Redact Social Security Numbers

Many states have enacted laws to protect the disclosure of an individual’s social security number and other personal identifying information due to a rise in identity theft; however, the practice of collecting the information by agencies has continued, and agencies that collected social security numbers before January 1, 1975 are still allowed to do so. See The Privacy Act of 1974, 5 U.S.C. § 552a (2015).

In North Carolina, for example, when filing an initial claim with the North Carolina Industrial Commission, an injured worker is required to provide his or her social security number on the form. The North Carolina Industrial Commission is required under N.C. Gen. Stat. § 132-1.10 to take steps to prevent an individual’s social security number from becoming public. However, an individual’s social security number can become publicly available when an injured worker appeals a decision by the North Carolina Industrial Commission and he or his attorney fails to redact the information from documents filed with the court, as required by N.C. Gen. Stat. § 132-1.10(d). Rules 9(a)(4) and 9(d)(3) of the North Carolina Rules of Appellate Procedure also require that social security numbers be deleted or reacted from any document in the record on appeal and copies of exhibits.

Until agencies begin using alternate identifiers, attorneys should examine every document carefully before filing it with the court to redact or remove social security numbers.

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

Traffic-Related Occupational Fatalities Up 9%

In 2015 (the most recent year for statistics), traffic-related fatalities saw the largest percentage increase in nearly five decades. According to the U.S. Department of Transportation, there were 35,092 traffic-related fatalities in 2015, a 7.2 percent increase from 2014. Of the 35,092 traffic-related fatalities, 1,264 were occupational fatalities.

Traffic-related fatalities made up the largest category of occupational fatalities in 2015 and were up 9 percent from 2014. According to the Bureau of Labor Statistics, in 2015 more than one out of every four occupational fatalities was the result of a roadway incident. Nearly half of the occupational traffic-related fatalities involved a semi, tractor-trailer, or other tanker truck.

Human factors contribute to the majority of crashes. Almost one out of every three fatalities involved drunk drivers or speeding, and one out of every ten fatalities involved distraction. According to National Highway Traffic Safety Administration Director, Dr. Mark Rosekind, “The data tell us that people die when they drive drunk, distracted, or drowsy, or if they are speeding or unbuckled.”

Removing The Safety Net: A National Trend Of Benefit Reductions For Injured Workers

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

Benefits for injured workers continue to be under attack throughout the country. In New York, there have been a number of changes in the last decade, all in the name of reform. These reforms were encouraging at first as they increased the weekly benefits for some higher wage-earning injured workers for the first time in decades. They also created medical treatment guidelines under the guise of allowing injured workers to obtain pre-approval on certain medical treatments and procedures. 

Unfortunately, the changes also resulted in reduction of benefits for many injured workers. Monetary benefits were capped, so injured workers deemed partially disabled could only receive a certain number of weeks of benefits regardless of their ability to return to their pre-injury jobs. The determination of the degree of disability has become a battle involving multiple, lengthy depositions of medical witnesses where the outcome is how long injured workers get wage replacement or whether they receive lifetime benefits. The criteria is not whether injured workers can return to their prior employment, but whether they are capable of performing any work at all, regardless of their past job experience or education. The battle is not limited to the amount of weeks of benefits injured workers can receive, however. The medical treatment guidelines, touted as getting injured workers prompt medical treatment, discounts the fact that if the requested treatment is not listed within the guidelines, it is denied and the burden is placed upon injured workers and their treating doctors to prove the requested treatment is necessary.

Other changes designed to cut administrative costs and court personnel include reducing the number of hearings held, thereby denying injured workers due process. There also has been a reduction in the number of presiding judges, and in many hearing locations the judges are not even at the site but are conducting hearings through video conferencing. At the end of October, the Board announced a new procedure authorizing the insurance carrier to request a hearing on whether injured workers should be weaned off of opioids that are used by many medical providers to treat chronic pain. While everyone would agree that the misuse of prescription pain medication is an epidemic in this country, many question whether the insurance industry really has the injured workers’ best interest at heart.    

As an attorney who has represented injured workers for more than 26 years, I have seen many workers successfully transition from injured worker back into the labor market. It is very encouraging to note that for many people the system has worked. They receive their treatment, which may involve physical therapy, surgery, pain management, prescription therapy, or whatever else their treating physician recommends. They are paid a portion of their prior income and after a period of convalescence, they are able to return to work. Some injured workers, however, are not so lucky. The decisions about what happens to those unable to work have been left to those who seem to care more about business and insurance industry profits. 

Just about one year ago, 14 people were killed and 22 more injured when ISIS-inspired terrorists went on a shooting rampage in San Bernardino, California. The nation and the world were horrified to hear about this tragedy and the story was in the news for many weeks. Now a year has gone by and many of the survivors have complained about treatment being denied and prescription medication being cut off.  While many injuries happen quietly without the headlines seen in the California attack, there are many similarities. It seems that when an initial injury occurs, there are many good protections and benefits in place. However, as time goes on and costs increase, injured workers are looked upon as enemies to defeat or to forget about. Unfortunately for injured workers and their families, they don’t have this luxury and they don’t have the means to fight.

