Annette Cary of the Tri-City Herald reported on a change in the way that some claims will be handled for exposures at the Hanford Nuclear Site, including a review of more than 800 previously denied or pending claims for ill Hanford workers that are being reconsidered or put on a fast track for a decision after federal compensation rules were recently eased.
All those claims are for cancers covered by a newly designated special exposure cohort for workers at Hanford from July 1972 through 1983. Workers received that designation if inadequate information existed to estimate their radiation exposure.
The classification allows workers or their survivors to claim $150,000 in compensation plus medical coverage without an estimate showing they received enough radiation to likely cause the cancer. They also may be eligible for up to an additional $250,000 for impairment and wage loss.
If you are given a severance agreement, consult with an attorney
Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.
Federal law requires that many employees who are offered severance agreements be advised by their employers to consult with an attorney before signing a severance agreement. If you have a severance agreement, you should consult with a knowledgeable employment-law attorney as soon as possible. Almost all severance agreements have a short time period, usually no more than 21 days, for the employee to accept the agreement. Here are some of the factors to consider in whether to accept a severance agreement.
If you have a severance agreement, you should consult with a knowledgeable employment-law attorney as soon as possible.
A. The value of the certainty of a severance agreement versus the uncertainty of a wrongful-termination suit. This requires an attorney to evaluate the strength of any possible employment-law claims you might have against your former employer. In many cases, the value of a certain amount of guaranteed severance pay is worth more than the uncertain outcome of a wrongful-termination claim that might not resolve for at least a year. Certain types of unfair-employment practices create more fear of litigation for employers than others. Employers are often willing to pay severance in order to avoid the expense and uncertainty of litigation. This fear can give employees some leverage in negotiations, which could lead to an increase in severance pay. However, every situation is different.
If an employee decides to reject severance and pursue a wrongful-discharge claim, a knowledgeable employment-law attorney can advise you on your chances of receiving unemployment benefits. Employers, especially smaller ones, will often fight unemployment claims if there are bad feelings surrounding a termination. If an employee is found to have been fired for misconduct, they are potentially losing many thousands of dollars in unemployment benefits. Before you reject severance, you should know your chances for receiving unemployment benefits.
B. A knowledgeable employment attorney may be able to review the severance agreement and find contract provisions to offer the employer in order to increase the severance pay. The fear of litigation is a stick, but sometimes employees can offer carrots in the form of favorable contract language to increase severance benefits.
C. Severance pay is not the only consideration in a severance agreement. A standard severance agreement often includes a provision that the employee is eligible for COBRA. COBRA requires that the employee pay the entire premium for health insurance. Sometimes employers are willing to pay that COBRA premium for a period of time.
Another possible severance benefit is the guarantee of a positive reference. A severance agreement is a contract releasing any claims – usually with the exception of workers’ compensation (see below) – by the employee against the employer. However, if the employer breaches the contract in regards to a positive reference, that can give the employee a breach-of-contract claim if the severance agreement is drafted properly. Many companies are willing to check out what employers are saying about former employees for a reasonable fee, so employees can enforce contract provisions regarding positive references
D. Workers’ Compensation. The laws regarding settling a workers’ compensation claim are very precise. I have never seen a severance agreement that creates an enforceable release of a workers’ compensation claim. However a savvy employer may be able to release your workers’ compensation claim through a severance agreement under recent changes in Nebraska’s workers’ compensation law. This is why you should consult with a lawyer who is familiar with fair employment and workers’ compensation law. This is especially true if you have an ongoing workers’ compensation claim against your employer.
E. You still might be able to bring a wrongful termination suit even if you signed a severance agreement. The Equal Employment Opportunity Commission has provided guidelines about when a severance agreement is not binding on the employee. If you feel you were railroaded into signing a severance agreement, it still might be worth your time to consult with a knowledgeable employment attorney.
