Monthly Archives: December 2011

What Workers’ Compensation Fraud Actually Looks Like

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Some company owners fund lavish lifestyles with the money they steal through fraud.

What does workers’ compensation fraud actually look like? It looks like big insurance skimming billions of dollars and wealthy businesses living lavishly on workers compensation funding. Fraud costs everyone involved in the workers compensation system. Unfortunately the insurance and business interests continually claim employee fraud is a major problem. In reality worker fraud is a very small problem, accounting for less than 5% of fraud costs. A recent PBS segment summarized this fact very well. Please take a moment to read this and get the facts.

My respected North Carolina colleague, Leonard Jernigan, has studied real fraud costs for several years. His recent article, Billions in Employer Fraud: Top Ten Cases of 2011 is a must read for everyone who cares or is interested in the workers compensation system. Check out items 2 and 3 from his list below to see the old adage “if you are going to steal, steal a lot” at work in the workers’ compensation system:

  1. Compensation Risk Managers commits $1 billion in fraud, forcing many small businesses to close.
    Compensation Risk Managers (CRM), a company that acted as trust administrator for small business in New York State who self-insured for workers’ compensation, was sued in 2009 for $400 million in a lawsuit for fraud. Continue reading

National Transportation Safety Board To All States: Ban Cellphone Use in Vehicles

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Using a cell phone while driving can lead to accidents!

Today’s post comes to us from our colleague Jon Gelman of New Jersey.

Earlier this month, the National Highway Safety Board, an independent federal government agency charged with determining the cause of transportation accidents, promoting transportation safety, and assisting victims of transportation accidents and their families, issued an advisory notice to states regarding cellphone use:

To the 50 states and the District of Columbia:

  1. Ban the nonemergency use of portable electronic devices (other than those designed to support the driving task) for all drivers;
  2. use the National Highway Traffic Safety Administration model of high visibility enforcement to support these bans; and
  3. implement targeted communication campaigns to inform motorists of the new law and enforcement, and to warn them of the dangers associated with the nonemergency use of portable electronic devices while driving.

Continue reading

Happy Holidays! Or is it?

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Have fun at your office holiday party, but remember to stay safe!

It is that time of year when employer’s have holiday parties and although no one is told to be there it is the “unspoken” rule that everyone must attend. So what if one is injured during the course and scope of the “holiday cheer” session?

Generally, there is no law specifically dealing with injuries sustained during the holiday party but there are rules applicable to company picnics or intramural recreation that would apply to help you determine if one’s injuries would be covered under these circumstances.

Both the State of Nebraska and the State of Iowa have adopted the test set out in 1A A. Larson, Workmen’s Compensation, § 22.00, at 5-71 (8th ed.1982)). Professor Larson states the general rule that recreational or social activities are within the scope of employment when:

(1) They occur on the employer’s premises during a lunch or recreation period as a regular incident of the employment; or (2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.
Gray v. State, 205 Neb. 853, 290 N.W.2d 651 (1980); Briar Cliff College v. Campolo, 360 N.W.2d 91, 94 (Iowa 1984),

The above rules can be demonstrated the best by giving you two examples the courts have distinguished the above rules. First, in the case of Shade v. Ayars & Ayars, Inc., 247 Neb. 94, 525 N.W.2d 32 (1994), Shade, his foreman, and several other employees began a game of touch football, which escalated into tackle football. During the game, Shade was tackled by the foreman and a coworker, and his head was driven into the ground by the tackle. The resulting cervical spine injury left Shade a quadriplegic. The Court found that the company did not receive “any substantial direct benefit from the activity ‘picnic’, although it may be inferred that it derived the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life,” and the claim was dismissed.

However, another example of applying the Larson rule can be found in the case of Briar Cliff College v. Campolo, 360 N.W.2d 91, 94 (Iowa 1984). Campolo was a college professor who died while playing on a faculty intramural basketball team. He was awarded benefits because the basketball game in which a faculty member had participated contributed to student retention, where the court found “student recruitment and retention are major concerns of the college to insure adequate enrollment and revenues.”

Thus, if you find that you are required to attend any company or employer holiday party this year, please pay special attention to the rule that encompasses an injury as arising in the course of employment if the employer derives substantial direct benefit from the activity beyond the intangible value of improvement of employee health and morale that is common to all kinds of recreation and social life.

Be careful out there! Anything can happen when you celebrate and have fun!

The Ugly Truth About Company Nurses

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Your doctor can provide better treatment than the company nurse.

