Category Archives: Legislation

Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.



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.


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OSHA Reports that Cost of Work-related Injuries are Shifting to Employees

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Many decades ago, OSHA created workplace safety standards to help employees avoid injuries from dangerous working conditions. Despite these standards, each year more than 3 million workers are seriously injured or killed while on the job. Because Workers’ Compensation fails to cover all the costs of injury, some low-wage workers (who have a disproportionate rate of injury and have more hazardous occupations than other workers) are slipping below the poverty line ($24,250 for a family of four), and the financial burden of work-related injuries is shifting from those who created the unsafe work environment to the families and workers who are injured. In 2012 alone work-related injuries and deaths cost $198 billion, according to the National Safety Council.

According to a recent report by OSHA, Workers’ Compensation only covers about 21% of lost wages and medical costs, so injured workers and their private insurance policies are then forced to cover on average 63% of the injured worker’s medical bills. Taxpayers are picking up the final 16% of work-related injury costs.

The solution to this inequality is for companies to create a workplace that prevents injuries and illnesses from occurring in the first place. OSHA believes that the reason for the majority of work-related injuries and fatalities is due to a combination of the misclassification of employees as independent contractors, the rising usage of temporary workers, and workers from different companies that are forced to work together at the same jobsite despite differences in training.  About 4,500 workers are killed on the job every year according to the Bureau of Labor Statistics. Three million serious occupational injuries and illnesses are reported annually and OSHA suspects that this figure is only a fraction of the unreported number of injuries and fatalities on the job.

Read more about the cost of failing to protect workers here:

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Alternatives to Workers’ Comp: Paranoia or Possibility

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I joined a national organization of lawyers representing injured workers (the Work Injury Law and Advocacy Group) twenty years ago when it was first formed. Then, I heard horror stories about legislators messing with an otherwise stable workers’ compensation system after every election cycle. My colleagues in other states were constantly fighting battles over workers’ compensation “deform.” 

I thought we were insulated in Wisconsin because we had a workers’ compensation advisory council composed of labor and management who every two years fought out a compromise bill and submitted it to the legislature, which automatically rubber-stamped the proposed bill without changes. That changed in Wisconsin in 2014. For the first time in nearly 50 years, the Republican legislature rejected the “agreed upon” bill proposed by the workers’ compensation advisory council, despite the approval of the bill by management members.

Governor Scott Walker’s most recent budget contains a provision to dismantle the workers’ compensation system as we know it. Those of us representing injured workers (and those rational members on the management side) are busy lobbying to remove the workers’ compensation dismantling provisions from the budget.

It is no secret that many major corporations dislike workers’ compensation, despite statistics indicating premiums are at their lowest for employers, and profits at their highest for insurers. However, nearly two dozen major corporations including Wal-Mart, Nordstrom’s and Safeway are behind a multi-state lobbying effort to make it harder for workers hurt on the job to collect workers’ compensation benefits. The companies have financed a lobbying group the Association for Responsible Alternatives to Workers’ Compensation (ARAWC) that has already helped write legislation designed to have employers “opt out” of a State workers’ compensation system. ARAWC has already helped write legislation in Tennessee. That group’s executive director Richard Evans told an insurance journal in November that the corporations ultimately want to change workers’ compensation laws in all fifty states. Lowe’s, Macy’s, Kohl’s, SYSCO Food Services, and several insurance companies are also part of the effort. The mission of ARAWC is to pass laws allowing private employers to opt out of the traditional workers’ compensation plans that almost every state requires businesses to carry. Employers who opt out would still be compelled to purchase workers’ compensation plans, but would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can receive medical benefits and wages. Two states, Texas and Oklahoma, already allow employers to opt out of State-mandated workers’ comp. In that state, for example, Wal-Mart has written a plan that allows the company to select the physician and the arbitration company that hears disputes. A 2012 survey of Texas companies with private plans found that less half the companies offered benefits to seriously injured employees or the families of workers who died in workplace accidents. 

Oklahoma passed an opt out measure in January 2014 and the oil and gas industry along with major retailers such as Hobby Lobby pushed hard for the change. ARAWC wants to take that Texas and Oklahoma model nationwide. Seeing the workers’ compensation provision in Wisconsin’s budget bill as part of this overall “scheme” may seem paranoid, but the history of recent “deform” legislation suggest the connection is at least a possibility. 