Confirmed Cases of Infection – click for large map
The Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) are coordinating a multi-state investigation of fungal meningitis among patients who received an epidural steroid injection. Several of these patients also suffered strokes that are believed to have resulted from their infection. Fungal meningitis is not transmitted from person to person. These cases are associated with a potentially contaminated medication. Investigation into the exact source is ongoing; however, interim data show that all infected patients received injection with preservative-free methylprednisolone acetate (80mg/ml) prepared by New England Compounding Center, located in Framingham, MA.
As of October 23, 2012 the CDC reports 308 cases of fungal meningitis, stroke due to presumed fungal meningitis, or other central nervous system-related infections. Death has occurred in 23 of these cases.
None of the reported fungal infection cases have occurred in Washington State. This may become an issue within Washington’s workers’ compensation system, though, if any cases of infection arise from Washington clinics or if claimants that live out-of-state received an injection of the tainted product in other states. Under Washington law, a workers’ compensation claim must cover any condition that arises from treatment provided for an industrial injury under an open workers’ compensation claim. Similarly, if a claim has been closed but such an infection occurs in the course of treating an accepted condition, an application to reopen the claim based on a worsening could, in theory, be filed.
Patients who have had an epidural steroid injection since July 2012, and have any of the following symptoms, should talk to their doctor as soon as possible:
Worsening headache
Fever
Sensitivity to light
Stiff neck
New weakness or numbness in any part of your body
Slurred speech
Patients need to remain vigilant for onset of symptoms because fungal infections can be slow to develop.
Typically in this outbreak, symptoms have appeared 1 to 4 weeks following injection, but it’s important to know that longer and shorter periods of time between injection and onset ofsymptoms have been reported. Therefore, patients and physicians need to closely watch for symptoms for at least several months following the injection.
As of October 23, 2012 the CDC reports 308 cases of fungal meningitis, stroke due to presumed fungal meningitis, or other central nervous system-related infection meeting the outbreak case definition, plus 3 peripheral joint infections (e.g., knee, hip, shoulder, elbow). No deaths have been associated with peripheral joint infections.
The CDC’s guidance to patients has not changed as a result of the expanded voluntary recall of all NECC products, announced October 6. Patients who feel ill and are concerned about whether they received a medication from one of the NECC products recalled on September 26 should contact their physician.
Women making airplane wings, circa 1920. Seattle Municipal Archives
The Department of Labor and Industries encourages employers to offer light-duty positions to their injured workers – – the suggestion is written across the top of every time loss compensation order – – as early after an injury occurs as possible. The employer of an injured worker can offer shorter hours, a transitional job/job modifications or a new position entirely. The pay scale can be at any rate at or above minimum wage. In order to qualify as a valid job offer, a description of the position must be approved by a physician. Once approved, the job must be offered, in writing, to the injured worker with specific details including the work schedule, rate of pay and person supervising the work.
If an injured worker declines a valid job offer, time loss compensation will end.
If an injured worker declines a valid job offer, time loss compensation will end. If the employer offers a return-to-work position that pays less than the workers’ time loss compensation rate, the worker will likely be eligible for partial compensation to make up the difference. This benefit, called Loss of Earning Power (LEP) compensation, is based on a comparison of the pre-injury wage less the actual wages earned through return to work and pays 80% of the difference, up to a state-wide cap on compensation or the time loss compensation rate, whichever is less.
The claim can remain open for medical treatment if the injured worker declines a valid job offer, but no further vocational assistance will be provided. However, if the injured worker is unable to return to work and vocational retraining has been approved, the employer has a brief window of only 15 days within which to offer the injured worker a valid, full-time job or the plan will commence. Once retraining has commenced, a job offer cannot be used to derail the retraining plan.
More and more employers are watching their claim costs closely; particularly those participating in the Retrospective Rating program (see earlier post about Retro Groups for more details). Early return to work saves the employer and the Department a significant portion of the cost of an injury claim and, in some cases, allows the injured worker to maintain their wage and benefits during their recovery.
