Author Archives: Leonard Jernigan

Removing The Safety Net: A National Trend Of Benefit Reductions For Injured Workers

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Benefits for injured workers continue to be under attack throughout the country. In New York, there have been a number of changes in the last decade, all in the name of reform. These reforms were encouraging at first as they increased the weekly benefits for some higher wage-earning injured workers for the first time in decades. They also created medical treatment guidelines under the guise of allowing injured workers to obtain pre-approval on certain medical treatments and procedures. 

Unfortunately, the changes also resulted in reduction of benefits for many injured workers. Monetary benefits were capped, so injured workers deemed partially disabled could only receive a certain number of weeks of benefits regardless of their ability to return to their pre-injury jobs. The determination of the degree of disability has become a battle involving multiple, lengthy depositions of medical witnesses where the outcome is how long injured workers get wage replacement or whether they receive lifetime benefits. The criteria is not whether injured workers can return to their prior employment, but whether they are capable of performing any work at all, regardless of their past job experience or education. The battle is not limited to the amount of weeks of benefits injured workers can receive, however. The medical treatment guidelines, touted as getting injured workers prompt medical treatment, discounts the fact that if the requested treatment is not listed within the guidelines, it is denied and the burden is placed upon injured workers and their treating doctors to prove the requested treatment is necessary.

Other changes designed to cut administrative costs and court personnel include reducing the number of hearings held, thereby denying injured workers due process. There also has been a reduction in the number of presiding judges, and in many hearing locations the judges are not even at the site but are conducting hearings through video conferencing. At the end of October, the Board announced a new procedure authorizing the insurance carrier to request a hearing on whether injured workers should be weaned off of opioids that are used by many medical providers to treat chronic pain. While everyone would agree that the misuse of prescription pain medication is an epidemic in this country, many question whether the insurance industry really has the injured workers’ best interest at heart.    

As an attorney who has represented injured workers for more than 26 years, I have seen many workers successfully transition from injured worker back into the labor market. It is very encouraging to note that for many people the system has worked. They receive their treatment, which may involve physical therapy, surgery, pain management, prescription therapy, or whatever else their treating physician recommends. They are paid a portion of their prior income and after a period of convalescence, they are able to return to work. Some injured workers, however, are not so lucky. The decisions about what happens to those unable to work have been left to those who seem to care more about business and insurance industry profits. 

Just about one year ago, 14 people were killed and 22 more injured when ISIS-inspired terrorists went on a shooting rampage in San Bernardino, California. The nation and the world were horrified to hear about this tragedy and the story was in the news for many weeks. Now a year has gone by and many of the survivors have complained about treatment being denied and prescription medication being cut off.  While many injuries happen quietly without the headlines seen in the California attack, there are many similarities. It seems that when an initial injury occurs, there are many good protections and benefits in place. However, as time goes on and costs increase, injured workers are looked upon as enemies to defeat or to forget about. Unfortunately for injured workers and their families, they don’t have this luxury and they don’t have the means to fight.

Most people don’t think it will ever happen to them. That is what most of my clients have thought as well.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717. 

 

WA L&I’s Stay at Work Program Hits Major Milestone: > 20,000 Workers Helped

Today’s post comes from guest author Kit Case, from Causey Law Firm.

A Department of Labor & Industries (L&I) program that helps support light-duty jobs after workplace injuries has reached two major milestones. The Stay at Work Program has now helped more than 20,000 injured workers and provided more than $50 million to reimburse businesses that take part. 

The program pays employers for part of the costs associated with offering light-duty jobs to injured workers. It helps defray some of the expenses so businesses can allow eligible employees to keep working during their recovery and stay connected to their workplace.  

“This return-to-work incentive is changing the workers’ compensation system, and more importantly, changing workers’ lives and improving the bottom line for employers,” said Vickie Kennedy, L&I’s assistant director of Insurance Services.   

To date, more than 4,500 employers have used the program to offer light-duty jobs to help thousands of workers return to work as part of their recovery from a workplace injury or illness.

Supporting Recovery

Mao Pen, an industrial seamstress at Seattle Tarp, is one example of those helped by the Stay at Work Program. Pen broke her left elbow and forearm last June when she fell backwards while helping coworkers stretch a large tarp. “It was a horrible break,” said Chris Perlatti, president of Seattle Tarp, where Pen has worked for 20 years.

