Author Archives: Leonard Jernigan

Scientology And Workplace Safety

I was in San Francisco a few weeks ago, just casually walking down Montgomery Street when I saw a  sign on the sidewalk that said: “Church of Scientology – All are Welcome.” I had just read Lawrence Wright’s book, “Going Clear” which told in chilling detail the inside story of this “religion” and  I quickly went the other way. The legal system plays a prominent role in the book, particularly the twenty year legal war  (1973 – 1993) that the IRS had with the church trying to prove that it was not a bona fide religion in order to collect $1 billion in back taxes. Turns out that was hard to do, especially when the church was throwing money at law firms “to harass and discourage rather than to win.” According to Wright, the church filed 200 lawsuits against the IRS and 2,000 individual suits by church members, overwhelming government lawyers until the IRS finally yielded. The church is now recognized as a valid religion. Tom Cruise gets to deduct his contributions, I presume. In 1991 the church also went after Time Magazine for a story they didn’t like and at one time had a reported annual litigation budget of $20 million and over 100 lawyers, just to fight Time.

What really caught my attention was the story about Daniel Montalvo. According to the book, his parents became Scientologists when he was five and by age eleven he worked full-time ( eventually from 8 a.m. until 11:30 p.m.) for the church for about $36 a day. He shoveled asbestos from an old hotel without a mask and rarely saw his parents. He attended  school one day a week, on Saturday. When he was fifteen he operated scissors lifts and other heavy equipment. He also began working in a book production facility where he operated a machine with a guillotine-like blade that sliced through book pages, and one day he accidently sliced off his index finger. “He was instructed to tell the  admitting nurse that he had injured himself in a skateboarding accident. The doctors were unable to reattach the finger.” Wright doesn’t mention the workers’ compensation system, but I have a feeling a claim was never filed.

Let’s Get to Zero

Today’s post was shared by US Labor Department and comes from blog.dol.gov

A group of Boise construction workers listen to a presentation during the National Safety Stand-Down this May.
A group of Boise construction workers listen to a presentation during the National Safety Stand-Down this May.

For us at the Occupational Safety and Health Administration, the loss of one workers’ life is one too many. Workplace tragedies are devastating for the families and friends left behind. Their effects are long-term and far-reaching in our communities.

On Workers’ Memorial Day, we were reminded that every day, 13 American workers don’t make it back home at the end of their shift. That’s not a cold statistic but rather a fact of life for us here at OSHA. Our Boise office alone has investigated the deaths of 10 workers killed on the job in Idaho in the past 12 months. As recently as last week I watched as the bodies of two workers who had been installing a utility line were pulled out of a deadly trench collapse right here in Boise. Nobody should die for a paycheck.

Click to watch: OSHA's David Kearns talks safety at a recent event with construction workers and subcontractors.
Click to watch: OSHA’s David Kearns talks safety at a recent event with construction workers and subcontractors.

Click to watch: OSHA’s David Kearns talks safety at a recent event with construction workers and subcontractors.

Our investigation will determine exactly what happened in Boise and why it happened. But we already know this much: workplace fatalities and injuries often prove to be avoidable and caused by a lapse in safety protocol. Trench deaths are no exception. We have known for centuries how to prevent workers from getting killed in trenches.

In the coming days I…

[Click here to see the rest of this post]

Tips on Your Workers’ Compensation Claim

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

I just returned from New Orleans where I made a presentation to about 150 workers’ compensation lawyers (both for workers and for employers) on “Case and Client Evaluation In Workers’ Compensation”.

Since many in the audience represented insurance companies and employers, I paid particular attention to their response to my presentation. As one would expect, their best chance to win a case on behalf of the employer and insurance carrier occurs when several items come into play:

  1. When there is no actual report of the injury. [Worker’s Tip: No matter how small the work injury, make sure it is reported in some fashion – cell phone, voice recording, or Accident Report and the worker keeps a copy (BEST).]
  2. Failure to report that a work injury occurred to the first treating practitioner (whether Emergency Room, employer-directed medical facility, hospital, or primary care physician). The single most difficult hurdle in a workers’ compensation claim involving a traumatic injury occurs when no report of the injury is found in the initial medical record.
  3. In “Occupational Exposure” cases, no discussion with the doctor about work duties or prior incidents. (In Wisconsin, a worker can recover for workers’ compensation in one of two ways: 
    1. A traumatic injury where a single incident has caused the disability (lifting a box, falling, etc.)
    2. Occupational Exposure, where the wear and tear of a worker’s job causes the disability over time. In this latter category, workers routinely do not indicate with any kind of specificity the type of work they perform when they see the doctor.

