All posts by Kit Case

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Today’s post comes from guest author Hayes Jernigan, from The Jernigan Law Firm.

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.

 

To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

Work Comp Fraud? What Fraud?

Despite what the media portray, workers’ comp fraud is extremely rare.

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

Workers are not “getting rich” from worker’s compensation! Accordingly, fraudulent behavior in work comp is very rare—like the one bad apple spoiling the bunch—but often highly publicized. (Because, let’s face it, seeing a surveillance video of someone bowling or water-skiing is far more memorable than a thousand images of an injured worker struggling to get out of bed in the morning or walk a city block).

Under Wisconsin’s nationally-recognized model, a worker who suffers an on-the-job-injury receives workers’ compensation benefits without regard to fault. By virtue of the work comp system, injured workers cannot sue their employers or receive jury awards. Instead, injured workers are eligible for lower, defined benefits, like lost wages and medical expenses—again, we’re not talking about “pie in the sky” numbers that would incentivize bad behavior!

“Fraud” is minimal to non-existent

  • In the last published study, Dept. of Workforce Development (DWD) concluded that public perception of workers’ compensation fraud is exaggerated. In a six year span, the amount of prosecuted fraud was less than one in 20,000 work injuries…or 0.0001%.1

Industry insiders don’t think this is a big deal

  • Rick Parks, the President/CEO of Society Insurance: “From the view of thousands of claims over decades, fraud is minimal in Wisconsin”2 
  • Chris Reader of Wisconsin Manufacturers & Commerce: despite the “sensational stories,” fraud is “few and far between” in the system.3

Current law already allows criminal prosecution for alleged “fraud”

  • Worker’s Compensation Division already has an existing fraud hotline for the public. Also, a carrier can report an alleged fraudulent claim to the DWD. After an investigation, DWD can refer to district attorney for prosecution of criminal insurance fraud. Thus, if there is fraudulent behavior, under current law, there can be a crime found.

Independent Medical Examinations provide protection against “fraud”

  • Insurance carriers can require an injured worker to be seen by a handpicked independent medical examiner, or IME. If questions exist about a worker’s injury, symptoms, or disability, the IME can provide an opinion—allowing a carrier to deny the worker’s claim.

“Fraud” goes both ways

  • We want fair competition in the marketplace and in business. Misclassifying employees or workplaces results in “stolen” premium dollars and an unfair business advantage. Likewise, limiting or under-reporting work injuries undermines the fairness and credibility of our efficient work comp ratings process and system.

 

—–

1 Department of Workforce Development, Annual Report for Calendar Year 1999 Allegations of Worker’s Compensation Fraud (annual average of 3 prosecuted cases out of 60,000 injuries).

2 Senate and Assembly Committees on Labor, Informational Meeting, 7/31/13: WisconsinEye at 3:18:30.

3 Senate and Assembly Committees on Labor, Informational Meeting, 7/31/13: WisconsinEye at 2:13:00.

Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

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

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.

 

 

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.

 

Four Employers Cited in Fatal Bonney Lake, WA Bridge Collapse

The Department of Labor & Industries (L&I) has cited and fined four construction contractors for workplace safety hazards on a Bonney Lake bridge project last April that turned fatal.

Part of the structure being demolished fell onto traffic below, killing Josh and Vanessa Ellis and their eight-month-old son, Hudson, when their vehicle passed under the overpass. See the KIRO-TV story about this tragic event here.

L&I has jurisdiction over worker safety, which is what the agency investigation focused on.

WHH Nisqually Federal Services, of Tacoma, was the general contractor for pedestrian improvements on the SR 410 overpass. WHH Nisqually contracted with HighMark Concrete Contractors of Buckley to do the concrete work. HighMark Concrete contracted with Staton Companies of Eugene, Ore., to remove a portion of the existing bridge. Staton hired Hamilton Construction of Springfield, Ore., to cut the concrete barrier. All four companies had workers on site.

“Demolition is one of the most hazardous operations in construction,” said Anne Soiza, assistant director for the L&I Division of Occupational Safety & Health. “Preparing and following a specific safety plan that anticipates the worst case conditions is critical. Unfortunately, that didn’t happen in this case.” 

Staton was fined $58,800 for one “willful” and two “serious” violations for exposing workers to danger while demolishing the concrete barrier on the overpass. Staton oversaw the cutting of the concrete barrier by its subcontractor, but failed to provide a demolition plan to the subcontractor. The investigation found that Staton had concerns about the possibility of the barrier falling down during cutting, yet still continued with the work.