See the complete article at

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Sick Leave Should Be Accessible to All

Today’s post comes from guest author Emily Wray Stander, from Rehm, Bennett & Moore.

Amid the debate about flu and immunizations and preventable diseases lurks a societal problem that’s getting more attention lately and directly affects the spread of those medical crises: paid sick leave for employees.

Although discussing the consequences of Ebola may be interesting, many people in the United States, including Nebraska and Iowa, are living with the consequences of pertussis (whooping cough), a rampant flu season, and measles outbreaks.

This blog has featured this subject in the past, almost exactly two years ago, when there was a flu epidemic. It was argued then, in one of the firm’s more popular blog posts, that sick people should not be forced to work and spread their germs to their co-workers and customers, in addition that working while sick tends to make people even more ill. Not having sick leave available to take becomes a public health and societal risk. In addition, not being able to provide care for sick children or loved ones results in family struggles and workers worrying, rightfully so, while they should be focused on work at work.

The issue is also affecting children, especially those who are low-income, according to the 2014 Kids Count Report in Nebraska.

A recent Marketplace Morning Report article highlighted the need for policy change through the Healthy Families Act “that would guarantee workers could earn up to seven days of paid sick leave per year.” For example, the Bureau of Labor Statistics is quoted in the story that “24 percent” of those in the restaurant industry and “47 percent of retail workers get paid sick leave.” It also shares the economic burden of the results of people who don’t get paid sick leave coming to work sick. “Underperforming at work, or even damaging equipment or products because of diminished capacity or the effects of medication is known as ‘presenteeism.’” Sickness and presenteeism costs more than $375 billion a year, according to the article.

Esther Cepeda also recently addressed both paid sick leave and presenteeism in a column: “Working while sick even when you can have the time off is a thing. Many workers take great pride in coming to work ill, and there are a fair number of their colleagues who wish they’d stop.”

Although it may be a pretty big challenge in some industries to provide paid sick time, Ms. Cepeda argues that those are the most important industries to have it, as was also argued in the firm’s flu blog post from 2013.

“Food service aside, there are any number of jobs – most of them low-wage, part-time service jobs – where you don’t want the worker to be miserably sick or mentally checked out, worried about their sick loved one, because they can’t afford to call off work and lose the pay or possibly the job.”

Also important to note, being “checked out” can lead to safety incidents and workers’ compensation claims, and having employees mired in presenteeism just isn’t good for anyone.

So as the article in this link mentions, I think it’s very important for both workers and employers to consider the importance of quality of life considerations: keeping healthy people from being exposed to sickness and supporting sick people (or people with sick loved ones) by giving them the chance to stay home and still get paid so they can focus on becoming healthy people again.

Because as Ms. Cepeda argues, it benefits all for people to be as healthy as possible.

“Those of us who have the choice or flexibility to take an available sick day must speak up for those who are penalized for life’s inevitable speed bumps. It’s ultimately in our own best interest.”

Issue is also affecting children:  Report: Nebraskans working hard, but falling behind — and kids are paying the price

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Protecting Workers from being Destroyed by the Work Schedule

Senator Tom Harkin

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

I wrote the post below as an editorial in the Iowa City Press-Citizen. Because The Scheudles That Work Act is of national importance I want to make sure this issue receives the attention that it deserves by promoting awareness of it as broadly as possible. I hope you’ll take the time to read my editorial and pass it along to concerned citizens in your area.

Workers deserve some certainty in their work schedules. Why? Because we all have need to plan for child care, time for school, transportation, or simply time to pay bills and manage the household. It’s basic fairness.

But don’t you, a friend or an acquaintance work a job with unpredictable and irregular work schedules? You’ve probably noticed that irregular and on-call scheduling are increasingly common. It’s especially common in the fastest-growing areas of our economy—- cleaning, janitorial, retail and restaurant work.

These scheduling practices can devastate the worker and her/his family. The practices demand the worker choose between his job or his family. They often lead to the worker being fired.

Vermont and San Francisco have already passed laws to help employers and workers avoid this devastation.

