Throughout the state of Florida, governmental entities rely upon volunteers to augment the work of paid employees. From volunteer firefighters and emergency service personnel to volunteers in schools, these individuals play an integral role in the day-to-day operations of public employers. Unfortunately, some of these individuals inevitably sustain injuries in the course of their volunteer activities. Consequently, it is essential to understand what constitutes a volunteer and the nature of coverage for volunteers under the Florida Workers’ Compensation Act.

Section 440.02(15)(a), Florida Statutes, defines an “employee” as:

…any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

Section 440.02(15)(d)6., Florida Statutes, expressly excludes from the definition of employee “[a] volunteer, except a volunteer worker for the state or a county, municipality, or other governmental entity.” This statutory subsection further provides in pertinent part:

A person who does not receive monetary remuneration for services is presumed to be a volunteer unless there is substantial evidence that a valuable consideration was intended by both employer and employee. For purposes of this chapter, the term “volunteer” includes, but is not limited to:

a. Persons who serve in private nonprofit agencies and who receive no compensation other than expenses in an amount less than or equivalent to the standard mileage and per diem expenses provided to salaried employees in the same agency or,

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Volunteers and the Limits of Coverage Under the Florida Workers’ Compensation Act Welcome New

Preferred Members ............. 3

Exclusive Article: AmeriSys Introduces SECURE, a Quality- Centered Cost Effective Management of Pain Treatment Programs ............................. 4

Special Article: Interpreting the Globally Harmonized System (GHS) ....................... 6

Early Intervention Mitigates Claim Costs ...................................... 8

News Extra: Putting Safety First is a Worthwhile Priority .................................. 9

Member Spotlight .............. 10

Breaktime Fun -n- Games .................... 11

Spring 2014

Inside This Issue:

By Brian T. Hanley, Esquire - Bolton & Helm, LLP

News

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FEATURE ARTICLE

if such agency does not have salaried employees who receive mileage and per diem, then such volunteers who receive no compensation other than expenses in an amount less than or equivalent to the customary mileage and per diem paid to salaried workers in the community as determined by the department; and

b. Volunteers participating in federal programs established under Pub. L. No. 93-113.

Thus, the Florida Workers’ Compensation Act provides coverage for those who volunteer with “the state or a county, municipality, or other governmental entity.” Although such volunteers typically will not be eligible for indemnity benefits since they do not receive wages (notwithstanding any concurrent, covered earnings), they are entitled to medical benefits. See, e.g., Osceola County School Board v. Boos, 912 So.2d 667 (Fla. 1st DCA 2005). Conversely, the Act generally does not cover those who volunteer in the private sector. While this dichotomy appears fairly simply in principle, it is not always a clear distinction in practice.

In the case of McClung-Gagne v. Harbour City Volunteer Ambulance Squad, Inc., 721 So.2d 799 (Fla. 1st DCA 1998), the First DCA analyzed the concept of “other governmental entity” within the meaning of Section 440.02(15). In that case, the Board of County Commissioners of Brevard County had granted Harbour City Volunteer Ambulance Squad, Inc. [HCVAS] the exclusive right to provide ambulance services within the southern part of the county for a five-year period. Pursuant to the agreement, the County regulated the manner of operation of the ambulance services provided by HCVAS. While serving as a volunteer with HCVAS, the claimant sustained injuries and ultimately sought workers’ compensation coverage. The JCC dismissed the claim.

On appeal, the First DCA determined that pursuant to its agreement with the County, HCVAS was a quasi-public corporation that had been contracted to provide an essential service. The Court then held that in the context of coverage for a volunteer, the term “other governmental entity” includes “quasi-public corporations which, under contract with a public body, perform services that are traditionally performed by government.” The Court held that in determining whether a quasi-public corporation is an “other governmental entity” so as to provide coverage for volunteers, a JCC should evaluate the totality of the circumstances and analyze the quasi-public corporation in the same manner as a Court would analyze whether a private entity constitutes a public agency for purposes of the Public Records Act. Thus, the JCC should consider factors such as the level of public funding, commingling of funds, whether the corporation is performing a governmental function or a function that a public entity would otherwise perform, and the extent of the public entity’s involvement with, regulation of, or control over the corporation. If the corporation and a public entity are sufficiently interrelated, then the corporation will be deemed an “other governmental entity,” and volunteers will be covered under the Florida Workers’ Compensation Act.

