The workers’ compensation system is broken — and it’s driving people into poverty

Today’s post was shared by Gelman on Workplace Injuries and comes from www.washingtonpost.com

There’s a good news/bad news situation for occupational injuries in the United States: Fewer people are getting hurt on the job. But those who do are getting less help.

That’s according to a couple of important new reports out Wednesday on how the system for cleaning up workplace accidents is broken — both because of the changing circumstances of the people who are getting injured, and the disintegration of programs that are supposed to pay for them.

The first comes from the Department of Labor, which aims to tie the 3 million workplace injuries reported per year — the number is actually much higher, because many workers fear raising the issue with their employers — into the ongoing national conversation about inequality. In an overview of research on the topic, the agency finds that low-wage workers (especially Latinos) have disproportionately high injury rates, and that injuries can slice 15 percent off a person’s earnings over 10 years after the accident.

“Income inequality is a very active conversation led by the White House,” David Michaels, director of the Occupational Health and Safety Administration, said in an interview. “Injuries are knocking many families out of the middle class, and block many low-wage workers from getting out of poverty. So we think it’s an important component of this conversation.”

There are two main components to the financial implications of a workplace injury. The first is the legal…

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Shelby County teen’s alleged murder sparks $10 million wrongful death lawsuit

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.al.com

The alleged murder of Cameron McGlothan, 19, in 2013 has sparked a lawsuit against a security company and the developer of a north Shelby County subdivision. 

The family of a teen who was allegedly murdered in March 2013 has filed a wrongful death lawsuit against a security company and developer of a north Shelby County subdivision for allowing the two suspects in the case to enter the gated community and abduct the victim.

The parents of Cameron McGlothan filed a lawsuit in Shelby County Circuit Court last Friday that seeks $10 million for the wrongful death of their son against Walden Security Inc. and Eddleman Properties Inc.

In the lawsuit, Dawn and Ernest McGlothan accuse the two companies of failing to follow policies and procedures by allowing the two men, who were later charged with murder in the case, to enter the Highland Lakes subdivision on Highway 41 and abduct the 19-year-old.

The lawsuit alleges the guard station operated by Walden at Highland Lakes’ entrance did not get proper identification from Justin Hamilton and Demarcus Samuels, both of whom have been charged with capital murder in the case.

The two suspects provided incorrect names to guards while video equipment at the gate did not accurately record their vehicle’s tag number, which caused a delay in their identification, according to the lawsuit.

The McGlothans accuse the companies of breach of contract, negligence, wrongful death and negligent training and supervision, according to the lawsuit filed…

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Facebook Postings Hurt Workers’ Compensation Claims

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

While Facebook is extremely popular and used by over a billion people every day, no Facebook posting has ever helped an injured worker in a workers’ compensation claim. On the contrary, use of a Facebook page poses real dangers for injured workers pursuing workers’ compensation benefits.

Since Facebook is a public site, anything posted can be used by respondent insurance companies in claims denial. Even the most benign postings (birthday parties, family gatherings, etc.) can pose problems. For example, a grandparent lifting a 30 pound grandchild when doctors have imposed a 10 pound lifting limit could damage a claim. Additionally, nothing prevents an Administrative Law Judge from looking at a Facebook page.  Even innocent posts may be subject to misinterpretation. A picture of the worker riding a motorcycle or fishing taken prior to the injury but posted afterward could place the seed of doubt in an ALJ’s mind that the worker is not as limited as he claims. The best advice is to be extremely careful about what is posted because “friends” are not the only one who can access your Facebook page.

Lawsuit: SRC violated former teachers’ rights

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.philly.com

Travel Deals

THREE RETIRED Philadelphia School District teachers have filed a federal lawsuit against the School Reform Commission, former chair Bill Green, the city and other parties for allegedly violating their constitutional rights during an SRC meeting.

The trio – Ilene Poses, Lisa Haver and Barbara Dowdall – say the violations occurred during a Feb. 18 meeting at which commissioners voted on charter-school applications, according to the suit filed Tuesday in U.S. District Court in Philadelphia. The plaintiffs are members of the advocacy group Alliance for Philadelphia Public Schools.

The Feb. 18 meeting was contentious, with four people arrested on disorderly-conduct charges, and the plaintiffs were not allowed to display signs opposing new charter-school approvals, the suit says.

Representatives from charter operator KIPP, however, were allowed to distribute and wear T-shirts in support of KIPP schools, the suit says.

