Our office routinely cautions injured workers against any Facebook postings after a work injury for just that reason. While clients may feel that this impinges on their “private” life, they need to be aware that the insurance company will scour the internet, past employment histories, and medical records for any information that can be used in defense of a claim. Whether or not the photos are related to the injury or the need for medical care, they can often affect client credibility. In fact, we have dismissed several claims because of Facebook postings—and had to salvage some settlements due to post-compromise social media postings! Tom Domer is one of the editors of the national magazine for the Workers Injury Law and Advocacy Group (WILG) called the Worker’s First Watch. This month’s issue contains an article (starting on page 37) on the dangers of social media and its use against injured workers and worker’s compensation proceedings (the link is to a PDF document).
Today’s post comes from guest author Tom Domer from The Domer Law Firm. Just as described by Mr. Domer in the following article, Washington State sports players are covered under the same workers’ compensation laws that govern the rest of the Washington work force. Causey Law Firm has represented several professional athletes with memorable names, which is fun until it comes time to explain that their ratings of permanent impairment are based on a comparison with a normal individual’s average level of performance – strength, range of motion, etc.. – not a comparison with their own super-standard levels. Add to that the notion that the permanent impairment award dollar values are the same for every worker in the State and final settlements do not take into account lost wage earning capacity in Washington and what is left over is a frowning face on the sidelines.
Most of us do not associate a professional athlete’s injury with workers’ compensation. Because of pro athletes’ generous contract wages, and the relatively modest recoveries available under workers’ compensation, most fans don’t recognize that when it comes to receiving workers’ compensation, professional athletes are just like other office or factory workers who can recover worker’s compensation when injured.
Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes.
Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes. Wisconsin law places a cap on the amount of money an athlete can receive for his injury. The maximum weekly wage for 2012 is $1,281, yielding a temporary disability rate of $854. The right to workers’ compensation is contained in the collective bargaining agreements with the respective players unions in football, basketball and baseball. In Wisconsin, insurance companies charge employers like the Green Bay Packers, Milwaukee Brewers, and Milwaukee Bucks for workers’ compensation insurance.
Pro athletes regularly get hurt on the job, but few pursue workers’comp claims. In the ten years from 1994 through 2004 a total of 37 cases involving the Packers were litigated, and in the same period 20 cased involving the Brewers were contested. (Milwaukee Journal Sentinel, Sunday, June 25, 2006 “Paying for Pain”) Cases that went to a hearing were even more rare : only four cases involving the Packers went to a hearing in that ten year period.
It’s a popular notion that athletes assume the risk of injury, since that is the nature of professional sports. Some states have bought into this concept and leave professional athletes unprotected.
Athletes apply for worker’s compensation largely for two reasons: vocational retraining and Loss of Earning Capacity. Many pro athletes have not completed college, or when they did, they were not scholars, so the only thing they know how to do is play sports. If they get wrecked and cannot play, they have to find a way to earn a living. Loss of Earning Capacity is measured by the player’s residual ability to earn a living considering the limitations of the injury.
It’s a popular notion that athletes assume the risk of injury, since that is the nature of professional sports. Some states have bought into this concept and leave professional athletes unprotected. In Pennsylvania recently the Courts ruled the Pittsburgh Steelers do not have to pay the attorney fees related to a former player’s workers’ compensation case, because although he clearly suffered injuries while with the team, the team argued he was not “disabled” since he continued to play for other pro teams. Pittsburgh Post Gazzette, April 24, 2012. All pro athletes are covered in Wisconsin.
Today we have a guest post from our colleague Leonard Jernigan of North Carolina.
All employees should be on the lookout for signs that their employer or potential employer is engaging in workers’ compensation fraud.
The list of signs below was inspired by this one from the Washington State Department of Labor & Industries.
These signs may indicate that your employer is not paying workers’ compensation insurance for their employees. If they aren’t, this could put you in a very difficult situation if you are ever injured on the job.
If any of these signs sound familiar, report the employer to the Fraud Investigations Department of the Deparment of Labor and Industries and, if at all possible, find another job.
Your employer may be engaged in workers’ compensation fraud if:
They pay you in cash and don’t give you any kind of payroll stub.
They give you a 1099 form instead of the standard W-2.
They pay you other than in cash or check, by such things as free rent, reimbursement of expenses, barter, etc.
They pay you on a piecework basis and do not record hours.
They require you to work long hours but turn in fewer hours than you actually worked.
You or somebody you know is injured on the job, and the employer promises to pay the medical bills rather than reporting the accident to the North Carolina Industrial Commission.
For most workers* injured before July 1, 2011, time-loss and pension benefit payments will increase 3.6 percent based on the change in the state’s average wage, as announced by the Department of Employment Security on June 19.
The increase also applies to pension benefits paid to family members of those who died because of a work-related accident or disease.
Injured workers can face a number of obstacles in their quest to return to work, particularly if the residuals of their injury, or in some cases, multiple injuries, have left them with significant physical restrictions. These obstacles are magnified if the worker is a non-English speaker and even more complicated if they are an undocumented worker.
