Author Archives: Leonard Jernigan

That’s Not Fair!

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

“That’s not fair!” 

I continually receive this response when I tell an injured worker that they cannot sue their employer based on their work injury and its effects.  Despite the media barrage many workers equate worker’s compensation with personal injury law.  The concept of fairness and fault quite frankly have no real place in the worker’s compensation system. 

As discussed in prior posts, the worker’s compensation system is based on a “deal” between employers and employees, dating all the way back to 1911 in Wisconsin.  Workers, in effect, gave up the right to sue in Circuit Court, along with their right to a jury trial and verdict, in exchange for certain, guaranteed, and lesser payments, regardless of having to prove fault.  Employers give up the right to their common law defenses (assumption of risk, co-employee negligence, and contributory negligence) and avoided the uncertainty of high jury verdicts, while simultaneously accepting liability (and requirement of worker’s compensation insurance) for all work-related injuries.

For most employees, the system works very well.  This is because generally only 10% of work-related injuries have provable “fault.”  These statistics were from a recent seminar I attended through the Worker’s Injury Law and Advocacy Group.  This means that–on average–only 10% of work injuries could an injured worker arguably claim was based on negligent or intentional acts of the employer or a co-worker.  Thus, for the other approximately 90% of workers, the worker’s compensation system is a huge beneficial safety net.  Without the worker’s compensation system, these workers could be off work, without any type of income or medical bill payment.  It is helpful to remind injured workers of this incredibly relevant statistic.

When asking injured workers to actually define who could have been responsible (if this was a personal injury system) for their injury, the responses generally are difficult.  In most instances, there is no one to blame–it was an accidental injury.  This is a reminder to injured workers of the true benefits of our stable and beneficial worker’s compensation system in Wisconsin.

Can Doctors Dump Their Patients?

Recently we have noticed a disturbing trend in workers’ compensation claims of injured workers being summarily dismissed by a treating doctor while still in obvious need of treatment for their injury. One doctor declined to continue seeing an injured worker after he had referred the worker out for needed surgery, even though the insurance company denied the surgery. The injured worker was left without any care or the ability to get further pain medications.

Since 1986 there have been Federal laws that prohibit hospitals from prematurely discharging a patient because of a low paying insurance plan or refusing treatment because of a patient’s inability to pay. However, there are no such Federal laws for private clinics and doctors. The American Medical Association has established guidelines regarding when a doctor may terminate a patient relationship, based on its Code of Ethics. Non-compliance with treatment, missed appointments, rude or obnoxious behavior, drug seeking behavior, non-payment of bills, retirement of doctor/closing of practice and changes in insurance are among the accepted reasons.

Doctors may not dismiss a patient while they are in an emergency or critical phase of care or when there is a lack of access to other appropriate medical care for the patient. If such a dismissal happens, do not be argumentative, rude or obnoxious. Do not ask this physician for a referral to a new doctor. Try to find your own doctor through your church, family, friends or other associates who may have contacts in the medical community. If the dismissal is unjustified, you may want to file a complaint with the State medical board.

For more information, go to http://patients.about.com/od/doctorsandproviders/f/Can-My-Doctor-Dismiss-Me-As-A-Patient.htm.

James Brown and Attorney/Client Relations

Artist James Brown

Artist James Brown

If you haven’t seen the recent movie or HBO documentary on James Brown, you should check it out. He made me think about these top ten client relation tips:

  1.  Treat all clients with respect and dignity.
  2.  Try to understand the stress that our clients are under, especially when they are upset.
  3.  At the same time, do not tolerate verbal abuse from clients. Respect works both ways.
  4.  Keep boundaries. Clients need you to have an objective view, not become their best friend.
  5.  Clients don’t care how much you know, until they know how much you care.
  6.  Be honest in all things, at all times. Keeps you out of trouble.
  7.  Building good relationships are the foundation blocks of success.
  8.  Keep the client informed about what you are doing.
  9.  Be prepared and be thinking about going to trial from the first day. Cases settle more often and you get better results when you are prepared.
  10. Think about James Brown. He was the “hardest working man in show business” for a reason. He gave it everything he had, and it showed.

Injured Worker Stakeouts: Do Private Investigators Commit Fraud?

Have you noticed a suspicious vehicle lurking in your neighborhood lately, or is there a stranger that seems to be everywhere you go? If you have an active workers’ compensation claim, then you may not be imaging things. More and more, we are seeing insurance companies willing to spend thousands of dollars to hire private investigators to conduct clandestine surveillance of an injured worker’s daily activities and documenting these activities with video cameras. This type of surveillance often comes as a shock to our clients.

