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Look To Your Co-Workers Before Your Boss When Trying To Accommodate An Injury Or Medical Condition

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

Employees with an injury or medical condition that prevents them from doing  parts of their job ought to consider asking for help  from their co-workers  first before they talk to management about how to accommodate that medical condition or injury.

Under the Americans with Disabilities Act, and most parallel state laws, a disabled employee and their employer are supposed to engage in an “informal interactive process” to see if the employee’s disability can be reasonably accommodated. The process is supposed to be flexible.

In reality often times the interactive process can be an adversarial process where legal counsel for the employer,  HR,  employee health and risk management bureaucrats attempt to force working people to fill out complicated paperwork and create a paper trail justifying terminating an employee.

But if an employee can work with a co-worker or co-workers to shift and trade tasks that they can’t do because of a disability, then the employee has accommodated their own disability without having to deal with a squad of paper pushers who know little about how an employee actually does their job.

The other thing an employee does when they work with their co-workers to accommodate their own disability without interference from management is that they engage in what is called a “protected concerted” activity. So in addition to having legal protections under the Americans with Disabilities Act, the employee has protections under the National Labor Relations Act (NLRA) as would  their co-workers.

Employees are faced with judges and government agencies who are increasingly sympathetic to management. But workers are re-discovering the power of concerted action. New York taxi drivers struck in protest of President Trump’s proposed Muslim Ban. Workers at Comcast walked out of work in protest of this policy as well.

I realize that many of my prospective and current clients may support Donald Trump and his policies. But regardless of your political views you can still ask for and provide mutual aid and support from your co-workers if you or one of them has a disability that keeps you or them from doing certain tasks on the job. This idea of mutual aid and support for co-workers on the job has long been an important part of workplace rights and will probably grow increasingly important and as courts and government agencies become increasingly supportive of management.

Workplace Safety and the Legacy of Martin Luther King, Jr.

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

“It was horrible,” said the woman.

One minute she could see a sanitation worker struggling to climb out of the refuse barrel of a city garbage truck. The next minute mechanical forces pulled him back into the cavernous opening. It looked to her as though the man’s raincoat had snagged on the vehicle, foiling his escape attempt. “His body went in first and his legs were hanging out,” said the eyewitness, who had been sitting at her kitchen table in Memphis, Tennessee, when the truck paused in front of her home. Next, she watched the man’s legs vanish as the motion of the truck’s compacting unit swept the worker toward his death. “The big thing just swallowed him,” she reported.

Unbeknownst to Mrs. C. E. Hinson, another man was already trapped inside the vibrating truck body. Before vehicle driver Willie Crain could react, Echol Cole, age 36, and Robert Walker, age 30, would be crushed to death. Nobody ever identified which one came close to escaping. 

The horrific deaths of Cole and Walker on Feb. 1, 1968, set off the Memphis sanitation workers’ strike, where 1,300 mostly African-American public employees struck to protest poor working conditions, including the defective garbage truck that crushed Cole and Walker. Martin Luther King Jr. gave his famous “I’ve Been to the Mountaintop” speech in support of the striking sanitation workers in Memphis the night before he was assassinated.

On Monday, Martin Luther King Jr.’s birthday is celebrated as a holiday. But the rightful veneration of Dr. King should not, for the lack of better terms, wrongfully sanitize or whitewash the fact that what he fought for would be opposed by many who invoke his legacy today. The Memphis sanitation strikers are asking for the same thing that striking fast food and service workers are asking for in the Fight for 15 campaign. Most establishment types and so-called moderates in Memphis refused to support the striking sanitation workers. Today’s so-called moderates argue that paying employees a living wage is too radical and counterproductive. History has a way of repeating itself.

