Tag Archives: Workers Compensation

Wage Theft Another Assault on Workers’ Compensation

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Today’s post was shared by Gelman on Workplace Injuries and comes from www.nytimes.com

This blog has recently included an extensive focus on fraud in workers’ compensation.

Wage theft is another form of fraud, and an expensive one, at that. This editorial from The New York Times talks about wage theft against all workers, regardless of the work they do and the amounts they get paid.

“In 2012, the Department of Labor helped 308,000 workers recover $280 million in back pay for wage-theft violations — nearly double the amount stolen that year in robberies on the street, at banks, gas stations and convenience stores,” according to the article.

It doesn’t take very long, and wage theft from one, two or three employees becomes real money that affect workers, their loved ones, and society in the form of money not in those workers’ pockets.

I find it helpful that the newspaper calls out the New York attorney general for advocating for workers through recovering almost “$1 million in stolen wages for 1,450 fast-food employees,” according to the article. In case you wondered why local and statewide elections are important, here’s one reason from the article.

“The Labor Department has only about 1,100 wage-and-hour investigators to monitor seven million employers and several states have ended or curtailed wage enforcement efforts.”

So who’s going to advocate for workers and go after employers who are fleecing both their workers and society?

That’s one of the many reasons that laws are in place and the judicial system is set up to interpret those laws. But one of the first steps in holding fraudsters accountable is having someone willing and in a position to enforce those laws and stand up to business, regardless of how much those businesses pay their workers.

As corporate America devises new methods to reduce wages it also assaults the injured workers’ benefit safety net, including workers’ compensation insurance. That results in rate benefits going down and premium bases becoming inadequate to pay ongoing claims. Today’s post is shared from nytimes.com and is authored by its Editorial Board.

When labor advocates and law enforcement officials talk about wage theft, they are usually referring to situations in which low-wage service-sector employees are forced to work off the clock, paid subminimum wages, cheated out of overtime pay or denied their tips. It is a huge and underpoliced problem. It is also, it turns out, not confined to low-wage workers.

In the days ahead, a settlement is expected in the antitrust lawsuit pitting 64,613 software engineers against Google, Apple, Intel and Adobe. The engineers say they lost up to $3 billion in wages from 2005-9, when the companies colluded in a scheme not to solicit one another’s employees. The collusion, according to the engineers, kept their pay lower than it would have been had the companies actually competed for talent.

The suit, brought after the Justice Department investigated the anti-recruiting scheme in 2010, has many riveting aspects, including emails and other documents that tarnish the reputation of Silicon Valley as competitive and of technology executives as a new breed of “don’t-be-evil” bosses, to cite Google’s informal motto.

The…

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The Right to a Safe Workplace

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Workplace SafetyUnder federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).

Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.

If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:

  1.  Know the hazards in your workplace.
  2. While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
  3. Injuries occur when workers get tired. Take breaks when you’re tired.
  4. Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
  5. Be aware of where emergency shutoff switches are located.
  6. Report unsafe work areas.
  7. Wear proper safety equipment.

If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.

Oklahoma Work Comp Opt-Out System Under Legal Attack

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Today’s article was shared by Jon L Gelman, who practices law in New Jersey, and the blog post comes from workers-compensation.blogspot.com. This article is a good example of how states can dramatically vary in how they treat injured workers and even businesses when it comes to workers’ compensation systems. The trend seems to be towards businesses (or their insurance companies) gaining cost savings through decreasing protections of workers, or at least adding hoops for workers to jump through and also doing blanket denials of needed care for a hurt worker. like in this article “Opting Out” of Worker’s Compensation Hurts Workers and Employers (Part 2).

However, in Oklahoma, where workers’ compensation is no longer mandatory for businesses, there is some pushback coming from a couple of state senators and a firefighters’ group. It will be interesting to see what happens next in that state. And the example of Oklahoma is a good reason why, if workers suspect they have a case that might include more than one state, it’s important to speak with an attorney to figure out those details so the workers’ compensation case can move forward in the jurisdiction that makes the most sense for the situation.

