Monthly Archives: September 2015

Sometimes You Need Help

Last month our firm held a planning retreat in the beautiful town of Chapel Hill. We reaffirmed our firm’s slogan: “Accidents Happen, Sometimes You Need Help.”

Frequently we speak to injured workers during our free consultation about getting medical treatment. It’s frustrating and scary for an injured person to have to wait for authorization for surgery or a medical referral. Treatment delays are inefficient for everyone. It delays the recovery and, as a result, the return to work. Our goal is to expedite medical care when possible by following up with the workers’ compensation adjuster to have treatment approved and, if necessary, file a motion with the North Carolina Industrial Commission.

In a case I had last year, we were hired because the insurance company was dragging its feet authorizing an orthopaedic back doctor. After several communications, the adjuster agreed the referral to an orthopaedic back doctor was authorized. Sadly, the “orthopaedic doctor” that was authorized by the adjuster was actually a gynolcologist-obstetrician for my male client! Furthermore, it took several additional contacts to finally correct the situation and get my client to the appropriate doctor. Finally, my client was evaluated by an orthopaedic doctor, received medical treatment, and was also able to continue working.

Our firm sees these problems every day. I believe we (injured workers’ lawyers and insurance companies) should have a common goal:  Recovery and return to work. But “sometimes you need help” to get to that point.

 

Public Financing Makes Our Justices More Fair

A study titled “Does Public Financing Affect Judicial Behavior?…” was recently published by three political scientists who looked at North Carolina’s Supreme Court. From 2001 until 2013 (for eleven years) North Carolina had an optional public financing system, making it the perfect case study. The conclusion of the study? Yes. Public financing made justices on our Supreme Court more moderate and impartial= better. Specifically, the study showed that justices who opted-in to public financing for their campaigns were 60% less likely to vote in favor of donors who contributed to their campaigns than before they opted-in. That’s a notable change.

The foundation of our judicial system is impartiality and a fair day in court; and according to this recent study, when private donors fund judicial campaigns it threatens that impartiality and fairness. In 2009 the U.S. Supreme Court issued an opinion in Caperton v. Massey Coal Co. Inc., saying that an appellate judge in West Virginia who had recently accepted $3 million from the Massey Coal’s chairman and principal officer in his reelection campaign should have declined to participate in ruling on whether Massey should have to pay a $50 million jury verdict in a lawsuit for fraud. Surprisingly, this was a 5-4 decision. It seems pretty obvious to me that the West Virginia judge’s participation in Massey’s fate was questionable, whether or not he was fair, the appearance of his impartiality is what mattered.

Obviously, from this study it appears that public financing is the better method of judicial elections. Further studies need to be done to confirm the outcome and if this trend is accurate and continues, the legislature should change the election process.

Read more at Vox.com.

We Need More People Like The Wright Brothers

Leonard Jernigan & Betsy Jernigan with David McCullough

My wife and I recently attended a presentation in Raleigh, N.C. by David McCullough, the Pulitzer Prize winning author and narrator of Ken Burns’ The Civil War, about his most recent book, The Wright Brothers. He explained that although neither Wilbur nor Orville had a college degree they were nevertheless well-read, intelligent, and extremely disciplined. They were also confident and did not let criticism get in their way.

Although they valued privacy they eventually became two of the most famous people in the world. They were thrown into a glamorous crowd as they demonstrated the ability to fly their plane in Paris, London and New York, and as they walked among the wealthy they commented that never in their lives “had they been among so many who, by all signs, had little to do but amuse themselves.”  

Wilbur died of typhoid fever in 1917 when he was just 45 years old. In 1932 (28 years after the original 1903 flight) Orville attended the ceremony in Kitty Hawk, N.C. that dedicated the impressive Wright Memorial. He died of a heart attack in 1948 at age 77, and approximately 25,000 people passed by his coffin out of respect. Both men were wealthy when they died and Orville had an estate worth about $10 million in today’s dollars, although wealth was never a motivating factor for them. They followed the wisdom of their father who said: “All the money anyone needs is just enough to prevent one from being a burden to others.” David McCullough’s book speaks volumes about their character, and leaves the reader wondering where such men are today.   

