Citizens Pushing Back Against Attack on Work Comp System

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

Citizens are waking up to the potential legislative attack on the Work Comp System: Workers’ Compensation Bill an Attack on Our Rights.  This editorial is from the Wausau Daily Herald–right in the backyard of one of the legislators (Spiros) who has proposed this direct legislative attack.  We previously discussed the proposed legislation in a prior post: Legislative Alert: Worker’s Compensation Destruction Bill?

In Wisconsin, the stabilizing force–the Worker’s Compensation Advisory Council (WCAC)–is set to produce its agreed-upon bill in the upcoming weeks.  The Council is a group of labor and management that effectively “collective bargain” (yes, that’s not a bad phrase !) for biennial changes and common sense improvements to the system.The Council bill was unanimously agreed to by members of labor and management—which includes the WI Manufacturers and Commerce (WMC).

In direct contrast, the opposing bill (also known as the work comp destruction bill) was not considered by the Council.  It is a direct legislative attack on the work comp system.  The non-WCAC bill would tear down the whole system by exponentially increasing litigation, hindering access to medical care and recovery, and potentially creating a slippery slope to unlimited jury awards. 

As opposed to the work comp destruction bill, the WCAC bill will do what it always does—improve on the Worker’s Compensation Act.  Citizens are becoming aware.

 

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Company Fined Over $1 Million After Explosion at Newport, WA, Plant

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

Zodiac Cabin & Structures Support LLC has been fined $1,316,000 for workplace safety and health violations following an explosion at its carbon fiber production plant north of Spokane. Seventeen workers were injured in the oven explosion at the Newport, Wash., facility last July.

 

A nearly six-month investigation by the Department of Labor & Industries (L&I) concluded that the explosion could have been prevented if Zodiac had used required safety interlocks and safeguards to ensure that the curing oven was used safely and as advised in a consulting engineer’s report.

 

L&I cited the employer for 17 willful violations for knowingly and willfully exposing workers to the risk of serious injuries. The investigation found the company used defective equipment and didn’t ensure safe procedures were used when processing flammable materials in its industrial curing oven. Each violation carries the maximum penalty of $70,000.

 

“Had this explosion occurred during the day when many more workers were present, there could have been many more injuries and possibly even deaths,” said Anne Soiza, L&I assistant director of the Division of Occupational Safety and Health. “As it is, 17 people were injured and their lives put at risk from an incident that was highly predictable given the operating conditions.” 

 

Along with the willful violations, L&I cited the company for 18 serious violations, all with the maximum penalty of $7,000 because of the high potential for death or permanent serious harm.

 

Due to the danger of an explosion, specific safety interlock controls and other safety procedures were supposed to be in place before the highly flammable resins were used in the 90-foot drying oven. Those controls were not in place, despite the fact that Zodiac had advice from its contracted consulting engineer detailing the steps needed to ensure safe operation prior to using the flammable uncured resins.

 

The investigation found that flammable resins had been run through the oven a number of times prior to the explosion. L&I also discovered that 11 days before the incident, the plant was evacuated due to flammable vapors that created a risk of explosion in the same operation.

 

Four of the serious violations cited were for not ensuring effective energy control procedures were in place to protect workers when they had to reach inside the curing oven for cleaning, service or maintenance.

 

The company was also cited for eight “confined space” serious violations related to employees entering the 90-foot oven to perform cleaning, service or maintenance. Working inside a confined space area, such as the oven, without safety precautions can be deadly to both workers and would-be rescuers. Confined space hazards can include suffocation, toxic atmospheres, entrapment and other dangerous conditions that are fully preventable.

 

An additional six violations were related to failing to prevent ignition of flammable vapors and protect workers from inhaling harmful vapors and chemicals, such as from solvent and formaldehyde.

 

As a result of the willful violations, Zodiac Cabin & Structures Support LLC has been identified as a severe violator and will be subject to follow-up inspections to determine if the conditions still exist in the future.

 

The employer has 15 days to appeal the citation. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping workers and families of those who have died on the job.

 

For a copy of the citation or photo, please contact public affairs at 360-902-5413.

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Why I Am Thankful – Two Photographs

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Recently I took photographs of two men who remind me of why I am thankful every day. One man is sitting in a wheelchair at a restaurant, with his right hand in a contorted position and he is being fed by another person. The other man, also in a restaurant, is in shorts and is holding a small child in his arms.  But something is missing – his right leg – he has a flesh colored prosthetic device as a substitute.

