Category Archives: Workers’ Compensation

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Injured Worker Stakeouts: Do Private Investigators Commit Fraud?

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Have you noticed a suspicious vehicle lurking in your neighborhood lately, or is there a stranger that seems to be everywhere you go? If you have an active workers’ compensation claim, then you may not be imaging things. More and more, we are seeing insurance companies willing to spend thousands of dollars to hire private investigators to conduct clandestine surveillance of an injured worker’s daily activities and documenting these activities with video cameras. This type of surveillance often comes as a shock to our clients.

When these situations arise, the question we hear most often is, “Can they do that? Is this legal?” The answer is yes. Private investigators may photograph or video people in their private residences so long as they are clearly visible to the general public and there is no expectation of privacy. They can also conduct a full background investigation and obtain information about any other claims you made for personal injuries or if you have ever been charged with a crime.

While there are honest private investigators in the field, there are also those who will cheat. One investigator deflated an injured worker’s tire and then videotaped the person “working” to fix the flat tire. Another investigator reported talking on the phone to someone who told him that an injured worker was working while also receiving workers’ compensation benefits. A follow up done by our firm proved that the person with whom the investigator claimed to have talked has a serious hearing impairment and could not use the telephone.  

Injured workers need to be aware that surveillance can happen in any case. It has become part of the workers’ compensation system. By the way, if you do notice a suspicious car parked near your home, call the police.

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Pacific Topsoils Fined $199,000 for Safety Violations Related to Death of 19-year-old

The Department of Labor & Industries (L&I) has cited an Everett company for multiple safety violations related to the death of a worker last July. Nineteen-year-old Bradley Hogue was killed by a rotating auger while working inside the hopper of a bark-blower truck at a Duvall home.

Pacific Topsoils has been cited for two willful and 14 serious violations, with penalties totaling $199,000. The employer has also been identified as a severe violator and will be subject to follow-up inspections to determine if the conditions still exist in the future.

“The loss of this young man’s life is a tragedy that could have been prevented if the employer had followed basic safety and health rules that protect workers from moving machinery,” said L&I Assistant Director Anne Soiza. “We hope this citation and the penalties serve as a deterrent so that nothing like this ever happens again.”

Following the July incident that killed Hogue, L&I issued a bark and mulch-blower hazard alert to warn others in the landscaping business of the danger of working in hoppers while the equipment is running.

The L&I investigation found that Pacific Topsoils’ workers were regularly assigned to clear jams in the bark-blower truck hoppers while the hoppers were operating. This exposed them to three very hazardous elements: a floor conveyor belt, two rotating-screw conveyors (angled augers) and a rotating stir rod. Exposure to any of these parts of the equipment could potentially result in entanglement, causing severe crushing injuries or death.

Working in and around this type of extremely hazardous equipment requires “lockout/tagout” safety procedures to prevent machinery from starting up or moving during service or maintenance by workers.

The employer was cited for two willful violations. The first was issued for not ensuring lockout/tagout procedures were regularly used; it carries a penalty of $56,000. The second willful violation was issued for not training the employees in the proper use of those critical procedures; it carries a $52,000 penalty.

Additionally, working in the hopper of bark-blower trucks exposed workers to “confined space” hazards. Confined spaces, like hoppers, are areas large enough to accommodate a worker, but aren’t designed for continuous employee occupancy and have limited ways to enter or exit.

When a confined space has one or more hazardous characteristics, such as moving machinery or a potential for engulfment that may harm workers, it’s considered a “permit-required” confined space. That means employers must control access to the area and use a permit system to prevent unauthorized entry. Anyone working in or around a permit-required confined space must be trained and there must be safety measures and rescue procedures in place.

Twelve of the serious violations cited were for failure to implement safe work practices when entering a permit-required confined space. Two other serious violations were cited for not having an effective accident prevention program and for failure to document lockout/tagout procedures. Each of these violations carries a $6,500 penalty.

A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule. A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition.

The employer has 15 working days to appeal the citation. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping workers and families of those who have died on the job.

For a copy of the citation, please contact L&I Public Affairs at 360-902-5413. 

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State Laws Determine Worker’s Rights: Work Comp Benefits, Process Vary by State

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

Many workers are hired in one state but are required to attend orientation or participate in a hiring process in another state because their potential employer is principally located and doing business there. Once they are hired and accept the job, they are then required to work in another state for various reasons. In these situations, many workers do not realize that a different state’s laws could apply to their workers’ compensation claim if they are injured in a state that is

  1. different from where they were hired,
  2. different than where they accepted the job,
  3. different from where their employer is principally located or performing work, or
  4. even different than where they currently live. 

