click on the map for a larger version

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

University of Iowa, College of Public health, recently reported the death of a bathtub refinishing technician who died from the inhalation of paint stripper vapors.

The apartment manager and first responders reported a strong chemical odor in the second story apartment.

In 2012, a 37-year-old female technician employed by a surface-refinishing business died from inhalation exposure to methylene chloride and methanol vapors while she used a chemical stripper to prep the surface of a bathtub for refinishing. The technician was working alone without respiratory protection or ventilation controls in a small bathroom of a rental apartment. When the technician did not pick up her children at the end of the day, her parents contacted her employer, who then called the apartment complex manager after determining the victim’s personal vehicle was still at the refinishing company’s parking lot. The apartment complex manager went to the apartment unit where the employee had been working and called 911 upon finding the employee unresponsive, slumped over the bathtub. City Fire Department responders arrived within 4 minutes of the 911 call. The apartment manager and first responders reported a strong chemical odor in the second story apartment. There was an uncapped gallon can of Klean Strip Aircraft® Low Odor Paint Remover (80-90% methylene chloride, 5-10% methanol) in the bathroom. The employee’s tools and knee pad were found in the tub, suggesting the employee had been kneeling and leaning over the tub wall to manually remove the loosened original bathtub finish coat.

The factors contributing to this lethal exposure include use of a highly concentrated methylene chloride chemical stripper having poor warning properties (“Low Odor”); working in a small room without local exhaust ventilation to remove chemical vapors or provide fresh air; and working without a respirator that could have protected the employee from exposure.

Today’s post comes from guest author Lauri Watkins from Causey Law Firm.

Many people don’t realize that Social Security stopped mailing out annual Statements in 2011, but indeed they did. Citing budget concerns and a little-used ‘emergency’ ruling stating that it’s okay for the Social Security Administration to stop fulfilling one of its legally-mandated functions if doing so could potentially bankrupt the agency or impair its ability to fulfill its primary function, Social Security stopped sending out individual Social Security Statements. In fact, they also ceased fulfilling requests for statements received by mail or telephone, and disabled their online ordering service. The only way you could obtain your Statement was to go down to your local Social Security Office and tell them you had an ‘urgent need’ for the information! Now, Social Security has (finally!) rolled out online (and IMMEDIATE) access to your Statement, including your earnings history, estimated benefit amounts, and eligibility information. And fortunately, they have made it incredibly easy! All you need is:

• your own personal information (full name, Social Security number, date of birth, mailing address, phone number)
• and working email address.

Start at Social Security’s website. On the left-hand menu, go to ‘Get Your Social Security Statement Online’, and follow the prompts. Social Security uses a program called Experian to verify your personal data, so be prepared to answer some interesting multiple-choice questions, including

• phone numbers and addresses that you may have used in the past,
• dates that you opened specific credit accounts,
• or where you send your mortgage payment.

You can also choose an added layer of security, by asking Social Security to send a text message to your mobile device anytime you log in to your account. Note, however, you are actually setting up a ‘my Social Security’ account – - the same type of account that people RECEIVING benefits have – - not just accessing a Statement. Please be prepared to keep track of your login information, as you not only may need to access your Statement again over the years as new earnings are posted, but you may also one day need this account to set up your own Medicare, Retirement, or Disability benefits. Keep this login information in a safe and secure location, and do not share it with others to maintain your security.

Last week we explained Wisconsin’s rich history of protecting injured workers through its mandatory workers’ compensation system. This week we’ll look at what is happening in Texas and Oklahoma, where it is not mandatory for employers.

Alternative worker’s compensation programs( like that of Texas’—and now Oklahoma— non-subscriber / “Opt Out” scheme) have the potential to significantly reduce workplace safety. Since experience rating is a fundamental component of worker’s compensation insurance systems, the comp system provides economic incentives to employers through reduced insurance costs to companies with reduced injury rates and safe workplaces.  Texas’ “opt out” option  means that an employer can choose to be self insured or become a non-subscriber and opt out of worker’s compensation insurance entirely. Those employers opting out of worker’s compensation systems are not experience rated and there is no economic incentive to reduce workplace injuries and ensure safe work environments for their employees.

