Tag Archive for injury attorney

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 2, 2011
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Court Won’t Certify Class Action in Blow to Workers’ Rights

The Corporate Food Industry has often been the scene of labor rights abuses ranging from dodging minimum pay laws to mandating long hours linked to the ebb and flow of customer patronage at  food establishments.  Many a waiter and waitress will tell you that they rarely are given the mandatory breaks required by State law. Recently, employees of Joe’s Crab Shack in California banded together in a Class Action lawsuit against the restaurant claiming their employers failed to, among other things, provide employees with meal and rest breaks.

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.

Category: Employment Discrimination, Retaliatory Termination, Uncategorized, Unfair Pay Practices, Worker Rights, workers compensation | Tags: , , , , , , , , , , , ,
Jennifer Atkinson | March 24, 2011
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Oklahoma Senate Passes Workers’ Comp Bill

Recently the full Oklahoma Senate approved a series of bills ostensibly designed to reduce the cost of doing business in Oklahoma.  As states compete to bring in companies amidst a slowly recovering economy, the usual suspects have emerged as siren songs of the “pro-business” community: lower corporate taxes, heavy deregulation, and limitations on workers’ compensation claims.  These proposals often have ramifications beyond their stated goals.  Lowering corporate taxes creates gaps in state budgets already suffering from lack of revenue leading to cuts in social and public services.  Deregulation can lead to abuses of corporate power, as exemplified by the mortgage crisis that kicked off the current recession.  And heavy-handed reforms to workers’ compensation can limit the ways workers can lawfully pursue and receive legitimate injury claims.

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.

Category: Employment Discrimination, Uncategorized, Worker Injury, workers compensation, Workplace Accident | Tags: , , , , , , , , , , , , ,
Jennifer Atkinson | October 7, 2010
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Worker Awarded Occupational Disease Benefits for Asbestos Exposure

Debates over the latency period for developing asbestos-related lung disease reemerged in a recent case involving a union worker suffering from an occupational disease.  The claimant—a 74 year-old industrial worker employed by the Delaware City Refinery from 1982 to 2007—developed bilateral interstitial fibrosis from asbestos-related lung disease.  His employer is not contesting the diagnosis itself, but instead raising questions about the latency period and the worker’s risk from the “last injurious exposure,” as well as challenging the degree of permanent impairment.  The ruling on this highly complex workers’ compensation case may have significant implications for the guidelines used to determine disability benefits in future workers’ compensation claims involving asbestos exposure.

Under the care of Dr. Orn Eliasson, the worker was diagnosed with a 54% bilateral pulmonary impairment, which Dr. Eliasson determined using the 5th Edition AMA Guide.  Yet a second physician, Dr. Albert Rizzo, also attended to the same patient, and rated a 24% permanency based on the 6th Edition AMA Guide.

During his July 2010 hearing the claimant was no longer working.  His employers maintained that worker safety measures from 1986 should have provided him with adequate protection from asbestos exposure beyond that date—meaning, according to the logic of their argument—that the employee’s disability benefit quotient should have been based on his average weekly wage in 1986 for determining his present disability award.

The worker’s complicated employment history has made it difficult to determine all the factors involved in his asbestos exposure.  He was last employed by Catalytic in 1982.  The worker then moved to Raytheon, where he worked from 1984 until 1997.  After retiring from Raytheon, the claimant took a part-time position with Delaware City Refinery, Raytheon (from 1997 to 1998), and Washington Group (from 2000 to 2001).  The workers also performed services for several other companies for short spells between 2004 and 2007.

In 2008, the worker started to develop acute respiratory symptoms.  It was at this point that Dr. Eliasson initially diagnosed him with asbestos-related lung disease, and designated a 54% bilateral lung impairment rating based on the AMA Guide 5th edition.  Dr. Eliasson testified that there is a 10 to 20 year-latency period for developing asbestosis following exposure, and so in his medical opinion, the worker’s contributory exposure likely occurred between 1982 and 1997.  However, Dr. Albert Rizzo also examined the injured worker, and in a testimony on behalf of the various employers,  he argued that the harmful exposures were “most likely cumulative, making it difficult, if not impossible, to pinpoint when the harm occurred.”   Drawing on the guidelines of the 6th Edition AMA Guide, Dr. Rizzo gave the patient’s bilateral lung impairment a 24% rating.

Ultimately, the Industrial Accident Board deferred to the prevailing doctrine of “the last injurious exposure rule” and upheld Dr. Eliasson’s testimony that the latency period for manifesting asbestos-related disease is 10-20 years.  The Board cited the 1988 case “Lake Forest School District v. DeLong” (WL 77665), arguing that when an injurious exposure is cumulative over the period of successive employment, the final employer is liable for the entire award.  In the case in question, the Board regarded the final year of the claimant’s fulltime employment (which fell between 1996 and 1997) as his last injurious exposure, and disregarded any asbestos exposure from 1997-2007 as outside the latency period.  Under these measures, Raytheon was found liable for the occupational illness.

When it calculated the worker’s award for permanent impairment, the Board declined to base its decision on the 5th Edition AMA Guide, and partially adopted Dr. Rizzo’s rating.  Using the 6th Edition, the Board determined that Dr. Rizzo’s rating corresponded with a Class 3 disability, which falls in the range between 24% to 40% impairment.  Yet the Board found Dr. Rizzo’s rating of 24% “low,” and awarded 30% to each lung.

If you think you may be suffering from asbestos exposure or another work-related injury or illness, please contact a workers’ compensation attorney at Emery Reddy.  We will fight to ensure that you receive the full workers’ compensation benefits to which you are entitled.

Category: workers compensation | Tags: , , , , , , , , , , ,
Jennifer Atkinson | September 26, 2010
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Work-Related Fatalities in Washington State Decline

Fatal workplace injuries in the U.S. fell to 4,340 in 2009, down from 5,214 in 2008.  While these numbers are still alarmingly high, the rate of fatal occupational injuries last year was actually the lowest it has been in ten years.

The present state of the economy appears to be a significant factor in the decline of work-related deaths, especially as high-risk occupations like construction are experiencing a historic downturn and employing fewer people.

Here in Washington State, 57 workplace injuries resulted in death, the lowest number since 2000.  Of these fatalities 9 were construction-related, less than half the number of construction-accident deaths in 2008.

The Bureau of Labor Statistics published the following data on Fatal Occupational Injuries in 2009:

  • 2009 saw an overall 17% decrease in fatal work injuries, although workplace homicides dropped by only 1%.
  • Workplace fatalities among salaried and wage-workers declined by 20%, while accidental deaths among self-employed workers dropped only 3%.
  • Fatalities in private construction declined by 16%.
  • Building cleaning and grounds maintenance occupations were the only sectors that experienced an increase of fatalities.

See the full report published by the United States Department of Labor.

This information is provided by the Emery Reddy Worker’s Compensation and L&I blog.  If you have been injured at work, or if someone close to you has been killed in a a workplace accident, please contact our firm today for a free and confidential consultation with one of our Worker’s Compensation attorneys.

Category: Workplace Accident | Tags: , , , , , , , , ,
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