Monthly Archives: September 2014

Whistleblower Protection for Reporting Fraud? Must File OSHA Complaint within 30 Days

AARP reports that Dr. Farid Fata in Michigan has been accused of prescribing unnecessary chemotherapy treatments to his patients, including some who didn’t even have cancer. Dr. Fata’s nurse, Angela Swantek, noticed that medications were being administered improperly and patients were in the chair longer than necessary, which created more money for the doctor. Dr. Fata allegedly bilked Medicare for $91 million. Ms. Swantek was afraid of retaliation because Fata “oversees my license.”

The Occupational Safety and Health Act of 1970 (OSHA) has a Whistleblower Protection Program that protects workers from adverse action by employers (such as firing or laying off, blacklisting, demotion, denial of benefits, intimidation, threats, and/or reduction of pay or hours) for exercising their rights under OSHA. An employee has the right to file an OSHA complaint, participate in an inspection, talk to an inspector, seek access to employer exposure and injury records and raise a safety or health complaint with the employer. If your employer does discriminate or retaliate against you, you have the right to file a retaliation complaint with OSHA.

No specific form is required to file a complaint but you can: (1) send a letter to OSHA (to find the contact information for your nearest OSHA office go to www.osha.gov/html/RAmap.html); (2) call the OSHA area office located nearest to you; (3) download and send a completed Notice of Whistleblower Complaint Form to your OSHA area office (www.whistleblowers.gov/whistleblower_complaint.pdf); or (4) file an online complaint (https://www.osha.gov/whistleblower/WBComplaint.html). However, your discrimination complaint must be filed with OSHA within 30 days of the alleged retaliation.

Filing a Safety and Health Complaint with OSHA

One of our clients worked as an auto body repairman and he was exposed to toxic chemicals in the workplace. This exposure resulted in the development of pancreatic cancer and his subsequent death, yet he never knew he could have called in OSHA to inspect his worksite.

Employees have a right to working conditions that do not pose a risk of serious harm. The Occupational Safety and Health Act of 1970 (OSHA) provides workers and their representatives the right to file a complaint and request an OSHA inspection of their workplace if they believe there is a serious risk or if their employer is not following OSHA standards. The Act allows complainants the right to request that their names be kept confidential from their employers. Although OSHA recommends that employees attempt to resolve safety and health issues by first reporting them to their work superiors, a worker can file a complaint at any time. You can get a form at www.osha.gov/oshforms/osha7.pdf.

OSHA provides the following options for filing a complaint:

 (1)    Download and fax or mail the complaint form to your local OSHA office;

 (2)    File an online complaint (www.osha.gov/pls/osha7/eComplaintForm.html);

 (3)    Telephone your local OSHA area or regional office.

Written complaints that are signed by workers and submitted to their closest OSHA area office are more likely to result in an onsite OSHA inspection than complaints submitted online. North Carolina’s Raleigh office can be contacted at 4407 Bland Road, Somerset Park, Suite 210, Raleigh, North Carolina 27609 (telephone 919-790-8096; fax 919-790-8224). Contact North Carolina’s regional office at 61 Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303 (telephone 678-237-0400; fax 678-237-0447). To find other OSHA offices call 800-321-6742 or go to www.osha.gov/html/RAmap.html.

 

 

 

 

Injured Workers and Poor Money Management

Workers’ compensation injuries and financial difficulties often go hand-in-hand. We had a client in his late 60s who decided to mortgage his house to pay for his grandson’s college education, but then suffered a serious workplace injury. Unfortunately, his grandson was unable to find a job and our client was about to lose his home of 30 years. He made an unwise financial decision late in life. Fortunately, we were able to obtain a lump sum settlement that avoided the disaster about to happen.

Counseling services are available to help people learn to budget and pay their bills. Credit unions, cooperative extension offices, military family service centers and religious organizations may offer services for free or at a minimal cost to qualified low-income consumers and homeowners. According to www.usa.gov (www.usa.gov/topics/money/credit/debt/out-of-control.shtml) local non-profit agencies that provide educational programs on money management operate under the Consumer Credit Counseling Service (CCCS). Debtors should make sure the agency is accredited by the Council on Accreditation (COA) or the International Organization for Standardization (ISO).

Generally, credit counselors look at the debtors’ overall financial situation and help them create a money management plan and a debt pay-down plan and can provide workshops related to money management. For debtors who are forthcoming about their financial situation and commit to the plan, credit counseling with a trustworthy counselor can be a positive experience. While we do not specifically endorse any financial planning group, national programs include Dave Ramsey’s Financial Peace University, a biblically based program (www.daveramsey.com/fpu) and local sources of consumer financial education include Triangle – Consumer Credit Counseling (919-821-0790) and CCCS, A Division Of Triangle Family Services, Inc. (919-821-1770).

Misclassification: Cheating the System in North Carolina

A yearlong McClatchy public-records investigation of government construction projects spanning 28 states discovered widespread misclassification of construction workers as independent contractors instead of employees (News & Observer, September 8, 2014). By misclassifying their employees, construction companies were able to undercut their law-abiding competitors while at the same time exploiting those desperate for work. As a result, the study found that North Carolina loses approximately $467 million per year in tax revenue from construction firms and their employees.

