Governor Rick Snyder pressed ahead in late May with his effort to trim State costs.  Among the many moves to downsize State bureaucracies and streamline government services and efficiency was the creation of the Michigan Compensation Appellate Commission.

According to Compnewsnetwork, “Gov. Snyder issued Executive Order 2011-6, which transfers the authorities and responsibilities of the Workers’ Compensation Appellate Commission and the Employment Security Board of Review to the new Michigan Compensation Appellate Commission.”

“With this reorganization, Michigan becomes a model of efficiency for appellate decisions in these two case areas,” Snyder said. “It provides greater flexibility in addressing fluctuating caseload levels and variations.”

The Michigan Compensation Appellate Commission will now consider appeals of decisions issued by magistrates and administrative law examiners, specifically in the realm of unemployment and workers’ compensation claims.

The most important, and perhaps most troubling, part of the creation of this new Commission, is that it takes on the workload that was previously performed by two separate Commissions: The Workers’ Compensation Appellate Commission and the Employment Security Board of Review. Although our economy is slowly recovering, what is striking about this consolidation of Commissions is that it does not seem to acknowledge the massive increase in unemployment and workers’ compensation claims the recession has engendered.

Further, while the Executive Order issued by the Governor requires that the new appellate commissioners be evaluated under defined standards to ensure that appeals are handled in a timely, knowledgeable and appropriate manner, the Order also requires that the commissioners adhere to productivity and timeliness standards.  In short, the effort here is to move claims and reviews through the Commission quickly, and as such, the important scrutiny that each individual injured worker’s claim should receive might be compromised.

Every experienced Washington workers compensation attorney is watching these developments across the country to ensure that injured workers in this state will continue to receive all the protections afforded to them by constantly evolving Labor & Industries law. Injured workers should first seek medical attention, then seek out the advice of an experienced L & I attorney at Emery Reddy as they pursue their claim.

You can find the article on unemployment discrimination here.

If you think you may have been a victim of unemployment discrimination, be sure to contact an attorney who specializes in this area of the law.

You can find expert advice on unemployment discrimination, workers’ compensation, and personal injury claims when you contact an expert Washington workers compensation attorney at Emery Reddy.

The recent forced closure of a North Carolina bus company with an extensive history of safety violations has brought greater scrutiny to how professional drivers are treated by the agencies that employ them.  Although the driver involved in the latest deadly accident was cited for reckless driving, there is some evidence that Sky Express, the company that employed the driver, had a history forcing possibly fatigued drivers to work multiple shifts with inadequate rest.

What this incident highlights is that bus, taxi, and limousine drivers as well as other “for-hire” vehicle drivers are not merely unskilled workers, but professionals who literally hold the lives of their passengers in their hands, and that their ability to do so is directly linked to the kinds of workplace protections they may receive.  As such, there have been recent pushes by Labor advocates and Labor & Industries experts to expand access to health care and workers’ compensation benefits for these workers.

In February, Seattlepi.com reported that a Senate Bill requiring drivers to be covered by workers’ compensation benefits stalled in the legislature.  Scott Gutierrez reports, “Senate Bill 5785, one of two bills on the topic, would define taxis, limousines and other for-hire vehicles as ‘urban transportation businesses’ and require their owners to pay industrial insurance premiums.  The goal is to ensure that drivers are covered for work-related injuries beyond what’s covered by auto insurance, which is mandatory in the taxi business.”

The Bill’s sponsor, Senator Adam Kline, D-Seattle, is quoted as arguing “They get robbed and beat up, and because they spend so much time on the road, they’re exposed to more collisions.  That’s an occupational hazard.”

There has also been confusion over who is liable when a taxi or town car driver is injured in the workplace.  Gutierrez notes, “In the past, health care providers mistakenly filed medical claims with L&I involving cab drivers who said they were injured on the job, even though no one was paying into the system for them.  Then, L&I had to sort out whether the driver was an employee and who was responsible for the premiums.”  In fact, there was even a “recent lawsuit in Tacoma between L&I and a taxi association over a $400,000 medical claim involving a driver who was shot during a robbery.”