In Washington State, immigration status is not a factor in workers’ compensation coverage
In Washington State, immigration status is not a factor in workers’ compensation coverage – if you are injured while an employee of a Washington company, your injury claim is covered. The Department’s position is that it is not its responsibility to monitor immigration laws but, rather, to provide protection to workers in our state. This is a very progressive stance, one that is rare across the spectrum of state comp systems, but it can complicate the return-to-work phase of an injury claim.
Vocational services for any non-English speaking employee can be time-consuming and expensive, even for a modest retraining goal, as the labor market is particularly limited when one’s ability to read, write and speak in English is limited. In many cases, these skills may be lacking in the worker’s native language, as well, and it is not simply a need to learn English that needs to be addressed. The longer the vocational process, the longer the injured worker remains on time-loss and the greater the retraining cost; all factors that impact the bottom line of the State and self-insured employers. Often, employers scramble to find a light duty job for their employee to get them back to work and avoid the retraining issue.
As of January 1, 2012, a significant change in Washington’s workers’ compensation laws has provided an opportunity to resolve the claims of injured workers age 55 and over through structured settlements, called CRSSA (Claims Resolution Structured Settlement Agreements) agreements. The CRSSA option is intended to provide an alternative for injured workers who feel “stuck” in the Department’s system, and wish to pursue retirement or alternative work goals outside their claims.
Causey Law Firm was one of the first workers’ compensation firms in the state to successfully negotiate for and receive approval of a CRSSA from the Board of Industrial Insurance Appeals.
The Department has a specialized unit of experienced personnel to evaluate incoming requests for CRSSA’s from injured workers and employers. If the Department (or self-insured employer) concludes the claim is appropriate to consider negotiations under the CRSSA, they will request the applicant provide a proposed lump sum figure to initiate negotiations. Many factors are taken into account in determining whether or not a CRSSA is appropriate, to include whether it is in the best interest of the worker, the nature and extent of both industrial and non-industrial injuries, other claims, present and future income sources of the worker, present and future expenses, employment and education history, and the effect a settlement may have on other benefits. All of this information is provided to the Department or employer, and if an agreement is reached, it is forward to the Board of Industrial Insurance Appeals, which is a separate state agency, for final review and approval. As of May 2012, 18 agreements have been filed with the Board, but only six of these have been approved.
Structured settlements allow a worker to resolve all the issues in their claim (time loss, permanent partial disability, vocational rehabilitation benefits, and pension) except treatment, by closing their claim and receiving, after an initial lump sum payment, monthly or bi-weekly payments until the full amount of the settlement is reached. An injured workers’ right to treatment cannot be compromised under the CRSSA rules and, in some cases, a worker can include authorization for future anticipated treatment in the agreement. The amount of the settlement and payout schedule will vary depending on the unique circumstances of each claim.
As we have advised several of our clients, it may not be in your best interest to pursue a CRSSA. However, if you are an individual who wishes to pursue self-employment, retirement, part-time work, or alternate vocational avenues, and have become tired of the “system” running your life, and you’d like to have the power to resolve your claim, it may very well be appropriate to pursue this new option. If so, please give our office a call, and we will be happy to provide further assistance.
The board is now accepting nominations for the 2012 Governor’s Lifesaving awards, presented to Washington state residents who saved a life these past 12 months.
All Washington workers covered by the state workers’ compensation system or a self-insured employer are eligible for the lifesaving nomination. However, the heroic act is not limited to the workplace or Washington state. It could have taken place any day or time, anywhere in the world.
The lifesaving effort must have taken place between June 1, 2011, and May 31, 2012. The deadline for submitting applications is June 30.
The nominee must have performed “hands-on” aid in saving a life. For law enforcement officers, firefighters, emergency medical technicians and other similar professions, the lifesaving action cannot be part of their normal job duties, but must be actions above and beyond the call of duty. Past recipients have included rescue personnel who have acted to save a life while off-duty.
The board also presents humanitarian awards to people who, despite their best efforts, were unable to save the life of the victim.
Last year, 40 people were recognized with lifesaving and humanitarian awards. For a nomination form and more information on qualifications, contact Laura Glover, lifesaving award coordinator, at 360-902-5533. Nomination forms are also available at www.wagovconf.org.
Over the course of 35 years representing injured workers, I have heard some whoppers – Employers’ questionable tactics that make even my jaw drop. With all the insurance company generated blather about “employee fraud” incidences of employer fraudulent tactics abound. Workers beware of the following:
Recorded statements taken by worker’s compensation carrier adjuster while employee is under medication or in the hospital still suffering from the injury. Questions such as “It’s true you had (low back pain, arm pain, fill in the blank pain, etc.) before your work injury, correct? You’ve had lots more pain from (your motor vehicle accident, sports injury, etc.) than you’re experiencing from your work injury, correct?
Employer “channeling” a work to its “Return to Work Clinic” (doctors on company payroll whose opinion is “like some athletic coaches, ‘rub some dirt on it and get back in the game’.”
Telling employees to take sick leave rather than claim worker’s compensation.
