Monthly Archives: April 2012

Beware Part Time Employment

Workers' Compensation will only cover you for the specific job on which you got hurt.

Today we have a guest post from our colleague Tom Domer of Wisconsin.

Wisconsin pays worker’s compensation benefits based only on the job on which an employee works, even if the employee’s injury makes it impossible for him to work in his regular job. In these difficult economic times, many workers are forced to take a second part time job to supplement their incomes. Unfortunately if the worker is hurt at the part time job, only the wages earned from the part time job will be used to calculate worker’s compensation benefits, even if an injury on the part time job means the worker will not be able to return to his full time job.

For example, a cook re-hired at a former wage by the restaurant where he was hurt could not claim a Loss of Earning Capacity based on his inability to return to his second job as a cab driver. Continue reading

Professionalism: A Choice Between The Art of War and Aikido Principles

Morihei Ueshiba, the Japanese founder of the martial art of Aikido.

Lawyers are often engaged to resolve conflicts. Sometimes the conflicts are resolved peacefully and harmoniously in a win/win environment and other times the resolution comes out acrimoniously and bitterly in a win/lose scenario. The former outcome is always preferred, yet many of us unwittingly choose a method of professional behavior that drives us toward a hostile, embittered and emotionally draining environment that we didn’t want.

How can this happen?

For insight, let’s look at an ancient Chinese military philosopher, Sun Tzu, who wrote The Art of War during the fourth century, B.C., and then compare it to the relatively recent principles expounded by Morihei Ueshiba, the Japanese founder of the martial art of Aikido. The Art of War was brought to the attention of the western world when it was translated into French and published in Paris in 1772. Napoleon is believed to have read and studied it. In more recent times, trial litigators and corporate executives have quoted from it in order to justify their tactics. Sun Tzu recognized that war was a matter of vital importance to the state and that it was mandatory that it be studied and mastered. (Machiavelli, when he wrote The Prince in 1513 A.D., had a similar vision about the importance of obtaining and holding power).

Sun Tzu was ruthless. He once had two of the King’s concubines beheaded after they repeatedly failed to follow his explicit instructions. Afterwards, all the other concubines followed orders as told. Sun Tzu was clever. He believed that all warfare is based on deception. He advocated angering the opposing general in order to confuse him, and sought to keep him under strain so he would wear down. Sun Tzu was aggressive. When his forces were abundant he urged attack. He encouraged agitation of the enemy and counseled striking where the enemy was most vulnerable.

Many lawyers follow these tactics in an attempt to gain strategic advantage over opposing counsel. Their goal is to win “the war” for their client and they will use any tactic allowed by the Local Rules or the Rules of Civil Procedure, etc., and can adamantly defend their actions by saying nothing they have done violated the Rules of Professional Conduct. Although Continue reading

Returning to Work Shouldn’t Be This Hard

Today’s post comes to us from our colleague Roger Moore of Nebraska.

Communicate with your doctor and follow a few guidelines to stay safe when you return to work.

In virtually all workers’ compensation cases an injured worker has to return to work in some capacity. Often these are very stressful situations and it is not uncommon for issues to arrise including conflict with an employer over what a safe return to work actually is. Your goal should be to continue to earn a paycheck while at the same time not risking further injury. Many times this is easier said than done.

Whether it’s a supervisor who ignores your restrictions or a human resources department that actively skirts them, issues frequently come up. We see employers do everything from requiring an injured worker to lift or stand more than they should, to pressuring an employee to return to work the day after a surgical procedure.

You can expect that a nurse case manager or HR specialist from your employer is communicating with your doctor’s office about your return to work. Sometimes they may misrepresent the work that they expect you to do upon your return. It is your job to fill in the gaps.

The most important thing an injured worker can do is communicate with his or her treating physician.

  1. Educate your doctor about the job you were doing when you were initially hurt.
  2. When you are assigned to work, educate your doctor about the light duty job you are doing.
  3. If you are assigned to a job that is difficult for you to perform due to your injury, talk to your doctor about what aspects of that job are difficult. The doctor will likely be willing to restrict you from doing that specific activity.
  4. If your employer is Continue reading

NIOSH To Review Underreporting of Occupational Injuries and Illnesses by Workers

Congress: Work-related injuries and illnesses in the US are chronically and even grossly underreported

Today’s post is from our colleague Jon L. Gelman of Wayne, New Jersey.