After having surgery and staying home for three months, Pen wanted to come back to work. “And we wanted her back,” said Perlatti. “She’s a valuable employee and a sweet individual. She’s part of our work family.”  

Perlatti said the answers came when L&I’s occupational nurse Deirdre Staudt started talking to his staff about how light duty could help both Pen and Seattle Tarp. 

Through the Stay at Work Program, Seattle Tarp could get reimbursed for half of Pen’s light-duty wages (up to 66 days and $10,000), along with costs for training, equipment, tools, and any clothing needed for the light-duty work.

“This is a phenomenal program,” said Perlatti. “I wish we had known about it before one of our workers got injured.”

Changing Workers’ Compensation

“Instead of writing a check to the worker to replace some of their wages while they stay at home to recover, we’re reimbursing employers to help workers return to work as soon as medically possible,” said Kennedy, adding that the workplace connection offers financial, social and psychological support that a worker needs to improve recovery times.   

Return-to-work initiatives like the Stay at Work Program, efforts to ensure quality medical care, and other improvements in the workers’ compensation system are helping an estimated 560 injured workers each year avoid possible long-term disability. 

Together, these efforts have saved $700 million in estimated wage replacement, disability and medical costs to Washington employers, workers, and the workers’ compensation system. More importantly, these efforts are helping injured workers heal and return to productive lives. 

L&I encourages employers to establish return-to-work programs at their worksites. Employers can start by creating light-duty job descriptions and using the Stay at Work incentives to offset costs associated with workplace injuries.

There’s more information online about the Stay at Work Program (Lni.wa.gov/StayAtWork).

 Photo credit: kenmainr via Foter.com / CC BY-NC-SA

States Will #RaiseTheWage for More Than 2 Million Workers

Today’s post comes from guest author Kit Case, from Causey Law Firm.

By  on November 10, 2016 – –

It has been almost four years since President Obama called on Congress to increase the federal minimum wage. While Congress has refused to take action, this hasn’t dissuaded states and localities from stepping up and giving American workers the raises they need and deserve. Election Day was no exception. Voters in Arizona, Colorado, Maine and Washington cast their ballots to ensure that hard work is rewarded with a fair wage.

The resounding win for minimum wage ballot initiatives in these states will collectively result in nearly 2.2 million workers getting a raise.*

  • In Arizona, the minimum wage will be raised to $12 by 2020, lifting the earnings of 779,000 workers. Flagstaff passed an even bigger raise − $15 by 2021.
  • In Colorado, the minimum wage will be raised to $12 by 2020, lifting the earnings of 477,000 workers.
  • In Maine, the minimum wage will be raised to $12 by 2020, lifting the earnings of 181,000 workers.
  • In Washington, the minimum wage will be raised to $13.50 by 2020, lifting the earnings of 730,000 workers.

The Election Day results are another reminder that for most Americans, raising the minimum wage isn’t a partisan issue but rather a commonsense decision. Twenty-nine states and the District of Columbia – home to 61 percent of all U.S. workers − have minimum wage rates above the federal rate of $7.25.

Voters and policymakers in these states understand what labor economists have spent decades researching and confirming: minimum wage increases have caused little to no significant job loss, but they have reduced employee turnover, strengthened families’ finances, and ultimately helped grow our economy. As our economy continues to recover from the greatest economic crisis in generations, we should all share in the prosperity we are building. And there is no easier way to do that than by raising the minimum wage.

By casting their ballots for a fair wage, the residents of Arizona, Colorado, Maine and Washington renewed President Obama’s call to take action. It’s time raise the minimum wage for all workers in America.

Dr. Heidi Shierholz is the department’s chief economist.

*Source: The Economic Policy Institute.

Note: In Arizona and Washington, the approved minimum wage ballot initiatives also require employers to provide paid sick leave to their employees. Expanding access to paid sick leavehas been another top priority of the Obama administration, and these ballot victories will help thousands more workers be able to address their health needs without putting their or their families’ economic security at risk.

Drug Formularies, Part 2: Pharmacy Benefit Managers and Drug Prices

Mylan CEO Heather Bresch testified before the House Oversight Committee about her company’s increase in the price of life-saving EpiPens by more than 500 percent since 2007.

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

This fall, most Americans were outraged at revelations that the price of life-saving EpiPens had increased by 600 percent since 2007. The anger over the drastic price increase for EpiPens focused attention on the role that pharmacy benefit managers play in the increase of drug prices. Pharmacy benefit managers administer drug formularies, so the use of drug formularies should also be questioned on prescription price control in addition to the question of whether drug formularies shift costs to more expensive treatment.