The First DCA has also analyzed what constitutes “remuneration” in distinguishing between an employee and a volunteer, and the limits of who may be defined as a volunteer under Section 440.02(15). In the case of Orange County School Board v. Powers, 959 So.2d 370 (Fla. 1st DCA 2007), the claimant was an employee of the Orange County School Board who elected to take an unpaid leave of absence in order to pursue further studies at the University of Central Florida. In order to complete her degree in education at UCF, she was required to complete multiple internships. Accordingly, she was assigned to intern at an elementary school in Orange County. In order to participate in this internship, the claimant paid UCF for 12 credit hours. She was not paid by the Orange County School Board.

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After she was injured in the course of her internship, the claimant alleged that she was an employee and sought workers’ compensation benefits from the School Board. The JCC found that the claimant had received valuable consideration in the form of educational credit and thus determined that she was an employee. On appeal, the First DCA reversed. Despite the obvious benefit that the claimant received from the internship, the Court held that educational credit received in exchange for payment of tuition is not remuneration for purposes of Section 440.02(15)(a), Florida Statutes. In addition, the Court held that the claimant was not a volunteer for “the state or a county, municipality, or other governmental entity.” The Court determined that the claimant was at the elementary school not for the purpose of aiding, but instead to further her own goal of completing a required UCF internship. Therefore, the claimant was not entitled to benefits under the Florida Workers’ Compensation Act.

Ultimately, determining whether a claimant is a volunteer and whether a given volunteer works “for the state or a county, municipality, or other governmental entity” is essentially a fact-driven inquiry. Although case law on the subject of volunteers is limited, the First DCA has provided guidance concerning the relevant inquiry. In summary, employer/carriers must carefully evaluate a claimant’s alleged volunteer status and the governmental nature of the alleged employer based upon the totality of the circumstances. Only after completing a diligent inquiry will an employer and its insurance carrier be in position to confirm or deny coverage.

FEATURE ARTICLE

Brian T. Hanley has practiced law primarily in the areas of workers’ compensation defense, appellate practice, and civil litigation for over ten years. Mr. Hanley pursued undergraduate studies at the University of Florida, where he graduated with honors with a Bachelor of Arts degree in Economics and Political Science. He was named an Anderson Scholar and was a member of Phi Beta Kappa. Subsequently, he graduated from the University of Florida College of Law. While in law school, he completed an internship with the Honorable Jonathan D. Ohlman, Judge of Compensation Claims for the Gainesville District. Mr. Hanley represents employers and insurance carriers throughout the state of Florida and is an accredited lecturer for insurance certification courses.

Preferred would like to welcome the following new members...

Cape Canaveral Community Redevelopment Agency

New Smyrna Beach Housing Authority

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EXCLUSIVE ARTICLE

AmeriSys Introduces SECURE, a Quality-Centered Cost Effective Management of Pain Treatment ProgramsBy Cheryl Gulasa, RN, CPHP, CCM - Vice President, AmeriSys

Services for the Effective Control and Utilizationof Rx through Evidence-based Criteria

Today it is reported that approximately 19% of medical spend in workers’ compensation claims goes to pharmacy, of which 38% goes toward opioid medications. At AmeriSys we have seen costs as high as $12,000 per month for narcotics on a single claim. The utilization and the resultant impact of opioid analgesics have created a crisis within the workers’ compensation community. Death rates due to narcotic overdose have tripled since 1990. Some states have enacted legislation to curtail the rampant “mis-utilization” of these medications. For example, a number of states have put medication restrictions in their workers’ compensation statutes and rules.

The resounding cry in the industry by its leading consultants is to develop programs, procedures, protocols and methodologies to address the misuse of these drugs for the treatment of work-related conditions.

AmeriSys SECURE is leading the way with quality-centered cost effective management of pain treatment programs. By joining forces with some of the industry’s leaders in pain treatment guidelines, pharmacy controls and alerts, functional restoration initiatives and specialized case-managers, AmeriSys has developed unique protocols and criteria for managing these complex and cost-driving claims. This program maximizes the injured employees’ comfort level by working closely with physicians who practice according to nationally-approved standards. In utilizing these best practices, the risk of addiction is minimized and costs associated with the addiction are decreased. In doing this, not only do we benefit our industry but our community as well.

