Category Archives: Legislation

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Protecting Workers from being Destroyed by the Work Schedule

Senator Tom Harkin

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

I wrote the post below as an editorial in the Iowa City Press-Citizen. Because The Scheudles That Work Act is of national importance I want to make sure this issue receives the attention that it deserves by promoting awareness of it as broadly as possible. I hope you’ll take the time to read my editorial and pass it along to concerned citizens in your area.

Workers deserve some certainty in their work schedules. Why? Because we all have need to plan for child care, time for school, transportation, or simply time to pay bills and manage the household. It’s basic fairness.

But don’t you, a friend or an acquaintance work a job with unpredictable and irregular work schedules? You’ve probably noticed that irregular and on-call scheduling are increasingly common. It’s especially common in the fastest-growing areas of our economy—- cleaning, janitorial, retail and restaurant work.

These scheduling practices can devastate the worker and her/his family. The practices demand the worker choose between his job or his family. They often lead to the worker being fired.

Vermont and San Francisco have already passed laws to help employers and workers avoid this devastation.

Senator Tom Harkin has now proposed The Schedules That Work Act to help workers balancework duties with family duties. The Act helps both workers and employers by:

  • Protecting all employees from retaliation for requesting a more flexible, predictable or stable schedule.
  • Creating a process under which an employer considers a worker’s schedule request in a way that’s sensitive to the needs of the worker and her/his family. For example, schedule requests based on caregiving duties, health conditions, pursuing education or the need to meet the demands of a second job, must be granted, unless the employer has a good business reason for denying it.
  • Compensating retail, food service, and cleaning workers for at least four hours of work if an employee reports to work when scheduled for at least four hours but is sent home early.
  • Providing that retail, food service, and cleaning employees receive work schedules at least two weeks in advance. Though schedules may later be changed, one hour’s worth of extra pay is required for schedules changed with less than twenty-four (24) hours’ notice.
  • Providing workers an extra hour of pay if scheduled to work split shifts or non-consecutive shifts, within a single day.

Kudos to Senator Harkin! Some politicians and billionaire-driven PACs parrot “Iowa values” as a campaign slogan. Senator Harkin, on the contrary, uses those values to create legislation like the ADA and The Schedules That Work Act.

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Making A Difference In Washington – The Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Today’s post comes from guest author Catherine Stanton from Pasternack Tilker Ziegler Walsh Stanton & Romano.

In addition to helping our clients receive the benefits they are entitled to through the courts and other adversarial means, we are prooud to work with our elected officials to produce legislation that will benefit working people. A few days ago, a bill we support, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, was formally proposed. We encourage you to call and email your representatives and let them know that you support this law.

The press release with additional background follows:

 

Reps. Reichert and Thompson Introduce Bipartisan Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Washington, D.C. – Today, U.S. Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, H.R. 1982 into the House of Representatives.

The legislation aims to protect injured workers whose workers’ compensation claims overlap with Medicare coverage. Far too often, these claims are subjected to lengthy and cumbersome reviews by the Centers for Medicare and Medicaid Services (CMS) to determine appropriate set-aside amounts to pay for future medical costs in which Medicare may have an interest. The delays associated with this review place unfair burdens upon the injured party.

“This is a common-sense measure to ensure that hard-working Americans are not left in limbo because of inefficient bureaucratic procedures,” said Rep. Reichert. “Injured workers must have the confidence that their heath care claims will be processed in a fair and timely manner. By introducing this bill, Rep. Thompson and I aim to do just that: protect our hard-working citizens by making sure our systems serve them and their families.”

“The last thing injured workers should have to worry about is if needless bureaucracy is going to prevent their medical bills from being paid,” said Thompson. “This bill will make sure hard working families’ medical claims are processed efficiently and quickly, it will reduce bureaucratic headaches for businesses, and it will save taxpayers money. I will continue working with Congressman Reichert to get this bipartisan bill signed into law.”

Background

The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act establishes clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare. It would benefit injured workers, employers and insurers by creating a system of certainty, and allows the settlement process to move forward while eliminating millions of dollars in administrative costs that harm workers, employers and insurers.

The legislation has widespread support from groups such as the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC-Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

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Let OSHA Do Its Job

OSHA is being prevented from fulfilling its mission.

Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.

In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.

While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses. Workers are being injured and killed by known hazardous circumstances and OSHA can’t act.

