Category Archives: Workers Compensation

Settling a Workers’ Compensation Claim – Future Medicals and Medicare

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

Will Medicare cover my future medical expenses for my workers’ compensation injury if I settle my case? Yes, no, maybe…the answer to this question is always a tricky one. In fact, this is one of the most complex questions that will confront an injured worker at the time of settlement.

Most settlements are final. Once you agree, you may have created a binding contract that will have serious financial repercussions for you and your family. It’s best to be prepared ahead of time so you fully understand the potential impact of a settlement. Settlement agreements cannot be set aside except in very rare circumstances. Before settling your case, you should take a full accounting of your future medical expenses and your insurance coverage. In reviewing your medical needs, do not forget to account for over-the-counter medications. These costs add up quickly over time.

If you are already a Medicare beneficiary, it’s quite likely you will need to set aside a portion of your settlement for future medical expenses. Medicare may refuse to pay for medical coverage relating to your injuries unless you’ve allocated some of the settlement funds for future medicals. Determining how much to set-aside is another complicated question and usually an outside company is hired to help assist with this determination.

Furthermore, injured workers must also take into consideration the fact that there are certain medical expenses that Medicare may not cover. For example, when an injured worker needs someone to take care of them. Medicare will not pay for these services so the injured worker would be forced to pay if she failed to negotiate this amount prior to settlement. Also, even when Medicare does help foot the bill, the injured worker will still likely pay the coinsurance amount (typically 20%). In short, be careful and think about future medical expenses.

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Intoxication, Work, And Workers’ Compensation Don’t Mix

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.

If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.

This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury.

Now, there are some notable Continue reading

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Making A Difference In Washington – The Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

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

In addition to helping our clients receive the benefits they are entitled to through the courts and other adversarial means, we are prooud to work with our elected officials to produce legislation that will benefit working people. A few days ago, a bill we support, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, was formally proposed. We encourage you to call and email your representatives and let them know that you support this law.

The press release with additional background follows:

 

Reps. Reichert and Thompson Introduce Bipartisan Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Washington, D.C. – Today, U.S. Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, H.R. 1982 into the House of Representatives.

The legislation aims to protect injured workers whose workers’ compensation claims overlap with Medicare coverage. Far too often, these claims are subjected to lengthy and cumbersome reviews by the Centers for Medicare and Medicaid Services (CMS) to determine appropriate set-aside amounts to pay for future medical costs in which Medicare may have an interest. The delays associated with this review place unfair burdens upon the injured party.

“This is a common-sense measure to ensure that hard-working Americans are not left in limbo because of inefficient bureaucratic procedures,” said Rep. Reichert. “Injured workers must have the confidence that their heath care claims will be processed in a fair and timely manner. By introducing this bill, Rep. Thompson and I aim to do just that: protect our hard-working citizens by making sure our systems serve them and their families.”

“The last thing injured workers should have to worry about is if needless bureaucracy is going to prevent their medical bills from being paid,” said Thompson. “This bill will make sure hard working families’ medical claims are processed efficiently and quickly, it will reduce bureaucratic headaches for businesses, and it will save taxpayers money. I will continue working with Congressman Reichert to get this bipartisan bill signed into law.”

Background

The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act establishes clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare. It would benefit injured workers, employers and insurers by creating a system of certainty, and allows the settlement process to move forward while eliminating millions of dollars in administrative costs that harm workers, employers and insurers.

The legislation has widespread support from groups such as the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC-Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

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Opioid Use in Worker’s Compensation

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

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

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Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers

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

In Washington State, undocumented workers are allowed to receive workers’ compensation benefits if injured in the course of employment. Many issues unique to this circumstance arise in such claims, including difficulties in documenting date-of-injury wages and job offers made during the course of a claim that require proof of eligibility for legal employment used as a tool by employers to truncate receipt of benefits by workers injured while in their employ.

Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen.  This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.

…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law.

The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do Continue reading

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Four Things You Should Know About Carpal Tunnel Syndrome

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

Carpal Tunnel Syndrome, also known as CTS, is an uncomfortable and often painful wrist disorder. It is a common injury that can be caused by workplace stress. Here are four things you should know about Carpal Tunnel Syndrome.

