Those of us who represent injured workers have known for a long time that workers’ compensation does not restore an injured worker to his pre-injury wage or status. Two reports released in March show how workplace injuries have failed injured workers and leave them deeper in debt. OSHA released a report indicating the changes in workers’ compensation programs have made it much more difficult for injured workers to receive benefits or medical expenses. Although employers pay insurance premiums to workers’ compensation insurance companies who are supposed to pay benefits for medical expenses, employers provide just 20% of the overall financial cost of workplace injuries through workers’ compensation according to the OSHA report.
This “cost shifting” is borne by the taxpayer. As a result of this cost shifting, taxpayers are subsidizing the vast majority of the income and medical care costs of injured workers. After a work injury, injured workers’ incomes average more than $30,000 lower over a decade than if they had not been injured. Additionally, very low wage workers are injured at a disproportionate rate.
Another report by ProPublica and National Public Radio found that 33 states have workers’ compensation laws that reduced benefits or made it more difficult for those with certain injuries and diseases to qualify for benefits. Those hurdles, combined with employers and insurers increasing control of medical decisions (such as whether an injured worker needs surgery) reduced the worker’s likelihood of obtaining the medical care needed.
Overall, injured workers who should be paid under workers’ compensation are receiving less benefits and their medical care is being dodged by insurers and paid for by taxpayers through Medicaid and Medicare, or by increased insurance premiums for all of us through group health insurance rate increases.
Our general sense that injured workers are faring poorly is borne out by the research.
Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.
Just wow. The lawyers and employees who write blog posts for rehmlaw.com and truckerlawyers.com focus pretty frequently on the U.S. Occupational Safety and Health Administration. Nebraska and Iowa, along with Kansas and Missouri, happen to be in Region 7, so the focus is usually on those news releases from OSHA.
Every workplace safety lapse is one too many, especially when problems come to light because of an incident where a worker is injured or killed. Sometimes a person has to stop and do a double-take as to the specifics, just because the details might seem a little bit more on the extreme or unusual side. Today’s blog post focus of an Ashley Furniture Industries Inc. plant in Wisconsin fits the intense criteria very well, just because of the sheer quantity of injuries and the large fine proposed.
This link from Claims Journal gives more details. The takeaways that just make a person stop are in the numbers listed below.
In less than four years – 42 months:
“More than 1,000 work-related injuries”
“12 willful, 12 repeated and 14 serious safety violations” from an inspection after a worker lost three fingers in July
$1.76 million in fines proposed by OSHA: that’s $1,760,000!
The company was “placed in the Severe Violator Enforcement Program for failing to address safety hazards,” according to the Claims Journal article.
Although “Ashley Furniture said less than 1-in-4 of the cases required any time away from work … (and) the most common injury was muscle strains and sprains,” that is still a large number of incidents to consider. The article also contained this quote: “‘At Ashley, each employee’s safety and well-being is an absolute priority,’ said Steve Ziegeweid, Ashley Furniture’s director of health and safety.”
But most workers’ compensation lawyers would tend to side with U.S. Labor Secretary Thomas E. Perez, as quoted from a news release: “Ashley Furniture has created a culture that values production and profit over worker safety, and employees are paying the price.”
Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.
The Occupational Safety and Health Administration (OSHA) covers forklifts under the section called Powered Industrial Trucks, and you have to be certified to operate these lifts. The smaller ones you see weigh up to 7,000 pounds and they are so dangerous some experts consider them “inherently dangerous.”
It is in violation of federal law to operate a forklift if under the age of 18, and OSHA requires that you be specifically trained. See 29 CFR 1910.178. If operated properly, a forklift is no more dangerous than any other piece of heavy machinery. However, if the operator is not properly trained and certified bad things can happen. We now represent a young man who was allowed to operate a forklift without any certification and the forklift turned over on him and crushed him, damaging several internal organs and his spine. He survived, but he is partially paralyzed from the waist down. He will have a lifetime of pain. He has lost the use of both feet.
Other examples are workers being crushed when a forklift accidentally runs into them. The human body cannot withstand a crush impact from a 7,000 pound machine. If the lifts on the forklift are elevated with a heavy load, the potential for a tip-over is greatly increased, even if the operator is moving slowly. Never underestimate the power of a forklift.
For more information go to osha.gov and review Powered Industrial Trucks.
Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.
A recent newspaper article about a Nebraska lawyer fighting against imposing OSHA regulations on small businesses and farms that handle grain illustrates an age-old conflict between Worker (human) safety and Business (corporate) profit. The lawyer argued OSHA compliance is too expensive for small businesses and farms.
I couldn’t disagree more. From my point of view, worker safety is immeasurably more valuable to society than business profit. Human beings are the most important component of any activity, including business. Viewing safety as a cost ignores the cost to the human beings who are burned and maimed by grain explosions, whether they happen at a small business/farm or a huge corporate grain facility.
Farms in Nebraska and Iowa are not required to provide workers’ compensation for their employees. This is justified on the grounds that farms can’t survive such government intervention. I find this an interesting argument from businesses that have long received subsidies from the government. It seems that farm profits are more important than the human beings who do the work to earn those profits.
Our society needs more laws to protect human beings from injury and to compensate them if injured for the profit of others. Candidates for public office need to be asked what matters more to them: Is it human beings or profits that matter more?
