LIRC Changes in Lame Duck Session

Changes to LIRC

Before Governor-Elect Tony Evers takes office, the Republican-led legislature and outgoing Governor Walker are making changes to the Labor and Industry Review Commission.  The Commission, or LIRC, is the three-person body of political appointees that review judge decisions in workers’ compensation cases.  Commissioners serve staggered six year terms.  Significantly, all three current Commissioners were appointed by Governor Walker.

What happened in the lame duck session?

The following blog link contains a detailed editorial review of the changes to the Commission’s makeup–essentially, one Commissioner is retiring, which allowed for the swapping of another Commissioner to complete a longer term.

The author indicated:

  • Prior to the lame duck session, Georgia Maxwell’s appointment expired in March 2019, Dave Falstad’s appointment expired in 2021, and Laurie McCallum’s appointment expired in 2023.

  • But, Laurie McCallum has indicated she is retiring from the Commission in very early January 2019. So, Gov. Walker apparently proposed and the Senate approved on Dec. 4th to appoint Maxwell to fill the remainder of McCallum’s term.

  • How can Maxwell be re-appointed to a new term when her current term has not expired and McCallum’s term has not yet expired? And, how can all of this occur in a legislative session that ends this year for service in 2019? Good questions.

Appointments from Governor-Elect Evers?

While Governor-elect Evers will have the opportunity to appoint one Commissioner in the months after his inauguration (for a term from ’19 to ’25), the Commission will have two appointees of Gov. Walker until 2021 (unless there are any additional changes or retirements).

Stay tuned for more…

 

Kids Chance Awareness Week: Scholarships for Kids of Injured Workers

Kids’ Chance Awareness Week

Kids’ Chance of America is a 501 (c)(3) organization that represents a collection of state-level non-profit Kids’ Chance organizations that provide scholarship opportunities to children who need financial assistance due to a parent’s work-related injury or fatality. All decisions at the state or national level should be measured against how well the decision being considered supports this guiding principle: More money for more kids!

What Makes Kids’ Chance Awareness Week Special?  In 2017, scholarship applications increased significantly but we know there are more students in need of assistance. Kids’ Chance Awareness Week is designed to increase visibility through special outreach events in each state that will spread the word about Kids’ Chance scholarship opportunities. In its fourth year, the week also serves to tap into the following we’ve built to advocate for the organization. There are currently 43 Kids’ Chance state organizations with several additional states in the planning stages. The goal is to improve our state organizations so that all eligible students can access scholarship assistance. Find out if there’s a Kids’ Chance in your state.

In Wisconsin, we have Kids’ Chance of Wisconsin. Domer Law is a proud support of Kids Chance of Wisconsin, and Charlie Domer is one of its founding Board members!

In order to help in the goal of “more money for more kids”, Kids’ Chance established the national Planning for the Future initiative. Through this initiative, Kids’ Chance helps industry professionals identify families of injured workers with children who are not yet of college age and get them connected to Kids’ Chance. That way, when the time comes, they can be connected to their state organization to apply for a scholarship. If you or someone you know is eligible for a Kids’ Chance scholarship, please contact us via our Planning for the Future form.

How Can I Get Involved with Kids’ Chance? 

  • Contact the Kids’ Chance organization in your state to find out what special Awareness Week events are planned.
  • Spread the word about Kids’ Chance Awareness Week through social media using #KidsChance 
  • Refer our program to any student or family in need of assistance.

Who Is Your Doctor?: Choice of Doctor Under Worker’s Compensation

A common dilemma faced by many injured workers: where to seek treatment following a work injury. Some employers force injured workers to a designated medical provider and many times the injured worker continues treatment with that provider. Workers often assume they cannot switch or see their own physician (which is not correct). Treatment at the employer-designated provider continues until the injured worker is sent back to work, even if the injured worker has not fully healed, which can lead to further injury or employment consequences.

Workers can receive treatment from their own doctor following a work injury.  An injured worker in Wisconsin has a right to two “choices” of treating practitioners. What constitutes a “choice” is defined in Wisconsin Statute §102.41(2)(a) and includes any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse practitioner, or podiatrist. The important aspect of physician choice is that referrals from one doctor to another do not exhaust a choice.    