You’ve Received a Job Offer – Now What?
You should receive a copy of the job description that has been approved by your physician along with the letter offering you a job. Review and keep this job description with you as you return to work, as well as any written physical restrictions from your doctor. While at work, make sure that you are only performing duties within your restrictions to avoid additional injury.
Stay in contact with your physician and notify them of any change in your symptoms right away. If you have an increase or change in symptoms but do not feel that you require medical attention, phone your doctor’s office and leave a message to advise of the activity that brought on the increase and the type of symptoms you are noticing. This will make its way into your chart and can be reviewed by your doctor to see a progression of symptoms if one should occur after you return to work, providing a basis for further restrictions on activity or job modifications.
Keep track of your pay stubs. If you are earning less in the transitional job, file an Application for LEP Compensation (link) and attach the pay stubs to document your earnings. The LEP application forms are usually filed once or twice per month and require your employer and physician to provide information, as well. Compensation is issued upon receipt of the application form so, unlike time loss compensation, you will not receive regularly-scheduled payments of LEP compensation.
DLI’s Stay-At-Work Program
The Department of Labor and Industries’ new Stay-At-Work program is a financial incentive that encourages employers to bring their injured workers quickly and safely back to light-duty or transitional work by reimbursing them for a portion of their costs. DLI will provide an employer of an injured worker reimbursement of 50% of the base wages paid to the injured worker for up to 66 weeks, up to $10,000.00 per claim. The Department will also pay for some of the cost of training, tools or clothing the worker will need to do the light-duty or transitional work.
In a recent update, the Department released figures showing that it has paid reimbursements to over 1,200 employers in Washington State in the amount of $1.6 million
The purpose of the new incentive is to encourage more employers to return their injured workers to light-duty or transitional jobs with the doctor’s approval. This medical best practice can help the worker recover, and it also can reduce costs for the employer. The Department’s goal is to bring down costs and shorten the length of injury claims overall.
The Department provides the following video – one of three available – to outline this program:
In a recent update, the Department released figures showing that it has paid reimbursements to over 1,200 employers in Washington State in the amount of $1.6 million. The Department release fuels the concept that the program is working and that the goal of lowing workers’ compensation claim costs will be achieved but the release does not provide any data to track the results at this time.
Washington workers, employers and other groups can participate in the SHIP Grant Program to improve workplace safety, with grants of up to $150,000. I have spoken with many people over the years with tales of scary workplaces or, in many instances, workplaces that are only slightly unsafe – these are just as likely, if not more likely, to result in an injury than one where obvious mistakes are being made. The news release from the Department of Labor and Industries at the end of this post sets out the workshop schedule for learning more about it’s program for preventing injuries. Follow the link, below, for full details about this program and the assistance available to grant seekers of many stripes working towards a common goal.
The 2011 Legislature gave statutory authority to place the SHIP grant program as a permanent program within the Division of Occupational Safety and Health at the Department of Labor and Industries. Previously, the SHIP grant program had operated with budget provisos from 2007 – 2011. To date the program has funded 41 safety and health grant projects. The materials and products developed through completed grant projects are available through the SHIP Program and on the L&I/DOSH website.
All proposals should be designed to develop and implement innovative and effective return-to-work programs for injured workers.
Grant limits and other criteria — the following criteria will apply to all SHIP grant applications:
Eligibility requirements for SHIP grants are listed on the application form and in WAC 296-900-175.
Grant requests for this round will not exceed $150,000.
Funding for grants approved during this cycle may occur beginning late fall 2012.
Successful applicants will be required to attend a grantee orientation to receive specific guidance and information about managing their SHIP grant experience.
Project duration for projects approved for this cycle should not exceed 12 months.
Products and materials developed or created through a SHIP grant must be available for distribution by SHIP to others who can benefit from them.
Learn how to apply for grant money from L&I at free workshop
Do you have an innovative idea for improving workplace safety and health or helping injured workers get back on the job? If so, the Department of Labor and Industries (L&I) would like to hear from you and may help fund your project.