Congress and the President need to break this logjam – we need to free OSHA to do its job of safeguarding workers.

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Martin Luther King on “right to work”

“In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as ‘right to work.’ It is a law to rob us of our civil rights and job rights. Its purpose is to destroy labor unions and the freedom of collective bargaining by which unions have improved wages and working conditions of everyone…Wherever these laws have been passed, wages are lower, job opportunities are fewer and there are no civil rights. We do not intend to let them do this to us. We demand this fraud be stopped. Our weapon is our vote.” —Martin Luther King, speaking about right-to-work laws in 1961

 

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Immigration Status and Return to Work: A Polarizing Issue

immigrant workersInjured workers can face a number of obstacles in their quest to return to work, particularly if the residuals of their injury, or in some cases, multiple injuries, have left them with significant physical restrictions. These obstacles are magnified if the worker is a non-English speaker and even more complicated if they are an undocumented worker.

In Washington State, immigration status is not a factor in workers’ compensation coverage

In Washington State, immigration status is not a factor in workers’ compensation coverage – if you are injured while an employee of a Washington company, your injury claim is covered.  The Department’s position is that it is not its responsibility to monitor immigration laws but, rather, to provide protection to workers in our state.  This is a very progressive stance, one that is rare across the spectrum of state comp systems, but it can complicate the return-to-work phase of an injury claim.

Vocational services for any non-English speaking employee can be time-consuming and expensive, even for a modest retraining goal, as the labor market is particularly limited when one’s ability to read, write and speak in English is limited.  In many cases, these skills may be lacking in the worker’s native language, as well, and it is not simply a need to learn English that needs to be addressed. The longer the vocational process, the longer the injured worker remains on time-loss and the greater the retraining cost; all factors that impact the bottom line of the State and self-insured employers.  Often, employers scramble to find a light duty job for their employee to get them back to work and avoid the retraining issue.

One of the most frustrating circumstances we encounter occurs when a light duty job offer is made to the injured worker by the employer of injury, with a twist. Continue reading

Structured-Settlements

NEW! STRUCTURED SETTLEMENT AGREEMENTS – What do I need to know?

As of January 1, 2012, a significant change in Washington’s workers’ compensation laws has provided an opportunity to resolve the claims of injured workers age 55 and over through structured settlements, called CRSSA (Claims Resolution Structured Settlement Agreements) agreements.  The CRSSA option is intended to provide an alternative for injured workers who feel “stuck” in the Department’s system, and wish to pursue retirement or alternative work goals outside their claims.

Causey Law Firm was one of the first workers’ compensation firms in the state to successfully negotiate for and receive approval of a CRSSA from the Board of Industrial Insurance Appeals.  

The Department has a specialized unit of experienced personnel to evaluate incoming requests for CRSSA’s from injured workers and employers.  If the Department (or self-insured employer) concludes the claim is appropriate to consider negotiations under the CRSSA, they will request the applicant provide a proposed lump sum figure to initiate negotiations.  Many factors are taken into account in determining whether or not a CRSSA is appropriate, to include whether it is in the best interest of the worker, the nature and extent of both industrial and non-industrial injuries, other claims, present and future income sources of the worker, present and future expenses, employment and education history, and the effect a settlement may have on other benefits.  All of this information is provided to the Department or employer, and if an agreement is reached, it is forward to the Board of Industrial Insurance Appeals, which is a separate state agency, for final review and approval.  As of May 2012, 18 agreements have been filed with the Board, but only six of these have been approved.

Structured settlements allow a worker to resolve all the issues in their claim (time loss, permanent partial disability, vocational rehabilitation benefits, and pension) except treatment, by closing their claim and receiving, after an initial lump sum payment, monthly or bi-weekly payments until the full amount of the settlement is reached.  An injured workers’ right to treatment cannot be compromised under the CRSSA rules and, in some cases, a worker can include authorization for future anticipated treatment in the agreement.   The amount of the settlement and payout schedule will vary depending on the unique circumstances of each claim.

As we have advised several of our clients, it may not be in your best interest to pursue a CRSSA. However, if you are an individual who wishes to pursue self-employment, retirement, part-time work, or alternate vocational avenues, and have become tired of the “system” running your life, and you’d like to have the power to resolve your claim, it may very well be appropriate to pursue this new option.  If so, please give our office a call, and we will be happy to provide further assistance.

