Category Archives: Legislation

Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

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

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.



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.


States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

Yesterday we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.


To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

What is Workers’ Compensation?

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

This is the first installment of a series that will educate workers and their families about injury, disease and death resulting from work. The most basic question is: What is workers’ compensation?

Workers’ compensation is a legal system established in all 50 states, Washington, D.C., and for federal employees. Workers’ compensation laws began in the United States in 1912. The laws are different in each state, but the basics of the law are quite similar in all states.

If a worker is injured, contracts a disease or dies as a result of work activities, all of the medical and burial expenses are to be paid by the employer. The employer is also responsible to pay for lost wages, physical disability, and mental disability. Workers’ compensation does not pay for pain and suffering and is generally limited in duration of payments, although some states pay lifetime benefits.

The balance of this series will go through the basic steps of how to obtain workers’ compensation benefit. The goal is to inform, which helps victims of workplace injury, disease or death receive proper compensation.

OSHA Reports that Cost of Work-related Injuries are Shifting to Employees

Many decades ago, OSHA created workplace safety standards to help employees avoid injuries from dangerous working conditions. Despite these standards, each year more than 3 million workers are seriously injured or killed while on the job. Because Workers’ Compensation fails to cover all the costs of injury, some low-wage workers (who have a disproportionate rate of injury and have more hazardous occupations than other workers) are slipping below the poverty line ($24,250 for a family of four), and the financial burden of work-related injuries is shifting from those who created the unsafe work environment to the families and workers who are injured. In 2012 alone work-related injuries and deaths cost $198 billion, according to the National Safety Council.

According to a recent report by OSHA, Workers’ Compensation only covers about 21% of lost wages and medical costs, so injured workers and their private insurance policies are then forced to cover on average 63% of the injured worker’s medical bills. Taxpayers are picking up the final 16% of work-related injury costs.

The solution to this inequality is for companies to create a workplace that prevents injuries and illnesses from occurring in the first place. OSHA believes that the reason for the majority of work-related injuries and fatalities is due to a combination of the misclassification of employees as independent contractors, the rising usage of temporary workers, and workers from different companies that are forced to work together at the same jobsite despite differences in training.  About 4,500 workers are killed on the job every year according to the Bureau of Labor Statistics. Three million serious occupational injuries and illnesses are reported annually and OSHA suspects that this figure is only a fraction of the unreported number of injuries and fatalities on the job.

Read more about the cost of failing to protect workers here:

N.C. Workplace Deaths Being Under-Reported

The News & Observer recently published an article exposing the under-reporting of workplace deaths by the North Carolina State Department of Labor. The Department reported only 23 deaths for 2013 and for 2014, the Department reported 44 deaths. However, even 44 deaths is significantly less than the 243 workplace deaths reported by the Department in 2001. In a 2009 press release by the Department of Labor, NC was “one of the safest states to work.” However, according to the N&O, this reduction in reported fatalities is due to a change in methodology, not safety.

In 2006 the N.C. Department of Labor began reporting only the deaths that the Department had authority to investigate. That policy change excluded independent contractors (self-employed workers) as well as any death that falls under federal jurisdiction. Federal jurisdiction includes the death of a federal employee, any worker who dies while working on a military base or at a federal facility, any death in the mining industry, and any death that occurs around open waters including firefighters and divers. The State’s total also excludes laborers at small farms, owners of unincorporated companies, most workers who die on roads, and many workers who died months or years after the injury that eventually killed them.

Misclassification of workers as independent contractors (the topic of another investigation by the N&O) not only results in employers cheating the workers’ compensation system by failing to obtain insurance, but it also results in inaccurate data reported by the Department of Labor. This under-reporting is not due to increased safety and enforcement by our State, it is due, in part, to employer fraud of misclassifying workers.

Read more here.

Examining Workers’ Compensation Costs to Employers

Source: Bureau of Labor Statistics National Compensation Survey 1991 – 2014 (Credit: Sisi Wei/ProPublica)

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

Business and insurance interests are bombarding state legislatures every day of the week to take workers’ rights away by complaining how most states’ workers’ compensation systems are too expensive.

Recently, ProPublica and NPR produced a very detailed explanation of the state of workers’ compensation, focusing, rightly so, on injured workers. This article, which was the first in the series, included an interactive graphic that showed that even though business are complaining about rising premius, workers’ compensation insurance coverage is generally at its lowest rate in 25 years, “even as the costs of health care have increased dramatically,” according to the article.

As examples, using the average premium cost to the employer per $100 of workers’ wages, Nebraska employers paid $1.93 in 1988, while they actually paid $.15 less for the premium in 2014, for a total of $1.78 per $100 of workers’ wages, according to the chart. Iowa was more dramatic, with the price of workers’ compensation insurance $2.79 per $100 of workers’ wages in 1988. It went down $.91 to $1.88 per $100 of workers’ wages in 2014.

