Monthly Archives: April 2013

What About Workers’ Compensation In North Dakota?

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Workers have flooded North Dakota to work in the booming oil industry.

Today’s post comes from guest author Jay Causey from Causey Law Firm in Seattle. I think this article is an excellent example of the costs of workers’ compensation being shifted to other avenues, most notably to hospitals and taxpayers, when, for whatever reason, the comp system in a specific state doesn’t help workers. This includes not paying workers’ bills, which can dramatically affect portions of the local economy in a negative way. So remember, when you hear about the “oil boom” in North Dakota, oil companies’ profits may be coming at the expense of both workers and healthcare systems in the state, which is a shame. Then think about the role that the workers’ compensation system plays in your state for workers when it comes to things like infrastructure needs, such as hospitals and healthcare facilities, getting paid in a timely manner.

A recent article in the New York Times (An Oil Boom Takes a Toll on Health Care, January 28, 2013) recounted the growing burden on North Dakota hospitals because of on-the-job injuries to workers who have flooded that state to work in the booming oil industry. Apparently North Dakota hospitals are swimming in debt from unpaid bills because, as the article by John Eligon states, “many of the new patients are transient men without health insurance or a permanent address in the area.”

“Swamped by uninsured laborers flocking to dangerous jobs in the oil industry, the hospitals here in the North Dakota oil patch are sinking under skyrocketing debt, a flood of gruesome injuries and bloated business costs from the inflated economy.” – John Eligon, New York Times

Mr. Eligon goes on to discuss actions by the governor and state legislature to increase medical training and medical facilities in North Dakota, and to obtain increased Medicaid financing for the state’s rural hospitals. Not only are medical facilities groaning from the increase of gruesome injuries associated with highly dangerous work environments, Mr. Eligon recounts the health issues that arise from the cramped housing scenarios in the work camps that have sprung up near the oil fields. This includes a significant increase in the incidence of sexually transmitted diseases.

The North Dakota Workforce Safety & Insurance site includes its catchy motto – “Putting Safety to Work.”

However, nowhere in Mr. Eligon’s article is there any mention of, or reference to, North Dakota’s workers compensation system which would seemingly provide the principal coverage for the injuries and conditions that are the subject of his article. Is the NYT oblivious to the fact of coverage for industrial injuries and conditions under each state’s workers compensation law? Or are workers injured in the new booming oil economy of North Dakota somehow being denied coverage under that state’s system, or being engineered out of coverage by the terms of their employment with the oil companies? It seems that a minimal inquiry, at least, on these points was owed by the NYT in its article.

Photo credit: nestor galina / Foter.com / CC BY

Workers’ Memorial Day Provides Time to Reflect, Act

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It seems like we spend a lot of time encouraging readers to reflect by thinking about their lives and the lives of others who are less fortunate. We also encourage folks to advocate for workers’ rights and safety. And yes, this encouragement does sometimes come at the expense of business profits.

One way to reflect, act and help workers is by observing Workers’ Memorial Day on Sunday, Apr. 28.

“Each and every day in this country, on average 13 workers die on the job as a result of workplace injuries – women and men who go to work, never to return home to their families and loved ones,” according to the AFL-CIO.

It seems especially bittersweet to us that the number of workers killed for one day of the year on average is so close to the number of workers killed at the West, Texas, fertilizer plant explosion. Although it seems the media is much more focused on other news, there is a strong grassroots effort to continue the coverage of the fertilizer plant explosion in Texas, especially to figure out what caused it.

By reflecting on the risks that all workers take and acting to promote safety, Workers’ Memorial Day will be even more successful. And most importantly, all of our loved ones will have safer workplaces.

There are many resources to access to find out more about Workers’ Memorial Day events near you. Here are some links, along with the specific information for Nebraska and Iowa:

  • Iowa
    Workers’ Memorial Day Ceremony
    Friday, Apr. 26, 11 a.m.
    Iowa Workforce Development, Des Moines
    via http://www.iowaworkforce.org/labor/
  • Nebraska
    4th Annual Workers’ Memorial Day
    Sunday, Apr. 28, 7 p.m.
    Nebraska State Capitol North Steps, Lincoln

According to the Lancaster County Democratic Party, via email, “representatives from State, Federal, United Support Memorial for Workplace Fatalities (USMWF), Unions, Co-workers, Employers and the community come together and honor the men and women that have been injured or killed in a preventable work related incident.”

Please see the website below for more details: http://www.workermemorialday.org/WMD2013.htm

Texas Plant Explosion Is Too Close

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The fertilizer plant explosion in West, Texas, is a tragedy. That tragedy hits uncomfortably close to home in rural states like Nebraska and Iowa where many fertilizer plants are located.

