies have focused on the effects of intermittent (short-term, occasional) sun exposure in comparison to chronic (long-term) exposure. It appears that the type of exposure may influence the type of cancer that develops. For example, intermittent solar exposure may be an important factor leading to the onset of basal cell carcinoma of the skin. …

In contrast, the relationship between squamous cell carcinoma and solar UVR appears to be quite different. For squamous cell tumours, high levels of chronic occupational sunlight exposure, especially in the 10 years prior to diagnosis, results in an elevated risk for this cancer in the highest exposure group.” https://www.ccohs.ca/oshanswers/diseases/skin_cancer.html

Besides Typical Sun Exposure, Are There Other Suspected Causes of Occupational Skin Disease?

Yes. Irradiation, Nonionizing Microwave Frequencies, Cosmic Radiation, and Ionized Radiation are also suspected causes of Occupational Skin Disease.

“Although sun exposure is thought to be a common etiologic factor, some studies have suggested alternative explanations, such as irradiation from the welding arc in welders, nonionizing microwave frequency radiation from radar use in police officers, and cosmic radiation in pilots and cabin attendants. Disturbances in circadian rhythm have also been suggested as having a role in the increased risk of skin cancer in pilots and cabin attendants and should be elucidated in future studies. Occupations in which there is an increased exposure to ionizing radiation, such as radiation technicians and radiologists, showed an increased risk for melanoma and NMSC. Surprisingly, there is a paucity of publications regarding skin cancer incidence amongst lifeguards, ski instructors, professional cyclists, and other professionals who spend time outside as part of their jobs. Ample evidence exists, however, that amongst selected occupations skin cancer is an important occupational disease.” Skin cancer as an occupational disease: the effect of ultraviolet and other forms of radiation Claudia C. Ramirez, MD, Daniel G. Federman, MD, and Robert S. Kirsner, MD

Are There Any Labor Code Sections which Support Claims of Occupational Skin Disease?

Yes. With respect to the present issue of Sun-Related Occupational Skin Disease, there is the Cancer presumption which applies to both certain Law Enforcement and Safety Officers. This is Labor Code Section 3212.1. For an article discussing the Cancer Presumption, click here.

Is There Case Law Concerning Sun Exposure?

Yes. A sample of sun-related cases include issues such as: Defendant claiming non-industrial sun exposure as the source of nasal cancer. See County Sanitation District No. 2 vs. WCAB (2004) 69 C.C.C. 1463; Defendant disputing CT injury date in which there was a claim of multiple CT injury dates. Injury was claimed as skin cancer caused by sun exposure. City of Vista vs WCAB (2017) 83 C.C.C. 95; also see City of Corona vs. WCAB (1997) 62 C.C.C. 1693. In the matter, “Applicant was treated by Shira Young, M.D., and was evaluated by James Lineback, M.D. Dr. Young felt that there was a probability that sunlight played a role in the development of Applicant’s skin cancer. Dr. Lineback opined that it was reasonably probable that the skin lesions were directly related to sunlight exposure.”

Are There Anything a Worker Should Do?

In my years of representing Injured Workers, one of the most tragic cases I ever had was a melanoma case. While the melanoma initially appeared in a location on the body which was not exposed to the sun, the cancer turned out to be fatal. Despite seeking advanced medical treatment, the worker died shortly after he opened his claim.

Early detection of the disease is of import. If you do so, there is a chance for a successful recovery.

For all those who work in the sun or with skin issues, you should check your skin on a regular basis and seek medical attention. Per the Centers for Disease Control, “[a] change in your skin is the most common sign of skin cancer. This could be a new growth, a sore that doesn’t heal, or a change in a mole. Not all skin cancers look the same.

For melanoma specifically, a simple way to remember the warning signs is to remember the A-B-C-D-Es of melanoma—“A” stands for asymmetrical. Does the mole or spot have an irregular shape with two parts that look very different? “B” stands for border. Is the border irregular or jagged? “C” is for color. Is the color uneven? “D” is for diameter. Is the mole or spot larger than the size of a pea? “E” is for evolving. Has the mole or spot changed during the past few weeks or months?”

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WORK INJURIES CAUSED BY LACK OF SLEEP: EXCESSIVE DAYTIME SLEEPINESS AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Posted on August 18, 2020 by Edward Singer

Workers being tired on the job can cause problems. One term used to describe this tiredness is “Excessive Daytime Sleepiness.” “Excessive Daytime Sleepiness” can be a causative factor towards work-related injuries. Injuries caused by EDS can range from minor to fatality.

