Category Archives: Workers’ Compensation

Workers' Compensation

Why We’re Still Killing Workers in the USA

The AFL–CIO’s annual report on job fatalities is out, and provides some interesting fodder for thought.

It’s no surprise that North Dakota – – with its “wild West” environment for oil and gas extraction on the Bakken Shale was the most dangerous place – – with 17.7 deaths per 100,000 workers versus the national average of 3.4.

Nationally, 4600 workers died on the job in 2012. While that number has fallen since safety laws were implemented in the 1970s, the decline has flat-lined over the most recent decade. It was 4.2 deaths per 100,000 workers in 2006, now still at 3.4 in 2012.

The AFL–CIO report contains maps that reflect part of the reason for the stall-out: the vast majority of the states with the highest fatality rates contain the 8 million workers in states with no federally approved OSHA safety and health plan. The report graphically portrays another salient fact: the number of federal OSHA inspectors per 1 million workers has fallen from a high of 15 in 1980 to 6.9 in 2013.  OSHA has been so underfunded over recent years that it would take an average of 139 years for available OSHA inspectors to visit each workplace in their jurisdiction just once. (In some states that number is even more staggering – – 521 years for South Dakota.)

The AFL-CIO report reflects some other interesting facts concerning the demographics of workplace fatalities – – not surprisingly, being foreign-born or Latino puts a worker at a higher risk of fatality, and homicide was the number one cause of death for women in the workplace in 2012.

But, getting back to the “oil patch” in North Dakota, we see other disturbing trends in the culture of workplace injury that accompany the decreasing application of safety regulation. With job growth tripling in North Dakota’s oil patch since 2007, while workers’ compensation filings are up, many injured workers are encouraged by employers in the extractive industries not to file, with many companies working out sidebar deals with injured workers. Injury rates are being kept artificially low by rewards for not reporting. As the AFL–CIO’s safety chief, Peg Semenario, has said, underreporting warps national safety figures in an industry that is already notoriously opaque.

And the culture of creating false indicators of workplace safety will likely have tremendous implications down the line when the 2000 tons of silica-rich sand used in the cement casing of each fracking well begins to work its way into workers’ lungs. NIOSH reported in 2012 that 92 of 116 air samples at franking sites exceeded the recommended safe levels of silica, which can lead to incurable, irreversible lung disease.

 

 Photo credit: Craig Newsom / Foter / Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)

Workers' Compensation

Need a Doctor for a WA Workplace Injury?

You have 20,000 providers to choose from – – but ONLY if they’ll see you under your workers’ compensation claim… 

The Department of Labor and Industries issued an announcement trumpeting the success of the new Medical Provider Network:

May 21, 2014: TUMWATER — Injured workers in Washington state can now choose from more than 20,000 health-care providers in the Department of Labor & Industries’ (L&I) medical network. The network went live in 2013 to serve workers who need ongoing medical treatment for job-related injuries or illness.

“We have more than doubled the size of our network since it began,” said Vickie Kennedy, L&I’s assistant director for Insurance Services. “Ready access to high-quality care helps our injured workers quickly return to good health and their jobs.”

L&Idata show that 99 percent of injured workers statewide live within 15 miles of at least five primary-care providers who are in the network. Patients also have access to a broad range of specialists through the provider network.

Injured workers in Washington can see any doctor for their first visit when a claim is filed, but only network providers can deliver ongoing treatment. Workers can search for providers at www.FindADoc.Lni.wa.gov; the directory is updated daily.

The medical provider network is part of the historic 2011 workers’ compensation reforms designed to improve outcomes for injured workers, reduce disability and cut costs for the state’s workers’ compensation program. The standards for providers to be admitted to the L&I network are similar to those of other health networks in Washington state and around the country. Requirements include proof of medical liability insurance and professional licenses that are free of restrictions.

