Tag Archives: North Carolina

Increase in Work-Related Fatal Injuries in 2015 – North Dakota the Highest

According to the Census of Fatal Occupational Injuries, in 2015 the number of work-related fatal injuries increased nationally. There were 4,836 work-related fatal injuries in the United States and 150 work-related fatal injuries in North Carolina compared to 4,821 in 2014.

After the oil-and-gas industry’s sharp increase in work-related fatal injuries in 2014, the industry saw a 38 percent drop in 2015. The occupation with the most reported work-related fatal injuries was “heavy and tractor-trailer truck drivers” with 745. However, logging workers had the highest work-related fatal injury rate at 132.7 per 100,000 workers.

North Dakota reported the highest work-related fatal injury rate at 12.5 per 100,000 workers and Rhode Island recorded the lowest rate at 1.2 per 100,000 workers. North Carolina’s 2015 work-related fatal injury rate was 3.4 per 100,000 workers, with a total of 150 fatalities. In 2014, North Carolina had 137 work-related fatal injuries.

 

2015 Fatal Occupational Injuries Counts and Rates by State of Incident

 

Count

Rate per 100,000 Workers

Alabama

70

3.7

Alaska

14

4.1

Arizona

69

2.4

Arkansas

74

5.8

California

388

2.2

Colorado

75

2.9

Connecticut

44

2.6

Delaware

8

1.9

District of Columbia

8

2.4

Florida

272

3.1

Georgia

180

4.3

Hawaii

18

2.6

Idaho

36

4.8

Illinois

172

2.9

Indiana

115

3.9

Iowa

60

3.9

Kansas

60

4.4

Kentucky

99

5.5

Louisiana

112

5.8

Maine

15

2.5

Maryland

69

2.4

Massachusetts

69

2.1

Michigan

134

3.1

Minnesota

74

2.7

Mississippi

77

6.8

Missouri

117

4.3

Montana

36

7.5

Nebraska

50

5.4

Nevada

44

3.5

New Hampshire

18

2.7

New Jersey

97

2.3

New Mexico

35

4.1

New York

236

2.7

North Carolina

150

3.4

North Dakota

47

12.5

Ohio

202

3.9

Oklahoma

91

5.5

Oregon

44

2.6

Pennsylvania

173

3.0

Rhode Island

6

1.2

South Carolina

117

5.6

South Dakota

21

4.9

Tennessee

112

3.7

Texas

527

4.5

Utah

42

3.2

Vermont

9

2.9

Virginia

106

2.8

Washington

70

2.1

West Virginia

35

5.0

Wisconsin

104

3.6

Wyoming

34

12.0

 

 

 

Total

4,836

3.4

 

 

Workers’ Compensation Medicare Set-Aside (MSA) Not a “Countable Resource” for North Carolina Medicare Eligibility

Earlier this week, the North Carolina Court of Appeals issued an opinion that will improve the lives of many injured workers who need Medicaid assistance after sustaining a work-related injury. 

In the case of Phoebe Williford v. N.C. Dep’t of Health and Human Services and N.C. Division of Medical Assistance, the Court held that assets placed in a workers’ compensation Medicare Set-Aside account should not be considered a “countable resource” for purposes of determining a petitioner’s eligibility for North Carolina Medicaid. This opens the door for many injured workers to now apply (or re-apply) for Medicaid assistance even if they have a separate bank account containing thousands of dollars earmarked for future medical treatment. 

A workers’ compensation MSA is not a piggy bank that an injured worker can use for anything s/he wants. “The purpose of a MSA is to allocate a portion of workers’ compensation award to pay potential future medical expenses resulting from the work-related injury so that Medicare does not have to pay.” The injured worker must keep the funds separate from his/her other accounts, must maintain an accounting, and must only use the funds for future medical treatment related to his/her injuries. MSA accounts are regulated and injured workers must report to Medicare. CMS recently published a toolkit to help injured workers manage their MSAs. As you see, there are specific restrictions and requirements on how the money is used.

In the Williford case, the petitioner originally did not qualify for Medicaid because she had more than $2,000 in liquid assets (i.e. her MSA account). The issue before the Court was whether the petitioner’s MSA account, containing approximately $46,000, should be counted as a “financial resource for purposes of determining the petitioner’s eligibility for Medicaid.” 

The Court concluded that the WC MSA was not a countable resource because “…federal standards clearly establish that, in order for a given asset to be a countable resource, the asset must be legally available to the applicant without legal restriction on the applicant’s authority to use the resource for support and maintenance.” Because there are requirements governing the WC MSA, the funds were not “legally available” “without legal restriction” and not a “countable resource.” 

That said, when settling a workers’ compensation claim any other portion of the settlement (i.e. lump sum cash) would likely be considered “legally available” funds. If appropriate, a special needs trust should be considered in certain cases to avoid these funds from disqualifying a person from Medicaid.

North Carolina Labor Commissioner Race

North Carolina needs a Commissioner of Labor who is fair to workers. Certainly cooperation between employers and employees is key. However, when thousands of workers are not being paid their duly-earned wages, we have a problem.