We frequently receive calls from injured workers who believe that a referral from their primary care doctor to an orthopedic doctor is the second choice. But that is not how the law works.  Only if the injured worker leaves the referral chain do they use their “second choice.” 

A referral from a primary care physician to an orthopedic doctor is a single choice. If the orthopedic doctor refers to a pain management physician, again, it is a single choice. The injured worker has now seen three doctors (Primary Care, Orthopedic, Pain Management), but is still within the same “choice.”  Doctors within the same practice count as a single choice. 

Injured workers need to be aware of their options. Insurance companies may designate a referral to an Orthopedic doctor as the “second opinion” and therefore, the second choice, when really this is still only a single choice. This crucial distinction affords the injured worker the opportunity to receive quality care. 

What happens in an emergency? The employer may arrange for emergency treatment after which the injured worker can choose their own doctor without using a choice. This common-sense provision allows employers to direct emergency care without sacrificing the worker’s choice of quality care in the future. 

The best advice for injured workers is to always obtain a referral from a treating doctor to any other doctor or specialist.  In Wisconsin, the injured worker – not the employer or the worker’s compensation insurance company – controls treatment.

Recovering From Injury – “Is Heroism the Standard?” Redux

Judge David B. Torrey

My friend and colleague, Professor and Judge David Torrey, with whom I serve on the Board of the College of Workers’ Compensation Lawyers, recently posted this blog in response to an insurance industry speaker’s exhortation that injured workers should “ get off their asses” and get better. Here’s his moving response:

Many in the workers’ compensation community complain that seriously injured workers can develop a disability lifestyle, become dependent on drugs, and unreasonably extend their disabilities. Instead of falling into such a lifestyle, these critics argue, disabled workers should show “resilience.” This rhetoric, which I have written about before on this blog, has its genesis in progressive medical/rehabilitation thinking, Muscular Christianity (I think), and, realistically, employer/insurer cost considerations.

The complaint is legitimate, and one with which I have some sympathy. I also believe that some legitimately injured workers do indeed unreasonably extend their disabilities — if only waiting for a generous lump sum settlement. Many readers will know of the sharp critique of this type advanced by Dr. Nortin Hadler in his many books.

On the other hand, the “duty-of-resilience” critique can go too far, and is often articulated in overly simplistic terms. At my agency’s conference in Hershey, Pennsylvania (June 7-8), an articulate industry speaker, addressing an audience about medical marijuana, posited forcefully that the “choice between opioids and medical marijuana [for chronic pain patients] is a false choice….” What workers need to do, instead, is show some resilience and “get off their asses!” After all, a friend of his, who is partially paraplegic, has shown resilience and will often go hiking with him. If she can do it, so can others!

I believe the speaker knew his audience and thus took some pleasure in feeding these lions of the community some red meat, and indeed they rewarded this coarse declaration with a leonine roar of applause.

Yet, his panel partner, Dr. Michael Wolk, thereupon gently reminded the industry speaker — and the audience — that not all people respond to pain and other impairments the same way; indeed, he posited that science has shown that one’s genetic make-up can affect the ability to be resilient.

Dr. Wolk (my God, an astonishing speaker) might also have remarked, as have other physicians at our Pennsylvania conferences, that heroism is not appropriately considered the recovery standard in the first place. Commentators like the industry speaker, talking about resilience, often invoke exceptional individuals, like Christopher Reeve, but most of us realize that not everyone is Superman.

This point was vividly made two years ago in the memoir, A Body Undone: Living on After Great Pain (NYU Press 2016). The author, Christina Crosby, a professor at Wesleyan University, was rendered quadriplegic in a cycling accident, and has been left with chronic pain as well. She recounts in her memoir what life is like with such a catastrophic injury, shows that she indeed has great resilience — but leaves the heroism narrative behind. She makes clear that her circumstances, like education; a life of reflection and discipline; and the unflagging love and support of her family, make her ability to bounce back possible. Most of us know that not every injury victim will have these advantages. (My complete review of Professor Crosby’s book is posted at the research website www.davetorrey.info.)

Is all this not common sense? We have known for a century, after all, that young men respond differently to their traumatic wartime exposures. Some show a grim resilience; some are troubled for life, but are able to continue on; some are broken. In the modern day, most of us would not address such veterans with the admonition that they get off their asses. Injured workers deserve the same respect.

