Washington’s Primary Election is August 7th – Our Recommendations in the Supreme Court Races

 

 

The election season begins early in Washington this year.  You may already be suffering from election advertising fatigue, as I am, but election ballots are set to be mailed in the next week for the August 7th primary, and in the past many of you have sought our recommendations on judicial races.  There are three critical elections on the primary ballot for the Washington State Supreme Court.

Why are we getting this message out now?  Because election statistics show that about twenty percent of voters skip the judicial races on their ballots. As you know, our ability to represent injured and disabled workers can be dramatically affected by who is ultimately deciding cases on appeal.  It is critical to have the right men and women leading our judicial system, so here are our views on the candidates you will see on your ballot.

Here are our recommendations in the three Supreme Court races:

For Position 2, we recommend voting for incumbent Justice Susan Owens. Owens has served on the high court for twelve years ably, while her opponents have no judicial experience.

For Position 8, we recommend voting for the newly-appointed incumbent Justice Steve Gonzalez. Gonzalez, a former Assistant US Attorney, King County Prosecutor, and King County Superior Court Judge, was appointed to the bench last year following his outstanding record throughout his legal career and his commitment to access to justice issues across our state. In contrast, his opponent has been rated ‘Not Qualified’ by his local colleagues in the bar association in his races for lesser judicial offices. Since there are only two candidates on the ballot in this race, it will be decided in August.

Finally, Position 9 is an open seat being vacated by Justice Tom Chambers, who is irreplaceable as a champion for the rule of law and citizens’ rights. This race drew a strong field of candidates. Bruce Hilyer, John Ladenburg, and Sheryl McCloud would all make excellent justices.  We have no particular preference.  The fourth candidate, Richard Sanders, who was defeated in the last election by current Justice Charles Wiggins and is running again, has had his day and we don’t believe he deserves the same consideration.

While we’re at it, I’ll give you the first of my personal views on the three other most important races coming up on the November ballot that will have potentially great impact on you as a Washington citizen and consumer:  the races for Governor, Attorney General and Insurance Commissioner.

In the Governor’s race, Jay Inslee is the clear civil justice candidate. Prior to public office, Jay was an attorney representing victims in Yakima. He then began a long career of public service where he has diligently protected citizens’ constitutional and civil rights, and been a champion of worker and consumer protections. (Personal note:  I’ve known Jay for many years.)  In contrast, his opponent Rob McKenna has fought to remove or reduce citizens’ ability to hold government accountable through the court system. For example, his first request for legislation as Attorney General would have taken away our right to hold the government or ANY government contractor accountable—whether from poisoned food in schools, faulty bridge construction, or any other number of the most reckless or careless acts that lead to serious injury or death. It was breathtaking that our state attorney would propose such a lack of accountability. It’s a pretty sure bet that Mr. McKenna’s philosophy concerning business versus individual rights will percolate down to the Department of Labor & Industries, where your workers’ compensation claims are decided and managed.  As the weeks go on, we’ll have much more to say about the Governor’s race.

The Attorney General is the chief legal officer for the State of Washington and its citizens, and 90% of the office’s job is representing the state in civil cases. I believe it is critical that the Attorney General believe in a government accountable to the protection of its citizenry and who shares a commitment to going after the powerful special interests that harm the public by abusing our laws. I strongly recommend Bob Ferguson for this job. Bob is a lawyer and King County Councilman, who has committed his campaign to the same issues he has committed his public service to thus far: protecting public safety, going after fraudulent actors like mortgage lenders and servicers, prosecuting polluters, and protecting taxpayers against fraud and abuse. Bob would be a champion for us all as Attorney General and deserves your vote.

Finally, incumbent Insurance Commissioner Mike Kreidler must be re-elected. Commissioner Kreidler has been the number one champion in the state shaping our insurance system to try and make it work for consumers in every line of insurance. The Insurance Industry writes $30 billion worth of business every year in our state, and he uses his office to fight to make sure consumers are actually getting the coverage they pay for, fighting delay or denial of legitimate claims, and trying to reduce rates and create a fair system.

We hope you have found this information useful. We are sharing my views with you because of our strong belief that all our clients seeking a chance for justice through the court system, and the administrative law systems that the courts review, depend on these public servants. Please share this message with family and friends. Regardless of your views on these races, though, please make sure you vote on August 7th.  We owe it to each other to participate and have our voice heard in our electoral process.

Please feel free to ask us if you have questions about these races.  If you want more information, you can view the voters’ guide online at https://wei.sos.wa.gov/agency/osos/en/Pages/OnlineVotersGuide.aspx.

If you are not registered to vote or need to update your registration, you can do so on-line, in seconds, at https://wei.sos.wa.gov/agency/osos/en/MyVote/Pages/MyVote.aspx.

Thank you for your time, and for taking part in our democratic process.

The Long, Hard Road: Litigation in Washington Workers’ Comp

Brian Wright, CLF’s Legal Intern

“How Can it Take that Long…?”

The Claimant’s name has been changed to insure confidentiality.

