A Special Warning About Over-the-Counter Pain Medications

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Today’s blog post was written by respected colleague Jay Causey from Causey Law Firm in Seattle.

As was written on this blog almost exactly a year ago, there continues to be concern about pain relievers and the trade-off between whether the potential problems with pain relievers outpace the potential relief of pain.

This time, instead of a ProPublica study, ConsumerReports.org has released a special report that tackles the dangers of painkillers.

Prescription painkillers are very much a concern, but people take for granted that acetaminophen (also known as Tylenol) is safe. Both Consumer Reports and ProPublica agree that there needs to be much more consistent labeling and care taken with this product. The recent CR report specifically talks about inconsistency in dosage of over-the-counter acetaminophen, especially because different products may label for different maximum amounts of the drug per day.

“And with acetaminophen, accidentally taking too much is all too easy. That’s because it’s the most common drug in the U.S., found as an ingredient in more than 600 OTC and prescription medications, including allergy aids, cough and cold remedies, fever reducers, pain relievers, and sleep aids,” according to the CR article.

The CR article also encourages people to be aware of the risks versus the potential pain relief of other over-the-counter painkillers, as there are apparently “serious risks to your heart and stomach when taken regularly, as millions of Americans do” for “drugs such as ibuprofen (Advil and generic), naproxen (Aleve and generic), and Celebrex,” as Celebrex is also soon to be released as a generic over-the-counter pain remedy.

Yes, it is important to find pain relief, especially for chronic pain, but please be safe while doing so.

The dangers of prescription pain meds get a fair amount of regular attention in the media.  A recent Consumer Reports (CR) article described a 300% rise in prescriptions of opiods – particularly those with hydrocodone –over the past decade, and provided a scary statistic:  17,000 people – 46 per day – die from overdose of these drugs.

What is less well known, and gets relatively scant attention, is that over-the-counter (OTC) painkillers containing acetaminophen (e.g. Tylenol) take 80,000 people yearly to the emergency room from overdose.  Acetaminophen, widely regarded as a “safe” drug is now the most common cause of liver failure.

The CR article points out the primary problem:  the directions for usage of these OTC drugs are ridiculously confusing and misleading.  Many of these only provide the caveat “take only as directed.”  What exactly does that mean?  Wildly different things according the cautions provided by differing drug manufacturers.  Some labels advise taking no more than 1000 milligrams of acetaminophen daily while others set the limits four times that high.  In some bizarre bureaucratic misstep, the FDA has lowered the maximum per-pill dose of the drug in prescription medications but has not done the same thing for OTCs. 

CR warns that overdosing on acetaminophen is easy as it is the most common drug in the U.S., found in more than 600 OTC and prescription medications.  There is little margin for error in exceeding the maximum recommended dose as only as small excess amount of the drug can be toxic to the liver.  A scary little graphic in the article shows how easy it is to do this.  A person might take six 500 milligram Extra Strength Tylenol (states maximum daily dose of 3000 milligrams) starting in the morning and through the day; then be on NyQuil for a cold and take eight 325 milligram pills (states maximum daily dose 2600 milligrams); and then do Walgreens Pain Reliever PM as a sleep aid (two 500 milligram pills at bedtime for a daily dose of 1000 milligrams).  At the end of a 24-hour period, that person would have ingested 6,600 milligrams of acetaminophen!!  Repeated doses of more than 4000 milligrams of the drug have been linked to liver, brain and kidney damage.  Chronically large doses have been correlated with the need for a liver transplant, or death, more than from one large overdose.

In 2011, the FDA limited the amount of acetaminophen in prescription pills to 325 milligrams per pill, but there has been no similar limitation imposed for OTCs, even though that market accounts for 80% of that drug taken yearly in the U.S.  For those regular users of acetaminophen, signs of potential liver damage to watch for are:  dark urine, pale stool, upper right abdominal pain, and a yellowish tint to the whites of the eyes.

 

Photo credit: Be.Futureproof / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Study: Work Comp Benefits Up; Employer Costs at Historic Low

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Respected colleague Thomas Domer of the Domer Law Firm in Milwaukee, recently wrote a post about a study released by the National Academy of Social Insurance (NASI).