When these situations arise, the question we hear most often is, “Can they do that? Is this legal?” The answer is yes. Private investigators may photograph or video people in their private residences so long as they are clearly visible to the general public and there is no expectation of privacy. They can also conduct a full background investigation and obtain information about any other claims you made for personal injuries or if you have ever been charged with a crime.

While there are honest private investigators in the field, there are also those who will cheat. One investigator deflated an injured worker’s tire and then videotaped the person “working” to fix the flat tire. Another investigator reported talking on the phone to someone who told him that an injured worker was working while also receiving workers’ compensation benefits. A follow up done by our firm proved that the person with whom the investigator claimed to have talked has a serious hearing impairment and could not use the telephone.  

Injured workers need to be aware that surveillance can happen in any case. It has become part of the workers’ compensation system. By the way, if you do notice a suspicious car parked near your home, call the police.

Tips to Prevent Carbon Monoxide Poisoning

-Beware_of_carbon_monoxide-_-_NARA_-_513966The Centers for Disease Control and Prevention (CDC) estimate that at least 430 people die each year from unintentional carbon monoxide poisoning. Several years ago we represented a young lady who was exposed to carbon monoxide (CO) poisoning at a convenience store where she worked. Some repairs were being made to concrete and the workers were using gas-powered tools to cut into the concrete and there was improper ventilation. She collapsed and was taken to the hospital with possible brain damage.

Carbon monoxide is a colorless, odorless and tasteless gas that can severely damage the human body and in some cases it can lead to death. The following tips can protect your family from CO poisoning:

  • Know the symptoms of CO poisoning. These include headaches, dizziness, vomiting, confusion, weakness, blurred vision and nausea. Extreme symptoms include severely impaired mental state, coordination loss, loss of breath, increased heart rate, chest pain and loss of consciousness. Persons experiencing CO poisoning symptoms should be removed from the enclosed environment and taken to a medical professional. Call your local authorities to make a report.
  • Be aware of CO sources in your home. Any gas burning appliance such as a furnace, boiler, gas stove, water heater, fireplace and gas-powered tools can be a CO source. Make sure these types of appliances are serviced regularly to lower the risk of CO poisoning.
  • Don’t put a gas generator in the house, garage or outside your house near a window. Generators have the capability of producing CO levels several hundred times those found in normal automobile exhausts. The CDC recommends that generators should be used at least 20 feet away from your house in a properly ventilated area.
  • Install a CO detector to alert of a possible CO leak.

For more information please visit www.serpefirm.com/personal-injury-blog/.

 

Major Asbestos Violations Result in Fines for Two WA Companies

Today’s post comes from guest author Kit Case, from Causey Law Firm.

The Department of Labor & Industries (L&I) has cited two employers for violations that exposed workers to asbestos during the demolition of a Seattle apartment building. Asbestos can cause cancer and other fatal illnesses.

An L&I investigation into the Seattle project found a total of 19 willful and serious safety and health violations. As a result, together the businesses have been fined a total of $379,100.

Partners Construction Inc., of Federal Way, was cited for a total of 14 willful and serious violations and fined $291,950. Asbestos Construction Management Inc., of Bonney Lake, was fined $87,150 for five willful and serious violations.

The violations were for asbestos exposure to workers, asbestos debris left on site and other violations that occurred during demolition of an apartment building in the Fremont neighborhood. The three-story, five-unit apartment building was originally constructed with “popcorn” ceilings, a white substance containing asbestos fibers, as well as asbestos sheet vinyl flooring.

Asbestos is an extremely hazardous material that can lead to asbestosis, a potentially fatal disease, as well as mesothelioma and lung cancer. Removal of asbestos-containing building materials must be done by a certified abatement contractor who follows safety and health rules to protect workers and the public from exposure to asbestos. The contractor must also ensure proper removal and disposal of the asbestos materials.

Partners Construction Inc., a certified asbestos abatement contractor at the time, was hired by the building owner to remove the asbestos before the apartment building was demolished.

After several weeks, Partners provided the building owner with a letter of completion indicating that all asbestos had been removed. When L&I inspectors responded to a worker complaint, the inspectors found that the removal work had not been done and approximately 5,400 square feet of popcorn ceiling remained throughout, as well as asbestos sheet vinyl flooring.

Partners came back to finish the abatement work; however, due to a prior history of willful violations, L&I was in the process of revoking Partners’ certification to do asbestos abatement work. In May, Partners was decertified and went out of business.

A new company, Asbestos Construction Management Inc. (ACM), owned by a family member of the Partners owner, took over the job using essentially the same workers and certified asbestos supervisor as Partners, and sharing the same equipment.

A subsequent L&I inspection of ACM found many of the same violations as in the Partners’ inspection. L&I has initiated decertification action against ACM.

The employers have 15 business days to appeal the citation.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

For a copy of the citations, please contact Public Affairs at 360-902-5413.

