Experience Of New Virginia Legislator Points To Difficulty Of Multi-State Claims For Injured Workers

Democrat Lee Carter, a democratic socialist, won an election to represent Virginia’s 50th District in the state’s House of Delegates.

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

Lee Carter took a bad experience with a work injury and turned it into motivation to win election to the Virginia legislature last November. But the nature of Carter’s bad experience with his work injury shows why electing true worker advocates to state legislatures may not be enough to protect injured workers.

Carter was a Virginia resident who was injured in Illinois working for a Georgia company. Carter attempted to bring his claim in Virginia but he was unable to do so because of lack of jurisdiction. Tennessee lawyer Denty Cheatham pointed out on the WILG listserv that Carter’s difficulty in bringing a claim was why national standards are needed for workers compensation.

So-called federalization is controversial in the world of workers’ compensation. Workers’ compensation is a creature of state law by what amounts to a fluke of legal history. When workers compensation laws were passed in the 1910s, the Supreme Court held that regulation of workplace safety was outside of the federal government’s ability to regulate interstate commerce but was within the so-called police power of the states.

Two decades later during the New Deal era, the Supreme Court expanded the definition of interstate commerce in the 1930s which allowed Congress to enact laws impacting the workplace such as the Fair Labor Standards Act, Title VII and the Occupational Safety and Health Act (OSHA).

OSHA was implemented in the 1970s as concerns about the adequacy of state-based workers compensation systems arose from organized labor and the civil rights movement. Part of the OSHA Act was a National Commission that called for minimum standards for workers compensation claims. Part of having standardized state laws would mean that state laws would be more uniform and multi-state claims would be easier to navigate for injured workers.

Our firm is part of WILG which is a national organization of workers’ compensation lawyers. Multi-state or multi-jurisdictional claims are probably one of the most discussed topic on the WILG listserv. Mainly lawyers discuss which state’s have the best laws for a particular case. In some circumstances workers can also bring claims in and collect benefits in multiple states. The current system works for knowledgeable lawyers, but it can fail injured workers who may not even be able to bring claim because of questions over jurisdiction.

Multi-state claims can also subvert democratic rule. A worker has some input over workers compensation laws in the state where he or she lives and votes through their respective state legislatures. A worker who is forced to bring a claim in another state does not have that influence unless they happen to be among the 6 percent of private sector employees represented by a union. But even then, it may be burdensome to bring a claim in another state.

But workers have a say over national laws through their Congressional representatives. Minimum standards and some uniformity in state workers’ compensation laws would give injured workers more say in the types of benefits they would receive if they were hurt out of their home state or hurt for an out of state employer. Minimum standards legislation would also draw more national attention to the short coming of various state workers’ compensation laws. Renewed pushes for federal standards for workers’ compensation happened in the early Obama administration and towards the end of the Obama administration. National standards for workers’ compensation legislation will probably have to wait for a change in the partisan makeup of the two elected branches of the federal government.

Limits on Medical Treatment Options for Injured Workers?

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

Doctor choice.  And choice of treatment.  The Wisconsin way.

Unlike systems in other states, an injured worker in Wisconsin has access to their own doctor and what that doctor recommends for medical care.  Wisconsin does not have specific directed care or a panel of worker’s compensation doctors. The choice of medical care and experienced practitioners produces some of the fastest return to work rates in the country, along with low costs per claim.

The only “limit” is the “two doctor rule,” where a Wisconsin injured worker has the right to see their own doctor or to get a second opinion from another doctor.  While any doctor beyond the “two doctor” limit would be excluded from coverage (unless mutually agreed to by the work comp carrier), a worker has the right to see any doctor that is part of the referral chain from the two doctors–making doctor choice virtually unlimited if the worker obtains an appropriate referral!

The recommended medical care should be covered by the work comp carrier is reasonable and necessary to cure from the effects of an injury.  Unless the insurance company has a contrary medical opinion (through an adverse, or “independent” medical evaluator), they generally are responsible for the medical treatment recommended, whether that is therapy, office visits, prescriptions, injections, surgery, etc. 

Other states place limits on the type of treatment a worker can receive.  A recent article revealed that Ohio legislators are limiting when injured workers can have certain prescription medications or surgery (Ohio Imposes Strict Rule on Workers’ Back Surgery, Opioids).  Ohio is required a worker undergo 60 days of “alternative care”, potentially without opiate use, before having a work-related back surgery.