The study, titled Workers’ Compensation: Benefits, Coverage, and Costs, 2012, is a treasure trove of information, as you can see if you click on the 86-page document. The 2012 report was just released this summer, I am guessing because it takes a bit to compile all this data.

Here’s what Mr. Domer said about the study (reprinted with permission):

“A new study released by the National Academy of Social Insurance (NASI) indicates worker’s compensation benefits rose by 1.3% to $61.9 billion in 2012 while employer costs rose by 6.9% to $83.2 billion. Even though total benefits and costs increased in 2012, worker’s compensation benefits and costs per $100 of covered payroll have been lower from 2007 to 2012 than at any time over the last 30 years. In 2012 benefits were 98 cents per $100 of covered payroll while employer costs were $1.32 per $100 of covered payroll. 

Over the last 30 years medical benefits have accounted for an increasing share of total benefits from 33% in 1984 to nearly 50% in 2012. Medical benefits accounted for almost 50% of the $61 billion in total benefits paid. In Wisconsin medical benefits exceed cash benefits, indicating that medical cost containment is a significant issue.

The Academy’s report Worker’s Compensation: Benefits Coverage and Costs 2012 is the 17th in an annual survey. The report provides the nation’s only comprehensive data on worker’s compensation benefits coverage and employer costs.”

Rehm, Bennett & Moore includes attorneys licensed in both Iowa and Nebraska, so I was most interested in these two states. As Mr. Domer indicated, cash wage replacement benefits and medical benefits are almost even nationwide, although cash benefits used to be a much greater cost to employers than medical benefits were. There is some difference in benefits between states, too, according to the study.

“The share of benefits paid for medical care varies tremendously across states. The variation not only reflects between-state differences in amounts paid for medical care, but also differences in the relative generosity of cash benefits across states,” according to the study.

Both Iowa and Nebraska are the same as what Mr. Domer reported with Wisconsin above: medical benefits very much outpaced cash benefits, and medical cost containment is definitely a concern. In 2012 in Iowa, over $362 million was paid in medical benefits, while almost $280 million was paid in cash benefits. In 2012 in Nebraska, over $192 million was paid in medical benefits, while over $120 million was paid in cash benefits.

There is a lot more information to digest in this document, so perhaps future blog posts will address some of the details. But I will end on an encouraging note from the 2012 study: “Workers’ compensation covered an estimated 127.9 million workers, (90 percent of the employed workforce) an increase of 1.6 percent from the number of workers covered in 2011 (125.8 million). … Between 2010 and 2012, all states experienced an increase in both covered wages and covered workers.”

That is definitely good news for workers, whether injured or not, and their loved ones.

Grain Handling Safety Concerns Occur All Year

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During the hustle and bustle of harvest beginning, some agricultural producers are in a hurry. Obviously there are a lot of different ways to focus a blog post during harvest time, but today I’d like to feature one that we wrote last year about grain handling safety. It is probably more in the minds of folks now because of harvest starting and the specialized machines being used now, not to mention the ramping up of workers needed to bring in the harvest. In fact, I know of many people who take days off of work to “go home” to help friends or family with the harvest, so there may also be people working who aren’t as familiar with day-to-day farming operations.

Regardless of whether one is a regular worker or a temporary volunteer, grain handling safety should be on workers’ and employers’ minds all year long. Very recently, OSHA held the owners of a grain elevator accountable for an incident that killed a 51-year-old man in South Dakota in March. Sadly, the gentleman was “engulfed in flowing grain in a railcar load-out elevator at Prairie Ag Partners,” according to the news release from OSHA. This resulted in proposed fines of $120,120 and the Lake Preston, S.D., business being put in OSHA’s Severe Violator Enforcement Program. Citations were “for one willful, two repeat and eight serious safety violations, many involving OSHA’s grain handling, permit-required confined space and fall protection safety regulations.”

