Category Archives: Workers’ Compensation

loss of sense of smell, loss of sense of taste, olfactory nerve, permanent injury, Workers' Compensation

Can I Get Workers’ Comp Benefits For My Loss of Sense of Taste and Smell?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

What is your sense of smell and sense of taste worth to you? These senses are truly priceless. In a medical malpractice case, the plaintiff – a chef – was awarded $1.5 million in damages when he lost his sense of taste following a tonsillectomy when the surgeon failed to disclose that this was a risk.

 

Unfortunately, sometimes an injured worker may suffer a head injury or other type of injury that causes him or her to lose his/her sense of smell and/or taste. While no amount of money will ever make a person whole after losing one of their senses, North Carolina workers’ compensation law allows for an injured worker to be awarded some compensation for the loss of sense of smell and taste if the loss was a result of compensable workplace injury. Under North Carolina General Statute § 97-31(24), the “loss or permanent injury to any important organ or part of the body for which no compensation is payable under any other subdivision of this section. . .”. The maximum award for the loss of both senses (combined) is capped at $20,000 in North Carolina.

 

North Carolina law treats the “loss of sense of taste and smell” as the loss of an important internal organ.” See Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362 (1982).  In 1997, the North Carolina Court of Appeals (Bess v. Tyson Foods, Inc., 125 N.C. App. 698, 482 S.E.2d 26 (1997) held that the injured worker was entitled to compensation for permanent damage to the olfactory organ but not for compensation for two separate compensable injuries. As a result, in North Carolina the most a plaintiff can receive for losing his or her sense of taste and smell is $20,000.

 

Based on a brief look at other states, it appears that many states do not compensate injured workers for their loss of sense of taste or smell at all. When compensation is allowed, the states have compensation caps less than North Carolina’s cap.  For example, Connecticut allows 17 weeks (max) compensation for loss of sense of taste, and 17 weeks (max) for loss of sense of smell. Minnesota allows a 1% disability rating for total loss of taste and 1% rating for total loss of sense of smell. Washington caps the total body impairment for the loss of taste and smell at 3% (or a max award of $5,977.41). Finally, Wisconsin has a cap of 2.5% for permanent total disability for losses of taste and smell. 

Workers' Compensation

WA L&I Proposes a 0.7% Average Rate Increase – Hearings Scheduled

The Washington State Department of Labor and Industries (L&I) announced a 0.7% increase to the average base rate for workers’ compensation premiums across 324 risk classifications for 2017.

The adjustment will:

  • Ensure steady and predictable rates.
  • Benchmark against wage inflation (this happens automatically in other states).
  • Slowly rebuild reserves to protect against unexpected changes.

The proposed rate will help keep pace with wage inflation, which impacts injured worker claim costs.

Washington State is one of the few states where workers’ compensation premiums are shared, with 50% paid by employers and 50% paid by workers through payroll deductions.

Six public hearings will be held across Washington State on the proposed 0.7% average base rate increase to workers’ compensation premiums. The hearings will start at 9 a.m. on the following dates and locations:

 

·         Vancouver, WA, Oct. 26, 9 a.m., Marshal Community Center

 

·         Tukwila, Oct. 27, 9 a.m., Dept. of Labor & Industries

 

·         Everett, Nov. 1, 9 a.m., Everett Community College

 

·         Spokane Valley, Nov. 2, 9 a.m., Spokane CenterPlace

 

·         Richland, Nov. 3, 9 a.m., Richland Community Center

 

·         Tumwater, Nov. 4, 9 a.m., Dept. of Labor & Industries Headquarters

 

Go to www.Lni.wa.gov/Rates to:

  • Find the proposed rate for your assigned risk class.
  • Read the news release and Q&As.
  • Find out where to send written comments if you do not attend a public hearing.
  • Watch videos to learn more about controlling workers’ comp costs.

Workers' Compensation

Former Corrections Officer Charged with Felony in $100,000 Workers’ Comp Scam


A former corrections officer stands accused of holding three security jobs while claiming his on-the-job injury was so serious he couldn’t work.

A Washington State Department of Labor & Industries (L&I) investigation caught John J. Gruden, 43, on video jogging on a treadmill and sidewalk, and driving to work at the Phoenix Police Department. All of this occurred while he was receiving workers’ compensation disability payments totaling more than $100,000 over five years.