The Tacoma driver is only one of many Washington State drivers who have been the victim of violence in recent years.  Drivers are put in very vulnerable positions in relation to their passengers and often have little recourse when they are attacked, robbed, or even killed.  These statistics reveal that creating access to benefits could increase safety for passengers and drivers alike

The Department of Labor and Industries is well aware of these dangers and now seems prepared to help the legislature close this important gap in coverage for this very vulnerable class of workers.  The Preproposal Statement of Inquiry filed by L&I this week will seek advice from both employers and individuals from the for-hire vehicle industry as they move this initiative forward.

Workers injured on the job should first seek medical help, but then consult with an expert Washington workers compensation lawyer about their claim.  The expert workers’ compensation attorneys at Emery Reddy are standing by to assist injured workers with their claims.

As we have reported before here, Washington State’s Workers’ Compensation Program is projected to run into insolvency in whole or in part within the next five to ten years.  KATU.com reports, “The system had about $499 million in reserves as of Dec. 31, the last figure available through the Department of Labor & Industries.  That figure represents the sum of medical fund of the system, which stands at nearly $709 million; the accident liability fund that is in the red for $275 million; and the pension fund that currently stands at $65 million.” Legislators point to these statistics to argue of an impending disaster that only big changes to workers’ compensation can avert.

Beyond the lost revenue stemming from the recession, critics of the Workers’ Comp Program point to one oft-quoted statistic as a major root of the problem: About 85 percent of compensation costs come from only 8 percent of all claims.  How is this possible?  Bert Caldwell of the Spokesman-Review explains that this 8 percent group is characterized by long pay-outs that stretch out into pensions.  He notes that Washington, “unlike most states, does not buy workers out of the program in order to cat its costs. Gregoire’s proposal would make that option available to workers age 55 and older who may not be retrainable and might prefer a reduced stipend that allow them to go their ow way and possibly find new work without worrying that a dollar erned is a dollar out of their pension.”

This “buy out” turns out to be the center of debate in this new round of Workers’ Compensation reform talks.

The Democrats insist their new proposal is more moderate than the one proposed by the Senate.  However, they do retain the option of a voluntary settlement as a central feature to their cost-cutting plain.  The settlement option allows workers to choose a one-time check to cover lost earning power.  Labor Unions reject this option, noting how tempting a one-time “fat check” can be and also arguing that when injured workers run out of settlement money, they are likely to turn to other social service outlets to meet their needs.  However, Rep. Chris Hurst, D-Eunumclaw, casts the settlement provision as an expansion of worker writes: “At the end of the day, it’s the workers’ money and it’s their life, and they should have the right to make this choice, to make this decision on their own and it needs to be a fair process.

Organized Labor counters that settlements rarely fully compensate an injured worker.  Jeff Johnson, president of the Washington State Labor Council recasts this “compromise” between the House and Senate as a shift in cost to injured workers.  He argues, “The only compromise, in any form of compromise and release, is workers compromising the benefits they need to survive.

The Seattle Times Editorial Board supports the measure by arguing that several safeguards, including grace periods before making a decision on a settlement, have been put in place to guard against coercion and split-second decision making that could impact an injured worker for the rest of his or her life.  As such, the momentum seems to be behind this version of the Bill, and Labor & Industries Attorneys and Activists will continue to watch these developments with an eye to protecting worker rights.

If you are injured in workplace setting, immediately seek medical help.  Injured workers should also consult with an expert Washington Labor & Industries Attorney to ensure they are protected as they file their claim.