Pharmacy benefit managers have been praised for helping negotiate drug discounts. However, pharmacy benefit managers have been criticized on the same grounds because their profitability depends in large part on being able to pocket a percentage of the discount that they negotiate. This is a lucrative business. Express Scripts is described by Wall Street-types as a “pure play” pharmacy benefit manager. In the last quarter, Express Scripts made $722.9 million in profit, a 9 percent year-over-year increase.

In addition to being criticized for benefiting from the increase in pharmacy costs, pharmacy benefit managers have also been criticized for having conflicts of interest. Pharmacy benefit managers run drug formularies. However, since pharmacy benefit managers negotiate discounts with specific drug firms, pharmacy benefit managers have an incentive to put those drugs on drug formularies. These types of arrangements have drawn the attention of Preet Bharara, the high-profile United States attorney for the Southern District of New York. In 2015, Bharara settled a charge against Express Scripts for $45 million. The settlement came after an Express Scripts unit participated in a kickback scheme involving Novartis under the False Claims Act and the Anti-Kickback Statute.

In fairness to pharmacy benefit managers, there may be other factors driving increased prescription prices. Recently, former Democratic presidential candidate and current U.S. Sen. Bernie Sanders wrote a letter to the Federal Trade Commission alleging collusion among pharmaceutical companies in regards to insulin prices. Insulin is a generic drug, and generic are cheaper than so-called brand-name drugs. However, the increase in insulin prices is far from the sole example of drastic increases in generic drugs.

In 2015, the National Council on Compensation Insurance (NCCI) released a report on prescription drug prices in workers’ compensation. On page 36 of this report, NCCI pointed out that four of the 10 drugs most responsible for the increase in drug prices were generics. In 2014, the price of generic Oxycodone-Acetaminophen rose 35 percent, Oxycodone’s price rose 60 percent, the price of generic muscle relaxer Baclofen rose 86 percent, and the price of generic Morphine Sulfate ER rose by 25 percent.

There is strong evidence that pharmacy benefit managers do little to control prescription drug prices. There is also strong evidence that pharmacy benefit managers benefit from increases in drug prices. If advocates of workers’ compensation reform want to expand the use of drug formularies, they need to explain to policy makers how the pluses of pharmacy benefit managers outweigh the myriad problems related to pharmacy benefit managers.

Drug Formularies, Part 1: The Rest of the Story

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

A drug formulary is a term describing a list of drugs that are covered by an insurance plan. In workers’ compensation, formularies are touted as a way to reduce prescription costs and lead to more effective care. Formularies are particularly pushed as a solution for opioid use and abuse for injured employees.

The headline numbers about the reduction of prescription costs look eye popping. One group of pharmacy benefit managers, the companies that manage drug formularies, claimed a 9 percent reduction in prescription costs over the last year. Ohio, which has the largest state-run workers compensation fund in the country, claimed a 16 percent reduction in prescription costs in the first three years after they implemented a drug formulary. Ohio reported 15.7 million fewer doses of opioids in that time period and a 36 percent reduction in opioid costs.

The Rest of the Story about Drug Formularies

Florida workers’ compensation judge David Langham has asked “what is the rest of the story” about drug formularies. If drug formularies are so effective, then why have they only been adopted in a few states for workers’ compensation?

While drug formularies are a relatively recent development in workers’ compensation, they are well established in the larger world of health insurance. Drug formularies have long been criticized for increasing costs in health insurance plans by reducing prescription usage because costs are shifted to insureds, which forces insureds to seek more expensive care, because chronic conditions go untreated. Overall costs are increased. The costs are also shifted onto insureds who have to pick up the costs for more expensive procedures that could have been taken care of through medication. Cost shifting from the employer onto the employee, other forms of insurance and the government is already a serious problem in workers’ compensation. Drug formularies in workers’ compensation could exacerbate the issue of cost-shifting.

Do Drug Formularies add up?  Cost = Price * Utilization

When you study drug formularies for any amount of time, you run across the equation that drug costs equal price multiplied by utilization. Proponents of drug formularies tout that they can decrease both the utilization and the price of prescription drugs. Ohio has provided detailed information about the decrease in the utilization of certain drugs like opioids because of formularies. However, the decrease in the utilization in opioids cited by proponents of drug formularies coincides with an overall long-standing decrease in the frequency or number of workers’ compensation claims. Fewer overall claims mean less overall utilization, which could explain some of the cost decrease. A better measure of the effectiveness in drug formularies in controlling costs would be measured by looking at prescription cost per claim. So far, drug formulary proponents have been unable to show that data. Even if drug formulary proponents could show that data, there is still the issue of whether reductions in prescription drug costs lead to increases medical costs by forcing injured employees to seek more expensive care that could have been taken care of by prescriptions.