The suit also claims that a school police officer named as a defendant, John Augustine, illegally went into Haver’s shopping bag without permission and swiped all the protest signs inside.

"Without cause or justification, and at least in part in retaliation for the exercise of the plaintiff’s First Amendment rights and to chill the exercise of those rights, the defendants seized the plaintiffs, confiscated their signs and violated the plaintiffs’ liberty interests," the suit says.

A school district spokeswoman said the district would not comment on…

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URGENT: Let’s Keep Wisconsin’s Worker’s Compensation System the Best in the Nation!

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

Wisconsin’s worker’s compensation system—established in 1911 and part of the “Wisconsin Idea” in politics—has been in place longer than any other in the country and is the envy of other states. The Governor’s Budget Bill (2015 SB 21) proposes major changes to the structure and substance of Wisconsin’s nationally-recognized worker’s compensation system. The proposal would remove the Worker’s Compensation Division from the Department of Workforce Development and then split up previously integrated components, with the adjudicatory functions (administrative law Judges) moving to the Office of Hearings and Appeals (in DOA) and the regulatory, customer service, and claims management functions going to the Office of the Commissioner of Insurance.  Among other significant changes, Judges would be reduced to solely adjudicatory functions, no longer assisting with the law’s administration, and then cross-trained for other legal areas.  The proposals also eliminate the requirement that compromise agreements be approved by ALJs.  The proposed changes could have a hugely negative impact on Wisconsin:

1) Destabilizing effect on insurance carriers, employers, and taxpayers:

Worker’s compensation insurance is a major industry and employer in our state. Total premiums collected for worker’s compensation insurance were approximately 1.75 billion dollars in 2013.  The system as a whole works well for all stakeholders.  Workers generally receive timely benefits with excellent return to work rates.  The system cost to employers is low, as employer premiums have been very stable (rising less than 2.35% on average in the past six years; less than inflation).  Worker’s compensation insurance companies like to do business in our state because of the system’s stability and the corresponding ability to earn profits.  Indeed, at the end of 2014, almost 300 insurance companies writing and competing for worker’s compensation insurance business here.

The worker’s compensation advisory council assists with the system’s stability.  The council is comprised of representatives of labor, management, and the insurance industry, as well as medical provider liaisons.  The council’s agreed-upon changes to the worker’s compensation law, which historically were approved by the legislature, allowed for continual effectiveness and efficiency. 

 The current budget proposal had no input from the advisory council or stakeholders. If the bill passes, the advisory council process is likely over.  Without the council’s steadying process, Wisconsin could face substantial swings in its worker’s compensation law.  Fluctuations in the law will have an immediate impact on the bottom line for insurers, employers, and medical providers. Insurance companies could avoid our state. Employers could face large swings and spikes in premium rate.  Medical providers could see negative impacts on reimbursement rates.

 2) Governmental overreach on a system supported by private business: 

The current Worker’s Compensation Division (at DWD) is not funded by taxpayers; virtually the entire system is funded by assessments from worker’s compensation insurers and self-insured employers.  Thus, private businesses fund the Division, including payment for judges, staff, IT costs, rent, etc.  Along with its payments and the advisory council process, the insurance industry has helped shape the law into its current efficient form.

The Budget Bill suggests that the government has a better handle on the system than those private industries that craft and support it.  The bill proposes no changes in the funding of the system—thus, the worker’s compensation insurance industry will be paying for a soon-to-be inefficient and greater litigious system.  Presumably, the worker’s compensation insurance industry wants to fund staff and judges that have expertise in worker’s compensation—not those “cross-trained” in other areas.  The industry should favor a coherent, integrated system for administering their claims.

Additionally, with a current system that uses virtually 0% taxpayer dollars, the Budget Bill proposal creates an increase in taxpayer costs.  The cost of a “simple” physical move of personnel has to come from somewhere.  There is a huge IT cost—likely in the millions—based on the current system and software of the worker’s compensation division.

3) Less efficiency = Increased claim costs = Increased premiums:

Based on independent studies, Wisconsin workers are paid more quickly and return to work sooner than virtually any other state.  Wisconsin is in the top 10 for lowest cost per worker’s compensation claim.  Wisconsin also has one of the lowest amounts of litigated injuries in the country—with almost 85% of cases resolved without dispute or attorney involvement.  The studies indicate that credit for these positive outcomes is from the efficient administrative process and personnel at the current Division, who actively monitor claims and promote timely reporting and administrative resolution of disputes and concerns. For example, a Judge currently can hold an informal telephone conversation between an injured worker and an insurance company adjuster to resolve a dispute about the appropriate legal payment.

