Monthly Archives: October 2013

What Football Can Teach White-collar Employees About Layoffs, Severance

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

With football season upon us, I would like to use football to explain some common situations that employees face.

I get a lot of calls from white-collar professionals who have long careers with a company but then are laid off a few months after a new boss is hired. This happens a lot in football when a general manager/athletic director replaces a head coach and the head coach fires the previous coach’s assistant coaches. White-collar employees in middle-management positions are essentially the equivalents of assistant coaches in football. In the world of football, it is assumed that a new head coach can bring in his new assistants. The same assumption holds true in the business world.

Assistant coaches are oftentimes “bought out” of their employment contracts. Sometimes white-collar professionals have employment contracts, but more often than not they do not. Sometimes professionals are offered severance agreements, but unless there is an employment contract, that severance is not a buyout. Employers are also under no obligation to offer severance. If severance is offered, that doesn’t necessarily mean that an employer wrongfully terminated the employee.

Of course, no employee can be terminated because of age, disability, sex, race, nationality, or in retaliation for engaging in a protected activity like filing for workers’ compensation or filing with OSHA. But even if there is some appearance of wrongful motivation on behalf of the employer, the employer can still defeat a potential lawsuit if they have a legitimate business reason for terminating the employee. Going back to a football analogy, if the new head coach wants to switch an offensive or defensive scheme, they have the right to hire the person they choose. The fact the new hire might be less effective than the old hire is not a decision that a court will second guess in a wrongful termination. Sure, if there is something else wrongful going on, it is something a court or a jury could consider, but in a case where there is a recent change in management, employees will have difficult time overcoming the assumption that the new boss just wants to “put in their team.”

Safety Violations Matter: Wisconsin Court Reaffirms Basis for Employer Safety Penalties

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

In most instances, an injured worker cannot sue her employer for a workplace injury. However, if an injury results from an employer’s reckless, intentional, or illegal action, an injured worker can bring a separate claim against the employer directly. An employer’s violation of the Wisconsin state safety statute  or of any Department of Workforce Development (DWD) safety administrative rule which causes a worker’s injury can trigger a 15% increased penalty for the employer (Section 102.57 of the Worker’s Compensation Act). This increased compensation is based on the amount of compenstion paid by the insurance carrier and is capped at $15,000. The big deal is that the safety violation penalty is not paid by the insurance company–it is paid directly from the employer’s pocket (which also makes for increased litigation of these claims!).;

In a win for injured workers, a recent Court of Appeals case (Sohn Manufacturing v. LIRC), decided on August 7, 2013, reaffirmed the ability of the Worker’s Compensation Department to hold employers responsible for unsafe behavior. In the Sohn case, the worker operated a die cutter machine, and the employer instructed her to clean it while the anvil rollers were running. The worker suffered a severe hand injury when her hand was pulled into the machine. A state investigator found an OSHA violation as well as a violation of the state safety statute (Section 101.11). An administrative law judge and the Labor and Industry Review Commission affirmed an award of a safety violation under 102.57 of the worker’s compensation act.

The employer challenged this ruling in court, arguing that the federal OSHA law preempted Wisconsin’s ability to enforce safety procedures under Section 102.57 and that an OSHA investigation cannot form the basis for a state safety violation claim injured workers should be thankful that the Court of Appeals rejected both of these arguments. First, the Court explicitly stated that OSHA does not preempt Wisconsin’s ability to award penalties under Section 102.57, as the safety violation statute is not an enforcement mechanism and OSHA was not intended to impact state worker’s compensation rules. More importantly, the Court indicated that an OSHA violation of a federal workplace safety regulation can be used as basis to demonstrate an employer’s violation of Wisconsin’s state safety statute (Section 101.11).

While the decision was not surprising, it reaffirms the state’s commitment to holding employer’s accountable for safety violation rules under the worker’s compensation system. Workers and practitioners also should remain aware of any OSHA violation found post-injury. A document demonstrating a federal OSHA violation can form the immediate basis for a safety violation under Section 102.57.

Senior Care Workers Are Victims of Wage Violations

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

I found a recent story from California very troubling. The nation’s largest assisted living company agreed to pay $2.2 million to settle claims for underpayment and mistreatment of the workers who take care of the elderly. Lack of proper overtime pay, lack of mandatory meal and rest periods, and improper payment of mandatory training are examples of the mistreatment. 

The victims were the least-paid workers who did the hardest physical labor, according to the story. These people who bathed, fed, and provided the most hands-on care for our frail, elderly loved ones were denied wages and overtime pay for 7 years, according to the terms of the settlement.

