Category Archives: Government

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: http://1.usa.gov/1zJOFCC

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Stop Work Orders In Massachusetts Created $1.4 Million In Fines And Obtained Coverage For Over 5,000 Workers

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

The Massachusetts Workers’ Compensation Advisory Council has released its Fiscal Year 2014 Annual Report (PDF link). This report contains some eyebrow-raising statistics. Between 2008 and 2014, Massachusetts was able to help over 50,000 workers receive coverage due to Stop Work Orders (SWOs). In 2014 alone the Agency was able to obtain insurance for over 5,000 workers who previously had no workers’ compensation coverage.

Stop Work Orders are issued to employers who are operating without workers’ compensation insurance. An investigator is sent to the worksite and if an order is issued, the employer must cease business operations immediately. Fines will then be given starting at $100 per day until penalties are paid and the company secures insurance.

In Fiscal Year 2014, there were 5,785 Field Investigations resulting in 2,150 SWOs issued and $1,430,599 in fines collected. While SWOs are in effect, employees are still paid for the first ten days out-of-work due to the order and the days missed are considered “days worked.” In addition to the fines that the employer receives, they will be added to a debarment list preventing them from bidding or participating in any state or municipal contracts for three years.

 

Original post on www.mass.gov/lwd/workers-compensation in April 2015.

 

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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 http://www.motherjones.com/politics/2015/03/arawc-walmart-campaign-against-workers-compensation.

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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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Small Increase Predicted for Social Security COLA

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

Social Security benefits are slated to go up, but not by much. “The cost-of-living adjustment in Social Security for 2014 is likely to be very small, marking the fourth year in the last five that recipients receive little or no increase in benefits,” according to a recent CNNMoney article. 

The American Institute for Economic Research estimates the increase to be 1.4% to 1.6%.  Last year’s increase was 1.7%, and the 2012 increase of 3.6% was the only “significant rise in benefits in recent years,” according to the article.

If there are questions about your specific legal situation, please contact the firm.

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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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Factory Fires in Pakistan Are A Painful Reminder Of Safety Oversights

A recent fire at a Pakistani garment factory is reminiscent of the Triangle Shirtwaist factory fire

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

The fires in two clothing factories in Pakistan on August 12, 2012, where locked exit doors and lack of safety inspections helped fuel the flames of death for over 300 people, has similarity with the Triangle Shirtwaist Factory fire in New York (147 deaths) in March of 1911, and the chicken factory fire in Hamlet, N.C.  (54 deaths) in 1991. Both sites had locked exit doors that trapped workers. Two brothers owned the Triangle factory and two brothers owned the factories in Pakistan. Garment workers jumped to their deaths in New York and workers in Pakistan were forced to jump out of upper-floor windows to try to escape the flames.  It was reported that Punjab province safety inspections were abolished in 2003 to develop a more “business friendly environment,” and the Hamlet factory had never been inspected in 11 years of operation.

The latest news is that the factories that burned in Pakistan were allegedly inspected just weeks before the fires by Social Accountability International (SAI), a nonprofit monitoring group that gets much of its financing from corporations. Western companies (like Gap and Gucci), who make clothes in Pakistan and other countries where the labor is cheap, relied on SAI to give them some peace of mind about working conditions, but the total failure of SAI to do it the job is evident. Either it was sleep walking while doing inspections and just going through the motions, or it was just a front for major corporations.

In the United Sates, as we strive to downsize government in the years ahead, we need to keep in mind that government regulations concerning safety must be enforced. If not, safety everywhere will become an issue  – on the highway, in the products we use and the food we eat – and we may similarly find ourselves, or a family member, trapped in a deadly situation, with no way out.

 

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