WILG Turns 20! Worker’s Injury Law And Advocacy Group 20th Anniversary

I joined WILG in its 1995 inaugural year. At those early conferences, my colleagues around the nation were battling workers’ comp “deform,” and engaged in political battles in their respective states, lobbying legislators on behalf of injured workers’ rights.

I thought I was relatively insulated in Wisconsin, the national “model” state for workers’ comp, with an Advisory Council composed of management and labor which each biennium produced an “agreed-upon” bill that was accepted by the legislature.

The Republican ascendancy in Wisconsin (Scott Walker as Governor, and both Assembly and Senate controlled by Republicans) has decided to ignore 100 years of progressive legislation and ignore the Advisory Council’s recommendations. This dangerous precedent will make workers’ comp more politicized, and threaten the stability of Wisconsin’s workers’ comp system. Wisconsin, like other states, will be part of a “race to the bottom” in workers’ rights and benefits.

WILG’s current President, Matt Belcher of Illinois, provided this summary of the state of workers’ comp as WILG celebrates its 20th anniversary:

”We have never been better positioned as a national organization to advocate on behalf of the families of injured workers.

Recent success in reviewing courts have highlighted nationally the unconstitutional danger posed to the community when injured workers lose access to effective legal representation, have capricious benefit limits imposed upon them, or are disabled due to unfair medical treatment bureaucracies.

WILG and its members have been at the fore of litigation battles where catastrophically injured workers have lost their savings, been forced onto welfare rolls and into Social Security Disability plans while simultaneously being denied access to the civil courthouse and the free exercise of their 7th amendment right to a jury trial. See Wade v. Scott Recycling (Virginia); Malcomson v. Liberty Northwest (Montana); Pilkington & Lee v. State of Oklahoma (Oklahoma); Padgett v. State of Florida (reversed on procedural grounds), Westphal v. City of St. Petersburg, and Castellanos v. Next Door Company (Florida).

The United States Department of Labor in coordination with OSHA have finally “discovered” that employee misclassification and wage theft are rampant, and that the cost-shifting externalization of care for injured workers is as poisonous as it is pervasive.

Perhaps most fundamentally, ProPublica, bolstered by the imprimatur and audience of NPR, has created a national conversation and awareness of the oppressed plight of injured workers with its feature The Demolition of Workers’ Compensation which exposed to the public domain the travesty and arbitrary injustice we slog through on a daily basis.

If we are uncritical we shall always find what we want. -Karl Popper

Continual, constructive self-assessment of our organizational efforts is indispensable to the accomplishment of our mission. Are we really doing the best job possible and are we succeeding to our complete potential?

Governors in the traditionally blue states of California and New York have signed away the long term financial security of millions of families of injured workers while Texas and Oklahoma have essentially jettisoned workers’ compensation benefits, allowing indifferent employers to Bail-Out of their responsibility to provide for the safety and security of working families. Further corporate front group Bail-Out initiatives are fermenting in the legislatures of Arkansas, Kansas, North Carolina, South Carolina, Tennessee and Wyoming.

In my view, the state workers’ compensation system is in its most dire situation in at least the last half-century. -Prof John F. Burton, Jr.

Professor Burton is clearly referencing only the perspective of the injured worker and not the immense wealth of the $85 billion insurance industry where insurance carriers now earn $6.20 in profits for every $100 of net premiums; and, private employers on average pay only 44 cents per hour for each employee to be provided with coverage.

Empirical evidence reliably demonstrates that each reduction in benefits to an injured workers’ family subsequent to “reform” has not translated into lower premiums for small business but primarily in greater profit for the self-insureds and the insurance industry. From 2007 to 2012, workers’ compensation benefits and costs per $100 of payroll were lower than at any time over the last three decades, while insurance company investment profits in 2011, 2012, and preliminarily for 2013, have topped 14% annually.

According to OSHA, workers’ compensation benefits now cover only 21% of workers’ compensation liabilities–shifting 79% of the true cost to others, including the injured workers’ family and taxpayers–while our firsthand knowledge demonstrates the inadequacy of current benefit levels and the injustice of the AMA Guides, ODG Treatment Guidelines, Primary Cause, Medical Formularies and the literal evaporation of effective vocational rehabilitation for those injured workers who have lost access to their prior occupation.

