Category Archives: Workers’ Compensation

are-you-alice.jpg

Qualis in Wonderland

“My dear, here we must run as fast as we can, just to stay in place. And if you wish to go anywhere you must run twice as fast as that.”  ― Lewis Carroll, Alice in Wonderland

Despite having been a paralegal in the field of workers’ compensation for over a decade, I am still surprised by the new things I learn having to do with the administration of claims. This happened just recently when a client called me, asking me to check on authorization of an MRI that had recently been requested by their attending doctor. I went to the only source available for such information:  the Claim and Account Center. I scanned the notes and imaged documents for anything resembling a note from Qualis Healthcare, the company to which the Department of Labor and Industries sub-contracts for utilization review services. Zero.  Zip. I assumed the doctor actually sent their request in, so I left a message for the claims manager asking them to look into it. The reply came in the form of a secure message. They had not received any recommendations from Qualis regarding an MRI. 

A day or so passed and my client contacted me, again asking for status. I repeated my search on CAC. Again, nothing. I asked my client to have their attending doctor refax the request to Qualis, certainly the fact that I was not able to see any sort of review online meant they most likely had not received it. A day later my client contacted me to tell me that their attending doctor had contacted Qualis and was told that MRI requests could be authorized directly by claims managers and that any recommendation made by Qualis can be overturned by the Department depending on the specific issues in the claim. To be on the safe side I told my client to have the attending provider send a fax to both the claims manager and  Qualis, just to cover all our bases. I again contacted the claims manager to be on the lookout.  A few days later, she again informed me that she had not received any authorization recommendations from Qualis, and clearly, she was not comfortable authorizing the MRI without some input from them.

A week has passed. Nothing has happened. I am annoyed. My client is really annoyed. Treatment is stalled because guess what…we need an MRI! So I called Qualis myself. This is not my first time making this phone call. I have called Qualis (which I liken to the Great and Powerful Oz, the entity behind the curtain with all the power…who are these people anyway?) many times, mostly to check on receipt of treatment requests from providers when the request seems to be languishing. I have always had receipt of treatment requests confirmed by some human on the other end of the phone.  But not this time. This time, they asked my name, where I was calling from, my birthdate, the name of my first born child….ok not really. But they asked for a heck of a lot more information than they ever wanted previously.  I identified myself, my client’s name and claim number and the reason for my call. In my heart, I was grateful for the added level of security, I mean I was calling to find out about medical treatment after all, but in my head I was simply annoyed that I had to take this step.

I was immediately told that Qualis is “not allowed to speak to attorney’s offices” and that any request I had needed to be addressed by a supervisor or director. Even if we represent the claimant? Yes, even then.  So I was politely placed into said supervisor/director’s voicemail to be lost forever, presumably. 48 hours passed. A lifetime in a claim, especially when you are waiting for treatment.  No call back.  Qualis has obviously not adopted the Department’s return call policy. I decide to harass the claims manager since I am allowed to talk to her and by some miracle, I actually reach her! She tells me Department employees aren’t even allowed to contact Qualis. What? As a third party contractor, Qualis is only allowed to speak to the providers who are making treatment requests.  The appropriate protocol is for the doctor to make the request to Qualis and also make the follow-up calls to ensure their request was received and is being reviewed. The only thing she can do is write to the Office of the Medical Director on my behalf.

Please remember the only thing I am trying to do is confirm that a request for an MRI was received. I am not looking for a specific diagnosis or treatment recommendations, I just need to confirm that the people behind the curtain got a request from a doctor.  Does Qualis or the Department actually believe that these doctors, many of whom are reluctant to treat injured workers in this system to begin with, are willing to not only go through the trouble of making a request to some random third party to see if their treatment suggestions are appropriate, but are also going to take the time to follow-up? I think we all know the answer.

By not allowing any other source to make this confirmation, not even the claimant (yes, I had my client try and he was shuffled off to some unknown voicemail too with the same explanation I was given) we are slowing down an already slow process , essentially, to a standstill. This is EFFICIENCY FAILURE in a system that very desperately needs every ounce of efficiency written into its protocols.

