Monthly Archives: August 2010

Ohio workers’ comp council settles for $70k in religion in workplace case

In the case of three workers fired from Ohio’s Workers’ Compensation Council, council Director Virginia McInerney has been nothing but consistent: consistently tight lipped.

When last we discussed the case (third item here), McInerney had simply denied all allegations of the workers who complained of wrongful discharge, religious discrimination and harassment, retaliation and age discrimination–and said she couldn’t discuss an ongoing case.

Employer-companies to pick up tab

On August 27, the “three former employees of the council–executive assistant Stephanie Irwin and staff attorneys Kim Finley and Shadya Yazback — signed a settlement that will net them a combined $55,102, according to documents filed with the Ohio Court of Claims,” says a report in The Plain Dealer.

The attorney for the trio gets another 15 grand, bringing the total settlement to about $70,000, which according to the Plain Dealer will eventually be borne by Ohio employers. “The money will be paid out of the council’s budget, which is funded by assessments on Ohio employers who pay workers’ compensation premiums, according to the Ohio Attorney General’s office. The council’s overall budget is $650,000 a year.”

Claims: ‘God to permeate the workplace’

McInerney fired the women in February; in March, they wrote letters to council members and, apparently, to legislators “charging that McInerney told her staff that she was sent by God to her job, that she wanted God to permeate the workplace and that Satan was to blame for obstacles the staff encountered in their jobs. She inquired about their religious beliefs, called them to pray aloud, cited Scripture in her reprimands and asked Irwin to listen to CDs of sermons and take notes on them, they said.”

As we posted in March, an AP story from March 3 quoted “a former staff attorney as writing in a letter that ‘It became increasingly clear that the Director was judging employees not on professional performance but on the quality of their faith, according to her beliefs.’ ”

No change in director’s ‘status’

McInerney retains her job and title as agency director–along with its $102,000 salary.  However, the agency’s chairman, state Sen. Steve Buehrer, released a less-than-ringing endorsement in his post-settlement assessments. From the Plain Dealer: ” ‘The move to settle in this case averts risk and avoids costly litigation.’ While Buehrer’s statement didn’t address McInerney’s future with the board, the lawmaker relayed through an aide that there is ‘no change in the status of her employment.’ ”

However, another legislator has taken aim at the entire council, which itself was created in reaction to a scandal that cost the state’s worker insurance fund $300 million in losses from questionable investments.

State rep wants to gut council

According to an Aug. 30 post at InsuranceNews.net, “State Rep. Dan Dodd, a member of the council, has questioned whether the council is even necessary. In an April blog entry on his website, Dodd [wrote], ‘In this economy, every dollar matters to employers. That is why the Workers’ Compensation Council needs to have its funding stripped before more money is wasted.’ ”

The Plain Dealer reports that “Dodd also sponsored a bill eliminating funding for the council that has cleared the Ohio House and is sitting in the Senate. Lawmakers are not expected back into regular session until after the November election.”

According the insurance trade site, “McInerney, who worked for the Ohio Legislative Service Commission before being hired as staff director, has taught seminars at Vineyard Church of Columbus and also wrote a book in 2003, “Singles Not Separate: How to Make the Church a Family.” Reportedly, she also has appeared on the 700 Club.

She hired a temp worker after firing executive assistant Stephanie Irwin and staff attorneys Kim Finley and Shadya Yazback and has said she is awaiting hiring instructions following the settlement. Laconic as ever about details of the firings, McInerney declined to comment on that aspect but said of the settlement’s resolution, “I have a 21-year track record of dedicated service and hard work for the general assembly. I stand on a solid record, not only of achievements but also with respect to my conduct.”

The awards are follows: $20,688.81 to staff attorney Finley; $22,051.50 to Yazback and $12,363 to staff assistant Irwin. Their attorney, John S. Marshall, will get $15,000.