Therefore, my beloved brethren, be ye steadfast, unmovable, always abounding in the work of the Lord, for ye know that your labor is not in vain in the Lord. -1 Corinthians 15:58

I believe it will be the exponential participation of you, the existing member, which fosters our mission as much as the sheer addition of new members. The existential purpose of the organization must always be vigorous and exigent advocacy, not just growth and the collection plate. We must collect accomplishments, not only numbers.

Together we can do that, but we must have an active outreach program that communicates to the public, to the media and to state legislators the value of workers’ compensation and the cost of its failure. If business can focus-group a new Doritos flavor, I am confident we can use a similar approach identifying crux “reptile” talking points, plus distilling and building upon the points raised in the ProPublica series to focus our messaging.”

Employee or Independent Contractor?

Today’s post was shared by US Labor Department and comes from blog.dol.gov

The Wage and Hour Division is tackling employee misclassification because so much depends upon the answer to that question.

misclassification2-300x200

Imagine working as a drywall installer building houses as an employee one day, but the next day, while performing the same work on the same site for the same company, you’re told you are now considered an independent contractor. You didn’t suddenly open a business of your own. Nothing about your work changed. But now, you’re told that since you’re no longer an employee, you’re no longer eligible for overtime pay, unemployment insurance, worker’s compensation or a host of other benefits that come with employee status.

That really happened to a group of workers recently, who we discovered were owed back wages after conducting an investigation. And unfortunately, this situation is all too common − with terrible consequences. Misclassified employees are often denied access to the critical benefits and protections they are entitled. Misclassification also generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds. It forces workers to pay the entirety of their payroll (FICA) tax. It also tips the scales against all of the employers who play by the rules and undermines the economy.

Employer-Employee Relationships

In recent years, employers have increasingly contracted out or otherwise…

[Click here to see the rest of this post]

The “Gig Economy”

Very interesting NY Times piece on the “gig economy,” where millions of Americans work as contractors or temporary employees, along a corresponding increase in voters’ economic anxieties ahead of next year’s election.  The full article is here.

In our practice, we are seeing this type of work with greater frequency.  A large concern is whether these “temporary” or “contracted” employees are covered under a worker’s compensation policy.  To be a truly independent contractor under Wisconsin law, a stringent series of tests must be met about the ability to control one’s work, hours, equipment, etc.  If injured as a claimed independent contractor, a worker would be wise to consult with an attorney about whether they are actually an “employee”–not an independent contractor–and entitled to worker’s compensation benefits.

 

New Underwriting Workers’ Compensation Industry Rankings

Injured workers who have been denied benefits by Travelers, The Hartford, AIG, Liberty Mutual, and Berkshire Hathaway will be pleased to know those five insurance carriers are industry leaders in writing premiums for employers. Travelers has received $3,840,000,000 premium dollars (a 52.4% changes since 2009; The Hartford $3,012,000,000 (a 28% change since 2009). AIG and Liberty Mutual have lost market share but Berkshire Hathaway at $1,742,000,000 has increased its market share by 408.5%. Berkshire Hathaway and Travelers are among the insurance carriers that have posted the highest underwriting profits in the last five years.

Profits for workers’ compensation insurance carriers over the last five years have been significant, as has been reported in my prior blogs.  This news is small consolation for injured workers whose benefits continue to decline.

 

“Per Diem” Payments Latest Employer Fraud Issue in Workers’ Compensation

I have written often about the public’s perception that workers file fraudulent claims in workers’ compensation. The public perception (which ranges from one in ten to approximately one in three) is completely erroneous. The actual statistics indicate the incidence of employee fraud is as little as one-sixth of one percent, or two workers in ten thousand claims (based on the latest statistics available from the Wisconsin Worker’s Compensation Division).

