All posts by Jay Causey

Budget Cuts

Dirty Tricks Lead To Reduced Benefits In Cuomo’s New Budget

Today’s post is shared from Workers’ Law Watch, written by Catherine Stanton of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. 

An  additional comment: many of the pressures from the business community that produced this disaster in New York are alive and well in the State of Washington. Brian Wright and his team are actively involved, with others in our community, in legislative work to protect the rights of all injured workers in Washington. – Jay Causey

Governor Cuomo signed a new budget this week. While many extolled his progressive agenda that included free college tuition for the middle class, renewing the millionaire’s tax, and giving a tax break on dues for union members, he also quietly and without much fanfare in the news media, struck a huge blow to injured workers. 

Unfortunately for those members of our society who no longer are able to work as a result of an injury, or sustained a life altering injury while on the job, their benefits became part of a horse-trade in Albany much to their detriment. Governor Cuomo, anxious to get his big publicity items in the budget in case he seeks higher office, seems to have used Workers’ Compensation as a bargaining chip. 

The Business Council circulated fake facts blaming injured workers’ benefits for the high cost of doing business in the state, when in reality employer costs nationwide for Workers’ Compensation are at their lowest levels in 35 years.  Locally, Workers’ Compensation costs in New York have declined dramatically as well; compensation is only a small portion of employer costs and is extremely profitable for insurers. The Business Council seems to have a number of members with strong ties to the insurance industry, which makes their position even further suspect.

In 2007, the Council was successful in lobbying to obtain caps on indemnity benefits and has now continued its assault so that the prior limit on weekly benefits will be further reduced. When caps were first put into place, they did not go into effect until judges determined that injured workers had reached maximum medical improvement and that their conditions could be classified as permanent. This new provision automatically starts the cap after 2½ years, regardless of a person’s abilities or condition, or whether or not he will ever be able to work again or find work that meets medical restrictions. It is up to the injured worker to show that he has not reached maximum medical treatment that the carrier can refute.  

The Business Council has continued its attack by alleging that permanent loss-of-use awards were unfair to the employer. They argue that the prior guidelines were outdated and did not take into consideration new advances in medicine. Again, fake facts! The guidelines are based on range of motion and loss of function after all modalities are exhausted, including new advances in medicine available. As a result, the new law directs the Board to “consult” with a group stacked with pro business and insurance interests, but no representatives of injured workers to “review” the current guidelines with the ultimate goal of reducing benefits. The fact that workers who have permanent life-altering injuries to their arms, legs, hands, feet, fingers, and toes have absolutely no say is extremely distressing.

When does this eroding away of Workers’ Compensation benefits end? Two years ago, ProPublica published a series of articles entitled “The Demolition of Workers’ Comp”.  They documented the cutbacks made in many states with disastrous consequences. Their report noted that since 2003, 33 states passed Workers’ Compensation laws that reduce benefits or make it more difficult to obtain benefits. New York is part of that list, having enacted laws not once, but twice, since then.

Many believe that reducing benefits to injured workers will force them back to work. Studies have shown that this is another myth perpetuated by the falsehood that injured workers are frauds. What happens in reality is that many injured workers are unable to work and are forced into poverty or have to collect alternate benefits. Social Security Disability benefits, which are paid by the American taxpayers, are generally offset by Workers’ Compensation benefits. Without Workers’ Compensation payable by the insurance carrier, the burden on the taxpayer is larger. Rather than the Workers’ Compensation insurance carrier paying for medical treatment, it is put through Medicare. This is known as cost shifting and it affects all of us, as we are the ones who end up paying – and paying dearly.

 

Worker Safety

Republicans Just Made It Easier For Employers To Hide Workplace Injuries

Today’s post was shared by Jay Causey and comes from www.huffingtonpost.com.

They used an arcane procedural maneuver to repeal a significant safety regulation issued by the Obama administration.

WASHINGTON ― The Republican-led Congress moved to dismantle yet another corporate regulation on Wednesday, in a move that safety experts say will make it easier for employers to hide serious workplace injuries from the government.

The Senate voted 50-48 to strike down a rule issued late in Barack Obama’s presidency that requires large employers to keep an ongoing record of health and safety incidents. The Obama administration issued the rule in an effort to solidify what it considered long-standing policy at the Occupational Safety and Health Administration.

