Recovering From Injury – “Is Heroism the Standard?” Redux

Judge David B. Torrey

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm. Boy, does this ring true. – KC

My friend and colleague, Professor and Judge David Torrey, with whom I serve on the Board of the College of Workers’ Compensation Lawyers, recently posted this blog in response to an insurance industry speaker’s exhortation that injured workers should “ get off their asses” and get better. Here’s his moving response:

Many in the workers’ compensation community complain that seriously injured workers can develop a disability lifestyle, become dependent on drugs, and unreasonably extend their disabilities. Instead of falling into such a lifestyle, these critics argue, disabled workers should show “resilience.” This rhetoric, which I have written about before on this blog, has its genesis in progressive medical/rehabilitation thinking, Muscular Christianity (I think), and, realistically, employer/insurer cost considerations.

The complaint is legitimate, and one with which I have some sympathy. I also believe that some legitimately injured workers do indeed unreasonably extend their disabilities — if only waiting for a generous lump sum settlement. Many readers will know of the sharp critique of this type advanced by Dr. Nortin Hadler in his many books.

On the other hand, the “duty-of-resilience” critique can go too far, and is often articulated in overly simplistic terms. At my agency’s conference in Hershey, Pennsylvania (June 7-8), an articulate industry speaker, addressing an audience about medical marijuana, posited forcefully that the “choice between opioids and medical marijuana [for chronic pain patients] is a false choice….” What workers need to do, instead, is show some resilience and “get off their asses!” After all, a friend of his, who is partially paraplegic, has shown resilience and will often go hiking with him. If she can do it, so can others!

I believe the speaker knew his audience and thus took some pleasure in feeding these lions of the community some red meat, and indeed they rewarded this coarse declaration with a leonine roar of applause.

Yet, his panel partner, Dr. Michael Wolk, thereupon gently reminded the industry speaker — and the audience — that not all people respond to pain and other impairments the same way; indeed, he posited that science has shown that one’s genetic make-up can affect the ability to be resilient.

Dr. Wolk (my God, an astonishing speaker) might also have remarked, as have other physicians at our Pennsylvania conferences, that heroism is not appropriately considered the recovery standard in the first place. Commentators like the industry speaker, talking about resilience, often invoke exceptional individuals, like Christopher Reeve, but most of us realize that not everyone is Superman.

This point was vividly made two years ago in the memoir, A Body Undone: Living on After Great Pain (NYU Press 2016). The author, Christina Crosby, a professor at Wesleyan University, was rendered quadriplegic in a cycling accident, and has been left with chronic pain as well. She recounts in her memoir what life is like with such a catastrophic injury, shows that she indeed has great resilience — but leaves the heroism narrative behind. She makes clear that her circumstances, like education; a life of reflection and discipline; and the unflagging love and support of her family, make her ability to bounce back possible. Most of us know that not every injury victim will have these advantages. (My complete review of Professor Crosby’s book is posted at the research website www.davetorrey.info.)

Is all this not common sense? We have known for a century, after all, that young men respond differently to their traumatic wartime exposures. Some show a grim resilience; some are troubled for life, but are able to continue on; some are broken. In the modern day, most of us would not address such veterans with the admonition that they get off their asses. Injured workers deserve the same respect.

 

WA State DLI Ends Coverage of Therapeutic Genicular Nerve Blocks for Knee Pain

The Washington State Department of Labor & Industries made a coverage decision on therapeutic genicular nerve blocks recently.  Genicular nerve block for treating chronic knee pain is not a covered benefit, effective October 1, 2018. 

The knee joint is innervated by the articular branches of several nerves including the femoral, common peroneal, saphenous, tibial and obturator nerves. These articular branches around the knee joint are known as genicular nerves.

Per the Department of Labor and Industries, genicular nerve block for treating chronic knee pain is controversial. The effectiveness of the procedure on relieving chronic knee pain is not established. The safety of repetitive anesthetic/steroid injections to the genicular nerves is unproven. 

