Category Archives: government

government, Legislation, Workers' Compensation, workplace injury

Saving Our Benefits – How Public Outcry Saved Workers’ Compensation in New York

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

Some of you may recall that injured workers and their families were used as political scapegoats by big business and insurance interests who blamed them for the high cost of doing business in New York.  Workers’ Compensation benefits became an easy target as those who needed these benefits were hardly in a position to fight against the deep pockets and political clout of these lobbying groups.  

As a result of political pressure during New York State budget negotiations, there was a direction to update the existing impairment guidelines under the guise of reducing costs to employers while still protecting injured workers. The final budget contained a provision directing the Workers’ Compensation Board (WCB) to put together a task force with input from labor, the insurance industry, medical providers, and the NYS Business Council to revise impairment guidelines to reflect “advances in modern medicine that enhance hearings and result in better outcomes”.  These impairment guidelines determine the amount of compensation payable to an injured worker for a permanent injury.

Unfortunately for injured workers, the WCB unilaterally revamped and rewrote the guidelines and released them during a holiday weekend with a 45-day public comment period. These proposed guidelines bore very little resemblance to the recommendations made by labor groups and the Orthopedic Society, and were an outrageous abuse of power. As a result of a very public outcry, the New York State Assembly Labor Committee held a public hearing during which it became very clear to labor groups, injured workers’ advocates, and members of the State Legislature that the Board’s egregious actions would result in a slashing of benefits to injured workers at a time when they are most vulnerable.

Public outcry led to action. Workers’ advocates showed up at a number of WCB locations across the state, including Hauppauge, Brooklyn, and Buffalo, for Days of Action. More than 100,000 postcards objecting to the proposed changes were delivered. Members of the Retail Wholesale and Department Store Union (RWDSU), the AFL-CIO, NYCOSH, New York City District Council of Carpenters, DC37, and countless others all publicly railed against these changes. Members of the Legislature called out the WCB for overstepping its authority and for proposing changes that would vastly favor the Business Council over the injured worker. 

The Worker’s Comp Board subsequently issued amended revisions, and while there are still some reductions, it was a significant improvement over the initial version. The final version was released last year on December 29. It is clear that grassroots efforts sometimes do work. Governor Cuomo and the WCB Chair clearly listened, and for that we are grateful. We are also grateful to those State legislators, union groups, and medical providers who submitted their insight on the impact the original proposals would have on injured workers.

Lastly, it is clear that those who may have been past or current recipients of Workers’ Compensation benefits – those who have known injured workers or those who just saw an injustice and wanted to help right a wrong – took the time to make a phone call, send a letter, or sign a petition. The outpouring of support took many by surprise, including those interests that were financed by big business groups.   One of my favorite quotes is from Margaret Mead, an American cultural anthropologist, who said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” Truer words were never spoken.

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.

government, Legislation, Workers' Compensation

Law Promoting Openness Regarding Pharmacy Benefit Managers Meets Industry Resistance

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

A North Dakota law attempting to promote openness about fees and prevent conflicts of interests with so-called pharmacy benefit managers (PBM) would seem non-controversial.

Non-controversial to everyone besides lobbyists for the PBMs who have sued the State of North Dakota in federal court claiming this commonsense legislation harms patient safety and is unconstitutional.

The North Dakota suit matters in the world of workers’ compensation because PBMs are an essential component of drug formularies which are popular with workers compensation insurers and have been touted as a way to prevent opioid abuse and control drug costs. Formularies are a list of approved drugs and dosages. Formularies are administered by the PBMs who buy the drugs, allegedly at a discount, from drug companies and pass along those savings onto users.

Drug formularies have come under criticism for issues addressed by the North Dakota legislation. First, a PBM may have a relationship with a particular drug maker which means that drugs are picked on for business reasons rather than medical reasons. Formularies also may not control drug costs as advertised.  In response to a drug formulary bill in Nebraska last session, the City of Omaha was concerned that formularies might increase drug costs because of the inability to use generic drugs.