I would note that OSHA sees incidents like this as such a problem that is has developed a National Emphasis Program for Grain Handling Facilities. What’s the most disturbing about this situation is that it was most likely preventable. Eric Brooks, OSHA’s area director in Bismarck, N.D., talked about the dangers of workers getting entangled when machines move grain and the worker is submerged. “If Prairie Ag Partners had followed basic safety standards, this tragic incident could have been prevented,” Brooks said in the news release.

That is a stark reality: following “basic safety standards.” So this harvest time, and whenever working with grain, make sure both businesses and workers know and follow the necessary safety standards. Have a successful and safe harvest season.

The grain harvest is still going strong in many portions of the Great Plains, but farmers and agricultural workers may be at that point where they just want to get it done and take shortcuts. However, taking shortcuts can often lead to bigger safety problems for these ag workers.

Although folks who are in the field and transporting grain to elevators are much more visible right now, safety issues with grain elevators go on throughout the year. So for people who live or work around grain elevators, which would be pretty much everyone in many small Nebraska and Iowa towns, please be aware of the dangers that grain handling can present, including explosions from grain dust, falls, or suffocation, among many of the other hazards out there.

One of the area television stations, 10-11 Central Nebraska, recently featured a special report on “Nebraska Grain Industry Safety” titled “OSHA, Grain Industry, and Families Work to End Injuries and Deaths.”

That effort got us thinking about compiling a list of links and previous blog posts that we have run in regards to both agriculture and also grain handling as resources.

Here are a couple of general links, and then below that are links to past blog posts from the firm that talk about either workers’ compensation for ag workers or grain-handling issues.

OSHA Safety and Health Topics: Grain Handling

Facebook Community: Grain Mill Accidents

OSHA Looks at Challenge of Nebraska Grain Elevators’ Safety

Learn & Live: Grain industry hazards lead to deaths, injuries each year; US Labor Department’s OSHA working with Nebraska grain associations to promote awareness of grain industry hazards

Employer Pleads Guilty for Grain Elevator Death

Temporary Employees Cannot Be Excluded From Workers’ Compensation

The 11 Most Life-Threatening Jobs on the Planet

What Nebraskans In Farming Industries Should Know About Workers’ Comp

Please continue to be safe this harvest and avoid dangerous shortcuts! Because all loved ones deserve to have their workers come home to them.

Happy #NTDAW: Thoughts for Truck Drivers, Consumers

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According to various industry sources, we’re in the middle of #NTDAW: National Truck Driver Appreciation Week.

A quick search of this hashtag on Twitter nets quite a few random thoughts, including free lunches from various companies for their drivers, a focus on wellness, fun facts about trucking, branded trinket giveaways, and general promotion of the industry.

Through both truckerlawyers.com and the firm, attorneys here do quite a bit of work with truck drivers, mainly workers’ compensation for company drivers. So I find it amusing, if not misguided and problematic, that many of these companies “celebrate” their drivers with one week a year of token gestures like a “free lunch” if you’re close enough to the terminal to take advantage of it. This is at the same time that these companies work hard to delay, deny and sometimes even ignore workers’ compensation claims of their injured drivers.

Every industry has its challenges, and trucking seems to have issues with driver retention, a perceived “shortage” of drivers, and just not paying drivers enough for the conditions that they live in on a daily basis. The way a company treats its employees says a lot, whether those employees are hurt or not. For example, truck drivers are protected under federal laws when they get hurt or become a whistleblower for refusing to drive an unsafe truck, as that decision easily affects others sharing the road. That being said, getting fired for reporting a workers’ compensation claim is obviously disruptive to drivers and their loved ones. In addition, especially since drivers are on the road so much, it is even more hurtful if they cannot take FMLA for a loved one’s medical emergency, even if the driver works for a larger company. Also, just a reminder, if a trucker gets hurt, it’s up to that driver to let the company know so that down the road, a person can get needed workers’ compensation benefits.

Over the years, I’ve found that many injured drivers just want to figure out how they can get well and get back to their lives and work. They are very dedicated and loyal to their profession, so it is important that injured drivers get the care they need in a timely manner without businesses or insurance companies putting up roadblocks to that care.

