Archive for November 29, 2011

Jennifer Atkinson | November 29, 2011
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What is an Independent Medical Exam?

Employees suffering from a work-related injury, disability or illness are often required to have an Independent Medical Exam (or IME).

 What is an Independent Medical Exam?

 If you become injured or disabled at work and have an open L&I claim, the Department of Labor and Industries may require you to submit to an Independent Medical Exam. Many workers believe that the exam is impartial owing to the word “independent” in the name of this procedure. Unfortunately, this is not always the case. In fact, some workers’ advocates claim that “it would be a lot more accurate to call the exam an Insurance Medical Exam because it is done by, for, and to benefit the insurance company. Unfortunately, insurance carriers are not looking for an independent evaluation.”

This is not exactly correct in all cases, but there is a certain kernel of truth to the charge. Most “Independent” Medical Exams are performed by doctors (or other medical professionals) who depend on the IME for a substantial part of their income. IME physicians understand that the Department of Labor and Industries has no overwhelming incentive to find you injured or disabled.

In any case, the general sentiment that Independent Medical Exam physicians are biased in favor of L&I is prevalent enough that many IME groups address the stereotype head-on.  One Independent Medical Exam website offers the following disclaimer that “While we can’t answer for physicians elsewhere, our physicians are all board-certified, in private practice with injured patients of their own to care for. They are not ‘paid by the State’ (or anyone else), but by us. We allow no pressure of any kind to be brought to bear on our specialists, either by referral sources, or, for that matter, by anyone else. Our physicians have no incentive to offer a biased opinion; financial or otherwise, nor will we permit any attempt to influence their best medical judgment. Their financial relationship is with us, not the referral source; they have no reason to “please” the referral as they have no financial contact with the referral source. We see our primary task as providing an influence-free environment for every evaluation.”

Furthermore the IME source claims that “Our physicians will be responding to questions provided by the referral source; however, this does not mean that the interests of the referral source will prevail or drive their conclusions in any manner. The sole purpose is to provide a current, thorough, medical evaluation of your injury or condition, without influence of any kind.”  Such defenses are commonly heard when concerns are raised about the impartiality of the Independent Medical Exam process, although such claims themselves are not usually supported with evidence that convinces critics of the IME system.

An L&I Washington Law Firm raises the following doubts about such statements of defense: “Most medical professionals who perform IME’s for insurance carriers usually do so on a regular basis either in a direct relationship with the carrier or with a third-party IME service, and this gives them a vested interest in finding disabled claimants healthy and able-bodied – they consider it job security. These medical professionals seek to tell the insurance carriers (their customers) what the insurance carriers want to hear, i.e., that the patient is medically fine and not entitled to disability benefits. They know that if they perform an independent examination and find the claimant to be disabled, it will lead to less repeat business from the insurance carrier, or carriers. In the end, the IME doctor most often chooses to keep his or her customer happy by giving them what they want – a medical report which supports denying the claim.”

What happens at an Independent Medical Evaluation?

The IME usually begins with a record review. Before patients even meet the IME doctor, Labor & Industries staff who are reviewing your L&I claim have already scrutinized your medical records, and may provide only selective records to the IME doctor for review. Records that have been taken out of context can create the appearance that your medical condition isn’t as serious as it might be, or that medical evidence is contradictory or ambiguous.  As a result, even if an IME doctor would otherwise be inclined towards impartiality, he or she is only provided with pre-screened information.

Another fairly common practice among some IME doctors is to look for “holes” in your medical record. Something as simple as an accidental omission on the part of your treating physician can result in an IME doctor deciding that your medical report does not support your disability claim.

Many patients report that even when the exam finally occurs, it can seem rather superficial. IMEs often last only a few minutes – which many find surprising given the extensiveness of an IME doctor’s report and the long list of clinical testing the doctor supposedly performed.  If you have been scheduled for an Independent Medical Exam, don’t expect a thorough exam.


