Tag Archives: workers’ rights

WILG Turns 20! Worker’s Injury Law And Advocacy Group 20th Anniversary

I joined WILG in its 1995 inaugural year. At those early conferences, my colleagues around the nation were battling workers’ comp “deform,” and engaged in political battles in their respective states, lobbying legislators on behalf of injured workers’ rights.

I thought I was relatively insulated in Wisconsin, the national “model” state for workers’ comp, with an Advisory Council composed of management and labor which each biennium produced an “agreed-upon” bill that was accepted by the legislature.

The Republican ascendancy in Wisconsin (Scott Walker as Governor, and both Assembly and Senate controlled by Republicans) has decided to ignore 100 years of progressive legislation and ignore the Advisory Council’s recommendations. This dangerous precedent will make workers’ comp more politicized, and threaten the stability of Wisconsin’s workers’ comp system. Wisconsin, like other states, will be part of a “race to the bottom” in workers’ rights and benefits.

WILG’s current President, Matt Belcher of Illinois, provided this summary of the state of workers’ comp as WILG celebrates its 20th anniversary:

”We have never been better positioned as a national organization to advocate on behalf of the families of injured workers.

Recent success in reviewing courts have highlighted nationally the unconstitutional danger posed to the community when injured workers lose access to effective legal representation, have capricious benefit limits imposed upon them, or are disabled due to unfair medical treatment bureaucracies.

WILG and its members have been at the fore of litigation battles where catastrophically injured workers have lost their savings, been forced onto welfare rolls and into Social Security Disability plans while simultaneously being denied access to the civil courthouse and the free exercise of their 7th amendment right to a jury trial. See Wade v. Scott Recycling (Virginia); Malcomson v. Liberty Northwest (Montana); Pilkington & Lee v. State of Oklahoma (Oklahoma); Padgett v. State of Florida (reversed on procedural grounds), Westphal v. City of St. Petersburg, and Castellanos v. Next Door Company (Florida).

The United States Department of Labor in coordination with OSHA have finally “discovered” that employee misclassification and wage theft are rampant, and that the cost-shifting externalization of care for injured workers is as poisonous as it is pervasive.

Perhaps most fundamentally, ProPublica, bolstered by the imprimatur and audience of NPR, has created a national conversation and awareness of the oppressed plight of injured workers with its feature The Demolition of Workers’ Compensation which exposed to the public domain the travesty and arbitrary injustice we slog through on a daily basis.

If we are uncritical we shall always find what we want. -Karl Popper

Continual, constructive self-assessment of our organizational efforts is indispensable to the accomplishment of our mission. Are we really doing the best job possible and are we succeeding to our complete potential?

Governors in the traditionally blue states of California and New York have signed away the long term financial security of millions of families of injured workers while Texas and Oklahoma have essentially jettisoned workers’ compensation benefits, allowing indifferent employers to Bail-Out of their responsibility to provide for the safety and security of working families. Further corporate front group Bail-Out initiatives are fermenting in the legislatures of Arkansas, Kansas, North Carolina, South Carolina, Tennessee and Wyoming.

In my view, the state workers’ compensation system is in its most dire situation in at least the last half-century. -Prof John F. Burton, Jr.

Professor Burton is clearly referencing only the perspective of the injured worker and not the immense wealth of the $85 billion insurance industry where insurance carriers now earn $6.20 in profits for every $100 of net premiums; and, private employers on average pay only 44 cents per hour for each employee to be provided with coverage.

Empirical evidence reliably demonstrates that each reduction in benefits to an injured workers’ family subsequent to “reform” has not translated into lower premiums for small business but primarily in greater profit for the self-insureds and the insurance industry. From 2007 to 2012, workers’ compensation benefits and costs per $100 of payroll were lower than at any time over the last three decades, while insurance company investment profits in 2011, 2012, and preliminarily for 2013, have topped 14% annually.

