The News You Need for Feb. 14

Happy Valentine's Day! We love you so much that we've rolled out yet another good batch of news on WorkersCompensation.com

Workers’ Compensation and the Intentional Act Exception to the Exclusive Remedy Rule

Gary Wickert , Matthiesen, Wickert & Lehrer, S.C.

The quid pro quo premise underlying the social compromise known as workers’ compensation is simple: an employee injured at work receives no-fault medical expenses and wage replacement indemnity benefits and, in exchange, the employer is given protection from employee lawsuits and a statutory right to be reimbursed from the tortfeasor who caused the work-related injury – sometimes referred to as subrogation. This is the employee’s exclusive remedy against the employer, who enjoys immunity from tort liability for the injuries. The Exclusive Remedy Rule prevents injured employees from suing their employers and usually prevents culpable third parties from bringing a third-party action against the employer for contribution. Even though every state allows the employee to bring a lawsuit against “third parties” (persons or entities other than the employer or employee), workers’ compensation benefits are the sole remedy available to the employee. When the employee makes a third-party recovery, the employer’s workers’ compensation carrier is granted a statutory right of subrogation and/or reimbursement of the benefits it paid. If that were the end of the story, however, this article would not be necessary.

The Exclusive Remedy Rule has been under assault since the mid-20th Century, with trial lawyers’ lobby groups and labor organizations arguing strenuously that courts and legislatures should craft various exceptions to the rule. One such exception which has become quite common is allowing an injured employee to sue the employer for an intentional act or assault by the employer or a co-employee against the injured employee. For example, in Louisiana, this exception was created by the Louisiana Legislature in 1976. La. R.S. § 23:1032. In Texas, a cause of action for an intentional act is guaranteed to the employee by the Texas Constitution and cannot be taken away by the Legislature. Tex. Const. art. I, s 13;?Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665 (Tex. 1981). Additional confusion is created because some states differentiate between an employee’s pursuit of a tort claim against the employer and one against a co-employee.

Not all states took the bait, however. Many states still grant the employer exclusive remedy protection even when their actions constitute an intentional act or even gross negligence. In Alabama, the employer remains immune from suit even if it acts intentionally. Ala. Stat. § 25-5-11(a). Section 25–5–11 authorizes the injured employee to bring an action against “any party other than the employer” who is also legally responsible for the injury, and provides:

(b) If personal injury or death to any employee results from the willful conduct ... of any officer, director, agent, or employee of the same employer ..., the employee shall have a cause of action against the person....

In Ex parte McCartney Constr. Co., 720 So.2d 910 (Ala. 1998), an injured employee sued a co-employee and his employer for damages, alleging they intentionally and willfully failed to provide him with a safe workplace. The Supreme Court held that the employer was entitled to immunity, even in light of the alleged intentional act, while the co-employee was not. Despite this law regarding intentional acts by an employer, there is no clear answer in Alabama law regarding whether a workers’ compensation carrier is allowed to be reimbursed for its claim payments out of an employee’s recovery against a co-employee for committing an intentional act.

Today, at least 42 states provide for an intentional act exception to the Exclusive Remedy Rule. Alabama, Colorado, Delaware, Georgia, Hawaii, Iowa, Rhode Island, and possibly Idaho remain states which do not allow an injured employee to sue the employer or a co-employee even if there is an intentional act.

In states where a tort action is allowed by the employee against an employer for injuries caused by an assault or an intentional act, subrogation professionals want to know whether the employer or its workers’ compensation insurance company should be allowed rights of subrogation and/or reimbursement, such that it would effectively be receiving reimbursement for the workers’ compensation benefits it just got done paying, from its own insured – the employer. Over time, some states began to allow such rights of subrogation and/or reimbursement, while others have not. In an equally large number of states, the issue has yet to be decided. It is important for claims and subrogation professionals to know such rights are available to the insurance carrier, and when they are not. The concept of allowing an insurance company to recover benefits it pays under a policy of workers’ compensation insurance directly from its own insured is perplexing, and seemingly in violation of the Anti-Subrogation Rule.

