Asides

Safety Violations Matter: Wisconsin Court Reaffirms Basis for Employer Safety Penalties

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

The extra penalty for employers that ignore safety rules is something not available to injured workers in Washington State, but it is an interesting concept that provides real incentives for safe workplaces.

In most instances, an injured worker cannot sue her employer for a workplace injury. However, if an injury results from an employer’s reckless, intentional, or illegal action, an injured worker can bring a separate claim against the employer directly. An employer’s violation of the Wisconsin state safety statute  or of any Department of Workforce Development (DWD) safety administrative rule which causes a worker’s injury can trigger a 15% increased penalty for the employer (Section 102.57 of the Worker’s Compensation Act). This increased compensation is based on the amount of compenstion paid by the insurance carrier and is capped at $15,000. The big deal is that the safety violation penalty is not paid by the insurance company–it is paid directly from the employer’s pocket (which also makes for increased litigation of these claims!).;

In a win for injured workers, a recent Court of Appeals case (Sohn Manufacturing v. LIRC), decided on August 7, 2013, reaffirmed the ability of the Worker’s Compensation Department to hold employers responsible for unsafe behavior. In the Sohn case, the worker operated a die cutter machine, and the employer instructed her to clean it while the anvil rollers were running. The worker suffered a severe hand injury when her hand was pulled into the machine. A state investigator found an OSHA violation as well as a violation of the state safety statute (Section 101.11). An administrative law judge and the Labor and Industry Review Commission affirmed an award of a safety violation under 102.57 of the worker’s compensation act.

The employer challenged this ruling in court, arguing that the federal OSHA law preempted Wisconsin’s ability to enforce safety procedures under Section 102.57 and that an OSHA investigation cannot form the basis for a state safety violation claim injured workers should be thankful that the Court of Appeals rejected both of these arguments. First, the Court explicitly stated that OSHA does not preempt Wisconsin’s ability to award penalties under Section 102.57, as the safety violation statute is not an enforcement mechanism and OSHA was not intended to impact state worker’s compensation rules. More importantly, the Court indicated that an OSHA violation of a federal workplace safety regulation can be used as basis to demonstrate an employer’s violation of Wisconsin’s state safety statute (Section 101.11).

While the decision was not surprising, it reaffirms the state’s commitment to holding employer’s accountable for safety violation rules under the worker’s compensation system. Workers and practitioners also should remain aware of any OSHA violation found post-injury. A document demonstrating a federal OSHA violation can form the immediate basis for a safety violation under Section 102.57.

The Washington Health Care Authority: We’re Doing it Wrong

+++ Looking at the Cost of Healthcare

     While Congress, specifically the House of Representatives, continue to wrangle over funding the Patient Protection and Affordable Care Act (“Obamacare,” to use the pejorative), we here in the “Soviet of Washington”[1] have been quietly taking our own steps towards controlling health care costs. One such step was the establishment of the Washington Health Care Authority (HCA) in 2006. The stated purpose of the HCA is to ensure that the “most comprehensive health care options” are available through state-funded health care plans while “minimizing the financial burden which health care poses on the state.” RCW 41.05.006. The HCA selects different medical technologies for review by the Health Technology Clinical Committee (HTCC)—a panel of physicians and other health care professionals who determine whether those technologies will be covered by state-funded insurance programs.

 This complete and utter lack of oversight is troubling…

     Sounds like a laudable goal, doesn’t it? Unfortunately, in practice, the committee operates as an unaccountable cabal whose coverage decisions are not subject to any substantive review. When the legislature passed the bill creating the HCA and HTCC, it included a provision for appealing the HTCC’s coverage determinations. But Governor Gregoire vetoed that provision, ostensibly on the belief that other portions of the bill provided sufficient opportunity for review of HTCC coverage decisions. However, as the court of appeals has noted, “there is no statutory procedure for substantively challenging HTCC determinations.” Joy v. Dep’t of Labor & Indus.

     This complete and utter lack of oversight is troubling because the HTCC often makes decisions at odds not only with the medical community, but also most other insurance companies.

