Tag Archives: Workers’ Compensation

Occupational Asthma, or Work-Related Asthma, and Workers’ Compensation

Occupational asthma (OA) is asthma that’s caused or worsened by breathing in chemical fumes, gases, dust or other substances on the job. Typical symptoms of OA are: chest tightness, wheezing, and shortness of breath. OA accounts for approximately ten to twenty-five percent of adult onset asthma. (Dykewicz, MS. Occupational Asthma: Current Concepts in Pathogenesis, Diagnosis, and Management. J Allergy Clin. Immunol. 2009; 123:519.)

Under North Carolina workers’ compensation laws, OA is considered an occupational disease pursuant to North Carolina General Statute §97-53(13). In order to obtain workers’ compensation benefits for OA, an injured worker must show that s/he was at an increased risk of developing OA as a result of his/her employment. Furthermore, the injured worker must show that his or her exposure at work was a significant contributing factor to his/her development of OA.

Treatment with a pulmonologist is essential for the injured worker’s recovery. Frequently the injured worker must avoid working in conditions (i.e. fumes) that will irritate his/her underlying condition. Certain professions are known to have higher likelihood of developing OA. For example, foam insulation installers exposed to diisocyanates, refinery workers exposed to metals (chromium, platinum, nickel), textile workers exposed to dyes, and health care workers exposed to formaldehyde are just a few examples of industries where workers are at an increased risk of developing OA. The Canadian Centre for Occupational Health and Safety published an online Fact Sheet which lists dozens of occupations where workers are at risk for developing OA.

Clearly, the best way to prevent OA is for workers to avoid using or being exposed to harmful substances. If this is not possible, then employers should make efforts to minimize employees’ exposure through ventilation systems or other methods. If you are concerned about your exposure to a substance at work, your employer should have material data safety sheets (MSDS) on site so that you can review any potential health hazards. As always, prevention and education of employees about proper handling procedures is key.

Florida Employers May Lose Their Limited Liability/Exclusive Remedy Defense

“Decimated.” That is the word the Honorable Circuit Court Judge Jorge Cueto used to describe what’s left of Florida’s Workers’ Compensation Act after a series of reforms, notably in 2003, which attacked injured workers’ rights and benefits. After 2003 Florida became one of the most restrictive workers’ compensation jurisdictions in the nation. As it currently exists, Florida’s Workers’ Compensation Act does not provide any benefits for permanent partial disability and medical benefits are very limited.

There is a delicate compromise between employees and employers. Employees give up potential negligence claims against their employer (including damages for pain and suffering) in exchange for access to medical care and disability benefits. Employers thereby avoid lawsuits and are protected from claims by their employees under what’s called the “exclusive remedy” defense. This is the essential trade-off of any workers’ compensation act.

So what happens when you take away almost all of the employee’s rights through legislative reforms every year? Well, according to Judge Cueto, employers lose their immunity for civil lawsuits by employees. As a result, employers may now be vulnerable to lawsuits from their employees for work-related accidents where the employer was negligent, and seek damages, including pain and suffering, from their employer.

It will be interesting to watch developments in Florida as they unfold. However, it should also serve as a reminder about consequences of stripping away injured workers’ benefits under delicately balanced workers’ compensation acts in the future. 

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part III)

In Part I and II of this series we discussed the legislative power shift in 2010 and identified four significant changes.  Here are some more legislative changes, all imposed after 2010:

5.   Even If The Claim is Denied the Employer Can Still Get An IME.

Before 2010, although an employer might be able to get the employee’s medical records once the claim was filed, if the claim was denied the employee took the position that the employer had no right to force the employee to go to an insurance-selected physician for an IME.  That has now changed.