The recently enacted, and high innovated cost-savings opt-out program in Oklahoma workers’ compensation has come under direct legal attack as being unconstitutional.
On Tuesday, Sen. Harry Coates (R-Seminole) joined Rep. Emily Virgin (D-Norman) and the Professional Firefighters of Oklahoma in filing a challenge against the constitutionality of Senate Bill 1062, the workers’ compensation reform bill passed by the legislature and signed by Gov. Fallin during the 2013 legislative session.

“As a longtime businessman, I recognize that it’s necessary to have workers’ compensation rates as low as possible. In fact, I believe we need a workers’ compensation administrative system, just not the unconstitutional and unworkable system created by Senate Bill 1062.

It’s wrong that a fire fighter or any other injured worker should have to pay back benefits after returning to work. This is just one of many problems with this new law.

Instead, I’d support a bill that would give Oklahoma an administrative system like that in Missouri, which is working very well only a few years after being approved by that legislature. Back in 2005 when Missouri went to an administrative system, The Oklahoman advised the Oklahoma legislature to adopt the Missouri workers’ compensation system. That was good advice!

In 2012, the often-quoted Oregon Study showed that while Oklahoma had the sixth highest workers’ compensation rates in the…

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What Does That Stand For? Commonly Used Acronyms in Workers’ Compensation Cases

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Every profession has certain turns of phrase or acronyms they use on a daily basis that, to the layperson, mean very little and may only serve to add confusion to an already difficult issue. The legal profession and the representation of injured workers is no different. Injured workers often find themselves traveling down a confusing road armed only with directions written in an unfamiliar or foreign-sounding language. The experienced attorneys at our firm navigate clients down this road on a daily basis.

Below is a list of commonly used acronyms to assist in understanding what is happening with your workers’ compensation case when everyone around you is suddenly speaking another language. Please keep in mind that the accompanying definitions are very general, and you should seek the advice of an experienced workers’ compensation attorney for more information or assistance with your case. Please also see the links for other blog posts for more information on some of these issues.

Beware Workers’ Compensation Red Flags

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Here are a couple workers’ compensation red flags I see from time to time.

Employers, insurers and sometimes even medical providers work together to undermine the ability of injured workers to pursue workers’ compensation benefits. Here are examples of phrases that should raise the alarm for an injured worker:

“If you go on workers’ comp, you only get two-thirds of your pay.”

I’ve heard this line from representatives of two major employers in Nebraska. I’ve seen the effect of this line to be

  1. to discourage an employee from getting surgery where they will be have to spend time off of work
  2. to encourage people to continue jobs that they have physical difficulties doing
  3. encourage an unwary worker to get a release without restrictions from an injury where the worker is not fully healed.

The reason why this statement isn’t honest is that workers compensation benefits are not taxed, so the benefits you would receive from workers compensation should be close to what you actually take home, assuming you do not work a lot of overtime. If an employer can use this line to persuade you not to seek medical treatment and/or to get a full release back to work before you are ready, then you are giving up workers’ compensation benefits and also likely hurting any fair employment claim you have against your employer.

“So-and-so had this surgery and they went back to work the next day.”

This type of statement is sometimes made by surgeons and/or their support staff. In my experience such a statement is a red flag because

  1. just the trauma of most surgeries in and of itself should require at least a few days before recovery, keeping in mind that the kind of surgery experienced contributes to this variation
  2. the person who went back to work right away may do a much different job than you do
  3. in my experience a doctor who states they can get someone back to work the next day will say so because it eases approval from the workers’ compensation insurer
  4. doctors who think so highly of their surgical ability oftentimes will not give permanent restrictions and impairment ratings if the worker still has a loss of function from a work injury.

Fortunately workers in Nebraska can choose their own surgeon regardless of whether they gave up their right to choose their own doctor at the beginning of a claim. Most surgeons in Nebraska understand the need cooperate in their patient’s workers compensation claims and are willing to support honest patients with legitimate injuries. However there are a few, for lack of a better word, jerks, who should be avoided by injured workers.

