Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.
Mary Domer heads the local chapter of the Ladies of Charity and just chaired the national conference held in Milwaukee. She recruited Kim Bobo, Director of Interfaith Workers Justice and author of Wage Theft in America to speak to the assembly. Kim’s presentation reminded us of the disparities of wealth in America and how that wage gap is increasing, in some measure because of wage theft. Among the gems garnered from Kim’s presentation
- If your employer tells you you are an independent contractor, you’re probably not.
- Methods of “contingency employment” are on the increase including ever increasing temporary workers, seasonal workers and permanent “part time” workers.
- Three-quarters of low wage workers don’t get overtime. These include folks who can’t do all the work needed in 40 hours, but who would be fired if they didn’t perform all the work needed, daycare workers who have to stay off the clock and wait for parents to arrive, and “off the clock” work done in set up and clean up. The most egregious examples were McDonalds workers told by their managers to clock out and sit and wait in the car until they were needed when more customers arrived.
Kim noted that many “tip” workers do not receive any of the tips, reminding us to either ask the question about whether the worker would receive a tip paid for by credit card or alternatively to simply pay in cash. She noted an average of $2,600 lost average per year for low wage workers including janitors, drivers, landscapers, care workers.
Despite these negative trends, Kim suggested five ways in which we can all support low wage workers.
- Support campaigns to increase the minimum wage.
- Help with legislation and ordinances on paid sick days (40 million low wage workers have no paid sick days).
- Push Wal-Mart, McDonalds and other employers to increase their wages. (She noted Wal-Mart does pay well in Europe so they have the capability when they are forced to do so. Astoundingly, she noted six members of the Walton family possess a significant portion of the wealth in America.)
- Support legislation to provide a clear paystub to all employees. (Many are being paid by debit cards where they have to actually pay money to their employers to get paid.)
- Honor employers who pay well through “a living wage certification program” in each of our communities.
Through these methods and many more, we can all be men and Ladies of Charity.
The number of worker’s compensation claims has dropped dramatically
Today’s post comes from guest author Charlie Domer from The Domer Law Firm.
The Wisconsin Association of Worker’s Compensation Attorneys (WAWCA) just held its tenth annual worker’s compensation seminar in Madison, Wisconsin. (I presented the annual case law update.) A report on the economic health of Wisconsin worker’s compensation (presented by a colleague on the defense side, Paul Riegel) noted reported worker’s compensation claims have dropped from 55,000 in 2001 to less than 35,000 in 2011. Based upon the first five months of 2012 reporting, 30,000 reported claims are anticipated to be made in 2012.
Applications for hearing on those claims have also diminished, from 7,000 in 2001 to about 5,500 in 2011. Again based upon projections, the 2012 number of Applications for Hearing will be about 5,600.
Several potential explanations for this drop were provided including:
- The days of asbestosis, silicosis, and similar disease may have ended due to the aging population of those of exposed before the implementation of OSHA in 1970 and the lessening amounts of these substances in the workplace.
- Employers argue that workplaces are simply safer, resulting in lesser claims.
- The safer workplaces argument is rebutted by employee and Union data that fewer people are willing to make claims in a depressed economy for fear of losing their jobs. While Wisconsin law assesses a “one year’s wages” penalty against an employer who fires or refuses to rehire an injured worker, in tough economic times, that may not be a risk an injured worker is willing to make. Anecdotal evidence from a variety of sources indicates viable claims, specifically for “wear and tear” type injuries are simply not being made.
- The impact of extending Unemployment Compensation benefits from its initial 26 weeks through multiple extensions may diminish worker’s compensation claims since another “safety net” exists. Additionally, the availability of Social Security may diminish worker’s compensation claims. General employment trends also suggest Continue reading
Brian Wright, CLF’s Legal Intern
“How Can it Take that Long…?”
The Claimant’s name has been changed to insure confidentiality.
Our clients who are embroiled in litigation in their seemingly straightforward workers’ comp cases are often shocked when we tell them how long it may likely take to get a final decision. We recently prevailed in a case that serves as an exemplar of what the litigation process can involve.
David performed maintenance and repair for about five years on large construction equipment, requiring heavy lifting, carrying, torqueing, and other strength maneuvers in awkward positions, all affecting a shoulder condition that had its origins 30 years before in a diving injury followed by an injury on the job to the same shoulder that required surgery. He had worked at vigorous labor for the ensuing 25 years with no limitations until his work for the last company aggravated his shoulder, disabling him from work and leading to a partial shoulder replacement surgery.
Here’s how the claim went: David filed to reopen his 30-year old injury claim, but the Dept. of Labor & Industries (L&I) denied the reopening because of information about the recent work activity. He then filed a claim based on injury from his last repair/maintenance work, and the claim was allowed as an “injury.” The employer protested the allowance, and L&I took it back for further review. It was then allowed as an “occupational condition or disease” based on the aggravating effect of the cumulative trauma on David’s pre-existing but non-disabling shoulder condition. The employer then appealed that order to the Board of Industrial Insurance Appeals (BIIA) – our workers’ compensation “trial court” – and months later full hearings were conducted with live testimony from David and depositions of four medical witnesses.
Months after that, the BIIA judge who heard the evidence issued a decision fully favorable to David, and upholding the L&I allowance order. The employer then requested reconsideration of the judge’s decision. That was denied, and the employer then filed an appeal to superior court requesting a jury trial. Many months later, the case was tried to a jury and the jury upheld the BIIA’s and L&I’s decisions. At that point, the employer had been given five shots at overturning the allowance of David’s claim.
How long did all this take in a case with a seemingly straightforward medical issue?
December, 2009 to July, 2012 – over 2 ½ years!
An interesting side-note to this case: Our Rule 9 intern, Brian Wright, recently graduated from Seattle University School of Law and preparing to take the bar examination later this month, assisted me in trying the case in superior court. I turned over closing argument to the jury to Brian, and he did a great job, beating a seasoned defense lawyer I’ve been litigating against for 20 years or so. At Causey Law Firm we’re wagering that Brian is the only Rule 9 intern in the state to prevail over an experienced lawyer in a superior court jury trial this year!
Causey Law Firm celebrated the New Year by welcoming Kim Krummeck aboard as of January 1, 2010.
Mr. Krummeck’s practice will focus on workers’ compensation litigation, Social Security disability appeals, Longshore and Harbor Workers’ Act cases, Veterans Affairs benefit appeals and unemployment hearings and appeals, complementing and expanding Causey Law Firm’s areas of practice.