Tag Archive for injured worker

Jennifer Atkinson | May 12, 2011
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Workers’ Compensation Crisis Stalls Washington State Budget

Workers’ compensation law in Washington State will be transformed.  The question has now become “how much.” Last week lawmakers revealed that protecting workers’ compensation benefits is so crucial, they are willing to stall the entire state budget to protect workers’ rights against the rising tide of corporate power.  Still, critics question what they perceive as inflexibility on the side of democrats when settling the issue of workers’ compensation.

After all the debate and maneuvering on reform over the last months, the issue has boiled down to one very contentious proposal: giving workers the option of settling their workers’ compensation claims with a lump-sum payment rather than negotiating a lifetime disability pension.

Like many other states dealing with massive budget shortfalls as the economy slowly recovers, Washington State lawmakers are focused on slashing programs and reforming services that are seen as bleeding money.  As we have reported here, Workers’ Compensation emerged as a flash point in the budget debate when it was reported by several media sources and government agencies that about 85 percent of all workers’ comp costs came from just 8 percent of all claims.  These claims involved injured workers who received long term benefits or were awarded lifetime pensions.  While these sorts of settlements are often necessary to meet the long term needs of injured workers, the oft quoted “85 percent” figure has become the clarion call for groups aligned with big business against labor rights.  Speaker Frank Chopp is the most vocal opponent to the lump sum settlement option.

The Seattle Times Editorial Board has come out strongly against efforts by Chopp to stall the budget in order to protect labor rights.  They cast the fact that Washington has no settlement option for workers as limiting to all parties involved: injured workers, employers, attorneys, and the Labor & Industries system.  They argue, “Now the workers’ comp system gives them a pension and tells them they are done working for life.  The new idea is to allow them to take a lump sum and find different work.”  They note further, “Now the system pensions them.  It has been handing out more than 1,000 new lifetime pensions a year, a practice that has been become expensive…for labor, too, because a payroll tax is a tax on the creation of jobs.”

This formulation of the workers’ comp fix directly echoes arguments made by Republicans and the Association of Washington Business that offering lump sum settlements is an obvious, simple fix for the Labor & Industries system.

However, Labor Rights activists note that the devil is very much in the details.  As we have noted here in this blog, “Buried in the back of the bill is a section that may limit the ability for workers to be compensated for separate and totally unrelated injuries, merely because they were unfortunate enough to have been injured multiple times.”  Further, many groups aligned with Labor point out that the temptation to accept a lump sum can be overwhelming a worker who is injured and anxious about his or her future. The Seattle Times quotes David Groves of the Washington State Labor Council when he points out “People who are in desperate circumstances are going to be pressured to take buyouts that re against their best interests.”

In a letter posted to the Times on May 11, Kelly McQuade makes perhaps the most telling point about the lump sum option for injured workers.  She notes, “Where is that person going to turn when the lump sum is gone?  Other state-funded services (if they even exist in the future) will pick up the slack.  This is a Band-Aide that will hurt Washington labor for years to come and cost more in the long run.”

Governor Chris Gregoire has indicated that forcing the Legislature into special session over this matter would be unacceptable.  As she works behind the scenes to come to a compromise, we will keep you updated on how this crucial issue plays out.  As this crisis makes clear, injured workers should seek the advice of a Seattle Labor & Industries Attorney who is an expert at navigating the rapidly shifting landscape of Washington Labor & Industries Law.  Visit us soon here for major updates…

Category: Uncategorized, Worker Injury, Worker Rights, workers compensation, Workplace Accident | Tags: , , , , , , , , , , ,
Jennifer Atkinson | April 21, 2011
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Washington Democrats Present Workers Compensation Plan

In an attempt to reign in the Washington State Budget, a group of House Democrats put forward a proposal that seeks to make more moderate changes to the State’s Labor & Industries program than a prior proposal unveiled in the State Senate.

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.

Category: Uncategorized, Worker Injury, Worker Rights, workers compensation, Workplace Accident | Tags: , , , , , , , , , , ,
Jennifer Atkinson | April 12, 2011
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Tsunami Aftermath: Disaster, Contract Labor, and Workers’ Comp

They have become known in the press around the world as the “Fukushima 50,” the 50 anonymous workers who venture into the dark, flooded depths of the Fukushima Daiichi nuclear power plant in the wake of the March earthquake and tsunami that sent the plant’s systems spinning perilously out of control.  Ethicists and labor rights activists wring their hands over the morality of sending in civil workers into what is certain to be a radioactive environments while editorials and politicians praise their bravery and selflessness in the face of disaster.

In the wake of their acts of bravery, labor advocates began to ask important questions about these nuclear workers’ access to health care and workers’ compensation benefits should they suffer any ill effects from their important work.  After all, a startling “88 percent” of Japanese nuclear workers are contract workers with uncertain access to benefits, according to the NYTimes.com.

The New York Times noted these workers are “emblematic of Japan’s two-tiered work force, with an elite class of highly paid employees at top companies and a subclass of laborers who work for less pay, have less security and receive fewer benefits.”  The Times reports that the medical care and benefits for these workers tends to dwindle as you work your way down the ladder from contracted worker, to subcontracted, to even sub-subcontracted.  Essentially “nuclear migrants,” these workers attempt to conceal injuries or exposure to radiation so they can retain their employment.