Other Problems with the IME

Another problem with the system is that many IME professionals have preconceptions about certain medical conditions common among workers with disabilities and injuries. Some IME doctors entirely dismiss debilitating conditions like chronic fatigue syndrome or fibromyalgia because these illnesses are difficult to detect through CT-scans, MRIs and other diagnostic procedures. This is unsurprising when you consider that most IME doctors spend much of their time performing IMEs. Unlike primary physicians (your own doctor), who generally examine and treat patients over extended lengths of time, doctors specializing in Independent Medical Exams basically see a mere snapshot of the patient’s medical condition. This means an IME doctor can only assess the claimant’s condition for that single medical visit required by the Department of Labor and Industries.

The fact is that many occupational illnesses or medical conditions can only be diagnosed over long periods of time involving many clinical visits that track developments in a patient’s symptoms and test results. Given their highly restricted interaction with the patient (along with their general bias), it is expectable that so many IME doctors doubt the injured worker’s condition and disregard reported symptoms like headaches, dizziness, pain or numbness.

Is the Independent Medical Exam Required?
Employees with an L&I claim cannot refuse an Independent Medical Exam. If they do, it is likely that the Department of Labor and Industries will automatically reject your L&I claim or terminate your benefits. However, workers can minimize negative consequences from this procedure with the help of a knowledgeable L&I attorney. Emery Reddy counsels clients in advance of the Independent Medical Exam.  We can also send a trained professional to accompany you to your medical examination. This sends a clear message to the independent medical professional that a law firm is paying attention to their assessment.  In observing everything that happens during the IME, the professional will also report to an Emery Reddy attorney, and determine whether the IME doctor completed the clinical tests he or she claims to have performed.

When applying for benefits in an L&I claim, Independent Medical Exams can be an unfortunate and unavoidable fact. But this doesn’t mean you must become a victim. Contact Emery Reddy for a free case evaluation and assistance with your L&I claim.

Category: Department of Labor and Industries, IME, Independent Medical Examination, L&I, Labor and Industries, Occupational Illness | Tags: , , , ,
Jennifer Atkinson | November 27, 2011
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Black Friday Violence: Workers Face Stampedes, Robberies, Pepper Spray and Fatigue

For American workers, the Thanksgiving Holiday ends earlier and earlier each year as retailers compete to open their doors before competitors and lure shoppers with product discounts. This year a number of stores moved up their sales launches to intrude on Thursday’s national holiday, which was then followed by all-night service on Black Friday.  While most American families were coming together to enjoy football, food and company on Thanksgiving morning, Sears opened its doors for early-bird shoppers. Workers at Toys-”R”-Us also had to cut their holiday short to prepare for a 10pm opening on Thursday, while retail giants like Target and Best Buy upset many employees by opening doors at midnight on Thanksgiving instead of the usual 5 am early-bird time on Black Friday.

Yet these extreme working hours are not the only thing to encroach on workers who, not long ago, still enjoyed a full day to celebrate Thanksgiving with family and friends: violence has also become increasingly common during the Black Friday shopping frenzy, putting more and more workers at risk of physical injury, anxiety, fatigue, and emotional stress.

According to Los Angeles police, one woman at a Los Angeles Wal-Mart used pepper spray on at least 20 other shoppers to gain a competitive edge on accessing discount items. Wal-Mart workers, who are already grossly under-paid and receive negligible benefits, also had to deal with shootings and robberies in California, Florida and South Carolina. Police also reported a stabbing outside the Wal-Mart in Sacramento, N.Y.

In another case, a grandfather fell victim to police violence after stuffing a product in his waistband to free his hands and help his fallen grandson to his feet (although there are vast discrepancies in witnesses reports, with others claiming that the man was shoplifting, and merely subdued by the police with appropriate force).

Even after the long Black Friday shifts ended, workers continued to suffer injuries. According to the Palm Beach Florida Sheriff, one Target worker driving home from her early-morning shift fell asleep at the wheel and veered into a canal. She was submerged for 5 to 6 minutes before being rescued, but miraculously survived the ordeal. Despite the fact that exhausting workplace demands and conditions caused her fatigue, it is unlikely that she will qualify for workers’ compensation benefits for her injuries, since she the employee already completed her shift and left her workplace.

