Category Archives: Workers’ Compensation

Finding A Way Forward: How I Am Greeting The New Year With Optimism

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

I recently saw a quote that said “we are all just a car crash, a diagnosis, an unexpected phone call, a newfound love, or a broken heart away from becoming a completely different person. How beautifully fragile are we that so many things can take but a moment to alter who we are for forever”.   

During this holiday season, many of us will get together with our families and friends to celebrate our blessings but never expect that in the blink of an eye our lives can change dramatically. A very good friend of mine was celebrating Thanksgiving with her family when a pot of boiling water fell onto her and she suffered severe burns. After spending nine days in the Burn Center and in weeks of excruciating pain, she is living proof that there are no guarantees in life.  

A recent report by Fox News USA shows that unintentional shootings spike during the holidays and are more likely to occur than at any other time of the year due to a number of factors, including increased use of alcohol, holiday gifts of firearms, and children and teens being home from school with more free time. Many of us now rely on online shopping for our holiday gifts, which increases the amount of delivery vehicles on the road. Car crashes spike, as the December holiday season is one of the busiest travel times of the years. Factor in weather that does not always cooperate, and impaired drivers on the road as a result of holiday gatherings, and it is a recipe for disaster. Those who drive for a living are at an increased risk of injury or even death. 

Those who work in the retail industry are not immune from increased risk of injury either. Many of us won’t forget the Black Friday stampede in 2008 when a worker was trampled to death in a Long Island Walmart. In response to that tragedy, the company was fined, they agreed to adopt new crowd management techniques, and  the Occupational Safety and Health Administration (OSHA) issued Crowd Management Safety Guidelines for retailers. The stress of the holidays can cause depression, less sleep, and financial woes that can translate into violence. OSHA notes that workplace violence has remained among the top four causes of occupational death. 

But the promise of tomorrow brings optimism. As we embark on a brand new year, many of us will feel a sense of relief as 2016 was a year filled with turmoil. The presidential election was polarizing for many Americans. Friends became enemies and family members would not speak to one other. Many of us will look to the new year with a sense of a new beginning – a chance to have a fresh start, a renewal of sorts. Many of us will make resolutions to lose weight, to end a bad habit, to become a better parent, spouse or friend. Many will donate to charities. Despite our differences and shortcomings, Americans are among the most charitable nation in the world. According to Giving USA’s annual report in 2015, Americans gave an estimated $358 billion to charity the prior year. There are so many things we can do to improve our lives and the lives of those in our community and our nation. The list of possibilities is endless. For those of us who represent injured workers, we resolve to make workplaces safer and ensure that medical and indemnity benefits are available in the future. Wishing you all Peace, Love, and Good Health in the upcoming year.

 

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.

Dollar Tree Store Cited and Fined for Willfully Exposing Workers to Safety Hazards

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

Note: A quick Google search led me to Glassdoor’s page covering Dollar Tree stores.  Many photos, mostly posted by managers and bemoaning their impossible working conditions, clearly show that the problem identified in Washington is widespread. The caption for the above photo reads “3,000 cartons in per week…” – kc

Dollar Tree Stores Inc., faces a $145,200 fine for workplace safety violations that knowingly put workers at risk.

The Department of Labor & Industries (L&I) recently cited the Virginia-based employer after an inspection at its Aberdeen store found serious, repeat safety hazards.

The company was cited for two willful safety violations, each with the maximum legal penalty of $70,000. Dollar Tree also received a $5,200 fine for a repeat-serious violation. The employer was previously cited for the same violations at its Chehalis location.

The first willful violation was for storing merchandise in a way that created a serious hazard. The inspection found the storage room was a crowded jumble of stacked boxes, bundles and containers that weren’t secured and could topple over at any moment. The haphazard stacks stood as high as nine feet, with heavy boxes piled on top of light ones. Some were leaning due to collapsed boxes or crushed corners.

Improperly stored merchandise can fall on employees causing serious injuries including contusions, broken bones, concussions or even death if the boxes cause an employee to fall and strike their head on the floor. Additionally, lifting heavy boxes into nine-foot stacks is likely to cause strains and sprains or serious back injuries.

