Category Archives: Uncategorized

fighting fraud, truckers, Uncategorized, Workers Compensation

Truck Drivers Beware – Your Insurance May Not be What You Think

Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

NOTE: The timeline for filing an injury claim with the Washington Department of Labor and Industries is shorter – only 1 year – than what Mr. Jernigan describes in his article.

There is a scam out there and truck drivers are the victims, especially if they are seriously injured in a trucking accident. It works like this: an out of work driver hears about a job and fills out an application with a national trucking company. He then gets a call saying he has been accepted as a driver, contingent on a physical exam and a drug test. The driver is then asked to show up at work on an appointed date for his first delivery job. When he shows up he is asked to “sign papers” which allow him to lease/own the truck as he drives it across the country, and he signs a contract that declares that he is an independent contractor (although in reality the trucking company controls the deliveries and is the only source of revenue for the driver). Further, he is required to purchase accident insurance through a broker designated by the trucking company and the premiums are taken out of his paycheck. Because the driver is anxious to work again and is not particularly experienced in reviewing legal documents the driver signs the papers, gets in the truck and begins working again as an interstate truck driver.

The costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

Like most of us, these drivers never expect to be in a serious accident. If they unfortunately do have an accident while driving the truck, they look to the accident policy they purchased. If they are disabled, it pays the same benefits as workers’ compensation and provides medical coverage. Many drivers think they are actually on workers’ compensation. The catch is that all benefits stop after 104 weeks (2 years). If after that time if the driver is still disabled and still needs medical care, it is a shock to find out none is available under this contract.

Is there no hope for the truck driver under these circumstances?

Why 104 weeks? Most states have workers’ compensation systems that require the claim be filed within 2 years. Since the 2-year period has run, the driver is out of luck and cannot file for workers’ compensation under state law. What happens if the driver needs additional surgery and continues to remain disabled? Most likely federal assistance programs like Medicaid or Medicare enter the picture and the costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires.

Is there no hope for the truck driver under these circumstances? Although it might be a tough fight, most workers’ compensation statutes specifically state that an employer cannot contract away its obligations under the Workers’ Compensation Act. Thus, the truck driver’s legal argument is that the contract designating the driver as an independent contractor was void as a matter of law. If the employee has been the subject of fraud, equity may allow the driver to go ahead and file a claim and pursue the action even through the 2-yr period has run. Under these circumstances, certainly in North Carolina, the driver would have an opportunity to pursue this claim.

The lesson to be learned by truck drivers is not to assume that the contract you have innocently signed is valid. If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires. Finally, if you are asked to sign one of these contracts and you have options of other employment, you may want to decline this job offer and work for a company that is more ethical. Your livelihood and the welfare of your family may depend on this important decision.

Uncategorized

Returning to Light-Duty Work – What, When, How & Why

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.

Photo credit: Seattle Municipal Archives, Foter, Creative Commons

sports, Uncategorized, Workers Compensation

Pro Athletes Need Worker’s Compensation Too

Today’s post comes from guest author Tom Domer from The Domer Law Firm. Just as described by Mr. Domer in the following article, Washington State sports players are covered under the same workers’ compensation laws that govern the rest of the Washington work force. Causey Law Firm has represented several professional athletes with memorable names, which is fun until it comes time to explain that their ratings of permanent impairment are based on a comparison with a normal individual’s average level of performance – strength, range of motion, etc.. – not a comparison with their own super-standard levels. Add to that the notion that the permanent impairment award dollar values are the same for every worker in the State and final settlements do not take into account lost wage earning capacity in Washington and what is left over is a frowning face on the sidelines.

Most of us do not associate a professional athlete’s injury with workers’ compensation. Because of pro athletes’ generous contract wages, and the relatively modest recoveries available under workers’ compensation, most fans don’t recognize that when it comes to receiving workers’ compensation, professional athletes are just like other office or factory workers who can recover worker’s compensation when injured.

Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes.

Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes. Wisconsin law places a cap on the amount of money an athlete can receive for his injury. The maximum weekly wage for 2012 is $1,281, yielding a temporary disability rate of $854. The right to workers’ compensation is contained in the collective bargaining agreements with the respective players unions in football, basketball and baseball. In Wisconsin, insurance companies charge employers like the Green Bay Packers, Milwaukee Brewers, and Milwaukee Bucks for workers’ compensation insurance.
Pro athletes regularly get hurt on the job, but few pursue workers’comp claims. In the ten years from 1994 through 2004 a total of 37 cases involving the Packers were litigated, and in the same period 20 cased involving the Brewers were contested. (Milwaukee Journal Sentinel, Sunday, June 25, 2006 “Paying for Pain”) Cases that went to a hearing were even more rare : only four cases involving the Packers went to a hearing in that ten year period.