The AmeriSys SECURE advisory panel consists of our medical director and two well respected pain management physicians, clinical pharmacists, a psychologist, a physical therapist, and members of the AmeriSys medical management team. With their guidance, the program is kept current with the latest in industry standards. The case managers, working within the protocols of this program, have been able to provide the injured employees a greater quality of health, offer our claims partners a feeling of control with these otherwise uncontrolled claims, and our customers a cost effective alternative.

The success of SECURE is evident in the outcomes the program is generating. Early referrals to this program are the most beneficial. For example, an employee with a knee injury was ordered a total of 60 tablets of oxycodone in the first 9 days post-injury by a physician at an Urgent Care center. The SECURE case-manager contacted the physician and expressed her concerns about the use of oxycodone as a first line medication, and the amount being prescribed. The evidence-based guidelines were used to validate the case-manager’s concerns.

5

EXCLUSIVE ARTICLE

Once the physician reviewed the medication and amount, he called and thanked the case-manager for bringing this to his attention. The physician cancelled the prescription and used a more conservative treatment approach.

The SECURE program’s goals are to improve/enhance return-to-work outcomes, reduce disability duration; prevent unnecessary, dangerous and costly consequences of inappropriate or prolonged utilization of opioid medications while reducing the costs of pain management claims.

AmeriSys has developed a web portal that will allow for customized management of claims. The SECURE portal will include customized dashboard capabilities, reporting tools, detailed treatment plans, claim triggers, integration with myMatrixx, our Pharmacy Benefit Management Partner, and other features. The goal of the web portal is to allow case-managers, adjusters, physicians, and employers to track SECURE claims from anywhere, real-time.

Cheryl is currently the Vice President for AmeriSys. Her primary responsibilities include overseeing the Professional Operations of AmeriSys which is Telephonic Case Management, Field Case Management, Provider Relations and Utilization Management, including Bill Review. Cheryl has 30 years’ experience in nursing, the last 14 years in workers’ compensation case management and utilization management. She has successfully implemented large public entity programs. Cheryl’s experience coupled with her energy and leadership skills brings valuable assets to our organization.

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SPECIAL ARTICLE

We have been asked on several occasions about the new changes to the Occupational Safety and Health Administrations Hazard Communication Standard. In March 2012, OSHA promulgated a final rule affecting the Hazard Communication Standard. The rule officially adopts applicable elements of the Globally Harmonized system (GHS) for the classification and labeling of chemicals. GHS is a system that defines and classifies the hazards of chemical products, and communicates health and safety information on labels and material safety data sheets (MSDS) called Safety Data Sheets in GHS. The goal is to have the same set of rules for classifying hazards, and the same format and content for labels and SDS.

There are three primary changes to the existing system. One is chemical hazard classification; the GHS provides specific criteria for classifying a materials health and physical hazards. A second change is information and pictograms on labels. Third are changes to the Safety Data Sheets (SDS).

Hazard Classification and Definitions:

Chemical manufactures will have to reclassify their products based upon updated hazard type definitions. This will require manufacturers to identify and compare chemical hazard data against the definitions and decide whether the chemical is hazardous according to the updated OSHA definitions. A hazardous chemical is one that presents a health hazard and/or physical hazard, and includes simple asphyxiants and combustible dusts.

Labels:

A second significant change applies to labels. The disparity in previous label formats and practices was a catalyst for adoption of the GHS label framework. The new labeling criterion consists of written, printed, or graphic information concerning the chemical hazards. This information is to be attached to the container of a hazardous chemical, or to the outside of the package. New labels will be comprised of six components. The first is the product identifier, which can be a name or number used for a hazardous chemical. The second component is the chemical originator and is to include the name, address, and telephone number of the manufacturer or supplier. The third component includes hazard pictogram(s), the GHS prescribes 9 pictograms. The fourth component is a signal word that represents the hazard severity level. The GHS prescribes two signal words, Danger and Warning. Danger signifies the most severe hazards; warning is used for less severe hazards. The fifth label component is a hazard statement; this describes the nature and degree of hazard. Hazard statements likely will be short, brief bullet points. The last labeling component consists of precautionary statements. Precautionary statements are recommended measures to minimize or prevent adverse exposure effects. This information will typically address up to four categories, including prevention, response, storage, and disposal guidance.

