4-3-2017; Will The U.S. Ever Allow Dying with Dignity? Iowa Gov Signs New WC Reforms; Staffing Risk Management Ruling of Note and more

Synopsis: Will Our Country Ever Be Smart Enough to Allow Dying with Dignity?

Editor’s comment: I am on vacation in Jamaica and met a wonderful couple from Guelph, Ontario. They gave me the inside scoop on a new socio-legal development in Canada—Dying with Dignity. In short, if you or a loved one are suffering from a terminal condition, it is okay to follow the safeguards with your physician to plan for and execute an exit strategy.

How Does This Concept Impact Workers’ Comp?

One sad part of Dying with Dignity is there is a facet of it that relates to saving money for insurance carriers and employers who cover most of many folks’ health care coverage. There are people who suffer fatal injuries or become exposed to terminal diseases at work. These workers don’t all pass immediately and may linger for a time after suffering through an accident or disease. A small aspect of the concept is to avoid the high cost of unnecessary and expensive medical care that will only prolong pain.

For the last year available, these are the key findings of the 2015 U.S. Census of Fatal Occupational Injuries:

·         Annual total of 4,836 fatal workplace injuries in 2015 was the highest since 5,214 fatal injuries in 2008.

·         The overall rate of fatal work injury for workers in 2015, at 3.38 per 100,000 full-time equivalent (FTE) workers, was lower than the 2014 rate of 3.43.

·         Hispanic or Latino workers incurred 903 fatal injuries in 2015—the most since 937 fatalities in 2007.

·         Workers age 65 years and older incurred 650 fatal injuries, the second-largest number for the group since the national census began in 1992, but decreased from the 2014 figure of 684.

Get The Facts On Physician Assisted Dying

Physician assisted dying is a safe, compassionate choice for individuals facing the prospect of a horrific death. But don’t take my word for it. Get the facts on end-of-life choice and decide for yourself.  The Canadian model in allowing assisted dying respects a patient's right to choose. Their Supreme Court struck down the laws forbidding physician assisted dying because the laws unfairly restricted individual choice. Access to aid in dying will give Canadians further control over their care and, ultimately, their lives.

People want choice. More than eight in 10 Canadians support physician assisted dying. Commissioned by DWD Canada, a 2014 Ipsos Reid poll opinion poll showed that 84 per cent of Canadians believe seriously injured or gravely ill patients should have the right to end their lives with the help of a doctor.

Making assisted dying illegal doesn’t stop it. Each year, a handful of gravely ill Canadians travel to Switzerland for a medically assisted death. The cost — $20,000 to $30,000 when you account for flights and accommodation — puts this option out of reach for most people. At home, laws banning assisted dying and voluntary euthanasia have led Canadians with catastrophic diagnoses to end their own lives, sometimes violently and often prematurely. These tragedies devastate families and scar first responders. It’s time to stop this unnecessary trauma.

The safeguards work. They can provide choice for competent Canadians and protect the most vulnerable members of their society. International research has repeatedly concluded legalized assisted dying doesn’t threaten vulnerable groups such as children, the very elderly, the poor, people with disabilities and the mentally ill. This conclusion was upheld by the Supreme Courts of British Columbia and was a key factor in the Supreme Court of Canada’s decision to decriminalize physician assisted dying.

Palliative care is not enough. Palliative care is critical, but alone it is not enough. In Oregon, nine in 10 people who used that state's Dying with Dignity legislation were enrolled in a hospice program. That’s because there is some suffering only death can end. Assisted dying doesn’t hurt palliative care. Jurisdictions where end-of-life choice is legal are often global leaders in end-of-life care. Oregon, Washington and Vermont were the first American states to legalize assisted dying. They also lead the U.S. in terms of access to palliative care.

Access to assisted dying can actually lead to improved end-of-life care. A recent study in the medical journal Health Care shows investment in palliative care in the Netherlands took off after the Dutch government passed a historic assisted dying bill in 2002. Both Belgium and Quebec tied legalization of PAD to increased funding for palliative care.

Physician assisted dying is good for end-of-life healthcare. In places where assisted dying is legal, doctors are more likely to discuss end-of-life care with patients and their families.

Legal choice in dying also forces doctors to learn more about a broad range of end-of-life options. After Oregon passed a Dying with Dignity bill in 1997, the state embarked on a campaign to teach physicians how to care for patients at end of life. Five years later, a team of experts interviewed social workers and hospice caregivers to gauge how doctors were doing. “Most respondents rated Oregon physicians as showing improvements in knowledge and willingness to refer and care for hospice patients,” the authors reported.

Offering physician assisted dying is all about compassion. Forcing others to endure unwanted, intolerable suffering is inhumane and wrong. As a compassionate society, we must offer information and choices to those who face the prospect of a horrific death.

At present, the states of Oregon, Washington, Vermont, Montana and California now allow Dying with Dignity. I hope we are going to start talking about it in Illinois and the other states in which we defend claims. To me, it makes a great deal of sense when all the safeguards are in place.