I have spent a lifetime helping disabled people and I have never heard any of them say “You know, Mr. Jernigan, when I got up to go to work that day, I knew I was going to be severely injured and my life would change forever.” We never know when life will take a turn like that. We never know when we will lose our independence and sometimes our dignity. Fortunately, that day will never come for most of us. But it could.

When I think about the man in the wheelchair and the man holding his child, I think how lucky I am, and I am thankful each and every day. 

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Sometimes You Need Help

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

Last month our firm held a planning retreat in the beautiful town of Chapel Hill. We reaffirmed our firm’s slogan: “Accidents Happen, Sometimes You Need Help.”

Frequently we speak to injured workers during our free consultation about getting medical treatment. It’s frustrating and scary for an injured person to have to wait for authorization for surgery or a medical referral. Treatment delays are inefficient for everyone. It delays the recovery and, as a result, the return to work. Our goal is to expedite medical care when possible by following up with the workers’ compensation adjuster to have treatment approved and, if necessary, file a motion with the North Carolina Industrial Commission.

In a case I had last year, we were hired because the insurance company was dragging its feet authorizing an orthopaedic back doctor. After several communications, the adjuster agreed the referral to an orthopaedic back doctor was authorized. Sadly, the “orthopaedic doctor” that was authorized by the adjuster was actually a gynolcologist-obstetrician for my male client! Furthermore, it took several additional contacts to finally correct the situation and get my client to the appropriate doctor. Finally, my client was evaluated by an orthopaedic doctor, received medical treatment, and was also able to continue working.

Our firm sees these problems every day. I believe we (injured workers’ lawyers and insurance companies) should have a common goal:  Recovery and return to work. But “sometimes you need help” to get to that point.

 

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Understanding The Legionnaires’ Disease Outbreak

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

Most of us have heard the frightening statistics regarding the recent outbreak of Legionnaires’ disease in the Bronx.  As of this date, 12 people have died and more than 120 additional cases have been reported.   But what exactly is this mysterious malady affecting so many at one time and what are its causes?  

Legionnaires’ disease is a common name for a type of pneumonia caused by breathing in water mist containing the bacteria. It was named after a 1976 outbreak in Philadelphia during an American Legion convention that killed more than 30 people and sickened almost 200 more. Most of us rarely hear about this disease unless it is part of a large outbreak, but according to the Centers for Disease Control, anywhere from 8,000-18,000 people are hospitalized each year in the U.S. as a result of Legionnaires’.  The current outbreak in the Bronx seems to point to the building’s cooling towers that are used as part of their air conditioning, ventilation, and heating systems, but the bacteria can be found in almost any warm water system or device that disperses water including humidifiers, spas and whirlpools, and dental water lines. The disease is not contagious and can only be caused by breathing in the bacteria- laden vapor. 

The New York Committee for Occupational Safety and Health (NYCOSH) has put out a fact sheet for workers and unions. Workers performing routine maintenance on or in cooling towers and other water systems may need to wear respiratory protection. The Occupational Safety and Health Administration (OSHA) requires the employer to determine hazards and provide training programs if the use of a protective device is required. Additionally, there are recommendations regarding assessment of work sites for potential Legionnaires’ disease. Cooling towers should be regularly maintained and cleaned with the use of chlorine and unused water lines should be frequently flushed.

In this recent Bronx outbreak, the New York City Health Commissioner issued an order to all owners of buildings with cooling towers to disinfect all of them within 14 days of receiving the order and keep records of the inspection and disinfection. Those workers with the task of cleaning and decontaminating the towers are advised to wear protective respirators as well as rubber gloves, goggles, and protective clothing. 

Every worker is entitled to a safe work place. According to NYCOSH, certain groups of workers are at increased risk of exposure to Legionnaires’ disease, including those who maintain, clean, decontaminate, or work in close proximity to water systems and system components such as cooling towers, evaporative condensers, humidifiers, potable water heaters and holding tanks and pipes that may contain stagnant warm water.

Workers should be aware of Legionnaires’ disease symptoms, which include fever, headache, joint aches, and fatigue, that can deteriorate into difficulty breathing, chills, chest pain, and gastrointestinal symptoms. As Legionnaires’ is a type of pneumonia, it can be diagnosed with a chest x-ray and lab tests to confirm the bacteria. While most in the Bronx outbreak who died had a compromised immune system, early treatment with antibiotics can lessen the symptoms and improve the changes of recovery. 

  

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.   

