Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.
Today’s post comes from our colleagues at WorkersCompensation.com
The Occupational Safety and Health Administration (OSHA) announced the preliminary Top 10 most frequently cited workplace safety violations for fiscal year 2018. Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, presented the Top 10 on the Expo floor as part of the 2018 NSC Congress and Expo, the world’s largest annual gathering of safety professionals.
While the rankings for OSHA’s Top 10 most cited violations vary little from year to year, violation No. 10 on this year’s list, “Eye and Face Protection” (1926.102), was not on the 2017 list.
“Knowing how workers are hurt can go a long way toward keeping them safe,” said National Safety Council President and CEO Deborah A.P. Hersman. “The OSHA Top 10 list calls out areas that require increased vigilance to ensure everyone goes home safely each day.”
The Top 10 for FY 2018* are:
1. Fall Protection – General Requirements (1926.501)
7,270
2. Hazard Communication (1910.1200)
4,552
3. Scaffolding (1926.451)
3,336
4. Respiratory Protection (1910.134)
3,118
5. Lockout/Tagout (1910.147)
2,944
6. Ladders (1926.1053)
2,812
7. Powered Industrial Trucks (1910.178)
2,294
8. Fall Protection – Training Requirements (1926.503)
1,982
9. Machine Guarding (1910.212)
1,972
10. Eye and Face Protection (1926.102)
1,536
A more in-depth look at the Top 10 violations for 2018 will be published in the December edition of the Council’s Safety+Health magazine.
*Preliminary figures as of Oct. 1, 2018
About the National Safety Council The National Safety Council (nsc.org) is a nonprofit organization whose mission is to eliminate preventable deaths at work, in homes and communities, and on the road through leadership, research, education and advocacy. Founded in 1913 and chartered by Congress, NSC advances this mission by partnering with businesses, government agencies, elected officials and the public in areas where we can make the most impact.
Many in the workers’ compensation community complain that seriously injured workers can develop a disability lifestyle, become dependent on drugs, and unreasonably extend their disabilities. Instead of falling into such a lifestyle, these critics argue, disabled workers should show “resilience.” This rhetoric, which I have written about before on this blog, has its genesis in progressive medical/rehabilitation thinking, Muscular Christianity (I think), and, realistically, employer/insurer cost considerations.
The complaint is legitimate, and one with which I have some sympathy. I also believe that some legitimately injured workers do indeed unreasonably extend their disabilities — if only waiting for a generous lump sum settlement. Many readers will know of the sharp critique of this type advanced by Dr. Nortin Hadler in his many books.
On the other hand, the “duty-of-resilience” critique can go too far, and is often articulated in overly simplistic terms. At my agency’s conference in Hershey, Pennsylvania (June 7-8), an articulate industry speaker, addressing an audience about medical marijuana, posited forcefully that the “choice between opioids and medical marijuana [for chronic pain patients] is a false choice….” What workers need to do, instead, is show some resilience and “get off their asses!” After all, a friend of his, who is partially paraplegic, has shown resilience and will often go hiking with him. If she can do it, so can others!
I believe the speaker knew his audience and thus took some pleasure in feeding these lions of the community some red meat, and indeed they rewarded this coarse declaration with a leonine roar of applause.
Yet, his panel partner, Dr. Michael Wolk, thereupon gently reminded the industry speaker — and the audience — that not all people respond to pain and other impairments the same way; indeed, he posited that science has shown that one’s genetic make-up can affect the ability to be resilient.
Dr. Wolk (my God, an astonishing speaker) might also have remarked, as have other physicians at our Pennsylvania conferences, that heroism is not appropriately considered the recovery standard in the first place. Commentators like the industry speaker, talking about resilience, often invoke exceptional individuals, like Christopher Reeve, but most of us realize that not everyone is Superman.
This point was vividly made two years ago in the memoir, A Body Undone: Living on After Great Pain (NYU Press 2016). The author, Christina Crosby, a professor at Wesleyan University, was rendered quadriplegic in a cycling accident, and has been left with chronic pain as well. She recounts in her memoir what life is like with such a catastrophic injury, shows that she indeed has great resilience — but leaves the heroism narrative behind. She makes clear that her circumstances, like education; a life of reflection and discipline; and the unflagging love and support of her family, make her ability to bounce back possible. Most of us know that not every injury victim will have these advantages. (My complete review of Professor Crosby’s book is posted at the research website www.davetorrey.info.)
Is all this not common sense? We have known for a century, after all, that young men respond differently to their traumatic wartime exposures. Some show a grim resilience; some are troubled for life, but are able to continue on; some are broken. In the modern day, most of us would not address such veterans with the admonition that they get off their asses. Injured workers deserve the same respect.
Today’s post comes from guest author Richard Cahill Jr., from Pasternack Tilker Ziegler Walsh Stanton & Romano.
An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.
The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.
What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.
The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.
When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”
How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.
Do not go it alone. At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.
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.
Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.
Every year are a few work-fatalities that garner criminal prosecution and conviction. This is out the thousands of work-fatalities that occur every year. Until now, there’s been no one keeping a record of these fatality-causing events.
Now, the Center for Progressive Reform’s (CPR) Katie Tracy has reviewed court records, investigation files, and news stories to identify them many of them. After assembling information on more than 75 criminal cases from 17 states, she knew it was time to share all of it.
The result is CPR’s user friendly and publicly-available at Crimes Against Workers Database. I encourage you to explore this valuable tool. We believe that the awareness caused by sharing this information nationally can be a catalyst for legislators and others to understand the scope and scale of these crimes.
Senator Dan Quick has introduced employee-friendly legislation
Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.
