Category Archives: Workers’ Compensation

Facebook Postings Hurt Workers’ Compensation Claims

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

While Facebook is extremely popular and used by over a billion people every day, no Facebook posting has ever helped an injured worker in a workers’ compensation claim. On the contrary, use of a Facebook page poses real dangers for injured workers pursuing workers’ compensation benefits.

Since Facebook is a public site, anything posted can be used by respondent insurance companies in claims denial. Even the most benign postings (birthday parties, family gatherings, etc.) can pose problems. For example, a grandparent lifting a 30 pound grandchild when doctors have imposed a 10 pound lifting limit could damage a claim. Additionally, nothing prevents an Administrative Law Judge from looking at a Facebook page.  Even innocent posts may be subject to misinterpretation. A picture of the worker riding a motorcycle or fishing taken prior to the injury but posted afterward could place the seed of doubt in an ALJ’s mind that the worker is not as limited as he claims. The best advice is to be extremely careful about what is posted because “friends” are not the only one who can access your Facebook page.

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.

“Cost-Shifting” Exposed: How Injured Worker Medical Care Decisions Are Made (And Who Pays)

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

Medical coverage is a topic on everyone’s mind. Obamacare, while controversial, has started a real dialogue in this country regarding health care. Regardless of whether you are in favor of the current law, most Americans want affordable health care for themselves and their families.

Many employers pay for a substantial amount of their workers’ premiums as a benefit to them, and take this into consideration when making salary decisions due to the high cost, thereby leaving workers to pay for all or some of their medical coverage. Sometimes insurers pay for benefits that are not their responsibility because the proper entity refuses to pay. This is known as cost shifting. As a practitioner in the field of Workers’ Compensation, this idea of cost shifting has become an all too common occurrence. 

By way of background, as a result of social reform, most states enacted some form of Workers’ Compensation legislation in the early 20th Century. In exchange for timely payment of medical and indemnity benefits, workers gave up the right to sue their employers. In 2007 in New York, there was a series of further reforms that led to compromise between labor groups, the insurance industry and the Business Counsel. There was an increase in the amount of weekly benefits to injured workers to conform with the State average weekly wage (now a maximum of approximately $800 per week) in exchange for a limit on the amount of weeks an injured worker is entitled to receive these benefits.  Additionally, medical treatment guidelines have been introduced with the premise that they would streamline costs and get injured workers faster and more effective medical care. These guidelines are based upon the principles of Evidence Based Medicine (EBM), which is the use of clinical trials and data to determine whether a specific treatment should be recommended for a specific diagnosis.  It is sometimes referred to as “cookbook” treatment. 

In New York, the Court of Appeals recently ruled by a 4-3 margin that any treatment not specifically included and pre-authorized is presumptively unnecessary. In other words, if a treatment requested is not within the medical treatment guidelines, it is denied. This takes the decision making out of the hands of the treating physician who is really in the best position to determine what treatment would be most beneficial for patients. In order to overcome this presumption, the doctor now must engage in what has been seen in most cases as an exercise in futility to request a variance to overcome this presumption.

The New York Committee for Occupational Safety and Health (NYCOSH) reported that the New York State Workers’ Compensation Board received 202,643 variance requests in the first 10 months the guidelines were implemented. A quarter of the requests were rejected by the Board immediately. The rest can lead to protracted litigation. As a result, in many instances injured workers will now shift the cost to another party, such as their own private insurance, Medicare or even worse, pay for the treatment out of pocket. It is the path of least resistance. We all pay an additional price for medical costs borne by group health insurance carriers, Medicaid, and Medicare that should in fact be paid by Worker’s Compensation insurers. This cost shifting may increase Workers’ Compensation insurance profits, but it hurts both the employers’ and the employees’ bottom line. Injured workers don’t stop needing treatment just because their medical claim is denied. Someone has to pay for the cost of lost time and medical treatment. It is time that the proper party step up and take responsibility.

 

 

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.

McCrory’s Fraud Statistics Questioned by Experts

Governor Pat McCrory

According to N.C. Governor Pat McCrory, workers’ compensation claims cause the state to spend about $150 million per year. He claims that research by CorVel, the state’s administrator for state employee claims, shows that roughly 40% of the workers’ compensation claims are related to abuse or fraud.

