Legal Updates

Legal Update – Intentional Tasing in the WA State Patrol

Michelbrink v. Wash. State Patrol, ___ P.3d ___, No. 44035-1-II (Nov. 24, 2015)

WA Court of Appeals, Division Two

Ridin’ the lightning. The Washington State Patrol requires any trooper who carries a taser to take a “taser training course,” during which the trooper gets shot with the taser and shocked for “one to five seconds.” Mr. Michelbrink was tased, but unfortunately the shock caused a compression fracture in his vertebrae and a bulging disc. He sued the Washington State Patrol alleging an intentional injury as an exception to employer immunity under the Washington Industrial Insurance Act, RCW 51.04.010 & 51.24.030. In a published decision in 2014, the court of appeals held that factual disputes prevented the superior court from granting the State Patrol’s summary judgment motion, thus submitting the question to the jury. However, the Supreme Court granted review and remanded the case to the court of appeals for reconsideration in light of its opinion in Walston v. Boeing, 181 Wn. 2d 391 (2014).

On rehearing, the court of appeals again denied summary judgment to the State Patrol, but retracted its previous holding that the “deliberate intent” exception should be liberally construed. The court of appeals noted that under Walston and other supreme court decisions the deliberate intent exception is to be construed “narrowly.” Nonetheless, the court of appeals still found that there were issues of fact to be determined by a jury. Chiefly, “an issue of material fact exists as to whether ‘temporary pain, minor skin irritation, temporary blisters, and redness or minor bleeding if the Taser probes punctured the skin’ was certain to occur from Taser exposure.” The deliberate intent exception requires that the employer have “actual knowledge than an injury was certain to occur,” but need not have knowledge that the claimant/plaintiff’s specific injury was certain to occur.

It will be interesting to see the results of the jury trial.

Photo credit: Forbes.com

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Opioid epidemic continues in Washington

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

Olympia, WA (WorkersCompensation.com) – New Washington health data shows a significant drop in deaths from prescription narcotics in recent years. Tragically, the decline is offset by a doubling of the number of heroin deaths in our state during the same time. Both heroin and prescription narcotics are types of drugs known as opioids.

Data from 2014 state vital statistics records show the number of deaths from prescription narcotics has steadily dropped from a peak of 512 deaths in 2008 to 319 in 2014. At the same time, heroin killed 293 people in Washington last year, about twice as many as in 2008. Overall, the number of deaths from opioid overdose in Washington remains at about 600 a year.

“Across our state, we are seeing the terrible effects of heroin and prescription narcotics on our families, friends and communities,” said Governor Jay Inslee. “Although more must be done, we’ve made significant progress in reducing overprescribing of opioids, and with health care reform, a record number of families who just a few years ago had no medical coverage and limited means to regain their health, can now seek treatment for substance use disorders.”

Washington was one of the first states to recognize and respond to the national epidemic of deaths due to prescription narcotic overdoses. The decline in these deaths in Washington is likely in part due to groundbreaking prescribing guidelines originally developed in 2007 and updated this year.

State…

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Workers’ Compensation Emerging Issues: Will 2016 Be the Year Opt Out Legislation Catches Fire?

Today’s post was shared by WC CompNewsNetwork and comes from www.lexisnexis.com

By Thomas A. Robinson, Co-Editor-in-Chief, Workers’ Compensation Emerging Issues Analysis

We are pleased to present the 2015 Workers’ Compensation Emerging Issues Analysis (“WCEIA”). With this third, annual edition, we offer a diverse collection of expert analysis, incisive commentary, interesting case summaries and legislative updates from all across our nation. Geared not just for practicing attorneys, this volume offers risk managers, insurance brokers and executives, claims adjusters, HR experts and academic researchers relevant insights, practice points, and other pertinent takeaways that will enhance your work.

2016: Is This The Year Opt Out Legislation Catches Fire?

As depicted on this edition’s cover and as Lex Larson and I point out in the volume’s opening article, 2016 seems poised as the year of the opt out debate. The successful Oklahoma legislation is now two years old. Proponents and opponents alike are pointing to alleged successes and failures. Constitutional challenges to the law will likely move to the Oklahoma Supreme Court by mid-year. The debate has spilled over to other states.

For example, when both Tennessee and South Carolina closed their 2015 legislative sessions, each had pending one or more opt out bills that state legislators indicate will be resubmitted early in 2016 for debate and consideration. While most of the current opt out action is limited to the Southeast, workers’ compensation experts from all…

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Cost Shifting, the ACA, and Workers’ Comp

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com.

