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Creative Legal Argument Leads To An Award of Lifetime Diability Benefits

Today’s post comes from guest author Kevin Walsh, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Good lawyering requires both creativity and a deep knowledge of the law. Last week I obtained a ruling of Permanent Total Disability for a client. The ruling entitles her to much-deserved lifetime weekly compensation benefits. This is especially important because in 2007 the Workers Compensation Law was changed to put limits on the time period for which you can receive benefits. There is now a 10-year limit on benefit duration unless you had a 100% Medicial Disability or a 100% Loss of Wage Earning Capacity (ability to work and earn money).

My client is a 55 year-old woman with a severe back condition. All of the doctors she consulted with conculded that she has a 60% medical disability. Most attorneys would have accepted that rating as is, entitling her to just 350 weeks of compensation benefits. But that would have been the wrong outcome.

Because of my client’s educational level and work experience, I knew that she was entitled to more. She only has a high school education and does not know how to use a computer. My client has never worked in any other position other than house cleaning.

All of the doctors who testified conceded that my client’s injury prevented her from doing her job – the work of a house cleaner. In fact, they all conceded that she could not do any type of physical labor. I then took my client’s testimony and established her lack of transferrable skills, focusing on her education and work experience. In essence I showed that there was no other work that she could successfully perform.

The judge agreed with my argument — my client has only a 60% Medical Disability, but has a 100% loss of her Wage Earning Capacity. The judge awarded my client Total Disability benefits, which allowed an award of a lifetime of benefits, not just a 10-year benefit period. This was a huge, and much-deserved, victory for my client.

When representing clients it is important to know your client and to know their background. This is how we practice. We strive to obtain the best outcome for out clients by knowing them, knowing the law and knowing how to obtain the maximum benefits for them.

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Workers’ Compensation Fraud – North Carolina Statistics for 2014 – 2015

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Several months ago, the North Carolina Industrial Commission published their Annual Report for 2014 – 2015. Based on the Annual Report, employer fraud was by far the overwhelming majority of investigated fraud in the North Carolina workers’ compensation system.

 

The Annual Report tracked investigations of suspected fraud and violations related to workers’ compensation involving employees, employers, insurers, health care providers, attorneys, and rehabilitation providers. The total figure of fraud investigations for 2014 – 2015 was 1,474 cases. Of those 1,474 cases, 1,336 cases related to employer fraud. That means that 90.64% of the investigated workers’ comp fraud was fraud on the part of the employer.  Whereas there were 129 cases of suspected employee fraud (i.e. 8.75% of the total investigated fraud cases).

 

The silver lining? Of the employer fraud that was prosecuted, the State of North Carolina was able to collect nearly $1,000,000 in revenue just in 2014 – 2015 in fraud penalties paid by noncompliant employers. 

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CNBC: If you’re sitting at your desk, GET UP NOW!

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Causey Law Firm has taken small steps to implement ergonomic planning in our office.  We have one Varidesk sit/stand desktop conversion in use, like the one shown in the video, as well as a fully convertible sit/stand desk and adjustable-height rolling cart in our file room.  Several people use a FitBit or similar device to encourage and track movement throughout the day. It’s not easy to integrate motion into a desk job, but it can really help!  Take a look at this great piece from CNBC for inspiration:

If you’re reading this article at your desk and you’re sitting, get up. It is one of the best things you can do for your health. If you don’t want to stand, then do something active while you’re sitting. Millions of workers are choosing to do both, thanks to a slew of new office products that are gaining traction — and dollars — fast.

“This is no longer just a one off, it’s a product category,” said Thompson Research Group’s Kathryn Thompson, an analyst who covers the office furniture industry. “Fitness equipment is a critical part of the new office, and it’s really a critical part of the office of the future.”

The “healthy office segment” is the fastest growing sub-sector of the $10 billion office furniture industry, and Thompson estimates it could grow to one-third of the industry in the next three to five years. Workers and employers alike are demanding it. 

“Good health makes good economic sense,” Thompson said.

Attention to workplace fitness really ramped up in just the last few years, after the Mayo Clinic published a study on the detrimental effects of sitting for long periods of time. Mayo’s Dr. James Levine is credited with coining the term “sitting is the new smoking.” He is also inventor of a treadmill desk.