Interpreting the Globally Harmonized System (GHS)By Mike Marinan, Director of Member Services - Public Risk Underwriters of Florida, Inc.

7

SPECIAL ARTICLE

Safety Data Sheets:

The third significant change is the re-designation of the well-recognized Material Safety Data Sheet(MSDS) to Safety Data Sheets (SDS). The GHS SDS model includes 16 sections.

1. Product and company identification

2. Hazards identification

3. Composition/ingredient information

4. First aid measures

5. Firefighting measures

6. Accidental release measures

7. Handling and storage

8. Exposure control/personal protection

9. Physical and chemical properties

10. Stability and reactivity

11. Toxicological information

12. Ecological information

13. Disposal considerations

14. Transport information

15. Regulatory information

16. Other information

For more information on the GHS visit http://www.osha.gov/dsg/hazcom/ghs.html.

For more information on labeling see http://www.osha.gov/dsg/hazcom/appendix_c.pdf.

Mike has a degree in Industrial Safety Engineering and over 32 years experience in the Safety and Risk Management field. He has been employed by Public Risk Underwriters of Florida, Inc. for almost 11 years. He holds an RMPE designation, a General Lines 220 and 218 licenses, and is an active member of ASSE and numerous related Safety and Health organizations. He was a Governor appointee to the Task Force on Workplace Safety.

Would you like additional copies of the Prefer red News..?

Additional copies of the Preferred newsletter may now be printed in PDF format by going to www.pgit.org and accessing the Resources section of the website.

There you will find not only the most recent edition of the newsletter, but also previous editions as well, or if you like, you may also look up current and past articles of interest by utilizing the article index.

8

SPECIAL ARTICLE

Early Intervention Mitigates Claim CostsBy Kenneth Picton, Vice President - PGCS Claim Services

What they say is true: timing is everything. The first twenty-four hours are the most important in the life of a worker’s compensation claim. That’s why it is imperative that employers immediately report employee injuries to their insurance carrier or third party administrator so that detailed medical and logistical information can quickly be put in the hands of people who need it in order to control the cost of the claim.

When an adjuster is able to complete a successful three-point contact within 24 hours of the accident, injured workers are directed to the most appropriate care early on, outcomes are greatly improved, and the employer’s workers compensation costs are significantly reduced. A three-point contact consists of:

1. Contacting the claimant (injured worker);2. Contacting the employer (usually the supervisor or the risk management department);

3. Contacting the treating physician.

However, not all three-point contacts are created equal. Some carriers or third party administrators will consider a letter sent telling the claimant to call them at his or her convenience a proper contact.

That’s like saying you watched the entire Super Bowl when you only watched the half time show. It’s not just about making contact within 24 hours, it’s how you do it.

Adjusters must be properly trained to ask the right questions during their initial contacts in order to lay the groundwork for managing the claim. The initial contact should cover a wide variety of important topics including the claimant’s wages, length of time with the employer, previous incidents or claims, witnesses, prior injuries, and even the claimant’s relationship with co-workers and supervisors. The number one purpose of making initial contact with the injured worker is to gather pertinent facts regarding the reported accident and demographic information.

A typical call with a claimant lasts about twenty minutes, which is time well spent if you want to reduce the cost of the claim. It allows the adjuster to build a rapport with the injured worker, to direct medical care, and to make sure the claimant understands the workers’ compensation process. The adjuster needs to convey to the injured worker that their injury and circumstances matter. The goal is to help the claimant understand that the adjuster is their advocate, committed to their well being, who wants to provide the best possible service and all of the benefits available under the law. Good, honest, empathetic communication is the key.

The benefits of the three-point contact will most likely be lost if the employer does not immediately report the claim. Waiting even one day will diminish the ability to control the cost of the claim. In most cases, the 24 hour clock doesn’t start ticking until the employer reports the claim plus the time it takes for the carrier or administrator to enter the claim into their claim management system. Even the best adjusters in the world can’t repair the damage done when a claim is reported late.