Senator Tom Harkin has now proposed The Schedules That Work Act to help workers balancework duties with family duties. The Act helps both workers and employers by:

  • Protecting all employees from retaliation for requesting a more flexible, predictable or stable schedule.
  • Creating a process under which an employer considers a worker’s schedule request in a way that’s sensitive to the needs of the worker and her/his family. For example, schedule requests based on caregiving duties, health conditions, pursuing education or the need to meet the demands of a second job, must be granted, unless the employer has a good business reason for denying it.
  • Compensating retail, food service, and cleaning workers for at least four hours of work if an employee reports to work when scheduled for at least four hours but is sent home early.
  • Providing that retail, food service, and cleaning employees receive work schedules at least two weeks in advance. Though schedules may later be changed, one hour’s worth of extra pay is required for schedules changed with less than twenty-four (24) hours’ notice.
  • Providing workers an extra hour of pay if scheduled to work split shifts or non-consecutive shifts, within a single day.

Kudos to Senator Harkin! Some politicians and billionaire-driven PACs parrot “Iowa values” as a campaign slogan. Senator Harkin, on the contrary, uses those values to create legislation like the ADA and The Schedules That Work Act.

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Making A Difference In Washington – The Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

In addition to helping our clients receive the benefits they are entitled to through the courts and other adversarial means, we are prooud to work with our elected officials to produce legislation that will benefit working people. A few days ago, a bill we support, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, was formally proposed. We encourage you to call and email your representatives and let them know that you support this law.

The press release with additional background follows:


Reps. Reichert and Thompson Introduce Bipartisan Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Washington, D.C. – Today, U.S. Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, H.R. 1982 into the House of Representatives.

The legislation aims to protect injured workers whose workers’ compensation claims overlap with Medicare coverage. Far too often, these claims are subjected to lengthy and cumbersome reviews by the Centers for Medicare and Medicaid Services (CMS) to determine appropriate set-aside amounts to pay for future medical costs in which Medicare may have an interest. The delays associated with this review place unfair burdens upon the injured party.

“This is a common-sense measure to ensure that hard-working Americans are not left in limbo because of inefficient bureaucratic procedures,” said Rep. Reichert. “Injured workers must have the confidence that their heath care claims will be processed in a fair and timely manner. By introducing this bill, Rep. Thompson and I aim to do just that: protect our hard-working citizens by making sure our systems serve them and their families.”

“The last thing injured workers should have to worry about is if needless bureaucracy is going to prevent their medical bills from being paid,” said Thompson. “This bill will make sure hard working families’ medical claims are processed efficiently and quickly, it will reduce bureaucratic headaches for businesses, and it will save taxpayers money. I will continue working with Congressman Reichert to get this bipartisan bill signed into law.”


The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act establishes clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare. It would benefit injured workers, employers and insurers by creating a system of certainty, and allows the settlement process to move forward while eliminating millions of dollars in administrative costs that harm workers, employers and insurers.

The legislation has widespread support from groups such as the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC-Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

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Let OSHA Do Its Job

OSHA is being prevented from fulfilling its mission.

Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.

In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.  

While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years. 

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses. Workers are being injured and killed by known hazardous circumstances and OSHA can’t act.

Congress and the President need to break this logjam – we need to free OSHA to do its job of safeguarding workers.

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Should Genetic Medical Information Be Given to Workers’ Compensation Insurance Companies?

Federal law provides that employers with 15 or more employees cannot discriminate against employees because of genetic information.

Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

Under a 2009 Federal law called GINA (the Genetic Information Nondiscrimination Act), employers with 15 or more employees cannot discriminate against employees because of genetic information. That information may include a past or present medical history (for example: breast cancer, diabetes, depression, or colon cancer) of family members.  GINA prohibits disclosure of this sensitive information by employers and prohibits the employer from even making a request for such information. If they have this information, it must be kept in a file that is separate from the regular personnel file.

The EEOC (Equal Employment Opportunity Commission) has made regulations, effective January 10, 2011, to enforce this federal statute and allows an action for damages, including punitive damages, reinstatment and back pay, and reasonable attorney’s fees.

In the workers’ compensation setting, this information is sometimes gathered by medical experts conducting independent medical exams, by nurse case managers who may seek to find out any and all medical information about the injured worker’s family as well as the injured worker, or by family physicians who have made non-work-related entries in the medical records.  However, GINA has allowed an exception to the overall thrust of the legislation by stating that if the information is relevant to the workers’ compensation claim, it can be disclosed. The legislation gives no definition of the term “relevant” and makes the interaction between the health care provider, the carrier, the employer and the employee complicated, to say the least. Lawyers who represent employees and employers should be aware of GINA and protect sensitive genetic information from disclosure, and claimants should make sure their physician is aware of it as well.



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