Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano. Washington State claims can include conditions diagnosed after the initial filing of a claim, as well. Please feel free to contact us to discuss the specifics of your case if you are facing a similar situation.
The Appellate Division Third Department issued a decision (Searchfield v. Lowe’s Home Centers) that is interesting case because it pertains to the establishment of an injury that was originally misdiagnosed.
In October 2005, an employee was injured at work while lifting a hot water heater. As a result of the injury the employee went to the emergency room. He was diagnosed by an emergency room physician with myofascial strain of the legs and hips.
A November 2005 physician’s report diagnosed the claimant with hip/thigh sprain and sciatica. The later medical reports focused on the groin, lower back and leg pain.
In July 2006, a Law Judge established the claim for a work related injury to the claimant’s lower back. However, the employee continued to report worsening symptoms in his hip area.
In 2009, the claimant saw an orthopedic surgeon. The doctor performed a MRI of the right hip. The MRI revealed a right hip labral tear that required surgury. According to the surgeon the claim was originally misdiagnosed and the claimant had, in fact, sustained injuries to his right hip as a result of the October 2005 accident.
The claimant applied for a hearing to amend the claim for the right hip.
The Judge ruled that the right hip claim was time barred (pursuant to Workers’ Compensation Law Section 28). This states that a claim for a causally related condition must be made within two years of the date of accident.
On appeal the Board Panel reversed and the Appellate Division affirmed the Board Panel.
The Appellate Division stated that the early medical reports reflect initial concerns relating to the claimants hips. Also, there was supporting medical evidence that the claimant’s ongoing pain was the result of a labral tear in the right hip, a condition which is often misdiagnosed as a low back injury. The Court went on to add that the claimant could not have filed a claim for a causally related right hip injury at the time of the accident because it was not properly identified and diagnosed.
This case is important as it allowed the amendment of a claim for a serious injury that misdiagnosed early on in the case. You can find the entire court decision here.
DLI Notice of Workshops on the Stay at Work Program
The following was released by DLI as a public notice:
The Department of Labor & Industries (DLI) has reimbursed more than 1,000 employers almost $5.5 million to help retain injured workers in light duty jobs, but many businesses around the state remain uncertain how the program can benefit them. To help, L&I is holding workshops across the state to explain the new Stay at Work program, which provides up to half of a worker’s base wages for up to 66 days or $10,000 per claim if the employer places their injured workers in light-duty or transitional work.
The free, 90-minute workshops provide an overview of the program, explain how to apply for the reimbursements, the requirements, benefits, and how participation can help reduce claim costs for participating businesses. To sign up for a workshop or learn more about the program, visit www.StayatWork.Lni.wa.gov, or call 1-866-406-2482.
The current workshop schedule is:
Yakima – Sept. 11 from 9 -10:30 a.m. and 2 – 3:30 p.m., 15 W. Yakima Ave., Suite 100.
Everett – Sept. 13, from 10 - 11:30 a.m., 729 100th St. SE.
Kelso – Oct. 8, from 9 – 10:30 a.m. and 2 – 3:30 p.m., 711 Vine St.
Everett – Nov. 8, from 10 – 11:30 a.m., 729 100th St. SE.
Spokane – Dec. 11, 9 – 10:30 a.m. and 2 – 3:30 p.m., 901 N. Monroe St., Suite 100.
Ultimately, Stay at Work is projected to save $32 million annually by keeping workers on the job and reducing the chance of long-term disability. And getting injured workers out of their homes and back in the workplace has additional benefits – studies show that people off work longer than six months have only a 50 percent chance of ever returning to their job, while those who get back to work enjoy faster recovery times and improved lifelong health.
Trust your instincts – if things don’t feel right, they likely are not right. Seek guidance prior to accepting or declining an offer of light-duty employment.