Last weekend’s Big 10 Conference football championship game between Ohio State and Wisconsin contained some off-the-field controversy when former Wisconsin Badger and current Cleveland Browns player, Joe Thomas, criticized the fact that Ohio State starting quarterback J.T. Barrett was playing in the game six days after arthroscopic knee surgery.
While Barrett lead the Buckeyes to victory with 211 passing yards and 60 rushing yards, Thomas argued that college players should have the option of a second opinion when it comes to major surgeries like players do in the NFL. Thomas argued that team doctors are overly influenced by coaches who want players to return to action as soon as possible and that college players are over eager to return to the field.
The WA Department of Labor and Industries issued updated guidelines for surgical treatment of foot and ankle injuries in October, 2017. The publication outlines trauma-related conditions and non-work-related conditions that can cause a worker to be predisposed to a foot or ankle injury, and/or can complicate treatment for a work-related condition.
Providers who are in the department’s Medical Provider Network are required to follow this guideline when treating injured workers.a The surgical criteria are used in the department’s utilization review program as the supporting evidence has shown these provide the best chance for injured workers to have a good surgical outcome.
To help ensure that diagnosis and treatment of foot and ankle conditions are of the highest quality, this guideline emphasizes:
Conducting a thorough assessment and making an accurate diagnosis.
Appropriately determining work-relatedness.
Making the best treatment decisions that are curative or rehabilitative.b
Facilitating the worker’s return to health, productivity, and work.
The guideline was developed in 2016-2017 by a subcommittee of the Industrial Insurance Medical Advisory Committee (IIMAC). The subcommittee was comprised of practicing physicians in rehabilitation medicine, occupational medicine, orthopedic surgery, and podiatry. The guideline recommendations are based on the weight of the best available clinical and scientific evidence from a systematic review of medical literature, and on a consensus of expert opinion when scientific evidence was insufficient or inconclusive.
DLI has implemented an Acupuncture Pilot Project. It’s only for workers with low back injuries at this time.
The Acupuncture Pilot Project will collect information to inform the provision of acupuncture treatment for low back pain, including acupuncture provided by East Asian Medicine Practitioners (EAMPs), to injured or ill workers covered by Washington’s workers’ compensation system.
This project provides a structured environment for care delivery and capture of data that will inform future L&I payment and coverage methodology for acupuncture.
While the project is underway, the Department of Labor & Industries (L&I) will pay qualified providers participating in the pilot project to deliver acupuncture treatment to injured workers with low back pain related to an accepted condition on a workers’ compensation claim.
Treatment Must Focus on Functional Recovery and Return to Work
Under workers’ compensation insurance, acupuncture treatment must focus on helping occupationally injured and ill workers heal and return to work.
Treatment covered in the pilot project
Low back pain related to an accepted condition on a workers’ compensation claim.
When ordered by the workers’ attending provider, up to 10 treatments over the lifetime of the claim.
When documentation shows clinically meaningful improvement in pain and function.
Treatment NOT covered in the pilot project
Treatment beyond the medically necessary number of visits, not to exceed the 10 visit maximum.
Injured worker has reached maximum medical improvement.
Treatment that does not improve physical function of the industrial injury or occupational disease.
Any other modality not specifically listed.
Use of Oswestry Disability Index and 2-item Graded Chronic Pain Scale is required
The insurer uses the patients’ functional scores to assess the improvement in pain and function. Under the terms of the Acupuncture Pilot Project, must be completed and sent to the department as required under authorization and reporting.
The price of workers’ compensation insurance will go down for many businesses in Washington next year. Today, the state Department of Labor & Industries (L&I) announced that the average amount employers and workers pay for the coverage will drop by 2.5 percent in 2018.
Unlike many states, Washington employers and employees share the expense of workers’ compensation premiums.
After proposing the decrease in September, the agency hosted several public hearings around the state to take input. L&I Director Joel Sacks made the final decision this week.
“We’ve made several improvements that are helping injured workers heal, return to work sooner and avoid long-term disability,” said Sacks. “We’ve also used small rate increases in recent years to make the workers’ compensation system healthier and to build our contingency reserve. As a result, we’re able to cut premiums in 2018.”
Lower rate means businesses and employees will pay millions less
The rate decrease means employers will pay about $34 less a year per employee for workers’ compensation coverage in 2018. As a group, Washington employers will pay $67 million less in premiums. Employees will also pay less for their share.
L&I attributes the decrease to several factors, including the improved economy, employers and workers focusing on safety, and L&I initiatives that are helping injured workers recover sooner and reducing workers’ compensation costs.
One example of an improvement to the workers’ compensation system involves providing injured workers vocational support and assistance much earlier in claims. It’s helping people hurt on the job return to work sooner. The rate of workplace injuries that develop into long-term disability is down by more than 18 percent from 2012.
The 2.5 percent workers’ compensation premium decrease is an average; individual employers may see smaller or larger drops depending on that employer’s industry and claims history. For that same reason, some employers will see increases.
Steady and predictable rates
L&I is working to avoid large rate swings that make it hard for employers to plan. The agency determines the proposed rate each fall by looking closely at expected workers’ compensation payouts, the size of the reserve funds, wage inflation and other financial indicators.
Employers and workers pay into the workers’ compensation system to help cover the cost of providing wage and disability benefits, as well as medical treatment. L&I is the state’s primary workers’ compensation insurance provider, covering about 2.8 million workers and nearly 180,000 employers. The agency accepts more than 90,000 claims a year.
The new rates go into effect on Jan. 1, 2018. More information about 2018 workers’ compensation rates is available at www.Lni.wa.gov/Rates.
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.
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.
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.
