All posts by Kit Case

Workers' Compensation, workplace injury, workplace safety

The Road Ahead: Adjusting To Life After An Injury

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

As an attorney who has represented injured workers for more than 27 years, I see first hand what an injury can do to workers and their families. A number of years ago I represented an injured electrician, who as a result of an overextension injury sustained on the job, ended up having multiple surgeries. Almost immediately, this once athletic, high wage earner with a beautiful family and comfortable lifestyle saw an abrupt end to the life he knew.

My client faced a debilitating injury. He was no longer able to travel, his personal relationships suffered, and his once strong physique withered away. His financial situation was dire and he was unable to afford his home. Beside the extreme physical impairment, he ended up being treated for major depression. Both the insurance carrier’s medical providers, as well as the claimant’s treating doctors in this particular case, agreed that the claimant was totally disabled or incapable of performing any meaningful work activity – a standard not easy to meet.

Many of those injured on the job may not be able to return to their prior employment. Yet, according to the law, that does not mean they are totally disabled from any employment. If they are able to perform any work activity at all then they may be considered partially disabled. The amount of weekly payments an injured person receives and the length of time an injured worker receives these benefits is dependent upon a number of factors including degree of disability and loss of earning capacity. A partial disability can be considered mild, moderate, or marked.  These degrees are further broken down into when an injury is deemed permanent to a percentage loss of earning capacity. In some cases the difference of one percent loss of earning capacity can mean the difference of a full year of additional benefits. As you can imagine, much of my practice is consumed with litigation regarding the degree of disability and the loss of earning capacity.

The road for those who are partially disabled is not an easy one. Despite the Workers’ Compensation Board’s determination that an injured person has an ability to perform some work activity, it does not always translate into being able to obtain employment. In the case of serious injuries resulting in extensive lost time, the employer may have had to fill the position or the employer may not be able to accommodate the physical limitations. This puts injured workers in a position of having to look for alternate employment that they may not be trained for. The Board recommends a number of resources available to those seeking assistance, including one-stop career centers, as well as participating in vocational rehabilitation programs and continuing education such as SUNY Educational Opportunity centers adult career and continuing education. For more information go to www.wcb.ny.gov/labor-market-attachment

Many workers who are unable to obtain employment because of their injuries apply for Social Security Disability benefits. The standard for Social Security disability is different than Workers’ Compensation and relies more on the age and ability of the injured person to be retrained and to obtain relevant future employment. Social Security Disability benefits are payable for any illness or injury and do not have to be work related. All medical conditions are considered by the federal judge when making a determination as to eligibility, including physical or emotional impairments.

While an injury on the job can be life altering, there are resources available. You may never be able to return to your pre-injury status, but knowing your options allows you the ability to have some control over your future.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Disability Inclusion

Inclusion Drives Innovation – National Disability Employment Awareness Month

Inclusion drives innovation.

In this spirit, throughout October, the Department of Labor will be recognizing the many ways disability inclusion benefits today’s innovative economy during this year’s National Disability Employment Awareness Month (NDEAM) 2017.

The USDOL highlights how inclusion drives innovation time and time again through advancements developed by and for people with disabilities that have widespread applicability. Some of the most common examples are things like curb cuts, automatic doors, and voice-recognition software that are now common in our daily lives but got their start from innovating for people with disabilities.

Technology corporations benefit from this kind of creative problem-solving, including IBM, Microsoft, and Apple. IBM includes people with a range of disabilities in its product development and testing processes. The result is an “accessibility mindset” that considers how best to deliver products and experiences in a usable way to every individual.

With more than 6 million jobs available across country, this is the time for job creators to realize the potential of the more than 500,000 Americans with disabilities who are looking for jobs right now. More than ever, job creators today can use resources and technology to include Americans of all abilities and benefit from more innovation.  Please, take time to review the companies recognized as “Best Places to Work” based on the 2017 Disability Equality Index. 

Americans with disabilities are a huge part of the American workforce, not only this month, but every month.

 

Photo credit: Foter.com

government, Legislation, Workers' Compensation

Medicaid Cuts Will Cause More Nursing Injuries

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

While efforts to repeal the Affordable Care Act and cut Medicaid appear to have stalled for now, any successful effort to cut Medicaid will adversely impact workplace safety for nurses and nurse’s aides.