Care for the old, frail and disabled is big business. Nearly 750,000 people are receiving assisted living care, according to the ProPublica article. And the industry is just going to expand, as folks are sicker but have higher expectations for care, while also living longer, according to this article from NPR

Fair treatment of our elders’ caregivers is essential. The wages are low, as most difficult jobs often are. Violating employment rules and statutes for businesses to save money and make larger profits seems particularly offensive for these workers. And they are not often protected from or informed of the hazards of their jobs, many of which can have serious consequences for workers’ health and well being, according to these blog posts from respected colleague Jon Gelman, an attorney in New Jersey: Protecting Healthcare Workers is a Goal of NIOSH and NIOSH Acts To Prevent Lifting Injuries For Home Healthcare Workers.

Congratulations to the workers and their representative who stood up to this very large employer that has around 500 facilities in the United States. It takes courage and tenacity to fight battles like this.

All of us who care about workers need to be aware that these are battle worth fighting. And that these battles can be won.

Ketamine Therapy: Wonder Drug for RSD/CRPS and Depression?

Lately there’s been a lot of buzz surrounding a drug known as ketamine. Some workers’ compensation patients with chronic, neuropathic pain [i.e. Complex Regional Pain Syndrome (CRPS) and Reflex Sympathetic Dystrophy (RSD)] are lauding ketamine as a new wonder drug and a few pain clinics are now prescribing ketamine therapy to treat certain pain conditions when other treatment is not effective. Yet, ketamine is by no means a new drug. Developed in the 1960s, ketamine has typically been used as a pediatric anesthetic or by the military in emergency surgery situations (think Vietnam). It’s a serious medication and is typically administered intravenously in the clinic.

Clearly, ketamine is a potent drug. Not to mention that it’s a derivative of Phencyclidine (“PCP” or “Angel Dust”). On the street, ketamine is called “Special K” and is highly sought for its hallucinogenic side effects. Yet, now it’s being prescribed in certain contexts for treatment of major depression and chronic pain conditions (i.e. CRPS/RSD) and being hailed by some as an effective treatment modality where others have failed. 

The press surrounding ketamine lately has largely been optimistic. Last year, NPR broadcast a piece on Talk of the Nation featuring ketamine. The program discussed ketamine’s potential as a fast-acting drug to relieve major depression, particularly when other medications were no longer effective. A few months ago, Time ran an online article entitled “Club Drug Ketamine Lifts Depression in Hours.” Based on the title alone, what depression sufferer wouldn’t want to try ketamine? The article reported that “[a]fter receiving a single intravenous (IV) does of ketamine, 64% of patients reported fewer depression symptoms within one day compared to 28% of those given midazolam – an anesthetic drug that was used as a control.” Even CBS News ran an article earlier this year stating that “[k]etamine may be quick, effective treatment for untreatable depression.” 

RSD patients and pain clinics are reporting similar fast-acting pain relief stories. One patient reported that ketamine therapy reduced her pain to a manageable 5 out of 10, on a pain scale of 1 to 10 with 10 representing the most amount of pain imaginable (see article). Another patient who had full-body CRPS had undergone several pain treatment modalities. She had tried Bier blocks, spinal blocks, and a spinal cord stimulator. Nothing relieved her pain. However, after about a year on the ketamine treatment program, she was able to mow her lawn for the first time in ten years. 

Ketamine is a controversial topic in the medical community. There is not much research on the long-term effects of ketamine use. Some say that chronic use of ketamine may cause verbal, short-term memory and visual memory loss. Some research indicates that the effects on the brain are irreversible. Currently not many clinics are offering ketamine therapy. Clearly the potential benefits could be tremendous and RSD/CRPS treatment could be revolutionized. However, as with any form of therapy, patients should discuss the benefits and risks carefully with their doctor.

 

THE TRUTH ABOUT CHEATIN’ AND LYIN’

Today’s post comes from guest author Susan C. Andrews, from Causey Law Firm.

     You hear it all over the place these days: there are lots of people out there who lied and cheated to get Social Security Disability (SSD) benefits. I’m here to tell you that is a myth. You don’t have to drill down very far to find out differently. I should know, from where I sit, as an attorney who handles SSD cases. Where I sit most days is in front of a big pile of medical records—I mean HUNDREDS of pages of medical records, all belonging to the same person. You see, some of my clients have just one great big medical issue—like cancer, or Multiple Sclerosis, or Parkinson’s, and many of my clients have multiple medical problems. Either way, they have spent more time in doctors’ offices and hospitals than any of us would ever choose to do.

 There is a mistaken notion floating around out there that a person can just waltz into Social Security, claim to be disabled, and voila—he’s granted benefits!