The current proposal is to split up this efficient administrative structure without any rational basis.  The Judges would be spun off into an entirely new agency and separated from the other division personnel.  Private settlements could occur without the valuable Judge oversight and protection.  The efficiency of the administrative system is lost by splitting up the division, and increased litigation is a guarantee.  (As an example, if I want to buy a hot dog, it seems blatantly inefficient to require purchase of hot dog in one place and then the bun in another). 

Without division assistance or oversight, workers will seek counsel.  Litigation will occur over previously-resolvable issues.  Attorneys will litigate the validity of the private settlements.  Increased litigation means increased claims costs, which means increased premiums for employers.  The volume of increased litigation also could force the need for more employees at the new agencies.

 We should maintain our place at the pinnacle of worker’s compensation systems and not look to poor analogies suggested from other states like Florida (comp law declared unconstitutional) or Texas (an opt out system, bringing in the possibility of civil litigation).  The administration’s citation to Illinois’ structure is misplaced as Illinois arbitrators/judges are directly part of the state’s worker’s compensation state agency.

4)  Negative impact on medical providers:

Medical cost payment is currently 2/3 of all payouts in worker’s compensation claims (in 2012, medical providers received almost $600 million total, while worker payments were about $275 million). Under current law, Judges review and approve all compromises, which serves to protect the interests of workers, medical providers, and group health carriers.  The Judges make sure the bills are satisfied.  Logic dictates that private settlements mean more claims will be closed—cost-shifting to medical providers.  Insurers will attempt to settle claims early and for smaller sums of money (like in civil litigation).  More closed claims means that medical bills and treatment that would have been covered within the 12 year statute of limitations by a worker’s compensation insurance company will now be shifted to the worker’s health insurance or none at all.  Thus, medical providers will be accepting lower Medicaid/Medicare reimbursement rates for charges that should have been under worker’s compensation.

 5) Cost-shifting of worker’s compensation system to taxpayers, via Medicaid/Medicare. 

Just as the above, with the allowance for private settlements, we will see an exponential increase in claims being closed sooner than in the past.   A closed claim immediately shifts the costs for future medical care to the worker’s own health insurance, including Medicaid and Medicare.  There is no denying an increase in taxpayer-funded health care costs if the current proposal moves forward.

ACTION IS REQUIRED.  Why “fix” a nationally-recognized system that is not broken?  If you favor the continuation of Wisconsin’s worker’s compensation system, contact your Wisconsin legislators now.

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Ports of Tacoma and Seattle Urge Immediate PMA-ILWU Contract Resolution

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

The Port of Seattle issued a statement on February 12, 2015 urging the PMA and ILWU to reach a resolution to their contract dispute:

In light of US West Coast ports’ limited activity this weekend, the ports of Seattle and Tacoma continue to press the Pacific Maritime Association and International Longshore and Warehouse Union to resolve the impasse in contract negotiations.

The ports do not have a seat at the negotiating table, however we have been exercising the limited options available to try to mitigate impacts on our customers and to keep cargo moving.

We share the frustration of the farmers, manufacturers, retailers, truckers and warehouse and distribution operators, who are suffering collateral damage as they continue to lose billions of dollars and lay off employees.

A lockout or strike would put even more stress on the working people throughout our state who rely on ports for their livelihood.

Taken together, marine cargo operations in Tacoma and Seattle support more than 48,000 jobs across the region and provide a critical gateway for the export of Washington state products to Asia.

This protracted negotiation is resulting in widespread economic damage and will have a lasting impact on our state’s economy.

We risk losing our role as a critical gateway as shippers seek alternatives to West Coast ports.

gCaptain reported on the weekend suspension of cargo loading and unloading at west coast ports, noting that the Pacific Maritime Association said that terminal yard, rail and gate operations at the ports, which handle nearly half of U.S. maritime trade and more than 70 percent of imports from Asia, would go on at the discretion of terminal operators through the weekend.  gCaptain quoted a statement from the PMA: “In light of ongoing union slowdowns up and down the coast which have brought the ports almost to a standstill, PMA member companies finally have concluded that they will no longer continue to pay workers premium pay for diminished productivity.”

gCaptain’s report continued:

Announcement of the weekend suspension came two days after the chief labor negotiator for the companies at the 29 West Coast ports warned that waterfronts that have been plagued by severe cargo congestion in recent months were nearing the point of complete gridlock.