In September, the Workers’ Compensation Research Institute (WCRI) issued an intriguing report titled Will the Affordable Care Act Shift Claims to Workers’ Compensation Payors? As most WCRI reports, this one is dense, packed with data and conclusions; more tables and charts than one could hope. After reading it, I concluded that the report is misnamed, and should perhaps have been How Much Will the Affordable Care Act Shift Claims to Workers’ Compensation Payors?

I find the study compelling. As I read the Introduction and Summary of Findings, I began to think of Captain Renault in Casablanca. In a classic scene, he sits at a table gambling. A raid occurs and as the other officials enter, he exclaims “I am shocked, shocked to find gambling is going on in here.” Perhaps the WCRI report is not telling us something we did not know, but is merely making it more widely known?

The report supports that there will be cost shifting in the delivery of medical care. This will be an inevitable outcome of a few simple truths carefully laid out in the Introduction and Summary of Findings. First, health insurers exist to make money. Pause here and catch your breath while you wrap your head around that one. Before you get too distracted by that, let me just assure you that all car producers, software companies, dating apps, sports teams, and purveyors of fine or fast foods likewise exist to make money. It is capitalism, which in the near term may remain a driving…

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injured at home, telecommuting employees, Workers' Compensation

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.

 

Safety

Anacortes, WA Refinery Fined $77,000 for Workplace Violations Following Toxic Release

Shell Oil Products is facing $77,000 in fines from the state Department of Labor & Industries (L&I) for workplace health violations after an investigation into an uncontrolled toxic release last February.

L&I began the investigation at Shell’s Puget Sound Refinery in Anacortes after learning of an incident during which the refinery’s main flare released contaminants into the environment. The release prompted numerous odor complaints from the community nearby.

A refinery flare is a disposal system that burns off waste gases and vapors that cannot be used during production. It’s also a safety device that can help prevent fires or explosions during power outages or other emergencies. The flare must be decontaminated and shut down periodically for maintenance.

The investigation found that the company had skipped critical decontamination steps while shutting down the main flare for routine maintenance. Failing to implement safe work practices caused an uncontrolled release that exposed workers to toxic substances including mercaptans, hydrogen sulfide, hydrocarbons and pyrophoric iron.

The company was also cited in 2013 for skipping critical steps when shutting down the flare. In that case, there was an explosion that nearly injured several contractors and Shell employees.

For the recent incident, Shell Oil Products was cited for one willful violation and fined the maximum of $70,000 for knowingly and intentionally not following safe work practices for the control of hazards when shutting down the flare.

The company was also cited for one serious violation with a penalty of $7,000 for giving workers the incorrect procedure for shutting down the flare.

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 if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition.

Over the last three years, L&I has responded to several complaints that resulted in 11 inspections at the refinery.

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.

Photo: Paul Joseph Brown/Seattle Post-Intelligencer

Workers' Compensation

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. 

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Giving for Thanksgiving

The Causey Law Firm team took some time out of a busy day Tuesday to give back.  We built and tricked out six bicycles with lights, reflectors and bike locks.  It’s harder than it looks!  The bikes will be delivered to Treehouse For Kids in time for the holidays.

Treehouse envisions – and strives to create – a world where every child that has experienced a crisis of parenting has the opportunities and support they need to pursue their dreams and become productive members of our community.

The Treehouse Wearhouse is a free store where youth and their caregivers can shop for high quality new and like-new clothing, shoes, school supplies, toys, books and other essentials. We carry clothes for infants, children and teens in all sizes. We work closely with our community to ensure that items in the store reflect current trends, brands and fashions along with the basics every kid needs.

Each youth can shop in the Wearhouse up to 6 times per year. In December, youth can use one of their 6 annual visits to shop our special selection of holiday gifts. Additionally, caregivers can get an extra visit for each new youth placed in their care within one month of placement. Questions? Please contact the Wearhouse at 206.267.5185.

We couldn’t be happier to support Treehouse in their work.  If you are interested in donating or volunteering some time, visit their website and get involved in your community.

Causey Law Firm wishes all of you and your families a Happy Thanksgiving!

Attorneys

Happy to Introduce: Reed Johnson

Causey Law Firm has added a new team member!  Reed Johnson joins the firm as an attorney whose practice will focus on Longshore & Harbor Worker and Washington State workers’ compensation cases.

Reed hails from Fairbanks, Alaska and brings his love of the outdoors and hard-working nature to Causey Law Firm.  Prior to graduating from Seattle University School of Law, Reed worked for a contractor doing construction work between college and law school.  His enthusiastic and well-grounded personality is a good fit with our firm and our clientele.  

Welcome aboard, Reed!

government, Legislation, Workers' Compensation

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.

Published by Causey Wright