All posts by Kit Case

Worker Privacy Concerns : Employers’ Access to Employees’ Prior Worker’s Compensation Claims

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

Washington similarly allows employers to access all prior claim records, even from other employers, when one of their employees files an injury claim. Workers’ compensation claims already had a lower privacy standard than other types of records – workers’ compensation is excluded from HIPPA protections – but this now allows easy access to all records, relevant or not, once a worker files an injury claim.

Republican legislators are feeling their oats these days. Throughout the Midwest, legislators are depriving workers of collective bargaining rights and trying to restrict workers’ rights in workers’ compensation claims.

In Missouri, workers’ compensation legislation was recently proposed that would have permitted an employer to provide a potential hire’s name and Social Security number so an employer could identify the potential employee’s prior workers’ compensation claims and the status of those claims. The Missouri Division of Workers’ Compensation estimated an online data base that would include over a half million claim records with over 10,000 records added each year.

To his credit, Democratic governor Jay Nixon vetoed this proposed online data base which would allow businesses to check a prospective employee’s workers’ compensation claims. He said it was “an affront to the privacy of our citizens and does not receive my approval.” As expected, supporters of the workers’ compensation data base (employers primarily) said the legislation would speed the hiring process and help bosses and workers. Regularly, information about workers’ compensation claims is available by written request and takes about two weeks to arrive.  Supporters of the legislation indicated the law was “preventing workers’ compensation abuses.”

Wisconsin’s workers’ compensation records are subject to Wisconsin public records law, except for records identifying an employee’s name, injury, medical condition, disability, or benefits – which are confidential.  Authorized requestors are limited to parties of the claim (the employee, the employer, and the insurance carrier), an authorized attorney or agent, a spouse or adult child of a deceased employee. Workers’ Compensation Division staff may provide limited confidential information regarding the status of claims to a legislator or government official on behalf of a party. In addition, workers’ compensation staff are not permitted by law to conduct a random search to determine if other injuries have been reported.

If the requestor is the same employer or insurance carrier involved in a prior injury, then access will be allowed. If the requestor is a different employer or insurance carrier but they make a reasonable argument that the prior injury and the current injury are related, access may be allowed. For example, the Department considers injuries “reasonably related” if the two injuries involve the same body areas.

Simply put, in Wisconsin, at least for the present, claimant information is confidential and not open to the public, other than to the parties to a current claim.

Making A Difference In Washington – The Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

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

In addition to helping our clients receive the benefits they are entitled to through the courts and other adversarial means, we are prooud to work with our elected officials to produce legislation that will benefit working people. A few days ago, a bill we support, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, was formally proposed. We encourage you to call and email your representatives and let them know that you support this law.

The press release with additional background follows:

 

Reps. Reichert and Thompson Introduce Bipartisan Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Washington, D.C. – Today, U.S. Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, H.R. 1982 into the House of Representatives.

The legislation aims to protect injured workers whose workers’ compensation claims overlap with Medicare coverage. Far too often, these claims are subjected to lengthy and cumbersome reviews by the Centers for Medicare and Medicaid Services (CMS) to determine appropriate set-aside amounts to pay for future medical costs in which Medicare may have an interest. The delays associated with this review place unfair burdens upon the injured party.

“This is a common-sense measure to ensure that hard-working Americans are not left in limbo because of inefficient bureaucratic procedures,” said Rep. Reichert. “Injured workers must have the confidence that their heath care claims will be processed in a fair and timely manner. By introducing this bill, Rep. Thompson and I aim to do just that: protect our hard-working citizens by making sure our systems serve them and their families.”

“The last thing injured workers should have to worry about is if needless bureaucracy is going to prevent their medical bills from being paid,” said Thompson. “This bill will make sure hard working families’ medical claims are processed efficiently and quickly, it will reduce bureaucratic headaches for businesses, and it will save taxpayers money. I will continue working with Congressman Reichert to get this bipartisan bill signed into law.”

Background

The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act establishes clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare. It would benefit injured workers, employers and insurers by creating a system of certainty, and allows the settlement process to move forward while eliminating millions of dollars in administrative costs that harm workers, employers and insurers.

The legislation has widespread support from groups such as the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC-Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

Shortcuts at the Social Security Administration Mean Mistakes

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

Recently, the Wall Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims. In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases. Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.

