Monthly Archives: January 2013

Worker’s Compensation Advocacy: Playing Fair in the Same Sandbox

Workers’ Compensation hearings tend to be relatively cordial

I just completed another semester teaching the worker’s compensation course at Marquette University. Part of my responsibility includes instructing students on the ethical practice of worker’s compensation law. I also recently read an article in the American Bar Association Journal in which a lawyer was chastised by the Judge for inappropriate behavior in a class action lawsuit. 

The lawyer held depositions in a Dunkin Donuts, wore a T-shirt and shorts to the deposition, drew penis cartoons during the deposition, and played Angry Birds on his computer throughout. He also disrespected the opposing counsel, indicating in the presence of the opposing party that the counsel was inadequately trained to handle the case. 

While worker’s compensation claims can be bitterly fought, worker’s compensation attorneys on both sides, in general, remain highly professional and relatively cordial.

While worker’s compensation claims can be bitterly fought, worker’s compensation attorneys on both sides, in general, remain highly professional and relatively cordial. Part of the explanation is the absence of actual “discovery” in worker’s compensation – no depositions, requests for production of documents, etc. that lead to the kind of results discussed above. Injured workers waive physician-patient privilege and worker’s compensation carriers can obtain any and all relevant medical records to defend the claim. Experts’ reports are required to be exchanged by Statute, and depositions are held only in rare circumstances (when parties are unavailable at a hearing). Although this “trial by surprise” can sometimes produce surprising results depending on the testimony, the absence of substantial pre-hearing discovery also means, in general, the absence of gamesmanship present in some other more contentious areas of the law.

TENS Units No Longer Reasonable Treatment For Chronic Low Back Pain, Says CMS

In many workers’ compensation cases, Medicare pays medical treatment expenses for an injured worker that may otherwise be the responsibility of the workers’ compensation insurance carrier. In the past decade, workers’ compensation practitioners have become well-versed in dealing with Medicare issues and establishing Medicare Set Asides—effectively deals between the federal government (Medicare) and the work comp insurance company to cover future work-related medical care for the injured worker. 

However, Medicare does not cover all types of medical treatment expenses. Thus, certain types of medical treatment cannot be considered part of a Medicare Savings Account (MSA), but those expenses could still be the responsibility of the insurance carrier. One of those non-Medicare-covered expenses are TENS units for chronic law back pain.  On August 1, 2012, the Centers for Medicare and Medicaid Services (CMS) issued a memorandum regarding Transcutaneous Electrical Nerve Stimulation (TENS) units for chronic low back pain. The new CMS policy indicated that chronic low back pain (CLBP) is “an episode of low back pain that has persisted for three months or longer; and is not a manifestation of a clearly defined and generally recognizable primary disease entity.” CMS indicated that for all workers’ compensation cases settled after June 8, 2012, use of TENS units for chronic low back pain will no longer Continue reading

Nursing Facilities Have Higher Incidence Of Workplace Injury Than Construction

Today’s post comes from guest author Nathan Reckman from Paul McAndrew Law Firm.

According to the U.S. Department of Labor Bureau of Labor Statistics “Workplace Injuries and Illnesses – 2010” report, the United States is becoming a safer place to work. In 2010, there were 3.1 million non-fatal work injuries reported. This translates to 3.5 injuries per 100 full-time equivalents, a slight decrease from the 2009 rate of 3.6 injuries per 100 full-time workers. The rate of injuries per 100 workers has been decreasing every year since 2002. In 2010, Iowa reported an above average number of work injuries, averaging 4.4 injuries per 100 full-time equivalent workers.

Of these 3.1 million injuries, nearly 76% (2.2 million) of injuries occurred in the service industry. Service jobs make up 82.4% of the labor market. Nearly 24% (0.7 million injuries) occurred in manufacturing industries, which make up 17.6% of the labor market.

Surprisingly, the state owned nursing and residential care facilities workers reported the most injuries at 14.7 injuries per 100 full-time equivalents. The industry with the most reported injuries in 2009, Local Government supported Heavy and Civil Engineering Construction, improved from 12.5 injuries per 100 full-time equivalents to 8.6 injuries per 100 full-time equivalents in 2010.

The statistics are encouraging, but I look forward to the day where there are no fatal workplace injuries, and where workplace safety is a primary concern for all employers and workers.

“Mental-Mental” Worker’s Comp Claims Following Connecticut School Shooting Injuries

Connecticut’s workers compensation law does not currently cover mental injuries which do not stem from a physical injury.

Following the Connecticut school shootings, unions representing police and firefighters and school employees have held discussions about laws to expand situations under which worker’s comp benefits would be available for mental health issues. Connecticut worker’s compensation law does not provide for “Mental-Mental” claims, which are claims for psychological disabilities that do not stem from an original physical injury. Police officers, firefighters, and school officials do not meet the requirements of Connecticut’s Statute for psychological counseling or time lost benefits in the event they are unable to work because of psychological disability in the wake of the shootings. 

