Monthly Archives: April 2012

I Can’t Find Work – Does That Mean I’m Disabled?

Having physical or mental impairment will not automatically make you entitled to Social Security Disability benefits.

Today we have a guest post from our colleague Roger Moore of Nebraska.

Many people believe that if they suffer from a physical and/or mental impairment and can’t find work, this means they should be on Social Security Disability.  This simply isn’t true.

 Disability is not necessarily tied to your ability to obtain work, or your inability to perform one main occupation.  The Social Security Administration (SSA) will review your employability not just in your immediate locality, but also in the state and region in which you live.

While only employment opportunities in your immediate areas are considered for workers’ compensation, the same is not true for social security disability. If you are unable to find work in your immediate area, the SSA requires you to move to a locality where a job exists.  Note that the SSA’s responsibility doesn’t include having to find you employment, but only to establish that you are physically and mentally capable of performing that job if a position became available.

Additionally, your inability to perform the work you’ve done for years or decades does not automatically qualify you for disability.  The SSA will consider skills you’ve acquired from your work life in determining whether those skills allow you to “transfer” to or perform other occupations.  It’s important to also remember that the SSA isn’t really concerned with how much those other occupations may pay.  If you can work full-time in a position that is available in your state and region, this will normally disqualify you from receiving disability.

The conditions which the SSA imposes upon a claimant are unfortunately, not always feasible or fair. Nevertheless, as it is the current state of the law, compliance is required.




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Death by Overwork: Is It Compensable?

Dangerously long working hours are a problem around the world.

Today we have a guest post from my colleague Jon Gelman of New Jersey.

Since the 1960s there has been serious social concern over health problems due to long working hours in Japan. Around that time the term Karoshi, or “death from over work,” became known.

Recent national statistics show that more than 6 million people worked for 60 h or more per week during years 2000 and 2004. Approximately three hundred cases of brain and heart diseases were recognized as labour accidents resulting from overwork (Karoshi) by the Ministry of Health, Labour and Welfare (MHLW) between 2002 and 2005. Consequently, the MHLW has been working to establish a more appropriate compensation system for Karoshi, as well as preventive measures for overwork related health problems.

In 2001, the MHLW set the standards for clearly recognizing Karoshi in association with the amount of overtime working hours. These standards Continue reading

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Asking Congress To Make Our Laws More Fair To Injured Workers

US Capitol buildingDuring our trip to Washington D.C. last week, we spoke to elected officials about a few laws that impact injured workers. One of the laws is a proposed amendment to The Federal Employees’ Compensation Act (FECA), the law the provides medical benefits and wage replacement to injured Federal employees. It is the federal version of the otherwise state-based workers’ compensation system. The amendment is being proposed as part of S. 1789, the Postal Service Reform Act (PSRA).

We wanted to share some highlights of why the proposed changes are harmful to injured workers. The most damaging parts of the legislation are discussed below:

  1. Conversion of entitlement at retirement age 
    §302 of the bill would reduce the compensation rate to 50% of wages (for employees on total disability) and to 50% of wage-earning capacity loss (for employees receiving partial disability) once any of those employees have reached retirement age.This proposal would reduce by up to 1/3 (from 75% or 66-2/3% of wage loss to 50% of wage loss) the compensation for disabled employees who have reached retirement age. Given that many people (including members of the House and Senate and their staffs, all of whom are covered by FECA) work the traditional retirement age, this is unfair and raises issues of age discrimination. Reduction to 50% of wages is drastic, and Continue reading

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Partners Cathy Stanton And Edgar Romano Lobby Congress In Washington D.C.

Cathy Stanton and Edgar Romano with Congressman Eliot Engel (Representative from The Bronx, Rockland and Westchester).

Yesterday Paternack Tilker Ziegler Walsh Stanton & Romano partners Cathy Stanton and Edgar Romano were in Washington with the Workers Injury Law & Advocacy Group lobbying the United States Congress for the needs of injured workers.

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$100 Million Fraud in New Hampshire

New Hampshire Local Government CenterOur good friend and colleague Jon Gelman posted this recent piece of news on his blog the other week:

A New Hampshire insurance group has been charged by the State with improperly appropriating millions of dollars of taxpayers’ funds to a workers’ compensation insurance plan. The improper allocation is described in a petition filed by the State.

To provide a bit more detail, the amount of misappropriated funds is actually estimated at upward of $100 million. The, or LGC, is a non-government, non-profit organization that provides a range of services to municipal governments. LGC is an umbrella organization with subsidiaries that offer services in areas such as finance, personnel, and legal. They also provide a range of insurance programs that municipalities and their employees may buy into.

In this case, the municipal employees thought that they were paying for LGC’s HealthTrust and Property-Liability insurance programs. Instead LGC used the funds to pay for a completely separate workers’ compensation insurance program.

LGC asserts that they did nothing inappropriate, even though what they did is clearly illegal and they used some very tricky tactics to circumvent the law. Continue reading

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Intoxication, Work, And Workers’ Compensation Don’t Mix

Today we have a guest post our colleague Paul McAndrew of Iowa.

Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.

If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.

This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury.

Now, there are some notable Continue reading

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Nannies, Baby-sitters, And Comp Coverage: Yes, We Still Have “Domestic Servants”

Today we have a guest blog from our colleagues Nathan Hammons and Charlie
Domer of Wisconsin.

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading

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Employers Must Obtain And Maintain Workers’ Compensation Insurance Coverage

Your employer is required by law to have workers' compensation insurance for you.

Today’s post comes to us from our colleague Todd Bennett of Nebraska.

Every employer not in agriculture, farm or ranch operations is required to obtain and maintain workers’ compensation coverage for all employees. Those employers who voluntarily and willfully fail to obtain and maintain coverage violate the law and subject themselves to significant risks.

If you are an employee who is injured in the course of your employment and you learn that your employer has not maintained workers’ compensation coverage for you, you can either file a claim against the employer in civil court or file a claim in the Workers’ Compensation Court.

Employers who try to avoid their legal obligations and avoid providing workers’ compensation coverage expose themselves to monetary judgments in civil court, stop-work orders from the Attorney General’s office, injunctions from continuing to operate their business, assessments against their property, daily penalties of Continue reading

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