Disclosure Bias In Workers’ Compensation

Dr. Sunita Sah

I read most things through the narrow prism of a lawyer representing injured workers and a Law Professor teaching Workers’ Compensation. I read with fascination Dr. Sunita Sah’s (M.D., MBA, Ph.D., Cornell University Professor) recent article in the New York Times (07/10/16) on “Disclosure Bias,” one of her research interests. Her theory: Although bias disclosure is supposed to act as a warning (to consumers, advisees, clients), it often has the opposite effect, making advisees more likely to follow biased advice.  For example, doctors view their own specialties as delivering more effective treatment than others to recommend treatment options. (chiropractors use hands, surgeons like scalpels, physiatrists prefer needles).

Dr. Sah’s research found that even (and especially) when the doctor discloses her bias, patients are more likely to follow the advice since the disclosure “creates increased pressure to follow the advisor’s recommendation.”  This increased pressure runs the gamut from recommendations on prostate cancer treatment to financial conflict.

In the workers’ compensation world, even though I disclose my lawyer’s preference when I advise clients on  things like choice of venue (Milwaukee or Madison), type of claim (occupational or traumatic), kind of treatment (surgery or pain clinic), or even case tactics (settle or go to trial), Dr. Sah’s research cautions against the unintended consequences of disclosure bias.  Since clients do not want to signal distrust to their advisor, or indicate I may be biased, the disclosure itself may become a burden on clients.  (One more thing to worry about. . . )

Opt out declared unconstitutional!

The Oklahoma Supreme Court declared the “opt out” law unconstitutional. This victory for injured workers will echo throughout the country and serves as a cautionary tale for any state considering similar discriminatory laws. 
 
Read about the decision in detail here.

Countertop Workers Face Silicosis Risk from Engineered Stone Countertops

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

Engineered stone countertops, a popular fixture in today’s homes, pose a health risk to workers who cut and finish them. The danger stems from the material the countertops are made from, processed quartz, which contains silica levels up to 90 percent. Silica is linked to a debilitating and potentially deadly lung disease known as silicosis, as well as lung cancer and kidney disease.

While the countertops do not pose a risk to consumers in their homes, they do pose a risk to the workers who cut and finish them before they are installed. When the countertops are cut, silica particles are released into the air, which when breathed in by the workers can start processes leading to silicosis. Manufacturers of the engineered stone countertops assert that worker hazards can be reduced through the use of protective respirators and equipment designed to trap silica dust. Despite this assertion, many safety precautions taken by employers are often inadequate.

The first documented case of silicosis among countertop workers in the United States was reported two years ago. In countries such as Israel and Spain, where engineered stone products gained their popularity, many more countertop workers have been diagnosed with silicosis and have had to undergo lung transplants. The danger of silicosis in the construction industry led OSHA to recently issue new rules requiring construction workers’ silica exposure to be reduced by 80 percent beginning on June 23, 2017.

CNBC: If you’re sitting at your desk, GET UP NOW!

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

Causey Law Firm has taken small steps to implement ergonomic planning in our office.  We have one Varidesk sit/stand desktop conversion in use, like the one shown in the video, as well as a fully convertible sit/stand desk and adjustable-height rolling cart in our file room.  Several people use a FitBit or similar device to encourage and track movement throughout the day. It’s not easy to integrate motion into a desk job, but it can really help!  Take a look at this great piece from CNBC for inspiration:

If you’re reading this article at your desk and you’re sitting, get up. It is one of the best things you can do for your health. If you don’t want to stand, then do something active while you’re sitting. Millions of workers are choosing to do both, thanks to a slew of new office products that are gaining traction — and dollars — fast.

“This is no longer just a one off, it’s a product category,” said Thompson Research Group’s Kathryn Thompson, an analyst who covers the office furniture industry. “Fitness equipment is a critical part of the new office, and it’s really a critical part of the office of the future.”

The “healthy office segment” is the fastest growing sub-sector of the $10 billion office furniture industry, and Thompson estimates it could grow to one-third of the industry in the next three to five years. Workers and employers alike are demanding it. 

“Good health makes good economic sense,” Thompson said.

Attention to workplace fitness really ramped up in just the last few years, after the Mayo Clinic published a study on the detrimental effects of sitting for long periods of time. Mayo’s Dr. James Levine is credited with coining the term “sitting is the new smoking.” He is also inventor of a treadmill desk.