Nearly 50 years later, I still represent sanitation workers who are injured from defective equipment. However, bloody crush injuries like the ones that killed Cole and Walker are much less common. Part of the reason for the increase in workplace safety over the last 50 years was the passing of the Occupational Safety and Health Act. Dr. King was willing to risk bodily harm and ultimately ended up being killed supporting workers who were protesting unsafe work conditions. The passage of OSHA is a small but important and overlooked part of Dr. King’s legacy. History is repeating itself again as the business establishment applauds the expected rollback of OSHA enforcement under expected future Labor Secretary Andy Puzder.

Dr. King also deserves credit for his role in passing laws like Title VII that prohibited discrimination against African-Americans, which has allowed an increasing number of African-Americans to join the professional class and otherwise realize their potential as human beings. Dr. King’s legacy can also be seen in the expansion of rights for disabled Americans, and the fact that gays and lesbians are able to get married, and the real possibility that Title VII may end discrimination against lesbian, gay, bisexual and transgender people.

But by some economic measures, African-Americans are worse off now than they were 40 years ago. This fact can likely be attributed to overall increases in economic inequality over the last 40 years. The U.S. Department of Labor pointed out in a recent study that the gutting of state workers’ compensation laws has exacerbated inequality. Lawyers, legislators, academics and pundits have gradually forgotten about the risks faced by workers like Echol Cole and Robert Walker and how civil rights leaders including Martin Luther King Jr. saw the fight for workplace safety as a matter of basic human dignity and integral to the fight for civil rights.

The offices of Rehm, Bennett & Moore and Trucker Lawyers will be closed in observance of the holiday on Monday. We will re-open at 8:30 a.m. Central Time on Tuesday, Jan. 17. We encourage readers to think about Martin Luther King Jr. on the federal holiday and every day and continue to be both motivated and challenged by his words and works.

Workplace Safety Rules Could Be Reversed via Congressional Review Act

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

In 2001, President George W. Bush, a Republican, overturned an Occupational Safety and Health Administration ergonomics rule designed to prevent repetitive stress injuries that was implemented by President Bill Clinton’s Labor Department, as he was Bush’s Democratic predecessor.

Around 16 years later, history seems poised to repeat itself.

A slew of workplace safety regulations regarding beryllium exposure, reporting of injuries, mine safety, and chemical storage implemented by President Barack Obama’s Department of Labor seemed poised for reversal by President Donald Trump’s administration that is eager to rollback Obama-era regulations through the Congressional Review Act.

The Congressional Review Act provides Congress a way to disapprove any regulation within 60 days of it being deemed final. But as pointed out in an explainer piece from the right-wing Heritage Foundation, Congress has 60 legislative days to disapprove a regulation. Sixty legislative days could be six to seven months in real time because of frequent congressional recesses. The act also restarts the 60-day clock for final rules that are implemented within the last 60 days of the previous legislative session. Heritage estimates that rules finalized back to June 3, 2016, could be subject to review.

Supporters of Obama-era workplace safety rules cannot rely on Senate Democrats to filibuster resolutions under the Congressional Review Act because the legislation does not allow for filibuster and has streamlined procedures for allowing legislation to be pulled out of committee.

Fortunately or unfortunately, depending on your perspective, the Congressional Review Act doesn’t allow rules to be bundled together. Congress must consider killing each regulation with a single piece of legislation. This feature of the Congressional Review Act may explain why the Clinton ergonomics rule was the only rule actually killed by Congress under the Congressional Rule Act. Finally, the Congressional Review Act prohibits an agency from proposing a substantially similar rule, which could explain why the Obama administration never tried to revive the Clinton-era ergonomics rule. 

Labor reporter Mike Elk, editor of Payday Report, is one of the few reporters or writers drawing attention to the fact that Obama-era workplace-safety rules are seriously vulnerable to reversal in the Trump administration. Elk’s reporting details how the chemical industry weakened rules on chemical storage after the West, Texas, chemical explosion and how the Obama administration allowed final approval of the rule to be pushed back to where it would be vulnerable to reversal under the Congressional Review Act. In some fairness, delay by OSHA could partially be explained by budget cuts to the agency by congressional Republicans.