 

Work-Related Death in Milwaukee

Another sad day at a Wisconsin workplace.  The news came out that a worker was killed in a traumatic incident at a major Wisconsin employer: Oak Creek man killed in Caterpillar accident.

Such tragedies are becoming more and more common in Wisconsin and around the country.  Recent statistics  show that workplace deaths are rising with every passing year.

In Wisconsin, “death benefits” under the Worker’s Compensation Act are payable to a deceased worker’s dependents.  If an injury kills a worker, a surviving dependent is entitled to a death benefit that is equal to four (4) times the worker’s annual wages.  A “dependent” generally is a spouse living with the deceased at the time of death, or if there is no live-in spouse, any children under the age of 18.   If there is no live-in spouse or minor children, other family members could bring claims for partial dependency benefits.

Most of these tragic claims are accepted and paid without question, but disputes might arise (requiring attorney involvement) when family connections are involved.

Funeral and burial expenses (up to $10,000) should also be paid by worker’s compensation.

 

Workers’ Memorial Day…and the Decline in Worker Safety

Last week (April 28) was Workers’ Memorial Day, remembering and honoring all those workers who have been injured or killed in the workplace.  While we’ve come a long way in our country toward protecting workers, current politics and politicians are actively working to undermine a century of progress.

I encourage everyone to read the following informative post on the current statistics of workplace injuries and the effort to encourage less protection for workers: The Health and Safety of America’s Workers Is At Risk.  

The author, Kathleen Rest, provided a detailed list of the Trump administrations intention on “rolling back public protections and prioritizing industry over the public interest”:

  • Right off the bat, the president issued his two-for-one executive order requiring agencies to rescind two regulations for each new one they propose. So, to enact new worker health and safety protections, two others would have to go.

  • OSHA has delayed implementation or enforcement of several worker protection rules that address serious health risks and were years in the making—i.e., silica, the cause of an irreversible and debilitating lung disease, and beryllium, a carcinogen and also the source of a devastating lung disease.

  • OSHA has left five advisory and committees to languish—the Advisory Committee on Construction Safety and Health; the Whistleblower Protection Advisory Committee; the National Advisory Committee on Occupational Safety and Health; the Federal Advisory Council; and the Maritime Advisory Committee—thus depriving the agency of advice from independent experts and key stakeholders. Earlier this week, a number of groups, including the Union of Concerned Scientists, sent a letter to Secretary of Labor Acosta asking him to stop sidelining the advice of independent experts.

  • President Trump signed a resolution that permanently removed the ability of OSHA to cite employers with a pattern of record keeping violations related to workplace injuries and illnesses. Yes, permanently, because it was passed under the Congressional Review Act. And Secretary Acosta recently seemed hesitant to commit not to rescind OSHA’s rule to improve electronic recordkeeping of work-related injuries and illnesses.

  • Having failed in efforts to cut some worker health and safety protections and research in his FY18 budget proposal, the president is going at it again with his FY19 proposal. He is calling for the elimination of the U.S. Chemical Safety and Hazard Investigation Board and OSHA’s worker safety and health training program, Susan Harwood Training Grants. There is, however, a tiny bit of good news for workers in President Trump’s proposed budget for OSHA; it includes a small (2.4 percent) increase for enforcement, as well as a 4.2 percent increase for compliance assistance. Of note, employers much prefer compliance assistance over enforcement activities.

  • The president’s budget also proposes to cut research by 40 percent at the National Institute for Occupational Safety and Health (NIOSH)—the only federal agency solely devoted to research on worker health and safety—and eliminate the agency’s educational research centers, agriculture, forestry and fishing research centers and external research programs.

  • He has also proposed taking NIOSH out of CDC, perhaps combining it later with various parts of the National Institutes of Health. Never mind that NIOSH was established by statute as an entity by the Occupational Safety and Health Act of 1970.

  • The Mine Safety and Health Administration (MSHA) has also jumped on the regulatory reform bandwagon. The agency has indicated its intent to review and evaluate its regulations protecting coal miners from black lung disease. This at a time when NIOSH has identified the largest cluster of black lung disease ever reported.

