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/2011/03/workers-compensation-laws-spell-changes-for-injured-workers/ http://emeryreddy.com/blog/2011/03/workers-compensation-laws-spell-changes-for-injured-workers/#comments Thu, 24 Mar 2011 19:54:12 +0000 Jennifer Atkinson http://emeryreddy.com/blog/?p=237 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.

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.

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.

Historically, New Jersey’s maximum workers’ compensation has increased by modest increments on a yearly basis. The decrease slated for 2011 indicates a significant faltering of the state’s economy.  And while there will be a decline in scheduled disability rates, skyrocketing medical costs will continue to go uncapped.  The financial consequences of that disparity remain unclear in a period of declining payrolls and smaller premium collections on workers’ compensation benefits.
2011’s maximum workers’ compensation benefits for temporary disability, permanent partial disability and permanent total disability rates are based upon the States’s Average Weekly Wage (SAWW) for the prior year. Currently, New Jersey allows a maximum benefit of 75 percent of the state’s average weekly wage.

Maximum workers’ compensation benefit rates in New Jersey have been regarded as rather low in relation to other states in the U.S., and many workers’ compensation attorneys and workers’ rights advocates have purchased for a higher adjustment.

The new payment schedules will apply to workers who suffer on the job injuries and deaths in 2011.

In a conference announcing the proposed penalties, Secretary of Labor Hilda L. Solis stated that “Accurate workplace injury and illness records are vital tools for identifying hazards and protecting workers’ health and safety. Workers and employers need this information to recognize patterns of injuries and illnesses, and prevent future hazards.”

OSHA’s investigation of Goodman Manufacturing began in March 2010 after the agency received a series of complaints that Goodman had violated OSHA’s regulations by systematically failing to properly document workplace injuries and occupational illnesses. The investigation determined that from January 2008 to March 2010, the company had inaccurately recorded—or simply declined to document altogether—nearly 75 percent of employee injuries and illnesses on its premises.

Workers and regulators have commented that Goodman is highly knowledgeable of OSHA’s recordkeeping procedures, but nevertheless persisted in the decisions and actions resulting in the alleged violations.  Critical information pertaining to the degree and duration of its workers’ injuries and illnesses have been inaccurately documented, including the duration of their time off the job.  Such figures are vital to properly handling and treating injured workers in a workers’ compensation claim.

As OSHA’s Assistant Secretary of Labor, Dr. David Michaels explains, “OSHA takes these violations extremely seriously. We need accurate data to effectively target inspections and resources, and to measure the impact of OSHA’s actions on workplace safety. Employers and workers need to understand how important accurate data are to workplace safety and health.”

According to OSHA regulations, the definition of a willful violation is one that is committed with gross indifference to or intentional neglect for a worker’s safety and health.
Goodman Manufacturing was given 15 business days after the citations were issued to comply with OSHA’s protocol and request a consultation with the agency’s Houston director.  Goodman can also contest the citations with the independent Occupational Safety and Health Review Commission.

OSHA recently implemented a National Emphasis Program on Recordkeeping to evaluate the accuracy of employer documentation of worker injury and illness.

All workers are urged to immediately report accidents, fatalities or dangerous workplace conditions to OSHA’s toll-free hotline at 800-321-6742. 
 Injured workers should also consult a Washington Workers’ Compensation Lawyer at Emery Reddy.

According to the Globe and Mail, the lawsuit is being filed by Dilshod Marupov, a 22-year-old worker from Uzbekistan who was repairing balconies on a Toronto apartment building when the scaffolding he was using snapped in half, causing him to fall 13 stories to the ground. Both of Marupov’s legs were crushed and his spine was broken, forcing him to stay in the hospital for several months. All other workers who fell from the scaffolding were killed.

Charges filed against Metron Construction of Toronto and Swing N Scaff of Ottawa include failure to ensure that workers were provided with proper devices to protect them from falling, and failure to make certain that the work platform was not overloaded.  “We are suing them because we think they have a duty that they didn’t exercise properly,” said Marupov’s lawyer, William Friedman.

Unfortunately, such workplace accidents are common in Washington as well.  While OSHA reports a declining trend in deaths from workplace accidents, workplace injuries remain at unacceptably high levels.  If you have been seriously injured in a workplace accident, contact a Washington workers’ compensation attorney to help you recover damages including medical costs, lost wages and compensation for pain and suffering.

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.

The default rate among self-insured group trusts has produced an alarming level of assessments on small businesses throughout the country. Workers’ compensation boards in states like New York are increasingly deliberating “safety programs” that would lower workers’ compensation costs.

Certain critics—notably the insurance industry itself—have long argued that the injury benefits awarded by state workers’ compensation boards are overinflated, and do not accurately reflect the true costs of a given injury.

While cases of fraud and “presumptions” are significant factors, many claim that the inability of workers’ compensation boards to objectively assess and quantify disability is a much greater problem. For years, many WCBs have not had a working definition of levels of disability or percentage-based schedules of loss. These boards have used arbitrary and every-changing criteria to calculate hundreds of millions of dollars’ worth of permanent damages benefits. On top of this there have been the massive cost of trials and testimonies to calculate what WCBs claimed had no definition in the first place.

At the present moment, workers’ compensation boards across the nation are once again involved in debates over the creation and use of more standardized, objective guidelines to evaluate disability. Yet for generations, the workers compensation system has carried on profitably by not having such standards. In short, disputes have been resolved by an arrangement in which worker’s compensation attorneys and insurers must engage in expensive and inefficient disputes until both sides are worn down and settle for a number around 50%, giving the misleading impression of a fair and reasonable outcome.

According to Seattle Workers’ Compensation Attorney Theodore Ronca, this state of affairs has come about through the unique history of workers comp boards.  In New York State, for example, the board has employed a medical advisor since its very first days. The initial advisors established guidelines that were widely accepted and implemented, until they eventually came to be considered obsolete in the 1950s.  After that point, the New York State workers’ compensation board had no working guidelines, and attempts to create new criteria came to a state of deadlock through stubborn opposition on all sides.

The New York Workers’ Compensation Board continued to operate (unofficially) with the older guidelines, and then later with no criteria at all for the next forty years. Responding to pressure in the 1990s, it produced new written guideline for workers’ compensation benefits, but failed to make these binding.  In practice, they were generally ignored when negotiating workers’ compensation claims.

This, of course, raises the question as to whether guidelines would automatically solve anything. As Ronca points out, “unless the guideline can be tested to determine if it can measure what it purports to measure it remains a blank yardstick masquerading as a set of calipers.”  Calculations of workers’ compensation disability, ultimately, result in the final settlements of injury claims, some that currently stand above $200,000 (and rising).  Whether these numbers are too high or too low is a question for which many workers’ compensation boards still have no satisfactory answer.