  1. Carpal Tunnel Syndrome is caused by repeated stress.
    Carpal Tunnel Syndrome is a Repetitive Stress Injury (RST). It occurs when the same action is repeated many times. When wrists are strained over and over again by actions like typing, the tendons in the wrist can become enlarged. Then the tendons can compress a nerve that runs through a passage in the wrist called the “carpal tunnel.”
  2. Even if your wrists don’t hurt badly, you could still have CTS.
    There are a whole range of symptoms associated with CTS, not just pain. Symptoms of CTS can include numbness or tingling pain in the hand, wrist, and forearm, impaired or lost nerve function, reduced muscle control, and reduced grip strength.
  3. You can receive workers’ compensation for CTS.
    According to Nebraska and Iowa law, workers can receive workers’ compensation from the onset of Carpal Tunnel Syndrome. This compensation includes 100% of all medical expenses that are reasonable and necessary to treat CTS, including both inpatient and outpatient care and prescriptions.
  4. You may be entitled to compensation for permanent damage due to CTS.
    If you experience Continue reading
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Consider These Car Accident Tips to Avoid Missteps

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

No one ever intentionally plans to get in a car accident or get hurt at work. But unfortunately bad things sometimes happen in life. And a person’s response to those situations can sometimes affect what happens from a legal perspective. Also remember that if you travel as part of your job, or if traveling is your job, like in the case of truck drivers, vehicle accidents are often covered under workers’ compensation. Here are some recommended tips to avoid potential legal pitfalls later.

What to do when you’ve been in a car accident:

  1. Call the police (or 911 if necessary).
  2. Exchange information with the other driver (name, contact info, driver’s license number, license plate, auto insurance).
  3. Obtain witnesses: Get names and contact info for any witnesses even if the police have already spoken to that person. If possible, obtain written statements from willing witnesses.
  4. Gather evidence: Take pictures or videos of the accident scene, the damage to all vehicles, and any noticeable injuries.
  5. Write notes of the date, time, location, weather, how the accident happened, and any other details that you can remember (speed, traffic signals, turn signals, headlights, brake lights, cell phone usage, etc.).
  6. Go to your doctor: make sure to tell your doctor how you were injured, and be sure to discuss all injuries, even ones that seem insignificant at that time.
  7. Contact your insurance company, and report the accident. Your auto insurance will likely pay for at least some of your medical bills.
  8. Do not give a recorded statement without contacting a lawyer.

You should talk to a lawyer when you’ve been in a car accident IF:

  1. You don’t know what kind of compensation/money you are entitled to
  2. The insurance company is asking you for a recorded statement
  3. The insurance company denies your claim
  4. There is a question of which driver is at fault
  5. The police report is incomplete or inaccurate
  6. The other driver does not have insurance or does not have enough insurance coverage
  7. You have unpaid medical bills
  8. You have permanent disability or constant pain
  9. There are complicated legal or medical issues
  10. You have missed more than a few days of work

Do your best to drive defensively, and safe travels.

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Reversing A Century Of Progress – Are We Back In Upton Sinclair’s Jungle?

Many workers no longer have paid sick days.

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

Health Care Is Just The Beginning

At a time when a flu epidemic is exploding out of control, killing thousands of people, forty-two million Americans have no sick leave. Many of these people are lower paid, often work part time, and continue to work when ill because they can’t stay home to recover without losing their income. I am shocked and dismayed that many hard-working folk are forced to work when sick because staying home is not economically possible. Making matters even worse, these highly vulnerable workers often have no employer-provided health insurance so even serious illnesses go untreated, putting us all at a higher risk for infection from a contagious worker, like a server in a restaurant, for whom taking an unpaid day off is impossible.

…the trend toward low pay, long hours and few benefits is getting stronger.

I fear that if the current trends continue, the lives of the millions of Americans who struggle at low-paying jobs will remain miserable, desperate and be lacking in real hope. It appears that the trend toward low pay, long hours and few benefits is getting stronger. At the turn of the 20th century when Upton Sinclair wrote “The Jungle,” describing immigrants struggling in Chicago, the jobs were more physical, dangerous and just plain disgusting. However, millions of “New Jungle” workers still struggle and suffer today.

Class Warfare

After over 100 years of progress, the American middle and lower classes are under constant attack. The efforts to limit rights of workers are ongoing and supported by big business. Every day I read of measures being introduced in state legislatures to limit access to and decrease the benefits of workers’ compensation. The right to collective bargaining is being attacked as well. Local elections are overrun by anonymous innocent-sounding Super PACs funded by 21st Century versions of robber-barons who are using their wealth and power to squeeze out a few more dollars in profits to add to the tens of billions of dollars already sitting in their bank accounts. These are not job creators, they are their own personal wealth creators. Income equality is at an all-time low in the United States, and the trends are getting worse.

How can this be happening in 21st century America? How can we call ourselves civilized? Can we really allow such maltreatment of workers and disregard public health in what we call an “advanced,” “modern,” and frequently, an “exceptional” county?