For more information go to http://www.nytimes.com/2015/05/04/books/review-the-wright-brothers-by-david-mccullough.html?_r=0

Workplace Relationships

NY Times article “Friends at Work? Not So Much”

The New York Times recently published an op-ed claiming that the amount of people who seek or maintain friendships in the workplace has dropped in recent decades. Where people once looked to the workplace as a main source of long-term friendships, by 2004 only 30% of Americans said they had a close friend at work. The article cites several studies that show we communicate better and are more productive when we work with friends.

 

In workers’ compensation, we represent employees who have been injured on the job. More often than not when an injured worker calls our office they are upset by how they have been treated by their employer once they were injured, especially if they have worked there for a long time. If an employee develops a close relationship with their coworkers and their boss, when they get hurt on the job, they suddenly feel like those relationships were one-sided because they feel they are tossed aside as soon as they get hurt (oftentimes for no fault of their own).

 

Injuries at work can change workplace relationships. The employer often must hire a replacement, which requires additional expenses, and co-workers might feel they are caught in the middle. We often ask workers who call our office whether they are on good terms with their employer because when they are, things tend to go a lot easier. If you have friends at work and get injured, will that make the process better or worse? Would you feel that your employer and co-workers will go to bat for you or will you feel more hurt because people might distance themselves from you? I like to think the former. Either way it’s a safe bet for all parties to be open and honest with each other and most of all, be kind to each other- no one wants to get hurt.

 

 

Employee Injured during Employer Sponsored Laser Tag Event = Compensable.

One question that comes up frequently, or at least routinely, in North Carolina workers’ compensation claims involves employees injured while playing or participating in recreational activities while on-the-clock or part of an employer-sponsored team building event.

 

The North Carolina Supreme Court clearly answered this question in Frost v. Salter Path Fire & Rescue, 361 N.C. 181, 185, 639 S.E.2d 429, 433 (2007) when it held that the N.C. Workers’ Compensation Act applied to “injuries occurring during recreational and social activities related to employment” and that this “well established in the jurisprudence of North Carolina.”

 

Most recently, this issue again arose before the North Carolina Court of Appeals in Holliday v. Tropical Nut & Fruit Co., No. COA14-1030. In Holliday, the employee was attending an out-of-town mandatory sales and marketing conference. One of the activities that was part of the conference was a laser tag activity which was assigned by the employer to the employee. While Plaintiff was “covering the floor [of the laser tag arena],” he felt a sharp pain in his leg and had to stop playing the game. He immediately informed his manager of the injury.

 

The Court of Appeals affirmed the North Carolina Industrial’s Commission decision finding that Holliday’s leg injury “arose out of his employment” and accordingly awarded him medical and disability benefits. In its analysis, the Court of Appeals considered six factors: 

 

  1. Did the employer in fact sponsor the event?
  2. To what extent was attendance voluntary?
  3. Was there some degree of encouragement to attend?
  4. Did the employer finance the occasion to a substantial extent?
  5. Did the employees regard it as an employment benefit to which they were entitled as of right?
  6. Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards?

 

In the Holliday case, the Court of Appeals found that the employer financially sponsored the laser tag event, expressly mandated employee attendance, took attendance at the events, and benefited from the event. As a result, the injury was found to arise out of the employment and disability and medical benefits were awarded.

 

 

Recovering From A Torn Ligament: The Story of Tommy John

A sports agent called me recently about a baseball player who was about to have “Tommy John surgery” and asked whether it would be covered under workers’ compensation. I had heard about this surgery for years but never knew much about it, so I asked Elayna Slocum, a paralegal in my office, to do some research.

