Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.
On January 13, the North Carolina Department of Labor announced that 53 people died on the job in North Carolina in 2011. Labor Commissioner Cherie Berry was quoted as saying: “the real tragedy is that all of the these fatalities could have been avoided.” I wholeheartedly agree. 53 deaths is 53 too many. When I see news stories about explosions and other tragic events that needlessly harm or kill workers, often spewing toxic chemicals into the surrounding environment harming entire communities, I can’t help but think about how it all could be avoided if companies embraced a culture that puts safety first and simply followed the proper guidelines and procedures. I see companies spend a lot of time and money to fight the Occupational Health and Safety Administration (OSHA) over fines and penalties but rarely see the same effort being put into protecting their workers in the first place.
Employers, I challenge you to make safety as much of a priority as profits. Stop wasting time and money fighting against worker safety and instead focus your efforts on saving lives.
It may be hard to believe given my chosen profession as a workers’ compensation lawyer but if I had my way, workers’ compensation lawyers like me would be obsolete. We’d go the way of horse-drawn carriages and 8-tracks. We exist because many companies treat worker safety as an afterthought. The workers’ compensation system provides employers with immunity from lawsuits for most on the job injuries — they are required to buy workers’ compensation insurance, so why bother spending more to protect workers if they get no return on that money spent? Continue reading Imagining A World With No Workers’ Compensation Lawyers→
For those of you — particularly the younger generation voters — who watched the pageantry of the Republican National Convention and saw the platform of the Tea-Party-dominated Republican Party, you may find it enlightening to put that platform in the historical context of what the Republican Party used to stand for – supporting workers’ rights, securing benefit programs and securing the rights of labor unions.
Here is the platform of the Republican Party of 1956, when President Dwight D. Eisenhower was seeking re-election to a second term:
“The Eisenhower Administration will continue to fight for dynamic and progressive programs which, among other things, will:
Stimulate improved job safety of our workers, through assistance to the States, employees and employers;
Continue and further perfect its programs of assistance to the millions of workers with special employment problems, such as older workers, handicapped workers, members of minority groups, and migratory workers;
Strengthen and improve the Federal-State Employment Service and improve the effectiveness of the unemployment insurance system;
Protect by law, the assets of employee welfare and benefit plans so that workers who are the beneficiaries can be assured of their rightful benefits;
Assure equal pay for equal work regardless of sex;
Federally-assisted construction, and maintain and continue the vigorous administration of the Federal prevailing minimum wage law for public supply contracts;
Extend the protection of the Federal minimum wage laws to as many more workers as is possible and practicable;
Continue to fight for the elimination of discrimination in employment because of race, creed, color, national origin, ancestry or sex;
Provide assistance to improve the economic conditions of areas faced with persistent and substantial unemployment;
Revise and improve the Taft-Hartley Act so as to protect more effectively the rights of labor unions, management, the individual worker, and the public. The protection of the right of workers to organize into unions and to bargain collectively is the firm and permanent policy of the Eisenhower Administration.”
Today’s post is a film on the history of workers’ compensation, presented by the Workers’ Injury Law & Advocacy Group at the National Symposium on the 40th Anniversary of the National Commission on Workers Compensation, which in 1972 found the state workers’ compensation systems to be inadequate and unfair.
This film is a great reminder that the workers’ compensation systems we work under today were created to correct issues with unsafe workplaces and the effects of injuries on the job during a time when workplace safety was not yet a reality. We need to remember our history, lest the lessons hard-won be forgotten.
Today’s post comes from guest author Ryan Benharris from Deborah G. Kohl Law Offices.
The worst part of my day as a Workers’ Compensation attorney is unquestionably the time when I need to explain to my clients that Workers’ Compensation does not include pain and suffering in a settlement. Inevitably, the look from the client is always the same. It’s the exact look I would give to my lawyer if he were saying the things to me that are coming out of my mouth to them. It’s a look that begins as disbelief then turns into anger.
Disbelieve it all you want; Pain and Suffering literally does not exist in Massachusetts Workers’ Compensation. There are an abundance of reasons and explanations for this. None of the reasons and explanations make it right. However, it’s something every injured worker must live with.
Disbelieve it all you want; Pain and Suffering literally does not exist in Massachusetts Workers’ Compensation…None of the reasons and explanations make it right. However, it’s something every injured worker must live with.