By doing away with the rule, Republicans are effectively cutting down the length of time that employers in dangerous industries are required to keep injury records ― from five years to just six months. Former OSHA officials say that doesn’t provide enough time to identify recurring problems with particular employers or industries.

They also say the change gives unscrupulous employers little incentive to keep an accurate log of injuries, since it will be more difficult for them to be penalized for not doing so. When employers have a track record of such injuries, it can lead to higher workers’ compensation costs and more government scrutiny.

“This will give license to employers to keep fraudulent records and to willfully violate the law with impunity,” said Debbie Berkowitz, a former OSHA policy adviser now with the National Employment Law Project, an advocacy group for low-wage workers.

Read the full story here.

Photo credit: Mel1st via Foter.com / CC BY-NC-ND

Courts

OUR SUPREME COURT: NOT FOR SALE

Usually, judicial elections are sleepy affairs. This is not one of those years, especially when it comes to our state’s Supreme Court.

All six candidates are good public servants – but three have not proven their qualifications for this office. The most contested race is for Justice Charlie Wiggins’ seat. We believe we should keep Justice Wiggins on the bench. We also urge support for Justice Yu and Chief Justice Madsen. 

Justice Wiggins has over 30 years of appellate experience, before election to the Supreme Court in 2010, as a judge on the Court of Appeals and as pro tem judge for the Superior Court. And in less than six years on the bench, he has authored over 110 judicial opinions. 

He has been a leading voice for judicial independence in our state and worked to support campaign contribution limits in state judicial elections. He chaired the committee to update the Civil Legal Needs Study and has been an advocate for meeting those needs. He has, in short, been the Justice we need.

We encourage you to support Justice Wiggins and to watch and share this positive video with your friends, family and colleagues. 

What is the Washington State Association for Justice?

This Newsletter – Fighting for Justice – is designed to bring you the latest issues facing our civil justice system in Washington and in our country – including other’s attempts to dismantle it and our efforts to protect it.

Our Mission: We stand up in the courtroom and in the halls of government for real people. We defend your Constitutional rights, including the right to have your day in court. We hold corporate and other powerful interests accountable. We are a community, creating and sharing the resources for our members to secure justice.

Our Membership includes 2,500 attorneys and legal professionals in communities large and small around Washington State. As trial lawyers, we fight for justice for citizens everyday in court. Our legislative team in Olympia is devoted to continuing the fight to ensure that citizens retain their civil justice rights.

Sincerely, 

Washington State Association for Justice

Uncategorized

Election of Judges Important – Our Recommendations

Friends –

We’re all suffering from election fatigue this year, perhaps more than ever before.  But election ballots will be mailed out this week, and in the past many of you have sought our recommendations on the judicial races.  Washington is one of only eleven states that elect our judges at all levels, and in ostensibly a non-partisan, non-political fashion, which makes your participation critical in the construction of this state’s judiciary.  We say “ostensibly” because this year – as we have warned clients in past judicial races – there are distinctly “political” efforts, some from outside Washington State, to affect the outcome of our Supreme Court’s lineup.

Our recommendations for Washington State Supreme Court are as follows:

Position #1 – Justice Mary Yu – a distinguished jurist, a former prosecutor, and formal social justice organizer, who is the only candidate receiving the highest possible rating from every peer and legal group.  Every major bar association which gives “judge of the year” awards has recognized her.  Her opponent’s only talking point revolves around the Supreme Court’s decision on school funding and charter schools, which occurred because of the failure of the state legislature to do its job.

Position #5 – Justice Barbara Madsen – chosen by her colleagues on the Court to be the Chief Justice, she leads a state supreme court that is rated by conservative and legal scholars alike as one of the top three in the nation.  Her opponent is similarly a one-issue campaigner, sponsored by a local billionaire because of the charter school ruling.

Position #6 – Justice Charles Wiggins – a recognized national leader on the issue of judicial ethics, with extremely high ratings from all Bar groups, and has been the most prolific writer and workhorse on the Court in the last term.  He is perhaps the most experienced appellate lawyer on the bench, versus an opponent with little or no appellate experience, running solely on school funding/charter school issue.