The Anti-Subrogation Rule is a long-standing common law defense to subrogation. It states that a subrogated insurance company standing in the shoes of its insured cannot bring a subrogation action against or sue its own insured to recover its claim payments. Sometimes known as the “suing your own insured” defense, the Anti-Subrogation Rule was originally developed based on the logical premise that, because the carrier stands in the shoes of its insured, it would essentially be suing itself. Therefore, no right of subrogation can arise in favor of an insurance company against its own insured. Wager v. Providence Ins. Co., 150 U.S. 99 (1893). This seemingly simple concept has many tentacles, and each state has developed their own bodies of law regarding how and when the rule will be applied, setting forth numerous exceptions and rules regarding its application.

Notwithstanding the Anti-Subrogation Rule, because workers’ compensation is a statutory creation, some states willingly allow an employer or its workers’ compensation carrier to seek reimbursement from a tort damage payment made by the employer – its own insured – as a result of an intentional tort or an assault committed by the employer. States such as California straddle the fence by allowing the amount of compensation otherwise payable to the employee to be increased by 50%, together with costs and expenses not to exceed $250, where the employee is injured by reason of the serious and willful misconduct of the employer. Cal. Lab. Code § 4553.

In other states, such as Florida, the workers’ compensation carrier is allowed to seek recovery of its subrogation interest even out of a tort recovery by the employee against the employer. Jones v. Martin Electronics, Inc., 932 So.2d 1100, 1108 (Fla. 2006). States such as Idaho have not yet clearly answered the question.

Effective workers’ compensation subrogation requires a complete knowledge of all aspects of workers’ compensation law, and an aggressive recovery program must necessarily involve a carrier holding out its hand for reimbursement from an employer whose intentional acts caused the work-related injury. Knowing when and under what circumstances this can be done is an obvious necessity of successful subrogation.

The further claims professionals go down the subrogation rabbit hole, the less likely there is to be definitive law set forth which definitively allows or prohibits subrogation or reimbursement. This is certainly true when considering whether a workers’ compensation carrier can seek recovery from an employee’s tort damages obtained from an employer or co-employee following an intentional act or assault. Because workers’ compensation subrogation truly first came into existence in the late 20th Century, there are still many issues in many states which have not found their way up the appellate ladder and resulted in a definitive statement of the law. This is certainly the case when attempting to subrogate intentional acts. Your case may be the one which establishes the law in a particular state. Public policy should be on your side. The employee should not receive a double recovery—once from workers’ compensation benefits, he receives and again via tort damages obtained from the employer or a co-employee.

A 50-state summary of the law regarding subrogating against intentional act claims against employers can be found HERE. It details the law in every state regarding when and whether an employee can proceed with a lawsuit against an employer whose intentional act has resulted in a work-related accident. It also contains any available law or precedent with regard to whether the workers’ compensation carrier is also entitled to be reimbursed from such a tort recovery for its workers’ compensation lien.

If you should have questions regarding subrogating employees’ intentional act damage recoveries from an employer or co-employee or workers’ compensation subrogation in general, please contact Gary Wickert at [email protected].

Maximizing Function & Return to Work Explored at 20th Annual Workers’ Compensation Insurance ExecuSummit

Dr. Claire C. Muselman

Hartford, CT (WorkersCompensation.com) --?The 20th Annual Workers' Compensation Insurance ExecuSummit in Hartford featured a session on interdisciplinary strategies for optimizing function and facilitating a return to work. Jerrold L. Kaplan, M.D. was the distinguished speaker; he is the Medical Director of Outpatient & Workers Compensation Services at Gaylord Specialty Healthcare , Assistant Clinical Professor at Yale School of Medicine , and Assistant Clinical Professor at University of Connecticut Medical School. Dr. Kaplan delved into the complexities of spinal cord injuries (SCI) and traumatic brain injuries (TBI).

