Category Archives: Workers’ Compensation

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Workers’ Comp Programs Further Injure Injured Workers

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

Those of us who represent injured workers have known for a long time that workers’ compensation does not restore an injured worker to his pre-injury wage or status.  Two reports released in March show how workplace injuries have failed injured workers and leave them deeper in debt.  OSHA released a report indicating the changes in workers’ compensation programs have made it much more difficult for injured workers to receive benefits or medical expenses.  Although employers pay insurance premiums to workers’ compensation insurance companies who are supposed to pay benefits for medical expenses, employers provide just 20% of the overall financial cost of workplace injuries through workers’ compensation according to the OSHA report. 

This “cost shifting” is borne by the taxpayer.  As a result of this cost shifting, taxpayers are subsidizing the vast majority of the income and medical care costs of injured workers.  After a work injury, injured workers’ incomes average more than $30,000 lower over a decade than if they had not been injured.  Additionally, very low wage workers are injured at a disproportionate rate. 

Another report by ProPublica and National Public Radio found that 33 states have workers’ compensation laws that reduced benefits or made it more difficult for those with certain injuries and diseases to qualify for benefits.  Those hurdles, combined with employers and insurers increasing control of medical decisions (such as whether an injured worker needs surgery) reduced the worker’s likelihood of obtaining the medical care needed.

Overall, injured workers who should be paid under workers’ compensation are receiving less benefits and their medical care is being dodged by insurers and paid for by taxpayers through Medicaid and Medicare, or by increased insurance premiums for all of us through group health insurance rate increases.

Our general sense that injured workers are faring poorly is borne out by the research.

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Examining Workers’ Compensation Costs to Employers

Source: Bureau of Labor Statistics National Compensation Survey 1991 – 2014 (Credit: Sisi Wei/ProPublica)

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

Business and insurance interests are bombarding state legislatures every day of the week to take workers’ rights away by complaining how most states’ workers’ compensation systems are too expensive.

Recently, ProPublica and NPR produced a very detailed explanation of the state of workers’ compensation, focusing, rightly so, on injured workers. This article, which was the first in the series, included an interactive graphic that showed that even though business are complaining about rising premius, workers’ compensation insurance coverage is generally at its lowest rate in 25 years, “even as the costs of health care have increased dramatically,” according to the article.

As examples, using the average premium cost to the employer per $100 of workers’ wages, Nebraska employers paid $1.93 in 1988, while they actually paid $.15 less for the premium in 2014, for a total of $1.78 per $100 of workers’ wages, according to the chart. Iowa was more dramatic, with the price of workers’ compensation insurance $2.79 per $100 of workers’ wages in 1988. It went down $.91 to $1.88 per $100 of workers’ wages in 2014.

By scrolling down in the article, a person finds another graphic that shows how employer costs have risen for other categories, but have fallen for workers’ compensation. Most notably, the cost of workers’ compensation insurance coverage (per $100 of workers’ wages) went from $2.71 in 1991 to $2.00 in 2014. During the same timeframe, the cost of health insurance went from $8.55 to $12.52 and the cost of retirement benefits went from $5.50 to $7.29, all per $100 of workers’ wages, according to the chart in the article.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers’ Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), and the Nebraska Association of Trial Attorneys (NATA).  We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Workers’ Compensation – A System Destroyed

            A recent national study confirms what most attorneys who have practiced in the workers’ comp arena have observed over the past ten to twenty years:  the business lobby and the insurance industry, enabled by the ever-increasing takeover of state legislatures by the Republican party, have largely dismembered our nation’s 100-year-old workers’ comp system.  ProPublica, an independent, non-profit newsroom producing public interest investigative journalism, has shined a light on what has happened to the most important safety net for workers.  The full article is here. The whole series is an exhaustive look at the changes afoot; well worth a read.

            Under the banner of reforming a system described as suffering “out of control costs,” the allied forces have drastically reduced coverage for injured workers over the past ten years, and have shifted the cost of workplace accident and illness from the responsible businesses and industries and onto the American taxpayer through Social Security Disability Insurance, Medicare and Medicaid, systems now under extreme pressure themselves.

            The usual cited basis for these cutbacks and shrinking coverage – rising costs – has now been shown to be totally fraudulent.  Employers are paying the lowest workers’ comp rates since the 1970s, and insurers are enjoying their highest profits in a decade – 18% in 2013.