As the United States re-evaluates its own nuclear power industry, the spotlight has shifted to how the U.S. treats those workers who are asked to put themselves in jeopardy in what is essentially a work situation.  Just today, Scientific American reports that the U.S. nuclear safety regulator is investigating how three nuclear workers in Nebraska were exposed to radiation in a workplace setting in early April. Scientific American writes, “The three workers triggered radiation alarms by incorrectly moving a radioactive tube on April 3. They immediately set the tube down and fled the area.  Nebraska Public Power District, which operates the Cooper Nuclear Station, does not believe the workers were exposed to radiation above regulatory limits, the Nuclear Regulatory Commission said in a release.”  There is no word if these workers were subcontractors or full-time employees.

Of course, if the United States suffered a disaster so severe that it forced not only nuclear workers, but emergency workers to enter extreme environments to save lives, the most obvious, and unfortunate parallel is 9/11.  Chris Bragg wrote as late as 2007 that “many cleanup workers who rushed to help the city in its time of need say they have developed serious physical conditions due to that work: 756 cleanup volunteers and many more paid workers have submitted claims. Many claimants say, however, the Workers’ Compensation Board has been slow in helping them get back on their feet.”  Workers employed by the city, such as firefighters and police officers, go through a tailored compensation process.  But contract workers are at the mercy of the city’s Workers’ Compensation Board, and literally hundreds of articles over the years have detailed their struggle.

Labor & Industries experts will continue to watch the drama unfolding in Japan with an eye to how workers in the U.S. would be treated in similar circumstances.  If anything, the situation reveals the need for greater protection of subcontracted workers of all stripes, especially in terms of workers’ compensation, before a disaster happens and workers must rush into the unknown.  If you have been injured and have questions about your employment status as it relates to workers’ compensation, contact an expert Washington Labor & Industries Attorney.

Category: Employment Discrimination, Uncategorized, Unfair Pay Practices, Worker Injury, Worker Rights, workers compensation | Tags: , , , , , , , , , , , ,
Jennifer Atkinson | March 22, 2011
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Emery Reddy Victory for Seattle Teacher: Appeals Court Grants Trial in Seattle School District Employment Discrimination Case

The Washington State Court of Appeals decided yesterday that a 14 year teaching veteran deserves a trial in an Employment Discrimination case.  At issue for the jury is whether the Seattle School District should have transferred her to a clean, mold free environment before terminating her.

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…

Category: Employment Discrimination, Retaliatory Termination, Uncategorized, Worker Injury, workers compensation, Workplace Accident | Tags: , , , , , , , , , , , ,
Jennifer Atkinson | March 10, 2011
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Supreme Court Allows States To Rule On Immigrant Workers’ Comp

The U.S. Supreme Court has declined to a hear a case that would have forced a broader ruling on whether States can deny workers’ compensation to undocumented workers injured on the job.

According to court documents, Antonio Garcia Rodriguez sustained an injury on February 6, 2004 while doing roofing work for Integrity Contracting at the University of Louisiana-Lafayette.  His claim was initially denied by the Louisiana Workers’ Compensation Corporation because LWCC claimed Integrity had failed to pay its premium on the policy.  However, Integrity Contracting was a subcontractor working for Vaughan Roofing & Sheet Metal, making Vaughan Roofing liable as a statutory employer.  Vaughan countered that Rodriguez was on an expired work visa at the time of the accident, thus placing him in that most murky of legal categories: the undocumented worker.

At stake in the case of Vaughan vs. Rodriguez was whether Federal law trumps State Law in the matter of workers’ compensation.  State laws require employers to provide workers’ compensation to injured workers.  But the Immigration Reform and Control Act of 1986 (IRCA) made it illegal to knowingly hire or recruit undocumented immigrants.  One way that employers worked around this new law was to make extensive use of subcontractors, as Vaughan Roofing did in the Rodriguez case.

States have dealt with this conflict between State and Federal Law in many ways. California, Maryland, and Florida among others have held that an injured worker’s immigration status is irrelevant to his or hers workers’ compensation claim.  In a California case, the Court of Appeals rejected an employer’s argument that the IRCA preempts California’s labor code that includes undocumented workers in the definition of covered workers.  In fact, the court held there was no true conflict between the IRCA and California law.  The court noted that barring injured undocumented workers from collecting workers’ compensation would encourage “unscrupulous employers to hire unauthorized aliens” to work knowing they would not have to pay any claims to injured workers.

By declining to hear the Vaughan case, the Supreme Court effectively reaffirmed that this important question should be settled at the State level.

When Immigration and Workers’ Compensation laws intersect, injured workers’ may feel overwhelmed by the obstacles to their legal claim.  Injured workers should consult with an expert Washington Workers’ Compensation Attorney who understands the shifting legal landscape.

Category: Uncategorized, Worker Injury, workers compensation, Workplace Accident | Tags: , , , , ,
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