     Recently, the non-partisan Center for Public Integrity ran a story lauding the Washington HCA for “making the tough choice” to implement cost-cutting measures.[2] According to the story, “the Health Technology Assessment . . . reviewed three common, expensive and controversial treatments for chronic back pain: spinal injections, spinal stimulation, a transcutaneous electrical nerve stimulation.” That sentence needs a bit of unpacking. First of all, while relatively common, spinal injections are actually fairly inexpensive and generally considered conservative care. Conversely, while spinal stimulation is expensive, it is comparatively uncommon. But at its essence, the statement from this story is that these treatments are controversial. But are they? Let’s focus first on spinal cord stimulation, for which the HTCC denied coverage on the grounds that it is not safe, medically effective, or cost-effective.

     When the HTCC proposes a rule on the coverage or non-coverage of a given health technology, it submits that rule for public comment before publishing the final rule. When it published its findings to the public on spinal cord stimulation, medical practitioners from across the country submitted voluminous literature in support of coverage of spinal cord stimulation—not one medical provider commented that spinal cord stimulation was ineffective or unsafe. One commenter noted that spinal cord stimulation had been used safely and effectively since 1967 to treat intractable back pain without the use of addictive narcotics. The same commenter pointed out that Washington would be the only state to deny coverage of spinal cord stimulation, and that the vast majority of private insurers also cover the procedure.

     So why did Washington State decide not to cover spinal cord stimulation? According to the Center for Public Integrity, Josiah Morse, director of the Health Technology Assessment Program, says that the committee “downplays the role of cost in its decisions.” “[I]n most cases there isn’t enough research on the cost-effectiveness of medical technologies, so the committee makes most of its decisions based on safety and effectiveness.” But if no medical professional commented that spinal cord stimulation was unsafe or ineffective, why would the HTCC deny coverage?

     Consider another HTCC coverage decision—in 2011, it decided that femoroacetabular impingement (FAI) surgery was not covered. FAI is a condition involving the cartilage of the hip socket. It is extremely painful and, if left untreated, can result in the need for an early hip replacement. FAI surgery is the only solution for moderate to severe cases. The HTCC again requested public comments and again received overwhelming support for coverage of FAI surgery. In fact, the only comment not urging coverage came from Josiah Morse, who urged his own committee “to bullet, bold or otherwise call out the last sentence that no cost, cost-effectiveness data were found.” It seems inappropriate for Mr. Morse to emphasize a lack of data to his own committee as a reason to deny coverage of the surgery—especially when it is his committee that is entrusted to gather the data in the first place.

     The Washington Health Care Authority must be held accountable to the people of Washington State. Skyrocketing costs are obviously of great concern to anyone interested in healthcare reform, but costs alone cannot be the sole, or even dominant, ground upon which to base a healthcare benefit coverage determination. I, for one, am not comfortable living in a world where decisions about whether or not my insurance company will cover an expensive, life-saving or –altering procedure are based predominantly on the cost of the procedure.

 

 


[1] A quote attributed to Postmaster General James Farley in 1937.

[2] Joe Eaton, The Other Washington Could Hold the Key to Medicare’s Cost Crisis, The Center for Public Integrity (July 29, 2013).

Photo credit: Truthout.org / Foter / CC BY-NC-SA

L&I Proposes 2.7 Percent Average Rise in Workers’ Comp Rates in 2014

Joel Sacks, Director

This will be L&I’s first rate increase in three years.

The Department of Labor & Industries (L&I) has proposed an average 2.7 percent rate increase for 2014 workers’ compensation premiums, an increase of less than 2 cents per hour worked. Over the past two years, workers’ compensation surveys have shown an increase in rates nationally. This will be L&I’s first rate increase in three years.

Cutting Workers’ Compensation Costs

“This proposal is part of a long-term plan to ensure steady and predictable rates, help injured workers heal and return to work, and reduce costs by improving operations,” said L&I Director Joel Sacks. “My goal is to reduce costs by an additional $35-70 million in 2014.” 