Employer fraud, on the other hand, is rampant and grows daily into the billions of dollars. A recent report by the U.S. Department of Wage and Hour Division out of New Orleans indicated six Gulf Coast staffing agencies agreed to pay thousands of workers nearly $3.5 million in back wages after investigators found part of the workers’ wages were mislabeled as “per diem” payments as reimbursement for expenses they never incurred. The Labor Department indicated the recent investigations were part of an ongoing initiative aimed at ending an illegal and alarming trend of employers labeling part of employee wages as Per Diem payments, often to avoid overtime, payroll taxes, and other costs (such as workers’ compensation insurance premiums). The Department of Labor noted that companies break the law when they call part of a worker’s regular wages “per diem” expense reimbursement instead of wages. They do this in order to lower labor costs, avoid paying overtime, and avoid making payments toward federal and state taxes, workers’ compensation, unemployment insurance, and Social Security payments. These kinds of employers gain an unfair advantage over their competitors, some of whom are paying these taxes appropriately.

Walker’s Workers’ Compensation in Wisconsin

Mark my words, Scott Walker will use his attempts to revamp and revise Wisconsin’s workers’ compensation system in his national campaign for the presidency in 2016. 

He will tout attempts at “increased efficiency” and cost cutting when, in fact, these efforts are patently false.  His recent assault on workers’ compensation prompted me to revisit a review I wrote of the Center for Justice and Democracy Study “Workers’ Compensation: A Cautionary Tale,” now a decade old. When objective observers corroborate your own instincts, it is gratifying. The study on workers’ compensation, undertaken by the Center for Justice and Democracy, concluded that since workers struck their bargain with employers early in the 20th Century, legislators and administrators have cut benefits and ushered many injured workers completely out of the system. 

Particularly insidious has been the workers’ compensation insurance carrier’s malicious, relentless campaign to advance the notion of employee fraud. In Wisconsin, the aggressive insurance media blitz prompts a response (when I say that I represent injured workers) at every social gathering, wedding, birthday, or cocktail party, about  employees “ripping off” the workers’ compensation system. This, in the face of irrefutable statistical evidence that employee fraud is infinitesimally small is a boil on the butt of the workers’ compensation system.

On the other hand, employer fraud dwarfs employee fraud. Under-representing payroll, mischaracterizing heavy-lifting laborers as clerical workers or independent contractors, and forcing injured workers to claim work injuries against their health insurance is fraud, but not as “media-sexy” as filming an alleged injured worker bowling or rock climbing.

This media barrage of employee fraud has created a milieu in which some workers, legitimately injured, do not even report injuries. For immigrants with an already tenuous status in America, the Center’s study reports that just six in ten workers hurt on the job report their injuries for fear or retaliation. The Center’s study reports alarming national trends that I see in my practice daily, resulting in denials and delays of legitimate claims. These include stricter criteria for proving a workplace injury and insurance company efforts terminating benefits at age 65 (despite increasing evidence that the retirement age is increasing). 

Lastly, ubiquitous adverse medical examiners’ reports assigning causation to some pre-existing condition corresponds to an alarming alteration in the standard for causation. Legislation requiring “substantial” or “major contributing” cause or replacing “contributing” with “prevailing” factor makes workers jump over higher hurdles to obtain compensation more than ever before. Those of us who represent injured workers will continue to try to give injured workers a boost, despite Governor Walker and Republican legislators’ efforts to the contrary.

Take-home Asbestos Exposure Causes Mesothelioma Decades Later

Today’s post comes from guest author Brian M. Wright, from Causey Law Firm.

Today’s guest post was co-authored by my wife, Kaitlin Wright, Associate Attorney with Bergman Draper Ladenburg Hart.  – – BMW

Take-home asbestos exposure through laundering contaminated clothing causes mesothelioma decades later.

Thomas H. Hart, III

Kaitlin T. Wright

There are few things in life that seem as mundane and benign as the simple act of doing household chores like laundry. Yet this routine chore, done for her husband, was the source of Barbara Brandes’ unwitting exposure to asbestos that ultimately caused her death decades later.

