Category Archives: Workers’ Compensation Reform

NC Legislation on Compliance – Something Strange is Happening Here

Last Friday (June 22, 2012) the NC Legislature passed an insurance bill (HB 237), allegedly to help the N.C. Industrial Commission track employers to make sure they obey the law and purchase workers’ compensation insurance when they have three or more employees. This bill keeps information confidential that is sent from the Rate Bureau (the private body that tries to set insurance rates for workers’ compensation and other insurance premiums in this state) to the N.C Industrial Commission. It adds the Industrial Commission to an existing statute (NCGS Section 58-36-16) that allows information about an employer’s experience rate modifier and other sensitive information from the Rate Bureau that is already being sent to the Department of Labor.

With as many as 30,000 employers with no insurance (according to a recent article in the News and Observer, and this information was revealed by gaining access to these public records) there is now more reason than ever to maintain the public status of this information. So, why would the legislature want to make this information exempt from public disclosure?

It makes sense that the Industrial Commission keep this information confidential and not allow it to become a “public record.” In North Carolina we have a law (NCGS Section 132-1) that says any document concerning the transaction of business within a government agency should be open to the public, unless otherwise specifically provided by law, since such documents are the “ property of the people.”

The strange part of the bill is another section (NCGS Section 58-36-17) that that says the Rate Bureau shall provide information indicating “the status of workers’ compensation insurance coverage” and that this information shall also be kept confidential and specifically exempted from the public records law. The problem is that another statute already requires employers to provide this information directly to the Industrial Commission under NCGS Section 97-94(a), and that information is currently not exempt from the public records law.

There is nothing sensitive about it. It simply provides proof that the employer has insurance, and that is key information for the public to have. With as many as 30,000 employers with no insurance (according to a recent article in the News and Observer, and this information was revealed by gaining access to these public records) there is now more reason than ever to maintain the public status of this information. So, why would the legislature want to make this information exempt from public disclosure? Something strange is happening here. The legislation is on the Governor’s desk to be signed. It will be interesting to see if she signs it.

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)).

 

Could more effective workers' compensation law have kept Mickey Mantle's dad alive?

Mickey Mantle's father never lived to see his son's incredible career in baseball.

In The Last Boy: Mickey Mantle and the End of America’s Childhood by Jane Leavy, the author goes into great detail about Mickey’s father, Mutt Mantle, who worked in a lead mine in Commerce, Oklahoma in the 1930s and 40s. Silicosis (a fibrosis of the lung caused by rock dust) was the feared disease of this type of employment. If an x-ray came back positive the employee was fired the same day and could never be hired by another mine.

“When they get sick and can’t work, we throw them in the dump heap.”

An agent for the employer was quoted as saying, “When they get sick and can’t work, we throw them in the dump heap.”

Mutt refused to go to a doctor until it was too late. He died at the age of 40 in 1952, just one year after his son became a Major League player.

Mantle’s father never lived to see his tremendous success as one of the best baseball players of all time.

The mine was closed in 1970. The Environmental Protection Agency (EPA) listed this job site as the most toxic waste site Continue reading

The 1911 Triangle Waist Co. – What’s changed since then?

Have conditions really improved for workers since the deadly 1911 Triangle Waist Co. fire?

One hundred and forty six garment workers died on March 26, 1911 in a fire that was New York’s deadliest workplace disaster until the attack on the World Trade Center 100 years later. Fire doors were locked. Trapped workers either jumped to their deaths from the 9th and 10th floors, or were consumed by the flames of the Asch Building (renamed the Brown Building and now owned by New York University) at Washington Place and Greene St. near Greenwich Village. Over 20,000 people walked in the funeral procession to honor those workers who lost their lives, many of them young immigrant women who barely spoke English.

Over the last 100 years, although workplace safety regulations were created to prevent such disasters, they still occur. 

In the book Triangle: The Fire That Changed America. (Grove Press, 2003) by David Von Drehle, the horrific workplace conditions of 1911 were described on page 3:

…the 146 deaths at the Triangle Waist Company were sensational, but they were not unusual. Death was an almost routine workplace hazard in those days. By one estimate, one hundred or more Americans died on the job every day in the booming industrial years around 1911. Mines collapsed on them, ships sank under them, pots of molten steel spilled over their heads, locomotives smashed into them, exposed machinery grabbed them by the arm or leg or hair and pulled them in… workplace safety was scarcely regulated, and workers’ compensation was considered newfangled or even socialist.

Over the last 100 years, although workplace safety regulations were created to prevent such disasters, they still occur. Continue reading

If Obama’s Affordable Care Act is upheld, it won’t be the first time government has forced companies to provide insurance


Back in 1917 the Supreme Court ruled that Workers' Compensation should protect workers like these men.

Last week we posted on how Obama’s Affordable Care Act, which would require that every American must have health insurance, has been struck down by a U.S. Circuit Court. However, the Obama administration and 26 states filed appeals against this ruling, and the Supreme Court is widely expected to rule on the appeal this fall.

The fact of the matter is, if Obama’s Affordable Care Act is upheld, it wouldn’t be the first time that the government has forced companies to provide insurance for people. The constitutionality of mandatory insurance has been challenged in courts and upheld at the highest level.

The argument that state-mandated insurance for injured workers was unconstitutional was made after an employee was killed in 1914. The workers’ compensation system, in exchange for requiring employers to compensate employees for work-related injuries, exempts employers from liability beyond the limits of the insurance. Employers in 1914 said the United States Constitution prohibited state governments from forcing employers to buy such insurance. Some even called it socialism. Continue reading

Will the Supreme Court’s Decision on Obama's Healthcare Plan be the End of Workers' Compensation?

On September 28th, 2011, the Obama administration and 26 states filed appeals to a lower court ruling that struck down a provision of the Affordable Care Act (the Obama health care law) that required every American to have health insurance.

The Supreme Court is widely expected to rule on the appeal this fall, and its ruling may put the workers’ compensation system in jeopardy.

Dismantling the workers’ compensation system would make it much more difficult for the vast majority of workers with injuries to receive compensation. 

The workers’ compensation system is a mandatory insurance system which makes receiving compensation for a work-related injury simpler, faster and more certain than relying on the courts. Workers’ compensation makes it easier for all workers to get money for treatment of work-related injuries, since they don’t have to go to court to get it. It also limits the amount of money that the most seriously injured workers can receive.

If the Supreme Court decides that it is unconstitutional for the government to force all Americans to purchase health insurance, Continue reading