Category Archives: Workplace Injury

Small Businesses Don’t Have Workers’ Compensation Insurance

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

In a new study by Insureon, less than 1 in 5 small businesses carry workers’ compensation.  Although all State regulations require that small businesses have workers’ compensation, this study indicates that workers’ compensation is the least purchased insurance by small businesses.  (In Wisconsin, employers must have workers’ compensation if they hire only one employee paying more than $500 in a quarter or hire any three employees at any one time.)  The President of Insureon Jeff Somers said in an interview with workerscompensation.com that “small businesses often fail to carry workers’ compensation because they truly do not understand their insurance need; there is a major lack of awareness and education which insurers and brokers can alleviate.  One reason for this protection gap is a misplaced anxiety around how much workers’ compensation coverage actually costs, but when you compare the small price. . . the protection workers’ compensation provides makes an investment worth it.”

According to the Bureau of Labor Statistics, almost 3 million workplace injuries were reported by private industry employers in 2016, with nearly one-third resulting in time away from work.  The Insureon statistics showed that one in three businesses reported an incident that could have been covered by a workers’ compensation insurance policy and that one-fifth of all small businesses that filed for bankruptcy in 2016 did so because of lawsuits.  Workers’ compensation protects an employer from a lawsuit.  (In Wisconsin a worker injured by an uninsured employer has access to the Uninsured Employers Fund.  After the Fund pays workers’ compensation benefits, the Fund then pursues reimbursement from the employer.)

Failure to Provide Workers’ Compensation for Employees is a Crime

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

I saw a recent newspaper story from New Jersey telling an employer was found guilty of a crime for filing to provide workers compensation benefits for the employees of his tree trimming service.

I can’t recall the last time I read of such a conviction, although virtually every state makes failing to provide workers compensation is a crime and wide spread employer evasion by labeling workers as independent contractor rather than employees. Recent studies find misclassification to occur a 30% rate. The costs of misclassification are in the hundreds of billions with workers being denied treatment and income replacement, government losing withholding taxes, unemployment benefit taxes and lawful employers paying higher insurance premiums for workers compensation and healthcare to name a few costs.

I run into these scoff law employers all too frequently. If more prosecutors treated as the criminals, they are perhaps more working people would be treated with the dignity and respect they deserve.

Workers Compensation for the Work Camper

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

The Washington Post ran a feature story about “Work Campers” – senior citizens who live in campers and travel around for temporary jobs. The story noted that many, if not most, work campers were forced into the lifestyle by inadequate retirement savings and Social Security retirement benefits that have lost 30 percent of their purchasing power since 2000. The story also noted that the number of senior citizens working has increased from 4 million to 9 million during that same time period.

The idea of a growing number of senior citizens essentially acting as migrant laborers strikes many as odd and even dystopian. But work campers will present interesting challenges to the workers compensation system.  Though some studies show that older workers are less likely to get hurt on the job, this finding is attributed to older workers having more experience on the job. Since work campers tend to hop from temporary job to temporary job, their chances of injury could increase as temporary workers are more likely to get hurt.

This growing development in the workforce raises many issues for work campers who are hurt on the job because workers compensation laws are state specific so benefits and eligibility for benefits vary from state to state.

Here are some questions that will face work campers when they are injured on the job.

Which states and jurisdictions can you collect benefits?

Employees may be eligible to claim benefits in the state where they are injured, their state of permanent residence, the state their employer is based or the state they were hired. Employees may also be able to claim benefits in multiple states. Employees may also be able to bring claims under the Jones Act or Longshore Act if they were hurt on a ship or a navigable body of water. It helps to get advice from a qualified workers’ compensation lawyer as the decision as to where an employee should claim benefits should be driven by where they have the best chances of recovery.

Which states limit permanent benefits for older workers?

Iowa recently limited workers over the age of 67 from receiving permanent disability benefits for more than 150 weeks. A work camper who was covered under Iowa law and seriously injured could only receive 2 ½ years of benefits.

What is the law on pre-existing conditions?

Many elderly workers have preexisting conditions. In some states those preexisting conditions may impair the ability of an injured work camper to collect benefits. In Missouri employees need to show an injury is a “prevailing factor” in the disability whereas in Nebraska employees merely show the work injury was a “contributing factor” to the disability. In other words, it would be more difficult for a work camper to collect benefits in Missouri for the aggravation of an old injury than it would be in Nebraska.

How do you determine earnings?

