Category Archives: Workers’ Compensation

Workers’ Compensation: The Man-made Quagmire (Part 1 of 3)

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Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm. in Iowa City. I like that he brings up employer incentives for not filing workers’ compensation claims. That was a favorite tactic of the ghoulish Dan Blankenship, whose callousness towards safety lead to deaths of 29 coal miners in West Virginia in 2010.

I’m starting here a three-part series explaining why workers should claim their rights under workers’ compensation laws.  The three parts are, in summary: 

  1. How the employer makes it tough to claim work comp;
  2. How the insurer makes it tough to claim work comp; and
  3. Summary:  Why it’s Important to You and your Family that you Claim Work Comp when You are Hurt on the Job. 

Below is the first installment.

 


Workers’ compensation [“work comp”] is every workers’ right. Yet, researchers years ago determined that many employers and most work comp insurers try their best to persuade workers to not make claims. That “persuasion” takes many forms. It’s important that workers know that this “persuasion” is calculated and how to deal with it. Why? Because workers’ compensation benefits are your right and those benefits are important to you, your family and the overall safety of your workplace.

Part 1: Dealing with the Employer’s Persuasion Tactics 

  1. Suppressing Reporting of Work Injuries: Pizza-Bingo Party!! — Nancy Lessin (the MA AFL-CIO Health & Safety Coordinator) taught me years ago that giving workers some type of prize for so many hours without a reported injury is NOT based on generosity. No, it’s based on cost cutting. It’s also completely contrary to public policy!

    Work comp is required by law. One of work comp’s basic purposes is to make workplaces safer. How? By making employers pay higher work comp premiums in circumstances in which there are high rates of injuries, thus giving the employer financial incentives to implement safety measures to keep injury rates low, leading to lower premium costs. Some sly employer offer such things as pizza parties, small bonuses, gift-drawings and the like knowing full well that doing so puts pressure on the workers to not report work injuries.

    Why? Because the more a worker cares about her/his brothers and sisters, the more likely the worker will — when hurt at work — do the wrong thing.  What’s the wrong thing? It’s preserving your friends’ pizza party or “prize” by putting the accident as “personal,” and putting the costs on health insurance, LTD and lost sick/vacation time. The problem with this is often not discovered until too late. What do I mean “too late?” I mean when the health insurance company investigates and finds the injury was caused by work and thus denies coverage under the standard health insurance exclusion for work injuries. And when the time missed due to the work injury outstrips the amount of sick and vacation you’ve banked for the last 13 years. Even that does not account for what happens years later.

    First, you work injury may be “the gift that keeps on giving.” It may require 2 or even 3 surgeries, leading to even more medical expenses and time off work. Only work comp pays this.  No LTD or health insurance comes close. Bottom line: Don’t be misled by the “gifts” for no reported work injuries. The only entity getting that “gift” is your employer.

  2. Termination—Yes, we all know the employer who makes up an excuse — ANY excuse — and fires the injured worker within days of the injury.  This is illegal under all public policy, Iowa law (Springer v. Weeks) and U.S. law (the Americans with Disabilities Act).
  3. Return to work at a job that is not within even the company doctor’s work restrictions. Remember — not trying a tendered job — any job — sets up the argument that the worker is “insubordinate,” “refusing work” or “no-call/no-show.” One must try any job, whether the job’s tasks are within restrictions or not. One need not, however, continue to do any tasks that cause worsening of the work-injury condition. If asked to do something outside restrictions set by the doctor:
    1. report that the job’s outside your restrictions;
    2. when told to do the job anyway (which will likely happen), perform the job the best you can and hope for the best; and
    3. if the job does what is feared — worsens your injury condition — go to the company workers’ compensation officer and demand a return to the company doctor immediately, before your injury is permanently worsened.

Stay tuned next week for Part 2: Dealing with the Insurance Company’s Persuasion Tactics.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Workers' Compensation and tagged , , .

Don’t Go It Alone

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It’s fitting that today’s guest post about the difficulties of representing yourself in a workers compensation case come from New York City lawyer Richard Cahill Jr., from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Last month I had the privilege of travelling to New York City. I’ve never used the New York City subway or commuter rails before. I had some challenges navigating those systems typical to someone from Nebraska that a New York city resident would either find funny– or annoying if I was holding up a turnstile. Point being, being an injured worker is kind of like using the New York subway for the first time. It’s confusing and hard to find good information. But the consequences for inexperience or a lot different. Because of my inexperience with the New York City subway, I overpaid for an MTA card and wasted 15 minutes because I took the wrong line to my hotel.

An inexperienced self-represented claimant in a workers compensation case themselves thousands of dollars and miss out on needed medical care. The takeaway here is that our firm, along with most other reputable firms representing injured workers, will give you a free consultation about your case and whether you need a lawyer or not.

An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.

The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.

What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.

The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.

When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”

How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.

Do not go it alone.  At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Compensation, Workplace Injury and tagged , , .