An explanation of what pain and suffering actually is makes it easier to understand how it doesn’t exist in Workers’ Compensation. Pain and suffering is a remedy that is only available to victims of personal injuries that resulted from the fault of another party. Workers’ Compensation does not have pain and suffering because it is a fault-free system.. You do not have to prove that your employer was at fault or that its negligence caused you to become injured. You simply need to prove that you were disabled as a result of an injury that took place at work. Fault is irrelevant. Though not needing to prove fault to receive workers’ compensation benefits is clearly a good thing, it comes with a hefty price. Unfortunately because fault is irrelevant, so is pain and suffering.
As you will undoubtedly hear from friends and family members, personal injury cases that settled for a lot of money did so because their attorney was able to prove that they had significant pain and suffering. Without pain and suffering, it often becomes difficult for workers’ compensation cases to settle for comparable amounts to a fault-based personal injury case. This makes it much more important that you know each and every benefit that is available to you if you are hurt at work.
Because pain and suffering does not exist in workers’ compensation, you must maximize the benefits that do actually exist. Workers’ compensation is what is known as a “wage replacement system.” Very simply, the only money the insurer is responsible for paying you is any wages that you may lose. You can receive wage replacement benefits for up to seven (7) years unless you become permanently and totally incapable of working.
The only other monetary benefit available to an injured worker besides the wage replacement benefits is if you sustain any permanent loss of function to a body part. This can be determined by your doctor. If your physician finds that there is a permanent percentage of loss of use to your injured body part, the insurance company will likely be responsible to pay you additional benefits. This, however, is hardly a substitute for pain and suffering.
Today’s post comes from guest author Todd Jones from Pasternack Tilker Ziegler Walsh Stanton & Romano.
QUESTION: DOES GOING BACK TO WORK RUIN MY CASE?
ANSWER: Not at all!
This question comes up a lot in Workers’ Compensation cases. When someone is injured they have to balance their personal and professional obligations while including their injury as a new variable.
This is completely understandable. Oftentimes people want to try to get back to work but are not sure if their body will hold up. This uncertainty can cast a shadow over everything a person has to consider when they have a work injury.
First and foremost you should speak to your doctor and find out what you are physically capable of. While your injury may be improving, you may not be able to return at 100%.
Our office routinely cautions injured workers against any Facebook postings after a work injury for just that reason. While clients may feel that this impinges on their “private” life, they need to be aware that the insurance company will scour the internet, past employment histories, and medical records for any information that can be used in defense of a claim. Whether or not the photos are related to the injury or the need for medical care, they can often affect client credibility. In fact, we have dismissed several claims because of Facebook postings—and had to salvage some settlements due to post-compromise social media postings! Tom Domer is one of the editors of the national magazine for the Workers Injury Law and Advocacy Group (WILG) called the Worker’s First Watch. This month’s issue contains an article (starting on page 37) on the dangers of social media and its use against injured workers and worker’s compensation proceedings (the link is to a PDF document).
The election season begins early in Washington this year. You may already be suffering from election advertising fatigue, as I am, but election ballots are set to be mailed in the next week for the August 7th primary, and in the past many of you have sought our recommendations on judicial races. There are three critical elections on the primary ballot for the Washington State Supreme Court.
Why are we getting this message out now? Because election statistics show that about twenty percent of voters skip the judicial races on their ballots. As you know, our ability to represent injured and disabled workers can be dramatically affected by who is ultimately deciding cases on appeal. It is critical to have the right men and women leading our judicial system, so here are our views on the candidates you will see on your ballot.
Here are our recommendations in the three Supreme Court races:
For Position 2, we recommend voting for incumbent Justice Susan Owens. Owens has served on the high court for twelve years ably, while her opponents have no judicial experience.
For Position 8, we recommend voting for the newly-appointed incumbent Justice Steve Gonzalez. Gonzalez, a former Assistant US Attorney, King County Prosecutor, and King County Superior Court Judge, was appointed to the bench last year following his outstanding record throughout his legal career and his commitment to access to justice issues across our state. In contrast, his opponent has been rated ‘Not Qualified’ by his local colleagues in the bar association in his races for lesser judicial offices. Since there are only two candidates on the ballot in this race, it will be decided in August.
Finally, Position 9 is an open seat being vacated by Justice Tom Chambers, who is irreplaceable as a champion for the rule of law and citizens’ rights. This race drew a strong field of candidates. Bruce Hilyer, John Ladenburg, and Sheryl McCloud would all make excellent justices. We have no particular preference. The fourth candidate, Richard Sanders, who was defeated in the last election by current Justice Charles Wiggins and is running again, has had his day and we don’t believe he deserves the same consideration.
