Tag Archives: WILG

A Dismantling of the Grand Bargain That Created Workers’ Compensation

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

This week marks the official start of the holiday season. It is a time for family and loved ones, and a time to reflect on the blessings that we have received in our lives. This week marks the countdown to a number of holidays including Christmas, Hanukah and Kwanzaa. Unfortunately for some people, however, the holiday season is fraught with anxiety, depression, illness and injury. Many people who sustain work-related injuries find that without their weekly salary, the holidays are a stark reminder of how their lives have changed dramatically. The inability to provide for even the basic necessities, let alone splurge on holiday presents, is a prescription for depression.

The Grand Bargain Premise of Workers’ Compensation laws in this country is that the employer, through their insurance carrier, is responsible to pay for injured workers’ medical treatment, lost wages, and permanent disability in exchange for injured workers giving up their rights to sue their employers for negligence. During the last couple of decades, Workers’ Compensation benefits have been under the continuous scrutiny of the Business Council, which has been alleging that the cost of benefits to injured workers is at the root of their increase in costs and reduction in profits.

However, a report from the National Academy of Social Insurance (NASI) indicates otherwise. Benefits as a percent of payroll declined in 46 states between 2010 and 2014, continuing a national trend in lower benefits relative to payroll that began in the 1990s. Costs to employers, on the other hand, continue to climb. Between 2010 and 2014, employer costs associated with Workers’ Compensation – such as insurance premiums, reimbursement payments, and administrative costs – grew at a rate nearly five times faster than benefits. Instead of using employers’ money to provide benefits for injured workers, insurance companies pay a host of businesses, including insurance medical examiners, nurse case managers, vocational rehabilitation companies and defense counsel, all of which profit from the system at the expense of workers and reap record profits for themselves. Meanwhile, the insurance industry and the Business Council falsely blame the claims of disabled workers so they can continue to increase profits by slashing benefits and shifting costs to taxpayer-funded programs instead of employer-paid insurance.

Benefits in New York have decreased under the current Workers’ Compensation system. The changes in the law in 2007 allowed higher wage earners to benefit in the short term as the amount of their weekly benefits has increased. However, these benefits are only available for a fixed period of time. If injured workers are able to return to work after a short period of lost time and a limited period of medical treatment, then some may say the system is a success. Unfortunately for many severely-injured high and low wage earners, the Grand Bargain wasn’t so grand. Medical providers’ hands are tied by Medical Treatment guidelines that limit the amount of treatment authorized based upon “best practices” or cookie cutter treatment, as opposed to what is recommended by the treating doctor. Now there is the prospect of limiting prescription medications as well, all in the name of cost reduction.

The reduction of medical treatment based on the treatment guidelines to injured workers should not imply they are fully recovered. Also, they don’t all return to work once they reach their indemnity cap. The cost of providing monetary benefits and medical treatment are shifted to the taxpayers to pick up the tab. Injured workers don’t expect that the very act of working will forever alter their lives in a negative way. Workers’ Compensation benefits are not a charitable donation, but an entitlement based upon a compromise between workers and their employers. Unfortunately, it is clear that these benefits have been gradually eroded. We should not allow any legislation that further erodes these benefits. While the holidays will continue to bring depression and despair for some injured workers, it should not be as a result of our treatment of them afterward.

 

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.

Labor Report Urges Study Of A Federal Role In State Workers’ Comp Laws

Howard Berkes and Michael Grabell have been investigating the decline of workers compensation for Pro Publica and NPR.

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

Howard Berkes and Michael Grabell have been shining a light on the deterioration of state workers’ compensation benefits over the last decade. A new U.S. Department of Labor report bolsters their investigative journalism, noting that those hurt on the job are at “great risk of falling into poverty” because state workers’ compensation systems are failing to provide them with adequate benefits.

The Workers Injury Litigation Group (WILG) has been fighting against this decline for 20 years, and we will continue to advocate for fair benefits for injured workers. The following is a summary of Mr. Berkes and Grabell’s recent article:

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

“The current situation warrants a significant change in approach in order to address the inadequacies of the system,” the report says.

That’s where federal intervention comes in. The Labor Department calls for “exploration” of “the establishment of standards that would trigger increased federal oversight if workers’ compensation programs fail to meet those standards.”

The agency also suggests a fresh look at reestablishing a 1972 Nixon administration commission that recommended minimum benefits and urged Congress to act if states failed to comply.

“In this critical area of the social safety net, the federal government has basically abdicated any responsibility,” says Labor Secretary Thomas Perez.