Tommy John was a professional pitcher for the Los Angeles Dodgers who, in 1974, damaged his ulnar collateral ligament (a thick band of tissue similar to a very strong rubber band that works with the lateral collateral ligament to stabilize and strengthen the elbow). Throwing activities place unusual levels of stress on the elbow, making injury to the area more likely in baseball players, but it also seen in other sports such as softball, football, tennis and golf. In 1974, this type of injury was considered to be a career-ending event for a professional baseball pitcher. However, Tommy John decided to have an Ulnar Collateral Ligament Reconstruction (UCLR), a procedure that was experimental at the time, to replace the injured ligament with a tendon from his other arm. Less commonly, a donor tendon may be utilized in lieu of the patient’s own tendon.

He was not expected to be able to pitch again, but after a year of rehabilitating his arm, the results were extraordinary. John was able to return to pitching in 1976 and went on to pitch professionally for thirteen more years. Thus, the UCLR procedure became commonly known as “Tommy John surgery.” Many athletes who have had this procedure report feeling that their arm is actually stronger than prior to surgery. The vast majority make a complete recovery and yes, it should be covered by workers’ compensation.

For more information, visit: http://wb.md/1K7Cchd

Apparent Corporate Negligence Caused Tianjin Explosion in August

On August 12, 2015, a series of chemical explosions in Tianjin, China sent a massive fireball into the sky. The ensuing gulf of fire blazed for hours. Shocking images and video recordings of the apocalyptic scene streamed across the internet. The explosion killed 112 people. More than 500 people were hospitalized as a result of the explosion and at least 34 people are still missing. Hundreds of homes were destroyed, leaving thousands with nowhere to go.

Frighteningly the exact cause of the explosion remains unknown. Chinese prosecutors suspect the explosion was caused by the construction of a hazardous chemical warehouse in the port “despite knowing the location broke safety regulations” and did not “pass safety checks though it did not meet the required standards” (see BBC article “Tianjin Officials Suspected of Negligence Over Port Explosion.”)

The company that owned the explosion site had a license to handle dangerous chemicals but only since June. Their prior license lapsed in October. “After the first license expired, we applied for an extension. We did not cease operation because we did not think it was a problem. Many other companies have continued working without a license,” Yu Xuewei, chairman of Rui Hai International Logistics, was quoted by state news agency Xinhua as saying.

The exact environmental ramifications of the explosion are still unknown. However, it is clear that there is an ongoing need for workplace safety measures. Even though these explosions took place in China, North Carolina has suffered multiple serious explosions in the past decade. The explosions at the ConAgra plant in Garner in 2009 and the Environmental Quality Industrial Services facility in Apex in 2006, illustrate how important it is to closely monitor operations. 

Workers’ Compensation:  The Man-made Quagmire (Part 2 of 3)

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

This is the second part of a three-part series in which I explain why workers should claim their rights under workers’ compensation laws. The first installment explains how employers commonly and purposefully make it difficult for workers to claim comp. This second part explains ways in which workers’ compensation insurance companies (from here on our we’ll call them “insurers”) also throw up barriers to workers getting comp benefits.

It is worth noting that many employers – mostly large corporate employers – file for and obtain a certificate from the Iowa Division of Insurance to “self-insure” for purposes of workers’ compensation. These self-insured employers have offices filled with staff that carry out the same work and serve the same purposes as out-dwelling work comp insurers. They do the same things as out-dwelling insurers to bar coverage, also.  Thus, I will treat them as one entity – “the insurer.”

Our third segment will explain why other benefits and programs don’t come even close to providing what the worker receives in workers’ compensation. It’s unfortunate, but the best thing a worker can do is slog through this quagmire and make good on his or her rights in comp.