Maybe I was wrong, maybe it isn’t The Wizard of Oz but another fairy tale we are living in…

 

Photo credit: Yuliya Libkina via Foter.com / CC BY

 

simpsons-homer-working-from-home.jpg

I was injured at home while working for my employer. Am I entitled to workers’ compensation benefits?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

We’ve all seen the ads for “work from home” jobs (spoiler alert – many are scams). However, corporations like Apple, IBM, CVS, and many, many more are frequently advertising work-from-home or telecommuter jobs to employees thus providing a flexible work schedule. The question then arises – what happens if the telecommuting employee is injured at home? For example, what if the employee is injured during a personal coffee break? What if he slips on his driveway? Or, if she trips over her pet while walking to her van to get work supplies?

 

In deciding on whether an employee’s injury may be compensable, courts have generally considered (1) how regularly the employee works from home, (2) the presence of work equipment at home (e.g. work computer or corporate phone), and/or (3) other conditions particular to that employment that make it necessary for the employee to work from home. The courts specifically look to whether the employee is working from home for his or her convenience, or if it’s necessary from the employer’s standpoint that the employee work from home (e.g. there is no other suitable place of employment offered by the employer).

 

For example, in Utah, the Court of Appeals held that a sales manager who was spreading salt on his driveway in anticipation of an important business delivery sustained a compensable slip and fall at work. The Court determined that the manager’s motivation in spreading the salt was to assist the employer’s business. [AE Clevite Inc. v. Labor Comm’n, 2000 UT App. 35, 996 P.2d 1072 (2000)]. Also, where a custom decorator for J.C. Penney was walking out to her van in her garage to get fabric samples and tripped over her dog, that injury was also compensable [Sandburg v. J.C. Penney Co, Inc., 260 P.3d 496 (2011)]. The Court explained that the home premises was also her work premises and the decorator had to keep samples in her van to show potential customers.

 

The bottom line is that when telecommuters are injured at home during the actual performance of their jobs, regardless of how insignificant, the injury may be compensable.

 

Rates.jpg

Two Percent Average Increase in WA Workers’ Comp Rates for 2016

Every fall, the Washington State Department of Labor & Industries (L&I) sets workers’ compensation rates for the following year. As wages and health care costs rise, the cost of providing workers’ compensation insurance goes up. This year, the department is proposing an average 2 percent rate increase for 2016.

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 something they’re exposed to at work. Last year, L&I covered almost 90,000 work-related injury and illness claims in our state.

L&I takes a close look at expected workers’ compensation payouts, the size of the reserve fund, wage inflation and other financial indicators to determine the proposed base premium rate. The agency is also working to cut costs to help keep rates as low as possible.

“When workers’ compensation rates are like a roller coaster ride, it frustrates everyone. We’re not going to do that. I’m committed to keeping rates steady and predictable,” said L&I Director Joel Sacks. “We’ve worked hard to decrease the costs of running the program, which is one of the reasons we can propose a rate increase that’s well under the wage inflation rate. Still, this small increase will help build the reserve funds needed to keep our program financially healthy.”

The proposed increase comes out to a little more than 1 cent per hour worked. Workers’ compensation premiums help cover the cost of providing wage and disability benefits, as well as medical costs for treatment of injuries and illnesses. The reserve fund protects the system against the unexpected.

 

Workers’ Comp Facts:

  • L&I is the state’s primary workers’ compensation insurance provider, covering about 2.6 million workers and nearly 170,000 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.  

 

Cutting workers’ compensation costs

Tens of thousands of workers in our state are injured on the job every year, and Washington’s workers’ compensation system is always ready to help them, their families and their employers. 

L&I has several initiatives underway that focus on helping injured workers heal and get back to work, improving service and reducing costs. That includes:

  • Promoting injury prevention.
  • Ensuring injured workers receive quality health care.
  • Supporting employers who want to keep injured workers on a job.
  • Improving the workers’ compensation claims process.

These and other improvements and efficiencies have resulted in hundreds of millions of dollars in savings in the past year.

