Category Archives: Workers’ Compensation

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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

Spokane Woman Charged with Defrauding State in $101,000 Disability Scam

SPOKANE — A Spokane woman stands accused of raking in more than $100,000 in disability benefits while working with her husband to operate his motel, and their nightclub and apartment building.

The Washington Attorney General’s Office has charged Mistie S. Crosby, 52, with one count of first-degree, felony theft. Crosby is slated to appear on the charge in Spokane County Superior Court on July 23.

The case resulted from a Washington State Department of Labor & Industries (L&I) investigation.

Crosby said she hurt her back, neck and shoulder in September 2010 while working at Sunset Junction, a nightclub in Spokane that has since closed. According to charging papers, she filed an injured workers’ claim, physicians confirmed she was injured, and L&I opened her claim.

No mention of ownership

When submitting the claim form, Crosby did not divulge if she was an owner, partner or corporate officer in the business where she was injured. Business owners must provide employees with workers’ compensation insurance, but the coverage is optional for the owners themselves. Crosby never signed up for the insurance.

From the time she was injured through early 2013, Crosby received nearly $59,000 in wage-replacement payments and more than $42,000 in medical and vocational benefits from L&I. During that period, she signed official forms certifying she was not working and incapable of working due to her on-the-job injury.

Undercover investigation

However, an L&I investigation revealed that Crosby was working at the Lascelle Motel and an apartment complex while she was receiving the workers’ comp benefits, charging papers said. At one point, she even showed apartments to an undercover investigator, and easily climbed stairs as the investigator watched.

In an interview in February 2013, Crosby told the investigator she co-owned the nightclub, motel and apartment complex, and played an integral role in each business, charging papers said.

L&I began the investigation based on a tip that Crosby was more active than she was reporting to L&I, and that she might be helping at the nightclub.

“We investigate every tip,” said Doric Olson, deputy assistant director of Fraud Prevention and Labor Standards. “Rooting out fraud allows us to protect the system for workers who are truly injured.”

To report cases of suspected fraud, go to Lni.wa.gov/Fraud or call 1-888-811-5974.

 

Photo credit: RoadTrippers.com

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Workers’ Comp Covers Work-Related Motor Vehicle Accidents

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

Do you drive a company vehicle as part of your job?

Many find themselves in the situation where they travel regularly, or on a special errand from time to time, as part of their job. 

In the unfortunate scheme of things, if you are involved in an accident while driving, whether it is your fault or not, you are covered by and entitled to workers’ compensation benefits just as any other employee who suffers an accident on the premise of an employer.

More importantly, if the cause of the accident was not due to negligence of your own, but that of a third party, you have a right to bring a third-party negligence action against the party responsible for causing the vehicle accident. This right is separate and distinct from the workers’ compensation benefits that you are entitled to. Further, you also potentially have the right to bring an underinsured motorist coverage claim under your employer’s motor vehicle coverage as well as your own underinsured motorist vehicle coverage. These, too, are separate and distinct from the workers’ compensation benefits you are entitled to. 

It is important to note that the employer would have a subrogation right to be reimbursed for workers’ compensation benefits paid on your behalf against that of any third-party negligence claim where you obtained a recovery. However, as underinsured motorist coverage is typically viewed as contractual benefits in nature, there is no subrogation right from your employer if underinsured benefits are obtained in Nebraska.

If you or someone you know was injured in a motor vehicle accident that arose out of and in the course of one’s employment, there are significant issues to be aware of in order to obtain a recovery that meets your needs. If you have any questions or uncertainty when dealing with this point of law, please seek the advice of an experienced attorney who can help steer you in the best course of action.

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Medical Care Politics in Worker’s Compensation

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

The mythology surrounding employee fraud in worker’s compensation is pervasive. Many of my clients begin their conversations with me indicating the following: “I’m not one of those folks faking their worker’s compensation claim.”  The exaggerated media publicity concerning employee fraud has also resulted in outright worker intimidation regarding filing a claim. I had this conversation today with a prospective client.

Attorney: Why didn’t you report the incident?
Client: I didn’t want to have that on my record.  Nobody will hire me if I have a worker’s comp injury.
Attorney: Why didn’t you seek medical treatment?
Client: I do not have insurance.
Attorney: Can you obtain insurance under the Affordable Care Act?
Client: You mean Obamacare?  No way!

Fear of being stigmatized as a complainer, whiner, or simply a recipient of worker’s compensation benefits has prompted many legitimately injured workers from filing a worker’s compensation claim.

The adverse publicity concerning the Affordable Care Act (and its pejorative popular name “Obamacare”) results in many otherwise qualified workers from obtaining the health care they need, especially when denied by a worker’s compensation insurance carrier. 

The politics of medical care intrudes in the worker’s compensation arena daily.

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Wilcox Farms Fatal Silo Collapse – Citations

The Department of Labor & Industries (L&I) issued a press release on June 4th stating that it has cited Wilcox Farms Feedmill, Inc., of Roy for safety violations related to a fatal silo collapse last December. One worker died after he was engulfed in more than 400 tons of corn that spilled out of the silo.

Wilcox Farms issued a press release on February 12, 2014 describing the incident, the emergency response to it and how competitor farms came to the business’s rescue to provide feed for the chickens in the days after the accident. 

“As an employer, especially a family business, it’s the worst thing you could ever imagine happening,” said Andy Wilcox. “The fact that we weren’t able to find Steve for two days was really tough.”