     There is a mistaken notion floating around out there that a person can just waltz into Social Security, claim to be disabled, and voila—he’s granted benefits! Nothing could be further from the truth. The burden of proof is on the claimant (the person claiming benefits) to show that he or she is disabled from engaging in substantial gainful activity (SGA) for a period of at least 12 continuous months. More about SGA in a bit. That proof starts with medical records, and diagnoses made by doctors. Self-diagnosing just doesn’t cut it, even if you’ve read up on your condition all over the internet, and you’re absolutely positive you know what’s wrong with you! Sometimes we get calls from people who do not have health insurance, and even though they have a serious medical condition, they have been unable to access much in the way of health care. Sadly, some of those folks who should be able to qualify for benefits do not, because they simply do not have the necessary treatment records to document the seriousness of their conditions.

     As mentioned above, Social Security’s definition of disability is the inability, due to one or more medical impairments, to engage in substantial gainful activity for a period of at least 12 continuous months. Social Security defines SGA in part by a dollar figure that usually goes up a little every year. In 2013 it is $1,040. Social Security looks at a person’s GROSS earnings, not net earnings or take-home pay. So if I’m able to gross $1,040 or more per month, I can engage in substantial gainful activity and I do not qualify for SSD. This concept is important especially for individuals with progressive conditions.

     Take, for example, a person diagnosed with Parkinson’s. One famous example is the actor Michael J. Fox. His Parkinson’s affects his functioning, but he is still working. Many people with progressive conditions continue to work for some time after receiving their diagnosis. At some point, progression of the disease may force some of them to go to part-time work. When the hours worked decrease, their earnings may no longer qualify as SGA. Or—and I see this a great deal in my practice—some people begin to have more bad days than good days, and work performance is impacted. There are days so bad that they really have no choice but to call in sick. Then this begins to happen more frequently than a couple of days a month. In my experience, at that point most employers become very unhappy campers. Not only are the employees taking sick leave faster than they are accruing it, they can’t tell their employers ahead of time which days they will wake up with an exacerbation of symptoms that keep them in bed, or at least in their bathrobe, all day.

     Which brings me to my final point: Many of my clients look okay to the casual passer-by. Take the guy with a serious heart problem. Well sure, if I followed him around for half a day, I’d see that he can barely exert himself without getting out of breath. But if I just passed by, he might look fine. And the day he spends at home in his bathrobe because he can hardly catch his breath—I’m not going to see him at all when he’s having one of those really lousy days. His condition may be largely invisible.

     To sum it up, I’d say there’s a bit of wisdom in being slow to judge. Thank goodness we take our good health for granted—it’d be a miserable existence if I spent too much time worrying about getting sick before it actually happened. But, of course, serious illness can strike any of us when we least expect it. And on the other side of that defining moment, the world can look a whole lot different.

 Photo credit: Gemma Grace / Foter / CC BY-NC

UN Announces Treaty to Restrict Use of Mecury

Today’s post comes from guest author Jon Gelman, from Jon L Gelman LLC.

Over 140 governments meeting at a United Nations forum in Geneva have agreed to a global, legally-binding treaty to address mercury, a notorious heavy metal with significant health and environmental effects.

The Minamata Convention on Mercury – named after a city in Japan where serious health damage occurred as a result of mercury pollution in the mid-20th Century – provides controls and reductions across a range of products, processes and industries where mercury is used, released or emitted.

These range from medical equipment such as thermometers and energy-saving light bulbs to the mining, cement and coal-fired power sectors, according to a news release issued today by the UN Environment Programme (UNEP), which convened the negotiations.

“After complex and often all-night sessions here in Geneva, nations have today laid the foundations for a global response to a pollutant whose notoriety has been recognized for well over a century,” said UNEP Executive Director Achim Steiner.

“Everyone in the world stands to benefit from the decisions taken this week in Geneva, in particular the workers and families of small-scale gold miners, the peoples of the Arctic and this generation of mothers and babies and the generations to come. I look forward to swift ratification of the Minamata Convention so that it comes into force as soon as possible,” he added.

The treaty, which has been four years in negotiation and which will be open for signature at a special meeting in Japan in October, also addresses the direct mining of mercury, export and import of the metal and safe storage of waste mercury.

Pinpointing populations at risk, boosting medical care and better training of health care professionals in identifying and treating mercury-related effects will also form part of the new agreement.

UNEP noted that mercury and its various compounds have a range of serious health impacts, including brain and neurological damage especially among the young. Others include kidney damage and damage to the digestive system. Victims can suffer memory loss and language impairment alongside many other well documented problems.

Among the provisions of the treaty, governments have agreed on a range of mercury-containing products whose production, export and import will be banned by 2020. These include batteries, except for ‘button cell’ batteries used in implantable medical devices; switches and relays; certain types of compact fluorescent lamps (CFLs); mercury in cold cathode fluorescent lamps and external electrode fluorescent lamps; and soaps and cosmetics.

Certain kinds of non-electronic medical devices such as thermometers and blood pressure devices are also included for phase-out by 2020.

Governments also approved exceptions for some large measuring devices where currently there are no mercury-free alternatives. In addition, vaccines where mercury is used as a preservative have been excluded from the treaty as have products used in religious or traditional activities.