Kenneth began his career with Liberty Mutual Insurance Company as a multiple-line field claim adjuster subsequent to earning a Bachelor of Arts degree from Bradley University. He has over thirty-six years of insurance claims and management experience having worked for both carriers and third party administrators. Prior to coming to PGCS, Kenneth was a Litigation Claim Supervisor handling public entity claims for the Tennessee Municipal League and most recently served as Vice-President, SE Zone for Gallagher Bassett Services.

Kenneth has earned the Associate in Claims designation from the Insurance Institute of America and is currently enrolled in the Associate in Risk Management Program. He has also completed several courses to earn the American Educational Institute’s SCLA designation. An Illinois native, Kenneth has resided and handled claims in the states of Illinois, Minnesota, and Tennessee and Florida.

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NEWS EXTRA

Putting Safety First is a Worthwhile PriorityBy Pam Stone, Sr. Safety & Risk Management Consultant - Public Risk Underwriters of Florida, Inc.

The City of Dania Beach has been a member with Preferred for 12 years and in 2007 after reviewing the financial impact to the City they realized that a more vigorous approach to safety and claims management must be taken. HR and Risk Manager Jackie Whiting-Beauzil took the opportunity to meet with Administration and explained the necessity for an effective program and why it is important to the City, the residents, and the safety and health of the employees. With that, she was given the authority to hit the ground running and that’s just what she did.

Pam Stone, Loss Control Representative with Preferred, met with Jackie to set up a service plan. To get things rolling they started with a claim review of all of their current open claims. This allowed the City to get a better handle on how the claims were trending and to work together with the adjusters on managing the claims going forward for a more positive outcome.

Next in the process they met with the Safety Committee and identified the needs of each department and developed a safety program as well as a written manual.When asked what made the Safety Committee successful, Jackie responded: “Because they have the authority to make recommendations for the betterment of our employees and City and they are heard.”

The City administration looks at the Safety Committee as a responsible resource to learn what the needs are and respond to them. It’s a positive form of communication.

The City recognizes the Safety Committee with their names and contact information in the City newsletter and the committee reaches out to the entire staff to take recommendations.

With safety training being a top priority the committee started with that right away. Preferred was able to provide the “general” safety training topics such as: Lockout Tag out, Electrical, Personal Protective Equipment, Heat Stress, and Back Safety. HR Assistant and Safety Coordinator Kristin Milligan has taken it even farther with job specific training for the departments. Meeting contacts through Association meetings and working closely with each department within the city, she found Kenton L. Brown, the Emergency Response Manager with the Florida Department of Environmental Protection. Mr. Brown has provided training on Encountering Abandoned Containers and Chemical Exposure. The City does not have a budget for speakers so Jackie and Kristin work with people that will provide this training at no charge!

With Dania Beach having so much success with safety training they have encouraged employees to make recommendations for training that they feel are important to their jobs. Kristin has reached out to Broward County for help having a couple of people in each department certified in CPR and another contact is scheduled to provide training on hazards that employees may encounter working out in the field. Another responsibility of the Safety Committee is to provide for the on-going inspections. Their goal is to make the City a safe environment for both the employees and the residents. With claims management being a large part of what Jackie and Kristin do they make sure claims are reported timely and they gather as much information as possible. They also provide the adjuster with an internal accident investigation for all claims. Both ladies stressed how important the investigations are at getting to the root cause of an incident, for possible subrogation, and of course for compensability.

Managing claims internally helps in many ways including building a rapport with the claimant and working together for the best possible outcome. They also learn of policies and procedures that may need to be changed or updated and are able to address the claims with the safety committee for their recommendations on preventing the incident from happening again and in most cases the claims closed quicker.

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MEMBER SPOTLIGHT

Loxahatchee River District Welcomes New Safety Training & Compliance OfficerSubmitted By Chris Kittleson, Sr. Safety & Risk Mgmt. Consultant - Public Risk Underwriters of Florida, Inc.

