Category Archives: Workers’ Compensation

Employee Workers’ Compensation Fraud? No – Employer Fraud Rampant.

Attorney Leonard Jernigan compiled a list of the biggest workers’ compensation frauds

My friend and colleague Len Jernigan has again compiled the Top 10 Workers’ Compensation Fraud Cases for 2017.

 His results emphasize a theme that has been present for the last dozen years during which he has been compiling a “Top 10” list.  This year the Top 10 non-employee fraud cases resulted in fraud totaling just under $700 million.  Employee fraud cases resulted in zero fraud.  Seven of the Top 10 cases were from California, two from Texas, and one from Tennessee.

The cases involve health care fraud, where doctors prescribed inappropriate medications to pharmacies they operated, overbilling schemes for durable medical equipment, mail fraud, kickback schemes, referral of patients for unnecessary care, and prescribing unnecessary treatment.

A recurring theme, falsifying documents and under-reporting payroll to workers’ compensation insurance companies also appeared in the Top 10.  In one notorious case, the owners of a hotel hid the existence of 800 housekeeping and janitorial workers to avoid paying workers’ compensation insurance rates and payroll taxes.  The list also contains references to dishonest employers misclassifying more and more workers as independent contractors.  This misclassification is a fraud that wrongfully denies these employees workers’ compensation when injured, denies the government millions of dollars in payroll taxes to support Medicare, Social Security, Unemployment Compensation, and the fundamental rights of the workers.  Simply put, this misclassification is another employers shift the cost of accident and injury to the taxpayers and the fraud continues.

Small Businesses Don’t Have Workers’ Compensation Insurance

In a new study by Insureon, less than 1 in 5 small businesses carry workers’ compensation.  Although all State regulations require that small businesses have workers’ compensation, this study indicates that workers’ compensation is the least purchased insurance by small businesses.  (In Wisconsin, employers must have workers’ compensation if they hire only one employee paying more than $500 in a quarter or hire any three employees at any one time.)  The President of Insureon Jeff Somers said in an interview with that “small businesses often fail to carry workers’ compensation because they truly do not understand their insurance need; there is a major lack of awareness and education which insurers and brokers can alleviate.  One reason for this protection gap is a misplaced anxiety around how much workers’ compensation coverage actually costs, but when you compare the small price. . . the protection workers’ compensation provides makes an investment worth it.”

According to the Bureau of Labor Statistics, almost 3 million workplace injuries were reported by private industry employers in 2016, with nearly one-third resulting in time away from work.  The Insureon statistics showed that one in three businesses reported an incident that could have been covered by a workers’ compensation insurance policy and that one-fifth of all small businesses that filed for bankruptcy in 2016 did so because of lawsuits.  Workers’ compensation protects an employer from a lawsuit.  (In Wisconsin a worker injured by an uninsured employer has access to the Uninsured Employers Fund.  After the Fund pays workers’ compensation benefits, the Fund then pursues reimbursement from the employer.)

The Three Stooges Get Workers’ Comp: Why Backs Trump Knees and Shoulders in Wisconsin

Wisconsin’s unique workers’ compensation system contains one significant distinction, between “limb” injuries and “spine” injuries. Limb injuries (shoulders, elbows, wrists, hips, knees) are not worth as much to the injured worker as a spine injury.

To illustrate this problem to my law students, I use the 3 Stooges example: Moe, Larry and Curly work for a tree service earning $15 per hour or $600 per week. A tree branch falls on all three of them, injuring Moe’s shoulder, Larry’s knee, and Curly’s neck. They are all off work for 10 weeks while they are healing from surgeries required by the injury. During that time they received Temporary Total Disability at two-thirds of their wage or $400 per week, a total of $4,000 for each of them. After they are done healing, all three of their doctors assign a 10% functional disability rating for their injury and a 10- pound lifting restriction, which their employer cannot accommodate.

Moe gets 10% of 500 weeks for his shoulder payable at $362 per week, or a whopping total of $18,100 – making his total workers’ comp recovery just over $20,000.

Larry gets 10% of a knee or 42.5 weeks at $362 per week, or $15,385 – making his total recovery just under $20,000.