I would encourage our readers to monitor this firm’s social-media feeds and my personal Twitter account, @JonRehmEsq to keep track of Congressional Review Act legislation regarding workplace safety. I would urge readers to contact their members of Congress and express their opposition to any proposed rollbacks of workplace-safety rules.

Repeal of ACA Would Undercut Doctor Choice in Workers’ Compensation Claims

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

The repeal of the Affordable Care Act (President Barack Obama’s health care law) is a real possibility in the Trump administration. It will be difficult to know how a repeal would affect workers’ compensation without having an idea about what alternative plan, if any, would replace the Affordable Care Act. But it seems certain that if Americans lose health insurance, they will have less control over their own medical care if they are hurt at work.

In 2011, Vermont passed a single-payer health care plan. In a blog post I wrote for Jon Gelman’s blog, I observed that if all employees had their own doctors, it would be next to impossible for employers to route injured workers to occupational-medicine clinics. A blogger for Lynch Ryan made a similar observation. Doctor choice is critical, because some employers go so far as to unlawfully conspire with claims adjusters and doctors to undermine the value of an employee’s workers’ compensation claim. A single-payer system decouples health insurance from employment, which makes employers less influential in the system

The ACA is not a single-payer system, but millions of Americans gained health insurance through public Medicaid programs in states that chose to expand Medicaid after the Supreme Court struck down the mandated Medicaid expansion in 2012. This coverage was decoupled from employment. Insurance obtained through an exchange is also not tied to individual employers either. People who lacked health insurance tended to not have doctors, which meant that they had no choice but to see whomever their employer wanted them to for a work injury.

The workers most vulnerable to injury are often the workers least likely to have health insurance. Younger people are more likely not to have health insurance. As Milwaukee lawyer Charlie Domer pointed out in a blog post last fall, younger workers are more likely to get hurt on the job. New employees are often unable to enroll in company health insurance plans right away. Last fall, I wrote a post about how employees within the first few months of their employment are more likely to get hurt on the job.

A silver lining to the gray cloud of a prospective ACA repeal is that even if an employee loses health insurance, Nebraska workers’ compensation court Rules 49 and 50 still allow an injured worker to choose a doctor who treated them before – presumably when that worker had health insurance. Unfortunately, Nebraska did not expand Medicaid, so there would be a smaller proportion of Nebraskans of who gained health insurance under the ACA than in states, like Iowa, where Medicaid was expanded.

More Takeaways from the Demise of the Oklahoma Option in Workers’ Compensation

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

The Oklahoma Supreme Court’s decision to strike down the so-called “Oklahoma Option” in Vasquez v. Dillard’s was one of the biggest events in the world of workers’ compensation. Vasquez represents a growing trend by advocates for injured workers recognizing that workers’ compensation is a matter of constitutional law. But the Vasquez decision is important for other reasons.

Opt-Out is Still Viable

Though some commentators declared the defeat of the Oklahoma option was the death of opt-out, many justices on the Oklahoma Supreme Court who overturned the Oklahoma option would disagree.

A concurring opinion contrasted the Oklahoma opt-out system with the Texas opt-out system. In Texas, employers are not required to have or “subscribe” to workers’ compensation. But if Texas employers do not subscribe to workers’ compensation, injured Texas employees can sue their employer in tort with all affirmative defenses stripped away. This encourages employers to carry workers’ compensation insurance. Nebraska has a similar law for agricultural employers who are exempt from having to carry workers’ compensation.

Oklahoma’s “opt-out” created separate workers’ compensation systems: the state system under the Administrative Workers’ Compensation Act (AWCA) or the private systems under the Oklahoma Employee Injury Benefit Act (OEIBA), where employees were eligible for the same benefits but where employers could draft their own rules for eligibility. Regardless of whether an employee was covered under the AWCA or the OEIBA, employers still had to be covered under one system or another, and employees could not sue their employer in tort for work injuries. What doomed the Oklahoma option was the fact that unfair procedures under the OEIBA created separate but unequal workers’ compensation systems.