Studies by the National Institutes of Health show that reductions in Medicaid funding leads to less staffing at long term care facilities and that lower staffing leads to more injuries for nursing employees. Since most nurses and nurse’s aides are covered under state-based workers compensation laws the additional costs of work injuries from Medicaid cuts may not be fully accounted for on a federal level.

At least in Nebraska nursing employees have some ways to protect themselves when advocating for safer working conditions even if they do not belong to a union.

Nebraska has a whistleblower law that applies specifically to health care workers, including nurses. The benefit of this act is that it allows employees to recover for damages similar to what they could collect under the Nebraska Fair Employment Practices Act, including front pay and possibly attorney fees, without having to exhaust administrative remedies. Additionally, health care workers would have four years to bring a suit under the health care whistleblowers law, rather than the much shorter and complicated statute of limitations under the Nebraska Fair Employment Practices Act.

Nebraska has a broad general whistleblower law that allows employees to oppose unlawful conduct by their employers. Nebraska law requires that nursing homes to be adequately staffed. Federal law also requires that employers provide a workplace to be free of recognizable hazard. Inadequate staffing would certainly be deemed be a recognizable hazard in a nursing home. The only drawback to Nebraska’s whistleblower law is the short and potentially uncertain statute of limitations.

Nebraska law would also allow nurses reporting inadequate staffing to be protected from retaliation under a public policy claim that also has a four year statute of limitations.

Healthcare

Health Insurance – Open Enrollment Period Begins November 1st

It’s Time to Shop for Health Insurance! 

2018 Open Enrollment runs from November 1 through January 15, 2017 in Washington State

  • Plans sold during Open Enrollment start as early as January 1, 2018.
  • After January 15, you can enroll in 2018 health insurance only if you qualify for a Special Enrollment Period.

If you already have insurance, take a look at the policies now available before you renew – you may be able to save money or improve your coverage by transferring to a new policy through the exchange. In order to take advantage of subsidies and tax credits, do your shopping through Washington State’s healthcare marketplace. For those that live outside of Washington, your state may have its own healthcare marketplace. If not, or if you’re unsure, start with the federal government’s marketplace site.

2017 coverage –

Are you in need of health insurance for the remainder of 2017? Open Enrollment for 2017 health coverage ended January 31, 2017. You can still get 2017 health insurance two ways:

Don’t Over-Report Your Income!

The amount you pay for health insurance is based on your household size and income. Workers’ compensation benefits—both time loss and pension – are NOT taxable income. Do not include your time loss or pension payments in your household income figure when applying for health insurance through the exchange or through a Navigator. Veteran’s payments are also excluded from your gross income figure. 

The Affordable Care Act is Working! 

NY Times Analysis: The Impact of Obamacare, in Four Maps

Since 2013, when the major provisions of Obamacare went into effect, the uninsured rate has fallen in every state. And some states that you might not expect have led the way.

The news about the Affordable Care Act has been grim lately: The price of health plans in new marketplaces is up, and choice is declining in many places. But amid the difficulties, new data highlight the law’s effectiveness in getting coverage for millions of Americans.

Over all, the gains are substantial: a seven-percentage-point drop in the uninsured rate for adults.

Read the full article, published in October 2016, for more details including coverage maps.

Photo credit: franchiseopportunitiesphotos via Foter.com / CC BY-SA

Mental injury, PTSD, Types of injuries, Work Injury

PTSD in the Aftermath of a Work Injury

PTSD following a work injury can be compensable

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

Note: in Washington State, coverage issues are very similar to those Mr. Domer describes in Wisconsin. – kc

Recovery from a work injury is more than just the physical aspect.  After bones heal, joints are repaired, and spines are fixed, many workers still face psychological scars from the injury’s impact.  Some workers suffer from post-traumatic stress disorder (PTSD) after a trauma.  Workers with PTSD need to heal psychologically too.