Without minimum federal standards for workers’ comp benefits, Perez adds, the current system “is really putting workers who are hurt on the job on a pathway to poverty.”

Prior to the report’s release, employers, insurance companies and others involved in workers’ comp programs expressed alarm at the possibility of federal intervention.

“There has never been federal ‘oversight of state workers’ compensation programs’,” says a statement posted on the website of a group called Strategic Services on Unemployment and Workers’ Compensation, which says it represents the workers’ comp interests of the business community.

“Federal requirements imposed on a national basis would be inconsistent with the state workers’ compensation system, which has been in place for more than 100 years without federal oversight,” the group wrote.

Federal minimum benefits could ensure that injured workers across the country would not receive lesser benefits for often shorter periods of time simply because they lived in a state where lawmakers dramatically cut workers’ comp costs for employers.

“This is a system with no federal minimum standards and absolutely no federal oversight,” says Deborah Berkowitz, a senior fellow at the National Employment Law Project. “Clearly, more federal oversight is necessary to assure that that this system works for those most in need of assistance.”

No direct administrative or legislative action is proposed in the report, but Sen. Sherrod Brown, D-Ohio, says he’s “drafting legislation to address many of the troubling findings laid out in this report and will be working with my colleagues to advance it in the next Congress.” 

Brown echoes Perez, saying injuries on the job shouldn’t force workers into poverty.

“But without a basic standard for workers compensation programs, that’s exactly what’s happening in too many states across the country,” Brown adds. 

Another incentive for federal involvement, the report notes, is a shift of billions of dollars in workplace injury costs to taxpayers when state workers’ comp benefits fall short and workers are forced to turn to Medicare and Social Security for treatment and lost wages.

The report lays the groundwork for federal intervention by providing an extensive section detailing the government’s role in promoting national benefits standards in both Republican and Democratic administrations dating back to 1939.

But many in the workers’ comp world consider workplace injury policy and regulation a states’ right and any prospect of a controlling federal role will likely face stiff resistance.

Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

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

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.

 

 

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.

 

Status of Workers’ Compensation in the United States

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

For all those concerned about worker’s compensation in our country—which really is all citizens—take a look at this important report on the current status of worker’s compensation systems.  The report, from the Worker’s Injury Law & Advocacy Group (WILG) highlights the scary place where some legislators and big businesses want to take worker’s compensation.

Click here for the report. (PDF)

WILG Turns 20! Worker’s Injury Law And Advocacy Group 20th Anniversary

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

I joined WILG in its 1995 inaugural year. At those early conferences, my colleagues around the nation were battling workers’ comp “deform,” and engaged in political battles in their respective states, lobbying legislators on behalf of injured workers’ rights.

I thought I was relatively insulated in Wisconsin, the national “model” state for workers’ comp, with an Advisory Council composed of management and labor which each biennium produced an “agreed-upon” bill that was accepted by the legislature.

The Republican ascendancy in Wisconsin (Scott Walker as Governor, and both Assembly and Senate controlled by Republicans) has decided to ignore 100 years of progressive legislation and ignore the Advisory Council’s recommendations. This dangerous precedent will make workers’ comp more politicized, and threaten the stability of Wisconsin’s workers’ comp system. Wisconsin, like other states, will be part of a “race to the bottom” in workers’ rights and benefits.

WILG’s current President, Matt Belcher of Illinois, provided this summary of the state of workers’ comp as WILG celebrates its 20th anniversary:

”We have never been better positioned as a national organization to advocate on behalf of the families of injured workers.

Recent success in reviewing courts have highlighted nationally the unconstitutional danger posed to the community when injured workers lose access to effective legal representation, have capricious benefit limits imposed upon them, or are disabled due to unfair medical treatment bureaucracies.

WILG and its members have been at the fore of litigation battles where catastrophically injured workers have lost their savings, been forced onto welfare rolls and into Social Security Disability plans while simultaneously being denied access to the civil courthouse and the free exercise of their 7th amendment right to a jury trial. See Wade v. Scott Recycling (Virginia); Malcomson v. Liberty Northwest (Montana); Pilkington & Lee v. State of Oklahoma (Oklahoma); Padgett v. State of Florida (reversed on procedural grounds), Westphal v. City of St. Petersburg, and Castellanos v. Next Door Company (Florida).

The United States Department of Labor in coordination with OSHA have finally “discovered” that employee misclassification and wage theft are rampant, and that the cost-shifting externalization of care for injured workers is as poisonous as it is pervasive.

