Author Archives: Kristina Brown Thompson

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.”

 

What I Wish I Had Known Earlier in My Workers’ Compensation Claim – Thoughts from a Former Client

What I Wish I Had Known Earlier in My Workers’ Compensation Claim – Thoughts from a Former Client

We frequently reach out to our clients for feedback on how to improve our services. Earlier this year, we received a very thoughtful email from one of our former clients and wanted to share his thoughts.

What I Wish I had Known Earlier

1.  Filing the workers’ compensation claim:  Employees need to know how to properly file a workers’ compensation claim. Also, there needs to be a list prepared for all employers and employees that sets out the steps both of them need to take. 

2.  Nurse Case Manager:  I wish I had better understood the nurse case manager’s role at the outset of the case. I wish I had known everything she was capable of doing, aside from just reporting to the adjuster.

3.  Emotional Toll:  The magnitude of emotional stress involved in going through a workers’ compensation claim was a surprise; was there an option for counseling? This is truly a life changing event. Counseling would have been beneficial to alleviate the stressfulness of the process and the overwhelming feelings of abandonment.  For example, the feelings of “I know I’m hurt but why can’t they see that” or “why don’t they care?”

4.  Communication:  The importance of discussing issues with an attorney as early as possible.

If you have been through a workers’ compensation claim, let us know if you have other items to add. 

Workers’ Compensation Fraud – North Carolina Statistics for 2014 – 2015

Several months ago, the North Carolina Industrial Commission published their Annual Report for 2014 – 2015. Based on the Annual Report, employer fraud was by far the overwhelming majority of investigated fraud in the North Carolina workers’ compensation system.

 

The Annual Report tracked investigations of suspected fraud and violations related to workers’ compensation involving employees, employers, insurers, health care providers, attorneys, and rehabilitation providers. The total figure of fraud investigations for 2014 – 2015 was 1,474 cases. Of those 1,474 cases, 1,336 cases related to employer fraud. That means that 90.64% of the investigated workers’ comp fraud was fraud on the part of the employer.  Whereas there were 129 cases of suspected employee fraud (i.e. 8.75% of the total investigated fraud cases).

 

The silver lining? Of the employer fraud that was prosecuted, the State of North Carolina was able to collect nearly $1,000,000 in revenue just in 2014 – 2015 in fraud penalties paid by noncompliant employers. 

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.”

 

Oklahoma Commission Says Workers’ Comp “Opt Out” Not OK

Ever since Oklahoma employers were allowed to “opt out” of the workers’ compensation system in 2013, nearly 60 big employers have chosen the “opt out” path. By opting out, these large corporations (like Wal-Mart and Big Lots) are no longer constrained by the requirements of the Oklahoma State workers’ compensation laws. Instead they are allowed to create their own internal workers’ compensation system playing under their rules and definitions.

According to a NPR study these opt out plans “ . . . provide fewer benefits, make it easier for employers to deny benefits, give employers control over medical assessment and treatment, and leave appeals in the hands of employers, and force workers to accept lump-sum settlements.”

However, just last week, the Oklahoma Workers’ Compensation Commission unanimously declared two sections of the “Oklahoma Employee Injury Benefit Act” (a/k/a Oklahoma’s Opt Out law) unconstitutional. According to the Commission, the Opt Out provisions deprived injured workers of equal protection and access to the court. The Oklahoma Workers’ Compensation Commission called the opt out plans “a water mirage on the highway that disappears upon closer inspection.”

Here is a link to the Oklahoma Workers’ Compensation opinion filed 26 February 2016. The ruling will likely be appealed and we can expect to hear much more about these Oklahoma opt-out plans in the near future.

 

 

 

Panthers’ Super Bowl Football Player (Thomas Davis) Joins the Big Game While Still Recovering from Surgery (or, in Work Comp Terms Panthers’ Employee Returns Full-Duty Pre-MMI)

Super Bowl 50 what a game! As a Panthers’ fan, it was depressing to see our usually high-scoring offense crushed by the Broncos’ defense. However, the Panthers’ defense kept us in the game until the bitter end. The dedication of Thomas Davis, a Panthers’ linebacker, was quite a site. Davis, who sustained a broken forearm in an earlier game, played through Super Bowl 50 with a surgically implanted plate and 11 screws in his right forearm. Davis shared a post-surgical photo after the Super Bowl on social media. In his post, Davis said:

This post is not about me, or how tough I am. It’s not to shine any light on me or my injuries. Our team doctors and trainers did an amazing job giving me an opportunity to get back on the field. This post is strictly to show how much love I have for my brothers and #PantherNation. Thank you all for your support and we will #KeepPounding.-TD

Take a look at the photo (if you’re not too squeamish) and you will be amazed that Davis played through the Super Bowl with over 20 stitches. Clearly, Davis is a strong individual. His decision to join the game, despite his injuries, was not taken lightly and was made with the consultation of his treating physicians.