The contrast between the now defunct Oklahoma option and the still-viable Texas opt-out system was reinforced when the Vasquez court rejected Dillard’s argument that Vasquez’s claim was pre-empted by the federal Employee Retirement Income Security Act (ERISA) law. Under the Oklahoma option, plans under the OEIBA were to be governed by the ERISA law. However, since OEIBA served as workers’ compensation and ERISA plans that serve as workers’ compensation plans do not pre-empt state workers’ compensation laws, the OEIBA was not pre-empted by federal law. In contrast, state law claims against employers on disability insurance plans who are “nonsubscribers” in Texas are pre-empted by ERISA.

Few, If Any States, Are Going to Implement the Oklahoma Option

The Oklahoma option was struck down on equal-protection grounds based on the Oklahoma state constitution. Most other states have similar provisions in their state constitutions. In Nebraska, that provision is found at Article III, Section 18 of our state constitution. This provision concerns itself with disparate treatment in much the same manner as does the language of the 14th Amendment of the U.S. Constitution, which prohibits a state from making or enforcing any law that denies any person within its jurisdiction “the equal protection of the laws.” Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989). Even in a state without an equal protection clause in the state constitution, separate but unequal workers’ compensation systems could be likely be struck down on equal-protection grounds under the U.S. Constitution.

Injured Workers Are a Protected Class

Injured workers are sometimes subject to retaliation for bringing workers’ compensation claims. In 2013, the U.S. Supreme Court distinguished “discrimination” or “protected status” from “retaliation” or “protected activity” cases under Title VII and held that there was a higher burden of proof for employees bringing a retaliation case than for an employee bringing a discrimination case. However, if injured workers are thought of as a protected class, then discrimination in the form of termination should be thought of as a form of discrimination, and those claims should be subject to a more relaxed burden of proof than required in the Nassar case.

2016 Top Ten Workers’ Compensation Fraud Cases

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

  Number Value
Non-Employee Fraud Cases 10 $ 412,000,000
Employee Fraud Cases 0 $ 0
Total $ 412,000,000

Four of the top ten cases in 2016 are from perennial offender California, three from Florida, one each from Massachusetts and Texas, and one involving 20 different states. The misclassification of employees by employers continues to create dramatic financial fraud, with resulting cost shifting, lost tax revenues and hardship to inured employees. As we noted last year, while the “gig economy” pioneered by technology companies has lead to debate about new classifications for workers, these companies remain subject to our laws. We are starting to see widespread litigation and settlements like Uber’s $100 million payment to disgruntled drivers in California and Massachusetts. We’ll keep tracking these new developments in the context of the misclassification and fraud actions that we’ve been tracking for many years.

  1. (National) FedEx to Settle Driver Lawsuits in 20 States for $240 Million (6/16/16)
    FedEx Ground Systems, Inc. has agreed to pay $240 million to resolve claims by 12,000 FedEx drivers in 20 states. FedEx was labeling the drivers as independent contractors to avoid paying additional taxes, fringe benefits, health care costs, workers’ compensation insurance, and much more. The drivers were also not paid overtime or reimbursed for expenses.
  2. (California) Seven People Charged in $98 Million Workers’ Compensation Fraud Case (6/7/16)
    Seven in Riverside County charged with $98M medical fraud

    (Left): Payman Heidary Top row: Touba Pakdel Nabati, Jason Yang, Cary Abramowitz Bottom row: Quynam Nguyen, Ana Solis, Gladys Ross (Photo: Riverside County Sheriff’s Department)