 

In 2014, the News & Observer published an article entitled “For Many Workers Cheated out of Wages, NC Department of Labor Offers No Help.” The article stated that “[f]or at least 2,011 workers, more than half of the 3,694 who asked for help in the past fiscal year, the agency took no action. Employers didn’t get fined. No one was charged with a crime for not compensating the workers’ time and labor.” When Berry ran for office in 2000, her campaign platform centered on how “[g]overnment should tread lightly in the lives of people and business . . . [w]hen her agency must get involved, Berry favored working in consultation with businesses rather than confronting them.” (see N&O article from 2014, and from 2015 “At NC Department of Labor, Little Help for Unpaid Workers”).

 

Fast-forward to 2016. Cherie Berry is now being criticized for accepting “improper contributions” from corporate executives who have cases pending before her agency. Berry accepted $20,000 from at least four companies which were recently being investigated by the Labor Department. In particular, one donor, Ronald Cameron, is chairman and CEO of Montaire Farms which investigated for a workplace fatality. Berry responded to the criticism by saying that “everyone gets treated the same.”

 

Former Raleigh mayor, Charles Meeker, is running against Berry for Labor Commissioner. Meeker’s campaign focuses on improving worker safety, accurate classification of workers, and making sure that workers are paid what they are owed. Meeker also would like to remove Berry’s photo from all elevators and, in its place, put up photos of working people. Both candidates deserve serious consideration. I encourage you to evaluate them and be sure to vote for the candidate of your choice.

 

North Carolina’s Bathroom Bill

Whether you are a Republican, a Democrat, or a supporter of some other party, don’t we all want fairness and a right to be heard? In North Carolina, those who control the legislature do not seem interested in due process rights.

House Bill 2 (the bathroom bill) was passed and signed by the Governor in 24 hours, without any debate or discussion. I didn’t know there was a problem. Is there a problem? What’s the rush? Where is due process? What happened to a fair hearing?

Fortunately, people are speaking up. People recognize discrimination. They are becoming aware of what’s going on, because it can happen to them. It reminded me of that famous statement in 1946 by a German Pastor, Martin Niemöller:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Can Safety Rules or Regulations Impact a Workers’ Compensation Claim?

In North Carolina, if an employer willfully fails to comply with any statutory requirement or an order of the Industrial Commission, an employee’s injury compensation is increased ten percent. If however an employee is injured because he willfully violated a safety rule set by the employer, then his injury compensation will be reduced if (1) the rule or regulation has been approved by the Industrial Commission’s Safety Education Director AND (2) he knew about the rule. N.C. General Statute 97-12.

For an employer’s adopted safety rules or regulations to be approved by the Industrial Commission, the employer must submit them to the Safety Education Director for review. The Safety Director will then review the rules and approve them if they comply with the general provisions of the safety rules outlined by the American National Standards Institute (ANSI) AND The Occupational Safety and Health Act (OSHA). 04 NCAC 10A. 0411.

The burden of proof is on the party who claims an exemption or forfeiture under N.C. General Statute 97-12.

Hidden Fees In North Carolina

NBC Nightly News reported on December 9, 2015 that North Carolina is one of the worst states when it comes to charging hidden fees for traffic tickets. The segment reported that hidden fees in NC increased an original traffic ticket of $30 over seven fold to $218. While the State has to find funding for the many services they provide that are not profitable, NBC News reported that some of these “hidden fees” pay partly for court costs. But there might be more appropriate places to assess fines to cover court costs.

In 2014 the UNC School of Government wrote a blog based on the Court of Appeals decision in Tyll v. Berry, stating that a party held in civil contempt for failing to obey a court order can be assessed a fine, not just imprisonment.  However, the State Legislature just passed a law clarifying that when someone is found to be in civil contempt a monetary fine is not an appropriate remedy.

Seems to me that a fine is exactly the appropriate remedy when a party fails to obey a court order and that such a fine, payable to the court rather than the opposing party, could be a valuable source of funding for court-related costs. Fines for civil contempt could also alleviate some of the pressure to assess large “hidden fees” for minor traffic violations.  

Read more here: http://nccriminallaw.sog.unc.edu/thought-you-understood-contempt-think-again/

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.

Texas Trench Collapse Results in $400k OSHA Fine and 16 Safety Violations

On July 22, 2015, Hassell Construction Co. was cited by OSHA for 16 safety violations (including 6 egregious willful violations) and given a whopping $423,900 fine. Hassell Construction Co. is a construction company based in Richmond, Texas with about 150 employees that construct water and sewer lines around Houston, Texas. The employer was given 15 business days to comply with each citation, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the OSHA Health Review Commission.

These citations were given after a trench that was 8 feet below the ground collapsed in February crushing an unsuspecting employee. Luckily, the worker was dug out by his co-workers using their bare hands. The minute the worker was freed from the trench, the trench collapsed a second time.

According to OSHA’s regional administrator in Dallas, John Hermanson, “Hassell Construction knew its trenches weren’t safe, but still put its workers in harm’s way.” Due to the fact that trench cave-ins such as the one in February are completely preventable OSHA has also placed the construction company in the Severe Violator Enforcement Program which often inspects employers and mandates follow-up inspections to ensure that they are complying with the law. In North Carolina, a similar incident allowed the employee to sue the employer directly and overcome the exclusivity provision of the North Carolina Workers’ Compensation Act. Woodson v. Rowland. 373 S.E.2d 674 (1988).

Read about the citations here: https://www.osha.gov/ooc/citations/HassellConstruction_1031127_0722_15.pdf

Original Article 7/22/15 posted on WorkersCompensation.com.