Monthly Archives: June 2014

Transitional ‘Light’ Duty Jobs: What Are They and Do I Have to Take One?

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

When injured at work, your doctor may give you work restrictions that prevent you from returning to your regular job. In these situations, there are three things your employer can do:

  1. Tell you that they have no jobs within your restrictions
  2. Give you a transitional duty (or “light duty”) job within your restrictions
  3. Force you to work your regular job in violation of your restrictions

If it’s #3, call a lawyer immediately and inform your doctor that your employer is not following the doctor’s orders.

If it’s #1, you would be taken off work and you would be entitled to workers’ compensation benefits for temporary disability until you are released back to work or until your employer accommodates your work restrictions.

If it’s #2, it not always clear what the result will be. This “transitional duty” option is when your employer returns you to work but not at your normal job. Instead you are given a different, temporary job while you are on restrictions.

Problems arise with these transitional jobs when your hours are cut, your pay is cut, or you are asked to do a job that is unreasonable. Often, if you refuse to work a transitional duty job that is in your restrictions, you could forfeit your right to obtain work comp payments for temporary disability while you are on those restrictions and off work.

If the transitional duty job that is offered to you cuts your hours, you will probably be entitled to temporary disability payments in an amount to make up (somewhat) for the difference in what you were making before the incident that caused the injury and what you are now making in your transitional job.

Similarly, if your hourly rate or your wages for your transitional job are less than what you would have been earning before you were injured, you would again be entitled to temporary disability payments in an attempt to make up for the shortfall.

Where transitional duty jobs have a gray area is whether they are truly reasonable jobs that are being offered. For example, there are horror stories of employees working in the near dark for 8 hours per day or working in appalling conditions sorting paperclips for transitional duty. Whether or not you have to take a job like these horror stories without forfeiting your right to temporary disability payments depends on the facts of each specific case.

Click the link – it’s about a Walmart guy who had to do “light duty” in the bathroom for 7 hours a day: http://www.aol.com/article/2014/05/27/wal-mart-employee-claims-he-was-forced-to-spend-7-hour-shift-in/20893585/?icid=maing-grid7%7Chtmlws-main-bb%7Cdl28%7Csec1_lnk3%26pLid%3D481058

Generally speaking, however, if you are offered a transitional job within your restrictions, you should probably take that job unless you have a very good reason that you cannot. For example, in at least one Nebraska case, the court held that even having an employee relocate 300 miles for a temporary transitional job was considered a reasonable job offer. Even transitional jobs that are during different shifts than your normal shift may be considered reasonable. If a job is reasonable and you do not have a good reason for not accepting such a transitional job, you could be denied temporary benefits and be left without any pay at all while attempting to recover from your work injury.

If you have a job that sounds unreasonable, and you are contemplating whether or not you are required to accept such a job, contact a lawyer. An experienced lawyer will be able to give you a good idea of whether turning down such a job would allow your employer to deny you temporary disability payments or not.

Why We’re Still Killing Workers in the USA

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

The AFL–CIO’s annual report on job fatalities is out, and provides some interesting fodder for thought.

It’s no surprise that North Dakota – – with its “wild West” environment for oil and gas extraction on the Bakken Shale was the most dangerous place – – with 17.7 deaths per 100,000 workers versus the national average of 3.4.

Nationally, 4600 workers died on the job in 2012. While that number has fallen since safety laws were implemented in the 1970s, the decline has flat-lined over the most recent decade. It was 4.2 deaths per 100,000 workers in 2006, now still at 3.4 in 2012.

The AFL–CIO report contains maps that reflect part of the reason for the stall-out: the vast majority of the states with the highest fatality rates contain the 8 million workers in states with no federally approved OSHA safety and health plan. The report graphically portrays another salient fact: the number of federal OSHA inspectors per 1 million workers has fallen from a high of 15 in 1980 to 6.9 in 2013.  OSHA has been so underfunded over recent years that it would take an average of 139 years for available OSHA inspectors to visit each workplace in their jurisdiction just once. (In some states that number is even more staggering – – 521 years for South Dakota.)

The AFL-CIO report reflects some other interesting facts concerning the demographics of workplace fatalities – – not surprisingly, being foreign-born or Latino puts a worker at a higher risk of fatality, and homicide was the number one cause of death for women in the workplace in 2012.

But, getting back to the “oil patch” in North Dakota, we see other disturbing trends in the culture of workplace injury that accompany the decreasing application of safety regulation. With job growth tripling in North Dakota’s oil patch since 2007, while workers’ compensation filings are up, many injured workers are encouraged by employers in the extractive industries not to file, with many companies working out sidebar deals with injured workers. Injury rates are being kept artificially low by rewards for not reporting. As the AFL–CIO’s safety chief, Peg Semenario, has said, underreporting warps national safety figures in an industry that is already notoriously opaque.