Read the rest of the article here…

 

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OSHA Investigates October Incident; Also Focuses Efforts on ‘High-Hazard Manufacturing Industries’

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

The U.S. Labor Department’s Occupational Safety and Health Administration recently highlighted two news releases that are related to or will affect workplace safety, workers’ injuries, and workers’ compensation in both Iowa and Nebraska. These two states are in OSHA’s Region 7, along with Kansas and Missouri.

OSHA’s news release on Jan. 14 focused on an incident where a Nebraska worker fell more than 20 feet and died in October of last year. The worker had been employed for Custom Contracting Inc., of Lincoln, for just two weeks, according to the news release from OSHA.

There was no fall protection provided to the workers at their construction site, and “the agency also found the company failed to train workers to:

  • “Recognize fall hazards.
  • “Render first aid.
  • “Operate powered industrial vehicles.

“In addition, guard rails were not installed on open sides and ends of platforms to prevent falls, and lift trucks were found to be modified without manufacturer’s approval,” according to the website.

OSHA proposed penalties of $36,000.

“Fatal incidents like these are entirely preventable. They have tragic consequences for the victims, their families, and their communities,” said Jeff Funke, OSHA’s area director in Omaha, as quoted in the news release. “Construction industry employers must protect workers from falls, which continue to be the leading cause of worker’s death in the construction industry.”

In the second news release from OSHA that I’d like to discuss, a regional emphasis has been announced this is focusing on “high-hazard manufacturing industries” in Nebraska, Kansas and Missouri.

“The increased likelihood that workers in high-hazard manufacturing industries – such as food, furniture, fabricated metal, nonmetallic mineral, machinery and computer products – will be injured on the job is leading federal safety and health inspectors in three Midwestern states to increase its focus on industry outreach and inspections to reduce injury and illness rates,” according to the news release from OSHA.

This “region-wide emphasis program” is expected to last three months and includes “outreach and education to assist employers” to decrease hazards “and increase the probability of inspections at establishments in high-hazard industries with more than 10 employees and those that have not had a comprehensive inspection since 2011.”

If you or a loved one are involved in an incident at work that results in an injury or death, please contact an experienced workers’ compensation lawyer. This person should also be able to help report your concerns to OSHA as applicable.

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Work Comp Advisory Council Officially Produced an Agreed-Upon Bill

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

As anticipated, on December 22, 2015, the Worker’s Compensation Advisory Council (WCAC) approved its Agreed-Upon Bill.  The official statutory language and bill summary can be found here The bill now goes to the Wisconsin legislature for consideration and, hopefully, passage.

Production of this Agreed-Upon bill underscores the success and stabilizing hand of the Advisory Council.  The WCAC, composed of members of labor and management (including the Wisconsin Manufacturers and Commerce), typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produces reasoned, incremental changes that maintain the stability of the system for all stakeholders—employers, carriers, and workers.  The WCAC immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

 The Advisory Council bill deserves full support of all Wisconsinites that care about our nationally respected worker’s compensation system.  There is, however, lone wolf legislation floating about.  We previously talked about a bill (being pushed by Rep. John Spiros, head of the Trucking Industry Defense Association) that is properly seen as the “worker’s compensation destruction bill.” These ideas in the Spiros-led bill (AB-501) were NOT considered or vetted by the Advisory Council.  The Council protects against just this sort of unchecked effort—protecting against random or crackpot ideas from severely damaging the reputable system. 

In stark contrast, the Advisory Council carefully considered changes and produced a reasoned bill that improves or system and benefitsall stakeholders, especially the employers of our state.  Indeed, some “employer-friendly” provisions include the following:

  • A worker’s violation of alcohol or drug policy (if causally related to the injury) denies benefits.
  • No lost time benefits (TTD) if terminated for good cause (using recent unemployment standards)
  • A reasonable and manageable reduction in statute of limitations from 12 to 6 years.
  • Establishing a Dept of Justice position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Workers also have some incremental, important benefits in the Agreed-Upon bill.  The permanent partial disability payments receive slight annual increases.  Workers also will be allowed to work a certain amount of hours while pursuing academic retraining without having a decrease in work comp benefits, and workers will be allowed to ask a judge for “prospective” retraining claims (benefitting a worker who does not have the financial ability to enroll in school unless the work comp carrier will be paying). 