In other words, L&I will give you money for your great idea!
Washington’s minimum wage applies to workers in both agricultural and non-agricultural jobs,
Washington’s minimum wage will increase to $9.19 per hour beginning Jan. 1, 2013, the Department of Labor & Industries (L&I) announced today.
L&I calculates the state’s minimum wage each year as required by Initiative 688, approved by Washington voters in 1998. The 15-cent-per-hour increase, from $9.04 to $9.19 an hour, reflects a 1.67 percent increase in the Consumer Price Index (for Urban Wage Earners and Clerical Workers, CPI‑W) announced earlier this month by the federal Bureau of Labor Statistics (BLS).
The CPI-W measures average price changes for goods and services purchased by urban wage earners and clerical workers. The goods and services it monitors include basic living costs such food, clothing, shelter, fuels, and services such as doctor visits.
The 15-cent-per-hour increase, from $9.04 to $9.19 an hour, reflects a 1.67 percent increase in the Consumer Price Index (for Urban Wage Earners and Clerical Workers, CPI‑W) announced earlier this month by the federal Bureau of Labor Statistics (BLS).
According to the BLS’ Sept. 14 announcement, about 80 percent of the increase was due to a jump in gasoline prices, which rose an average of nine percent over the past 12 months.
Washington is one of 10 states that adjust the minimum wage based on inflation and the CPI. The others are Arizona, Colorado, Florida, Missouri, Montana, Nevada, Ohio, Oregon, and Vermont.
Washington has the highest minimum wage, followed by Oregon, which recently announced its 2013 minimum wage will rise 1.7 percent, or by 15 cents, to $8.95 per hour.
Washington’s minimum wage applies to workers in both agricultural and non-agricultural jobs, although 14‑ and 15-year-olds may be paid 85 percent of the adult minimum wage, or $7.68 in 2012.
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.
Today’s post comes from guest author Todd Bennett from Rehm, Bennett & Moore.
CRPS cases can be just as complex and complicated as the condition itself. Contact Causey Law Firm for assistance if you, or someone you know, has CRPS and is dealing with an injury or disability claim with the Department of Labor and Industries and/or the Social Security Administration.
Today’s post is continued from last week, when we discussed the symptoms of Complex Regional Pain Syndrome (CRPS). Today we will discuss treatment options.
The job of your doctor is to identify and treat your symptoms before they become incurable. Common forms of treatment for CRPS are
L&I’s contractor compliance program has 21 inspectors around the state.
A news release issued today, below, reports that the Washington Department of Labor and Industries has performed two “sweeps” through commercial and residential construction projects – one weekend in Tacoma and another in Spokane – to determine if the contractors performing work are registered with the State. Contractors that are not registered do not pay into the workers’ compensation system, but they also often pay workers under the table.
When an injury occurs, even if the worker is successful in obtaining coverage under a workers’ compensation claim, they may still have difficulties proving the days and hours worked and the wages paid for that work, leading to other issues in the claim including reduced compensation rates. Our firm has successfully represented people who were working for an unregistered contractor with issues such as proving the injury occurred during covered employment activities to gain allowance of the claim and correctly setting the wage rates once the claim is allowed.
Unregistered contractors or those who don’t pay workers’ compensation premiums for their employees can underbid their competition and gain an unfair advantage. They also place consumers who hire them at risk. In Washington, all contractors must be registered with L&I, carry a bond and insurance.
TUMWATER – Construction compliance inspectors with the Department of Labor & Industries (L&I) swept through Pierce County this past weekend, citing more than a dozen contractors for working without being registered, an infraction which carries a $1,000 fine for a first-time offense.
“We want to show people we’re out there, even on the weekends, and that we take the underground economy seriously,” said Dean Simpson, manager of L&I’s construction compliance program. “We want unregistered contractors to know we will find them, and for honest contractors and consumers to know we’re not ignoring this problem.”