DLI Information for Injured Workers
The following is excerpted from the DLI website section on this topic:
The Department of Labor and Industries will reimburse your employer 50% of your base wages if they are able to find an eligible light-duty job for you. DLI will also cover expenses such as training and tools related to the light-duty job. If your employer offers you a job that your doctor approves and you choose not to accept it, you won’t be eligible to receive time-loss compensation. However, you aren’t required to accept any job that would exceed the restrictions set by your doctor.
DLI offers this cheery video – one of three – on the topic of the Stay at Work Program:
Our Perspective
As the DLI notice, above, indicates, it seems that many employers are not aware of the benefits available to them under this relatively new program, including significant incentives to offer accommodation to injured workers.
We have seen both success stories and nightmares surrounding light-duty job offers from employers. When applied appropriately and administered with a sense of caring, a light-duty job can be beneficial to an injured worker. Returning to work can improve morale, maintain healthcare benefits for the worker and/or their families, and assist with a gradual return to full duties. However, some offers of light-duty work are engineered to drive a worker to quit after accepting the job, which can remove the worker’s eligibility for time loss compensation. Or, in other cases, the job may start out as light duty but the tasks requested may slide back towards regular duty levels, either intentionally or through habit, leading to increased symptoms or new injuries.
Trust your instincts – if things don’t feel right, they likely are not right. Seek guidance prior to accepting or declining an offer of light-duty employment.
The Washington State Department of Labor & Industries (DLI) has cited the BP Cherry Point petroleum refinery in Blaine for six violations, including one “willful violation,” of workplace safety and health rules related to management of pipeline and refinery processes. The proposed penalties total $81,500.
A willful violation is the most significant civil classification that can be issued.
A willful violation is the most significant civil classification that can be issued. It is used when DLI alleges that the violation was committed with intentional disregard or plain indifference or substitution of judgment with respect to worker safety and health regulations.
DLI began the inspection in February after a major fire caused the refinery to shut down for a period of time. One employee was nearby when the fire erupted, but he was able to escape without harm.
The fire occurred when a corroded “deadleg” pipe ruptured. Deadlegs are pipes that aren’t often used but still must be monitored for integrity for when they are needed to carry material used in the refining process.
DLI cited the company for a “willful” violation for not ensuring that inspection and testing procedures for process piping followed recognized and generally accepted good engineering practices for all deadleg piping circuits. The proposed penalty for the willful violation is $65,000.
The five additional violations cited were for failing to comply with Process Safety Management standards, the requirements for managing hazards associated with processes that use highly hazardous chemicals.
The company has until Sept. 13 to appeal the citation. A copy of the citation is available upon request.
For more information about this or other DLI news, click here.
Thomas Holmes and Richard Rahe in 1967, examined the medical records of over 5,000 medical patients as a way to determine whether stressful events might cause illnesses. Patients were asked to tally a list of 43 life events based on a relative score. A positive correlation was found between their life events and their illnesses.
Their results were published as the Social Readjustment Rating Scale (SRRS), known more commonly as the Holmes and Rahe Stress Scale.
To measure stress according to the Holmes and Rahe Stress Scale, the number of “Life Change Units” that apply to events in the past year of an individual’s life are added and the final score will give a rough estimate of how stress affects health.
Note: the table, below, is from the Wikipedia page on this subject. For a fee of $5.00, you can go directly to Dr. Rahe’s website and obtain the full test materials as well as background information and details of this and other products and services available.
To measure stress according to the Holmes and Rahe Stress Scale, the number of “Life Change Units” that apply to events in the past year of an individual’s life are added and the final score will give a rough estimate of how stress affects health.
Life event
Life change units
Death of a spouse
100
Divorce
73
Marital separation
65
Imprisonment
63
Death of a close family member
63
Personal injury or illness
53
Marriage
50
Dismissal from work
47
Marital reconciliation
45
Retirement
45
Change in health of family member
44
Pregnancy
40
Sexual difficulties
39
Gain a new family member
39
Business readjustment
39
Change in financial state
38
Death of a close friend
37
Change to different line of work
36
Change in frequency of arguments
35
Major mortgage
32
Foreclosure of mortgage or loan
30
Change in responsibilities at work
29
Child leaving home
29
Trouble with in-laws
29
Outstanding personal achievement
28
Spouse starts or stops work
26
Begin or end school
26
Change in living conditions
25
Revision of personal habits
24
Trouble with boss
23
Change in working hours or conditions
20
Change in residence
20
Change in schools
20
Change in recreation
19
Change in church activities
19
Change in social activities
18
Minor mortgage or loan
17
Change in sleeping habits
16
Change in number of family reunions
15
Change in eating habits
15
Vacation
13
Christmas
12
Minor violation of law
11
Score of 300+: At risk of illness.