Employers and insurance carriers can lower their workers’ compensation costs by the thousands by taking control of an injured workers’ care from the onset of injury. This is why employers often provide nurse case managers to monitor claims. However nurse case managers can also be expensive. That is why some employers are turning to an even cheaper alternative: nursing triage services on company premises or at nearby clinics.

The reality is that these nursing services are just another way to keep costs down, by reducing the likelihood that workers will seek the care of real physicians.

Nursing triage services, or company nurses as they are often called, are presented to workers as a benefit. They are presented as knowledgeable and experienced in treating workplace injuries, and it may seem as though they are there simply to provide solid medical care. The reality is that these nursing services are just another way to keep costs down, by reducing the likelihood that workers will seek the care of real physicians.

Company nurses simply do not deliver what injured workers are entitled to Continue reading

Fired? Help Your Attorney Set Your Case Up For Success – Part 2

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Deposition can be tough, but it is also a chance to make things much tougher on your former employer.

In a post earlier this week, I shared some of the legal procedures that can make wrongful termination cases stressful for clients. Today I’ll share some ways that wrongfully terminated clients can work with their lawyers to make their cases as strong as possible.

The early stages of the case are essential for setting a foundation for ultimate success. You have an important role to play in both the written discovery and deposition phases of your case.

Filing the Lawsuit and Written Discovery

In Nebraska, a wrongful termination lawsuit officially starts when your attorney files a written complaint with the court and it is served on your former employer. I work with my clients to make this written complaint as detailed as possible. I do this is because this complaint frames the next stage of the case, written discovery. By working closely with you when filing the written complaint, I’ll have a much better sense of how your employer will attempt to defend the case.

If your employer denies specific facts in the written complaint, then in the written discovery phase I’ll ask your employer for facts and documents to support their denial.

Deposing the Employer’s Witnesses

As an attorney, it is my job to expertly assess a witness’s words, body language and facial expressions, Continue reading

Fired? Help Your Attorney Set Your Case Up For Success

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Work with your lawyer to make things tough on your former employer.

Being fired from a job is one of life’s most difficult events. If you feel like you’ve been wrongfully terminated, one option is to sue your former employer. Bringing a wrongful termination lawsuit can right a wrong, but it can also bring back painful memories.

In this two part series, I’ll give you an inside look into some of the legal procedures that could make a wrongful termination case stressful for clients and ways that wrongfully terminated people can work with their lawyers to make their case against their former employers as strong as possible.

Once a lawsuit is filed, your lawyer and your employer’s lawyer will start a process called discovery. Discovery usually begins by serving written questions and requests for documents on the parties to the lawsuit. While answering these questions and gathering documents can be time consuming, it is often key to establishing the case against a former employer.

This time period, while stressful, is an opportunity to work together with your lawyer to build a strong foundation for your case, and to make things extremely tough on your former employer.

Discovery is followed by an on-the-record interview called a deposition. In a deposition, your former employer’s attorney will ask you questions about your case, often for several hours straight. This session is usually videotaped. You will probably be asked about your written answers to questions and about the documents you produced in discovery. You are also likely to be asked questions about documents from your personnel file. Your lawyer will

Continue reading

I want to go to my family doctor, but my employer tells me I can’t.

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Your family physician may be the best person to treat you for a work related injury.

Generally in Nebraska, if you’re injured at work, you have a right to go to your family doctor so long as that doctor has treated you or an immediate family member and has records of that treatment. See Neb. Rev. Stat Section 48-120(2)(a).

Furthermore, you may be able to treat with any doctor (not just your family doctor) if your employer doesn’t provide you with a “Choice of Physician Form” (also known as a Form 50—click to see here), or if your employer denies your work comp claim.

It’s most likely that no doctor knows your health better than your own family doctor.

What many employers will attempt to do, however, is have you sign a “Choice of Physician Form” and tell you that in order for work comp to pay, you have to write on the form that you choose to treat with one of their doctors (i.e. a doctor that has your employer’s best interest in mind and probably not yours) rather than your family doctor.

Other times, your employer may give you a Continue reading

Tragic outcomes of mismanaged pain medication

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I found the comments by David DePaolo on an injured worker’s recent fentanyl overdose very interesting and thought provoking. A Pennsylvania court found the overdose compensable.

I recently recovered for the widow of a man who died from the side effects of long term pain medication usage. This type of tragic death should be covered by workers’ compensation and I applaud the Pennsylvania court for the reported decision. All the participants in the workers’ compensation system need to reflect on the role of long term drug use. This article focuses your attention.

Read DePaolo’s comments here: Pennsylvania Case of Back Pain and Another Tragic Outcome