Finally, I would be remiss if I didn’t actually say thank you to drivers who work very diligently, away from their loved ones, to deliver the goods that folks consume. I also appreciate the majority of drivers who work hard to be safe every day and watch out on the roads for others. It’s my observation that truck driving is more than an industry, it’s a lifestyle. Happy NTDAW, be safe, and take care.

Increase in Wage Theft Claims

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Today’s blog post was written by guest author Leonard Jernigan from The Jernigan Law Firm in North Carolina. Firm associate Brody Ockander also brought The New York Times story to my attention that Mr. Jernigan references. Here’s the link to the original story from the Times: More Workers Are Claiming ‘Wage Theft’. The firm’s blog has also included previous stories about wage theft, specifically Wage Theft Is Illegal And Immoral, written by Mr. Jernigan, and Wage Theft Another Assault on Workers’ Compensation, which was shared by Gelman on Workplace Injuries. As Mr. Jernigan uses North Carolina as an example, pretty much every state has a version of a Department of Labor that handles wage-theft issues. Here is a link to Nebraska’s form: Filing a Wage Complaint. In addition, many attorneys can be a resource for a person in this situation so please contact an experienced attorney, including those at our firm, if you have questions about a specific situation.

According to a recent article in The New York Times (Sept. 1, 2014), more workers are claiming wage theft by their employers. Worker advocates assert that violations of minimum wage and overtime laws, erasure of work hours and wrongful takings of employees’ tips are increasing in volume.

David Weil is the director of the federal Labor Department’s wage and hour division. Since 2010, Mr. Weil’s agency has uncovered almost $1 billion in illegally unpaid wages, with a disproportionate amount of immigrant victims. Weil believes the surge in wage theft is due to underlying changes in the national business structure. As large employers increase franchise operations as well as use of subcontractors and temp agencies, these companies deny any knowledge of wage violations.

A federal appeals court in California recently ruled that FedEx committed wage theft by labeling its drivers as independent contractors to avoid having to pay them overtime. New York’s attorney general, Eric T. Schneiderman, has recovered $17 million in wage claims over the past three years and in Nashville last February nine Doubletree hotel housekeepers were paid $12,000 in back wages owed by the hotel’s subcontractor. Wage theft is prevalent in North Carolina as well. According to the N.C Department of Labor 2012-13 Wage and Hour Bureau Annual Report, 4,244 complaints were investigated. Out of an estimated $2.4 million due, almost 73% of unpaid wages (over $1.79 million) were recovered for 2,168 workers. To file a wage dispute claim in North Carolina, contact the Department of Labor’s Wage and Hour Bureau at 919-807-2796 or 1-800-NC-LABOR.

Considering Priorities on Patriot Day

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“Where were you when the world stopped turning on that September day?” Alan Jackson, “Where Were You”

Have you heard that tune? While I don’t remember all the words, the internets can help with that, and the words definitely provoke some strong feelings and memories.

Today is Patriot Day. For so many people on Sept. 11, 2001, the change was swift and often tragic. Many people, all over the United States, are still living the ramifications of that day, whether directly or indirectly.

Life changes all the time, in an instant, for a friend, a family, or a community, even New York City. So what (and who) are your priorities?

While at a family gathering recently in small-town Nebraska, I found myself reflecting on priorities and how important it is to appreciate loved ones, both family and friends. It seems like Patriot Day also give a chance for entertaining such thoughts.

We were at a town that seems idyllic, but I’m sure people have their challenges and issues, as happens everywhere. This is also a town that was hit very hard by winds and baseball-sized hail earlier in the summer. No tornadoes, but there was plenty of damage. Many windows are still boarded up, and seeing people on roofs is a regular occurrence as homes are still being repaired.

During our visit, the scaffolding attached (or next to) to the house across the street collapsed. The two people on the roof (one of whom was the homeowner) were there amid the rubble, on the ground. They were at the highest point of the old house, so they both fell a good 20 feet. The volunteer fire department brought both of the town’s ambulances. The first responders, including a town policeman, were efficient and took great care in loading the gentlemen onto backboards and transporting them to the hospital.