Telling employees to file medical bills under their group insurance, not worker’s comp.
Nurse Case Manager who initially befriends the employee but later makes every attempt with the worker’s doctor to prematurely return the worker to the job before a healing occurs.
Today’s post comes to us from our colleague Rod Rehm of Nebraska.
Selecting and hiring a good lawyer is critical in dealing with a legal problem. Lawyers are increasingly limiting the types of cases handled in an effort to provided better representation. The Internet is a common starting point for consumers to locate and select lawyers who have the right kind of knowledge and experience for their problem. I recommend the following steps for selecting a lawyer.
1. Check with family, friends, neighbors, or others whom you trust and respect to learn if they know of a lawyer or law firm who they would recommend for the kind of problem you are dealing with. This approach is the traditional way to find a professional and often leads to a good attorney-client relationship with satisfactory results.
2. Consult a general-practice lawyer you know and ask for recommendations. This approach gives you the advantage of having someone who knows area lawyers help you find the right mixture of knowledge and expertise.
3. Internet searches will turn up a large variety of lawyers who handle the kind of problem you are experiencing. Read several of the websites with a careful eye for the following:
a. Is the firm A-rated by the leading peer-rating organization Martindale and Hubbell? The ratings are very good indicators of how the firm is regarded because they come from judges and other lawyers who work with the firm.
b. Do the members of the firm appear to be actively involved in organizations dealing with your kind of problem? Are the lawyers officers or board members of such groups? Have the lawyers been speakers at seminars? This kind of activity shows the lawyers are interested in improving and protecting the law for people with your kind of problem and respected by other lawyers and judges. Here are some examples of law organizations. For employment matters, see the National Employment Lawyers Association (NELA) (please link to www.nela.org). For workers’ compensation organizations, see the Workers’ Injury Law and Advocacy Group (link to www.wilg.org). For other personal-injury matters, see the American Association for Justice (link to www.justice.org). For general trial-attorney needs, see the American Board of Trial Advocates (link to www.abota.org).
c. Do the lawyers from a firm belong to any organizations indicating that they have been honored or selected for membership based on knowledge and experience?
d. Do the lawyers appear to belong the bar associations in their area? Have they served on any committees, sections, or governing bodies?
4. Go to www.martindale.com and use the lawyer search. You can search for lawyers by city, state, and specialty. Lawyers are rated as follows. AV® Preeminent™ is the highest rating, followed by BV® Distinguished™ then Distinguished. We recommend only A-rated lawyers if they are available. One way to get the best of the best is to limit the search by checking the box “Featured Peer Review Rated.” The website is very user friendly.
5. Contact the lawyer or lawyers you focus on, and talk to the lawyer. Learn how the lawyer interacts with clients. The following are some questions that might be helpful: Do you feel comfortable talking with the lawyer? Are they Internet users? Will you have a specific team of people working with you? How do they charge? Can you have Skype conferences or do they have other face-to-face conferencing options through the Internet? Will retainer documents be required and available for review before an appointment?
These suggestions provide a framework on how to locate and evaluate an attorney to help you. The references we refer to are industry standards, so they not subject to as much manipulation as other online approaches, such as reviews, testimonials, or video recommendations on lawyers’ websites.
Worry is increasingly pervasive in our society as insecurity about the economy and safety, nationally and personally, grows daily. Worry is compounded in the daily lives of those who are injured or disabled, as they struggle with the added burdens of medical costs and loss of income, all of which engenders a bleak outlook on their future.
“At its worst, [toxic] worry is a relentless scavenger roaming the corners of your mind, feeding on anything, never leaving you alone.” This was the description of “worry” by Edward M. Hallowell, MD, in Worry, 1997, with a 2002 introduction. (This study is still considered the “bible” in lay literature and often quoted in scientific research.) Long ago, Dr. Charles Mayo said, “Worry affects circulation, the glands, the whole nervous system and profoundly affects the heart.” Indeed, worry appears to be, at worst, of genetic origins, and to a lesser degree a learned or environmental response.
Hallowell defines worry as two types: toxic worry and good worry. He likens toxic worry to a virus, insidiously and invisibly attacking you and robbing you of your ability to work, your peace of mind and happiness, your love and play. On the other hand, good worry, or adaptive worry, is necessary to avoid real danger and life-threatening situations.
Worry is categorized as part of Generalized Anxiety Disorder (GAD) in most lay and scientific literature. The National Institute of Mental Illness (NIMH) defines GAD as people who go through the day filled with exaggerated worry and tension, even though there is little to provoke it. NIMH literature states that people with GAD anticipate disaster and are overly concerned about health issues, money, family problems or difficulties at work. GAD is diagnosed when a person worries excessively about everyday problems for at least six months. Worry, as part of GAD, is commonly treated with medication and cognitive therapy.
The everyday worry of the disabled or injured worker is direct, with anxiety and fear over money, physical abilities, medical care, vocational options, housing, food, and family disintegration. It does prey upon so many, compounding their physical health problems and environmental lives.
For more on the very real physiological implications of worry, check in next week for the next installment in this series.
