Category Archives: Workers’ Compensation

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Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

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

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

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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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Medical Records Important for Workers’ Compensation Claim

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

Medical records are necessary to substantiate an injured worker’s claim. At a minimum, injured workers and attorneys need the records from doctors and hospitals to show the diagnoses the workers have and the treatment that they have received. This includes records from physical therapy, MRI, pain management, orthopedic, etc.  

Every injured worker has a right to receive her or his medical records, and by law should be able to obtain those records promptly at a fair cost.

Federal law is clear: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC § 17935(e)(1), and that health care providers may bill “only the cost of … copying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i). This is all part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act).

Rehm, Bennett & Moore employs the HITECH Act on behalf of injured clients to represent them in an efficient and cost-effective manner.

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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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Hoping That the Revolution in Medical Care Reaches Injured Workers

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

Imagine a cross between a FitBit and a TENS Unit (Transcutaneous Electrical Nerve Stimulation) that can control, on demand, issues that hurt workers face: anxiety, pain, PTSD symptoms.

That combination might not be as far-off science fiction as a person would think.

Wearable medical devices are making remarkable advances, according to respected workers’ compensation commentator Robert Wilson.

“We are only scratching the surface of what may be possible,” he predicts. “Wearable devices that can dispense medication, provide biofeedback and can both monitor and adjust a patients vitals are very real possibilities. Devices such as these will improve quality of life with real time application and treatment, and that ‘improved experience’ will help our industry drive better results at an ultimately lower cost.”

A real-life example of these advancements is an app called myBivy, which was originally developed to help veterans with PTSD sleep better by disrupting the physical “symptoms that precede night terrors.” The app is being developed by a team that “Tyler Skluzacek, a student at Macalester College” in St. Paul, Minnesota, began when he was inspired to help his father, a veteran of the Iraq War. The app is in its testing phases now and is estimated to “officially launch between March and May” of this year. Since “7-8 percent of Americans will experience PTSD at some point in their lives” and “11-20 percent of post 9-11 veterans are estimated to have PTSD,” it’s pretty obvious how the app may help those who have developed PTSD through a work-related injury sleep better. I look forward to hearing more about this particular app for sure.

This app meets Wilson’s criteria of how wearables need to evolve to be the most helpful to those who can benefit the most from them.

“To be really effective and successful, the wearable revolution needs at least one more evolution,” Wilson wrote. “An evolution that takes this medium from that of casual observer to mobile clinician; from simple data collector to partner in health. That is when we will see real benefits and results from wearable technology in all health delivery systems.”

I am hopeful that the relentless cost-containment efforts of the “Workers’ Comp Industrial Complex’ will not inhibit these creative efforts, so injured workers and their loved ones will be able to benefit from these advances very soon.

Status of Workers’ Compensation in the United States

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

For all those concerned about worker’s compensation in our country—which really is all citizens—take a look at this important report on the current status of worker’s compensation systems.  The report, from the Worker’s Injury Law & Advocacy Group (WILG) highlights the scary place where some legislators and big businesses want to take worker’s compensation.

Click here for the report. (PDF)

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Panthers’ Super Bowl Football Player (Thomas Davis) Joins the Big Game While Still Recovering from Surgery (or, in Work Comp Terms Panthers’ Employee Returns Full-Duty Pre-MMI)

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

Super Bowl 50 what a game! As a Panthers’ fan, it was depressing to see our usually high-scoring offense crushed by the Broncos’ defense. However, the Panthers’ defense kept us in the game until the bitter end. The dedication of Thomas Davis, a Panthers’ linebacker, was quite a site. Davis, who sustained a broken forearm in an earlier game, played through Super Bowl 50 with a surgically implanted plate and 11 screws in his right forearm. Davis shared a post-surgical photo after the Super Bowl on social media. In his post, Davis said:

This post is not about me, or how tough I am. It’s not to shine any light on me or my injuries. Our team doctors and trainers did an amazing job giving me an opportunity to get back on the field. This post is strictly to show how much love I have for my brothers and #PantherNation. Thank you all for your support and we will #KeepPounding.-TD

Take a look at the photo (if you’re not too squeamish) and you will be amazed that Davis played through the Super Bowl with over 20 stitches. Clearly, Davis is a strong individual. His decision to join the game, despite his injuries, was not taken lightly and was made with the consultation of his treating physicians.

Like Davis, many injured workers are extremely eager to return to work. Whenever possible, and medically acceptable, returning to work is the best option for the injured worker and the employer. However, the decision to return to work after an injury must be carefully evaluated. All too frequently, our firm receives calls from injured workers who prematurely rush back to work only to find out they can’t perform their old job duties. Sadly, their employer, although understanding at first, becomes frustrated with the injured worker’s physical constraints and the injured worker is terminated. Under these circumstances, the injured worker may have an additional cause of action (retaliatory discharge claim) but the end result could have been avoided if they monitored their recovery carefully and focused on healing before returning to work. 