These three tips can help us as workers’ compensation lawyers win claims, more so than any “Clarence Darrow” court room techniques or strategies.

Will It Hurt My Workers’ Compensation Case to Get a Job?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

“Will getting a job hurt my case?”

I hear this question on a regular basis from my workers’ compensation clients. In my experience, the answer is almost always “no.” But if you do find alternate or part-time employment during your workers’ compensation case, you need to keep track of and disclose your earnings.

Why working when you are injured can help your case:

1.  Working helps your credibility with doctors and judges: 

Doctors and judges are the two most important people in your case, because the doctors drive the medical evidence and the judge weighs that evidence. Ultimately, those decisions come down to a doctor or judge’s determination of your character. A judge is going to give the benefit of the doubt to someone who is trying to help themselves. That’s also why complying with doctor’s orders and rehabilitation programs helps your credibility in court.

2.  Just because you’re working doesn’t mean that you are not significantly or even totally disabled:

Maybe your company is bending over backward to keep you. Maybe a sibling or a parent has you working at their business. In situations like that, a court is going to understand you are earning wages beyond your real potential to earn wages. You may also be enduring tremendous amounts of pain to maintain employment. In cases like that, especially if you had a good employment record and complied with your doctor’s orders, the fact that you are working through pain could very well help your credibility.

 

How to hurt your case when you work:

1.  Not disclosing your wages and employment: This is especially true if you are working while receiving temporary disability benefits or unemployment benefits. This makes you look dishonest, and you might be committing fraud in many states. Additionally, once you are in the legal process, you normally have a duty to disclose that information to your employer/insurer anyway. Even if a judge believes that you inadvertently forgot to turn over this wage information, you are still making it more difficult for your attorney to win you benefits.

2.  Clearly working beyond your medical restrictions: Let’s say a doctor takes you off work as a nurse because you can’t lift more than 25 pounds and bend and twist on a regular basis, but you keep working as a CrossFit instructor, where you regularly do heavy lifting that involves bending and twisting. If you are that person, don’t call our law firm. Though employee fraud is a very small percentage of overall fraud, conduct like that would likely be workers’ compensation fraud. Again, working can help with your credibility in a workers’ compensation case, but being dishonest about that work can hurt your case.

If you have questions about specifics in your or a loved one’s workers’ compensation case, please contact an experienced workers’ compensation lawyer.

One Company’s Scary Assault on Work Comp

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

Another major article addressed the further attacks on the worker’s compensation system.  This time, there is an in-depth analysis of one specific company–Tyson Foods–and its attempts to influence worker’s compensation benefits throughout the country.  From Pro Publica, the article is Tyson Foods’ Secret Recipe For Carving Up Workers’ Comp.

This extensive article documents the legislative influence that Tyson exerts in attempts to diminsh or eliminate its worker’s compensation costs.  As many companies focus on the bottom line, failing to acknowledge the actual benefits of the work comp “grand bargain” appear short-sighted.  Tyson Foods is involved in an industry that includes meat processing plants and physical work–with inherent levels of risk and injury.  Worker’s compensation injuries are simply the cost of doing this type of business.  Without worker’s compensation, there would be the potential for civil litigation and jury awards based on negligence or fault. One wonders what that litigation world would like for injuries at a meat processing plant.

Further, the article outlines Tyson Foods’ minimization of worker’s compensation costs through their own medical provider system.  Through plant nurses and “managed care units”, workers treat with company-controlled or company-influenced medical providers.  Again, one can wonder about the indepedence of such providers.  Are injuries truly being classified as work-related?  Can there be a push for a too-soon return to work?  Do workers get the independent specialized medical care that is necessary?

This article raises some questions about what managed care or employer-directed medical care could mean in certain states.  It highlights the influence a large employer can have over the medical care and treatment of its injured workers.   Wisconsin still has employe choice of physicians, which allows access to quality, timely medical care and produces some of the fastest return to work rates in the country.  Employer directed medical care could upend these beneficial components to Wisconsin’s system.

Finally, grave concerns are shown about political influence.   Getting rid of judges and commissioners they disagree with, large corporations try to shape the system to benefit only them. Workers hoping for a fair shake after a work injury could face a harsh awakening.

Scary, scary article. 

 

Is it Illegal to Discriminate Against Me on the Job Because of My Accent?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Contrary to popular opinion, many immigrants work in professional and white-collar jobs. The explosive growth of immigration to the United States means that more immigrants will work in white-collar jobs in the United States. Since white collar jobs often require verbal communication, immigrants employed in white-collar professions and their employers will increasingly face the question of whether it is legal to discriminate on the basis of accent. 