Gruden, who was injured while working as a corrections officer at Monroe Correctional Complex, has been charged with felony first-degree theft based on his work activity.

Gruden is now believed to be living in Michigan.

The Washington Attorney General’s Office is prosecuting the case based on L&I’s investigation. The charge was filed in Snohomish County Superior Court.

Injures ankle at Monroe prison

Gruden injured his right ankle and foot when someone fell on him during training at the Monroe state prison in May 2011.

That August, he moved to Arizona, where he regularly declared on official forms and told L&I vocational counselors that he could not work, and wasn’t working, due to his on-the-job injury, charging papers said. His declarations, coupled with physician confirmations, allowed Gruden to receive L&I payments to replace part of his wages.

Surveillance to check injuries

In 2014, an L&I claim manager requested surveillance to check on the extent of Gruden’s abilities and injuries, and closely monitored his case. In 2015, the claim manager requested additional surveillance, which revealed Gruden was driving to a job.

L&I, with the help of an out-of-state investigation firm, determined Gruden had actually been working full time as a security professional for nearly the entire time he told L&I he wasn’t employed.

 

Police assistant for Phoenix Police

Starting in the fall of 2011, he worked for a private security firm for eight months, then as a public safety aide for Maricopa County Community College for two-and-a-half years. His annual salary at the community college was posted at more than $34,600, charging papers said.

While still working at the community college, he was a full-time police officer assistant/municipal security guard for the Phoenix Police Department from July 2014 until early 2016.

“Making false claims about your work status to get workers’ comp benefits is a crime,” said Elizabeth Smith, assistant director of L&I’s Fraud Prevention & Labor Standards. “Fraud raises costs for the employers and employees who depend on the workers’ comp system to help injured workers heal and return to work. Tell us if you know of someone who’s trying to cheat the system.”

Report fraud on L&I’s Fraud Prevention and Compliance webpage or call 888-811-5974.

 

Photo credit: Legozilla via Foter.com / CC BY-NC-SA

Workers' Compensation

Tips on Your Workers’ Compensation Claim

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I just returned from New Orleans where I made a presentation to about 150 workers’ compensation lawyers (both for workers and for employers) on “Case and Client Evaluation In Workers’ Compensation”.

Since many in the audience represented insurance companies and employers, I paid particular attention to their response to my presentation. As one would expect, their best chance to win a case on behalf of the employer and insurance carrier occurs when several items come into play:

  1. When there is no actual report of the injury. [Worker’s Tip: No matter how small the work injury, make sure it is reported in some fashion – cell phone, voice recording, or Accident Report and the worker keeps a copy (BEST).]
  2. Failure to report that a work injury occurred to the first treating practitioner (whether Emergency Room, employer-directed medical facility, hospital, or primary care physician). The single most difficult hurdle in a workers’ compensation claim involving a traumatic injury occurs when no report of the injury is found in the initial medical record.
  3. In “Occupational Exposure” cases, no discussion with the doctor about work duties or prior incidents. (In Wisconsin, a worker can recover for workers’ compensation in one of two ways: 
    1. A traumatic injury where a single incident has caused the disability (lifting a box, falling, etc.)
    2. Occupational Exposure, where the wear and tear of a worker’s job causes the disability over time. In this latter category, workers routinely do not indicate with any kind of specificity the type of work they perform when they see the doctor.

These three tips can help us as workers’ compensation lawyers win claims, more so than any “Clarence Darrow” court room techniques or strategies.

Workers' Compensation

WA Preferred Worker Program – New Incentives to Assist Return to Work

Washington’s Preferred Worker Program provides an opportunity for employers to save money when hiring experienced, highly-qualified workers. Although there is no direct monetary benefit to the injured worker, having Preferred Worker status may assist the injured worker seeking to be hired due to the benefits available to the employer. The new preferred worker benefits to encourage the employment of injured workers with a permanent disability became effective January 1, 2016.

A worker may be certified as a “preferred worker,” in the sole discretion of the supervisor or supervisor’s designee, if he or she has an open state fund insured claim for an industrial injury or occupational disease that results in a permanent disability that may be a substantial obstacle to employment.