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LEGISLATIVE ALERT: Worker’s Compensation Destruction Bill?

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

Time to wake up Wisconsinites! In a short timeframe, the current administration and legislature in Wisconsin has altered the landscape of our state in ways too numerous to count. Well, now we face another attempt to make-over and deform a progressive era landmark: Wisconsin’s Worker’s Compensation System.

A recent bill (LRB 1768) proposes direct and major changes to our state’s nationally recognized model worker’s compensation (WC) system. The proposed changes would dramatically alter and potentially devastate the stability of the system for all stakeholders. We urge all legislators not to support LRB 1768. Instead, there will be a separate, reasoned bill produced by the Worker’s Compensation Advisory Council.

Current System Works for All Stakeholders

Under the grand bargain of Wisconsin’s first-in-the-nation WC system from 1911, injured workers gave up the right to court lawsuits in exchange for timely, lesser, defined benefits without having to prove fault. Employer, in turn, are protected from unknown jury damage awards. Employers purchase WC insurance for this administrative dispute resolution process. The system safeguards the concept that work injury expenses appropriately are an employer’s cost of doing business rather than costs shifted to taxpayers through public assistance such as disability payments and Medicare and Medicaid.

The current system is highly effective for all stakeholders—making our system the gold standard compared to the rest of the country. Wisconsin traditionally has low and stable employer premiums. We have over 300 private section WC insurance carriers collecting premiums (in excess of $1.7 billion). We have faster return to work rates than in most states. We have incredibly low litigation costs and low litigation rates (only 10-15% of work injuries).

Work Comp Advisory Council (WCAC) is the bedrock of Wisconsin’s WC system 

Much of the credit for the beneficial metrics in our national model is from the stability offered by the Worker’s Compensation Advisory Council (WCAC). This Council, composed of voting members of labor and management (including the Wisconsin Manufacturers and Commerce, WMC), has typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produced reasoned, incremental changes that maintained the stability of the system for all stakeholders—employers, carriers, and workers. The WCAC generally has immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

Importantly, the WCAC successfully produced a reasoned Agreed Upon bill in the past weeks! (more details below).

The Proposed GOP Bill (LRB 1768) Would Decimate Worker’s Compensation in Wisconsin

A recent video highlights the egregious nature of the proposed bill:

 

 

The bill proposed by GOP legislators was not from or considered by the Advisory Council—it is an end-run around the stability-producing model.  LRB 1768 is a direct legislative attack on the WC system, introducing dramatic and foreign concepts to our system. Among the more outlandish proposal are the following:

  • Reducing WC benefits by amount of employee negligence!
    • This proposal eviscerates the “grand bargain” of WC, whereby a worker who suffers an on-the-job injury receives lower, defined benefits without regard to fault and employers, in turn, are protected from unknown jury damage awards.
    • It would force employees to prove the injury was not their fault while still protecting employers with the WC exclusive remedy (and with no corresponding change in benefits for employer negligence/fault)
    • Also, without any method provided for determining negligence, there would be a massive increase in uncertainty, litigation, and claims costs/premium. 
  • Employer-Directed Medical Care
    • Currently, workers have the right to medical providers of their choosing—creating a system where workers have access to timely, specialized medical care. This quality, unrestricted medical care produces great results: faster return to work rates than most states in the country!
    • Proposed employer-directed medical care allows the employer to choose a specific practitioner for an injured worker (e.g., a podiatrist could be designated to address work injuries, including a back claim). As such, a worker may not receive the appropriate specialized medical care, like physical therapy, chiropractor, psychology, or orthopedic specialist.
    • Employer directed medical care likely means a race to the bottom, focusing on which doctors best minimize WC benefits. The focus should be on swift access to quality medical care.
  • Harsh Reduction from 12 year to Two (2)-Year Statute of Limitations (SOL)
    • WC injuries can result in lengthy healing periods and long-term medical care.
    • A 2 year SOL directly cost-shifts the burden for WC injuries to the taxpayers (Medicaid, Medicare, SSDI).  Taxpayers should not be left holding the bag for the cost of work injuries.
    • A 2 year SOL will result in exponential litigation of WC claims.  WC attorneys will be forced to file applications on any/all claims to preserve the SOL.  Wisconsin could turn into Illinois (!) where litigation rates are 80-85%, versus our current 10-15% rate.
  • Elimination of PPD ratings
    • Current law utilizes minimum permanent partial disability ratings, established by an independent panel of physicians decades ago.
    • The GOP proposed bill would eliminate PPD minimums.  Further explosion in litigation would result as previously uncontested claims would now result in disputes between worker and adverse physician ratings.
    • Notably, the recently-produced WCAC bill provided a reasoned approach to any concerns over PPD ratings, by recommending an independent physician panel review of the ratings.
  • Elimination of benefits if misrepresentation on employment application
    • This ill-considered provision precludes benefits if an employee lied about physical condition on employment application.
    • Such a provision introduces potentially discriminatory quizzing of prospective employees.  It further introduces more litigation issues into this no fault system