Of course, feel free to get further information on these candidates from the voters’ pamphlet and from www.votingforjudges.org.  Polls predict that many voters will delay or not cast ballots this year because of dissatisfaction with and disinterest in the candidates at the top of the ticket.  How our state functions depends upon Washington citizens voting all the way down the ballot this year.  We urge you to do your part!

VTY,

Jay, Brian, Jane and Reed

 

 Photo credit: Scott* via Foter.com / CC BY-NC-SA

 

 

Workers' Compensation

Workers’ Compensation – A System Destroyed

            A recent national study confirms what most attorneys who have practiced in the workers’ comp arena have observed over the past ten to twenty years:  the business lobby and the insurance industry, enabled by the ever-increasing takeover of state legislatures by the Republican party, have largely dismembered our nation’s 100-year-old workers’ comp system.  ProPublica, an independent, non-profit newsroom producing public interest investigative journalism, has shined a light on what has happened to the most important safety net for workers.  The full article is here. The whole series is an exhaustive look at the changes afoot; well worth a read.

            Under the banner of reforming a system described as suffering “out of control costs,” the allied forces have drastically reduced coverage for injured workers over the past ten years, and have shifted the cost of workplace accident and illness from the responsible businesses and industries and onto the American taxpayer through Social Security Disability Insurance, Medicare and Medicaid, systems now under extreme pressure themselves.

            The usual cited basis for these cutbacks and shrinking coverage – rising costs – has now been shown to be totally fraudulent.  Employers are paying the lowest workers’ comp rates since the 1970s, and insurers are enjoying their highest profits in a decade – 18% in 2013.

            Some other findings in the ProPublica report:

  1. Since 2003, 33 states have passed laws reducing benefits or making qualifying for them more difficult.

  2. Employers and insurers now largely medical decisions—in 37 states workers can’t choose their doctor, or must choose from a restricted list.

  3. Increasingly, benefits are terminated before workers have regained the ability to re-enter employment.

And what has the federal government done, mandated in 1972 to ensure that states maintained minimum federal standards?  Nothing since 2004, after budget cuts eliminated funding for the feds to track and monitor what was happening in the states.  With the disappearance of any federal oversight, workers’ comp in the states has become a “race to the bottom.”

      For context, ProPublica briefly refreshes the mostly-forgotten history of the origins of workers’ comp – the grand bargain arising out of the age of early industrialization that caused grisly, incapacitating injuries whereby workers surrendered their, often illusory, right to sue their employers in return for the limited but certain remedies of workers’ compensation.  Fifty years after most states had enacted workers’ comp laws, a federal commission convened by President Richard Nixon reviewed the state of the laws, found them “inadequate and inequitable,” and made an extensive list of recommendations. The commission advised Congress to mandate 19 of the recommendations as minimum standards, and for a period of time the national state of workers’ comp laws improved.  But about twenty years ago, the rising conservative tide in the states initiated a new era of cutbacks, to the point that, according to ProPublica, only seven states now follow at least fifteen of the commission’s recommendations.

      The ProPublica report details several shocking examples of how workers’ comp, shrunken as a remedy by the chambers of commerce whose representatives often write the “reform” legislation in the various states, is failing the American worker.  It cites a study by a University of California health economist who estimates that workers’ comp covered less than a third of injured workers’ medical costs and lost earnings in 2007.

In the summer of 2014 a Florida judge ruled that the state’s workers’ comp benefits had been decimated to such an extent, and that the comp law failed so miserably as to safety, health, welfare and morals, that it had become “unconstitutional.”  That would mean the end of the “grand bargain” in that state and the restoration of the right of workers to sue their employers.  One hundred years after the enactment of the first workers’ comp laws, we may be standing on the precipice of a new era of worker rights for the consequences of workplace injury and disease.

Graphic credit: Matt Rota for ProPublica

Employers

DON’T SHOP AT WALMART ON THANKSGIVING OR “BLACK FRIDAY”!

America’s worst employer, Walmart, is at it again.  Last year the company experienced a humiliating backlash for holding in-store food drives with bins for their “hungry” and “needy” Walmart “associates” instead of paying them a living wage.  Almost unbelievably, they are running the same food drives this year!  The effective message of this program?  “Give to your co-workers so we don’t have to.”

