Opioid Use in Worker’s Compensation

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

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

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Why Overturning DOMA Is a Win for Employee Rights

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

Regardless of your opinion on the issue of gay rights, Wednesday’s U.S. Supreme Court decision overturning the Defense of Marriage Act is a win for workplace fairness.

The constitutional authorization for most federal fair-employment laws is based on the guarantees of equal protection of the law based on the Fifth and 14th Amendments to the U.S. Constitution and the right of Congress to regulate interstate commerce clause. In his opinion overturning DOMA, Justice Anthony Kennedy found that DOMA violated the Fifth and 14th Amendment rights of gays and lesbians. He reaffirmed the role of the Fifth and 14th Amendments in preventing discrimination.

Kennedy’s opinion is important because in last summer’s blockbuster Supreme Court decision upholding the Affordable Care Act, Chief Justice John Roberts undercut the interstate commerce clause as a justification for passing federal legislation. Conceivably, corporate opponents of workplace fairness laws could point to Roberts’ decision in the Affordable Care Act as a way to argue that federal workplace fairness laws are unconstitutional. However Wednesday’s decision in the DOMA case means that workplace fairness laws still have clear and strong constitutional support.

The DOMA decision is a bright spot in a Supreme Court session that has otherwise been pretty bleak for employees. My opinion is that as a result of recent Supreme Court decisions, more and more fair-employment cases will be brought in state court. The decision in DOMA is still relevant to state law discrimination and retaliation claims. Most states have equal protection clauses in their state constitutions. The reasoning supporting the DOMA decision supports state fair-employment statutes. I believe this is true even for fair employment claims based on retaliation. As Justice Ruth Bader Ginsberg pointed out in her dissent in Nassar, retaliation is a form of discrimination. In other words, if you have been fired in retaliation for filing a workers’ compensation claim, your constitutional rights have been violated. If the Supreme Court had decided DOMA differently, employees would have a weaker argument that a retaliatory discharge violated their equal protection rights.

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Private Investigators in Workers’ Compensation

Corporations sometimes hire private investigators to verify that your claim is not fraud

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

As a workers’ compensation attorney I find it interesting that many people in the public question the disability status of injured workers. Let’s assume for the moment that you have sustained an injury on the job and you’ve been out of work for 5 months after back surgery. When you are unable to return to work quickly, the insurance industry has a lot of tools at its disposal to verify your disability status. They can pour over your medical records, pre- and post-injury, looking for any piece of evidence to deny your claim. They can send your file to lawyers who review medical records and recorded statements to potentially attack your credibility and honesty. They can hire a nurse to attend your appointments and speak with the physician and the staff, as well as obtain information directly from you. They can do background searches on you to see if you have a criminal or civil record. Obviously they will check to see if you ever filed a workers’ compensation claim before. They will also do social media and Internet searches on you and your family members (Facebook, Twitter, LinkedIn, etc.). They also can hire private investigators to follow you and your family around and take video recordings of your activities. With all these resources at the disposal of the insurance company, it’s hard to believe that many cases of employee fraud slip through the system.

A private investigator pretended to be a potential buyer and spent an hour or more going through the house.

We have one client recently who was followed by several private detectives for more than a year. They not only followed him around, but also followed his wife and son, who have no workers’ compensation claim. Another client had to sell his house because of his disability. A private investigator pretended to be a potential buyer and spent an hour or more going through the house. Does the concept of “Big Brother” come to mind? Are you concerned about invasion of privacy, particularly for family members, friends, and others who may be seen in such videos? We always tell our clients such activity may occur so don’t be alarmed by it, but that isn’t too comforting to people who are struggling through health issues, who have depression and anxiety problems, and who are sensitive to privacy concerns.

It would be interesting if the roles were reversed and employers who underpay premiums by misclassifying the status of their employees, who fail to purchase insurance required to protect their workers, and who don’t follow proper safety regulations that cause injury, were followed this closely by employees or regulators who administer the workers’ compensation program. I have no doubt that these employers and insurance representatives would be outraged.

 

 

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Paper or Plastic: A Reusable Workplace Hazard From The Grocery Store

Today’s post comes from guest author , from Jon L Gelman LLC.

Most people have been driven by guilt or cost into thinking about using a reusable shopping bag from the grocery store. A recent report indicates that sometimes the bags, because they are not sanitized by regular cleaning, become killer bacteria farms that may be transported into the workplace in a casual fashion.

Brought home from the grocery store, reusable and contaminated shopping bags then become storage and transport containers left baking in the car and carried everywhere for convenience from gyms, to libraries, and then into the workplace for lunch.