Loxahatchee River District would like to welcome Jason Argraves as the District’s new Safety Training & Compliance Officer. Jason recently joined the District in October of 2013 and has been vigilante in his efforts to maintain safety in the workplace, safety for the patrons of the District as well as protecting the environment.

Jason brings to the District an extensive safety background including holding the designation as a Certified Occupational Safety Specialist (COSS) as well as being a Certified Technician for Gas Detection Systems and Self Contained Breathing Apparatus type equipment. One of his projects involved the implementation of a Portable Gas Detection Program for over 40 vessels owned and operated by Royal Caribbean Cruise Lines. In addition, Jason has worked with both private and public sector operations that contemplate power generation, mining, military, law enforcement and defense contractors.

Jason hails from Martin County where he lives with his wife and two children and enjoys sharing the Florida lifestyle of hunting, fishing and camping with his family.

We would like to share your best practices, risk management expertise, success stories, and the accomplishments of your entity and employees

with fellow members in our next news letter.

Public Risk Underwriters of Florida Safety & Risk Management Department is looking forward to working with Jason on the District’s safety and risk management intiatives.

We thank and appreciate the City of Dania Beach for being a member of the Preferred Trust and for recognizing the importance of an effective Safety Committee and most of all the Administration for granting Jackie, Kristin and the Safety Committee the authority to do what needs to be done to take care of this wonderful City.

Pam has worked in the insurance field for the last nineteen years of her career. The last 7 years with Public Risk Underwriters of Florida, Inc. Her experience includes working in Program Development, Marketing, Training and Liaison between Members and Underwriting and Claims and of course Risk Management. She has completed the 10 hour OSHA Outreach Training course in General Industry Safety and Health, and most recently completed Fundamentals of Employment Law with State College of Florida. Her educational background is in Business and Computer Programming.

BE IN THE MEMBER SPOTLIGHT

If interested, please contact:Mike Stephens - Safety & Risk Management ConsultantEmail: mstephens@publicrisk.com Phone: 321-832-1658

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KEY STAFF CONTACTS:

As a member of Preferred your first call should always be to your agent, if however you need help beyond your agent please feel free to contact us as indicated below:

Marketing:marketing@publicrisk.com321-832-1455Kurt Heyman

Operations:ahansen@publicrisk.com321-832-1510Ann Hansen

Loss Control:mstephens@publicrisk.com321-832-1658Mike Stephens

Claims:liability claims@pgcs-tpa.com866-683-7710Julius Hajas

BREAKTIME FUN -N- GAMES

Please visit www.pgit.org/Resources/Preferred News 2014 - Spring 2014/Article Index for word search & trivia solution keys

U. S. SPRING MUNICIPALITIES WORD SEARCHSee how many of the U.S. municipalities you can find that end with “Springs” utilizing the beginning name source words to the right

SOURCE WORDS:

ALTAMONTE - __ __

BALCH - __ __

BLUE - __ __

BONITA - __ __

BONNER - __ __

COLORADO - __ __

CORAL - __ __

DENHAM - __ __

EXCELSIOR - __ __

GLENWOOD - __ __

HEBER -__ __

HOLLY - __ __

HOT - __ __

MIAMI - __ __

OCEAN - __ __

PALM - __ __

POWDER - __ __

ROCK - __ __

SAND - __ __

SANDY - __ __

SARASOTA - __ __

SARATOGA - __ __

SILOAM - __ __

STEAMBOAT - __ __

SULPHUR - __ __

TARPON - __ __

WESTERN - __ __

WINTER - __ __

ARKANSAS (AR)

COLORADO (CO)

FLORIDA (FL)

LOUISIANA (LA)

MISSISSIPPI (MS)

MISSOURI (MO)

TEXAS (TX)

WYOMING (WY)

Utilizing the applicable states below try to guess what state each of the municipalities listed in the source words is located within and place the state abbreviation next to each

GEORGIA (GA)

ILLINOIS (IL)

KANSAS (KS)

NEW YORK (NY)

NORTH CAROLINA (NC)

OKLAHOMA (OK)

P. O. BOX 958455 - Lake Mary, FL 32795-8455

MBF Reorder 407-657-7414 PGIT-M02 3/14

PRSRT STDU.S. POSTAGE

PAIDMID-FL FL

PERMIT 704