Our experience, however, is that these numbers are artificially bloated and do not reflect the reality faced by injured workers seeking a treating provider. Several clinics in the state have closed their practices to workers’ compensation claimants, leaving their current patients scrambling to find new attending physicians and refusing to take on any new patients with workers’ compensation claims. Many of those that will still provide treatment to injured workers limit their practice to only take on claims that are less than one year old, or claims that do not have legal representatives involved.  Many of the major medical providers – large hospitals, clinics, etc.. – had all of their physicians register with the Department of Labor and Industries for billing purposes even if those physicians are not actively taking workers’ compensation claims.

When our clients are seeking an attending physician under their workers’ compensation claim, they will start with the FindADoc website and make phone calls until they are able to get an appointment.  In many cases, the doctors want to review medical records before setting an initial appointment.  We often send records out to a handful of doctors before finding one willing to get involved.  Claimants living outside of the major metropolitan areas can have an even tougher time finding a provider.  Many of our clients travel long distances to see their physician as there are no options close to their home.

I have participated in the quarterly meetings offered by the Department of Labor and Industries to update stakeholders about the progress in implementing the network.  The meetings are held with members of the Department of Labor and Industries and medical providers that are providing input and assistance to the Department with the design and implementation of the network.  Based on the discussions with the panel members, I believe that the Department honestly believes in the success of their network, but that their data is not telling them the whole story. 

I have made recommendations for changes that could be made to the website that could indicate the level of recent billing activity for each provider – not specific numbers, but a simple color-coded graph to indicate general levels of billing.  For example, a provider who has multiple billings submitted to the Department for payment in the current quarter could have a green icon to indicate a high level of activity.  Those providers with no current billings could have a red icon, and maybe providers with a small level but still some active billings could be orange.  The Department has access to the data for provider billings and could, in theory, tap into that data to make such a change.  I am told there is no funding for this type of improvement at this time, though.

 Photo credit: banjo d / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Workers' Compensation

“No Trauma” Does Not Mean No Injury

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

Mr. Domer describes a scenario that we run into on a regular basis in our practice – adding a medical condition not noted on the original physician’s report can be troublesome and often requires litigation.

Feel free to contact our firm for assistance with this or other issues in a Washington State workers’ compensation claim.

I’ve been investigating Wisconsin and national fraud statistics in worker’s compensation to prepare for a national presentation I am making in Cape Cod in July. One fascinating and recurring basis for denial of worker’s comp claims (and potential claims against employees for fraud) stems from an insurance carrier’s review of the initial medical report.

Often the physician or emergency room nurse, physicians assistant or First Responder will ask an injured worker “Did you have any trauma?” If the answer to the question is “no”, the medical records will routinely indicate “no trauma”. This information is translated by the insurance carrier as a denial that an injury occurred. The level of medical sophistication for an injured worker is routinely limited. Most of my clients (and based on inquiries with other workers’ attorneys, their clients as well) believe a trauma is something akin to getting hit by a bus. They do not equate the notion of trauma with lifting a heavy object such as a table or a box. The criteria for traumatic injuries in most states, including Wisconsin, is that a single incident or episode caused the injury or aggravated a pre-existing condition beyond a normal progression. In many cases a lack of “traumatic injury” at the initial medical presentation is not an accurate indication of whether a traumatic injury actually occurred.

Workers' Compensation

Stanwood, WA Business Owner Gets Prison Time in Nearly $300,000 Disability Fraud

A Stanwood, WA business owner must spend a year in prison for a scam that defrauded state and federal disability programs and his union, U.S. Attorney Jenny A. Durkan announced Thursday.

Richard Stalkfleet, 66, of Stanwood, collected more than $295,000 in disability and pension benefits for eight years while running a wood chip distribution company that earned more than a half-million dollars annually, according to a news release from the U.S. Attorney’s office in the Western District of Washington.