While we’re at it, I’ll give you the first of my personal views on the three other most important races coming up on the November ballot that will have potentially great impact on you as a Washington citizen and consumer: the races for Governor, Attorney General and Insurance Commissioner.
In the Governor’s race, Jay Inslee is the clear civil justice candidate. Prior to public office, Jay was an attorney representing victims in Yakima. He then began a long career of public service where he has diligently protected citizens’ constitutional and civil rights, and been a champion of worker and consumer protections. (Personal note: I’ve known Jay for many years.) In contrast, his opponent Rob McKenna has fought to remove or reduce citizens’ ability to hold government accountable through the court system. For example, his first request for legislation as Attorney General would have taken away our right to hold the government or ANY government contractor accountable—whether from poisoned food in schools, faulty bridge construction, or any other number of the most reckless or careless acts that lead to serious injury or death. It was breathtaking that our state attorney would propose such a lack of accountability. It’s a pretty sure bet that Mr. McKenna’s philosophy concerning business versus individual rights will percolate down to the Department of Labor & Industries, where your workers’ compensation claims are decided and managed. As the weeks go on, we’ll have much more to say about the Governor’s race.
The Attorney General is the chief legal officer for the State of Washington and its citizens, and 90% of the office’s job is representing the state in civil cases. I believe it is critical that the Attorney General believe in a government accountable to the protection of its citizenry and who shares a commitment to going after the powerful special interests that harm the public by abusing our laws. I strongly recommend Bob Ferguson for this job. Bob is a lawyer and King County Councilman, who has committed his campaign to the same issues he has committed his public service to thus far: protecting public safety, going after fraudulent actors like mortgage lenders and servicers, prosecuting polluters, and protecting taxpayers against fraud and abuse. Bob would be a champion for us all as Attorney General and deserves your vote.
Finally, incumbent Insurance Commissioner Mike Kreidler must be re-elected. Commissioner Kreidler has been the number one champion in the state shaping our insurance system to try and make it work for consumers in every line of insurance. The Insurance Industry writes $30 billion worth of business every year in our state, and he uses his office to fight to make sure consumers are actually getting the coverage they pay for, fighting delay or denial of legitimate claims, and trying to reduce rates and create a fair system.
We hope you have found this information useful. We are sharing my views with you because of our strong belief that all our clients seeking a chance for justice through the court system, and the administrative law systems that the courts review, depend on these public servants. Please share this message with family and friends. Regardless of your views on these races, though, please make sure you vote on August 7th. We owe it to each other to participate and have our voice heard in our electoral process.
The Claimant’s name has been changed to insure confidentiality.
Our clients who are embroiled in litigation in their seemingly straightforward workers’ comp cases are often shocked when we tell them how long it may likely take to get a final decision. We recently prevailed in a case that serves as an exemplar of what the litigation process can involve.
David performed maintenance and repair for about five years on large construction equipment, requiring heavy lifting, carrying, torqueing, and other strength maneuvers in awkward positions, all affecting a shoulder condition that had its origins 30 years before in a diving injury followed by an injury on the job to the same shoulder that required surgery. He had worked at vigorous labor for the ensuing 25 years with no limitations until his work for the last company aggravated his shoulder, disabling him from work and leading to a partial shoulder replacement surgery.
Here’s how the claim went: David filed to reopen his 30-year old injury claim, but the Dept. of Labor & Industries (L&I) denied the reopening because of information about the recent work activity. He then filed a claim based on injury from his last repair/maintenance work, and the claim was allowed as an “injury.” The employer protested the allowance, and L&I took it back for further review. It was then allowed as an “occupational condition or disease” based on the aggravating effect of the cumulative trauma on David’s pre-existing but non-disabling shoulder condition. The employer then appealed that order to the Board of Industrial Insurance Appeals (BIIA) – our workers’ compensation “trial court” – and months later full hearings were conducted with live testimony from David and depositions of four medical witnesses.
Months after that, the BIIA judge who heard the evidence issued a decision fully favorable to David, and upholding the L&I allowance order. The employer then requested reconsideration of the judge’s decision. That was denied, and the employer then filed an appeal to superior court requesting a jury trial. Many months later, the case was tried to a jury and the jury upheld the BIIA’s and L&I’s decisions. At that point, the employer had been given five shots at overturning the allowance of David’s claim.