The cumulative effect of the GOP bill provisions were not adequately deliberated. The result would be an exponential increase in litigation and a destabilizing effect on the WC system—meaning increased litigation costs, lengthy delays in claims, and increased employer premiums. Any crack in the grand bargain could open the floodgates to potential unlimited damages in personal injury liability lawsuits. One major injury could result in significant jury awards (See http://nypost.com/2014/12/18/injured-construction-worker-gets-record-62m-single-plaintiff-award/)

In stark contrast is the recent WCAC bill ….

WCAC Successfully Produced a Reasoned Reform Bill

The Advisory Council, on October 26, 2015, successfully produced an Agreed-Upon WC Bill. This reasoned WCAC bill was agreed to by labor and management—including the Wis. Manufacturers & Commerce (WMC), who sit on the Council. All stakeholders should get behind this Advisory Council bill. The full statutory language will be available in the upcoming weeks.

As opposed to the GOP bill (LRB 1768), the Advisory Council bill creates WC changes that benefit all stakeholders, especially the employers of our state. Some “employer-friendly” provisions include the following:

  • Worker’s violation of alcohol or drug policy (if related to 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  (vs a 2 year SOL which would drastically alter the system).
  • Establishing DOJ position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Thus, the Advisory Council produced a bill that addressed many management/employer concerns about the WC system. The Advisory Council listened and—as it has done for decades—successfully produced reasoned changes to the system. The stability of the system is preserved for all stakeholders. The WCAC Agreed-Upon Bill should be supported.

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Port of Seattle Commission Passes Paid Parental Leave

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

The Port of Seattle Commission approved a motion to provide four weeks of paid parental leave for non-represented employees during the 12 months following the birth, adoption, or placement of a foster child in the employee’s home – effective Jan. 1, 2016.
 
“This action ensures that every Port employee will have dedicated paid leave to recover from birth and/or bond with a new child,” said Port of Seattle Commission Co-President Courtney Gregoire. “We recognize those first days and weeks are important to the health of all the members of the family. Not only will paid family leave help the port attract and retain quality employees, it establishes a policy fundamental to supporting more women in the workforce.”
 
City Councilmember Jean Godden testified in favor of the motion and the positive impact it has had since the City of Seattle implemented a similar program this spring. King County is also expected to begin a paid parental leave program in the coming months.
 
The proposed parental leave plan will offer four weeks of paid time off to both men and women. The time must be taken in one consecutive block. The estimated annual cost of $250,000 is based on an estimated 32 eligible non-represented employees using the benefit each year.

 

Photo credit: MandoBarista via Foter.com / CC BY-SA

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Oklahoma Commission Says Workers’ Comp “Opt Out” Not OK

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

Ever since Oklahoma employers were allowed to “opt out” of the workers’ compensation system in 2013, nearly 60 big employers have chosen the “opt out” path. By opting out, these large corporations (like Wal-Mart and Big Lots) are no longer constrained by the requirements of the Oklahoma State workers’ compensation laws. Instead they are allowed to create their own internal workers’ compensation system playing under their rules and definitions.

According to a NPR study these opt out plans “ . . . provide fewer benefits, make it easier for employers to deny benefits, give employers control over medical assessment and treatment, and leave appeals in the hands of employers, and force workers to accept lump-sum settlements.”

However, just last week, the Oklahoma Workers’ Compensation Commission unanimously declared two sections of the “Oklahoma Employee Injury Benefit Act” (a/k/a Oklahoma’s Opt Out law) unconstitutional. According to the Commission, the Opt Out provisions deprived injured workers of equal protection and access to the court. The Oklahoma Workers’ Compensation Commission called the opt out plans “a water mirage on the highway that disappears upon closer inspection.”

Here is a link to the Oklahoma Workers’ Compensation opinion filed 26 February 2016. The ruling will likely be appealed and we can expect to hear much more about these Oklahoma opt-out plans in the near future.