Score of 150-299+: Risk of illness is moderate (reduced by 30% from the above risk).
Score 150-: Only have a slight risk of illness.
Recommended methods for relieving chronic stress include exercise (which can be modified to accommodate physical restrictions after an injury), meditation, music therapy, breathing techniques, and such simple things as companionship – from a pet, friend or family member.
Today’s post comes from guest author Brenda Fulmer from Pasternack Tilker Ziegler Walsh Stanton & Romano.
Post-menopausal women welcomed the class of drugs called “bisphosphonates,” which purportedly increase bone density by slowing the body’s natural turnover of bone cells and were touted as a safe and effective treatment for osteoporosis and osteopenia. Bisphosphonates are also widely used to treat both male and female patients whose cancer has spread to their bones and by patients who have a progressive bone disease called Paget’s disease.
Many patients who are being prescribed “bisphosphonates” for the treatment and prevention of osteoporosis are unaware of any risks associated with the use of such drugs.
Popular bisphosphonate drugs and their manufacturers include:
Fosamax is also available as the generic drug, alendronate. The drugs are available as pills as well as injections, and may be taken daily, several times per week, monthly, or event annually.
Patients who took these popular osteoporosis drugs have suffered severe bone fractures due to a weakening in bone structures caused by the drugs.
In a sad irony, patients who took these popular osteoporosis drugs in hopes of improving their bone health have actually suffered severe bone fractures, such as atypical femur fractures, due to a weakening in bone structures caused by the drugs. In addition, these bisphosphonate drugs have been linked with Continue reading Drug Watch: Osteoporosis Drugs Are Giving Women Severe Complications→
Today’s post comes from guest author Tom Domer from The Domer Law Firm.
Washington State has a similar program for filing claims of discrimination when a worker is punished for reporting unsafe work conditions. Contact one of us to discuss your case if you have suffered such discrimination.
The connection between unsafe workplaces and the increased frequency of work injuries seems like a no brainer. A study released by NCCI Holdings indicated worker’s compensation claims rose by 3% during 2010 (the first rise in frequency in over a dozen years). The study attributed the increased frequency to several factors
Because of these repeat violations,OSHA cited United Contracting and placed the firm on its “Severe Violator Enforcement Program”
including increases in employment since the onset of the recession in 2008, workers possibly being less fearful of losing their jobs for filing claims, and a lack of light duty jobs to which injured workers could return because of the poor economy.
One factor not referenced is the connection between increasingly unsafe work environments and work injuries. Two recent news stories in Wisconsin underscored this connection. OSHA fined a Wisconsin contractor $150,000
for violations while working on two bridges along highways in Wisconsin. The violation is more alarming because the contractors were working under a State contract to repaint the bridges. OSHA charged that the company did not have proper scaffolding at the bridges exposing workers to falls, and in fact one worker was injured in June after falling from a scaffold at one of the bridges. Because of these repeat violations, Continue reading Unsafe Workplaces Equal More Injuries.→
A Press Release by the National Academy of Social Insurance
WASHINGTON, DC – Workers’ compensation benefits declined to $57.5 billion in 2010 according to a report released today by the National Academy of Social Insurance (NASI). The drop in workers’ compensation benefits was largely due to a 2.1 percent drop in medical benefits for injured workers. Employers’ costs for workers’ compensation also fell by 2.7 percent in 2010. As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.
“As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.”