Work underway to cut costs includes:

  • Helping injured workers return to work as soon as they are medically able.
  • Improving L&I’s workers’ compensation claims processes.
  • Improving workplace safety.
  • Improving medical care and reducing long-term disability.
  • Making it easy to do business with L&I.

 

Keeping Rates Steady

“I want wage inflation to be our benchmark for steady and predictable rates,” said Sacks. “Wage inflation is a good benchmark because workers’ comp costs increase as wages increase.”  Washington’s most recent wage inflation number is 3.4 percent. However, because Washington’s rates are based on hours worked and not payroll like other states, Washington needs to raise rates to get the revenue that other states get automatically.

“We must also continue to restore the state’s workers’ comp reserves that were used to hold down rates during the Great Recession,” Sacks added.  The department’s Workers’ Compensation Advisory Committee, made up of business and labor representatives, agreed to a plan to restore reserves over the next several years.

Public hearings on the proposed rates will be held in: 

  • Tukwila, Oct. 22, 10 a.m., Tukwila Community Center
  • Bellingham, Oct. 23, 10 a.m., Central Library Lecture Room.
  • Spokane Valley, Oct. 24, 10 a.m., CenterPlace Event Center.
  • Richland, Oct. 25, 9 a.m., Community Center Activity Room.
  • Tumwater, Oct. 28, 10 a.m., L&I Auditorium.
  • Vancouver, Oct. 29, 10 a.m., Northwest Regional Training Center Rainier Auditorium.

Comments about the proposed rates can be made at the public hearings or in writing to Doug Stewart, Employer Services Program Manager, P. O. Box 44140, Olympia, WA 98504-4140, or email to Doug.Stewart@Lni.wa.gov.  More information regarding the rates proposal is available at www.Rates.Lni.wa.gov  Final rates will be adopted in early December and go into effect Jan. 1, 2014. 

Workers’ Comp Facts:

  • The proposed rate is an average. An individual employer’s actual rate change may be more or less depending on that employer’s industry and history of claims that result in wage replacement and/or disability benefits.
  • About 100,000 claims are filed each year through the Washington State Workers Compensation State Fund. 
  • Factsheet: L&I initiatives to improve outcomes and reduce costs

 

 

Deion Sanders, critic of NFL concussion suits, seeks workers’ comp

Today’s post was shared by Workers Comp Brief and comes from www.latimes.com

During the pregame show before February’s Super Bowl in New Orleans, Deion Sanders shared his thoughts about the thousands of former football players filing concussion lawsuits against the National Football League.

“The game is a safe game,” the television analyst and Hall of Fame cornerback said. “I don’t buy all these guys coming back with these concussions. I’m not buying all that. Half these guys are trying to make money off the deal.”

What Sanders didn’t say was that more than two years earlier he had filed a workers’ compensation claim in California, alleging head trauma and other injuries incurred while playing for the Dallas Cowboys.

 

The case is pending, but in November 2010, Sanders was determined to be 86% disabled by the Division of Workers’ Compensation, case documents show. Four doctors who examined the former star diagnosed more than a dozen medical conditions, including cognitive impairment and behavioral/emotional disorder. The review also said Sanders suffered from arthritis and “arousal disorder,” a sleep impairment.

Sanders is one of a host of current NFL employees, including at least six other NFL Network analysts and dozens of assistant coaches and team personnel, who have made such claims, The Times has found.

The filings from its own employees underscore the depth and complexity of a head injury problem that the NFL is trying hard to put to rest. As the league opens its season this week, it’s pushing legislation in…

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Kit Case, Causey Wright's Paralegal & Media Manager

Rail Company Involved in Quebec Explosion Files for Bankruptcy

Today’s post was shared by Jon L Gelman and comes from workers-compensation.blogspot.com

Today’s post was shared by WCBlog and comes from www.nytimes.com

BANGOR, Me. — The railroad company whose runaway oil train caused a fire and explosion that killed 47 people in a small town in Canada filed for bankruptcy protection on Wednesday.