Related to that concern, PBMs have been criticized for their role in helping drug companies pass along higher drug costs to consumers. PBMs are paid on what the discount they can negotiate, so drug companies have an incentive to inflate drug costs which benefits PBMs.

Lawmakers on a state or federal level are correct in having concerns about PBMs if they want to address drug costs and opioid use. The PBM industry has argue that state laws are “pre-empted” by federal laws regulating prescription drugs, so state laws are unconstitutional. Pre-emption is premised on the fact that federal laws are superior to state laws if there are federal and state laws on both subject matters.  Recently the U.S. Supreme Court has used pre-emption to strike down state-based consumer protection laws in favor of corporate defendants. The threat of successful litigation may scare states, especially smaller states, from passing laws to regulate PBMs.

But state laws regulating the use of PBMs in the context of workers’ compensation may be easier to defend from a legal standpoint. Workers compensation laws are enacted under a state’s police powers under the 10th Amendment. The constitutional basis of workers’ compensation laws is arguably a fluke of legal history but workers’ compensation is traditionally seen as a state law concern so federal courts may be less to strike down laws regulating PBMs in the context of workers’ compensation.

government, Legislation, Workers' Compensation

Medicaid Cuts Will Cause More Nursing Injuries

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

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

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

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

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

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

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

government, Legislation

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

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

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

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

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

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

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

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

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

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

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

 

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

government, Legislation, Workers' Compensation, workplace injury

Opioids And Doctor Choice

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

Chicago Mayor Rahm Emmanuel said in 2008 that “You never let a serious crisis go to waste.” In the context of opioids and workers compensation this could mean reforms to workers compensation systems beyond drug formularies If solving the opioid crisis means limiting the number of doctors who can prescribe opioids, then there will be fewer doctors who will treat workers compensation cases.

Additional licensure and certifications aren’t unheard of in the world of occupational health. In 2016, the Federal Motor Carrier Safety Administration implemented a new rule that only doctors on their registry can perform DOT Physical Examinations for truckers and other professional drivers. This reduced the number of doctors who can perform those examinations. 

When I testified on LB 408, a bill that would have implemented drug formularies for opioids under the Nebraska Workers’ Compensation Act, some doctors were testifying that there was little training in regards to prescribing opioids. Though an opioid prescription registry like the DOT examination registry wasn’t proposed, you could certainly see it proposed as a solution to the opioid problem.

By limiting the numbers of doctor who handle workers’ compensation claims through additional licensing requirements, injured employees will have fewer choices for medical treatment and are more likely to have their employer control their care.

Evidence shows that the workers compensation system has made some contribution to the opioid crisis. According to a 2015 report by the Bureau of Labor Statistics over 3.5 million employees were injured at work. Half of those injuries required the employee to miss sometime from work. A study of employees in 25 states done by the Workers Compensation Research Institute revealed that 55 to 85 percent of employees who missed at least one week of work were prescribed at least one opioid prescription.

When I testified on LB 408 the consensus among the doctors testifying on the legislation was that injured workers were more vulnerable to narcotic addiction than other patients who are prescribed narcotic pain medication. Scientific studies give some credence to these conclusions. Workers compensation claims can cause economic insecurity. According to an article in Scientific America, Addiction rates for opioids are 3.4 times higher for those with incomes under $20,000 per year than they are for employees making more than 50,000 per year.

But that article also shared studies that state that pain pill prescriptions are not driving the opioid epidemic. Patients with pre-existing addiction issues are more likely to become addicted to opioids and 75 percent of those who develop opioids start taking opioids in a non-prescribed manner. Furthermore, only 12 to 13 percent of ER patients who are treated for opioid overdoses are chronic pain patients.

Workers’ Compensation is traditionally an area of the law that is controlled by the states. Regulation of drugs is generally an area reserved for the federal government. Any laws imposing additional hurdles or requirements upon doctors who prescribe opioid drugs may have to come from the federal government.