]]> http://emeryreddy.com/blog/2011/04/washington-democrats-present-workers-compensation-plan/feed/ 0 http://emeryreddy.com/blog/2011/04/the-future-of-labor-rights-the-supreme-court-class-action-suits/ http://emeryreddy.com/blog/2011/04/the-future-of-labor-rights-the-supreme-court-class-action-suits/#comments Fri, 08 Apr 2011 17:05:29 +0000 Jennifer Atkinson http://emeryreddy.com/blog/?p=286 On Tuesday, March 29, The Supreme Court heard arguments in what might be the largest, most important class action lawsuit in American history.  The top court is not deciding whether the women in the case were indeed victims of large-scale sex discrimination.  At issue is a procedural question: can a large, diverse group of women across the country claim class status? The stakes are quite high: class actions are a legal tool that “makes it much easier for little-guy and little-gal victims of discrimination to sue.”  Workers, Labor Rights Activists, and Workers’ Compensation Attorneys across the country are watching this case carefully to determine if the Supreme Court will uphold Labor Rights or turn over more power to Big Business.

On December 8, 2010 Time.com reported that a “group of women employees is suing Walmart for discrimination, charging the nation’s biggest retailer with underpaying female workers and denying them equal opportunities for promotion.”  Slate.com describes the genesis of the case: “In 2001, Betty Dukes sued Wal-Mart for sex discrimination in a lawsuit filed on behalf of every woman who worked for the company since 1998–roughly 1.5 million women.”  Dukes alleged several grievances against Wal-Mart.  The central claim was lack of equal pay, even for women with greater seniority and better performance reviews.  Also, Dukes claimed the path to promotion was much more difficult and longer than for men and that women were routinely subjected to sexist language.

Beyond the sworn declarations of 120 women who describe their experience of sex-deiscrimination at Wal-Mart, the plaintiffs argue Wal-Mart’s hierarchal structure as directly contributing to the systematic discrimination.  Wal-Mart gives store managers discretion when making promotions and hiring decisions, using such criteria as “teamwork, ethics, integrity, and the ability to get along with others.”  The plaintiffs contend that it was just such subjective criteria decided by mostly male managers that allowed the system to be vulnerable to common sexism and gender stereotypes. This was, after all, the 1990s.  The claim rests on the idea that mostly male managers with little oversight tend to either consciously or unconsciously apply gender stereotypes when it comes to such nebulous concepts as the “ability to get along with others.”  Unfortunately, as many women continue to know today, long-held sexist attitudes about gender roles continue to influence managers in their decision-making process.

It is just this argument that Wal-Mart claims undermines the very status of the class.  As Slate.com notes, “Because Wal-Mart gives managers at the store store level almost complete discretion make personal decisions, there’s nothing that connects the decisions of one Wal-Mart manager to those of another.”  Thus, even if female employees across the country DID suffer sex discrimination, Wal-Mart claims those events were ultimately unconnected.  And while the company acknowledges that such discrimination might have existed, they want the employees to file the claims independently.

Of course, this is where the importance of  the current Supreme Court battle becomes key.  While the decision before the court is narrow (can all these women constitute a class?), the stakes are enormous: can large groups of injured employees band together together to face the legal might and deep pockets of large corporations like Wal-Mart?

When arguments commenced before the Supreme Court on March 29, it soon became clear the Justices had questions in line with Wal-mart’s claims.  The New York Times reports that Justice Anthony M. Kennedy said he found the issue of manager discretion as a foundation for proving systematic abuse “internally inconsistent.”  Justice Antonin Scalia, one of the most conservative and consistently pro-business members of the court argued “One the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is strong corporate culture that guides all of this.  Well, which is it?”

The chief worry of the court seemed to be the large number of companies that could be liable if this diverse class was certified. However, as many labor rights activists note, class actions were designed in part to hold companies accountable for abuses on a large scale and that these cases should work as a deterrent to prevent future abuses.  So the court must decide who is more important: corporations or American workers?

We will continue to provide updates on this important case and others.  Workers who believe they have experienced workplace discrimination of any kind should contact an expert Washington Labor and Industries Attorney immediately.

However, the Northern District Court of California denied class certification citing skepticism that an overall trend could be established through analysis of individual records. This ruling demonstrates the difficulties faced by employees who want to use the collective power granted by Class Action suits to redress illegal corporate policies that are often “off the books” and unofficial company culture.