Again, researchers determined years ago that many barriers are erected by insurers. The insurers’ barriers don’t stop after the worker applies for comp. In fact, in my experience the insurers deter workers by making obtaining comp benefits so unpleasant and frustrating, that the workers with future injuries will opt to not claim comp, but rather try to make do with other benefits, if possible. The biggest reasons workers give up on their rights in workers’ compensation are due to the insurers’ conscious effort to frustrate, confuse and delay every aspect of the claims process. That, however, is exactly what should not happen in comp. Why do I say that? Because the Iowa Supreme Court has repeatedly said that for decades. According to the Court it’s a basic fact of Iowa worker’s compensation law “that the injured claimant is compensated swiftly, fairly and with the least possible ‘red tape.’” DeShaw v. Energy Mfg. Co., 192 N.W.2d 777, 784 (Iowa 1971)(citing Cross v. Hermanson Bros., 235 Iowa 739, 16 N.W.2d 616, 618 (1944)). Besides being fast in result, the process is supposed to incline in favor of the worker. Again, as stated by the Iowa Supreme Court, “we keep in mind that the primary purpose of chapter 85 [ed. the work comp code chapter] is to benefit the worker and so we interpret this law liberally in favor of the employee. Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa 2003).

So what should you do to protect your workers’ compensation rights when the insurer is ignoring them?

Part I: Dealing with the Insurer’s Persuasion Tactics

  1. The Adjuster – The Insurers’ First Fortress in the way of Every WC Claim

    People used to ask why I do not like adjusters. The reason is that very few of them (something less than 5% by my best estimate) have any goal but cutting costs for the insurer, no matter what means are used to do so. In light of that I most commonly file the claim early on so as to deal with the insurers’ lawyers rather than the adjuster. How does the adjuster form a barrier – a tough fort – standing in the way of a legitimate work comp claim?

    1. The Various Types of Obstructive Adjusters
      Adjusters commonly do several things that occur so frequently that I believe that these things are learned and practiced forms of conduct, which are designed to frustrate any injured worker. What things?
      1. The Absent Adjuster – most commonly the adjuster may never answer the phone, instead letting all of your calls go to voice-mail. Then, the adjuster will not return your calls.
      2. The Rude Adjuster – nearly as common is the adjuster who denies a claim without explanation and will be demeaning and condescending in refusing to be willing to explain anything. In a system in which the worker is usually without any way to know things, being put down and denied without explanation is a very effective method of driving the worker out.
      3. The 100% Purposely-Ineffective Adjuster – the adjuster many times will promise action on a benefit and may even set personal deadline to do so. Then, the adjuster fails to get the action and merely extends the time for the deadline, again and again. Again, this is a very effective means to drive a worker from the system because the benefits (both medical and money) are usually promptly needed.
  2. The Adjuster’s Wingman – The “Nurse Case Manager” Commonly the adjuster/insurer will assign a “nurse case manager” (hereinafter “NCM”) to your claim. The NCM is a “confidence person.” She (the NCM is always a female in my experience) will tell the worker and family that she is there to get better and more prompt care. In fact, the NCM almost invariably seeks to interfere with the minimal care that even a company doctor renders. In most cases the NCM will also do anything to persuade that the worker should be returned to work, whether safe or not. The only effective remedy I’ve found for the NCM who acts unreasonably in denying my clients care is to file a complaint with the Iowa Board of Nursing.
  3. Employer’s Choice of Medical – “Paul McAndrew’s best friend” Why is it my best friend? Because if the law allowed Iowa workers the right to choose their own medical care, more than half of the workers who come in and need me would no longer need me. Why say that? Because about 75% of the workers who come to my office do so only because they’ve been delayed, denied, and frustrated in getting timely and proper care, so much by the company doctor (usually in conjunction with the adjuster and NCM) that they can’t get back to work as they must and they come to me to merely get medical care. They don’t even want the benefits much. They want only to get healthy so they can get back to work and earn a living to support their family. How does the adjuster/NCM/company doctor bar proper and timely care? By these means:
    1. The Company “Hack” (General-Practice Doctor)
      There are many company doctors who are well known to the practicing work comp bar as being dedicated to one thing: Maintaining that doctor’s share of the insurers’ referral of injured workers by almost any means. This leads the doctor to be little more than a mouthpiece for the insurer. This takes the form of:
      1. Stating some uncouth reason why the injury did not arise out of and in course of (commonly called “cause” but very different than) work (e. g., the court reporter, Smith).
      2. Minimizing or even ignoring the worker’s injury condition until the worker is discharged to her/his own doctor, or just leaves due to frustration.
      3. Carrying the worker along over months of periodic clinic visits without any real effort to determine a diagnosis and treat that diagnosis.
    2. The Company “Sweetheart” (Specialist Doctor)
      This specialist—-commonly an orthopedic surgeon or neurosurgeon—becomes the insurer’s favorite by always giving a favorable-to-the-insurer opinion. Again, the Sweethearts are well known to lawyers, but not to the worker.