How long did all this take in a case with a seemingly straightforward medical issue?
December, 2009 to July, 2012 – over 2 ½ years!
An interesting side-note to this case: Our Rule 9 intern, Brian Wright, recently graduated from Seattle University School of Law and preparing to take the bar examination later this month, assisted me in trying the case in superior court. I turned over closing argument to the jury to Brian, and he did a great job, beating a seasoned defense lawyer I’ve been litigating against for 20 years or so. At Causey Law Firm we’re wagering that Brian is the only Rule 9 intern in the state to prevail over an experienced lawyer in a superior court jury trial this year!
Today’s post comes from guest author Tom Domer from The Domer Law Firm. Just as described by Mr. Domer in the following article, Washington State sports players are covered under the same workers’ compensation laws that govern the rest of the Washington work force. Causey Law Firm has represented several professional athletes with memorable names, which is fun until it comes time to explain that their ratings of permanent impairment are based on a comparison with a normal individual’s average level of performance – strength, range of motion, etc.. – not a comparison with their own super-standard levels. Add to that the notion that the permanent impairment award dollar values are the same for every worker in the State and final settlements do not take into account lost wage earning capacity in Washington and what is left over is a frowning face on the sidelines.
Most of us do not associate a professional athlete’s injury with workers’ compensation. Because of pro athletes’ generous contract wages, and the relatively modest recoveries available under workers’ compensation, most fans don’t recognize that when it comes to receiving workers’ compensation, professional athletes are just like other office or factory workers who can recover worker’s compensation when injured.
Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes.
Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes. Wisconsin law places a cap on the amount of money an athlete can receive for his injury. The maximum weekly wage for 2012 is $1,281, yielding a temporary disability rate of $854. The right to workers’ compensation is contained in the collective bargaining agreements with the respective players unions in football, basketball and baseball. In Wisconsin, insurance companies charge employers like the Green Bay Packers, Milwaukee Brewers, and Milwaukee Bucks for workers’ compensation insurance.
Pro athletes regularly get hurt on the job, but few pursue workers’comp claims. In the ten years from 1994 through 2004 a total of 37 cases involving the Packers were litigated, and in the same period 20 cased involving the Brewers were contested. (Milwaukee Journal Sentinel, Sunday, June 25, 2006 “Paying for Pain”) Cases that went to a hearing were even more rare : only four cases involving the Packers went to a hearing in that ten year period.
It’s a popular notion that athletes assume the risk of injury, since that is the nature of professional sports. Some states have bought into this concept and leave professional athletes unprotected.
Athletes apply for worker’s compensation largely for two reasons: vocational retraining and Loss of Earning Capacity. Many pro athletes have not completed college, or when they did, they were not scholars, so the only thing they know how to do is play sports. If they get wrecked and cannot play, they have to find a way to earn a living. Loss of Earning Capacity is measured by the player’s residual ability to earn a living considering the limitations of the injury.
It’s a popular notion that athletes assume the risk of injury, since that is the nature of professional sports. Some states have bought into this concept and leave professional athletes unprotected. In Pennsylvania recently the Courts ruled the Pittsburgh Steelers do not have to pay the attorney fees related to a former player’s workers’ compensation case, because although he clearly suffered injuries while with the team, the team argued he was not “disabled” since he continued to play for other pro teams. Pittsburgh Post Gazzette, April 24, 2012. All pro athletes are covered in Wisconsin.
Today we have a guest post from our colleague Leonard Jernigan of North Carolina.
All employees should be on the lookout for signs that their employer or potential employer is engaging in workers’ compensation fraud.
The list of signs below was inspired by this one from the Washington State Department of Labor & Industries.
These signs may indicate that your employer is not paying workers’ compensation insurance for their employees. If they aren’t, this could put you in a very difficult situation if you are ever injured on the job.
If any of these signs sound familiar, report the employer to the Fraud Investigations Department of the Deparment of Labor and Industries and, if at all possible, find another job.
Your employer may be engaged in workers’ compensation fraud if:
They pay you in cash and don’t give you any kind of payroll stub.
They give you a 1099 form instead of the standard W-2.
They pay you other than in cash or check, by such things as free rent, reimbursement of expenses, barter, etc.
They pay you on a piecework basis and do not record hours.
They require you to work long hours but turn in fewer hours than you actually worked.
You or somebody you know is injured on the job, and the employer promises to pay the medical bills rather than reporting the accident to the North Carolina Industrial Commission.
