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Thomas A. Robinson on 2011 Year in Review: Top 10 Issues in Workers’ Compensation Law

January 31, 2012 (4 min read)
In this LexisNexis Emerging Issues Analysis article, Thomas A. Robinson analyzes the top 10 workers’ compensation events for 2011, with an eye to the hot button issues for 2012.
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> Lexis.com subscribers can access the complete commentary, 2011 Year in Review: Top 10 Issues in Workers’ Compensation Law. Additional fees may be incurred. (approx. 19 pages)
Robinson’s top 10 list covers:
1. Injuries to Telecommuters. Robinson analyzes recent case law, including a homebased employee who sustained an injury after tripping on her dog, an employee who died several days after he was found unresponsive and slumped over his desk in what amounted to an office in his home, an employee who took work home, worked late into the night, fell asleep at her desk, woke up the next morning to work again, but became ill and died of a pulmonary embolism, and an employee who glanced at her cell phone while driving and was involved in a car accident.
2. Opioid Abuse in Treatment of Injured Workers. Robinson states that within the workers’ compensation sphere, there appears to be significant variation in the use of opioids to treat injured workers. Robinson analyzes several different reports and then discusses recent cases that illustrate the costs being borne not only by employers and carriers, but by injured workers and their families.
3. Mental Injuries Within the Work Environment. While the workplace can still be fraught with danger, more and more these days American workers are not so much concerned with severed limbs or herniated discs as they are with the mounting levels of employment-related stress—both perceived and actual. This stress manifests itself in a host of ways. Some workers are able to “suck it up” and remain productive. Others, however, become partially or wholly debilitated. Robinson discusses how job-related stress and mental illness fit within the workers’ compensation system.
4. Dealing With an Aging Workforce. Between 2005 and 2010, the number of workers between the ages of 55- 64 increased 52%. Robinson discusses how employers and others should deal with an Aging Workforce.
5. Medicare Set-Aside Arrangements. The unsettled status of MSAs continues to cause uncertainty for workers’ compensation claimants, employers and carriers, as well as counsel for both sides. The minefields that must be maneuvered in settling complex workers’ compensation permanent injury claims (as well as tort actions) are dangerous; the penalties for failure to comply with appropriate regulations and procedures are high. Robinson analyzes the complexity of issues as set forth in recent case law.
6. Employment of Illegal Aliens. One of the most politically charged issues facing our country relates to the status of illegal aliens. Should they be allowed to stay? Should they be allowed to continue to compete for work? The issue continues to brew within the workers’ compensation arena, as it has now for years. Robinson explores this hot button issue.
7. ObamaCare - How Will It Affect Workers’ Compensation? If there’s an elephant in the room, it’s the Patient Protection and Affordable Care Act (PPACA), signed into law by President Obama on March 23, 2010. As virtually all workers’ compensation practitioners know, in mid-November 2011, the Supreme Court indicated that it will hear arguments in March regarding the controversial health care overhaul. The decision to hear arguments in the spring allows plenty of time for a decision in late June, months before Election Day. Will the law be upheld? Will the individual mandate withstand attack? Robinson explores this hot button issue.
8. Weak Economy. "The Great Recession" presents its own set of challenges. Robinson discusses the impact on both employees and employers.
9. Use of AMA Guides. One of the hottest issues within the workers' compensation sphere is the use, by a majority of states, of the American Medical Association’s Guides to the Evaluation of Permanent Impairment in determining the impairment of injured workers. While a majority of states require their use, there is great variation in the Edition of the Guides to be utilized, whether it’s the Sixth, Fifth, Fourth, or Third Edition. Criticism of the Sixth Edition has not died down. If anything, it has intensified. Robinson summarizes the debate.
10. Continued Efforts to “Reform” Workers' Compensation Law. Every few years, in reaction to perceived "abuses" by workers or "overreaching" by employers and carriers, there is a push for workers' compensation "reform." Generally it starts in one or two states. The contagion usually spreads fairly quickly. After all, the relatively autonomous 50 states—at least from a workers' compensation law standpoint—compete against each other for business startups and relocations. States willing to increase benefits significantly usually do so at their peril. Alternatively, if one state modifies its laws to allow for reduced costs to employers, it can enjoy a quick and important advantage in competing for business. Others are forced to follow. Robinson discusses which states took legislative action in 2011in an attempt to counter the economic negativity.
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