Category Archives: employment

Proposed changes to Iowa workers compensation cruelly target elderly employees

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

Anti-worker changes could be coming to Iowa workers compensation. To me the cruelest reform would be the proposal to end permanent total disability benefits at age 67 and limit workers who are over 67 who become permanently and totally disabled to 150 weeks of benefits. One memorable client of mine demonstrates the callousness of the proposed Iowa reforms.

My client Doris Newkirk was 83 years old when she was injured working as a hostess at Lone Star Steakhouse in west Omaha in June 2006. She was near a bathroom door when a large male co-worker came barreling into the bathroom and caused Doris to fall back and injure multiple parts of her body. Like many retirees, Doris worked because she needed the money. After her injury she was unable to work. Fortunately Doris was able to receive permanent total disability benefits to make up for the income she lost because she wasn’t able to work. Those permanent benefits started in September 2007 and continued for five years and 10 ½ months until her death on July 21, 2013.

If Nebraska law limited those injured over the age of 67 to 150 weeks of permanent total disability benefits, Doris wouldn’t have been paid anything for the last three years of her life. To her credit, Doris travelled from Omaha to Lincoln in her late 80s to testify against similar legislation when it was proposed in Nebraska. According the Business and Labor committee clerk at the time, the state Senator who introduced the bill at the behest of insurance interests made a motion to kill the bill after listening to her testimony.

Workers compensation is a cost of business. But according to CNBC, Iowa has the second lowest cost of doing business in the country. Iowa, like Nebraska, generally ranks well in national surveys of business climate. Iowa’s weakest area when it comes to business climate,  according to CNBC, is quality of workforce. Unlike Nebraska, Iowa lacks vocational rehabilitation for injured workers. If Iowa is looking to reform its workers compensation system, they should consider investing in vocational rehabilitation so injured workers can fully regain their ability to contribute to the economy in Iowa.

Why CNAs and Home Health Aides Should Care about the Fight over a Federal Regulation

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

A U.S. District Court in Washington, D.C., recently struck down a federal regulation that would mandate that home health aides are paid the minimum wage and paid overtime under the federal Fair Labor Standards Act (FLSA). Though the decision will likely be appealed, this decision is still a bad decision for the men and women who do the hardest jobs in health care – home health aides and certified nursing assistants.

Why home health aides aren’t covered by federal wage laws

Home health aides were exempted from the FLSA 40 years ago in order to make caring for the elderly less expensive. However, companion care has become a big and very profitable business. An index of publically traded home-health-care stocks has consistently outperformed the stock market as a whole for the last 13 years. This profitably is due in part to the minimum wage and overtime exemptions for home health aides.

How the home health exception affects other jobs in the medical field

The federal government estimates that nearly 1 million are employed as home health aides, while private sources estimate that number as 2 million. Home health is also a fast-growing field of employment. Home health aides essentially have the same job duties as certified nursing assistants (CNAs). CNAs are generally covered by minimum wage and overtime laws, but workers with the same skills and same duties are exempt from those laws if they are working as home health aides. CNA wages are pushed down by home health aide wages, which are exempt from federal wage laws.

Why pay is about more than wages

A recent study of CNAs showed that nearly 60 percent of CNAs report injuries during a 12-month period. The injury rate is similar for home health aides. The study also showed that higher-paid CNAs were injured less frequently than lower-paid CNAs. The study indicated that organizational factors really drove injury rates among CNAs. In other words, in settings where CNAs are truly valued, paid fairly and trained, the injury rates are lower. But if CNAs are treated as low-wage, high-turnover cogs in a machine, then injury rates are higher. Low pay for CNAs and home health aides isn’t just an issue for employees. Low pay for home health aides and CNAs has been linked to poor patient care.

While the Obama administration has been criticized for being too aggressive in enforcing the FLSA, the U.S. Department of Labor announced that they will delay enforcement of the home health aide regulation until July 2015. This assumes courts will let the Department of Labor actually enforce the regulation. Anyone concerned about this issue should contact their members of Congress to support legislation that ends the home health aide exception. People should also contact their state legislators to support legislation that would ensure that home health aides are covered by state wage and hour laws.