Staton was cited for a willful violation for not ensuring a workplace free from recognized hazards. The company demolished the concrete barrier without following procedures in the demolition plan it developed. It was also cited for a serious violation for exposing workers on a lower level to the possibility of an unplanned collapse, and another serious violation for not ensuring the concrete barrier was secured or braced to prevent collapse during cutting.

Hamilton Construction was fined $14,700 for three serious violations for exposing workers to essentially the same hazards as Staton Companies. However, none of the violations was found to be willful.

WHH Nisqually was fined $8,400 for two serious violations for not ensuring a workplace free from recognized hazards and for exposing workers on the lower level to the possibility of an unplanned collapse.

Highmark Concrete Contractors was fined $4,900 for one serious violation, also for not ensuring a workplace free from recognized hazards.

A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard of a hazard or rule. A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition.

The employers have 15 business days from receipt of the citation to appeal.

 

Photo credit: KIRO-TV

 

No Increase to Washington’s Minimum Wage in 2016

Washington state’s minimum wage will stay the same in 2016 — $9.47 per hour — because the national Consumer Price Index did not increase.

Changes to the minimum wage are based on the nationwide Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for the 12 months ending each Aug. 31. The index represents a shopping basket of goods needed for everyday living, including groceries, gas and clothing. According to the federal Bureau of Labor Statistics, the CPI-W decreased 0.3 percent between August 2014 and August 2015.

The Department of Labor & Industries (L&I) announces the state’s minimum wage each year in September as required under Initiative 688, which Washington voters approved in 1998. Under the law, the minimum wage can’t be decreased.

It’s the second time the state minimum wage has remained flat since passage of the initiative. The last time was in 2010.

An estimated 67,000 full-time equivalent wage jobs are affected, according to the state Employment Security Department.

For years, Washington’s minimum wage has been the highest in the country. That will change Jan. 1, 2016, when minimum wage in California and Massachusetts will reach $10 per hour.

Washington’s minimum wage applies to workers in both agricultural and non-agricultural jobs. Youth ages 14-15 may be paid 85 percent of the adult wage, $8.05 per hour.

L&I provides a minimum wage poster for employers to post if they wish. Employers are required to post the “Your Rights as a Worker” poster, which provides general information about employment issues. The posters are available from L&I free of charge.

L&I enforces the state’s wage-and-hour laws. The agency investigates all wage-payment complaints it receives, as required by state law. More information on Washington’s minimum wage is available at Wages.lni.wa.gov. Employers and workers also may call 360-902-5316 or 1-866-219-7321.

 

Photo credit: Denis Bocquet / Foter / CC BY

“Minimum wage?!” Singapore Clarke Quay Elgin Bridge underpass 2013 (by RSCLS street art collective)

Sanders complains about ‘erosion’ of workers’ compensation laws

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

Sen. Bernie Sanders (I-Vt.) is sounding the alarm over what he sees as crumbling protections for workers who are injured on the job.

In a letter to Labor Secretary Thomas Perez, Sanders and nine other Democrats complain about the “erosion” of state laws set up to pay workers while they are injured and cannot work.

The federal government often foots the bill for workers who fall through the cracks of state workers’ compensation laws, the lawmakers argue.

Sanders called on the Obama administration to “strengthen the safety net for workers injured on the job" and urged Perez to investigate what he sees as a decline in state workers’ compensation laws.

“This raises serious concerns,” the lawmakers wrote.

“State workers’ compensation laws are no longer providing adequate levels of support and compensation for workers injured on the job,” they added. “Instead, costs are increasingly being shifted to the American taxpayers to foot the bill.”

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7 Workers’ Comp issues few are talking about…yet

Today’s post was shared by Workers Compensation and comes from www.propertycasualty360.com

Today’s Workers’ Compensation market is generally favorable, but several emerging medical and demographic challenges have the potential to upset the current balance. By better understanding the possible impact of these new variables on the market, buyers and brokers will be able to continue to protect employees—and their bottom lines.

MEDICAL CHALLENGES

1. The Affordable Care Act may well increase WC costs by increasing demand for medical services from a fixed number of providers. If more Americans can buy medical services, the cost of those services will rise. Beyond higher prices, greater demand will also lead to longer treatment and recovery times as claimants wait to get appointments, potentially impacting indemnity costs.