Curly, who had a neck injury and surgery, gets 10% of 1000 weeks at $362 per week, or $36,200. However, since he cannot return to the tree company, he also gets a recovery for his Loss of Earning Capacity. Based on his 10- pound restriction and his very limited education, he is probably limited to a minimum wage or part time job which would result in a 50% Loss of Earning Capacity, payable for 500 weeks or a total of $181,000. If his disability is serious enough, he may in fact receive his $400 per week for the rest of his life, bringing his total to well over a half million dollars.

That’s why many workers’ compensation attorneys (and insurance companies) focus their attention on spine injuries.

Trump’s Assault on Workers

As a workers’ compensation attorney, I tend to view current events through the prism of their effect on workers and more specifically injured workers.  The Trump Administration has rolled back his predecessor’s strides in environment, labor and finance, civil rights, health care, government reform, immigration, and education.  I would like to specifically address reverses in worker and consumer safety.  The Washington Post updated how Trump is rolling back Obama’s legacy through 16 executive actions, 74 cabinet level agency decisions, 14 congressional review acts, and a piece of new legislation. 

  • Specifically, in terms of worker and consumer safety, the Mine Safety and Health Administration is revising a mining inspection rule published three days after Obama left office by allowing examiners to do their reviews while miners are working letting companies not record hazardous conditions if they are immediately corrected.
  • The Trump Administration Interior Department ordered the National Academy of Sciences, Engineering and Medicine to stop a study of health risks for residents near surface mining operations in the Appalachians.
  • The EPA delayed implementing a rule that would have changed how agricultural workers are protected from pesticides.
  • The EPA is delaying implementation of rule to require manufacturers to label formaldehyde and composite wood products.
  • A Coast Guard plan to regulate firefighting systems on tanker ships and helipads on offshore platforms was withdrawn.
  • Additionally, a Coast Guard rule that would have required all ships and berths to maintain equipment and technical systems for safety was withdrawn.
  • OSHA delayed implementing a rule regulating construction worker exposure to silica (linked to lung disease and cancer).
  • The House and Senate passed a bill signed by President Trump eliminating worker safety regulations aiming to track and reduce workplace injuries and death.
  • The Labor Department removed from its agenda a proposal to stiffen exposure standards for chemical solvents.
  • The Labor Department cancelled plans to lower permissible exposure limits for some substances that had been set in 1971 and cancelled plans to revoke obsolete permissible exposure limits for other substances.
  • The Labor Department removed from its agenda a proposal to tighten exposure standards for styrene, a chemical used in plastics identified as a carcinogen.

This laundry list of anti-worker executive actions, Cabinet-level agency decisions and Congressional review acts reveals the hypocrisy of Trump’s campaign promises to help working families.  Rather, it reveals his completely anti-worker policy.

What Do You Mean, I Can’t Sue My Employer?

OSHA find the owner of the Didion Milling Plant in connection with an explosion that killed 2 workers and injured several more.

I sat down this morning with a television reporter interviewing me about a horrific explosion in Wisconsin that killed 5 workers and injured many more.  The explosion on May 31, 2017 at the Didion Ethanol Plant in Cambria, Wisconsin occurred when corn dust exploded, destroying the entire plant.  OSHA hit the company with a $1.8 million fine, calling it a preventable explosion.

The reporter’s question to me was “Why can’t the employees sue their employer?”  The answer goes back over 100 years in Wisconsin to the “Grand Bargain” that was struck between management and labor.  Sometimes referred to as the “great tradeoff,” employees traded away their right to sue their employer, even for egregious safety violations, in return for wage loss and medical benefits to be paid regardless of fault.  The goal was to relieve the injured employee from the burden of paying for medical care and replace lost wages.  At the turn of the 20th Century, Wisconsin workplaces were often dangerous places, and employers had little incentive to make them safer.  Injured workers could rarely afford the kind of legal cost for recovery efforts in court and employers benefitted by use of contributory negligence, assumption of risk and co-employee negligence as bars to an employee’s recovery in court.

The administrative system that was established by worker’s compensation was created to provide a direct remedy to the employer and to limit (by Exclusive Remedy) litigation against the employer.  The system was supposed to insure a method of providing benefits to an injured employee during the period of disability and to ensure the employees were not reduced to poverty because of injuries.