And the culture of creating false indicators of workplace safety will likely have tremendous implications down the line when the 2000 tons of silica-rich sand used in the cement casing of each fracking well begins to work its way into workers’ lungs. NIOSH reported in 2012 that 92 of 116 air samples at franking sites exceeded the recommended safe levels of silica, which can lead to incurable, irreversible lung disease.

 

 Photo credit: Craig Newsom / Foter / Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)

Memorial Day Holds Much Meaning

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

Memorial Day is another opportunity to reflect and remember. I recently came across a post from Financial Carrier Services Inc. on Google+ that was a nice summary of what Memorial Day really means. Many people spend this holiday with family and friends, and some of these gatherings contemplate the more somber, traditional meaning of the day. Others have to work on Memorial Day and don’t really get a holiday. And other folks are navigating the roadways on one of the few holidays they get from their employer a year. Meanwhile, many truckers are on a schedule with loads and focused on safety with the increased traffic on the weekend that’s the unofficial start of summer. I urge all to be safe on roads, around grills, swimming pools, and in whatever celebration is planned. Please also look into the Memorial Day celebrations that the majority of communities have planned with veterans’ organizations for the day. Regardless of what you end up doing, please take some time today to remember fallen soldiers, explain to your children, and remind your friends and family the true meaning of the holiday.

We would like to take time this Memorial Day to remember the men and women who died while serving in the United States Armed Forces, and to thank all of our men and women in uniform for their service.

We also know that today is a national holiday and the symbolic beginning of summer, so we hope that everyone is enjoying their time off and being safe. For your information, below is a list of grilling safety tips adopted from a guidepublished by the U.S. Consumer Product Safety Commission:

Gas Grill Safety Tips

  1. Check the tubes that lead into the burner for any blockage from insects, spiders, or food grease. Use a pipe cleaner or wire to clear blockage and push it through to the main part of the burner.
  2. Check grill hoses for cracking, brittleness, holes, and leaks. Make sure there are no sharp bends in the hose or tubing.
  3. Move gas hoses as far away as possible from hot surfaces and dripping hot grease. If you can’t move the hoses, install a heat shield to protect them.
  4. Replace scratched or nicked connectors, which can eventually leak gas.
  5. Check for gas leaks, following the manufacturer’s instructions, if you smell gas or when you reconnect the grill to the liquid petroleum (LP) gas container. If you detect a leak, immediately turn off the gas and don’t attempt to light the grill until the leak is fixed.
  6. Keep lighted cigarettes, matches, or open flames away from a leaking grill.
  7. Never use a grill indoors. Use the grill at least 10 feet away from your house or any building. Do not use the grill in a garage, breezeway, carport, porch, or under a surface that can catch fire.
  8. Do not attempt to repair the tank valve or the appliance yourself. See an LP gas dealer or a qualified appliance repair person.
  9. Always follow the manufacturer’s instructions that accompany the grill.
  10. Store LP containers upright, and never near a grill or indoors or in a hot car or car trunk.
  11. Do not store or use gasoline or other flammable liquids near the grill.

Charcoal Grill Safety Tips

Charcoal produces carbon monoxide (CO) when it is burned. CO is a colorless, odorless gas that can accumulate to toxic levels in closed environments. Each year about 30 people die and 100 are injured as a result of CO fumes from charcoal grills and hibachis used inside.

To reduce these CO poisonings:

  1. Never burn charcoal inside of homes, vehicles, tents, or campers. Charcoal should never be used indoors, even if ventilation is provided.
  2. Since charcoal produces CO fumes until the charcoal is completely extinguished, do not store the grill indoors with freshly used coals.

Summer Means Safety Reminders for Teen Workers

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

L&I urges workplace safety for teens as summer hiring season nears

Teens are gearing up to search for summer jobs and the Washington State Department of Labor & Industries (L&I) is urging employers, parents and others to support safety during “Safe Jobs for Youth Month” in May.

A total of 477 youth ages 12-17 were injured in the workplace in 2013, making this year’s observance more important than ever, said Mary E. Miller, occupational nurse consultant with L&I and a youth employment expert. Of the total, 156 were in the food and hospitality industries. The next largest total, 66, occurred in the retail trades. There were no fatalities.

“Teens are eager to work and may not question a workplace situation that doesn’t seem right,” Miller said. “We’re trying to ensure youth perform safe and appropriate work and employers, parents and teachers can all help.”