Washington State Department of Labor & Industries investigators played a major role in uncovering Stalkfleet’s activities. They conducted surveillance of Stalkfleet, and found him working and driving trucks while receiving Social Security Disability and Teamster Pension Plan benefits and more than $130,000 in L&I workers’ compensation benefits, according to federal prosecutors.

Read more about Stalkfleet’s sentence and the L&I investigation in the U.S. Attorney’s news release at  www.justice.gov/usao/waw/

 

Photo credit: ABN2 / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Workers' Compensation

Summer Means Safety Reminders for Teen Workers

L&I urges workplace safety for teens as summer hiring season nears

Teens are gearing up to search for summer jobs and the Washington State Department of Labor & Industries (L&I) is urging employers, parents and others to support safety during “Safe Jobs for Youth Month” in May.

A total of 477 youth ages 12-17 were injured in the workplace in 2013, making this year’s observance more important than ever, said Mary E. Miller, occupational nurse consultant with L&I and a youth employment expert. Of the total, 156 were in the food and hospitality industries. The next largest total, 66, occurred in the retail trades. There were no fatalities.

“Teens are eager to work and may not question a workplace situation that doesn’t seem right,” Miller said. “We’re trying to ensure youth perform safe and appropriate work and employers, parents and teachers can all help.”

Gov. Jay Inslee signed a proclamation making May “Safe Jobs for Youth Month” across the state. More information is available at www.TeenWorkers.Lni.wa.gov. The agency also offers presentations from injured young workers for students. Miller can provide a separate talk for employers and teachers.

In recent years, the number of injuries has increased despite an overall decrease the past decade. Injuries in 2003 totaled 1,135. In 2011, injuries reached a low of 425 before increasing the next two years. Injuries range from lacerations, strains and sprains to more serious fractures and concussions, Miller said.

“Employers are eager to give young workers a start in the world of work” Miller noted. “The result is we need to continue to help employers provide teens with tasks appropriate to their age.”

In general, 14- and 15-year-olds may perform lighter tasks, such as office work, cashiering and stocking shelves. Work assignments for 16- and 17-year-olds can be less restrictive and can include cooking, landscaping, and some use of powered equipment and machinery. The limits on the hours of work for all minors vary by age.

Generally, if safety equipment other than a hard hat, eye protection or gloves is required, then it’s not an appropriate job for minors. All minors are prohibited from working with powered equipment such as meat slicers and forklifts, Miller noted.

In agriculture jobs, restricted job duties differ for youth. The agency has specific information on its website at its Agricultural Jobs for Teens page.

 

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Workers' Compensation

Obesity Prevalence by Occupation in Washington State

Truckers, movers, and police and firefighters are likeliest to be obese. Doctors, scientists and teachers are the healthiest.

Those are the results of a first-of-its-type study the Washington State Department of Labor & Industries sponsored connecting what you do for work with obesity. The study also examined the percentage of workers in specific occupations who smoke, have adequate fruit and vegetable servings, participate in leisure time exercise and report high physical demands of their job.

“This is the first state-level study using the Behavioral Risk Factor Surveillance System data to estimate occupation-specific obesity.” 

“The objective of the research was to identify occupations in need of workplace obesity prevention programs,” said Dr. David K. Bonauto, associate medical director for L&I’s research division. “Employers, policy makers and health practitioners can use our results to target and prioritize prevention and health behavior promotions.”

The study, “Obesity Prevalence by Occupation in Washington State, Behavioral Risk Factor Surveillance System,” was published earlier this year by the Centers for Disease Control and Prevention. The study was based on more than 88,000 participants the CDC contacted in the state in odd years from 2003-2009. It found that nearly 1-in-4 workers statewide were obese.

“We know obesity poses a threat to public health,” Dr. Bonauto said. “This is the first state-level study using the Behavioral Risk Factor Surveillance System data to estimate occupation-specific obesity. All states within the U.S. could have this data if questions about occupation and industry were added to many state and national health surveys.”

