Author Archives: Charlie Domer

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm, in North Carolina.

Wisconsin’s Worker’s Compensation Advisory Council is also looking at the issue of opioid use.

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

Groups Oppose Legislation Aimed to Change Wisconsin’s Advisory Council

Wisconsin’s Worker’s Compensation Advisory Council serves as the driving force behind the state’s historically stable and first-rate work comp system.  Wisconsin gets its injured workers back to work faster than virtually all states in the country.  We have extremely low litigation rates (a recent study showed only 13% of work injuries require an attorney).  We have stable and falling work comp insurance premiums–an 8% decrease for 2017.  

These are the marks of a great work comp system thanks to the Advisory Council.

So, of course, some legislators want to blow it up!   This is a classic example of a fix looking for a problem!

Republican legislators recently introduced legislation (AB 308) to drastically alter the makeup of the Advisory Council.  Traditionally, the Advisory Council’s makeup is five management, five labor, and three non-voting insurance members appointed by Secretary of Dept. of Workforce Development (DWD).  After Council deliberations, they produce a biennial “agreed upon” bill, which is then submitted to lthe egislature that, in turn, generally accepts the bill.   As the DWD site proudly prounces:

One of the most important and enduring principles of the Council is maintaining the overall stability of the worker’s compensation system without regard to partisan changes in the legislative or executive branches of government. The Council provides a vehicle for labor and management representatives to play a direct role in recommending changes in the worker’s compensation law to the Legislature.

The 2017 introduced bill proposes to alter only the makeup of the “labor” side of the Council.  The proposal would reduce the amount of organized labor representatives on the Council in proportion to the amount of unionized workers in the state.  

When a hearing occurred last week on this bill in the assembly labor committee, the legislature faced overwhelming opposition to this measure.   A story on WorkCompCentral (Stakeholders Line Up Against Bill Aimed at Reducing Union Role on Advisory Council) detailed that opposition from the system’s stakeholders–including a broad array of the insurance company community.   The insurance companies know that any major change to the Council could create uncertainty in the system.  With uncertainty, there is risk.  With risk, there are increased costs and insurance premiums.

There is no need to change the current Council makeup, especially in light of the beneficial metrics the current system produced–and continues to produce.  The five organized labor representatives continue to be the best representatives–with the broadest expertise and breath of knowledge–for all workers, whether unionized or not.   

We hope this proposed legislation is dead on arrival.  The Advisory Council system works for Wisconsin.  An attack on the Council is an attack on the system’s stability.

 

Cutting Corners Costs Lives: Non-Union Work Sites Twice As Dangerous As Union Sites

This large inflatable rat is a common sight at protests of non-union worksites in New York City.

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

As an attorney who practices in the metropolitan area, I often find myself traveling into New York City. I am amazed at the amount of construction that I see; the cityscape is changing and evolving rapidly. This construction boom means more business, a steady paycheck for workers, and more money for the city and state. Unfortunately, with the rise in construction also comes a rise in safety violations, injuries, and fatalities.

The New York Committee for Occupational Safety and Health (NYCOSH) recently issued a report called Deadly Skyline regarding construction fatalities in New York State. A summary of their findings notes that from 2006 through the end of 2015, 464 construction workers died while on the job, with falls as the leading cause of death. When a fatality occurred, safety violations were inherent in more than 90 percent of the sites inspected by the Occupational Safety and Health Administration (OSHA). The report pointed out that non-union work sites had twice the safety violations of union sites, and in 2015, 74 percent of the fatalities occurred on non-union projects with the majority of the fatalities involving Latinos.       

It is painfully obvious that shortcuts and cost-saving measures result in injury and death. Many employers use misclassification as a means to save money. Misclassification occurs when an employee is labeled as an “independent contractor” so that a business owner doesn’t need to pay Workers’ Compensation insurance, Social Security, Medicare, or unemployment taxes. Some even resort to paying employees off the books as well in an effort to save money. This may not seem troublesome until you realize that this is a one-sided deal that really only benefits the employer. According to the NYCOSH report, misclassification of workers allows an employer to skirt the safe workplace requirement as OSHA does not cover independent contractors.