If you have been injured in another state, you may be eligible to have your workers’ compensation benefits determined by another state’s laws. This is important, as the benefits you could be entitled to are different in every state. In certain respects, the differences are significant in terms of the amount of weekly benefits, permanent benefits, or type and duration of medical care you may be able to receive.

The right to choose your family physician to treat you for your injury or the amount and duration of the disability benefits you may be entitled to are significantly different in every state. Let’s consider a few pairs of cities:

  • Omaha, Nebraska & Council Bluffs, Iowa
  • Sioux City, Nebraska & Sioux City, Iowa
  • Nebraska City, Nebrsaka & Harlan, Iowa

These cities in different in Iowa and Nebraska border each other, and a great number of residents from one are employed and work in the other. If you are injured in one state but live in another, and depending on where you were hired or where you were when you accepted the employment, you may have a Nebraska or Iowa workers’ compensation claim, or even both. 

Nebraska

If your employment or your accident has any ties to the state of Nebraska, your employer is required to file a First Report of Injury with the Nebraska Workers’ Compensation Court. When this occurs, it is common for the Nebraska Workers’ Compensation Court to actually mail you a copy of your own First Report of Injury that was filed with the court by your employer. Just because a First Report of Injury was filed in Nebraska and just because the Nebraska Workers’ Compensation Court sends you a copy does not mean you are limited to Nebraska for the benefits that you may be entitled to. 

Iowa

It is also normal for an insurance carrier of the employer to mail you a letter that says, “Your employment agreement, whether in writing or made in person, required your accident to fall under Iowa law,” or some other state’s law. Generally, no one has the right to decide for you which state your case can be determined in. It is a question of each state’s laws that determine where your claim can be processed.

Nebraska and Iowa

As a matter of general practice, if your accident occurred in that state, your claim and benefits can be determined based on that state’s laws. Other things like where your employer is principally located or where your employer regularly performs work can determine if you have a claim in each state. Further, your contract of hire or where you accepted the employment can also play a part, as well as where you were residing at the time of your accident in relation to where your employer was performing work, can also determine which state you may have a claim in. 

These things, as well as what type of benefits each state allow, could make it possible for you to file in both states.

Time Periods to File in Each State

Each state has a certain time period in which to file a claim or action in the compensation court. 

  • In Nebraska, you have two years from the date of accident OR two years from the date of any payment (weekly disability check, medical bill, mileage, prescription) in which to file an action in the compensation court. 
  • In Iowa, a person has two years from the date of accident OR three years from the date of payment of a weekly disability benefit check in which to file an action in the compensation court.  

Beware, however, that payment under one state’s laws may not save your claim in another state. For example, a payment under Iowa law will count toward a payment in Nebraska. However, a payment under Nebraska law will not count toward a payment under Iowa law.

Award, Order or Settlement Agreement for Benefits

It is important to note as well that an award, order or settlement can affect your right to file a claim in another state. 

For example, if one obtains a Court Award, Order or Settlement in Nebraska, this would prevent you from obtaining any benefits in Iowa, if you had the option of pursuing benefits in both states. 

On the other hand, if the same person obtained a Court Award, Order or Settlement in Iowa, a person could still pursue additional benefits in Nebraska that are different than what was provided in Iowa.

In both states, the insurance carrier would be entitled to a credit for what they paid in the other state, but you would still have the opportunity to pursue different and additional benefits in the other states, potentially.    

Summary

The differences in law issues are often very complex. Whatever your situation is, if you think there might be any question as to which state’s laws apply to your case, you should speak to an experienced attorney who can advise you about the laws in each applicable state.

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Dept. of Labor and Industries Fines Battle Ground, WA Company After Worker’s Hand Amputated

The Department of Labor & Industries has fined a Battle Ground, WA plastic bottle manufacturer $86,800 for major safety violations after a worker’s hand was caught in machinery and had to be amputated.

Andersen Plastics was cited for one willful violation and six serious violations. The investigation found several problems with the company’s lockout/tagout safety program, a term that refers to the deliberate process of shutting down machinery to prevent accidental startup.

Failure to prevent machinery from accidentally starting puts workers at risk of serious injuries, such as the amputation that occurred in April when a worker was performing a routine task.

L&I cited the employer for a “willful” violation after the investigation found that workers were trained to use unsafe work practices, including bypassing safety guards and not ensuring the machinery was locked out so that it couldn’t start up accidentally.

A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule. The penalty for the one willful violation is $58,500.