A recent report reflects that the reusable grocery bags often become contaminated by bacteria, since they are not cleaned properly nor regularly, and that deadly bacteria colonize in the bags resulting human illness and increased emergency room visits.

“Recent studies, however, suggest that reusable grocery bags harbor harmful bacteria, the most important of which is E. coli. If individuals fail to clean their reusable bags, these bacteria may lead to contamination of the food transported in the bags. Such contamination has the potential to lead to health problems and even death.”

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New Trend – Penalties For Not Participating In Your Employer’s Wellness Program

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

A new study by AON Hewitt indicates more employers will be using penalties to prompt participation in an employee wellness program. Many employers use incentives for participation in wellness and health management programs such as Health Risk Questionnaires, biometric screenings, and smoking cessation programs. Those incentives include health insurance premium increases and other penalties, and potential reward such as premium discounts, gift or cash cards. All these penalties and rewards are aimed at an effort to prompt employees to participate in wellness initiatives.

The connection to worker’s compensation for these wellness programs is interesting. For example, biometric screenings could be used against employees who may later file worker’s compensation claims for occupational exposures. Additionally, such pre-existing conditions that are revealed in the screening programs may prove an additional barrier to employees receiving worker’s compensation benefits for a later claimed injury or occupational disease.

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Your Social Security Benefits After The Defense Of Marriage Act (DOMA) Decision

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

Nearly two months after the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), the Social Security Administration has announced that it will start to pay benefits to some individuals in same-sex marriages. In order to be eligible for benefits, these individuals must meet the same criteria as individuals in opposite-sex marriages, in addition to several other requirements.

Only applications for spousal benefits are being approved right now. Spousal benefits are payable to a spouse who either 1) did not work enough to be entitled to Social Security benefits or 2) worked enough to be entitled to Social Security benefits but would be entitled to a larger benefit on their spouse’s earnings record.  This is generally the case when one spouse earned significantly more than the other spouse over the course of their working lives. The individual on whose earnings record the claim is made (the number holder, in SSA’s terms) must also be entitled to old-age or disability benefits from Social Security. In order to receive spousal benefits, you must be at least age 62 and have been married to the number holder for at least one year.

The individual applying for benefits (the claimant, in SSA’s terms) must show that he or she was married to the number holder in a state that permits same-sex marriage and that the number holder is living in a state that recognizes same-sex marriage either 1) when the application for benefits is filed or 2) while the application is pending a final determination. It does not matter what state the claimant lives in. What matters for SSA’s purposes is the state the number holder lives in. This only matters when spouses live in different states.

Below is a chart from SSA that shows which states recognize same-sex marriages performed in other states, and when those states permitted same-sex marriages.  If a state is not listed, it does not recognize same-sex marriages performed in other states or permit same-sex marriages to be performed.

Before filing a claim for benefits or moving to a different state, you should consult with an experienced attorney or with the Social Security Administration to determine your eligibility for benefits.  As SSA continues to pay benefits to more individuals in connection with the Supreme Court’s decision, we will provide updated information regarding who may be eligible for these benefits.

State

Date Same-Sex Marriages from Any Other State Was Recognized

Date Same-Sex Marriages Were Permitted in the State

California

June 17, 2008 – November 4, 2008

June 26, 2013 – present

June 17, 2008 – November 4, 2008

June 26, 2013 – present

Connecticut

November 12, 2008

November 12, 2008

Delaware

July 1, 2013

July 1, 2013

Iowa

April 30, 2009

April 20, 2009

Maine

December 29, 2012

December 29, 2012

Maryland

February 23, 2010

January 1, 2013

Massachusetts

May 17, 2004

May 17, 2004

Minnesota

August 1, 2013

August 1, 2013

New Hampshire

January 1, 2010

January 1, 2010

New York

February 1, 2008

July 24, 2011

Rhode Island

May 14, 2012

August 1, 2013

Vermont

September 1, 2009

September 1, 2009

Washington

December 6, 2012

December 6, 2012

Washington, DC

July 7, 2009

March 9, 2010

 

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The Problems with States Refusing Medicaid Expansion

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

Medicaid expansion was a large part of the recent health care reform law under the Affordable Care Act. For reasons that seem to be solely based on politics, some state governors have made public their decision to reject the Medicaid expansion, and as a result, federal funding of the expansion.

Besides the obvious problems this rejection would cause for millions of uninsured Americans and the health care providers who treat these uninsured people, this rejection could have a negative effect on workers, especially injured workers, of these states.

