Author Archives: Matthew Funk

How Corporate Money Poisons “Independent” Medical Evaluations

Today’s post comes from guest author Jay Causey, from Causey Law Firm.


            Workers’ compensation claimants and their attorneys routinely confront the so-called “usual suspect” medical examiners —  those doctors whose practices chiefly involve examining multiple claimants per day, several days per week or month, always for an insurance carrier or governmental agency administering workers’ compensation, and who can reliably be counted on to find no diagnosis related to injury, little or no permanent impairment related to accepted conditions, and no requirement for further treatment nor any limitations applicable to work activity. In a litigation setting, it can often be shown that these doctors have little or no active medical practice and derive the bulk of their income from these forensic examinations, calling into question their lack of objectivity and probable bias. Most of the physicians who engage in this work are not necessarily leading figures in their practice areas, and are not well-regarded academicians in their field – – their principal credential is that they have simply been in the practice a long time.  In a litigated case the testimony of such physicians can often be overcome by the testimony of an attending physician who has treated the claimant for a long period of time or another examining physician with an equally or more plausible opinion that supports the injured or diseased worker.

            Consider, then, the threat to justice for injured workers when a long-established cohort of extremely well-credentialed defense medical experts, operating under the cover of one of the world’s most prestigious medical schools, has been engaged by the coal industry to defend against claims by miners crippled by black lung disease, and finds in the vast majority of cases no industrially-related disease.  These cases arise in the context of the federal black lung system, where cases mostly involve dueling medical opinions and judges rely heavily on the credentials of physicians to determine outcomes.  In a blockbuster report entitled Breathless and Burdened, the Center for Public Integrity has unveiled seeming massive corruption of medical opinion from corporate influence at Johns Hopkins Medical Institutions, where Peabody Energy and other coal companies direct workers with black lung claims to be evaluated. 

             For over 40 years, a small unit of radiologists at Johns Hopkins Medical School and hospital has generated fees from coal company evaluations that have enriched the institution and supported its work.  These physicians read x-rays as a part of their regular duties, but coal companies will pay a premium of up to ten times what a regular x-ray reading would cost.  And because of the longevity of these practitioners, with their credentials burnished by the iconic reputation of Johns Hopkins, their opinions in the processes of claim adjudication have become nearly unassailable.  Judges rely heavily on these opinions and regularly find that they swamp the evidence brought by miners from doctors not similarly credentialed.

              The Center’s report found that one particular physician – a 78 year-old radiologist named Paul Wheeler – in reviewing x-rays in 1500 cases since 2000 never found one instance of severe disease, whereas other doctors looking at the same x-rays found it in 390 cases, and that subsequent biopsies and autopsies of diseased workers frequently clearly proved Wheeler wrong.  Furthermore, the criteria this examiner used in determining the presence of black lung was contrary to that of government research agencies, textbooks, peer-reviewed scientific literature, and the opinions of many credentialed physicians outside Johns Hopkins, including the American College of Radiology’s task force on black lung disease.

             The Center’s review of thousands of cases evaluated at Johns Hopkins established that since 2000, miners lost more than 800 cases where at least one doctor found black lung on x-ray but Dr. Wheeler read it as negative.  It calculated that Wheeler found black lung in about 2% of the cases evaluated, and that in 80% of the films he read as positive, he saw only early stage of the disease, whereas other physicians found severe form of the disease in more than 750 films.  Despite all of this, Wheeler continues to lead the cohort of radiologists who toil in the Pneumoconiosis Section of Johns Hopkins amidst piles of files and paperwork bearing the letterhead of prominent corporate defense law firms and coal companies, churning out evaluations of miners, under the imprimatur of a prestigious institution, that are clearly resulting in the denial of many legitimate claims.   

Photo credit: Marcos Telias / / CC BY-NC-ND

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Condé Nast Ends Its Internship Program

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from

Condé Nast has decided to discontinue its internship program following a class-action lawsuit filed by two former interns saying that they were paid less than $1 dollar an hour, Women’s Wear Daily reported on Wednesday.

Condé Nast, which houses magazine powerhouses like Vanity Fair, GQ and Vogue, was sued in June by former W Magazine intern Lauren Ballinger and former New Yorker intern Matthew Leib, both who claimed their employers had violated federal labor laws.

Interns currently employed with Condé Nast will not be affected by the decision and are allowed to keep their internships until the previously determined date, Women’s Wear Daily also reported.

The decision for Condé Nast to end their internship program comes while the lawsuit against them is still pending. However, this is not the first case of media interns taking legal action against their employers. The same law firm handling the Condé Nast case is also representing an intern with Harper’s Bazaar who sued Hearst Corporation in 2012 for being made to work up to 55 hours per week with no pay. In June, intern Eric Glatt won his lawsuit against Fox Searchlight Pictures for using unpaid interns in the production of the 2010 film, “Black Swan.”