“Sleepiness/fatigue reduces performance capability induced by slow information processing, increased periods of non-responding or delayed responding during attention-based tasks, increased reaction times, reduced vigilance, reduced accuracy of short-term memory, and accelerated decrements in performance with time on-task. This leads to human error and potentially increases the risk for accidents.” Excessive Daytime Sleepiness and Risk of Occupational Injuries in Non-Shift Daytime Workers Melamed, Oksenberg, Sleep Vol 25. No. 3 2002

California Workers’ Compensation Law is a “no fault” system. Therefore, an injury caused by EDS, in most circumstances, would be considered as work-related. If the injury is considered work-related, the Injured Worker would be entitled to workers’ compensation benefits which include monetary compensation for temporary and permanent disability, medical care, vocational rehabilitation benefits and death benefits.

This article will discuss how EDS can be a causative factor for work-related injuries.

What is the Law Concerning Accidents at Work That Have Non-Industrial Causes?

The Supreme Court in Employers Mutual Liability vs. IAC (1953) 18 C.C.C. 286, addressed the issue of a Worker who had a seizure at work and injured himself. The cause of the seizure was unknown. The medical term such a condition is idiopathic.

The Court noted that ”[i]t is settled in this state and elsewhere that an injury suffered from a fall on the employer’s premises, in the course of employment, from a height or on or against some object, arises out of the employment and is compensable, even though the fall was caused by an idiopathic condition of the employee.”

It was noted that “[t]he fact remains that he injured himself while at work, on his employer’s premises, the injury being the striking of his head against the floor, a condition incident to the employment. His condition may have been a contributory cause but it was not the sole cause of his injury. It would not be doubted that if an employee fell to the ground or floor in the course of his employment, and as a result was injured, the injury would be compensable whether the cause of the fall was a slippery or defective floor, or was due to nothing more than his innate awkwardness or even carelessness.”

In sum, an EDS episode is analogous to an idiopathic seizure. As a result, if there was an injury that was a result, i.e. such as striking the ground or a machine with one’s body causing orthopedic injury.

What Is Excessive Daytime Sleepiness?

Excessive Daytime Sleepiness (EDS) denotes a propensity to doze off or fall asleep unintentionally during the day, particularly in passive situations. Excessive Daytime Sleepiness and Risk of Occupational Injuries in Non-Shift Daytime Workers Melamed, Oksenberg, Sleep Vol 25. No. 3 2002

What are Sleep Disorders?

There are a large variety of sleep disorders. These include Circadian Rhythm Disturbances, Idiopathic Central Nervous System Hypersomnia. Narcolepsy, and Sleep Apnea.

Is there a Relationship Between Excessive Daytime Sleepiness and Sleep Disorders? Does It Matter?

Yes. The relationship between Sleep Disorders and Excessive Daytime Sleepiness is not parallel. One can suffer from various sleep conditions and not be subjected to Excessive Daytime Sleepiness. This fact will be shown important when looking at the scientific data.

“Neurologic disorders associated with increased daytime sleepiness include central sleep apnea syndrome, narcolepsy, idiopathic hypersomnia, periodic limb movement disorder, restless leg syndrome, depression, brain tumors, posttraumatic hypersomnolence, multiple sclerosis, encephalitis and post encephalopathy, Alzheimer’s disease, Parkinson’s disease, multiple system atrophy, and neuromuscular disorders with sleep apnea. “ AMA Guides for Rating Permanent Impairment 5^th Edition

Does Excessive Daytime Sleepiness increase the Risk of Occupational Injury?

Non-shift daytime workers with EDS, even if physically active, may be at a twofold risk of occupational injury compared with their counterparts without EDS. Excessive Daytime Sleepiness and Risk of Occupational Injuries in Non-Shift Daytime Workers Melamed, Oksenberg, Sleep Vol 25. No. 3 2002

If I there is a Sleep Disorder and Poor Sleep Habits, Will That Means an Increase Risk of Occupational Injury?

Sleep disorders (per se) and poor sleep habits do not confer an increased risk of occupational injury unless they are associated with EDS. Supra.

How Does One Know or Test Whether They have Excessive Daytime Sleepiness?