Walmart made profits of $16 billion last year.  Their owners have a combined worth of $148.8 billion.  But we taxpayers spend an estimated $6.2 billion a year subsidizing low wages for Walmart workers through federal assistance programs.  And according to a food industry watchdog report, Walmart is a major contributor to the hunger crisis affecting a large segment of the population because of low wages and part-time, no benefits jobs.

Walmart workers don’t want food bins.  As one worker recently said, “we want improved pay and hours so we can buy our own groceries.”  This Thanksgiving season, send a message to Walmart about its outrageous practices:  DON”T SHOP THERE!

 

Photo credit: TenMania

 

Social Security

SOCIAL SECURITY DISABILITY: THE TRUTH BEHIND MISCHARACTERIZATIONS BY POLITICIANS AND THE MEDIA

A thought-provoking article about the Social Security Disability (SSD) program appeared in the August 25, 2014 edition of The Hill, a newspaper published for and about the U.S. Congress. The article was authored by Barbara Silverstone, Executive Director of NOSSCR, the National Organization of Social Security Claimant’s Representatives. Ms. Silverstone’s complete article can be accessed on the The Hill’s website.

Ms. Silverstone dispels with factual data some of the myths currently being peddled by certain members of Congress and media outlets. Ms. Silverstone points out the eligibility criteria for SSD are extremely strict, and the burden is on the person applying for benefits to prove, with medical records – not mere assertions, the severity of his or her disabling condition(s). Only about 40% of applications are approved, a fact that belies the claim there is a systematic bias toward approving applicants who are not actually disabled. The current approval rate is the lowest it has been in 40 years.

Ms. Silverstone notes that recent Congressional investigations into allegations of fraud have not identified any cases of fraud beyond those that the Social Security Administration itself has uncovered. She discusses, in particular, the 2012 investigation of Senator Coburn. His staff reviewed about 300 appeals decisions, but failed to identify a single individual who was approved for benefits that should have been denied. Congress complains that the Social Security Administration does not do enough to identify potential fraud in the program, but at the same time Congress has cut Social Security’s budget, providing about $1 billion less than requested over the past three years! As a result, Social Security has lost more than 11,000 employees since 2011. This inevitably has impacted the agency’s ability to serve the American people in many aspects of its operation.

Health Update

A Special Warning About Over-the-Counter Pain Medications

The dangers of prescription pain meds get a fair amount of regular attention in the media.  A recent Consumer Reports (CR) article described a 300% rise in prescriptions of opiods – particularly those with hydrocodone –over the past decade, and provided a scary statistic:  17,000 people – 46 per day – die from overdose of these drugs.

What is less well known, and gets relatively scant attention, is that over-the-counter (OTC) painkillers containing acetaminophen (e.g. Tylenol) take 80,000 people yearly to the emergency room from overdose.  Acetaminophen, widely regarded as a “safe” drug is now the most common cause of liver failure.

The CR article points out the primary problem:  the directions for usage of these OTC drugs are ridiculously confusing and misleading.  Many of these only provide the caveat “take only as directed.”  What exactly does that mean?  Wildly different things according the cautions provided by differing drug manufacturers.  Some labels advise taking no more than 1000 milligrams of acetaminophen daily while others set the limits four times that high.  In some bizarre bureaucratic misstep, the FDA has lowered the maximum per-pill dose of the drug in prescription medications but has not done the same thing for OTCs. 

CR warns that overdosing on acetaminophen is easy as it is the most common drug in the U.S., found in more than 600 OTC and prescription medications.  There is little margin for error in exceeding the maximum recommended dose as only as small excess amount of the drug can be toxic to the liver.  A scary little graphic in the article shows how easy it is to do this.  A person might take six 500 milligram Extra Strength Tylenol (states maximum daily dose of 3000 milligrams) starting in the morning and through the day; then be on NyQuil for a cold and take eight 325 milligram pills (states maximum daily dose 2600 milligrams); and then do Walgreens Pain Reliever PM as a sleep aid (two 500 milligram pills at bedtime for a daily dose of 1000 milligrams).  At the end of a 24-hour period, that person would have ingested 6,600 milligrams of acetaminophen!!  Repeated doses of more than 4000 milligrams of the drug have been linked to liver, brain and kidney damage.  Chronically large doses have been correlated with the need for a liver transplant, or death, more than from one large overdose.