To date, Wisconsin’s legislature preferred the medical expertise of its physicians and their treatment recommendations.  Relying on experienced, quality medical practitioners allows workers swift access to the necessary medical care and recommendations–and puts them back in the workplace fast!

 

I’M A 10!!!!

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

This article will not be discussing Bo Derek’s memorable jog down a beach in that memorable movie of the same name.  Instead it discusses the reliability of pain scales in the context of injury cases, a much less interesting topic!

According to the Journal of the American Board of Family Medicine, “Though the accuracy of the 5th vital sign for pain assessment is moderate, it is much lower in practice than under ideal research circumstances. Uniquely, we found that nurses may not always use the 0 to 10 scale to properly quantify pain levels and that informal screening practice leads to underestimation. Efforts to improve routine pain management can confidently use NRS, but provider training, education, and monitoring in screening techniques are needed, as are efforts to link the 5th vital sign to clinician action for better pain managementReading between the lines, this organization found nurses and doctors need more education in order for pain scales to be reliably used.

Typically, patients are asked to rate their pain from 0-10.  However, how those numbers are described seems to vary widely.  One clinician may describe a “10” as the worst pain imaginable, while another may describe it as the worst pain you have ever felt.  Of course, that can result in very different ratings depending on one’s history of prior injury and pain tolerance.  The results may be further complicated by cultural distortions, difficulties in interpretation, psychological factors including depression, education level which could impact understanding and an individuals pain tolerance in general.   Additionally, many injured people may generally feel that they must exaggerate their symptoms in order to be believed or to get the necessary medical treatment they require.  It’s important for us to emphasize to our injured clients that exaggerating symptoms is never a good idea and could result in some very real credibility consequences with the Court, employer and medical professionals.  On a similar note, it’s not uncommon to have some clients underestimate the symptoms they experience, and this also can result in difficulties related to being assigned appropriate work restrictions, getting necessary medical treatment and giving a full picture of the injury itself.

It’s not uncommon in trial for defense attorneys to make light of what they characterize as “exaggerated” pain ratings of 9 or 10.  Additionally, if you are arguing that a condition has gotten worse, it’s difficult to do so when 9 or 10 pain ratings have been given previously.  One colleague recently recounted an exchange during trial which is illustrative.  A client was discussing non-operative back pain to a Judge and had told him his pain was a 10.  When told to imagine Jesus Christ on the cross as the last spear thrust that ended his life as a “10”, and to compare his pain to that the client noted again his non-operable back pain was a “10”.  One can imagine how this client’s credibility may have been negatively impacted by this statement.

Don’t Go It Alone

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

An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.

The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.

What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.

The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.

When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”

How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.

Do not go it alone.  At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.

People With Disabilities Are Finding More Work

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

By Ben Paynter, Fast Company, 3/6/2018, via Governor’s Committee on Disability Issues and Employment

People With Disabilities Are Finding More Work, But There’s A Long Way To Go

A new report finds that while there’s been some improvement, people with disabilities (especially minorities) face huge barriers to entering the workforce. 

While the vast majority of Americans with disabilities want to work, just over one-third are able to find jobs, according to a recent survey from RespectAbility,  a nonprofit that works to empower and increase opportunities for people with disabilities.

That creates a major societal problem: Without gainful employment, more than 12 million people are losing out on wages that might fuel more independence, never mind the obvious hit to their feelings of self-worth. But there’s some good news: more than 343,000 new workers with disabilities took jobs in 2016, four times as many as the year before.

That finding is part of a separate RespectAbility report analyzing recent data from the 2017 Annual Disability Statistics Compendium, an online repository of federal data that’s compiled by the Institute on Disability at the University of New Hampshire. The current percentage of people with disabilities who have jobs stands at 36% compared to 78% of people without disabilities who are employed.

The success of workplace hiring varies drastically from state to state. The top three states doing the best at inclusion are North Dakota, South Dakota, and Minnesota (with rounded hiring rates of 54%, 52%, and 48%, respectively). Those states lagging the worst are West Virginia, followed by Alabama, and Mississippi (all have rates in the upper 20% range). There’s evidence that people with disabilities who are minorities may be doubly discriminated against; the hiring rate for African-Americans is especially low, at 28% overall.

RespectAbility’s analysis points out that places where opportunity is improving and have committed to adopting strong transitional school-to-work programs and state policies that support equitable job-training and development and workplace hiring practices. Two groups with initiatives that appear to be succeeding are called Project SEARCH and Bridges from School to Work.