Courts, discrimination, employment law, government, Supreme Court, worker rights

Gorsuch, Chevron and Workplace Law

Judge Gorsuch

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

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

government, Legislation, Workers' Compensation

A Dismantling of the Grand Bargain That Created Workers’ Compensation

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

This week marks the official start of the holiday season. It is a time for family and loved ones, and a time to reflect on the blessings that we have received in our lives. This week marks the countdown to a number of holidays including Christmas, Hanukah and Kwanzaa. Unfortunately for some people, however, the holiday season is fraught with anxiety, depression, illness and injury. Many people who sustain work-related injuries find that without their weekly salary, the holidays are a stark reminder of how their lives have changed dramatically. The inability to provide for even the basic necessities, let alone splurge on holiday presents, is a prescription for depression.

The Grand Bargain Premise of Workers’ Compensation laws in this country is that the employer, through their insurance carrier, is responsible to pay for injured workers’ medical treatment, lost wages, and permanent disability in exchange for injured workers giving up their rights to sue their employers for negligence. During the last couple of decades, Workers’ Compensation benefits have been under the continuous scrutiny of the Business Council, which has been alleging that the cost of benefits to injured workers is at the root of their increase in costs and reduction in profits.

However, a report from the National Academy of Social Insurance (NASI) indicates otherwise. Benefits as a percent of payroll declined in 46 states between 2010 and 2014, continuing a national trend in lower benefits relative to payroll that began in the 1990s. Costs to employers, on the other hand, continue to climb. Between 2010 and 2014, employer costs associated with Workers’ Compensation – such as insurance premiums, reimbursement payments, and administrative costs – grew at a rate nearly five times faster than benefits. Instead of using employers’ money to provide benefits for injured workers, insurance companies pay a host of businesses, including insurance medical examiners, nurse case managers, vocational rehabilitation companies and defense counsel, all of which profit from the system at the expense of workers and reap record profits for themselves. Meanwhile, the insurance industry and the Business Council falsely blame the claims of disabled workers so they can continue to increase profits by slashing benefits and shifting costs to taxpayer-funded programs instead of employer-paid insurance.

Benefits in New York have decreased under the current Workers’ Compensation system. The changes in the law in 2007 allowed higher wage earners to benefit in the short term as the amount of their weekly benefits has increased. However, these benefits are only available for a fixed period of time. If injured workers are able to return to work after a short period of lost time and a limited period of medical treatment, then some may say the system is a success. Unfortunately for many severely-injured high and low wage earners, the Grand Bargain wasn’t so grand. Medical providers’ hands are tied by Medical Treatment guidelines that limit the amount of treatment authorized based upon “best practices” or cookie cutter treatment, as opposed to what is recommended by the treating doctor. Now there is the prospect of limiting prescription medications as well, all in the name of cost reduction.

The reduction of medical treatment based on the treatment guidelines to injured workers should not imply they are fully recovered. Also, they don’t all return to work once they reach their indemnity cap. The cost of providing monetary benefits and medical treatment are shifted to the taxpayers to pick up the tab. Injured workers don’t expect that the very act of working will forever alter their lives in a negative way. Workers’ Compensation benefits are not a charitable donation, but an entitlement based upon a compromise between workers and their employers. Unfortunately, it is clear that these benefits have been gradually eroded. We should not allow any legislation that further erodes these benefits. While the holidays will continue to bring depression and despair for some injured workers, it should not be as a result of our treatment of them afterward.

 

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.

government, Workers' Compensation

Why Immigration Policy Changes Will Probably Impact Workers Compensation

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

In theory, the changes to immigration policy proposed by President Trump shouldn’t impact workers compensation in Nebraska. Workers compensation laws are state laws and Nebraska, like most states, awards workers compensation benefits regardless of immigration status.

But theory is one things and reality is another.