Most people don’t think it will ever happen to them. That is what most of my clients have thought as well.

 

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. 

 

WA L&I’s Stay at Work Program Hits Major Milestone: > 20,000 Workers Helped

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

A Department of Labor & Industries (L&I) program that helps support light-duty jobs after workplace injuries has reached two major milestones. The Stay at Work Program has now helped more than 20,000 injured workers and provided more than $50 million to reimburse businesses that take part. 

The program pays employers for part of the costs associated with offering light-duty jobs to injured workers. It helps defray some of the expenses so businesses can allow eligible employees to keep working during their recovery and stay connected to their workplace.  

“This return-to-work incentive is changing the workers’ compensation system, and more importantly, changing workers’ lives and improving the bottom line for employers,” said Vickie Kennedy, L&I’s assistant director of Insurance Services.   

To date, more than 4,500 employers have used the program to offer light-duty jobs to help thousands of workers return to work as part of their recovery from a workplace injury or illness.

Supporting Recovery

Mao Pen, an industrial seamstress at Seattle Tarp, is one example of those helped by the Stay at Work Program. Pen broke her left elbow and forearm last June when she fell backwards while helping coworkers stretch a large tarp. “It was a horrible break,” said Chris Perlatti, president of Seattle Tarp, where Pen has worked for 20 years.

After having surgery and staying home for three months, Pen wanted to come back to work. “And we wanted her back,” said Perlatti. “She’s a valuable employee and a sweet individual. She’s part of our work family.”  

Perlatti said the answers came when L&I’s occupational nurse Deirdre Staudt started talking to his staff about how light duty could help both Pen and Seattle Tarp. 

Through the Stay at Work Program, Seattle Tarp could get reimbursed for half of Pen’s light-duty wages (up to 66 days and $10,000), along with costs for training, equipment, tools, and any clothing needed for the light-duty work.

“This is a phenomenal program,” said Perlatti. “I wish we had known about it before one of our workers got injured.”

Changing Workers’ Compensation

“Instead of writing a check to the worker to replace some of their wages while they stay at home to recover, we’re reimbursing employers to help workers return to work as soon as medically possible,” said Kennedy, adding that the workplace connection offers financial, social and psychological support that a worker needs to improve recovery times.   

Return-to-work initiatives like the Stay at Work Program, efforts to ensure quality medical care, and other improvements in the workers’ compensation system are helping an estimated 560 injured workers each year avoid possible long-term disability. 

Together, these efforts have saved $700 million in estimated wage replacement, disability and medical costs to Washington employers, workers, and the workers’ compensation system. More importantly, these efforts are helping injured workers heal and return to productive lives. 

L&I encourages employers to establish return-to-work programs at their worksites. Employers can start by creating light-duty job descriptions and using the Stay at Work incentives to offset costs associated with workplace injuries.

There’s more information online about the Stay at Work Program (Lni.wa.gov/StayAtWork).

 Photo credit: kenmainr via Foter.com / CC BY-NC-SA

Age Discrimination Claims in Workers’ Compensation Settlements?

When an employee settles a workers’ compensation claim, the employer often wants to terminate the employee and is cautious because of potential age discrimination. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. (2015), prohibits companies with 20 or more employees from discriminating against a person (40 years of age or older) because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

An individual who has been discriminated against because of his or her age may be entitled to back pay, reinstatement, hiring, promotion, front pay, liquidated damages, and court costs and attorney fees.

To avoid potential discrimination claims after a workers’ compensation settlement, the employer often seeks an ADEA waiver at the same time. For an ADEA waiver to be enforceable, it must:

  • Be in writing and understandable;

  • Specifically refer to ADEA rights or claims;

  • Not waive an individual’s future rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the individuals is already entitled;

  • Advise the individual to consult with an attorney before signing the waiver;

  • Provide the individual with a certain amount of time to consider the agreement:

    • 21 days for individual agreements

    • 45 days for group waiver agreements

    • A “reasonable” amount of time for settlements of ADEA claims

  • Provide a period of at least 7 days following the execution of the agreement, in which the agreement is not effective or enforceable, in which the individual may revoke the agreement.

Some termination agreements may not be enforceable, and the individual may have a valid claim to pursue under the ADEA.

States Will #RaiseTheWage for More Than 2 Million Workers

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

By  on November 10, 2016 – –

It has been almost four years since President Obama called on Congress to increase the federal minimum wage. While Congress has refused to take action, this hasn’t dissuaded states and localities from stepping up and giving American workers the raises they need and deserve. Election Day was no exception. Voters in Arizona, Colorado, Maine and Washington cast their ballots to ensure that hard work is rewarded with a fair wage.