According to court documents, “Plaintiff’s position is that common questions predominate because the main issue is whether…Joe’s Crab Shack restaurants in California followed a common unwritten policy of denying meal and rest breaks, failing to pay employees who did not take breaks, failing to pay for overtime, requiring employees to purchase their own uniforms, and so forth.”  Lawyers for the employees argued that they could establish a pattern of abuse through analysis of the restaurant’s Aloha computer system.

The Court responded that establishing this and other wrongs would emerge from individualized inquiries, thus the “only way of showing the ‘practice’ that plaintiff claims existed in California restaurants would be to determine how when and how it was applied in each instance.”

Like many systematic infractions on labor rights, the practice of discouraging or outright prohibiting meal breaks was not written into official company policy.  As such, proving that such abuses were institutional can be difficult. As the court notes, Plaintiff “must show that the employer impeded, discouraged, or prohibited him from taking a proper break.”

Examination of employee time cards clearly show a pattern of “breakless” shifts. The Court’s view is that it might have been an employee’s choice not to take a meal break. It is an interesting position: after all, how many workers routinely reject the chance to take a break and consume a meal during a long, physically demanding shift?  On the other hand, food workers are primarily dependent on tips, and time not spent on the floor waiting tables is viewed as lost money.  How does one determine collective intentions across a class?

In any event, the Court’s reasoning for declining to certify the class invites questions about the nature of Class Action in general.  If one cannot establish a pattern of institutional abuse through analyzing a trend that emerges through individual experience…then how does one construct a pattern at all?  All Classes are composed of individuals who suffered common wrongs.  Further, it is often only the collective power of a Class that can confront the combined legal might of a large corporation.

The California Court’s refusal to certify may signal a shift in the willingness of Courts to side with Workers against their Employers in the case of Class Actions.

Employees In Washington and Seattle who believe they are subject to unfair labor practices should contact an expert Labor & Industries Lawyer.  Denying basic access to meal and rest breaks and withholding pay are serious violations of Labor Laws and Workers should not be intimidated when securing their basic rights as workers. An experienced Washington L & I Attorney is waiting to speak to you.

Oklahoma Senate Bill 878 purports to be a comprehensive approach to workers’ compensation reform.  Brian Bingman, R-Salupa said, “We are committed to reducing Oklahoma’s workers’ compensation rates and making our state more competitive for job creation in every way.  This bill is progress towards a goal of making Oklahoma more competitive economically with surrounding states.”

The provisions of the Bill include mandating a judge to render a decision within 60 days, mandatory annual reviews of disability recipients, placing more authority in the hands of medical experts when reviewing claims, and encouraging early return to work as a form of rehabilitation.

Critics are skeptical of bill’s true intent.  Barbara Hoberock reports that the bill could limit injured workers’ access to medical treatment. It ties rates of compensation for doctors treating injured workers to 120 percent of Medicare. She quotes Dr. William Gillock, who practices occupational medicine in Tulsa. “We are concerned it would eliminate access to care and affect the quality of care we can provide,” he said.  The primary concern is that the reduction of compensation would make it difficult for doctors to refer their patients to specialists who charge higher raters.

Another measure passed by the Oklahoma Senate is aimed at limiting the amount workers’ compensation lawyers can be paid to represent injured workers.  Critics like Senate Minority Leader Charles Laster argue that the resolution would force injured worker’s to stand alone against the well-funded legal teams representing insurance companies.  Although supporters argue the measure would motivate workers’ compensation lawyers to work harder on behalf of their clients to obtain larger compensation, another possible outcome is reluctance to take cases in the first place.