Permanent disability is defined as

  • a physical or mental condition, caused by the industrial injury or occupational disease which is fixed and stable, and from which, within the limits of medical probability, further recovery is not expected; and
  • the attending provider or other appropriate specialist within the medical provider network has documented work restrictions that prevent the worker from returning to the job of injury; and
  • the work restrictions are supported by medical findings appropriate to the worker’s physical or mental condition.

“Substantial obstacle to employment” means 1 or more of the following limitations apply: 

  • The worker is unable to perform at least 1 of the essential functions of the job of injury. 
  • L&I finds the worker eligible for vocational retraining.
  • The worker is permanently restricted to a lower category of work, for example, a worker previously able to perform heavy work is permanently restricted to sedentary or light work.

An employer must employ the certified preferred worker in a job that

  • will continue to be available into the foreseeable future, and
  • is confirmed as consistent with the worker’s permanent work restrictions by
    • the health care provider, and
    • the credentialed vocational rehabilitation professional who meets the qualifications in Chapter 296-19A-210 WAC.

The final determination will be made by L&I’s credentialed vocational rehabilitation professional.

The employer will not be eligible for preferred worker incentives if the offered job is:

  • The job of injury with minor or no modifications.
  • Work that is beyond the worker’s medical restrictions.
  • Work that requires training beyond the usual and customary training provided by the employer to similar employees.
  • On-the-job training.

In no case will the employer receive any preferred worker benefits until all required documentation is received by L&I. The employer must submit to L&I:

  • A copy of the completed job analysis or L&I’s job description form, approved by the worker’s health care provider, and
  • The job offer, signed by the worker, and
  • L&I’s Preferred Worker Request form, available on L&I’s website, completed and signed by the employer.

After the offered job is confirmed as approved by L&I’s credentialed vocational rehabilitation professional, preferred worker benefits can be granted. The benefit start date will be no earlier than the first work day after L&I receives the employer’s completed documentation.

Photo credit: Beechwood Photography via Foter.com / CC BY-NC-SA

Workers' Compensation

Seattle Tunnel Project Injuries Result in $700,000 in Claims

Story first published by the Associated Press, via KING5.com.

Records show injuries suffered by workers on Seattle’s downtown tunnel project last year resulted in about $700,000 in workers’ compensation claims. The contractor was cited and fined twice in 2015 for safety violations.

A review of worker safety records by The Associated Press shows workers sustained injuries like an amputated foot, a fractured hand and a fingertip crushed so badly it had to be surgically removed.

Sixty of those injured workers filed workers’ comp claims in 2015. Since 2012, 185 workers have filed injury claims that are expected to top $2.5 million, according to data from the state.

Laura Newborn, spokeswoman for the Washington State Department of Transportation, says the tunnel contractor logged more than 1.2 million hours of work in 2015. She says most of the workers’ compensation claims were for injuries that didn’t result in time away from work.

Photo credit: WSDOT via Foter.com / CC BY-NC-ND

Workers' Compensation

Comment Period: New Surgical Knee Guideline for WA State

A new Surgical Knee Guideline for WA State Workers’ Compensation claims has been proposed.  It is an in-depth, step-by-step, breakdown of the criteria for authorization of treatment.  The proposed guidelines are subject to public comment.  The window for comment is now open through 5:00pm on Monday, April 11, 2016.  The public may comment by mail, fax, or email.  Details for comment. 

The Department’s Industrial Insurance Medical Advisory Committee and its Surgical Knee Guideline Subcommittee developed this treatment guideline as a best practice standard for surgical treatment of certain knee conditions. Providers who are in the department’s Medical Provider Network are required to follow this guideline as it applies to the treatment they provide to injured workers.  

A draft of the Surgical Knee Guideline will be presented to the Industrial Insurance Medical Advisory Committee in an open public meeting on April 28, 2016 (see the L&I website for meeting details). The department’s response to all public comments will be available, and there will be time on the agenda for public testimony.

Workers' Compensation

Qualis in Wonderland

“My dear, here we must run as fast as we can, just to stay in place. And if you wish to go anywhere you must run twice as fast as that.”  ― Lewis Carroll, Alice in Wonderland

Despite having been a paralegal in the field of workers’ compensation for over a decade, I am still surprised by the new things I learn having to do with the administration of claims. This happened just recently when a client called me, asking me to check on authorization of an MRI that had recently been requested by their attending doctor. I went to the only source available for such information:  the Claim and Account Center. I scanned the notes and imaged documents for anything resembling a note from Qualis Healthcare, the company to which the Department of Labor and Industries sub-contracts for utilization review services. Zero.  Zip. I assumed the doctor actually sent their request in, so I left a message for the claims manager asking them to look into it. The reply came in the form of a secure message. They had not received any recommendations from Qualis regarding an MRI. 