The white paper produced to outline the basis for this decision includes reference to the practice guideline published by The American Society of Anesthesiologists, “Practice Guidelines for Chronic Pain Management” in 2010 []. It pulls the quote from the document “peripheral somatic nerve blocks should not be used for long-term treatment of chronic pain”.  The paper’s conclusion statement is: “The evidence regarding genicular nerve block is scant. Though some evidence showed that GNB might provide short-term pain relief, the effectiveness of this procedure on chronic knee pain has not been established. The safety and effectiveness of repetitive anesthetic/steroid injections are unproven.”

Genicular nerve block (GNB) may be performed for diagnosis or perioperative care. GNB for treating chronic knee pain is not covered.

WA State DLI New Coverage Decision – Surgery for Lumbar Radiculopathy/Sciatica

The Washington State Department of Labor & Industries has adopted a new Health Technology Clinical Committee coverage determination about surgery for lumbar radiculopathy/sciatica, effective November 1, 2018.

Surgeries for lumbar radiculopathy/sciatica are covered, with conditions.

Conditions of Coverage:

Open discectomy or microdiscectomy with or without endoscopy (lumbar laminectomy, laminotomy, discectomy, foraminotomy) are covered with the following conditions:

  • For adult patients with lumbar radiculopathy with subjective and objective neurologic findings that are corroborated with an advanced imaging test (i.e., Computed Tomography (CT) scan, Magnetic Resonance Imaging (MRI) or myelogram), AND

  • There is a failure to improve with a minimum of six weeks of non-surgical care, unless progressive motor weakness is present

Non-covered indicators:

Minimally invasive procedures that do not include laminectomy, laminotomy, or foraminotomy including but not limited to energy ablation techniques, Automated Percutaneous Lumbar Discectomy (APLD), percutaneous laser, nucleoplasty, etc. are not covered.

Background Information:

The State Health Technology Clinical Committee (HTCC) reviewed surgery for lumbar radiculopathy/sciatica in May 2018 and finalized the determination on July 13, 2018. Complete information on this HTCC determination is available here.

In adopting this HTCC coverage determination, the Department has concluded that the determination does not conflict with any state statute. Any coverage for investigational treatment would be considered per WAC 296-20-02850.  Any coverage for health technologies that have a FDA Humanitarian Device Exemption status would be considered per RCW 70.14.120 (1) (b).

Implementation of the Coverage Decision:

All requests for surgery for lumbar radiculopathy/sciatica require prior authorization. The service may be covered only for care of a condition accepted on or related to the claim.

Photo by Internet Archive Book Images on Foter.com / No known copyright restrictions

Working from Barges – Seattle’s Colman Dock Project Underway

 

Colman Dock in Seattle is the largest Washington State Ferries terminal and supports transportation across Puget Sound between downtown Seattle and communities in Kitsap County and the Olympic Peninsula. Key components of Colman Dock are aging and vulnerable to seismic events. The layout of today’s facility also creates safety concerns and operational inefficiencies due to conflicts between vehicles, bicycles and pedestrian traffic.

The Washington State Department of Transportation (WSDOT) has undertaken an enormous project to repair the multimodal terminal at Colman Dock without interruption to ferry service.

Key project elements include:

  • Replacing the existing timber trestle portion of the dock with a new concrete and steel trestle
  • Replacing the main terminal building
  • Replacing the passenger-only ferry facility on the south edge of Colman Dock with funding from King County
  • Constructing a new elevated walkway between the terminal building and the passenger-only ferry facility

Construction will continue until 2023 and the terminal will remain open throughout construction. 

Working from barges will help increase space on Colman Dock during construction.  WSDOT notes “Our contractor is using multiple barges at a time to stage construction equipment and huge cranes used to rebuild Colman Dock. Working from the water allows us to reduce our shore side construction zone footprint in every stage of the project. Smaller construction zones mean more room on the dock for vehicle holding.”

For a full description and details, see the WSDOT page dedicated to the project.  More pictures are available on the WSDOT Flickr page, as well.

 

Kit Case, Causey Wright's Paralegal & Media Manager

OSHA Warns Hurricane Florence Clean Up Workers to Practice Caution

Today’s post was shared by Jon L Gelman and comes from www.ehstoday.com

As Hurricane Florence damage is assessed and affected areas began to clean up, workers and residents are being faced with numerous hazards caused by the storm.