Speed, dependability, and financial assistance were components of the new system, and by making employers responsible for injury, the law offered strong incentives to make workplaces safer.  Unfortunately, that has not occurred.  The latest statistics indicate that over 100 people die annually in Wisconsin and over 5,000 annually across the nation.

Revealing to a grieving widow that the remedy available is limited to four times the deceased worker’s annual income is precious little consolation for loss of a spouse’s life and lifetime income.

The Road Ahead: Adjusting To Life After An Injury

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

As an attorney who has represented injured workers for more than 27 years, I see first hand what an injury can do to workers and their families. A number of years ago I represented an injured electrician, who as a result of an overextension injury sustained on the job, ended up having multiple surgeries. Almost immediately, this once athletic, high wage earner with a beautiful family and comfortable lifestyle saw an abrupt end to the life he knew.

My client faced a debilitating injury. He was no longer able to travel, his personal relationships suffered, and his once strong physique withered away. His financial situation was dire and he was unable to afford his home. Beside the extreme physical impairment, he ended up being treated for major depression. Both the insurance carrier’s medical providers, as well as the claimant’s treating doctors in this particular case, agreed that the claimant was totally disabled or incapable of performing any meaningful work activity – a standard not easy to meet.

Many of those injured on the job may not be able to return to their prior employment. Yet, according to the law, that does not mean they are totally disabled from any employment. If they are able to perform any work activity at all then they may be considered partially disabled. The amount of weekly payments an injured person receives and the length of time an injured worker receives these benefits is dependent upon a number of factors including degree of disability and loss of earning capacity. A partial disability can be considered mild, moderate, or marked.  These degrees are further broken down into when an injury is deemed permanent to a percentage loss of earning capacity. In some cases the difference of one percent loss of earning capacity can mean the difference of a full year of additional benefits. As you can imagine, much of my practice is consumed with litigation regarding the degree of disability and the loss of earning capacity.

The road for those who are partially disabled is not an easy one. Despite the Workers’ Compensation Board’s determination that an injured person has an ability to perform some work activity, it does not always translate into being able to obtain employment. In the case of serious injuries resulting in extensive lost time, the employer may have had to fill the position or the employer may not be able to accommodate the physical limitations. This puts injured workers in a position of having to look for alternate employment that they may not be trained for. The Board recommends a number of resources available to those seeking assistance, including one-stop career centers, as well as participating in vocational rehabilitation programs and continuing education such as SUNY Educational Opportunity centers adult career and continuing education. For more information go to

Many workers who are unable to obtain employment because of their injuries apply for Social Security Disability benefits. The standard for Social Security disability is different than Workers’ Compensation and relies more on the age and ability of the injured person to be retrained and to obtain relevant future employment. Social Security Disability benefits are payable for any illness or injury and do not have to be work related. All medical conditions are considered by the federal judge when making a determination as to eligibility, including physical or emotional impairments.

While an injury on the job can be life altering, there are resources available. You may never be able to return to your pre-injury status, but knowing your options allows you the ability to have some control over your future.


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.

Protecting Yourself At Work: What To Do If There Is An Active Shooter

Today’s older post is especially timely and comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As an attorney who has been practicing before the New York State Workers’ Compensation Board representing injured workers for more than 27 years, I am drawn to organizations that assist workers. That’s why I am a member of the New York Committee for Occupational Safety & Health (NYCOSH), whose mission notes that every worker has the human right to a safe and healthy workplace and that workplaces injuries are often preventable. As a member, I receive many emails with various announcements regarding workplace safety, as well as statistics of injuries and deaths that occur on the job, many of which are preventable.

It is a sign of the times that on May 23, 2017, I received an email about educating workers on how to best respond in case of an active shooter. NYCOSH, along with the New York City Central Labor Council (NYCCLC), was sponsoring the event that was meant to educate participants on what actions to take to prevent and prepare for potential incidents, including what to do when an active shooter enters the workplace. Many of the cases that make front page news are mass shootings or those in the name of terrorism. Few of us can forget the Islamic extremist, who along with his wife fatally shot 14 of his co-workers at a Christmas party. Many of us go about our workday never anticipating a disgruntled employee, a client harboring a grudge, a terrorist, or a coworker intent on robbery, who may come to our workplaces with murder on their minds. When NYCOSH set out to sponsor their recent event trying to deal with a growing problem in this country, there was no way of knowing that workplace shootings would be in the national headlines three times in just two weeks. 