Dr. Kaplan had four primary objectives in his presentation. Firstly, he aimed to provide a comprehensive understanding of the demographics, mechanisms of injuries, and the critical role of interdisciplinary treatment in Spinal Cord Injury (SCI) and Traumatic Brain Injury (TBI) cases. Secondly, Dr. Kaplan discussed the cutting-edge rehabilitation technology available to enhance the lives of SCI and TBI patients. Thirdly, he addressed the pivotal question of when to utilize Work Conditioning versus Work Hardening to ensure the most effective approach to rehabilitation. Lastly, Dr. Kaplan illustrated the practical implementation of these strategies through a complex case study. He showcased how interdisciplinary approaches can maximize function and facilitate a triumphant return to work for individuals facing these challenging conditions.

Spinal Cord Injuries

Spinal cord injury is a critical concern in the United States, with an estimated 17,700 new injuries occurring each year. Currently, there are around 291,000 individuals living with spinal cord injuries. The demographic data from 2015 to 2022 reveals that the average age of those affected is 43, and 78% are men. The primary causes of injury include vehicular accidents (38.3%), falls (31.6%), violence (13.8%), sports-related incidents (8.2%), medical or surgical complications (4.6%), and others (3.5%). The distribution of injury levels shows that 47.2% have incomplete quadriplegia, 20.4% have incomplete paraplegia, 20.2% have complete paraplegia, 11.5% have complete quadriplegia, and 0.8% are classified as normal.

Timely treatment of spinal cord injuries resulting from trauma is crucial, requiring a range of medical interventions, neurological examinations, and surgical stabilization procedures if necessary. The continuum of care for patients includes long-term acute care hospitals, inpatient rehabilitation facilities, skilled nursing facilities, home care, and outpatient therapy.

Rehabilitation is a comprehensive and coordinated approach that involves physiatric assessment, physical therapy, occupational therapy, speech therapy, psychology, nutrition, respiratory care, and other disciplines. The process aims to prevent and treat complications during recovery, such as respiratory problems, skin issues, spasticity, and pain. Overall, a systematic approach is necessary for a successful recovery.

Dr. Kaplan emphasized the importance of delivering consistent, optimistic, realistic messages to SCI patients. Providing education and empowerment to individuals regarding their diagnosis is crucial to their recovery journey.

Traumatic Brain Injuries

Traumatic Brain Injuries (TBI) are a significant concern and can result from falls (40.5%), motor vehicle accidents (14.3%), being struck by or against objects (15.5%), assaults (10.7%), or unknown/other factors (19%). The Glasgow Coma Scale is used to assess the severity of TBI, which categorizes injuries as mild (GCS 13-15), moderate (GCS 9-12), or severe (GCS 3-8) based on the duration of the coma.

Traumatic Brain Injury (TBI) is a condition that can cause various impairments affecting cognition, physical function, and behavioral/emotional function. In addition, TBI can lead to complications such as dysphagia, malnutrition, skin breakdown, incontinence, endocrine dysfunction, seizures, and other injuries or processes. Therefore, following a comprehensive and interdisciplinary approach to TBI rehabilitation is crucial. Healthcare professionals, such as physiatrists, physical therapists, occupational therapists, speech therapists, and psychologists, work collaboratively to address these challenges. They design customized rehabilitation plans to target each TBI patient's specific impairments and complications, optimizing their function and quality of life.

Dr. Kaplan emphasized the importance of using specialized rehabilitation technology for patients suffering from spinal cord injuries (SCI) and traumatic brain injuries (TBI). Innovations like bionic exoskeleton technology, the ZeroG Gait & Balance System, the AlterG Anti-Gravity Treadmill, functional electrical stimulation (FES), KINESIQ, and the Bioness Integrated Therapy System (BITS) are crucial in improving patient outcomes.