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I was injured at home while working for my employer. Am I entitled to workers’ compensation benefits?

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

We’ve all seen the ads for “work from home” jobs (spoiler alert – many are scams). However, corporations like Apple, IBM, CVS, and many, many more are frequently advertising work-from-home or telecommuter jobs to employees thus providing a flexible work schedule. The question then arises – what happens if the telecommuting employee is injured at home? For example, what if the employee is injured during a personal coffee break? What if he slips on his driveway? Or, if she trips over her pet while walking to her van to get work supplies?

 

In deciding on whether an employee’s injury may be compensable, courts have generally considered (1) how regularly the employee works from home, (2) the presence of work equipment at home (e.g. work computer or corporate phone), and/or (3) other conditions particular to that employment that make it necessary for the employee to work from home. The courts specifically look to whether the employee is working from home for his or her convenience, or if it’s necessary from the employer’s standpoint that the employee work from home (e.g. there is no other suitable place of employment offered by the employer).

 

For example, in Utah, the Court of Appeals held that a sales manager who was spreading salt on his driveway in anticipation of an important business delivery sustained a compensable slip and fall at work. The Court determined that the manager’s motivation in spreading the salt was to assist the employer’s business. [AE Clevite Inc. v. Labor Comm’n, 2000 UT App. 35, 996 P.2d 1072 (2000)]. Also, where a custom decorator for J.C. Penney was walking out to her van in her garage to get fabric samples and tripped over her dog, that injury was also compensable [Sandburg v. J.C. Penney Co, Inc., 260 P.3d 496 (2011)]. The Court explained that the home premises was also her work premises and the decorator had to keep samples in her van to show potential customers.

 

The bottom line is that when telecommuters are injured at home during the actual performance of their jobs, regardless of how insignificant, the injury may be compensable.

 

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Action Needed To Ensure Sick 9/11 First Responders Receive Benefits

Animal Control Officer Diane DiGiacomo

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

A couple weeks ago, the Workers’ Compensation community was stunned over the outcome of the case of Animal Control Officer Diane DiGiacomo who developed cancer from exposure to toxins in the air after 9/11. Diane’s job was to search for and rescue pets near Ground Zero when many of the buildings surrounding the area were either evacuated or abandoned for weeks after the terrorist attack. 

Diane had filed a Workers’ Compensation claim after being diagnosed with breast cancer that had metastasized to her brain. The judge ruled that she was not entitled to New York State Workers’ Compensation benefits because she had not filed a timely claim. At the time of the ruling, Diane was bedridden and weighed a mere 60 pounds. Tragically, four days after the decision, she died as a result of her cancer. While my firm did not represent her, Diane’s tragic story touched many of us in the industry, whether as advocates for the injured worker or as defense counsel. What makes this case particularly sad is that the judge noted it was clear from the medical evidence that the cancer developed at least in part due to her exposure to the toxins in the air. Unfortunately, Diane was not entitled to Workers’ Compensation benefits because the deadline to register had passed.   

In order to be able to obtain Workers’ Compensation benefits for exposure after the 9/11 attacks, those who participated in the rescue, recovery, and clean up operations had to file a TWC-12 registration form prior to the current deadline of September 11, 2014. You did not have to actually be sick to file this form, but it preserved your rights if you worked in the area to file a claim later if you were found to be sick. It should be noted that the deadline has been extended twice because many of the illnesses such as cancer are slow starting and do not manifest themselves until many years after final exposure to toxins. The New York State Legislature has not extended this deadline again, at least as of this date.  

Officer DiGiacomo did not file her claim until sometime after September 11, 2014, because she was not actually diagnosed with cancer until after this date. According to the New York State Workers’ Compensation Board website, as of September 11, 2011, there were close to 49,000 WTC- 12 forms filed; however, hundreds or even thousands more may have been at the site doing rescue, recovery, and clean up and have not registered precisely because they were not sick as of the deadline or they didn’t know they had 9/11-related medical conditions. Perhaps it was based on their lack of understanding of the law or the opinion of some that they did not want to register because they somehow felt they would be taking benefits away from those who were already ill. Whatever the reason, it is imperative that the deadline once again be extended so that those who are currently ill, or become ill, have the full protection of the law.  

A bill introduced in the New York State Assembly by Assemblyman Peter J. Abbate, Jr., and co-sponsored by Assemblyman Phillip Goldfeder to extend the deadline to September 11, 2017, is still sitting in Committee. While Officer DiGiacomo did not live long enough to see the deadline extended, it is not too late to compensate her son and the rest of her family. Let’s make sure that those who helped get our city back on its feet are not forgotten.

 

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.