Employers must provide Workers’ Compensation insurance for their employees, and typically must notify their Workers’ Comp carrier as to the number of employees they have and the type of work they do. A risk analysis is performed and then employers are assigned a premium to pay in order to cover their workers in case of injuries. If injuries occur, premiums may be increased accordingly. Obviously employers in high-risk businesses must pay more for their premiums than those with employees involved in low-risk jobs. As injuries on misclassified workers do not add to an employer’s bottom line, there is less incentive to provide safety measures if it cuts into profits.

To make construction sites safe, NYCOSH recommends adequate education and training as well as legislation to punish those whose willful negligence causes a death. They also recommend passage of the NYS Elevator Safety bill that requires the licensing of persons engaged in the design, construction, operation, inspection, maintenance, alteration, and repair of elevators. It would also preserve Section 240 of the New York Labor Law, commonly referred to as the “scaffold law,” which governs the use of scaffolding and other devices for the use of employees. Weakening the Scaffold Law would shift safety responsibility from owners and general contractors who control the site, to workers who do not control the site and are in a subordinate position.

It is a true tragedy when someone is maimed or killed in an accident that could have been prevented. Not every employer engages in these tactics, and most workplaces are generally safe spaces for workers. However, even one death is too many. 

 

 

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.

Work Comp Budget UPDATE: Committee Votes to Preserve Court Reporters & LIRC

Last week, the all-important Wisconsin Joint Finance Committee voted on two major issues impacting worker’s compensation in our state.   On both votes, Joint Finance removed the two Budget proposals, opting, instead, to keep the current well-run and efficient system!

As we reported in a previous post (MORE changes to Work Comp: Elimination of Court Reporters & Appeals Commission?), the Budget Bill proposed dramatic changes to Wisconsin’s top notch worker’s compensation system: (1) eliminating the use of live court reporters in litigated hearings; and (2) eliminating the independent appeals commission (Labor and Industry Review Commission, or LIRC) that reviews judge decisions.  

After public hearings on these proposals and lobbying efforts from various industry stakeholders, the Joint Finance Committee voted to preserve the current structure of the work comp system.  

LIRC: 

Indeed, the Committee rejected the Budget proposal to eliminate the LIRC–retaining the second-level appeals commission that has helped shape Wisconsin work comp law virtually since its inception in 1911.  While some vacant staff positions go away, LIRC remains in place for future appeals of work comp, unemployment, and equal rights cases.   As the LIRC website states:

LIRC is an independent Wisconsin administrative agency established to provide a fair and impartial review …  The commission’s decisions provide consistency, stability, and integrity to the programs for the employers, employees, insurers, and citizens of the State of Wisconsin.

As part of keeping LIRC, the Committee also voted for the Wisconsin Supreme Court to conduct a further study about LIRC’s interpretation of the statutes.   The upshot of the vote is for LIRC to remain for the next biennium.

Court Reporters:

The Committee also voted to keep the status quo and retained the use and funding for court reporters in litigated worker’s compensation hearings.   These stenographic court reporters are necessary to the efficient functioning of the system by ensuring decorum in the court room, properly managing exhibits, making sure parties do not talk over each other, and creating an accurate and legitimate transcript.  The initial Budget propsal involved eliminating court reporters in exchange for ill-defined audio recording equipment. Many system stakeholders (employees, employers, and carriers) raised signficant concerns about having six to seven figure case exposures decided based on unknown or questionable audio technology.  The costs of such “equipment” were also not described or budgeted.

As part of the Joint Finance Committee deliberations, the state’s Legislative Fiscal Bureau provided options for the use of court reporters: eliminate them, keep them, or keep them but submit the issue for further study. The Committee selected the later option, which involved keeping the current use and funding for the all-important court reporters.  

Furthermore, the Commitee requested a study to be conducted (and submitted to the Advisory Council) about the viability and use of potential audio recording equipment.  This makes good sense.  We are a first-in-the-nation work comp system.  If there is technology that exists, we need to research it and make sure it works efficiently and cost-effectively for our work comp system.  Let’s get it right!  Ultimately, we may discover (like many other states have) that live in-person court reporters still beat out any potential audio recording equipment.   