Time can do funny things in a situation like that. Although 911 was called quickly and the policeman was there very fast, it seemed like it took forever for ambulances to arrive, although it really wasn’t very long, and it was very interesting to see the volunteer firefighters/EMTs meet the ambulances at the site for efficiency. All these vehicles descended at the house, and each first responder jumped out of his or her vehicle (you know you’re in a small town when …). They seemed to do a well-rehearsed dance, and you could see the hard work, concern and speed needed. We learned later that the two most likely would survive, but the extent of the damage they face is unknown, as each man on the roof broke his back.

Although I don’t know the people hurt, just as I didn’t personally know anyone in the Sept. 11 tragedy, it is still easy to empathize and think about the “what ifs.”

But it’s most important to face the new reality and call, write and hug loved ones. Because events and tragedy, whether personal or even nationwide, often elicit strong emotions in those who experience them. However, it’s the action afterwards that counts.

Please take that “where were you then” moment, think about it in the best way you know how, and then use it to provide a positive memorable moment for someone close to you. Because who are your priorities?

Happy Patriot Day.

Are You Really an Independent Contractor?

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“Calling a dog’s tail a leg does not make it a leg.” Abraham Lincoln

FedEx drivers recently won two class-action lawsuits in the 9th Circuit Court of Appeals. The court ruled that FedEx wrongfully withheld overtime pay, Social Security, unemployment, Medicare and other benefits to drivers because they were misclassified as independent contractors rather than employees. The decisions were driven by the fact that FedEx exercised control over the appearance of drivers as well as what packages to deliver, on what days, and at what times.

Though the FedEx decision only applies to Oregon and California, it is very possible that a similar decision would have been made under Nebraska law. Under the Nebraska Wage Payment and Collection Act as well as under the Employment Security Law, Neb. Rev. Stat. 48-601 et al., there is a five-part test as to whether a worker is an independent contractor or employee.

  1. Individual is free from control or direction under contract of hire
  2. Individual is free from control or direction as a matter of fact
  3. Service is outside the usual course of business for which service is performed
  4. Such service is performed outside of all the places of business of the enterprise which such service is performed
  5. Individual is customarily engaged in an independently established trade, business or profession.

Nebraska law creates a presumption of an employer-employee relationship. Tracy v. Tracy, 581 N.W. 2d 96, 7 Neb. App. 143 (Neb. Court of Appeals, 1998) In short, if you can answer most of those questions “no,” you are very likely an employee rather than an independent contractor. The mere fact that you may have signed a documents stating you are independent contractor does not necessarily mean you are an independent contractor.

In addition to protections under federal law, asking questions about your employment status is also a protected activity under Nebraska law. Being misclassified as an independent contractor could cost you thousands of dollars in wages and benefits. However, you have the ability to fight back if you are being misclassified.

How Employers Can Abuse FMLA

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Our colleague, Tom Domer in Milwaukee, recently criticized the media for their misleading coverage of “FMLA abuse” among public employees in Milwaukee. This criticism parallels our criticism about misleading coverage of an unemployment decision in Iowa. Domer pointed out correctly that FMLA leave is unpaid. The fact that FMLA leave is unpaid leave makes it possible for employers to abuse FMLA.

I represented a client with a personal health condition that temporarily prevented that person from doing heavy lifting. My client told human resources about this health condition, and that person was forced to take unpaid FMLA leave. Of course, under the Americans with Disabilities Act, there is an obligation to engage in an interactive process to determine what reasonable accommodations could be made so the disabled employee can perform the essential functions of the job. In the case of my client, there was evidence that that person’s employer did not engage in that process. Though my client’s case ultimately resolved, I doubt that my client is the only person who has had a similar experience with forced FMLA.

I suspect some employers use unpaid FMLA leave as a way to reduce payroll expenses even if an employee could perform the essential functions of their job with a few simple accommodations. So the next time you hear about employees abusing FMLA, remember that employers can abuse unpaid leave as well.