Perhaps most fundamentally, ProPublica, bolstered by the imprimatur and audience of NPR, has created a national conversation and awareness of the oppressed plight of injured workers with its feature The Demolition of Workers’ Compensation which exposed to the public domain the travesty and arbitrary injustice we slog through on a daily basis.

If we are uncritical we shall always find what we want. -Karl Popper

Continual, constructive self-assessment of our organizational efforts is indispensable to the accomplishment of our mission. Are we really doing the best job possible and are we succeeding to our complete potential?

Governors in the traditionally blue states of California and New York have signed away the long term financial security of millions of families of injured workers while Texas and Oklahoma have essentially jettisoned workers’ compensation benefits, allowing indifferent employers to Bail-Out of their responsibility to provide for the safety and security of working families. Further corporate front group Bail-Out initiatives are fermenting in the legislatures of Arkansas, Kansas, North Carolina, South Carolina, Tennessee and Wyoming.

In my view, the state workers’ compensation system is in its most dire situation in at least the last half-century. -Prof John F. Burton, Jr.

Professor Burton is clearly referencing only the perspective of the injured worker and not the immense wealth of the $85 billion insurance industry where insurance carriers now earn $6.20 in profits for every $100 of net premiums; and, private employers on average pay only 44 cents per hour for each employee to be provided with coverage.

Empirical evidence reliably demonstrates that each reduction in benefits to an injured workers’ family subsequent to “reform” has not translated into lower premiums for small business but primarily in greater profit for the self-insureds and the insurance industry. From 2007 to 2012, workers’ compensation benefits and costs per $100 of payroll were lower than at any time over the last three decades, while insurance company investment profits in 2011, 2012, and preliminarily for 2013, have topped 14% annually.

According to OSHA, workers’ compensation benefits now cover only 21% of workers’ compensation liabilities–shifting 79% of the true cost to others, including the injured workers’ family and taxpayers–while our firsthand knowledge demonstrates the inadequacy of current benefit levels and the injustice of the AMA Guides, ODG Treatment Guidelines, Primary Cause, Medical Formularies and the literal evaporation of effective vocational rehabilitation for those injured workers who have lost access to their prior occupation.

Therefore, my beloved brethren, be ye steadfast, unmovable, always abounding in the work of the Lord, for ye know that your labor is not in vain in the Lord. -1 Corinthians 15:58

I believe it will be the exponential participation of you, the existing member, which fosters our mission as much as the sheer addition of new members. The existential purpose of the organization must always be vigorous and exigent advocacy, not just growth and the collection plate. We must collect accomplishments, not only numbers.

Together we can do that, but we must have an active outreach program that communicates to the public, to the media and to state legislators the value of workers’ compensation and the cost of its failure. If business can focus-group a new Doritos flavor, I am confident we can use a similar approach identifying crux “reptile” talking points, plus distilling and building upon the points raised in the ProPublica series to focus our messaging.”

Alternatives to Workers’ Comp: Paranoia or Possibility

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

I joined a national organization of lawyers representing injured workers (the Work Injury Law and Advocacy Group) twenty years ago when it was first formed. Then, I heard horror stories about legislators messing with an otherwise stable workers’ compensation system after every election cycle. My colleagues in other states were constantly fighting battles over workers’ compensation “deform.” 

I thought we were insulated in Wisconsin because we had a workers’ compensation advisory council composed of labor and management who every two years fought out a compromise bill and submitted it to the legislature, which automatically rubber-stamped the proposed bill without changes. That changed in Wisconsin in 2014. For the first time in nearly 50 years, the Republican legislature rejected the “agreed upon” bill proposed by the workers’ compensation advisory council, despite the approval of the bill by management members.

Governor Scott Walker’s most recent budget contains a provision to dismantle the workers’ compensation system as we know it. Those of us representing injured workers (and those rational members on the management side) are busy lobbying to remove the workers’ compensation dismantling provisions from the budget.