The Washington State legislature is also pushing major changes in workers’ compensation benefits under the banner of reducing costs to the State.  While Governor Chris Gregoire’s proposal to push workers back into “light duty” while still recovering from injuries and to offer buy-outs to injured workers does not go as far the Oklahoma measures, it does reflect the national trend to push injured workers back into the workplace perhaps before they are ready.  The Seattle Times reports the “idea is to reconnect the worker with his boss, co-workers and paycheck, instead of having him sit at home on state benefit.”  One should note that the Times’ description of a worker sitting “at home” reflects an ugly prejudice in the mass media and by politicians against the plight of the injured worker.  As anyone who has suffered a workplace injury will tell you, recovery is a physically and emotionally exhausting process.

Labor and Industries laws continue to change across the nation.  Injured workers should consult with a Washington Workers Compensation Lawyer to ensure they receive the full protection of the law.

Denise Frisino’s troubles with toxic mold began in 2000 when she acquired a respiratory illness in response to chemical toxins present at Hamilton International Middle School. The illness made her sensitive to a range of airborne toxins, from mold to other irritants.  After attempts to clean up the toxic environment at the school failed, Frisino was forced to go on medical leave in April 2004 and agreed to be transferred to Nathan Hale High School the following school year.

According to court documents, the extent to which Seattle Public Schools has failed to address widespread mold and toxin problems became clear when Frisino entered her new classroom at Hale.  She “immediately note[d] visible mold as well as blackened and missing ceiling tiles.”  Frisino discussed her concerns with Hale Principal Lisa Hechtman.  In September and October, a private firm, Clayton Group Services, as well as the Seattle/King Country Department of Health investigated and “reported no active mold growth in the building.”  Although they reported “the total fungal structure concentrations inside the hale building were lower than those found outdoors,” the District still performed some minimal remediation on the classroom.  On November 21, the issue came to a head when Frisino experienced a respiratory emergency in the classroom requiring a visit to the emergency room.

Michelle Esteban of KOMO News reported on November 29, 2004 on photos of mold that a Nathan Hale parent provided.  Esteban notes, “Some of the ceiling tiles are peeled away and, underneath, a black mold.”  The article also described Frisino’s reaction as “severe–everything from a hacking cough, swollen nose, ringing ears and now respiratory complications.”

Frisino was not the only person put in jeopardy by the continuing mold problem at Nathan Hale.  Seattlepi.com reported on December 7, 2004 that Jennifer Aspelund pulled her son out of Nathan Hale because of the threat the mold posed.  Her son, North Aspelund Jr., was “diagnosed with leukemia at age 4, relapsed four years later, then endured a bone marrow transplant and the removal of a cancerous kidney.”  After detecting a an odd smell in the library, officials confirmed an “area above a northeast stairwell contain[ed] Stachybotrys atra, a greenish-black mold.” His mother noted they never would have enrolled North in Hale had they been aware of the mold problem.

Meanwhile, Frisino was earnestly negotiating with the District to accommodate her disability.  According to court documents, the District hired Superior Colt to remove visible mold from Classroom 216.  The remediation project was completed in December and the District demanded Frisino return to work on January 3, 2005.  Thus began a flurry of communication between Frisino and the District, with the District claiming the environmental remediation was “appropriate” and Frisino’s doctors repeating she was “advised to remain away from her current workplace or be transferred to a more accommodating environment.”  The District terminated Frisino on June 1, claiming she failed to return to work.

Frisino’s original lawsuit alleged the District failed to provide a reasonable accommodation as required by the Washington Law Against Discrimination, and engaged in employment discrimination and retaliatory discharge.  The trial court dismissed her claim in favor of the District.

Yesterday Frisino’s claim was given new life by the Washington State Court of Appeals when she was granted a new trial.  Among other irregularities, the court noted the District attempted to apply an “objective measure” to her illness and questioned whether the District reasonably accommodated Frisino. Most importantly, in the last month many of the key players working for the School District have been terminated for misuse of District funds and poor leadership after being swept up in the Seattle Public Schools Scandal.

Since the case was dismissed in 2009, Nathan Hale has been completely renovated.