In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.

Also, doctors were assigned to evaluate conditions that were not in their areas of expertise. One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore’s Harbor Hospital, who worked for Social Security part time for about 10 years. He said “People who shouldn’t be getting [disability] are getting it, and people who should be getting it aren’t getting it”. In my experience Continue reading Shortcuts at the Social Security Administration Mean Mistakes

Employee Rights Hurt by Supreme Court Decisions

United States Supreme Court

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

Employee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws.  State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded.

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.

What Does The Supreme Court’s Striking Down Of The Defense Of Marriage Act Mean For Your Social Security Disability Benefits?

The United States Supreme Court struck down the Defense of Marriage Act

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

On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Fifth Amendment and is therefore unconstitutional. While DOMA was in effect, the federal government did not recognize same-sex marriages that were performed in states where they are legal, such as New York.  This meant that the Social Security Administration was unable to pay certain benefits to individuals who would have otherwise been entitled to them if they were married to someone of the opposite sex. As this part of the law has been struck down, validly married same-sex couples should be treated identically to opposite-sex couples by the Social Security Administration.

There are several Social Security benefits that married individuals are entitled to that unmarried individuals are not.  The two largest programs are survivor benefits and disabled widow(er)s benefits. A surviving spouse can now be entitled to benefits on a deceased spouse’s earnings record once they attain age 60 or are disabled and age 50. These benefits, once only available to opposite-sex couples, should now be extended to same-sex couples as well. Stepchildren may now also be entitled to benefits on a worker’s earnings record, if the worker is either deceased or receiving Social Security retirement or disability benefits.

The Social Security Administration relies on state law to determine if a person was legally married. Social Security looks at the law of the state where a person was living at the time of their death to determine if their marriage was valid. It’s possible that a same-sex couple could be married in New York (or another state where same-sex marriage is legal) and then move to a state that does not recognize same-sex marriage.  According to Social Security’s current rules, the Administration would look to the rules of the state where the person lived at the time of their death to determine if the marriage was valid.

At first glance, this seems to mean that validly married same-sex couples could be denied benefits they would have been entitled to if they didn’t move. However, Social Security also recognizes a “deemed marriage” provision. In simple terms, if both partners believed themselves to be married, and acted like a married couple, and the only reason they are not validly married is “a legal impediment not known to the applicant” at the time of the marriage ceremony, Social Security will consider the marriage to be valid for benefit purposes.

We don’t know yet how Social Security will enact these provisions or what the end result will be. However, it appears clear to us that many people who were being denied benefits because of who they love will now be entitled to them.

Opioid Use in Worker’s Compensation

click on the map for a larger version

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

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

New Rules Reduce Prescription of Narcotics to Injured Workers

…measuring physical function and screening for risk may be new …

The Department of Labor & Industries has reduced the amount of time doctors can prescribe narcotics (opioids) for injured workers without agency authorization from 12 to 6 weeks.  This change takes effect as of July 1, 2013. After six weeks, L&I insurance coverage for opioids will depend on doctors’ use of best practices. The required best practices include monitoring whether workers are recovering their ability to perform normal activities and screening them for risks of side-effects or addiction. 

…best practices include monitoring whether workers are recovering their ability to perform normal activities…

“These changes will improve pain treatment for injured workers as well as their safety during recovery,” commented Jaymie Mai, L&I Pharmacy Director. “For some doctors, measuring physical function and screening for risk may be new practices,” said Mai. 

Practicing physicians who specialize in treating injured workers and in pain management worked with L&I to develop the new L&I opioid treatment guideline. The changes are consistent with the Department of Health’s pain management rules and are part of L&I’s ongoing efforts to improve pain treatment for injured workers. Doctors can find everything they need to implement the new treatment guideline, including authorization forms and helpful tools, at Opioids.Lni.wa.gov.

According to Mai, “We are pleased that high dosage levels have been coming down and we are seeing fewer deaths among injured workers due to pain medication.” Nationwide, since 2007 opioid-related deaths have exceeded accidental deaths due to motor-vehicles and firearms. Washington has been among the states with the highest rate of prescription opioid-related deaths.

