Cost Shifting: The Dirty (not so little) Secret of Worker’s Comp

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

Seasoned worker’s compensation practitioners know some employers and worker’s comp carriers consciously employ questionable tactics to limit their exposure. They mischaracterize high risk employee job titles as low risk to reduce premiums; they call long-term employees “Independent Contractors” to get them off worker’s compensation roles; they hire doctors to render boilerplate predictable opinions to deny claims; and they discourage genuine worker’s comp claims by telling employees to submit work-related medical bills to group insurers, Medicare or Medicaid.

They discourage genuine worker’s comp claims by telling employees to submit work-related medical bills to group insurers, Medicare or Medicaid.

This last piece of fraud is the most nefarious, especially since medical costs now exceed indemnity payments in Wisconsin and most other states. The cost shifting means we all pay (as increased group health premiums and taxes) for medical expenses that should be paid by worker’s comp carriers. In states such as Wisconsin where work injury related treatment expenses are paid at doctors’ usual and customary rates, shifting the cost to a group carrier, Medicare or Medicaid saves worker’s comp carriers millions.

The cost shifting means we all pay (as increased group health premiums and taxes) for medical expenses that should be paid by worker’s comp carriers.

Denial of a claim by using “legitimate doubt” or purchasing the opinion of an adverse medical examiner results in medical treatment provided at reduced negotiated rates through non-worker’s comp coverage (Union health care, Medicare, Medicaid, etc.). Continue reading »

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Does going back to work ruin my case?

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

QUESTION: Does going back to work ruin my case?

ANSWER: Not at all!

This question comes up a lot in Workers’ Compensation cases. When someone is injured they have to balance their personal and professional obligations while including their injury as a new variable. This is completely understandable. Oftentimes people want to try to get back to work but are not sure if their body will hold up. This uncertainty can cast a shadow over everything a person has to consider when they have a work injury.

First and foremost you should speak to your doctor and find out what you are physically capable of. While your injury may be improving, you may not be able to return at 100%. If your doctor clears you to return to work Continue reading »

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Watch Out On Social Media: Your Facebook Profile Can Impact Your Disability Benefits

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

When applying for disability benefits, keep in mind that decision-makers at administrative agencies, insurance carriers or their representatives may look up information about you on the internet and/or they may call you and hear your voice mail recording.

By applying for benefits, you are stating that you are sick/injured and are unable to work or only able to perform part-time or intermittent work. Information available on the internet or your voice mail recording that appears to contradict your application for benefits can result in your being turned down for those benefits. This could be information about your professional or personal accomplishments, a home-based business, or even volunteer activities, which may be no longer current or may not accurately reflect your level of functioning since you applied for benefits. THUS, WE ADVISE OUR CLIENTS TO REMOVE SUCH OUT-DATED INFORMATION FROM THEIR FACEBOOK PAGE, TWITTER PAGE, VOICE MAIL, ETC…

With regard to Facebook and similar social networking sites in particular, pay attention to your privacy settings for both written information and photos. Also, keep in mind that not all of one’s friends and acquaintances may be equally supportive of the notion that one is applying for benefits, especially those who are not entirely familiar with the medical problem or problems that are preventing you from working. We suggest that you think twice before sharing information about your medical condition, application for benefits and/or appeal status in such an internet forum.

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Nursing Facilities Have Higher Incidence Of Workplace Injury Than Construction

According to the U.S. Department of Labor Bureau of Labor Statistics “Workplace Injuries and Illnesses – 2010” report, the United States is becoming a safer place to work. In 2010, there were 3.1 million non-fatal work injuries reported. This translates to 3.5 injuries per 100 full-time equivalents, a slight decrease from the 2009 rate of 3.6 injuries per 100 full-time workers. The rate of injuries per 100 workers has been decreasing every year since 2002. In 2010, Iowa reported an above average number of work injuries, averaging 4.4 injuries per 100 full-time equivalent workers.