Therapeutic recreation, adaptive sports, and adaptive equipment are essential in helping patients achieve success. Work conditioning and hardening programs prepare individuals for a successful return to work by tailoring the programs to the individual's job tasks, career aspirations, and employment goals. Rehabilitation professionals work closely with patients to set short and long-term objectives that align with their employment goals. These objectives encompass physical strength, cognitive function, and emotional well-being to ensure that patients are well-equipped to meet the demands of their jobs.

Concluding the session, Dr. Kaplan presented a case study about Eric, a young person who had to face various difficulties following a severe car accident. Eric, a firefighter at the time of the accident, managed to regain his strength and cognitive abilities by undergoing a comprehensive outpatient program, which included physical therapy, occupational therapy, and speech therapy. His successful return to work and normal activities highlighted the importance of interdisciplinary strategies and cutting-edge rehabilitation technology in maximizing function and promoting independence.

Dr. Kaplan's presentation provided valuable insights into the intricate world of SCI and TBI rehabilitation for healthcare professionals and stakeholders in workers' compensation insurance. He encouraged healthcare and insurance professionals to reconsider their approach to SCI and TBI rehabilitation and shift towards a positive transformation approach for those affected by these injuries. This paradigm shift would offer hope, support, and a brighter future for SCI and TBI patients on their recovery journey and their reintegration into the workforce.

Case Management Focus: Are Workers’ Compensation Case Managers Disruptors?

Anne Llewellyn MS, BCPA, RN, CMGT-BC, CRRN, BCPA, FCM

Sarasota, FL (WorkersCompensation.com) -- Workers Compensation case managers are disruptors! Yes, we disrupt the status quo. We ask questions, put our hands up, and say STOP when something is wrong.

In today’s complex healthcare system, we need disruptors to stop, listen, re-evaluate, and then bring the team together (including the injured worker and their family) to discuss revamping the care plan.

As a worker's compensation case manager, I have often been told I was a disruptor. Thank you, that is my job. If WE did not disrupt when we found something wrong or the injured worker needed to improve on the plan of care, why are we needed?

Think of ways to disrupt for the good of the injured worker, the employer, and the healthcare team. Here are two examples.

The injured worker is not improving, and no one can understand why. It is time for a second opinion. It is time to change therapies. In worker's compensation, time is money, and lost time for the injured worker and the employer is costly. When involved in a case, our role is to make sure there is progression of care. If we do not see it, we must find out why and suggest changes to the injured worker and the team.

The employer does not have light duty available. The injured worker can work, but nothing is available at his place of employment. In this example, we can look outside to see what else he can do or look at the employer’s situation and make suggestions—having the injured worker return to work, even if it is on light duty, is so essential in the recovery process.

If the injury was catastrophic, how will we help the patient return to gainful employment? Case managers can seek the help of vocational rehab to get an assessment done on what the injured worker might be able to do despite their disability. In case management, we think about the abilities vs. the disabilities. What can they do vs. what can they not do? Doing so opens doors, even if the work we find is a volunteer job, which could turn into a paying job with time. Helping injured workers find the resources they need is part of our work. We don't give up on people - we see their value and work to help others see it, too.

We listen. Yes, we listen – to the patient, the family, the employer, the healthcare team, and the adjustor/payer. We listen to understand everyone's point of view and then work to address each stakeholder. Everyone has a place in the system and needs something from it.

Our primary allegiance is to the injured worker and the family. They need our expertise and persistence to navigate the complex healthcare system. We lead by example and show them how to advocate for themselves to get the necessary care and resources.

Disruptors do not settle for the status quo – we want to ensure that all involved in the system participate in raising the bar and ensuring our roles are making a difference.

Are you a disruptor? Share an example of a situation where you used your skills to disrupt a problem going wrong.

I would love to draft an article on case managers as disruptors to show our value to complex situations. Email me if you have a story, and I will use it in a future article. My email is [email protected]!

Have a good week!

NNU Survey Finds Over 80% of Nurses Experience Workplace Violence

FJ Thomas

Sarasota, FL (WorkersCompensation.com) – According to a recent report from National Nurses United (NNU), the number of nurses experiencing violence in the workplace has increased dramatically within the last year, and many employers are failing to take action to prevent harm of their staff.?

