Despite Nationwide Attack on Benefits, Wisconsin Has It Good.

Benefits for injured workers are under attack in many– if not all– states around this country.  As a member of the Worker’s Injury and Law and Advocacy Group (WILG), I attended a national conference recently regarding the status of worker’s compensation systems and benefits around the country.  Sordid tales exist.  Despite the political positive talking point about the benefits from worker’s efforts and labor around the country, the reality is continual political and legislative efforts to undermine worker’s compensation benefits.

Specifically, in the past 20 years, average total benefits to injured workers have declined by 40%.  Running concurrent with the decline in benefits for injured workers over the past two decades are insurance company profits.  Worker’s compensation still remains a hugely profitable industry – generally the second most profitable line of insurance in the country (second only to auto insurance)!  Worker’s compensation insurance companies continually reap profits, while simultaneously, workers’ benefits are being reduced around the country.  There are a host of legislative and statutory mechanisms employed to reduce benefits.  These include capping the amount of weeks of medical treatment, medical fee schedules, limitations on attorney’s fees, “opt-out” provisions, limitations on claims for occupational diseases and mental health claims, limitations on the definition of “in the course and scope of employment”, and limitations on who is or is not an employee…among many other tactics. 

In certain states, like Montana and Georgia, there are now caps on the amount of weeks of medical treatment.  After a certain amount of weeks of medical treatment (example of 400 weeks), there can be a hard cap on medical treatment liability for the worker’s compensation insurance company.  Even if a worker’s medical treatment continues beyond that date, worker’s compensation would have no further liability – which means the health insurance or public taxpayer (through Medicare or Medicaid) ends up holding the bag.  This is a direct example of cost shifting to increase the profits of the worker’s compensation insurance industry. 

So far, Wisconsin has been relatively immune from these ill effects around the country.  Listening to my colleagues around the country, the Wisconsin worker’s compensation system is still in an envious position.  It is a beneficial system for workers, employers, and the insurance industry.  Despite our current stable status, injured workers and their representatives in Wisconsin should remain vigilant of the tales of woe around the country.

As a cautionary tale to any legislators considering changes, a recent court decision in Florida declared the worker’s compensation system in that state unconstitutional because of its failure to adequately provide benefits to injured workers.  Essentially, the “deal” between employers and employees, whereby employees gave up the right to a jury trial in exchange for guaranteed, lesser benefits regardless of fault, had tilted too far to one end, thereby violating due process under the constitution.  If politicians go too far in limiting benefits, the worker’s compensation system could be deemed unconstitutional – thus throwing injury claims back to the uncertainty of a jury trial.  

We have a stable system in Wisconsin–one that generally benefits both workers, employers, and the insurance industry.  Any changes to the “great bargain” of worker’s compensation could have ill effects for all.

 

That’s Not Fair!

“That’s not fair!” 

I continually receive this response when I tell an injured worker that they cannot sue their employer based on their work injury and its effects.  Despite the media barrage many workers equate worker’s compensation with personal injury law.  The concept of fairness and fault quite frankly have no real place in the worker’s compensation system. 

As discussed in prior posts, the worker’s compensation system is based on a “deal” between employers and employees, dating all the way back to 1911 in Wisconsin.  Workers, in effect, gave up the right to sue in Circuit Court, along with their right to a jury trial and verdict, in exchange for certain, guaranteed, and lesser payments, regardless of having to prove fault.  Employers give up the right to their common law defenses (assumption of risk, co-employee negligence, and contributory negligence) and avoided the uncertainty of high jury verdicts, while simultaneously accepting liability (and requirement of worker’s compensation insurance) for all work-related injuries.

For most employees, the system works very well.  This is because generally only 10% of work-related injuries have provable “fault.”  These statistics were from a recent seminar I attended through the Worker’s Injury Law and Advocacy Group.  This means that–on average–only 10% of work injuries could an injured worker arguably claim was based on negligent or intentional acts of the employer or a co-worker.  Thus, for the other approximately 90% of workers, the worker’s compensation system is a huge beneficial safety net.  Without the worker’s compensation system, these workers could be off work, without any type of income or medical bill payment.  It is helpful to remind injured workers of this incredibly relevant statistic.

