Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.
Do you drive a company vehicle as part of your job?
Many find themselves in the situation where they travel regularly, or on a special errand from time to time, as part of their job.
In the unfortunate scheme of things, if you are involved in an accident while driving, whether it is your fault or not, you are covered by and entitled to workers’ compensation benefits just as any other employee who suffers an accident on the premise of an employer.
More importantly, if the cause of the accident was not due to negligence of your own, but that of a third party, you have a right to bring a third-party negligence action against the party responsible for causing the vehicle accident. This right is separate and distinct from the workers’ compensation benefits that you are entitled to. Further, you also potentially have the right to bring an underinsured motorist coverage claim under your employer’s motor vehicle coverage as well as your own underinsured motorist vehicle coverage. These, too, are separate and distinct from the workers’ compensation benefits you are entitled to.
It is important to note that the employer would have a subrogation right to be reimbursed for workers’ compensation benefits paid on your behalf against that of any third-party negligence claim where you obtained a recovery. However, as underinsured motorist coverage is typically viewed as contractual benefits in nature, there is no subrogation right from your employer if underinsured benefits are obtained in Nebraska.
If you or someone you know was injured in a motor vehicle accident that arose out of and in the course of one’s employment, there are significant issues to be aware of in order to obtain a recovery that meets your needs. If you have any questions or uncertainty when dealing with this point of law, please seek the advice of an experienced attorney who can help steer you in the best course of action.
Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.
Under federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).
Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.
If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:
Know the hazards in your workplace.
While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
Injuries occur when workers get tired. Take breaks when you’re tired.
Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
Be aware of where emergency shutoff switches are located.
Report unsafe work areas.
Wear proper safety equipment.
If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.
Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.
During cancer research in 1986 an accident created the first man-made nanoparticle, an incredibly small particle which can absorb radiant energy and theoretically destroy a tumor. One type of nanoparticle is 20 times stronger than steel and is found in over 1,300 consumer products, including laptops, cell phones, plastic bottles, shampoos, sunscreens, acne treatment lotions and automobile tires. It is the forerunner of the next industrial revolution.
What is the problem? Unfortunately, nanoparticles are somewhat unpredictable and no one really knows how they react to humans. A report out of China claims that two nano-workers died as a result of overexposure, and in Belgium five males inhaled radioactive nanoparticles in an experiment and within 60 seconds the nanoparticles shot straight into the bloodstream, which is a potential setup for disaster. In a survey of scientists 30% listed “new health problems” associated with nanotechnology as a major concern.
Lewis L. Laska, a business law professor, wrote an article in Trial Magazine (September, 2012) in which he advised lawyers to become knowledgeable about nanoscience and be aware of the potential harm to workers and others who come in contact with this new technology, particularly because the EPA, FDA and OSHA have neither approved nor disapproved the use of nanostructures in products. It has been said that workers are like canaries in the cage (in mining operations), and if nanoscience is a danger then workers’ compensation lawyers will be the first to see it and appreciate it.
Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.
British Petroleum (BP) supervisors Donald J. Vidrine and Robert Kaluza were indicted on manslaughter charges in the deaths of 11 fellow workers in connection with the 2009 Deepwater Horizon explosion in the Gulf of Mexico. David Rainey, a BP deepwater explorer, was charged with obstruction of Congress and lying about the size of the spill. These indictments were in addition to a record $4.5 billion in criminal fines that BP agreed to pay for the disaster, which will be paid out over 5 years.
Mr. Vidrine and Mr. Kaluza were negligent in their supervision of key safety tests performed on the drilling rig, and they failed to phone engineers on shore to alert them of problems in the drilling operation. These charges carry maximum penalties of 10 years in prison on each “seaman’s manslaughter” count, 8 years in prison on each involuntary manslaughter count and a year in prison on a Clean Water Act count. Mr. Rainey obstructed Congressional inquiries and made false statements by underestimating the flow rate to 5,000 barrels a day even as millions were gushing into the Gulf. He faces a maximum of 10 years in prison.
By charging individuals, the government was signaling a return to the practice of prosecuting officers and managers, and not just their companies, in industrial accidents where reckless and wanton conduct is involved. The practice of charging individuals was more prevalent in the 1980s and 1990s but has recently been a rare occurrence, with company fines being the only penalty sought. Some wonder if the $4.5 billion criminal settlement is enough to penalize a corporation after 11 people were killed, and that if a culture of disregard for safety exits in a corporation that is “too big to fail” then the only way to stop that culture is to send those who knew about it to jail. We shall see.
Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.
This is a timely post as I just received notice that the Department of Labor and Industries investigated a fraud case against an employer in Lake Stevens, WA that did not cover his employees for workers’ compensation. This was not the first time the Department had contact with this employer for this same issue, either. This time, charges were filed and the employer was sentenced to sixty days in jail, converted to house arrest.