Project SEARCH, the report notes, is an example of an employer-led effort to match students with disabilities to new jobs. It’s active in 46 states and 78% of participants end up being hired. Bridges from School to Work is known for its career “assessments, workshops, and job matching.” The effort has placed candidates at 4.500 workplaces, according to its website, and it has been honored by several of the national and local employers in different cities where it works. Standout companies include Starwood Hotels & Resorts in Dallas, Sears and AMC Theatres in Los Angeles, and Walmart in the Washington, D.C. metro area.

RespectAbility’s analysis makes clear that it will take a multi-pronged approach to make change: policy shifts, new programs, and obviously ever-more companies with a strong commitment to fair hiring practices. In recent years, companies like JP Morgan Chase, Pepsi, UPS, SAP, Ernst & Young, IBM, Starbucks, and Walgreens have become particularly good role models for inclusion. As the report notes: “These companies have seen that people with disabilities are successful employees who improve businesses’ bottom lines.”

Photo by linkwize on Foter.com / CC BY-NC-ND

Trump’s Assault on Workers

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

As a workers’ compensation attorney, I tend to view current events through the prism of their effect on workers and more specifically injured workers.  The Trump Administration has rolled back his predecessor’s strides in environment, labor and finance, civil rights, health care, government reform, immigration, and education.  I would like to specifically address reverses in worker and consumer safety.  The Washington Post updated how Trump is rolling back Obama’s legacy through 16 executive actions, 74 cabinet level agency decisions, 14 congressional review acts, and a piece of new legislation. 

  • Specifically, in terms of worker and consumer safety, the Mine Safety and Health Administration is revising a mining inspection rule published three days after Obama left office by allowing examiners to do their reviews while miners are working letting companies not record hazardous conditions if they are immediately corrected.
  • The Trump Administration Interior Department ordered the National Academy of Sciences, Engineering and Medicine to stop a study of health risks for residents near surface mining operations in the Appalachians.
  • The EPA delayed implementing a rule that would have changed how agricultural workers are protected from pesticides.
  • The EPA is delaying implementation of rule to require manufacturers to label formaldehyde and composite wood products.
  • A Coast Guard plan to regulate firefighting systems on tanker ships and helipads on offshore platforms was withdrawn.
  • Additionally, a Coast Guard rule that would have required all ships and berths to maintain equipment and technical systems for safety was withdrawn.
  • OSHA delayed implementing a rule regulating construction worker exposure to silica (linked to lung disease and cancer).
  • The House and Senate passed a bill signed by President Trump eliminating worker safety regulations aiming to track and reduce workplace injuries and death.
  • The Labor Department removed from its agenda a proposal to stiffen exposure standards for chemical solvents.
  • The Labor Department cancelled plans to lower permissible exposure limits for some substances that had been set in 1971 and cancelled plans to revoke obsolete permissible exposure limits for other substances.
  • The Labor Department removed from its agenda a proposal to tighten exposure standards for styrene, a chemical used in plastics identified as a carcinogen.

This laundry list of anti-worker executive actions, Cabinet-level agency decisions and Congressional review acts reveals the hypocrisy of Trump’s campaign promises to help working families.  Rather, it reveals his completely anti-worker policy.

Compstitutional Law 101: Part 2: Will Sveen signal a move to judicially dismantle the “grand bargain”?

Watch out for what these three could say in Sveen v. Melin

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

WILG is hosting a summit on the constitutional challenges in workers’ compensation on April 18th, I won’t be able to attend, but this post and my last post are my contribution to this ongoing discussion.

Stating that “a seemingly obscure case could have far-reaching implications” is one of the most overused clichés in legal blogging and journalism.  But a case involving a dispute over the proceeds of a life insurance policy might impact the constitutional basis for workers’ compensation and other state laws protecting employees.

In March, the Supreme Court heard oral argument in Sveen v. Melin (paywall). In Sveen, a former spouse was challenging a Minnesota law automatically removing a spouse as beneficiary of an insurance policy upon divorce. The grounds for the challenge is the so-called contracts clause of the United States Constitution which prohibits states from passing laws that impair the obligation of a contract.

Pro-corporate legal commentators have long lamented the demise of the contracts clause at the expense of laws enacted by states under 10th Amendment police powers. When these pundits and academics write about a “contracts clause revival”, they are really writing about diminishing the rights of states to enact laws under their police powers.