The resounding win for minimum wage ballot initiatives in these states will collectively result in nearly 2.2 million workers getting a raise.*

  • In Arizona, the minimum wage will be raised to $12 by 2020, lifting the earnings of 779,000 workers. Flagstaff passed an even bigger raise − $15 by 2021.
  • In Colorado, the minimum wage will be raised to $12 by 2020, lifting the earnings of 477,000 workers.
  • In Maine, the minimum wage will be raised to $12 by 2020, lifting the earnings of 181,000 workers.
  • In Washington, the minimum wage will be raised to $13.50 by 2020, lifting the earnings of 730,000 workers.

The Election Day results are another reminder that for most Americans, raising the minimum wage isn’t a partisan issue but rather a commonsense decision. Twenty-nine states and the District of Columbia – home to 61 percent of all U.S. workers − have minimum wage rates above the federal rate of $7.25.

Voters and policymakers in these states understand what labor economists have spent decades researching and confirming: minimum wage increases have caused little to no significant job loss, but they have reduced employee turnover, strengthened families’ finances, and ultimately helped grow our economy. As our economy continues to recover from the greatest economic crisis in generations, we should all share in the prosperity we are building. And there is no easier way to do that than by raising the minimum wage.

By casting their ballots for a fair wage, the residents of Arizona, Colorado, Maine and Washington renewed President Obama’s call to take action. It’s time raise the minimum wage for all workers in America.

Dr. Heidi Shierholz is the department’s chief economist.

*Source: The Economic Policy Institute.

Note: In Arizona and Washington, the approved minimum wage ballot initiatives also require employers to provide paid sick leave to their employees. Expanding access to paid sick leavehas been another top priority of the Obama administration, and these ballot victories will help thousands more workers be able to address their health needs without putting their or their families’ economic security at risk.

Drug Formularies, Part 2: Pharmacy Benefit Managers and Drug Prices

Mylan CEO Heather Bresch testified before the House Oversight Committee about her company’s increase in the price of life-saving EpiPens by more than 500 percent since 2007.

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

This fall, most Americans were outraged at revelations that the price of life-saving EpiPens had increased by 600 percent since 2007. The anger over the drastic price increase for EpiPens focused attention on the role that pharmacy benefit managers play in the increase of drug prices. Pharmacy benefit managers administer drug formularies, so the use of drug formularies should also be questioned on prescription price control in addition to the question of whether drug formularies shift costs to more expensive treatment.

Pharmacy benefit managers have been praised for helping negotiate drug discounts. However, pharmacy benefit managers have been criticized on the same grounds because their profitability depends in large part on being able to pocket a percentage of the discount that they negotiate. This is a lucrative business. Express Scripts is described by Wall Street-types as a “pure play” pharmacy benefit manager. In the last quarter, Express Scripts made $722.9 million in profit, a 9 percent year-over-year increase.

In addition to being criticized for benefiting from the increase in pharmacy costs, pharmacy benefit managers have also been criticized for having conflicts of interest. Pharmacy benefit managers run drug formularies. However, since pharmacy benefit managers negotiate discounts with specific drug firms, pharmacy benefit managers have an incentive to put those drugs on drug formularies. These types of arrangements have drawn the attention of Preet Bharara, the high-profile United States attorney for the Southern District of New York. In 2015, Bharara settled a charge against Express Scripts for $45 million. The settlement came after an Express Scripts unit participated in a kickback scheme involving Novartis under the False Claims Act and the Anti-Kickback Statute.

In fairness to pharmacy benefit managers, there may be other factors driving increased prescription prices. Recently, former Democratic presidential candidate and current U.S. Sen. Bernie Sanders wrote a letter to the Federal Trade Commission alleging collusion among pharmaceutical companies in regards to insulin prices. Insulin is a generic drug, and generic are cheaper than so-called brand-name drugs. However, the increase in insulin prices is far from the sole example of drastic increases in generic drugs.

In 2015, the National Council on Compensation Insurance (NCCI) released a report on prescription drug prices in workers’ compensation. On page 36 of this report, NCCI pointed out that four of the 10 drugs most responsible for the increase in drug prices were generics. In 2014, the price of generic Oxycodone-Acetaminophen rose 35 percent, Oxycodone’s price rose 60 percent, the price of generic muscle relaxer Baclofen rose 86 percent, and the price of generic Morphine Sulfate ER rose by 25 percent.

There is strong evidence that pharmacy benefit managers do little to control prescription drug prices. There is also strong evidence that pharmacy benefit managers benefit from increases in drug prices. If advocates of workers’ compensation reform want to expand the use of drug formularies, they need to explain to policy makers how the pluses of pharmacy benefit managers outweigh the myriad problems related to pharmacy benefit managers.