McAfee employee benefits attorney Brandon Long and benefits litigation attorney Mark Spencer advised private employers who choose the health plan option to wrap workers' comp coverage into their existing health plans, so that the benefit will be governed by Employee Retirement Income Security Act (ERISA) federal law and not state law.
Under ERISA, federal judges determine cases based on the administrative record, Spencer said.
“There's no jury and little or no discovery allowed, so you can save hundreds of thousands of dollars in legal costs,” he said.
Fulkerson and colleague Roberta Fields detailed exclusions to compensable injuries, including injuries: caused by drug use; incurred while traveling to and from work; resulting from a non-employment related assault, like two guys fighting over a girl at work; occurring before or after employment or when employment services are not performed; or caused by the natural results of aging.
Fields said the last circumstance was a “big catchall” and that she's not sure how employers will prove that. She expects an increased focus on baseline medical exams and pre-employment physicals, though she cautioned employers not to require the latter of a potential employee whose job doesn‘t require much physical activity.
Other exclusions include injuries resulting from horseplay, those occurring in parking lots or common areas, and on work breaks unless the break is inside the employer's facility and authorized.
For years, lower-back and other soft-tissue injury claims have been the bane of employers, Fulkerson said.
“Today, if an employee is willing to say ‘I hurt,' they typically get money,” he said.
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Workers' comp reform highlights
• The workers' compensation commission must notify employers within 10 days of a claim being filed. If contested by the employer, 60 days are allowed for discovery and medical evaluation. The parties are given 10 days notice for hearing.
• Temporary total disability (TTD) is limited at 70 percent of employee average weekly wage, not to exceed 70 percent of state average weekly wage for 104 weeks. If an employee has a temporary partial disability (TPD) and is able to perform alternate work offered and the wage is less, the employee is paid 70 percent of the difference for up to 52 weeks. If the employee refuses alternate work, no benefits are paid.
• Permanent partial disability (PPD) can't exceed a rating of 100 percent of any body part or the body as a whole. The employee is paid 70 percent of weekly wage, not to exceed $323 per week for a maximum of 350 weeks.
• TTD generally can't exceed eight weeks for nonsurgical soft tissue injuries. Claimants can't draw TTD if they are collecting unemployment benefits, unless TTD exceeds employment benefits. Workers' comp benefits are reduced dollar for dollar for employer-paid benefits received under group disability or accident policies.
• Attorney fees for a contested claim generally may not exceed 10 percent of a TTD or TPD compensation, or 20 percent of PPD, permanent total disability (PTD) or death compensation. If the employer makes a written offer to settle PPD, PTD or death compensation, and the offer is rejected, the fee is capped at 30 percent of the difference between the amount of any award and the settlement offer. Under an optional ERISA-governed health plan, fees may be awarded at the discretion of the court or commission.