While the AMA Guides for Rating Permanent Impairment 5^th Edition notes that “It is expected that the diagnosis of excessive daytime sleepiness has been supported by formal studies in a sleep laboratory,” there is a more time and cost effective way of initially addressing Excessive Daytime Sleepiness.

The Guides note that “[t]he clinician can evaluate sleepiness with the Epworth Sleepiness Scale, which assesses the likelihood of dozing (never = 0 to high chance = 3) in different situations: sitting and reading, watching television, sitting in a public place, riding as a passenger for an hour, taking an afternoon nap, sitting and talking to someone, sitting after a nonalcohol lunch, and stopped in traffic in a car. A score of 10/24 is equal to excessive sleepiness, or class 2 impairment.” AMA Guides for Rating Permanent Impairment 5^th Edition

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NEEDLE STICK AND SHARP INJURIES AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Posted on August 11, 2020 by Edward Singer

Many Workers encounter needles and sharps in the workplace. Many Workers are punctured or are cut by these items in the workplace. These punctures or cuts can give rise a work-related injury.

Per the CDC, “[o]ccupational exposure to bloodborne pathogens from needlesticks and other sharps injuries is a serious problem, resulting in approximately 385,000 needlesticks and other sharps-related injuries to hospital-based healthcare personnel each year. Similar injuries occur in other healthcare settings, such as nursing homes, clinics, emergency care services, and private homes.”

Needlestick and Sharps Injuries can occur in many different settings as well. These items are used by Individuals who have ongoing medical treatment. They are frequently used by these Individuals while at home, at work or while traveling. They are even used to treat pets. These Individuals may have ongoing medical conditions such as allergies, arthritis, cancer, diabetes, hepatitis, HIV/AIDS, infertility, migraines, multiple sclerosis, osteoporosis, blood clotting disorders, and psoriasis, which necessitate the usage of either a needle or sharp. CDC.

This article will discuss needle stick and sharps, how work injuries can occur, what occupations are risk for needle stick or sharp injuries, what Labor Code Sections may assist Injured Workers who sustain needle stick or sharp injuries and caselaw concerning needle stick or sharp injuries.

What Types of Medical Conditions Can Rise from Needle Sticks or Sharp Injuries?

Per the CDC, “[s]harps injuries are primarily associated with occupational transmission of hepatitis B virus (HBV), hepatitis C virus (HCV), and human immunodeficiency virus (HIV), but they have been implicated in the transmission of more than 20 other pathogens.” Beyond, blood borne transmissions, there are many Workers who have a strong emotional reaction towards being stuck or punctured. These emotional reactions can give rise to a Psychiatric Injury. It is noted that “On needlestick claims, at least one treatment with an ICD-9 code in the psychological range was observed on 94 of the 3,338 nonhealthcare worker claims or about 2.8% of these claims.” However, the research noted that they could not “be sure that the psych counseling is directly related to the needlestick and not some other aspect of the claim.” Infection Risk from “Sharps” Injuries for Non-healthcare Workers Frank Neuhauser, University of California, Berkeley Glenn Shor, Department of Industrial Relations Rebecca Jackson, Department of Industrial Relations Report for: Commission on Health and Safety and Workers Compensation March 26, 2015

If an Injured Worker, as a result of a cut or puncture develops any of these conditions, they may make a work injury claim. Such a workers’ compensation claim will enable the Worker to claim benefits which can include monetary compensation, medical care, vocational rehabilitation and death benefits if indicated.

How Does It Happen?

Percutaneous exposures to blood and body fluids all through infected needle stick and sharps accidents are the main occupational hazard for morbidity and mortality from infections with blood borne pathogens. Magnitude and associated factors of needle stick and sharps injuries among health care workers in Dessie City Hospitals, north east Ethiopia Assen Wubshet, Kifle, Wubayehu, Aregawi BMC Nursing Vol 19, Article Number 31 (2020)

What Are Sharps?

Per the FDA, Sharps is a medical term for devices with sharp points or edges that can puncture or cut skin.

Items that can puncture or cut skin. This can include such items as auto injectors, broken vial preparations, connection needles, connection sets, infusion sets, lancets, needles, razors, scalpel, scissors, syringes, trocar puncture needle, and vacuum blood collection needle,

Where Are Sharps Encountered in the Workplace?