On the price end of the equation, drug formularies are thought to control costs by having pharmacy benefit managers negotiate bulk discounts on prescription drugs. But pharmacy benefit managers have come under fire with allegations that they actually increase drug prices or at the very least are powerless to stop the increases in drug prices. The issue of drug formularies, pharmacy benefit managers and drug prices is complicated and will be addressed in Part 2 of this series.

Book Review: Strangers in Their Own Land

The author, Arlie Russell Hochschild, a sociologist from Berkeley, California, has attempted to understand the Tea Party movement by going to rural Louisiana. Over a five-year period she got to know the people of this region; attended political events, including Donald Trump rallies; and became friends with many hard-working men and women, all of whom live in an area that has been severely environmentally damaged by the oil industry. The result of her research is her 242 page book, Strangers in Their Own Land.

Hochschild attempted to solve a paradox: why do citizens who live in this area allow drastic cuts in public funding to the extent that Louisiana has fallen to the bottom of  the states in overall health, education, and welfare, particularly during the 8 years when Governor Bobby Jindal was governor, yet  have no objection to giving businesses over $1.6 billion in tax breaks? Hochschild developed a “deep story” that is an image of the way Tea Party people feel about their place in the political and cultural world today. Why are they so angry, and so upset with the federal government? They see themselves in a long line waiting to reach the American dream at the top of a hill.  They are patient, hard-working, devoted to family, church and community, but over the years they see the line becoming slower, and they are convinced the federal government is letting people “cut in line.” They see African Americans, females, the disabled, Mexicans, gays and now even Syrian refugees, being allowed to cut in front of them and get ahead of them. Mild discontent has grown to anger. 

Tea Party activists “feel” as though they are being left behind and isolated, yet believe they have better morals and a better work ethic than those getting in front of them. They have lost empathy for the poor and disabled, and reject the notion that big government has the correct solution for economic and environmental problems, notwithstanding that because of lack of regulations Louisiana has become an environmental disaster (you cannot drink river water; local fish cannot be eaten; cypress trees are dying; and toxic waste is being stored below the surface, with adverse effects). These people are genuine and care about their communities, but the feelings they have about being abandoned by the federal government and disrespected by the media and northern elites, has made them callous to those who do not work and who do not contribute to society. As one person stated, “ I think if people refuse to work, we should let them starve.” 

We need to appreciate the bitterness and sense of loss of  Tea Party activists, and we need to try to bridge the gap in understanding. It is clear from this book, however, that unless both sides make a good faith effort to communicate, there will be no early reconciliation.  This book should be mandatory reading for all those who are clueless as to the makeup of a Tea Party voter.

More Takeaways from the Demise of the Oklahoma Option in Workers’ Compensation

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

The Oklahoma Supreme Court’s decision to strike down the so-called “Oklahoma Option” in Vasquez v. Dillard’s was one of the biggest events in the world of workers’ compensation. Vasquez represents a growing trend by advocates for injured workers recognizing that workers’ compensation is a matter of constitutional law. But the Vasquez decision is important for other reasons.

Opt-Out is Still Viable

Though some commentators declared the defeat of the Oklahoma option was the death of opt-out, many justices on the Oklahoma Supreme Court who overturned the Oklahoma option would disagree.

A concurring opinion contrasted the Oklahoma opt-out system with the Texas opt-out system. In Texas, employers are not required to have or “subscribe” to workers’ compensation. But if Texas employers do not subscribe to workers’ compensation, injured Texas employees can sue their employer in tort with all affirmative defenses stripped away. This encourages employers to carry workers’ compensation insurance. Nebraska has a similar law for agricultural employers who are exempt from having to carry workers’ compensation.

Oklahoma’s “opt-out” created separate workers’ compensation systems: the state system under the Administrative Workers’ Compensation Act (AWCA) or the private systems under the Oklahoma Employee Injury Benefit Act (OEIBA), where employees were eligible for the same benefits but where employers could draft their own rules for eligibility. Regardless of whether an employee was covered under the AWCA or the OEIBA, employers still had to be covered under one system or another, and employees could not sue their employer in tort for work injuries. What doomed the Oklahoma option was the fact that unfair procedures under the OEIBA created separate but unequal workers’ compensation systems.