From 1971 until 1975, Barbara Brandes’ husband Ray worked as an operator at the newly-constructed Atlantic Richfield Company (ARCO) Cherry Point oil refinery in Ferndale, Washington. Defendant Brand Insulations contracted to perform the insulation work during the construction of the ARCO refinery in 1971 and 1972. At a time when there could be little doubt that the world knew asbestos was dangerous and carcinogenic—after the enactment of the Occupational Safety and Health Act and the genesis of the environmental revolution it epitomized—Brand used asbestos insulation in its work at the Cherry Point refinery without warning workers or taking any precautions to reduce hazardous asbestos exposures generated by Brand’s insulation work.

During the early 1970s, Brand insulators worked on-site at the Cherry Point refinery fabricating and installing insulation in the areas where Ray Brandes worked as an operator. The dust generated by Brand’s insulation activities contaminated Ray’s clothing with asbestos fiber. He was also exposed to asbestos when he and other ARCO employees removed the insulation materials Brand had installed when performing repairs to equipment and pipe.

At the end of each shift Ray worked at the Cherry Point refinery, he would return home in the clothes he had worn to work. Barbara would launder that clothing several times a week. When she shook the clothes out before putting them into the washer, asbestos fiber was released and dispersed into the air, exposing Barbara to invisible, imperceptible carcinogenic dust.

More than 40 years after Ray left the ARCO refinery, Barbara was diagnosed in June of 2014 with malignant pleural mesothelioma, a terminal cancer of the lining of the lung. At the time of her diagnosis, Barbara was advised by her physicians that her life expectancy was likely one year. Barbara succumbed to her mesothelioma on April 19, 2015, the evening before closing arguments in her trial against Brand Insulations.

The case was tried over two weeks in April in King County Superior Court before Judge William Downing. Plaintiffs were represented by Tom Hart and Kaitlin Wright of Bergman Draper Ladenburg Hart, PLLC. Brand Insulations, Inc. was represented by David Shaw and Malika Johnson of Williams, Kastner & Gibbs, PLLC. Barbara was 80 years old at the time of trial. The jury found that Brand was negligent, and that Brand’s negligence was a proximate cause of Barbara’s mesothelioma. The verdict included non-economic damages in the amount of $3,500,000.

Discovery Hurdles

One of the challenges in this case was locating witnesses capable of testifying to Ray Brandes’ employment and exposures at the Cherry Point refinery. Due to health issues, Ray was unable to testify or to recall the names of his coworkers so that they could be contacted and interviewed. An ad placed in The Bellingham Herald led to identification of Ray’s former coworkers, some of whom remembered working with him at the refinery back in the 1970s. An ARCO employee who responded to the ad testified at trial, and was one of the most compelling witnesses in the case as he was able to provide direct testimony regarding the work practices and exposures Ray Brandes experienced while Brand was working in his vicinity.

Liability Issues

In pretrial motions practice, the trial court granted summary judgment dismissing Plaintiff’s common law product liability claim against Brand, leaving negligence as the sole theory of liability for trial. Plaintiffs presented evidence that Brand had won the insulation subcontract with the general contractor for construction of the Cherry Point facility by coming in with the lowest lump-sum bid for the job. Brand contracted to perform “installation of thermal insulation of columns, heat exchangers, vessels, reformers, tanks, and piping in the various refinery units” at Cherry Point, procuring and installing all insulation materials on equipment and on the miles of piping required to be insulated throughout the refinery.

Brand offered testimony from Michael McGinnis, the project engineer who coordinated the Cherry Point job on behalf of Brand. Mr. McGinnis testified that he was just 21 years old when he traveled from Chicago to Ferndale to oversee the job, and conceded that he was equipped only with a high school education and on-the-job experience gained from his work as an apprentice insulator for Brand. On cross-examination by Mr. Hart, Mr. McGinnis acknowledged that the Cherry Point project was Brand’s largest dollar-value job in the company’s history by orders of magnitude. Mr. Hart also elicited from Mr. McGinnis on cross-examination the concession that no one at Brand had reviewed then-applicable Washington regulations identifying asbestos as a hazardous dust and requiring industrial hygiene controls to reduce exposures, nor did Brand make any effort to comply with those regulations.

