Balancing the Equities
Mar 20, 2019

Today is the vernal equinox, one of two days where the day is perfectly balanced between sunlight and moonlight.  Fittingly, there are a number of big-ticket risk and insurance issues hanging in the balance today.  



Parliament voted this week to postpone the United Kingdom’s departure from the European Union, which is scheduled for March 29.  The House of Commons voted 413-202 to ask the bloc to put off Britain's exit until at least June 30.  The extension is now pending with the EU, which has signaled that it will only allow a delay if Britain either approves a divorce deal or shifts its approach to Brexit.  Prime Minister Theresa May is expected to ask EU leaders for an extension at a summit this week in Brussels.  By law, Britain will leave the EU on March 29, with or without a deal, unless it cancels Brexit or secures a delay.



The National Highway Traffic Safety Administration (NHTSA) is seeking public comment on automated vehicle petitions to put a driverless car — without a steering wheel or pedals — on public roads submitted by General Motors and Nuro Inc., a Silicon Valley robotics company.  The petitions will be open for 60 days.  According to Secretary of Transportation Elaine L. Chao, “the Department is actively seeking public comment on proposed exemptions to federal standards and how the public can be protected as new transportation technologies emerge.”



The House Financial Services Committee held a hearing Wednesday to address a legislative solution to the National Flood Insurance Program.  The plan includes steps to hold down premiums, invest in construction projects designed to reduce the impact of the next storm, forgive a $20 billion debt, and develop new maps that accurately identify areas in danger of flooding.  The current flood insurance program expired Sept. 30, 2017, and Congress has passed several short-term extensions since. The National Flood Insurance Program now will expire May 31.



And finally, Congress is considering bipartisan legislation that would give cannabis companies access to banking.  The Secure and Fair Enforcement (SAFE) Banking Act of 2019 was introduced following a hearing held last month. The bill was authored by Rep. Ed Perlmutter (D-CO) and Rep. Denny Heck (D-WA), and co-sponsored by Rep. Warren Davidson (R-OH) and Rep. Steve Stivers (R-OH).  The SAFE Banking Act of 2019 aims to create protections for depository institutions that provide financial services to cannabis-related legitimate businesses and service providers for such businesses, and for other purposes.  We’ll be tracking these front page stories as their details come to light.


Health Care Risk Management


The Occupational Safety and Health Review Commission (“OSHRC”) issued a ruling on a case of first impression regarding the Secretary’s power to issue citations for Section 5(a)(1), the general duty clause, for violations involving workplace violence.  After a home health employee was stabbed to death by a schizophrenic client, the DOL issued a citation charging that her employer, “violated the general duty clause of [OSHA] because its employees were exposed to the hazard of being physically assaulted by members with a history of violent behavior.”  On appeal, the three Commissioners unanimously affirmed the citation.  In related news, the Trump administration released its proposed OSHA enforcement budget this week, seeking to raise the number of enforcement personnel workers by 33 full-time equivalents



Also this week, the U.S. House Education and Labor Committee’s Workforce Protections Subcommittee held a hearing on the Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1309).  The legislation calls on OSHA to issue a standard requiring employers in the health care and social services industries to develop and implement workplace violence prevention plans to protect employees such as nurses, physicians, social workers, emergency responders, and other caregivers.  Supporters of the legislation point to “near epidemic levels” of violence aimed at health care workers.


Making Our Way Around the Country


The Oklahoma House of Representatives advanced multi-part legislation that would loosen the state’s restrictions on mental-only compensation claims by first responders.  The bill would also allow WC courts to order an employer or insurer to pay for an opioid- or narcotic-dependent employee’s detox treatment, and would allow for the termination of that employee’s pain management if they refuse such treatment.  Under the bill, the last employer (and its carrier) that “injuriously exposed the claimant to trauma” for a period of at least 90 days would be liable in cumulative trauma claims.  Finally, the bill would mandate the use Official Disability Guidelines for treatment and requires the commission to approve an updated fee schedule by Dec. 31, 2019, that includes a 5% increase for each reimbursement code.  We’ll report later on these Sooner State developments.



The Texas Commissioner of Workers’ Compensation released a revised procedure for evaluating designated doctor performance, which is effective immediately.  The evaluation procedure will examine the quality of designated doctor decisions.  The Division of Workers’ Compensation (DWC) may take necessary action to deny renewal of a designated doctor's certification based on the integrity of these decisions. The evaluation procedure will also help DWC increase training and testing quality by identifying areas for designated doctor performance improvement.



The Workers’ Compensation Board will hold a meeting next Thursday in Salem to evaluate a rule put forth in February concerning the adoption of permanent rules on non-English documents before the WCB.  The proposed rules set forth a procedure for non-English documents, including the development of a “Multi-Language Help Page” for Notices of Acceptances and Denials.  The procedure does allow negotiated solutions among the parties to a dispute.



Back to our lead story, those of us in the Northern Hemisphere are eagerly awaiting the arrival of spring, which is expected to join us this evening around 4:58 p.m. central time.  Not that we are counting down the minutes or anything.  Interestingly, the vernal equinox has been ascribed folkloric properties, including the “mystical balancing of the egg.”  This is an apt reminder to keep the focus on your center, even as brackets crack all around you.


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