Our clients who are embroiled in litigation in their seemingly straightforward workers’ comp cases are often shocked when we tell them how long it may likely take to get a final decision.  We recently prevailed in a case that serves as an exemplar of what the litigation process can involve.
David performed maintenance and repair for about five years on large construction equipment, requiring heavy lifting, carrying, torqueing, and other strength maneuvers in awkward positions, all affecting a shoulder condition that had its origins 30 years before in a diving injury followed by an injury on the job to the same shoulder that required surgery.  He had worked at vigorous labor for the ensuing 25 years with no limitations until his work for the last company aggravated his shoulder, disabling him from work and leading to a partial shoulder replacement surgery.
Here’s how the claim went:  David filed to reopen his 30-year old injury claim, but the Dept. of Labor & Industries (L&I) denied the reopening because of information about the recent work activity.  He then filed a claim based on injury from his last repair/maintenance work, and the claim was allowed as an “injury.”  The employer protested the allowance, and L&I took it back for further review.  It was then allowed as an “occupational condition or disease” based on the aggravating effect of the cumulative trauma on David’s pre-existing but non-disabling shoulder condition.  The employer then appealed that order to the Board of Industrial Insurance Appeals (BIIA) – our workers’ compensation “trial court” – and months later full hearings were conducted with live testimony from David and depositions of four medical witnesses.
Months after that, the BIIA judge who heard the evidence issued a decision fully favorable to David, and upholding the L&I allowance order.  The employer then requested reconsideration of the judge’s decision.  That was denied, and the employer then filed an appeal to superior court requesting a jury trial.  Many months later, the case was tried to a jury and the jury upheld the BIIA’s and L&I’s decisions.  At that point, the employer had been given five shots at overturning the allowance of David’s claim.

How long did all this take in a case with a seemingly straightforward medical issue? 

December, 2009 to July, 2012 – over 2 ½ years!

An interesting side-note to this case:  Our Rule 9 intern, Brian Wright, recently graduated from Seattle University School of Law and preparing to take the bar examination later this month, assisted me in trying the case in superior court.  I turned over closing argument to the jury to Brian, and he did a great job, beating a seasoned defense lawyer I’ve been litigating against for 20 years or so.  At Causey Law Firm we’re wagering that Brian is the only Rule 9 intern in the state to prevail over an experienced lawyer in a superior court jury trial this year!

Pro Athletes Need Worker’s Compensation Too

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.

14 Signs That Your Employer May Be Committing Workers’ Compensation Fraud

Is your employer committing fraud?

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.
  • The reported hours on an injured worker’s accident report do not match the hours the employer reported to the North Carolina Industrial Commission.  Continue reading 14 Signs That Your Employer May Be Committing Workers’ Compensation Fraud

Distracted Driving: Federal Guidelines Proposed For Automakers

The NTHSA proposal for automatic device disabling could potentially prevent a lot of accidents caused by distracted driving.

Today’s post is by our colleague Jon Gelman of New Jersey.

After years of accidents in the workplace caused by the use of mobile devices in vehicles, the Federal Government has proposed universal guidelines to encourage automobile manufacturers to electronically disable these devices when a vehicle is in operation.  The enforcement of this safety-first proposal may establish a legal standard to bar the use of such devices in vehicles and encourage employees to have a safer working environment.

See: U.S. Department of Transportation Proposes ‘Distraction’ Guidelines for Automakers
“Issued by the Department’s National Highway Traffic Safety Administration (NHTSA), the guidelines would establish specific recommended criteria for electronic devices installed in vehicles at the time they are manufactured that require visual or manual operation by drivers. The announcement of the guidelines comes just days after President Obama’s FY 2013 budget request, which includes $330 million over six years for distracted driving programs that increase awareness of the issue and encourage stakeholders to take action. “

 

Image: David Castillo Dominici / FreeDigitalPhotos.net

3.6% COLA Increase For Pension And Time Loss, Effective July 1

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.

The increase becomes effective July 1, 2012.

Immigration Status and Return to Work: A Polarizing Issue

immigrant workersInjured 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.

One of the most frustrating circumstances we encounter occurs when a light duty job offer is made to the injured worker by the employer of injury, with a twist. Continue reading Immigration Status and Return to Work: A Polarizing Issue

NEW! STRUCTURED SETTLEMENT AGREEMENTS – What do I need to know?

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.

WANTED: Real-life Heroes And Heroines

Today we’re sharing an announcement from our friends at the Governor’s Industrial Safety and Health Advisory Board.

If you know a real-life hero or heroine who saved a life this past year, the Governor’s Industrial Safety and Health Advisory Board would like to hear from you.

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.

The award recipients will be featured guests at the 61st Annual Governor’s Industrial Safety and Health Conference, Sept. 26-27 at the Spokane Convention Center. The conference is sponsored by the Governor’s Industrial Safety and Health Advisory Board and the Department of Labor & Industries.

For more information about the conference, call toll-free 1-888-451-2004. TDD users may call 360-902-5797.

Workers Beware Questionable (Fraudulent) Employer Tactics

It's time to start talking about employer fraud.
It’s time to start talking about employer fraud.

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.
  • Employer paying worker in cash with no payroll stub (or gives workers a Form 1099 rather than a W-2). Continue reading Workers Beware Questionable (Fraudulent) Employer Tactics

Published by Causey Wright