Truck drivers were the most obese, nearly 39 percent. The proportion of current smokers was highest also for truck drivers, who – with computer scientists and mechanics – had the lowest proportion of adequate servings of fruits and vegetables. “Truckers are likely influenced by the availability of food choices, such as fast food and convenience stores,” Dr. Bonauto noted.

The study has its limitations. Because researchers used self-reported height and weight, there might be an underestimate of obesity. Also, the body mass index results don’t distinguish between fat and muscle mass. Police and firefighters, for instance, had a high prevalence of obesity but also had the highest proportion of vigorous leisure time physical activity.

Those with less education and an income less than $35,000 had a significantly higher likelihood of being obese, according to the study. Workers who had regular servings of fruits and vegetables and adequate physical exercise were less likely to be obese.

 Photo credit: kennethkonica / Foter / Creative Commons Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0)

Workers' Compensation

How Attorney Fees Work in Washington Workers’ Compensation Cases

Frequently, Causey Law Firm gets calls from individuals whose cases have been appealed from the Department of Labor & Industries to the Board of Industrial Insurance Appeals. Most often those individuals have already spoken with one or more attorneys who has declined to take their case. Undoubtedly this is a scenario faced by most—if not all—workers’ compensation practitioners at one time or another. In many such instances, the unfortunate reality is that the costs of litigating the individual’s case far outweigh the potential monetary benefit. Welcome to the world of contingent fees.

A contingent fee is a “fee charged for a lawyer’s services only if the lawsuit is successful or is favorably settled out of court . . . . Contingent fees are usually calculated as a percentage of the client’s net recovery.” Black’s Law Dictionary 338 (2004). Put somewhat less artfully: your attorney doesn’t get paid until and unless you do. The underlying purpose of contingent fee billing is ostensibly beneficial to poor or disadvantaged individuals: it provides an incentive for an attorney to take on a case where a person cannot afford that attorney’s hourly fee. But there is a downside as well.

Where monetary benefits are not at issue, there is little—if any—incentive for an attorney to take on a case. This frequently arises in the context of Washington State workers’ compensation cases where coverage of medical treatment is at issue. For instance, the Department of Labor & Industries may deny coverage of a surgical procedure under the person’s workers’ compensation claim. It might also deny coverage of a certain medication or device, or of a condition in its entirety. In those cases, it could cost $5,000 or more to present a case at the Board of Industrial Insurance Appeals. If there are no concurrent or resultant monetary benefits to the injured worker at stake, the attorney does not get paid. While we attorneys certainly do take on these cases from time to time, it would be unsustainable to take on every such case.

There are other models. For instance, under the Longshore and Harbor Workers Compensation Act (LHWCA), the attorney is paid an hourly fee for any services provided to an injured worker when the employer or its insurance carrier disputes the injured worker’s entitlement to benefits—whether monetary, medical/surgical, or otherwise. The fee is payable to the injured worker’s attorney by the employer’s insurance carrier. This has two significant effects. First, it ensures that there is an incentive for attorneys to take on cases where there are non-monetary issues at stake, such as entitlement to additional treatment or coverage of a disputed medical condition. Second, it allows the worker, in cases involving monetary compensation, to keep the full value of his or her disability compensation.

Washington State should seriously consider the idea of providing for an hourly attorney fee in so-called medical only cases. This is not a new idea. Draft bills have floated around for years. But the issue ought to be seriously reconsidered in light of the increased litigation that has resulted directly from the legislature’s adoption of laws allowing increased employer participation in the system through so-called “retro groups.” These groups aggressively fight workers’ compensation claims and allowance of treatment under those claims. They are incentivized to do so through refunds of their workers’ compensation premiums. Why shouldn’t injured workers’ and their attorneys have an incentive to pursue entitlement to medical treatment which would help them get back to work?