When asking injured workers to actually define who could have been responsible (if this was a personal injury system) for their injury, the responses generally are difficult.  In most instances, there is no one to blame–it was an accidental injury.  This is a reminder to injured workers of the true benefits of our stable and beneficial worker’s compensation system in Wisconsin.

Are You Kidding Me? Jimmy John’s Makes Sandwich Makers Sign Non-Compete Agreements

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

I thought I was reading “The Onion” when I read that Jimmy John’s was forcing lowly paid sandwich makers in Illinois to sign non-compete agreements. Unfortunately, this is true, and that is tragic for Jimmy John’s employees and employees everywhere.

If there is a silver lining to this dark cloud for employees, it is that these agreements are generally not enforceable. My reading of Nebraska law leads me to believe that a non-compete agreement for a sandwich maker would not be enforceable. In Nebraska, non-compete agreements are only enforceable if 1) they are not injurious to the public and 2) protect some legitimate interest of the employer and 3) are not unduly harsh and oppressive upon the employee. Obviously these non-competes are unduly oppressive and harsh to employees, but they likely also do not protect a legitimate interest of Jimmy John’s. Employers can be protected from unfair, but not ordinary, competition. What unfair competitive advantage can an $8-per-hour sandwich maker give to another sandwich-making shop? Nebraska has struck down non-compete agreements for much more highly paid workers, like sales professionals whose livelihood depends on building relationships with customers. I cannot see how any court could equate a sandwich maker making the minimum wage with a highly-compensated software or farm-products salesperson.

But such legal reasoning is cold comfort for a low-wage worker who is stuck with one of these agreements. Such treatment of Jimmy John’s and fast-food workers in general explains efforts to unionize Jimmy John’s workers and other fast-food workers. If you are a food worker who receives one of these non-compete agreements, I would be happy to consult with you. I would also encourage you to visit jimmyjohsnworkers.org and/or fightfor15.org.

Also remember that an election is 12 days away in Nebraska, Iowa, and most of the rest of the country. Please get out and vote, and vote for candidates who support employee rights.

Low Wage Jobs are on the Rise

Those of us representing injured workers have recognized a trend in recent years affirmed by a new study by University of Wisconsin – Milwaukee Professor Mark Levine. His study indicates jobs in low wage occupations have increased substantially since 2000, with that growth accelerating since 2010.

Levine’s study found that in 2000, low wage occupations accounted for about one quarter of Wisconsin’s jobs with middle wage occupations accounting for more than half. But by 2013, low wage occupations made up over 30% of the State’s employment. 

The study indicated low wage occupations with a median wage of $12.50 per hour or less, middle wage occupations with a median of $12.50 to $25.00 per hour, and high wage occupations with a median above $25.00 per hour. Jobs in the high wage occupations increased substantially through 2007, then fell during the recession and recovery.

The findings in Wisconsin mirror nationwide findings of the National Law Employment Project, an advocacy group for low wage workers and the unemployed. Commentators also noted the findings in the Wisconsin study confirm findings for the U. S. national economy, which indicates job growth has been mostly in low skill, low wage areas.

Those of us that practice in the worker’s compensation arena have noted the number of workers earning maximum wages in Wisconsin (over $1,320 weekly) are much more rare since the Great Recession. Worker’s compensation benefits for Loss of Earning Capacity, for example, is obviously much greater for a maximum earnings worker than for a worker earning $8.00 or $9.00 per hour. The loss of high paying manufacturing jobs that used to exist in Milwaukee and throughout the Midwest Rust Belt has had a substantial impact on worker’s compensation claims and recoveries.

Does Workers’ Compensation Cover Ebola?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore, in Nebraska. The law in Wisconsin would be similar for a healthcare worker who contracted Ebola during the course and scope of their employment.

The recent news of Ebola in the United States has given me pause to think whether the nurses in Texas who contracted the Ebola virus are covered under the workers’ compensation system.

Here in Nebraska, the nurses with Ebola would almost certainly be covered. In Nebraska, occupational diseases are covered as long as the illness or injury was peculiar to the particular trade or employment. Generally, regular diseases that the general public is exposed to are not covered occupational diseases. For example, influenza, colds, or even MRSA (a type of antibiotic-resistant infection) would probably not be covered for a healthcare worker. Those diseases could be contracted in limitless places or circumstances. However unlike those diseases, I would think that Ebola coming from one single, easily identifiable source would be covered and would easily be proven to have come from the job of being that patient’s nurse.