Also on HuffPost:

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Ketamine Therapy: Wonder Drug for RSD/CRPS and Depression?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Lately there’s been a lot of buzz surrounding a drug known as ketamine. Some workers’ compensation patients with chronic, neuropathic pain [i.e. Complex Regional Pain Syndrome (CRPS) and Reflex Sympathetic Dystrophy (RSD)] are lauding ketamine as a new wonder drug and a few pain clinics are now prescribing ketamine therapy to treat certain pain conditions when other treatment is not effective. Yet, ketamine is by no means a new drug. Developed in the 1960s, ketamine has typically been used as a pediatric anesthetic or by the military in emergency surgery situations (think Vietnam). It’s a serious medication and is typically administered intravenously in the clinic.

Clearly, ketamine is a potent drug. Not to mention that it’s a derivative of Phencyclidine (“PCP” or “Angel Dust”). On the street, ketamine is called “Special K” and is highly sought for its hallucinogenic side effects. Yet, now it’s being prescribed in certain contexts for treatment of major depression and chronic pain conditions (i.e. CRPS/RSD) and being hailed by some as an effective treatment modality where others have failed. 

The press surrounding ketamine lately has largely been optimistic. Last year, NPR broadcast a piece on Talk of the Nation featuring ketamine. The program discussed ketamine’s potential as a fast-acting drug to relieve major depression, particularly when other medications were no longer effective. A few months ago, Time ran an online article entitled “Club Drug Ketamine Lifts Depression in Hours.” Based on the title alone, what depression sufferer wouldn’t want to try ketamine? The article reported that “[a]fter receiving a single intravenous (IV) does of ketamine, 64% of patients reported fewer depression symptoms within one day compared to 28% of those given midazolam – an anesthetic drug that was used as a control.” Even CBS News ran an article earlier this year stating that “[k]etamine may be quick, effective treatment for untreatable depression.” 

RSD patients and pain clinics are reporting similar fast-acting pain relief stories. One patient reported that ketamine therapy reduced her pain to a manageable 5 out of 10, on a pain scale of 1 to 10 with 10 representing the most amount of pain imaginable (see article). Another patient who had full-body CRPS had undergone several pain treatment modalities. She had tried Bier blocks, spinal blocks, and a spinal cord stimulator. Nothing relieved her pain. However, after about a year on the ketamine treatment program, she was able to mow her lawn for the first time in ten years. 

Ketamine is a controversial topic in the medical community. There is not much research on the long-term effects of ketamine use. Some say that chronic use of ketamine may cause verbal, short-term memory and visual memory loss. Some research indicates that the effects on the brain are irreversible. Currently not many clinics are offering ketamine therapy. Clearly the potential benefits could be tremendous and RSD/CRPS treatment could be revolutionized. However, as with any form of therapy, patients should discuss the benefits and risks carefully with their doctor.


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What Football Can Teach White-collar Employees About Layoffs, Severance

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

With football season upon us, I would like to use football to explain some common situations that employees face.

I get a lot of calls from white-collar professionals who have long careers with a company but then are laid off a few months after a new boss is hired. This happens a lot in football when a general manager/athletic director replaces a head coach and the head coach fires the previous coach’s assistant coaches. White-collar employees in middle-management positions are essentially the equivalents of assistant coaches in football. In the world of football, it is assumed that a new head coach can bring in his new assistants. The same assumption holds true in the business world.

Assistant coaches are oftentimes “bought out” of their employment contracts. Sometimes white-collar professionals have employment contracts, but more often than not they do not. Sometimes professionals are offered severance agreements, but unless there is an employment contract, that severance is not a buyout. Employers are also under no obligation to offer severance. If severance is offered, that doesn’t necessarily mean that an employer wrongfully terminated the employee.

Of course, no employee can be terminated because of age, disability, sex, race, nationality, or in retaliation for engaging in a protected activity like filing for workers’ compensation or filing with OSHA. But even if there is some appearance of wrongful motivation on behalf of the employer, the employer can still defeat a potential lawsuit if they have a legitimate business reason for terminating the employee. Going back to a football analogy, if the new head coach wants to switch an offensive or defensive scheme, they have the right to hire the person they choose. The fact the new hire might be less effective than the old hire is not a decision that a court will second guess in a wrongful termination. Sure, if there is something else wrongful going on, it is something a court or a jury could consider, but in a case where there is a recent change in management, employees will have difficult time overcoming the assumption that the new boss just wants to “put in their team.”

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Falling mannequin severely injured Somerville woman at Bridgewater mall, lawsuit says

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from

A Somerville woman alleges that she was severely injured when a mannequin fell on her in December 2011 at the Bloomingdale’s store in the Bridgewater Commons mall. The file photo above shows a mannequin inside a store at a mall in Queens, N.Y.Victor J. Blue/Bloomberg 

BRIDGEWATER — A Somerville woman claims in a lawsuit that she was injured when a mannequin fell on her in the Bloomingdale’s at Bridgewater Commons mall.

Maria Hupalo and her husband, Roman, are suing Bloomingdale’s Inc. and its parent company, Macy’s Corporate Services Inc., for negligence in allegedly causing the Dec. 9, 2011, incident, according to the lawsuit filed last week in Superior Court.

Hupalo alleges she suffered “traumatic injuries” when the mannequin fell on her, the lawsuit states.