I agree with pundits who argue that the West, Texas, explosion, is a failure related to deregulation and cuts in spending on workplace safety. However, both Bloomberg and The Wall Street Journal report that West Fertilizer Co had been fined $5,200 in 2012 by the Pipeline and Hazardous Materials and Safety Administration and also by the Environmental Protection Agency. Bloomberg reported that the Obama administration increased inspections of fertilizer plants under the auspices of Homeland Security. But the fine and inspection by the Pipeline and Hazardous Materials and Safety Administration and EPA fail to undermine the argument that the explosion is related to lax enforcement of workplace safety rules for two reasons. First of all, inspectors under the auspices of Homeland Security and the EPA don’t specifically address workplace-safety concerns. Secondly, a fine for $5,200 fails to act as much of deterrent for bad conduct.

As of the writing of this piece (Friday, Apr. 19) the national media hasn’t discussed the role that the workers’ compensation and civil justice system could play in recovery from this disaster. Though it was reported that no workers were in the plant, CNN reported that many first responders were killed responding to the explosion. Unfortunately, Texas is unique in having an opt-out workers’ compensation system. In other words, the families of the first responders killed responding to the fire may not be able to collect workers’ compensation benefits. If a Texas employer opts out of workers’ compensation, the employee can sue the employer for negligence. However the whole reason workers’ compensation was instituted was because many work injuries are not caused by employer or employee negligence. Maybe there was negligence on the part of the employers of the first responders, but if not – and there was no negligence by their employers – then the first responders will not be able to collect workers’ compensation benefits. Any employees of West Fertilizer Co who were killed or injured on the job would be in a similar predicament to the first responders. If the plant had been in Nebraska or Iowa, the workers in the plant would have been able to get workers’ compensation but likely would not be able to sue the plant.

However, if there was negligence by West Fertilizer Co and they opted out of workers’ compensation, then the killed and injured workers could sue West for negligence. Under Texas law, the fertilizer company would lose defenses such as contributory negligence and assumption of risk. Texas also has exemplary or punitive damages available for the injured and killed workers as well as other harmed by the accident.

Iowa has punitive damages, but Nebraska does not have them. In other words, a Nebraska community would have more trouble winning fair compensation for a fertilizer explosion than a community in Texas or Iowa, because Nebraska lacks punitive damages.

Does the Media Comprehend the Tragedy of Mass Worker Death?

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Shadows on the Triangle Shirtwaist Factory Fire Memorial

Today’s post comes from guest author Jay Causey from Causey Law Firm in Seattle. He points out that the media should do more to talk about the actual cost of goods for consumers by investigating and reporting on the huge safety lapses that occur in many outsourced factories, including the recent tragic fires in Bangladesh. Because the people who are risking their lives by working in substandard conditions are human, too. By focusing on how worker deaths affect businesses and the consumer’s bottom line, media outlets are missing the chance for consumers to understand the real price that other humans pay for United States goods, sometimes with their lives. And that is indeed, not humane, because I expect and hope for more from the media.

On March 25, 1911 a fire broke out at the Triangle Shirtwaist factory in New York City.  In 18 minutes 146 garment workers, mostly young women, were dead.  The hideous circumstances of the tragedy – widely depicted by the media with front-page pictures of the corpses of women who had jumped from the building windows to avoid being burned to death – incited a wave of public revulsion that contributed to New York’s enactment of one of the nation’s first workers’ compensation statutes.  This occurred in the so-called “Progressive” era of American political history – now largely a distant memory – when within the next decade the majority of states followed suit.

One hundred years later, similar tragedies in the world-wide garment industry, which feeds U.S. corporations like WalMart, H&M, and Gap, occur with scant media attention other than the possible effect of such disasters on corporate business operations.  In November of 2012, 112 garment workers died in a fire at a Bangladeshi factory producing WalMart clothing. (A manager had reportedly closed an exit gate after the fire alarm sounded, telling workers nothing was wrong and to just keep working.)  In another Bangladeshi factory on January 26, 2013, a fire killed seven garment workers who could not escape due to a blocked exit.

Rather than expressing outrage over these circumstances, U.S. media, including the New York Times, characterized these incidents not as human tragedies, inexcusably occurring in the 21st century industrial world, but as “blows to the Bangladeshi garment industry.”  The fact is that with the globalization of that industry, these Bangladeshi workers are essentially “our” workers, making the clothes Americans wear, sold to us by U.S. corporate behemoths competing to do this at the lowest price possible they think will be acceptable to the American consumer.  The media is complicit in disconnecting these tragedies from our consciousness as intolerable – just as was the sense of our citizenry after Triangle – by focusing it’s reporting on the economic impact to the garment business and blandly parroting the boilerplate disclaimers of responsibility given them by the industry.

The garment corporations could easily afford to ensure their foreign contractors increase workers’ wages and institute workers’ safety measures with a minimal impact on the final price and their bottom line.

