More on the Problems with Opt Out

I came across this article about the continuing problems and concerns about Opt Out worker’s compensation plans: Opt Out: A Painful Reassessment.

One major take-away: these opt out plans have grown in the absence of informed public debate.  The more one can shine a spotlight on the inadequacies, failings, cost-shifting, and problems with opt out plans, the more these plans will fade away and lose legislative momentum.  

“Ban the Box”: Good for People with Disabilities

Today’s post was shared by US Labor Department and comes from

a job application with the question

Over the past few years, a growing list of city, state and local governments; organizations; and private companies have come forward to support “Ban the Box.” It’s an initiative to persuade employers to remove the question “Have you been convicted?” from job applications and delay that inquiry until the final stages of the hiring process. The goal is for employers to make hiring decisions based on a candidate’s skills and qualifications, not their past transgressions. This month, President Obama took an historic step by directing the Office of Personnel Management to take action to ban the box in federal employment. As a result, OPM will modify its rules to delay inquiries into criminal history until later in the hiring process.

Encouraging employers to make this shift is critical. An estimated 70 million Americans — one in four adults — have a criminal record. Employment is a stabilizing factor in anyone’s life, providing a sense of structure and responsibility, and it’s strongly correlated with reduced recidivism for those reintegrating into the community following incarceration. Because employers often hesitate to hire an ex-offender, not having to check that box can make a massive difference.

Marsha Temple, of Los Angeles’ Integrated Recovery Network, knows well the stories of many of the individuals for whom the box is a major barrier. For more than 15 years, she has worked to improve mental health…

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Opting Out of Responsible

Today’s post was shared by WC CompNewsNetwork and comes from

A few weeks back I wrote about the most recent Opt Out news, a ProPublica/NPR article looking at the Federal Governments potential interference in workers’ comp with Opt Out being a final ingredient in the interventional stew. In that article I had a bit of fun with a public relations firm hired by ARAWC, the Association for Responsible Alternatives to Workers’ Compensation, which is a trade association of employers looking to expand Opt Out to states beyond Texas and Oklahoma. A statement from the firm, Jones Public Relations, referred to their client, ARAWC, as the “Association for Alternatives to Workers’ Compensation”.

They completely omitted the word “Responsible” in the statement. It was a gaffe noted here, then picked up and tweeted by numerous people, including Michael Grabell, author of the ProPublica article that started the entire conversation to begin with.

While we all had a good chuckle at what we thought to be an obvious mistake, the PR firm appeared to double down on that notion the very morning after my article was published. A representative claiming to be calling for ARAWC (I would later confirm via LinkedIn that the person worked for Jones PR) called my office and wanted to speak to me. They wanted to provide comment on the story. I was not in the office, as I was attending a conference in Raleigh, NC. The associate who relayed the message to me was laughing when doing so, as the person in the office who took the…

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States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Today’s post comes from guest author Hayes Jernigan, from The Jernigan Law Firm.

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.


To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

Workplace Deaths in Wisconsin Still Happen

While workplace deaths in Wisconsin are occurring less frequently, the unfortunate reality is that they still happen.  Workplace fatality statistics can be found here.

Another worker died recently while at work: Man Dies in Kaukauna Trench Collapse. It appears a man was working in a trench in Kaukauna when it collapsed.

These accidents are tragedies for everyone involved.  And worker’s compensation is an inadequate remedy.  Under the Worker’s Compensation Act, there are potential death benefits available to a deceased workers “dependents.”  If a worker dies from a workplace incident, the death benefit is equal to four (4) times the worker’s annual earnings (subject to a cap).  The insurance carrier also is responsible for burial expenses, currently up to $10,000.

The law also defines who is a statutory “dependent” eligible for the death benefits–generally a live-in surviving spouse or surviving child/children under the age of 18.  However, the laws related to dependent death benefits are incredibly ambiguous and frequently litigated, as the possibility exists for other types of dependents to make claims (including non-live-in spouses, disabled children over 18, parents, and other familty members).  It is wise to consult with an experienced worker’s compensation attorney if there are issues regarding who is/is not a dependent of an deceased worker under Wisconsin law.

If there are no dependents of a deceased worker, the insurance carrier pays the death benefits amount to the State Fund.  


LEGISLATIVE ALERT: Worker’s Compensation Destruction Bill?

Time to wake up Wisconsinites! In a short timeframe, the current administration and legislature in Wisconsin has altered the landscape of our state in ways too numerous to count. Well, now we face another attempt to make-over and deform a progressive era landmark: Wisconsin’s Worker’s Compensation System.

A recent bill (LRB 1768) proposes direct and major changes to our state’s nationally recognized model worker’s compensation (WC) system. The proposed changes would dramatically alter and potentially devastate the stability of the system for all stakeholders. We urge all legislators not to support LRB 1768. Instead, there will be a separate, reasoned bill produced by the Worker’s Compensation Advisory Council.