Of these 3.1 million injuries, nearly 76% (2.2 million) of injuries occurred in the service industry. Service jobs make up 82.4% of the labor market. Nearly 24% (0.7 million injuries) occurred in manufacturing industries, which make up 17.6% of the labor market.

Surprisingly, the state owned nursing and residential care facilities workers reported the most injuries at 14.7 injuries per 100 full-time equivalents. The industry with the most reported injuries in 2009, Local Government supported Heavy and Civil Engineering Construction, improved from 12.5 injuries per 100 full-time equivalents to 8.6 injuries per 100 full-time equivalents in 2010.

The statistics are encouraging, but I look forward to the day where there are no fatal workplace injuries, and where workplace safety is a primary concern for all employers and workers.

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Professionalism: A Choice Between The Art of War and Aikido Principles

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

Lawyers are often engaged to resolve conflicts. Sometimes the conflicts are resolved peacefully and harmoniously in a win/win environment and other times the resolution comes out acrimoniously and bitterly in a win/lose scenario. The former outcome is always preferred, yet many of us unwittingly choose a method of professional behavior that drives us toward a hostile, embittered and emotionally draining environment that we didn’t want.

How can this happen?

For insight, let’s look at an ancient Chinese military philosopher, Sun Tzu, who wrote The Art of War during the fourth century, B.C., and then compare it to the relatively recent principles expounded by Morihei Ueshiba, the Japanese founder of the martial art of Aikido. The Art of War was brought to the attention of the western world when it was translated into French and published in Paris in 1772. Napoleon is believed to have read and studied it. In more recent times, trial litigators and corporate executives have quoted from it in order to justify their tactics. Sun Tzu recognized that war was a matter of vital importance to the state and that it was mandatory that it be studied and mastered. (Machiavelli, when he wrote The Prince in 1513 A.D., had a similar vision about the importance of obtaining and holding power).

Sun Tzu was ruthless. He once had two of the King’s concubines beheaded after they repeatedly failed to follow his explicit instructions. Afterwards, all the other concubines followed orders as told. Sun Tzu was clever. He believed that all warfare is based on deception. He advocated angering the opposing general in order to confuse him, and sought to keep him under strain so he would wear down. Sun Tzu was aggressive. When his forces were abundant he urged attack. He encouraged agitation of the enemy and counseled striking where the enemy was most vulnerable.

Many lawyers follow these tactics in an attempt to gain strategic advantage over opposing counsel. Their goal is to win “the war” for their client and they will use any tactic allowed by the Local Rules or the Rules of Civil Procedure, etc., and can adamantly defend their actions by saying nothing they have done violated the Rules of Professional Conduct. Although Continue reading »

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Death On The Job – AFL-CIO’s Releases Its 21st Annual Report

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

The AFL-CIO has released its 2012 report on worker fatalities which also examines the Occupational Safety and Health Administration’s (OSHA’s) role in ensuring safe workplaces. The AFL-CIO has been producing this report for 21 years, and we hope they continue to do so.

Since Congress passed the Occupational Safety and Health Act in 1970, workplace safety and health conditions have improved. But too many workers remain at serious risk of injury, illness or death.

In 2010, according to data from the U.S. Bureau of Labor Statistics, 4,690 workers were killed on the job—an average of 13 workers every day—and an estimated 50,000 died from occupational diseases. Workers suffer an additional 7.6 million to 11.4 million job injuries and illnesses each year. The cost of job injuries and illnesses is enormous— Continue reading »

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Monday Q & A: Help – I forgot to keep track of the days I lost!

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

QUESTION: WHEN I GOT INJURED I DIDN’T KEEP A LIST OF THE DAYS I LOST. DOES THAT MEAN I CAN’T PUT IN A CLAIM FOR WORKERS’ COMPENSATION?

ANSWER: THE EMPLOYER IS RESPONSIBLE FOR REPORTING TO THE WORKERS’ COMPENSATION BOARD ANY DAYS LOST TO INJURY.