In all, the inspectors visited 77 work sites and cited 15 contractors for being unregistered, making note of another four whose status will need more work to determine if they are properly registered. In addition, several contractors were referred to other programs within L&I for possible audits or collections of unpaid premiums.
It is the latest such sweep to target the underground economy. A similar effort was held by inspectors in Spokane on Aug. 24 and 25. That team visited 68 work sites and cited 13 contractors for being unregistered, with five whose status was undetermined.
Unregistered contractors or those who don’t pay workers’ compensation premiums for their employees can underbid their competition and gain an unfair advantage. They also place consumers who hire them at risk. In Washington, all contractors must be registered with L&I, carry a bond and insurance.
For the Tacoma area sweep, the eight inspectors worked in pairs and focused on sites where tips suggested unregistered contractors were working. The teams focused on commercial construction sites on Friday, then hit residential worksites on Saturday.
“For some, it was a real surprise to see us, especially on Saturday,”
“For some, it was a real surprise to see us, especially on Saturday,” said Reed Despain, supervisor for the team. “We stopped a few registered contractors, but just explained we were out there to level the playing field.”
Working as a contractor without registration, even advertising to do so, can result in a minimum $1,000 penalty for a first offense. Penalties climb with each resulting citation. Inspectors typically issue seven such infractions in an average month.
L&I’s contractor compliance program has 21 inspectors around the state. Working both from tips and random site visits, the inspectors make sure contractors are properly registered, whether the person is a painter, tree trimmer, carpenter, concrete worker, fence installer or a handyman.
Contractors whose registration has expired or who need to register for the first time can visit www.ContractorRenew.Lni.wa.gov and get straight with the law.
Knee implants you thought would last decades may only last 3 years.
Today’s post comes from guest author Brenda Fulmer from Pasternack Tilker Ziegler Walsh Stanton & Romano.
Although we have noticed an increase in the number of joint replacement procedures undergone by our clients over the past several years, very few have ended with a bad result.
If you feel that you or someone you know may have a defective knee implant, contact our office to discuss your case and receive a referral to an attorney that handles this type of claim.
Zimmer is an international medical device manufacturer based in northern Indiana. It was founded in 1927, and focuses on the manufacture of products for orthopaedic surgeries. Zimmer’s sales in 2009 were $1.76 billion, and it is estimated that the NexGen family of knee implants make up about 2% of the overall sales of Zimmer.
Flex implants are not lasting nearly as long as intended.
The Zimmer NexGen Knee Implant is not a specific device, but rather a family of devices. Within this NexGen device family, there are different models of implants: NexGen CR-Flex, NexGen LPS-Flex, NexGen High Flex, NexGen LPS, NexGen MIS.
Unlike most knee implants, the Zimmer NexGen CR-Flex is attached without the use of cement, which may cause the system to loosen or detach completely.
The Zimmer NexGen CR-Flex implant was designed to give patients better range of motion than the customary NexGen device. Scientific studies have been accumulating for years with regard to concerns over the safety of the NexGen CR-Flex. Interestingly, the U.S. Continue reading Drug Watch: Zimmer Knee Implants Plagued With Failure→
How Much of the Savings Came Out of the Pockets of Workers?
September 17, 2012: The Washington State Department of Labor & Industries (L&I) today announced it is proposing no increase in the average rate for workers’ compensation insurance. If adopted, this would be the second straight year with no increase in workers’ comp rates.
“Had the Governor and the Legislature not adopted the 2011 reforms, I wouldn’t be making this proposal today,” said L&I Director Judy Schurke. “In fact, without those reforms, we would be facing a rate increase. Instead, we’re able to keep rates down for Washington’s businesses and workers.” Savings due to reforms are beating expectations. L&I is now projecting the reforms passed in 2011 will save $1.5 billion over four years, $300 million higher than originally estimated.