The companies have repeatedly accused the International Longshore and Warehouse Union, which represents 20,000 dockworkers, of deliberating orchestrating work slowdowns at the ports to gain leverage in contract negotiations that have dragged on for nine months

The union denies this and faulted the carriers themselves for the congestion, citing numerous changes in shipping practices as contributing factors.

The union also has downplayed the magnitude of the congestion, suggesting that management was exaggerating a crisis as a late-hour negotiation ploy.

Our local West Seattle Blog has been following the (lack of) progress between the PMA and ILWU.  The WSB reported on two days of horrible traffic between West Seattle and downtown, which was caused by a backlog of trucks crowding the surface streets around Terminal 18.  The following day, the traffic had returned to normal.  From an outisder’s perspective, it seemed that the drivers of Seattle had been used as a pawn in the match between PMA and ILWU.

(Photo by James Bratsanos)

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Why CNAs and Home Health Aides Should Care about the Fight over a Federal Regulation

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

A U.S. District Court in Washington, D.C., recently struck down a federal regulation that would mandate that home health aides are paid the minimum wage and paid overtime under the federal Fair Labor Standards Act (FLSA). Though the decision will likely be appealed, this decision is still a bad decision for the men and women who do the hardest jobs in health care – home health aides and certified nursing assistants.

Why home health aides aren’t covered by federal wage laws

Home health aides were exempted from the FLSA 40 years ago in order to make caring for the elderly less expensive. However, companion care has become a big and very profitable business. An index of publically traded home-health-care stocks has consistently outperformed the stock market as a whole for the last 13 years. This profitably is due in part to the minimum wage and overtime exemptions for home health aides.

How the home health exception affects other jobs in the medical field

The federal government estimates that nearly 1 million are employed as home health aides, while private sources estimate that number as 2 million. Home health is also a fast-growing field of employment. Home health aides essentially have the same job duties as certified nursing assistants (CNAs). CNAs are generally covered by minimum wage and overtime laws, but workers with the same skills and same duties are exempt from those laws if they are working as home health aides. CNA wages are pushed down by home health aide wages, which are exempt from federal wage laws.

Why pay is about more than wages

A recent study of CNAs showed that nearly 60 percent of CNAs report injuries during a 12-month period. The injury rate is similar for home health aides. The study also showed that higher-paid CNAs were injured less frequently than lower-paid CNAs. The study indicated that organizational factors really drove injury rates among CNAs. In other words, in settings where CNAs are truly valued, paid fairly and trained, the injury rates are lower. But if CNAs are treated as low-wage, high-turnover cogs in a machine, then injury rates are higher. Low pay for CNAs and home health aides isn’t just an issue for employees. Low pay for home health aides and CNAs has been linked to poor patient care.

While the Obama administration has been criticized for being too aggressive in enforcing the FLSA, the U.S. Department of Labor announced that they will delay enforcement of the home health aide regulation until July 2015. This assumes courts will let the Department of Labor actually enforce the regulation. Anyone concerned about this issue should contact their members of Congress to support legislation that ends the home health aide exception. People should also contact their state legislators to support legislation that would ensure that home health aides are covered by state wage and hour laws.

Barking dog could cost Seattle family their home

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from news.yahoo.com

Like bullies and illnesses, lawsuits can be ignored, but they won’t go away. Denise Norton learned this valuable lesson the hard way this week when she found out that a lawsuit she has tried to ignore could wind up costing Norton her North Seattle home.

Her neighbor Woodrow Thompson filed a lawsuit alleging that the sound of barking from Norton’s dog, Cawper, was intentionally causing him “profound emotional distress.” In his detailed, 36-page complaint, Thompson claimed that the canine’s “raucously, wildly bellowing, howling and explosively barking” was capable of reaching 128 decibels. For context, the U.S. Occupational Safety & Health Administration — the Labor Department agency tasked with enforcing safe working conditions — says a person should not be exposed to a noise of 115 decibels for more than 15 minutes a day. That said, according to the Centers for Disease Control and Prevention’s Noise Meter, Thompson’s claim would mean that Cawper’s bark is louder than an ambulance siren and just slightly softer than a jet engine at takeoff.

“In my head, everything was so bogus that he’d been doing, I don’t know why, I just didn’t think it was real or something,” Norton told the local ABC News affiliate, KOMO-TV. That’s why, even when she was served with papers, Norton simply didn’t respond.

Unfortunately for Norton, however, the suit was very real, and because…

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