Current System Works for All Stakeholders

Under the grand bargain of Wisconsin’s first-in-the-nation WC system from 1911, injured workers gave up the right to court lawsuits in exchange for timely, lesser, defined benefits without having to prove fault. Employer, in turn, are protected from unknown jury damage awards. Employers purchase WC insurance for this administrative dispute resolution process. The system safeguards the concept that work injury expenses appropriately are an employer’s cost of doing business rather than costs shifted to taxpayers through public assistance such as disability payments and Medicare and Medicaid.

The current system is highly effective for all stakeholders—making our system the gold standard compared to the rest of the country. Wisconsin traditionally has low and stable employer premiums. We have over 300 private section WC insurance carriers collecting premiums (in excess of $1.7 billion). We have faster return to work rates than in most states. We have incredibly low litigation costs and low litigation rates (only 10-15% of work injuries).

Work Comp Advisory Council (WCAC) is the bedrock of Wisconsin’s WC system 

Much of the credit for the beneficial metrics in our national model is from the stability offered by the Worker’s Compensation Advisory Council (WCAC). This Council, composed of voting members of labor and management (including the Wisconsin Manufacturers and Commerce, WMC), has typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produced reasoned, incremental changes that maintained the stability of the system for all stakeholders—employers, carriers, and workers. The WCAC generally has immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

Importantly, the WCAC successfully produced a reasoned Agreed Upon bill in the past weeks! (more details below).

The Proposed GOP Bill (LRB 1768) Would Decimate Worker’s Compensation in Wisconsin

A recent video highlights the egregious nature of the proposed bill:

The bill proposed by GOP legislators was not from or considered by the Advisory Council—it is an end-run around the stability-producing model.  LRB 1768 is a direct legislative attack on the WC system, introducing dramatic and foreign concepts to our system. Among the more outlandish proposal are the following:

  • Reducing WC benefits by amount of employee negligence!
    • This proposal eviscerates the “grand bargain” of WC, whereby a worker who suffers an on-the-job injury receives lower, defined benefits without regard to fault and employers, in turn, are protected from unknown jury damage awards.
    • It would force employees to prove the injury was not their fault while still protecting employers with the WC exclusive remedy (and with no corresponding change in benefits for employer negligence/fault)
    • Also, without any method provided for determining negligence, there would be a massive increase in uncertainty, litigation, and claims costs/premium. 
  • Employer-Directed Medical Care
    • Currently, workers have the right to medical providers of their choosing—creating a system where workers have access to timely, specialized medical care. This quality, unrestricted medical care produces great results: faster return to work rates than most states in the country!
    • Proposed employer-directed medical care allows the employer to choose a specific practitioner for an injured worker (e.g., a podiatrist could be designated to address work injuries, including a back claim). As such, a worker may not receive the appropriate specialized medical care, like physical therapy, chiropractor, psychology, or orthopedic specialist.
    • Employer directed medical care likely means a race to the bottom, focusing on which doctors best minimize WC benefits. The focus should be on swift access to quality medical care.
  • Harsh Reduction from 12 year to Two (2)-Year Statute of Limitations (SOL)
    • WC injuries can result in lengthy healing periods and long-term medical care.
    • A 2 year SOL directly cost-shifts the burden for WC injuries to the taxpayers (Medicaid, Medicare, SSDI).  Taxpayers should not be left holding the bag for the cost of work injuries.
    • A 2 year SOL will result in exponential litigation of WC claims.  WC attorneys will be forced to file applications on any/all claims to preserve the SOL.  Wisconsin could turn into Illinois (!) where litigation rates are 80-85%, versus our current 10-15% rate.
  • Elimination of PPD ratings
    • Current law utilizes minimum permanent partial disability ratings, established by an independent panel of physicians decades ago.
    • The GOP proposed bill would eliminate PPD minimums.  Further explosion in litigation would result as previously uncontested claims would now result in disputes between worker and adverse physician ratings.
    • Notably, the recently-produced WCAC bill provided a reasoned approach to any concerns over PPD ratings, by recommending an independent physician panel review of the ratings.
  • Elimination of benefits if misrepresentation on employment application
    • This ill-considered provision precludes benefits if an employee lied about physical condition on employment application.
    • Such a provision introduces potentially discriminatory quizzing of prospective employees.  It further introduces more litigation issues into this no fault system

The cumulative effect of the GOP bill provisions were not adequately deliberated. The result would be an exponential increase in litigation and a destabilizing effect on the WC system—meaning increased litigation costs, lengthy delays in claims, and increased employer premiums. Any crack in the grand bargain could open the floodgates to potential unlimited damages in personal injury liability lawsuits. One major injury could result in significant jury awards (See

In stark contrast is the recent WCAC bill ….