Justice Louis Brandeis of the U.S. Supreme Court wrote long ago: “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”
If we keep electing representatives who favor the concentrated wealth, then human beings will likely be protected less. These are scary times as the divide between the “haves” and “have nots” continues to grow. Ballots are the only way to tell our representatives that the health and welfare of human beings is paramount. Voting is essential, or we will see more and more concern for profit and less and less concern for human beings.
Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.
Under federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).
Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.
If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:
Know the hazards in your workplace.
While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
Injuries occur when workers get tired. Take breaks when you’re tired.
Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
Be aware of where emergency shutoff switches are located.
Report unsafe work areas.
Wear proper safety equipment.
If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.
Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.
We represent a large number of workers injured in the healthcare industry in Wisconsin.
The article that today’s blog post is based upon is an in-depth look at how one state’s OSHA office interacts with a sector of the healthcare community: hospitals. Like Iowa, but unlike Nebraska, Oregon is one of 27 states or U.S. territories that has an OSHA office at the state level.
According to the in-depth article, “A Lund Report review suggests that in Oregon, regulators are de-emphasizing attention to hospital employee safety, despite national data showing that healthcare workers are injured in the U.S. each year at rates similar to farmers and hunters. Most Oregon hospitals have not been inspected by the state Occupational Safety and Health Division in years. And when on-the-job hazards are detected, Oregon’s OSHA office levies the lowest average penalties in the country.”
Should workers get lost as the patients are the focus of these healthcare institutions? Should regulation and inspections or fines by such groups as OSHA be the driving force toward workplace safety for healthcare employees?
It seems to me that healthcare administrators’ emphasis on profit is more important than proper concern for their employees – the nation’s caregivers. And if you or your family member is the healthcare worker who gets hurt on the job, this lack of focus on the worker is more than just a philosophical argument.
Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.
With football season upon us, I would like to use football to explain some common situations that employees face.
I get a lot of calls from white-collar professionals who have long careers with a company but then are laid off a few months after a new boss is hired. This happens a lot in football when a general manager/athletic director replaces a head coach and the head coach fires the previous coach’s assistant coaches. White-collar employees in middle-management positions are essentially the equivalents of assistant coaches in football. In the world of football, it is assumed that a new head coach can bring in his new assistants. The same assumption holds true in the business world.
Assistant coaches are oftentimes “bought out” of their employment contracts. Sometimes white-collar professionals have employment contracts, but more often than not they do not. Sometimes professionals are offered severance agreements, but unless there is an employment contract, that severance is not a buyout. Employers are also under no obligation to offer severance. If severance is offered, that doesn’t necessarily mean that an employer wrongfully terminated the employee.
Of course, no employee can be terminated because of age, disability, sex, race, nationality, or in retaliation for engaging in a protected activity like filing for workers’ compensation or filing with OSHA. But even if there is some appearance of wrongful motivation on behalf of the employer, the employer can still defeat a potential lawsuit if they have a legitimate business reason for terminating the employee. Going back to a football analogy, if the new head coach wants to switch an offensive or defensive scheme, they have the right to hire the person they choose. The fact the new hire might be less effective than the old hire is not a decision that a court will second guess in a wrongful termination. Sure, if there is something else wrongful going on, it is something a court or a jury could consider, but in a case where there is a recent change in management, employees will have difficult time overcoming the assumption that the new boss just wants to “put in their team.”
In most instances, an injured worker cannot sue her employer for a workplace injury. However, if an injury results from an employer’s reckless, intentional, or illegal action, an injured worker can bring a separate claim against the employer directly. An employer’s violation of the Wisconsin state safety statute or of any Department of Workforce Development (DWD) safety administrative rule which causes a worker’s injury can trigger a 15% increased penalty for the employer (Section 102.57 of the Worker’s Compensation Act). This increased compensation is based on the amount of compensation paid by the insurance carrier and is capped at $15,000. The big deal is that the safety violation penalty is not paid by the insurance company–it is paid directly from the employer’s pocket (which also makes for increased litigation of these claims!).
In a win for injured workers, a recent Court of Appeals case (Sohn Manufacturing v. LIRC), decided on August 7, 2013, reaffirmed the ability of the Worker’s Compensation Department to hold employers responsible for unsafe behavior. In the Sohn case, the worker operated a die cutter machine, and the employer instructed her to clean it while the anvil rollers were running. The worker suffered a severe hand injury when her hand was pulled into the machine. A state investigator found an OSHA violation as well as a violation of the state safety statute (Section 101.11). An administrative law judge and the Labor and Industry Review Commission affirmed an award of a safety violation under 102.57 of the worker’s compensation act.
The employer challenged this ruling in court, arguing that the federal OSHA law preempted Wisconsin’s ability to enforce safety procedures under Section 102.57 and that an OSHA investigation cannot form the basis for a state safety violation claim. Injured workers should be thankful that the Court of Appeals rejected both of these arguments. First, the Court explicitly stated that OSHA does not preempt Wisconsin’s ability to award penalties under Section 102.57, as the safety violation statute is not an enforcement mechanism and OSHA was not intended to impact state worker’s compensation rules. More importantly, the Court indicated that an OSHA violation of a federal workplace safety regulation can be used as basis to demonstrate an employer’s violation of Wisconsin’s state safety statute (Section 101.11).
While the decision was not surprising, it reaffirms the state’s commitment to holding employer’s accountable for safety violation rules under the worker’s compensation system. Workers and practitioners also should remain aware of any OSHA violation found post-injury. A document demonstrating a federal OSHA violation can form the immediate basis for a safety violation under Section 102.57.