2. The growing use of—and cost for—physical therapy causes challenges. Fee schedules for physical therapy have increased over the past two years in nine states that have the greatest use of PT in WC claims. California increased its fee schedule for all physical therapy billing codes by 5% to 6% in March, while New Jersey upped its schedule by 3.6% last fall. Managing the utilization and cost of physical therapy is becoming a key issue, so much so that clients, prospects and brokers are asking TPAs more questions about their strategies in this area.

3. The variability of WC costs and treatments among states threatens the market. There is no reason why the cost for treating the same type of work-related injury should differ…

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Texas employer not liable after worker beat up supervisor

Today’s post was shared by Workers Compensation and comes from www.businessinsurance.com

Worker Attacking Supervisor

A Texas appeals court has ruled that a workers compensation nonsubscriber is not liable for negligence, despite failing to perform a criminal background check on a worker who assaulted another employee.

Ramiro Najera worked at American Rice Inc. in Freeport, Texas, through staffing company Recana Solutions L.L.C., court records show. Mr. Najera and his team were responsible for fumigating packaged rice and picking up garbage and dead pests, among other things,

Recana also placed James Prodoehl, who reported to Mr. Najera, at American Rice, records show.

In June 2012, after the two men had worked together for about three months, Mr. Najera told his team that they would have to work late one day, according to records. Some of the team got upset, and Mr. Prodoehl said he wouldn’t stay to work.

In response, Mr. Najera said he would tell the team’s leader, records show. Mr. Prodoehl then began hitting Mr. Najera with a hard hat.

According to records, Recana immediately terminated Mr. Prodoehl for fighting. As a Texas nonsubscriber, the company did not carry workers comp insurance at the time of the incident.

Mr. Najera, who sustained injuries to his teeth and shoulder, filed suit against Recana and American Rice. He alleged negligence, gross negligence and respondeat superior, which states that an employer is responsible for its employees’ actions in the course of employment.

He and American Rice settled, filing an agreed motion to dismiss American Rice with prejudice, records show.

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Workplace Relationships

NY Times article “Friends at Work? Not So Much”

Today’s post comes from guest author Hayes Jernigan, from The Jernigan Law Firm.

The New York Times recently published an op-ed claiming that the amount of people who seek or maintain friendships in the workplace has dropped in recent decades. Where people once looked to the workplace as a main source of long-term friendships, by 2004 only 30% of Americans said they had a close friend at work. The article cites several studies that show we communicate better and are more productive when we work with friends.

 

In workers’ compensation, we represent employees who have been injured on the job. More often than not when an injured worker calls our office they are upset by how they have been treated by their employer once they were injured, especially if they have worked there for a long time. If an employee develops a close relationship with their coworkers and their boss, when they get hurt on the job, they suddenly feel like those relationships were one-sided because they feel they are tossed aside as soon as they get hurt (oftentimes for no fault of their own).

 

Injuries at work can change workplace relationships. The employer often must hire a replacement, which requires additional expenses, and co-workers might feel they are caught in the middle. We often ask workers who call our office whether they are on good terms with their employer because when they are, things tend to go a lot easier. If you have friends at work and get injured, will that make the process better or worse? Would you feel that your employer and co-workers will go to bat for you or will you feel more hurt because people might distance themselves from you? I like to think the former. Either way it’s a safe bet for all parties to be open and honest with each other and most of all, be kind to each other- no one wants to get hurt. 

 

 

3 tips for taking better breaks from work

Today’s post was shared by TreeHugger.com and comes from www.treehugger.com

work break

Research sheds light on how to be effective at taking breaks throughout the work day.

It’s a good habit to take breaks from work, especially if our jobs involve sitting at a desk or staring at a screen. Past research has shown that mental down time is actually essential for a number of important cognitive processes.

But what is the best way to take that break? Researchers Emily Hunter and Cindy Wu at Baylor University surveyed 95 employees over a five day workweek. They collected data from over 900 breaks—including coffee breaks, lunch breaks, shorter breaks to socialize or take care of a non-work related task. The following suggestions come from their findings, which were published in the Journal of Applied Psychology last month. These better break techniques are associated with higher job satisfaction and better health.

1. Do something you like

The researchers found that taking a break to do an activity that workers enjoy is more beneficial. Your break doesn’t necessarily have to be entirely non-work related, but it should be an activity that you prefer. So, taking a break to run a personal errand that you don’t enjoy might not make for an effective break.

If you happen to work near a park or another green space and like nature (you’re reading TreeHugger, so I think it’s a good bet that you do), consider going for a short stroll. A 2013 study found that a nature walk can help clear a fuzzy brain.

2. Take shorter, more frequent breaks

Long…

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