Since the mid-1970s Wisconsin has recognized non-traumatic mental injury (“Mental-Mental”) in worker’s compensation. Before 1974, compensable mental injuries were limited to post-traumatic injuries, mental disorders occurring after and due to a physical accident. The statute then defined injury as “mental or physical harm to an employee caused by accident.”

The Wisconsin Supreme Court set a new “Extraordinary Stress” standard for compensability, indicating if the mental injury resulted from situation of greater dimensions than the day to day stress, which all employees must experience, benefits and medical expenses could be paid. Continue reading

8 Hazardous Jobs In The Healthcare Industry

Multi-channel infusion pump for delivery of chemotherapy

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

The most hazardous jobs in the healthcare industry are those whose workers deal with handling hazardous drugs or disposing of hazardous biological waste. 

The National Institute For Occupational Safety And Health (NIOSH) has revised and republished informational material concerning the health hazards to healthcare workers were exposed to hazardous drugs. The publication directs attention for the medical surveillance of healthcare workers who come in contact with hazardous drugs or dispose of hazardous biological waste. 

Healthcare workers who prepare, administer or transport hazardous drugs or dispose of hazardous drug waste may face risks to their own health such as skin disorders, reproductive disorders, and possibly cancer.

1. Pharmacists and pharmacy  technicians

2. Nurses (RNs, ARNPs, LPNs)

3. Physicians and physician assistants

4. Operating room personnel

5. Home healthcare workers

6. Veterinarians and veterinary technicians 

7. Environmental service workers (housekeeping, laundry, maintenance workers)

8. Workers who ship, transport, or receive hazardous drugs 

The information provided by NIOSH is useful to identify and correct preventable failures that lead to disease. Early identification of health problems can also benefit individual workers.

The Persisting Myth of Employee Worker’s Compensation Fraud

Our colleague Leonard Jernigan has compiled a list of 2012’s top 10 workers’ compensation employer insurance frauds.

It’s Holiday Season. At every gathering or party when I indicate I represent injured workers, I am asked “Aren’t most of your clients frauds?” I respond, as patiently as I can, that the actual hard data in Wisconsin, based upon years of study, indicates less than six tenths of one percent of workers have some potential element of fraud in their claims.  I further explain that the level of employer fraud makes this tiny percentage of employee fraud pale by comparison. I further note that the level of employer fraud uncovered on a daily basis is enormous.  

This routinely raises an eyebrow until the actual numbers are revealed. The questioner’s interest is also piqued when I indicate the costs of medical care and disability shifted to taxpayers through inappropriate cost shifting to Social Security, Medicare and Medicaid makes us all pay the price for employer worker’s compensation cheaters.

My friend and colleague Leonard Jernigan in North Carolina has led the difficult task of revealing these employer fraud cases and has posted the Top Ten 2012 Worker’s Comp Fraud Cases.  In 2012, the Top 10 cases alone cost nearly $100 million to the worker’s compensation system.

Included in the list are the following:

  • Florida employer creating ten “shell” companies, funneling $70 million in undeclared and undetected payroll for construction operations to avoid paying the cost of worker’s compensation coverage, leaving employees at risk.
  • Ohio companies Continue reading

Can I Cash This Check?

On a daily basis, I hear a similar question from injured workers: “Can I cash this check?”   This question usually occurs after a worker has been receiving her weekly checks during a healing period after a work injury.  After the treating physician assigns a healing plateau, often an injured worker in Wisconsin receives a relatively large check in the mail from a workers’ compensation insurance company.  Many workers become concerned that cashing that check ends the case or is a complete “settlement.”  

If you did not sign a Full and Final Compromise Agreement–between you and the insurance company–then accepting and cashing a check from the insurance company is acceptable in Wisconsin. 

This is certainly a valid concern, especially for the vast majority of injured workers who are unfamiliar with the workers’ compensation system and laws.  Here is the key: You can cash the check.  If you cash the check, you are not agreeing to stop your claim or stop your medical treatment.  Under the workers’ compensation laws, the only way that an injured worker can agree to end the claim is by Continue reading

2013: New Wisconsin Comp Rates

A new year means new maximum rates under the Wisconsin Worker’s Compensation Law

Happy New Years!  Welcome to 2013.  As with most calendar changes, a new year means new maximum rates under the Wisconsin Worker’s Compensation Law.  You can find the new maximum wage rate chart here.

For injuries occurring after January 1, 2013, the new maximum permanent partial disability rate is $322/week (up from 312/week in 2012).

For temporary total disability benefits, the “maximum” average weekly wage is $1,318.50, which equals a max TTD rate of $879/week for injuries in 2013.  This means that any worker earning more than $1318.50 is capped at $879/week while healing from a work injury.  If a worker is earning less than the “max” rate, they continue to receive 2/3 of their wages while healing from a work injury.

Also, the maximum death benefit (4 times a worker’s annual wage) has been raised, but capped at $263,700.00 for a dependent.