The Advisory Council bill maintains the stability of Wisconsin’s first-class worker’s compensation system.  Lone wolf legislation should be dismissed. We urge the Wisconsin legislature to whole-heartedly endorse the reasoned Advisory Council bill.

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Insult to Injury: ProPublica’s Series “Demolition of Workers’ Compensation” Focuses on Ongoing Workers’ Comp Woes Faced by Injured Workers Nationally

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Recent years have not been favorable to injured workers. States across the nation have enacted “reform” measures curbing injured workers benefits. Disability caps have been introduced, medical care restricted. In our last blog, we discussed Oklahoma’s Opt Out provisions as an example of the court system declaring that the legislature had legislated away too much of the injured worker’s protections. A couple years ago, Florida workers’ comp laws were declared unconstitutional by a judge. Although the decision was later reversed, the Florida judge (Judge Cueto) expressed concerns regarding the loss of an employee’s right to wage-loss benefits after an accident.  

 

NPR and ProPublica have been authoring an in-depth series on national workers’ compensation issues. ProPublica reviewed “reams of insurance industry data” and their findings confirmed what many workers’ compensation attorneys suspected for years:  insurance companies are increasingly controlling medical decisions, workers are unable to pick their own doctor in many states, and insurers are denying medical care based on internal “guidelines.”

 

As an example, ProPublica’s article talks about a case in California where the insurance company reopened an old case and denied medical care based on the opinion of a doctor who never even saw the patient. “Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.”

 

The article also brings up a good point about workers’ comp fraud. Repeatedly studies show “most of the money lost to fraud results not from workers making false claims but from employers misclassifying workers and underreporting payroll to get cheaper insurance rates.”

 

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CBS’s 60 Minutes: The King of Coal and the Massey Mine Disaster

Today’s post comes from guest author Kit Case, from Causey Law Firm.

The following is an exerpt from the online version of the program “King of Coal” which aired on March 6, 2016. 

In December, for the first time in U.S. history, a CEO of a major company was convicted of a workplace safety crime. His name is Don Blankenship and he was once known as the “King of Coal.” The company he ran, Massey Energy, owned more than 40 mines in central Appalachia, including the Upper Big Branch mine, located in Montcoal, West Virginia, a state where coal is the dominant industry.

In 2010, the Upper Big Branch Mine was the site of the worst mining disaster in the U.S. in 40 years — the kind of accident that isn’t supposed to happen anymore. It was just after 3 o’clock on April 5, when a massive explosion tore through miles of underground tunnels, killing 29 miners. Prosecutors accused Don Blankenship of ignoring mine safety laws and fostering a corporate mentality that allowed the disaster to occur.

It was an early 1900s type of explosion. Conditions should never have existed for that to take place. – Stanley Stewart

READ the full script of the interview by Anderson Cooper, the correspondent, and WATCH the full episode and associated video clips HERE.

 

Photo credit: SMU Central University Librariesvia Foter.com / No known copyright restrictions

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Holdrege, Nebraska, BD Plant Cited by OSHA Again

Becton, Dickinson and was recently fined by OSHA for workplace hazards leading to partial amputations of workers’ fingers.

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

“Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.”

This paragraph from a recent news release gives an overview of OSHA’s role. In Nebraska, that role comes into focus when investigators look for safety violations, often after a workplace incident that causes injury, as was the case at Becton, Dickinson and Co. in Holdrege in 2015.

Earlier this month, the news release at the link describes how BD was cited for machine hazards in both April and September of 2015. However, in October, in two separate incidents, two different workers “suffered partial amputations of their index fingers” at the Holdrege manufacturing plant.

“The agency has proposed penalties of $112,700,” after finding one repeat and 12 serious safety violations when the amputations were investigated. Best wishes are being sent to the two workers whose lives were altered after their on-the-job injuries.

In this case, it is obvious that the workers’ injuries were related to these specific workplace incidents, because their amputations resulted in an OSHA investigation of the business. But sometimes there are questions when it comes to workers’ compensation in Nebraska. If a business or its insurance company questions or denies a workers’ compensation claim, then it’s time to get help from an experienced workers’ compensation lawyer. Our attorneys are licensed in both Nebraska and Iowa and have decades of experience helping injured workers in situations like the one above, so please contact us if you or a loved one have been hurt on the job.