Small Businesses Don’t Have Workers’ Compensation Insurance

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Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

In a new study by Insureon, less than 1 in 5 small businesses carry workers’ compensation.  Although all State regulations require that small businesses have workers’ compensation, this study indicates that workers’ compensation is the least purchased insurance by small businesses.  (In Wisconsin, employers must have workers’ compensation if they hire only one employee paying more than $500 in a quarter or hire any three employees at any one time.)  The President of Insureon Jeff Somers said in an interview with workerscompensation.com that “small businesses often fail to carry workers’ compensation because they truly do not understand their insurance need; there is a major lack of awareness and education which insurers and brokers can alleviate.  One reason for this protection gap is a misplaced anxiety around how much workers’ compensation coverage actually costs, but when you compare the small price. . . the protection workers’ compensation provides makes an investment worth it.”

According to the Bureau of Labor Statistics, almost 3 million workplace injuries were reported by private industry employers in 2016, with nearly one-third resulting in time away from work.  The Insureon statistics showed that one in three businesses reported an incident that could have been covered by a workers’ compensation insurance policy and that one-fifth of all small businesses that filed for bankruptcy in 2016 did so because of lawsuits.  Workers’ compensation protects an employer from a lawsuit.  (In Wisconsin a worker injured by an uninsured employer has access to the Uninsured Employers Fund.  After the Fund pays workers’ compensation benefits, the Fund then pursues reimbursement from the employer.)

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Insurance, Workers' Compensation, Workplace Injury and tagged , , .

Employee Workers’ Compensation Fraud? No – Employer Fraud Rampant.

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Attorney Leonard Jernigan compiled a list of the biggest workers’ compensation frauds

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

My friend and colleague Len Jernigan has again compiled the Top 10 Workers’ Compensation Fraud Cases for 2017.

 His results emphasize a theme that has been present for the last dozen years during which he has been compiling a “Top 10” list.  This year the Top 10 non-employee fraud cases resulted in fraud totaling just under $700 million.  Employee fraud cases resulted in zero fraud.  Seven of the Top 10 cases were from California, two from Texas, and one from Tennessee.

The cases involve health care fraud, where doctors prescribed inappropriate medications to pharmacies they operated, overbilling schemes for durable medical equipment, mail fraud, kickback schemes, referral of patients for unnecessary care, and prescribing unnecessary treatment.

A recurring theme, falsifying documents and under-reporting payroll to workers’ compensation insurance companies also appeared in the Top 10.  In one notorious case, the owners of a hotel hid the existence of 800 housekeeping and janitorial workers to avoid paying workers’ compensation insurance rates and payroll taxes.  The list also contains references to dishonest employers misclassifying more and more workers as independent contractors.  This misclassification is a fraud that wrongfully denies these employees workers’ compensation when injured, denies the government millions of dollars in payroll taxes to support Medicare, Social Security, Unemployment Compensation, and the fundamental rights of the workers.  Simply put, this misclassification is another employers shift the cost of accident and injury to the taxpayers and the fraud continues.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Misclassification, Workers' Compensation, Workplace Injury and tagged , , , .

Center for Progressive Reform Launches National Database of Crimes Against Workers

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Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

Every year are a few work-fatalities that garner criminal prosecution and conviction. This is out the thousands of work-fatalities that occur every year. Until now, there’s been no one keeping a record of these fatality-causing events.

Now, the Center for Progressive Reform’s (CPR) Katie Tracy has reviewed court records, investigation files, and news stories to identify them many of them. After assembling information on more than 75 criminal cases from 17 states, she knew it was time to share all of it.

The result is CPR’s user friendly and publicly-available at Crimes Against Workers Database. I encourage you to explore this valuable tool. We believe that the awareness caused by sharing this information nationally can be a catalyst for legislators and others to understand the scope and scale of these crimes.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Compensation, Workplace Injury and tagged , .

Long Lonesome Highway West Of Omaha*: Traveling And Employment Risk In Workers’ Compensation

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Employment risk and travelling legally intertwined for the purposes of workers’ compensation. For a workers’ compensation lawyer in Nebraska, they are also intertwined on a personal level.

Back on Friday January 12th, I drove 40 minutes south to Beatrice, Nebraska for a workers’ compensation trial where the main issue of the case was whether an employee who injured herself going out to roll up her car windows during a rain storm had an injury that related to her employment.

After that trial, I drove about an hour west for a client meeting in Thayer County and returned to Lincoln. I stayed up late the night before and woke up early that morning getting ready for a difficult trial. It was a long drive home.

Four weeks later, on Friday February 9th, I filed my final brief in the Beatrice case from a truck stop in Grand Island after a deposition and client meeting in Grand Island. I probably could have driven back to Lincoln and filed my brief, but I wanted to get my brief filed so I didn’t have to worry about it and potentially severe winter weather on the drive home.

Earlier this week, I negotiated a settlement in another case while traveling from Pierce County in northeast Nebraska back to Lincoln. I finalized the settlement with the opposing attorney while they were travelling.