Court approval needed; no wrongdoing acceded

After announcement of the settlement–which according to BusinessInsurance.com still requires court approval–Finley said that “obviously, we wouldn’t have brought anything forward that was untrue, but the matter has been resolved and we’re moving on with our careers,” according to the Plain Dealer.

In the agreement, the council characterized the settlement as a compromise, acknowledging no wrongdoing on behalf of the council or the director.

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Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Filing a claim

Among several concerns in review, North Dakota’s aggravated-injury provision draws particular attention

Whew–the workers comp picture in North Dakota resembles a bowl of spaghetti.

The issues sort of splay all over the place, with some overlapping others, then disappearing into the pile and re-emerging on the other side.

Unusual provision

An Aug. 16 post at Insurance Journal says, “An unusual North Dakota workers’ compensation law provides reduced benefits when a job injury worsens a medical problem the employee already has, and a consultant told state lawmakers on Friday they should repeal it.”

The Aug. 12 Bismark Tribune reports, “The latest performance evaluation of the Workforce Safety and Insurance department shows denials of claims have nearly doubled since 2005.

Claims denials

“The report, prepared by Sedgwick Claims Management Services for today’s Interim Worker’s Compensation Committee, finds that while North Dakota’s initial claims denials are lower than the national average, they are high compared with other states.

“The report recommends looking further into whether the denials are ‘appropriate based upon state law, administrative code and WSI internal claims practices.’ ”

On Aug. 16, claimsjournal.com had this to say: “A review of North Dakota’s workers compensation agency says its number of denied benefit claims has risen steadily since 2005.

Data skewed by over-reporting?

“Workforce Safety and Insurance director Bryan Klipfel says the numbers are inflated because they include incidents when a worker didn’t lose job time or need medical treatment. Klipfel says some denials were reversed later when new information became known.”

An AP post, also Aug. 16, at Bloomberg BusinessWeek has yet another angle: “North Dakota’s workers compensation director says outside reviews of his agency are too frequent and expensive.

WSI director cites too-frequent reviews

“North Dakota law says the performance reviews of Workforce Safety and Insurance must be done every two years. Auditors concentrate on specific issues and write reports for state legislators to review.

“WSI director Bryan Klipfel says it would be better to have reviews every three or four years. He says sometimes the agency barely has time to digest one set of recommendations when it has to start preparing for another.”

Gosh, no kidding, Mr. Klipfel–where do you start?

The ‘aggravation’ provision

Well, let’s start with the “unusual North Dakota law.” It’s called the aggravation provision, as in aggravating a previous injury.

Here’s how KXMC TV describes it, our emphasis added: “Under the current ‘aggravation’ law, a worker may get a reduced benefit if his job injury worsens a medical problem the worker already has. The consultants’ report says it should be repealed, and workers should get full benefits in those cases. WSI estimates the agency would have to raise insurance rates by about 2.7 percent to cover the extra $4.8 million cost.”

In other words, let’s say Mary gets in a car wreck and hurts her shoulder. Time passes and she’s back on the job; an accident occurs, and the injury aggravates the previous shoulder injury.

Most people would think well, she got hurt on the job, so what? Just take care of her. Right?

Not in North Dakota.

Back to the Insurance Journal:

“I don’t think there’s another jurisdiction in the country” that has a similar law, Malcolm Dodge, a Sedgwick assistant vice president, said in an interview.

“The provision, often called the “aggravation” law, says a worker’s benefits could be reduced by half after 60 days if he or she suffers a work injury that makes an employee’s existing medical problem worse.

“Dodge said the law would come into play if an employee injured his or her back in a car accident away from work, and then suffered a similar back injury on the job. The law says the work injury must substantially accelerate or worsen the existing injury for the employee to be eligible for full benefits.”

To his credit, Klipfel has said WSI will draft legislation that will change the provision–but it does incite wonder that such a provision would be on the books in the first place.