It’s a popular notion that athletes assume the risk of injury, since that is the nature of professional sports. Some states have bought into this concept and leave professional athletes unprotected.

Athletes apply for worker’s compensation largely for two reasons: vocational retraining and Loss of Earning Capacity. Many pro athletes have not completed college, or when they did, they were not scholars, so the only thing they know how to do is play sports. If they get wrecked and cannot play, they have to find a way to earn a living. Loss of Earning Capacity is measured by the player’s residual ability to earn a living considering the limitations of the injury.

It’s a popular notion that athletes assume the risk of injury, since that is the nature of professional sports. Some states have bought into this concept and leave professional athletes unprotected. In Pennsylvania recently the Courts ruled the Pittsburgh Steelers do not have to pay the attorney fees related to a former player’s workers’ compensation case, because although he clearly suffered injuries while with the team, the team argued he was not “disabled” since he continued to play for other pro teams. Pittsburgh Post Gazzette, April 24, 2012. All pro athletes are covered in Wisconsin.

Uncategorized

The Very Real Dangers Of Worry (Part 2)

Last week we posted on how worry can affect the lives of injured or disabled workers. In today’s post, we’ll talk about some of the specific effects of worry on the body.

The physical reactions to excessive fear and anxiety (worry) initiate a chain or cascade of pathological events by stimulating the amygdala area of the brain (fight/flight response), releasing neurotransmitters to the cortex. There, the fear or anxiety, whether real or imagined, is analyzed in detail and the analysis is returned to the amygdala where, in normal situations, the fear response is shut off by amino-butyric acid (GABA). GAD worriers may not have high enough GABA levels to shut off this pathway. Consequently, there are constant marked secretions of glucocortocoids and catecholamines that increase blood sugar levels. Marked levels of epinephrine and norepinephrine dilate blood vessels in skeletal muscles and other adrenergic (adrenal) stimulations that in turn create modifications in breathing, increased temperatures, sweating, decreased mobility of the stomach, bowels, and intestines, constrictions of the sphincters in the stomach and intestines.

Simply said, constant fear and anxiety result in debilitating amounts of stress hormones like cortisol (from the adrenal glands) and hormones that cause blood sugar levels and triglycerides (blood fats) to rise significantly. This process, if not shut off or modulated, can cause premature coronary artery disease, short-term memory loss, digestive problems, and suppression of the natural immune system. The scientific literature is now implicating constant stress, such as constant work stress or toxic fear and anxiety, in causing large weight gains in the midriff area which can greatly exacerbate orthopedic injuries, particularly of the spine or knees, and can lead to increased incidences of diabetes and cancer.

Worry causes increased mortality and morbidity. It is that simple.

For information on how to treat and avoid worry, check in with us later this week for the next installment in this 3-part series.

Uncategorized

Suggested Acceptance Speech for Democratic Nominee

I think most of us who follow politics can agree that there’s been steady deterioration in the quality of speeches given by major candidates of both parties over the past few years. Speeches that should speak to specific facts and address real issues have become so much vanilla blather, devoid of any real substance. Candidates timidly avoid staking out their positions with any specificity, choosing instead to couch their message in vagueness — or in the case of the right wing, coded language — that allows them to scamper away from any heat the message might engender and to be able to manipulate that message to make it sound a bit different for the next audience.

Some of you may be old enough to remember the speeches of John F. Kennedy in the early 60’s that still resonate as some of the greatest presidential oratory of the 20th century.

When candidates “dumb down” their message so they can triangulate between different constituencies in order to placate, or at least not alienate, certain voters, those messages lose all moral force and any real visionary quality or appeal. Some of you may be old enough to remember the speeches of John F. Kennedy in the early 60’s that still resonate as some of the greatest presidential oratory of the 20th century. If you didn’t hear them in real time, you’ve undoubtedly seen video clips, or read or heard phrases from those speeches that live on. Kennedy’s speech writer at that time was Theodore C. Sorenson, who worked first for JFK while he was a senator and then in the White House. He was a gifted wordsmith about whom pundits have said he and Kennedy were Continue reading Suggested Acceptance Speech for Democratic Nominee →