The silver lining is that the Wisconsin workers’ compensation law covers that psychological treatment.  An “injury” under Wisconsin law can be either physical or mental harm from the effects of an injury.  If a worker experiences a psychological diagnosis (and need for treatment) stemming from a traumatic physical injury, the applicable legal standard is the same, as those for a physical injury.  Specifically, the psychological care, and corresponding benefits (for lost time and permanency), is compensable if the physical work injury is the direct cause of the need psychological care or even if the injury aggravated, accelerated, and precipitated a pre-existing psychological condition beyond its normal progression.  (i.e., if the work event made the person’s psychological condition permanently worse).    

A purely mental/emotional stress injury, however, has a different, higher standard.  These are claims where the worker alleges their workplace environment (without a physical injury) causes their psychological condition (examples would inlcude witnessing a horrendous event, a berating supervisor, or an unbearable workload).  In these “mental-mental” circumstances, the worker must meet the extraordinary stress test–showing their experience was greater than the day to day emotional strains all workers must undergo.   Suffice to say, this is a tough standard for most workers to meet, making these claims difficult to pursue.

In stark contrast, if a worker suffers a physical injury and then begins to experience PTSD, such claims and medical treatment expenses generally are compensable–if the psychologist or psychiatrist provides their support.   Medical support for the psychological condition and care is key.

A recent article in the Milwaukee Journal Sentinel offers excellent insight for PTSD sufferers following a traumatic incident: Life After a Car Crash: Could You Be Experiencing PTSD?  In the article, Dr. Terri deRoon-Cassini seeks to spread awareness of the prevalence of PTSD symptoms and need for treatment after an accident.  She offers a litany of specific symptoms that individuals may experience in their post-injury recovery, including:

  • intrusive flashbacks/nightmares
  • avoidance behaviors
  • hyper-arousal, or
  • negative mood/thinking.

More importantly, Dr. deRoon-Cassini higlights the need for proper and timely psychological care–along with the ability to achieve a positive recovery. 

Workers can receive compensation during their psychological recovery, as well as vocational benefits if their psychological limits do not allow a return to their pre-injury employment.   No matter what, injured workers need to be aware of their psychological/emotional state and to not be afraid to get the needed psychological care.

government, Legislation

No Accident: How To Protect Yourself Against An Uninsured (Or Underinsured) Driver

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

Note: While this topic reaches all drivers, there are related issues that overlap with workers’ compensation scenarios, as well. – kc

As an attorney who has been practicing law for more than 27 years, I always try to keep myself updated on issues that affect not only my practice, but more importantly, my clients. In order to fully understand the numerous changes, I belong to a number of bar associations that offer continuing legal education programs, as well as the opportunity to lobby at both the state and federal level on issues that impact many New Yorkers.

During my last round of lobbying in Albany, one of the bills being proposed was the New York Driver and Family Protection Act. It deals with Supplementary Uninsured/Underinsured Motorists insurance (SUM Insurance) and it is likely that many of you have very little idea of what this is. I didn’t either until it was brought to my attention.

While every driver in New York State is required to have auto insurance, some opt for the minimum coverage required under the law, which is $25,000. Others purchase more than the minimum coverage so that in the event of an accident resulting in serious injuries, there will be a better chance that their policy will cover the medical expenses and injuries of the other driver. We do this to protect our personal assets in the event we are sued as result of an accident. What many do not realize is that if you are seriously injured by another driver who only has minimum coverage, you can only collect up to the $25,000 policy maximum, regardless of the extent of your injuries.  

SUM Insurance provides coverage to New Yorkers who are injured in an accident with a driver who is not insured or is underinsured. Unfortunately, many New Yorkers are unaware of their ability to purchase this additional insurance. Since I had not been advised of this insurance by my broker and had no idea it was available, I was one of those drivers who didn’t know it was an option. Once I found out about this, however, I immediately added it to my policy and was surprised to see how relatively inexpensive it was.

The bill would require insurers to provide information to consumers about this type of coverage at the time they are purchasing insurance, which would enable them to make a fully informed decision. Once consumers are aware of the coverage, they could decide to opt out of purchasing it but at least they would know that it’s even an option to begin with. Additionally, this bill would protect motorists by amending the Insurance Law to establish that drivers’ underinsurance (SUM Insurance) equal their liability coverage. If drivers opt to decline the additional SUM Insurance coverage, they may waive it only after they fully understand what type of coverage is available – and then they must do so in writing. 