 Photo credit: quaziefoto / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Workers' Compensation

Mercer Island Construction Firm Recognized by L&I for Safety Excellence

Bayley Construction in Mercer Island has been recognized with a safety and health award from the Department of Labor & Industries (L&I) for its exemplary safety and health prevention program at two worksites.

Bayley Construction is the first construction company — and only the sixth company in the state — to achieve recognition through the Safety through Achieving Recognition Together (START) program.

START recognizes workplaces with exemplary safety records that have shown a commitment to health and safety at work. It is modeled on a federal program.

Bayley Construction was awarded with START certification at its corporate office in Mercer Island and at its equipment yard in Bellevue.

“The goal of START is to showcase businesses with excellent safety and health programs as a way of encouraging other companies to improve their safety efforts,” said Lynda Stoneberg, Consultation Program Manager for L&I’s Division of Occupational Safety and Health (DOSH). “We hope the companies who earn START certification will share their experiences with other employers who might have safety challenges.”

To participate in the program, employers must have an injury rate below their industry’s average for at least one year and allow safety and health experts to visit the worksite and review workplace hazards, examine safety and health programs, and interview workers and managers.

“We are really proud of this recognition as we always want to be the best that we can be, and safety goes right along with that,” said Ron Bayley, Chairman and CEO.

L&I presented the certificate to the company at a special ceremony last month.

Bayley Construction has 75 employees at its Mercer Island headquarters, where it oversees company operations in three western states. At its equipment yard in Bellevue, employees are responsible for the mobilization and de-mobilization of project sites, inventory, tracking and maintenance of all hand and small tools as well as providing will-call services and pickup and delivery services for Washington project sites.

For more information on START, visit www.Lni.wa.gov/Safety/Topics/AtoZ/Start/ .

Workers' Compensation

Are Firefighter Cancer Deaths an Occupational Disease?

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Workers’ compensation has provided benefits or coverage for occupational diseases for generations. Occupational disease is defined by Nebraska law as: “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.” This is a typical definition of an occupational disease. Some examples of recognized occupational diseases are black lung disease for miners, mesothelioma for asbestos workers, lung disease for rubber workers, and leukemia for workers exposed to benzene.  

More studies are done to determine the cause of diseases as medical science advances. A recent study concludes that smoke and chemical exposure by firefighters may cause higher rates of cancer among firefighters. Firefighters, while usually healthier than the general population, have a higher incidence of cancer. More studies need to be done to determine if the peculiar exposure to smoke causes or aggravates cancer.

As medicine and science evolve, there may be more recognized “occupational diseases” and more workers and their families compensated for harm caused by the workplace.

Workers' Compensation

Mileage Reimbursement Set at 56 Cents per Mile for 2014

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

Getting reimbursed for mileage and travel expenses is often part of the medical process in a workers’ compensation claim. However, it’s essential to keep detailed receipts and have a plan for submitting those expenses in a timely manner.

The federal government has set the 2014 mileage reimbursement rate to 56 cents per mile. This rate was effective Jan. 1, 2014. This is a decrease from 56.5 cents per mile last year, but the price of gasoline is also slightly cheaper.

Generally speaking, the federal rate changes annually. However, when gas prices went soaring in 2008, a mid-year increase went into effect.

As a reminder from a blog post that firm partner Todd Bennett wrote in 2011, injured workers can be reimbursed for activities such as “travel to seek medical treatment, pick up medications, or while participating in a vocational rehabilitation plan.”

The best way to do this is to work with your attorney and legal assistant to keep track of all mileage. This can include appointments for Independent Medical Exams (IME), too. Then your attorney can help you get reimbursed. 

It is often essential to save receipts and keep a record for yourself of your doctor’s visits and other reimbursable trips, including physical therapy and trips to pick up medication. Providing that log to your attorney and saving receipts incurred from specific doctor visits and other reimbursable trips creates a “narrative” that makes it easier to justify those expenses.

Because money is always tight for injured workers, contact an experienced workers’ compensation attorney if you have questions about a specific situation.