According to the NNU report, 81.6 percent of nurses experienced some type of workplace violence during 2023. Around half of the nurses, at 45.5 percent, reported an increase of violence on their unit within the last year. At least 67.8 percent of nurses reported being verbally threatened, 38.7 percent have been physically threatened. Thirty-seven percent reported having been pinched or scratched, and 36.2 percent reported having been slapped, punched or kicked. Other methods of violence reported included having objects thrown at them (34.6 percent), verbally harassed based on sex or appearance (33.3 percent), exposure to bodily fluids (29.9 percent), and being touched inappropriately (19.8 percent).?

In a 2017 study of 42 inpatient hospitals, researchers found that when supervisors were given their incident and injury data and then worked with their staff to develop violence prevention protocols, the level of violent incidents dropped to less than half within 6 months of implementation.? At 24 months, researchers found the level of incidents dropped to a third of incidents.?

While studies show the success of violence prevention protocols, around 10 percent of the nurses polled stated their employer did not implement prevention measures, and around 13.7 percent were not sure if their employers implemented prevention measures. Around 62.8 percent of the nurses polled stated their employers provide training on workplace violence, and 31.7 percent reported that their employer provides a clear to way to report incidents.?

Only 29.5 percent of nurses reported that their employers had staff available at all times to respond to violent incidents. Seventeen percent of nurses stated their employers place additional staff to reduce the risk of violence, and 24.8 percent reported that their employers used security cameras, and 7.1 percent reported their employers used metal detectors as a security precaution.?

Only 26.8 percent stated that their employer utilized a flagging system to indicate patients with a potential increased risk of violence. Around 12.3 percent of nurses reported that their employers included nurses and other employees in their violence risk assessments.?

According to the survey, the nurses felt that their employers often did not respond appropriately to reports of workplace violence. Thirty-three percent of the nurses polled stated that their employer did not investigate what happened. Less than half, at 41.6 percent, stated that their employers did investigate and 25.4 percent stated they did not know if their employer investigated.?

Nearly half, at 48.9 percent, of the nurses polled stated that their employer did not provide access to counseling, and 23.4 percent stated they did not know if their employer offered counseling. Only 27.7 percent of the nurses reported employers who offered counseling.?

Thirty-eight percent of nurses reported that their employers did not train or retrain employees after a violent event, and 18.6 percent stated they did not know if their employer provided training. Forty-three percent stated their employers did provide training after a violent workplace incident.?

Over half of the nurses, at 59.3 percent, reported that their employers did not implement changes following violence on the job. Around 19.5 percent stated they were sure if their employer made changes, and only 21.2 percent of nurses reported that their employer did implement changes.?

Additionally, around 44.8 percent reported that their employer ignored reports of workplace violence. Twenty-nine percent of the nurses polled stated that their employer reprimands or blames employees for reporting incidents, and 16.9 percent reported their employers discouraged employees from reporting violence on the job.?

The level of violence combined with the lack of appropriate responses by employers has nurses feeling the impacts of workplace violence. While 18.5 percent reported no injury or side effects, over 65.3 percent reported anxiety, fear, and increased vigilance. Over a third at 33.4 percent reported physical symptoms that impacted their job, and 27.4 percent stated that they had difficulty working in the environment that reminded them of the incident. Only five percent filed workers’ compensation claims, 22.9 percent took time off or reduced their work hours.? Over 3.7 percent report a physical injury that prevents them from working, and 9.7 percent report psychological effects that kept them from working. Around 19.2 percent changed their job, and 37.2 percent considered leaving nursing altogether.?

The American Hospital Association (AHA) has been strong advocate of the Safety from Violence for Healthcare Employees (SAVE) Act, which was introduced earlier last year. According to the AHA Fact Sheet, 44 percent of nurses reported physical violence in the workplace, and 68 percent reported verbal abuse.?