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The RETRO Program Is More Dangerous Than It Looks

Should Washington workers be happy about the RETRO program?

In a post from last week we introduced the history of the Workers’ Compensation System and asked the question: Should taxpayer money continue to be used to support the government system that allows these cases to be brought?

A growing number of employers in Washington State are taking part in the RETRO Program, a system within the system, designed with the good intention of incentivizing safer workplaces. Employers that participate in this program pay into the system according to the risk classes of their employees, as usual, but the actual costs of their claims are tracked and compared to the amount of the premiums paid. When the amount paid in claim costs exceeds the premiums paid, the employer is assessed an extra fee. If the claim costs are less than the premiums paid, a refund of the difference is returned to the employer. On the face of it, this seems reasonable, unless we look back to my bridge analogy from last week’s post:

When a bridge is needed in Seattle, those in Yakima don’t want to pay for it, even though our entire highway system supports tourism and commerce throughout the state. So, we have an insufficient tolling system in place based on the concept that only those citizens that drive on the bridge should have to pay for it.

The burden of injury and disability claims is greater on an individual employer than if the responsibility for the costs is shared.

Instead of incentivizing a safe work place we are now incentivizing denials of claims, denial of authorization for medical procedures such as MRI scans, and strict limitations on conservative care such as physical therapy. This creates a dynamic where Claims Managers at the Department of Labor and Industries are pinned between the interests of injured workers seeking benefits and employers counting pennies.

Caught in the middle of the storm, the easy decision for a Claims Manager is to deny benefits and let the issues be sorted out through the appeals process. This leads to delays in treatment, financial hardship and unfair costs to the injured worker, who remains responsible for the cost of attorney fees in litigation, whether they win or lose, when the employers have the ability to deduct the cost of legal fees as a business expense no matter the outcome. The practical effect of this increasing determination to cut every possible cost is that small issues are now routinely raised before the Board of Industrial Insurance Appeals.

We are involved in cases before the Board where the fight is over a few hundred dollars of compensation, or authorization for a procedure or surgery. Do we really want an industrial appeals judge to decide whether a procedure is reasonable and necessary treatment? Especially when there are utilization review processes already in place to monitor the use of those resources and Claims Managers hired to administer the claims, asking workers to bear the burden of an appeal process to get their MRI scan or to keep $300 in time loss compensation paid during the few days between the doctor mailing a release to work to the Department and the Claims Manager reading the note, often when the worker had not been notified of their release, is unreasonable and it is certainly a waste of resources.

More is spent fighting each claim than would be expended simply providing the worker with the benefit. But, providing the benefit comes out of the “claims cost” column, reducing the possible rebate amount, instead of under the “legal fees” tax deduction column.

Another effect of this new dynamic is that physicians are fleeing workers’ compensation claims like rats from the sinking ship. Doctors and clinics that are already working under the administrative burden of a plethora of insurance systems – – federal, state and corporate-run – – all with differing requirements and payment schedules, now find their every recommendation questioned and scrutinized, with payment delayed or denied. If an appeal process is followed, the doctors are asked to take time out of their packed schedules to write reports or testify at hearing or by deposition to justify their opinions, actions and recommendations. Patients have limited access to care or become frustrated when their doctors refuse to participate in the processing of their claims.

For more on the RETRO program, check in for part 3 of this series later this week.

 

Washington-Workers

Workers’ Compensation: Are We Our Brother’s Keeper? Should We Be?

For over 100 years, the Workers’ Compensation system has protected workers in Washington State.

Just over 100 years ago, Washington State put into place our workers’ compensation system, providing the structure under which workers and businesses across the entire state pay into a fund to provide medical care, wage replacement, vocational retraining, total disability and death benefits to those workers injured, disabled or killed in the course of their employment. In exchange for their participation, businesses are provided immunity from lawsuit, even in cases of negligence. Workers are covered, even if they are at fault, if they are injured on the job.

“The common law system governing the remedy of workers against employers for injuries received in employment is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the worker and that little only at large expense to the public. The remedy of the worker has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage worker. The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this title provided.” – RCW 51.04.010

The system has evolved over the decades to address changes in the workplace and in the economy. A balance has been sought between encouraging businesses to locate here, remaining profitable while maintaining safe workplaces, and providing the care and assistance to those workers injured or disabled on the job to reach a maximum level of medical improvement and return to gainful employment in a physically-appropriate job.