Additionally, the investigation found the company did not have specific procedures or a safety program to prevent accidental startup. The employees lacked training and did not understand the purpose or procedures for locking out equipment before making adjustments, performing maintenance or clearing a jam.

The inspection also found several other serious violations related to personal protective equipment and safe forklift operation.

Andersen Plastics has filed an appeal.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

For a copy of the citation, please contact Public Affairs at 360-902-5413.

 

Photo credit: Horia Varlan / Foter / CC BY

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Vancouver, WA Road Paver Charged with Unregistered Contracting

A Vancouver, WA man faces criminal charges that he operated as an unregistered contractor while paving driveways for Clark County residents. Some Clark County customers claimed his work was shoddy or never finished.

The Washington Attorney General’s Office has charged Salvador Rodriguez, 44, with six counts of unregistered contracting, a gross misdemeanor. He also faces two felonies − one count each of doing business without workers’ compensation insurance and failing to report or pay workers’ comp premiums. His business goes under the name Chava Paving.

The prosecution stems from a Department of Labor & Industries (L&I) investigation and multiple encounters between Rodriguez and L&I construction compliance inspectors.

 

Ridgefield consumer paid $33,000

The charges cover at least seven jobs Rodriguez’s company performed or agreed to perform from September 2012 through June 2014. In several of the jobs, consumers told L&I that Chava Paving did shoddy work or never finished, but Rodriguez refused to provide refunds or complete the jobs.

In one instance last June, a Ridgefield, WA property owner paid $33,000 in advance for the company to build a retaining wall and parking pad, and spread gravel on a road. The owner said that after five days on the job, the crew’s work was so poor and incomplete that he cancelled the contract. Rodriguez wouldn’t repay any of the money, which the property owner had paid in checks written to Salvador’s 17-year-old son, court documents said.

L&I recommends that consumers never pay contractors in full until the job is completed to their satisfaction.

Along with leaving unsatisfied customers, L&I found that Rodriguez wasn’t paying workers’ compensation for his employees. He employed three to 10 workers, depending on the job, without paying workers’ comp. In one case, at a Vancouver, WA mobile home park in July 2013, one worker even filed a wage complaint, contending that he was never paid; L&I retrieved the back pay for the employee.

 

Admits working without license

During an October 2013 interview with L&I staff, court documents said, Rodriguez admitted he and his workers were performing paving jobs without a contractor’s license or workers’ compensation account. He said he had to keep working to pay his bills.

Rodriguez originally registered Chava Paving in 2005. L&I suspended his contractor registration in May 2009 when his insurance and bond were cancelled, and revoked his workers’ comp coverage in October 2010 for failing to pay premiums. Since 2009, L&I inspectors have issued Rodriguez a dozen civil citations for unregistered contracting; none has been paid.

 

Check out prospective contractors

State law requires construction contractors to register with L&I. To register, contractors must have liability insurance, a business license and a bond to allow for some financial recourse if the project goes awry. Consumers can check whether a contractor is registered by going to www.Verify.Lni.wa.gov or calling 1-888-811-5974.

 

Photo credit: Steve Snodgrass / Foter / CC BY

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Avoid the Pitfalls of Auto-Pay Agreements

Many of my clients tell me, with fear in their voice, that they have one or more bills set to automatically pull from their bank accounts, but they have no money in the bank to cover the payment and will face overdraft charges if the payment pulls from their account.  Typically, these are car payments, as many auto loan lenders offer lower rates if the purchaser agrees to set up automatic payments.  Some businesses, like your local gym, may require auto-pay agreements. It seems like a good idea, when one is working.

Add an injury or disability into the mix, though, and it can become your worst nightmare.  Even under the best circumstances, an injured worker that is receiving their time loss compensation benefits – often 60 – 65% of pre-injury wages, or a much smaller percentage if they were a high wage earner and have hit the ceiling of compensation rates – will most certainly not be getting paid on the same schedule as their payroll department was using.  Juggling bills is hard enough with decreased income levels, but the forfeiture of control over the ebb and flow of funds in your bank account can put you in financial peril after an injury.

If you find yourself in the scenario I have described, try contacting your lender or service provider to inquire about making changes to the agreement you signed – or terminating the agreement, if needed – to at least make the drafts from your account occur on a better schedule but, preferably, to take back control of the payments.  You should maintain the ability to make payments to creditors on your own schedule when funds are available.  The auto-draft agreements are a contractual agreement, though, and you may need legal assistance to alter them.  In my experience, though, lenders are usually able to work with their clients to maintain the integrity of their loans.  In the long run, repayment is their goal and facilitating your ability to manage your payments is in their best interest, too.