Last week we were shocked and appalled by the images of Republican Senators and their colleagues being shot at by a deranged person not happy with current politics. While many of our elected officials have heavy security when they are at work in the Capital’s office buildings, these members were on a ballfield early in the morning practicing for a charity baseball game taking place the next day. Despite the close proximity of the Capitol Police there to protect Steve Scalise, the current United States House of Representatives Majority Whip, five people were shot. Thankfully the sole fatality was the shooter himself.

In Orlando in early June, a disgruntled ex-employee systematically shot and killed five coworkers and then himself. A week later, a UPS employee in San Francisco walked into a UPS facility and killed three coworkers before killing himself.

According to the Bureau of Labor and Statistics, in 2015 there were 354 homicides by shooting at the workplace. There were 307 in 2014, 322 in 2013, 381 in 2012, and 365 in 2011. Based on these statistics, it is clear that this is not an issue going away anytime soon. These are scary times and we all need to prepare for this new normal. 

While I was not able to attend the NYCOSH event, I did go to the website for the U.S. Department of Homeland Security, which offered these suggestions for responding when an active shooter is in your area.

  • Evacuate if you can.
  • Run as fast as you can and leave everything behind.
  • Just get out if possible.
  • If there is no accessible escape route, then hide somewhere and lock and blockade the door and silence any noise such as a radio or cell phone.
  • Lastly, if your life is in imminent danger, take action and try to incapacitate the shooter.
  • Throw things.
  • Use anything as a weapon.
  • Don’t go down without a fight.

It’s unfortunate that we even have to talk about protecting ourselves from active shooters. But in today’s day and age, we can never be too careful. As a mother, I worry for the safety of my children when they walk out the door as I’m sure many of you do as well. As a lawyer, I worry about the safety of workers every day on the job who are continually dealing with workplace injuries that could have been prevented.


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-Related Falls Cause Serious Injuries And Death

“It’s not the fall that gets you” the old skydiving joke goes, “It’s the sudden stop at the bottom.” Falls are one of the greatest dangers in workers’ compensation. We fear many other perils, but more than half a million people die worldwide each year after falling. Falls are the second leading cause of death by injury, after car accidents. In the United States, falls cause over 30,000 deaths per year (more than four times the number caused by drowning and fires combined). Nearly three times as many people die in the U.S. after falling as are murdered by firearms.

As a cause of injury, falls are even more significant. More patients go to Emergency Rooms in America after falling than from any other form of accident according to the Centers for Disease Control and Prevention. Falls account for nearly three times the number of those injured by car accidents. The cost is also huge. Falls account for more than one-third of Emergency Room budgets and often lead to more expensive injury claims. 

Since falls can happen anywhere at any time to anyone, it is not surprising they are prevalent. The most dangerous spots for falls are interior settings of every day life such as supermarket aisles and stairways. Any fall can change life profoundly, taking a worker, for example, from a healthy life to a grave disability instantly.  Interestingly, scientists are now encouraging people to learn how to fall to minimize injury. Training in how to fall can actually help determine the outcome of the injury.  (The Week, September 8, 2007). Most research in the area of falls relates to “balance maintenance,” how we perform activities like standing, walking, and transferring without losing balance. Another factor in the seriousness of the injury after a fall is what condition one is in at the time of the fall. A Yale School of Medicine study ( published in The Journal of American Medical Association in 2013) found the more serious a disability one had beforehand, the more likely you will be severely hurt by a fall. Scientists studying falling are developing “safe landing” responses to help limit damage from falls. The key, apparently, is to roll and to try to let the fleshiest parts of your body absorb the impact. Young people often break their wrists because they shoot their hands out quickly when falling. Older people break their hips because they do not have their hands out quickly enough. Most scientists indicate if you are falling, protect your head first. Significant research in this are continues.