Joe had been out with that broken leg from the scaffolding accident for more than a month but less than three. That much he knew. However, he had misplaced his date book, and just wasn’t quite sure when he had returned to work. It was all hazy which might have to do with the mild concussion he had gotten from his fall. Joe was worried that if he didn’t have the exact dates his claim, his Workers’ Comp application wouldn’t be accepted. He began to think it was pointless to Continue reading »

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Scarring And Workers’ Compensation: Myth Vs. Truth (Part 2)

Today’s post comes from guest author Ryan Benharris from Deborah G. Kohl Law Offices.

Last week we posted on some of the myths and truths around scarring and your workers’ compensation claim. Today we have a few more things that you should know about this important topic.

MYTH: “I have to wait several years before I can collect payment for a scar.”

TRUTH: The law requires you to wait only six (6) months before you can collect payment for a scar. This is considered ample time for the scarring to be considered at maximum medical improvement. Never, ever wait to report a cut or burn to your employer. Even if you are able to continue working, you should tell your boss immediately about the injury. You should seek representation as soon as possible as well.

MYTH: “It’s just a cut. It’s not that bad. I don’t need professional medical treatment.”

TRUTH: Cuts and burns, if left unattended, can lead to serious medical conditions. We recently had a client who worked in the food service industry. He waited several weeks after he cut his hand with a knife to seek professional medical attention at a local hospital. Initially he thought that the cut would heal on its own if he treated it with antibiotic ointment and bandages. After several weeks of the cut not healing, he finally sought medical attention at his local emergency room. The hospital immediately referred him out for an evaluation with a hand surgeon as an infection had spread in the cut and the wound became gangrenous. The reality is that if the injured worker had sought medical attention immediately, his situation would likely not have turned as grave.

Scarring and disfigurement is a very important part of the Worker’s Compensation Statute. A scar is almost always a permanent reminder of an injury sustained at work. Your boss won’t have to live the rest of his or her walking around showing others a constant reminder of what happened; you will. You have an absolute right to be compensated for the physical damage it caused. It’s hardly a souvenir.

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Scarring And Workers’ Compensation: Myth Vs. Truth

Today’s post comes from guest author Ryan Benharris from Deborah G. Kohl Law Offices.

It might be mighty cheesy to dispense legal advice by citing a bad, sappy love ballad from 90’s alternative rock; but the Goo Goo Dolls put it perfectly when they said, “Scars are souvenirs you never lose.” In the case of scars, burns or disfigurements that resulted from a work injury, a scar is a souvenir (courtesy of your employer) that you never lose, that you also never wanted.
Very often, clients are confused about the laws governing scarring, disfigurement in the Massachusetts Workers’ Compensation system. Here is a brief list of some of the truths and myths about scarring, loss of function and disfigurement.

MYTH: “I can be paid for my scar regardless of where it is on my body.”

TRUTH: The insurer must compensate you for a scar; but only for a scar that appears on your hands, neck or face. Any scar that is visible to your hands neck or face is compensable under the Workers’ Compensation Statute. Section 36 of the Massachusetts Workers’ Compensation Statute is the section that governs compensable scars and disfigurements. Burns and other types of visible disfigurements are also covered under this section. A visible walking-limp is also a type of compensable disfigurement under this section.

MYTH: “In order to receive money for my disfigurement, I needed to have lost significant time at work.”

TRUTH: You do not have to have missed work in order to receive payment for compensable scars. In fact, the vast majority of claimants seeking payments for scarring have not missed any significant time (or any time at all) as a result of their scar. This is particularly true with claimants who work in the food preparation industry. Cuts and burns are the most common injury in those types of jobs. If you cut or burned yourself while working in a kitchen, you do not have to have missed any time at work to receive payments for the lasting disfigurement.

MYTH: “My scar needs to meet a certain minimum length in order to be compensable.”

TRUTH:  All scars, regardless of length, are compensable under the Workers’ Compensation Statute. As long as the scar is on your hands, neck or face it will be measured and calculated to determine how much your payment will be. Also, you can be compensated for every scar you receive to a compensable part of your body in one injury. Multiple scars are all collectively compensable.
Check back next week for part two in this series on scarring, disfigurement, and Massachusetts law.

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