The company — Montreal, Maine and Atlantic Railway — filed for Chapter 11 bankruptcy protection in United States and Canadian courts, citing debts to more than 200 creditors after the July disaster in Lac-Mégantic, Quebec.

The company chairman, Ed Burkhardt, said previously that a bankruptcy filing was likely after service disruptions because its rail line remained closed in Lac-Mégantic. The company, based in Hermon, Me., also faces lawsuits and enormous cleanup costs related to the disaster.

The parked train, with 72 tankers full of crude oil, was unattended when it began rolling toward town, eventually derailing downtown. Several tankers exploded, destroying 40 buildings in the lakeside town of 6,000 residents.

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Truck Drivers Not Revved Up About New Safety Rules

Today’s post was shared by Jon L Gelman and comes from workers-compensation.blogspot.com

Today’s post was shared by NIOSH Transportation and comes from www.cnbc.com

The federal government thinks long-haul truckers like Bryan Spoon need more rest.

But with the Department of Transportation’s new rules forcing drivers to take longer breaks and cut back on hours behind the wheel, Spoon thinks the government has created a solution looking for a problem.

“I wish the government would just quit trying to fix something that’s not broken,” he said on a recent rest stop in Columbia, Mo., after hauling a load of construction materials on the 48-foot Great Dane flatbed behind his 2009 Volvo 780.

“If I get any more breaks out here I won’t be able to make a living,” he said.

Starting Monday, drivers like Spooner will have to stick to a schedule that requires taking a 30-minute break in the first eight hours of driving, cut the maximum workweek to 70 hours from 82, and “restart” those 70 hours with a 34-hour break once a week.

The rules are part of a program by the Obama administration to make U.S. highways safer by reducing the number of truck accidents and fatalities. The program also includes a safety rating system that shippers can review when they chose a new carrier, with the goal of prodding the trucking industry to further improve the safety of its drivers and equipment.

“The updated hours of service rule makes three common sense, data-driven changes to increase safety on our roadways and reduce driver fatigue, a leading factor in large truck crashes,” said…

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The High Price of Gas – Mileage Reimbursement for Injured Workers

     Injured workers who are are dependent on time loss compensation payments of only 60-75% of their wages unfortunately are well used to the enormous financial losses and constraints this wage loss puts on their family budgets.  With budget cuts being made by the Department of Labor & Industries which place additional burdens on workers by reducing reimbursements for the additional costs incurred as a result of an injury, it is important to be aware of what you can be reimbursed for, and what some relatively new regulations do not cover.  The current mileage reimbursement rate is now 56.5 cents per mile.

When money is tight, making sure you receive everything you are entitled to under your claim is important!

     Injured workers are always entitled to receive travel and/or wage reimbursement if they are asked to attend an IME (Independent Medical Exam).  However, we have noted that more recently both the Department and self-insured employers are failing to provide workers with the form necessary to be reimbursed gas mileage for what are often not insignificant distances.   Many workers are unaware they can have their wages reimbursed as well if they miss time from work.  The form can be found online here.  When self-insured employers do not provide our clients with a reimbursement form when sending out IME notices, we will send out the Department’s standard form.

     More difficult to decipher are the rules allowing for travel reimbursement for medical treatment or vocational services.  A different form must be filed to obtain reimbursement for these expenses.  At Causey Law Firm, we insure that our clients are reimbursed for travel for vocational meetings which take place in our office.  Parking is expensive in Seattle, and that cost can be reimbursed to you directly.  Some law firms charge a fee on travel reimbursement expenses, but we do not.

     While injured workers have the right to treat with their own preferred provider, travel reimbursement is only paid for regular treatment visits if there is no adequate treatment provider within 15 miles of their home AND if the claims manager has pre-authorized the travel.  Travel reimbursement is now limited for regular medical treatment visits by the so-called “15 mile rule”.  Thus, if your pre-authorized provider is 30 miles from your home, reimbursement will only be provided for the last 15 miles each way of that trip.  As with medical appointments, regular visits to meet with a vocational counselor are only covered after that 15 mile threshold has been reached.  If you are approved for a formal vocational retraining plan, however, mileage may be fully reimbursable through your plan with necessary signatures and paperwork submitted through a vocational rehabilitation counselor.