According to OSHA, workers’ compensation benefits now cover only 21% of workers’ compensation liabilities–shifting 79% of the true cost to others, including the injured workers’ family and taxpayers–while our firsthand knowledge demonstrates the inadequacy of current benefit levels and the injustice of the AMA Guides, ODG Treatment Guidelines, Primary Cause, Medical Formularies and the literal evaporation of effective vocational rehabilitation for those injured workers who have lost access to their prior occupation.

Therefore, my beloved brethren, be ye steadfast, unmovable, always abounding in the work of the Lord, for ye know that your labor is not in vain in the Lord. -1 Corinthians 15:58

I believe it will be the exponential participation of you, the existing member, which fosters our mission as much as the sheer addition of new members. The existential purpose of the organization must always be vigorous and exigent advocacy, not just growth and the collection plate. We must collect accomplishments, not only numbers.

Together we can do that, but we must have an active outreach program that communicates to the public, to the media and to state legislators the value of workers’ compensation and the cost of its failure. If business can focus-group a new Doritos flavor, I am confident we can use a similar approach identifying crux “reptile” talking points, plus distilling and building upon the points raised in the ProPublica series to focus our messaging.”

Reversing A Century Of Progress – Are We Back In Upton Sinclair’s Jungle?

Many workers no longer have paid sick days.

Today’s post comes from guest author Rod Rehm from Rehm, Bennett & Moore.

We echo the sentiments of our colleague in Nebraska,

Health Care Is Just The Beginning

At a time when a flu epidemic is exploding out of control, killing thousands of people, forty-two million Americans have no sick leave. Many of these people are lower paid, often work part time, and continue to work when ill because they can’t stay home to recover without losing their income. I am shocked and dismayed that many hard-working folk are forced to work when sick because staying home is not economically possible. Making matters even worse, these highly vulnerable workers often have no employer-provided health insurance so even serious illnesses go untreated, putting us all at a higher risk for infection from a contagious worker, like a server in a restaurant, for whom taking an unpaid day off is impossible.

…the trend toward low pay, long hours and few benefits is getting stronger.

I fear that if the current trends continue, the lives of the millions of Americans who struggle at low-paying jobs will remain miserable, desperate and be lacking in real hope. It appears that the trend toward low pay, long hours and few benefits is getting stronger. At the turn of the 20th century when Upton Sinclair wrote “The Jungle,” describing immigrants struggling in Chicago, the jobs were more physical, dangerous and just plain disgusting. However, millions of “New Jungle” workers still struggle and suffer today.

Class Warfare

After over 100 years of progress, the American middle and lower classes are under constant attack. The efforts to limit rights of workers are ongoing and supported by big business. Every day I read of measures being introduced in state legislatures to limit access to and decrease the benefits of workers’ compensation. The right to collective bargaining is being attacked as well. Local elections are overrun by anonymous innocent-sounding Super PACs funded by 21st Century versions of robber-barons who are using their wealth and power to squeeze out a few more dollars in profits to add to the tens of billions of dollars already sitting in their bank accounts. These are not job creators, they are their own personal wealth creators. Income equality is at an all-time low in the United States, and the trends are getting worse.

How can this be happening in 21st century America? How can we call ourselves civilized? Can we really allow such maltreatment of workers and disregard public health in what we call an “advanced,” “modern,” and frequently, an “exceptional” county? 

A Path Forward

We are not without hope, though. Crusaders like Senator Elizabeth Warren are working hard to reverse the trends and preserve the American Dream for future generations. But our protectors are few. We cannot assume that someone else is looking out for us. We must engage with government at the local, state and federal levels so that the voices of regular working folk are not drowned out by a cabal of rogue billionaires trying to keep score by increasing their own personal fortunes at the expense of working people. I fear that if we sit by passively, our children will all be working in the New Jungle, America will have lost its middle class, and with it, the American Dream will be a distant memory. The time to act is now. 