It is no secret that many major corporations dislike workers’ compensation, despite statistics indicating premiums are at their lowest for employers, and profits at their highest for insurers. However, nearly two dozen major corporations including Wal-Mart, Nordstrom’s and Safeway are behind a multi-state lobbying effort to make it harder for workers hurt on the job to collect workers’ compensation benefits. The companies have financed a lobbying group the Association for Responsible Alternatives to Workers’ Compensation (ARAWC) that has already helped write legislation designed to have employers “opt out” of a State workers’ compensation system. ARAWC has already helped write legislation in Tennessee. That group’s executive director Richard Evans told an insurance journal in November that the corporations ultimately want to change workers’ compensation laws in all fifty states. Lowe’s, Macy’s, Kohl’s, SYSCO Food Services, and several insurance companies are also part of the effort. The mission of ARAWC is to pass laws allowing private employers to opt out of the traditional workers’ compensation plans that almost every state requires businesses to carry. Employers who opt out would still be compelled to purchase workers’ compensation plans, but would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can receive medical benefits and wages. Two states, Texas and Oklahoma, already allow employers to opt out of State-mandated workers’ comp. In that state, for example, Wal-Mart has written a plan that allows the company to select the physician and the arbitration company that hears disputes. A 2012 survey of Texas companies with private plans found that less half the companies offered benefits to seriously injured employees or the families of workers who died in workplace accidents. 

Oklahoma passed an opt out measure in January 2014 and the oil and gas industry along with major retailers such as Hobby Lobby pushed hard for the change. ARAWC wants to take that Texas and Oklahoma model nationwide. Seeing the workers’ compensation provision in Wisconsin’s budget bill as part of this overall “scheme” may seem paranoid, but the history of recent “deform” legislation suggest the connection is at least a possibility. 

See the complete article at http://www.motherjones.com/politics/2015/03/arawc-walmart-campaign-against-workers-compensation.

Examining the Reality of Workers’ Memorial Day

Today’s post comes from guest author Rod Rehm and Emily Wray Stander, from Rehm, Bennett & Moore.

We write this blog post to bring attention to an article that was a big dose of perspective about all the recent Workers’ Memorial Day celebrations. The official day is April 28 for Workers’ Memorial Day, and many groups spend a lot of effort in organizing events, discussing safety, and holding memorials. Unfortunately, as the article points out, those efforts don’t always translate into safer workplaces and fewer fatalities.

What Karen C. Yotis and Robin E. Kobayashi did was talk to “a few thought leaders in the workplace safety arena” to get the reality of the situation by asking the question: “Has worker safety improved at all during the past year?” The experts they spoke with included “Tammy Miser, Founder/Executive Director of United Support & Memorial For Workplace Fatalities; Kim Bobo, Executive Director for Interfaith Worker Justice; Charles R. ‘Chuck’ Davoli, 2014 President of Workers’ Injury Law & Advocacy Group and a Louisiana Workers Advocate; and Rebecca Shafer, attorney, author, and a workers’ compensation/risk management maven who has spent her professional life advocating for safe workplaces.”

There is often a disconnect between thought and reflection and then taking action to change a situation. The blog post treads into the waters of holding people and businesses accountable and also taking action that leads to long-term change in the form of safer work environments.

Attorneys Rod and Jon Rehm are members of WILG’s Board of Directors, which is currently led by Mr. Davoli, and the other attorneys at Rehm, Bennett & Moore are all members of WILG because of the group’s efforts towards both accountability for businesses and safety for workers.

While we urge you to read the entire blog post that’s linked to in the first paragraph, here are a couple of thought-provoking highlights.

First, it is striking that a “cost containment expert” like Ms. Shafer describes how businesses must focus on safety. Although it’s at the end of the linked article, Ms. Shafer’s commentary is excellent – the article says that she “speaks out so passionately on the employer’s obligation to keep an unrelenting focus on safety.” Here’s a partial quote that she gave to the article: “ … the bottom line is that each employer needs to make safety the #1 priority. … Until worker safety is TOP priority, a company will continue to have very little success in achieving a balanced workers’ compensation insurance program.” She writes about making safety a higher priority than profitability, but realistically, companies would be much more profitable if they were also much safer.

Finally, Mr. Davoli shared a list of “nine safety elements” for “the construction and building trades” that a Workplace Safety Task Force created in Louisiana with WILG’s help.

Here’s that excellent list:

“1. A designated safety budget as part of the normal operating budget.

 2. A formal safety committee that meets on a regular schedule.

 3. An employer that pays employees for the hours they spend attending voluntary off-duty safety training sessions.

 4. A formal personal protective equipment training program.

 5. Written and formal safety goals that are updated periodically.

 6. Safety training for subcontractors.

 7. Detailed safety reports to employees on a regular basis.

 8. Regularly scheduled safety training programs for existing employees.

 9. A disciplinary procedure for employees who commit unsafe acts.”

The reflection portion of Workers’ Memorial Day must turn to action. The reality is that until businesses buy into and change their work culture to be safe, there will always be a need to remember those who were killed at work.

Thanks to Ms. Yotis and Ms. Kobayashi for writing such an excellent piece.