“Employers’ costs as a percent of payroll declined in 43 jurisdictions,” said John F. Burton, Jr., chair of the study panel that oversees the report. “This decline is probably due to the slow pace of the recovery, with many jurisdictions still experiencing relatively high unemployment rates.”
Workers’ Compensation Benefits, Coverage, and Costs, 2010
Total
2010
Change Since 2009 (%)
Covered workers (in thousands)
124,454
-0.3%
Covered wages (in billions)
$5,820
2.6%
Benefits paid (in billions)
$57.5
-0.7%
Medical benefits
$28.1
-2.1%
Cash benefits
$29.5
0.7%
Employer costs (in billions)
$71.3
-2.7%
Per $100 of Covered Wages
2010
Change Since 2009 ($)
Benefits paid
$0.99
-$0.03
Medical benefits
$0.48
-$0.03
Cash benefits
$0.51
-$0.01
Employers’ costs
$1.23
-$0.06
Source: National Academy of Social Insurance, 2012.
The new report, Workers’ Compensation: Benefits, Coverage and Costs, 2010, is the fifteenth in the series that provides the only comprehensive data on workers’ compensation benefits for the nation, the states, the District of Columbia, and federal programs.
“This report represents the first time the Academy has released employers’ costs by state.”
This report represents the first time the Academy has released employers’ costs by state. For a table showing employers’ costs for all fifty states and the District of Columbia, refer to Table 12 (page 34).
Most states reported a decrease in the number of workers covered but an increase in covered wages between 2009 and 2010. During the same period, the total amount of benefits paid to injured workers declined in 26 jurisdictions and increased in 25. As a share of payroll, benefits paid to injured workers fell by three cents to $0.99 per $100 of payroll in the nation.
The share of medical benefits for workers’ compensation has increased substantially over the last 40 years. During the 1970s medical benefits nationally accounted for 30 percent of total benefits, whereas in 2010 the share of benefits paid for medical care was almost 50 percent. Experts attribute this trend to the rising cost of health care.
Today’s post comes from guest author Charlie Domer from The Domer Law Firm. It is particularly relevant now, at a time when we are seeing a spike in the number of cases where surveillance video is being used to bring claims to a halt here in Washington State.
A dozen attorneys in Montana representing injured workers made headlines petitioning their Supreme Court to stop State fraud investigators sharing surveillance videos with doctors of worker’s compensation claimants. About 14,000 Montana residents are covered by the State Fund and the Fund’s Investigative Unit conducts video surveillance on about 500 claimants each year and shows the videos to claimants’ treating physicians. This practice raises questions about physician-patient privilege and patient privacy.
In Wisconsin and most other States, the physician-patient privilege is waived by an employee who reports a work-related injury. The waiver only extends, however, to any condition or complaint reasonably related to the work injury. Considerable debate sometimes arises over which treatment records are reasonably related to a claim. A broken toe, for example, is not likely relevant to an asthma condition but a prior Hepatitis-C claim may be. Employers and insurers may attempt to obtain records from a medical provider without a release, and practitioners must provide reports to the employer, insurer, employee, or Worker’s Comp Division within a reasonable time after written request.
The Fund’s Investigative Unit conducts video surveillance on about 500 claimants each year and shows the videos to claimants’ treating physicians… In Wisconsin and most other States, the physician-patient privilege is waived by an employee who reports a work-related injury. The waiver only extends, however, to any condition or complaint reasonably related to the work injury.
In Washington State, the majority of workers’ compensation claims are “State Fund” claims managed by the Department of Labor and Industries (Department), with perhaps a third are comprised of “self-insured” claims managed by third-party administration companies under the oversight of the Department. In “State Fund” claims, managed by State employees, benefits are paid from monies received from both workers and employers – – Washington is the only state where workers and employers each pay half of the medical insurance premiums. When a dispute arises in a claim, the aggrieved party can file an appeal to the Board of Industrial Insurance Appeals (Board), another State agency. When an appeal is filed with the Board, the Department is represented by the Office of the Attorney General, yet another State agency.