    Seven people have been indicted with 107 felonies in a business scheme designed to commit workers’ compensation fraud. The ringleader, Peyman Heidary, owned or ran numerous businesses, including law firms and health clinics, and used other people to disguise his involvement and create an illegal ownership structure. The clinics were found to have inflated billings to insurance companies by exaggerating patient injuries and treatments. The businesses fraudulently billed more than $98 million to 18 insurance companies, resulting in the businesses receiving over $12.4 million in payments.
  3. (Texas) Labor Department “Mole” Helps Business Maintain $30 Million Workers’ Compensation Scam (6/28/16)
    Tshombe Anderson

    Tshombe Anderson

    Lydia Taylor worked at the U.S. Department of Labor in Dallas and used her position to give her family members information about federal workers’ compensation claims and warn them when suspicions arose about their fraudulent billing. Taylor’s uncle, Tshombe Anderson, was the ringleader of the group. Anderson and others formed several businesses that fraudulently billed the federal workers’ compensation program $30 million for unneeded and unrequested medical equipment for rehabilitation patients.
  4. (Florida) Fake Construction Company used to Process over $17.4 Million of Fraudulent Payroll (3/28/16) Orquidea Quezada set up Orquicely Construction LLC and used the company to process payroll for subcontractors who employed hundreds of people. In exchange for her services, Quezada kept a five percent fee. The scheme allowed the contractors to avoid paying payroll taxes, workers’ compensation insurance, and to conceal the employment of undocumented workers.
  5. (Florida) Fake Construction Company Used to Cash $7.4 Million in Undocumented Worker Payroll (7/7/16)
    Yamil Sanjurjo Cordero and Sandro Mendoza Alvarado

    Yamil Sanjurjo Cordero, 33, and Sandro Mendoza Alvarado, 35. (Sun Sentinel / Broward Sheriff’s Office Handout)

    Two men set up a shell company, Sunrise All Contractor Corp., to receive payments and cash checks for a fee on behalf of other companies that would then pay their undocumented workers. The scheme enabled employers to avoid workers’ compensation premiums and payroll taxes. These schemes are popular among employers of undocumented employees because these employees are less likely to blow the whistle on the fraud out of fear of exposing their undocumented status.
  6. (California) Insurance Company Agent Misappropriated $7.3 Million and Unable to Pay Workers’ Compensation Claims for California Indian Tribe (8/19/16) The operator of Management Resources Group California LLC, Gregory J. Chmielewski used more than $7.3 million from the company’s reserve accounts for his own personal investments. The company managed another company, Independent Management Resources, which sold workers’ compensation insurance to California Indian tribes. Chmielewski’s actions resulted in the company being unable to cover 117 claims.
  7. (California) Contractor Cheated Workers’ Compensation Insurer Out of More Than $5.4 million in Premiums(10/5/16) State of California Department of InsuranceMichael Harold Kreger, the owner of Michael Kreger Contracting was sentenced to 9 months in jail, 5 years of probation, 1500 hours of community service, and ordered to pay restitution of more than $5.4 million for underreporting his payroll and committing insurance fraud. Mr. Kreger cheated his company’s workers’ compensation insurer out of more than $5.4 million and his employees out of adequate protection for potential workplace injuries.
  8. (Massachusetts) Construction Companies Ordered to Pay $2.6 Million for Fraud in Misclassifying Workers (8/2/16) AB ConstructionForce Corporation, AB Construction Group, and employers Juliano Fernandes and Anderson Dos Santos were found by the U.S. Department of Labor to have misclassified the bulk of their employees to avoid paying overtime wages, workers compensation insurance, payroll taxes, and more. A consent judgment was entered requiring the companies and employers to pay more than $2.6 million in damages and penalties for their fraud.
  9. (California) Company Underreporting Payroll Defrauds Insurer of $2.1 Million (6/7/16)
    Alvin Shih Chen and Fiona Chen of Metro Worldwide, Inc.

