I’M A 10!!!!

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

This article will not be discussing Bo Derek’s memorable jog down a beach in that memorable movie of the same name.  Instead it discusses the reliability of pain scales in the context of injury cases, a much less interesting topic!

According to the Journal of the American Board of Family Medicine, “Though the accuracy of the 5th vital sign for pain assessment is moderate, it is much lower in practice than under ideal research circumstances. Uniquely, we found that nurses may not always use the 0 to 10 scale to properly quantify pain levels and that informal screening practice leads to underestimation. Efforts to improve routine pain management can confidently use NRS, but provider training, education, and monitoring in screening techniques are needed, as are efforts to link the 5th vital sign to clinician action for better pain managementReading between the lines, this organization found nurses and doctors need more education in order for pain scales to be reliably used.

Typically, patients are asked to rate their pain from 0-10.  However, how those numbers are described seems to vary widely.  One clinician may describe a “10” as the worst pain imaginable, while another may describe it as the worst pain you have ever felt.  Of course, that can result in very different ratings depending on one’s history of prior injury and pain tolerance.  The results may be further complicated by cultural distortions, difficulties in interpretation, psychological factors including depression, education level which could impact understanding and an individuals pain tolerance in general.   Additionally, many injured people may generally feel that they must exaggerate their symptoms in order to be believed or to get the necessary medical treatment they require.  It’s important for us to emphasize to our injured clients that exaggerating symptoms is never a good idea and could result in some very real credibility consequences with the Court, employer and medical professionals.  On a similar note, it’s not uncommon to have some clients underestimate the symptoms they experience, and this also can result in difficulties related to being assigned appropriate work restrictions, getting necessary medical treatment and giving a full picture of the injury itself.

It’s not uncommon in trial for defense attorneys to make light of what they characterize as “exaggerated” pain ratings of 9 or 10.  Additionally, if you are arguing that a condition has gotten worse, it’s difficult to do so when 9 or 10 pain ratings have been given previously.  One colleague recently recounted an exchange during trial which is illustrative.  A client was discussing non-operative back pain to a Judge and had told him his pain was a 10.  When told to imagine Jesus Christ on the cross as the last spear thrust that ended his life as a “10”, and to compare his pain to that the client noted again his non-operable back pain was a “10”.  One can imagine how this client’s credibility may have been negatively impacted by this statement.

Don’t Go It Alone

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

An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.

The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.

What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.

The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.

When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”

How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.

Do not go it alone.  At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.

People With Disabilities Are Finding More Work

Today’s post comes from guest author Kit Case, from Causey Wright.

By Ben Paynter, Fast Company, 3/6/2018, via Governor’s Committee on Disability Issues and Employment

People With Disabilities Are Finding More Work, But There’s A Long Way To Go

A new report finds that while there’s been some improvement, people with disabilities (especially minorities) face huge barriers to entering the workforce. 

While the vast majority of Americans with disabilities want to work, just over one-third are able to find jobs, according to a recent survey from RespectAbility,  a nonprofit that works to empower and increase opportunities for people with disabilities.

That creates a major societal problem: Without gainful employment, more than 12 million people are losing out on wages that might fuel more independence, never mind the obvious hit to their feelings of self-worth. But there’s some good news: more than 343,000 new workers with disabilities took jobs in 2016, four times as many as the year before.

That finding is part of a separate RespectAbility report analyzing recent data from the 2017 Annual Disability Statistics Compendium, an online repository of federal data that’s compiled by the Institute on Disability at the University of New Hampshire. The current percentage of people with disabilities who have jobs stands at 36% compared to 78% of people without disabilities who are employed.

The success of workplace hiring varies drastically from state to state. The top three states doing the best at inclusion are North Dakota, South Dakota, and Minnesota (with rounded hiring rates of 54%, 52%, and 48%, respectively). Those states lagging the worst are West Virginia, followed by Alabama, and Mississippi (all have rates in the upper 20% range). There’s evidence that people with disabilities who are minorities may be doubly discriminated against; the hiring rate for African-Americans is especially low, at 28% overall.

RespectAbility’s analysis points out that places where opportunity is improving and have committed to adopting strong transitional school-to-work programs and state policies that support equitable job-training and development and workplace hiring practices. Two groups with initiatives that appear to be succeeding are called Project SEARCH and Bridges from School to Work.

Project SEARCH, the report notes, is an example of an employer-led effort to match students with disabilities to new jobs. It’s active in 46 states and 78% of participants end up being hired. Bridges from School to Work is known for its career “assessments, workshops, and job matching.” The effort has placed candidates at 4.500 workplaces, according to its website, and it has been honored by several of the national and local employers in different cities where it works. Standout companies include Starwood Hotels & Resorts in Dallas, Sears and AMC Theatres in Los Angeles, and Walmart in the Washington, D.C. metro area.