Private Investigators in Workers’ Compensation

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Corporations sometimes hire private investigators to verify that your claim is not fraud

Corporations sometimes hire private investigators to verify that your claim is not fraud

Today’s post comes from respected colleague Leonard Jernigan from The Jernigan Law Firm in North Carolina. Unfortunately, being followed by a private investigator is also very common in Nebraska and Iowa. Attorneys at our firm give clients specific instructions about dealing with private investigators, as should most attorneys that work with personal injury and workers’ compensation cases. I recently saw this blog post from www.workerscompensation.com that gives employers that hire private investigators tips on being more effective at catching someone “violating their medical restrictions by shoveling out their driveways or partaking in a winter recreational sport.” And although there probably isn’t much skiing going on in our part of the Great Plains, it bears in mind that a private investigator may see someone being active but won’t know the ramifications of that activity upon that person for the next few days, like cutting back on doctor-approved activity because of soreness. So be sure to follow the restrictions laid out by your doctor to make the private investigator’s job that much harder!

As a workers’ compensation attorney I find it interesting that many people in the public question the disability status of injured workers. Let’s assume for the moment that you have sustained an injury on the job and you’ve been out of work for 5 months after back surgery. When you are unable to return to work quickly, the insurance industry has a lot of tools at its disposal to verify your disability status. They can pour over your medical records, pre- and post-injury, looking for any piece of evidence to deny your claim. They can send your file to lawyers who review medical records and recorded statements to potentially attack your credibility and honesty. They can hire a nurse to attend your appointments and speak with the physician and the staff, as well as obtain information directly from you. They can do background searches on you to see if you have a criminal or civil record. Obviously they will check to see if you ever filed a workers’ compensation claim before. They will also do social media and Internet searches on you and your family members (Facebook, Twitter, LinkedIn, etc.). They also can hire private investigators to follow you and your family around and take video recordings of your activities. With all these resources at the disposal of the insurance company, it’s hard to believe that many cases of employee fraud slip through the system.

A private investigator pretended to be a potential buyer and spent an hour or more going through the house.

We have one client recently who was followed by several private detectives for more than a year. They not only followed him around, but also followed his wife and son, who have no workers’ compensation claim. Another client had to sell his house because of his disability. A private investigator pretended to be a potential buyer and spent an hour or more going through the house. Does the concept of “Big Brother” come to mind? Are you concerned about invasion of privacy, particularly for family members, friends, and others who may be seen in such videos? We always tell our clients such activity may occur so don’t be alarmed by it, but that isn’t too comforting to people who are struggling through health issues, who have depression and anxiety problems, and who are sensitive to privacy concerns.

It would be interesting if the roles were reversed and employers who underpay premiums by misclassifying the status of their employees, who fail to purchase insurance required to protect their workers, and who don’t follow proper safety regulations that cause injury, were followed this closely by employees or regulators who administer the workers’ compensation program. I have no doubt that these employers and insurance representatives would be outraged.

 

 

Temporary Employees Cannot Be Excluded From Workers’ Compensation

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Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm in Iowa. Most temporary employees are treated the same as any other employee in Nebraska, Iowa, and many other states. There are a few exceptions in Nebraska that include some but not all agricultural workers, for example. If you have questions about a workers’ compensation situation, feel free to contact a workers’ comp attorney to be advised about the details of your case.

According to a recent decision by the Texas Supreme Court, a temporary employee cannot be excluded from an employers’ workers’ compensation policy.

In 2005, Rafael Casados was killed on his third day at work at a grain storage facility owned by Port Elevator-Brownsville L.L.C. Because Casados was a temporary employee of Port Elevator at the time of his death, he was initially awarded a liability ruling of $2.7 million directly from Port Elevator. However, according to the latest Supreme Court ruling, Casados’s family should receive remedy under Port Elevator’s workers’ compensation policy instead. Port Elevator’s insurance provider is liable for Casados’s death benefits, despite the fact that Port Elevator never paid workers’ compensation insurance for any of their temporary employees.

According to the decision: “If Port Elevator’s policy had set out certain premiums solely for temporary workers and Port Elevator had not paid those premiums, Casados would still have been covered under the policy and the failure to pay premiums would be an issue between Port Elevator (their insurance provider).”