The National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC) has proposed a project to review the Underreporting of Occupational Injuries and Illnesses by Workers.

“In 2008, the Congressional Committee on Education and Labor released the report, “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses,” indicating “that work-related injuries and illnesses in the United States are chronically and even grossly underreported.” Based in part on the report’s results, Congress allocated funds for NIOSH to conduct a follow-up study using NIOSH’s occupational supplement to the National Electronic Injury Surveillance System (NEISS-Work) to estimate underreporting among individuals who seek care at an emergency department (ED) for an occupational illness, injury, or exposure.

“Objectives for this project are to (1) assess the reporting behavior of workers that are injured, ill, or exposed to a harmful substance at work; (2) characterize the chronic aspects of work-related injuries or illnesses; and (3) estimate the prevalence of work-related chronic injuries and illnesses among United States workers treated in EDs. Particular attention will be paid to self-employed workers, workers with work-related illnesses, and workers with chronic health problems.
“Data collection for the telephone interview survey will be done via a questionnaire containing questions about the respondent’s injury, illness, or exposure that sent them to the ED; the characteristics of the job they were working when they were injured, became ill, or were exposed; their experiences reporting their injury, illness, or exposure to the ED and their employer (if applicable); the presence of an underlying chronic condition that was associated with their ED visit; and the nature of any other work-related chronic conditions they have experienced. The questionnaire was designed to take 30 minutes to complete and includes a brief series of questions to screen out individuals who were not seen in the ED for a work-related injury, illness, or exposure; who are younger than age 20 or older than age 64; who do not speak English or Spanish; or who were working as volunteers or day laborers when the injury, illness, or exposure occurred or was made worse.

Toradol And Intentional Injuries To NFL Football Players

New Orleans Saints BountyI just returned from a yearly meeting of about 50 workers’ compensation lawyers who are approved by the National Football League Players’ Association (NFLPA) to represent NFL players in the workers’ compensation field.  My firm helps the Carolina Panthers players if they need advice or legal representation in a claim, which are rarely made, but are sometimes filed if there is an injury that ends a professional career.

What would you think about an employer who paid its employees to intentionally injure you? Accidents happen and no one wants those in the workplace, but a deliberate injury is another mattter. That happened with the New Orleans Saints. Coaches paid athletes to intentionally hurt others and knock them out of games. Stiff sanctions have been imposed by the NFL and there will be more fallout from this action by the Saints.

On April 14 The New York Times reported that many professional athletes have been given shots of Toradol, a non-steroidal anti-inflammatory drug that is given in emergency rooms to relieve pain. It numbs the affected area and allows the player to play and ignore the warning signs (pain and inflammation) of injury. A lawsuit has been filed claiming the NFL knew or should have known that the indiscriminate use of Toradol could cause further injury, and the NFL  has denied the claims. Stay tuned for a follow up article on these allegations.

Injuries to In-Home Care Providers: Compensable?

Home care providers may or may not be considered to be employees of the person they are caring for.

Today we have a guest post from my colleague Charlie Domer of Wisconsin.

A growing segment of the workforce involves individuals providing in-home medical care and assistance to private individuals. The assistance can range from a few hours per day, to 24/7 medical and domestic care for incapacitated individuals.

If the in-home care provider gets hurt while performing work duties, does this entitle the care provider to worker’s compensation benefits?

“Home care providers” are treated differently from nannies, baby-sitters and domestic servants (though an argument could be made that the care recipients from a nanny or from an in-home care provider are equally dependent — a baby and an elderly individual often have similar needs). The Commission held that persons providing personal/medical care to an “invalid” are not domestic servants (and thus, not statutorily exempt from the Act’s coverage). (Ambrose v. Harley Vandeveer Family Trust, WC Claim No. 86-39393 (LIRC Feb. 28, 1989); Winkler v. Vivian Smith, WC. Claim No. 1998059089 (LIRC Jun 29, 2000))

The Department generally considers that persons hired in a private home to give primary care to an individual whose duties involve assisting  in walking, bathing, preparing meals and special diets, supervising use of medications and exercise therapy and other duties commonly associated with the meaning of primary-care giver, meet the definition of home-care provider.

 If the domestic servant exemption does not apply, the question is: are home care providers to be considered as employees of the cared-for individual?