 Photo credit: avlxyz / Foter / CC BY-SA

Ebola Outbreak: Are You Prepared And Protected?

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

I have been carefully following the Ebola outbreak, both the cases in the United States and those around the world. I am saddened to see anyone suffer from this horrible virus, but the preventable infections, including the infection of multiple health care workers in Dallas, are particularly alarming. Health care workers are on the front lines of our fight against this deadly disease and their bravery should be recognized. They are an infected patient’s first point of contact with a hospital and are in close contact with infected patients during their struggle, often having to work with blood and bodily fluids, the primary methods of transmittal. 

The lack of preparation on the part of some of our healthcare institutions has been extensively covered in the news. According to reports from Dallas, the hospital where the first patient was admitted had a complete absence of protocols for caring for patients with Ebola. This lack of preparation has put thousands of people at risk of infection and at least potentially contributed to in the spread of the outbreak in the United States from one patient to at least three. But the failure lies not only with local hospitals, it is also due to a slow and uncoordinated effort by our Federal government.

Even if existing protocols had been followed in Dallas, Dr. Anthony S. Fauci, director of the National Institute of Allergy and Infectious Diseases, admits that the Federal guidelines are inadequate. The Centers for Disease Control is revising its protocol for the treatment of Ebola patients, but the recommended steps will take time to fully implement. The CDC’s current protocol was originally developed by the World Health Organization for the treatment of infected patients in facilities in rural Africa, not in busy American hospitals.

Even before the comprehensive protocols are developed and implemented, our health care workers should to be trained on the basics and given the proper equipment for their own protection. For example, nurses must be trained in and practice the complicated and tedious getting in and out of hazmat suits. Training must happen quickly, as the situation could become dire – as of today we only have 4 hospitals in the United States that are fully equipped with a pre-trained staff. Those hospitals can treat a total of 9 Ebola patients. We are just not equipped for a large domestic Ebola outbreak.

Further, as this CNN video below explains, health care workers are not the only ones at risk. Because Ebola can survive on surfaces like doorknobs, tables and fabrics long after an infected person has touched them, many locations may need to be disinfected in the coming weeks as the true extent of the outbreak becomes known. Just last week a group of airline cabin cleaners at LaGuardia Airport went on strike because of the possible health risks of cleaning surfaces touched by Ebola-infected passengers. Like health care workers, the workers who are in charge of the disinfection process should follow the Federal guidelines once they are released.

 

In addition to the possibility of Ebola infection, working in extraordinarily difficult conditions is highly stressful and the complicated new procedures could lead to injury. We urge all workers to be extremely cautious when training on and implementing new procedures.

If you are a Health Care worker involved in an accident or occupational injury, please consult us regarding your financial and medical rights. Workers are entitled to know about their rights under the law, whether it is from a traumatic injury or from occupational conditions due to repetitive activity at work over time. There are deadlines to filing a claim so please contact Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP as soon as you can.  

Workers’ Compensation Medicare Set-Aside Accounts and Supplemental Coverage

Medical_Care_Card_USA_SampleWhen an injured worker is a Medicare beneficiary due to age or disability, a Workers’ Compensation Medicare Set-Aside (WCMSA) account is usually required as part of a settlement.  The funds in a WCMSA are set-aside in order to pay for future medical or prescription drug services related to the work related injury, illness, or disease that would normally be covered by Medicare. Once the funds in a WCMSA have been used appropriately, then Medicare will start paying for Medicare-covered services related to the work-related injury, illness, or disease. The WCMSA cannot be used to pay for any medical items or services that Medicare does not normally cover.

Workers’ compensation insurance provides 100% coverage of medical treatment for accepted workers’ compensation medical conditions. Medicare, however, requires an 80/20 sharing of medical costs. Without a Medicare supplemental (also called “Medigap”) insurance policy, the injured worker would be required to pay significant co-pays and deductibles.  Supplemental insurance is not required by Medicare, but may be helpful to cover the cost sharing required by Medicare, especially if the beneficiary has other medical conditions that are not related to the work injury, illness or disease. However, the premiums for such supplemental coverage cannot be paid out of the WCMSA funds.

While Medicare does not provide coverage for prescription medications, WCMSA funds can be used to pay for medications related to the work injury, illness or disease. If there is a likelihood that the injured worker will exhaust the funds in their WCMSA, then purchasing a Medicare Part D prescription drug plan may be advisable to prevent the injured worker from having to pay full price for their medications once the WCMSA funds are exhausted. However, the financial benefit of having this coverage should be weighed against the cost of plan (2013 national average was $30.00 per month) since the WCMSA funds cannot be used to pay for the plan itself.

For more detailed information about WCMSAs and supplemental coverage, visit www.Medicare.gov.