    Alvin Shih Chen and Fiona Chen

    Co-owners Alvin Shih Chen and Fiona Chen of Metro Worldwide, Inc., a trucking company, underreported payroll by $4.7 million. The owners paid their truck drivers in cash to avoid reporting them to the insurer and to reduce their payroll obligation. While the company reported nearly $3 million in payroll to California’s State Compensation Insurance Fund, the actual payroll amount was $7.6 million. An estimated $2.1 million in premiums was lost.
  10. (Florida) Construction Company Defrauds Workers’ Compensation Insurer of $1.8 Million by Underreporting Payroll (4/6/16)
    Maira Chirinos, owner of Pompano Beach-based Tocoa Builders Inc.(Broward County Jail)

    Maira Chirinos, owner of Pompano Beach-based Tocoa Builders Inc.(Broward County Jail)

    Maira Chirinos, the owner of construction company Tocoa Builders, Inc. misrepresented information regarding the company’s operations, employees, and payroll when applying for a workers’ compensation policy. The misrepresentations enabled Chirinos to avoid paying at least $1.8 million in workers’ compensation premium payments. An investigation found Chrinos grossly underreported payroll to the insurance company. She reported a payroll of $76,000, but more than $11 million in payroll checks were cashed during the period covered by the policy.

For more information, contact: Leonard T. Jernigan, Jr. Adjunct Professor of Workers’ Compensation Law N.C. Central University School of Law The Jernigan Law Firm 3015 Glenwood Avenue, Suite 300 Raleigh, North Carolina 27612 (919) 833-0299 jes@jernlaw.com www.jernlaw.com Twitter: @jernlaw Blog: www.ncworkcompjournal.com

I Can’t Do My Old Job, So I Qualify for Disability, Right?

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

It’s not uncommon for workers to expect to qualify for disability when they are unable to work in a job that they have held for years. The question becomes does that mean they are disabled under Social Security Administration rules? As in most cases in dealing with the law, the answer is maybe!

For workers under the age of 50, applicants must prove that they are also unable to obtain any work in the general economy, even if they can’t do their typical jobs. This includes unskilled work, and the SSA makes no distinction for what type of pay cut a worker must accept to remain gainfully employed. For instance, let’s assume a worker was earning $20 an hour as an electrician, but could no longer handle the rigors of that employment. If that person can do a minimum-wage job full time or at the level of substantial gainful employment as set by the SSA, then a person is not considered disabled under the SSA rules. Many people are surprised that the SSA would require this. Even if jobs don’t exist within the current labor market, the SSA would require a worker to move herself to a larger market to continue to be employed. 

For individuals over the age of 50, the primary question is did they acquire skills from prior employment that would enable them to transition into other employment areas. If those skills would allow the worker to transition to alternate employment, then they are not considered disabled. If those skills are too specialized and don’t easily transition to alternate employment, the worker may very may well be disabled, according to SSA rules.

Sometimes You Need Help

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

Last month our firm held a planning retreat in the beautiful town of Chapel Hill. We reaffirmed our firm’s slogan: “Accidents Happen, Sometimes You Need Help.”

Frequently we speak to injured workers during our free consultation about getting medical treatment. It’s frustrating and scary for an injured person to have to wait for authorization for surgery or a medical referral. Treatment delays are inefficient for everyone. It delays the recovery and, as a result, the return to work. Our goal is to expedite medical care when possible by following up with the workers’ compensation adjuster to have treatment approved and, if necessary, file a motion with the North Carolina Industrial Commission.

In a case I had last year, we were hired because the insurance company was dragging its feet authorizing an orthopaedic back doctor. After several communications, the adjuster agreed the referral to an orthopaedic back doctor was authorized. Sadly, the “orthopaedic doctor” that was authorized by the adjuster was actually a gynolcologist-obstetrician for my male client! Furthermore, it took several additional contacts to finally correct the situation and get my client to the appropriate doctor. Finally, my client was evaluated by an orthopaedic doctor, received medical treatment, and was also able to continue working.

Our firm sees these problems every day. I believe we (injured workers’ lawyers and insurance companies) should have a common goal:  Recovery and return to work. But “sometimes you need help” to get to that point.