In 2011, the FDA limited the amount of acetaminophen in prescription pills to 325 milligrams per pill, but there has been no similar limitation imposed for OTCs, even though that market accounts for 80% of that drug taken yearly in the U.S.  For those regular users of acetaminophen, signs of potential liver damage to watch for are:  dark urine, pale stool, upper right abdominal pain, and a yellowish tint to the whites of the eyes.

 

Photo credit: Be.Futureproof / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Defense Base Act

Fixing Our Inadequate Brain Science

The high incidence of traumatic brain injury (TBI) and PTSD (posttraumatic stress disorder) affecting our returning Afghanistan and Iraq veterans, and also our civilian contractor employees, has helped to highlight the inadequacy of the current level of “brain science.”

More than one in five Americans – – over 60 million people – – suffer brain disorder from injury or illness. 600 conditions exist, ranging from autism and Alzheimer’s to the aforementioned TBI and PTSD. Not a single one of these conditions has been cured.  Brain ailments affect more people than heart disease and cancer combined, yet those conditions receive 3 to 5 times more funding for research.

Unlike science for other conditions and diseases, brain science has not had the advantage of an umbrella organization to its coordinate efforts. Brain science research and funding has been fragmented, researchers have often been territorial and overly concerned with intellectual property issues, and the corporate funding that has come mostly from the pharmaceutical industry has been shrinking. An organization named One Mind has recently been created to attack the shortcomings of brain science by advocating for the principle of “open science,” which fosters collaborative scientific work with accessible central data collection for researchers. This process in turn allows for accelerated integration of data and validation of results for publication. All of this should allow basic research to more rapidly reach the clinical setting and benefit patients of brain ailment.

One Mind has two programs currently in progress: Gemini, in which 11 research centers will enroll 3000 patients in a longitudinal brain injury study; and Apollo, which is developing a data exchange portal that will support the collaborative effort described above and will create a digital marketplace accessible by students, teachers and researchers.

One Mind is currently headed by CEO Gen. Pete Chiarelli, U.S. Army (retired) who as vice chief of the Army was instrumental in Department of Defense efforts on PTSD, TBI, and suicide prevention. In 2013 Chiarelli received the “Patriot Award” for his work with soldiers and their families dealing with the so-called “invisible wounds” of war.

The author recently attended a presentation in Seattle by Gen. Chiarelli, who provided much additional anecdotal information about the shortcomings of brain science and the efforts by One Mind. He noted, for example, that the diagnostic criteria currently in use for assessing PTSD are decades old and woefully inadequate for mental health practitioners to accurately diagnose and assess the condition.

Go to www.onemind.org for a full review of the organization, its mission and its programs.

Photo credit: “Central nervous system drawing circa 1900”

 Double–M / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Causey Law Firm

Welcome Aboard, Jane Dale!

Ahoy there!!  The Causey Law Firm team has just added attorney Jane E. Dale to our lineup. After graduating from Seattle University School of Law in 2007, Jane was an associate with a prominent general practice firm on the Olympic Peninsula, covering a wide range of civil and criminal matters.  She then practiced with a public defender firm in the Shoreline area, handling a high-volume criminal caseload with extensive jury trial experience.  For the past two years she has practiced with another workers’ compensation firm in the Seattle area, gaining substantial experience litigating cases before the Board of Industrial Insurance Appeals and with jury trials of those cases in Superior Court.

Jane joins Brian Wright on our litigation team, and will cover the full range of workers’ compensation systems cases handled by Causey Law Firm, with potentially some additional work in the employment law field.

Jane’s background is very similar to Brian’s: grew up in the Kent area, went to the University of Washington, gaining a BA in Business Administration and Finance, received a law degree from Seattle U. with honors, where she was also an editor of a law periodical, represented the law school in Moot Court competition, and was a Mock Trial competitor.  In 2010, she was denominated a Washington State “Rising Star” attorney.  She enjoys litigating on behalf of injured workers and fighting “the man,” and brings additional depth and power to our team.

Jane enjoys a variety of athletics, and is a frequent and enthusiastic traveler.  Expect to see more pictures from her adventures on our website in the future.