Monthly Archives: November 2011

Shortcuts at the Social Security Administration Mean Mistakes

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In this tricky environment, be sure to get the help of a treating physician in offering a supportive report.

Recently, the Wall Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims. In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases. Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.

In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.

Also, doctors were assigned to evaluate conditions that were not in their areas of expertise. One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore’s Harbor Hospital, who worked for Social Security part time for about 10 years. He said “People who shouldn’t be getting [disability] are getting it, and people who should be getting it aren’t getting it”.

In my experience Continue reading

Black Friday Special: 10 Worst Toys for 2011

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Today’s post comes to us from our colleague Jon Gelman of New Jersey. We hope everyone has a safe and happy holiday season!

A consumer group in Boston, W.A.T.C.H., has published its “10 Worst Toys for 2011″ list. The toys nominated represent toys with the potential to cause childhood injuries, or even death. W.A.T.C.H.’s annual “Toy Conference” has generated extensive national press and media coverage. Because of these efforts, and the positive response from both the media and the public, there have been many toy and product design changes.

 

Twist ‘n Sort

1. TWIST ‘n SORT

Price: $13.35
Manufacturer or Distributor: Guidecraft, Inc.
Purchased: WonderBrains.com
Age Recommendation: “Ages 3+”
Warnings: “WARNING: CHOKING HAZARD – Small parts.  Not for children under 3 yrs.”

HAZARD: POTENTIAL FOR CHOKING INJURIES!
This play set consisting of a “brightly colored geometric block and solid wood base” is sold to provide “years of developmental fun” with “problem solving challenges” and “fine motor practice.” On October 20, 2011, certain lots of these toys were recalled because “[t]he small pegs on three of the four posts can detach, posing a choking hazard to young children”. After issuance of the recall, a newly purchased Twist ‘n Sort toy exhibited the same “choking hazard” identified in the government’s recall notice.

 

Power Rangers Samurai Mega Blade

2. POWER RANGERS SAMURAI MEGA BLADE
Price:  $26.99
Manufacturer or Distributor: Bandai
Purchased: Toys R Us (also available Kmart.com and Walmart.com)
Age Recommendation: “4+” and “Ages 4 and up”
Warnings: Package insert:  “CAUTION: PLEASE READ BEFORE PLAYING WITH TOY.
Do not: (1) aim toy at anyone, (2) hit anyone with toy, (3) poke anyone with toy, (4) swing toy at anyone….”; and  other cautions and warnings.

HAZARD: POTENTIAL FOR IMPACT INJURIES!
Young children are encouraged to pull a release and flip-open this rigid plastic Power Rangers Samurai “sword”, which “extends 2 feet!” according to the packaging. The blade has the potential to cause serious facial or other impact injuries.

 

Fold & Go Trampoline

3. FOLD & GO TRAMPOLINE

Price:  $99.99 Continue reading

How To Deal With A Difficult Doctor (Part 1)

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Good quality medical care and honest opinions about the care are essential for a worker to receive proper benefits. Len Jernigan, a colleague of our firm from North Carolina, has written one of the best articles I have ever encountered on dealing with doctors. This is a good informative piece for injured workers, their families and professionals working with these cases. We face all of the problems discussed in this article on a daily basis in NE and IA.

A doctor’s opinion is crucial to every workers’ compensation claim.  Most doctors give honest and rational opinions. As we all know, however, there are some physicians who have a different agenda and either do not take the time to properly evaluate a patient or they intentionally downplay the potential seriousness of the injury.  For attorneys working on a workers’ compensation case, the following steps may help in the search for the truth.

(1)     Check the doctor’s credentials.

It is a strange but true fact that some experts have falsified their curriculum vitae.  If a physician has lied about his qualifications, his expert opinion just went out the window.  One way to verify credentials is to check the American Medical Association’s web page.   Select “Doctor Finder” and then follow the instructions until you get to “Find a Physician” and type in the name, address and zip code.  If you are seeking a specialist, a doctor certification can be checked by phone with the AMA.  For medical doctors call (800) 776-2378.  For osteopathic doctors call (800) 621-1773, ext. 7445.

(2)     Check disciplinary records. 

According to the Federation of State Medical Boards 4,432 disciplinary actions were taken against 3,880 physicians in 1996.  There are approximately 650,000 licensed physicians in the United States.  The Federation is responsible for promoting high standards for licensure and practice, and serves as the primary center for collecting, monitoring and reviewing actions taken against physicians. (A full report can be obtained by calling (817) 868-4000.  The report is also available on their web site.  Sidney Wolfe, a physician who is director of the Public Citizens Health Research Group, a consumer watchdog organization, has analyzed this document and his report can be obtained by calling (202) 588-1000.  A list of “Questionable Doctors” can also be obtained from Public Citizen for each state.

(3)     Communicate, communicate, communicate.

It is important to find out as much as you can about the physician involved in your case.  See if he is listed on the internet.  If he has written any articles, see what the focus is.  Ask other physicians, nurses, hospital employees and others in the community about this person.  Now, with this information in hand, schedule an appointment to talk with the doctor.  Try not to schedule it during his lunch break, or while he is seeing patients.  You want his undivided attention and you will not get it if he is thinking about some medical crisis sitting in the next room.