Most recently on April 17, 2013 a fertilizer plant exploded in Texas, killing 15 and injuring approximately 200 people. EMS workers, firefighters, and other first responders were among the casualties.  The West Fertilizer Company was approved to have no more than 400 pounds of ammonium nitrate in the plant, but instead, 270 tons were reported to be on site. West Fertilizer failed to inform the Department of Homeland Security of the amount of fertilizer it had. Texas had as well the worst recorded industrial accident in America in 1947 when 3,200 tons of ammonium nitrate resulted in almost 600 deaths and 3,500 injuries.

Texas has the worst work-related fatality rate in the nation.

Texas has the worst work-related fatality rate in the nation. According to the Bureau of Labor Statistics, 433 reported fatalities occurred in 2011 alone in Texas with the highest (4.79 per 100,000 workers) for the last ten years. (Oklahoma is in line to follow). 

Oklahoma’s worker’s compensation measure was signed into law May 5 and it drastically changes how Oklahomans are compensated for on the job injuries. Republican Governor Mary Fallin has tried to change the worker’s compensation system for over 20 years in State politics.  She indicated the bill would reduce costs for businesses. The law changes worker’s compensation system from a judicial to an administrative one, allowing businesses to opt out of the worker’s compensation systems as long as they provide “equivalent” benefits to injured workers. Opponents of the law indicate that it is unfair to injured workers because it will reduce their benefits. The implementation of “equivalent” benefits, and what kind of injuries are covered or uncovered by those who “opt out” of the system is yet to be determined.

Cautionary note to employers: since those employers that “opt out” of worker’s compensation are no longer allowed the benefit of the exclusive remedy provision of worker’s compensation, workers who are not covered by worker’s compensation can sue their employers. For example, in a recent Colorado case where an undocumented worker (who by Statute in Colorado was not covered under worker’s compensation) received over a $1 million verdict against the negligent employer.

http://en.wikipedia.org/wiki/List_of_industrial_disasters

Worker’s compensation systems benefit both employers and workers, and the dangers of opting out of the system means a retreat to harsh industrial conditions, producing  the same kind of inequities  that workers’ comp remedied over a century ago. The situation calls to mind the maxim that those who don’t remember history are doomed to repeat it.

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

While this post occurred some time ago, the issues related to workplace violence remain relevant.

In light of the horrific elementary school shootings in Newtown, Connecticut last week it may be time to re-evaluate workplace violence, which seems to be increasing at an alarming rate. Technically, workplace violence is any act where an employee is abused, threatened, intimidated, or assaulted in the workplace. It can include threats, harassment, and verbal abuse, as well as physical attacks by someone with an assault rifle. 

Two million American workers are victims of workplace violence every year. What’s worse is that workplace violence is one of the leading causes of job-related deaths in the United States. Last year, for example, one in every five fatal work injuries was attributed not to accidents but to workplace violence,  and  some employees are at an increased risk for harm. For example, employees who work with the public or who handle money are more at risk (i.e. bank tellers, pizza delivery drivers, or social workers). According to the 2011 Census of Fatal Occupational Injuries by the U.S. Dept. of Labor, robbers were found to be the assailants in almost a third of homicide/workplace violence cases involving men, whereas female workers were more likely to be attacked by a relative (i.e. former spouse or partner) while at work.  

Preventing workplace violence is a challenging task and OSHA advises employers to create a Workplace Violence Prevention Program. Creating a safe perimeter for employees is crucial. Likewise, having an emergency protocol in place should reduce the number of fatalities in an attack, and that’s exactly what happened at the Sandy Hook Elementary School in Connecticut when the school’s protocol saved the lives of many children.