A Path Forward

We are not without hope, though. Crusaders like Senator Elizabeth Warren are working hard to reverse the trends and preserve the American Dream for future generations. But our protectors are few. We cannot assume that someone else is looking out for us. We must engage with government at the local, state and federal levels so that the voices of regular working folk are not drowned out by a cabal of rogue billionaires trying to keep score by increasing their own personal fortunes at the expense of working people. I fear that if we sit by passively, our children will all be working in the New Jungle, America will have lost its middle class, and with it, the American Dream will be a distant memory. The time to act is now.

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Suicide – Recognize the Signs Before It’s Too Late

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

Mental health problems are an issue for every firm, across the nation, that represents injured and disabled people, whether with personal injury cases, workers’ compensation or Social Security claims. The delays inherent in the system – particularly the increased delays due to government belt-tightening – take a toll on our clients and, by extension, on all of us.

In addition to the links provided by Mr. Jernigan there are resources available for people in psychological need in your local community. If you or someone you know needs assistance with their fight in their case or claim, please feel free to contact Causey Law Firm for help.

Several years ago I had declined to represent an injured truck driver until his wife called me and said she found a suicide note and asked me to reconsider. I did and was able to help him. I believe there is a connection between suicide and workers’ compensation. Clearly the pain of an injury, coupled with the stress of not being able to return to work can cause tremendous psychological strain.

One Texas doctor actually testified at a legislative hearing that prolonged decisions on workers’ compensation coverage in the state had lead to an increase in work’ comp’ related suicides in recent years. “The incidence of those reports has been astonishingly high compared to five years ago,” he told the legislators, “when they were, to my knowledge, nonexistent.”

Below are some signs that you or somebody you know may be at risk. This list of warning signals comes from the website of the American Psychological Association. If you see any of these signs, seek help from a doctor or therapist, or call the National Suicide Prevention Lifeline at 1-800-273-TALK (8255). Continue reading

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Truck Drivers Beware – Your Insurance May Not be What You Think

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

NOTE: The timeline for filing an injury claim with the Washington Department of Labor and Industries is shorter – only 1 year – than what Mr. Jernigan describes in his article.

There is a scam out there and truck drivers are the victims, especially if they are seriously injured in a trucking accident. It works like this: an out of work driver hears about a job and fills out an application with a national trucking company. He then gets a call saying he has been accepted as a driver, contingent on a physical exam and a drug test. The driver is then asked to show up at work on an appointed date for his first delivery job. When he shows up he is asked to “sign papers” which allow him to lease/own the truck as he drives it across the country, and he signs a contract that declares that he is an independent contractor (although in reality the trucking company controls the deliveries and is the only source of revenue for the driver). Further, he is required to purchase accident insurance through a broker designated by the trucking company and the premiums are taken out of his paycheck. Because the driver is anxious to work again and is not particularly experienced in reviewing legal documents the driver signs the papers, gets in the truck and begins working again as an interstate truck driver.

The costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

Like most of us, these drivers never expect to be in a serious accident. If they unfortunately do have an accident while driving the truck, they look to the accident policy they purchased. If they are disabled, it pays the same benefits as workers’ compensation and provides medical coverage. Many drivers think they are actually on workers’ compensation. The catch is that all benefits stop after 104 weeks (2 years). If after that time if the driver is still disabled and still needs medical care, it is a shock to find out none is available under this contract.

Is there no hope for the truck driver under these circumstances?

Why 104 weeks? Most states have workers’ compensation systems that require the claim be filed within 2 years. Since the 2-year period has run, the driver is out of luck and cannot file for workers’ compensation under state law. What happens if the driver needs additional surgery and continues to remain disabled? Most likely federal assistance programs like Medicaid or Medicare enter the picture and the costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires.

Is there no hope for the truck driver under these circumstances? Although it might be a tough fight, most workers’ compensation statutes specifically state that an employer cannot contract away its obligations under the Workers’ Compensation Act. Thus, the truck driver’s legal argument is that the contract designating the driver as an independent contractor was void as a matter of law. If the employee has been the subject of fraud, equity may allow the driver to go ahead and file a claim and pursue the action even through the 2-yr period has run. Under these circumstances, certainly in North Carolina, the driver would have an opportunity to pursue this claim.

The lesson to be learned by truck drivers is not to assume that the contract you have innocently signed is valid. If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires. Finally, if you are asked to sign one of these contracts and you have options of other employment, you may want to decline this job offer and work for a company that is more ethical. Your livelihood and the welfare of your family may depend on this important decision.