More surgeries = More benefits (Part 2)

In Part 1, we discussed how to determine the PPD (Permanent Partial Disability) value for certain body parts and surgical procedures. In this article, we continue the discussion on applicable PPD values for cumulative or multiple surgeries.

For multiple surgeries on the same work-related injury, permanent disabilities are "stacked"-- after all, having two surgeries rather than one means that you have to recuperate twice.

What about multiple surgeries?

“Redo” or cumulative surgeries can be problematic, but recent court decisions clarified the issue.

For background information, the Wisconsin Supreme Court (DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1, 727 N.W.2d 311 (2007))held that any additional invasive surgery resulting from the same work injury carries an additional, additive PPD rating under section 80.32. In effect, the minimum percentages of disability are “stacked” on each other, based on each performed procedure listed in the Code section.

For example, if an injured worker has an initial ACL repair to his knee (minimum 10% under the Code section), followed by a second ACL repair later (minimum 10%), the PPD is stacked for a cumulative 20% minimum PPD—even if the treating physician assigned a lower percentage.

The general policy behind this “stacking” of the disability percentages listed for surgical procedures is that “repeat or multiple surgeries have a cumulative, negative effect on the function of the body part upon which they are performed” (DaimlerChrysler, 2007 WI 15, ¶ 32, n.14).

Some confusion exists when a joint replacement occurs after prior surgical procedures, all stemming from the same work injury. In the introduction to Code section 80.32, an appropriate reduction can be made for any preexisting disability.  Accordingly, applicant and defense attorneys have argued about whether the PPD attributable to a joint replacement can be reduced from prior surgical procedures to the same body part when the surgeries are all after and relate to one work injury.

 

 For example, if a worker has an initial knee ACL repair (10% minimum), followed by a total knee replacement (50% minimum), is the PPD a cumulative 60%, just 50% for the total knee, or 40% based on a reduction?

 

This issue was resolved in favor of “stacking” the PPD percentages for a cumulative number (60% in the above example).  The Wisconsin Court of Appeals recently held that the Commission has consistently interpreted the DaimlerChrysler rule to allow for cumulative minimum PPD ratings where successive surgeries are necessitated by the same work injury; there was no reason to apply the rule differently when one of the surgeries was a total joint replacement.  (MG&E v. LIRC, 2011 WI App 110, Ct. App. June 16, 2011).

The Wisconsin Supreme Court recently declined review of the case, which keeps the Court of Appeals ruling in place.  Therefore, under the current law, each additional surgery listed in Code Section 80.32 that a worker has after an injury carries a separate and additive PPD percentage under the law—a significant benefit to Wisconsin’s injured workers.

 

 

 

Photo Credit: Apple’s Eyes Studio / FreeDigitalPhotos.net

WCRI: Wisconsin Injured Workers Motivated to Return to Work (Part 2)

Last week, we began a discussion about a recent study by the WCRI which found that Wisconsin injured workers have better return-to-work outcomes compared to other states (see Part 1 of this article). In today’s post, we continue on said topic.

Letting workers choose their own doctors meant that there was less doubt about whose side they were really on.

Significance of Worker’s Choice of Treating Doctor

Worker’s compensation administrators and experts who were interviewed indicated that worker choice of provider was the foundation for the Wisconsin system,  and that it was central to establishing injured workers’ trust in their treating doctor’s recommendations about treatment and return to work.  (Although Wisconsin worker’s compensation insurance carriers have regularly attempted to limit employee choice, those efforts have been stopped in the advisory council, a group of labor and employer representatives who meet to recommend changes in the law.)

Since Wisconsin workers have a choice of practitioners, workers can have greater confidence in their treating doctor’s recommendation regarding the ability to return to work.  Significantly, the study found that workers’ choice of providers did not lead to longer absences from work.  In fact, survey results among injured workers specifically indicated that Wisconsin injured workers returned to substantial employment faster than workers in ten other states included in the study.