The majority of injury claims are handled by the Washington State Department of Labor and Industries, a state agency with no profit motive that is assigned the task to carefully administer the provisions of the program, directed by statute to be construed “to the benefit of the injured worker.”

Claimants, employers and providers are all parties to each claim, with the ability to protest or dispute an unfavorable determination made by the Department. If any party remains aggrieved, an appeal to the State’s Board of Industrial Insurance Appeals or beyond can be pursued. This system is not perfect, but it has worked well for many decades, allowing Washington to boast of relatively high benefit levels but as one of the lowest-cost systems in the country.

Shared Burden Versus Individual Cost Accounting

Washington is one of very few states where workers share the cost of the industrial insurance system, paying 50% of the medical aid premiums through payroll deduction. Premiums are set by risk class so that higher-risk jobs are charged higher premiums than the proverbial desk job. Everyone pays something into the system.

We all share the cost of caring for our injured brethren, be they male or female. The benefit reaped by those not injured is that their co-workers, family members, neighbors – their fellow citizens – who have the misfortune of becoming injured or disabled, have some income and medical care during their recovery. Some measure of belt-tightening may be required, but families of injured workers do not become instantly destitute.

Over the past thirty years or so, there has been a shift in thinking about the shared burdens, not just in Washington but across the country and within our national psyche. We don’t want to take care of others anymore. When a bridge is needed in Seattle, those in Yakima don’t want to pay for it, even though our entire highway system supports tourism and commerce throughout the state. So, we have an insufficient tolling system in place based on the concept that only those citizens that drive on the bridge should have to pay for it. This same attitude has now infected our industrial insurance system.

Should the overall citizenship be responsible for caring for it’s injured members? To what extent? For more in this issue, check back later this week with part 2 of this series. 

 

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Voting Has Never Been This Important To Workers

  • VoteI do not usually get on any political band wagons, but I feel compelled to reach out this election cycle to point out an issue on the ballot that I feel strongly about – Initiative 1082, the workers’ compensation initiative.  I have spent the last 24 years of my professional career in the area of workers’ compensation law.  It is a shame that this area of law, and this system, which is so little known and little understood by the general public  has made its way to the ballot via I-1082.  I fear that most voters, reading the plain language of the initiative, will unknowingly vote yes using what seems to be common sense to allow private insurance companies to start selling workers’ compensation insurance directly to employers in the State of Washington.  Competition is a good thing, right? Doesn’t sound like a big deal.

    One local business owner wrote an e-mail this morning saying that this initiative would raise his expenses by $13,000+ – in the first 18 months!

    I have always adhered to the sage wisdom that if you don’t know anything, or enough, about the implications of an initiative, it is always best to vote NO.  With I-1082 that is even more the case, because the implications are significant, and the devil is in the details of the 10 pages setting up this new system that you will not be reading on your ballot.  Here’s a few details for you–in Washington State, all workers have historically paid a percentage of industrial insurance premiums, sharing this expense with their employers.  Thus, we are all stakeholders in this system, and I think that’s a good thing.  This initiative will place the entire financial burden of industrial insurance premiums on employers.  So, this is not good news for business, who will see their costs rise significantly and immediately.  One local business owner wrote an e-mail this morning saying that this initiative would raise his expenses by $13,000+ – in the first 18 months!  Continue reading

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I-1082: The Wrong Solution For Washington’s Workers’ Compensation System

No on 1082Almost one hundred years ago, Washington was one of the first states to enact the oldest social insurance program in our country – workers’ compensation.  It was part of a social compact between business and labor in which employees traded their right to sue in tort for their injuries for a more timely, but lower benefit, no-fault system to cover their injuries.  Only in the U.S. – among virtually all industrialized democracies with workers’ compensation systems – is the private, for-profit insurance industry permitted to underwrite these legislatively mandated programs and have any role in this social contract.  Our state has operated without the intrusion of the for-profit industry for its entire existence, and despite its faults and shortcomings, Washington’s system is viewed among the states as one of the most highly efficient and productive,  The proponents of I-1082 have simply not made a case for the so-called “reform” they claim privatizing our system will bring.  Reject this initiative – it is the wrong solution for our state.

Reject this initiative – it is the wrong solution for our state.

As we struggle to come out of the “Great Recession,” Washington voters face real issues, many created by our slumping economy.  Continue reading