When attorneys, professors, and state employee representatives questioned this number, State Personnel Director Neal Alexander and McCrory spokesman Josh Ellis were unable to provide any statistical support for this claim.

It is uncertain why the Governor would make a serious allegation of this nature without the numbers to back it up, but if the goal is to cut fraud and abuse in the system he may want to start with evaluating why so many employers are “gaming” the system by misclassifying their employees as independent contractors, and not providing any workers’ compensation coverage at all. Taxpayers often end up footing the medical bills for disabled employees because the state has no uninsured fund.

An investigation by The News & Observer newspaper revealed last year that N.C. was losing approximately $467 million a year in lost tax revenue because of employer misclassification. That is real and tangible fraud, and legislation is needed to give state agencies the tools to go after these cheaters. 

For more information please read this article on WRAL by Mark Binker and Cullen Browder.

Being Mortal, a book about end-of-life medical care, by Atul Gawande

All of us need to talk honestly about matters that concern us. Talking honestly about end-of-life choices is essential, and Atul Gawande (a surgeon in Boston) makes that clear in his book Being Mortal. Are the desperate surgical procedures and expensive treatments, which usually reduce the quality of life of a terminally ill patient, worth it? If discussed openly and honestly early in the process, would the patient choose to die in a hospital or at home with his family under the care of hospice?

Once one becomes seriously ill, even at an early age, perceptions change. What becomes important are the people in your life. The same is true as you approach death as an older person, and those last few months or years can be highlights of dignity, or they can turn into medical nightmares. “It’s perception, not age, that matters most.”

Dr. Gawande gives examples including the death of his own father, to illustrate different scenarios and notes that, “25% of all Medicare spending is for the 5% of patients who are in their final year of life, and most of that money goes for care in their last couple of months and is of little apparent benefit.” He readily admits doctors don’t ask the hard questions and he is changing his ways as a surgeon, but he wants the patient and family to get there first. This book is worth reading in order to understand, to contemplate, and to help make wise decisions about end-of-life issues.

For a more in-depth analysis, go to NPR Frontline.

File a Workers’ Comp Claim – Get Fired

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

A new study from the Workers Compensation Research Institute (WCRI) indicates trust or mistrust in the work relationship plays a significant role in the outcome of a workers’ compensation claim.  In a recent benchmark study in Iowa by WCRI, almost four out of ten workers interviewed reported they were concerned they would be fired or laid off after they were injured. 

The Iowa study reflects similar results in Wisconsin and other benchmark states.  All workers who were interviewed received workers’ comp benefits and experienced more than a week of lost work time.  Additional findings noted two-thirds of the injured Iowa workers had other health conditions (having smoked for ten years or had diabetes or lung conditions).  Obviously those with significant pre-existing conditions had predictably worse results.

Workers’ Compensation Medicare Set-Aside Accounts and Supplemental Coverage

When an injured worker is a Medicare beneficiary due to age or disability, a Workers’ Compensation Medicare Set-Aside (WCMSA) account will often be required as part of a settlement  of their workers’ compensation claim.  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 can 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 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 advisable 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 MSA, 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 MSA 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 MSA funds cannot be used to pay for the plan itself.

 

For more detailed information about workers’ compensation MSAs and supplemental coverage, visit www.Medicare.gov.

 

Are You Misclassifying Your Workers and Committing A Fraud?

To avoid misclassifying your workers follow these tips:

  • Don’t make assumptions. If you are a business owner you should consult a tax professional and an attorney to ensure you are complying with IRS and labor laws when hiring staff or contractors.
  • If contracting with staffing companies or labor brokers, make sure those agencies are properly classifying its workers as employees. Companies can be held responsible for labor violations of their contractors.
  • Consider filing a SS-8 Form (Determination of Worker Status) with the IRS and ask that agency to determine whether the worker is an employee or independent contractor.
  • Be aware that contractors set their own schedules and pricing, and perform the work as they see fit. If you want control over these areas, make sure you hire an employee.
  • Check the workers’ compensation policies of any subcontractor you hire. (Look out for “ghost policies,” which aren’t designed to cover known employees.)
  • Don’t rely on excuses such as “He only works a few days a week.” “She agreed to be an independent contractor.” “They use their own tools.” “He’s done this for so long he doesn’t need my supervision.”

Thanks to McClatchy DC!