Gov. Jay Inslee signed a proclamation making May “Safe Jobs for Youth Month” across the state. More information is available at www.TeenWorkers.Lni.wa.gov. The agency also offers presentations from injured young workers for students. Miller can provide a separate talk for employers and teachers.

In recent years, the number of injuries has increased despite an overall decrease the past decade. Injuries in 2003 totaled 1,135. In 2011, injuries reached a low of 425 before increasing the next two years. Injuries range from lacerations, strains and sprains to more serious fractures and concussions, Miller said.

“Employers are eager to give young workers a start in the world of work” Miller noted. “The result is we need to continue to help employers provide teens with tasks appropriate to their age.”

In general, 14- and 15-year-olds may perform lighter tasks, such as office work, cashiering and stocking shelves. Work assignments for 16- and 17-year-olds can be less restrictive and can include cooking, landscaping, and some use of powered equipment and machinery. The limits on the hours of work for all minors vary by age.

Generally, if safety equipment other than a hard hat, eye protection or gloves is required, then it’s not an appropriate job for minors. All minors are prohibited from working with powered equipment such as meat slicers and forklifts, Miller noted.

In agriculture jobs, restricted job duties differ for youth. The agency has specific information on its website at its Agricultural Jobs for Teens page.

 

Photo credit: The Library of Congress / Foter / No known copyright restrictions

Medical Care Politics in Worker’s Compensation

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

The mythology surrounding employee fraud in worker’s compensation is pervasive. Many of my clients begin their conversations with me indicating the following: “I’m not one of those folks faking their worker’s compensation claim.”  The exaggerated media publicity concerning employee fraud has also resulted in outright worker intimidation regarding filing a claim. I had this conversation today with a prospective client.

Attorney: Why didn’t you report the incident?
Client: I didn’t want to have that on my record.  Nobody will hire me if I have a worker’s comp injury.
Attorney: Why didn’t you seek medical treatment?
Client: I do not have insurance.
Attorney: Can you obtain insurance under the Affordable Care Act?
Client: You mean Obamacare?  No way!

Fear of being stigmatized as a complainer, whiner, or simply a recipient of worker’s compensation benefits has prompted many legitimately injured workers from filing a worker’s compensation claim.

The adverse publicity concerning the Affordable Care Act (and its pejorative popular name “Obamacare”) results in many otherwise qualified workers from obtaining the health care they need, especially when denied by a worker’s compensation insurance carrier. 

The politics of medical care intrudes in the worker’s compensation arena daily.

Elections Matter to Injured Workers

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

Nebraska held a primary election last week. Our television, radio and social media networks were flooded with messages from big-business organizations with little or no connection to our state. Millions of dollars poured in from nameless, faceless donors from other states.

Injured workers, their families and people who care about injured workers should be concerned about this.

Big-business groups generally do not support candidates and laws that are good for injured workers. These groups push for limitations in benefits, limitations on health care, and judges with business-favorable histories.

The general election this fall will be important because many state senators who have been great friends and protectors of injured workers are going to be replaced by new senators. Workers need to pay attention to the candidates and learn whether the candidates stand for the working people or the big businesses. 

Vote for the candidates who care more about injured people than business profits.

What’s the Connection Between Worker Safety, Employer Profit, and Voting?

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

A recent newspaper article about a Nebraska lawyer fighting against imposing OSHA regulations on small businesses and farms that handle grain illustrates an age-old conflict between Worker (human) safety and Business (corporate) profit. The lawyer argued OSHA compliance is too expensive for small businesses and farms.

I couldn’t disagree more. From my point of view, worker safety is immeasurably more valuable to society than business profit. Human beings are the most important component of any activity, including business. Viewing safety as a cost ignores the cost to the human beings who are burned and maimed by grain explosions, whether they happen at a small business/farm or a huge corporate grain facility.

Farms in Nebraska and Iowa are not required to provide workers’ compensation for their employees. This is justified on the grounds that farms can’t survive such government intervention. I find this an interesting argument from businesses that have long received subsidies from the government. It seems that farm profits are more important than the human beings who do the work to earn those profits.

Our society needs more laws to protect human beings from injury and to compensate them if injured for the profit of others. Candidates for public office need to be asked what matters more to them: Is it human beings or profits that matter more?

Justice Louis Brandeis of the U.S. Supreme Court wrote long ago: “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”  

If we keep electing representatives who favor the concentrated wealth, then human beings will likely be protected less. These are scary times as the divide between the “haves” and “have nots” continues to grow. Ballots are the only way to tell our representatives that the health and welfare of human beings is paramount. Voting is essential, or we will see more and more concern for profit and less and less concern for human beings.