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.
KING-TV reports that a window washer was killed after falling from a building in downtown Tacoma Thursday, September 16, 2015. It happened at the Davita Building at 1423 Pacific Avenue, near the Tacoma Children’s Museum.
The Pierce County Medical Examiner identified the man killed as 30-year-old Timothy Thomas Sargent.
He worked for United Building Services out of Seattle. There was initially no word of how he fell. Tacoma Police and L&I are investigating.
The Washington State Department of Labor and Industries said this employer has been cited four of the past six inspections for serious violations related to fall prevention.
Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.
Occupational asthma (OA) is asthma that’s caused or worsened by breathing in chemical fumes, gases, dust or other substances on the job. Typical symptoms of OA are: chest tightness, wheezing, and shortness of breath. OA accounts for approximately ten to twenty-five percent of adult onset asthma. (Dykewicz, MS. Occupational Asthma: Current Concepts in Pathogenesis, Diagnosis, and Management. J Allergy Clin. Immunol. 2009; 123:519.)
Under North Carolina workers’ compensation laws, OA is considered an occupational disease pursuant to North Carolina General Statute §97-53(13). In order to obtain workers’ compensation benefits for OA, an injured worker must show that s/he was at an increased risk of developing OA as a result of his/her employment. Furthermore, the injured worker must show that his or her exposure at work was a significant contributing factor to his/her development of OA.
Treatment with a pulmonologist is essential for the injured worker’s recovery. Frequently the injured worker must avoid working in conditions (i.e. fumes) that will irritate his/her underlying condition. Certain professions are known to have higher likelihood of developing OA. For example, foam insulation installers exposed to diisocyanates, refinery workers exposed to metals (chromium, platinum, nickel), textile workers exposed to dyes, and health care workers exposed to formaldehyde are just a few examples of industries where workers are at an increased risk of developing OA. The Canadian Centre for Occupational Health and Safety published an online Fact Sheet which lists dozens of occupations where workers are at risk for developing OA.
Clearly, the best way to prevent OA is for workers to avoid using or being exposed to harmful substances. If this is not possible, then employers should make efforts to minimize employees’ exposure through ventilation systems or other methods. If you are concerned about your exposure to a substance at work, your employer should have material data safety sheets (MSDS) on site so that you can review any potential health hazards. As always, prevention and education of employees about proper handling procedures is key.
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.
For most workers injured before July 1, 2014, time-loss and pension benefit payments will increase by 4.168 percent based on the change in the state’s average wage, as announced by the Department of Employment Security on June 24.
State law requires that benefits be recalculated each year to reflect the change in the state’s average wage from the previous calendar year.
The increase also applies to pension benefits paid to family members of those who died because of a work-related accident or disease.
As a result of the increase, the new maximum monthly benefit will be $5,482.90, or 120 percent of the state’s average monthly wage. Less than 4 percent of L&I claimants receiving wage-replacement benefits collect the maximum.
A Port Orchard, WA man who was caught on video racing BMX bikes while claiming he was too injured to work pleaded guilty to stealing more than $14,000 in disability benefits.
Tony T. Perry Sr., 52, pleaded guilty to two counts of third-degree theft, a gross misdemeanor, in Thurston County Superior Court. Judge Anne Hirsch sentenced Perry to 364 days in jail, but suspended all but 15 days if he obeys the law for two years. She is allowing him to serve the 15 days in electronic home monitoring, according to the Washington Attorney General’s office, which prosecuted the case.
Judge Hirsch also ordered Perry to repay the Washington State Department of Labor & Industries (L&I) $14,422. That was how much Perry received in workers’ compensation wage-replacement checks from January 2012 to August 2013 while misrepresenting his physical abilities.
Perry paid the full amount. The money will be returned to the state workers’ compensation fund, which helps employees recover from workplace injuries.
“It’s outrageous when people try to scam the workers’ comp system so boldly. When they steal from us they’re stealing from you,” said Elizabeth Smith, assistant director of L&I Fraud Prevention & Labor Standards. “A tip from the public helped us get to the bottom of this. We appreciate it, and encourage people to tell us when they’re aware of workers’ comp fraud.”
BMX racing is an off-road, physically demanding bicycle competition typically held on dirt race courses with hills requiring riders to jump in the air.
Racing throughout the Pacific Northwest
The criminal case resulted from an L&I investigation. Investigators found that Perry began racing BMX bicycles as an amateur in January 2012, eventually competing throughout the Pacific Northwest and Nevada.
The case investigator videotaped Perry competing in two races, and found numerous Facebook posts about Perry’s racing activities, charging papers said. In a post about a May 2012 race, Perry described how he crashed and injured his ribs − but told L&I he hurt himself at home that day due to a fall caused by his injured knee.
After receiving a summary of L&I’s investigative findings in March 2014, Perry’s physician told L&I he would have ended Perry’s wage-replacement payments as of January 2012 had he known about his physical abilities.
