Category Archives: Workers’ Compensation

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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)

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Why We’re Still Killing Workers in the USA

The AFL–CIO’s annual report on job fatalities is out, and provides some interesting fodder for thought.

It’s no surprise that North Dakota – – with its “wild West” environment for oil and gas extraction on the Bakken Shale was the most dangerous place – – with 17.7 deaths per 100,000 workers versus the national average of 3.4.

Nationally, 4600 workers died on the job in 2012. While that number has fallen since safety laws were implemented in the 1970s, the decline has flat-lined over the most recent decade. It was 4.2 deaths per 100,000 workers in 2006, now still at 3.4 in 2012.

The AFL–CIO report contains maps that reflect part of the reason for the stall-out: the vast majority of the states with the highest fatality rates contain the 8 million workers in states with no federally approved OSHA safety and health plan. The report graphically portrays another salient fact: the number of federal OSHA inspectors per 1 million workers has fallen from a high of 15 in 1980 to 6.9 in 2013.  OSHA has been so underfunded over recent years that it would take an average of 139 years for available OSHA inspectors to visit each workplace in their jurisdiction just once. (In some states that number is even more staggering – – 521 years for South Dakota.)

The AFL-CIO report reflects some other interesting facts concerning the demographics of workplace fatalities – – not surprisingly, being foreign-born or Latino puts a worker at a higher risk of fatality, and homicide was the number one cause of death for women in the workplace in 2012.

But, getting back to the “oil patch” in North Dakota, we see other disturbing trends in the culture of workplace injury that accompany the decreasing application of safety regulation. With job growth tripling in North Dakota’s oil patch since 2007, while workers’ compensation filings are up, many injured workers are encouraged by employers in the extractive industries not to file, with many companies working out sidebar deals with injured workers. Injury rates are being kept artificially low by rewards for not reporting. As the AFL–CIO’s safety chief, Peg Semenario, has said, underreporting warps national safety figures in an industry that is already notoriously opaque.

And the culture of creating false indicators of workplace safety will likely have tremendous implications down the line when the 2000 tons of silica-rich sand used in the cement casing of each fracking well begins to work its way into workers’ lungs. NIOSH reported in 2012 that 92 of 116 air samples at franking sites exceeded the recommended safe levels of silica, which can lead to incurable, irreversible lung disease.

 

 Photo credit: Craig Newsom / Foter / Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)

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Need a Doctor for a WA Workplace Injury?

You have 20,000 providers to choose from – – but ONLY if they’ll see you under your workers’ compensation claim… 

The Department of Labor and Industries issued an announcement trumpeting the success of the new Medical Provider Network:

May 21, 2014: TUMWATER — Injured workers in Washington state can now choose from more than 20,000 health-care providers in the Department of Labor & Industries(L&I) medical network. The network went live in 2013 to serve workers who need ongoing medical treatment for job-related injuries or illness.

“We have more than doubled the size of our network since it began,” said Vickie Kennedy, L&I’s assistant director for Insurance Services. “Ready access to high-quality care helps our injured workers quickly return to good health and their jobs.”

L&Idata show that 99 percent of injured workers statewide live within 15 miles of at least five primary-care providers who are in the network. Patients also have access to a broad range of specialists through the provider network.

Injured workers in Washington can see any doctor for their first visit when a claim is filed, but only network providers can deliver ongoing treatment. Workers can search for providers at www.FindADoc.Lni.wa.gov; the directory is updated daily.

The medical provider network is part of the historic 2011 workers’ compensation reforms designed to improve outcomes for injured workers, reduce disability and cut costs for the state’s workers’ compensation program. The standards for providers to be admitted to the L&I network are similar to those of other health networks in Washington state and around the country. Requirements include proof of medical liability insurance and professional licenses that are free of restrictions.

Our experience, however, is that these numbers are artificially bloated and do not reflect the reality faced by injured workers seeking a treating provider. Several clinics in the state have closed their practices to workers’ compensation claimants, leaving their current patients scrambling to find new attending physicians and refusing to take on any new patients with workers’ compensation claims. Many of those that will still provide treatment to injured workers limit their practice to only take on claims that are less than one year old, or claims that do not have legal representatives involved.  Many of the major medical providers – large hospitals, clinics, etc.. – had all of their physicians register with the Department of Labor and Industries for billing purposes even if those physicians are not actively taking workers’ compensation claims.

When our clients are seeking an attending physician under their workers’ compensation claim, they will start with the FindADoc website and make phone calls until they are able to get an appointment.  In many cases, the doctors want to review medical records before setting an initial appointment.  We often send records out to a handful of doctors before finding one willing to get involved.  Claimants living outside of the major metropolitan areas can have an even tougher time finding a provider.  Many of our clients travel long distances to see their physician as there are no options close to their home.

I have participated in the quarterly meetings offered by the Department of Labor and Industries to update stakeholders about the progress in implementing the network.  The meetings are held with members of the Department of Labor and Industries and medical providers that are providing input and assistance to the Department with the design and implementation of the network.  Based on the discussions with the panel members, I believe that the Department honestly believes in the success of their network, but that their data is not telling them the whole story. 

I have made recommendations for changes that could be made to the website that could indicate the level of recent billing activity for each provider – not specific numbers, but a simple color-coded graph to indicate general levels of billing.  For example, a provider who has multiple billings submitted to the Department for payment in the current quarter could have a green icon to indicate a high level of activity.  Those providers with no current billings could have a red icon, and maybe providers with a small level but still some active billings could be orange.  The Department has access to the data for provider billings and could, in theory, tap into that data to make such a change.  I am told there is no funding for this type of improvement at this time, though.

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