Monthly Archives: May 2016

Employee Drug Use

According to The New York Times, employers are reporting difficulty in finding workers who can pass a pre-employment drug test and many applicants do not even apply for jobs when drug testing is a requirement.

Some industries, like trucking, are mandated by federal law to drug test their employees for safety reasons. Since 2013 Quest Diagnostics has found an increasing number of workers who have tested positive. The firm’s most recent report revealed that 4.7 percent of U.S. workers tested positive for illicit drugs in 2014. At least one state, Georgia, has discussed developing a program to provide drug counseling to individuals who test positive and assist them with job placement.

It should be noted that in North Carolina, an employee will not receive workers’ compensation benefits for a workplace injury if being under the influence of drugs caused the injury. At the end of the day, workers who use recreational drugs like marijuana should be aware that there are jobs potentially available, but if they want to get these jobs they need to make a lifestyle change. If drug use involves addiction, click here for assistance in North Carolina or call the National Helpline at 1-800-662-4357.

Scientology And Workplace Safety

I was in San Francisco a few weeks ago, just casually walking down Montgomery Street when I saw a  sign on the sidewalk that said: “Church of Scientology – All are Welcome.” I had just read Lawrence Wright’s book, “Going Clear” which told in chilling detail the inside story of this “religion” and  I quickly went the other way. The legal system plays a prominent role in the book, particularly the twenty year legal war  (1973 – 1993) that the IRS had with the church trying to prove that it was not a bona fide religion in order to collect $1 billion in back taxes. Turns out that was hard to do, especially when the church was throwing money at law firms “to harass and discourage rather than to win.” According to Wright, the church filed 200 lawsuits against the IRS and 2,000 individual suits by church members, overwhelming government lawyers until the IRS finally yielded. The church is now recognized as a valid religion. Tom Cruise gets to deduct his contributions, I presume. In 1991 the church also went after Time Magazine for a story they didn’t like and at one time had a reported annual litigation budget of $20 million and over 100 lawyers, just to fight Time.

What really caught my attention was the story about Daniel Montalvo. According to the book, his parents became Scientologists when he was five and by age eleven he worked full-time ( eventually from 8 a.m. until 11:30 p.m.) for the church for about $36 a day. He shoveled asbestos from an old hotel without a mask and rarely saw his parents. He attended  school one day a week, on Saturday. When he was fifteen he operated scissors lifts and other heavy equipment. He also began working in a book production facility where he operated a machine with a guillotine-like blade that sliced through book pages, and one day he accidently sliced off his index finger. “He was instructed to tell the  admitting nurse that he had injured himself in a skateboarding accident. The doctors were unable to reattach the finger.” Wright doesn’t mention the workers’ compensation system, but I have a feeling a claim was never filed.

Let’s Get to Zero

Today’s post was shared by US Labor Department and comes from

A group of Boise construction workers listen to a presentation during the National Safety Stand-Down this May.
A group of Boise construction workers listen to a presentation during the National Safety Stand-Down this May.

For us at the Occupational Safety and Health Administration, the loss of one workers’ life is one too many. Workplace tragedies are devastating for the families and friends left behind. Their effects are long-term and far-reaching in our communities.

On Workers’ Memorial Day, we were reminded that every day, 13 American workers don’t make it back home at the end of their shift. That’s not a cold statistic but rather a fact of life for us here at OSHA. Our Boise office alone has investigated the deaths of 10 workers killed on the job in Idaho in the past 12 months. As recently as last week I watched as the bodies of two workers who had been installing a utility line were pulled out of a deadly trench collapse right here in Boise. Nobody should die for a paycheck.

Click to watch: OSHA's David Kearns talks safety at a recent event with construction workers and subcontractors.
Click to watch: OSHA’s David Kearns talks safety at a recent event with construction workers and subcontractors.

Click to watch: OSHA’s David Kearns talks safety at a recent event with construction workers and subcontractors.

Our investigation will determine exactly what happened in Boise and why it happened. But we already know this much: workplace fatalities and injuries often prove to be avoidable and caused by a lapse in safety protocol. Trench deaths are no exception. We have known for centuries how to prevent workers from getting killed in trenches.