These incidents are almost never reported in a way that puts the question to the American consumer as to whether we’d pay a bit more per unit of clothing to ensure the safety of these workers rather than participate in the race to the lowest possible price.  Labor cost as a component of garment retail price is miniscule – one to two percent.  The garment corporations could easily afford to ensure their foreign contractors increase workers’ wages and institute workers’ safety measures with a minimal impact on the final price and their bottom line.

As it turns out, however, when plans were being developed in 2011 to improve fire safety at Bangladeshi factories, those efforts were quashed by WalMart and Gap, who determined that preventing worker deaths from fire would cost too much: “It is not financially feasible for the brands to make such investment.”

Don’t expect to hear much more about all this from the corporate media.

Source:  www.fair.org

Photo credit: Photo credit: Madison Guy / Foter.com / CC BY-NC-SA

Texas Stories: Symptom of Bigger Workers’ Comp Debates

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We have been listening with interest to a recent National Public Radio (NPR) series about construction workers and businesses in Texas. The series about this industry confronts many of the issues that are being debated by society these days, whether in the judicial, executive or legislative branches.

To add some context, these topics include employing immigrant workers; paying a living wage; calling an employee an independent contractor; and ensuring workplace safety, workers’ compensation, and payroll taxes are all done, practices that specifically are not happening in Texas, according to the stories. A notable quote from the first piece is “Texas is the only state in the nation without mandatory workers’ compensation, meaning hospitals and taxpayers usually end up shouldering the cost when uncovered construction workers are hurt.” And we think the information from the second piece is quite telling that the business owner “asked that NPR not use his last name because the IRS might take an interest in his business, designs and builds landscapes in the Dallas-Fort Worth area.” Because he treats his crew as “self-employed contractors,” meaning that the IRS would likely see his interpretations of tax law as illegal. From the story: “This is a key distinction. If Trent were to classify his workers as employees, he’d have to pay taxes, Social Security, unemployment and overtime. But by saying his workers are actually independent contractors – in essence, business owners – he’s off the hook.”

We think listening to these two pieces, at less than 15 minutes total, is a good opportunity to experience an applied illustration of what happens to the vulnerable when such protections as workers’ compensation are effectively dismantled for profit-taking and political reasons. Respected colleague Jon Gelman in New Jersey recently wrote a blog post that focuses on the first NPR report and “how bad it is for workers who get injured in Texas.”

Although things are allegedly always more extreme in Texas, attacks on the vulnerable aren’t limited to that state, unfortunately. Ms. Cathy Stanton, president of the Workers’ Injury Law and Advocacy Group (WILG), and a respected colleague from Pasternack Tilker Ziegler Walsh Stanton & Romano in New York, recently wrote an extremely useful article about “Emerging Trends in Legislative Attacks on Injured & Ill Workers.”

In Nebraska, the anti-worker, pro-business Nebraskans for Workers’ Compensation Equity and Fairness group is backing LB 584 that would dramatically limit protections that workers have when it comes to being injured through a concept called evidence-based medicine/utilization review. In addition to our firm writing numerous blog posts about this legislation, EBM/UR is #8 in Ms. Stanton’s list of “trends throughout the country which would negatively impact existing Workers’ Compensation benefits.” And according to this article, politicians in Tennessee are looking to gain some brownie points with business and insurance by overhauling the workers’ compensation courts to the detriment of injured workers. Iowa workers and attorneys have to contend with #6 on the list, restricting doctor choice, while a bill in Nebraska’s legislature is in the works to do the same if passed.

We agree with what Ms. Stanton writes: “All workers need to be aware of these trends because the likelihood of legislation being introduced in their state against their interests is strong. Employee immunity has remained untouched, but workers’ benefits are consistently under attack as a result of the collective lobbying efforts of the insurance industry and large corporations.   Unfortunately the great compromise is turning out to be one sided as workers are forced to endure multiple obstacles and hurdles to be entitled to fewer and more restricted benefits.”

So we would encourage you to join us in educating yourselves about how workers’ compensation “reform” can lead to stories like NPR’s cautionary tales about the construction industry in Texas and to explore what’s going on in your state legislature. Finally, get involved in your state’s political process to advocate for workers!

Consider These Car Accident Tips to Avoid Missteps

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No one ever intentionally plans to get in a car accident or get hurt at work. But unfortunately bad things sometimes happen in life. And a person’s response to those situations can sometimes affect what happens from a legal perspective. Also remember that if you travel as part of your job, or if traveling is your job, like in the case of truck drivers, vehicle accidents are often covered under workers’ compensation. Here are some recommended tips to avoid potential legal pitfalls later.