Like Davis, many injured workers are extremely eager to return to work. Whenever possible, and medically acceptable, returning to work is the best option for the injured worker and the employer. However, the decision to return to work after an injury must be carefully evaluated. All too frequently, our firm receives calls from injured workers who prematurely rush back to work only to find out they can’t perform their old job duties. Sadly, their employer, although understanding at first, becomes frustrated with the injured worker’s physical constraints and the injured worker is terminated. Under these circumstances, the injured worker may have an additional cause of action (retaliatory discharge claim) but the end result could have been avoided if they monitored their recovery carefully and focused on healing before returning to work. 

Facebooking Your Workers’ Compensation Case

Almost everyone’s using social media these days. Even my 80-year old grandma is on Facebook! However, there are special considerations that you need to keep in mind when posting on Facebook and you have an open workers’ compensation case. Claimants receiving workers’ compensation benefits need to be aware that the insurance companies will watching everything they post or share on their Facebook or social media site.

 

Recently, a man in Australia alleged a compensable ankle injury. However, someone on Facebook posted a video where he was shown demonstrating a karate move involving a high kick. The Australian court gave the video significant weight and the value of his claim was substantially diminished.

 

As a plaintiff’s attorney, I understand that most of the time, Facebook posts frequently represent a quick snapshot of a person’s life when they are generally feeling their best. However, when picked up without the full context, the photo will frequently get misconstrued.

 

For example, let’s say you have an accepted back injury claim. You’re receiving workers’ compensation due to your five pound medical lifting restriction. On a whim, you decide to update your public profile photo to a picture of you taken 5 years earlier while riding a motorcycle. What’s the harm? Well, for starters, a motorcycle weighs more than five pounds. Second, the workers’ compensation insurance company doesn’t know when that photo was taken and will likely assume it was taken recently. Next, the insurance company may attempt to share that photo with your doctor and also use it as support to terminate your benefits. Your attorney will then have to explain that the photo was taken many years ago but the damage may already be done. Things escalate quickly. It’s simply not worth the risk.

 

The Australian case highlights the need for security and privacy settings on all social media accounts. However, it also shows that in this age of social media, sometimes videos or photos may get posted by someone else and it will affect your case. 

I was injured at home while working for my employer. Am I entitled to workers’ compensation benefits?

We’ve all seen the ads for “work from home” jobs (spoiler alert – many are scams). However, corporations like Apple, IBM, CVS, and many, many more are frequently advertising work-from-home or telecommuter jobs to employees thus providing a flexible work schedule. The question then arises – what happens if the telecommuting employee is injured at home? For example, what if the employee is injured during a personal coffee break? What if he slips on his driveway? Or, if she trips over her pet while walking to her van to get work supplies?

 

In deciding on whether an employee’s injury may be compensable, courts have generally considered (1) how regularly the employee works from home, (2) the presence of work equipment at home (e.g. work computer or corporate phone), and/or (3) other conditions particular to that employment that make it necessary for the employee to work from home. The courts specifically look to whether the employee is working from home for his or her convenience, or if it’s necessary from the employer’s standpoint that the employee work from home (e.g. there is no other suitable place of employment offered by the employer).

 

For example, in Utah, the Court of Appeals held that a sales manager who was spreading salt on his driveway in anticipation of an important business delivery sustained a compensable slip and fall at work. The Court determined that the manager’s motivation in spreading the salt was to assist the employer’s business. [AE Clevite Inc. v. Labor Comm’n, 2000 UT App. 35, 996 P.2d 1072 (2000)]. Also, where a custom decorator for J.C. Penney was walking out to her van in her garage to get fabric samples and tripped over her dog, that injury was also compensable [Sandburg v. J.C. Penney Co, Inc., 260 P.3d 496 (2011)]. The Court explained that the home premises was also her work premises and the decorator had to keep samples in her van to show potential customers.

 

The bottom line is that when telecommuters are injured at home during the actual performance of their jobs, regardless of how insignificant, the injury may be compensable.