OSHA is warming emergency crews to take precautions and to address hazards from flooding, power loss, structural damage, fallen trees and storm debris.

“Workers involved in storm recovery can face a range of safety and health hazards,” said OSHA Regional Administrator Kurt Petermeyer in a statement. “Risks can be minimized with knowledge, safe work practices, and personal protective equipment.”

Only individuals with proper training, equipment, and experience should conduct recovery and cleanup activities. The agency recommends measures after a weather disaster should include the following:

  • Evaluating the work area for hazards;
  • Assessing the stability of structures and walking surfaces;
  • Fall protection for elevated surfaces;
  • Assuming all power lines are live;
  • Using chainsaws, portable generators, ladders, and other equipment properly; and,
  • Using personal protective equipment, such as gloves, hard hats, hearing and foot protection, and eye protectors.

OSHA maintains a comprehensive website with safety tips to help employers and workers. Individuals involved in response and recovery efforts may call OSHA’s toll-free hotline at 800-321-OSHA (6742).

[Click here to see the original post]

 

Photo by Virginia Sea Grant on Foter.com / CC BY-ND

Time Off or Time-Loss?

Our clients often come to us with issues relating to their employment that are not directly related to their work injury or workers’ compensation claim. Given how entwined a work injury can be with employment-related issues, it can be helpful to have a general understanding of both legal areas.

One issue that comes up quite frequently is whether an Employer can require our clients to use up their vacation, sick-leave, and/or PTO for time missed from work when the reason they are missing work is a work-related injury. The short answer is yes. At present, there is no law that prevents an Employer from forcing injured workers to use up their vacation or PTO while they are unable to work due to their injury. However, it could be unlawful for an Employer to create “special rules” that apply to only one employee or only to employees with L&I claims. If they do so, it is possible they are violating other laws that prohibit discrimination of disabled persons and/or retaliation against employees who have filed L&I claims. Regardless, even if such a policy exists, the Employer cannot prevent injured workers from obtaining monetary workers’ compensation benefits if they would otherwise be entitled to it. If an injured worker is entitled to time-loss or loss of earning power benefits, then it does not matter that they are also receiving PTO or vacation benefits.

Another issue that we may see more of given the recent passage (and soon to be enacted) laws relating to Paid Sick Leave are questions about whether injured workers can earn paid sick leave if they are not working full time or full duty. Depending on what type of employee an injured worker is (salaried or hourly), they may have the right to earn paid sick leave for each hour worked. An Employer should not be able to deny accrual of paid sick leave simply because an injured worker is unable to work full-time or full-duty. Additionally, an Employer cannot prevent an injured worker from using their paid sick leave while the injured worker is receiving benefits under their claim so long as the basis for using it would otherwise be appropriate.

Ultimately, these are difficult questions to answer. The specific circumstances of each case needs to be evaluated to arrive at an answer and may require the advice of both an attorney who focuses on workers’ compensation as well as one who focuses on employment law. If you have questions, please feel free to contact me to start the discussion.

Photo by bunkosquad on Foter.com / CC BY-NC-ND

Hanford Vapor Litigation Resolved through Settlement

HANFORD CHALLENGE/UA LOCAL 598 DECLARE VICTORY FOR HANFORD WORKERS IN SETTLEMENT OF TOXIC VAPOR LITIGATION

September 19, 2018

Seattle, WA: Hanford Challenge, UA Local 598, and the WA State Office of the Attorney General today announced a settlement in a hotly-contested case involving the safety of workers at the Hanford nuclear site in southeastern Washington State.

United Association of Steamfitters and Plumbers (UA) Local 598 and Hanford Challenge were co-plaintiffs with Washington State Attorney General Bob Ferguson (Complainants) against the US Department of Energy (DOE) and Hanford contractor Washington River Protection Solutions (WRPS) (Defendants) in an action brought in federal court in September 2015.

“Under this Agreement, the cycle of exposure and illness due to unprotected chemical vapor exposures is finally being addressed and, hopefully, resolved. The parties have agreed to an enforceable settlement that requires specific actions to solve the vapor exposure issue at Hanford throughout the rest of the cleanup,” said Executive Director Tom Carpenter, of Hanford Challenge.