This bill makes sense because if anyone is injured by a driver who only has the minimum coverage, the injured party will still need treatment. Oftentimes this will fall onto Medicaid and other programs that are essentially taxpayer funded. Once people are fully informed, it makes sense that those who take more than the minimum coverage would opt to take some amount of coverage for SUM Insurance.        

For those who are concerned about rising insurance rates due to this bill, you shouldn’t worry. SUM Insurance is low cost and according to insurance experts, will not raise insurance rates.

As of this writing, the SUM bill passed both the Senate and the Assembly in Albany, and now is waiting to be called up by Governor Andrew Cuomo for his review and hopefully his signature into law. It seems clear that this bill would help all New Yorkers make informed decisions on issues that impact them in their day-to-day lives. While we all hope we never have to use it, if anyone of us or a loved one is involved in a serious accident, it would be nice to know that we at least don’t have to worry about proper coverage.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Uncategorized

Feds might force table-saw makers to adopt radically safer technology

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

Enlarge John Loo

In 2015, 4,700 people in the US lost a finger or other body part to table-saw incidents. Most of those injuries didn’t have to happen, thanks to technology invented in 1999 by entrepreneur Stephen Gass. By giving his blade a slight electric charge, his saw is able to detect contact with a human hand and stop spinning in a few milliseconds. A widely circulated video shows a test on a hot dog that leaves the wiener unscathed.

Now federal regulators are considering whether to make Gass’ technology mandatory in the table-saw industry. The Consumer Product Safety Commission announced plans for a new rule in May, and the rules could take effect in the coming months.

But established makers of power tools vehemently object. They say the mandate could double the cost of entry-level table saws and destroy jobs in the power-tool industry. They also point out that Gass holds dozens of patents on the technology. If the CPSC makes the technology mandatory for table saws, that could give Gass a legal monopoly over the table-saw industry until at least 2021, when his oldest patents expire.

At the same time, table-saw related injuries cost society billions every year. The CPSC predicts switching to the safer saw design will save society $1,500 to $4,000 per saw sold by reducing medical bills and lost work.

"You commissioners have the power to take one of the most dangerous products ever available to consumers and make it vastly safer," Gass said at a CPSC public…

[Click here to see the rest of this post]

NY Times

NYTimes: Europe’s Journeymen Keep the Past Alive

By MELISSA EDDY AUG. 7, 2017 – New York Times

Cleaving to the Medieval, Journeymen Ply Their Trades in Europe

They hitchhike across Europe, instantly recognizable in the wide-bottomed, corduroy trousers, white shirts and colored jackets that identify them as bricklayers, bakers, carpenters, stonemasons and roofers.

They are “Wandergesellen,” or journeymen — a vestige of the Middle Ages in modern Europe — young men, and these days women, too, who have finished their required training in any number of trades and are traveling to gather experience. Most are from German-speaking countries.

In the past, journeymen traveled under the auspices of a trade association, and today many still do. But many also take up the practice freely, though still adhering to the strict, often arcane, rules handed down largely through word of mouth to preserve the tradition.

According to custom, young men and women wishing to become journeymen find someone already on the road to sponsor them and help organize their trip. Prospective journeymen are debt-free, unmarried and no older than 30. They agree to stay away from home for at least as long it took to complete their traineeship — usually two or three years — plus a day, and to live by their wits, their trade and the generosity of strangers.

Read the rest of the NY Times article – and see the fantastic photos! – here…

Photo: Journeymen restoring the roof of a building where they have volunteered to work. Credit Tomas Munita for The New York Times

 

Affordable Care Act

NYTimes: Trump Administration Sharply Cuts Spending on Health Law Enrollment

Officials said advertising and counseling to help people find and choose health plans is often ineffective. Supporters decried the decision as sabotage.

The Trump administration is slashing spending on advertising and promotion for enrollment under the Affordable Care Act, a move some critics charged was a blatant attempt to sabotage the law.