Many Americans are alarmed to see these long work hours (and the shopping frenzy in general) eclipse the Thanksgiving holiday, and are signing petitions or joining movements like “Save Thanksgiving.”

VIDEO: Workers & Black Friday Violence

Category: Uncategorized, Worker Injury, Workplace Safety | Tags: ,
Jennifer Atkinson | November 26, 2011
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Black Friday Brings Increased Risk of Workplace Violence

Every year, Black Friday (along with the holiday shopping season more generally) brings a reminder of the risk of workplace violence that retail workers face. Measured against most other employment sectors, retail workers are at an increased risk of physical injury or emotional stress from workplace violence. Robbery makes up the greatest number of violent incidents experienced by retail workers, with the majority of these crimes involving a deadly weapon. Employees working at convenience stores, gas stations and bars run some of the highest risks of injury from violence.

What is workplace violence?

L&I defines workplace violence as any physically violent act or threat of violence (harassment, intimidation or other forms of verbal abuse).  Examples of workplace violence run from threatening remarks to direct physical assault to homicide.  An incident of workplace violence can impact workers, customers or visitors.

Homicide is presently the fourth highest cause of fatal workplace injuries in the U.S. According to the Census of Fatal Occupational Injuries (CFOI — a study generated by the Bureau of Labor Statistics), out of the 4,547 fatal workplace injuries in 2010, 506 were workplace homicides. Moreover, homicide is the leading cause of death for women in the workplace. [More...] Whatever shape it takes, workplace violence is a serious concern for American workers and employers.

Who is at risk of workplace violence?

Every year, close to 2 million American workers become victims of workplace violence, and experts estimate that many additional incidents go unreported.  Several key factors increase the risk of violence toward workers, including the exchange of money with members of the public, interaction with volatile, unstable populations, and working in a solitary capacity or in isolated areas.  In addition, providing care to individuals or working in venues that serve alcohol can increase the risk of violence. Late night shifts also put employees at higher risk. Some positions that carry significantly higher risks of violence include cashiers in retail jobs, delivery drivers, healthcare workers, and law enforcement personnel.

How can workplace violence hazards be reduced?

Risk of assault can be minimized if businesses and workers take certain precautions. One of the most valuable measures an employer can take is to implement a zero-tolerance policy toward workplace violence. Such policies should apply to all employees, patients, contractors, clients, visitors, and any members of the public who interact with company personnel.  Employers should also evaluate worksites to identify ways to reduce the likelihood of violent incidents.  OSHA reports that a well-designed Workplace Violence Prevention Program, coupled with administrative controls and effective training can lessen workplace violence.  A thorough risk assessment will take into consideration any incidents of violence over at least that past year, the history of violent incidents at other stores in your area (particularly similar workplaces), and the specific statistics and solutions for violent incidents within your industry.

All workers should know the policy and recognize that all reports of either verbal or physical violence will be investigated and dealt with promptly.  In addition, employers should assess their individual workplaces to determine if the following is necessary:

  • training workers in de-escalation techniques
  • installing adequate lighting in dark areas, such as parking lots
  • providing drop safes
  • providing workers with personal protective equipment like body armor (in the case of law enforcement or security personnel, for example).
  • overhead mirrors or security cameras
  • personal panic alarms as well as door and counter alarms

Readers interested in further discussion of workers’ rights and employers’ responsibilities as they pertain to workplace violence are encouraged to read OSHA’s Workers page, or contact an employment attorney at Emery Reddy.

Category: Worker Injury, Workplace Safety | Tags: ,
Jennifer Atkinson | November 22, 2011
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L&I to Take Public Comments on New Workplace Safety Law

The Department of Labor & Industries plans to host two separate hearings for public comment on a draft rule that would require employers to attend to major safety hazards immediately after receiving an L&I citation, even if that business appeals L&I’s citation. The only exceptions given would be if a stay is granted to an employer by L&I or the Board of Industrial Insurance Appeals.

Within Washington State, businesses that receive citations for violating workplace safety regulations have fifteen days in which they can appeal the citation to L&I.  Under the present regulations, if a business appeals their citation, that have no requirement to correct the hazards for which they have been cited until after that appeal has been resolved. Needless to say, this process can go on for months or even years, as L&I does not exactly operate as the most efficient government agency.