Disability benefits are based on earnings or what is called average weekly wage.  The work campers profiled in the Washington Post were fairly low wage employees. However some work camping contracts include provisions for benefits like lodging that have a real monetary value. In some states, like Nebraska, those non-cash benefits can be included in the average weekly wage. Short term work assignments also present difficulties in determining average weekly wage because they might not accurately reflect an employee’s actual earning capacity. There could also be questions as to whether employment is seasonal or weather dependent which could also alter the average weekly wage.

Again, calculations of earnings can vary state by state, so work campers injured on the job should contact a member of WILG who specialize in workers compensation and regularly communicate with workers compensation specialists in other states.

Study: Work Injuries Could Increase Risk of Losing Job

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

“Compared to colleagues reporting no injuries, workers who were hurt were more than twice as likely to be fired in the next six months. … After one year, 30 percent of workers had been injured at work and about a quarter were no longer employed at that job after 18 months.”

Can you guess specifics about the quote above, or at least start with figuring out which industry the quote is talking about?

The answer may surprise you (or maybe not, if you or a loved one have worked in this industry): it’s results that “used data from a study done by the Work, Family and Health Network involving direct care workers from 30 nursing homes across New England,” according to the study’s lead author. Cassandra Okechukwu, the lead author, offered that the study’s “original goal was to examine workplace policies meant to improve workers’ health, safety, and wellbeing.”

I am glad that Okechukwu and her team followed the data where it led, even though that wasn’t the original intent of the study. I am also glad that Madeline Kennedy wrote about the study’s results at this link via Reuters Health.

“The results also indicate that federal and state-level regulations, which are supposed to protect workers from being fired after injuries and to give workers compensation and sufficient time to recover from an injury, may not always be followed,” Kennedy wrote.

The study included 1,331 nursing home workers who completed interviews at six-month intervals and reported injuries and job changes for the previous six months in each interview, according to Kennedy. “Nine in 10 of the participants were women, and more than two thirds were certified nursing assistants.”

“Workers who had been injured multiple times were also twice as likely to quit their jobs in the next six months as colleagues with no injuries, the study found. … Compared with people who were not injured, injured workers were 30 percent more likely to no longer be in their jobs within six months of the injury, whether voluntarily or involuntarily.

“People who were injured more than once were more likely to choose to leave their jobs than people with no injuries, while people injured only once were more likely to be fired.”

Why workers are being fired is a question that needs to be examined in another study, according to Okechukwu. I would add that additional research always needs to be done, and I hope someone addresses this issue, as I think it is very important to know about for injured workers and those of us who work with and care for them.

Another researcher Kennedy quoted in the Reuters article who wasn’t involved in the study was Peter Smith, from the Institute for Work and Health at the University of Toronto.

Smith suggested that “workers may be fired because their employers feel they can no longer perform the job duties, or due to worries that they will be injured again,” or that workers elect to leave their jobs because they’re scared of being hurt.

“‘Work is not supposed to lead to injury,’ Smith said, and employers should give workers resources to protect their health and earnings. ‘Measures must be put in place to ensure that employers do not fire or discipline workers because they have had a work-related injury,’ he said.” 

If you or a loved one have questions about a work-related injury or suspect you’ve been fired because of an injury at work, please speak with an experienced lawyer.

As Construction Jobs Increase, So Do Work Deaths

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

More work-related falls and fatalities have gone hand-in-hand with the rebounding construction jobs in the economy. The data in a recent journal showed a positive correlation with fall injuries and population density and construction activity. The full article, from a data report by the Center for Construction Research and Training, can be found here (PDF link).

While the article indicates the amount of construction industry jobs still have not reached pre-recession levels, the industry as a whole is rebounding. With that increase in construction activity is a coinciding increase in falls—and even deaths. As the article points out, “fall deaths in construction are more prevalent than in other major industries.”

Interestingly, according to the data, roofers, older workers, Hispanic workers, foreign-born workers, and self-employed workers had a higher risk of fatal falls than the average among all construction workers. 

Further safety efforts (and reinforcement) are necessary in the construction industry.  The base level nature of the job, however, means that some work injuries will occur. Workers’ compensation law helps protect those workers are their families.

A More Dangerous And Demanding Future For Retail Employees?

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

Walmart announced last week that it started a pilot program where store employees will deliver packages from stores on their way home from work. If this practice is adopted company wide and adopted by the retail industry as a whole, it will change the nature of retail employment.

As written about on this blog before, delivery and warehousing jobs tend to have more physical injures than traditional retail clerk jobs. If employee delivery becomes a regular part of retail employment, then retail jobs should become more hazardous. One positive part about Walmart using employees to make deliveries would be the fact that those employees should be covered by workers’ compensation if they are injured while delivering packages. Fed Ex has faced legal challenges for misclassifying their delivery drivers as independent contractors. Uber, who has also faced challenges on how they classify their drivers, also has a package delivery service.