In the coming days I…

[Click here to see the rest of this post]

Tips on Your Workers’ Compensation Claim

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

I just returned from New Orleans where I made a presentation to about 150 workers’ compensation lawyers (both for workers and for employers) on “Case and Client Evaluation In Workers’ Compensation”.

Since many in the audience represented insurance companies and employers, I paid particular attention to their response to my presentation. As one would expect, their best chance to win a case on behalf of the employer and insurance carrier occurs when several items come into play:

  1. When there is no actual report of the injury. [Worker’s Tip: No matter how small the work injury, make sure it is reported in some fashion – cell phone, voice recording, or Accident Report and the worker keeps a copy (BEST).]
  2. Failure to report that a work injury occurred to the first treating practitioner (whether Emergency Room, employer-directed medical facility, hospital, or primary care physician). The single most difficult hurdle in a workers’ compensation claim involving a traumatic injury occurs when no report of the injury is found in the initial medical record.
  3. In “Occupational Exposure” cases, no discussion with the doctor about work duties or prior incidents. (In Wisconsin, a worker can recover for workers’ compensation in one of two ways: 
    1. A traumatic injury where a single incident has caused the disability (lifting a box, falling, etc.)
    2. Occupational Exposure, where the wear and tear of a worker’s job causes the disability over time. In this latter category, workers routinely do not indicate with any kind of specificity the type of work they perform when they see the doctor.

These three tips can help us as workers’ compensation lawyers win claims, more so than any “Clarence Darrow” court room techniques or strategies.

The Dangers of Working with Vibrating Tools

Vibration White Finger (VWF) or “Dead Finger,” now known as Hand-Arm Vibration Syndrome (HAVS), is a chronic, progressive disorder caused by regular and prolonged use of vibrating hand tools that can progress to loss of effective hand function and necrosis of the fingers. In its advanced stages, the obvious symptom is finger blanching (losing color). Other symptoms include numbness, pain, and tingling in the fingers, as well as a weakened grip.

It is estimated that as many as 50 percent of the estimated 2 million U.S. workers exposed to hand-arm vibration will develop HAVS. Some common industries and the tools associated with HAVS are listed below:

  • Agriculture & Forestry – Chainsaws
  • Automotive – Impact Wrenches, Riveting Guns
  • Construction – Jackhammers
  • Foundries – Chippers, Grinders
  • Metal Working – Buffers, Sanders
  • Mining – Jack-Leg Drills, Stoper Drills

The time between a worker’s first exposure to hand-arm vibration to the development of HAVS symptoms can range from a few months to several years. Prevention is critical because while the early stages of HAVS are usually reversible if vibration exposure is reduced or eliminated, treatment is usually ineffective after the fingers blanch. 

Will It Hurt My Workers’ Compensation Case to Get a Job?

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

“Will getting a job hurt my case?”

I hear this question on a regular basis from my workers’ compensation clients. In my experience, the answer is almost always “no.” But if you do find alternate or part-time employment during your workers’ compensation case, you need to keep track of and disclose your earnings.

Why working when you are injured can help your case:

1.  Working helps your credibility with doctors and judges: 

Doctors and judges are the two most important people in your case, because the doctors drive the medical evidence and the judge weighs that evidence. Ultimately, those decisions come down to a doctor or judge’s determination of your character. A judge is going to give the benefit of the doubt to someone who is trying to help themselves. That’s also why complying with doctor’s orders and rehabilitation programs helps your credibility in court.

2.  Just because you’re working doesn’t mean that you are not significantly or even totally disabled:

Maybe your company is bending over backward to keep you. Maybe a sibling or a parent has you working at their business. In situations like that, a court is going to understand you are earning wages beyond your real potential to earn wages. You may also be enduring tremendous amounts of pain to maintain employment. In cases like that, especially if you had a good employment record and complied with your doctor’s orders, the fact that you are working through pain could very well help your credibility.