Fatigue, weather and the temptation of using mobile devices while driving are risks for a workers’ compensation lawyer in Nebraska or anyone who must drive long distances for work in Nebraska or anywhere else. For white collar employees like me, driving is by far the biggest occupational hazard that would be covered under the Nebraska Workers’ Compensation Act.

Nebraska law holds that employees injured while travelling for work are covered by workers’ compensation so long as they are engaged in the employer’s business. This is referred to as the commercial traveler rule. The question becomes what exactly is the employer’s business? This question can arise for all employees, not just travelling employees. In my case involving the employee who hurt herself going outside to roll up her car windows in a rainstorm, the court found that employee’s injury was covered by workers’ compensation because she was taking a break for personal convenience. Injuries that take place during breaks for personal comfort or convenience are generally held to be compensable or covered by workers’ compensation.

In the context of a travelling employee, if I had injured myself last Tuesday afternoon while getting lunch at a Subway in York, that injury probably would have been covered by workers’ compensation.

But not all injuries on a job site or while travelling for work are compensable. If an employee is injured while doing something strictly for a personal reason not connected to work, then that injury is not compensable. For example, an injury while travelling to an extra-marital rendezvous during a business trip would likely not be covered by workers’ compensation.

While injuries incurred during personal comfort breaks such as bathroom or meal breaks tend to be covered, injuries while an employee engages in an act of personal convenience are more controversial. They are what we call in the lawyer trade “fact intensive inquiries.” In layman’s terms, it depends on the circumstances. Is the break paid? What are the break policies? How does the break benefit the employer? How much did the errand or break deviate from employment duties? What are the exact employment duties? Injuries involving breaks for personal convenience present difficult factual and legal questions to which there are no easy one-size-fits-all answers.

*Yes, I am paraphrasing “Turn the Page” by Bob Seger and The Silver Bullet Band. For the record, the original “Turn the Page” is far superior to the Metallica cover.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Protecting Yourself At Work: What To Do If There Is An Active Shooter

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Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As an attorney who has been practicing before the New York State Workers’ Compensation Board representing injured workers for more than 27 years, I am drawn to organizations that assist workers. That’s why I am a member of the New York Committee for Occupational Safety & Health (NYCOSH), whose mission notes that every worker has the human right to a safe and healthy workplace and that workplaces injuries are often preventable. As a member, I receive many emails with various announcements regarding workplace safety, as well as statistics of injuries and deaths that occur on the job, many of which are preventable.

It is a sign of the times that on May 23, 2017, I received an email about educating workers on how to best respond in case of an active shooter. NYCOSH, along with the New York City Central Labor Council (NYCCLC), was sponsoring the event that was meant to educate participants on what actions to take to prevent and prepare for potential incidents, including what to do when an active shooter enters the workplace. Many of the cases that make front page news are mass shootings or those in the name of terrorism. Few of us can forget the Islamic extremist, who along with his wife fatally shot 14 of his co-workers at a Christmas party. Many of us go about our workday never anticipating a disgruntled employee, a client harboring a grudge, a terrorist, or a coworker intent on robbery, who may come to our workplaces with murder on their minds. When NYCOSH set out to sponsor their recent event trying to deal with a growing problem in this country, there was no way of knowing that workplace shootings would be in the national headlines three times in just two weeks. 

Last week we were shocked and appalled by the images of Republican Senators and their colleagues being shot at by a deranged person not happy with current politics. While many of our elected officials have heavy security when they are at work in the Capital’s office buildings, these members were on a ballfield early in the morning practicing for a charity baseball game taking place the next day. Despite the close proximity of the Capitol Police there to protect Steve Scalise, the current United States House of Representatives Majority Whip, five people were shot. Thankfully the sole fatality was the shooter himself.

In Orlando in early June, a disgruntled ex-employee systematically shot and killed five coworkers and then himself. A week later, a UPS employee in San Francisco walked into a UPS facility and killed three coworkers before killing himself.

According to the Bureau of Labor and Statistics, in 2015 there were 354 homicides by shooting at the workplace. There were 307 in 2014, 322 in 2013, 381 in 2012, and 365 in 2011. Based on these statistics, it is clear that this is not an issue going away anytime soon. These are scary times and we all need to prepare for this new normal. 

While I was not able to attend the NYCOSH event, I did go to the website for the U.S. Department of Homeland Security, which offered these suggestions for responding when an active shooter is in your area.

  • Evacuate if you can.
  • Run as fast as you can and leave everything behind.
  • Just get out if possible.
  • If there is no accessible escape route, then hide somewhere and lock and blockade the door and silence any noise such as a radio or cell phone.
  • Lastly, if your life is in imminent danger, take action and try to incapacitate the shooter.
  • Throw things.
  • Use anything as a weapon.
  • Don’t go down without a fight.

It’s unfortunate that we even have to talk about protecting ourselves from active shooters. But in today’s day and age, we can never be too careful. As a mother, I worry for the safety of my children when they walk out the door as I’m sure many of you do as well. As a lawyer, I worry about the safety of workers every day on the job who are continually dealing with workplace injuries that could have been prevented.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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