Next steps:

First, I’d like to thank the state legislature’s Joint Finance Committee for their thoughtful consideration of the concerns from the work comp stakeholders. 

As to procedural issues, following the Joint Finance Committee votes last week (and further completion of the votes on other major issues), the Budget ultimately proceeds to the full legislature and then to the Governor’s desk for approval or veto.

As of right now, the Joint Finance Committee recognized what many stakeholders preach: the Wisconsin work comp system works well now, so avoid dramatic changes that could upset the historic stability. 

 

Undocumented Worker Arrested after Work Comp Claim

Scary news out of Massachusetts after a worker, who was undocumented, was arrested by ICE following a worker’s compensation injury.  The article can be found here: An ICE Arrest After a Workers’ Comp Meeting Has Lawyers Questioning if it Was Retaliation.   

Employees, despite lack of documentation, still perform work for their employers.  Wisconsin law, in turn, allows worker’s compensation benefits to those undocumented workers injured on the job. 

Unfortunately, many hard working employees without documentation remain fearful or tentative about filing a worker’s compensation claim.  Stories like this increase that insecurity.

(Special thanks to WILG colleague, Ryan Benharris, for sharing this news story).

As Construction Jobs Increase, So Do Work Deaths

More work-related falls and fatalities have gone hand-in-hand with the rebounding construction jobs in the economy. The data in a recent journal showed a positive correlation with fall injuries and population density and construction activity. The full article, from a data report by the Center for Construction Research and Training, can be found here (PDF link).

While the article indicates the amount of construction industry jobs still have not reached pre-recession levels, the industry as a whole is rebounding. With that increase in construction activity is a coinciding increase in falls—and even deaths. As the article points out, “fall deaths in construction are more prevalent than in other major industries.”

Interestingly, according to the data, roofers, older workers, Hispanic workers, foreign-born workers, and self-employed workers had a higher risk of fatal falls than the average among all construction workers. 

Further safety efforts (and reinforcement) are necessary in the construction industry.  The base level nature of the job, however, means that some work injuries will occur. Workers’ compensation law helps protect those workers are their families.

Watching a Paraplegic Walk!: A Work Comp Success Story

The ReWalk Device

I just witnessed someone without the use of their legs actually walk!

A young paraplegic—supposedly bound to a wheelchair on a permanent basis—used a robotic device and actually stood upright and walked forward.  The emotions involved defy adequate description, especially for someone included on the team that made this event happened.

http://www.cbs58.com/clip/13165226/technology-and-generosity-help-local-man-to-walk-again

Click here to watch the amazing video of a paraplegic walking!

This story begins, like many work injuries, with an unexpected traumatic event.  On November 13, 2008, Matt Nevaranta was a 22-year-old working a construction job in hopes of saving enough money to continue his college career.  Those dreams were cut short when 3,000 pounds of metal forms fell on Matt, severing his spinal cord.  Matt was lucky to be alive.  However, the injury damage resulted in permanent paraplegia—an inability to use his legs and all bodily functions below his waist.   Matt presumably was constrained to a wheelchair for his life.

For many individuals, such an injury could drastically alter their outlook on life.  Matt, though, is a unique young man, who I had the privilege to get to know and represent as his worker’s compensation attorney.  Despite his condition, Matt remained positive and persevered daily.  He continued to better himself since his traumatic injury.

Matt vigorously pursued his educational opportunities.  After the initial shock and recovery from the injury, Matt reenrolled in college, beginning online.  He ultimately attended full-time at Cardinal Stritch University (in Milwaukee, WI)—actually driving himself and using his wheelchair for classes.  While many worker’s compensation insurance companies demean or question the motivation level of injured workers, Matt disproved those misplaced assumptions.  Matt graduated from Cardinal Stritch in the spring 2016 while his bachelor’s degree.  Moreover, he volunteers at the Milwaukee County Courthouse in a legal clinic, and he now has applied for law school!

Matt also forcefully pursued his physical betterment and the necessary medical equipment.  Under the Worker’s Compensation law, an injured worker receives medical treatment that is reasonably required to cure and relieve from the effects of the injury.  (Wis. Stat. Section 102.42(1)).   In Matt’s case, his worker’s compensation insurance company provided a number of medical items since the injury, including a seated wheelchair, an upright wheelchair, and home and car accommodation modifications.  None of this treatment, however, resulted in Matt walking.