Photo credit: 401(K) 2013 / Foter / CC BY-SA

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Major Asbestos Violations Result in Fines for Two WA Companies

The Department of Labor & Industries (L&I) has cited two employers for violations that exposed workers to asbestos during the demolition of a Seattle apartment building. Asbestos can cause cancer and other fatal illnesses.

An L&I investigation into the Seattle project found a total of 19 willful and serious safety and health violations. As a result, together the businesses have been fined a total of $379,100.

Partners Construction Inc., of Federal Way, was cited for a total of 14 willful and serious violations and fined $291,950. Asbestos Construction Management Inc., of Bonney Lake, was fined $87,150 for five willful and serious violations.

The violations were for asbestos exposure to workers, asbestos debris left on site and other violations that occurred during demolition of an apartment building in the Fremont neighborhood. The three-story, five-unit apartment building was originally constructed with “popcorn” ceilings, a white substance containing asbestos fibers, as well as asbestos sheet vinyl flooring.

Asbestos is an extremely hazardous material that can lead to asbestosis, a potentially fatal disease, as well as mesothelioma and lung cancer. Removal of asbestos-containing building materials must be done by a certified abatement contractor who follows safety and health rules to protect workers and the public from exposure to asbestos. The contractor must also ensure proper removal and disposal of the asbestos materials.

Partners Construction Inc., a certified asbestos abatement contractor at the time, was hired by the building owner to remove the asbestos before the apartment building was demolished.

After several weeks, Partners provided the building owner with a letter of completion indicating that all asbestos had been removed. When L&I inspectors responded to a worker complaint, the inspectors found that the removal work had not been done and approximately 5,400 square feet of popcorn ceiling remained throughout, as well as asbestos sheet vinyl flooring.

Partners came back to finish the abatement work; however, due to a prior history of willful violations, L&I was in the process of revoking Partners’ certification to do asbestos abatement work. In May, Partners was decertified and went out of business.

A new company, Asbestos Construction Management Inc. (ACM), owned by a family member of the Partners owner, took over the job using essentially the same workers and certified asbestos supervisor as Partners, and sharing the same equipment.

A subsequent L&I inspection of ACM found many of the same violations as in the Partners’ inspection. L&I has initiated decertification action against ACM.

The employers have 15 business days to appeal the citation.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

For a copy of the citations, please contact Public Affairs at 360-902-5413.

 Photo credit: avlxyz / Foter / CC BY-SA

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Olympia, WA Roofing Company Cited 7th Time for Safety Violations

The Washington State Department of Labor & Industries (L&I) has cited an Olympia roofing company for the seventh time in recent years for safety violations involving fall protection for roofers.

The Roof Doctor Inc., was cited for six willful violations and one serious violation, with total proposed penalties of $219,600. Each of the six willful violations carries a penalty of $36,000, and the serious violation has a penalty of $3,600.

A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition. A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule.

“Falls from elevation are the leading cause of Washington’s worker fatalities and immediate hospitalizations, and they are fully preventable,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “The tragedy, pain and suffering from these incidents are completely unnecessary for the workers’ families and friends and our communities.”

The Roof Doctor inspection began on April 11 when an L&I safety compliance officer observed employees working on a rooftop at an Olympia-area residence without proper fall protection equipment. The investigation found that five workers were exposed to falls from as high as 17 feet while engaged in various roofing activities.

The employer has appealed the citation. The appeal will be heard by the Board of Industrial Insurance Appeals, an independent state agency separate from L&I.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

 Photo credit: Jorbasa / Foter / CC BY-ND

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Are You Really an Independent Contractor?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

“Calling a dog’s tail a leg does not make it a leg.” Abraham Lincoln

FedEx drivers recently won two class-action lawsuits in the 9th Circuit Court of Appeals. The court ruled that FedEx wrongfully withheld overtime pay, Social Security, unemployment, Medicare and other benefits to drivers because they were misclassified as independent contractors rather than employees. The decisions were driven by the fact that FedEx exercised control over the appearance of drivers as well as what packages to deliver, on what days, and at what times.

Though the FedEx decision only applies to Oregon and California, it is very possible that a similar decision would have been made under Nebraska law. Under the Nebraska Wage Payment and Collection Act as well as under the Employment Security Law, Neb. Rev. Stat. 48-601 et al., there is a five-part test as to whether a worker is an independent contractor or employee.