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part III)

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

In Part I and II of this series we discussed the legislative power shift in 2010 and identified four significant changes.  Here are some more legislative changes, all imposed after 2010: 

 

    5.   Even If The Claim is Denied the Employer Can Still Get An IME

Before 2010, although an employer might be able to get the employee’s medical records once the claim was filed, if the claim was denied the employee took the position that the employer had no right to force the employee to go to an insurance-selected physician for an IME.  That has now changed. 

    6.   In Second Opinion Rating Evaluations Certain Medical Evidence Can Be Ignored.

An employee has an absolute right to get a second opinion about the extent of a permanent injury, if dissatisfied with the impairment rating given by the insurance-selected treating physician.  Occasionally, this new physician, who was selected by the employee, would make a medical finding that the employee needed further medical treatment or would diagnose another medical condition that had not been evaluated by the treating physician.  This new information would be the basis of a motion to the Industrial Commission for additional medical care.  New legislation states that as to any opinions unrelated to the rating the Commission “must either disregard or give less weight” to these medical opinions.

    7.   Restrictions on the Ability to Change Physicians.

Before 2010, the employee had the right to petition the N.C. Industrial Commission to change physicians.  Occasionally there were personality conflicts between the employee and the insurance-selected physician, or the physician would be ignoring certain complaints, or not reporting the complaints in the medical records.  When these matters were brought to the attention of the Executive Secretary’s Office, the Commission had the discretion to authorize a change of physician.  New legislation now requires that the Plaintiff prove by a “preponderous of the evidence” that a change is necessary. 

     8.   Greater Difficulty for Getting Second Opinion for Employee.

Before 2010, the employee could select a physician for a second opinion examination and request the Industrial Commission to approve this physician.  Now the employee must first request approval “in writing” from the employer and attempt to jointly agree on a new physician.  If this effort fails, then the employee can seek approval from the Industrial Commission.  This new procedure is a roadblock to allowing the employee quicker access to a different medical provider.

 

Part IV of the series will discuss other changes, including administrative changes, to the Act.  Stay tuned.

 

 

 

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part II)

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

 

In 2010 after the Republican Party took complete control of the legislature for the first time since 1898, changes to the system began. As death benefits and funeral expenses were being increased, along with an increase in wage loss benefits, current injured workers were told that new proposals would not affect their claims. True enough, but anyone who was injured after June 24, 2011 would see some fairly drastic changes in benefits:  

 

  1. 500 Week Cap On Total Disability Benefits.

Absent extroardianry circumstances (such as a brain injury) disability benefits would stop after 500 weeks (9.6 years). Thus, for a 25-year-old severely injured person who did not meet one of the exceptions, total disability benefits would stop at age 34 or 35, even though this person could no longer obtain employment in the competitive market place and had been out of the workforce for nearly a decade. For these disabled and unemployable people, the future cost of the injury will be shifted away from the workers’ compensation insurance company to the U.S. taxpayer, through Social Security and Medicare. Before this change, as long as the employee was disabled and unemployed because of his injury, he would be entitled to lifetime disability and medical benefits related to the injury.

 

  1. Employer Gets Credit For Social Security Retirement Benefits

If benefits are extended beyond 500 weeks, the employer can reduce workers’ compensation  by 100% of Social Security retirement benefits. This change gives the  insurance carrier a huge financial break at the expense of the elderly and disabled who have earned retirement income.

 

  1. Even Catastrophic Injury Benefits Can Be Terminated

If a person is disabled from a workplace injury because of a spinal injury, brain injury, or serious burns to 33% of the body, then they can get lifetime disability benefits. However, if the employer can show that this individual can return to “suitable employment” then those benefits can be terminated or suspended.

 

  1. 4.       New Definition of Suitable Employment After Maximum Medical Improvement

In the above context, suitable employment means employment that the employee is capable of performing, considering his pre-existing and injury-related physical and mental limitations, vocational skills, education and experience, and is located within a 50 mile radius of the employee’s residence at the time of injury or elsewhere if there was a legitimate reason for leaving. [Before leaving the Tarheel state, be sure to get approval that the move is legitimate. Otherwise, you may get a job offer that is within the 50 mile job radius.]

 

Part III will discuss further changes to the workers’ compensation system. Stay tuned.