A day or so passed and my client contacted me, again asking for status. I repeated my search on CAC. Again, nothing. I asked my client to have their attending doctor refax the request to Qualis, certainly the fact that I was not able to see any sort of review online meant they most likely had not received it. A day later my client contacted me to tell me that their attending doctor had contacted Qualis and was told that MRI requests could be authorized directly by claims managers and that any recommendation made by Qualis can be overturned by the Department depending on the specific issues in the claim. To be on the safe side I told my client to have the attending provider send a fax to both the claims manager and  Qualis, just to cover all our bases. I again contacted the claims manager to be on the lookout.  A few days later, she again informed me that she had not received any authorization recommendations from Qualis, and clearly, she was not comfortable authorizing the MRI without some input from them.

A week has passed. Nothing has happened. I am annoyed. My client is really annoyed. Treatment is stalled because guess what…we need an MRI! So I called Qualis myself. This is not my first time making this phone call. I have called Qualis (which I liken to the Great and Powerful Oz, the entity behind the curtain with all the power…who are these people anyway?) many times, mostly to check on receipt of treatment requests from providers when the request seems to be languishing. I have always had receipt of treatment requests confirmed by some human on the other end of the phone.  But not this time. This time, they asked my name, where I was calling from, my birthdate, the name of my first born child….ok not really. But they asked for a heck of a lot more information than they ever wanted previously.  I identified myself, my client’s name and claim number and the reason for my call. In my heart, I was grateful for the added level of security, I mean I was calling to find out about medical treatment after all, but in my head I was simply annoyed that I had to take this step.

I was immediately told that Qualis is “not allowed to speak to attorney’s offices” and that any request I had needed to be addressed by a supervisor or director. Even if we represent the claimant? Yes, even then.  So I was politely placed into said supervisor/director’s voicemail to be lost forever, presumably. 48 hours passed. A lifetime in a claim, especially when you are waiting for treatment.  No call back.  Qualis has obviously not adopted the Department’s return call policy. I decide to harass the claims manager since I am allowed to talk to her and by some miracle, I actually reach her! She tells me Department employees aren’t even allowed to contact Qualis. What? As a third party contractor, Qualis is only allowed to speak to the providers who are making treatment requests.  The appropriate protocol is for the doctor to make the request to Qualis and also make the follow-up calls to ensure their request was received and is being reviewed. The only thing she can do is write to the Office of the Medical Director on my behalf.

Please remember the only thing I am trying to do is confirm that a request for an MRI was received. I am not looking for a specific diagnosis or treatment recommendations, I just need to confirm that the people behind the curtain got a request from a doctor.  Does Qualis or the Department actually believe that these doctors, many of whom are reluctant to treat injured workers in this system to begin with, are willing to not only go through the trouble of making a request to some random third party to see if their treatment suggestions are appropriate, but are also going to take the time to follow-up? I think we all know the answer.

By not allowing any other source to make this confirmation, not even the claimant (yes, I had my client try and he was shuffled off to some unknown voicemail too with the same explanation I was given) we are slowing down an already slow process , essentially, to a standstill. This is EFFICIENCY FAILURE in a system that very desperately needs every ounce of efficiency written into its protocols.

Maybe I was wrong, maybe it isn’t The Wizard of Oz but another fairy tale we are living in…

 

Photo credit: Yuliya Libkina via Foter.com / CC BY

 

injured at home, telecommuting employees, Workers' Compensation

I was injured at home while working for my employer. Am I entitled to workers’ compensation benefits?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

We’ve all seen the ads for “work from home” jobs (spoiler alert – many are scams). However, corporations like Apple, IBM, CVS, and many, many more are frequently advertising work-from-home or telecommuter jobs to employees thus providing a flexible work schedule. The question then arises – what happens if the telecommuting employee is injured at home? For example, what if the employee is injured during a personal coffee break? What if he slips on his driveway? Or, if she trips over her pet while walking to her van to get work supplies?