  1. Individual is free from control or direction under contract of hire
  2. Individual is free from control or direction as a matter of fact
  3. Service is outside the usual course of business for which service is performed
  4. Such service is performed outside of all the places of business of the enterprise which such service is performed
  5. Individual is customarily engaged in an independently established trade, business or profession.

Nebraska law creates a presumption of an employer-employee relationship. Tracy v. Tracy, 581 N.W. 2d 96, 7 Neb. App. 143 (Neb. Court of Appeals, 1998) In short, if you can answer most of those questions “no,” you are very likely an employee rather than an independent contractor. The mere fact that you may have signed a documents stating you are independent contractor does not necessarily mean you are an independent contractor.

In addition to protections under federal law, asking questions about your employment status is also a protected activity under Nebraska law. Being misclassified as an independent contractor could cost you thousands of dollars in wages and benefits. However, you have the ability to fight back if you are being misclassified.

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Rate Increase for 2015 WA Workers’ Compensation Premiums

L&I proposes 1.8 percent average rise in workers’ comp rates in 2015 — slightly less than wage inflation

TUMWATER – Tens of thousands of workers in our state are injured on the job every year, and our workers’ compensation system is there, ready to help them, their families and their employers. As both wages for workers and health care costs go up, the cost of providing this insurance goes up too.

The Department of Labor & Industries (L&I) is proposing an average 1.8 percent rate increase for 2015 workers’ compensation premiums, which is just under the current rate of wage inflation. The increase comes out to about 1 cent per hour worked.

Employers and workers around Washington pay into the workers’ compensation system so they’re covered if someone gets hurt on the job or becomes ill from a workplace exposure. Last year, L&I covered more than 80,000 work-related injury and illness claims in Washington state.

The proposed premium increase will help cover wage and disability benefits, as well as medical costs for treatment of injuries and illnesses. It will also allow L&I to continue to build reserves to protect against the unexpected.

 

Cutting workers’ compensation costs

“This measured increase will help make sure we have a healthy workers’ compensation system that’s always ready to help workers when they need it,” said L&I Director Joel Sacks. “The proposal keeps with our long-term plan to keep rates steady and predictable, help injured workers heal and return to work, and reduce costs by improving operations.” 

L&I has several initiatives underway to improve its ability to get injured workers healed and back to work while reducing costs and improving service. To do this, the agency is focused on:

  • Promoting injury prevention.

  • Ensuring injured workers receive quality health care.

  • Providing services to support employers who want to keep injured workers on a job.

  • Improving the workers’ compensation claims process.

The Stay at Work Program is one example of agency work to help injured workers and employers, and save money. This fall, L&I launched a second campaign to promote the program. Through Stay at Work, the state reimburses employers for part of the cost of providing light-duty work to injured employees. The employees get to keep working and are more likely to recover faster.

 

Keeping the system healthy and rates steady

L&I is using wage inflation as a benchmark to keep workers’ compensation rates steady and predictable. Washington’s most recent wage inflation number is 2 percent. As wages climb, the cost of providing workers’ compensation coverage rises.

“Raising rates this small amount helps keep costs in check for businesses, helps our system keep up with inflation and assures we have a reserve available for the tough times. It makes good financial sense,” said Sacks.

 

Public hearings on the proposed rates will be held in: 

  • Bellingham, Oct. 22, 9 a.m., Whatcom Community College.

  • Spokane, Oct. 23, 9 a.m., CenterPlace Event Center.

  • Richland, Oct. 24, 9 a.m., Richland Community Center.

  • Tumwater, Oct. 27, 9 a.m., L&I Building.

  • Tukwila, Oct. 28, 9 a.m., L&I Office, Gateway Corporate Center.

  • Vancouver, Oct. 30, 9 a.m., Northwest Regional Training Center.

 

People can comment at the public hearings or in writing to Jo Anne Attwood, administrative regulations analyst, P. O. Box 41448, Olympia, WA 98504-4148; or email joanne.attwood@Lni.wa.gov. All comments must be received by 5 p.m., Nov. 3, 2014.

More information regarding the rates proposal is available at www.Rates.Lni.wa.gov. Final rates will be adopted by Dec. 1 and go into effect Jan. 1, 2015.

 

Workers’ Comp Facts:

  • L&I is the state’s primary workers’ compensation insurance provider, covering 2.4 million workers and more than 160,000 employers.

  • The proposed rate is an average. An individual employer’s actual rate change may be more or less depending on that employer’s industry and history of claims that result in wage replacement and/or disability benefits.

  • More than 80,000 claims are accepted each year through the Washington State Workers’ Compensation State Fund. 

Photo credit: Mostly Muppet / Foter / CC BY