The second willful violation cited was for not ensuring that exit routes were free of obstructions. At the time of the inspection, several aisles and passageways were blocked with merchandise. Employees did not have clear paths to emergency exits, and a doorway with two swinging doors couldn’t be exited because it was obstructed by stacks of merchandise or carts full of products.

In addition, there were hazardous products stored in the area, including helium cylinders that are explosive when heated, lighters, and plastic merchandise that would emit toxic fumes in a fire, increasing the danger to employees.

Dollar Tree was cited for a repeat-serious violation for not installing protective guarding or covers over light fixtures that could be struck and broken by the stacked merchandise. Breakage of overhead bulbs is likely to cause eye injuries or cuts from falling glass.

A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition. A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule.

The employer had 15 business days to appeal the citation.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

Photo credit: Glassdoor submission

Workers’ Compensation Nurse Case Managers: Why our firm does not consent to a “task” assignment.

Nurse case managers can be useful for employers and injured workers. Rehabilitative services are frequently used in accepted workers’ compensation cases to help document the medical treatment plan.

 

The term “rehabilitative services” falls under the “Medical Compensation” definition of North Carolina General Statute § 97-2(19). It is also defined under the Rehabilitation Professional Rules (Rule 103) as the “planning and coordination of health care services by a medical case manager or coordinator, with the goal of assisting an injured worker to be restored as nearly as possible to the worker’s pre-injury level of physical function.”

 

When a nurse case manager is assigned to an injured worker’s claim, s/he must comply with the requirements of the Rehabilitation Professional Rules. Specifically, s/he must: meet the requisite qualifications of Rule 105, file a Form 25N: Notice to the Commission of Assignment of Rehabilitation Professional and identify the purpose of the rehabilitation involvement (Rule 107), and, if requested by the injured worker’s attorney, meet with the injured worker and the attorney within 20 days of the request. There are many other rules regarding the nurse case manager’s conduct under Rules 107 (Communication), 108 (Interaction with Physicians), and 109 (Vocational Rehabilitation Services and Return to Work).

 

Despite the foregoing, occasionally an injured worker will receive a phone call indicating that a nurse is requesting permission to attend an upcoming medical appointment. Frequently, these requests are given with little notice and the nurse is unknown to the injured worker. To further confuse the situation, the nurse indicates that his/her involvement is merely a “task” assignment meaning that s/he anticipates popping into the injured worker’s appointment, asking critical questions of the doctor, reporting back to the insurance company and will assume no further role in the case.

 

It is the North Carolina Industrial Commission’s “long-standing position” that “rehabilitation professionals (‘RPs’) who are given one-time ‘task’ assignments do not have the privilege and protection afforded them under the NCIC Rehabilitation Rules because one-time assignments do not meet the definition of medical or vocational ‘rehabilitation.’” Accordingly, “. . . prior to any one-time ‘task’ activity that involves contact with the injured worker or, if represented, the injured worker’s attorney.” (See NCIC Minutes from February 2008).

 

Given the limitations of a “task” assignment and highly limited role of the nurse case manager in those situations, we do not consent to task assignments.

 

 

 

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

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

Age Discrimination Claims in Workers’ Compensation Settlements?

When an employee settles a workers’ compensation claim, the employer often wants to terminate the employee and is cautious because of potential age discrimination. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. (2015), prohibits companies with 20 or more employees from discriminating against a person (40 years of age or older) because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

An individual who has been discriminated against because of his or her age may be entitled to back pay, reinstatement, hiring, promotion, front pay, liquidated damages, and court costs and attorney fees.

To avoid potential discrimination claims after a workers’ compensation settlement, the employer often seeks an ADEA waiver at the same time. For an ADEA waiver to be enforceable, it must:

  • Be in writing and understandable;

  • Specifically refer to ADEA rights or claims;

  • Not waive an individual’s future rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the individuals is already entitled;

  • Advise the individual to consult with an attorney before signing the waiver;

  • Provide the individual with a certain amount of time to consider the agreement:

    • 21 days for individual agreements

    • 45 days for group waiver agreements

    • A “reasonable” amount of time for settlements of ADEA claims

  • Provide a period of at least 7 days following the execution of the agreement, in which the agreement is not effective or enforceable, in which the individual may revoke the agreement.

Some termination agreements may not be enforceable, and the individual may have a valid claim to pursue under the ADEA.

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.