 

Keeping the system healthy and rates steady

L&I uses wage inflation as a benchmark to help determine rates for the coming year because as wages climb, the cost of providing workers’ compensation coverage rises. Washington’s most recent wage inflation number is 4.2 percent. Significant cost savings by the agency are allowing for a proposed increase well under the wage inflation rate.

“Eliminating major swings in rates makes it much easier for business owners to budget for their workers’ comp costs. And by using wage inflation as a benchmark, we can keep up with rising costs of providing insurance while making sure we have a reserve fund ready for tough times,” said Sacks.

More information regarding the proposal is available at www.Lni.wa.gov/Rates. Final rates will be adopted by early December and go into effect Jan. 1, 2016. 

minick-14-900-600-a01683.JPG

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

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

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.

 

To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

1280px-Steel_iron_construction_worker_-_8378.jpg

Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

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

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.

 

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

 

WindowWasherDeath.JPG

Window Washer Killed From Fall in Tacoma, WA

KING-TV reports that a window washer was killed after falling from a building in downtown Tacoma Thursday, September 16, 2015. It happened at the Davita Building at 1423 Pacific Avenue, near the Tacoma Children’s Museum.

The Pierce County Medical Examiner identified the man killed as 30-year-old Timothy Thomas Sargent.

He worked for United Building Services out of Seattle. There was initially no word of how he fell. Tacoma Police and L&I are investigating.

The Washington State Department of Labor and Industries said this employer has been cited four of the past six inspections for serious violations related to fall prevention.

 

Occupational_Asthma.jpg

Occupational Asthma, or Work-Related Asthma, and Workers’ Compensation

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Occupational asthma (OA) is asthma that’s caused or worsened by breathing in chemical fumes, gases, dust or other substances on the job. Typical symptoms of OA are: chest tightness, wheezing, and shortness of breath. OA accounts for approximately ten to twenty-five percent of adult onset asthma. (Dykewicz, MS. Occupational Asthma: Current Concepts in Pathogenesis, Diagnosis, and Management. J Allergy Clin. Immunol. 2009; 123:519.)

Under North Carolina workers’ compensation laws, OA is considered an occupational disease pursuant to North Carolina General Statute §97-53(13). In order to obtain workers’ compensation benefits for OA, an injured worker must show that s/he was at an increased risk of developing OA as a result of his/her employment. Furthermore, the injured worker must show that his or her exposure at work was a significant contributing factor to his/her development of OA.

Treatment with a pulmonologist is essential for the injured worker’s recovery. Frequently the injured worker must avoid working in conditions (i.e. fumes) that will irritate his/her underlying condition. Certain professions are known to have higher likelihood of developing OA. For example, foam insulation installers exposed to diisocyanates, refinery workers exposed to metals (chromium, platinum, nickel), textile workers exposed to dyes, and health care workers exposed to formaldehyde are just a few examples of industries where workers are at an increased risk of developing OA. The Canadian Centre for Occupational Health and Safety published an online Fact Sheet which lists dozens of occupations where workers are at risk for developing OA.

Clearly, the best way to prevent OA is for workers to avoid using or being exposed to harmful substances. If this is not possible, then employers should make efforts to minimize employees’ exposure through ventilation systems or other methods. If you are concerned about your exposure to a substance at work, your employer should have material data safety sheets (MSDS) on site so that you can review any potential health hazards. As always, prevention and education of employees about proper handling procedures is key.

medical_exam.JPG

“Independent” Medical Examinations in Workers’ Compensation (Anything but “Independent”)

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

“I thought their doctor Independent Medical Report was the last word on my case. I didn’t know any better.” 

This statement from a client I just met sums up the experience of many injured workers unfamiliar with the workers’ compensation process in Wisconsin (and many other states).

An insurance company or self-insured employer may request an injured worker submit to reasonable examinations by a physician, chiropractor, psychologist, dentist, podiatrist, physicians assistant, or Advanced Practice Nurse Practitioner of its choice. Wis. Stat. §102.17(1)(b). This examination is usually referred to as an Independent Medical Examination or “IME” although “adverse medical examination” more accurately reflects the process.  An Independent Medical Examination may be requested by the insurance company or self-insured employer in order to determine whether the claim is compensable and the extent of the disability or the necessity and type of treatment. 