“This is a major victory for the brave men and women working to clean up the Hanford Nuclear Reservation,” WA Attorney General Bob Ferguson said. “This is an historic outcome, but let’s be honest — it should not have required a lawsuit to get the federal government to do the right thing.” 

UA Local 598’s Business Manager Randall Walli stated, “This represents Local 598’s values and commitment to its members and all working families that ensure the success of our National mission. While the future of Hanford will continue to demand our full diligence, with all its complexities and challenges, this settlement represents a positive step in the right direction. Ensuring adequate protection for the workforce and a commitment to the development and implementation of new technologies that will ultimately lead to a safe and more productive future. Local 598 will continue to stand with all the men and women of Hanford, our Nuclear Veterans and their families.”

Complainants in the case brought forward evidence that Hanford workers were not being protected from exposure to toxic chemical vapors coming from underground high-level nuclear waste tanks, and that workers suffered serious illnesses and injuries as a result. A federal judge in Spokane stated in a November 2016 ruling that “vapor exposures have occurred” and “employees have experienced serious vapor-related illnesses.” Importantly, the judge also found that “vapors emitted from Hanford tank waste fall within RCRA,” and are therefore subject to regulation under the hazardous waste law.

 The settlement announced today resolves the litigation, which sought an order from a federal court to provide necessary respiratory protection and take other such measures necessary to abate an imminent endangerment to human health and safety.

“By establishing that tanks vapors are hazardous wastes, this case changed the regulatory landscape at Hanford. This settlement provides immediate protection from toxic tank vapors for Hanford workers as well as a pathway for long term controls to prevent untreated vapor releases. This is critical for protecting workers and the environment,” said Meredith Crafton, attorney for Hanford Challenge and Local 598 from the law firm of Smith & Lowney, PLLC.

The Agreement provides for more monitoring, more transparency, a commitment to capture and treat toxic chemical vapors, enhanced worker protections, and litigation costs. The terms of the Agreement are enforceable in federal court.

The legal team of Smith & Lowney in Seattle, Terrell Marshall Law Group, also from Seattle, and the non-profit law firm Public Justice in DC, provided the representation for Hanford Challenge and UA Local 598. Washington Attorney General Bob Ferguson also brought a complaint, and entered into a joint prosecution agreement with Hanford Challenge and the union.

“The settlement announced today shows the power of workers banding together and the effectiveness and importance of partnerships between unions, advocates and tenacious public servants like Washington’s Attorney General,” said Jim Hecker, Director of the Environmental Enforcement Project at Public Justice. “It also underscores the importance of the Resource Conservation and Recovery Act as a powerful tool that helps workers and communities stand up for themselves. When toxic chemicals are released, it is usually workers who are in closest proximity to the poisons, and therefore get the highest exposures. Today’s announcement means that those most susceptible to harm will finally receive the protection they deserve.”

———————————-

Key terms of the Agreement include —

More Monitoring

  • DOE and the tank farm contractor will complete design for the optimal components and configuration of Vapor Monitoring and Detection System for stack monitoring in the A and AX Farms by December 31, 2018 and

  • installation of Public Address system in the tank farms in order to provide warnings to workers about hazardous conditions.

More Transparency

  • Development of a Data Access and Visualization (“DAV”) platform for sharing monitoring and sampling data on a website;

  • Within various time frames, the tank farm contractor will post on a publicly available website the following –

    • a monthly list of Problem Evaluation Requests regarding AOP-15 events that occur in the future;

    • the specific nature of the tank farm waste worker medical surveillance program (routine occupational tests and their purpose) to be updated annually if there are changes to the program;

    • a thorough explanation of the current policy concerning return to work following a reported exposure;

    • information regarding workers potential ability to participate in the DOE Former Worker Medical Screening Program;

    • the Health Process Plan entitled “PNNL-25791, Hanford Tank Farm Exposure and Risk Assessment Plan;” and

    • within two weeks after completion of the AOP-15 Event Investigation Report:  

      • procedures for determining appropriate personal protective equipment;

      • procedures for alternative respiratory protection assessments;

      • procedures for assessing worker hazards (including vapor risks);

      • and tank vapor information sheets (“TVISs”) for the Chemicals of Potential Concern in the tank farms.