 

In deciding on whether an employee’s injury may be compensable, courts have generally considered (1) how regularly the employee works from home, (2) the presence of work equipment at home (e.g. work computer or corporate phone), and/or (3) other conditions particular to that employment that make it necessary for the employee to work from home. The courts specifically look to whether the employee is working from home for his or her convenience, or if it’s necessary from the employer’s standpoint that the employee work from home (e.g. there is no other suitable place of employment offered by the employer).

 

For example, in Utah, the Court of Appeals held that a sales manager who was spreading salt on his driveway in anticipation of an important business delivery sustained a compensable slip and fall at work. The Court determined that the manager’s motivation in spreading the salt was to assist the employer’s business. [AE Clevite Inc. v. Labor Comm’n, 2000 UT App. 35, 996 P.2d 1072 (2000)]. Also, where a custom decorator for J.C. Penney was walking out to her van in her garage to get fabric samples and tripped over her dog, that injury was also compensable [Sandburg v. J.C. Penney Co, Inc., 260 P.3d 496 (2011)]. The Court explained that the home premises was also her work premises and the decorator had to keep samples in her van to show potential customers.

 

The bottom line is that when telecommuters are injured at home during the actual performance of their jobs, regardless of how insignificant, the injury may be compensable.

 

Workers' Compensation

Two Percent Average Increase in WA Workers’ Comp Rates for 2016

Every fall, the Washington State Department of Labor & Industries (L&I) sets workers’ compensation rates for the following year. As wages and health care costs rise, the cost of providing workers’ compensation insurance goes up. This year, the department is proposing an average 2 percent rate increase for 2016.

Employers and workers around Washington pay into the workers’ compensation system so they’re covered if someone gets hurt on the job or becomes ill from something they’re exposed to at work. Last year, L&I covered almost 90,000 work-related injury and illness claims in our state.

L&I takes a close look at expected workers’ compensation payouts, the size of the reserve fund, wage inflation and other financial indicators to determine the proposed base premium rate. The agency is also working to cut costs to help keep rates as low as possible.

“When workers’ compensation rates are like a roller coaster ride, it frustrates everyone. We’re not going to do that. I’m committed to keeping rates steady and predictable,” said L&I Director Joel Sacks. “We’ve worked hard to decrease the costs of running the program, which is one of the reasons we can propose a rate increase that’s well under the wage inflation rate. Still, this small increase will help build the reserve funds needed to keep our program financially healthy.”

The proposed increase comes out to a little more than 1 cent per hour worked. Workers’ compensation premiums help cover the cost of providing wage and disability benefits, as well as medical costs for treatment of injuries and illnesses. The reserve fund protects the system against the unexpected.

 

Workers’ Comp Facts:

  • L&I is the state’s primary workers’ compensation insurance provider, covering about 2.6 million workers and nearly 170,000 employers.

  • The proposed rate is an average. An individual employer’s actual rate change may be more or less depending on that employer’s industry and history of claims that result in wage replacement and/or disability benefits.

  • More than 80,000 claims are accepted each year through the Washington State Workers’ Compensation State Fund.  

 

Cutting workers’ compensation costs

Tens of thousands of workers in our state are injured on the job every year, and Washington’s workers’ compensation system is always ready to help them, their families and their employers. 

L&I has several initiatives underway that focus on helping injured workers heal and get back to work, improving service and reducing costs. That includes:

  • Promoting injury prevention.
  • Ensuring injured workers receive quality health care.
  • Supporting employers who want to keep injured workers on a job.
  • Improving the workers’ compensation claims process.

These and other improvements and efficiencies have resulted in hundreds of millions of dollars in savings in the past year.

 

Keeping the system healthy and rates steady

L&I uses wage inflation as a benchmark to help determine rates for the coming year because as wages climb, the cost of providing workers’ compensation coverage rises. Washington’s most recent wage inflation number is 4.2 percent. Significant cost savings by the agency are allowing for a proposed increase well under the wage inflation rate.

“Eliminating major swings in rates makes it much easier for business owners to budget for their workers’ comp costs. And by using wage inflation as a benchmark, we can keep up with rising costs of providing insurance while making sure we have a reserve fund ready for tough times,” said Sacks.

More information regarding the proposal is available at www.Lni.wa.gov/Rates. Final rates will be adopted by early December and go into effect Jan. 1, 2016.