            Some other findings in the ProPublica report:

  1. Since 2003, 33 states have passed laws reducing benefits or making qualifying for them more difficult.

  2. Employers and insurers now largely medical decisions—in 37 states workers can’t choose their doctor, or must choose from a restricted list.

  3. Increasingly, benefits are terminated before workers have regained the ability to re-enter employment.

And what has the federal government done, mandated in 1972 to ensure that states maintained minimum federal standards?  Nothing since 2004, after budget cuts eliminated funding for the feds to track and monitor what was happening in the states.  With the disappearance of any federal oversight, workers’ comp in the states has become a “race to the bottom.”

      For context, ProPublica briefly refreshes the mostly-forgotten history of the origins of workers’ comp – the grand bargain arising out of the age of early industrialization that caused grisly, incapacitating injuries whereby workers surrendered their, often illusory, right to sue their employers in return for the limited but certain remedies of workers’ compensation.  Fifty years after most states had enacted workers’ comp laws, a federal commission convened by President Richard Nixon reviewed the state of the laws, found them “inadequate and inequitable,” and made an extensive list of recommendations. The commission advised Congress to mandate 19 of the recommendations as minimum standards, and for a period of time the national state of workers’ comp laws improved.  But about twenty years ago, the rising conservative tide in the states initiated a new era of cutbacks, to the point that, according to ProPublica, only seven states now follow at least fifteen of the commission’s recommendations.

      The ProPublica report details several shocking examples of how workers’ comp, shrunken as a remedy by the chambers of commerce whose representatives often write the “reform” legislation in the various states, is failing the American worker.  It cites a study by a University of California health economist who estimates that workers’ comp covered less than a third of injured workers’ medical costs and lost earnings in 2007.

In the summer of 2014 a Florida judge ruled that the state’s workers’ comp benefits had been decimated to such an extent, and that the comp law failed so miserably as to safety, health, welfare and morals, that it had become “unconstitutional.”  That would mean the end of the “grand bargain” in that state and the restoration of the right of workers to sue their employers.  One hundred years after the enactment of the first workers’ comp laws, we may be standing on the precipice of a new era of worker rights for the consequences of workplace injury and disease.

Graphic credit: Matt Rota for ProPublica

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Facebook Postings Hurt Workers’ Compensation Claims

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

While Facebook is extremely popular and used by over a billion people every day, no Facebook posting has ever helped an injured worker in a workers’ compensation claim. On the contrary, use of a Facebook page poses real dangers for injured workers pursuing workers’ compensation benefits.

Since Facebook is a public site, anything posted can be used by respondent insurance companies in claims denial. Even the most benign postings (birthday parties, family gatherings, etc.) can pose problems. For example, a grandparent lifting a 30 pound grandchild when doctors have imposed a 10 pound lifting limit could damage a claim. Additionally, nothing prevents an Administrative Law Judge from looking at a Facebook page.  Even innocent posts may be subject to misinterpretation. A picture of the worker riding a motorcycle or fishing taken prior to the injury but posted afterward could place the seed of doubt in an ALJ’s mind that the worker is not as limited as he claims. The best advice is to be extremely careful about what is posted because “friends” are not the only one who can access your Facebook page.

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Medical Procedures: What do they cost?

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

Blue Cross Blue Shield has created an online pricing tool to help patients compare prices of about 1,200 non-emergency medical procedures. Patients can now search for the best financial deal for services offered within North Carolina.

 By exposing this previously undisclosed information, patients are now able to go and see services according to the databases average procedure costs. The pricing tool also reveals the most expensive and most affordable option for each procedure.

In order to look up costs and doctors available to preform your procedure, you first access the pricing tool at: http://www.bcbsnc.com/content/providersearch/treatments/index.htm#/ . Then, you enter the treatment or service you would like in the first blank, your current location, and how many miles you are willing to travel for the service. Once you have entered all of this information, you just click search and your results will be immediately displayed. You can organize your results by cost, provider name, or distance.

 

To see the original article by John Murawski in The News and Observer explaining the pricing tool, click below:

http://www.newsobserver.com/2015/01/31/4516241_blue-cross-pricing-tool-could.html#storylink=misearch

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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