  • Upon request from a tank farm worker, DOE and WRPS will timely provide applicable Tank Vapor Information System (TVIS) data and the worker’s personal exposure data, if any, regarding a tank farm-related vapor event.

Capturing and Treating Vapors

  • Testing of an engineered system designed to capture and thermally treat tank vapors in a manner that destroys or captures harmful chemicals and metals;

  • Timetable for testing milestones, which, if successful, results in the installation of the system on certain Hanford tanks and/or tank farms; and

  • Agreement by DOE and the tank contractor to accept and respond to technical input from plaintiffs’ expert.

Worker Protections Enhanced

  • Currently, the Hanford contractor has an agreement with the Hanford Atomic Metal Trades Council that requires tank farm workers to use:  

    • supplied air in single-shell tank farms at all times.

    • supplied air during waste disturbing activities in double-shell tanks.

    • approved cartridge respirators in routine double-shell tank operations.

  • As part of the settlement, Hanford agrees to maintain this Agreement to protect tank farm worker health and safety, no matter who the contractor turns out to be in the future.

  • The tank farm contractor will accept and consider input from plaintiffs’ technical expert on the proposed use of cartridge respirators.

  • Enhanced pre-job safety reviews that consider the risk of vapor exposures as a factor.

  • Installation of an active exhaust ventilation system in A Farm, after which the entire A Farm complex can be actively ventilated, by December 31, 2019.

  • Hanford occupational medical services provider will comprehensively review medical data that are available for tank farm workers and provide expert advice on collection, analysis, and interpretation of these data and their potential to help assess any relationship between medical findings, reported health effects, and/or exposures.

  • Within 30 days DOE will direct the Hanford occupational medical services provider to inform workers of their rights to seek medical diagnoses from a qualified medical provider after workers report to the Hanford occupational medical services provider for symptoms possibly related to vapor exposure. 

  • After the Hanford occupational medical services provider informs DOE of the anticipated completion date for the Medical Data Study, DOE will inform Plaintiffs of that date. 

  • Within 30 days DOE will direct the Hanford occupational medical services provider that, upon request from a tank farm worker, the provider will timely provide its medical data related to the worker.

Litigation Costs –

  • DOE will pay the amount of $416,250.00 to counsel for Hanford Challenge/Local 598 and will pay to the State of Washington Office of the Attorney General the amount of $508,750.00.

  • The Attorney General has agreed to hire experts (using DOE funds) to continue monitoring and advisory functions as specified in the Agreement.

Enforceable Agreement –

  • The agreement is a settlement contract. The federal case will remain open, but be placed on “administrative stay.” As outlined in the agreement, the settlement is enforceable in court should DOE or the tank farm contractor fail to meet a deadline or fail to perform on an agreed-upon term. There are requirements on notice and mediation prior to going back to court.

  • The contract survives the current tank farm contractor, WRPS, insofar as a provision in the contract requires DOE to put these obligations on any new contractor.

For pdf of press release, click here.

For Settlement Agreement, click here.

For more on vapor case and history, click here.

 

WA State Safety and Health Standards for Beryllium Updated

Chronic Beryllium Disease (CBD), sometimes called berylliosis, is an immunological lung disease caused by exposure to beryllium via inhalation of airborne beryllium or skin contact with beryllium-containing dust, fume, mist, or solutions. CBD can progress to a serious and life-threatening disease if left undiagnosed and beryllium exposure continues.

Washington State has completed rulemaking to to add Chapter 296-850 WAC Beryllium as a new chapter to Title 296 WAC of the Department of Labor and Industries. This action was taken in response to the Occupational Safety and Health Administration’s (OSHA) final rule on Beryllium in the General Labor, Construction and Maritime areas if industry.