Let’s just hope we never get to a point where Ebola becomes widespread enough that it would not be a covered occupational disease. If it does, we will have more problems than the compensability of a workers’ compensation claim. 

Workers Need Adequate Protection from Ebola, Infectious Diseases

Today’s post was shared by Gelman on Workplace Injuries and comes from www.seiu.org

By Alberto Grant, Jr., Airway Terminal Cleaner, John F. Kennedy International Airport, New York

Dozens of New York area airport workers took part in an awareness training provided by SEIU trainers and healthcare professionals. The training came as workers have revealed their lack of training to deal with infectious diseases in light of the Centers for Disease Control’s updated advice on preventing the spread of Ebola in our airports.

I was really glad to know that we would be getting this training, because I don’t think we are getting what we need to keep ourselves safe at the airport.

A lot of us are worried about this because we know there’s a risk of passengers coming through who have Ebola. The equipment we have is just not good enough to deal with that. Also, this training is more than we’ve gotten so far from my company. They told us yesterday we should wash our hands and use gloves, and we could get gloves if we asked. I’ve been working here for a while and just like some contractors, they don’t like to buy good equipment.

When we clean the bathrooms, we are exposed to everything, so I am really glad to know that I’m getting this training. In the past, contractors have told us just to wash our hands and use gloves. Cleaning kits are not readily available to protect against the various bodily fluids we encounter every day. Sometimes all we have are paper towels to wipe down the bathrooms.

That can be a real problem because we have to deal with some tough things — vomit,…

[Click here to see the rest of this post]

It’s Not That Hard

Today’s post was shared by Gelman on Workplace Injuries and comes from daviddepaolo.blogspot.com

A lot of employers try to lower their workers’ compensation costs by fudging the numbers on their payroll reports, or paying workers "under the table," or misclassifying their jobs.

Some employees take advantage of the no-fault design of the system to make claims that didn’t occur, or inflate the severity of the claim.

And there are some people on the claims side that try to "meet the numbers" by denying, delaying and otherwise obfuscating claim realities and legal obligations.

But the penalties meted are different depending upon your place in the system and don’t necessarily reflect the crime.

For instance, WorkCompCentral did an analysis of California Department of Insurance fraud statistics.

Between Jan. 1, 2013, and July 10, 150 individuals were convicted of defrauding workers’ compensation carriers out of $8 million; $6.7 million, or 83.75%, came from 30 of the 77 convictions for premium fraud, such as misreporting payroll, classifying workers as independent contractors or operating without mandatory workers’ compensation insurance.

The CDI data does not have an estimated loss for the remaining 47 of those convictions, but if extrapolated against the "known" losses, then the total for that time period is $17.5 million of losses attributable to employers.

$1.3 million out of that "known" $8 million is attributed to false claims filed by 67 of 73 individuals. Losses for the remaining six of those false claim cases were not included in…

[Click here to see the rest of this post]

2014 Oregon Workers’ Compensation Premium Rate Ranking: Reflection of the Past or Prediction for the Future?

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

The biennial study on workers’ compensation premium rates issued by the Oregon Department of Consumer and Business Services (DCBS) was released last week, and, as always, it is worthy of a review by those of us entrenched within the industry. The study ranks all 50 states and Washington, D.C., based on rates that were in effect Jan. 1, 2014. This year’s results are indicative that major reforms don’t always gain the results that were intended or marketed to the industry; and while it may not accurately reflect legislative action of the past, it may be a better predictor of major reforms to come.

The study shows that despite its extensive reforms designed to lower costs, California now has the most expensive rates in the nation, followed by Connecticut. North Dakota had the least expensive rates. Oregon researchers also compared each state’s rates to the national median (midpoint) rate of $1.85 per $100 of payroll.

According to Mike Manley, one of the co-authors of the survey, “We continue to see a trend in the distribution of state index rates in our study clustering in the middle of the distribution. A record 21 states are within plus or minus 10 percent of the 2014 study median. This makes the rank values more volatile from one study to the next. I would recommend that states look also to their ‘Percent of study median’ figure for comparisons over time.”

Because states have various mixes of industries, the study calculates…

[Click here to see the rest of this post]