How to hurt your case when you work:

1.  Not disclosing your wages and employment: This is especially true if you are working while receiving temporary disability benefits or unemployment benefits. This makes you look dishonest, and you might be committing fraud in many states. Additionally, once you are in the legal process, you normally have a duty to disclose that information to your employer/insurer anyway. Even if a judge believes that you inadvertently forgot to turn over this wage information, you are still making it more difficult for your attorney to win you benefits.

2.  Clearly working beyond your medical restrictions: Let’s say a doctor takes you off work as a nurse because you can’t lift more than 25 pounds and bend and twist on a regular basis, but you keep working as a CrossFit instructor, where you regularly do heavy lifting that involves bending and twisting. If you are that person, don’t call our law firm. Though employee fraud is a very small percentage of overall fraud, conduct like that would likely be workers’ compensation fraud. Again, working can help with your credibility in a workers’ compensation case, but being dishonest about that work can hurt your case.

If you have questions about specifics in your or a loved one’s workers’ compensation case, please contact an experienced workers’ compensation lawyer.

Insult to Injury: ProPublica’s Series “Demolition of Workers’ Compensation” Focuses on Ongoing Workers’ Comp Woes Faced by Injured Workers Nationally

Recent years have not been favorable to injured workers. States across the nation have enacted “reform” measures curbing injured workers benefits. Disability caps have been introduced, medical care restricted. In our last blog, we discussed Oklahoma’s Opt Out provisions as an example of the court system declaring that the legislature had legislated away too much of the injured worker’s protections. A couple years ago, Florida workers’ comp laws were declared unconstitutional by a judge. Although the decision was later reversed, the Florida judge (Judge Cueto) expressed concerns regarding the loss of an employee’s right to wage-loss benefits after an accident.  


NPR and ProPublica have been authoring an in-depth series on national workers’ compensation issues. ProPublica reviewed “reams of insurance industry data” and their findings confirmed what many workers’ compensation attorneys suspected for years:  insurance companies are increasingly controlling medical decisions, workers are unable to pick their own doctor in many states, and insurers are denying medical care based on internal “guidelines.”


As an example, ProPublica’s article talks about a case in California where the insurance company reopened an old case and denied medical care based on the opinion of a doctor who never even saw the patient. “Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.”


The article also brings up a good point about workers’ comp fraud. Repeatedly studies show “most of the money lost to fraud results not from workers making false claims but from employers misclassifying workers and underreporting payroll to get cheaper insurance rates.”


One Company’s Scary Assault on Work Comp

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

Another major article addressed the further attacks on the worker’s compensation system.  This time, there is an in-depth analysis of one specific company–Tyson Foods–and its attempts to influence worker’s compensation benefits throughout the country.  From Pro Publica, the article is Tyson Foods’ Secret Recipe For Carving Up Workers’ Comp.

This extensive article documents the legislative influence that Tyson exerts in attempts to diminsh or eliminate its worker’s compensation costs.  As many companies focus on the bottom line, failing to acknowledge the actual benefits of the work comp “grand bargain” appear short-sighted.  Tyson Foods is involved in an industry that includes meat processing plants and physical work–with inherent levels of risk and injury.  Worker’s compensation injuries are simply the cost of doing this type of business.  Without worker’s compensation, there would be the potential for civil litigation and jury awards based on negligence or fault. One wonders what that litigation world would like for injuries at a meat processing plant.

Further, the article outlines Tyson Foods’ minimization of worker’s compensation costs through their own medical provider system.  Through plant nurses and “managed care units”, workers treat with company-controlled or company-influenced medical providers.  Again, one can wonder about the indepedence of such providers.  Are injuries truly being classified as work-related?  Can there be a push for a too-soon return to work?  Do workers get the independent specialized medical care that is necessary?

This article raises some questions about what managed care or employer-directed medical care could mean in certain states.  It highlights the influence a large employer can have over the medical care and treatment of its injured workers.   Wisconsin still has employe choice of physicians, which allows access to quality, timely medical care and produces some of the fastest return to work rates in the country.  Employer directed medical care could upend these beneficial components to Wisconsin’s system.

Finally, grave concerns are shown about political influence.   Getting rid of judges and commissioners they disagree with, large corporations try to shape the system to benefit only them. Workers hoping for a fair shake after a work injury could face a harsh awakening.

Scary, scary article.