Officials with the Department of Health and Human Services, who insisted on not being identified during a conference call with reporters, said on Thursday that the advertising budget for the open enrollment period that starts in November would be cut to $10 million, compared with $100 million spent by the Obama administration last year, a drop of 90 percent. Additionally, grants to about 100 nonprofit groups, known as navigators, that help people enroll in health plans offered by the insurance marketplaces will be cut to a total of $36 million, from about $63 million.

The officials said the administration believed that the cuts were necessary because of “diminishing returns” from advertising. They said the number of first-time enrollees in Affordable Care Act coverage fell by 42 percent this year, compared with 2016. In addition, they said that many navigator groups failed to meet their enrollment targets last year, despite sometimes receiving hundreds of thousands of dollars in federal funds.

The Senate Democratic leader, Chuck Schumer of New York, denounced the cutbacks. “The Trump administration is deliberately attempting to sabotage our health care system,” he said. “When the number of people with health insurance declines and costs skyrocket, the American people will know who’s to blame.”

Since Republicans in Congress failed to pass legislation to repeal and replace the law, a longstanding goal of the party, President Trump has stepped up attacks on the legislation and repeatedly insisted it was failing and insurance markets were imploding.

Over all, 12.2 million people selected or automatically re-enrolled in marketplace plans for 2017, although the Trump administration said in June that the number of customers who paid their premiums had dropped to 10.1 million. Similar drops have occurred in previous years after people lost coverage after they failed pay their premiums.

The administration officials who briefed reporters on Thursday said it made no sense to continue spending as much on promoting the law’s coverage options because most Americans know about them already. Instead of television ads, the administration will run radio and digital ads and send emails and texts to existing enrollees, they said. They added that any outreach would emphasize that the enrollment period will be much shorter this year — from Nov. 1 to Dec. 15. Last year’s open enrollment period ran from Nov. 1 through Jan. 31.

“People are aware the products are out there,” one official said, “and they are aware they can sign up.”

Although no navigator group will lose its funding completely, the amounts they get will be based on how close they came to meeting their enrollment goal for 2017. If a group reached only 30 percent of its enrollment goal, for example, it would receive 30 percent of the grant it got last year. 

Read the rest of the New Yort Times article here…

 

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

Trucking

KING5: Costco Drops Trucking Company Accused of Labor Violations

Reported by KING5:

Costco, the Issaquah-based company and one of the world’s largest retailers, has stopped doing business with a California trucking company accused of trapping drivers in debt and then using it to force them to work overtime.

The action comes as brands across the U.S. face increased scrutiny for ignoring labor abuses in their supply lines, a widespread problem first revealed in a USA TODAY Network investigation in June.

Earlier this month, four prominent Democratic Senators, led by Sherrod Brown of Ohio, sent letters to 16 retailers, calling on them to root out “shameful” labor abuses first outlined by the USA TODAY Network.

Soon after, Costco Wholesale dropped Pacific 9 Transportation, one of the biggest port trucking companies in Southern California.

Hewlett-Packard also sent an auditor to investigate the company’s labor practices.

Both retailers declined to comment on their actions. Alan Ta, chief operating officer for Pacific 9, said that even before Costco withdrew, his company had stopped leasing trucks to drivers and launched a series of reforms to improve their pay.

A wave of pressure from retailers and manufacturers has hit port trucking operations across the industry, according to drivers who say their employers have been fielding calls from clients. 

Those clients include Walmart, which pledged in a letter responding to the senators that it would cancel contracts with any trucking company that did not provide “assurances” it was following fair labor practices.

“The stories profiled in that article are deeply concerning,” Executive Vice President Jay Jorgensen wrote of the USA TODAY Network investigation, “Rigged.”

“Any motor carrier that fails to comply with law, such as those alleged in the article, would be in violation of our contract and would therefore be subject to cancellation,” he wrote.

The series revealed how port trucking companies in southern California have spent the past decade forcing drivers to finance their own trucks through company-sponsored lease-to-own programs they could not afford.

The longer drivers worked, the more trapped they felt. After just a few months, drivers typically had paid thousands of dollars towards a truck.

If drivers quit or got fired for any reason, most of them lost the truck and everything they had paid in. Many worked 20 hours a day to keep up with their truck payment and feed their family.

Read the rest of the report…

Photo credit: Pavel P. via Foter.com / CC BY