Roofers, of all workers, need their workers’ compensation coverage!
Today I received an urgent call from attorney representing a client in New Jersey who fell from a roof. Before she told me the job description of the injured worker, now in a coma, I correctly anticipated that it was probably a roofer who had fallen from a roof, yet again.
This scenario has played out in workers’ compensation claims for decades. How the accident happened is usually an argument with the employer. The employer claims that the employee was either intoxicated or not following safety precautions. My instinct always tell me that this is probably incorrect, since roofers tend to lose their balance and fall for many other reasons, including “gravity.” Some reason a deprivation of oxygen and/or exposure to toxic neurological irritants contained in the roofing materials, and weather related events that make roofs slippery.
He had fallen from a ladder about 15 feet and landed squarely on his hands and broke both arms. No one was holding the base of the ladder and the ladder was more than 15 years old. Wires and metal bars were now holding his bones in place, and workers’ compensation benefits were holding him financially in place. However, since he was only making $11 dollars an hour his weekly compensation benefits were small. As you probably know, the Workers’ Compensation Act does not provide money for pain and suffering, or lost income from other jobs (think about the man who takes on two jobs to maintain a higher standard of living for his family; if he is hurt while working at one job, he is only paid for the income loss at that job, not both).
The employer has a duty to train and teach its employees how to use a ladder. Many employees (particularly young ones) have no idea how dangerous ladders can be: they assume the ladder will hold the load and will be secure when placed in position, and that it is free of defects, no matter how old. OSHA has a list of safety considerations and these tips can be found at the Department of Labor’s web page (click here for a PDF version).
In a post from last week we introduced the history of the Workers’ Compensation System and asked the question: Should taxpayer money continue to be used to support the government system that allows these cases to be brought?
A growing number of employers in Washington State are taking part in the RETRO Program, a system within the system, designed with the good intention of incentivizing safer workplaces. Employers that participate in this program pay into the system according to the risk classes of their employees, as usual, but the actual costs of their claims are tracked and compared to the amount of the premiums paid. When the amount paid in claim costs exceeds the premiums paid, the employer is assessed an extra fee. If the claim costs are less than the premiums paid, a refund of the difference is returned to the employer. On the face of it, this seems reasonable, unless we look back to my bridge analogy from last week’s post:
When a bridge is needed in Seattle, those in Yakima don’t want to pay for it, even though our entire highway system supports tourism and commerce throughout the state. So, we have an insufficient tolling system in place based on the concept that only those citizens that drive on the bridge should have to pay for it.
The burden of injury and disability claims is greater on an individual employer than if the responsibility for the costs is shared.
Instead of incentivizing a safe work place we are now incentivizing denials of claims, denial of authorization for medical procedures such as MRI scans, and strict limitations on conservative care such as physical therapy. This creates a dynamic where Claims Managers at the Department of Labor and Industries are pinned between the interests of injured workers seeking benefits and employers counting pennies.
Caught in the middle of the storm, the easy decision for a Claims Manager is to deny benefits and let the issues be sorted out through the appeals process. This leads to delays in treatment, financial hardship and unfair costs to the injured worker, who remains responsible for the cost of attorney fees in litigation, whether they win or lose, when the employers have the ability to deduct the cost of legal fees as a business expense no matter the outcome. The practical effect of this increasing determination to cut every possible cost is that small issues are now routinely raised before the Board of Industrial Insurance Appeals.
We are involved in cases before the Board where the fight is over a few hundred dollars of compensation, or authorization for a procedure or surgery. Do we really want an industrial appeals judge to decide whether a procedure is reasonable and necessary treatment? Especially when there are utilization review processes already in place to monitor the use of those resources and Claims Managers hired to administer the claims, asking workers to bear the burden of an appeal process to get their MRI scan or to keep $300 in time loss compensation paid during the few days between the doctor mailing a release to work to the Department and the Claims Manager reading the note, often when the worker had not been notified of their release, is unreasonable and it is certainly a waste of resources.
More is spent fighting each claim than would be expended simply providing the worker with the benefit. But, providing the benefit comes out of the “claims cost” column, reducing the possible rebate amount, instead of under the “legal fees” tax deduction column.
Another effect of this new dynamic is that physicians are fleeing workers’ compensation claims like rats from the sinking ship. Doctors and clinics that are already working under the administrative burden of a plethora of insurance systems – – federal, state and corporate-run – – all with differing requirements and payment schedules, now find their every recommendation questioned and scrutinized, with payment delayed or denied. If an appeal process is followed, the doctors are asked to take time out of their packed schedules to write reports or testify at hearing or by deposition to justify their opinions, actions and recommendations. Patients have limited access to care or become frustrated when their doctors refuse to participate in the processing of their claims.
