Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)
Today’s post comes from guest author Hayes Jernigan, from The Jernigan Law Firm.
Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.
Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.
This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.
Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.
This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.
As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws.
Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.
A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.
In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense. This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.
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.
Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.
“I thought their doctor Independent Medical Report was the last word on my case. I didn’t know any better.”
This statement from a client I just met sums up the experience of many injured workers unfamiliar with the workers’ compensation process in Wisconsin (and many other states).
An insurance company or self-insured employer may request an injured worker submit to reasonable examinations by a physician, chiropractor, psychologist, dentist, podiatrist, physicians assistant, or Advanced Practice Nurse Practitioner of its choice. Wis. Stat. §102.17(1)(b). This examination is usually referred to as an Independent Medical Examination or “IME” although “adverse medical examination” more accurately reflects the process. An Independent Medical Examination may be requested by the insurance company or self-insured employer in order to determine whether the claim is compensable and the extent of the disability or the necessity and type of treatment.
Since only about one in ten injured workers in Wisconsin is represented by an attorney, nine out of ten unrepresented workers are not aware that the insurance company’s “IME” is actually an adverse exam by a doctor hired by and paid by the insurance company to issue his report. Although IME examiners would deny they routinely render an opinion in favor of the insurance carrier, my forty years of experience suggests just that. For many years lawyers representing injured workers have been proposing the terminology “Adverse Medical Examination” apply to give represented and unrepresented workers a more fair assessment of the process. Many IMEs make hundreds of thousands of dollars annually performing these examinations. At one of these examinations, my client overheard the IME physician (who had rented a motel room) speaking to a prospective young doctor trying to convince that doctor to perform IMEs. “This is a great practice.” He said. “All you have to do is review the medical records, meet with the worker for a few minutes, and deny the claim. And for that you can charge $1,500.” Although my client’s testimony to this effect was barred, the underlying accuracy of his testimony is undisputable.
Source: Bureau of Labor Statistics National Compensation Survey 1991 – 2014 (Credit: Sisi Wei/ProPublica)
Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.
Business and insurance interests are bombarding state legislatures every day of the week to take workers’ rights away by complaining how most states’ workers’ compensation systems are too expensive.
Recently, ProPublica and NPR produced a very detailed explanation of the state of workers’ compensation, focusing, rightly so, on injured workers. This article, which was the first in the series, included an interactive graphic that showed that even though business are complaining about rising premius, workers’ compensation insurance coverage is generally at its lowest rate in 25 years, “even as the costs of health care have increased dramatically,” according to the article.
As examples, using the average premium cost to the employer per $100 of workers’ wages, Nebraska employers paid $1.93 in 1988, while they actually paid $.15 less for the premium in 2014, for a total of $1.78 per $100 of workers’ wages, according to the chart. Iowa was more dramatic, with the price of workers’ compensation insurance $2.79 per $100 of workers’ wages in 1988. It went down $.91 to $1.88 per $100 of workers’ wages in 2014.
By scrolling down in the article, a person finds another graphic that shows how employer costs have risen for other categories, but have fallen for workers’ compensation. Most notably, the cost of workers’ compensation insurance coverage (per $100 of workers’ wages) went from $2.71 in 1991 to $2.00 in 2014. During the same timeframe, the cost of health insurance went from $8.55 to $12.52 and the cost of retirement benefits went from $5.50 to $7.29, all per $100 of workers’ wages, according to the chart in the article.
The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers’ Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), and the Nebraska Association of Trial Attorneys (NATA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.
Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.
I wrote the post below as an editorial in the Iowa City Press-Citizen. Because The Scheudles That Work Act is of national importance I want to make sure this issue receives the attention that it deserves by promoting awareness of it as broadly as possible. I hope you’ll take the time to read my editorial and pass it along to concerned citizens in your area.
Workers deserve some certainty in their work schedules. Why? Because we all have need to plan for child care, time for school, transportation, or simply time to pay bills and manage the household. It’s basic fairness.
But don’t you, a friend or an acquaintance work a job with unpredictable and irregular work schedules? You’ve probably noticed that irregular and on-call scheduling are increasingly common. It’s especially common in the fastest-growing areas of our economy—- cleaning, janitorial, retail and restaurant work.
These scheduling practices can devastate the worker and her/his family. The practices demand the worker choose between his job or his family. They often lead to the worker being fired.
Vermont and San Francisco have already passed laws to help employers and workers avoid this devastation.
Protecting all employees from retaliation for requesting a more flexible, predictable or stable schedule.
Creating a process under which an employer considers a worker’s schedule request in a way that’s sensitive to the needs of the worker and her/his family. For example, schedule requests based on caregiving duties, health conditions, pursuing education or the need to meet the demands of a second job, must be granted, unless the employer has a good business reason for denying it.
Compensating retail, food service, and cleaning workers for at least four hours of work if an employee reports to work when scheduled for at least four hours but is sent home early.
Providing that retail, food service, and cleaning employees receive work schedules at least two weeks in advance. Though schedules may later be changed, one hour’s worth of extra pay is required for schedules changed with less than twenty-four (24) hours’ notice.
Providing workers an extra hour of pay if scheduled to work split shifts or non-consecutive shifts, within a single day.
Kudos to Senator Harkin! Some politicians and billionaire-driven PACs parrot “Iowa values” as a campaign slogan. Senator Harkin, on the contrary, uses those values to create legislation like the ADA and The Schedules That Work Act.
Today’s post comes from guest author Catherine Stanton from Pasternack Tilker Ziegler Walsh Stanton & Romano.