Denials explained

Concerning the number of denied claims, the ClaimsJournal report that ” . . . Klipfel says the numbers are inflated because they include incidents when a worker didn’t lose job time or need medical treatment. Klipfel says some denials were reversed later when new information became known.”

The Insurance Journal piece indicates that despite several concerns noted in Sedgwick’s report, Assistant VP Dodge gives the agency a passing grade on its denial rate, and Klipfel seems confident about continued progress at an agency that has seen its share of trouble in recent years:

“Dodge said the national average was about 94 percent. The consultants’ review, he said, showed WSI was applying state law correctly to claims decisions.

“Klipfel said he thought the report’s conclusions favored WSI. The agency has been in turmoil in recent years; its former director was forced out of his job and later prosecuted for misspending public funds.

” ‘Things are going good at this agency,” Klipfel said. ‘There’s a lot of positive things that we have going on … We confirmed that our claims practices are sound.’ “

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Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Filing a claim

Workers comp cases reveal fraud, effects of unintended consequences

We think it’s always instructive to follow workers’ comp fraud, regardless of whether it’s providers, carriers or claimants trying to pull a fast one.

In our first case for this edition, the person who got busted did not pull a fast one.

She pulled a slow one.

79-year-old pleads guilty

From a recent winner of a  Pulitzer prize, an Aug. 17 post of the Glens Falls Post-Star: “A 79-year-old Lake Luzerne woman who illegally collected $242,000 in worker’s compensation has pleaded guilty to a felony charge and been ordered to pay the money back.

“Anna R. Healey was sentenced to a three-year conditional discharge after her guilty plea to a misdemeanor charge of offering a false instrument for filing.”

Here’s the hook-line-sinker part, though–the authorities may be a tad late on ordering her to pay it back. Not only is she crowding 80 years-old but also the payments she apparently swindled date back to the late 1970s.

“The benefits were to be discontinued if she remarried, and investigators from the state Insurance Department sought a criminal investigation by the State Police after determining she had gotten married again.

“Healey illegally collected worker’s compensation payments for 30 years beginning in 1978.”

In other words, what are the chances that any given 79-year-old woman can come up with the dough to pay it back before she dies? True, from this one account we don’t know but what’s she’s now wealthy beyond measure.

But more likely the quick and dirty math takes over, which says she collected less than $700 a month during all that time. And most of us know where $700 a month goes in most householdds: utilities, food, and staples such as fuel and toilet paper.

Maybe it will turn out that she funded a trading account and became super-wealthy. If that’s the case, she should not only pay it back, but pay it back with penalties and interest–including charges against her estate.

Public oversight

But here’s the deal– the truly important thing involves public money. If one old lady got away with something, that’s one thing. Maybe she really needed it, but that’s a question for another topic.

The real question is this: Why did this  go undiscovered for so long? And, given the parameters, how many more similar cases are ongoing?

Shouldn’t we demand more and better of our public officials?

Ok, here’s another one.

This guy got popped for taking comp money as if he couldn’t work, but according to the sources he could indeed work. The totals involved don’t even approach Healey proportions but do involve jail time and maybe some different questions about the system.

Double dipping

According to an Aug. 18 post at claimsjournal.com, former truck driver Martin DaLaRosa was “was sentenced to brief jail time and ordered to repay $1,647 in benefits to Texas Mutual.”

One thing we notice here is the source is Texas Mutual.

Now that doesn’t mean it’s wrong. As alluded to earlier, there really are people who scam insurance companies. We know this.

In DeLaRosa’s case, the Denton, Texas, man “reported a job-related injury while working as a truck driver for Texas Environmental Management of [nearby] Justin, Texas. He claimed he was unable to work as a result of the injury, and Texas Mutual began paying income benefits to him.”

Subsequently, however, the insurance company “uncovered evidence that DeLaRosa was working as a car salesman for a Denton car dealership while receiving income benefits.”