Read the rest of the article here…

 

Fault: Creeping Back Into Workers’ Compensation

Workers’ Compensation is a compromise. As originally crafted in 1911 and as interpreted, Wisconsin Workers’ Compensation is a compromise in which both employers and employees surrender certain advantages in order to gain others that are deemed more important. Employers give up the immunity that would otherwise apply in cases where they were not at fault and employees surrender their former right to full damages in the few instances when they could recover under tort law and instead accept more modest assured benefits for injuries and deaths (without having to prove fault).

The concept of negligence should play no role whatsoever in the workers’ compensation system. The doctrine of liability without fault is part of the compensation system; the 1911 legislature attempted to guarantee payments by the employer for injuries arising out of and in the course of employment. The economic burden shifted from the employee to the consuming public.  

Traditionally, the only vestiges of fault and negligence that remained in Wisconsin involved penalties involving employer or employee safety violations. If an employee was hurt because of the employer’s safety violation, the benefits to which the worker was entitled were increased by 15% and paid directly by the employer. Similarly, if the employee committed a safety violation causing injury, benefits from the insurance carrier or self-insured employer could be reduced by 15%. 

Recent revisions in the law, effective March 2, 2016, chip away at the “Grand Bargain,” the legislative deal made in 1911 where workers surrendered all rights to sue their employers for negligence in return for which the employer paid for work-related injuries regardless of fault. 

An employee who had sustained a work-related injury and would return to work for an employer has always received the protection of the Workers’ Compensation Statute. Even if the employee was terminated for good cause during a post-injury healing, he was entitled to continued receipt of Temporary Total Disability benefits (2/3 of time-of-injury wages). However, effective March 2, 2016, a new Statute now states that if an employee is discharged or suspended for misconduct or substantial fault, as these terms are defined by the Unemployment Compensation statutes, the employee’s Temporary Total Disability benefits could be suspended. The legal standard for what constitutes “sufficient grounds for termination for misconduct” and “substantial fault” will be defined by the Unemployment Compensation Law (These are employer-friendly changes that were implemented in the UC system in 2014). 

Going forward, administrative hearings in both the Unemployment Compensation and Worker’s Compensation forums will occur. The issue of whether a decision binding on one forum will be binding on another remains to be seen.  A worker could face the “double whammy” of being denied benefits in both the workers’ compensation and unemployment compensation case.

Additionally, the new law indicates that an employee who violates an employer’s drug and alcohol policy at the time of injury (where the violation is causal to the injury) is not entitled to anydisability benefits under the Workers’ Compensation system. This harsh 100% penalty is a substantial change from the now pedestrian 15% diminution that formerly applied to injuries before March 2, 2016.

Lastly, the new law allows apportionment of Permanent Partial Disability in cases of traumatic injuries between that permanency caused by the work injury and that “caused by other factors.” The statute is silent as to the meaning of the term disability, or “other factors,” and the problems raised by the possible interpretations of these terms will be determined in subsequent court decisions.

The net result will clearly be more disputes in the supposedly “no fault” compensation system—likely resulting in more litigation and potentially raising the cost of workers’ compensation for all stakeholders.


1. 2015 Wis. Act 180 (effective March 2, 2016) made significant changes to the workers’ compensation law—for employers and employees.  This blog will explore those changes in a series of upcoming posts.

Injured Workers Suffer As ‘Reforms’ Limit Workers’ Compensation Benefits

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

Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he's still fighting with North Dakota's insurance agency to get the help he needs.Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he’s still fighting with North Dakota’s insurance agency to get the help he needs.

Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he’s still fighting with North Dakota’s insurance agency to get the help he needs. Jeff Swensen for ProPublica hide caption

itoggle caption Jeff Swensen for ProPublica

Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he's still fighting with North Dakota's insurance agency to get the help he needs.
Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he’s still fighting with North Dakota’s insurance agency to get the help he needs.

Jeff Swensen for ProPublica

Dennis Whedbee’s crew was rushing to prepare an oil well for pumping on the Sweet Grass Woman lease site, a speck of dusty plains rich with crude in Mandaree, N.D.

It was getting late that September afternoon in 2012. Whedbee, a 50-year-old derrick hand, was helping another worker remove a pipe fitting on top of the well when it suddenly blew.

Oil and sludge pressurized at more than 700 pounds per square inch tore into Whedbee’s body, ripping his left arm off just below the elbow. Co-workers jury-rigged a tourniquet from a sweatshirt and a ratchet strap to stanch his bleeding and got his wife on the phone.

"Babe," he said, "tell everyone I love them."