One of the most important set of state laws enacted under police powers are workers’ compensation laws. In New York Central Railroad v. White  state workers’ compensation laws were found to be constitutionally enacted under a state’s 10th Amendment police powers.  State laws regulating workplace safety and the ability to injured employees to seek legal redress were one of the primary drivers for the broad recognition of police powers in the late 19th century. A good discussion of the background behind the expansion of state police powers is found in the 1898 Supreme Court case of Holden v. Hardy.  In short, the Supreme Court found that state workplace safety laws were a response to the new industrial economy of the late 19th century and valid exercises of state police powers.

University of Chicago Law Professor Richard Epstein argued that minimum wage laws violated the contracts clause.  It’s not much of an intellectual stretch to argue that mandatory workers’ compensation laws would violate the contracts clause using Epstein’s interpretation of the contracts clause. A gig economy employer like Uber subjected to a state workers’ compensation law might argue that they should not be subjected to such a law under the contracts clause.

On April 2nd the Supreme Court reversed 70 years of precdent in narrowly construing exceptions to the Fair Labor Standards Act in the Navarro case. Navarro will likely have the effect of pushing plaintiffs to file more wage and hour cases under state laws. A revived contracts clause could cut off or curtail opportunities for justice for victims of wage theft in state court.

A potential contracts clause revival should concern advocates for injured workers for other reasons. In recent years, attorneys for injured workers have had a fair amount of success in overturning anti-worker changes to workers’ compensation laws based on state constitutions. That avenue would likely be blocked with a full-blown contracts clause revival.

In the late 19th and early 20th century, state laws regulating workplace conditions were struck down under 14th Amendment substantive due process. But substantive due process also allows claims for a broad variety of civil rights that are disliked by judicial conservatives, so the substantive due process clause is disfavored by courts.  The contracts clause allows courts to strike down worker-friendly state laws without creating a mechanism for expanding rights for suspect classes of individuals like prisoners or victims of police brutality. In New York Central v. White, the Supreme Court considered and rejected arguments overturning workers’ compensation laws on substantive due process grounds and contracts clause grounds.

Finally, a broad interpretation of the contracts clause would allow the Supreme Court to overturn state workers’ compensation laws while still maintaining the narrowed interpretation of interstate commerce the Roberts court appear to be endorsing in NFIB v. Sebelius. As I wrote in a post last week, a narrow construction of the commerce clause could be a high hurdle in enacting worker-friendly chagnes to workers’ compensation laws on a federal level.

Sveen v. Melin will likely be decided this spring. If the Supreme Court strikes down the Minnesota law based on the contracts clause, I will be interested to read the language of the opinion. I will also be interested in reading any concurring opinions from hard core conservatives like Gorsuch, Thomas and Alito as those opinions could be a clue as to where the court could be going on contracts clause jurisprudence. It is unlikely that Sveen v. Melin will be grounds to invalidate state workers’ compensation laws. Supreme Court decisions are limited to actual cases and controversies that are presentd to them. But Sveen could be another step in undercutting New Deal and Progressive Era refroms.  The Supreme Court has been chipping away at New Deal era laws in cases like Navarro and the Tackett decision in 2015. A bad decision in Sveen might accelerate the rollback of pro-worker laws.

“Independent” (or are they “Adverse”!) Medical Examinations

Don’t get mad…get an attorney.

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

Was your worker’s compensation claim just denied by an “independent” medical evaluator?  You are not alone.

Following a work injury, the insurance company legally can require the injured worker’s attendance with an independent medical evaluator, or IME.  The IME doctor is not the worker’s doctor, and the worker does not have to agree with the doctor.  The problem, however, is that many IME doctors disagree with the causation opinion of the treating physician, and then the IME opinion effectively serves as the default legal opinion until the case either goes to court or is settled.   That means that the insurance company’s hired doctor can be used to cut off a worker’s benefits–forcing the case into litigation.

If the treating physician disagrees with the IME report, a worker should consult with an attorney to dispute the IME denial.  After all, the IME is hired by the insurance company.

A recent in-depth article pointed out the potential for bias by insurance company-hired IMEs: Long-time judge: Some ‘independent’ doctors routinely rule against injured workers.  For many in the work comp world, a more appropriate term for these hired doctors is adverse medical examination.  Certainly that is not true of all IMEs, but some physicians–especially those who are not actively seeing patients–seem to curry favor with the insurance company by denying a worker’s medical claim.

When the insurance company doctor disputes a claim, the injured worker needs their own treating doctor and their attorney to push back against the IME denial.