Delivery jobs tend to be more physically demanding than retail clerk jobs and can also subject employees to DOT requirements. If package delivery becomes an expected part of retail employment, retail jobs will have more physical and occupational requirements. This could mean in the future that retail jobs may not be a fallback option for workers from other physically demanding occupations who become unable to do their old jobs because of injuries or health problems.

The rise of online shopping has greatly reduced the number of stores of traditional retailers. This decline in so-called “big box” stores lead to a parallel reduction in retail employment. Jamelle Bouie pointed out in Slate that this collapse in retail employment has harmed women, people of color and urbanites who tend to work in retail. Bouie points out, I think correctly, that retail employees tend to be disrespected in part because of gender and race. Bouie also states the decline in retail employment has received much less attention than declines in employment in other sectors like manufacturing and mining that tend to employ more white males.

In contrast to traditional retail workers, delivery drivers tend to be paid better. UPS delivery drivers seem to enjoy a certain level of prestige, respect and even a mystique within the workforce. (11) Maybe some of that respect will rub-off on retail workers if they become delivery employees.  On the flip slide, competition from largely non-unionized and lower-paid retail workers may cut into pay and benefits that delivery drivers and their unions have fought for over the years.

The Road Ahead: Adjusting To Life After An Injury

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

As an attorney who has represented injured workers for more than 27 years, I see first hand what an injury can do to workers and their families. A number of years ago I represented an injured electrician, who as a result of an overextension injury sustained on the job, ended up having multiple surgeries. Almost immediately, this once athletic, high wage earner with a beautiful family and comfortable lifestyle saw an abrupt end to the life he knew.

My client faced a debilitating injury. He was no longer able to travel, his personal relationships suffered, and his once strong physique withered away. His financial situation was dire and he was unable to afford his home. Beside the extreme physical impairment, he ended up being treated for major depression. Both the insurance carrier’s medical providers, as well as the claimant’s treating doctors in this particular case, agreed that the claimant was totally disabled or incapable of performing any meaningful work activity – a standard not easy to meet.

Many of those injured on the job may not be able to return to their prior employment. Yet, according to the law, that does not mean they are totally disabled from any employment. If they are able to perform any work activity at all then they may be considered partially disabled. The amount of weekly payments an injured person receives and the length of time an injured worker receives these benefits is dependent upon a number of factors including degree of disability and loss of earning capacity. A partial disability can be considered mild, moderate, or marked.  These degrees are further broken down into when an injury is deemed permanent to a percentage loss of earning capacity. In some cases the difference of one percent loss of earning capacity can mean the difference of a full year of additional benefits. As you can imagine, much of my practice is consumed with litigation regarding the degree of disability and the loss of earning capacity.

The road for those who are partially disabled is not an easy one. Despite the Workers’ Compensation Board’s determination that an injured person has an ability to perform some work activity, it does not always translate into being able to obtain employment. In the case of serious injuries resulting in extensive lost time, the employer may have had to fill the position or the employer may not be able to accommodate the physical limitations. This puts injured workers in a position of having to look for alternate employment that they may not be trained for. The Board recommends a number of resources available to those seeking assistance, including one-stop career centers, as well as participating in vocational rehabilitation programs and continuing education such as SUNY Educational Opportunity centers adult career and continuing education. For more information go to www.wcb.ny.gov/labor-market-attachment

Many workers who are unable to obtain employment because of their injuries apply for Social Security Disability benefits. The standard for Social Security disability is different than Workers’ Compensation and relies more on the age and ability of the injured person to be retrained and to obtain relevant future employment. Social Security Disability benefits are payable for any illness or injury and do not have to be work related. All medical conditions are considered by the federal judge when making a determination as to eligibility, including physical or emotional impairments.

While an injury on the job can be life altering, there are resources available. You may never be able to return to your pre-injury status, but knowing your options allows you the ability to have some control over your future.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Center for Progressive Reform Launches National Database of Crimes Against Workers

Every year are a few work-fatalities that garner criminal prosecution and conviction. This is out the thousands of work-fatalities that occur every year. Until now, there’s been no one keeping a record of these fatality-causing events.

Now, the Center for Progressive Reform’s (CPR) Katie Tracy has reviewed court records, investigation files, and news stories to identify them many of them. After assembling information on more than 75 criminal cases from 17 states, she knew it was time to share all of it.

The result is CPR’s user friendly and publicly-available at Crimes Against Workers Database. I encourage you to explore this valuable tool. We believe that the awareness caused by sharing this information nationally can be a catalyst for legislators and others to understand the scope and scale of these crimes.