Plaintiffs offered testimony from workers at the Cherry Point refinery who explained that the work of Brand insulators in the various refinery units manipulating, cutting, sawing, and installing asbestos insulation products generated considerable dust. Additional witnesses explained that ARCO had initially requested an asbestos-free refinery, but the asbestos-free insulation failed, so Brand reverted to asbestos-containing insulation materials part-way through their work at Cherry Point. Under cross-examination by Mr. Hart, Mr. McGinnis conceded that Brand nonetheless never warned workers that they were using asbestos or took any measures to reduce asbestos exposures to bystanders like Ray Brandes.

Brand argued that it did not or could not have known of a risk of take-home asbestos exposure from the insulation work it performed at Cherry Point resulting in mesothelioma among family members of ARCO operators like Ray Brandes. Plaintiff’s expert pathologist Dr. Andrew Churg testified that Mrs. Brandes had malignant mesothelioma of the pleura or lining of the lung, and that her mesothelioma was caused by washing her husband’s asbestos-contaminated work clothing. Plaintiff’s expert industrial hygienist, John Templin, CIH, testified to the industrial hygiene measures and engineering controls available to Brand in the 1971-75 timeframe to protect against Ray and Barbara Brandes’ significant asbestos exposures resulting from Brand’s insulation work. Plaintiffs also called Dr. Barry Castleman who testified regarding the extensive body of scientific and medical literature published throughout the decades leading up to Barbara’s exposures in the early 1970s, which confirmed that asbestos exposure could cause fatal disease, including mesothelioma, and detailed methods of avoiding dangerous exposures to bystanders and family members of exposed workers. Brand called Francis Weir, Ph. D., and Joseph Holtshouser who testified regarding toxicology and industrial hygiene principles. Dr. Weir testified during cross-examination by Mr. Hart that other West Coast insulation contractors were researching the hazards of asbestos by the time Brand began its work at Cherry Point. Mr. Holtshouser testified to the dose reconstruction of Barbara’s asbestos exposures he had performed and opined that her exposures were minimal and insignificant.

Damages

Prior to her diagnosis, Barbara had undergone many rounds of chemotherapy in an attempt to slow the progression of her cancer and prolong her life. She was not a candidate for surgical resection of her tumor, nor was radiation therapy recommended. Barbara bravely pursued as aggressive a chemotherapy regimen as her body could tolerate and her oncologist would recommend. She had more than one bout with pneumonia and experienced many other side-effects from the chemotherapy. Plaintiffs elected to forego pursuit of economic damages related to Barbara’s medical treatment, and instead simply asked the jury to decide Barbara’s non-economic damages for her injuries, disability, inconvenience, loss of enjoyment of life, and pain and suffering.

Because Barbara passed away on the eve of closing arguments and submission of the case to the jury, Plaintiffs faced the prospect of quickly converting Barbara’s personal injury action to a survivorship action to allow the case to proceed. This was successfully accomplished and the jury was instructed as to the fact of Barbara’s passing, the change in the case caption, and that future non-economic damages were no longer to be considered in assessing Plaintiff’s damages. In closing, Ms. Wright and Mr. Hart brought together the story of Brand undercutting local insulation companies to win the Cherry Point contract, and Brand’s concomitant sacrifice of safety to maximize profit in the largest job it had ever undertaken. The jury was unanimous in its finding of Brand’s negligence.

Barbara is survived by her eight children and many grandchildren, great-grandchildren, and a great-great-grandchild. While Barbara’s deteriorating health prevented her from being present in the courtroom every day, her daughter Ramona Brandes attended trial and was able to observe her mother’s engrossment in the case even as she approached the end of her life. Ramona explained: “My tales of the trial in her last days were one of the things she sparked on, wanting to hear every last detail. She passed away the day before closing arguments, but I know her verdict is something she would have been so thrilled about because her win will help other families like ours fighting for their own justice.”