RespectAbility’s analysis makes clear that it will take a multi-pronged approach to make change: policy shifts, new programs, and obviously ever-more companies with a strong commitment to fair hiring practices. In recent years, companies like JP Morgan Chase, Pepsi, UPS, SAP, Ernst & Young, IBM, Starbucks, and Walgreens have become particularly good role models for inclusion. As the report notes: “These companies have seen that people with disabilities are successful employees who improve businesses’ bottom lines.”

Photo by linkwize on Foter.com / CC BY-NC-ND

Trump’s Assault on Workers

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

As a workers’ compensation attorney, I tend to view current events through the prism of their effect on workers and more specifically injured workers.  The Trump Administration has rolled back his predecessor’s strides in environment, labor and finance, civil rights, health care, government reform, immigration, and education.  I would like to specifically address reverses in worker and consumer safety.  The Washington Post updated how Trump is rolling back Obama’s legacy through 16 executive actions, 74 cabinet level agency decisions, 14 congressional review acts, and a piece of new legislation. 

  • Specifically, in terms of worker and consumer safety, the Mine Safety and Health Administration is revising a mining inspection rule published three days after Obama left office by allowing examiners to do their reviews while miners are working letting companies not record hazardous conditions if they are immediately corrected.
  • The Trump Administration Interior Department ordered the National Academy of Sciences, Engineering and Medicine to stop a study of health risks for residents near surface mining operations in the Appalachians.
  • The EPA delayed implementing a rule that would have changed how agricultural workers are protected from pesticides.
  • The EPA is delaying implementation of rule to require manufacturers to label formaldehyde and composite wood products.
  • A Coast Guard plan to regulate firefighting systems on tanker ships and helipads on offshore platforms was withdrawn.
  • Additionally, a Coast Guard rule that would have required all ships and berths to maintain equipment and technical systems for safety was withdrawn.
  • OSHA delayed implementing a rule regulating construction worker exposure to silica (linked to lung disease and cancer).
  • The House and Senate passed a bill signed by President Trump eliminating worker safety regulations aiming to track and reduce workplace injuries and death.
  • The Labor Department removed from its agenda a proposal to stiffen exposure standards for chemical solvents.
  • The Labor Department cancelled plans to lower permissible exposure limits for some substances that had been set in 1971 and cancelled plans to revoke obsolete permissible exposure limits for other substances.
  • The Labor Department removed from its agenda a proposal to tighten exposure standards for styrene, a chemical used in plastics identified as a carcinogen.

This laundry list of anti-worker executive actions, Cabinet-level agency decisions and Congressional review acts reveals the hypocrisy of Trump’s campaign promises to help working families.  Rather, it reveals his completely anti-worker policy.

Compstitutional Law 101: Part 2: Will Sveen signal a move to judicially dismantle the “grand bargain”?

Watch out for what these three could say in Sveen v. Melin

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

WILG is hosting a summit on the constitutional challenges in workers’ compensation on April 18th, I won’t be able to attend, but this post and my last post are my contribution to this ongoing discussion.

Stating that “a seemingly obscure case could have far-reaching implications” is one of the most overused clichés in legal blogging and journalism.  But a case involving a dispute over the proceeds of a life insurance policy might impact the constitutional basis for workers’ compensation and other state laws protecting employees.

In March, the Supreme Court heard oral argument in Sveen v. Melin (paywall). In Sveen, a former spouse was challenging a Minnesota law automatically removing a spouse as beneficiary of an insurance policy upon divorce. The grounds for the challenge is the so-called contracts clause of the United States Constitution which prohibits states from passing laws that impair the obligation of a contract.

Pro-corporate legal commentators have long lamented the demise of the contracts clause at the expense of laws enacted by states under 10th Amendment police powers. When these pundits and academics write about a “contracts clause revival”, they are really writing about diminishing the rights of states to enact laws under their police powers.

One of the most important set of state laws enacted under police powers are workers’ compensation laws. In New York Central Railroad v. White  state workers’ compensation laws were found to be constitutionally enacted under a state’s 10th Amendment police powers.  State laws regulating workplace safety and the ability to injured employees to seek legal redress were one of the primary drivers for the broad recognition of police powers in the late 19th century. A good discussion of the background behind the expansion of state police powers is found in the 1898 Supreme Court case of Holden v. Hardy.  In short, the Supreme Court found that state workplace safety laws were a response to the new industrial economy of the late 19th century and valid exercises of state police powers.

University of Chicago Law Professor Richard Epstein argued that minimum wage laws violated the contracts clause.  It’s not much of an intellectual stretch to argue that mandatory workers’ compensation laws would violate the contracts clause using Epstein’s interpretation of the contracts clause. A gig economy employer like Uber subjected to a state workers’ compensation law might argue that they should not be subjected to such a law under the contracts clause.