More than a century ago, Wisconsin’s initial efforts in worker’s compensation led the nation. In 1911 Wisconsin became the first state in the nation to place a broad constitutionally valid worker’s compensation system into operation. Recent events, specifically Oklahoma’s passing legislation to allow employers to “opt out” of worker’s compensation (following the “lead” of Texas) calls into question the great bargain made between employers and workers over a century ago. Prior to the enactment of worker’s compensation in the early 20^th Century, workers who were injured on the job had to overcome three common law obstacles in order to recover from their employer.

Under contributory negligence, a worker could not recover from the employer if the worker had been negligent in any way and that negligence contributed to the accident, regardless of how negligent the employer may have been.

Under assumption of risk, if a worker knew or should have known of the danger inherent in the task at issue before undertaking it, the employer was not liable for an accident arising from the task even if the employee was not negligent.

Under the fellow servant rule, employers could not be held liable for accidents caused by fellow employees. 

The combined effect of these common law defenses served to deny workers adequate remedies for their injuries. On the flip side, employers who were found negligent in causing workers’ injuries were subject to the vagaries of a jury with no limitation on dollar amount recoveries. Wisconsin’s initial attempt at worker’s compensation contained an “opt out” provision, not unlike the “opt out” provisions currently in vogue in Texas and Oklahoma. Within a few years, however, in 1913, spurred by slow employer acceptance of the law, the legislature provided that any employer who did not explicitly opt out of the law would be presumed to have accepted it. In 1919 Wisconsin’s law was extended to cover all employment related injuries whether accidental or not, including occupational exposure claims. Finally in 1931 when worker’s compensation had become a universally accepted part of Wisconsin industrial life, the law was made compulsory for virtually all employers and employees. 

Wisconsin’s act is dynamic, reflecting changing trends in employment (temporary help agencies, independent contractors, etc.) and changes in medical treatment, diagnosis, and surgical procedures (for example artificial disc replacement and joint replacements).

Wisconsin’s act is dynamic, reflecting changing trends in employment (temporary help agencies, independent contractors, etc.) and changes in medical treatment, diagnosis, and surgical procedures (for example artificial disc replacement and joint replacements). Proposed provisions to the Act from the worker’s compensation Department and from labor and management sources are funneled through the Worker’s Compensation Advisory Council, which (after significant debate) proposes an agreed upon bill to the legislature every two years.  Input to the Council from lawyers, doctors, employers, and insurers on current issues in worker’s compensation makes Wisconsin’s Act responsive to its constituents.

Unfortunately other constituents (like those in Texas and Oklahoma) based primarily on a short sighted and single minded desire to reduce costs for businesses, have passed legislation allowing employers to opt out of worker’s compensation, often with some disastrous results.

Come back next week for Part 2, a closer examination of the worker’s compensation systems in Texas and Oklahoma and how they can effect worker safety.

Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen.  This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.

…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law. 

The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do allow for complete or partial worker’s compensation benefits for injured undocumented workers. For example, the Nebraska Supreme Court recently held that an injured illegal immigrant was eligible for worker’s compensation benefits, including loss of earning capacity/permanent total disability benefits.

In Wisconsin, undocumented workers qualify as employees under Wisconsin’s workers’ compensation system. (Arista-Rea v. Kenosha Beef, 1999 WL 370027, WC Claim No. 1990070904 (LIRC May 5, 1999)). The Wisconsin Labor and Industry Review Commission has awarded temporary disability benefits (i.e. lost time benefits), rejecting employer claims that undocumented workers occupy a different position because they are legally precluded from obtaining other employment until they resolve their immigration status. The Commission noted that undocumented workers routinely find new employment after being terminated, the employer’s argument is deemed invalid. The issue of eligibility for loss of earning capacity benefits for Wisconsin’s undocumented workers remains undecided.

The jury awarded the undocumented worker one million dollars in non-economic (i.e., pain and suffering) damages.