Since only about one in ten injured workers in Wisconsin is represented by an attorney, nine out of ten unrepresented workers are not aware that the insurance company’s “IME” is actually an adverse exam by a doctor hired by and paid by the insurance company to issue his report. Although IME examiners would deny they routinely render an opinion in favor of the insurance carrier, my forty years of experience suggests just that. For many years lawyers representing injured workers have been proposing the terminology “Adverse Medical Examination” apply to give represented and unrepresented workers a more fair assessment of the process. Many IMEs make hundreds of thousands of dollars annually performing these examinations. At one of these examinations, my client overheard the IME physician (who had rented a motel room) speaking to a prospective young doctor trying to convince that doctor to perform IMEs. “This is a great practice.” He said.  “All you have to do is review the medical records, meet with the worker for a few minutes, and deny the claim. And for that you can charge $1,500.” Although my client’s testimony to this effect was barred, the underlying accuracy of his testimony is undisputable.

Beware the “Independent” Medical Examination.

Fifties_Fam.jpg

Washington State Workers’ Compensation Payments Up as of July 1st

For most workers injured before July 1, 2014, time-loss and pension benefit payments will increase by 4.168 percent based on the change in the state’s average wage, as announced by the Department of Employment Security on June 24.

State law requires that benefits be recalculated each year to reflect the change in the state’s average wage from the previous calendar year.

The increase also applies to pension benefits paid to family members of those who died because of a work-related accident or disease.

As a result of the increase, the new maximum monthly benefit will be $5,482.90, or 120 percent of the state’s average monthly wage. Less than 4 percent of L&I claimants receiving wage-replacement benefits collect the maximum.

The increase becomes effective July 1, 2015.

 

Photo credit: brizzle born and bred / Foter / CC BY-SA

Perry_trophy_injury_389208_181016255358963_481664293_n.jpg

BMX Bike Racer Defrauded State, Must Pay Back $14,000

A Port Orchard, WA man who was caught on video racing BMX bikes while claiming he was too injured to work pleaded guilty to stealing more than $14,000 in disability benefits.

 

Tony T. Perry Sr., 52, pleaded guilty to two counts of third-degree theft, a gross misdemeanor, in Thurston County Superior Court. Judge Anne Hirsch sentenced Perry to 364 days in jail, but suspended all but 15 days if he obeys the law for two years. She is allowing him to serve the 15 days in electronic home monitoring, according to the Washington Attorney General’s office, which prosecuted the case.

 

Judge Hirsch also ordered Perry to repay the Washington State Department of Labor & Industries (L&I) $14,422. That was how much Perry received in workers’ compensation wage-replacement checks from January 2012 to August 2013 while misrepresenting his physical abilities.

 

Perry paid the full amount. The money will be returned to the state workers’ compensation fund, which helps employees recover from workplace injuries.

 

“It’s outrageous when people try to scam the workers’ comp system so boldly. When they steal from us they’re stealing from you,” said Elizabeth Smith, assistant director of L&I Fraud Prevention & Labor Standards. “A tip from the public helped us get to the bottom of this. We appreciate it, and encourage people to tell us when they’re aware of workers’ comp fraud.”

 

BMX racing is an off-road, physically demanding bicycle competition typically held on dirt race courses with hills requiring riders to jump in the air.

 

Racing throughout the Pacific Northwest

 

The criminal case resulted from an L&I investigation. Investigators found that Perry began racing BMX bicycles as an amateur in January 2012, eventually competing throughout the Pacific Northwest and Nevada.

 

The case investigator videotaped Perry competing in two races, and found numerous Facebook posts about Perry’s racing activities, charging papers said. In a post about a May 2012 race, Perry described how he crashed and injured his ribs ­− but told L&I he hurt himself at home that day due to a fall caused by his injured knee.

 

After receiving a summary of L&I’s investigative findings in March 2014, Perry’s physician told L&I he would have ended Perry’s wage-replacement payments as of January 2012 had he known about his physical abilities.

 

Perry had been receiving workers’ comp benefits based on knee and other injuries he sustained when lifting a heavy box while working in grounds maintenance.