Interestingly, another statutory exception which may apply involves that of the cared-for individuals enterprise, as the person providing personal/medical care does not perform these services as part of the trade, business, occupation or profession of the cared-for individual (102.07(4)(a)2). Since the cared-for individual is not in the business of providing in-home care, there would be no worker’s compensation coverage, unless the cared-for individual elects to award these. Thus, the Department, based on this statutory exception, suggests that no employer-employee relationship exists under the Act.

As the Commission has left this issue largely undecided in the case of a private cared-for individual hiring their care provider, arguments exist both for and against coverage. Alternatively, if a county referred the home care provider to the individual and the county set the provider’s rate of pay, the county is the employer for worker’s compensation purposes. (See Cobb v. County of Barron, WC Claim No. 2006-043003 (LIRC Dec. 11, 2008); Nickell v. Kewaunee County, WC Claim No. 94064155 (LIRC Sept. 24, 1996)).

 

Uninsured Employers Are Rampant In North Carolina

In North Carolina, 30,000 employers lack workers' compensation insurance.

The News and Observer and Charlotte Observer have reported that nearly 30,000 employers in North Carolina may not have workers’ compensation coverage, even though legislation requires them to have it in case a worker is injured on the job. Although there are stiff penalties and criminal sanctions (it is a Class H felony to intentionally not have insurance if the damages are over $1,000.00) the state has not aggressively enforced compliance with the statute.

Nearly 30,000 employers in North Carolina may not have workers’ compensation coverage

In New York, when the Fiscal Policy Research Institute did a similar study in 2008, it was estimated that as many as one-third of the employers required to have workers’ compensation insurance did not have it, and that as much as $500 million – $1 billion was being lost to the system. Immediate action was taken by then governor Spitzer to correct the problem and all agencies involved were ordered to cooperate and get the problem fixed.

There is no uninsured fund in this state, so if there is no insurance, you can guess who foots the bill: the taxpayer.

A similar massive effort needs to be taken in North Carolina. There is no uninsured fund in this state, so if there is no insurance, you can guess who foots the bill: the taxpayer. Those of us who pay taxes and buy insurance end up paying for the cost of these injuries. Employers cheat the system with no punishment, and we end up paying the hospital bills, providing the food stamps, and paying higher taxes. The crooked employer makes the money and leaves others to clean up the mess. Is this what we teach our children?

The crooked employer makes the money and leaves others to clean up the mess.

The vast majority of employers purchase workers’ compensation insurance. However, when 30,000 other employers don’t, the good guys are placed at a competitive disadvantage. And what message is being sent to those who want to do the right thing? If no one is enforcing the law, why bother to spend that money? Some will simply say: “I’ll take my chances. Even if I get caught, even now they just make you come into compliance and waive the penalty. That’s not a bad deal.” It’s like driving down an interstate highway, knowing that no Highway Patrol Officer is out there making sure people are not speeding. Most of us will drive carefully, but we all know that with no law enforcement there are many who will go as fast as they can, and eventually bad things will happen.

The current system is broken and simply must be repaired.

There is a two-fold solution: (1) enforce the law, and (2) create an uninsured fund to cover those who fall through the cracks. The current system is broken and simply must be repaired.

What if an Independent Medical Examination Doctor Doesn’t Agree with My Doctor?

IME doctorToday’s wise words come to us from my colleague Roger Moore of Nebraska.

As I have written previously,  in Nebraska, you have the right to choose your family doctor to treat you for your work injury.  For purposes of the workers’ compensation court, that person becomes your “treating doctor.”  However, sometimes an employer or insurance provider selects a non-treating doctor for an “independent medical examination” (IME). According to the workers’ group National Association of Injured & Disabled Workers (NAIDW), IMEs are used for three reasons:

  1. “to determine the cause, extent and medical treatment of a work-related or other injury where liability is at issue”
  2. “whether an individual has reached maximum benefit from treatment”
  3. “whether any permanent impairment remains after treatment”

When an IME is scheduled, this probably means your employer or the insurance company is trying to fight some aspect of your workers’ compensation benefits.  An IME doctor frequently bases his or her findings on what is often a very brief visit with a patient.  Sometimes they don’t even perform a physical examination before rendering their opinion.  Rarely do they issue opinions that are favorable to an injured worker.  For that reason, when an examination like this is scheduled, my policy is to Continue reading