In addition to helping our clients receive the benefits they are entitled to through the courts and other adversarial means, we are prooud to work with our elected officials to produce legislation that will benefit working people. A few days ago, a bill we support, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, was formally proposed. We encourage you to call and email your representatives and let them know that you support this law.
The press release with additional background follows:
Reps. Reichert and Thompson Introduce Bipartisan Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act
Washington, D.C. – Today, U.S. Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, H.R. 1982 into the House of Representatives.
The legislation aims to protect injured workers whose workers’ compensation claims overlap with Medicare coverage. Far too often, these claims are subjected to lengthy and cumbersome reviews by the Centers for Medicare and Medicaid Services (CMS) to determine appropriate set-aside amounts to pay for future medical costs in which Medicare may have an interest. The delays associated with this review place unfair burdens upon the injured party.
“This is a common-sense measure to ensure that hard-working Americans are not left in limbo because of inefficient bureaucratic procedures,” said Rep. Reichert. “Injured workers must have the confidence that their heath care claims will be processed in a fair and timely manner. By introducing this bill, Rep. Thompson and I aim to do just that: protect our hard-working citizens by making sure our systems serve them and their families.”
“The last thing injured workers should have to worry about is if needless bureaucracy is going to prevent their medical bills from being paid,” said Thompson. “This bill will make sure hard working families’ medical claims are processed efficiently and quickly, it will reduce bureaucratic headaches for businesses, and it will save taxpayers money. I will continue working with Congressman Reichert to get this bipartisan bill signed into law.”
Background
The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act establishes clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare. It would benefit injured workers, employers and insurers by creating a system of certainty, and allows the settlement process to move forward while eliminating millions of dollars in administrative costs that harm workers, employers and insurers.
The legislation has widespread support from groups such as the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC-Strategic Services and the Workers Injury Law and Advocacy Group (WILG).
OSHA is being prevented from fulfilling its mission.
Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.
In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.
While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years.
These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.
“In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as ‘right to work.’ It is a law to rob us of our civil rights and job rights. Its purpose is to destroy labor unions and the freedom of collective bargaining by which unions have improved wages and working conditions of everyone…Wherever these laws have been passed, wages are lower, job opportunities are fewer and there are no civil rights. We do not intend to let them do this to us. We demand this fraud be stopped. Our weapon is our vote.”—Martin Luther King, speaking about right-to-work laws in 1961
Injured workers can face a number of obstacles in their quest to return to work, particularly if the residuals of their injury, or in some cases, multiple injuries, have left them with significant physical restrictions. These obstacles are magnified if the worker is a non-English speaker and even more complicated if they are an undocumented worker.
In Washington State, immigration status is not a factor in workers’ compensation coverage
In Washington State, immigration status is not a factor in workers’ compensation coverage – if you are injured while an employee of a Washington company, your injury claim is covered. The Department’s position is that it is not its responsibility to monitor immigration laws but, rather, to provide protection to workers in our state. This is a very progressive stance, one that is rare across the spectrum of state comp systems, but it can complicate the return-to-work phase of an injury claim.
Vocational services for any non-English speaking employee can be time-consuming and expensive, even for a modest retraining goal, as the labor market is particularly limited when one’s ability to read, write and speak in English is limited. In many cases, these skills may be lacking in the worker’s native language, as well, and it is not simply a need to learn English that needs to be addressed. The longer the vocational process, the longer the injured worker remains on time-loss and the greater the retraining cost; all factors that impact the bottom line of the State and self-insured employers. Often, employers scramble to find a light duty job for their employee to get them back to work and avoid the retraining issue.
As of January 1, 2012, a significant change in Washington’s workers’ compensation laws has provided an opportunity to resolve the claims of injured workers age 55 and over through structured settlements, called CRSSA (Claims Resolution Structured Settlement Agreements) agreements. The CRSSA option is intended to provide an alternative for injured workers who feel “stuck” in the Department’s system, and wish to pursue retirement or alternative work goals outside their claims.
Causey Law Firm was one of the first workers’ compensation firms in the state to successfully negotiate for and receive approval of a CRSSA from the Board of Industrial Insurance Appeals.
The Department has a specialized unit of experienced personnel to evaluate incoming requests for CRSSA’s from injured workers and employers. If the Department (or self-insured employer) concludes the claim is appropriate to consider negotiations under the CRSSA, they will request the applicant provide a proposed lump sum figure to initiate negotiations. Many factors are taken into account in determining whether or not a CRSSA is appropriate, to include whether it is in the best interest of the worker, the nature and extent of both industrial and non-industrial injuries, other claims, present and future income sources of the worker, present and future expenses, employment and education history, and the effect a settlement may have on other benefits. All of this information is provided to the Department or employer, and if an agreement is reached, it is forward to the Board of Industrial Insurance Appeals, which is a separate state agency, for final review and approval. As of May 2012, 18 agreements have been filed with the Board, but only six of these have been approved.
Structured settlements allow a worker to resolve all the issues in their claim (time loss, permanent partial disability, vocational rehabilitation benefits, and pension) except treatment, by closing their claim and receiving, after an initial lump sum payment, monthly or bi-weekly payments until the full amount of the settlement is reached. An injured workers’ right to treatment cannot be compromised under the CRSSA rules and, in some cases, a worker can include authorization for future anticipated treatment in the agreement. The amount of the settlement and payout schedule will vary depending on the unique circumstances of each claim.
As we have advised several of our clients, it may not be in your best interest to pursue a CRSSA. However, if you are an individual who wishes to pursue self-employment, retirement, part-time work, or alternate vocational avenues, and have become tired of the “system” running your life, and you’d like to have the power to resolve your claim, it may very well be appropriate to pursue this new option. If so, please give our office a call, and we will be happy to provide further assistance.