For more on the RETRO program, check in for part 3 of this series later this week.
After a six-month investigation, the Department of Labor & Industries has concluded that the deadly explosion at the Tesoro petroleum refinery in Anacortes could have been prevented. At a press conference today, L&I announced it has cited Tesoro for 39 “willful” violations and five “serious” violations of state workplace safety and health regulations, fining the company $2.38 million. While no amount of money can reflect the value of a person’s life, this is the largest fine in the agency’s history. A willful violation is a category of violation where an employer knowingly violates a rule and is plainly indifferent to correcting it, while a serious violation is one involving an instance where there is a substantial probability of serious injury or death.
L&I announced it has cited Tesoro for 39 “willful” violations and five “serious” violations of state workplace safety and health regulations, fining the company $2.38 million.
A heat exchanger at the refinery ruptured around 12:30 a.m., April 2, 2010, releasing hydrocarbon vapor which almost immediately ignited. Seven workers, five men and two women, died as a result. It is the worst industrial disaster in the 37 years that L&I has been enforcing the state’s workplace safety law, the Washington Industrial Safety and Health Act.
“The loss of seven lives is a tragedy not just for their loved ones but for our entire state. What makes the loss of these lives all the more painful is that these deaths could have been prevented,” Governor Chris Gregoire said. “I believe the action L&I is announcing today and the record fine they have assessed against Tesoro sends a clear message that these tragedies are not acceptable.”
L&I inspectors found that Tesoro disregarded a host of workplace safety regulations, continued to operate failing equipment for years, postponed maintenance, inadequately tested for potentially catastrophic damage and failed to adequately protect their workers from significant risk of injury and death.
“This explosion and the deaths of these men and women would never have occurred had Tesoro tested their equipment in a manner consistent with standard industry practices, their own policies and state regulations,” said L&I Director Judy Schurke.
At today’s press conference, L&I inspectors explained that the explosion occurred in the plant’s Naphtha Hydrotreater Unit, an area that includes two banks of heat exchangers. Naphtha is a flammable, oily substance produced as part of the refining process. The naphtha flows through the heat exchangers, cylinders approximately 30 feet long, on its way for further processing. One of these heat exchangers split violently on April 2.
“All of us at L&I are deeply saddened by the loss of life and our thoughts go out to the family and friends of those who have died and those who have been seriously injured,” said L&I Director Judy Schurke. “We’re going to take a hard look at the circumstances to determine whether there were violations of the law and what actions can be taken to prevent a future occurrence.”
The L&I team investigating the explosion consists of three inspectors and a compliance manager familiar with the plant from previous inspections. The team also has technical expertise in Process Safety Management (PSM). PSM focuses on a refinery’s development and implementation of systems designed to reduce or mitigate the potential for catastrophic releases of highly hazardous chemicals.
Although L&I has opened an inspection, the team will not have access to the site until receiving clearance from incident command officials.
The investigation is expected to be complex, involving interviews, reviews of records, analysis of the scene, and laboratory work. The investigation could take up to six months.
I reviewed a workers’ compensation claim for a potential client nine months ago. At the time, I told him of several items that I saw as upcoming issues in his case and shared my opinion about why it would be important for us to start clearing those issues off the deck sooner rather than later. Would he be found employable with no services or would he receive just a bit of training to allow him to continue working in his field as a welder but in a lighter-duty capacity? Would the onset of depression be addressed under the claim and taken into consideration when making employability decisions? Would his level of permanent impairment be under-rated through the typical Independent Medical Evaluation (IME) process or would his surgeon be willing to provide a rating that more accurately reflects his limitations? I shared my concerns about his case, explained the process I would recommend for addressing these concerns and discussed the fees and costs to be expected. He indicated he wanted to go forward with representation.
I did not hear from him again, until yesterday. He left me a message asking for help with his claim. I looked at the case this morning before returning his call. He has been found to be employable with no additional retraining, so he will likely not be able to continue with his favored career but, instead, can look forward to his new line of work as a small parts assembler. He underwent an IME that conservatively rated his level of permanent impairment and approved the job analysis for small parts assembly. His attending physician signed the form letter to indicate concurrence with the IME results and, on this basis, the Claims Manager has found him employable and is closing the claim. What about the depression? Not addressed by the IME, so the Claims Manager is construing the attending physician’s signature on the concurrence form letter to mean that he is also not contending that depression is an issue, so she is denying this condition under the claim.
I know there are two sides to every argument, and I know that an employer representative would look at this same fact pattern and see a job well done, but I am a claimant’s advocate, so I share my thoughts from only that perspective. I see a situation where I now have a 15-day deadline for filing a dispute with the Vocational Dispute Resolution Office if I want to argue that Continue reading Why Wait? A Case Study…→