      Many workers are unaware of their right to apply for reimbursements, which can be submitted to the Department for a period up to one year of the date of travel.  The Department’s general guidelines can be seen here.  When money is tight, making sure you receive everything you are entitled to under your claim is important!

 Photo credit: Eric Fischer / Foter / CC BY

Pay Tribute on Labor Day – A Nationwide Holiday

Detailed illustration of a 3-cent stamp issued to commemorate Labor Day in 1956. The image comes from a mosaic in the lobby of the AFL-CIO building in Washington, D.C.

     The US Department of Labor – which is celebrating its centennial this year – has provided a history of Labor Day, including the inception of the holiday and the traditions that surround it, excerpted below. 

…a day to honor those “who from rude nature have delved and carved all the grandeur we behold.”

     The form that the observance and celebration of Labor Day should take was outlined in the first proposal of the holiday — a street parade to exhibit to the public “the strength and esprit de corps of the trade and labor organizations” of the community, followed by a festival for the recreation and amusement of the workers and their families. This became the pattern for the celebrations of Labor Day. Speeches by prominent men and women were introduced later, as more emphasis was placed upon the economic and civic significance of the holiday. Still later, by a resolution of the American Federation of Labor convention of 1909, the Sunday preceding Labor Day was adopted as Labor Sunday and dedicated to the spiritual and educational aspects of the labor movement.

     The character of the Labor Day celebration has undergone a change in recent years, especially in large industrial centers where mass displays and huge parades have proved a problem. This change, however, is more a shift in emphasis and medium of expression. Labor Day addresses by leading union officials, industrialists, educators, clerics and government officials are given wide coverage in newspapers, radio, and television.

     The vital force of labor added materially to the highest standard of living and the greatest production the world has ever known and has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pay tribute on Labor Day to the creator of so much of the nation’s strength, freedom, and leadership — the American worker.

 Opportunity. Then and now, it’s about opportunity.

     Labor Secretary Tom Perez blogged about the interwoven history of the civil rights movement and the labor movement, their common goals, and the needs we still face today.  Secretary Perez said:

     “…But again, there is still so much more to do … in skills training and education, workplace safety and health, retirement security and job creation. And in particular, we must do more to ensure an honest day’s pay for an honest day’s work.

     People who work full-time in America should not have to live in poverty – simple as that. Too many jobs don’t pay enough to get by, let alone get ahead. Too many people are finding the rungs on the ladder of opportunity further and further apart. Workers around the country are bravely raising their collective voice and taking action to demand fair wages. We need to hear these voices. They are acting in the proud tradition of the marchers 50 years ago who took action for justice and dignity.”

     We couldn’t agree more. So, as we head out to our family barbeques or other Labor Day activities, we wish to pay tribute to those individual threads – the American Workers – that together create the fabric of our nation.

Spokane Restaurant Owner Charged with Theft of Nearly $250,000 in Workers’ Comp Payments

     The Washington State Department of Labor and Industries issued the following news bulletin with details of a recent fraud investigation:

A Spokane restaurant owner faces a felony theft charge alleging she defrauded the state of nearly $250,000 in workers’ compensation benefits over eight years while claiming she could not work.  In reality, a Department of Labor & Industries investigation found Wanitta Racicot, 69, was cooking, busing tables and performing other duties at a restaurant that she co-owns.

The Attorney General’s Office recently charged Racicot, of Spokane Valley, with one count of first-degree theft in Spokane County Superior Court. Racicot is scheduled to enter her plea to the charge on Sept. 4. According to court documents, Racicot filed for workers’ compensation with L&I in 2001, claiming she injured both of her arms while working at a restaurant. After opening her claim, she regularly signed official documents stating she was not employed and was unable to work due to her injury.