Since the economic crisis hit Washington, as it has in every other state in the union, the Department of Labor and Industries has become very cautious concerning any expenditures.
Since the economic crisis hit Washington, as it has in every other state in the union, the Department of Labor and Industries has become very cautious concerning any expenditures. After all, audits have found mis-spent money — nothing worthy of headlines, but the media loves a good fraud story as much as they love a government waste story. Fraud investigations and video surveillance have increased dramatically in recent years at great expense to the Department with minimal economic benefit. The Department was recently found to have spent a significant sum on no-show fees to independent medical examination companies without recouping those charges from the claimants who failed to attend the examinations or, in some of the cases, without properly notifying those companies to avoid the charges when a cancellation was known to have occurred. The end result of the Department’s caution is that benefits clearly payable to a claimant are being delayed or denied simply based on the amount of money at stake.
Payments of minor amounts can be made by Department claims managers at their discretion, based on the records on file. Amounts over a few thousand dollars, however, trigger the need for supervisor review and approval before payment can be made. Consequently, we are working much harder to obtain payment administratively because the Department increasingly requires proof of entitlement to benefits “beyond a reasonable doubt” rather than simply based upon the opinion of a treating physician. One doctor’s opinion of a worker’s inability to work seems no longer enough to establish entitlement to benefits. We increasingly face roadblocks to payment in cases where the Department concocts an issue over whether the inability to work is related to the covered injury or condition or is instead due to some pre- or post-existing condition, even if the disabling condition is clearly shown to be related to the original injury or the treatment procedures for that injury. If payment or authorization for treatment for a condition is denied, we are forced to demand an order be issued. We then file an appeal, and off to litigation we go.
In the current economic climate simply the amount of money involved increasingly drives the decision-making process at every administrative level.
The paralegals and attorneys at our firm work diligently to document the benefits we are seeking and the medical support for the claims we are making. In some cases, the monetary benefit at issue is a fairly significant amount. In the current economic climate simply the amount of money involved increasingly drives the decision-making process at every administrative level. Denials are much more common when a significant sum is at stake, regardless of the validity of the claim. We encounter a “make them prove it” attitude, forcing cases to go through time-consuming and expensive litigation rather than being resolved through mediation discussions or agreement between the parties.
Yesterday, I received phone call apology after a denial order had been issued, expressing condolences but the hope that we will be able to prevail on appeal. Today, I was told by an Assistant Attorney General that she would likely not be able to get authority from her client – the Department — to accept our settlement offer due to the amount of money at issue – “the case will just have to be litigated.”
I can accept these denials when there is a genuine dispute over the facts, over whether a claimant is entitled to the benefits or not. I cannot accept it when the answer is simply “it’s too much money.” I would prefer the other side tell me why my argument lacks merit, tell me that I am wrong in my belief that the claimant is entitled to the benefits at issue, tell me where the hole in my case is – anything – but, please, don’t just say that it’s too much money. That is not a reason for a State Agency which, unlike an insurance company, has no inherent profit motive, to deny benefits.
Consider the relatively low values in workers’ compensation claims: 60 – 72% of pre-injury wages as wage-replacement compensation; surprisingly small awards for permanent impairment, with no consideration given to the impact on lifestyle or earnings ability. If there is a significant sum at stake, it is because of YEARS of delay, or years of benefits at issue, not because the claimant is lucky or greedy. The claimant didn’t win the lottery; he or she was simply injured on the job and denied benefits when they were most needed. That required hiring an attorney, and in many cases expended large sums of money in efforts to support their case. The significant sums often at issue in these cases do not make claimants RICH, nor do they make them WHOLE. They only provide the limited measure of compensation that our workers’ compensation system allows.
My message to our State: Don’t add insult to injury.
My message to our State: Don’t add insult to injury. Show claimants the respect they deserve and promptly make decisions in their claims based on the merits of their arguments and the evidence presented, without being influenced simply by the amount of the check that may be issued.
OSHA cited United Contracting and placed the firm on its “Severe Violator Enforcement Program”