  • EPA actions are also putting workers at risk. Late last year, the EPA announced that it will revise crucial protections for more than two million farmworkers and pesticide applicators, including reconsidering the minimum age requirements for applying these toxic chemicals. Earlier in the year, the agency overruled its own scientists when it decided not to ban the pesticide chlorpyrifos, thus perpetuating its serious risk to farmworkers, not to mention their children and users of rural drinking water. And the agency has delayed implementation of its Risk Management Plan rule to prevent chemical accidents for nearly two years.

  • The Department of Interior is following up on an order from President Trump to re-evaluate regulations put into place by the Obama administration in the aftermath of the Deepwater Horizon accident in 2010, which killed 11 offshore workers and created the largest marine oil spill in United States’ drilling history.

  • And then there’s a new proposal at the U.S. Department of Agriculture that seeks to privatize the pork inspection system and remove any maximum limits on line speeds in pig slaughter plants. Meat packing workers in pork slaughter houses already have higher injury and illness rates than the national average. Increasing line speeds only increases their risk.


Scary times.  I fear we may be remembering more and more injured workers moving forward.

Trump Policies Bad for Workers’ Compensation

Dr. Richard Victor

Dr. Richard Victor, an economist who founded the Workers’ Compensation Research Institute (WCRI) 35 years ago, just presented a paper at the WCRI National Conference in Boston.  He indicated that federal policies on immigration and health insurance promise to make worse the challenges the United States faces by an aging workforce and a widespread labor shortage. He noted that workers’ compensation claims could double and overall costs could expand by over 300% in the next dozen years, without any increase in benefits to workers.  External forces could bring far more cases into the system because of a number of forces, including an aging workforce, labor shortage, slowdown in immigration, and more shifting to workers’ compensation claims that should be paid by group health insurance. Dr. Victor projected current claims out a dozen years to 2030 indicating that claims should actually be down to about ¾ of today’s numbers, but external factors will more than overtake that favorable percentage. Labor shortages caused by baby boomers retiring will increase injury rates.  Research indicates that the older workforce will mean an increase in lost work days and more injuries and a real impact on labor shortage as more baby boomers retire. Dr. Victor indicated “These labor shortages, which will be longer and deeper than anything we have experienced, will lead to significant increase in workers’ compensation claims and longer durations of disability.” During a period of labor shortages, employers relax hiring standards and hire workers they would not have hired in a normal labor market, including workers who are less capable. The overall labor shortfall leads to more workers’ compensation claims.

The Immigration Factor:

Economists have seen immigration as a factor that mitigates against the impact of the labor shortage. The Trump Administration, changing federal immigration policy, will further tighten labor markets and prolong the duration of a labor shortage. Moreover, Trump’s “anti-immigration rhetoric” also discourages people to come to America.  In health care, Victor noted that one in six health care workers is foreign-born including 27% of physicians and surgeons, 15% of nurses, and 22% of home health aide, each of which effects the workers’ compensation system.

Health Insurance

A shortage of people with adequate health insurance is also a problem for workers’ compensation. Health insurance deductibles have risen from the hundreds to many thousands of dollars, and this new reality causes more workers to go without or delay getting medical care for an injury or illness. When they can no longer ignore their condition, many claim it as a work-related condition and seek workers’ compensation (he cited a Rand Research study indicating workers with high deductible or co-insurance plan postponed care in over one-third of cases of the most common kind of workers’ compensation claims – soft tissue injuries.” As the number of workers who lose their insurance grows (since the Trump Administration and Congress ended subsidies and other aspects of the Affordable Care Act) case shifting form health insurance to workers’ compensation could have a major effect, ballooning workers’ compensation claims by as much as 35% in the next dozen years.

Victor’s conclusion: “You end up with a 300% increase in workers’ compensation costs without increasing benefits to injured workers.”

 

Center for Progressive Reform Launches National Database of Crimes Against Workers

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

Every year are a few work-fatalities that garner criminal prosecution and conviction. This is out the thousands of work-fatalities that occur every year. Until now, there’s been no one keeping a record of these fatality-causing events.

Now, the Center for Progressive Reform’s (CPR) Katie Tracy has reviewed court records, investigation files, and news stories to identify them many of them. After assembling information on more than 75 criminal cases from 17 states, she knew it was time to share all of it.

The result is CPR’s user friendly and publicly-available at Crimes Against Workers Database. I encourage you to explore this valuable tool. We believe that the awareness caused by sharing this information nationally can be a catalyst for legislators and others to understand the scope and scale of these crimes.