Per the FDA, Sharps “may be used at home, at work, and while traveling to manage the medical conditions of people or their pets, including allergies, arthritis, cancer, diabetes, hepatitis, HIV/AIDS, infertility, migraines, multiple sclerosis, osteoporosis, blood clotting disorders, and psoriasis.”

Per the FDA, these items may be disposed at homes, at work, at school, traveling or public places such as hotels, parks, and restaurants. Further, they can be disposed in household, public trash, and recycling bins.

Cleaners, Correctional Personnel, Dental Assistants, Dentists, Emergency Medical Technicians, Firefighters, Healthcare Workers, Homecare Workers, Housekeepers, Janitorial Workers, Lab Technicians, Landscapers, Nurses, Medical Assistants, Midwives, Paramedics, Physicians, Police Officers, Sanitation Workers, Security Personnel, and Sewage Workers.

“In California, almost 4/5ths of work-related needlesticks are reported to workers in the healthcare sector, a sector which employs 12% of California workers.” Infection Risk from “Sharps” Injuries for Non-healthcare Workers Frank Neuhauser, University of California, Berkeley Glenn Shor, Department of Industrial Relations Rebecca Jackson, Department of Industrial Relations
Report for: Commission on Health and Safety and Workers Compensation March 26, 2015. “Workers in the healthcare industry have a risk of needlestick injuries of about 1.8 needlesticks per 1,000 workers per year. That is about 14 times higher than the average for all other industrial sectors (0.13/1,000 workers).” Supra.

With respect to non-healthcare workers, “[n]eedlestick injuries, outside the healthcare setting are uncommon. About 1-in-10,000 workers outside healthcare will experience a needlestick in a given year. For specific industries (education, food & hospitality, and waste management) and occupations (custodial services and protective services), this risk is substantially higher. However, even in these specific industries and occupations, the risk of a sharps injury is l less than 1/1000 workers/year.” Supra.

Are There Any Labor Code Sections Which Assists Workers With These Claims?

Yes/ There is a Blood Borne Disease Presumption for certain Law Enforcement and Safety Personnel. See Labor Code Section 3212.8. For an article discussing the presumption, click here.

Is There Caselaw Involving Needle Stick Injuries?

Yes. Needle Stick Injuries can be a source of contention. See Rask vs. Fountain Valley, 2013 Cal.Wrk. Comp P.D. 279 (Panel Decision) which which there was a Nurse with multiple dates alleged for injury to liver, Hepatitis C. See Garcia vs. Felix Rivera 2020 Cal.Wrk. Comp P.D. LEXIS 35(Board Panel Decision) Dispute over amputation as being industrial when Applicant, a diabetic, stepped on needle while at home.

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Compromise & Release Settlements in Workers’ Compensation

Posted on August 7, 2020 by Edward Singer

There are many Injured Workers who seek to settle their Workers’ Compensation cases via a Compromise & Release (C & R.)

A C & R settlement is commonly referred to as a “buy-out” of the case. It is referred as a “buy out” because many times C & R settlements include a “buy out” of the Injured Worker’s entitlement to lifetime medical care. Lifetime medical care, for worker’s compensation purposes, means “lifetime care” for the body parts that are considered work-related. Lifetime care does not include non-industrial body parts. Medical Treatment Awards in workers’ compensation do not provide all encompassing healthcare services that a regular insurance policy would provide.

There are many Injured Workers who are also Medicare Recipients or are considered as Medicare Eligible. As a result, Medicare may require such an individual to include a Medicare Set Aside to be part of their Compromise & Release.

This article will discuss what a Medicare Set Aside is, the goal of Medicare Set Asides, how Medicare Set Asides operate, how Medicare Set Asides can be structured, and why certain Injured Workers need to have Medicare Set Asides. Note: This article will not discuss MSA threshold amounts for submission for CMS approval.

What Is Medicare? Who is a Medicare Recipient?

Medicare is the federal health insurance program for ”[P]eople who are 65 or older Certain younger people with disabilities People with End-Stage Renal Disease (permanent kidney failure requiring dialysis or a transplant, sometimes called ESRD)” Medicare.

In sum, Injured Workers over 65, Injured Workers who have filed and awarded Social Security Disability, and Injured Workers who have permanent kidney failure requiring dialysis or transplant all may have received a Medicare Card. For Social Security Disability Insurance (SSDI) Recipients, there is a delay period of 24 months from the date of eligibility to receive Medicare Insurance.

What is a Medicare Set Aside (MSA)?