On April 2nd the Supreme Court reversed 70 years of precdent in narrowly construing exceptions to the Fair Labor Standards Act in the Navarro case. Navarro will likely have the effect of pushing plaintiffs to file more wage and hour cases under state laws. A revived contracts clause could cut off or curtail opportunities for justice for victims of wage theft in state court.

A potential contracts clause revival should concern advocates for injured workers for other reasons. In recent years, attorneys for injured workers have had a fair amount of success in overturning anti-worker changes to workers’ compensation laws based on state constitutions. That avenue would likely be blocked with a full-blown contracts clause revival.

In the late 19th and early 20th century, state laws regulating workplace conditions were struck down under 14th Amendment substantive due process. But substantive due process also allows claims for a broad variety of civil rights that are disliked by judicial conservatives, so the substantive due process clause is disfavored by courts.  The contracts clause allows courts to strike down worker-friendly state laws without creating a mechanism for expanding rights for suspect classes of individuals like prisoners or victims of police brutality. In New York Central v. White, the Supreme Court considered and rejected arguments overturning workers’ compensation laws on substantive due process grounds and contracts clause grounds.

Finally, a broad interpretation of the contracts clause would allow the Supreme Court to overturn state workers’ compensation laws while still maintaining the narrowed interpretation of interstate commerce the Roberts court appear to be endorsing in NFIB v. Sebelius. As I wrote in a post last week, a narrow construction of the commerce clause could be a high hurdle in enacting worker-friendly chagnes to workers’ compensation laws on a federal level.

Sveen v. Melin will likely be decided this spring. If the Supreme Court strikes down the Minnesota law based on the contracts clause, I will be interested to read the language of the opinion. I will also be interested in reading any concurring opinions from hard core conservatives like Gorsuch, Thomas and Alito as those opinions could be a clue as to where the court could be going on contracts clause jurisprudence. It is unlikely that Sveen v. Melin will be grounds to invalidate state workers’ compensation laws. Supreme Court decisions are limited to actual cases and controversies that are presentd to them. But Sveen could be another step in undercutting New Deal and Progressive Era refroms.  The Supreme Court has been chipping away at New Deal era laws in cases like Navarro and the Tackett decision in 2015. A bad decision in Sveen might accelerate the rollback of pro-worker laws.

“Independent” (or are they “Adverse”!) Medical Examinations

Don’t get mad…get an attorney.

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

Was your worker’s compensation claim just denied by an “independent” medical evaluator?  You are not alone.

Following a work injury, the insurance company legally can require the injured worker’s attendance with an independent medical evaluator, or IME.  The IME doctor is not the worker’s doctor, and the worker does not have to agree with the doctor.  The problem, however, is that many IME doctors disagree with the causation opinion of the treating physician, and then the IME opinion effectively serves as the default legal opinion until the case either goes to court or is settled.   That means that the insurance company’s hired doctor can be used to cut off a worker’s benefits–forcing the case into litigation.

If the treating physician disagrees with the IME report, a worker should consult with an attorney to dispute the IME denial.  After all, the IME is hired by the insurance company.

A recent in-depth article pointed out the potential for bias by insurance company-hired IMEs: Long-time judge: Some ‘independent’ doctors routinely rule against injured workers.  For many in the work comp world, a more appropriate term for these hired doctors is adverse medical examination.  Certainly that is not true of all IMEs, but some physicians–especially those who are not actively seeing patients–seem to curry favor with the insurance company by denying a worker’s medical claim.

When the insurance company doctor disputes a claim, the injured worker needs their own treating doctor and their attorney to push back against the IME denial.

 

Saving Our Benefits – How Public Outcry Saved Workers’ Compensation in New York

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

Some of you may recall that injured workers and their families were used as political scapegoats by big business and insurance interests who blamed them for the high cost of doing business in New York.  Workers’ Compensation benefits became an easy target as those who needed these benefits were hardly in a position to fight against the deep pockets and political clout of these lobbying groups.  

As a result of political pressure during New York State budget negotiations, there was a direction to update the existing impairment guidelines under the guise of reducing costs to employers while still protecting injured workers. The final budget contained a provision directing the Workers’ Compensation Board (WCB) to put together a task force with input from labor, the insurance industry, medical providers, and the NYS Business Council to revise impairment guidelines to reflect “advances in modern medicine that enhance hearings and result in better outcomes”.  These impairment guidelines determine the amount of compensation payable to an injured worker for a permanent injury.

Unfortunately for injured workers, the WCB unilaterally revamped and rewrote the guidelines and released them during a holiday weekend with a 45-day public comment period. These proposed guidelines bore very little resemblance to the recommendations made by labor groups and the Orthopedic Society, and were an outrageous abuse of power. As a result of a very public outcry, the New York State Assembly Labor Committee held a public hearing during which it became very clear to labor groups, injured workers’ advocates, and members of the State Legislature that the Board’s egregious actions would result in a slashing of benefits to injured workers at a time when they are most vulnerable.