Due to the defendants’ negligence, Hupalo sustained “severe, painful, and permanent injuries that required medical care and incurred substantial expenses for doctors bills, medications, and the like in an effort to effect a cure and remedy for her condition,” the lawsuit states.

The couple claims the defendants “were careless, reckless and negligent in their construction, design and maintenance of the Premises,” the lawsuit states.

Macy’s spokesperson Elina Kazan said it is corporate policy to not comment on pending litigation.

The complaint represents at least the second lawsuit filed recently in regard to an alleged injury in a Macy’s-owned…

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Mets’ Harvey Is Covered Like Any Other Employee With a Workplace Injury

For all of the Mets fans out there, we wanted to share this interesting development, originally reported by The New York Times

Matt HarveyIf Mets pitcher Matt Harvey has Tommy John surgery on his right elbow, it will be paid for, partly, with workers’ compensation insurance. A partly torn ulnar collateral ligament like Harvey’s is considered a workplace injury, just as if he were a truck driver hurt on a loading dock.

The basic agreement between major league owners and players requires that teams pay the cost of injuries.

“The employer gets to recover, as an offset, any workers’ compensation recovery that is available,” said Rob Manfred, an executive vice president of Major League Baseball. “And the club is on the hook for what workers’ compensation doesn’t pay.”

At some point after an operation or procedure, a player signs a form that allows his team to pursue the insurance claim. So if workers’ compensation did not pay the full cost of Derek Jeter’s surgery for a fractured left ankle last year, the Yankees made up the difference — essentially the cost of doing business.

“The player never sees a bill,” Manfred said.

Another factor is that the cost of Tommy John surgery is not uniform. Dr. James Andrews, the renowned orthopedic surgeon, might charge more than the Hospital for Special Surgery, where the Mets’ medical director, David Altchek, is an orthopedic surgeon. (Andrews prescribed a six- to eight-week rehabilitation program for Harvey earlier this week that would precede any decision to operate.)


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When It’s Time to Take the Keys Away from Parents

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

Growing old is a contact sport that is not recommended for the frail. Telling elderly parents that they no longer can drive may keep them and others safer, but almost always takes away both independence and control. So it’s a tough subject, even if there’s already been one or more minor car accidents involving a parent’s driving.

One of the common themes in many of these articles is to actually ride with your parents and notice if they have physical limitations or are slow to react to situations around them, keeping in mind that cues are usually more subtle than blatantly running a red light, although that may be one clue. Another theme is examining action tactics to figure out who actually approaches the person for the conversation and takes away the keys – suggestions include talking to both the doctor and a supervisor at the DMV to enlist them as allies.

There is an abundance of commentary on this subject to help you (and others who might need to) stage an intervention with your parents. Links below includes advice and tips about both discerning whether it’s time to have the conversation and more details about discussing no more driving and the potential aftermath.

  • Here is one website with a comprehensive list of resource articles and links to answer many questions folks might have about this scenario:

    Aging Parents Driving: Answer the common question ‘How can I tell if my elderly parent should no longer be driving?’ Learn how to take the keys away from an aging mother or father. Find out how to deal with stubborn aging parents who think their driving is safe. Know the common signs that your parent should no longer be driving and where to turn for assistance.”

  • This next article has a checklist that helps determine whether it’s really unsafe for a parent to drive. And I think it also had some good advice from an official at the AARP: “We use the term ‘Prepare with your head and talk with your heart.’”
  • Here’s an article that is a much lighter look at the serious subject at hand.
  • I thought that this next article was useful because Nebraska and Iowa, like California – where the author lives – have a lack of public transportation infrastructure, which is an even bigger problem in rural areas. As the story says, “It can be a tough thing to tell a parent. First, do some research. Second, choose your words carefully.”
  • This article uses checklists to explore the process of approaching a parent for this conversation. It also encourages empathy and challenges folks to consider what it would be like if they had to stop driving for even a short period of time and how their lives would be affected.
  • As a different approach, there are also support threads and websites out there that address an extremely large number of scenarios that come up with elderly parents, including the dilemma of taking away the keys. Here’s an example of one board with questions and answers that I thought was both respectful to the parents and also encouraged advocating for safety, even if that meant taking away the keys.

For further thought, even after having this particular conversation with your parents, keep in mind that someday someone will be having the conversation with you. Think about and reflect if you’d be ready – will you be receptive to a loved one’s concerns?

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Official Disabilities Guidelines Now Covers Diabetes

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

While diabetes is not a work injury or illness, it can have a serious impact on the rate at which an injured worker recovers. For instance, people with diabetes may have a much harder time healing from a foot or leg injury. The latest edition of the annual Official Disabilities Guidelines (ODG) has been released, including the latest ODG volume on treating patients. ODG Treatment is the nationally recognized standard for medicine in determining the scope and duration of medical treatment in workers’ compensation.

For the first time this year, ODG Treatment includes a chapter on diabetes. According to the American Diabetes Association, there are nearly 26 million people in the United States who have been diagnosed with diabetes, and an estimated 7 million more people suffering who have not yet been diagnosed. Clearly, the implications of diabetes on workers’ compensation are significant.

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