Most federal and state courts that have addressed the issue believe that it is illegal for employees to discriminate based on accent if that discrimination is tied to nationality. Courts have even gone so far as to state that nationality and accent are intertwined, which means that they take such discrimination seriously. However, courts understand that employers have an interest in clear verbal communication. So what steps should you take if you think you are being discriminated against because of your accent? 

  1. Apply for a promotion for which you are qualified: Discrimination is only actionable if the company takes some action against you. One so-called adverse action is a failure to promote. If you are a trusted and valued employee, a company will often give you a reason why you were not promoted. If this reason is related to your accent, you can often get a decision maker to say as much. Legally, this is considered direct evidence of discrimination.
  2. If possible, reach out to other foreign-born employees in your workplace: If other foreign-born employees are being discriminated against for the same or similar reasons, it makes sense to work with them, as it can show a pattern by the employer. Also, when employees work together to fight discrimination, they are not just protected by civil rights laws, but they are also protected under the National Labor Relations Act.
  3. If possible, contact an employment attorney in your area before you decide to take action:  Every situation is different, and laws vary from state to state. A lawyer can give you tips about how to potentially build a case, can give you advice about actions and tactics to avoid, and can advise you about any legal deadlines that might apply to your potential case.

Countertop Workers Face Silicosis Risk from Engineered Stone Countertops

Engineered stone countertops, a popular fixture in today’s homes, pose a health risk to workers who cut and finish them. The danger stems from the material the countertops are made from, processed quartz, which contains silica levels up to 90 percent. Silica is linked to a debilitating and potentially deadly lung disease known as silicosis, as well as lung cancer and kidney disease.

While the countertops do not pose a risk to consumers in their homes, they do pose a risk to the workers who cut and finish them before they are installed. When the countertops are cut, silica particles are released into the air, which when breathed in by the workers can start processes leading to silicosis. Manufacturers of the engineered stone countertops assert that worker hazards can be reduced through the use of protective respirators and equipment designed to trap silica dust. Despite this assertion, many safety precautions taken by employers are often inadequate.

The first documented case of silicosis among countertop workers in the United States was reported two years ago. In countries such as Israel and Spain, where engineered stone products gained their popularity, many more countertop workers have been diagnosed with silicosis and have had to undergo lung transplants. The danger of silicosis in the construction industry led OSHA to recently issue new rules requiring construction workers’ silica exposure to be reduced by 80 percent beginning on June 23, 2017.

Eastern Washington Painter Accused of Illegal Contracting Agrees to Stop

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

A Colville, WA painter facing criminal charges of unregistered contracting agreed this week to stop working illegally.

Terry Foster, 82, agreed in court that he must register with the state and pay court fees if he works as a construction contractor. He’s accused of working as a painter without registering with the Department of Labor & Industries (L&I) and, in the past, has received nine civil infractions for unregistered contracting.

If Foster follows through with the agreement, breaks no criminal laws and pays $300 in court fees, criminal charges against him will be dismissed in two years, according to the Washington Attorney General’s Office.

If he violates any conditions of the agreement, the case will be reset for trial.

Faced three charges

Foster had faced three charges of unregistered contracting in Stevens County District Court in Colville, about 70 miles north of Spokane. Each is a gross misdemeanor punishable by up to 364 days in jail, a $5,000 fine or both.

He had been doing business under his own name and as “Terry the Consultant” and “Terry the Painter.” He served on the Colville City Council from late 2010 through April 2015.  

Tips from frustrated contractors

The case resulted from an L&I investigation. According to charging papers, L&I inspectors caught Foster or his son painting in Colville in 2013 and 2015 and in Chewelah in 2014. Contractors who were frustrated at having to compete against an unregistered contractor tipped off L&I to the job sites.

Since 2008, L&I has issued Foster nine civil infractions for unregistered contracting. The department is trying to collect more than $30,000 in fines and more than $130,000 for workers’ compensation insurance premiums that he owes L&I.

Law protects consumers, legal contractors

State law requires construction contractors to register with L&I, which confirms they are insured and bonded and meet other requirements. L&I can issue violators a civil infraction, refer them for criminal prosecution or both.

The registration requirement gives consumers some recourse if they have problems with a contractor, and prevents unregistered contractors from gaining an unfair advantage over law-abiding contractors.

 

Consumers can check whether contractors are registered at www.Lni.wa.gov/Verify.

 

Photo credit: Alain Wibert via Foter.com / CC BY-ND