It was exactly the sort of accident that workers’ compensation was designed…

[Click here to see the rest of this post]

Getting Workers’ Comp and Social Security Disability–Is it Really “Double-Dipping?”

double dippingAn injured worker’s receipt of Social Security Disability (SSD) benefits can produce an offset from workers’ compensation (WC) payments.  A workers’ compensation recipient who is also collecting SSD cannot receive, in combined benefits, more than 80% of his average current earnings (ACE).  Wisconsin is one of nine “Reverse Offset” states whereby any offsets are taken on WC benefits rather than Social Security benefits.  Under Wisconsin statutes, for each dollar that the total monthly workers’ compensation benefits (excluding attorney fees and costs) plus the monthly benefits payable under the Social Security Act for disability exceed 80% of the employee’s ACE as determined by Social Security, the workers’ compensation benefits shall be reduced by the same amount, so that the total benefits payable do not exceed 80% of the employee’s ACE.

In most states, under Social Security law, a recipient’s SSD benefits are reduced when the total of the recipient’s disability payments plus workers’ compensation (WC) benefits exceed 80% of the ACE.  The reduction is taken against the recipient’s monthly SSD, not WC. In Wisconsin, however, just the reverse is true and the workers’ compensation insurance carrier’s liability is reduced.

In Wisconsin, the maximum age for ending the Social Security offset has been 65 since the offset went into effect in 1980.  However, since Congress amended the Social Security Act in 2013 by the incredibly-titled “Achieving a Better Life Experience (ABLE) Act,” the amendment extends the workers’ compensation Social Security offset to the full retirement age (essentially age 66 for those born between 1943 and 1954, and age 67 for those born after 1960).  The revised law provides that the offset continues until an employee attains full retirement age.  The way this works out practically, for example, for a worker with a $600 monthly Average Weekly Wage ($400 in Temporary Total Disability), or about $30,000 in average current earnings (ACE), 80% ACE would be $24,000 per year or $2,000 per month.  If SSD pays $900 per month, WC would be limited to the 80% ACE figure ($2,000) so the WC carrier liability would be limited to $1,100 instead of its $1,720 ($400 TTD rate x 4.3) monthly liability absent the SSD.

The purposes of the two systems—SSD and WC—differ substantially. WC applies the principle that, irrespective of fault, projected costs of injuries can be secured in advance through insurance. Eligibility for SSD benefits requires an employee to build equity in the program through earning income credits.  The employer has paid a premium for the worker’s injury not based on any offset, and the employee has paid into Social Security for the entirety of his work life.  The rationale for the “offset” is loosely based on a “double dipping” assessment, much the same as the “Moral Hazard” rationale for not providing a full pay check to workers who are injured (in order to reduce the incentive to remain off work).

Wisconsin experimented historically with the percentage of Permanent Partial Disability payable for Temporary Total Disability (from 70% to the current 66.66%), based on the notion that the worker should be no better off disabled than if he were working, the 33% diminution assessed as an amount relatively close to his taxation rate.  This rationale does not, of course, hold for those workers who exceed the maximum (currently $1,380) wage rate.  The “Moral Hazard” rationale for reduction of benefits is based on the theory that an injured worker should not be “better off”  because of his injury.  In over 40 years’ representing injured workers, I’ve yet to see a worker actually better off because of his work injury.

The Dangers of Working with Vibrating Tools

Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm.

Vibration White Finger (VWF) or “Dead Finger,” now known as Hand-Arm Vibration Syndrome (HAVS), is a chronic, progressive disorder caused by regular and prolonged use of vibrating hand tools that can progress to loss of effective hand function and necrosis of the fingers. In its advanced stages, the obvious symptom is finger blanching (losing color). Other symptoms include numbness, pain, and tingling in the fingers, as well as a weakened grip.

It is estimated that as many as 50 percent of the estimated 2 million U.S. workers exposed to hand-arm vibration will develop HAVS. Some common industries and the tools associated with HAVS are listed below:

  • Agriculture & Forestry – Chainsaws
  • Automotive – Impact Wrenches, Riveting Guns
  • Construction – Jackhammers
  • Foundries – Chippers, Grinders
  • Metal Working – Buffers, Sanders
  • Mining – Jack-Leg Drills, Stoper Drills

The time between a worker’s first exposure to hand-arm vibration to the development of HAVS symptoms can range from a few months to several years. Prevention is critical because while the early stages of HAVS are usually reversible if vibration exposure is reduced or eliminated, treatment is usually ineffective after the fingers blanch.