A Workers’ Compensation Medicare Set Aside Arrangement is frequently abbreviated as either WCMSA or MSA.

“A WCMSA allocates a portion of the WC[Workers’ Compensation] settlement for all future work-injury-related medical expenses that are covered and otherwise reimbursable by Medicare (“Medicare covered”). When a proposed WCMSA amount is submitted to CMS for review and the claimant (who may or may not be a beneficiary) obtains CMS’ approval, the CMS-approved WCMSA amount must be appropriately exhausted before Medicare will begin to pay for care related to the beneficiary’s settlement, judgment, award, or other payment.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

In sum, monies that have been placed in the Medicare Set Aside must be used before Medicare will pay for the work-related body parts that were subject to the settlement.

Example: Injured Worker settles his Back Injury by Compromise & Release for $50,000.00, with $5,000.00, for a self-administered Medicare Set-Aside. Applicant went in to have back surgery for which the facility charged $10,000.00. The Injured Worker would have to pay his $5,000.00 from his MSA prior to Medicare paying (or adjusting) the balance.

It is noted “[o]nce the CMS-approved set-aside amount is exhausted and accurately accounted for to CMS, Medicare will pay primary for future Medicare-covered expenses related to the WC injury that exceed the approved set-aside amount.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

Why is the Goal of the Medicare-Set Asides?

“The goal of establishing a WCMSA is to estimate, as accurately as possible, the total cost that will be incurred for all medical expenses otherwise reimbursable by Medicare for work-injury related conditions during the course of the claimant’s life, and to set aside sufficient funds from the settlement, judgment, or award to cover that cost.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

Note: In doing so, Medicare can avoid being forced to pay all of an Injured Worker’s treatment which the Workers’ Compensation Insurance was responsible for paying. In the past, Injured Workers would get their settlements and immediately turn to Medicare to pay for every expense.

How Can Medicare Set Asides Be Structured?

Medicare Set Asides can be structured in two ways: lump sum and structured. “WCMSAs may be funded by a lump sum or may be structured, with a fixed amount of funds paid each year for a fixed number of years, often using an annuity.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

Structured MSAs are usually done through the employment of an annuity company which will issue the payments. Some of the Structured MSAs will guarantee the payments regardless of whether the Injured Worker is alive. Other Structured MSAs pay out over time only if the Injured Worker remains alive. This is something that can be negotiated.

Who Generates the Medicare Set Aside Amount?

In most circumstances, there are companies that specialize in preparing MSAs.

The goal of the amount of the MSA is that it must “must take Medicare’s interest with respect to future medicals into account.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

What is the Basis for Medical Set Asides?

“Medicare as Secondary Payer “Medicare Secondary Payer” (MSP) is the term used when the Medicare program does not have primary payment responsibility on behalf of its beneficiaries—that is, when another entity has the responsibility for paying for medical care before Medicare.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

How is Medicare a Secondary Provider and Not Primary?

“Medicare is secondary payer to group health plan insurance in specific circumstances, but is also secondary to liability insurance (including self-insurance), no-fault insurance, and WC[Workers’ Compensation.] An insurer or WC[Workers’ Compensation] plan cannot, by contract or otherwise, supersede federal law, for instance by alleging its coverage is “supplemental” to Medicare. WC[Workers’ Compensation] is a primary payer to the Medicare program for Medicare beneficiaries’ work-related illnesses or injuries.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

When an Injured Worker has Medicare and a Workers’ Compensation Case, Who are They Supposed to Treat With?

“Medicare beneficiaries are required to apply for all applicable WC benefits. If a Medicare beneficiary has WC coverage, providers, physicians, and other suppliers must bill WC[Workers’ Compensation] first. In order to comply with 42 U.S.C. § 1395y(b)(2) and § 1862(b)(2)(A)(ii) of the Social Security Act, Medicare may not pay for a beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

If the Workers’ Compensation Claim Is Denied or the Body Part Denied, Who Pays for the Treatment?

If responsibility for the WC [Workers’ Compensation] claim is in dispute and WC[Workers’ Compensation] will not pay promptly, the provider, physician, or other supplier may bill Medicare as primary payer. If the item or service is reimbursable under Medicare rules, Medicare may pay conditionally, subject to later recovery if there is a subsequent settlement, judgment, award, or other payment. (See 42 C.F.R. § 411.21 for the definition of “promptly” with regard to WC[Workers’ Compensation].) Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

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