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Synopsis: Iowa Republican Governor Terry Branstad signs Pro-Business workers’ compensation legislation.  Analysis by Daniel J. Boddicker, J.D.

Editor’s Comment: GOP lawmakers in Iowa pushed legislation to reduce the cost of workers’ compensation for employers and Governor Terry Branstad agreed by signing the bill last Thursday, just one day after it was sent to him.

Senators in the Iowa passed Iowa House file 518 by a 29 – 21 vote after it was stripped of two provisions: a cap on benefits at age 67 and changing the burden of proof for injuries. Governor Terry Branstad wasted no time in signing the bill on Thursday. An important pro-business provision of the bill is a basis for disallowing compensation if a positive test for drugs or alcohol is shown by an employer. In such case, a presumption will exist that the employee was intoxicated at the time of the injury and that intoxication was a substantial factor in causing the injury. The burden of proof will then be on the employee to overcome the presumption.

We are aware of recent reports that since February 6, when word of workers’ compensation reform legislation began to spread, the Iowa Division of Workers’ Compensation has received a large amount of new petitions for benefits. The glut of new petitions is a clear sign claimants attorneys rushed to have the cases heard under statutes applicable before the new pro-business changes.

Other changes in the new legislation include the disallowance of whole-person impairment ratings related to shoulder injuries; employees are no longer compensated for permanent partial disabilities if they are receiving benefits for permanent total disabilities; traveling employees can be offered light duty at geographically suitable workplaces as long as the employer pays for any travel, lodging and meals; compensation for permanent partial disability begins when maximum medical improvement has been reached and the impairment rating can be determined; and the Iowa Workforce Development Department would be required to retrain workers at community colleges so that they can return to work.

We recommend you review all the changes to the legislation. Iowa employers have a reason to be happy.

This article was researched and written by Daniel J. Boddicker, J.D. You can reach Dan at any time for questions about Iowa or Illinois workers’ compensation at dboddicker@keefe-law.com.

Synopsis: Required Reading for All Staffing Risk Managers—Your Workers May Not Be Able to Sue Your Accounts When WC Covers the Claim. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In Terrance Falge v. Lindoo Installations, Inc., 2017 IL App (2d) 160242 (issued March 24, 2017), the Illinois Second District Appellate Court ruled an employee of a temporary staffing agency could not sue the borrowing employer for negligence after his finger was partially amputated in a workplace accident while performing work for the borrowing employer.

In August 2012, Terrance Falge was an employee of a temporary staffing agency, Labor Ready, when he was assigned to work for Lindoo Installations Inc.

Falge and five Lindoo employees were assigned to assemble storage shelving units at a Benjamin Moore & Co. warehouse. While handling a bundle of shelving units, a Lindoo employee drove a forklift loaded with bundles over to Falge, who the cut the bands holding a bundle together with a pair of shearers. The bundle shifted as Falge was cutting through one of the bands and trapped his index finger against the forklift resulting in a partial amputation of his right index finger.

Falge filed a workers' compensation claim against Labor Ready, and a personal injury claim against Lindoo, alleging his injuries were caused by Lindoo’s negligence.

Lindoo moved for summary judgment arguing that is was Falge’s borrowing employee, and therefore immune under the exclusive remedy provision of the Workers’ Compensation Act. A trial court judge granted Lindoo's motion.

Falge appealed, saying there was a genuine issue of material fact as to whether Lindoo was a borrowing employer under the Act because there did not appear to be any direct supervision or direction from Lindoo. The Appellate Court affirmed the circuit court’s decision.

Section 5(a) of the Illinois Workers’ Compensation Act, the exclusive remedy provision, prohibits an employee from suing his or her employer for negligence. The provision extends immunity to loaning and borrowing employers.

Under the IL WC Act, a worker in the general employ of one company may be loaned to another company to perform work thereby becoming the employee of the borrower while he or she is performing the work.

Here, the court said there was no question that Labor Ready qualified as a loaning employer. Instead, the question was whether Lindoo qualified as a borrowing employer.

The court explained a borrowing employer relationship exists if the borrowing employer has a right to direct and control the manner of work performed by the borrowing employee, and if there was a contract of hire between the employee and borrowing employer.

The court found Lindoo had the right to control Falge's work because Falge was taking direction from Lindoo employees, and the contract between Lindoo and Labor Ready expressly said Lindoo had the power to direct Falge's activities, including set Falge's work schedule. The court also found Falge impliedly consented to a borrowing employer relationship with Lindoo, because he knew he was working for Lindoo through Labor Ready when he accepted the assignment.

The Falge case is a reminder for our readers of the protections against dual avenues of recovery in workers’ compensation cases. A copy of the decision can be found here .

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia 24/7/365 for questions about workers’ compensation at lpicazo@keefe-law.com