Such a scam is simple. Companies declare that hourly wage earners working for them are independent subcontractors, not employees. These companies do not withhold income tax or file payroll taxes on those workers. They also do not pay unemployment tax and are not required to provide workers’ compensation insurance. Thus, there is less paperwork and more profit for the companies. The McClatchy investigation estimated that these companies can save 20% in labor costs by treating employees as independent contractors.

Misclassification has far-reaching effects. The investigation discovered that these cheaters:

(1)    ignored existing labor laws and the IRS by misclassifying employees;

(2)    undercut the bids of law-abiding companies;

(3)    cheated workers by eliminating unemployment insurance, workers’ compensation coverage  and social security payments;

(4)    benefited from lax government officials who could have stopped them.    

Genetic Testing and Pain Medication

A former volunteer firefighter who sustained burns and partial amputation of his fingers on both hands continues to suffer from PTSD, flashbacks and sleep disturbances. His pain management physician has ordered a genetic study to help understand how he reacts to treatment based on his genetic factors.

Genetic testing in pain management is becoming more prevalent. Just as people have differences in hair color and eye color, people are also different in their responses to pain and to medications. Modern genetic medicine may be a viable way to explain the variability of personal responses to medication and predict more effective medications for patients. In identifying genetic risks and the most effective analgesic for individual patients, clinicians may be able to improve the efficacy of medication and decrease risks posed by medications, such as overdose, addiction and death. Another consideration for bioscience testing is the potential economic feasibility. Using oral samples or swabs could provide a dramatic price decrease for genetic testing.

One doctor provided the following tips to clinicians prescribing medications:

(1)    take the medication history of prior adverse or ineffective medication effects;

(2)    check for common potential interactions with opioids;

(3)    with new medications, check the patient’s metabolic pathway for activation or excretion issues;

(4)    be mindful of and evaluate potential interactions between drugs when adding new medications;

(5)    consider formal genetic testing to evaluate opioid choices and help predict potential opioid risks.

  

Changes to Hydrocodone Classification

According to the 2012 Center for Behavioral Health Statistics and Quality, nonmedical use of prescription drugs ranks as the second most common class of illicit drug use in the United States. After more than 10 years of debate and deliberation the U.S. Drug Enforcement Administration has made a ruling that provides significant changes to hydrocodone prescriptions, which are the most commonly written U.S. prescriptions.

Under the Controlled Substances Act, as of October 6, 2014 hydrocodone combination products (HCPs) will be reclassified to a Schedule II, which would increase the controls put on it. There is a five-category progressive classification for controlled substances and the scheduling categories are based on the degree of a drug’s potential for abuse or misuse. The purpose of this change is to minimize misuse/abuse of the drugs while still ensuring patients have access to medications needed to lessen their pain.

Some of the effects of the reclassification are:

(1) all hydrocodone prescriptions will now require a hard copy to be filled (telephone, facsimile, verbal or email orders will not be accepted);

(2) Schedule II medications will not have refills;

(3) HCP prescriptions issued before October 6 and that are authorized for refilling can be refilled until April 8, 2015.

Additional information is available at www.gpo.gov.

Injured Workers Win Class Action Lawsuit for Interference of Medical Treatment

According to The Denver Post (November 14, 2012), a 2009 class action lawsuit brought by 13,521 injured workers against Wal-Mart and its service providers settled for $8 million after a three-year fight. Colorado state law prohibits outside interference in determining medical care. The suit alleged that the defendants, including Concentra Health Services, went too far in controlling the medical treatment that injured workers are entitled to under Colorado’s Workers’ Compensation Act. Concentra operated medical facilities where the Wal-Mart employees received treatment.

Concentra must pay $4 million for its part in making it difficult for medical providers to make independent assessments on how to best treat workers injured on the job. The injured workers treated at a Concentra facility will each receive $520. Among other injunctive relief, Concentra agreed to provide more training for its sales and marketing force as to state laws that regulate and prohibit interference in how care is provided.

Increase in Wage Theft Claims

According to a recent article in The New York Times (Sept. 1, 2014), more workers are claiming wage theft by their employers. Worker advocates assert that violations of minimum wage and overtime laws, erasure of work hours and wrongful takings of employees’ tips are increasing in volume.

David Weil is the director of the federal Labor Department’s wage and hour division. Since 2010, Mr. Weil’s agency has uncovered almost $1 billion in illegally unpaid wages, with a disproportionate amount of immigrant victims. Weil believes the surge in wage theft is due to underlying changes in the national business structure. As large employers increase franchise operations as well as use of subcontractors and temp agencies, these companies deny any knowledge of wage violations.

A federal appeals court in California recently ruled that FedEx committed wage theft by labeling its drivers as independent contractors to avoid having to pay them overtime. New York’s attorney general, Eric T. Schneiderman, has recovered $17 million in wage claims over the past three years and in Nashville last February nine Doubletree hotel housekeepers were paid $12,000 in back wages owed by the hotel’s subcontractor. Wage theft is prevalent in North Carolina as well. According to the N.C Department of Labor 2012-13 Wage and Hour Bureau Annual Report, 4,244 complaints were investigated. Out of an estimated $2.4 million due, almost 73% of unpaid wages (over $1.79 million) were recovered for 2,168 workers. To file a wage dispute claim in North Carolina, contact the Department of Labor’s Wage and Hour Bureau at 919-807-2796 or 1-800-NC-LABOR.