By scrolling down in the article, a person finds another graphic that shows how employer costs have risen for other categories, but have fallen for workers’ compensation. Most notably, the cost of workers’ compensation insurance coverage (per $100 of workers’ wages) went from $2.71 in 1991 to $2.00 in 2014. During the same timeframe, the cost of health insurance went from $8.55 to $12.52 and the cost of retirement benefits went from $5.50 to $7.29, all per $100 of workers’ wages, according to the chart in the article.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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), and the Nebraska Association of Trial Attorneys (NATA).  We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

What’s the Matter With Kansas (a/k/a North Carolina)? – Part 2

In reviewing  workers’ compensation  legislation since 2010,  when the conservative majority took over the government in North Carolina, in Part I it was noted that Deputy Commissioners (administrative law judges) will lose their job security, effective July 1, 2015, and that insurance policies can be cancelled easier to help out general contractors, but what else has been passed?

Previously, if a worker was totally disabled for life he got lifetime disability (recognizing that there is no cost of living adjustment in future years and there is a cap on the dollar amount of  weekly benefits he could get). In 2011 the legislature limited benefits to 500 weeks (9.6 years). Brain injuries and other catastrophic injuries can continue beyond 500 weeks, but if the employee is still disabled and outside these exceptions, what happens? The insurance company is off the hook, and the taxpayer starts paying the price of the injury through social programs. The employer also gets a 100% credit on workers’ compensation for any Social Security retirement benefit the worker may receive. 

An insurance company can now seek an “independent” medical exam, even though the claim  has been denied. If an employee wants to be seen by a physician of her choice to review a permanent disability determination made by the insurance company’s selected physician, she can do so but the Commission is directed by legislation to “either disregard or give less weight to” any opinions that are not related to the impairment issue. The 2011 legislature required the Industrial Commission to review its administrative rules and after spending a year doing so, all but three of the rules were “disapproved” by the 2013 legislature. The process will now start over. The legislature has also made it more difficult for the employee to obtain documents from the employer by legislating that a subpoena for documents shall not issue less than 30 days prior to the hearing date. A process that is supposed to be “as summary and simple as reasonably may be” is now full of traps for unsophisticated employees (and their attorney, if they have one).

What's the Matter With Kansas (a/k/a North Carolina)?

What's The Matter With Kansas?In 2004 Thomas Frank, a journalist and historian, wrote a book entitled “What’s the Matter With Kansas?” It detailed the rise of political conservatives who obtained power by using hot button social issues, then passed legislation that worked against the economic interests of the vast majority of the citizens of Kansas. North Carolina has become the new Kansas. Conservative Republican legislators took control in 2010 and a Republican Governor, Pat McCrory, joined them in 2012. What has happened in the field of workers’ compensation with this new majority?

On August 23, 2013 Governor McCrory signed into law new legislation (HB 74) which removed Industrial Commission judges (Deputy Commissioners) from the State Personnel Act, effective July 1, 2015. These judges hear the initial claims of injured workers and in 2015 they will no longer be protected from being hired and fired “at will.” It is quite apparent that political interests will be looking over their shoulders as they make decisions about compensation and medical treatment for injured employees. Most of the public seems to be unaware of this significant alteration of the judicial system as it relates to workers’ compensation claims.

The 2013 legislature made it easier for workers’ compensation insurance companies to cancel policies, and for general contractors to escape liability when they failed to get a certificate of insurance from a sub-contractor. Several appellate cases had previously held that if a green-card receipt from a registered notification of cancellation could not be produced by the insurance company, the policy would still be in effect. If there is no insurance coverage for a seriously injured employee, who picks up the bill? Medicaid, Medicare and Social Security (in short, the U.S. taxpayer) gets stuck. North Carolina, unlike most other states, has no uninsured employers’ fund.  It’s just tough luck for those folks who legitimately get injured on the job but who have an employer who didn’t get required insurance.  An investigative report in 2011 indicated there are as many as 30,000 uninsured employers in this state, yet nothing has been done legislatively or administratively to address this problem.

Since 1929 the overriding principle of the Workers’ Compensation Act in North Carolina has been to provide injured workers with limited benefits, but speedy medical care and a prompt resolution of the claim. However, the system in North Carolina is becoming much more complex, time consuming and expensive, and the tinkering with the system seems never–ending by the conservative majority, which clearly seems to favor big business and insurance interests over the injured worker or the taxpayers who pick up bills that should be covered by insurance. Part II of this blog will discuss other legislative changes made since 2010. Stay tuned.