 

 

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The 12 Things You Must Do If You are Hurt at Work

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Today’s post is by our colleague Paul J. McAndrew of Iowa. While almost all of his advice applies to both Iowa and Nebraska, in Nebraska, unlike Iowa, you can choose your doctor. In Iowa you must see a “Company Doctor.” Regardless of what state you are from, you should not hesitate to consult with a lawyer if you were hurt at work and have questions or concerns.

 

Not seeing a doctor chosen by your employer could negatively affect the validity of your work injury compensation claim.

Injured workers call me all the time asking me what they need to do to make sure they protect their legal rights.  If you are hurt on the job, whether it is due to an acute traumatic injury (like cutting yourself on a saw), cumulative-trauma injury (like carpal-tunnel syndrome) or some other job-related injury, there are several basic things you should do. If you do not do any of the things on the list below, you may lose your rights under Iowa’s workers’ compensation law.

Although there may be rare exceptions to this list,  following it will leave you reasonably secure that your rights are protected:

  1. Report the injury. By “injury,” I mean almost any condition including but not limited to (a) an acute traumatic injury, (b) a cumulative-trauma injury, or (c) a disease or a hearing loss. You should report the injury to your supervisor or company nurse (for clarity we’ll just call these people your Supervisor from here on out), making clear your injury was caused by work. Under Iowa law, you need to make the report within 90 days of the date of your injury.
  2. Make sure your Supervisor prepares a company accident report.  If your Supervisor won’t prepare the report, then you should write a letter stating the facts of your injury and give a copy of the letter to the Supervisor. Keep a record of when you gave the letter to your Supervior. If you can get him/her to sign a receipt for having received it, that’s even better.
  3. Get a copy of the accident report and keep it in a safe place. If you prepare a letter, keep a copy of it.
  4. If you are part of a collective bargaining unit you should (a) join the union if you are not already a member and (b) tell your steward that you were injured and that you reported your injury to your Supervisor.
  5. Keep notes of all significant contacts you have with anyone (including but not limited to supervisors, insurance company representatives and doctors) concerning your work injury.
  6. Under Iowa law you must and should get medical care through the doctor selected by your employer (we’ll call this person the Company Doctor). Don’t get frustrated if you are denied care. Keep demanding proper care through the Company Doctor. If you go to your own doctor, you can make it look like you believe your injury was not caused by work. Also, under Iowa law your employer may not be required to pay for care you get from a doctor you choose.
  7. Tell the Company Doctor clearly and in great detail how your work caused your injury. If you do not think that the Company Doctor is caring for you properly or has not taken careful notes on how your work caused your injury, then give the doctor a written statement of how your work caused you injury and keep a copy of that statement.
  8. Follow all medical directions. If you don’t, your employer may argue that you chose not to get proper care and purposely stayed sick so you did not have to go back to work.
  9. If the doctor recommends you not do certain things at work, get the doctor to write that down and get at least 2 copies, one for the Supervisor and one for you to carry at work.
  10. Make sure that the doctor sends all bills to your employer for payment.
  11. If your employer and/or insurance company denies your medical care or the Company Doctor does not provide effective care, you have a right to seek effective medical care.  You do this by first demanding the employer and/or insurance company provide effective care to you.  If you are denied, you then need to file an “Alternate Care Petition” seeking an order from the Iowa Workers’ Compensation Commissioner that you be provided the effective care.  You can get a copy of the Petition at: http://www.iowaworkforce.org/wc/forms/14-0011altcarefillable.pdf. You should consult a lawyer if you are denied proper and effective medical care for a work injury.
  12. If you miss work because of a work injury, your employer may have a right to a 3-day “waiting period” before starting to pay you money benefits.  If your employer does not start to pay you after 3 days have passed, you should demand payment. If you are denied payment of money benefits for time missed from work because of a work injury you should consult a lawyer. You have a right to be paid money benefits in a timely manner – which means on the same day each week.  If that does not happen, you may have a right to a “penalty” benefit payment equaling up to 150% of the money benefits owed and not timely paid.

 

 

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