WCAC Successfully Produced a Reasoned Reform Bill

The Advisory Council, on October 26, 2015, successfully produced an Agreed-Upon WC Bill. This reasoned WCAC bill was agreed to by labor and management—including the Wis. Manufacturers & Commerce (WMC), who sit on the Council. All stakeholders should get behind this Advisory Council bill. The full statutory language will be available in the upcoming weeks.

As opposed to the GOP bill (LRB 1768), the Advisory Council bill creates WC changes that benefit all stakeholders, especially the employers of our state. Some “employer-friendly” provisions include the following:

  • Worker’s violation of alcohol or drug policy (if related to injury) denies benefits.
  • No lost time benefits (TTD) if terminated for good cause (using recent unemployment standards)
  • A reasonable and manageable reduction in statute of limitations from 12 to 6 years  (vs a 2 year SOL which would drastically alter the system).
  • Establishing DOJ position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Thus, the Advisory Council produced a bill that addressed many management/employer concerns about the WC system. The Advisory Council listened and—as it has done for decades—successfully produced reasoned changes to the system. The stability of the system is preserved for all stakeholders. The WCAC Agreed-Upon Bill should be supported.

Nationwide Decrease and Attack on Worker’s Compensation Benefits

Bernie Sanders and nine other federal legislators sent a letter to the Dept. of Labor scrutinizing increasing attacks on workers’ rights.

Recent news stories have begun to shed light on the ever-increasing attack on worker’s compensation benefits around the nation.   Further awareness has spurred legislators to action.  Click here for a recent letter from federal legislators to the Department of Labor Secretary to scrutinize what is happening to workers and worker’s rights in this country.
It does not appear any state is immune from these worker’s compensation “deform” proposals.  Rumblings in Wisconsin suggest proposed changes to our nationally-recognized model are coming.  We will keep Wisconsin workers and taxpayers informed as information occurs. 
We must always remember that as worker’s compensation benefits decrease and eligibility criteria become more difficult, the taxpayers are often left holding the bag.  Accidents unfortunately still happen.  Workers get hurt.  Medical treatment is needed.   If an employer or worker’s compensation insurance company avoids liability, those costs are shifted to the taxpayers through government-funded insurance (Medicaid/Medicare) and other social safety net mechanisms.   Legislators must be careful to not shift the cost of a work injury from the cost of doing business (employer) to the taxpayers.

We’re Having A Worldwide Heat Wave: How You Can Stay Safe

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

A few weeks ago, I read about a crisis occurring in Pakistan and India. In Pakistan, a week-long heatwave killed more than 1,200 people and in India, the heat killed close to 2,200. Tens of thousands more were treated at area hospitals for heatstroke. It appears that the combination of prolonged temperatures above 100 degrees combined with power outages had a devastating impact on people.

As I read the news while sitting in the comfort of my air conditioned home, I thought briefly about the fact that we are all so lucky that events such as this rarely happen in this country. We have the resources and the alternatives available if we lose power or if we don’t have air conditioning during a heat wave. The City regularly opens up cooling centers or keeps City pools open longer so that residents are able to combat some of the more severe heat of the day.  However, not all of us are lucky enough to work inside where it is cool or engage in work activity that is not strenuous. What about those who work outside, or do heavy labor without the benefit of air conditioning? How do they protect themselves from the extreme heat that may be a part of their everyday work?

I was surprised to find out that each year, hundreds of people die due to heat-related illnesses and thousands more become ill. Outdoor workers are particularly vulnerable to heat stress.  According to the U.S. Department of Labor Blog, thousands of employees become sick each year and many die from working in the heat. In 2012, there were 31 heat-related worker deaths and 4,120 heat-related worker illnesses. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may manifest as heat rash or heat cramps, but can quickly escalate to heat stroke if precautions aren’t taken.

I am always surprised when I see firefighters on days with extreme heat fighting fires or see construction workers, road workers, or landscapers outside in the day-time heat engaged in strenuous physical. I often wonder how they are able to work without collapsing. The answer is that many of these workers become used to the extreme heat and are acclimated to it. Heat illness disproportionately affects those who have are not used to working in such extreme temperatures, such as new or temporary workers.

The Occupational Safety and Health Administration has a campaign to prevent heat illness in outdoor workers. It recommends providing workers with water, rest, and shade, and for them to wear light colored clothing and a hat if possible. OSHA advises that new workers or workers returning from vacation should be exposed to the heat gradually so their bodies have a chance to adapt. However, even the best precautions sometimes cannot prevent heat-related illness.   According to WebMD, signs of heat exhaustion include fatigue, headaches, excessive sweating, extreme thirst, and hot skin. If you have signs of heat exhaustion, get out of the heat, rest, and drink plenty of water. Severe heat illness can result in heat stroke. Symptoms of heat stroke include convulsions, confusion, shortness of breath, decreased sweating, and rapid heart rate, and can be fatal, so please be aware and seek immediate medical attention if you have any of these symptoms.      

For those who work outside in the boiling heat, heat illness can be prevented. However it can also kill so please be careful and remember – water, rest, and shade. 

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.