Wilcox has been cited for one “willful” and two “serious” safety violations with total penalties of $67,200. The state investigation found shortcomings in how the company maintained and managed the silo, and inadequate employee training.

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.

The day the 60-foot tall silo collapsed, two employees were working on feedmill operations, which included discharging corn using an auger in the silo. The unloading auger was not working that day, so they opened a side discharge door to allow corn to flow onto the outer portion of the auger. During that process, the silo collapsed and 400-500 tons of corn spilled out, engulfing one worker who was unable to escape.

Worker fatalities are tragic and preventable,” said Anne Soiza, assistant director of L&I’s Division of Occupational Safety and Health. “Our state requires all employers to provide safe and healthy workplaces. We fully expect Wilcox will correct the hazards and practices that haven’t been fixed already to ensure their employees are as safe as can be.”

Wilcox Farms has 15 working days to appeal the citation.

As part of the investigation, L&I hired an engineer to assess the structural integrity of the silo.

The investigation found four instances where Wilcox was not following proper silo operation and maintenance procedures that may have contributed to the collapse. For example, if corn is added or discharged improperly or the silo is overfilled, tons of grain could build up at an uneven rate and then suddenly shift and create instability. The four instances were:

  • A side discharge system was used to unload corn instead of the manufacturer’s standard procedure of withdrawing grain from the vertical center via the auger. The side discharge system was not installed, designed or supplied by an authorized dealer or contractor.

  • The silo was overfilled all the way to the roof and past the maximum fill level of one inch from the top of the vertical walls.

  • The silo had been previously repaired with a patch over a rupture of the wall due to corrosion. The repair was not made with corrugated material and was not done in a way to ensure structural stability. Also, it wasn’t assessed by a structural engineer or the silo manufacturer.

  • There were previous occasions during which the company had simultaneously filled the silo while it was being discharged.

L&I concluded that this was a willful violation with a proposed penalty of $56,000.

The investigation also found two serious violations with proposed penalties of $5,600 each:

  • Employees weren’t trained in specific procedures and safety practices for silo operations and maintenance.

  • The employer did not maintain the silos in accordance with the manufacturer’s maintenance and safety procedures.

Wilcox Farms has 15 working days to appeal the citation. For a copy of the citation, please contact L&I Public Affairs at 360-902-5673.

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.

 

 Photo credit: kirotv.com

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Washington Forklift Rodeos – Competitors Needed!

Being a safe forklift driver requires skill and knowledge. Professional forklift drivers have an opportunity to demonstrate both in upcoming regional forklift competitions. The winners of the two regional events will go on to a statewide “rodeo” at the Governor’s Industrial Safety and Health Conference in the fall.

Eastern Washington drivers are invited to compete June 21 in the regional qualifying forklift rodeo at the Spokane Fire Department Regional Readiness Center at 1618 N. Rebecca St. 

A Western Washington forklift competition will be held Aug. 23 at the Boeing Kent Space Center, 20403 68th Ave. S. The top five individual qualifiers from each of these regional competitions will then proceed to the 17thAnnual Forklift Rodeo at the 63rd Annual Governor’s Industrial Safety and Health Conference held this year in Spokane on Sept. 24.

Employers are encouraged to sponsor in-house competitions. The forklift rodeos typically draw the best forklift drivers from around the state.

To take part, competitors must first successfully pass a written exam and be current on training requirements. During the competition, the forklift drivers are timed as they negotiate a fun and challenging course.

The top eight drivers in these regional competitions earn cash prizes ranging from $50 to $300. In the finals, prizes range from $100 to $500 for the top five drivers. Team awards are also given for the top two teams in each region. Participation is limited to the first 30 drivers who register.

Visit www.wagovconf.org for registration forms or call 206-281-3842 or 1-888‑451-2004 (TDD users: 360-902-5797). The entry fee is $40 for competitors. Spectators are welcome and there is no admission charge.

The conference is co-sponsored by the Governor’s Industrial Safety and Health Advisory Board and the Department of Labor & Industries.

 

Photo credit: NASA Goddard Space Flight Center / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

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Kids’ Chance – Providing Silver Linings for Families of Injured Workers

Kids’ Chance of Washington is a need-based scholarship program for the dependent children and spouses of workers killed or seriously disabled in a workplace accident in Washington. It was founded in 2001 as one of 20 states helping kids to achieve their desired future.

Serious work-related accidents can have a devastating impact on families, especially children. The financial impact can be life shattering. Kids’ Chance of Washington is a non-profit charitable organization whose mission is to provide educational scholarships to these families in need. Through the collaborative efforts of business and labor organizations, need-based scholarships are provided to the children and spouses of Washington workers permanently or catastrophically injured or deceased.

Scholarships are funded through donations from business and labor organizations throughout Washington, as well as individuals, employers, attorneys, other groups, and special activities sponsored by specific individuals or groups and grants.

Kids Chance of Washington is one of many states that offers this Kids’ Chance scholarship program. For more information on other states’ programs, visit the National Web Site for Kids’ Chance, Inc.

Causey Law Firm is proud to support Kids’ Chance of Washington.  Monica Bell and I attended the annual fund raising dinner on June 5th and were inspired to see the number of people, from all facets of workers’ compensation – claims management, vocational services, business and labor groups, and attorneys representing both claimants and employers – coming together for this common cause.

Photo credit: CarbonNYC / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)