6.   In Second Opinion Rating Evaluations Certain Medical Evidence Can Be Ignored.

An employee has an absolute right to get a second opinion about the extent of a permanent injury, if dissatisfied with the impairment rating given by the insurance-selected treating physician.  Occasionally, this new physician, who was selected by the employee, would make a medical finding that the employee needed further medical treatment or would diagnose another medical condition that had not been evaluated by the treating physician.  This new information would be the basis of a motion to the Industrial Commission for additional medical care.  New legislation states that as to any opinions unrelated to the rating the Commission “must either disregard or give less weight” to these medical opinions.

7.   Restrictions on the Ability to Change Physicians.

Before 2010, the employee had the right to petition the N.C. Industrial Commission to change physicians.  Occasionally there were personality conflicts between the employee and the insurance-selected physician, or the physician would be ignoring certain complaints, or not reporting the complaints in the medical records.  When these matters were brought to the attention of the Executive Secretary’s Office, the Commission had the discretion to authorize a change of physician.  New legislation now requires that the Plaintiff prove by a “preponderous of the evidence” that a change is necessary.

8.   Greater Difficulty Getting Second Opinion for Employee.

Before 2010, the employee could select a physician for a second opinion examination and request the Industrial Commission to approve this physician.  Now the employee must first request approval “in writing” from the employer and attempt to jointly agree on a new physician.  If this effort fails, then the employee can seek approval from the Industrial Commission.  This new procedure is a roadblock to allowing the employee quicker access to a different medical provider.

 

Part IV of the series will discuss other changes, including administrative changes, to the Act.  Stay tuned.

 

 

 

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part II)

 

In 2010 after the Republican Party took complete control of the legislature for the first time since 1898, changes to the system began. As death benefits and funeral expenses were being increased, along with an increase in wage loss benefits, current injured workers were told that new proposals would not affect their claims. True enough, but anyone who was injured after June 24, 2011 would see some fairly drastic changes in benefits:

 

  1. 500 Week Cap On Total Disability Benefits.
    Absent extroardianry circumstances (such as a brain injury) disability benefits would stop after 500 weeks (9.6 years). Thus, for a 25-year-old severely injured person who did not meet one of the exceptions, total disability benefits would stop at age 34 or 35, even though this person could no longer obtain employment in the competitive market place and had been out of the workforce for nearly a decade. For these disabled and unemployable people, the future cost of the injury will be shifted away from the workers’ compensation insurance company to the U.S. taxpayer, through Social Security and Medicare. Before this change, as long as the employee was disabled and unemployed because of his injury, he would be entitled to lifetime disability and medical benefits related to the injury.
  2. Employer Gets Credit For Social Security Retirement BenefitsIf benefits are extended beyond 500 weeks, the employer can reduce workers’ compensation  by 100% of Social Security retirement benefits. This change gives the  insurance carrier a huge financial break at the expense of the elderly and disabled who have earned retirement income.
  3. Even Catastrophic Injury Benefits Can Be Terminated If a person is disabled from a workplace injury because of a spinal injury, brain injury, or serious burns to 33% of the body, then they can get lifetime disability benefits. However, if the employer can show that this individual can return to “suitable employment” then those benefits can be terminated or suspended.
  4. New Definition of Suitable Employment After Maximum Medical ImprovementIn the above context, suitable employment means employment that the employee is capable of performing, considering his pre-existing and injury-related physical and mental limitations, vocational skills, education and experience, and is located within a 50 mile radius of the employee’s residence at the time of injury or elsewhere if there was a legitimate reason for leaving. [Before leaving the Tarheel state, be sure to get approval that the move is legitimate. Otherwise, you may get a job offer that is within the 50 mile job radius.]

Part III will discuss further changes to the workers’ compensation system. Stay tuned.

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part I)

In this four-part series we will take note of specific changes to the Workers’ Compensation  Act in North Carolina since 2010, when the Democrats lost control of the Legislature. The Act was created in 1929. Its purpose was to take care of the human wreckage caused by workplace injuries and to make the employer pay for these injuries as a cost of doing business. In exchange for this new no-fault system, the employee gave up the right to sue the employer in civil court and the right to a jury trial; damages for pain and suffering were not allowed; and the employee got limited but supposedly quick payment of disability benefits. The employer paid for 100 percent of medical care, but was given the right to select the medical providers.

