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.

Trump Lifts His Middle Finger to Injured Workers

It didn’t take long for Trump to deceive injured workers.  Despite campaign promises to help “middle class” workers,  Trump signed legislation relaxing the reporting requirements for employers when workers get hurt or ill due to their jobs.  Trump and the Republicans rolled back a rule issued by former President Barack Obama.  By ending the rule, Trump and Republicans effectively shortened the amount of time employers in dangerous industries have to keep accurate records of worker injuries – from five years to just six months.  The Republican-controlled Congress used a little-known legislative tool known as the Congressional Review Act to repeal the Obama regulation last month.  Democrats were incensed.  By signing the bill, Trump can legally prevent the Occupational Safety and Health Administration (OSHA) from requiring a similar rule in the future.

Labor leaders and workplace safety experts warn that the rollback of the OSHA recordkeeping rule will allow unscrupulous companies to cheat on their injury data and conceal ongoing hazards from OSHA regulators.  That concealment could make it harder for OSHA to identify recurring problems at certain employers and industries.  Debbie Berkowitz, a former OSHA policy adviser and advisor to the Workers’ Injury Law and Advocacy Group (WILG), now with the National Employment Law Project, indicated “This will give license to employers to keep fraudulent records and to willfully violate the law with impunity.” 

It was only a matter of time before Trump showed his disdain for injured workers and his true allegiance to business.

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.

Elimination of Appeals Commission: More Updates

As indicated, Wisconsin’s current Budget proposal (now being considered by the state’s Joint Finance Committee in the legislature) proposes a sweeping change to the stability of the state’s workers’ compensation system.

The proposal axes the independent appeals commission, known as the Labor and Industry Review Commission.  The Commission, or LIRC, handles appeals from workers’ compensation, equal rights, and unemployment insurance cases.

An insightful article about this proposal–from the perspective of unemployment– can be found here.  This article (LIRC’s Elimination) is from one of the state’s foremost experts on unemployment, and it offers a deep dive into some of the potential reasoning behind this proposal. I’d encourage all interested stakeholders to take a look at this article in detail.

Opt-Out Act in Oklahoma… and Beyond?!

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

Oklahoma City, OK (WorkersCompensation.com) – In September of 2016, the Oklahoma Supreme Court ruled that the 2013 revision to the state’s workers’ compensation laws contained the Opt-Out Act, which violated the Oklahoma Constitution. Under this Act, an employer could opt out of participating in the Oklahoma workers’ compensation system and instead establish an employee benefit plan, which would be governed by federal law under the Employee Retirement Income Security Act (ERISA).

In the case of Vasquez v. Dillards, the claimant, Jonnie Vasquez, alleged an injury to her shoulder that occurred as a result of lifting boxes in the Dillard’s store where she worked. Dillard’s initially provided benefits but then stopped because it alleged she had a pre-existing condition. The claim was slated to go to a hearing before the Oklahoma Workers’ Compensation Commission, and that’s where the Opt-Out Act became important.

Dillard’s argued that the claim should be heard in federal court as it has jurisdiction over ERISA matters. The federal court in Oklahoma disagreed and sent the case back to the Commission, which held that the Opt-Out Act violated the state constitution in part because it provided for different remedies (federal court vs. state employment commission) for claims.

Dillard’s appealed to the Oklahoma Supreme Court, which agreed with the Commission’s conclusion and held that the Opt-Out Act “creates…

[Click here to see the rest of this post]

Employer Work Comp Fraud

Employer fraud exists in worker’s compensation.   Despite propaganda about worker alleged “fraud,” most fraud in the system is actually in the form of employer premium fraud–misclassying employees to avoid paying insurance premiums (especially in certain fields).   Employers can falsely label an employee as an independent contractor or pay them in cash, and then effectively keep them off the books for insurance premium purposes.  

This fraudulent behavior affects not only the specific insurance company with lost premium dollars, but the system and insurance industry as a whole by creating faulty rates. 

A recent article shows the prevalence of employer fraud in Louisiana, as well as the significant amount of money recouped from prosecuting bad behaving employers.

Wisconsin now has greater ability to proscecute fraudulent employers.  As of 2016, a new statute allows for criminal prosecution, by the state Department of Justice, to investigate and prosecute fraud committed by employers and insurance carriers.