Unlike Wisconsin, a few states explicitly exclude illegal immigrants from worker’s compensation benefits.  An example state is Wyoming, which has a statutory exclusion. Wyoming’s Law defines an “employee” to include legally employed “aliens authorized to work by the United States department of justice, office of citizenship and immigration services…”. Such an exclusion has an unintended consequence: employer exposure to personal injury suits! Specifically, I came across a summary of a U.S. District Court suit from Wyoming: Romero v. Reiman Corp., Claim 11-CV-216-F (D.Wyo 5/1/12). In this case, an undocumented worker was struck by a piece of steel rail and fell ten feet, suffering serious injuries. He was statutorily excluded from the worker’s compensation act in Wyoming, so he brought a personal injury suit against his employer in federal court. The jury awarded the undocumented worker one million dollars in non-economic (i.e., pain and suffering) damages.

Thus, I urge caution on anyone or any politician pushing for excluding undocumented workers from worker’s compensation coverage. Without worker’s compensation, employers are open to being sued in court—with the possibility of significant damage awards.

Today’s post comes from guest author Ryan Benharris from Deborah G. Kohl Law Offices.

In December, 2010, the Social Security Administration (SSA) implemented a set of rules put in place to enable more effective case review. One of the major changes was that Applicants will no longer know who their Administrative Law Judge is prior to their scheduled hearing. A recent article in the Wall Street Journal noted that these judges seem more concerned with the speed of case processing than on whether the applicants actually deserve benefits. WSJ also indicated that some judges were approving more than 85% of the cases they heard in what was allegedly an effort to have the cases resolved more quickly. Unfortunately, for applicants, this change in practice has made their cases much harder to litigate. Many Administrative Law Judges have different styles of practice in how their cases are heard. An attorney may present information in a different style depending on the judge. The importance of an applicant being represented by an attorney before the Social Security Administration has never been clearer. Since there is no way to know who the Administrative Law Judge is prior to the hearing, it is absolutely imperative that every case prepared in accordance to all rules governing how cases are tried before the court. If even the slightest detail is overlooked, it may prevent an applicant from being allowed to present evidence that could win his or her case.

The SSA has programs to help disabled people rejoin the workforce.

Today’s post comes from guest author Barbara Tilker from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As I discussed in a previous post, you don’t have to be on Social Security Disability (SSD) forever. Many people find that their medical conditions improve and they want to try to get back to work. However, it’s hard to get back into the workforce after being out of it for a long time, and people are worried about losing their eligibility for benefits if they try to go back to work but are unsuccessful.

Social Security recognizes that it can be difficult for people to get back into the labor market and that people would be reluctant to go back to work if they would automatically lose entitlement to their disability benefits. To address these concerns, Social Security runs several programs to help people transition back into the workforce while maintaining financial eligibility.

Social Security has many programs and policies to help people return to work, but I will discuss two of these programs in some detail. These are the Ticket to Work program and the Trial Work Period.

The Ticket to Work program gives disabled individuals access to a network of services that offer retraining and vocational rehabilitation. This is a free, completely voluntary program. Once you reach out to them, you will undergo an evaluation to determine your specific needs and an individualized program will be developed for you. If you are unhappy with the group that you’re working with you are free to switch to another provider in the program who can better address your needs.

Once you return to work, you are entitled to a Trial Work Period (TWP). Please note that individuals who receive Supplemental Security Income (SSI) are not eligible for a TWP. A TWP is nine (9) months in a rolling sixty (60) month period when you can work and still receive your disability benefits. Any month in which you earn more than $750 in 2013 will be considered one of your TWP months. Once you have used all your TWP months, Social Security will determine that you are no longer entitled to benefits due to your work activity. You will receive your benefits for the month your disability ends and the month after that. After that, your entitlement to monthly benefits will end, but you may be able to keep your Medicare coverage for an extended period afterwards.

You should always discuss your plans to return to work with Social Security, because many of these rules are complicated…

You should always discuss your plans to return to work with Social Security, because many of these rules are complicated and not following them can result in Social Security paying you more in benefits than you are entitled to – benefits which you will have to pay back. These explanations are intended to give you an overview of the programs available and your situation may be different. Always talk to your attorney or someone at Social Security before returning to work to avoid problems.

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.