Mike Elk of Payday Report recently ran an article detailing that workplace deaths among Latinos were the highest in 2015 than they had been since 2007. This spike was attributed in part to aggressive immigration enforcement by the Obama administration which immigrant advocates believed made workers afraid to speak out about working conditions over fear of deportation.

During the Obama administration tougher immigration policies were at least coupled with tougher and even innovative workplace safety enforcement by OSHA. In the Trump era, workplace safety enforcement is expected to be curtailed and new OSHA rules are poised to be rolled back.

Immigration and workers compensation is often thought of in the context of Mexicans and central Americans working in industries like meatpacking and construction. This is a misconception, the meatpacking industry in Nebraska and elsewhere employs an uncounted but significant number of Somali workers. Somalis are one of seven nationalities banned from entering the United States under President Trump’s order. Ironically Somalis were recruited heavily into meatpacking work after raids during the Bush administration lead to the deportation of Latino meatpacking workers. Somalis had refugee status so there were few questions about their immigration status or eligibility to work legally. Under the new executive order, their immigration status is less secure and they may be less likely to speak out about working conditions.

A smaller but growing number of Cubans are coming to Nebraska for meatpacking work as well. Like Somalis, Cubans are deemed to be refugees so their ability to work lawfully is not a question for employers. However in the waning days of Obama administration, President Obama ended automatic refugee status for Cubans in an effort to normalize relationship with the Castro regime. There was little public outcry over this order like there was for the so-called Muslim Ban. However because of an executive order, Cuban nationals working in Nebraska may be less inclined to speak out about working conditions or claim workers compensation benefits due to newfound uncertainty over their immigration status.

government, Legislation, Workers' Compensation

Removing The Safety Net: A National Trend Of Benefit Reductions For Injured Workers

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

Benefits for injured workers continue to be under attack throughout the country. In New York, there have been a number of changes in the last decade, all in the name of reform. These reforms were encouraging at first as they increased the weekly benefits for some higher wage-earning injured workers for the first time in decades. They also created medical treatment guidelines under the guise of allowing injured workers to obtain pre-approval on certain medical treatments and procedures. 

Unfortunately, the changes also resulted in reduction of benefits for many injured workers. Monetary benefits were capped, so injured workers deemed partially disabled could only receive a certain number of weeks of benefits regardless of their ability to return to their pre-injury jobs. The determination of the degree of disability has become a battle involving multiple, lengthy depositions of medical witnesses where the outcome is how long injured workers get wage replacement or whether they receive lifetime benefits. The criteria is not whether injured workers can return to their prior employment, but whether they are capable of performing any work at all, regardless of their past job experience or education. The battle is not limited to the amount of weeks of benefits injured workers can receive, however. The medical treatment guidelines, touted as getting injured workers prompt medical treatment, discounts the fact that if the requested treatment is not listed within the guidelines, it is denied and the burden is placed upon injured workers and their treating doctors to prove the requested treatment is necessary.

Other changes designed to cut administrative costs and court personnel include reducing the number of hearings held, thereby denying injured workers due process. There also has been a reduction in the number of presiding judges, and in many hearing locations the judges are not even at the site but are conducting hearings through video conferencing. At the end of October, the Board announced a new procedure authorizing the insurance carrier to request a hearing on whether injured workers should be weaned off of opioids that are used by many medical providers to treat chronic pain. While everyone would agree that the misuse of prescription pain medication is an epidemic in this country, many question whether the insurance industry really has the injured workers’ best interest at heart.    

As an attorney who has represented injured workers for more than 26 years, I have seen many workers successfully transition from injured worker back into the labor market. It is very encouraging to note that for many people the system has worked. They receive their treatment, which may involve physical therapy, surgery, pain management, prescription therapy, or whatever else their treating physician recommends. They are paid a portion of their prior income and after a period of convalescence, they are able to return to work. Some injured workers, however, are not so lucky. The decisions about what happens to those unable to work have been left to those who seem to care more about business and insurance industry profits. 