The Department of Labor and Industries will have one Beryllium rule to include all industries listed, instead of separate rules for each industry as OSHA has done. This rule will limit worker exposure (Personal Exposure Limits, or PELs) to beryllium and beryllium compounds, which can cause the debilitating lung disease known as chronic beryllium disease (CBD) and lung cancer. This rule mirrors OSHAs final rule, with minor differences in the Definitions, Medical Removal, and Medical Surveillance sections that allow for implementation of the rule to be consistent with existing requirements in Title 51 RCW. The PEL tables in WAC 296-307-62625 and WAC 296-841-20025 were updated to reflect OSHAs reduced Beryllium PELs.

All obligations of this standard commence and become enforceable on December 12, 2018, except for the following compliance dates: Change rooms and showers required by WAC 296-850-145 must be provided by March 11, 2019; and Engineering controls required by WAC 296-850-130 Methods of Compliance must be implemented by March 10, 2020. The changes were adopted 8/21/2018 and will be effective on 12/12/2018.

Find more information about these rule changes on the Department of Labor and Industries website.

Photo by Neil. Moralee on Foter.com / CC BY-NC-ND

 

Little Caesars Fined More Than $40,000 for Teen Worker Violations in WA

A Little Caesars Pizza restaurant franchise faces $42,000 in fines for youth labor law violations, including allowing teenagers to work too many hours without a rest period on more than 100 separate occasions.

NW Caesars 1 LLC is appealing the citation and fine, which is one of the largest in recent years that the Washington State Department of Labor & Industries (L&I) has issued for a workplace violation involving youth. A hearing date for the appeal will be set in November. 

“This is important because meal and rest breaks for teens are mandatory,” said Josie Bryan, youth employment specialist for L&I. “Not only that, but breaks can help prevent injuries on the job.”

L&I’s inspection focused on two of the franchise’s restaurants in University Place — one at 5502 Orchard St. W., and one at 7305 40th St. W.

The agency found there were more than a 100 separate instances of missed rest periods. There were also violations involving minors working during school hours, working past 10 p.m. on a school night, and working with equipment that teens under 18 are not allowed to use.

The investigation covered the time period between December 2017 and February 2018. It was prompted by a tip to L&I that teens at one of the restaurants were disassembling and reassembling a pizza dough sheeter – a machine workers under 18 are prohibited from using. In all, the company was fined $42,050.

The Lakewood based NW Caesars 1 LLC was cited and fined by L&I for similar violations in 2015, including issues related to teen hours worked, and teen workers using prohibited equipment. L&I consulted with the company about teen workplace issues.

“The law is clear; there are only certain tasks teens can do in the workplace, depending on age,” Bryan said. “Our primary goal is to keep teen workers safe, and make sure businesses are following youth labor laws.”

More information about work requirements for teens is available at www.Lni.wa.gov/TeenWorkers, and simply clicking on “Hours of Work.” There is also information about prohibited duties and teen worker safety.

Seattle, WA Colman Dock Construction Continues

Washington State Ferries is replacing the aging and seismically vulnerable parts of Colman Dock in Seattle in order to maintain its critical role as a regional multimodal transportation hub.

The Washington State Department of Transportation (WSDOT) reported that construction crews recently finished installing all of the concrete panels needed to form the flooring deck of the first section of the new main ferry terminal building at Colman Dock. Next steps include filling in the gaps between the panels to make one smooth trestle deck, this is called a “closure pour.”

This section of the new building will open in mid-2019. At that point, it will be used as the main ferry terminal facility while crews clear out and demolish the old terminal building, the one currently in use. Once the old terminal building is taken down, the remaining sections of the new terminal building will be built. The entire new terminal building and surrounding dock will open to the public in 2023.

The opening date of the new passenger-only ferry building and pier, currently under construction on the south side of Colman Dock, has moved to summer 2019 instead of this fall. The revised opening date allows the contractor to re-sequence the overall construction schedule so that WSDOT can stay on track to finish the entire Seattle Multimodal Terminal at Colman Dock Project on time.

See the WSDOT page for the Seattle Multimodal Terminal at Colman Dock Project to keep up-to-date on construction progress. View a photo gallery of this project maintained by WSDOT, too.

Photo credit: WSDOT

Published by Causey Wright