Public outcry led to action. Workers’ advocates showed up at a number of WCB locations across the state, including Hauppauge, Brooklyn, and Buffalo, for Days of Action. More than 100,000 postcards objecting to the proposed changes were delivered. Members of the Retail Wholesale and Department Store Union (RWDSU), the AFL-CIO, NYCOSH, New York City District Council of Carpenters, DC37, and countless others all publicly railed against these changes. Members of the Legislature called out the WCB for overstepping its authority and for proposing changes that would vastly favor the Business Council over the injured worker. 

The Worker’s Comp Board subsequently issued amended revisions, and while there are still some reductions, it was a significant improvement over the initial version. The final version was released last year on December 29. It is clear that grassroots efforts sometimes do work. Governor Cuomo and the WCB Chair clearly listened, and for that we are grateful. We are also grateful to those State legislators, union groups, and medical providers who submitted their insight on the impact the original proposals would have on injured workers.

Lastly, it is clear that those who may have been past or current recipients of Workers’ Compensation benefits – those who have known injured workers or those who just saw an injustice and wanted to help right a wrong – took the time to make a phone call, send a letter, or sign a petition. The outpouring of support took many by surprise, including those interests that were financed by big business groups.   One of my favorite quotes is from Margaret Mead, an American cultural anthropologist, who said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” Truer words were never spoken.

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.

BuzzFeed News: At Tesla’s Factory, Building The Car Of The Future Has Painful And Permanent Consequences For Some Workers

Today’s post comes from guest author Kit Case, from Causey Wright.

Tesla wants to change the world by selling eco-friendly electric vehicles to the masses. But some of the workers laboring to build that dream have been hurt along the way.
FREMONT, CALIFORNIA — Terrill Johnson was installing car trunks at Tesla’s factory in Fremont, California, when he heard the sound that would define his next few years, if not the rest of his life. “It was a big, loud pop,” he said. In one movement, Johnson had blown out his elbow and his shoulder. “Once the pop came, the pain came.”

That was September 2015. Johnson went on leave for his injury, but on workers’ compensation he earned considerably less than the roughly $1,700 he had earned every two weeks while on the job. Now, two surgeries and more than two years later, he’s still waiting for his workers’ compensation case to be resolved, and trying to make ends meet in one of the country’s most expensive metropolitan areas with just the earnings from his workers’ comp check plus Social Security disability payments from the state. He can’t work out or play sports, and when he walks around, he keeps his injured hand in his pocket because otherwise it swings around and causes him pain.

“I can’t even lift no more than 10 pounds with my left arm, and I’m left-handed,” he told BuzzFeed News. “It took a lot from me. The arm is not going to ever get back to where it was, never.” He said he doesn’t know how he’ll make a living in the five years before Social Security kicks in.

Tesla is the largest and highest-profile electric car company in the world. It’s a $57 billion business built on a message of innovation, ambition, and social good. Its cars, the Model 3, Model S, and Model X, retail for between $35,000 and $79,500, and confer on their buyers not just financial status, but also a certain eco-futurist sheen. Tesla’s founder, Elon Musk, is as famous for wanting to colonize Mars as he is for his ambitious production schedule and boundless idealism. Stenciled over the entrance to the company’s Fremont factory are these words: “Our mission: to accelerate the world’s transition to sustainable energy.”

But while Tesla may eventually reinvent the automobile, it hasn’t yet reinvented automobile manufacturing. Here in Fremont, at the only nonunion US-owned automotive plant in the country, the people who labored to build the future of transportation have done so by working long hours with lower-than-industry-average pay, according to workers, and higher-than-industry average risk of injury according to a prolabor nonprofit.

In the last year, amid a union drive and a string of negative allegations about its working conditions, Tesla has raised starting hourly rates by $2; today, it says, its production line workers are paid better than any other US autoworkers, and its injury rate is roughly equal to the national average.

But 15 people who worked in Tesla’s factory within the last five years describe it as a backbreaking job that placed workers under tremendous pressure to produce — a result of the company’s ambitious production targets — that they say led, in some cases, to lifelong injuries. Between 2012 and early 2017, 180 Tesla employees applied for compensation for partially or permanently disabling injuries, according to a database obtained via a public records request by BuzzFeed News from the California Department of Industrial Relations (DIR). In interviews, several of these injured employees described doing repetitive tasks with little opportunity to rotate positions — in violation of Tesla’s own stated policy, as well as industry norms. Most of these workers were making around $17 an hour before they were injured; several said they ended up losing their homes afterward, unable to pay their rent.

 
Read the full story and see all of the photos here.
 
Posted on February 4, 2018

 

Photo by BitBoy on Foter.com / CC BY