 

“Opting Out” of Worker’s Compensation Hurts Workers and Employers (Part 2)

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

Last week we explained Wisconsin’s rich history of protecting injured workers through its mandatory workers’ compensation system. This week we’ll look at what is happening in Texas and Oklahoma, where it is not mandatory for employers.

Alternative worker’s compensation programs( like that of Texas’—and now Oklahoma— non-subscriber / “Opt Out” scheme) have the potential to significantly reduce workplace safety. Since experience rating is a fundamental component of worker’s compensation insurance systems, the comp system provides economic incentives to employers through reduced insurance costs to companies with reduced injury rates and safe workplaces.  Texas’ “opt out” option  means that an employer can choose to be self insured or become a non-subscriber and opt out of worker’s compensation insurance entirely. Those employers opting out of worker’s compensation systems are not experience rated and there is no economic incentive to reduce workplace injuries and ensure safe work environments for their employees.

Most recently on April 17, 2013 a fertilizer plant exploded in Texas, killing 15 and injuring approximately 200 people. EMS workers, firefighters, and other first responders were among the casualties.  The West Fertilizer Company was approved to have no more than 400 pounds of ammonium nitrate in the plant, but instead, 270 tons were reported to be on site. West Fertilizer failed to inform the Department of Homeland Security of the amount of fertilizer it had. Texas had as well the worst recorded industrial accident in America in 1947 when 3,200 tons of ammonium nitrate resulted in almost 600 deaths and 3,500 injuries.

Texas has the worst work-related fatality rate in the nation.

Texas has the worst work-related fatality rate in the nation. According to the Bureau of Labor Statistics, 433 reported fatalities occurred in 2011 alone in Texas with the highest (4.79 per 100,000 workers) for the last ten years. (Oklahoma is in line to follow). 

Oklahoma’s worker’s compensation measure was signed into law May 5 and it drastically changes how Oklahomans are compensated for on the job injuries. Republican Governor Mary Fallin has tried to change the worker’s compensation system for over 20 years in State politics.  She indicated the bill would reduce costs for businesses. The law changes worker’s compensation system from a judicial to an administrative one, allowing businesses to opt out of the worker’s compensation systems as long as they provide “equivalent” benefits to injured workers. Opponents of the law indicate that it is unfair to injured workers because it will reduce their benefits. The implementation of “equivalent” benefits, and what kind of injuries are covered or uncovered by those who “opt out” of the system is yet to be determined.

Cautionary note to employers: since those employers that “opt out” of worker’s compensation are no longer allowed the benefit of the exclusive remedy provision of worker’s compensation, workers who are not covered by worker’s compensation can sue their employers. For example, in a recent Colorado case where an undocumented worker (who by Statute in Colorado was not covered under worker’s compensation) received over a $1 million verdict against the negligent employer.

http://en.wikipedia.org/wiki/List_of_industrial_disasters

Worker’s compensation systems benefit both employers and workers, and the dangers of opting out of the system means a retreat to harsh industrial conditions, producing  the same kind of inequities  that workers’ comp remedied over a century ago. The situation calls to mind the maxim that those who don’t remember history are doomed to repeat it.

What Happens If a Non-Insured or Under-Insured Driver Hits My Car?

car accidentMany workers’ compensation claims arise when an employee is injured in an automobile accident while on the clock for the employer. In these cases, the injured worker sometimes has two claims – a personal injury claim and a workers’ compensation claim. If another driver was at fault for the collision, it’s possible for the injured worker to receive compensation for pain and suffering – an option that is usually not available under the workers’ compensation laws.

However, many drivers do not have insurance coverage and others only have the minimum liability limits. What does this mean for you? It means that if you’re injured in a car accident, it’s very possible that there will be insufficient compensation for your damages (i.e. medical expenses and pain and suffering).

For example, in North Carolina, the minimum liability limits per accident are $30,000.00 and in Florida, the minimum personal liability limits are only $10,000.00. This means that if you sustain a serious bodily injury requiring days, or even weeks, of hospitalization, your damages from the insurance company will essentially be capped at $30,000.00 (or $10,000.00 if you’re in Florida).

This is an unfortunate reality for many of our clients every year. Sometimes the damages are catastrophic and the available insurance coverage is just a pittance of what their case is worth. To prevent this from happening, we highly recommend that all of our clients, friends, and family purchase underinsured and uninsured (UIM/UI) automobile coverage. This type of coverage is fairly inexpensive and would cover you in case of an accident where the other driver does not have adequate liability coverage, or even no insurance coverage at all.

As an example, in North Carolina it’s possible to cover two vehicles with one million in underinsured coverage for $15.04 per month. It’s well worth every penny. Please take the time to review your auto insurance coverage carefully and see what kind of coverage you have.