Fellow workers’ compensation lawyer, friend and colleague Tom Domer of Wisconsin discussed the possible ramifications when an injured worker does not have access to health insurance. Mr. Domer discussed the following scenario that we see day in, and day out, in a previous blog post

“The personal toll on the uninsured is devastating, especially for those dealing with work injuries.

As a worker’s compensation attorney, the following scenario plays out on a daily basis: A hard-working individual—who is lucky enough to have health insurance through the employer—is injured at work through no fault of his own. The injury is severe enough to not allow a return to work, or the employer simply terminates the employee (this insidious action happens far too often with far too little publicity). After termination, the injured worker is offered federal COBRA rights to continue paying the health insurance premiums at the full 100%, which of course, is near impossible when you are off work without income. Thus, the worker loses health insurance for himself and for his family.

On the flip side, the worker’s compensation insurance company is supposed to pay for reasonable medical treatment expenses related to the injury; however, the carrier usually hires an “independent” medical doctor to deny the worker’s compensation claim. The injured worker is then left out in the cold with an injury that requires medical treatment, but he has no ability to get that medical treatment without health insurance or workers’ compensation coverage. The worker then calls me and asks the emotionally-laden question: ‘What do I do?’”

Nebraska is one of the states that is “Leaning Toward Not Participating” in the Medicaid expansion, at least according to Gov. Dave Heineman’s public statements on the topic. 

This can have a devastating effect on Nebraska workers who have suffered an injury.

As Mr. Domer further states:

“Access to health insurance alters this equation. If the worker had adequate access to health insurance, especially Medicaid, he could obtain the medical care that could allow a return to work, regardless of whether the worker’s compensation insurer accepted or denied the claim. Whether work-related or not, injured individuals should have the opportunity to get healthy in our country.”

So what can be done about this problem? Contact your government officials to encourage them to provide injured workers increased access by expanding Medicaid.

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Why The Republicans Should Not Cut Food Stamps

Facts about food stamps. Click on this image to see it full size.

I write about a debate now occurring in Congress in which the GOP is threatening millions of American families, including 200,000 Iowa households.  The debate is over food stamps, now known as the Supplemental Nutrition Assistance Program (“SNAP”).

To understand the problem, we need only review the survey-report issued by the Department of Agriculture on September 4.  (Alisha Coleman-JensenMark Nord, Anita Singh, “Household Food Security in the United States in 2012”).  The report shows that nearly 49 million Americans lived in “food insecure” households last year.  This means family members lack consistent access to adequate food throughout the year.  In short, 49 million Americans (over 16 times the Iowa population) went hungry for long periods in 2012.  Worse, children were found to be hungry in 10% of all U.S. families with children.  The agency found that hunger rates since the 2007 recession are much higher than before. 

Many people have a misunderstanding of this hunger; many think the hungry are the same persons who are homeless.  In fact, in most cases the hungry are persons who work at low-paying jobs or are disabled from work.

The GOP (mostly the House GOP) wants to cut food stamps.  Yet, food stamps have been the centerpiece of our country’s safety net for the poor.  Benefits are adjusted for income.  Recipients can use SNAP benefits only for food, notwithstanding Rep. Steve King’s assertion that he knows food stamps are used for bail and tattoos.  Nearly 48 million Americans now receive food stamps (about 15% of the approximately 314 million Americans), at an annual cost to us of about $80 billion.

No matter what Congress decides, food stamps expenditures will be reduced in November, when a provision in the 2009 stimulus bill expires.  House Republicans, however, propose Continue reading »

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Hazards exist in the surface refinishing business

Today’s post comes from guest author Jon Gelman, from Jon L Gelman LLC.

University of Iowa, College of Public health, recently reported the death of a bathtub refinishing technician who died from the inhalation of paint stripper vapors.

The apartment manager and first responders reported a strong chemical odor in the second story apartment.

In 2012, a 37-year-old female technician employed by a surface-refinishing business died from inhalation exposure to methylene chloride and methanol vapors while she used a chemical stripper to prep the surface of a bathtub for refinishing. The technician was working alone without respiratory protection or ventilation controls in a small bathroom of a rental apartment. When the technician did not pick up her children at the end of the day, her parents contacted her employer, who then called the apartment complex manager after determining the victim’s personal vehicle was still at the refinishing company’s parking lot. The apartment complex manager went to the apartment unit where the employee had been working and called 911 upon finding the employee unresponsive, slumped over the bathtub. City Fire Department responders arrived within 4 minutes of the 911 call. The apartment manager and first responders reported a strong chemical odor in the second story apartment. There was an uncapped gallon can of Continue reading »

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