The Appeals Court’s granting of a trial is an important victory for injured workers whose employers violate their rights by refusing to accommodate a disability or terminate in retaliation.  There is a Washington L & I attorney at Emery Reddy  that has the expertise to protect your rights.  Stay tuned as this case continues to unfold…

And yet for a North Carolina health care worker, the offended party was his employer. And the form of betrayal?  Workers’ Compensation Fraud.

The case highlights a troubling trend in the increasing intrusion of employers into the private, even intimate life, of their workers.  The case also reveals that without proper protection from workers’ compensation attorneys, the government is ready to support the employer’s effort to do so.

According to media reports, the plaintiff in the case  worked as a health care technician at a residential health care facility.  After being the victim of a physical struggle with a patient, the plaintiff reported a back injury and began to collect benefits in March 2007.

Court records reveal the employer began to hear reports that there were video postings on the Internet of the plaintiff engaged in sexual acts while he was receiving workers’ compensation benefits. Armed with these rumors, the health care facility hired a private investigator to substantiate these claims.

It seems the investigator did… tracking down a whopping 107 videos. Adding to the already provocative nature of the claims, the investigator discovered the other participant in the videos was a co-worker.   Citing this information, the employer fired the two workers in January 2008 for personal misconduct. While these dismissals themselves bring up a host of troubling questions about the rights workers have to autonomy and intimacy in their private lives, it is the further use of these videos that seem to represent the biggest threats to workers’ rights under workers’ compensation laws.

The Employer had a physician review several videos and testify that the acts depicted should have caused the worker substantial pain and suffering. Although the worker argued that the videos were filmed well before the date of the injury, the government met this claim with skepticism. In November 2007, the full North Carolina Industrial Commission ruled the worker was not credible and denied his claims to worker’s compensation.

In a world where videos of injured workers playing golf or working around the yard are aired by anti-labor  media outlets bent on stirring outrage in the public, the focus on a sensational sex video in this case and the seeming moral approbation attached to the worker by the Commission cannot be dismissed. And yet if we are to eject the puritanical lens through which the Commission no doubt viewed the case, there are even more deeply troubling trends in the erosion of workers’ rights suggested here.

The most obvious problem with the decision is the expectation that a worker must not maintain a functioning private life in the face of a work injury.  In effect, the Employer was arguing that the worker must completely forgo sexual relations to be credible in his claim to worker’s compensation.  And yet, if the worker could no longer have sexual relations with spouse, he or she could claim “loss of consortium” — i.e. the claim that the injury prevents one from having sex with a spouse.

Ultimately what is at stake here is the right for a worker to accept pain to engage in acts of private, human intimacy even while he has the right not to experience pain in the performance of work duties.

Workers that suspect their rights to privacy and autonomy are being tested or violated by employers should immediately contact an experienced Seattle or Washington Labor and Industries Lawyer to protect them.

As Dr. David Michaels (Assistant Secretary of Labor for OSHA) explains, “When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers.”  Therefore, as Michaels concludes, “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”

OSHA’s new regulations cover workers with complaints across a range of industries, including railroad, public transit, commercial motor carrier and consumer product industries; in addition, they also establish more consistency among the agency’s complaint procedures. OSHA’s interim final rules create both procedures and timelines for processing complaints under the whistleblower sections of the Consumer Product Safety Improvement Act of 2008.

OSHA implements the whistleblower requirements of the OSH Act and 18 other statutes that protect workers who report breaches of airline, railroad, environmental, public transportation, securities, commercial motor carrier, pipeline, nuclear power, and health care reform laws. Details on these new statutes will be available to the public at http://www.whistleblowers.gov.

The Occupational Safety and Health Act of 1970 declared that state and private employers are responsible for ensuring safe workplaces for their employees. On behalf of American workers, OSHA assumed the role of overseeing these conditions and ensuring compliance by establishing and enforcing standards throughout the American workplace. In addition, it makes education, training, and assistance available to both employers and workers to support that objective.

If you are in need of a workers’ compensation attorney in Seattle or Washington, please contact an attorney at Emery Reddy today.