The contrast between the now defunct Oklahoma option and the still-viable Texas opt-out system was reinforced when the Vasquez court rejected Dillard’s argument that Vasquez’s claim was pre-empted by the federal Employee Retirement Income Security Act (ERISA) law. Under the Oklahoma option, plans under the OEIBA were to be governed by the ERISA law. However, since OEIBA served as workers’ compensation and ERISA plans that serve as workers’ compensation plans do not pre-empt state workers’ compensation laws, the OEIBA was not pre-empted by federal law. In contrast, state law claims against employers on disability insurance plans who are “nonsubscribers” in Texas are pre-empted by ERISA.

Few, If Any States, Are Going to Implement the Oklahoma Option

The Oklahoma option was struck down on equal-protection grounds based on the Oklahoma state constitution. Most other states have similar provisions in their state constitutions. In Nebraska, that provision is found at Article III, Section 18 of our state constitution. This provision concerns itself with disparate treatment in much the same manner as does the language of the 14th Amendment of the U.S. Constitution, which prohibits a state from making or enforcing any law that denies any person within its jurisdiction “the equal protection of the laws.” Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989). Even in a state without an equal protection clause in the state constitution, separate but unequal workers’ compensation systems could be likely be struck down on equal-protection grounds under the U.S. Constitution.

Injured Workers Are a Protected Class

Injured workers are sometimes subject to retaliation for bringing workers’ compensation claims. In 2013, the U.S. Supreme Court distinguished “discrimination” or “protected status” from “retaliation” or “protected activity” cases under Title VII and held that there was a higher burden of proof for employees bringing a retaliation case than for an employee bringing a discrimination case. However, if injured workers are thought of as a protected class, then discrimination in the form of termination should be thought of as a form of discrimination, and those claims should be subject to a more relaxed burden of proof than required in the Nassar case.

What Could You Possibly Know About Your Own Disability?

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

In 1991, the Social Security Administration drafted a rule that explained that controlling weight was given to medical opinions from treating sources about the nature and severity of claimants’ impairments if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the record. This rule is commonly known as the “treating physician rule.”

The SSA has recently proposed a number of changes to this rule based upon a 2013 study (downloadable PDF). Among the recommendations were to no longer apply controlling weight to doctor opinions addressing the following issues:

  • Statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;
  • Statements about whether or not an individual’s impairment(s) meets the duration requirement for disability;
  • Statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments;
  • Statements about whether or not an individual’s impairment(s) functionally equals the Listings.

The SSA will also not use a diagnosis, medical opinion, or an individual’s statement of symptoms to establish the existence of impairment. A physical or mental impairment would now need to be established by “objective medical evidence.”

It’s easy to understand how discounting a treating source could adversely affect applicants for disability. These physicians have the most interaction with their patients in terms of frequency and duration of involvement. When you contrast a treating physician’s opinion with a doctor chosen by the SSA who most often never even meets or speaks with the claimant, you can see the problem. Putting these two entities on the same footing legally seems misguided at best and purposefully devious at worst. 

However, when you add in that the SSA will not use an individual’s statement of symptoms as a basis for finding disability, particularly in the mental-health field, you make proving disability a much more difficult proposition than it already is. Individuals who are applying for disability typically face difficulty seeing doctors on a regular basis due to obvious financial considerations.  They often cannot afford the “objective” tests to fully explore the extent of their diagnoses. Moreover, there are no objective tests to diagnose depression, schizophrenia, anxiety, etc. The very nature of these claims requires a thorough examination of the claimant’s expression of disability to diagnose, evaluate and treat. The SSA cannot possibly ignore the claimant’s accounts of their disability and do an adequate job of evaluating these claims, especially the ones based upon mental illness. 

The SSA needs to jettison these proposed rule changes, and stick with the controlling weight standard that has been in place for 25 years. Furthermore, they need to allow the judges to evaluate claimant testimony without rigid rules that discount their personal evidence.

To comment on the SSA proposal, follow this link: Regulations.gov – Docket Folder Summary and press the “Comment Now!” button. Comments are due Nov. 8 (next Tuesday, aka Election Day).  

Please contact an experienced Social Security Disability lawyer with specific questions about the details of your case.