Monthly Archives: October 2015

Work Comp Fraud? What Fraud?

Despite what the media portray, workers’ comp fraud is extremely rare.

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

Workers are not “getting rich” from worker’s compensation! Accordingly, fraudulent behavior in work comp is very rare—like the one bad apple spoiling the bunch—but often highly publicized. (Because, let’s face it, seeing a surveillance video of someone bowling or water-skiing is far more memorable than a thousand images of an injured worker struggling to get out of bed in the morning or walk a city block).

Under Wisconsin’s nationally-recognized model, a worker who suffers an on-the-job-injury receives workers’ compensation benefits without regard to fault. By virtue of the work comp system, injured workers cannot sue their employers or receive jury awards. Instead, injured workers are eligible for lower, defined benefits, like lost wages and medical expenses—again, we’re not talking about “pie in the sky” numbers that would incentivize bad behavior!

“Fraud” is minimal to non-existent

  • In the last published study, Dept. of Workforce Development (DWD) concluded that public perception of workers’ compensation fraud is exaggerated. In a six year span, the amount of prosecuted fraud was less than one in 20,000 work injuries…or 0.0001%.1

Industry insiders don’t think this is a big deal

  • Rick Parks, the President/CEO of Society Insurance: “From the view of thousands of claims over decades, fraud is minimal in Wisconsin”2 
  • Chris Reader of Wisconsin Manufacturers & Commerce: despite the “sensational stories,” fraud is “few and far between” in the system.3

Current law already allows criminal prosecution for alleged “fraud”

  • Worker’s Compensation Division already has an existing fraud hotline for the public. Also, a carrier can report an alleged fraudulent claim to the DWD. After an investigation, DWD can refer to district attorney for prosecution of criminal insurance fraud. Thus, if there is fraudulent behavior, under current law, there can be a crime found.

Independent Medical Examinations provide protection against “fraud”

  • Insurance carriers can require an injured worker to be seen by a handpicked independent medical examiner, or IME. If questions exist about a worker’s injury, symptoms, or disability, the IME can provide an opinion—allowing a carrier to deny the worker’s claim.

“Fraud” goes both ways

  • We want fair competition in the marketplace and in business. Misclassifying employees or workplaces results in “stolen” premium dollars and an unfair business advantage. Likewise, limiting or under-reporting work injuries undermines the fairness and credibility of our efficient work comp ratings process and system.

 

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1 Department of Workforce Development, Annual Report for Calendar Year 1999 Allegations of Worker’s Compensation Fraud (annual average of 3 prosecuted cases out of 60,000 injuries).

2 Senate and Assembly Committees on Labor, Informational Meeting, 7/31/13: WisconsinEye at 3:18:30.

3 Senate and Assembly Committees on Labor, Informational Meeting, 7/31/13: WisconsinEye at 2:13:00.

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

Yesterday we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.

 

To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

Why I Am Thankful – Two Photographs

Recently I took photographs of two men who remind me of why I am thankful every day. One man is sitting in a wheelchair at a restaurant, with his right hand in a contorted position and he is being fed by another person. The other man, also in a restaurant, is in shorts and is holding a small child in his arms.  But something is missing – his right leg – he has a flesh colored prosthetic device as a substitute.

photo for LTJ blog 2 10.9.15 copyI have spent a lifetime helping disabled people and I have never heard any of them say “You know, Mr. Jernigan, when I got up to go to work that day, I knew I was going to be severely injured and my life would change forever.” We never know when life will take a turn like that. We never know when we will lose our independence and sometimes our dignity. Fortunately, that day will never come for most of us. But it could.

When I think about the man in the wheelchair and the man holding his child, I think how lucky I am, and I am thankful each and every day.

Is Cancer a Compensable Workers’ Compensation Claim?

Sometimes prospective clients ask whether they developed cancer as a result of their job. Most claims arise from accidents and obviously cancer is a slowly developing process. However, cancer can be an occupational-related disease for which medical and disability benefits may be awarded under the North Carolina Workers’ Compensation Act. A doctor must give his or her medical opinion to a reasonable degree of medical probability that the patient was at an increased risk of developing the disease (i.e. cancer) as compared to the general population, and did in fact develop the disease as a result of exposure to a cancer causing substance at work.

 

Case in point:  in September, a Texas firefighter was awarded workers’ compensation benefits after he developed lung, colon, and liver cancer. In the firefighter’s case, he had been a firefighter for over 20 years and was exposed to “carcinogens such as firetruck exhaust, heat, smoke, and chemicals.” The Texas administrative law judge awarded benefits, but keep in mind “Texas has a presumptive disability law that says firefighters and other first responders are presumed to have developed cancer while on the job under certain conditions.” Unfortunately, North Carolina does not have this presumption for our first responders and firefighters, and the burden of proof is more difficult in this state.

 

Here is a link to the OSHA website containing standards that apply to substances that are classified as carcinogens or potential carcinogens according to the National Toxicity Program.

Number of Workplace Fatalities Higher In 2014

According to a recent article published by the U.S. Department of Labor, workplace fatalities have increased from 4,585 in 2013 to 4,679 in 2014. This is the highest number of workplace fatalities since 2008 when 5,214 deaths were reported to the Department of Labor.

The most shocking rise in workplace deaths occurred in the oil-and-gas industry. There were 142 workers that died in the oil fields in 2014 which was 27% higher than the 112 workers that died in the fields in 2013. Other industries that saw a sharp incline in the number of employee deaths include construction, agriculture, manufacturing and mining. Female employee deaths also rose 13% from the previous year, mostly due to road accidents and homicides.

U.S. Secretary of Labor Thomas E. Perez issued the following statement: “Far too many people are still killed on the job — 13 workers every day taken from their families tragically and unnecessarily. These numbers underscore the urgent need for employers to provide a safe workplace for their employees as the law requires.”

 

Read more here: 

The Wall Street Journal: U.S. Workplace Fatalities Likely at Highest Level Since 2008

www.workerscompensation.com:Statement from Secretary of Labor on Fatal Occupational Injuries in 2014