What to do when you’ve been in a car accident:

  1. Call the police (or 911 if necessary).
  2. Exchange information with the other driver (name, contact info, driver’s license number, license plate, auto insurance).
  3. Obtain witnesses: Get names and contact info for any witnesses even if the police have already spoken to that person. If possible, obtain written statements from willing witnesses.
  4. Gather evidence: Take pictures or videos of the accident scene, the damage to all vehicles, and any noticeable injuries.
  5. Write notes of the date, time, location, weather, how the accident happened, and any other details that you can remember (speed, traffic signals, turn signals, headlights, brake lights, cell phone usage, etc.).
  6. Go to your doctor: make sure to tell your doctor how you were injured, and be sure to discuss all injuries, even ones that seem insignificant at that time.
  7. Contact your insurance company, and report the accident. Your auto insurance will likely pay for at least some of your medical bills.
  8. Do not give a recorded statement without contacting a lawyer.

You should talk to a lawyer when you’ve been in a car accident IF:

  1. You don’t know what kind of compensation/money you are entitled to
  2. The insurance company is asking you for a recorded statement
  3. The insurance company denies your claim
  4. There is a question of which driver is at fault
  5. The police report is incomplete or inaccurate
  6. The other driver does not have insurance or does not have enough insurance coverage
  7. You have unpaid medical bills
  8. You have permanent disability or constant pain
  9. There are complicated legal or medical issues
  10. You have missed more than a few days of work

Do your best to drive defensively, and safe travels.

Bullying Not Limited to Workplace or Playground

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I recently received an inquiry from a student about working through the challenges caused and exacerbated by her bullying professor, because unfortunately, bullying has never been limited to work or a school filled with children. This is my response.

Sorry to hear about your professor making your life miserable. I have two pieces of advice for dealing with him. Here is how you can proceed to protect your rights:

  1. Under Title IX, you likely have the right to take medical leave from school to deal with your psychiatric condition. This should allow you to stay in the program and preserve your ability to get your degree. This will at least give you time to treat your mental health condition so you can deal with your bullying professor. Here’s a blog post that touches on that portion of your concern.
  2. Once you get your mental health together, I would attempt to band together with other students who have been bullied by the professor and bring it up with the administration. I find there is more power for people when they band together rather when the face their employer, or in your case school administration, as individuals. This blog post shows some information about what to do when you’re dealing with a bully.

I sent you these blog posts so you can understand the underlying legal principles here. As a student you are protected against discrimination by Title IX. This includes protection from harassment that is motivated by sex, race, religion, etc. However this professor seems to be an equal-opportunity jerk, which means his conduct is not against the law. However, you likely have some protections based on disability as well under Title IX. Your mental-health condition is a disability, so at the very least the school will probably have to grant you some leave to take care of your mental-health condition.

The weakness with asking for accommodations from a bullying boss based on a mental-health condition is that administrators and courts tend to view people with mental-health conditions as overly sensitive and unreasonable.

If you can get a few people to join with you in standing up to a bully, you are in a stronger position. It sounds like you would have some people who would be willing to join with you. You are in a stronger position than you think. Your major is an industry that is competitive where the pay is fairly low. There is no shortage of people who are qualified to be teachers within you major. I’m sure they could hire someone with a basic sense of decency.

Student Athletes Should be Covered by Workers’ Compensation Policies

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Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law in New Jersey. In light of Louisville basketball player Kevin Ware’s recent injury during the NCAA tournament, many commentators are calling for workers’ compensation protection for athletes. I wrote about this issue on our blog in late 2011 in this post: Nebraska – A Rare Example Of How To Treat Student Athletes Better. As I wrote, Nebraska law, since 1984, has provided some protection for college athletes, which is similar to the protection offered by workers’ compensation, but not in the workers’ comp system, of course. I am pleased that the Nebraska Legislature and University of Nebraska continue to be progressive when it comes to working with college athletes. Perhaps the Nebraska approach could be a model for other states, as Mr. Ware’s tragic injury will most likely cause him complications later in life. I wish him, and all injured college athletes, the best as they heal and then adjust to their new realities.

Student Athletes Should be Covered by Workers’ Compensation Policies

They call them “student players” and the schools, televisions companies and advertisers make the money. The “students” get injurede and no benefits are available for medical (except when over $90,000 on medical has been expended then an NCAA policy kicks in), no temporary disability or permanent disability are afforded. The student suffer lifetime and carrer altering injuries as they play their hearts out for the schools and they do so without adequate compensation.

There is major inequality going on in College sports which indeed is a BIG business.

The coaches hammer at the student players and entice them to play too many games in a growing TV broadcast season where one conference add up upon another expanding to greater proportions and placing serious physical demands upon the player resulting in accidents and injuries.

Additionally bullying by coaches as revealed by Rutgers Basketball Coach Rice physically assaults the students and berates them with indecent name calling.

Where is the accountability? The students are actually employed by the schools to earn profits for the educational institutions and corporate sponsors. The student players are being exploited. Student athletes should be covered by workers’ compensation policies.