During the 2011 Washington Legislative session, representatives passed ESSB 5068, which directs L&I to carry out a rule that requires employers to fix safety hazards related to serious violations, even in the case of an appeal, unless a stay is granted.

A proposed rule has been drafted to enact this legislative decision, and provides for stay of abatement requests.

L&I posted the following information on its website:

Public hearings on the draft rule are:

Written comments will be accepted until 5 p.m., Dec. 7. Send comments to Devin Proctor at:

Email: Devin.Proctor@Lni.wa.gov
Fax: 360-902-5619
Mail: Department of Labor & Industries, P.O. Box 44620, Olympia, WA 98504
Hand delivery: L&I, 7273 Linderson Way SW, Tumwater, WA

Category: L&I, Workplace Safety | Tags: ,
Jennifer Atkinson | November 19, 2011
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Labor Department Targets Workplace Safety for Farm Kids

For many kids who grow up on the farm, “learning to drive” means learning to operate a tractor or other farm machinery even before driving a car.

Tractors are central to family farm life, and for this reason advocacy groups and members of Congress have responded critically to recent proposals from the U.S. Department of Labor that would prohibit children under 16 from many dangerous farm tasks, including driving tractors and handling pesticides. The reaction was so intense that on Monday, the agency extended the original November 1 public comment deadline for another month.

Traditional agriculturalists feel that these restrictions would jeopardize the future of family farms; on the other hand, child and labor advocates claim that the changes are necessary to safeguard vulnerable youth. About 1.3 million children under age 20 currently live on farms in the U.S.

The new provisions would include an exemption for families to let children work on farms owned by their parents. However, the changes would still impact many small farms that hire local youth during summer and harvest seasons.

Agricultural groups are also heated about the changes, claiming that bureaucrats don’t understand how agriculture works. Family farms often hire kids from the area when they are out of school in the summer, just when farm labor is most needed.  Those young employees would no longer be able to drive four-wheelers that many farms rely on, nor could they mow grass, operate tractors or work around animals.

Jordan Dux, national affairs coordinator with the Nebraska Farm Bureau, also explains that many extended families organized under a corporation – extended families that rely on their kids — would not be exempt: “So kids of individuals who are involved in a family corporation would no longer be able to help mom and dad on the ranch, on the farm. They wouldn’t be able to work with animals. They wouldn’t be able to work on hay wagons stacking bales 6 feet tall,” he said. “There are lots of … typical farm practices that … would be outlawed by the Department of Labor.”

Critics of the Labor Department’s plan also claim that the restrictions would handicap the recruitment of the next generation of farmers and ranchers –especially youth organizations like 4-H and Future Farmers of America.

However, safety concerns are paramount in farming (which is already one of the most dangerous occupations), and the issue becomes even more urgent when they effect the lives and well-being of children.  The U.S. Department of Agriculture reports that an average of 104 children die every year from farm-related injuries, and over 22,000 kids suffer other serious injuries.

Many child safety advocates welcomed the Labor Department’s announcement; yet others, like Barry Estabrook, feel that regulations do not go far enough, claiming that in light of the extent of injuries, the proposal is “timid at best.”  Unlike counterparts in other occupations, children involved in agricultural labor have little protection under the Fair Labor Standards Act, Estabrook said. Young people who work on farms “have suffered under a federally mandated double standard,” Estabrook argues on his “Politics of the Plate” blog. “I don’t see it as any more ludicrous to envision a child driving a bulldozer or a backhoe on a construction site than driving a backhoe in the farm fields. What is the fundamental difference?”

The Labor Department also defends its proposals to restrict anyone under age 18 from working at stockyards, commercial feedlots or grain elevators, all of which have recently been sites of tragic deaths of child laborers. Of the 26 workers who suffocated in grain elevator deaths last year, six were under the age of sixteen, according to a Purdue University study.

Emery Reddy will be following developments on this issue and reporting on hearings from the Labor Department in the coming months. We welcome you to check back for regular updates.

Category: Worker Injury, Workplace Accident, Workplace Safety | Tags: , , ,
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