 

The “85% Rule”

Lastly, the study found that Wisconsin’s workers’ compensation system encourages employers to accommodate injured workers with permanent restrictions, and for the worker to accept these offers.

The most prominent feature is the “85% Rule” which bars an employee from making a claim for a Loss of Earning Capacity if the employer rehires the employee 85% of his pre-injury wage.  On the other hand, if the employer cannot or does not accommodate the employee’s permanent restrictions, Loss of Earning Capacity benefits can be four to seven times higher than functional impairment benefits alone.  Workers who refuse legitimate job offers can lose their right to Loss of Earning Capacity benefits.

And since Permanent Partial Disability benefits are paid at  only 35% of the temporary disability benefit maximum, there is a substantial financial incentive for workers to accept the job when shifting from temporary to permanent disability benefits.  All this is good news for Wisconsin’s system and Wisconsin workers.

However, during the economic downturn, employers are finding it more difficult to offer light transitional or modified duty.  Quite simply, the employer may not have a job available or one that meets the employee’s restrictions, especially in these hard economic times.

 

 

Photo Credit: Ambro/Freedigitalphotos.net

WCRI: Wisconsin Injured Workers Motivated to Return to Work (Part 1)

Injured workers in Wisconsin are more motivated to return to work-- thanks to the state's workers' compensation system.

With unemployment numbers high, injured workers face increasing challenges in returning to work.  A study by the Workers’ Compensation Research Institute (WCRI) titled “Factors Influencing Return to Work for Injured Workers: Lessons From Pennsylvania and Wisconsin” indicates that those two states have reported better return- to- work outcomes compared to other states, even during economic downturn.

This study focuses on “long term unemployed injured workers” (defined as workers who have been out of work for three months or more). These workers, unlike the vast majority of injured workers highly motivated to return to work after an injury, face particular challenges in returning to work – challenges that are even greater considering economic hard times.

The study tried to identify which worker’s compensation systems features facilitated return to work for long-term unemployed injured workers, and which features serve as barriers to return to work for these workers.

 

The Wisconsin Scenario

Earlier research done by WCRI indicated that workers in Wisconsin have higher rates of return to work, and workers tend to return to work sooner than in other states.  The reason: Employer and injured worker motivation to return to work, as well as multiple Wisconsin workers’ compensation system features.

One of the features which encourages return to work  in Wisconsin is the transition between temporary disability and Permanent Partial Disability benefits. Wisconsin encourages incentives for both the worker and the employer to return workers with permanent restrictions to work, and for injured workers to accept offers of legitimate employment.

 

“The Healing Plateau”

 Unlike many other states, Wisconsin’s clear standards for terminating temporary disability benefits encourages return to work.  As they are effectively communicated by employers and insurers, and well understood by injured Continue reading

CEO that presided over mining disaster gets golden parachute

The news can be maddening: Critics Say W. Va. Coal Boss Will Get ‘Egregious’ Golden Parachute.

While all the facts are not known, this smells of adherence to the bottom-line of dollars over workers safety. If that was the focus, that is truly unfortunate and borderline despicable. The workers form the backbone of the compay’s profitablility.

Continue reading

Voter fraud?… more like voter suppression.

This coming Tuesday is a hugely important election for the injured workers of Wisconsin. Past history shows that the governing party in our state has a direct impact on the rights and benefits of injured workers.

With the importance of this election looming, I was shocked and angered to see a number of these billboards go up around Milwaukee). (story from the Milwaukee Journal Sentinel). Continue reading

Fighting for Workers on Labor Day

A message from U.S. Secretary of Labor, Hilda Solis, in advance of Labor Day: Fighting for Workers This Labor Day . I echo Secretary Solis in the need to focus on the needs and concerns of everyday working Americans. In our own small way at Domer Law, we advocate for the rights of workers each and every day of our practice.

We certainly honor and remain grateful for all those who strive in our country’s ever-changing job market on this upcoming Labor Day.