(4)     Build a relationship. 

Lawyers who specialize in workers’ compensation are likely to see the same physician Continue reading

Nebraska – A Rare Example Of How To Treat Student Athletes Better

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Can workers’ comp for Nebraska student athletes be an example for the NCAA?

Between the terrible events surrounding the Penn State football program, Mike Krzyzewski of Duke’s record-breaking win, and Taylor Branch’s controversial article in the September 2011 issue of The Atlantic magazine, there’s been a lot of coverage of college sports in the news lately. This isn’t necessarily unusual for Nebraskans. Our own University of Nebraska has one of the premier football programs, one which is revered by Cornhusker fans far and wide.

Recently, my good friends and fellow advocates for the injured, Charlie Domer and Len Jernigan wrote blog posts pointing out some of the challenges athletes face.

The bottom line of these posts is that athletes face serious health risks – from brain injuries to chronic obesity, and yet, in most states, collegiate athletes have only basic student health coverage to protect them and are prohibited by the NCAA’s strict rules from earning extra income to purchase additional coverage.

Since 1984, Nebraska law has provided additional protection for college athletes. Our schools offer a rare exception among college athletics programs by offering students a form of workers’ compensation.

In The Atlantic, Branch makes the point that the NCAA has treated college athletes unfairly for years. Schools profit tremendously from the risks student athletes take without compensating them beyond their college scholarships.

But Nebraska is different. Since 1984, Nebraska law has provided additional protection for college athletes. Our schools offer a rare exception among college athletics programs by offering students a form of workers’ compensation.

If we do continue to enforce amateurism in collegiate sports, perhaps Nebraska law can serve as an example for other states to follow.

This difference is because in 1984 the Nebraska Legislature enacted a law (Neb. Rev. Stat. § 85-106.05), which mandated that the University of Nebraska establish an insurance program to provide coverage to student athletes for personal injury or death while participating in university- organized games or practice in an intercollegiate athletic event.

This law covers students Continue reading

Can Facebook Affect Your Workers’ Compensation Claim?

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Follow a few rules of thumb to stay safe on Facebook.

More than likely, you’re on Facebook if you are reading this. If you are not, the chances are very good that you know a close friend or family member who is on Facebook, MySpace, or Twitter.

Most of us never think twice about what we post on these social media sites. However, depending on the privacy settings of your profile, anyone may be able to see the status update on your wall, the photo of you at a wedding, or whatever job you are currently in. That “anyone” could be the defense lawyer or insurance adjuster if you are currently involved in a Workers’ Compensation action.

Depending on your privacy settings, anyone may be able to see the status update on your wall, the photo of you at a wedding, or whatever job you are currently in.

“What do I have to hide?” you ask. Well, often times these status updates, photos, or wall postings may be misunderstood or taken out of context. For example, a status update stating “Just got done mowing the lawn” might not look very good to someone that is off work for a back injury, and it would be hard to explain that even though you mowed the lawn, it took you two pain pills to do so and caused you extreme suffering later that night that you couldn’t even sleep the price you paid in mowing that lawn.

Here’s what you can do to avoid some pitfalls from Facebook:

  1. Adjust your privacy settings so that only your “friends” can see your status, wall, and photos. Continue reading

Should I report my work injury? I don’t want to get fired!

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In Nebraska, being fired for reporting your injury is against the law.

Many Nebraskan workers that have been injured on the job have probably had similar thoughts given today’s economy. However, there are protections for injured workers from getting fired for reporting a workers’ compensation injury. In fact, if you are fired for reporting a work injury, you may be entitled to damages as a result of your termination.

Nebraska is an “at will” employment state. In other words, you may be fired for any reason unless you have an employment contract or you are fired in a discriminatory or retaliatory manner.

You may also be able to recover damages from your employer for being fired for retaliation from your employer. 

For example, most people know that you cannot be fired on the basis of: Race, Religion, Ethnicity, Disability, Age, or Gender. If you are fired for these reasons, there are Federal and State laws to allow you to sue your employer.

On the other hand, not everyone knows that you may also be able to recover damages from your employer for being fired for retaliation from your employer. Continue reading

What if you are an “independent contractor”?

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FedEx is notorious for making their delivery people “independent contractors.”

Often employers and workers’ compensation insurance companies deny workers’ comp, claiming employees are independent contractors. Independent contractors are not technically employees under Nebraska’s Workers’ Compensation laws (the same is true for most states).

In fact, employers and insurance companies often use the category “independent contractor” on purpose so that they can avoid having to pay for workers’ compensation claims for injured workers.

The thing is, even though your employer or insurance company may say that you are an independent contractor, there is a good chance that you are technically an employee, covered under workers’ compensation law.

According to the Nebraska Supreme Court you are either an independent contractor or an employee depending on:

  1. The amount of control your employer asserts over you
  2. Whether you are engaged in a distinct occupation or business
  3. The kind of job you have (whether you are a specialist without supervision or not)
  4. The skill required to do your job
  5. Whether you supply the tools, place of work, and other things required to do the job
  6. The length of your employment period Continue reading