ReWalk allowed Matt to walk.  ReWalk is a wearable robotic, motorized exoskeleton that allows individuals with spinal cord injuries to stand upright and actually walk.   During my representation, Matt asked if his worker’s compensation insurance company would pay for the ReWalk device.   Matt met all of the necessary criteria (as established by ReWalk) and had medical clearance to obtain the device.  More importantly, Matt’s treating spinal cord specialist and psychologist provided their medical opinions about the significant physical and psychology benefits involved in the potential use of this device.

A legal battle ensued.   In part, due to the “not-cheap” device cost, the worker’s compensation insurance company denied payment for the device.  The insurance company also hired their own “independent” medical record reviewer to question the benefits of the device.  We filed numerous medical literature studies showing the physical benefits of an upright motorized exoskeleton for paraplegics (notably, many of these devices have been used to assist returning military veterans).  We also filed medical opinions noting the potential cardiovascular, gastrointestinal, spasticity, life expectancy, and psychological benefits to the device.

The dispute over the ReWalk device went to a worker’s compensation trial.  (Note that worker’s compensation attorneys cannot receive a fee on medical treatment expenses, so this was pro bono representation).  Matt testified about his desire to use the ReWalk device.

And we won.  In a first-of-its-kind case in Wisconsin, the administrative law judge ruled that the ReWalk exoskeleton device was a reasonably required medical treatment or modality to cure and/or relieve from the effects of the work injury.  Thus, the worker’s compensation insurance company was ordered to pay for the device.

The parties struck a subsequent reasonable deal for the cost of the device to avoid further appellate litigation.  As part of this deal, we worked with the amazing crew at Marquette University’s physical therapy department (shown in the video clip in detail), who provided further training to Matt free of charge.   Matt now goes to training at Marquette, and I was privileged to watch Matt in action.

I watched a paraplegic walk!

Such a worker’s compensation success would not be possible without an entire team supporting Matt, including the efforts from Domer Law, Matt’s family, the ReWalk team (especially Craig Peters), the physicians at Froedtert/Medical College of Wisconsin (especially Drs. Merle Orr and Brad Grunert), and Marquette University physical therapists.  But, of course, none of this would occur without the personal drive to excel found in Matt Nevaranta.  Great work Matt, and I wish you nothing but continued success.

Carbon Monoxide Poisoning at Work

Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm.

Hundreds of individuals have been exposed to dangerous levels of carbon monoxide while at work, including 150 employees at Middleville Tool and Die in Michigan when a hi-lo vehicle malfunctioned emitting carbon monoxide and hydrogen sulfide fumes, and 3 construction workers in Berkley, California who were operating a gas power washer inside a building. Carbon monoxide poisoning is a dangerous risk for workers.

Carbon monoxide is a colorless, odorless, tasteless, and poisonous gas that results from the incomplete burning of natural gas, gasoline, kerosene, oil, propane, coal, and other carbon-containing materials. Workers may be exposed to harmful levels of carbon monoxide in boiler rooms, warehouses, petroleum refineries, steel production, blast furnaces and coke ovens.

Initial symptoms of carbon monoxide poisoning include headache, fatigue, dizziness, drowsiness, nausea, chest pain. Within minutes and without warning, large amounts of carbon monoxide can cause loss of consciousness, suffocation, and death. If caught early, carbon monoxide poisoning can be reversed; however, there may be permanent brain and heart damage from the lack of oxygen to the organs during the exposure.

There are several measures employers can take to prevent carbon monoxide poisoning including installing effective ventilation systems that remove carbon monoxide from work areas and installing carbon monoxide monitors with audible alarms. To be safe, employees should report any situation to their employer that might cause carbon monoxide to accumulate and be alert to any ventilation problems.

If you or someone else is experiencing symptoms of carbon monoxide poisoning move to an open area with fresh air and call 911. For more information on carbon monoxide poisoning, read the U.S. Department of Labor Occupational Safety and Health Administration’s Carbon Monoxide Poisoning Fact Sheet.