From the Bench

These are exciting and challenging times for myself and the other Administrative Law Judges as the appellate courts give us guidance and direction on the application of the Workers' Compensation Act. We are seeing an increase in the number of hearings, particularly in the area of the extent of disability to scheduled members. Even more cases will be heard once other appellate issues are decided. One of my primary goals (and I am sure the other judges would agree) is the expeditious and effective resolution of disputes and delivery of benefits. To make hearings more efficient, it is imperative that these hearings (trials) be run more efficiently. An easy way for a hearing to be streamlined is if all parties understand the stipulation process at the beginning of each hearing. Here are some suggestions based on what I have noticed from the bench over the past two plus years:

Claimant - Advise the Commission ALJ at the hearing as to what specific benefits are being sought. State all of the requested body parts, even if some of them are denied or reserved. If TTD benefits are requested, give the starting date and end date, unless continuing benefits are sought. State the basis for the payment of the requested TTD benefits. Stipulate (if possible) to the compensation rates. If PPD benefits are being requested, provide the accrual date to the judge. If you have any legal arguments, provide the ALJ with the statutory citation.

Respondent - Respond to all of the issues raised by the Claimant. Advise whether the claim is admitted or denied in whole or in part. Any legal defenses should be cited appropriately to the pertinent statute (if applicable). If there are any issues with the accrual date or the compensation rates, these should be brought to the attention of the ALJ.

All parties should attempt to provide the Commission with all relevant medical and factual information in a neat and orderly fashion. This includes treating medical records, historical medical records from prior injuries, accident reports and prior workers' compensation cases. The parties should advise the ALJ during early pre-hearing conferences if additional witnesses need to be called or if any preliminary issues need to be addressed (i.e. mediation, appointment of an independent medical examiner, Insurance coverage, etc.).

I appreciate the professionalism and legal skills of the members of the bar that appear before me. Although I have been active in this area of the law for over three decades, I now have a new perspective from the bench. With an increase in case activity undoubtedly on the horizon, I would recommend reviewing the above suggestions. This should helpfully help make the system more efficient and productive.

Michael T. Egan
Administrative Law Judge

Medical Report

Medical Director Jay P. Cannon

Commissioner Young has assembled a group of 16 stakeholders to discuss and review possible revisions
of the Medical Fee Schedule, as required by statute. Two meetings have been held and a final meeting is scheduled for August. The group plans to have a proposal for the Commissioners to review in the Fall. The agenda for the Annual Worker’s Compensation Conference has now been completed. There will be educational opportunities for physicians, case managers, and attorneys provided during the two day meeting.

Legislative Update

It was a frustrating legislative session for the Workers’ Compensation Commission. The Title 85A cleanup bill was not heard by the Senate Judiciary Committee, though there appeared to be no opposition to its provisions. That language was then placed in a workers’ compensation omnibus bill in the House, but that bill was caught in a last week of session political stand-off, and was not allowed to come out of conference.

The 30 or so provisions of the clean-up bill were non-controversial, did not affect workers’ compensation benefits in any way, or have any effect on overall policy. They merely streamlined, simplified or clarified existing provisions. An example would have to been to allow the commissioners to appoint an existing administrative law judge, who had not presided over any of the previous hearings on the claim, to the en banc panel when a commissioner is absent or conflicted out of a case. This would have saved money by eliminating the need for hiring special commissioners.

The other frustration this session was the funding mechanism for the Workers’ Compensation Commission. This bill would have restored the Commission’s funding from the $3M limitation placed in statute in 2015, to its actual $5M operating budget. The Commission is not funded from general revenue, but from the tax on workers’ compensation premiums. Because it is a tax, those funds are restricted to workers’ compensation purposes, and cannot be used for any other state purpose. Fortunately, the Commission has managed, through efficient operations and severely conservative hiring, to set aside funds this fiscal year with the intent to replace its antiquated and inefficient case management system. That project will now have to be delayed for another year and those funds used to enable operations for this fiscal year.

Mark Liotta, Commissioner

What is Behavior-Based Safety?

Part 2 of a 3-part Series

Clif Cypert, Human Resources Director
MHR, SPHR, SHRM-SCP

We left off last quarter with an introduction to Behavior-Based Safety in general terms and the benefits of such a program. This quarter, we’ll dive into the details a little more. You may remember the definition provided in the previous issue: Behavior-Based Safety (BBS) is the “application of the science of behavior change to real world problems" or "A process that creates a safety partnership between management and employees that continually focuses people's attentions and actions on theirs, and others, daily safety behavior.” Simply put, behavior-based safety is the practice of determining actual safe behaviors and rewarding those behaviors. But here are the tools we use to facilitate continuous improvement in safety:

1.  Identification of Critical Behaviors: Identify either the behavior you want to continue or discontinue.

2.  Gather data on the behaviors: Observe whether the person(s) are performing the behavior or not.

3.  Provision of Feedback: Communicate to the person(s) what behavior you want.

4.  Utilization of Data to remove barriers: Find out from the data what behaviors occur, how frequently, where they occur and what you need to do to correct the behavior.

So, in practical terms, let’s look at an example. One of my favorite pet peeves in a manufacturing environment is riding on the forks of a forklift. It seems to be one of the favorite shortcuts taken by employees and supervisors alike but if things go wrong, the consequences can be deadly. Here’s a simple example of applying these tools:

1.  Identification of Critical Behavior: I want to discontinue employees riding on the forks of a forklift.

2.  Gather data on the behaviors: I observe Joe riding on the forks of a forklift.

3.  Provision of feedback:

Safety Manager: “Hey Joe, can I talk to you for a second?”

Joe answers:   “Sure, what’s up?”