Photo credit: Life Mental Health / Foter.com / CC BY

WA State Budget Passed and Signed

No Transit Funding = Unhappy Riders

Governor Inslee issued a letter noting that he had signed the budget into law, averting the shut-down of government offices and services that had been slated to occur as of July 1.  Although we are quite pleased that the shut-down was averted, just the threat of a shut-down caused a ridiculous number of man-hours to be spent preparing for the worst with ripple effects across our cases.  Frankly, some of those ripples were positive as the Claims Managers at the Department of Labor and Industries focused their attention on getting time loss compensation set up for claimants that were not already in the system to receive automatic payments.  We greatly appreciate the efforts put forth by many of the Claims Managers to address our requests for benefits before the deadline.  However, we did have negative impacts, as well, with cases in ligitation where depositions were rescheduled or notification received that, if there were a shut-down, no attorney from the Office of the Attorney General would appear on behalf of the Department.

Unfortunately, one issue that is of great importance to our clientele – transportation funding – did not get the attention it needed during the special legislative session.

Unfortunately, one issue that is of great importance to our clientele – transportation funding – did not get the attention it needed during the special legislative session.  Without a funding plan, King County’s METRO Transit will now be implementing plans for a 17% reduction in service.  This is at a time when ridership is at a peak, returning to levels not seen since the start of the recent recession, and when the need for inexpensive and effective transportation by unemployed, undereployed and disabled people is great.  It has been rumored that another special session may be called by Governor Inslee to address transportation funding.

Photo credit: TheeErin / Foter.com / CC BY-ND

Unemployment Law Project’s June Fundraiser

Pink Slips – a Universal Message

The Unemployment Law Project provides legal assistance and information to people in Washington State who have been denied unemployment benefits or whose award of benefits is challenged. ULP’s annual summer fundraising event – “Pink Slip Protest” – was held on June 18th at Fare Start in Seattle. A pink slip refers to the practice of including a pink discharge notice in an employee’s pay envelope to notify the worker of his or her termination or layoff. Receiving a pink slip has become a metaphor for the termination of employment.

The evening started with the featured entertainment by a three person Mariachi band! We then heard “reports from the streets” from the Cherry Street Food Bank, the Transit Riders Union, YouthCare, and other organizations, who shared how they are supporting people who have fallen on hard times due to the economic downturn. The keynote address was given by Jeff Johnson, President of the Washington State Labor Council. Mr. Johnson’s speech caused the room to fill with applause in response to his calls to join together in the effort to improve the lives of everyone through establishment of a living-wage standard, among other things.

ULP has been a great resource for us and our clients who encounter difficulty obtaining unemployment compensation benefits.  It was great to see an outpouring of support for the services they provide, free- or low-cost to claimants.

 

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

State Agencies to Close if No Budget Passes – DLI & Board of Industrial Insurance Appeals On the List

The Washington State Capital

Although Governor Inslee has indicated that it is not likely that the State will be left without a budget when the June 30th deadline arrives, preparations have been made, just in case.  The Office of Financial Management has outlined 34 agencies that would close, in whole or in part, if a budget is not passed.  The OFM summary of agency impacts outlines the contingency planning for state agency operations.

Contact your legislators and let them know how this budget fight impacts you and your families. 

On the list are the Department of Labor and Industries and the Board of Industrial Insurance Appeals, both of which handle claims and cases pertaining to injured or disabled workers.  The Department would be reduced to two full-time employees assigned to respond to emergencies across the state and to administer benefits to crime victim claimants.  Those injured workers that are set up to receive automatic payments will continue to receive their compensation but no pending applications for benefits will be processed. A significant number of our clients are waiting for decisions from their Claims Managers to establish their entitlement to time loss compensation, whether back-pay or current/ongoing payments or both.  These cases would be put on hold until a budget is passed and the staff return to their desks.  The Board of Industrial Insurance Appeals will be completely shut down.  All scheduled hearings, conferences and other proceedings will simply be cancelled until the judges and staff return to work.

Pink slips will be sent to all State employees to be laid off during any potential shutdown of State government offices.  Due to notice requirements, the notices will go out Monday, June 24th.  I encourage you to contact your legislators and let them know how this budget fight impacts you and your families.  You can find the contact information for your legislator at:  http://app.leg.wa.gov/DistrictFinder/.

Photo credit: Bluedisk / Foter.com / CC BY-SA