Part II: The Insurers’ Tricks for Wrongfully Manipulating Care

  • Prompt Care/Unreasonable Delay in Providing Care
    This speaks for itself. It’s far and away the most common method of denying care—just delay it long enough and the worker’s life demands will cause the worker to turn elsewhere for care. This is easily overcome with the Alternate Care Procedure, briefly described here.
  • When the Authorized Doctor Recommends Care that the Insurance Company Denies
  • When the Authorized Doctor Refers to another Doctor and the Insurance Company Denies or tries to Refer, instead, to its “Sweetheart”
  • When the Authorized Doctor orders care and, Instead, the Insurance Company tries to “Transfer Care” to a Sweetheart Who Will Likely say what the Insurance Company Wants to Hear
  • When the only Care Offered is not Convenient Care. This is now standardized: if the care offered is more than 50 miles from the worker’s home and the same type of care is offered closer, then the 50+ – care is “inconvenient.” Remember the “convenience” requirement applies only to “care.” Unfortunately, it does not apply to the company’s right to send the worker for a medico-legal, one-time “independent medical examination.”

 


Alternate Care Process

The Iowa Legislature enacted in 1913 the comp’s system’s healthcare provision method. Iowa Code 85.27. 85.27 provides that the employer has the right to make the initial selection of care. In this regard, Iowa is only one of ten out of the fifty states and the United States (under FECA (Federal Employee Comp Act) and the Long Shore Act) that provide the employer with such unfettered power. For years, a worker had to wait months or more than a year to get to the final hearing to challenge the insurance company’s denial of care.

In 1992, however, Commissioner Byron Orton drafted a provision that was accepted by consensus of all interest groups and enacted into law, which create the “alternate care process.” This process allows the worker to obtain prompt relief for the denial of proper care. The process is relatively simple and designed to be carried out by a worker or union representative.

NOTE: While Section 85.27 gives the employer the right to select care, that right is qualified. The care provided must be (1) prompt, (2) reasonably suited to treat the injury and (3) without undue inconvenience to the claimant. Westside Transport v. Cordell, 601 N.W. 2d619, 694 (Iowa 1999). The failure of the employer to provide care meeting any of these three requirements gives the worker the right to bring an alternate-care procedure and have the Division of Workers’ Comp. order proper care be provided.

The Steps for Filing and Prosecuting ON YOUR OWN an Alternate Care Claim

  1. Before filing, the worker must communicate the basis of her/his dissatisfaction with the care (or lack of care) offered by the employer. If you don’t, the filing will be dismissed. Communicate dissatisfaction in writing or the employer will likely deny that there was communication.
  2. File on the form provided by the Commissioner. This form can easily be obtained at http://www.iowaworkforce.org/wc/publications.htm. There is no cost/filing fee. Make sure you send a copy of the form to your employer, also, as explained on the form.
  3. When filling out the form, ensure you state: (A) The specific medical treatment sought; (B) the grounds why what’s offered (if anything) is not proper (for example, “not prompt,” “not convenient,” or “not proper care for the injury condition,” etc.); and (C) that you ask for hearing by telephone.
  4. Alternative medical care proceedings are only prospective in nature. Bills for prior care will need to be adjudicated about a year later in the primary hearing.
  5. The grand majority of alternate care hearings are heard by phone.
  6. Alternate Care Procedures Yield Prompt Results. Why? Because by law the commissioner must both hear the alternate care matter by phone and issue the decision on the matter within ten (10) days of the filing of the alternate care petition.

Please join us next week for Part 3: Why it’s Important to Receive Comp.