See, the problem is not that DeLaRosa could no longer drive trucks. State law requires claimants to report when they resume employment, period. Otherwise claimants are said to be “double-dipping because the claimant collects benefits for being too injured to work when he or she is, in fact, gainfully employed.”

Insurance carriers like to point out that double-dipping costs all employers who carry workmen’s comp via across-the-board premium hikes. (Texas is the only state that doesn’t require employers to carry workmen’s comp insurance.)

The case underscores the need for competent legal counsel–not only to help claimants receive the benefits they deserve but also to make sure claimants do not run afoul of the law once benefits have been awarded.

Volunteer firefighters back in the news

The final case we’ll look at today is interesting for a different reason. Justin Fauer was a volunteer firefighter who died while trying to save his boss in a farming accident. As we’ve noted in a previous installment, volunteer firefighters can find themselves–and the communities they serve–mired in complex situations concerning workers comp coverage.

But Fauer’s case is also interesting because the parties at odds do not include either Fauer’s employer or his survivors but rather two insurance companies.

Fauer and his boss were working at a manure pit, according to an AP account in the Aug. 15 Chicago Tribune, at Johnson Valley Beef in 2005.

“Fauer’s boss, Dwight Johnson, climbed into a manure pit at Johnson Valley Beef to retrieve a chain that had fallen into the pit and was overcome by methane fumes, court records show.

“Fauer, a volunteer firefighter with Andover Volunteer Fire Department, ran to the house to tell Johnson’s wife to call 911 and then returned to the pit where he climbed in and was also overcome.

“A deputy workers compensation commissioner ruled that Fauer responded to the emergency as both a farm hand and a volunteer firefighter because some of the injuries that led to his death occurred after he would have been notified in his capacity as a firefighter.”

Grinnell versus Travelers

The carrier for the farm, Grinnell Mutual Reinsurance Company, paid on the Fauer claim but subsequently sought to have Travelers pay half, hence the importance of the commissioner’s ruling, which left Travelers–the workers comp carrier for the volunteer fire department–responsible for paying one-half the amount to Grinnell.

Then came the turnabout:

“Traveler’s appealed but the commissioner ruled the timing of the notice to Fauer’s pager ‘was not critical to the determination of coverage … because Justin has been summoned to duty as a volunteer firefighter by the circumstances themselves.’

“The commissioner determined that failure to allow volunteer firefighters to call themselves to duty would have the ‘absurd result of deterring them from immediately rendering assistance upon encountering an emergency.’ ”

Traveler’s sought a review by the court and a district court rejected the commissioner’s ruling. “It concluded a volunteer firefighter cannot be summoned to duty by circumstances, but can only be summoned by the fire department or some other official channel.”

An Aug. 19 piece in a Southwest Iowa news outlet picks up it from there:

A chilling effect on volunteer response?

“So, where does that leave the countless volunteer firefighters spread across southwest Iowa?

“ ‘It’s an interesting ruling,’ said Council Bluffs Fire Chief Alan Byers, himself a former volunteer firefighter.

“ ‘The expectation for firefighters, if you’re paid or a volunteer, is that if you come upon an accident or fire, you’ll help,’ Byers said. ‘What if you’re driving down the street and see smoke from a house? You call 911 and try to make a difference and get hurt or worse, die, there’s no workers compensation there. It’ll make firefighters think differently in those instances.

“ ‘If (volunteers) get hurt or worse and can’t get back to their day job, workers comp is all they have.’

“Byers said he’s seen the ruling generate discussion across the state on message boards, through e-mail and in discussions.

“ ‘I think a lot of people were saddened by the decision,’ he said.

“Both Byers and Jeff Theulen, the Pottawattamie County Emergency Management Coordinator, Treynor assistant fire chief and a 30-year volunteer firefighter, speculated that the state Legislature would examine the issue.”

It’s very sobering to realize how the actions of one or two individuals can effect change that potentially affects thousands of other people.

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Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Filing a claim