In August 2011, L&I launched an investigation after Racicot’s case raised red flags to a department employee, who was examining whether Racicot should be referred for a pension. During the investigation, Racicot told an investigator that her hands remained so damaged that she could not button shirts or put on earrings, court documents said. The same month, an investigator witnessed Racicot carrying groceries, busing heavy dishes, scrubbing the bar counter and doing other tasks at her Spokane business, Broadway Bar and Grill, on multiple days. In addition, Racicot’s current and former employees and business associates told the investigator that she had been working at the restaurant for more than five years, and one employee said she had been doing so since at least 2001.

The charge alleges Racicot fraudulently received $249,267 in time-loss benefits for replacement of lost wages from March 2003 until August 2011. First-degree theft carries a maximum penalty of 10 years in prison plus a $20,000 fine and costs.

     In addition to the criminal penalty and fines, I expect that an overpayment order with fraud penalties was also issued under the workers’ compensation claim, although this was not mentioned in the bulletin.  The Department is able to issue an order claiming an overpayment of the benefits paid incorrectly PLUS a penalty of up to 50% of the overpaid amount.  The criteria for meeting the legal burden of proof in a fraud case is pretty tough, for good reason, but when fraud is proven the penalties can be quite severe.

     The description of this case sounds like the Department has a solid case against the claimant.  However, not all fraud cases are as clear-cut.  If you find yourself facing an overpayment order, with or without allegations of fraud, contact an attorney for possible assistance with the fight to come.

 

Photo credit: Flavia_FF / Foter / CC BY-NC-ND

Spokane Restaurant Owner Charged with Theft of Nearly $250,000 in Workers’ Comp Payments

     The Washington State Department of Labor and Industries issued the following news bulletin with details of a recent fraud investigation:

A Spokane restaurant owner faces a felony theft charge alleging she defrauded the state of nearly $250,000 in workers’ compensation benefits over eight years while claiming she could not work.  In reality, a Department of Labor & Industries investigation found Wanitta Racicot, 69, was cooking, busing tables and performing other duties at a restaurant that she co-owns.

The Attorney General’s Office recently charged Racicot, of Spokane Valley, with one count of first-degree theft in Spokane County Superior Court. Racicot is scheduled to enter her plea to the charge on Sept. 4. According to court documents, Racicot filed for workers’ compensation with L&I in 2001, claiming she injured both of her arms while working at a restaurant. After opening her claim, she regularly signed official documents stating she was not employed and was unable to work due to her injury.

In August 2011, L&I launched an investigation after Racicot’s case raised red flags to a department employee, who was examining whether Racicot should be referred for a pension. During the investigation, Racicot told an investigator that her hands remained so damaged that she could not button shirts or put on earrings, court documents said. The same month, an investigator witnessed Racicot carrying groceries, busing heavy dishes, scrubbing the bar counter and doing other tasks at her Spokane business, Broadway Bar and Grill, on multiple days. In addition, Racicot’s current and former employees and business associates told the investigator that she had been working at the restaurant for more than five years, and one employee said she had been doing so since at least 2001.

The charge alleges Racicot fraudulently received $249,267 in time-loss benefits for replacement of lost wages from March 2003 until August 2011. First-degree theft carries a maximum penalty of 10 years in prison plus a $20,000 fine and costs.

     In addition to the criminal penalty and fines, I expect that an overpayment order with fraud penalties was also issued under the workers’ compensation claim, although this was not mentioned in the bulletin.  The Department is able to issue an order claiming an overpayment of the benefits paid incorrectly PLUS a penalty of up to 50% of the overpaid amount.  The criteria for meeting the legal burden of proof in a fraud case is pretty tough, for good reason, but when fraud is proven the penalties can be quite severe.

     The description of this case sounds like the Department has a solid case against the claimant.  However, not all fraud cases are as clear-cut.  If you find yourself facing an overpayment order, with or without allegations of fraud, contact an attorney for possible assistance with the fight to come.

 

Photo credit: Flavia_FF / Foter / CC BY-NC-ND