Category Archives: Workers’ Compensation

What If An Independent Medical Examination Doctor Doesn’t Agree With My Doctor?

Today’s wise words come to us from my colleague Roger Moore of Nebraska.

As I have written previously,  in Nebraska, you have the right to choose your family doctor to treat you for your work injury.  For purposes of the workers’ compensation court, that person becomes your “treating doctor.”  However, sometimes an employer or insurance provider selects a non-treating doctor for an “independent medical examination” (IME). According to the workers’ group National Association of Injured & Disabled Workers (NAIDW), IMEs are used for three reasons:

  1. “to determine the cause, extent and medical treatment of a work-related or other injury where liability is at issue”
  2. “whether an individual has reached maximum benefit from treatment”
  3. “whether any permanent impairment remains after treatment”

When an IME is scheduled, this probably means your employer or the insurance company is trying to fight some aspect of your workers’ compensation benefits.  An IME doctor frequently bases his or her findings on what is often a very brief visit with a patient.  Sometimes they don’t even perform a physical examination before rendering their opinion.  Rarely do they issue opinions that are favorable to an injured worker.  For that reason, when an examination like this is scheduled, my policy is to Continue reading →

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

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?

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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$100 Million Fraud in New Hampshire

Our 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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Workplace Stress Can Make You Physically Ill

Today’s post comes to us from Jon Rehm from Nebraska. While Jon’s post mentions Nebraska law, you should contact our office if you have any questions regarding a claim you might have under New York law.

Serious disabling medical conditions can arise from workplace stress. A recent study showed that people working long hours (11+) are more than twice as likely to experience major depression than those who work only 7-8 hours a day. Another study discovered that stressed workers have a 67% greater risk of heart disease. And other studies mention that “long working hours” lead to more risks of anxiety and a reduced ability to both think and sleep well.

Marianna Virtanen, one of the newest study’s authors, recently gave some tips to workers on ABCNews.com. One of her tips is to: “Make a distinction between work and leisure; don’t skip your holidays; take care of your health and well-being, especially sleep and exercise.” With Americans now working more hours than many of their counterparts in other countries, workers need to be proactive in taking caring of themselves.

But it isn’t just up to the workers. Psychological illnesses and depression cost companies money and result in less worker productivity, according to the CDC’s National Institute for Occupational Safety and Health. Without buy-in from employers and workers, the personal and corporate costs from psychological illness will never be reduced.

Unfortunately, Nebraska law Continue reading →

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More surgeries = More benefits

Today’s post is from our colleague Charlie Domer of Wisconsin.

Surgeries are commonplace after a work injury.  When an injured worker in Wisconsin has a post-injury surgery, that worker is ordinarily entitled to a minimum percentage of permanent disability.

Permanent partial disability (PPD) generally represents a physician’s assessment of a worker’s functional loss. PPD is payable at a weekly rate equal to two-thirds of the employee’s average gross weekly earnings at the time of the injury, subject to a maximum rate (the rate in 2011 and 2012 is $302/week).

Administrative rules relevant to the Worker’s Compensation Act (Section DWD 80.32) provide mandatory minimum ratings of PPD for injuries to various body parts and surgical procedures. For example:

  • A laminectomy (removal of disc material) at one level of the lumbar spine (e.g., L4-5) carries a minimum 5% disability;
  • A spinal fusion at the same level (e.g. L4-5), results in a minimum 10% disability;
  • Total hip replacements carry a minimum 40% PPD (while a partial hip replacement results in 35% PPD);
  • A total knee replacement has a minimum PPD of 50% (partial knee replacement is 45%);
  • An anterior cruciate ligament (ACL) repair is 10% PPD minimum; and
  • A knee meniscectomy results in 5% PPD minimum.

If a worker has one of the listed procedures, they receive the minimum PPD percentage.  To calculate the value, we look to the applicable percentage, based on the number of weeks the body part is “worth” under the statutes.  For example, a knee is worth 425 weeks under the statutes, so the 20% PPD to the knee is 85 weeks (20% of 425) at the $302/week rate for a 2011 injury, which amounts to $25,670.

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