While the reforms play an important part in lowering costs, Schurke pointed to additional factors responsible for lower costs in 2013, including:
Fewer claims in high hazard industries like construction are resulting in fewer long-term disabilities;
Overall claim frequency, or the number of claims per 100 workers, has gone down by 6.2 percent;
L&I has held medical cost growth below 4 percent over the past five quarters and expects continuing to do so in 2013 with the new provider network and health technology assessments;
L&I is resolving claims more quickly as a result of Lean and other improvements.
Today’s proposal would mean an additional $82 million is placed in the State Fund reserves by the end of 2013. In the past, the State Auditor issued strong warnings about the consequences of maintaining inadequate reserves. Schurke also acknowledged the reserves are critically low by industry standards due to increased liabilities, investment losses and drawing down the reserves to hold down rates during the recession.
The Workers Compensation Advisory Committee (WCAC), which has been working with L&I on a plan to rebuild the reserves, endorsed L&I’s proposal to hold rates steady in 2013 and begin rebuilding the reserves. Washington is the only state where workers pay a substantial portion of premiums. Workers will pay about 24 percent of the premiums in 2013. The proposal to keep rates flat in 2013 is an average for all Washington employers. Individual employers may see their rates go up or down, depending on their recent claims history and changes in the frequency and cost of claims in their industry.
Every year in Washington, about 100,000 claims are filed for medical costs and lost wages due to work-related injuries, illnesses and deaths. Each year, L&I must review premium rates and make adjustments to cover the anticipated costs of claims that occur in the next year.
Public hearings on the proposed rates will be held in:
Tukwila, Oct. 23, 10 a.m., L&I office.
Bellingham, Oct. 23, 1 p.m., Public Library Lecture Room.
Richland, Oct. 25, 10 a.m., Community Center Activity Room.
Tumwater, Oct. 26, 10 a.m., L&I Auditorium.
Vancouver, Oct. 29, 10 a.m., Red Lion at the Quay, Quayside Portside Room.
More information regarding the rate proposal is available at www.Rates.Lni.wa.gov. The final rates will be adopted in early December and go into effect Jan. 1, 2013.
“Evidence-based coverage decisions have reduced unnecessary care and avoided $27 million in annual costs.”(Emphasis added.)
Translation: Denying requested treatment costs the State less than authorizing it. – Ed.
Background Information:
On average, workers’ comp rates have increased less than 3 percent per year since 2006. This is lower than L&I’s anticipated rate of medical and wage inflation.
When calculated as a percentage of payroll, which is how rates are calculated in other states, the proposed 2013 overall rates would be equal to a 2.2 percent reduction.
Without savings from the reforms, the 2013 break-even rate would have been about 4 percent instead of minus 4.2 percent. The break-even rate is the amount needed to cover projected costs for the next year. L&I will use the difference between the break-even rate and zero – $82 million – to begin restoring the workers’ comp reserves.
The elements of the 2011 workers’ compensation reforms have various effective dates, beginning in 2011 and continuing through 2013. Savings estimates are now at $1.5 billion over four years, with continued savings in future years.
As a result of Lean and other initiatives, we are seeing a downward trend in the duration of younger claims.
L&I has held medical cost growth below 4 percent over the past five quarters and estimates doing so in 2013 with the new provider network and health technology assessments. Our medical costs are 26 percent less than the average workers’ comp program in the U.S.
Evidence-based coverage decisions have reduced unnecessary care and avoided $27 million in annual costs.
In 2011, the number of long-term disability claims per 100 workers fell by 6.2 percent, the largest decline since 1995. Long-term disabilities account for 85 percent of workers’ comp claim costs.
When hiring picks up in construction and other high-risk industries, we can expect an increase in long-term disability injuries. That’s why it’s important to examine safety practices now and be ready to bring more people back to work safely.
Workers’ comp insurance rates are based on the likelihood of an injury. Rates for almost half of the job classifications will change 1 percent or less next year.