Thomas H. Hart, III, Partner – Bergman Draper Ladenburg Hart, PLLC

Tom Hart was a pioneer in asbestos litigation in the United States and continues work on behalf of injured shipyard workers, former Navy personnel, pipe fitters, carpenters and others ravaged by asbestos disease. Since 1980, Tom has successfully represented asbestos victims in over 40 States and Territories. Tom has won verdicts and settlements totaling hundreds of millions of dollars for his clients and their families. In 1986, Tom filed and served as Lead Counsel in the first Nation-wide Class Action Settlement for asbestos victims.

Kaitlin T. Wright, Associate – Bergman Draper Ladenburg Hart, PLLC

Kaitlin Wright joined Bergman Draper Ladenburg Hart as an associate in 2013 after graduating from Seattle University School of Law, magna cum laude. Prior to joining Bergman Draper Ladenburg Hart, Kaitlin externed with the Honorable Stephen J. Dwyer at the Washington Court of Appeals in Seattle. Kaitlin also worked during law school as a Rule 9 legal intern with the Snohomish County Prosecutor’s Office in Everett. In her two years at Bergman Draper Ladenburg Hart, Kaitlin has represented mesothelioma victims in litigation in Washington and Oregon and has tried cases to verdict in both states.

 

Photo credit: Tabsinthe / Hampton Patio / CC BY

 

Tragic Cannery And Construction Site Deaths Highlight Need For Safety Enforcement

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

For more information about safety concerns and safety violations under Wisconsin workplace laws, please see: http://www.domerlaw.com/Articles/Wisconsin-employer-safety-violation-causes-workers-compensation-penalty.shtml

I was horrified when I recently read about a worker for a tuna company who was killed when he was cooked to death at the company’s California canning factory. According to the New York Daily News, the worker, Jose Melena, was performing maintenance in the 35-foot oven when a co-worker failed to notice he was still in the oven and turned it on to begin the steaming process of the tuna. The co-worker assumed Melena had gone to the bathroom. 

While there apparently was an effort to locate the worker, his body was not found until two hours later when the steamer was opened after it completed its cooking cycle. As an attorney, my clinical instinct shifts my focus to the mechanics of the accident and to fault. There are so many unanswered questions.  Why didn’t anyone check the machine before it was turned on? Why wasn’t the machine immediately shut down when they realized the worker was missing? As a person with feelings and emotions, I think of the horror and pain he must have gone through and the loss experienced by his family and friends as a result of his death. It is almost too awful to imagine. 

While this terrible tragedy occurred in 2012, it appears the reason that the story is currently newsworthy is that the managers were only recently charged by prosecutors in the worker’s death for violating Occupational Safety & Health Administration (OSHA) rules. Closer to home, more recent and just as unfortunate were the cases of the construction worker in Brooklyn who fell six stories from a scaffold while doing concrete work and a restaurant worker who was killed in Manhattan when a gas explosion destroyed the building he was working in. 

These stories highlight why safety procedures are so important. In some cases, there are no proper safety precautions in place. In others, there are safety measures in place but they may not have been followed. In rarer cases, crimes are committed that result in workplace fatalities. The failure to follow or implement proper safety procedures was a calculated risk, a terrible misstep, or a downright criminal act. In the case of the worker who died when he fell from a scaffold, there has been speculation that he may not have been attached properly to his safety harness. In the tuna factory death, the managers were charged with violating safety regulations; they face fines as well as jail time for their acts. In the gas explosion, there are allegations that the explosion was caused by workers’ illegally tapping into the restaurant gas line to provide heat for upstairs tenants. Prosecutors were trying to determine criminality; whatever the final outcomes, it appears that in these three instances the deaths were preventable. 

According to OSHA rules, employers have the responsibility to provide a safe workplace. They must provide their employees with a workplace free of serious hazards and follow all safety and health standards. They must provide training, keep accurate records, and as of January 1, 2015, notify OSHA within eight hours of a workplace fatality or within 24 hours of any work-related impatient hospitalization, amputation or loss of an eye.  

While this may seem like a small step, anything that results in creating higher standards for employers or encouraging them to keep safety a priority is always a good thing. These three examples are only a small percentage of the workplace deaths that occur each year. While not every death is preventable, everyone is entitled to go to work and expect to leave safely at the end of their shifts.  

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.