Perry had been receiving workers’ comp benefits based on knee and other injuries he sustained when lifting a heavy box while working in grounds maintenance.
Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.
The AFL-CIO’s annual report about “the state of safety and health protections for America’s workers” has been written about in a previous year on this blog. The recently released 2015 version focuses in an in-depth manner on data from 2013 and includes around 200 pages of text, tables, details and information, along with a bit of jargon.
The report is extremely informative, and Nebraska and Iowa’s numbers will be examined in more detail in future blog posts, as these are states where the firm’s attorneys are licensed.
The report can also feel overwhelming once a person processes through the fact the each numeral on each chart represents the death of one person due to the workplace. There is also a ripple effect, as each person represented here had loved ones who both cared about and relied on that person. And for many involved, their lives changed drastically when their loved one died.
I appreciate the work, funding, thoughtfulness and effort put into compiling and analyzing the data, which includes a methodology section at the end of the report.
Here’s some sobering information from the summary.
“In 2013, 4,585 workers were killed on the job in the United States, and an estimated 50,000 died from occupational diseases, resulting in a loss of 150 workers each day from hazardous working conditions.
“Nearly 3.8 million work-related injuries and illnesses were reported, but many injuries are not reported. The true toll is likely two to three times greater, or 7.6 million to 11.4 million injuries each year.”
States with the highest fatality rate in the nation include a couple of relative neighbors: North Dakota and Wyoming. West Virginia, Alaska and New Mexico round out the top five. Lowest state fatality rates in 2013 were Hawaii, Washington, Connecticut and Massachusetts (tied) and New York and Rhode Island (tied).
In the first three months of 2015, three construction workers in Washington state died from falls. Falls account for the highest number of deaths among construction workers nationally and more than half of all worker hospitalizations across all industries in Washington.
Because of the high number of construction-related falls, the Washington State Department of Labor & Industries (L&I) has teamed up with the federal Occupational Safety and Health Administration for the second year to sponsor a “Safety Stand-Down.” The work site safety focus started last week and runs through Friday, May 15.
“It’s time to be proactive as opposed to reactive to help prevent all accidents on our job sites—especially life threatening accidents from falls.”
A safety stand-down is a voluntary event where employers take time at a construction site to discuss potential hazards and how to prevent injuries. It could be a short toolbox talk, refresher training, reviewing safety bulletins or watching a safety video.
“Fatal falls are preventable but it takes a dedicated effort by employers and workers to make it an important part of every workplace safety plan,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “We’re asking all construction employers to pause in their workday and talk with their workers about preventing these tragedies.”
As part of the effort, L&I sent educational materials to all construction employers, is running bus ads in several communities, and is promoting the event through social media.
Construction is really picking up in our state, so it’s more important than ever to reinforce the importance of fall prevention, according to John Erwin, owner of John Erwin Remodeling Inc., and former president of Olympia Master Builders. “Three construction workers have died this year in our state, which is tragic. None of us would want that to happen on our job sites. It’s time to be proactive as opposed to reactive to help prevent all accidents on our job sites—especially life threatening accidents from falls,” said Erwin.
As part of his safety stand-down, Erwin directed his staff to inspect all their ladders and ended up taking two of the more well-used but questionable ladders out of service and replaced them with new approved ladders.
Participating employers can print out a certificate of participation and add their name to a list of safety stand-down supporters. For ideas and resources or to get a certificate of participation, visit www.Lni.wa.gov/StopFalls.
Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.
Those of us who represent injured workers have known for a long time that workers’ compensation does not restore an injured worker to his pre-injury wage or status. Two reports released in March show how workplace injuries have failed injured workers and leave them deeper in debt. OSHA released a report indicating the changes in workers’ compensation programs have made it much more difficult for injured workers to receive benefits or medical expenses. Although employers pay insurance premiums to workers’ compensation insurance companies who are supposed to pay benefits for medical expenses, employers provide just 20% of the overall financial cost of workplace injuries through workers’ compensation according to the OSHA report.
This “cost shifting” is borne by the taxpayer. As a result of this cost shifting, taxpayers are subsidizing the vast majority of the income and medical care costs of injured workers. After a work injury, injured workers’ incomes average more than $30,000 lower over a decade than if they had not been injured. Additionally, very low wage workers are injured at a disproportionate rate.
Another report by ProPublica and National Public Radio found that 33 states have workers’ compensation laws that reduced benefits or made it more difficult for those with certain injuries and diseases to qualify for benefits. Those hurdles, combined with employers and insurers increasing control of medical decisions (such as whether an injured worker needs surgery) reduced the worker’s likelihood of obtaining the medical care needed.
Overall, injured workers who should be paid under workers’ compensation are receiving less benefits and their medical care is being dodged by insurers and paid for by taxpayers through Medicaid and Medicare, or by increased insurance premiums for all of us through group health insurance rate increases.
Our general sense that injured workers are faring poorly is borne out by the research.