 

In 2012 Republican Pat McCrory, the former mayor of Charlotte and a Duke Power employee for many years, was elected governor.  The Democrats had been in control of the state for decades and prior to 2010 Democratic governors had appointed all the  current Commissioners (7) to the Industrial Commission, and  most Deputy Commissioners (20)  were hired by the Democratically appointed Chair of the Commission.  North Carolina has always been a business-friendly state, and before 2010 it was consistently ranked in the top five as one of the best places to do business. It’s a “right to work” state and although some unions are present, the state has always been considered anti-union.

 

From time to time pro-business Democratic legislators would attempt to overhaul the Workers’ Compensation Act. Major legislative changes were made in 1994, for example, and various amendments have been made since then, nearly always initiated by the business community. In 2008 when the national economy crashed, North Carolina’s went with it and what was left of the old manufacturing base of tobacco, furniture and textiles took a nose dive. Unemployment soared to 11.4% by 2010. Fewer employed workers meant fewer claims, less losses and relatively low premiums for workers’ compensation insurance. Wages are relatively low in this state, and you only get two-thirds of your average weekly wage. Additionally, there is a cap on the amount of weekly  disability benefits that can be recovered. For instance, in 2010 the maximum benefit was $834 per week or $43,368 per year (if you had a job paying $86,000.00 per year, plus other benefits,  that’s nearly a 50% drop in income as a result of the workplace injury). If you had a low paying job ($7.20 an hour for 40 hours), your disability rate would be $193.34 per week.  Once the compensation rate is set it never goes up, no matter how many years you may be disabled.

 

With this background in place as the new legislature came in, it immediately began to make changes to the system. Two of the changes were good for injured employees : (1) death benefits went from 400 weeks to 500 weeks, along with an increase in allowed funeral expenses from $3,500 to $10,000.00, and (2) wage loss claims (where an employee goes back to work but at a reduced rate of pay) went from 300 weeks to 500 weeks.

 

The next blog (Part II) will show other significant changes to the system.  Stay tuned.

 

The SMART Act and Workers’ Compensation

United States Congress

Medicare should not pay medical bills that are the primary responsibility of a third party. When they do, they want to be reimbursed, and all parties understand that concept, but the problem is the lengthy delays and lack of due process. The SMART Act, which was signed into law by President Obama on January 10, 2013, amends and reforms the Medicare Secondary Payer Act to improve the reimbursement process. It is located in Title II of H.R. 1845 and entitled “Strengthening Medicare Secondary Payer Rules.”

Section 201 requires CMS to maintain a secure web portal with access to claims and reimbursement information. Payments for care made by CMS must be loaded onto the portal within 15 days of the payment being made. The portal must also provide supplier or provider names, diagnosis codes, dates or service, and conditional payment amounts. Moreover, the portal must accurately identify that a claim or payment is related to a potential settlement, judgment or award. After several steps, the parties may download a final conditional payment amount from the website. If there is a dispute over the conditional payment amount, CMS must respond/resolve the dispute within 11 days or the proposed resolution by the claimant/applicable plan will be deemed accepted. In terms of appeals, CMS must draft regulations that give applicable insurance plans limited appeal rights to challenge final conditional payment amounts. This process will go into effect around April of 2013.

Section 202 states that by November 15th of each year (beginning in 2014), CMS is required to calculate and publish a threshold for liability claims. If an amount owed is under that threshold amount, CMS is barred from seeking repayment.  Section 205 states the statute of limitations for conditional payment recovery by CMS is three years after the receipt of notice of a settlement, judgment, award, or other payment made.

The SMART Act applies to workers’ compensation cases, so it is important to understand the law and how it will be applied in the future. Read it and follow its implementation closely.