Just about one year ago, 14 people were killed and 22 more injured when ISIS-inspired terrorists went on a shooting rampage in San Bernardino, California. The nation and the world were horrified to hear about this tragedy and the story was in the news for many weeks. Now a year has gone by and many of the survivors have complained about treatment being denied and prescription medication being cut off.  While many injuries happen quietly without the headlines seen in the California attack, there are many similarities. It seems that when an initial injury occurs, there are many good protections and benefits in place. However, as time goes on and costs increase, injured workers are looked upon as enemies to defeat or to forget about. Unfortunately for injured workers and their families, they don’t have this luxury and they don’t have the means to fight.

Most people don’t think it will ever happen to them. That is what most of my clients have thought as well.

 

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. 

 

government, Legislation, Workers' Compensation

Labor Report Urges Study Of A Federal Role In State Workers’ Comp Laws

Howard Berkes and Michael Grabell have been investigating the decline of workers compensation for Pro Publica and NPR.

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

Howard Berkes and Michael Grabell have been shining a light on the deterioration of state workers’ compensation benefits over the last decade. A new U.S. Department of Labor report bolsters their investigative journalism, noting that those hurt on the job are at “great risk of falling into poverty” because state workers’ compensation systems are failing to provide them with adequate benefits.

The Workers Injury Litigation Group (WILG) has been fighting against this decline for 20 years, and we will continue to advocate for fair benefits for injured workers. The following is a summary of Mr. Berkes and Grabell’s recent article:

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

“The current situation warrants a significant change in approach in order to address the inadequacies of the system,” the report says.

That’s where federal intervention comes in. The Labor Department calls for “exploration” of “the establishment of standards that would trigger increased federal oversight if workers’ compensation programs fail to meet those standards.”

The agency also suggests a fresh look at reestablishing a 1972 Nixon administration commission that recommended minimum benefits and urged Congress to act if states failed to comply.

“In this critical area of the social safety net, the federal government has basically abdicated any responsibility,” says Labor Secretary Thomas Perez.

Without minimum federal standards for workers’ comp benefits, Perez adds, the current system “is really putting workers who are hurt on the job on a pathway to poverty.”

Prior to the report’s release, employers, insurance companies and others involved in workers’ comp programs expressed alarm at the possibility of federal intervention.

“There has never been federal ‘oversight of state workers’ compensation programs’,” says a statement posted on the website of a group called Strategic Services on Unemployment and Workers’ Compensation, which says it represents the workers’ comp interests of the business community.

“Federal requirements imposed on a national basis would be inconsistent with the state workers’ compensation system, which has been in place for more than 100 years without federal oversight,” the group wrote.

Federal minimum benefits could ensure that injured workers across the country would not receive lesser benefits for often shorter periods of time simply because they lived in a state where lawmakers dramatically cut workers’ comp costs for employers.

“This is a system with no federal minimum standards and absolutely no federal oversight,” says Deborah Berkowitz, a senior fellow at the National Employment Law Project. “Clearly, more federal oversight is necessary to assure that that this system works for those most in need of assistance.”

No direct administrative or legislative action is proposed in the report, but Sen. Sherrod Brown, D-Ohio, says he’s “drafting legislation to address many of the troubling findings laid out in this report and will be working with my colleagues to advance it in the next Congress.” 

Brown echoes Perez, saying injuries on the job shouldn’t force workers into poverty.

“But without a basic standard for workers compensation programs, that’s exactly what’s happening in too many states across the country,” Brown adds. 

Another incentive for federal involvement, the report notes, is a shift of billions of dollars in workplace injury costs to taxpayers when state workers’ comp benefits fall short and workers are forced to turn to Medicare and Social Security for treatment and lost wages.

The report lays the groundwork for federal intervention by providing an extensive section detailing the government’s role in promoting national benefits standards in both Republican and Democratic administrations dating back to 1939.

But many in the workers’ comp world consider workplace injury policy and regulation a states’ right and any prospect of a controlling federal role will likely face stiff resistance.