Category Archives: Workers’ Compensation

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.

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.

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.   

Older Workers Need Updated Job Training

Recent data from the U. S. Bureau of Labor Statistics indicate inadequate training for older workers likely contributed to an almost 20% increase in fatalities among older workers

According to the data, there were 4,679 fatal work-related injuries recorded in 2014 – an increase from 4,585 in 2013.  Older workers from age 45 to 54 decreased in fatalities from 1,169 to 1,127.  Deaths due to work injuries for workers age 55 to 64 increased from 948 in 2010 to 965 in 2014.  The greatest increase from 2010 to 2014 was from workers 65 and older: 582 in 2010 up to 656 in 2014.  Experts noted employers need to continually train their entire workforce, not just new hires, about hazards, processes and procedures. 

According to the Bureau of Labor Statistics, more than 260 fatalities involving workers 65 and older resulted from transportation incidents.  Fatal work injuries among women also increased, rising 12.5% to 359.  Of the fatalities among women, 137 resulted from transportation incidents and another 111 from violence in the workplace.  Authorities noted a disturbing trend of more violence coming from personal relationship problems that spill over into work. 

The work-relatedness of these personal relationships resulting in violence at work is a contested issue.

Are You Misclassifying Your Workers and Committing A Fraud?

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

To avoid misclassifying your workers follow these tips:

  • Don’t make assumptions. If you are a business owner you should consult a tax professional and an attorney to ensure you are complying with IRS and labor laws when hiring staff or contractors.
  • If contracting with staffing companies or labor brokers, make sure those agencies are properly classifying its workers as employees. Companies can be held responsible for labor violations of their contractors.
  • Consider filing a SS-8 Form (Determination of Worker Status) with the IRS and ask that agency to determine whether the worker is an employee or independent contractor.
  • Be aware that contractors set their own schedules and pricing, and perform the work as they see fit. If you want control over these areas, make sure you hire an employee.
  • Check the workers’ compensation policies of any subcontractor you hire. (Look out for “ghost policies,” which aren’t designed to cover known employees.)
  • Don’t rely on excuses such as “He only works a few days a week.” “She agreed to be an independent contractor.” “They use their own tools.” “He’s done this for so long he doesn’t need my supervision.”

Thanks to McClatchy DC!


Employers Who Cheat on Workers’ Compensation Coverage

Employers who fail to cover their workers for workers’ compensation, or who mischaracterize their employees as “Independent Contractors” cheat the entire workers’ compensation system. They cheat both the workers who remain uncovered and other employers who appropriately cover their workers. 

An effective tool for combating this employer fraud has been used in North Carolina. The North Carolina Industrial Commission used computer data to collect nearly a million dollars in penalties from employers with no workers’ compensation. The penalty revenue is used in North Carolina to maintain public schools.

The Commission’s Compliance and Fraud Investigative Division staff used a new tool, the Non-Compliant Employer Targeting System (NETS) to identify employers who are required by law to maintain a valid workers’ compensation insurance policy but have failed to do so. North Carolina Industrial Commission Chairman Andrew Heath noted “Unlawful employers that fail to provide workers’ compensation insurance coverage are a drain on North Carolina’s legitimate businesses, health care providers, and taxpayers.” He noted “unethical and illegitimate business owners will find no safe harbor here in North Carolina.”

States should focus on employer fraud, rather than spinning their wheels on virtually non-existent employee fraud. Much fanfare (primarily fueled by insurance carrier advertisements) accompanied the enactment 20 years ago of a fraudulent claims reporting provision in Wisconsin’s Workers’ Compensation Act. Since 1994 the Act requires insurers to report suspected employee fraud to the Department of Workforce Development on their own initiative. After reviewing the results of the insurer’s investigation, the Department refers cases to local District Attorneys for prosecution if there is a reasonable basis to believe the case involves insurance fraud. The Department’s published multi-year study of such claims concludes that the public perception of workers’ compensation employee fraud is extremely exaggerated – less one in ten thousand injuries.

Efforts at uncovering and penalizing employer fraud should be undertaken in all states.

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.”

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.